There is a deep and undeniable sadness in all this: whenever we see the dawn of an eternal good that will never be overcome by evil – an evil that is itself eternal but will never succeed in overcoming good – whenever we see this dawn, the blood of old people and children is always shed. Not only men, but even God himself is powerless to lessen this evil.
Vasily Grossman, Life and Fate, translated by Robert Chandler, 2006.
On May 29 this year, Prof Samuel Moyn from Harvard University, USA, will be visiting the Nobel Peace Research Institute in Oslo. Moyn’s groundbreaking work on the modern history of human rights in recent years has received precious little attention in Norway. This might seem surprising in a country which has for a long time had successive governments invoking human rights as a proclaimed normative foundation for its foreign policy – were it not for the uncomfortable fact that Moyn’s work provides some pointers as to precisely why the Norwegian and other Western governments’ invocations of human rights-based foreign policies are often practiced more in the breach than in actual fact. Moyn’s visit therefore provides as good an opportunity as any to reflect upon the modern history of human rights and what that history might mean for human rights in the present.
Historicizing human rights
Prof Samuel Moyn is Professor of European History at Harvard University in the USA. He was previously a professor of European History at Columbia University in the USA. Moyn seems to me more than anything an historian of ideas, and as such has a thorough training in European intellectual history, particularly as it pertains to France. And to be an historian of ideas has more often than not meant to be pre-occupied by some of the ‘grand narratives’ of the modern era and how they have come to be seen as both so inevitable and natural to so many. The very idea of human rights is of course one such grand narrative – perhaps even in our time the very last such grand narrative – as Moyn implies by the title of his to date most important monograph from 2010.
As a reader of Moyn, the one name that comes most readily to mind when reading his work is that of the late historian Prof Tony Judt (1948-2010). And by that, I mean to refer not only to the sense of style which mark both scholars prolific output, but also their field of interest and vast range of knowledge and detail, in Judt’s case most vividly on display in his monumental Postwar.
And so it came as little surprise to learn that this year’s fine collection of essays from the late Judt edited by his widow Jennifer Homans takes its very title from a favourite quote of Judt’s attributed to the economist John Maynard Keynes (1883-1946) which Judt invoked in response to a critical essay Moyn had published in the pages of The Nation in 2007, and that Moyn would be the scholar commissioned to review this posthumous volume in the pages of The New York Times in 2015. When Moyn’s 2007 essay for The Nation merits re-reading, it is not due to the fact that it provoked a rather irate response from the late Judt regarding some off-hand remarks Moyn had made about Judt having “excoriated French left-wing intellectuals” for “failing to champion rights” in the East as much as they did in the West. For Moyn swiftly buried the hatchet with Judt, and wrote a memorable intellectual obituary on the occasion of Judt’s premature death in 2010.
It is rather due to the 2007 The Nation essay being the first – at least as I am aware of – occasion in which Moyn mapped out the terrain of his revisionism in the historiography of human rights in a rather devastating critique of his fellow historian UCLA Prof Lynn Hunt’s 2007 account of the history of human rights in her critically acclaimed 2007 monograph Inventing Human Rights.
It is by no means unusual for scholars – including even the most notable historians – to conceive of the past as little more than a template for the present. As Moyn documents in a review essay on the recent historiography of human rights published in the Annual Review of Law and Society in 2012, it is only very recently that historians started paying much attention to the history of human rights at all.
And it is for Moyn symptomatic – for “the fact that it only recently occurred to historians to uncover the origins of human rights is itself a sign that they should not seek to find them too long and too far away” (Moyn 2014, 18). As a case in point, Moyn refers to the fact that the American Historical Review first published a scholarly article making reference to the Universal Declaration of Human Rights (UNDHR) of 1948 in a 1998 article. And that article was of course written by none other than Moyn himself.
