Human rights: a reality check

29 January 2015 by

919PxBmnG1LMost law undergraduates are familiar with Jeremy Bentham’s dismissal of natural rights as “nonsense on stilts”.  This is a slight misrepresentation of what he said, which was that “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts“. But let’s take the stilts away and consider rights in their ordinary sense. They furnish not only arguments before courts, but reasons for going to war and toppling whole regimes. As Israeli historian Yuval Noah Harari points out in his recent book:

No one was lying when, in 2011, the UN demanded that the Libyan government respect the human rights of its citizens, even though the UN, Libya, and human rights are all figments of our fertile imaginations.

So, might the author have added, are “citizens”, since in a reality without cities and states, it is a non-sequitur to talk of citizens.

Lest anyone consider this to be a Benthamite denigration of human rights, it is not. Harari’s Sapiens is a roller coaster ride through the history of our species since we parted company with our hominid cousins a hundred thousand years ago or so (the dating of this branch is subject to much debate and amendment).  Harari’s explanation for the runaway success of Homo sapiens is based, not on notions of superior intelligence, but on the hugely effective power of collective myth-making by which modern humans have sought to initiate and maintain global cooperation between thousands, millions, tens of millions and now billions of strangers. This is the only feature of Homo sapiens that is demonstrably unique, and it is neither to be praised nor denigrated: it just is. The greatest myths, whether they are the world’s religions, laws, money or states, were inspired some 60, 000 years before the Agricultural Revolution, and enabled it to happen. Once it did happen, they were essential for keeping crowded cities and mighty empires under control.

While human evolution was crawling at its usual snail’s pace, the human imagination was building astounding networks of mass cooperation, unlike any other event on earth.

So far, so good. But human rights, one might argue, are different. There’s something essential in them, so deeply bound up with the core of the individual, that it seems callous bordering on the subversive to include them with other fictions, such as capitalism. Hariri is at pains to assure us that, as with the rule of law and the protection of property, there is nothing wrong with doctrines of human rights per se, but we must not fool ourselves into thinking there’s anything ab initio about them. He takes, for example, the American Declaration of the Rights and Duties of Man, which as we all know, asserts that the founding fathers held

these truths to be self-evident, that 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.

Like earlier proclamations, this Declaration was “inspired” by divine power. The Code of Hammurabi of circa 1776 BC also served as a cooperation manual for hundreds of thousands of ancient Babylonians; here the king reminded his citizens that any infraction of his rules would be followed by a series of punishments, such as an eye for an eye, a tooth for a tooth (or less, if the injured party was a commoner, a woman or a slave).  How can the two possibly be compared, and on the same page, as Harari does? Well, of course they can: they both claim to “outline universal and eternal principles of justice”, but

according to the Americans all people are equal, whereas according to the Babylonians people are decidedly unequal

There is nothing in history, argues Hariri, nor in the real world, to render the American principles any more objective validity than the Babylonian ones.  In what sense do all humans equal one another, he asks, and what makes their rights “inalienable? His questions  are not merely rhetorical. He guides us through a thought experiment. Biology tells us – and you have to be a Creationist or some other kind of fundamentalist to quarrel with biology – that people were not only “created” but that the imperatives of natural selection mean that we did not evolve to be equal – “evolution is based on difference, not equality”.  And of course there are no “rights” in the real world; amoebae move towards the light sources that power them, not because they have the “right” to move; birds have wings that have evolved to help their ancestors escape predation, not because they have been endowed by a creator with a “right” to fly. As for liberty, this is something that people have invented and exists only in the imagination, whether in a liberal democracy or in a dictatorship.  So Harari translates most famous line of the American Declaration into biological terms:

We hold these truths to be self-evident, that all men evolved differently, that they are born with certain mutable characteristics, and that among these are life and the pursuit and pleasure.

“Life” of course being necessary for the furtherance of our genetic code; pleasure being measurable and defined in biology. Advocates of equality and human rights may be outraged by this line of reasoning, Harari acknowledges.

Their response is likely to be, ‘We know that people are not equal biologically! But if we believe that we are all equal in essence, it will enable us to create a prosperous society’.

The author has no argument with this. His book celebrates the fact that we believe in this imagined order, where things like equality and liberty flourish (at the moment at any rate, in certain liberal Western democracies).  But he asks us to bear in mind that the Hammurabi might well have defended his principle of hierarchy using the same logic:

‘I know that superiors, commoners and slaves are not inherently different kinds of people. But if we believe that they are, it will enable us to create a stable and prosperous society.

You may say, well, look, this is all very well, but humans have rights by dint of being human, and it is to the credit of contemporary liberal democracy that we have unearthed these particular rights in order to protect them. Harari faces this argument head on.

According to liberals, the sacred nature of humanity resides within each and every individual Homo sapiens. The inner core of individual humans gives meaning to the world, and is the source for all ethical and political authority…

The chief commandments of liberal humanism are meant to protect the liberty of this inner voice against intrusion or harm. These commandments are collectively known as ‘human rights’.

