2007-08-25. Denna text är utdrag ur manuskriptet till min kommande bok The Many-Splendored Society, en strukturerad sammanfattning som jag gör på äldre dagar på engelska av mina sociologiska tankar, mest för amerikansk publik och ofta i samma ord som jag tidigare publicerat dem. Nedanstående kommer från ställen i texten som rör mänskliga rättigheter.
Från 20 år i USA där jag ofta i min undervisning jämfört amerikansk och europeisk samhällsvetenskap hade jag ett intellektuellt baggage som gjorde bekantskapen med Gustaf Petrén och hans idéer i Rättsfonden och Medborgarrättsrörelsen spännande. Här var en man som kombinerat medborgarrättens teori och praktik och som kommit längre i detta än någon annan jag kände till. Jag blev glad när han kallade mig att delta i Rättsfondens styrelse. Under tiden där (1989-2001) uppmärksammade jag skolans och moralens problem – de tillhör också fondens mandat – och överlät det juridiska till de eminenta jurister som utgjorde styrelsens majoritet. I The Many-Splendored Society har jag inte sådana hämningar.

© Hans L Zetterberg

 

Hans L Zetterberg

Talking about Rights

Vocabularies of Rights

In verbal exchanges inside human encounters vocabularies of rights develop. There is more in this that immediately meet eye and ear, so we must be pedantic in dealing with this topic. We think that we know what happens in encounters because we participate in them every day. In fact, real analytical knowledge of exchanges in encounters escapes most people. For example, many bright American law students have flunked the following analysis of the rights that are established in every-day encounters.

Let us look at an encounter between an immigrant from a country with a non-English mother tongue (Ego) and a teacher of English (Alter). On the left side we spell out the content of the rights involved and on the right we note the formal properties.

Immigrant: Please teach me English.
Teacher: Yes, I am an English teacher. 		Ego: I have a claim that Alter does X.
Alter: I have a duty to do X.
Immigrant:  I can choose you or someone else to teach me English.
Teacher: Yes, you don't have to learn English from me.		 Ego: I am at liberty do or not to do X.

Alter: I have no claim that Ego
does X.
Immigrant: I can use the English you teach me any way I want — to find a mate, to get a job, to worship, to get a degree, even to be an English teacher like you, or whatever — except to insult or deceive others.
Teacher:  I do not care how you use the English I teach you. 		Ego: I have  power to dispose of X so long I don't violate any rights of others.

Alter: I surrender my claims about any disposition of  X.
Immigrant: I don't want to let you or anyone else change these conditions.
Teacher:  I shall have no possibility to change the way you use the English I teach you.		 Ego: I am immune from any attempt by any Alter to change my powers over X.
Alter: I have no power to change Ego's conditions for disposing of X.

In a seminal paper from 1913 the American jurist Wesley Newcomb Hohfeld sharpened the analysis of vocabularies of rights by separating four rights illustrated in the above dialogue. He summarized his argument in a table.

Hohfeld's Table of Rights

Ego's Right

Alter's Correlate

Opposite

Claim

Duty

No-claim

Liberty

No-claim

Duty

Power

Surrender

No-power

Immunity

No-power

Surrender

Source Hohfeld 1913. Some terms modernized.

A right is a package of four separate expectations in an encounter, i.e. claim, liberty, power, and immunity. The claim is an expectation that others should accept what I do. The liberty is the expectation that I have other options and is not forced to do everything I have a right to do. The power is that I am allowed do it so long it does not violate the rights of others. The immunity is the expectation that others will respect these rights.

When a politician or someone else proclaims that "Everyone has a right to education" or "Everyone has a right to a job" these are statements of the type "I have a dream  that everyone gets an education and a paid job." Dreams have immunity. Such statements become rights only when amended to indicate who has the duty to provide: "Everyone has the right to an education and it is the duty of the state (or church or family or the employer, etc) to provide schools for everyone." 

