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of the Declaration of Independence extends not only to the language of
natural rights, but also to the fact that the American indigenous peoples
were denied ˜the separate and equal station to which the Laws of Nature
and of Nature™s God entitle[d] them™ claimed by the American ˜people™
against the imperium of the British Crown.58

53
Brett 2003, p. 100.
54
Brett 2003, pp. 110À11.
55
Tully 1993a pp. 259À61; Skinner 1998, pp. 18À21, 55.
56
Skinner 1998, p. 55, n. 177.
57
Skinner 1998, pp. 84À5; Pettit 1997.
58
From the first paragraph of the Declaration.
204 duncan ivison
It seems clear then that in order to define the nature and scope of
rights, claims have to be made about the nature of persons, and partic-
ularly about those qualities or powers to which the rights refer, or are
intended to protect. This means drawing a distinction between those who
are eligible for rights and those who are not, and between those who
display and are capable of exercising the relevant powers and capacities
and those who are not. Second, all theories about rights ultimately
depend on claims about the wider purpose of rights and how they fit
into more general conceptions of moral and political order and human
sociability. In both instances, the filling out of claims about the subjective
rights of persons against arbitrary treatment by the state (and their fellow
citizens) provides ample room for the introduction of thicker constraints
on who is eligible to claim certain rights, and ultimately, what kind
of society the language and practice of rights is meant to promote and
protect. As Sankar Muthu has put it (echoing Hannah Arendt), no sooner
had the Inca or Iroquois been granted a minimal humanity, as against
being classified as an Aristotelian natural slave, ˜than the privileges and
protections of such a classification were abrogated™.59 The more natural
and less cultured the account of human agency, the easier it was to
depict their societies and mores as radically different and then as either
uncivilized and requiring improvement, or debased and subject to
punishment or control according to natural law.
Hence the apparent paradox of moral universalism: that is, how
universalistic premises applied to politics (for example, that ˜all Men by
Nature are equal™),60 can end up justifying particularistic and exclusive
practices and institutions.61 Thus, as Uday Mehta has put it, ˜what is
concealed behind the endorsement of these universal capacities are the
specific cultural and psychological conditions woven in as preconditions
for the actualization of these capacities™, and that these can often be
discriminatory against racial and cultural minorities, amongst others.62
As we saw above, it was a basic tenet of early-modern natural juris-
prudence that although the individual played a crucial role in the
foundation of civil society, ˜he™ (again, usually always meant literally) was
also under-developed outside of it. Humanization comes with appro-
priation, social interaction, norms and culture; the state of nature denotes
precisely the absence of these conditions. The problem lies in what is


59 60 61
Muthu 2003, p. 273. Locke 1988, ii.4, ii.116À19. Mehta 1997, p. 60.
62
Mehta 1997, pp, 61À2; Arneil 1996, pp. 210À11.
The Nature of Rights and the History of Empire 205
said to count (or not) as an appropriate set of institutions and norms
for a properly human life. Locke naturalized the relation between labour
and property in such a way that it excluded other forms of use and
occupation, and by implication, a more historicized approach to human
culture. This converted cultural and societal differences into hierarchical
differences, and opened up a gap between ˜egalitarian interpersonal
morality and inegalitarian political and international morality™.63 A
theory of human development over time need not include claims about
the moral or cognitive superiority of the societies occupying one stage
compared to another, as arguably Adam Smith™s did not.64 But by the end
of the eighteenth century, and certainly by the nineteenth, it almost
always did.
One thing that was occurring was the complicated unravelling of
the law of nature from the law of nations, which is increasingly con-
ceptualized as obligatory between Christian nations, and as the product
of interaction between states (especially after the Treaties of Westphalia
and the various responses to the French Revolution). This intermingling
of the civilizational standard and positivism in international law arguably
continues to shape our understanding of the universalizability of rights
today.65 First of all, once international law begins to be associated mainly
with the reason of states, then non-state actors, such as indigenous
peoples, have even less standing in the system than what little they had
before. For example, between 1600À1800, literally hundreds of treaties
were signed between various Aboriginal nations and British and French
authorities. How these treaties are understood will depend importantly
on the political and legal authorities considered relevant. Are they
international treaties between equal sovereign entities? Or are they
a species of domestic contract or statute imposed by a legitimate political
authority on its citizens?66 However much middle ground may have been
carved out between indigenous nations and European powers on the
ground in various parts of North America between 1600 and 1800, it was
clear that by the nineteenth century it was rapidly disappearing, and
the residual sovereignty of Aboriginal peoples was either flatly denied,
ignored, or subsumed under ˜domestic dependent™ status. This meant
that it was hard to see (public) international law as anything but the

