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This book presents a valuable clarification and defence of human rights by Italy's leading political theorist.
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Table of Contents
Cover
Title
Copyright
Preface to the English Edition
Note
Part I
1 On the Fundamental Principles of Human Rights
2 Human Rights Now and in the Future
3 The Age of Rights
4 Human Rights and Society
5 Human Rights Today
Part II
6 The French Revolution and Human Rights
7 The Legacy of the Great Revolution
8 Kant and the French Revolution
Part III
9 Against the Death Penalty
10 The Current Debate on the Death Penalty
Index
End User License Agreement
Guide
Cover
Table of Contents
Begin Reading
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e1
THE AGE OF RIGHTS
NORBERTO BOBBIO
Translated by Allan Cameron
English translation© Polity Press 1996
First published in Italy as L’età dei diritti © Guilio Einaudi 1990
This translation first published in 1996 by Polity Press in association with Blackwell Publishers Ltd.
Reprinted 2005
Polity Press65 Bridge StreetCambridge CB2 1 UR, UK
Polity Press350 Main StreetMalden, MA 02148, USA
All rights reserved. Except for the quotation of short passages for the purposes of criticism and review, no part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
Except in the United States of America, this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser.
ISBN 0-7456-13845
ISBN 0-7456-15953 (pbk)
A CIP catalogue record for this book is available from the British Library and the Library of Congress.
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Preface to the English Edition
I compiled this collection of articles on human rights on the suggestion and with the assistance of Luigi Bonanate and Michelangelo Bovero. I have written on this subject over a period of many years, and believe these to be the most important of my essays. The whole question is closely related to the issues of peace and democracy, to which I have devoted the bulk of my political writings. The recognition and protection of human rights are the foundations of modern democratic constitutions. Peace is, in turn, the precondition for the recognition and effective protection of human rights within individual states and within the international system. Equally, the democratization of the international system, which is the only way to achieve the ideal of ‘perpetual peace’ in the sense that Kant attributed to the expression, cannot move ahead without the gradual extension of this recognition and protection of human rights at a supranational level. Human rights, democracy and peace are the three essential components of the same historic movement: if human rights are not recognized and protected, there is no democracy, and without democracy, the minimal conditions for a peaceful resolution of conflicts do not exist. In other words, democracy is a society of citizens, and subjects become citizens when they are recognized as having certain fundamental rights. There will be stable peace, a peace which does not have war as its alternative, only when there are citizens not of this or that particular state, but of the world.
I first wrote on this subject in 1951, following a lecture on the Universal Declaration of Human Rights held in Turin on 4 May, at the invitation of the officers’ training school.1 On rereading it after all these years, I find that it contains, albeit in outline only, three theories which I have always continued to hold:
Natural rights are historic rights.
They came into existence at the beginning of the modern era, together with an individualistic perception of society.
They are one of the principal indicators of progress.
The first essay in this collection was one of the introductory lectures to a conference discussing the foundations of human rights held in L’Aquila in September 1964, and organized by the International Institute of Philosophy under the chairmanship of Guido Calogero (the other lecture was given by Perelman). The essay confirmed and analysed the historicist theory, which is my basis for disputing not only the legitimacy but also the practicality of the quest for an absolute principle.
This is followed by ‘Human Rights Now and in the Future’, the text for a lecture I gave in Turin in December of 1967 for the national conference on human rights held by the Società ltaliana per l’Organizzazione Internazionale, on the twentieth anniversary of the Universal Declaration. Here, I illustrate the major developments in the history of human rights, from their proclamation to their implementation, and from their implementation within individual states to their implementation within the international system, a process which has only just begun. I then take up the historicist theme, and base my argument on the further expansion of human rights.
The third essay, ‘The Age of Rights’, which gives its title to the whole collection, is a speech which I gave under another title at the University of Madrid in September 1987, at the invitation of Professor Gregorio Peces-Barba Martinez, the director of the Instituto de Derechos Humanos in Madrid. As on previous occasions, I take up the historical and also the philosophical significance of the reversal of the relationship between the state and the citizen, which typifies the formation of the modern state. The emphasis has moved from the duties incumbent on a subject to the rights a citizen can demand. Politics are no longer viewed primarily from the sovereign’s point of view, but more from that of the citizen, which reflects the success of the individualistic concept of society over the traditional perception of it as an organic whole. For the first time, I demonstrated how the expansion of human rights occurred, moving from an abstraction of the individual, through a gradual differentiation, recognition and protection of needs and interests, to a more concrete concept.
I presented a further and for the moment final reformulation of the historicist arguments in my next essay ‘Human Rights and Society’, which I wrote as an introductory report for the international conference on ‘The Sociology of Rights’, held in Bologna at the end of May 1988. It discusses some general problems on the theory and history of human rights. I devote a few pages to the anguished theoretical debate on the concept of law applied to human rights, and then return to it a little later in the book.
Part II contains three lectures on human rights and the French Revolution. The first was given on 14 December 1988 in Rome for the inauguration of the new Library of the Chamber of Deputies at the invitation of the speaker, Nilde Jotti. I gave the second lecture in September of 1989 at the Fondazione Giorgio Cini in Venice, to open a course on the French Revolution, and the third lecture when I was awarded an honorary degree at Bologna University on 6 April 1989. This last lecture took Kant’s philosophical works on law and history as its starting point, and finished by emphasizing Kant’s theory of a universal law of nature as the conclusion to the debate on human rights so far, but also leading towards further considerations.2
Part III contains two pieces on the death penalty. The first was written for the Fourth National AGM of Amnesty International in Rimini in April of 1981, and the second for the international conference on ‘The Death Penalty in the World’, held in Bologna in October of 1982.3
These writings discuss problems which are both historical and theoretical. I argue that historically the affirmation of human rights derives from a radical inversion of the political relationship between the state and the citizen, or the sovereign and the subject. This relationship is increasingly seen in terms of the rights of citizens who are no longer merely subjects, while the sovereign’s powers decline in line with a more individualistic concept of society.4 According to this new perception, in order to understand society one has to start from its base and the individuals that make it up. This runs counter to the traditional organic concept of society as a whole which takes priority over its individual members. The inverted perspective was principally induced by the religious wars at the beginning of the modern era, and has since become an irreversible process. That experience gave rise to the right to resist oppression, which presupposes a primary and more substantial right: the right of each individual not to be oppressed and to enjoy a few fundamental liberties. These liberties are fundamental because they are natural, and they are natural because they do not depend on the consent of the sovereign. The most fundamental of all these liberties is religious freedom.
This reversal is closely connected to the affirmation of what I have defined as the natural law model, as opposed to its eternal adversary, the Aristotelian model, which is always reappearing and has never quite been defeated.5 Although there have been many setbacks, the individualistic concept of society has made slow but steady progress from the recognition of a citizen’s rights within a single state to the recognition of a citizen’s rights within the world, as was first announced in the Universal Declaration of Human Rights. The question has moved from the realm of each state’s individual law, through laws established between states, towards a cosmopolitan right, to use Kant’s expression (his contribution to legal theory has not yet been fully recognized).
An authoritative internationalist in a recent work on human rights wrote: ‘The Declaration has favoured the emergence of the individual in an arena which was previously reserved exclusively for heads of state, even though this presence is still weak, tenuous and hesitant. It has started an irreversible process, which we should all see as a cause for celebration.’6
My theoretical approach has always been and continues to be, in the light of new arguments, that human rights however fundamental are historical rights and therefore arise from specific conditions characterized by the embattled defence of new freedoms against old powers. They are established gradually, not all at the same time, and not for ever.7 It would appear that philosophers are asked to pass sentence on the fundamental nature of human rights, and even to demonstrate that they are absolute, inevitable and incontrovertible, but the question should not be posed in these terms.8 Religious freedom resulted from the religious wars, civil liberties from the parliamentarian struggles against absolutism, and political and social freedoms from the birth, growth and experience of movements representing workers, landless peasants and smallholders. The poor demand from the authorities not only recognition of personal freedom and negative freedoms, but also protection against unemployment, basic education to overcome illiteracy, and gradually further forms of welfare for sickness and old age – all needs which the wealthy can provide for themselves.
