Is There a “Modern” Natural Law Theory? Notes on the History of Human Rights

Historians of human rights would do well to clarify, or simply to recognize, which aspect of human rights they are writing about, since the field covers such a wide array of subjects. Samuel Moyn, for instance, is often read as making arguments about the language or content of human rights, when he has claimed only to be addressing the history of practices.1 Conversely, studies that trace human rights discourse back to antiquity mostly sidestep analyses of practices and tend to focus on far more general notions of a “higher law.”2 When Lynn Hunt situates the “invention of human rights” in the eighteenth century, she is primarily telling a story about (1) language: the expression “human rights,” or at least, “droits de l’homme,” dates back to this time; (2) culture, with the importance of sentimental novels; and (3) foundations: it was at this time, she claims, that empathy became a source of rights.3 By contrast, Jenny Martinez, in her history of slave-trade trials, calls attention to the role of institutional legal practices.4 These are not necessarily incompatible histories, since they do not always address the same objects. But they each pull the blanket of human rights history in a particular direction, leaving other aspects out in the cold. One can identify at least eight different topics that come under the general heading of human rights:

Aspect      Example

  1. notions appeals to a “higher” law; emergence of the idea of “human rights”

  2. language when does “rights talk” emerge; more specifically, when do writers appeal to “human rights”?

  3. culture in what form/genre are rights expressed? What other cultural currents affect the reception of rights?

  4. concepts objective right/subjective rights

  5. content when do specific rights, such as “freedom of movement,” become established as rights?5 When does “happiness” become a human right?

  6. foundations what are the different justifications for rights (e.g., divine law, the law of nature, or “inherent dignity”)?

  7. practices how do people claim rights, when were institutions put into place (e.g., tribunals, treaties, NGOs)?

  8. institutions what role do commissions, diplomats, and international organizations play in formulating and implementing human rights regimes?6

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