The Chimera of Origins
Problems emerge at the start with the question of origins. Where should a history of human rights begin? With Roman law perhaps, where the concept ius humanum can indeed be historically documented, albeit not in the sense of subjective, natural rights for all humanity, but rather as rights created by humans and consequently subordinate to divine right? Or with Calvinism, in particular with Calvin’s idea of the freedom of conscience and the covenant, as John Witte suggests?
Can we agree with Wolfgang Schmale that legal conflicts in French Burgundy and German Electoral Saxony in the 16th and 17th centuries were the precursors of the human rights declarations of the late 18th century? Is a basic human need articulated in these conflicts, one that exists independently of whether the concept of “human rights” was employed by contemporaries? Or would the incorporation of all historical struggles for concrete rights and privileges – which were not intended to be universal, but rather were strictly tied to specific groups – amount to rewriting the entire legal history as a history of human rights?
Even the most familiar account of the origins of human rights – that they emerged in 18th century Europe – is historically contested. More than a hundred years ago, Georg Jellinek sought to tear human rights away from the French archenemy, in particular from Jean-Jacques Rousseau, and to antedate them to the German Reformation and the English legal tradition. This “Germanic” tradition, according to Jellinek, gave rise to the Virginia Declaration of Rights (1776), which in turn provided a superior template for the Déclaration des Droits de l’Homme et du Citoyen of 1789. The emphatic rejection of this position from beyond the Rhine was hardly surprising. This controversy has continued in its basic form but with more nuanced arguments.
In fact, contemporary historiography has affirmed many of Jellinek’s positions as well as those of his French critic Émile Boutmy, even if no scholarly consensus has emerged as a result. A different version of this genealogy can be found in the aforementioned synthesis Inventing Human Rights: A History by Lynn Hunt, an eminent scholar of French cultural history, in particular of the early modern period. In order to elucidate the problems of a triumphalism history of human rights, it is worthwhile to review her argument in brief. Hunt, too, believes that human rights were an invention of the Enlightenment, but offers an unconventional explanation for this. Human rights gained currency in the 18th century, she argues, because they were based on new experiences and social practices, on a new emotional regime, with imagined empathy at its heart.
It is no coincidence, according to Hunt, that the three novels of this century that impressively invoked a new sentimental subjectivity – Richardson’s Pamela (1740) and Clarissa (1747–1748) as well as Rousseau’s Julie (1761) – directly preceded in temporal terms a conceptual version of human rights. Male and, in particular, female readers of these epistolary novels adopted a feeling of equality beyond traditional social boundaries. Epistolary novels tied readers’ emotional life to the suffering of others and in this way promoted a moralization of politics. A similar thesis about the politics of 18th century moral and social practices can be found decades earlier in Reinhart Koselleck’s Critique and Crisis, although the latter was more skeptical toward the Enlightenment. This emotional regime becomes even more apparent in the moral campaigns for the abolition of torture beginning in the 1760s.
In particular the famous Calas affair connected the new emphasis on physical autonomy to this moral sensibility and empathy. Torture could become a scandal in this case only because it was perceived as outdated. It was no longer regarded as a necessary means for publicly reconstructing the body politic. The audience now viewed only the pain and the suffering of individuals. Just six weeks after the Declaration of the Rights of Man and of the Citizen in 1789, the National Assembly abolished torture. The declarations of 1776 and 1789 thus transformed into rights the antecedent evolution of new emotional regimes.
Reading accounts of torture or epistolary novels had physical effects that translated into “brain changes” and “came back out” as new concepts of human rights- this is how Hunt summarizes her argument. Hunt omits the issue at the heart of the Jellinek controversy, whether the revolution of 1776 was perhaps more successful (in the sense of political legitimacy) than that of 1789 because it tied a specific existing tradition (the Bill of Rights of 1688–1689, which defined the rights of Englishmen) to the universal revolutionary conception of rights.
The radical, cascade-like logic of human rights is, for Hunt, much more important. In the French Revolution, one social group after another demanded its rights and received them as well: first the Protestants, then in 1791 the Jews, and following the suppression of the Saint-Domingue rebellion the free blacks. Slavery was abolished in the French colonies in 1794 (but reintroduced by Napoleon several years later). Women remained the only group that was denied legal equality in the French Revolution. But the demand for human rights, once raised, could not be denied forever, even to women. Hunt insists that however restrictive the declarations of 1776 and 1789 may have been in practice, in the long term they opened up a political space in which new rights could be asserted: “The promise of those rights can be denied, suppressed, or just remain unfulfilled led, but it does not die.” In the end, Hunt argues, human rights will be implemented because they accord with an emotional regime that, once in the world, will ensure through the force of its own logic the establishment of rights and justice, somehow, somewhere.
