Can Utilitarianism Ground Human Rights?

In this section, I will examine briefly the historical circumstances leading to the birth of five key human rights declarations and conventions. I will extract the major social and political drivers for their origin and their hoped-for impact on the social and legal developments in the societies in which they were formulated. These five case studies are by no means exhaustive of the field of research. In Appendix 1, I list 11 human rights declarations and conventions with their key historical markers.

My aim with these five case studies is to draw out the conclusion that actual human rights instruments throughout the ages arose in political contexts in which whole classes of people were suffering and how these instruments explicitly served the purpose of alleviating these hardships. Human rights, it turns out, are framework principles specifying the minimum socio-political requirements for increasing the likelihood of human beings avoiding misery and leading happy, satisfying lives.

2.1 Magna Carta (1215)

The Magna Carta Libertatum (Medieval Latin for 'Great Charter of Freedoms') is widely regarded as a seminal document in the history of human rights. It was the culmination of a long-running dispute between the capricious King John of England and a group of rebel barons, whose grievances included arbitrary royal demands, illegal imprisonment, extrajudicial punishments and debilitating taxes. Although focusing on the grievances of the barons, the rights of serfs were codified in three of its articles. It enshrined the principle of habeas corpus, the right to due legal process, a principle we take for granted today. (For a brief history, see Wikipedia contributors [2023a].)

2.2 Bill of Rights 1689 (England)

The Bill of Rights 1689 was signed by William III of Orange-Nassau and his wife following their dethroning of the unpopular King James II of England as a way for the Parliament to inoculate against the excesses of the previous king. The excesses protected against included illegally dispensing parliamentary laws and levying taxes, ignoring petitions to the King, constraining elections, restricting freedom of speech, levying of excessive bail and fines and inflicting cruel and unusual punishments. The Bill of Rights 1689 served as a model for later bills of rights and continues to be cited in legal proceedings in the United Kingdom and the broader Commonwealth. (For a brief history, see Wikipedia contributors [2023b].)

2.3 U.S. Declaration of Independence (1776)

The Declaration of Independence, as a statement of the United States' sovereign independence from the Kingdom of Great Britain, included a list of 27 colonial grievances against King George III. These grievances included ignoring the public good, withdrawing political representation, exposing the U.S. to foreign invasion, obstructing the administration of justice, corrupting the judiciary, conducting mock trials, imposing excessive taxes and restricting trade, waging war and inciting insurrection. Pushing back against the misery wreaked by the British Empire, it declared the universalist ethos that 'all men are created equal' with the unalienable right to 'Life, Liberty and the pursuit of Happiness' [U.S. 1776]. (For a brief history, see Wikipedia contributors [2023c].)

The Declaration was instrumental to later advocacy for the abolition of slavery. For example, voicing the utilitarians' concern for universal human welfare, Abraham Lincoln[5] said in a speech at Springfield, Illinois, in 1857, 'I had thought the Declaration contemplated the progressive improvement in the condition of all men everywhere'. This (partial) universalist sentiment in the Declaration of Independence was also appealed to by the first suffragists campaigning to alleviate the suffering of women. An early example is the Declaration of Sentiments emanating from the Seneca Falls Convention in 1848. Echoing the Declaration of Independence, the activists appealed to the right of all women to 'life, liberty, and the pursuit of happiness' and railed against the 'history of repeated injuries and usurpations on the part of man toward woman' [Halsall 1997].

It may be thought that these declarations were driven by the supernatural beliefs of the writers that a 'Creator' endowed humans with these 'inalienable rights'. That is no doubt part of the story of the birth of rights. However, as the history of these covenants reveal, they are born out of the misery of people suffering under tyranny. When such a naturalist explanation suffices for what ensued historically, any supposed supernatural explanation becomes superfluous. The situation is similar to appealing to Zeus as the originator of lightning when an explanation in terms of electricity generation from the motions of clouds explains all that requires explanation.

2.4 Declaration of the Rights of Man (1789)

Historians attribute the French Revolution and the enshrining of the Declaration of the Rights of Man in 1789 to

the failure of the Ancien Régime to respond to increasing social and economic inequality. Rapid population growth and restrictions caused by the inability to adequately finance government debt resulted in economic depression, unemployment and high food prices. Combined with a regressive tax system and resistance to reform by the ruling elite, the result was a crisis Louis XVI proved unable to manage.

[Wikipedia contributors 2023d]

The preamble to the Declaration of the Rights of Man [National Constituent Assembly 1789] expressed its motivating force, linking 'ignorance, neglect, or contempt of the rights of man' to 'the sole cause of public calamities and of the corruption of governments'. The authors proclaim that among their reasons for setting forth the declaration is that adhering to citizens' rights will 'redound to the happiness of all'.

