Writing the History of Human Rights: An Introduction

By Lael Weinberger, JD/PhD candidate at the University of Chicago's law school and history department. Follow him on Twitter @LaelWeinberger.

History and State of the field

Historians discovered human rights in the late 1990s. Since then, lively conversations developed across almost every imaginable historical subfield, from medieval to modern. Much of the human rights historiography has been focused on the question of origins. Many historians have tried to locate the starting point of contemporary human rights ideas and practice, and they have suggested everything from as early as the twelfth century (and sometimes even earlier) to as late as the 1970s. Such enormous diversity of opinion can only be found in a field with widely divergent ideas about what in fact counts as “human rights.” The origins question is by no means settled and interesting debates on this issue continue. But in the last several years, many historians have been feeling fatigue set in on the origins debates. There is no reason that origins should be the organizing frame for the whole literature, and there is no shortage of alternative approaches available for historians of human rights to draw upon. This post is one way to make sense of (some of) what happened in the historiography over the last twenty years. I wrote it originally as a thought exercise for myself—there are of course other ways to think about the literature, and there’s a lot that I’ve left out of this (especially the many excellent and sophisticated histories written in the last few years). But it might also provide a useful introduction for non-specialists who would like to get a quick overview of how historians have written the history.

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Human rights history means different things to different people. To put it in schematic terms, one could describe first a division between those who see it as (a) the history of a concept and (b) those who see it as the history of a practice (see figure 1). The history of a concept can be divided into two approaches: (1) focusing on the concepts that are today identified as human rights through history, regardless of whether those concepts are labeled as “rights” or “human rights” at any given point, or (2) focusing on the specific language of human rights (or more generically, “rights”). The history of practice can be divided between (1) positive practices, which are practices that are specifically meant to advance human rights (activism), and (2) negative practices, which are violations of human rights.

This schematic might be helpful in keeping track of the differing emphases that can be found in the human rights historiography, though there are of course significant overlaps between all these categories. To do a history of human rights practice requires making some choices about what counts as human rights, which necessitates a choice among the conceptual options outlined above. Conversely, to do a history of a concept requires analysis of certain practices (discursive practices at the least).

The most expansive claims for ancient origins of human rights would push the concept all the way into antiquity. To do so requires the approach at the bottom left of figure 1—that is, the approach focused on the concepts that are today identified as human rights. These “human rights” are defined at their broadest level, regardless of whether people at the time would have used “rights language” to describe them. So, for instance, the “deep history” of human rights might note a concern for legal process embodied in texts like the Hebrew Bible and the Code of Hammurabi and then associate this with more recent “due process” rights. Many historians are skeptical about this kind of analysis. They might concede that there are links to be drawn between ancient ethical systems and modern human rights values. But such links are attenuated, and any attempt to paint with such broad brush strokes loses all sense of the contextual nuance that is so important to historians.

The issues get more interesting for historians when the “rights” question is defined more precisely and more historically. The major “rights” question that has interested historians of the medieval and early modern periods has involved the origin of individual, subjective rights—rights that pertain to the person by virtue of his or her personness. (As Michael Zuckert has explained, “subjective right” is contrasted with “objective right,” which refers to that which is right or “a rightful state of affairs”—essentially, natural law.) Somewhere between the twelfth and seventeenth centuries, the idea of such personal rights entered the conversation on natural law. At the moment it did so, some historians would suggest, we can find the origins of the first real human rights language. This approach fits into part (a) (2) of the “history of a concept” in our diagram.

For those who find the origin of subjective rights language a key turning point, the big question is when it happened. The political theorists Leo Strauss and C.B. MacPherson, writing in the middle of the twentieth century from quite different ideological positions, dated this event to the seventeenth century. Hobbes is a key figure in both of their analyses. But more recent work by medievalists (notably Brian Tierney) has pushed the date for the origin of subjective rights further into the past—much further, to the scholastic natural law discourse of the twelfth century.

But how much does it really matter that canon lawyers began to talk about natural rights in the medieval period? Many historians think that the differences are more important than the continuities. Essentially, the moment when the continuities become more important than the discontinuities is the origins moment for human rights. A number of early modernists see the crucial development as secularization. The key turning point, for them, occurs when individual (subjective) rights are uncoupled from natural law (objective right). Hugo Grotius, Thomas Hobbes, and John Locke are typically cited as key figures in this transition.

These debates are mostly about high-level intellectual history. Something new happens in the Enlightenment era, when the “rights of man” become a rallying point for mass political movements and revolutions, especially the American and French revolutions. This obviously suggests yet another possible starting point for human rights history. Lynn Hunt is one of the best-known proponent of an eighteenth-century Enlightenment origin. Her short book, Inventing Human Rights, was boldly-titled and strongly-argued (just right for assigning to college classes). Hunt located the crucial turning point for human rights in the Enlightenment-informed revolutions, and in the culture that surrounded them. She attempts to explain how people began to feel increased empathy for others, an emotional development that was conducive to thinking that the “rights” of others were important. Hunt’s story is conceptual, examining the second leg of the diagram below.

Historians of the nineteenth century have tended to not make their claims about conceptual originality for the rights concepts of the period. But there are other things to claim for the nineteenth century. The abolitionist movement is often addressed as a humanitarian movement, but there are reasons to interpret it as a human rights movement. Although not much of the enormous literature on abolitionism specifically examines the movement within the frame of human rights, this too is beginning. Here, the emphasis shifts from the history of a concept (side (a) of the diagram) to the history of practice (side (b) of the diagram). The abolitionist movement may not have invented a new rights vocabulary, but it did pioneer a new form of rights-based advocacy made by a movement that transcended national boundaries.

Proceeding forward in chronological order, we move into the twentieth century, to the 1940s. Those who tend to see anything vaguely human-rights-ish (part (a)(1) of the diagram) as part of the history of human rights would include a number of points of interest in between abolitionists and the 1940s: the drafting of formalized international rules of war (Geneva Convention of 1864, Hague Conferences of 1899 and 1907); the formation of the first humanitarian international nongovernmental organization (NGO), the Red Cross; the creation of an institutional framework for international advocacy and activism in the form of the League of Nations. For the most part, though, professional historians shy away from labeling any of these developments as a part of human rights history. These developments are part of the history of humanitarianism or of internationalism, but they were not thought of in rights terms.

So that brings us to the 1940s, where the human rights literature is most voluminous. Long before historians started to engage with human rights, scholars of law and political science would typically use the 1940s as their jumping off point for discussions of contemporary human rights. As more nuanced historical studies emerged since the late 1990s, a considerable number of them have reinforced the impression that the 1940s really are the origin point for modern human rights—if not for the idea of human rights, then for its embodiment in law and policy.

But another school of thought points out that, after a burst of enthusiasm in the 1940s, nothing happened. It was “death from birth,” said Samuel Moyn, the most prominent advocate of this position. According to Moyn, modern human rights originated in the 1970s. Though Moyn is an intellectual historian, his argument is centered on practice, on the uses to which human rights are put. Moyn did not claim that human rights in the conceptual sense (individual rights inhering in a person by virtue of his or her humanity) was a new idea in the 1970s. But he claims that they filled a new ideological need, as the “last utopia” after other international utopian ideologies failed. And he claims that they generate a new set of practices, as human rights provide a rallying point for advocacy groups and a moral vocabulary for foreign policy.

Moyn’s polemic represented the extreme end of a discontinuity model of human rights history.  Something “new” happened in the 1970s; what came before is completely “other.” The other extreme is the continuity model of human rights, which places the origin deep in the ancient past.  From then on, each turning point in the history of human rights is progressive, a steady evolution to the present culture of human rights. Moyn’s stridency made for an effective polemic against the progressive, triumphalist reading of the history, which professional historians were skeptical of anyway.

Forcing historians to pay closer attention to the differences between various iterations of human rights is a good thing. If the proverbial “lumpers” have been too prone to tell excessively smooth, progressive stories, many historians welcomed a “splitter” like Moyn to emphasize the distinctiveness of a historical moment. But of course, there is no reason to stop splitting the history of human rights into even more narrowly-defined particular moments. Moyn claimed the 1970s as the origin of modern human rights, but what about the 1990s? It is the next obvious turning point in the human rights story, waiting for historical examination—marked by the end of the Cold War, the collapse of the Soviet Union, the perception that liberalism had triumphed worldwide (Francis Fukuyama’s “end of history”), and an increasingly professionalized practice of human rights advocacy. Just wait for the archives to open on the 1990s.

“Origin stories” will doubtless only continue to multiply, but the historiographical debate about origins has largely played itself out. The interesting questions about human rights that historians are exploring in the last few years are much more functional, more subtle, more historically nuanced. (This is a theme that we picked up in a conversation with Mark Bradley about his recent book on human rights.) The urgency and impetus to write “the” history of human rights has been lost. But in the process, the field has matured, and human rights have become part of more kinds of stories, more varieties of history.