Ben Golder photoBY BEN GOLDER

‘The historiography of human rights is currently in great ferment,’ one of its key protagonists recently suggested. ‘Scarcely a decade ago,’ the Harvard historian and law professor, Samuel Moyn, observed, ‘the field did not exist at all. In the flagship historical journal in the United States, the American Historical Review, not until 1998 was the Universal Declaration of Human Rights of 1948 even mentioned in any article. By a few years later, the history of human rights had become a booming field of inquiry’.

Today there are numerous book-length studies of human rights, and yet no real agreement over where they have come from. In fact (as Moyn’s reference to ‘ferment’ implies) there is great disagreement over the question of the historical origin of human rights. Some historians argue that they date from the dawn of human civilisation. Others suggest that they arose during the Age of Democratic Revolutions at the end of the 18th Century. There are accounts that emphasise the formative role of international law and the anti-slavery movements of the 19th Century and there are accounts that emphasise the role of Third World states and the decolonisation movement of the 20th Century. Yet others suggest that they are a response to the horrors of the Holocaust and World War II. Most recently there are those, such as Moyn, who suggest (for reasons I explain below) that human rights as we know them today are no older than the late 1970s!

Of course, no one can (or should) expect academic historians to agree on such questions and, moreover, history would be an unforgivably dull affair if they did. But the tone of this particular historiographical ferment is distinctly political – and often polemical. The international lawyer Philip Alston has aptly observed that ‘there is a struggle for the soul of the human rights movement, and it is being waged in large part through the proxy of genealogy’. That is to say, narrating the origins of human rights is one way to conceptualise and reconceptualise them. Increasingly, waging a historical debate over when and where human rights emerged is a powerful and very effective political means to define their present content and future possibilities.

Moyn’s own contribution to this debate is a particularly provocative example. (Political philosopher, Seyla Benhabib, described it as ‘critical and jaundiced’, ‘irreverent’ and ‘delegitimizing’.) Moyn suggests that human rights as we understand them today do not stretch back to the French or American Revolutions, or even to the middle of the 20th Century and the Universal Declaration. Rather, they emerge in the late 1970s in response to the failure of left-wing political ideologies such as socialism and communism. According to Moyn, once the dream of revolution had died, the dream of human rights (as a form of global liberalism) could be born. Human rights are the ‘last’ utopia in the sense of occupying the terrain of idealism left vacant by the exhaustion of previous contenders. Human rights are the Stephen Bradbury of political utopias, an unlikely winner at the ‘End of History’.

Moyn’s is a style of history – a genealogy – that emphasises discontinuity, historical contingency and unpredictable change. For him there is nothing necessary or foreordained about the breakthrough of human rights discourse in the 1970s and their exponential rise thereafter. The Last Utopia severs human rights from their long-run origins and challenges the easy assumption that they have always existed in the same form and in the same way. Indeed, at its best, this kind of historical writing prompts us to ask whether we really know what human rights are at all.

For many (like Benhabib), this kind of historical writing presents normative and political challenges; for others, it presents critical possibilities. If we can retell the historical narrative of human rights and demonstrate their contingency (implying that they could have turned out very differently or not at all) then surely this kind of historical work is key to the political work of contesting human rights in the present and reimagining them into the future? But what is critical about this form of historicisation? Is historicising human rights always a critical thing to do, and in what ways and to what extent? Here I want to suggest four brief (and contestible!) answers to that question.

The first answer is one I’ve already given, and that is that one possible critical effect a genealogy of human rights might have is to delegitimise them where their legitimacy is sought on the basis of longstanding custom or acceptance (from ‘time immemorial’, as common lawyers are wont to say). If the passage of time implicitly validates a present practice then clearly the exposure of the recent invention of a set of norms thought to derive their legitimacy from either not having a history or from having a sanctifyingly long one can be unsettling. In the Last Utopia Moyn refers to the cultivation of this kind of legitimacy as the ‘myth of deep roots.’ Challenging the myth deprives human rights of that kind of temporal legitimacy, of pedigree, turning the venerable into the untested and raising question marks and possibilities where previously there was the solidifying certainty of the past.