63
Parekh 1995, p. 92.
64
See the excellent discussion in Pitts 2005, ch. 2; and Haakonssen 1981, ch. 7.
65
Gong 1984; Keene 2002; Anghie 2004.
66
Slattery 1991, p. 684; Williams 1997.
206 duncan ivison
law of a broad but still culturally specific civilization, as opposed to an
emergent set of genuinely global À or at least cross-cultural À public
norms.
This blurring between nature and culture in rights discourse is perhaps
´
best exemplified by the Declaration des droits de l™homme, which also
returns us to the paradox of ˜citizen™s rights™; that is, the welding together
of a negative locution with a positive conception of belonging.67
The ˜rights of man™ still sound like natural rights À ˜natural inalienable
and sacred to man™ À and yet they are declared in the name of a sovereign
people, ˜constituted in a national assembly™. Moreover the most basic
rights are civil and political rights and, as Anthony Pagden points out,
seem to ˜derive from the status of their holders as citizens . . . and can
only have any meaning, within the context not merely of civil society
but of a society constituted as a nation™.68 They could only be made
intelligible in the terms of a specific political order, and thus were
˜increasingly useless as a notion in international or intercultural rela-
tions™.69 The conclusion to be drawn from this, argues Pagden (echoing
many others) is clear: what we think of today as the international law
of human rights, are ˜cultural artefacts masquerading as universal,
immutable values™. It follows that if ˜we wish to assert any belief in
the universal we have to begin by declaring our willingness to assume,
and to defend, at least some of the values of a highly specific way
of life™ À basically, those found in a liberal democratic state.70 Thus,
for example, Pagden argues, ˜a liberal democratic Islamic state is an
oxymoron™, and the changes required to enable the kinds of freedoms
associated with the international law of human rights ˜can only come
about from outside Islam™.71
I hope (and think) Pagden is wrong about this particular case, but he
is raising an important point. Our modern conception of human rights,
embodied in documents such as the Universal Declaration of Human
Rights that emerged in the aftermath of the Second World War, are often
said to be the modern analogue of early-modern natural rights. But
the analogy is imprecise at best, deeply misleading at worst. For one
thing, modern human rights presuppose a whole range of modern
social and political institutions, and have been shaped by an emerging
set of global political structures and dangers since 1945. Taken as a

