Читать книгу Human Rights - Michael Freeman - Страница 14

There is no direct line from medieval conceptions of ius to early modern conceptions of rights. The humanist lawyers of the Renaissance, for example, were concerned, not with natural rights, but with civil rights (Tuck 1979). However, medieval conceptions of natural law had the most influence on the modern concept of natural rights.

In the fourteenth century William of Ockham argued that all men knew intuitively that they had a natural power to make choices. Men possessed, therefore, certain liberties that could never be alienated to church or state, and they had a natural right to the necessities of life, and to consent voluntarily to the creation of a system of laws. Positive law was required to coerce fallen men when they did not act according to their natural knowledge of what was morally right (Coleman 1993: 116–17; McGrade 1974).

In the fifteenth century, Conrad Summenhart maintained that Man had right over himself and his body. ‘Here’, Annabel Brett comments, ‘Summenhart introduces a notion of negative liberty which is very close to elements of the modern language of rights’ (Brett 2003: 42). The association of right and freedom was developed further by Spanish thinkers of the sixteenth century. Domingo de Soto, for example, held that the dignity of man was to live according to reason, for through that he was free. The political community had the right to exercise power over its members, so that each could live well, but that public right extended to the individual only as a member of the community rather than as a separate individual. Man retained his rights as an individual, and must have their exercise under his control, that is, he must be sui juris (autonomous) (Brett 2003).

The Spanish conquest of America raised important questions for Catholic theology and international politics. The debate on its legitimacy is a largely neglected moment in the history of human rights. Those who justified the conquest employed Aristotle’s doctrine of natural slavery to deny any rights to the native Americans. They were opposed by Bartolomé de Las Casas, a Dominican priest, who argued that the Indians were in all essential respects human and therefore entitled to their land and to self-government. He sought to demonstrate that the Indians had complex cultures and that the Spanish treatment of them showed that the Spanish, not the native Americans, were the barbarians. He defended the collective cultural rights of the Indians rather than the idea of individual human rights, and, in that, anticipated the modern idea of indigenous rights.

Francisco de Vitoria argued that the cities of the Mexica and the Inca proved that they were not natural slaves, but rational, and consequently had a right to their lands. The Spaniards had natural rights to trade and settle in America, preach the gospel and intervene to prevent Indian rulers from exercising tyranny over their subjects. If the Indians tried to prevent the Spanish from exercising these rights, they would commit an act of war. The Spaniards could then exercise their war rights, including plunder, enslavement, deposition of native rulers and the institution of new ones (Vitoria 1991).

The Spanish Dominicans developed the philosophy of Aquinas with a doctrine of subjective rights. Neither Vitoria nor Las Casas doubted the right of Spain to exercise sovereignty over the New World or the rightness of attempting to convert the Indians to Christianity. Only late in his life did Las Casas come to believe that it might be better for the native Americans to remain heathens, with their distinctive cultures, than to be brought to Christianity by force. The practical advocacy of Las Casas and the more academic philosophy of Vitoria provided an important link between Thomist philosophy and later theories of rights. They both showed that the concept of natural rights could be used both to condemn and to justify European imperialism (Pagden 1982; Carozza 2003).

By the beginning of the seventeenth century there were two principal traditions of thinking about rights. The first emphasized natural, subjective, individual rights. The second emphasized objective right and/or civil rights. The Dutch jurist, Hugo Grotius, was a crucial figure in transforming medieval ideas into the modern concept of rights. He held that the will of God was law, and was known through man’s sociability, which was the basis of all other laws of nature. Men had natural rights, but these were transformed by society. The law of nature concerned the maintenance of rights, the subject-matter of justice. ‘Rights’, Richard Tuck says in his discussion of Grotius’ ideas, ‘have come to usurp the whole of natural law theory, for the law of nature is simply, respect one another’s rights’ (Tuck 1979: 67). Everyone should enjoy his rights with the help of the community, which was required to defend our lives, limbs, liberties and property. Grotius held that moral obligations were owed not only to members of one’s own society, but also to mankind as such. He also maintained that his theory of natural law did not logically require belief in the existence of God, providing thereby the basis for a secular theory of natural rights. Like Vitoria, Grotius argued that there was a natural right to free trade, and, if anyone violated that right the aggrieved party had the right to wage war against the violator. Grotius made this argument in support of Dutch commercial imperialism (Tuck 1979; Van Ittersum 2006).

In seventeenth-century England Thomas Hobbes drew a sharp distinction between right (jus) and law (lex). Since right was liberty, and law was restraint, right and law not only differed from each other, but they were opposites. In the natural condition of mankind, everyone had the natural right to do anything that was conducive to their preservation. There was both an obligation under the law of nature and a natural right to preserve oneself. The natural condition of mankind was one of war of each against everyone else, and therefore one of great insecurity. Reason required men to authorize a sovereign to act on their behalf. All men were obliged to obey this sovereign, provided that he did not threaten their preservation (Hobbes [1651] 2012).

We are so familiar with the use of the concept of human rights to limit the powers of government that we may be surprised to learn that most early modern natural-rights theorists argued that rational individuals would give up their natural rights to absolute rulers for the sake of social order. However, in the English Civil War the Levellers adopted the concept of individual, inalienable rights and maintained that Parliament was violating them. Richard Overton argued that all governments were trusts, because by nature everyone had a ‘self propriety’ which could not be invaded or usurped without his consent. The concept of ‘self propriety’ entailed freedom of conscience, equal rights in law, and the right of at least the majority of men to vote. John Wildman thought that the concept of natural rights entailed the principle of universal suffrage. The Levellers held that persons were prior to estates, which justified the right to subsistence and the legitimation of some redistribution of wealth (McNally 1989: 35–7).

