The Thousand-Year View

Human rights are important: on that, everyone agrees. But that’s about the only point of agreement.

A big problem is that people don’t think about what human rights are or where they come from.

Rights are a claim that we can make on other people, either to do something good for us, or to refrain from doing something bad to us.

They can be legal rights, such as those written into a contract. They can be situational rights, such as entry into a club of which we’re members. Or they can be moral rights, such as the pursuit of happiness. Human rights are a fundamental type of moral rights.

But where do human rights come from? How do we know what they are?

On those questions, there are basically two ways of thinking.

The first way is rationalistic. We simply think about things that are nice to have. If they’re important enough, we declare them to be “human rights.” That’s how we come up with ideas like “the right to medical care” and “the right to a living wage.” Those are definitely nice things. If a society can afford to provide them to everyone, and doesn’t impose unacceptable costs on the people who have to pay for them, then it’s perfectly fine to decide that those are human rights.

But the second way is less rationalistic. It’s more grounded in history and custom. Instead of just thinking abstractly about what would be nice for everyone to have, we look at what our own societies have in fact traditionally considered human rights.

The late Supreme Court Justice Antonin Scalia made that point in a 2012 lecture about the U.S. Constitution’s First Amendment. The First Amendment does not, Scalia said, guarantee simply “freedom of speech.” Instead, it says something more specific:

“The First Amendment does not say that government shall not abridge freedom of speech. It says that government shall not abridge ‘the freedom of speech’ — that is, the freedom of speech which was the understood right of Englishmen.”¹

In other words, he wasn’t talking about an abstract right, derived from philosophy: he was talking about a specific right based on history and culture:

“Thus, there are several types of speech unprotected by the First Amendment because the Framing generation never understood them to fall within ‘the freedom of speech’. Libel is one of them. Another is obscenity … incitement to violence and ‘fighting words’ …”²

Those two understandings of human rights neatly parallel the two main reasons for the American Revolution. Some of the colonists thought, with Thomas Jefferson, that they were fighting for abstract rights based on philosophy. Others thought they were fighting to regain the historical “rights of Englishmen” that Parliament and the king had denied to them.

Any society, or any person, can adopt either view of human rights with equal justification. But the historical approach has a practical advantage. If we think our rights are based on custom and tradition in our own society, then we will not be tempted to think that they apply equally well in different societies halfway around the world. We need not “go in search of monsters to destroy,” as President John Quincy Adams warned in 1821.

1. “The Freedom of Speech” in The Essential Scalia, p. 92. New York: Penguin Random House, 2020. ↩︎
2. Ibid. ↩︎