67 68
Scott 1996; Pagden 2003. Pagden 2003, p. 189.
69 70
Pagden 2003, p. 190. Pagden 2003, pp. 172À3.
71
Pagden 2003, p. 199.
The Nature of Rights and the History of Empire 207
whole, they also aspire to do much more than secure the bare liberty
and security of the person, and look much broader and richer than the
Grotian framework we examined above.
For some, the mere fact that our conception of the international law
of human rights originated in a distinctive cultural context and ethical
tradition is enough to suggest that its accessibility and acceptability to
those embracing other comprehensive ethical traditions will be severely
limited. And it is a familiar charge today that the discourse of human
rights, when conjoined to a justification of armed intervention or pre-
emptive war À a prominent feature of early-modern natural law dis-
course that is once again prominent in an age of the ˜war on terror™ À is
simply an extension of the imperial ˜standard of civilization™ in a new
guise. An even sharper version of this critique is a variation on Marx™s
argument against liberal rights in ˜On the Jewish Question™: human
rights were born not only in the aftermath of World War II, but also
in light of the globalization of neo-liberal economic institutions. This
explains, so this argument goes, the emphasis in extant international law
and practice on political and civil rights over social and economic
equality. The broader point is that human rights are entwined with the
very relations of power against which they are supposed to provide critical
leverage.
These are powerful criticisms. But they are ultimately too reductive
and posit, I think, a far too simplistic picture of the relation between the
practice of human rights as it is developing amid social and cultural
pluralism, as well as in relation to concerns about global poverty and
economic inequality. The criticisms lead in two broad directions. First,
they might entail simply rejecting human rights in general as a vacuous
form of moral theorizing, and limit appeals to rights to those which
are embedded in a legally enforceable framework.72 But this under-
estimates the aspirational and imaginative appeal of human rights claims.
Rights are valuable sometimes just because they are unenforceable by
ordinary legal and political means, as a way of drawing attention to the
purported unacceptability of those circumstances. Moreover, although
plagued by the self-important rhetoric of human rights lawyers and
activists who assume international law exists just because they say so,
the demand for human rights has emerged in part because of the kinds
of social, political and economic challenges people actually face in the
world today À whether in the north, south, east or west. So another
72
See Geuss 2001, pp. 138À52; James 2003b.
208 duncan ivison
direction this critical approach might lead us is to try and craft a practice
of human rights that takes cultural and ethical differences seriously, and
that is sensitive to the history of imperial expansion and intervention
(both in the distant and more recent past) that shapes the beliefs and
attitudes of so many people in the world today. One way to do so is to
take the value of toleration seriously as a principle of international law
and governance. But this only serves to dramatize what is a fundamental
tension when thinking about the foundations of international law
today; between a principled respect for, and recognition of, the collective
agency or self-determination of peoples and states and individual human
rights. This is partly because this tension is written into the various
international Treaties, Declarations and norms that make up the complex
of modern human rights instruments today (e.g. Article 1 of the UN
Charter; and Article 27 of the Optional Protocol of the Convention on
International Civil and Political Rights). These treaties and norms emerged
out of inter-state negotiations, after all. But the issues at stake are
fundamentally normative as well. How can a principle of toleration be
reconciled with a commitment to human rights? How can we both accept
the idea of the existence of a global basic structure that suggests the need
for some form of transnational distributive justice, and yet recognize
the equality and value of the collective agency of states and peoples?
An influential strand of recent work on global justice denies that
there is any such tension, since the moral significance of states or peoples
is entirely derivative from their contribution to achieving justice.73
Although the details of the theory of justice to which these arguments
appeal vary, they all place a significant emphasis on individual autonomy.
Thus self-determination and the right to non-intervention are owed
to states or peoples only on the grounds that observing them contributes
to the realization of individual autonomy. It might be that there are
pragmatic or prudential reasons to adhere loosely to principles of non-
intervention and self-determination, but not any principled ones. The
best understanding of our commitment to human rights dissolves any
principled tension between toleration and human rights. When states
violate justice, toleration must yield to remediation and rectification.
The danger of this approach À admittedly, for some, its primary
virtue À is that it insists there is basically no difference between
the standards of transnational justice and a liberal theory of justice.

73
See Beitz 1979; Caney 2005. Cf. Buchanan 2004.
The Nature of Rights and the History of Empire 209
It presupposes that such an account can be given that is sufficiently
determinate for international society, and that the best conception of
human rights will feature as an important component of such a theory.
However, a theory of rights cannot just ignore social and cultural
difference, as if it were a regrettable feature of the world, but has to try
and make sense of it and tell us something about how we should relate
to each other given this diversity.74 The point is not then that tolera-
tion itself is a foundational value for the justification of human rights,
but that it is an appropriate response to the diversity of views about
the good and the right that characterize both domestic and inter-
national political life. The basic thought is this: as the scope of our moral
principles grows, so should our sense of the boundaries of reasonable
disagreement, and the need to create institutions and practices within
which it can be played out peacefully and without false expectations or
impositions of consensus.
It is for something like these reasons, I think, that John Rawls and
others have argued recently for a very different approach to justifying
human rights as a way of thinking about the moral foundations of
international law. And it has a Grotian ring to it. This approach involves
appealing to a form of moral or justificatory minimalism; that human
rights be justified in such a way that they can be acceptable to those
within very different ethical traditions, including societies which have
suffered domination in the past by those states most vocal in promoting
human rights today. It is important to distinguish justificatory mini-
malism from what we might call empirical minimalism. The latter entails
that human rights be grounded at the intersection between various
actual religious and ethical traditions, as a kind of lowest common moral
denominator between them. Although this might yield important
constraints to do with prohibitions on torture or genocide, for example,
it generates a far smaller set of basic rights than is assumed in current
international practice. Actual agreement is far too strong a condition
to impose on the justification of critical standards; it ties them too
closely to those existing moralities, whatever their particular content, and
presupposes they remain relatively static and immune to internal and
external challenge and disruption.75
So justificatory minimalism need not imply minimalism about the

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