By grounding rights in the law of nature, the Levellers emancipated such claims from historical precedents. Overton maintained that reason had no precedent, for reason was the fountain of all just precedents. Arguments from reason were, however, mixed with arguments from history, including references to the Magna Carta. This mixture of natural-law and historical argument created some ambiguity as to whether the rights claimed were those of Englishmen or universal human rights. The Bill of Rights (1688) was concerned with vindicating the ancient rights of Englishmen, not human rights.

The deep ground for opposition to political absolutism in seventeenth-century England was the Protestant belief that God had made human beings rational so that each could determine their own way to salvation. This entailed free will, the legitimacy of independent action and dissent from authority. All men were born free and equal, and no one was subject to the absolute will of any other person. Rational individuals constituted a natural moral community in which each owed moral obligations to others and to God. Everyone could, by the use of their reason, discover these obligations contained in the law of nature. This law not only imposed duties on, but also accorded rights to individuals, including, especially, the right to follow the dictates of one’s conscience.

In his Essay on Toleration John Locke argued that man was a rational and active creature. Religious faith, therefore, must be active, and required liberty of action. The political authorities ought not to interfere with religious beliefs, since they concerned only the relation between the individual and God. The individual had a natural right to freedom of religion, both because salvation was infinitely more important than any political relation, and because political authorities were fallible in matters of religion.

In the Two Treatises of Government, published in 1689, Locke held that each individual had a responsibility to God to observe the law of nature. Every man was rational in that he could know the law of nature. God willed the preservation of mankind, and this imposed on everyone the obligation not to violate the natural rights of others to their lives, health, liberty and possessions. In ‘the state of nature’, in the absence of government, everyone had the right to self-defence and to enforce the laws of nature. Since everyone was judge in their own cause, they would be partial to themselves, and this would lead to conflict. Rational individuals would therefore agree to live under a government that was entrusted to enforce the law of nature, protect the natural rights of all through the rule of law and to promote the public good. Governments that breached this trust, and that systematically and persistently violated the rights of the people, were tyrannies, lost the authority to rule, and might be resisted by the people by force if necessary (Locke [1689] 1970). Locke’s political theory entails a rejection of the ‘Magna Carta’ or ‘ancient constitution’ ground for resisting unjust government.

Locke is usually interpreted as a theorist of an individualist conception of natural rights. This interpretation is supported by Locke’s belief that each individual had fundamental obligations to God, was endowed with reason, and had a natural right to freedom, which was limited only by the obligation to respect the natural rights of others. Nevertheless, he also held that God’s will for mankind could be achieved, and the natural rights of men could be protected, only in a political community, and that this community should be governed for the public good. There is, therefore, an unresolved tension in Locke’s political theory between the natural rights of individuals and the collective good of society. The foundation of Locke’s theory in the will of God and the reason of Man supported his belief that individual rights and the public good were mutually compatible.

Locke argued that each individual had a property in himself, his labour and the products of his labour. Labour was the basis of the right to private property. Locke’s theory of property has been the subject of prolonged controversy. C. B. Macpherson interpreted Locke as a defender of ‘possessive individualism’ and of the interests of the bourgeois class (Macpherson 1962). Critics have pointed out that Locke’s theory of rights was set in a Christian, natural-law framework, and that property rights were subject to a set of moral obligations designed to provide for the common good and the benefit of mankind. Locke’s theory of property clearly allows for considerable inequality of wealth, but accords to everyone the natural right to subsistence, and imposes on those who have excessive wealth the obligation to aid those who cannot meet their subsistence needs by their own efforts (Tully 1980; Waldron 1988).

Locke’s attitude to women was ambiguous: women might acquire property through their labour and had certain rights in marriage. Men had ultimate authority in the family, however, because they were ‘abler and stronger’. It is not clear whether women could participate in politics (Hirschmann and McClure 2007).

Several scholars have linked Locke’s defence of property with his support for British colonialism. In the Second Treatise Locke asserts that God commanded Mankind to cultivate unappropriated land, particularly in America. This expressed the so-called ‘agriculturalist argument’ for European rights to American land. Locke’s liberal theory of rights, therefore, justified British colonialism.

Locke was secretary to the Lords Proprietors of the colony of Carolina from 1669 to 1673. In 1669 the Proprietors adopted The Fundamental Constitutions of Carolina, which provided for religious freedom in the colony but also assumed the legitimacy of slavery and granted the slave-owners absolute power over the slaves. The authorship of The Constitutions is uncertain, but it is probable that Locke was involved in their drafting: in the Two Treatises Locke assumed the legitimacy of slavery (Armitage 2004). Locke is regarded as a pioneering philosopher of liberal rights and freedoms; scholars do not agree on how, if at all, this can be reconciled with his complicity with African slavery. Locke held that slavery was justifiable only as a punishment for unjust war. Since Africans had not conducted an unjust war against the English, New World slavery would seem to be illegitimate according to Locke’s own theory (Farr 2008). We may conclude that racism blinded Locke to this contradiction (Bernasconi and Mann 2005). Others maintain that Locke was not a racist but a Christian universalist who believed that all human beings were fundamentally rational and that actual differences in rationality were caused by differences in environment (Farr 2008; Armitage 2012). The contradiction between Locke’s liberalism and his endorsement of slavery is unresolved.