Next to this so-called second generation of rights which concern social questions, there is now emerging a third generation of rights which is still too vague and heterogeneous for an exact definition.9 The most important of these is being demanded by the ecological movements: the right to live in an unpolluted environment. But there are already signs of what I could only call the fourth generation of rights, which concern the increasingly disturbing results of biological research and the ability to manipulate an individual’s genetic identity.10 It is a question of the limits which can be placed on this imminent future manipulation, as it moves from the realm of probability into that of reality. This is yet another proof, if such were needed, that rights do not originate together. They come into existence, when their existence is either essential or possible. They arise from the increasing power of one man over another, the inevitable consequence of technical progress which increases man’s ability to dominate nature and other men. This progress either creates new threats to individual freedom, or allows new remedies for mass deprivation. The threats are countered with demands for limitations on power, and the remedies require protective intervention by that same power. The former relate to the rights to enjoy freedoms, or to non-intervention by the state, and the latter relate to social rights, or rights to positive intervention by the state. Although the demands for rights can be categorized chronologically in different stages or generations, they have only two types of relationship to the constituted powers: they either restrict their ability to do harm or encourage their ability to do good. Rights of the third and fourth generation can be of either type.
In one of my essays, ‘Human Rights and Society’, (this volume, chapter 4), I demonstrate the proliferation of demands for new forms of recognition and protection, as the considerations of abstract man developed into those of man in the various stages of life, and this proliferation has met with some opposition. The third-generation rights, such as the right to live in an unpolluted environment, would have been unimaginable when the second-generation rights were being put forward, just as second-generation rights like the right to education and welfare would have been inconceivable when the first seventeenth-century declarations were made. Specific demands are created in response to specific needs. New needs are created by changes in social conditions, and when technical developments make it possible to satisfy them. Talk of natural, fundamental, inalienable or inviolable rights may represent a persuasive formula to back a demand in a political publication, but it has no theoretical value, and is therefore completely irrelevant to human rights theory.
The debate over the meaning of ‘rights’ in the expression ‘human rights’ has been protracted and confused.11 Confusion has been further increased by more frequent links between Anglo-Saxon lawyers and those of a continental tradition and culture. They often use different words to say the same things, but occasionally think they are saying different things when they are using the same words. Continental legal terminology has traditionally distinguished between ‘natural rights’ and ‘positive rights’. Britain and the United States – principally under the influence of Dworkin, I believe – have provided us with the distinction between ‘moral rights’ and ‘legal rights’, which cannot be translated into Italian and, what is more, is incomprehensible to a tradition in which law and morality are two clearly distinct spheres of practical life. In Italian the expressions ‘legal rights’ or ‘juridical rights’ sound tautological, while the expression ‘moral rights’ sounds contradictory. I have no doubt that a French jurist would be equally reluctant to speak of droits moraux and a German of moralische Rechte. The only way to avoid giving up all hope of understanding one another is to consider to what extent the two distinctions are comparable. Thus ‘moral rights’ as against ‘legal rights’ belongs to the same domain as ‘natural rights’ as against ‘positive rights’. In both cases, it is a distinction between two different normative systems, while the criterion for the distinction differs. The distinction between ‘moral rights’ and ‘legal rights’ is based on their principles, and the distinction between ‘moral rights’ and ‘legal rights’ is based on their origins. In all four cases, however, the word ‘right’ in the sense of a subjective right (a superfluous specification in English, because ‘right’ can only mean ‘subjective right’), refers to a normative system, whether it is called ‘moral’, ‘natural’, ‘legal’ or ‘positive’. Just as natural rights would be inconceivable without a system of natural laws, it would be equally impossible to understand ‘moral rights’ without reference to a set or system of laws which one could define as moral, even though it is never clear what their actual status is (the status of natural laws is equally unclear).
