On 29 March 1976, seventeen-year-old Joelito Filartiga was tortured to death by Americo Peña-Irala, the Inspector General of Police in Asunción, Paraguay. Joelito was the son of Joel Filartiga, a doctor and long-standing opponent of the Alfredo Stroessner regime that had dictatorially ruled Paraguay since 1954. Later that day, the police brought Filartiga’s daughter to Peña’s home and showed her Joelito’s severely tortured body. Horrified, she fled the house, and Peña ran after her shouting, “Here you have what you have been looking for for so long and what you deserve. Now shut up!”1
Joel Filartiga unsuccessfully sought redress against Peña and the police in Paraguayan courts for the torture and murder of his son. His attorney was arrested, brought to police headquarters, shackled to the wall, and threatened with death by Peña. Several years later Filartiga and his daughter came to the United States seeking permanent political asylum. When they learned that Peña was also in the United States and living in Brooklyn, they filed a complaint in a U.S. district court against him, claiming Peña had wrongfully caused Joelito’s death by torture and seeking $10 million in damages.
The complaint rested on the Alien Tort statute, which establishes a U.S. federal district court jurisdiction over “all causes where an alien sues for a tort” committed “in violation of the law of nations.”2 The legal strategy was a bold one. The Alien Tort statute, a part of the Judiciary Act of 1789, had rarely been invoked in U.S. courts since its passage and had never before been used on questions dealing with human rights. Lawyers for the Filartigas argued that official torture violated an emerging norm of customary international law, which triggered the applicability of the statute for their case against Peña. The district court in question dismissed the complaint.
But in a sweeping June 1980 opinion, the U.S. Court of Appeals held that deliberate, official torture did violate universally accepted norms of international human rights law and that under the Alien Tort statute an alien could bring an alleged torturer before federal court for actions committed outside the borders of the United States. The Filartiga decision was a remarkable one, presaging and accelerating a variety of moves after 1980—among them, efforts to try the Chilean general Augusto Pinochet in Spain, the emergence of international tribunals in the Hague, Rwanda, and Sierra Leone, and the establishment of the International Criminal Court—that were all aimed at global accountability in cases of torture and other gross violations of human rights.
Like many of the cases and instances discussed in this volume, Filartiga illustrates the revolutionary reach of human rights norms in and across the boundaries of the nation-state. But like them, it also reveals some of the paradoxes that shape and constrain how people apprehend the meanings of human rights and its vexed relationship to revolution. The presiding judge in the Filartiga case closed his opinion in this way: “In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights. . . . [T]he torturer has become—like the pirate or slave trader before him—hostis humani generis, an enemy of all mankind.”3 Many if not most who read the judge’s opinion (myself included) are likely to agree. In a normative sense, to enslave or torture another person is unthinkable to most people. But of course in practice, it is not. Before and after Filartiga, just as before and after the abolition of slavery, human rights norms and beliefs did not necessarily govern practice. The unthinkable persists, most recently and dramatically in U.S. prisons in Iraq and Cuba.
The essays that make up this volume explore a variety of such uncomfortable disjunctures and contradictions between the universal and the particular across time and space. They date from the eighteenth to the early twenty-first centuries and consider the often uneasy relationship between human rights and revolution in such spaces as the Euro-American Enlightenment, colonial and postcolonial Africa, India, Vietnam, and Latin America, and in the contemporary thought and practices of the French “new philosophers,” the leadership of the People’s Republic of China (PRC), and radical Islamic movements. The authors are joined, however, by a common insistence that only through situated, contingent, and layered analysis can people recover not only the real belief in human rights and the revolutionary break it represents with the past but also the deeper and often disturbing paradoxes that have shaped the relationship between rights talk and practice.