Moyn, otherwise extremely critical about Hunt’s history of human rights, credits Hunt with having created the spark which led to the crystallization of human rights as a field of study within history departments (Moyn 2012, p. 127). In his 2012 review essay, Moyn usefully distinguishes between three strands within the recent historiography of human rights. By (1) substantive history, Moyn means to refer to historiography of human rights which “target the content of norms…[…]….such as “civil and political” or “economic, social and cultural” rights as well as “…histories of law and legal doctrine that concerns how norms are codified and canonized.” By (2) scalar history, Moyn means to refer to “the geographical zone of application in which a right or package of rights apply” and by (3) salience history, Moyn means to refer to studies focusing on “the prominence and believability of human rights as a language of political ideology, maneuvering and struggle” (Moyn op. cit., p. 125). Moyn’s problem with much recent historiographical work on human rights is not only that it is all too often celebratory and canonizing, but that it is based on a form of originalism which attempts to locate the supposed ‘roots’ of modern human rights in epochal historical events such as the French revolution of 1789, the Caribbean antislavery uprisings of the 1790s and the Enlightenment, and to narrate the history of modern human rights as a continuous progressive and teleological movement in history from these points onwards. In so doing, historians of human rights engage in anachronisms. Moyn clearly sees Hunt’s work as being most symptomatic of this tendency. Drawing on arguments originally put forward by Hannah Arendt in 1951, Moyn argues for a clear-cut separation between the ‘rights of man’ invoked by the French revolutionaries and modern ‘human rights’. “She [Arendt] was correct: there is a clear and fundamental difference between earlier rights, all predicated on belonging to a political community, and eventual “human rights”. If so, the droits de l’homme that powered early modern revolution and nineteenth-century politics need to be rigorously distinguished from the “human rights” coined in the 1940s that have grown so appealing in the last few decades” (Moyn 2010, p. 12). And equally important, “unlike later human rights, however, they were deeply bound up with the construction, through revolution if necessary, of state and nation” (Moyn 2010, p. 20). The Terror unleashed by the French revolution of 1789 of course becomes less of a paradox when seen in this light, and the invocation of ‘rights’ (not to say ‘human rights’ in the recent past) has of course been part of the very legitimation of unspeakable acts of violence and terror from the very word go. “…Yet especially in the origins of America (not to mention France), rights had originally been a revolutionary conception, authorizing violence if necessary, and for the sake of national liberation” (Moyn 2014, xv). With a twist of William Faulkner’s famous adamen, then, for Moyn, the past may not be dead, but it is certainly past: “Our ancestors were trying to be themselves rather than anticipate somebody else. The past is not simply a mirror for our own self-regard” (Moyn 2014, xii). And in order to respect that simple fact, “the contemporary attempt to give human rights a history” should simply not “distort the past to suit the present” (Moyn 2014, 1). “Human rights arose on the ruins of revolution, not as its descendants” (Moyn 2014, 13).
So what does Moyn do with the history of human rights, and why does it matter so much for our present conceptualization of human rights? First of all, Moyn’s departure consists in a radical historicizing of human rights, which emphasizes its very newness and modernity. Secondly, and contrary to much of what passes for popular common sense these days, he underlines that human rights as a language in which to advance moral claims – a sort of ‘moralizing’, ‘sermonizing’ or an ‘anti-politics’, was a language first appropriated not by US liberals or European leftists, but by European conservatives. “European conservatism captured the language of human rights, while few others learned to speak it” (Moyn 2010, p. 47). “The widespread belief that human rights were consensually and cross-culturally agreed upon until the Cold War crisis is unsustainable,” writes Moyn on p. 68 of The Last Utopia. This will certainly come as news to quite a few of present-day Norwegian conservatives and populist right-wingers alike, who in quite a paradoxical turn of events in recent years have often written off invocations of human rights as ever so much ‘moralizing.’ For what many of them mean to imply by applying this label to European liberals and leftists who insist on the continued necessity ofr and relevance for the fundamental right to seek asylum enshrined in the 1951 UN Refugee Convention is that these rights might as well be abandoned in the name of political ‘realism’.
