Within historical approaches to questions of natural right, one can approximately distinguish three main tendencies. The first is a whiggish or progressivist tendency to see a gradual development of notions of subjective rights all the way from Ancient Rome until the present day. One main problem with this approach is that it confuses the many examples of subjective natural ius (“right”) to claim or to exercise with a grounding of these same rights in pure individual identity or self-assertion. Equally, it often ignores the correlation of subjective right with conceptions of the enforceability of such right through sovereign political exercise, by projecting backwards a very recent notion of pure “human rights” that are somehow no longer suspended within the aporetic space between the naturally given and the legally enactable.
In a very commendable, detailed, and learned reaction against this tendency, Samuel Moyn has adopted a second approach to rights history which one might describe as “archaeological.” Moyn seeks to disinter different layers of legal time without imagining that he is uncovering the organic roots of what came later. Rather, for his historiography, other conceptions and practices were dumped on top of the older levels, reusing their vocabulary misleadingly to different ends. To begin with Thomas Hobbes and John Locke, rights were primarily about protecting property from arbitrary power, albeit at the price of establishing unqualified state sovereignty; in the revolutionary era, by contrast, rights were linked to the establishment of a state power which aimed to emancipate individuals from customary or social hierarchical control and to engender equality of opportunity. Immediately before and after 1945 rights were radically reconstrued in Christian, natural law based personalist and communitarian terms; in the 1970s they reverted, with a further secularizing twist to a nation-state context, in association with natural liberation struggles; today, in further contrast, rights have become globalized and depoliticized and largely confined to preventing inhuman horrors (such as torture) rather than achieving more widespread social and political liberation. In this way one could see Moyn’s approach as anti-genealogical.
But a third, genealogical approach which I would want to stress at least equally, need not be blind to the instances of rupture and discontinuity. While eschewing any notion of a straightforward progressive development it nevertheless rightly takes note of the ways in which later conceptions of rights would be impossible without the intellectual moves involved in earlier ones and their persistence over a longue durée. Thus, for example, the contemporary thin notion of right as limiting the worst damage is clearly a long term derivative of the Hobbesian founding of politics upon a negatively distilled order that begins with human fear as the prime fact, alongside early modern non-teleological and minimalist conceptions of ethics that have focused on sympathy with our shared human physical condition rather than on controverted claims for ultimate human purpose—which Moyn himself has helped to show.
Another more crucial example of genealogical continuity is the interplay between modern natural right as an intra-state phenomenon and its counterpart in the field of international relations. Historically there ensued from the stoic concern for the cosmopolis, by way of Cicero and much Roman thought, a certain prefiguration of the transition from natural law to natural right. This transition is of new importance in the Renaissance and the eighteenth century and central to arguably the first “liberal theory”—that of Hugo Grotius—and which is not accidentally first focused on international law or the ius gentium (“law of nations”).
It is in this respect significant that Grotius’s non-possessable “law of the sea,” with its corresponding insistence on the right of “first occupancy” of land, preceded Hobbes’s state-founding contract. The latter conveys international anarchy oddly into the very heart of the national state by erecting absolute sovereignty as both the salve of such anarchy and its diversion into a legal monopoly of violence. Thereby the sea starts to irrigate all of landed settlement, in the course of the transition from the Dutch maritime outreach from the continent towards the English liberal reconception of their insularity. And already with Francisco de Vitoria in sixteenth century Spain, the beginnings of a shift in the meaning of natural law and the substitution of willed lex for intrinsically equitable ius are directly connected to a new (both Stoic and humanist influenced) reading of the ius naturale as a whole in terms of the ius gentium. The transition occurs within the context of maritime adventure and encounter with the Indian peoples of South America.
If we fully understand that modern foundational natural rights belongs equally in an international relations context as in a political thought context, we can say that it is, in the first place, a “theory of the shoreline”—and so at once of “free trade” and of liberal imperialist ownership by virtue of supposedly “first acquisition.” In the second place it is an inland application of just the same twofold logic of absolute property bounds mediated by a neutral interval which is the space of legal enforcement. This paradigm is substituted by Grotius and then Hobbes for the relational mediation of things through the id quod iustum est (“that which is just”) of classical tradition.