In this sense, the essays push up against—and ultimately past—what have been dominant approaches to scholarship on human rights. Until recently, work in this nascent field has tended to cluster around three interpretative poles. In one, the Euro-American rights revolutions of the eighteenth century and the more global human rights revolutions of the twentieth century emerge in a gradual, Whiggish progression toward an apparently soon-to-be-realized Kantian perpetual peace. States and peoples from ever-wider sectors of the globe almost inexorably seem to bring into being ever more capacious articulations of human rights and their protections in the local, national, and transnational spheres. These are often narratives of the power of individuals—human rights heroes and heroines—who transform the ways in which local and global actors see the world around them.
Against these evolutionary and sometimes celebratory narratives, a second approach views the notion of human rights with considerably more skepticism. The apparent triumphs of a human rights regime, these writers suggest, are little more than a smoke screen or illusion, what Jeremy Bentham called “nonsense upon stilts.”4 They also argue that the apparent embrace of rights talk should not obscure the ways in which the more fundamental exercise and hierarchies of power within and between states and societies remains largely unchanged. A final approach sees human rights in terms of fixed and often polarized binaries. There is sometimes a polemical and arid quality to these discussions: The Asian values debate mentioned in some of the essays—and its insistence on the enduring division between Western individualism and Asian collectivism for conceptions of human rights—suggests the reductive directions this kind of approach can take. But at their best, efforts to reveal the tensions between the universal and the relative seek to convey how talk of universal human rights can obscure its genealogies in Western imperialism and heterosocial patriarchy.
Each of these approaches does important interpretative work. Accounts that center on the rise of the local and global human rights movements recover a set of people, ideas, and processes that had been marginalized or ignored in most national and international historiographies (in this it is important to remember how recent the turn to human rights scholarship is, particularly in history). And if realist accounts too quickly remarginalize or dismiss these developments, they nonetheless remind us of the contested ground on which human rights norms stand and the enduring forces that contribute to their uneven realization in practice. Similarly the attention to binaries directly foregrounds the ways in which power and culture inform the patterns of alterity that also shape the contours of human rights talk and practice: It is men not women, European American whites not persons of color, straights not gays, citizens in the metropole not colonial subjects or stateless peoples, who were and can still be privileged in various iterations of rights talk.
All three approaches, however, leave critical and difficult questions about the universal and the particular unexamined, questions that serve as the starting point for the contributors to this volume. How have many states and people come to feel, in at least an abstract sense, that certain universal rights are rooted in what it means to be human? Why are these “universal” human rights denied to some at particular moments and places? How and why have grave transgressions against human rights norms, sometimes by revolutionary movements and regimes rhetorically committed to the realization of emancipatory ideals, persisted if not increased over time? And might the future look somewhat different? The complex and nuanced responses to these questions offered in this volume often differ and at times hold their own contradictions. But taken together they chart a path toward a more rigorous and satisfying way into the paradoxes of human rights and revolution and ultimately to a cautious sense of hope for the future.
Lynn Hunt’s opening chapter takes us immediately into a complex consideration of how a universalizing rights discourse was concretized and became believable in France, the United States, and England in the second half of the eighteenth century. Hunt argues the transformation of Western rights talk from the rights of particular people with its genealogy back to the Greeks into universal conceptions of individual human rights in the seventeenth and eighteenth centuries was not a linear progression but one marked by “jumps and discontinuities.” By the time of the French and American revolutions however, Hunt suggests “the rights of man”—understood as universal and equal, inherent in what it meant to be human rather than ascribed by social status or hierarchies—came to feel self-evident and natural to many for the first time, even if the actual content of those rights often remained vague and who counted as human could be severely circumscribed.
But why did eighteenth century actors come to see rights this way at all? Hunt asserts the believability of human rights rested on contemporaneous transformations in individual perceptions of bodies and selves. More specifically she argues that print culture in the form of the rise of the novel and communities of readers after 1740 produced a “valorization of ordinary secular life as the foundation for morality” in which the quotidian and the secular increasingly became the basis for moral belief and action. Her attentiveness to the more elusive dimensions of the emergent vocabulary of human rights implicitly recalls and builds on recent work in moral philosophy that situates the complex valences of human rights sensibilities in narrative and the telling of stories.5 For Hunt, these new structures of feeling in the late eighteenth century reveal the ways in which individual sensibilities about universal rights came into being.
