The reason why the concept of human rights was treated as a sort of stepchild by nineteenth-century political thought and why no liberal or radical party in the twentieth century, even when an urgent need for enforcement of human rights arose, saw fit to include them in its program seems obvious: civil rights—that is the varying rights of citizens in different countries—were supposed to embody and spell out in the form of tangible laws the eternal Rights of Man, which by themselves were supposed to be independent of citizenship and nationality. All human beings were citizens of some kind of political community; if the laws of their country did not live up to the demands of the Rights of Man, they were expected to change them, by legislation in democratic countries or through revolutionary action in despotisms.
The Rights of Man, supposedly inalienable, proved to be unenforceable—even in countries whose constitutions were based upon them—whenever people appeared who were no longer citizens of any sovereign state. To this fact, disturbing enough in itself, one must add the confusion created by the many recent attempts to frame a new bill of human rights, which have demonstrated that no one seems able to define with any assurance what these general human rights, as distinguished from the rights of citizens, really are. Although everyone seems to agree that the plight of these people consists precisely in their loss of the Rights of Man, no one seems to know which rights they lost when they lost these human rights.
The first loss which the rightless suffered was the loss of their homes, and this meant the loss of the entire social texture into which they were born and in which they established for themselves a distinct place in the world. This calamity is far from unprecedented; in the long memory of history, forced migrations of individuals or whole groups of people for political or economic reasons look like everyday occurrences. What is unprecedented is not the loss of a home but the impossibility of finding a new one. Suddenly, there was no place on earth where migrants could go without the severest restrictions, no country where they would be assimilated, no territory where they could found a new community of their own. This, moreover, had next to nothing to do with any material problem of overpopulation; it was a problem not of space but of political organization. Nobody had been aware that mankind, for so long a time considered under the image of a family of nations, had reached the stage where whoever was thrown out of one of these tightly organized closed communities found himself thrown out of the family of nations altogether.48
The second loss which the rightless suffered was the loss of government protection, and this did not imply just the loss of legal status in their own, but in all countries. Treaties of reciprocity and international agreements have woven a web around the earth that makes it possible for the citizen of every country to take his legal status with him no matter where he goes (so that, for instance, a German citizen under the Nazi regime might not be able to enter a mixed marriage abroad because of the Nuremberg laws). Yet, whoever is no longer caught in it finds himself out of legality altogether (thus during the last war stateless people were invariably in a worse position than enemy aliens who were still indirectly protected by their governments through international agreements).
By itself the loss of government protection is no more unprecedented than the loss of a home. Civilized countries did offer the right of asylum to those who, for political reasons, had been persecuted by their governments, and this practice, though never officially incorporated into any constitution, has functioned well enough throughout the nineteenth and even in our century. The trouble arose when it appeared that the new categories of persecuted were far too numerous to be handled by an unofficial practice destined for exceptional cases. Moreover, the majority could hardly qualify for the right of asylum, which implicitly presupposed political or religious convictions which were not outlawed in the country of refuge. The new refugees were persecuted not because of what they had done or thought, but because of what they unchangeably were—born into the wrong kind of race or the wrong kind of class or drafted by the wrong kind of government (as in the case of the Spanish Republican Army).49
The more the number of rightless people increased, the greater became the temptation to pay less attention to the deeds of the persecuting governments than to the status of the persecuted. And the first glaring fact was that these people, though persecuted under some political pretext, were no longer, as the persecuted had been throughout history, a liability and an image of shame for the persecutors; that they were not considered and hardly pretended to be active enemies (the few thousand Soviet citizens who voluntarily left Soviet Russia after the second World War and found asylum in democratic countries did more damage to the prestige of the Soviet Union than millions of refugees in the twenties who belonged to the wrong class), but that they were and appeared to be nothing but human beings whose very innocence—from every point of view, and especially that of the persecuting government—was their greatest misfortune. Innocence, in the sense of complete lack of responsibility, was the mark of their rightlessness as it was the seal of their loss of political status.
Only in appearance therefore do the needs for a reinforcement of human rights touch upon the fate of the authentic political refugee. Political refugees, of necessity few in number, still enjoy the right to asylum in many countries, and this right acts, in an informal way, as a genuine substitute for national law.
One of the surprising aspects of our experience with stateless people who benefit legally from committing a crime has been the fact that it seems to be easier to deprive a completely innocent person of legality than someone who has committed an offense. Anatole France’s famous quip, “If I am accused of stealing the towers of Notre Dame, I can only flee the country,” has assumed a horrible reality. Jurists are so used to thinking of law in terms of punishment, which indeed always deprives us of certain rights, that they may find it even more difficult than the layman to recognize that the deprivation of legality, i.e., of all rights, no longer has a connection with specific crimes.