I agree with those who claim that ‘rights’ are a deontic entity, which have a precise meaning only in normative language. There is no right without obligation, and there is neither right nor obligation without behavioural norms. The uncommon expression ‘moral rights’ becomes less irksome if it is related to the very common expression ‘moral obligations’. The old objection that rights cannot be given without obligations, but obligations can be imposed without rights, arises from a confusion between two different normative systems. Of course one cannot demand that each moral obligation has a corresponding legal right, because a moral right can only correspond to a moral obligation. The much-quoted but misleading example that the moral obligation to give alms does not establish the right to beg, only demonstrates that a moral obligation does not establish a legal obligation.
The same could perhaps be said of moral rights. What could the expression ‘moral right’ mean if not a right corresponding to a moral obligation? What jurists might consider to be a jus imperfectum could be jus perfecturn from a moral point of view. I know very well that a tradition going back over a thousand years has accustomed us to a use of the term jus which is restricted to a normative system which is more binding than all the other moral and social systems, but when the notion of ‘moral right’ is introduced, the corresponding ‘moral obligation’ is necessarily introduced along with it. If I have a moral right in relation to someone, this means that someone has a moral obligation to me. Moral language is not obliged to use the deontic categories of right and obligation, which are more appropriate to legal language, but from the moment it does use them, the establishment of a right implies the affirmation of an obligation, and vice versa. Whether the establishment of a right precedes an obligation or follows it, is a matter of pure historical accident. For example, there are various debates today about our current obligations to future generations, but the question could be considered from the standpoint of future generations’ rights from us. As far as the substance of the problem is concerned, it is a matter of complete indifference whether you start from the obligation of the former or the rights of the latter. Does posterity have rights in relation to us, because we have obligations to them, or vice versa? If you pose the question in these terms, it is immediately clear that the logic of the terminology demonstrates the complete absence of any problem.
In spite of countless attempts to come up with a definitive analysis, the terminology for rights remains very ambiguous, lacking in rigour, and is often used rhetorically. There is no rule against using the same term for rights which have only been proclaimed, however renowned the declaration, as for rights actually protected by a judicial system founded on constitutional principles with impartial judges whose decisions have various forms of executive power. There is, however, a great deal of difference between the two! Even the greater part of the social rights, the so-called rights of the second generation, which exhibit such lofty intentions in national and international declarations, have remained dead letters, and this is all the more true of the third- and fourth-generation rights. The only thing we can establish so far is that they are the expressions of ideals aspired to, and the title of ‘rights’ serves only to give them an aura of nobility. To proclaim the right of all people to live in an environment free from pollution in whatever part of the world they live (human rights are by their very nature universal) does not mean anything other than an aspiration that future legislation will impose limitations on the use of pollutants. It is one thing to proclaim this right, and entirely another to enjoy its fruits. The language used in connection with rights undoubtedly has a considerable practical application, which is to reinforce the demands by movements on behalf of themselves and others for the satisfaction of new material and moral needs, but becomes misleading if it obscures the difference between a right which is being campaigned for and a right which is recognized and protected. Otherwise, one could not explain the contradiction between those writings which celebrate this age of rights,12 and those which demonstrate the mass of people to be ‘without rights’.13 The former only discuss the rights proclaimed in international courts and conferences, and the latter discuss the rights which the great majority of humankind do not enjoy de facto (even though they are solemnly and repeatedly proclaimed).
Norberto BobbioTurin, October 1990
Notes
1
‘La Dichiarazione universale dei diritti dell’uomo’, in
La Dichiarazione universale dei diritti dell’uomo
(Turin: Arti Grafiche Plinio Castello, 1951), pp. 53-70. I had already addressed this question briefly in the preface to the Italian translation of Georges Gurvitch’s
La Dichiarazione dei
diritti
sociali
(Milan: Edizioni di Comunità, 1949), pp. 13-27.