Thus to over-insist, with Moyn, upon the admitted and admittedly all-crucial co-belonging of private natural right with absolute state sovereignty may be to overlook the aporetic authorization of rights by pre-political nature which is already international and yet the operative enactment of this authorization only by the state.
Equally, it is somewhat wrong to suppose that the revolutionary account of rights, whether in the 1790s or the 1970s, is a simple reversal of the property-based account of right, as Costas Douzimas tends to argue. Rather it is the case that property and revolution are twins. Because the new prime duty of the state is to protect life and property, Hobbes, never mind Locke, claimed that the legitimacy of government lapses if it fails to do so.1 This implies a new individual or mass right to rebellion which is quite different from traditional medieval rights to resist which empowered lesser constitutional bodies to overturn higher ones if they had grossly lapsed in their exercise of responsibility.2
Thus the revolutionary traditions have continued to be fixated on ownership, while demanding a more egalitarian access to it. While, indeed, the non-statist traditions of socialism refused the language of rights in the name of distributive justice and social reciprocity3, welfarist social democracy has been largely concerned with rights as entitlements. Marxism remains focused on the rights-property-revolution triangle insofar as it thinks of a general will as controlling a collective property and suggests that equity means the right of the individual to receive all he needs, matched with the equal collective right of the general will to demand from each such individual the full measure of his means.
This inherited “Marxist liberalism,” still focused on an emancipation of a fantasized nature, and so more in thrall to capitalism and Americanism than it imagines, may be one of the reasons for the current dire decline of the European left. This thrall is arguably reinforced by current post-colonialism, which tends mistakenly to see empire rather than capitalism as the key evil and the key historical factor.
In Moyn’s always stimulating work one can detect a strong adherence to just such “American leftism,” which crucially regards the American rebellion against supposed British colonialism as paradigmatic for all later radicalism. But the evidence might suggest that the American legacy, for all its importantly qualifying republicanism, has tended to promote an ideological liberalism, whereas conservative Canada has actually been helped by its imperial and then Commonwealth connections towards a more balanced social democratic and communitarian reality.
I would therefore tend to invert Moyn’s view as to the intrinsic superiority of the American international as opposed to the European imperial mission, for all the exploitative capitalist horrors of the latter. He tends to overlook the fact its positive aspects involved not just claims to humanitarian missions, but constitutional, legislative and cultural bequests, often qualifying capitalist extremity and including the very possibility of nationhood and modern political governance which remain intensely valued in the global south today. And one could argue that the very worst horrors have been in fact the post-colonial ones, where an overly western model of nation-statehood has been pursued by corrupt local elites in collaboration with post-imperially more unconstrained corporate economic forces, backed by Western governments that have lost the fetters of any paternalist conscience.
In this context it is maybe overly cynical of Moyn to see the recent new concern with torture since the 1970’s as merely our objection to others doing it—for the post-colonial states often resorted to a novel epidemic of torture in order to establish their rule in harsh circumstances. And however much policing the abolition of slavery did indeed help to extend British imperial power, this circumstance need only be viewed cynically if one takes for granted that “empire” is a more sinister formation than the “nation state.” But the latter is equally the result of primary seizure and suppression of diverse populations and sometimes has proved far less hospitable to cultural diversity and international mediation. Such mediation always requires substantive empires or “post-empires”—the formal mediation of an organization like the UN in the name of rights is largely useless.
In this context the problem with the U.S. might be said to be that it is just not naturally imperial enough. Rudyard Kipling and John Buchan were unfortunately wrong to think that the U.S. was the United Kingdom’s natural international successor and in the future British foreign policy should take cognizance of this and recover its independence. Doing so potentially allows it to play a globally pivotal role alongside France in mediating between Europe and former colonial territories, in order to help shape an alternative global network based on economic justice, and a ius gentium newly turned towards natural law concerns with the genuine equity of relations between people rather than the conserving of illusorily absolute and always thereby clashing and unmediable rights. This could overturn the bending by a Grotian-Hobbesian ius gentium of natural law towards natural rights, always covertly founded in either possessive individualism or collective arbitrary power, through the combined anarchic lure of the sea and selfish impounding of terrain.
On this point see Christopher A. Ferrara, Liberty: the God that Failed: Policing the Sacred and Constructing the Secular State from Locke to Obama (Tacoma, WA: Angelico, 2012), 74-79.↩