Many friends of liberal toleration and the rule of law around the world look to the Universal Declaration of Human Rights and Liberties for inspiration, something that true liberals should find both disturbing and a challenge. The first 22 articles are reasonable statements (if sometimes a bit vague) of the principles of a free and democratic political order. From Article 23 on, however, “rights” are asserted that are non-compossible recipes for social conflict and for substituting duties of submission to the state for justiciable rights. As the concluding articles (which were ratified by the USSR and other tyrannies) rather blandly state,
Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
I set out some of the problems with the “rights” asserted after Article 22 in this outline, from a lecture I gave at a conference last year at Cambridge University.
My colleague David Boaz suggested that it might be better to promote, in place of the Universal Declaration the Declaration of the Rights of Man and of the Citizen.
Wow…Art. 30 is pretty much the exact opposite of the Ninth Amendment. And Art. 29(3) implicitly bans agitating against the UN!
Most interesting to me is Article 29(1). How exactly does one define “duties” as part of one’s “rights?”
The UN Declaration would be acceptable if it only consisted of the first sentence of Article 1 (“All human beings are born free and equal in dignity and rights.”) in addition to Article 3, granted that “and property” be added to the end of “Everyone has the right to life, liberty and security of person”. The whole of legitimate rights follow from those. Iâ??m not sure I agree with you in including Article 22 among the “reasonable statements (if sometimes a bit vague) of the principles of a free and democratic political order,” but hopefully you merely gave it the benefit of the doubt due to its extraordinarily, as you said, vague, if not meaningless, language.
As for the French Declaration, the first red flag should be Article 3 (“The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation”). I wonder what gives a “nation” sovereignty and any rights of its own… I’m more in line with, as luck would have it, my own country’s founding document’s assertion that “all men are created equal, that they are endowed by their Creator [or ‘Nature’ if you prefer] with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. â?? That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” The next reason for pause comes two articles later, when it is stated that “Law can only prohibit such actions as are hurtful to society.” Whoa there guys! Sounds like a blank check for tyranny to cash, as many many nonviolent, nonagressive actions can be deemed hurtful to “society” when they in fact harm no individual. I could, but won’t, mention all the faults that I find in the French Declaration, but of special note is Article 11, which starts off well (“Every citizen may, accordingly, speak, write, and print with freedom…”) but immediately takes a sinister turn (“…but shall be responsible for such abuses of this freedom as shall be defined by law.”) So, yeah, you can express yourself freely, just be aware that you might be punished and jailed for it!
Rather than endorse one flawed Declaration over another (I’m referring to the French and UN documents), perhaps a person would be better served tackling John Locke’s “Second Treatise On Government”.
Cheers.
I don’t know how, but I failed to notice the link to your Cambridge lecture when I first read your post. Now that I’m aware of its existence, I saved it to my hard-drive and will give it all deserved attention tomorrow…
More importantly, I hope Wolly is doing well (and Tiggy too!)…
Thanks for your nice remarks (and the thoughtful critique, with which I am in substantial sympathy).
Article 22 of the Universal Declaration is indeed vague and could be glossed as compatible with the first 21, but 23 cannot, so that’s where I started the break. But certainly a reasonable (and no doubt intended) interpretation of 22 is that it marks the transition to the claims in subsequent articles.
The French declaration’s remarks about sovereignty refer to the nation, rather than to a dynasty or a class, so I don’t read it as a statement of the supremacy of the nation as a rights-bearer over the individual person, although the language of sovereignty may imply that. (The sovereign is often interpreted as both the source of law and, consequently, as above the law, as Jean Bodin argues.)
Thanks also for sending your regards to Wolly and Tiggy. They’re right here with me now. Miss Wolly has recovered from her terrible illness quite well. She put back her weight (but is still quite svelte) and is even more energetic and athletic than before She has to get a subcutaneous infusion of liquid (the same as humans get from a drip bag) every other day (to help with her kidney functions) and she HATES it. She knows what it means for me to get out the drip bag and the needles and she tries to tiptoe quietly away. When I get her, she cries and frequently puts up a lot of resistance, both of which are really hard for me to handle. Fortunately, last night she was very brave and accepted the procedure with little complaint, so I got the whole 100 ml into her without a struggle. (I try to explain that it’s just a tiny jab that will hurt for only a second, after which it will be ok, and that no matter what, we’re going to do it, so better to just get it done once and not get jabbed repeatedly, but it’s not easy to explain. She’s very, very smart, but she’s a cat and we have some remaining linguistic and time-horizon barriers to overcome.) I was very proud of her for being so brave last night, though.
Ryan is fully on target with his critiques of the French DRM&C. There’s really nothing in DRMC that defends individual rights in any reasonabl meaning of the term.