Writing of the early modern era of human rights in the 1940s and 50s, Moyn argues that “…[…]…insofar as the new slogan of human rights had any visibility, domestically and regionally, it was not among American liberals but European conservatives” (Moyn 2010, p. 73.) And among these, none were perhaps as prominent and influential as Catholics, who certainly may have taken some time coming around to the idea of human rights, but when they first assimilated these ideas argued them more forcefully than most others. Here, Moyn highlights the role of the French-born Catholic publicist Jacques Maritain (1882-1973), whom he describes as the “premier philosophical defender of human rights in the postwar decade” (Moyn 2010, p. 54). Moyn could well have spent more time of Maritain, said by Moyn to be “ingeniously breaking with Catholic political thought in modern times” and to be “claiming Catholic natural law as the proper framework for human rights two weeks after the Declaration of the United Nations.” For Maritain was in fact close to the French lawyer René Cassin (1887-1976), later revealed to have been the most central person involved in the drafting of the UNDHR 1948. Which begs the question as to whether Maritain, by far the greater intellectual capacity of the two, though it was ultimately Cassin who would be awarded the Nobel Peace Prize in Oslo in 1968 for his role in the drafting of the UNDHR 1948, had not started claiming Catholic natural law as a framework for human rights quite some time before then, and in so doing, directly influenced Cassin.
Though Moyn certainly implies as much, in noting that Maritain in embracing the idea of human rights was in fact breaking with modern Catholic thinking, it is also worth mentioning in this context that it was not until the Second Vatican Council from 1962 to 1965, that the Catholic church officially made its peace with human rights – a process deftly analyzed by John W. O. Malley in his 2010 monograph.
Moyn seems at times to understate this, which one surmises might have to do with a lack of familiarity with modern Latin American and Spanish history on his part, but even though a reactionary apologetics for authoritarian and even fascist forms of governance which invoked traditional Catholic thinking would subsist a sub-stratum within the church long after Vatican II, it does seem reasonably to infer that it was Vatican II’s embrace of human rights which enabled quite a number of Catholic thinkers and leaders in Latin America and Eastern Europe to assume such prominent roles as human rights defenders in the 1970s and 80s. The present ubiquity of the concept of ‘dignity’ in liberal philosophy as well as liberal constitutionalism also owes its origins to Catholicism, Moyn argues. “Since the end of World War II, nobody besides conservative and typically Catholic thinkers had staked philosophical systems on the notion of human dignity” (Moyn 2014, p. 20). On dignity, Moyn takes Prof Jeremy Waldron to task for suggesting that “the universal and egalitarian implications of Kant’s kingdom of ends can be reached indirectly by allowing the democratization of high status to continue through various legal instutions”, which Moyn intuits depends on a liberal historical teleology on Waldron’s part (Moyn 2014, p. 24). As for Jürgen Habermas, Moyn argues that he is simply wrong in implying that “dignity must have been implicit to human rights all along” – in the absence of its discernable presence in European and American revolutionary declarations (Moyn 2014, 20). And in the work on dignity of his Harvard colleague, the political scientist Michael Rosen, Moyn finds fault in what he refers to as Rosen’s ‘overstating’ “the Kantian influence in the original West German constitution and its early interpretation” (Moyn 2014, p. 29). For Moyn, it seems clear that it was in the post-war Christian Democratic movement, and most centrally in Italy and West Germany, that human dignity featured most prominently (Moyn 2014, p. 29). But the Western and Christian inflections of modern human rights came at a price: “Human rights became almost immediately associated with anticommunism” (Moyn 2010, 71). And, related to this, “when human rights exploded in the 1970s they were focused so centrally on political and civil rights” that “their social and economic cousins” came to be “regarded as “second-generation principles” (Moyn 2010, p. 17). The breakthrough moment for modern human rights in its present formulations is for Moyn the year 1977, when Amnesty International was awarded the Nobel Peace Prize for its work and US President Jimmy Carter uses the term in his inaugural address as a president of the USA at Capitol Hill in Washington D.C. By this time, the Helsinki Accords of 1975 had already become a rallying platform for dissidents across Eastern Europe. Thirdly, Moyn has no patience with the widespread view that human rights in its modern conception was underwritten by a cross-cultural consensus which only evaporated with the onset of the Cold War. Human rights were at their inception a language developed by diplomatic elite intellectuals of Christian background and orientation. They may not all have been Western: The Lebanese legal scholar and philosopher Charles Malik (1906-1987), an uncle of the late Edward W. Said (1935-2003) having been one of the framers of the UNDHR in 1948, but he was certainly a product of a Western elite training and part of a Christian cosmopolitan elite. “Far from demonstrating the multicultural origins of the document [the UNDHR 1948, my insertion], however, these facts [the involvement of Latin American diplomats in particular in light revisions to the draft of the UNDHR 1948, my comment] mainly shows the existence of a global diplomatic elite, often schooled in Western locales, who helped tinker with the declaration at a moment of symbolic unity” (Moyn 2010, p. 66). To assert this Western and yes, Christian, intellectual genealogy as a matter of historical fact and record is of course not to imply that human rights are by virtue neither intrinsically nor necessarily anathema to other religious traditions. In the case of the Muslim world, human rights’ potential translatability remains a central topic in the work of scholars such as Abdullahi Ahmed an-Nai‘m and Abdelaziz Sachedina among others. Fourthly, Moyn punctures the myth that de-colonializing movements in Asia and Africa in the 1950s and 60s had more than a passing and instrumental interest in human rights conceived as anything else than a language in which to advance claims of national self-determination. The latter is also a matter explored in further detail by the German historian Jan Eckel in a review article published in Humanity, a journal edited by Moyn, in 2010, which by and large confirms Moyn’s findings on this.
There were obvious historical and contextual reasons for this, for as Moyn rightly notes “the UN arose as a concert of great powers that refused to break in principle with either sovereignity or empire” (Moyn 2010, p. 8). The UNDHR 1948 in the words of Moyn “retains, rather than supersedes, the sanctity of nationhood” (Moyn 2010, p. 81). And the UN, “far from being the forum of a new and liberatory set of principles, appeared set at first on colluding in the attempted re-imposition of colonial rule after the war” (Moyn 2010, p. 92). It is telling that among the most central figure in the drafting of the UN Charter agreed upon by fifteen states at the UN Conference in San Francisco from April to June 1945 was none other than the South African Prime Minister General Jan Smuts (1870-1950), described by the historian Mark Mazower as “a leading theorist of colonial rule” (Mazower 2012, p. 131). As such, and as a strong proponent of racial segregation in his native South Africa until his death some years later, Smuts was also a living embodiment of the historical contradictions of liberal internationalism and humanitarianism. These are contradictions which have persisted well into our own time, not at least among the many liberal internationalists and humanitarians who were among the most prominent intellectual war-mongerers in the early phases of the ill-fated neo-conservative ‘war on terror’ waged by the Bush II Administration from 2002 to 2008, who more often than not invoked human rights as their pre-texts for through their privileged media platforms egging on a war which would cost the lives of millions of Iraq, and whose aftereffects have wrought havoc for peace and stability in the Middle East in recent years. One has in mind here, of course, people like Michael Ignatieff, Michael Waltzer and Paul Berman. What Prof Didier Fassin has aptly described as ‘humanitarian reason’ is certainly among the targets in the historical revisionism that Moyn is engaged in through his work on the history of human rights. No such thing as a selective forgetting of the “longstanding imperial entanglements of both humanitarianism and rights” for Moyn (Moyn 2014, p. 15) for “history shows how frequently they have been offered as justifications for invasion, expansion and annexation” (ibid.). And true enough, Belgian colonialism in the slaughterhouse that was the Congo under King Leopold ,say, invoked the most noble of liberal and humanitarian sentiments in motivating and legitimating the plunder, oppression, enslavement and deaths of millions of Congolese.
But the central point is this: where other historians of human rights in recent years such as Ronald Burke have argued that there was a close linkage between self-determination and human rights dating back to the so-called Atlantic Charter agreed as a blueprint for the Allies during World War II at a meeting between the British Prime Minister Winston Churchill and the US President Franklin D. Roosevelt in April 1941, which made decolonization a more or less logical outcome of postwar human rights, Moyn insist that there was no such linkage in the first place, and that human rights was much less central for anticolonial thinkers and activists than Burke and others allow for. And the details certainly seem to bear Moyn’s interpretation out, in as much as the Atlantic Charter 1941 made reference to self-determination but not to human rights, and the UNDHR 1948 made ample reference to human rights, but none explicitly to self-determination (Eickel 2010, pp. 114-15). “Going so far as to label the Atlantic Charter a “human rights instrument”, setting the terms for all the generosity that followed, ignores that it did not include the phrase “human rights” – the consecration of which in the 1940s dropped the concept of self-determination that the charter did, in fact, feature. And from the perspective of much of the world, it may have seemed more revealing than the birth of human rights that the Allies did not feel they were “stuck” with self-determination”, concludes Moyn in regard to this (Moyn 2010, p. 89).
Fifthly, we have long become accustomed to regarding the horrors of the Holocaust as a central factor in the post- World War II push for human rights. Not so, insists Moyn, who points out that Holocaust remembrance and consciousness was a product of the 1970s, and played little part in legitimating human rights before that time. “The 1970s were the great age of the breakthrough of popular Holocaust memory” argues Moyn in a recent anthology of his essays on the history of human rights (Moyn 2014, p. 96) – “and the coincidence that human rights became such a popular lexicon then too ended up entangling them with each other in our moral imaginations.” As a case in point, one is here reminded of the late Tony Judt’s pointing out in one of his essays that Primo Levi (1919-87) had serious problems even finding a publisher for his seminal Auschwitz memoir, the first edition of which was published in 1947 and had a print run of a mere 2500 copies, and hardly sold at all in the 1940s and 50s. “It matters what human rights, at the time, were not”, contends Moyn with reference to the early phase; “they were not a response to the Holocaust, and not indeed focused on the prevention of catastrophic slaughter” (Moyn 2010, p. 47). Though one has to accept the grounds on which Moyn’s argument here stand, one could have wished for a more thorough treatment of UN resolutions at the time which certainly were responses to the Holocaust and which was indeed focused on such prevention. The UN Genocide Convention (CPPCG) passed in 1948 after years of persistent lobbying by the Polish-born lawyer Raphael Lemkin (1900-1959) can hardly be regarded as anything but a response to the Holocaust, though Lemkin first started taking an interest in the topic after reading reports about the Young Ottoman Turk’s genocide against Ottoman Armenians in 1915-16 as a young student in Lvov University in Poland the 1920s (Schabbas 2002, p. 25). Moyn’s work has relatively little to say about the CPPCG, Lemkin and what that might tell us about the wider political and intellectual terrain upon which modern human rights were constructed. Moyn’s assertions to the effect that “…[…]…it is not at all obvious that, at the time, Nuremberg and related legal innovations like the genocide convention were conceived as part of the same enterprise as the itemization of human rights, let alone falling under their umbrella – though they are now often treated as if they were a single if multifaceted achievement” and that “the main force behind the genocide convention, Raphael Lemkin, understood his campaign to be at odds with the UN’s human rights project; in any case, it was even more marginal and peripheral in the public imagination than the Universal Declaration, passed the day after” (Moyn 2010, p. 82) will perhaps strike some readers as too short on details and therefore unsatisfactory. Though Moyn spends much less space on polemics against Michael Ignatieff than he could have in his work, it is quite clear that Ignatieff’s imaginative ideas about the history of human rights “as an old idea that finally came into its own as a response to the Holocaust” and as “the most universally repeated myth about their origins” (Moyn 2010, p. 6) are among the most central targets here. “…[…]…In United Nations records it seems that no one – the one possible exception is the author of that line about barbarous acts, French Jew René Cassin – had what is now known as the Holocaust of European Jewry in mind as the core meaning of the idea [of human rights, my comment]” (Moyn 2014, p. 90.) The centrality of Holocaust memorialization and consciousness in human rights discourses in our time for Moyn comes at a price: “One of the worst outcomes of the imaginative linkage of the Holocaust and human rights is that it allows people to believe that the sole alternative to a humanitarian and human rights framework is genocidal violence or, at best, immoral complacency.” (Moyn 2014, 97). Here, I personally think that the alternatives are put in too Manichean terms by Moyn, for I do think that there are many, whether left, centre or right on the political spectrum, who are more attuned to the pragmatics of any framework anchored in moral beliefs, such as human rights, when put into practice than Moyn seems willing to concede.