To say that the state has the duty to give everyone a job presumes that the economy is socialized and that the state can order factories and offices to accept over-manning and its resulting inefficiencies. In non-socialized societies the political rhetoric about jobs for everybody contains no rights, only dreams. Hohfeld helps us separate existing rights from magical ones. A policy of jobs in a free society – not for everybody, which is impossible, but for as many as possible – requires a policy for as many and as big employers as possible.

The brilliance of Hohfeld's table lies not only in its specification of four meanings of right in column one, i.e. claim, liberty, power, and immunity. In the second column he adds a necessary complement of a functioning right, namely a responsible response from others. Only by specifying who have to deliver on a claim do we have a genuine right. Finally, in the third column Hohfeld gives us the opposite to the four rights. This is helpful since it tells what is valid whenever we conclude that no rights are present, a beneficial situation for human freedom. A society in which everything is rights and duties seems unbearably restricted and void of human freedom.

Hohfeld's table is a shell and it does not tell concrete content of rights. The table can be applied to what is immaterial such as knowledge of English or to material things such as acquiring an automobile. The property paradigm is basic:

Driver: Please, sell me a car.
Dealer: Yes, I am a car dealer.		 Ego: I have a claim that Alter does X.
Alter: I have a duty to do X.
Driver: I can choose you or someone else to sell me a car.
Dealer: Yes, you don't have to buy a car from me.		 Ego: I am at liberty do or not to do X.

Alter: I have no claim that Ego
does X.
Driver: I can use the car you sell me any way I want. I may drive the car, let someone else drive it, rent it out for money, sell it, give it a way, destroy it. I may use it any way I want except recklessly against any other on the road since that would violate the latter's claim to be safe from such attacks.
Dealer:  I do not care how you use the car I sell you.		 Ego: I have  power to dispose of X so long I don't violate any rights of others.

Alter: I surrender my claims about any disposition of  X.
Driver: I don't want to allow you or anyone else to change these conditions.
Dealer: I shall have no possibility to change the way you use the car I sell you.		 Ego: I am immune from any attempt by any Alter to change my powers over X.
Alter: I have no power to change Ego's conditions for disposing of X.

As we see, the above illustrates a conventional property right. Such rights are held by collectives or individuals.

Note that "property right" is not a unitary concept. The property right also includes a series of separate functions, i.e. to personally use or consume the property, lend it to others for pay or for free, use it as a collateral for a loan, give it away to anyone, sell it, or destroy it. A seller on a market may restrict the buyer's use of these functions until the property is fully paid.

The fact that property rights refer to a series of separate functions means that governments can enter restrictions on private property by other means than expropriating it. For example, it can control the housing market in a city by a series of measures such as rent control, rationings of available apartment, taxes on sales of apartments and buildings, requirement to let a welfare agency select residents to prevent discriminations, subsidize public housing so that building apartments by private investors become unprofitable. Such draining of property rights is a common in the political movement of social democracy. It lets the owner keep his name on the title of his property but takes over or restricts some (or sometimes all) property functions. This practice is separate only in degree, not in kind, from communism that lets the state take over all aspects of property and prohibits all private exercise of the different property functions.

The rights that develop in most encounters include rights to life and self-defense against beasts and aggressive enemies. Rights to collective territorial property are known in hunting and gathering societies. Right to a common territorial ground, "commons," are also frequent in agricultural societies with cattle. In the latter societies some individual property, at least of agricultural products, are established. Trading societies abound with private properties, including slaves. In today’s societies you have right to your own body and its free movements. An exception is Muslim societies where female bodies are owned in the first place by their fathers, and then by uncles, brothers, and after marriage by their husbands. In these societies women's movements in public places are also restricted. The legislation in an increasing number of countries that gives pregnant women the sole decision about having an abortion is a recent extension of the right to own one's body. In early stages of pregnancy the fetus is seen as a tissue of the woman's body, at best a tissue handled with some respect and restrictions.

In civilized encounters the defining right is free speech.

There is a tendency in these theories to consider rights as once and for all given, while the empirical evidence is that rights emerge (and sometimes disappear) as history marches on. Taking a long view it is apparent that the catalogues billed as "universal rights" may be dated and local. For example, the United Nations catalogue from 1946 includes a right to vacation, an amenity of an industrial era and its particular way to organize work. This was already in 1946 irrelevant to most of the world's farmers. It is also irrelevant for the self-employed and free-lancers and others with erratic working schemes that have grown more common since 1946 in various age groups in advanced societies.

