In our increasingly divided societies, the possible meanings of politically relevant words are also divided, confused, and obfuscated.
Though the competition for the most contested words is intense—’fascism,’ ‘democracy’ and ‘liberal’ are surely near the top of the list—’rights’ is surely a contender, used in many different, confusing, and contradictory ways.
One confusion is between rights that are legally recognized by a political order, such as a bill or charter of rights, and those that are part of a transcendent moral order. These latter are commonly called innate rights, subjective rights, or natural rights. They are held to be inherent, already given, rights that should therefore be recognized in positive law by any state with pretensions to a just political order. The origin of theories of these latter rights is now generally held to have been in 11th and 12th century canon law.
The ways in which natural rights might properly be protected in diverse political orders will necessarily vary. One can be a fervent believer in natural rights while also recognizing that the ways in which they should be protected will properly vary.
THE AMERICAN EXAMPLE
Two famous interconnected expressions of these different meanings of rights are the American Declaration of Independence and the Constitution. The Declaration famously declares that rights come from our Creator: “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness….” (We might here note Senator and former Vice-Presidential candidate Tim Kaine’s hapless contention that believing that rights come from God not the government is specifically typical of regimes such as Iran.)
Despite this clarion declaration of natural rights, most original drafters of the Constitution did not seek to provide any a bill of rights. This was not because they did not believe in such rights, but for two reasons:
One was a fear that if certain rights were enumerated in the text, then any unenumerated rights, while also reflecting natural rights, would be left open to government abuse.
Another was that they thought that the constitutional arrangements that they had already provided—the constitutional order itself, democratic elections, division of powers, and federalism—were themselves sufficient to protect rights.
However, to gain the support of those concerned that the Constitution still did not give sufficient protection to rights, amendments were introduced, the first ten of which we now call the Bill of Rights. Note that these are amendments, later added protections to overcome the concern that the original did not sufficiently protect rights.
UK CONCERNS
Similar concerns have recently arisen in the United Kingdom over whether the country should continue to be under the jurisdiction of the European Court of Human Rights. The UK is currently attempting to stem a massive influx of people arriving in small boats across the English Channel. When the country was part of the European Union, it could deal with this as an EU matter but, after Brexit, that option is closed.
But, while no longer part of the EU, it is still a party to the distinct European Court of Human Rights (ECHR), and many claim that the Court’s expansive rulings are unduly restricting the UK’s ability to properly control such immigration.
Consequently, there is a push for the UK to leave the ECHR, and this has produced a strong reaction.
One human leading rights lawyer argued that leaving the ECHR would align the UK with countries like Belarus and Russia, “neither is a democracy nor uphold the rule of law.” He added that if it left the ECHR, “The UK would lose all moral authority to promote and protect human rights globally.”
But this confuses substantive protection of human rights with adherence to a particular legal mechanism for such protection. Not being a member of the ECHR would of course put the UK in the same camp as non-members Belarus and Russia. But the same camp of non-members also includes the US, Canada, Australia, New Zealand, Japan, and most of the world’s countries, free and unfree.
Here I take no position whether adherence to the ECHR has deleterious effects on UK immigration or any other policy, nor whether UK withdrawal from the ECHR would be a net loss. I simply want to clarify that there are many mechanisms to protect human rights and that international courts and charters are only some of them and may not always be the best mechanism. Currently, protection of human rights in the Ukraine depends more on the bravery and ingenuity of its soldiers together with weapons shipments from the West than it does from any court.
RHODES’ ANALYSIS
Aaron Rhodes excellent new book, Human Rights Without Illusions: Escaping the Moral Trap of Universalism analyses these issues in more depth and stresses the very varied ways in which human rights can be protected.1
He brings a rare set of academic, analytic, and above all, practical and advocacy skills in the international arena. He has fought for these matters for many decades and here concludes that abstract international rules and courts, especially with their lack of any enforcement mechanisms, make them aspirations rather than laws, and count for much less than actions by states.
Rhodes can be misleading in his history, suggesting that developed rights ideas first appeared in the seventeenth century rather than the medieval period, but his strength is as a philosophically informed, long-term activist, and political realist drawing on a wealth of experience in unravelling and analyzing current views of rights and their results. He especially highlights the chasm between abstract human rights ideals and their often-disappointing global realities.
Rhodes argues that the common current framework of international human rights, stressing western law and courts, can lead to a moral imperialism that undermines the true intentions of these rights. The Trump administration’s critiques of the ‘woke’ assumptions of some previous USAID programs, while exaggerated, shows that such fears have not been illusory.
He is wary of overreach and stresses the complexities of sovereignty, governance, and human agency. In response to abstract legal universalism, Rhodes suggests a more pragmatic, locally adaptive approach to human rights that encourages accountability while respecting national sovereignty. One that is state centered rather than simply relying on international fora lacking substantial enforcement mechanisms.
To vastly oversimplify matters: if you are caught in a vicious conflict in Africa, what would most rejoice your heart to hear were coming: a group of prosecutors or else an armed brigade?
The book’s clarity and depth make it essential reading for scholars, policymakers, and anyone interested in the future of human rights in an increasingly multipolar world.