Human rights: a reality check

29 January 2015 by Rosalind English

Most 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.

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