The authors of the chapters on the English and American revolutions are somewhat more skeptical than Hunt about the impact of revolutionary ruptures in promoting human rights sensibilities, opening up another set of processes through which individuals came to see themselves as rights-bearers. In sweeping away the old order, David Zaret suggests in his chapter on the English Revolution that we often think of revolutionary ruptures as liminal spaces that enable fundamental political, social, and cultural innovation and change. Less recognized are the ways in which revolutionary moments also make possible a creative recasting of existing traditions. Zaret focuses on the place of the Levelers in the mid-seventeenth century English Revolution, arguing they produced a nascent human rights consciousness, one neither anticipated nor desired by many of the participants in the revolution, which built on a reworking of the past.
Zaret’s discussion of the transformation of the right to petition illustrates the broader lines of his approach. He notes that petitioning as a form of seeking redress of grievances had a long history in medieval and early modern Europe but one tightly constrained by prevailing forms of deference and patronage. The printing of petitions in the 1640s, stimulated in part by the rise of print culture foregrounded by Hunt but also by the exigencies of the English revolution itself, turned this more traditional private form of communication into an instrument of competitive appeals to public opinion; one Zaret argues the Levelers used to recast earlier conceptions of liberty and freedom into forms that presaged “modern thinking on inalienable and universal rights of individuals.”
Michael Zuckert’s essay focuses on the interplay of English constitutional rights and natural rights in the American Revolution. Against an established scholarship that has downplayed the significance of natural or human rights talk in the Anglo-American struggle in the eighteenth century, he suggests the vocabulary of natural rights was critical to the ways in which Americans saw the revolution; it fundamentally shifted conceptions of the sources of rights, their substance, who held them, the duties they entailed, and the proper functions of government. But rather than positing a clean and evolutionary break between earlier demands for the constitutional rights of Englishmen and later appeals to natural rights, Zuckert argues that the shared lexicon of constitutional and natural rights shaped the articulation of an intertwined and fluid “regime of rights” in the American case.6
If these essays help us better understand how and why so many people have come to believe in universal human rights, they also usefully pose the problem of limits. As Hunt notes, female protagonists were often at the center of the novels that shifted consciousness about rights, but few eighteenth century male actors saw women as part of an emerging human rights order. The broader contradictions between universal human rights claims and exclusion “on the ground” are threaded throughout the volume, but several chapters are especially concerned with exploring the nature and sources of these disjunctures.
In his chapter on the Chinese Revolution, Jeffrey Wasserstrom argues that a focus on the human rather than rights in revolutionary human rights discourse promises to get us closer to the forces that shape and constrain the reach of universal rights. He suggests that underlying most rights talk are imagined and limiting continuums about types of people and circumstances: Some people are inevitably seen as less deserving of rights; they are too young or may have committed transgressive acts against society and at some moments of social crisis constraints might be placed on the exercise of certain rights. Revolution, he argues, usually upends these established continuums. It can emancipate groups of people marginalized in the ancien regime, but revolution can also dehumanize new groups and justify brutal repression to silence its perceived enemies. Wassertstrom writes that the new order is often presented by revolutionary leaders, fragile and threatened in myriad ways: “by the overturned ruling classes, hostile foreign regimes, and fifth-column traitors.” He contends that the massive human rights violations of the Anti-Rightist Campaign of the 1950s and the Cultural Revolution in the 1960s in the PRC fit these patterns. The regime increasingly labeled large numbers of people as fei remin or non-people because of their real or imagined ties to the ancien political and social order or to foreign powers. They were no longer human and as counterrevolutionaries outside the continuum of revolutionary rights offered to other Chinese.