Article 3 clearly says all sovereignty rests in the nation, not the individual, and that no “individual may exercise any authority that does not proceed directly from the nation.” Contrast with the American idea that “men [individuals]…are endowed by their creator with certain inalienable rights…” and that “governments deriv[e] their just powers from the consent of the governed…”
Article 4 assures us that individuals are free to do anything suject to the limits that they don’t violate the same rights of others. Fine. But then the dreadful “These limits can only be determined by law.” This is utterly unacceptable. The American idea is that indiviudal rights are “self-evident,” and that “enumeration of certain rights shall not be construed to deny or disparage others retained by the people.” The French notion, that of making rights dependent on law, simply means there are no rights. If one disputes the limits on rights as set by law, on grounds would one appeal? After all the DRMC clearly states “only” by law.
I believe that at that time people clearly understood the difference between a Constitution and Law (something almost no one understands today). Article 4 is a catastrophe, in that light. Reread Ryan’s critique of Article 11. Reread Article 10.
There are many more problems, but the above are fundamental and sufficient to sink this document as a model of anything desirable. Khaled’s critique of the U.N. confusion of duties with rights is also applicable to the utterly confused DRMC. The French Revolution began as something noble, but with this kind of sloppy thinking and faith in the state & the collective (the nation)– as opposed to individual rights — provided the framework for the Terror.
I’m rather astounded that you & Boaz are endorsing the DRM&C Why don’t you promote the principles of American Declaration of Independence and Bill of Rights instead? These are far superior and better reasoned approaches, and very fine statements of the principles of individual liberty.
One more thing: if the words of DRM&C re law are acceptable, would you be willing have the American Bill of Rights amended to read:
Amendment I: There shall be no establishment of religion except as “provided for by law,” or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances “provided their manifestation does not disturb the public order established by law. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.”
Amendment II: The right of the people to keep and bear arms, shall not be infringed, except as “determined by law.”
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people except as “determined by law.”
This is just a straightforward cut & paste of the exceptions and provisos of the French document into the American. The ideas in each are incompatible.
These are important issues and I will get back to them this afternoon or evening. Thank you, Ryan and Charles, for raising them.
One thing about the French DRMC: My understanding of the history is poor, but I have the idea that it was written by Lafayette as a document for the King Louis XVI to sign. If you read it as a sort of contract with the King, one that strips him of “Divine right,” then some of the provisions to which I object make more sense. As an instrumentalist contract designed to constrain the king and thus secure liberty w/o having to have a violent revolution, it seems like a very good document (although it clearly failed).
But if you read it as a statement of basic philosophical principles (which nearly everyone does, and which you and David Boaz seem to be promoting) it’s not good at all, and we can do much better.
I might be all wet on the historical interpretation, but it’s only from that perspective that the DRMC looks reasonable to me.
Charles,
Your interpretation of the significance of the reference to popular sovereignty is indeed spot on. It is akin to “the consent of the governed,” which is also open to terribly illiberal interpretation. The point is that no class of persons, no dynasty, no priestly group has special claims to the exercise of legitimate authority.
Each of the points raised above has both a libertarian/individualist gloss and a statist/collectivist gloss. The exercise of power is legitimated by the common good, not by the claims of a special class. Rights are determined (not created, but defined) by law (note law, and not edicts), which is why a well functioning legal system is so important. We have a right to freedom of speech, but freedom of speech is not always a defense, such as when the speech is a part of a criminal act (e.g., contract murders [“Go and kill Bob and I’ll give you $4,000”] and incitement to murder [standing in front of a person’s house with a mob and urging them to “Kill the XXX”]), which are defined by law.
The founding documents of the United States can also be given libertarian/individualist or statist/collectivist glosses. “Consent of the governed” has been frequently read to entail that if it’s a law, you consented to it, so don’t complain. And think of the “elastic clause” of the Constitution (“all laws necessary and proper”) and the invocations of the “general welfare” in the preamble to the Constitution and in the taxing clause of Article I, Section 8, which have been glossed to confer on the federal government virtually plenary power, or at least the power to do all that is not expressly forbidden in the Constitution, which turns the Constitution on its head (and runs directly counter to Amendments 9 and 10).
The Declaration of the Rights of Man and of the Citizen has a clear libertarian reading and does not grant the vast array of powers-disguised-as-rights specified in the Universal Declaration. Moreover, it’s not likely to be tied by enemies of U.S. foreign policy to those policies. Those strike me as real advantages.
But the reason I mentioned it was precisely to get such useful comments. Thanks!
Thanks Tom.
But I’m not at all convinced. There’s an enormous difference between “shall not be infringed” and “shall not be infringed except as determined by law.”
It’s not just a “gloss.” The American documents both begin by presuming that the individual (and only the individual) has rights, and no other entity does. All other entities have powers, and only those granted to them by individuals…consent of the governed.
I can’t see Article 3 of DRMC is compatible with that at all.
French DRMC is better than the UDHRL, but both are inferior to the American documents (which themselves might be improved). If you, or we, or anyone else is going to be promoting a replacment for UDHRL, why promote an inferior product?