Human Rights. Michael Freeman

the ground of religion, and that consequently everyone should be an equal citizen in a secular state. A few radicals, led by Mary Wollstonecraft, argued for the natural rights of women.

The concept of natural rights was pervasive in eighteenth-century America. Americans linked the defence of religious liberty with the struggle for political freedom. American perceptions of the tendency of the British government towards tyranny and the fact that they were not represented in that government made it easier to justify resistance. Although Locke was only one among many influences on the American revolutionaries, the American Declaration of Independence (1776) expressed Lockean ideas:

      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 – that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.

      The Virginia Declaration of Rights included specific liberties that were to be protected from state interference, including freedom of the press, the free exercise of religion and the right not to be deprived of freedom except by due process of law. In 1791 the Bill of Rights was enacted as a set of amendments to the US Constitution, and included rights to freedom of religion, the press, expression and assembly, protection against unreasonable search and seizure, the right not to incriminate oneself, and the right to due process of law. These rights were based on historical precedents, the rights of Englishmen, but were justified by appeal to natural rights grounded in the laws of God. Notwithstanding the reference to God, however, the Declaration of Independence almost secularized the concept of natural rights. The Americans were also strongly constitutionalist, believing that the Constitution, with its separation of powers, was the foundation of liberty. The American conception of natural rights at the time of the Revolution did not include the rights of women and was generally considered compatible with the institution of slavery. It also offered little protection for the native peoples of the country (Bailyn 1992).

When the French Revolution broke out in 1789, the newly formed National Assembly proclaimed the Declaration of the Rights of Man and the Citizen ‘in the presence and under the auspices of the Supreme Being’ in order to lay down the principles upon which the new Constitution of France was to be founded. The Declaration affirmed the rights of man to be ‘natural, inalienable and sacred’ and that their preservation was the aim of every political association. These rights were those of liberty, property, security and resistance to oppression. It affirmed equality before the law, freedom from arbitrary arrest, the presumption of innocence, freedom of expression and religion, the general freedom to do anything that did not harm others, and the right to property. The rights that it declared were qualified repeatedly by restrictions and conditions, and made subject to the rule of law. This ambivalence between individual natural rights and the requirements of social order reflected deep ideological differences among the revolutionaries. On 8 March 1790 the deputies voted to exclude France’s colonies from the Constitution and therefore from the Declaration of Rights (Baker 1994: 192–3; Hunt 2007: 131, 161). Article 3 of the Declaration stated that the basis of all sovereignty lay in the nation, thereby creating a mix of revolution, rights and nationalism that would cause problems for the theory and practice of human rights up to the present day.

      The French Declaration of Rights was an act of revolutionary power carried out in the name of the popular will. The revolutionary government faced many practical problems that threatened the stability of the new order. However, the degeneration of the Revolution from the Declaration of the Rights of Man to the reign of terror had theoretical as well as practical sources. In the face of serious practical challenges, the ideological mixture of individual natural rights, popular sovereignty and commitment to the public good was insufficient to protect any of these values.

The ideology of the French Revolution was expressed in egalitarian terms. The theoretical concept of equal rights had, however, to be implemented in a society in which various forms of inequality existed. Yet in three respects the French Revolution was more egalitarian than the American. During the Revolution economic and social rights – such as those to work, education and social security – were proclaimed. The question of the rights of women was raised, especially by Olympe de Gouges, who, in 1791, published a Declaration of the Rights of Woman and the Citizen. The demand for human and civil rights for women was, however, defeated in the National Assembly, and Olympe de Gouges was guillotined in 1793. The idea of women’s rights was suppressed. The revolutionaries also abolished slavery, which Napoleon soon restored.

      The secularization of the concept of natural rights that gradually took place during the eighteenth century created an important philosophical problem. The principles of morality and politics had to be derived from nature by reason. Late eighteenth-century secular natural-rights thinkers assumed that this could be done, but their arguments were often weak. Advocates of natural rights in the late eighteenth century tended to assert these rights without much attention to foundations or arguments. Critics of natural rights began to mock the fondness of their advocates for declarations and their lack of arguments. Attempts to derive natural rights from a cross-cultural consensus were undermined by evidence that no such consensus existed. In the late eighteenth century, therefore, the concept of natural rights enjoyed a practical triumph in the American Revolution but rested on insecure theoretical foundations.

      Immanuel Kant is often considered the most important eighteenth-century philosopher for the development of human rights. The supreme principle of his moral philosophy was the categorical imperative. One version of this required everyone to act so that they treated humanity in every person as an end, never merely as a means.

      Kant held that there was only one innate right: the right to freedom. There were acquired rights to property, which were provisional. Freedom was not secure in the state of nature, so there was an obligation to enter civil society, where freedom could be secure only under a republican constitution by which the state created legal rights and duties. The state could not make people moral, because morality required appropriate inner motives, but it could regulate external conduct by coercion. The only legitimate use of coercion was to secure freedom; it was never justified to promote happiness or meet needs. Kant never made clear what ‘the innate right of freedom’ entailed, but it has been interpreted to entail the usual liberal freedoms (Sangiovanni 2015).

John Simmons suggests that Kant’s rights were similar to human rights. Others maintain that Kant had no theory of human rights, although we might derive human rights from his theory. Kant praised the Rights of Man proclaimed in the French Revolution but insisted that there was no right to rebel against tyranny (Simmons 2001; Sangiovanni 2015).

      In Kant’s republic each citizen would have the right to vote for representatives. Not everyone would be a citizen, however. Those who were dependent on others – women, servants and labourers – would be subject to their masters, and therefore would not vote for the public good. Kant also thought that women lacked the ‘cognitive power’ necessary to be active citizens. Denial of the right to vote was not deprivation of freedom because everyone would be protected by the rule of law. Some of Kant’s followers believed that his philosophy should support votes for women. At that time, however, even the participation of all men in politics was associated with the radicals of the French Revolution. Kant was a classical republican who saw democracy as a threat to the rule of law and freedom. Others thought that the principle of self-government required democracy (Maliks 2014).

      There was a natural right to acquire property, but this was provisional. In the civil condition, property rights depended on law. There was no natural right to subsistence, so the needy had no right to assistance from the state. Ernest Weinrib argued that the Kantian state had a duty to aid the poor on two grounds: 1) it might be necessary to maintain order; 2) the authority of the state depended on a social contract by which all could be taken to agree to the law (Weinrib 2002–3). James Penner counters that the only purpose of the state was to protect freedom. Kant had no solution to the problem that the poor might effectively be excluded from the benefits of society (Penner 2010). Arthur Ripstein thinks that Kantianism permits a range of public services – such as education