Timothy McDaniel identifies a similar pattern in the thought and practice of radical Islamic movements. He is careful to argue that Islam itself is a fluid field of religious and social meaning with a plurality of traditions and interpretative outlooks. McDaniel suggests that on the question of human rights the main contours of Islamic thought tend to reject universal individualism in favor of seeing the individual in a hierarchical web of social relations. He further argues that Islamic radical movements make a different set of rights claims; these claims posit a dualistic break between true believers whose exemplary lives entitle them to rights and justify any kind of struggle, no matter how violent, against the corrupt world of unbelief, both within and outside the Islamic world. In McDaniel’s view this exclusionary perspective and the violations of individual human rights it enables against those who appear to threaten the movement’s sense of moral purity has less to do with its religious content than the kind of fears and threats Wasserstrom identifies as the dehumanizing legacies of revolutionary ideology.
Yanni Kotsonis roots the larger tensions between personhood and rights in the exclusionary dimensions of Enlightenment thought, which he claims was concerned with drawing the boundaries of both citizenship and universal human rights. He argues that embedded in Enlightenment discourse were conceptions of progress and rationality that fixed and located difference and served as critical hierarchical markers of who did and did not have the capacity for citizenship and rights. Kotsonis explores how writings from diverse ideological perspectives in revolutionary Russia perpetuated a politics of subordination in which “civilized” elites—whether Tsarist reformers, Marxists, or social democrats, all of whom saw themselves as citizens and rights bearers—debated what to do about the mass of people whose “backwardness” made them unsuited to citizenship and to human rights. In the end, he claims, the real legacy of the Enlightenment was not the emergence of universal human rights; rather it “gave us standards for deciding who was human and who was a citizen.”
Although Kotsonis concentrates on the case of revolutionary Russian he tellingly suggests a similar dynamic was at play in Euro-American imperialism in the same period; an assertion confirmed in chapters by Alexander Woodside and Florence Bernault. Woodside and Bernault look to the colonial period in Vietnam and Africa, respectively and the overlaps between the thought and practice of the colonizers and colonized to account for what they see as the “dismal” colonial and postcolonial human rights situation. Woodside argues to understand why human rights values have remained stunted in Vietnam, one must in part explore “the practice of the colonizing West itself during the high noon of colonialism.” He suggests that the racialist and violent pathologies of French colonialism deeply inflected the diffusion of Enlightenment values in Vietnam, helping to shape a postcolonial state that too often bullied perceived enemies of the revolution and was unable to treat its peasant and worker allies with decency and respect.
Similarly Bernault argues the discourse of human rights became the basis for racial hierarchy in colonial Africa. She suggests that human rights throughout the colonial period in Africa were used as a political tool to exert Western dominance and reserve political privileges to whites. Bernault contends that in the postcolonial period colonial-era patterns of disproportionate amounts of state authority and highly restricted ascriptions of rights continued to shape authoritarian regimes, which used human rights largely as an ideological tool to control civil society and rhetorically placate international pressures. Bernault’s discussion on the cooptation of human rights talk for antithetical ends resonates more broadly in these chapters. Greg Grandin’s account of human rights in Latin America draws attention to the Reagan administration’s embrace of human rights as a “marketing concept” for its Central American policy which, Grandin notes, included funding for military death squads who engaged in widespread torture and extrajudicial killing. Kristin Ross’s chapter on the rise of “new philosophers” in 1970s France emphasizes the ways in which this group of repentant i employed the vocabulary of human rights to mask their rejection of the anticapitalist and anti-imperialist leftist politics of May 1968 and their subsequent embrace of the market and the minimal state.
