I compiled this collection of articles on human rights on the suggestion and with the assistance of Luigi Bonanate and Michelangelo Bovero. I have written on this subject over a period of many years, and believe these to be the most important of my essays. The whole question is closely related to the issues of peace and democracy, to which I have devoted the bulk of my political writings. The recognition and protection of human rights are the foundations of modern democratic constitutions. Peace is, in turn, the precondition for the recognition and effective protection of human rights within individual states and within the international system. Equally, the democratization of the international system, which is the only way to achieve the ideal of ‘perpetual peace’ in the sense that Kant attributed to the expression, cannot move ahead without the gradual extension of this recognition and protection of human rights at a supranational level. Human rights, democracy and peace are the three essential components of the same historic movement: if human rights are not recognized and protected, there is no democracy, and without democracy, the minimal conditions for a peaceful resolution of conflicts do not exist. In other words, democracy is a society of citizens, and subjects become citizens when they are recognized as having certain fundamental rights. There will be stable peace, a peace which does not have war as its alternative, only when there are citizens not of this or that particular state, but of the world.

I first wrote on this subject in 1951, following a lecture on the Universal Declaration of Human Rights held in Turin on 4 May, at the invitation of the officers’ training school.¹ On rereading it after all these years, I find that it contains, albeit in outline only, three theories which I have always continued to hold:

1. Natural rights are historic rights.
2. They came into existence at the beginning of the modern era, together with an individualistic perception of society.
3. They are one of the principal indicators of progress.

The first essay in this collection was one of the introductory lectures to a conference discussing the foundations of human rights held in L’Aquila in September 1964, and organized by the International Institute of Philosophy under the chairmanship of Guido Calogero (the other lecture was given by Perelman). The essay confirmed and analysed the historicist theory, which is my basis for disputing not only the legitimacy but also the practicality of the quest for an absolute principle.

This is followed by ‘Human Rights Now and in the Future’, the text for a lecture I gave in Turin in December of 1967 for the national conference on human rights held by the Società ltaliana per l’Organizzazione Internazionale, on the twentieth anniversary of the Universal Declaration. Here, I illustrate the major developments in the history of human rights, from their proclamation to their implementation, and from their implementation within individual states to their implementation within the international system, a process which has only just begun. I then take up the historicist theme, and base my argument on the further expansion of human rights.

The third essay, ‘The Age of Rights’, which gives its title to the whole collection, is a speech which I gave under another title at the University of Madrid in September 1987, at the invitation of Professor Gregorio Peces-Barba Martinez, the director of the Instituto de Derechos Humanos in Madrid. As on previous occasions, I take up the historical and also the philosophical significance of the reversal of the relationship between the state and the citizen, which typifies the formation of the modern state. The emphasis has moved from the duties incumbent on a subject to the rights a citizen can demand. Politics are no longer viewed primarily from the sovereign’s point of view, but more from that of the citizen, which reflects the success of the individualistic concept of society over the traditional perception of it as an organic whole. For the first time, I demonstrated how the expansion of human rights occurred, moving from an abstraction of the individual, through a gradual differentiation, recognition and protection of needs and interests, to a more concrete concept.

I presented a further and for the moment final reformulation of the historicist arguments in my next essay ‘Human Rights and Society’, which I wrote as an introductory report for the international conference on ‘The Sociology of Rights’, held in Bologna at the end of May 1988. It discusses some general problems on the theory and history of human rights. I devote a few pages to the anguished theoretical debate on the concept of law applied to human rights, and then return to it a little later in the book.

Part II contains three lectures on human rights and the French Revolution. The first was given on 14 December 1988 in Rome for the inauguration of the new Library of the Chamber of Deputies at the invitation of the speaker, Nilde Jotti. I gave the second lecture in September of 1989 at the Fondazione Giorgio Cini in Venice, to open a course on the French Revolution, and the third lecture when I was awarded an honorary degree at Bologna University on 6 April 1989. This last lecture took Kant’s philosophical works on law and history as its starting point, and finished by emphasizing Kant’s theory of a universal law of nature as the conclusion to the debate on human rights so far, but also leading towards further considerations.²

Part III contains two pieces on the death penalty. The first was written for the Fourth National AGM of Amnesty International in Rimini in April of 1981, and the second for the international conference on ‘The Death Penalty in the World’, held in Bologna in October of 1982.³

These writings discuss problems which are both historical and theoretical. I argue that historically the affirmation of human rights derives from a radical inversion of the political relationship between the state and the citizen, or the sovereign and the subject. This relationship is increasingly seen in terms of the rights of citizens who are no longer merely subjects, while the sovereign’s powers decline in line with a more individualistic concept of society.⁴ According to this new perception, in order to understand society one has to start from its base and the individuals that make it up. This runs counter to the traditional organic concept of society as a whole which takes priority over its individual members. The inverted perspective was principally induced by the religious wars at the beginning of the modern era, and has since become an irreversible process. That experience gave rise to the right to resist oppression, which presupposes a primary and more substantial right: the right of each individual not to be oppressed and to enjoy a few fundamental liberties. These liberties are fundamental because they are natural, and they are natural because they do not depend on the consent of the sovereign. The most fundamental of all these liberties is religious freedom.