2
See also my introduction to I. Kant,
Per la pace perpetua
, ed. N. Merker (Rome: Editori Riuniti, 1985), pp. vii-xxi.
3
Some of my other writings on human rights are to be found in
Il terzo assente. Saggi e discorsi sulla pace e sulla guerra
, ed. Pietro Polito (Milan: Edizioni Sonda, 1989). However, neither
Il terzo assente
nor this present volume contain ‘Il prearnbolo della Convenzione europea dei diritti dell’uomo’,
Rivista di diritto internazionale
, vol. LVII (1973), pp. 437-55, ‘Vi sono diritti fondamentali?’,
Rivista di fi/osofia
, vol. LXXI, no. 18 (1980), pp. 460-4, ‘Diritti dell’uomo e diritti del cittadino nel secolo XIX in Europa’, in
Grundrechte
im
19. Jahrhundert
(Frankfurt: P. Lang, 1982), pp. 11-15, and ‘Dalla priorità dei doveri alla priorità dei diritti’,
Mondoperaio
, vol. XLI, no. 3 (1988), pp. 57-60.
4
There is a vast amount of writing on this subject, but I would like to refer, here, to a little-known work: Celso Lafer,
A reconstruçao dos direitos humanos. Urn diálogo con o pensamento de Hannah Arendt
(São Paolo: Companhia das Letras, 1988), which contains some important pages on individualism and its history, partly with reference to Arendt’s thought.
5
I am referring particularly to my essay ‘Il modello giusnaturalistico’, in N. Bobbio and M. Bovero,
Societa e stato nella filosofia politica moderna
(Milan: Il Saggiatore, 1979), pp. 17-109.
6
A. Cassese,
I diritti umani nel mondo contemporaneo
(Bari: Laterza, 1988), p. 143.
7
One of the central themes in a well-researched essay by G. Peces-Barba Martinez is that human rights are historic rights, which arose in the modern era from struggles against the absolute state: see G. Peces-Barba Matinez, ‘Sobre el puesto de la historia en el concepto de los derechos fundamentales’, in
Anuario de derechos humanos
, ed. Instituto de Derechos Humanos (Madrid: The Complutensian University, 1986-7), vol. IV, pp. 219-58. For the history of human rights in terms of their recognition, which is the only significant viewpoint, see G. Pugliese, ‘Appunti per una storia della protezione dei diritti dell’uomo’,
Rivista trimestrale di diritto e procura civile
, vol. XLIII, no. 3 (1989), pp. 619-59.
8
See
El fundamento de los derechos humanos
, ed. G. Peces-Barba Martinez (Madrid: Editorial Debate, 1989). This work summarizes the debate held in Madrid on 19-20 April 1998, and often refers to my position. It also contains an essay by the editor, ‘Sobre el fundamento de los derechos humanos. Un problema de moral y derecho’, pp. 265-77, which is the author’s most recent expression of his ongoing reflections on human rights, which commenced with
Derechos fundamentales
, which was first published in 1976 and has been reprinted several times.
9
The concept of a third generation of rights has appeared in the growing body of writings on ‘new rights’. In his article ‘Sobre la evolución contemporánea de la teoria de los derechos de l’hombre’, Jean Rivera lists some of these new rights as the rights to solidarity, and the rights to development, international peace, a safe environment and communication. Not surprisingly, the author then questions whether such a list can be considered rights in the strict sense, and not just simple aspirations or desires (‘Corrientes y problemas en filosofia del derecho’,
Anales de la cátedra Francisco Suarez
, 1985, no. 25, p. 193). Later, in his book which I have already referred to, he considers human rights of the third generation to be rights, not of individuals, but of groups of people, such as a family, a people, a nation, and humanity itself (p. 131). For the right to peace, see A. Ruiz Miguel, ‘Tenemos derecho a la paz?’,
Anuario de derechos humanos
, 3 (1984-5), pp. 387-434 (a publication edited by G. Peces-Barba Martinez for the Instituto de derechos humanos in Madrid), and by the same author,
La justicia de la guerra y de la paz
(Madrid: Centro de Estudios constitucionales, 1988), pp. 271ff. A.E. Perez has also written on the third generation of rights: ‘Concepto y conception de los derechos humanos,
Cuadernos de filosofia del derecho
, 1988, pp. 271ff. He lists the right to peace, consumers’ rights, the quality of life and access to computerized information, and he relates their emergence to the development of new technologies.
