Antigone, in Sophocles’ tragedy of 441 BCE, defied the temporary human law that forbade burying her outlawed dead brother, and appealed to an eternal divine law that overrode it. She was, argued Aristotle, enunciating our commonly held “inkling” of “a naturally universal right and wrong”. If he is father to the concept of a universal natural law that can be understood through reason, she (or Sophocles), according to Dan Edelstein, can plausibly be regarded as “the founder of human rights”.
A professor in French and history at Stanford University, Edelstein has written extensively on the Enlightenment, and here concentrates on the history of rights from the 18th century to the Universal Declaration of Human Rights in 1948. But he is keen to stress its long and ancient roots – Aristotle, the Roman ius suum, Stoicism’s emphasis on human equality, St Paul referring to the law that is “written on the hearts of men”, 14th-century William of Ockham equating free will with the “power of an individual subject”, the 16th-century Catholic Church proclaiming the “innate reasonableness” of Native Americans each having natural rights that trumped the Spanish king’s right to despoil them.
The history of rights, says Edelstein, “may be more archaeological than seismic”: a palimpsest of conflicting, inconsistent layers, entangled with other concepts and all the harder to read because we inevitably project our current views back on to thinkers who are themselves projecting backwards in their interpretation of the thinkers before them. “Aquinas’s Aristotle is not Voltaire’s,” as Edelstein puts it. He also repudiates the often-made caesura between “objective rights” (before the 13th century, “ius”, meaning “law” or “justice”, was not particular to any individual) and “subjective rights” (the individual’s entitlement to protection from the state); these were always complementary, in his view. Nor is there a direct line from Locke’s Second Treatise of Government (1689) to the American and French Declarations of rights. The Enlightenment philo?sophes hardly read it. Indeed, they were surprisingly hostile to previous writers on natural rights (whom they dismissed as pedantic, over-rational and inaccessible), and more concerned with defining and preserving good national laws.
Yet somehow between 1750 and 1770 there was a re-elevation of the transnational natural law that “generated natural rights”, according to Edelstein. He is unclear exactly why, although he mentions the belated influence of the 17th-century Levellers, revolutionary Huguenots and libertarian Physiocrat economists, and the emerging “cult of sensibility”. Rather than being discerned by reason, natural rights were derived from, and felt by, our quality as “sensitive beings”, according to Condorcet, and “founded on a natural need in the human heart”, according to Rousseau. But whose heart? Rousseau also initiated the notion of the “general will”, which is baffling, tendentious and surely threatening to individual rights.
Isn’t Edelstein being too optimistic, then, in claiming that “the most important modern documents leading up to the Universal Declaration of Human Rights” were the French Declarations of 1789 and 1793? Each of the last asserts that the limits to an individual’s freedom can only be determined by law, but also (ominously) that “law is the expression of the general will”.
Provocative and timely, this book would be still more so if it tackled the clash between objective and subjective rights, which surely does exist, and between national and universal, religious and secular. Does the French law banning public burqa-wearing, for instance, protect against the infringement of the general will, or pit the individual against it?
Jane O’Grady is a co-founder of the London School of Philosophy and taught philosophy of psychology at City, University of London. She is also the author of Enlightenment Philosophy in ?a Nutshell: The complete guide ?to the great revolutionary philosophers, including René Descartes, Jean-Jacques Rousseau, Immanuel Kant, and David Hume (2019).
On the Spirit of Rights
By Dan Edelstein
University of Chicago Press
336pp, ?30.00
ISBN 9780226588988
Published 29 January 2019
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Print headline: The philosophy of fair treatment
