“Justice is the constant and unfailing will to give to each his right.” -Azo of Bologna
In the eighteenth century, people underwent a profound moral and psychological transformation, coming to see themselves and others like them as human beings who were autonomous agents in the possession of rights. This remarkable change in subjectivity was expressed in the dream of universal equality and codified in law by declarations including the American Declaration of Independence (1776) and the French Declaration of the Rights of Man and Citizen (1793). The juridical construction of the citizen-subject was strongly influenced by the doctrine of natural rights that held that the “rights of man” were universal. On this view, natural rights while codified in law are not contingent on the laws or customs of any culture or government, but derived from the very nature of human beings and, therefore, considered universal, self-evident and inalienable. The Declaration of Independence asserted certain natural and legal rights, including a right of revolution that served to justify independence from Britain under George III. It listed a set of grievances against the king and culminated in a sweeping statement of human rights: “We hold 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.”
Leading up to the adoption of the Declaration in July 1776, there had been some ninety state and local declarations that had taken a variety of forms. Thomas Paine, arriving in the colonies from England, advocated republicanism in his pamphlet “Common Sense” (1776) as an alternative to monarchy. Sam Adams, James Wilson and Thomas Jefferson argued that the colonies were only connected to England through allegiance to the crown and, thus, the English Parliament had no jurisdiction in the colonies. The Declaration was influenced by Jefferson’s preamble of the Virginia Constitution and George Mason’s draft of the Virginia Declaration of Rights. Some historians have argued that Locke’s classical liberalism, especially the second treatise on government, had exercised a decisive influence on Jefferson; others suggest that the Swiss jurist Jean-Jacques Burlamaqui; the Scottish Enlightenment thinker Frances Hutcheson; the German political thinker Samuel von Pufendorf; and the Swiss jurist Emerich de Vattel, (especially his “Law of Nations,” 1758) exercised a profound and determining influence on the young Jefferson.
Some scholars claim that the Declaration is a legal document, while others claim it is a tract about natural rights or a philosophical document. Whether a legal or philosophical document, the Declaration draws on a theory of natural rights which itself has a history beginning with Stoic thinkers Cicero and Seneca, who together established equality as the basis for Roman law. Descending from Catholic Thomism, to Luther’s “liberty of conscience” during the Reformation and finally to the Enlightenment itself, the doctrine of natural rights dislodged both divine and sovereign right derived from it. Inalienable rights are held to be those fundamental rights that cannot be surrendered in the social contract as they are aspects of personhood independent of positive law derived directly from human nature.
I begin with the quotation from Azo of Bologna because Henry de Bracton’s upturning of Roman law owes much to Azo’s formulation of justice. Bracton, an English jurist living in the thirteenth century, was strongly influenced by Roman law and in particular Institutes of Justinian I.(1) Bracton was responsible for turning the imperial maxim that “law is the will of the prince” on its head. He argued that the sovereign is subject to the law, and he adapted Azo’s formulation of justice as the basis for law and for all rights derived from it. Bracton’s “De legibus et consuetudinibus Angliae” (“On the laws and customs of England”), published in 1268 a year after his death, was the first systematic explanation of English law that together with another of his works, “Note-Book,” formed the system of case law and pleadings during the medieval period.
Jefferson as a young lawyer read both Bracton and the Elizabethan jurist Edward Coke. Coke himself derived much of his thinking from Bracton along with classical sources, Cicero, the Apostle Paul, Fortescu and St. Germain. As chief justice of the common pleas (1606-1613), he declared not only that the king was subject to law, but also that the acts of Parliament are void if they violated “common right and reason.” Dr. Bonham’s case, presided over by Coke in 1610, was important because it became interpreted in the thirteen colonies as meaning common law was superior to statute. It was used to try to overturn the validity of the Stamp Act of 1635, and later, according to some legal scholars, became the basis for juridical review under the Constitution.
I am not so much concerned to give a history of natural rights or even to discuss important distinctions between natural and legal rights so much as to emphasize the social history or invention of human rights in the eighteenth century and the transformative change in the self-consciousness of citizens of the time. I am also concerned to understand what I call the “force of the declarative” in creating the juridical subject. Lynn Hunt (2007) asks the profound question about the invention of universal human rights in the eighteenth century when several categories of person – women, the poor, blacks – were considered subservient and unequal: how could the idea of universal human rights become thinkable in a world riven with inequalities accepted as a natural state of affairs? How did this revolution in ideas begin and why did the architects of human rights dream of and aspire to create a world of universal equality? Hunt’s social history reveals the ways in which in the eighteenth century people came to see themselves as autonomous beings with rights and were prepared to extend these rights as a matter of concern to others.