10
There is already a considerable literature on this theme, especially in the Anglo-Saxon countries. It has been summarized by Bartha Maria Knoppers, ‘L’integrità del patrimonio genetico: diritto soggettivo o diritto dell’umanità?’,
Politica del diritto
, vol. XXXI, no. 2 (June 1990), pp. 341-61.
11
I took many suggestions for this argument from the debate on ‘El concepto de derechos humanos’ in
Cuadernos de filosofia del derecho
, no. 4, 1987, pp. 23-84, with various contributions on the basis of Francisco La Porta’s report, and Eugenio Bulygin’s conclusions ‘Sobre el status ontológico de los derechos humanos’, pp. 79-84. I find myself substantially in agreement with them. There has been considerable discussion over whether or not the concept of rights is to be interpreted as a normative concept, and whether ‘moral rights’ is an acceptable expression, and if so, how they can be defined. For a critique of the concept of ‘moral right’ and other considerations which I share, see R. Vernengo, ‘Dos ensayos Sobre problemas de fundamentación de los derechos humanos’, in
Cuadernos de investigaciones de l’lnstituto de Investigaciones jurídicas y sociales Ambrogio L. Gioia
(Buenos Aires: Facultad de derecho y ciencias socialies, 1989), particularly the first essay:
Fundamentaciones morales de los derechos humanos
, pp. 4-29. See also Peces-Barba Marinez, ‘Sobre el puesto …’, p . 222. Recently there has been a debate on these topics in Italy as well; I refer particularly to F. Fagiani, ‘Etica e teoria dei diritti’ and L. Gianformaggio, ‘Rapporto fra etica e diritti’, both in
Teorie etiche contemporanee
(Turin: Bollati-Boringhieri, 1990), pp. 86-107 and pp. 149-61. For a more general view, see F. Viola,
Diritti dell’uomo, diritto naturale, etica contemporanea
(Turin: Giappichelli, 1989).
12
On the importance of the recognition of human rights in the current phase of human history, see the recent authoritative essay by Norbert Elias, ‘Pianeta dei diritti’,
Rinascita
, vol. I, no. 17 (June 1990).
13
See L. Bertozzi, ‘Uomini senza diritti’,
Rinascita
, vol. I, no. 27 (12 August 1990), pp. 72-4. Bertozzi, in the same journal, reports on the violations of human rights denounced by Amnesty International in its previous annual report. For research in Italy, see G. Ricordy,
Senza diritti. Storie dell’altra Italia
(Milan: Feltrinelli, 1990).