Vocabularies of Jurisprudence

All medieval European universities had faculties of law, the leading one being at the University of Salamanca in Spain, Bologna in Italy, and University of Paris in France. These law schools engaged in an in-depth exploration and a great systematization of the Roman heritage of legislation. Legal scholars, theologians and philosophers also pursued theories of laws in the service of a higher justice, either grounded in divine revelations or in the very creation of human nature. And laymen were told to think of law as a tool of fairness and justice that punished evil people and left good people in peace.

The medieval giant of learning, Thomas Aquinas, held that God had given the world and mankind two sets of laws. One was composed of the eternal laws of nature that were implanted at Creation. The other constituted laws that were given by God at later times. At the time of the Old Testament mankind received the Ten Commandments, and at the time of the New Testament the Golden Rule that man should love his neighbor as himself and that everything he wishes that others do unto him he should do unto them.

Conceptions of a natural and God-given judicial system are a leading theme in the West's history of ideas. This theme was explored with great acuity and learning by Aristotle, Aquinas, Hobbes, Locke, Kant and many others. Legislation inspired by natural law lives on in our days, in large measure because of Montesquieu’s great influence on modern constitutions.

In 1958 in Austria, Alfred Verdross published his book Abendländische Rechtsphilsophie, which contains the maxim of modern natural law:

Human dignity is superior to all social order.

Verdross specifies five prescriptions for mankind to realize this basic judgment of value. They are:

§1. A society must acknowledge a sphere in every individual within which he acts as a free and responsible person;
§2. The law must protect and guarantee this personal freedom;
§3. The exercise of public authority must be curtailed;
§4. Such curtailment must be guaranteed by law;
§5. Persons whose dignity has been offended by laws or authorities need not obey the offensive laws or directions.

The ideas of natural law have been questioned during the past centuries by lesser spirits compared to those who developed them. Yet some of them worked in accordance with the scientific method, and could therefore make major discoveries even though they were not all creative geniuses. Philosophers in Cambridge, Uppsala, Oslo and Vienna developed the criticism. They proposed that it was possible to have jurisprudence without elements of natural law. In the United States, Justice Oliver Wendell Holmes (1841-1935) put forth the fundamental idea that the law is that which the courts recognize as law and that the law is synonymous with their verdicts.

A social scientist, like anyone else, can subscribe to this position without relinquishing the right to embrace Verdross' theses and develop them by secular political and moral arguments and means into laws enforced by courts.

Coercive Compliance

A norm is a shared prescription. A norm is coercive if and when some form of violence is prescribed against the violators of the norm. The violence may be any forcible deprivation of "life, liberty, and property," including deprivation of any cardinal value (particularly economic), any rank or privilege, even any basic biological necessity. In these instances you are not merely told a norm that states that you are not to steal from your neighbor. You are fined or jailed if you do it, and often also liable to pay indemnity to your neighbor.

Here we have a two-tier norm system. The first level is a general prescription, "Thou shalt not steal." The second level contains norms instructing some people such as police, judges and jailers to deal with you in prescribed ways using violence if you resist. In law books, you do not often find the explicit text of the first tier but only the second: "those who commit thefts shall be jailed". The first level is presumably understood by those who read the second level.

Rule of law (as opposed to rule of men) involves an additional base level of prescriptions, namely, the norms that guide the creation of laws. The latter are "basic laws" or "constitutions." They may be written or unwritten, or both. Constitutions are any lasting arrangements for making rules. If we accept this broad definition we can agree with Edmund Burke, who maintained that the basic law of a people lies in the history of their institutions, not only in a text they call their constitution. He holds that the real constitution for the United States was not only a paper document from 1787, but also the entire constellation of customs and values that had developed during the two centuries prior to the American Revolution.

Two-level norms enacted according to the basic laws, written or unwritten, become defined as "legal norms." The other norms are simply "social norms," or, if they are anchored in an established ethic, "moral norms." Coercive, non-legal norms are those of a "maffia."