When in 1793 the Assembly determined that King Louis XVI failed in respecting these rights, it condemned him to death for 'conspiracy against public liberty and general safety' [Wikipedia contributors 2023d].

2.5 U.N. Universal Declaration of Human Rights (1948)

The final declaration I will point to takes us into the twentieth century. I use the U.N. Universal Declaration of Human Rights as my final case study as it has international importance and acceptance. It was adopted by the U.N. General Assembly as U.N. Resolution A/RES/217(III)[A], with 48 representatives voting in favour, none against and eight abstaining. Although not legally binding on member states, the rights enunciated in the Universal Declaration of Human Rights have been incorporated into a number of other international and national legal instruments.

Based on the first general international human rights instrument adopted some eight months earlier, the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights also adopted a universalist language. The motivation to define rights more clearly than the preceding Charter of the United Nations had came after the end of the Second World War with the full realization of the horrors of the Holocaust by the international community. Focusing the minds of the delegates at the General Assembly were the atrocities committed by the murderous Nazi regime. (For a brief history, see Wikipedia contributors [2023e].)

Morsink [2010: 28] points out the words in the preamble that refer to Nazi crimes: 'Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind . . .' [United Nations (General Assembly) 1948]. This text stemmed from the words proposed by a committee delegate who was a victim of the Nazis:

ignorance and contempt of human rights have been among the principle causes of the suffering of humanity and of the massacres and barbarities which have outraged the conscience of mankind before and especially during the last world war . . .

[Quoted by Morsink 2010: 28]

Morsink [2010: 28] further traces the thinking of the drafters, linking the inclusion of Article 3 (right 'to life, liberty and security of person') to the deaths of Jews in concentration camps and on the deportation trains. Articles 2, 7, 16 and 23 (right not to be discriminated against) were responses to the Nazis' extreme racism. Article 4 (right to be free of 'slavery or servitude') was a reaction to the Nazis' deportation for forced domestic, agricultural and factory labour. Article 5 (right to be free of 'torture or to cruel, inhuman or degrading treatment and punishment') was a reaction against cruel Nazi medical experiments. Article 6 (right 'to recognition as a person before the law') was a reaction against the Nazi regime's legal exclusion of the Jews. Article 16 (right to 'full and free consent' to marriage) was a response to the Nazi's racist 1933 marriage laws. Articles 18 to 21 were a response to the Nazis' suspension of civil liberties. Articles 23 and 24 (rights to 'work', to 'just and favourable remuneration' and to 'rest and leisure') were motivated by the cruel working conditions in camp factories. Article 26 (right to education for the 'full development of the human personality') was a reaction to the Nazi indoctrination of German youth.

2.6 Key Lessons from History

This brief review of five human rights declarations and conventions reveals, I think, three key insights into the origin and nature of human rights.

Firstly, that our conceptions of human rights and their encapsulation in the various historical documents did not appear from on high, from some divine source revealed to humans on the ground. Where such metaphysical claims are made, history shows otherwise. The revealing of the Decalogue to Moses by Yahweh, for example, may be an inspirational story to millions of people. However, the obligations enshrined in the 10 Commandments have historical precedents in the written norms of previous empires located far from the ancient kingdoms of Israel and Judah.

Secondly, human rights thinking evolved over many centuries of social and political turmoil. Of course, philosophers and lawyers have laboured over the theoretical underpinnings of our conceptions of human rights, especially since the birth of the Enlightenment. However, history shows our conceptions of human rights did not appear fully formed, as the result of intuition or a god-given conscience. Their evolving details were thrashed out as responses to the particular real deprivations and sufferings of real people in real social situations. Grave sufferings from the earliest times that prompted the push for rights included onerous taxes, high food prices, capricious royal imprisonments and other cruel punishments, disenfranchisement and restriction of trade. Later, the eradication of other miseries was fought for, including the cruelty of slavery, the actions of corrupt judges and the suppression of women. The Second World War brought other kinds of miseries to human consciousness: genocide on a continental scale, a modern form of slavery, deprivation of livelihoods and cruel medical experimentation.

Thirdly, as human societies developed and laws and regulations became more complex, the content of human rights instruments became more detailed as a result. Coupled with this increasing sophistication was the dawning realisation that the rights arguments advanced for some members of society (barons, land owners, males) could not, in principle, be denied to other subjugated social groupings. In the space of several centuries, other oppressed groups demanded the alleviation of their sufferings using the same principled reasonings. Over time, rights were extended to alleviate the sufferings of serfs, labourers, foreigners, women, slaves, homosexuals, children and other subjugated minorities.

Copyright © 2023 Leslie Allan