If the hypocrisies of cooptation and enduring exclusions challenge the believability and universality of human rights, several chapters point to spaces where these limitations and constraints have been at least partially transcended. Sumit Ganguly’s chapter is sensitive both to the problems and potentialities of realizing human rights in postcolonial India. On the one hand he suggests that the fifty-odd-year history of the Indian state’s record on human rights is “far from flawless.” Noting the failure to protect the rights of lower castes, repeated acts of terror against Muslim populations, and the serious human rights violations that accompanied counterinsurgency operations in the Punjab and Kashmir, he argues institutional weaknesses and persisting sociocultural prejudices cut against the Indian state’s rhetorical commitments to the protection of human rights. Ganguly contends that on the other hand the Indian record is more complex. He suggests that the state-sponsored National Human Rights Commission and the expansion of public interest litigation under the auspices of the Indian Supreme Court have both provided important forums for redress of minority rights. Moreover a robust and expanding group of non-state human rights activists and organizations have successfully mobilized public opinion and used new juridical spaces to combat the state’s use of torture and execution, and the partisan behavior of local police during religious rioting.
Grandin’s chapter on Latin America is especially alert to the ways in which the potentialities of a human rights revolution in the region have sometimes gone unfulfilled, whether through the actions of authoritarian military regimes or what he terms authoritarian elite liberalism. But his account is less concerned with elite state actors and concentrates instead on how popular movements have advanced Latin American human rights. He is particularly concerned with the legacies of mass mobilizations “that democratized and socialized Latin American liberalism” as they emerged from the mid-1960s onward in the wake of unprecedented state-orchestrated violence. Grandin argues that in this culture of mass political participation and social justice, local and transnational human rights politics increasingly flourished and demands for new forms of political, racial, economic, and social justice began to fundamentally reshape critical dimensions of Latin American politics and society. He suggests that the social justice movement became “the heir to the continent’s anti-imperialist, socialist, and human rights traditions.”
As James Green’s chapter on gay and lesbian activists in Brazil and Argentina suggests, there are dangers in valorizing the Left’s commitment to human rights. Although emerging from one iteration of Grandin’s Latin American Left, Green argues that proponents of gay and lesbian rights found themselves increasingly at odds with “the revolutionary ideology and praxis of the Left.” What Green identifies as a combination of Stalinist homophobia, traditional Catholic morality, and perceived working class values—recalling Wasserstrom’s argument about the ways the social boundaries of personhood in revolutionary thought can promote particularistic rather than universalistic conceptions of human rights—made the leadership of the Brazilian and Argentinean Left unsympathetic if not hostile to transgressions against heterosexual normality and uneasy with embracing sexual rights as part of its larger project of societal transformation.
At the same time, however, crucial aspects of Green and Grandin’s narratives do converge. Green argues that it was the Left’s mass mobilizations of the 1970s and 1980s against military rule that opened up “a new political space that gay and lesbian activists appropriated.” Moreover as it moved away from the Left’s totalizing vision of social and economic transformation to a focus on legal and social rights, Green suggests the Latin American gay and lesbian movement “broadened the framework for thinking about how democratic societies should operate.”
There are moments of slippage, sometimes explicit and other times less so, in the on-the-ground analysis that infuses these rich essays; a slippage that usefully situates for readers what is perhaps one of the most difficult challenges of writing and understanding human rights history. While unfailingly attentive to nuance, particularities, contingency, and paradox, the skepticism these authors accord to universalized and naturalized conceptions of human rights has its limits. Underneath Wasserstrom’s consideration of the Chinese case, for instance, is a sense that there are some absolutes that ought to govern how we approach the human rights situation in the PRC. Wasserstrom’s unpacking of the human and the tendency of revolutionary regimes to dehumanize people who threaten its realization helps to explain the Chinese government’s antipathy toward more universal protections of individual human rights and its vilification of counterrevolutionary elements as non-people. But over time, he suggests, as perceptions of the reactionary threat have eased, so too have some of the worst state abuses of human rights.
In making these claims, Wasserstrom runs the risk of providing an exculpatory narrative of the Chinese state’s behavior. It is a risk he fully acknowledges. Wasserstrom writes, “if there is no longer as great a tendency to place large groups of people in the non-human category, [t]here are certainly still too many abuses occurring in the PRC.” Noting the regime’s reaction to the 1989 Tiananmen Square protests, its colonization of Tibet, and its persecution of the Falun Gong sect, he argues that “the CCP’s record on human rights remains an abysmal one.”