Note
Chapter 1, ‘On the Fundamental Principles of Human Rights’ (‘Sul fondamento dei diritti dell’uomo’), was originally a paper given at a conference held in L’Aquila on 14-19 September 1964, and was published under the title ‘L’Illusion du fondament absolu’ in Le Fondament des droits de l’homme (Florence: La Nuova ltalia, 1966), pp. 3-9. The Italian translation ‘Sul fondamento dei diritti dell’uomo’ appeared in Rivista internazionale di filosofia del diritto, vol. XLII (1965), pp. 302-9, and in Il problema della guerra e le vie della pace (Bologna: Il Mulino, 1979), pp. 119-30. Chapter 2, ‘Human Rights Now and in the Future’ (‘Presente e avvenire dei diritti dell’uomo’) was published in La comunita internazionale, vol. XXIII (1968), pp. 3-18, and later in Il problema della guerra e Ie vie della pace, pp. 131-57. It was translated into Castillian under the title ‘Presente y porvenir de los derechos humanos’ in Anuario de derechos humanos (Madrid: Complutensian University, 1982), pp. 7-28. Chapter 3, ‘The Age of Rights’ (‘L’eta dei diritti’), a lecture given in Madrid in September of 1987, was published in N. Bobbio, II terzo assente. Saggi e discorsi sulla pace e sulla guerra (Turin: Edizioni Sonda, 1989), pp. 112-25, and with the title ‘Derechos del hombre y filosofia de la historia’ in Anaurio de derechos humanos (Madrid: Complutensian University, 1988-9), pp. 27-39. Chapter 4, ‘Human Rights and Society’ (‘Diritti dell’uomo e sodeta’), appeared in Sociologia del diritto, vol. XXVI (1989), pp. 15-27. Chapter 5, ‘Human Rights Today’ (‘I diritti dell’uomo, oggi’), was an end-of-year address to the Accademia dei Lincei (14 June 1991), which was published in Atti dell’Accademia Nazionale dei Lincei, vol. CCCLXXXVIII, no. IX, series 2 (1991, pp. 55-64. Chapter 6, ‘The French Revolution and Human Rights’ (La Rivoluzione francese e i diritti dell’uomo), was published as pamphlet by the Chamber of Deputies in Rome in 1988, and then with the title ‘La dichiarazione dei diritti dell’uomo’ in Nuova Antologia, no. 2169 (January-March 1989, pp. 290-309. Chapter 7, ‘The Legacy of the Great Revolution’ (‘L’eredita della grande Rivoluzione’), also appeared in Nuova Antologia, no. 2172 (October-December 1989, pp. 87-100, as did Chapter 8, ‘Kant and the French Revolution’ (‘Kant e la Rivoluzione francese’), no. 2175 (July-September 1990, pp. 53-60. Chapter 9, ‘Against the Death Penalty’ (Contra la pena di morte), was published as a pamphlet by the Italian section of Amnesty International (Bologna: Tipostampa bolognese, 1981), while Chapter 10, ‘The Current Debate on the Death Penalty’ (‘II dibattito attuale sulla pena di morte’), was published in La pena di morte nel mondo, the proceedings of an international conference in Bologna, 28-30 October 1982 (Casale Monferrato: Marietti, 1983), pp. 15-32.
Part I
1On the Fundamental Principles of Human Rights
1. I am going to discuss three topics in this essay: first, the nature of the problem we face over an absolute principle for human rights; second, whether an absolute principle is possible; and third, supposing it were possible, whether it would be desirable.
2. The question of a fundamental principle for a right has to be posed differently according to whether it is a right which has been attained or a right which one aspires to attain. In the first case, I would go and look through the positive legal code, which affects me as the possessor of rights and obligations, in search of a valid regulation which recognizes the right in question. In the second case, I would attempt to find good reasons for maintaining its legitimacy and persuading as many people as possible to acknowledge it, particularly those people who have the power directly or indirectly to put valid legislation on to the statute book.
In a debate such as this, which is for philosophers and not jurists, there can be little doubt that when we pose the question of the fundamental principle of human rights, we are referring to the second problem. In other words, it is not a question of positive rights, but rational or critical rights (or if you like, natural rights, but in a restricted meaning of the term, which is the only one I find acceptable). We are starting from the premise that human rights are something desirable, i.e. an objective worthy of pursuit, and in spite of their desirability, they have not all been recognized everywhere and to the same degree. We wish for others to share our decision, and are therefore motivated by the conviction that finding a fundamental principle to justify it would be an appropriate method for obtaining wider recognition.
3. The illusion in an absolute fundamental principle arises from this belief that by dint of accumulating and assessing justifications and arguments one after another, we shall finally come up with the irrefutable argument, the one whose reasoning no one could deny. The absolute principle is the undisputed principle in the universe of our ideas, in the same way that absolute power is the undisputed power in the universe of actions (think of Hobbes). The mind inevitably bows to the undisputed principle, just as the will bows to undisputed power. The ultimate principle cannot be discussed further, just as ultimate power must be obeyed without argument. Those who resist the former, put themselves outside the community of reasonable people; and those who resist the latter, puts themselves outside the community of the good and the just.