Hunt argues that this change in the psychological makeup of people who came to see themselves as autonomous individuals possessing rights rested on a new-found social empathy that derived from the reading of epistolary novels based on the emerging genre of new narrative forms often comprised through personal letters. Hunt (2007: 36) writes, “Courtiers, clergy, military officers and all manner of ordinary people wrote to Rousseau to describe their feelings of a ‘devouring fire,’ their ’emotions upon emotions,’ ‘upheavals upon upheavals,'” (p.36) providing evidence of a new subjectivity that embodied a moral capacity to identify with the plight of others. Rousseau published “Julie or the New Héloïse” (“Julie, ou la nouvelle Héloïse”), an 800-page book and bestseller of the century, in 1761, a year before he wrote both “The Social Contract” and “Émile,” or “On Education.” The original edition was entitled “Lettres de deux amans habitans d’une petite ville au pied des Alpes” (“Letters from two lovers living in a small town at the foot of the Alps”). Rousseau uses the novel form to explore the philosophical character of autonomy and authenticity as moral values (as opposed to moral principles or a moral code).
The juridical construction of the subject prescribing individual rights that came a few short years later with the moral and political force of declarations was socially constructed through a history of empathy generated by Rousseau’s and other epistolary novels of the time that greatly affected the emotions of ordinary people and developed the capacity to identify with others less fortunate and to share their pain and suffering. In essence, as Robert Fine (2010-11) explains, Hunt proposes a cultural theory of human rights based on an historical interpretation of the historical development of sympathy, empathy and a new notion of bodily integrity. These new kinds of cultural experiences were shaped by the emergence of new narrative forms, an emerging public and new reading habits and viewing cultures that eventually made the idea of rights of man appear self-evident.
While strongly influenced by Foucault’s argument that “the self of western individualism was created by new regimes of disciplining the body,” Hunt (2004) in her study of the origins of human rights “focuses on how individual bodies came to be viewed as separate and inviolable, that is, as autonomous” (p. 41) and traces the history of bodily practices in portraiture and notions of legal torture. As she explains, while Foucault does not want to get rid of rights, he associates them with “humanism” that “characterizes in equal measure Marxism, Liberalism, Nazism and Catholicism” such that “Foucault’s notion of discipline offers no way of distinguishing between modern political regimes; democracy, fascism, communism and police-state authoritarianism all participate in the same regulatory regimes of discipline” (p. 42). Hunt’s argument is that these modern regimes “differ in the weight they give to the notion of individual autonomy and its corollary, the rights-possessing person” (p. 42). Using Elias’ work, she attempts to demonstrate the separateness and boundedness of the body and, thus, its individualization and autonomy that permitted and made possible new kinds of emotional experience. Her account of legal torture and the shift from forms of cruel punishment in the mid-Eighteenth century seemed to be influenced by the dignatarian tradition.(2) She makes the powerful argument that penal reform and human rights language become mutually reinforcing in the 1770s and explains how the “notion of a rights-possessing, autonomous, inviolable self became the foundation of democracy as an ideal, even if it was then and is now, an ideal far from actually achieved” (p. 52).
I am interested in the juridical construction of the subject or citizen and the rise of legal consciousness that has strong implications for theories of cosmopolitanism and for theories of citizenship and programs of teacher education based upon it. The Azo-Bracton-Coke-Jefferson natural rights juridical construction of the citizen-subject is given a universal application in the “legal declarationism” of the American and French Declarations and later in the United Nations’ 1948 statement.(3) With heightened significance for war-torn Europe, the Nuremberg war trials formulated a notion of international law based on concepts of “war crimes,” “crimes against humanity” and “crimes against the peace.” Together with the Convention for the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948, this became the basis for international law beyond the level of the sovereign and the state, thus marking a brief return to human rights discourse after WWII that declined in the period of the cold war and flourished thereafter.