In similar ways, McDaniel’s continuum of universal, hierarchical, and exclusionary conceptions of human rights is more than a simple description or analytical taxonomy of the differences that divide Western liberalism and Islam. His deep skepticism and sharp critique of the limits and dangers of radical Islam and his sympathetic account of Islam’s broader if hierarchical engagement with human rights recalls some of the arguments of John Rawls in his The Law of Peoples.7 In this work Rawls contends it is possible for liberal states and people to find common ground on basic human rights with what he terms “decent hierarchical nonliberal” states and societies.
These judgments, which I suspect many readers will share, in part reprise universal notions of human rights that transcend time, space, and historical and cultural particularities. Without a firm—and decidedly noncontingent—embrace of the rights to political expression, self-determination, and religious freedom, Wasserstrom’s critique would not be possible. At the same time, an implicit Rawlsian certainty in the values of political liberalism undergirds McDaniel’s toleration of hierarchy and antipathy toward exclusion. At some level—whatever the limits on rights in practice and their sometimes hazy articulation in theory—there is in fact for many of us an enduring rights bottom line against which even the most sophisticated and compelling contingent analysis cannot penetrate.
I raise these moments of slippage not to tar the authors with harboring a secret, unspoken relativism but rather to suggest the ultimate paradox of the universal and the particular for the study of human rights—one with which all of us concerned with the meanings and contradictions of human freedom and dignity must wrestle—is not so easily transcended. Nor perhaps should it be. As the presiding judge in the Filartiga case argued, torture has come to be seen as the enemy of all humankind. And yet it persists, as do many other violations of political, economic, social, sexual, and cultural rights. These essays help tell us why. They also help us understand why the suffering of strangers has come to matter as much as one’s own. As they do, and perhaps because they do, these essays inevitably suggest that no matter how contingent and situated the discourse of rights has been in historical time—and however detached we ought to be from celebratory, dismissive, or unidimensional iterations of its unfolding—the history of human rights has produced a believability in the world-shattering power of revolutionary rights talk. In his chapter on Vietnam, Woodside writes that the Vietnamese revolution “still has harbored what most revolutions harbor and what may be an important human right in itself. . . . the right to hope.” If chastened by the ambiguities, contradictions, and failures of the past, in the end it is that hope that drives us forward.
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) at 878. The fullest discussion of the Filartiga case can be found in Richard Allan White, Breaking Silence: The Case That Changed the Face of Human Rights (Washington, DC: Georgetown University Press, 2004).
Judiciary Act of 1789, ch. 20, codified at 28 U.S.C. 1350.
Filartiga at 890.
Jeremy Bentham, “Anarchical Fallacies” in Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, ed. Jeremy Waldron (London: Methuen, 1987), 53.
See, for example, Richard Rorty, “Human Rights, Rationality, and Sentimentality” in On Human Rights: The Oxford Amnesty Lectures 1993, ed. Stephen Shute and Susan Hurley (New York: Basic Books: 1993), 113-34 and Martha Nussbaum, Love’s Knowledge: Essays on Philosophy and Literature (New York: Oxford University Press, 1990).
Although not the focus of the chapters here, one might also consider the case of the Caribbean gens de couleur and the eighteenth century Haitian Revolution as another revealing instance of the complexities of the revolutionary cross-fertilization of ideas about universal human rights across the Atlantic. See for instance C. L. R. James, The Black Jacobins: Toussaint L’Ouverture and the San Domingo Revolution (New York: Random House, 1963), Laurent Dubois, Avengers of the New World: The Story of the Haitian Revolution (Cambridge: Harvard University Press, 2004), and his A Colony of Citizens: Revolution and Slave Emancipation in the French Caribbean (Chapel Hill: University of North Carolina Press, 2004).
John Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999).