For centuries this illusion was common among advocates of natural law, who believed they had safeguarded certain rights from any possible confutation by deducing them from human nature (although the rights were not always the same). However, human nature has proved to be a very shaky foundation on which to build an absolute principle for incontrovertible rights. This is not the place to repeat the countless criticisms which have been made against the doctrine of natural rights, or to reveal yet again the speciousness of arguments used to demonstrate their absolute value. Suffice it to recall that many rights have been derived from the generous and obliging nature of man, however varied their character or however obscure (fundamental rights only in the eyes of their champions). For instance, advocates of natural law argued for a long time whether the most natural of three possible forms of inheritance was for property to return to the community, to pass from father to son, or to be freely disposed of by the proprietor (and which therefore was to be preferred in a system which accepted as just everything that was founded on nature). The argument could go on: all three solutions conform perfectly to human nature, according to whether you consider man as a member of a community on whom his life ultimately depends, as a pater familias whose natural instinct is to continue the species, or as a free and autonomous individual who is the only person responsible for his own actions and property.
Kant quite reasonably restricted the incontrovertible rights (which he called ‘innate’) to one: freedom. But what is freedom?
4. Today this illusion is no longer possible. Every attempt at an absolute principle has proved to be groundless. I can raise four objections to this illusion (and thus I move on to the second argument).
The first objection arises from the consideration that ‘human rights’ is a very vague expression. Have we ever attempted to define them, and if so, to what effect? Most of the definitions are pure tautology: ‘The rights of man are those which are due to a man in as much as he is a man’. Sometimes they tell us something about the desired or proposed status of these rights, and nothing about their content: ‘The rights of man are those which belong or should belong to all men, and of which he should not be deprived’. Finally, whenever there is some reference to content, it is impossible to avoid the introduction of terms requiring value judgements: ‘Human rights are those whose recognition is a necessary condition for the improvement of humanity or the development of civilization, etc.’ This leads to another problem: such terms can be interpreted in different ways according to the ideology of the interpreter. The improvement of humanity and the development of civilization are themselves the subject of passionate and irresolvable debates. Agreement is generally achieved by the disputants making reciprocal concessions until they can arrive at some general formula which is just as vague as the previous two definitions. However, disagreements which have been papered over soon reappear, whenever one attempts to put a purely verbal statement into practice.
The only thing we know about fundamental rights is that they are necessary for the achievement of final values, and they are therefore an appeal to those final values. But final values themselves cannot be justified but only premised: that which is final is, by its very nature, without foundation. Moreover, final values are antinomical, and cannot all be accomplished universally at the same time. It is necessary for both parties to make concessions in order to achieve them, and the concessions required for this process of conciliation involve personal preferences, political choices and ideological orientations. All three of these types of definition do not therefore allow us to develop a well-defined category of human rights. One wonders how the question of fundamental principles for human rights, whether absolute or not, can be addressed when it is not possible to formulate a precise concept.
5. Secondly, human rights constitute a variable category as is adequately demonstrated by the history of the last few centuries. The list of human rights has been modified and continues to be modified in changing historical circumstances: the requirements and interests of the ruling classes, the available means for their enactment, technological developments, etc. Rights, which were declared absolute at the end of the eighteenth century, such as the sacre et inviolable right of ownership, have now been subjected to radical restrictions in contemporary declarations, while prominence is now given to rights, such as social rights, which in the seventeenth century did not even get a mention. It is not difficult to foresee that new demands will emerge which at the moment we can only catch a glimpse of, such as the right not to carry arms against one’s wishes or the right to respect the lives of animals and not just humans. Thus rights are not fundamental by their nature. That which appears to be fundamental in a given historical era or civilization, is not fundamental in other eras or civilizations.
