The Right To Have Rights

What is the source of our rights? For the first philosophers of the social contract, John Locke and Thomas Hobbes, this question had a clear answer: Rights come into being when humans organize themselves into political bodies. In the state of nature, before governments exist, there can be no such thing as rights, because there is no law to recognize them. There is only the constant struggle of all against all, in which the only limit to acceptable behavior is what you can get away with. Not until men renounce that savage freedom, and mutually guarantee to abide by certain rules, can they meaningfully talk about rights. That is why we commonly refer to civil rights — rights that we enjoy by virtue of being citizens.

But what happens when the longing for justice leads us to posit a more fundamental kind of right — the pre-political kind that the 18th century called "the rights of man," and we now call "human rights"? That is the question Lynn Hunt asks in her short new book "Inventing Human Rights: A History" (Norton, 272 pages, $25.95). As a leading historian of the French Revolution, Ms. Hunt is an expert on the period when this new conception of rights came to the fore. And the Declaration of the Rights of Man and Citizen, promulgated by the French National Assembly in August 1789, remains for her a numinous document, marking an era in human history: "Rights once announced openly raised new questions — questions previously unasked and previously unaskable. Declaring turned out to be only the first step in a highly charged process, one that continues to this day."

Ironically, however, the book that Ms. Hunt has written to defend the origins and glorify the consequences of this epochal declaration ends up doing neither. For human rights, Ms. Hunt argues, neither begin nor end in legal principle. They are the expression, instead, of a certain emotional tendency: "Human rights are difficult to pin down because their definition, indeed their very existence, depends on emotions as much as on reason." We begin to believe in the existence of such rights when their violation becomes imaginatively intolerable — when we feel so sharply for the victims of torture or oppression that we insist on protecting them.

That is why Ms. Hunt begins her book about human rights, counterintuitively, by looking at the history of the novel. The middle of the 18th century, she reminds us, was the Age of Sentiment, when enlightened readers in England and France began to enjoy lavish displays of emotion and sincerity. In particular, she finds, sentimental novels like Samuel Richardson's "Pamela" and Jean-Jacques Rousseau's "Julie" taught 18thcentury readers a new discipline of empathy. "Through the fictional exchange of letters," Ms. Hunt writes, "epistolary novels taught their readers nothing less than a new psychology and in the process laid the foundations for a new social and political order."

Ms. Hunt quotes some startling contemporary reactions to these novels, demonstrating just how powerful the new genre seemed. One French officer wrote to Rousseau that reading the heroine's death scene in "Julie" "created such a powerful effect on me that I would have gladly died during that supreme moment." The kind of fellow-feeling cultivated by reading novels, Ms. Hunt suggests, was related to the 18th century's new sensitivity about torture, and its new concern with human rights. It is a highly speculative argument, and Ms. Hunt does not develop it to the point of conviction, but it does reveal something important about the climate of feeling in which the French Revolution was born.

What Ms. Hunt does not consider is whether precisely this dependence of human rights on a climate of feeling, which is inherently transient and unreliable, fatally compromised the revolution's attempt to protect those rights. Ms. Hunt shows how, in the first years after 1789, the logic of the declaration led the French government to extend citizenship to Protestants, Jews, and some workers and free blacks. But she does not dwell on the fact that, within a decade, France was ruled by a dictator and that a stable Republican government would be another 70 years in coming. What good is a declaration of rights, we might well ask, if there's no one to enforce them?

The same question applies still more forcefully to the United Nations's 1948 Universal Declaration of Human Rights, which Ms. Hunt admires as a "touchstone for the rights of humanity." Such a vague encomium suggests what Ms. Hunt values about this and other declarations of rights: They are important not for any concrete legal or political results, but for the way they shape feelings and discourse. She acknowledges that "the human rights framework ... might be exasperating in its slowness to respond or repeated inability to achieve its ultimate goals," but she insists that "there is no better structure available for confronting these issues." Yet surely the farce that is the U.N. Human Rights Council — a totally compromised body that includes some of the world's most oppressive governments — is a powerful argument that some better structure must be found.

The first step toward such an alternative might lie in questioning the very premises of "Inventing Human Rights." If human rights have remained, for 200 years, merely rhetorical and emotional constructs, with no power to compel their own enforcement, perhaps a better conception of rights would ground them on reason, as Locke and Hobbes tried to do. Instead of the rights of man, which by definition cannot be anchored in any existing polity, we might turn to Hannah Arendt's powerful notion of "the right to have rights" — that is, the need for every human being to be a citizen of a sovereign and effective state. And instead of trusting to empathy, we might acknowledge that it is only the practice of politics that can offer and secure anything like rights.

akirsch@nysun.com