This reversal is closely connected to the affirmation of what I have defined as the natural law model, as opposed to its eternal adversary, the Aristotelian model, which is always reappearing and has never quite been defeated.⁵ Although there have been many setbacks, the individualistic concept of society has made slow but steady progress from the recognition of a citizen’s rights within a single state to the recognition of a citizen’s rights within the world, as was first announced in the Universal Declaration of Human Rights. The question has moved from the realm of each state’s individual law, through laws established between states, towards a cosmopolitan right, to use Kant’s expression (his contribution to legal theory has not yet been fully recognized).

An authoritative internationalist in a recent work on human rights wrote: ‘The Declaration has favoured the emergence of the individual in an arena which was previously reserved exclusively for heads of state, even though this presence is still weak, tenuous and hesitant. It has started an irreversible process, which we should all see as a cause for celebration.’⁶

My theoretical approach has always been and continues to be, in the light of new arguments, that human rights however fundamental are historical rights and therefore arise from specific conditions characterized by the embattled defence of new freedoms against old powers. They are established gradually, not all at the same time, and not for ever.⁷ It would appear that philosophers are asked to pass sentence on the fundamental nature of human rights, and even to demonstrate that they are absolute, inevitable and incontrovertible, but the question should not be posed in these terms.⁸ Religious freedom resulted from the religious wars, civil liberties from the parliamentarian struggles against absolutism, and political and social freedoms from the birth, growth and experience of movements representing workers, landless peasants and smallholders. The poor demand from the authorities not only recognition of personal freedom and negative freedoms, but also protection against unemployment, basic education to overcome illiteracy, and gradually further forms of welfare for sickness and old age – all needs which the wealthy can provide for themselves.

Next to this so-called second generation of rights which concern social questions, there is now emerging a third generation of rights which is still too vague and heterogeneous for an exact definition.⁹ The most important of these is being demanded by the ecological movements: the right to live in an unpolluted environment. But there are already signs of what I could only call the fourth generation of rights, which concern the increasingly disturbing results of biological research and the ability to manipulate an individual’s genetic identity.¹⁰ It is a question of the limits which can be placed on this imminent future manipulation, as it moves from the realm of probability into that of reality. This is yet another proof, if such were needed, that rights do not originate together. They come into existence, when their existence is either essential or possible. They arise from the increasing power of one man over another, the inevitable consequence of technical progress which increases man’s ability to dominate nature and other men. This progress either creates new threats to individual freedom, or allows new remedies for mass deprivation. The threats are countered with demands for limitations on power, and the remedies require protective intervention by that same power. The former relate to the rights to enjoy freedoms, or to non-intervention by the state, and the latter relate to social rights, or rights to positive intervention by the state. Although the demands for rights can be categorized chronologically in different stages or generations, they have only two types of relationship to the constituted powers: they either restrict their ability to do harm or encourage their ability to do good. Rights of the third and fourth generation can be of either type.

In one of my essays, ‘Human Rights and Society’, (this volume, chapter 4), I demonstrate the proliferation of demands for new forms of recognition and protection, as the considerations of abstract man developed into those of man in the various stages of life, and this proliferation has met with some opposition. The third-generation rights, such as the right to live in an unpolluted environment, would have been unimaginable when the second-generation rights were being put forward, just as second-generation rights like the right to education and welfare would have been inconceivable when the first seventeenth-century declarations were made. Specific demands are created in response to specific needs. New needs are created by changes in social conditions, and when technical developments make it possible to satisfy them. Talk of natural, fundamental, inalienable or inviolable rights may represent a persuasive formula to back a demand in a political publication, but it has no theoretical value, and is therefore completely irrelevant to human rights theory.

The debate over the meaning of ‘rights’ in the expression ‘human rights’ has been protracted and confused.¹¹ Confusion has been further increased by more frequent links between Anglo-Saxon lawyers and those of a continental tradition and culture. They often use different words to say the same things, but occasionally think they are saying different things when they are using the same words. Continental legal terminology has traditionally distinguished between ‘natural rights’ and ‘positive rights’. Britain and the United States – principally under the influence of Dworkin, I believe – have provided us with the distinction between ‘moral rights’ and ‘legal rights’, which cannot be translated into Italian and, what is more, is incomprehensible to a tradition in which law and morality are two clearly distinct spheres of practical life. In Italian the expressions ‘legal rights’ or ‘juridical rights’ sound tautological, while the expression ‘moral rights’ sounds contradictory. I have no doubt that a French jurist would be equally reluctant to speak of droits moraux and a German of moralische Rechte. The only way to avoid giving up all hope of understanding one another is to consider to what extent the two distinctions are comparable. Thus ‘moral rights’ as against ‘legal rights’ belongs to the same domain as ‘natural rights’ as against ‘positive rights’. In both cases, it is a distinction between two different normative systems, while the criterion for the distinction differs. The distinction between ‘moral rights’ and ‘legal rights’ is based on their principles, and the distinction between ‘moral rights’ and ‘legal rights’ is based on their origins. In all four cases, however, the word ‘right’ in the sense of a subjective right (a superfluous specification in English, because ‘right’ can only mean ‘subjective right’), refers to a normative system, whether it is called ‘moral’, ‘natural’, ‘legal’ or ‘positive’. Just as natural rights would be inconceivable without a system of natural laws, it would be equally impossible to understand ‘moral rights’ without reference to a set or system of laws which one could define as moral, even though it is never clear what their actual status is (the status of natural laws is equally unclear).

I agree with those who claim that ‘rights’ are a deontic entity, which have a precise meaning only in normative language. There is no right without obligation, and there is neither right nor obligation without behavioural norms. The uncommon expression ‘moral rights’ becomes less irksome if it is related to the very common expression ‘moral obligations’. The old objection that rights cannot be given without obligations, but obligations can be imposed without rights, arises from a confusion between two different normative systems. Of course one cannot demand that each moral obligation has a corresponding legal right, because a moral right can only correspond to a moral obligation. The much-quoted but misleading example that the moral obligation to give alms does not establish the right to beg, only demonstrates that a moral obligation does not establish a legal obligation.

The same could perhaps be said of moral rights. What could the expression ‘moral right’ mean if not a right corresponding to a moral obligation? What jurists might consider to be a jus imperfectum could be jus perfecturn from a moral point of view. I know very well that a tradition going back over a thousand years has accustomed us to a use of the term jus which is restricted to a normative system which is more binding than all the other moral and social systems, but when the notion of ‘moral right’ is introduced, the corresponding ‘moral obligation’ is necessarily introduced along with it. If I have a moral right in relation to someone, this means that someone has a moral obligation to me. Moral language is not obliged to use the deontic categories of right and obligation, which are more appropriate to legal language, but from the moment it does use them, the establishment of a right implies the affirmation of an obligation, and vice versa. Whether the establishment of a right precedes an obligation or follows it, is a matter of pure historical accident. For example, there are various debates today about our current obligations to future generations, but the question could be considered from the standpoint of future generations’ rights from us. As far as the substance of the problem is concerned, it is a matter of complete indifference whether you start from the obligation of the former or the rights of the latter. Does posterity have rights in relation to us, because we have obligations to them, or vice versa? If you pose the question in these terms, it is immediately clear that the logic of the terminology demonstrates the complete absence of any problem.

In spite of countless attempts to come up with a definitive analysis, the terminology for rights remains very ambiguous, lacking in rigour, and is often used rhetorically. There is no rule against using the same term for rights which have only been proclaimed, however renowned the declaration, as for rights actually protected by a judicial system founded on constitutional principles with impartial judges whose decisions have various forms of executive power. There is, however, a great deal of difference between the two! Even the greater part of the social rights, the so-called rights of the second generation, which exhibit such lofty intentions in national and international declarations, have remained dead letters, and this is all the more true of the third- and fourth-generation rights. The only thing we can establish so far is that they are the expressions of ideals aspired to, and the title of ‘rights’ serves only to give them an aura of nobility. To proclaim the right of all people to live in an environment free from pollution in whatever part of the world they live (human rights are by their very nature universal) does not mean anything other than an aspiration that future legislation will impose limitations on the use of pollutants. It is one thing to proclaim this right, and entirely another to enjoy its fruits. The language used in connection with rights undoubtedly has a considerable practical application, which is to reinforce the demands by movements on behalf of themselves and others for the satisfaction of new material and moral needs, but becomes misleading if it obscures the difference between a right which is being campaigned for and a right which is recognized and protected. Otherwise, one could not explain the contradiction between those writings which celebrate this age of rights,¹² and those which demonstrate the mass of people to be ‘without rights’.¹³ The former only discuss the rights proclaimed in international courts and conferences, and the latter discuss the rights which the great majority of humankind do not enjoy de facto (even though they are solemnly and repeatedly proclaimed).

Norberto Bobbio
Turin, October 1990