Critical legal theory and especially that strand that has fallen under the theory of performatives first articulated by Austin and taken up by Derrida speaks to the legal or juridical construction of the subject – specifically to the way in which the force of the declarative discursively creates the legal subject of rights. This conclusion is not too far from the thesis of Michel Foucault who argues, “The individual, that is, is not the vis-à-vis of power; it is, I believe, one of its prime effects.” This approach goes a long way to provide us with a social theory of right based on the juridical construction of subjectivity and the legal subject. It also reveals what I call the “force of the declarative.” Declarations like manifestoes and policies imply action and often carry a certain moral or political force. Constitutional declarations lay down rights: the Declaration of Independence, the Declaration of the Rights of Man, the Declaration of Human Rights proclaim rights in the language of fundamental moral and legal assertion. They do not explain, describe or argue; rather, they make a statement of law or provide a formal statement of intent. Linguistically, they are related to bills, to resolutions, to treaties, to legislation and to policy. Thus, in a similar way, policies are statements of intent or statement of principles that serve to guide action.
The notion of discourse as action and the force of the declarative considered in relation to human rights provide us with a useful map of discursive links that illustrates connections between declarations of human rights and their development in legislation, policy and practice. Human rights discourses are “governed” by declarations that define the conceptual boundaries and contours of accepted international use. In exploring this notion and its links to policies, I argue that declarations serve as master discourses (concepts and narratives) that reference or index the current consensus and legitimacy of concepts and values that take on legal and political force in state and provincial policies. As Jacques Derrida (2002) argues, it is not the people who create the Declaration, but the Declaration that creates the people.
Why is this important to me personally at this moment in history? First, we need to be aware how we got here to understand both how to avoid going where we do not want to and how to direct ourselves on a path toward greater real equality and justice. Second, the discursive formation of rights indicates their historic creation in relation to the times and a sense of agency in the construction of law and subjectivities. Today, more than ever before, we need a set of rights to education and knowledge anchored in a concept of equality as a buttress to an emerging global system of intellectual property rights.
Derrida, J. (2002) “Declarations of Independence,” in Negotiations: Interventions and Interviews, 1971-2001, Stanford: Stanford University Press: 46 – 54.
Fine, Robert (2003) “Kant’s Theory of Cosmopolitanism and Hegel’s Critique,” Philosophy Social Criticism 2003, 29: 609.
Hunt, Lynn (2004) “The 18th-Century Body and the Origins of Human Rights,” Diogenes 203: 41-56.
Hunt, Lynn (2007) Inventing Human Rights. New York and London: W. W. Norton & Company.
1. Justinian I was emperor of Byzantine, Rome’s Eastern Empire, from 527 to 565, and responsible for the codification of Roman law. He established a commission of experts that updated the “Codex Theodosianus” in 534. The “Codex” was originally issued in 438 and contained some 4,562 laws from the reign of Hadrian (117-138). More importantly, Justinian I requested the commission collect and edit the most important writings on jurisprudence issued in 533 as the “Digestum” or “Pandectae.” The “Institutes” (“Institutiones”) was a handbook for law students, and the “Novellae” was the collection of new laws. Together, these works formed what became known as the Corpus juris civilis (“the corpus of civil law”) that was the inspiration and basis for most European legal systems after the twelve century.
2. Hunt records the Calas case in France (1761-5) and the publication of Cesare Beccaria’s “Of Crimes and Punishments” in 1764 as important events shaping public opinion. She writes, “At the same time (1762-3), the notion of droits de l’homme [rights of man] made its first appearance in the French language, due, it seems, to the rapidly growing influence of Rousseau” (p.46). As she explains, Marc-Antoine Calas was murdered by his father to prevent his conversion to Catholicism, and his father was sentenced to death by breaking on the wheel. His case was taken up by Voltaire and helped abolish judicial torture. Beccaria (1738-94) was an Italian jurist and philosopher who condemned torture and whose work formed the basis of modern penal theory.
3. Youssef K. El-Hag (2004) provides a compelling account of discursive forces in the creation of the Universal Declaration of Human Rights (UDHR), blending elements of a French-Continental discourse that emphasized “equality” and solidarity” rooted in a rationalistic humanism and an Anglo-American discourse that overemphasized individualism and private enterprise as the expense of the social. The UDHR under John Humphrey took both traditions to found them in a concept of the inherent dignity of the human person, inherited from the modem dignitarian tradition of Continental Europe rather than the libertarian tradition. It was Charles Malik, the Lebanese philosopher and diplomat, “who was the staunchest proponent of this dignitarian philosophy” that was neither collectivist nor radically individualist. (p. 7)
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