The second answer is that genealogies of human rights are critical, or potentially so, to the extent that they substitute narratives of politics for narratives of progress. Many accounts of human rights do not simply emphasise continuity but progress. On this telling, the ever-expanding liberal franchise of human rights law, in which first non-propertied men, and then women, and finally a succession of racial and ethnic others came to insist upon their equal humanity as rights-holders, is the story of the gradual universalisation of human rights. But, according to a genealogical account, such Whiggish narratives retrospectively misunderstand the hard fought and unpredictable political battles for rights and freedoms at particular historical moments as merely signs of the logical, progressive development of the idea of human rights. This way of telling the story of human rights elides the political agency of unlikely rights claimants whose claims in and on the language of human rights, Hans Joas reminds us, were ‘bitterly resisted … even by the most radical universalists, partly as preposterous, and partly as a danger to the life of society’. Nothing guaranteed their inclusion, least of all ideas of immanent reason and progress.

The third answer is that genealogies of human rights are critical in that they prevent a certain kind of nostalgia. The kind of nostalgia I am thinking of here is the kind of nostalgia that the late cultural theorist, Svetlana Boym, refers to in her book, The Future of Nostalgia, as ‘restorative nostalgia’. For the restorative nostalgic, the past is always a source of value and of lessons to be learnt. The temptation is always to return to history with a view to recreating the lost nostos – the lost home – in the present. Genealogies of human rights prevent this kind of prelapsarian fantasy and anachronistic approach to present-day political problems. They teach us that each historical age creates and solves, contingently, its own problems. The solutions to present day problems of human rights cannot be sourced in a return to their true and original meaning (as conservative advocates of a more minimalist human rights canon, who seek to return human rights to ‘first wave’ rights only, suppose). One could say the same of the ineffable source for originalist intentions in the context of constitutional interpretation. That ‘original’ meaning is non-existent for the genealogist; or, better, it is a shifting and mutable historical artefact.

Finally, human rights genealogies are critical, and help us to be critical, in that they not only teach us that our history and our present are contingent productions but they teach us how that history was composed. In that way, the exposure of the contingency or the groundlessness of the present potentially leads to insights as to how to remake it in the future.

To return to Moyn’s genealogy of human rights, then, it can now be appreciated that the properly critical force of his account rests not in his suggesting that human rights are a recent invention or that they could have been otherwise, but precisely in the manner of their emergence and descent to the present. In the 1970s, this was a matter of appropriating the idealistic energy of the time, discrediting the revolutionary (indeed, even redistributive) imagination of the era (in part through a politics of anti-totalitarianism) and then politically narrowing it to the contours of a minimalist liberalism. That is, Moyn shows how the condition of possibility of the emergence of human rights was the evacuation of one form of political utopia and its replacement with another. Moyn’s genealogy simultaneously delineates this story as well as mounting a critique of human rights historians themselves. It is not simply the partisans of a globalising, moralistic liberalism (in the 1970s and since) that might find his genealogy troubling (but who equally may not), but those who have written about it since from within the discipline of history.

It is key to genealogy, after all, that the very writing of history is central to the project of forgetting the past and writing over its contingency so as to vouchsafe an uncertain present. Explaining how human rights emerged is a question not simply of the actors of the relevant historical time period but the historians of the years afterward, all the way down to the present – all of which goes some way to explaining the contemporary politics of the ‘history wars’ over the origins of human rights.

This blog post is a condensed version of an argument made in my ‘Contemporary Legal Genealogies’, in Justin Desautels-Stein and Chris Tomlins (eds), Contemporary Legal Thought (Cambridge: Cambridge University Press, forthcoming in 2016). Contact me at b.golder@unsw.edu.au for a copy.

Dr Ben Golder teaches courses on public law, legal theory and the politics of human rights at the University of New South Wales. His latest book, Foucault and the Politics of Human Rights, is out now from Stanford University Press.

Suggested citation:  Ben Golder, ‘The Human Rights “History Wars”’ on AUSPUBLAW (15 September 2015) <https://auspublaw.org/2015/09/the-human-rights-history-wars/>.