…[But] even though liberal humanism sanctifies humans, it does not deny the existence of God, and is, in fact, founded on monotheist beliefs. The liberal belief in the free and sacred nature of each individual is a direct legacy of the traditional Christian belief in free and eternal human souls. Without recourse to eternal souls and a Creator God, it becomes embarrassingly difficult to explain what is so special about sapiens.

In a later chapter, Harari looks more closely at this embarrassment, and wonders how long it will be before the facade breaks down. Scientists studying the workings of the human brain increasingly argue that our behaviour is determined by electric potential across axons and synapses, that we are driven by hormones created by our genetic code, and that as molecular machines we cannot truly have “free will” any more than any other organism has.

Our judicial and political systems largely try to sweep such inconvenient discoveries under the carpet. But in all frankness, how long can we maintain the wall separating the department of biology from the departments of law and political science?

We hear much talk about “inalienable” and “fundamental” rights. History shows, Harari says, that neither adjective has any application to rights, or any other law or system which has been created by the human imagination. It is an iron rule of history, Harari points out, that “every imagined hierarchy disavows its fictional origins and claims to be natural and inevitable”. Hammurabi’s laws were ordained by his gods. To Aristotle, a slave had to submit to that status because of his innate “slavish nature”, whereas free people had a “free nature”. These days, we insist that these were the mistaken views of long dead civilisations. But the very fact that we insist on our particular bundle of “fundamental” rights means that we are obeying this iron rule, to the letter.  Since our cherished principles, such as free speech, only exist in our imagination, they can turn on a dime: under sufficient duress, they can vanish in a day. Look at what happened to the “free press” after Charlie Hebdo (Adam Wagner’s post here).

Harari’s message may not be a welcome one, but I hope I haven’t done his book an injustice in this review. He takes rights seriously, but throws down a gauntlet. Anyone who is interested about the provenance of human rights and who cares about their future should read it.

Sign up to free human rights updates by email, Facebook, Twitter or RSS



  1. echidna says:

    Thanks for this review. But are there any contemporary philosophers who do think that you can argue for human rights ab initio? The development of the concept of human rights is a very interesting topic, but I’m not sure that anyone seriously doubts that such a development has taken place.

  2. S.J. Schneider, Bordeaux says:

    Rosalind English’s summary of Harari’s contribution to a very long and very old literature of which occidental post-Renaissance debate could be considered a wordy but not definitive chapter, has particular merit in evoking an oncoming confrontation between our mission-critical (so to speak) institutions -Anglo-American-Israeli-Australian-Canadian etc justice systems being obvious specimens- and neurobiological research findings. These last are likely to shove us nose to nose against (unlikeble) sublunar reality. If it really turns out that the presumption of free will is as about as good, i.e., bad, as, say, the recently defunct presumption of…ahem…legitimacy (a husband is the father of a child born to his wife) we are faced with abolishing as distinct from tinkering with, our capital institutions. Not just ‘our institutions’ either. Pretty much everyone’s. Even the collectivist cruelties of (for example) 17th century Japanese law codes depended on at least one original culprit wilfully acting.

    Elsewhere it’s disappointing to come on the assertion (just above) ‘Religion is no basis for human rights.’ Religion, wherein belief systems are frequently self-consciously beliefs, not confused with knowledge, does enjoy episodic superiority over superstition, such as the unconscious beliefs reportedly detailed by Harari. I don’t reckon that any of the despised ‘monotheist religions’ would have put up with, for example, the massive eugenics programs carried out in our ever-so-enlightened occidental nation-states between say 1880, and 1960, and that’s before we get to our superbly rational Pol Pot, or, on another page of history, actually read some halakhah or sharia or canon law or… etc.

  3. John says:

    I think Bentham was making the point that there is no such thing as naturally occuring sets of rights “out there” in the natural world. Rights are what we all agree mutually to give ourselves.
    We do this by creating human-made conventions and laws – sometimes including laws which protect artifially created rights for other species too.
    Religion is no basis for human rights. At the same time as the monotheist religions were at their height they somehow managed to find the practice of human slavery completely acceptable.
    It is the post-Enlightenment world that developed the creation of human – not natural – rights.
    I have not read Harari’s book and – to be honest – it does not appear to be the kind of book that is worthwhile reading. Yet again, we have an academic trying to make a name for themselves with an approach that is artificially contrived to be faux-controversial.
    I find these juvenile attempts to provoke a reaction from others – all in the interests of promoting the next book deal or TV series – completely idiotic.
    Give me Brian Cox any day…….

    1. Captain Sensible says:

      @ John

      Your comment / review was making good sense and then you went and spoilt it at the end with “Give me Brian Cox any day”.

    2. Clicky Steve says:

      This is one of the fairly standard discussions in legal theory, so not one that seems designed simply to provoke a reaction, a

      1. Clicky Steve says:

        Managed to post before finishing, and on my phone so can’t edit…

        Either way, I think this is a fascinating discussion (so much so I did my LLB thesis on it). Critically evaluating the origins and justifications of human rights is crucial to defending them.

  4. Comparing amoebae and birds to human beings, if that is what the author does in the book, doesn’t seem to make sense.

    1. Amoeba was my contribution. I don’t think Harari would object. We are all products of evolution.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: