HUMAN RIGHTS AND THEIR LIMITS
by Wiktor Osiatyński. Cambridge and New York: Cambridge University Press, 2009. 262pp. Hardback. £60.00/$95.00. ISBN: 9780521110273. Paper. £21.99/$32.09. ISBN: 9780521125239. eBook format. $26.00. ISBN: 9780511629891.
Reviewed by Lawrence M. Friedman, Law School, Stanford University. Email: lmf [at] law.stanford.edu.
HUMAN RIGHTS AND THEIR LIMITS is a concise survey of the way the concept of human rights has developed over the years: what it means; what it has come to mean; what is good about the ruling concepts of human rights; and what their limitations are. It is an intelligent overview of a subject that has become a field of its own. There are literally shelves and shelves of books on the subject, and more and more of them pour out of the presses each year.
Wiktor Osiatyński is a professor at the Central European University in Budapest. He is described as a “former director of the Chicago Law School’s Center for the Study of Constitutionalism in Eastern Europe,” and as a sometime adviser to the Polish parliament. In his book, he covers many of the major issues that scholars of human rights take up – the history of the movement, for example. He also examines the rather sterile debate over whether human rights are “universal” (whatever that might mean). He tackles the much discussed (and also rather sterile) issue of whether the human rights movement, in its present form, is “Western” and unsuited to those societies that are not “Western,” and perhaps even that it is imperialism in a thin disguise. He goes into the question of whether rights-consciousness is always a good thing, or whether it can be, at times, counter-productive.
He covers all these subjects well, intelligently, and with moderation. The book begins with a short history of the concept of human rights, tracing its development from the 18th century to the contemporary world. “Rights” originally belonged basically to adult white males. Toward others, there was at most “humanitarianism” and “paternalism” (p.63). The modern forms are, essentially, products of the last few generations. Later chapters of the book discuss the topics mentioned above, and many others: the relationship of rights to democracy, the distinction between rights and needs, the place of so-called “social rights” (health care, housing, education, jobs) in constitutional law and in constitutional practice; and the vexed question of cultural rights and the possible conflict between these rights and other, “universal” human rights.
This is a valuable and well-written book, and it is in many ways a useful addition to what I have already described as an enormous body of scholarship. And yet . . . . somehow, something is lacking. The problem with the literature in general is not quantity, but quality. Or at least quality in one particular sense. The literature, vast as it is, is surprisingly narrow. Most of the books and articles [*134] are written by philosophers, political theorists, and lawyers. This is not bad in itself; moreover, most of them are passionate about human rights, which is also not bad in itself. Undeniably, one can learn a lot by immersing oneself in the oceans of words that these scholars have written. One can learn a lot about the textual history of all those declarations, treaties, manifestoes, and covenants that have sprouted like weeds since the second World War. The literature also tells us about great thinkers of the past and the present, and what they have had to say about the rights of humankind. There are debates on various controversial subjects, as I have mentioned. But what is missing, on the whole, or in short supply, is what one might call the sociological dimension. The human rights movement – the social movement that has inspired this enormous literature – is a massive social fact. But where does it come from? Why has it been so successful (in places)? Where is it going, and why? Why, in this period, unlike all others, do we have a feminist movement, a gay rights movement, a movement of indigenous peoples, a revolt of the handicapped, the aged, prisoners, students, speakers of small languages, and so on?
The cardinal sin of reviewers is to ask for a different book than the one the author has written. I will avoid this in the sense of not finding fault with HUMAN RIGHTS AND THEIR LIMITS. But the sociological question nags at me. What is it about the late 20th century, and the early 21st, that has led so many millions of people, in developed countries, but elsewhere as well, to accept certain doctrines or dogmas, which then become central premises of the human rights movement? What led people to decide that all human beings are and should be equal in law and in society – women as well as men; people of all races and religions; minorities as well as majorities? To many of us, equality of this sort seems obvious, seems right, seems simply just and proper. But did any society in the past think this way? Does any traditional society, in the contemporary world, think this way? What, then, is it about modernity that pushes women – and men – in the direction of gender equality? What gives rise to the struggle – often more or less successful – for the other equalities that lie at the base of the human rights movement?
The answer is far from obvious. Of course it has something to do with democracy; but that simply pushes the question off one notch or so. Does it have something to do with markets, with capitalism? With new ways of communicating – with radio, TV, the movies, and now the web? With tourism, and travel? Or all of these? Perhaps some kind of personality change lies at the root of it; some mutation, as it were, brought about by social and technological change; the development of forms of individualism which were alien to other times and places. The various thinkers, commentators, and philosophers have played a role, no doubt in this transformation. They synthesize and give voice to norms and attitude that bubble up from the muddy chaos of modern societies; but they play only a secondary role, not the primary one that so much of the literature seems to ascribe to them. [*135]
Osiatyński had legal training, and training in social theory. He has concerned himself in his career mostly with social and political thought. His book fits squarely into the mainstream of work on human rights. It is an excellent piece of work. But perhaps there are some scholars out there who are willing to take the next step.
© Copyright 2010 by the author, Lawrence M. Friedman.
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