All these distinctions, and several important others, were codified by Hans Kelsen in his pioneering work Reine Rechtslehre (1934). They were actually anticipated in one of his first treatises on law and state from 1911. Late in life he refined them in a new edition of Reine Rechtslehre in 1967. The distinctions are what he rightly calls "scientific." Thus they are void of any assumption that the legal norms are divine or expressions of a higher morality. They are also void of ideas that the legal norms are grounded in some universal human nature, something that would require empirical proof not at hand, or at least, not presently at hand.

A Classification of Norms

It is telling that one of Verdross' teachers in law in Vienna was no one but Kelsen. Verdross' axiom and the five theses he distilled from natural law seems far from Kelsen's pure theory of law. But Verdross felt that they could actually successfully compete to fill Kelsen's formal categories with substantive content.

This possibility is a question of morality and politics. Only its practical successes in morality and politics – efforts of people of good will – can bring the blessings to mankind of the maxim that human dignity and its five corollaries is superior to all social order.

Bringing Morality to Bear on Human Rights

In the nineteenth century many maintained that society would degenerate if a sufficient number of children were not born to the elite. Friedrich Nietzsche held that the process of civilization was turning out to be a victory for the majority, which was composed of weak people, over the minority of perfect, strong people. In the wake of Charles Darwin, biologists focused on the theory that our heritage conceals a dormant potion of cruelty and bestiality that could one day mean the fall of civilization. Had not certain European royal lineages become genetically bankrupt? Criminologists such as Cesare Lombroso explained rising crime rates as a result of increasing atavism, that is, a return in new generations of hidden primitive genetic dispositions. There were many speculations about the demise of civilization: Untergang des Abendlandes was the vignette common to them all. The main and broad consensus among intellectuals that the primary reason for the degeneration was that the lower classes had more children than the middle and upper classes.

When German medical authorities during the Nazi era said that demented and handicapped had "lebensunwertes Leben" (unfulfillable lives) this phrase was both descriptive and evaluative, and also prescriptive for the doctors and paramedics who conducted euthanasia with good conscience.

All these ideas were crazy at the time and remain without ground in our contemporary scientific knowledge. The spread of these ideas among intellectuals of an earlier generation is an object lesson that a wide consensus among them is no guarantee of their accuracy. Nor is the argument legalizing euthanasia acceptable to contemporary juridical reasoning that takes pride in separating descriptions of crimes, judgments of value, and the prescriptions in law.

Gunnar Myrdal and his wife Alva adopted one of the thoughts current at the time as part of their welfare program for nativity, namely large-scale sterilization of the retarded. For some women, this meant they would not be able to have any children at all. In their 1934 book Kris i befolkningsfrågan (Crisis in the Population Question) they wrote:

In certain respects sterilization has a very large impact on society. This is particularly true from the point of view of genetic hygiene; especially since the sterilization of the mentally defective when done to a sufficient extent will lead to a decrease of the frequency of mental deficiency in the population. The sterilizations that are done for social reasons are also very important from the point of view of society since they prevent the birth of children who would otherwise grow up under very unfavorable conditions. From a purely objective point of view, the interests of society and of the individual must coincide in most cases of sterilization on the grounds both of genetic hygiene and social factors, since sterilization is aimed to prevent social misery." (Myrdal & Myrdal 1934, translated by Greta Frankel))

Legal sterilization was carried out in Sweden between 1934 and 1976. More than 60,000 women were sterilized. Most sterilization was done 1948, the year after the introduction of the general governmental child allowance to all mothers with children under 16. Apparently, some women should be physically altered so that they would not be eligible to receive these allowances.

By all accounts, the women's own consent to undergo sterilization was illusory. Today, according to the statutes of the International Court of Justice, compulsory sterilization is considered a crime against humanity. The Swedish state has given financial compensation to survivors from the time when sterilization was allowed.