So what now, for human rights?
As Moyn’s own work makes perfectly clear, it is hard to think of an historian of human rights who does not at the same time have an interest in what that history might tell us about the uses and abuses of the rhetoric of human rights at present, and the possible futures of human rights. Two of the most central intellectual impulses running through Moyn’s revisionist and iconoclastic work on the history of human rights is to link human rights with utopianism – “the heartfelt desire to make the world a better place” (Moyn 2010, p. 225) and to contemporary forms of liberal power which may not always strike us as either apparent or obvious. “Born in the assertion of the “power of the powerless”, human rights inevitably became bound up with the power of the powerful”, concludes Moyn at the very end of his seminal 2010 book (p. 227). Moyn’s work first and foremost answers to a critical impulse, and as such, is of seminal importance. As for the futures of human rights, Moyn is clear about the fact that “America’s unipolar moment seems set to wane” (Moyn 2014, xiv) and perhaps also modern human rights as we know it with it. “Our idealism is born of disappointment not of horror or of hope” may seem like an appropriate epitath for the present age, with its often bewildering complexities and seeming lack of alternatives to the present societal and political drift of Western liberal societies. “While a fundamental commitment to human dignity and the basic entitlements some would like to flow from it may prove useful in some situations in the future, the era of the absence of large-scale ideological alternatives during which human rights have prospered, going global in multifarious projects and achieving their lock on contemporary idealism, is surely fleeting,” argued Moyn in 2012 (p. 137). “Continuing geopolitical change will lead other ideologies and practices to seem more plausible for better or worse. These will take over the scale and salience that human rights have won, and do so rapidly and easily. In retrospect, the recent historiography of human rights will probably seem a rest stop at a moment of willful avoidance of the future that is coming – not a decisive step into it.” (ibid.) Three years on, and with the continuing bloodshed and murderous anarchy loosened upon the world in Syria and Iraq, many European governments’ – including Norway’s present right-wing government’s – continuous denial of humanity and a modicum of rights to the millions displaced by these conflicts, and both the USA and Europe turning a completely blind eye to the gross human rights abuses of its new dictatorial allies in the Middle East this seems both realistic and utterly depressive as a prospect for the future. ‘Careful what you wish for’, runs the adamen. Human rights, for Moyn, now all too often “seem to make little practical difference, amounting to an ornament on a tragic world they do not transform” (Moyn 2014, p. 143). But “to give up church history is not to celebrate a black mass instead” (Moyn 2010, p. 8). And so it comes as a bit of a comforting endnote that Moyn’s is not an argument for the wholesale abandonment of human rights as a moral language in and for the future, but a call for it to conform less to reality and power politics in the future, to become more scientific, to transcend judges and laws, to be mobilizational and transformative, and to cease to privilege political and civil liberties over and above social and economic rights (Moyn 2014, 135-47). Which is perhaps to say, that human rights must return to an however modest utopia and become a moral language for the future which dares confront power, rather than to be complicit in its various modalities.