Human Rights

The language of human rights is now the standard idiom of moral protest, and conservatives are sometimes accused of standing outside it. That accusation rests on a misreading. The tradition that produced Magna Carta, the English Bill of Rights of 1689, and the American Bill of Rights of 1791 stands within the rights tradition, not against it; what it resists is a particular twentieth-century construction of human rights that treats them as the gift of international declarations rather than the inheritance of particular peoples under particular constitutions.

What the conservative defends, in this domain, is the older settlement: rights grounded in a moral order the state acknowledges rather than confers, exercised through institutions that owe their authority to the consent of the governed and their character to a definite history.

Key takeaways

• Human rights, in the conservative tradition, are not a modern invention but a particular vocabulary in which an older inheritance — natural law, the rights of Englishmen, the dignity of the person — has been rearticulated, and the tradition is at once a custodian of that inheritance and a critic of its more reckless modern expansions.
• The conservative reading distinguishes between rights as protections against tyranny, which the tradition has long defended, and rights as instruments of social transformation, which it has resisted on the grounds that they enlarge the state in proportion to the entitlements they create.
• The dispute between conservatives and their critics is less about whether human rights exist than about their source, their scope, and the institutions to which their interpretation is properly entrusted.

History and context

The conservative account of rights begins not with the eighteenth century but with the medieval canon-law tradition. The twelfth- and thirteenth-century jurists who systematised the ius commune recognised a distinction between objective right (ius as what is owed) and subjective right (a faculty or claim belonging to a person), and they grounded both in the natural law that the Corpus Juris Civilis and the patristic inheritance had together transmitted. Brian Tierney’s The Idea of Natural Rights (1997) traced this development against an earlier scholarship, associated with Michel Villey, that had located the origin of rights-talk only in fourteenth-century Ockhamist voluntarism.¹

The English constitutional tradition, beginning with Magna Carta in 1215 and culminating in the Bill of Rights of 1689, supplied the procedural and institutional architecture: due process, trial by peers, prohibitions on arbitrary taxation and arbitrary detention, the right to petition. These were defended as the inherited liberties of a free people rather than as deductions from abstract premises. Edmund Burke made the distinction sharp in the Reflections on the Revolution in France (1790): the English claim their rights “as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity,” whereas the French Declaration of the Rights of Man and the Citizen (1789) claimed them as the timeless possession of man as such, abstracted from any particular constitution.²

The twentieth-century reconstruction of rights as international human rights traces to the Universal Declaration of Human Rights (1948), drafted under the chairmanship of Eleanor Roosevelt and adopted by the United Nations General Assembly in the aftermath of the war. The Declaration was deliberately ecumenical: Catholic natural-law theorists such as Jacques Maritain shaped the intellectual climate of its drafting through the UNESCO philosophers’ committee, precisely because the doctrine of human dignity could be defended from multiple philosophical premises without resolving them. Maritain’s The Rights of Man and Natural Law (1943, French original 1942) argued that the older natural-law tradition could underwrite the new international framework, and Mary Ann Glendon’s A World Made New (2001) documented how Catholic and personalist commitments shaped the final text.³

The post-1960s expansion of human-rights language into what Charles Beitz has analysed as the contemporary practice of human rights produced a much wider range of claims — economic, social, cultural, environmental, developmental — and a corresponding shift in the institutions empowered to interpret them. The European Court of Human Rights, the various United Nations treaty bodies, and the proliferating non-governmental tribunals together produced a body of doctrine whose relationship to the constitutional traditions of particular states became increasingly fraught.⁴

The conservative position

Three claims structure the tradition.

First, rights presuppose a moral order they do not create. The conservative reads the great rights declarations as efforts to articulate, in legal form, prior moral truths about the dignity of the human person — truths that the state acknowledges and protects but does not author. This is why the tradition has resisted the positivist reading on which a right is simply what a sovereign decrees: on the conservative account, a regime that abolishes a genuine right has wronged the person whose right it is, not merely revised its own preferences.

Second, rights are exercised through institutions, not against them. The Anglo-American tradition has held that abstract rights, untethered from the constitutional forms that give them content, become weapons in the hands of whichever party controls their interpretation. The Burkean criticism of the French Declaration was not that its sentiments were wrong but that its abstraction was politically dangerous: rights detached from a definite legal order are rights without remedies, and rights without remedies are rights only in name.

Third, the expansion of rights is not costless. Each new right enforced as a positive entitlement creates a corresponding administrative apparatus and a corresponding duty for someone — usually the taxpayer — to fund and the state to administer. The conservative does not deny that some such expansions are warranted; the tradition has supported, for example, the legal recognition of religious liberty and the protection of conscience. What it resists is the assumption that the proliferation of rights is itself a moral achievement, independent of the institutions, costs, and political consequences that the proliferation entails.

Differing positions

The progressive reading treats the post-1948 expansion of human rights as the natural maturation of the older tradition, with the United Nations system and the regional courts supplying the institutional machinery that domestic constitutions had previously lacked. On this view, the conservative emphasis on inherited liberties is provincialism dressed as principle: a defence of one particular constitutional tradition under the guise of a general theory. Samuel Moyn’s The Last Utopia (2010) developed a parallel critique from the left, arguing that the modern human-rights movement displaced earlier and more transformative projects of social justice rather than completing them.⁵

The libertarian position, in its strongest form, treats only negative rights — protections against coercion — as genuine, and dismisses positive rights to housing, education, or healthcare as semantic confusion. Conservatives have been divided on this question. The Hayekian strand has been broadly sympathetic; the Catholic social tradition, working from the encyclical inheritance that runs from Rerum Novarum (1891) to Centesimus Annus (1991), has held that the dignity of the person grounds both negative protections and certain positive duties owed to the person by the community, though not necessarily by the state.

The international-law position, articulated most influentially by Ronald Dworkin and within the European human-rights jurisprudence, treats the courts as the proper interpreters of a developing body of rights doctrine. The conservative response presses on the democratic question: a doctrine that grows by judicial elaboration, without reference to the political community whose constitution it is supposedly interpreting, is a doctrine that progressively removes contested moral questions from the people empowered to decide them. The tradition has held that such removal is itself a form of constitutional damage, even when the particular decisions reached are defensible on their merits.

References

1. Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625 (Atlanta: Scholars Press, 1997).
2. Edmund Burke, Reflections on the Revolution in France, ed. J. G. A. Pocock (Indianapolis: Hackett, 1987), 29.
3. Jacques Maritain, The Rights of Man and Natural Law, trans. Doris C. Anson (New York: Charles Scribner’s Sons, 1943); Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001).
4. Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009).
5. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press, 2010).