The main conclusion to be drawn from this period in Swedish history is not that Sweden was conducting Nazi racial policies at the time, nor that the Myrdals misunderstood the position of science at the time, nor that Swedish Social Democracy embraced Social Darwinism. The lasting lesson to be learned from this, as I see it, is that social policies and policies about human rights cannot be conducted exclusively on the basis of the rationalities that exist in the areas of science and body politic. The life area that we call morality – and is promoted by civil society – must also be included in decision-making.

There are varieties of ethics in the life area of morality. An ethics based on social utilitarianism (Jeremy Bentham and John Stuart Mill) might conceivably defend a sterilization program in accordance with the Myrdals' reasoning "to prevent social misery." An ethic based on each person's own value (Immanuel Kant) could not defend a sterilization program that exploits and mutilates people as means for the ends of others. Christian ethics sees a sterilization program as incompatible with the thought that all people are God's children, irrespective of the genes they may carry and the ethnic environment of their formative years.

In any discussion of ethics – for example, in respect to human rights, the family, welfare, or foreign policy – it is not enough to speak of ethics in general; one must specify which ethics one is referring to.

Bringing Human Rights into Law

The formulation by Thomas Jefferson in the Declaration of Independence of July 4, 1776 that the Creator has given all men "certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" have well-known antecedents. John Locke had, at the time of the English revolutions, put forth three rights: "life, liberty, and property," or, "life, liberty, and estate." George Mason, Jefferson's fellow-statesman, had written in the Virginia Declaration of Rights about "the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." Jefferson dropped all references to property. He wrote "pursuit of happiness" and added "among these" to the text, implying that there were others. He apparently took liberties in editing the rights he thought given by God. He also believed that God helps those who help themselves.

In Jefferson's own life there is little doubt that the pursuit of happiness was an umbrella covering his pursuits of money, power, knowledge, and artistic beauty as well as his stately family home. He wanted to live in what we call a many-splendored society. He is particularly known for the statement that "the government governs best which governs least," making full room for all non-political pursuits. Lincoln modified this, into wiser words: the government should do for the people whatever the people cannot do for themselves.

The historical evidence we have accumulated since Jefferson's days is that wide-spread rights for citizens are results of a combination of worldly political struggles and high ethical arguments. There are many theories by philosophers and jurists — for example, Grotius, Locke, Kant, Rousseau, Verdross, Rawls, Nozick — about the derivation of human rights; for a brief review, see Alan Gewirth, Human Rights (1982). No consensus has emerged among scholars about a correct theory of human rights. But the authority of each of these scholars is considerable, and each one undoubtedly has contributed to the degree of belief in universal human right that exists in public opinion in the Western world.

The Western rhetoric and legislation about human rights is faithful and idealistic (wertrational); on this topic fundamentalism is the rule. Here is a significant exception to the main trend discovered by Weber, that recent Western civilization, in contrast to the Eastern civilizations, is predominantly pragmatic (zweckrational). Thus there are no exceptions to Western human rights; it is not something you can be pragmatic about. For example, it wills not due for the United States to just keep terrorists imprisoned at Guantanamo Bay. They must be given the rights of criminals, or the rights of prisoners of war. Since they do not (at least at the time of this writing) have the benefit of an offshore trial system for detainees with full human rights, they should be tried in the United States or in their home countries provided the latter have rule of law and human rights.

A Western jurist or opinionated citizen may openly complain about the lack of human rights in Saudi Arabia or China, or anywhere in the world. Western editorial writers and intellectuals often gripe that their own national leaders are not energetic enough to complain over foreign abuses to human rights when leaders of their nations have diplomatic contacts. The Chinese diplomatic response is usually along these lines: "yes, we know that you Americans and Europeans are interested in human rights. So are we. But we are pragmatic about it in our country." In this way they define the problem as one for the West, not for their own country. In earlier Chinese history, however, the celebrated position was actually the reverse. A well-known message from Confucius states: "The noble man knows what is right; the simple man knows what is favorable."

One should not sweep under the carpet the obvious dissonance between the main stream of pragmatism of the Western world and its fundamentalism about the human rights. It creates a difficulty for human rights intellectuals, at least for some of us who accept pragmatism in all other areas of life. The difficulties for the general public are compounded by the slippery way their politicians talk about rights, using the term as a claim from any special interest, far from the precision of Hohfeld's Table. An important research project in social science would be a study of the degree of stability and development that a society could achieve with a few — a strictly limited number — of fundamentalist backbones of human rights securing the dignity of man and animal, leaving other life areas to pragmatism.

A bitter lesson from the Twentieth Century is that Kelsen's edifice of pure law can be filled with Nazi legislation making, for example, confiscation of Jewish property legal, and making existing legislation unable to stop the procedures of the holocaust. Among other things, the Universal Declaration of Human Rights of the General Assembly of United Nation from 1946 was designed to prevent such possibilities.

Two years later the European Council, a group of democratic states, specified a European Convention for the Protection of Human Rights and Fundamental Freedoms that could be enforced by a European Court of Human Rights that became established in Strasbourg. This court deals only with infringements of human rights by governments, a central theme of Verdross' theses. The court spells out the duty of governments according to a European catalogue of rights. Only when a case has traveled through all national levels of a court system can it be heard in Strasbourg. Thus enforceable rights in the sense of Hohfeld’s Table are created, not only political spuma and bilge.

The European Court of Human Rights is not perfect, but it is shining in comparison with the frequently ineffective and sometimes incompetent, even farcical, treatments of violations of human rights by the agency with the corresponding function in the United Nations.

Civil Disobedience

Civil disobedience is an active, polite, and non-violent process of disobedience to disliked laws. It provides practical actions for persons whose dignity has been offended by laws or authorities and therefore see for themselves a right to disobey the offending law. In short, it is one vigorous way to implement Verdross' fifth thesis that persons whose dignity has been offended by laws or authorities need not obey the offensive laws or directives.

If the civilly disobedient, "the resistors," are caught by the police they refuse to move. They may try to make the violence used by the police during their capture visible to mass media. If drawn into court they get new opportunities for protests and publicity for their cause. The process has been used by movements for independence (India), against laws of racial segregation (American South and South Africa), and against drafts into wars considered unjust (Vietnam). Henry David Thoreau inspired this practice of cancelling legal norms in his 1849 essay Civil Disobedience which presents his reasons for having refused to pay taxes as an act of protest against slavery and against the Mexican-American War.

Civil disobedience is an organized activity that requires knowledge and preparation by the resistors. It is an accepted way to change norms in a modern society, but only if the resistors, if and when caught, are prepared to take the full prescribed consequences of the existing laws they want to have cancelled. They must be psychologically prepared, not only for criminal charges, but for the negative opinions that the law-abiding always give to deviants. However, they may become heroes if their activity ends with the invalidation of the disliked law. An outstanding example is "the mother of the civil rights movement" in the United States, Mrs. Rosa Parks, an African-American seamstress who had been a secretary to the President of NAACP, the National Association for the Advancement of Colored People. On the 1st of December 1955 she was arrested in Montgomery, Alabama for not standing and letting a white bus rider take her seat. Protests lasting eleven month were organized by Dr Martin Luther King, pastor of a local Baptist Church. On November 13, 1956 the US Supreme Court declared that Alabama's state and local laws requiring segregation on buses were illegal, a landmark decision that changed the country.

 

References:

Gewirth, Alan, 1982. Human Rights: Essays on Justification and Applications, University of Chicago Press, Chicago, IL.

Hohfeld, Wesley Newcomb, 1913. "Fundamental Legal Concepts as Applied in the Study of Primitive Law," Yale Law Review, vol 51, pp. 951-66. (Reprinted in many places.)

Kelsen, Hans, 1934. Reine Rechtslehre, Frantz Deiticke, Wien. Revised and enlarged edition 1960 from same publisher. English translation 1967 by Max Knight as Pure Theory of Law, University of California Press, Berkeley, CA.

Alva & Gunnar Myrdal, 1934. Kris i befolkningsfrågan, Bonniers, Stockholm.

Verdross, Alfred, 1958. Abendländische Rechtsphilosophie. Ihre Grundlagen und Hauptprobleme in geschichtlicher Schau, Springer, Wien.