This situation illustrates the many perplexities inherent in the concept of human rights. No matter how they have once been defined (life, liberty, and the pursuit of happiness, according to the American formula, or as equality before the law, liberty, protection of property, and national sovereignty, according to the French); no matter how one may attempt to improve an ambiguous formulation like the pursuit of happiness, or an antiquated one like unqualified right to property; the real situation of those whom the twentieth century has driven outside the pale of the law shows that these are rights of citizens whose loss does not entail absolute rightlessness. The soldier during the war is deprived of his right to life, the criminal of his right to freedom, all citizens during an emergency of their right to the pursuit of happiness, but nobody would ever claim that in any of these instances a loss of human rights has taken place. These rights, on the other hand, can be granted (though hardly enjoyed) even under conditions of fundamental rightlessness.
The calamity of the rightless is not that they are deprived of life, liberty, and the pursuit of happiness, or of equality before the law and freedom of opinion—formulas which were designed to solve problems within given communities—but that they no longer belong to any community whatsoever. Their plight is not that they are not equal before the law, but that no law exists for them; not that they are oppressed but that nobody wants even to oppress them. Only in the last stage of a rather lengthy process is their right to live threatened; only if they remain perfectly “superfluous,” if nobody can be found to “claim” them, may their lives be in danger. Even the Nazis started their extermination of Jews by first depriving them of all legal status (the status of second-class citizenship) and cutting them off from the world of the living by herding them into ghettos and concentration camps; and before they set the gas chambers into motion they had carefully tested the ground and found out to their satisfaction that no country would claim these people. The point is that a condition of complete rightlessness was created before the r
ight to live was challenged.
The same is true even to an ironical extent with regard to the right of freedom which is sometimes considered to be the very essence of human rights. There is no question that those outside the pale of the law may have more freedom of movement than a lawfully imprisoned criminal or that they enjoy more freedom of opinion in the internment camps of democratic countries than they would in any ordinary despotism, not to mention in a totalitarian country.50 But neither physical safety—being fed by some state or private welfare agency—nor freedom of opinion changes in the least their fundamental situation of rightlessness. The prolongation of their lives is due to charity and not to right, for no law exists which could force the nations to feed them; their freedom of movement, if they have it at all, gives them no right to residence which even the jailed criminal enjoys as a matter of course; and their freedom of opinion is a fool’s freedom, for nothing they think matters anyhow
These last points are crucial. The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective. Something much more fundamental than freedom and justice, which are rights of citizens, is at stake when belonging to the community into which one is born is no longer a matter of course and not belonging no longer a matter of choice, or when one is placed in a situation where, unless he commits a crime, his treatment by others does not depend on what he does or does not do. This extremity, and nothing else, is the situation of people deprived of human rights. They are deprived, not of the right to freedom, but of the right to action; not of the right to think whatever they please, but of the right to opinion. Privileges in some cases, injustices in most, blessings and doom are meted out to them according to accident and without any relation whatsoever to what they do, did, or may do.
We became aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community, only when millions of people emerged who had lost and could not regain these rights because of the new global political situation. The trouble is that this calamity arose not from any lack of civilization, backwardness, or mere tyranny, but, on the contrary, that it could not be repaired, because there was no longer any “uncivilized” spot on earth, because whether we like it or not we have really started to live in One World. Only with a completely organized humanity could the loss of home and political status become identical with expulsion from humanity altogether.
Before this, what we must call a “human right” today would have been thought of as a general characteristic of the human condition which no tyrant could take away. Its loss entails the loss of the relevance of speech (and man, since Aristotle, has been defined as a being commanding the power of speech and thought), and the loss of all human relationship (and man, again since Aristotle, has been thought of as the “political animal,” that is one who by definition lives in a community), the loss, in other words, of some of the most essential characteristics of human life. This was to a certain extent the plight of slaves, whom Aristotle therefore did not count among human beings. Slavery’s fundamental offense against human rights was not that it took liberty away (which can happen in many other situations), but that it excluded a certain category of people even from the possibility of fighting for freedom—a fight possible under tyranny, and even under the desperate conditions of modern terror (but not under any conditions of concentration-camp life). Slavery’s crime against humanity did not begin when one people defeated and enslaved its enemies (though of course this was bad enough), but when slavery became an institution in which some men were “born” free and others slave, when it was forgotten that it was man who had deprived his fellow-men of freedom, and when the sanction for the crime was attributed to nature. Yet in the light of recent events it is possible to say that even slaves still belonged to some sort of human community; their labor was needed, used, and exploited, and this kept them within the pale of humanity. To be a slave was after all to have a distinctive character, a place in society—more than the abstract nakedness of being human and nothing but human. Not the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever, has been the calamity which has befallen ever-increasing numbers of people. Man, it turns out, can lose all so-called Rights of Man without losing his essential quality as man, his human dignity. Only the loss of a polity itself expels him from humanity.
The right that corresponds to this loss and that was never even mentioned among the human rights cannot be expressed in the categories of the eighteenth century because they presume that rights spring immediately from the “nature” of man—whereby it makes relatively little difference whether this nature is visualized in terms of the natural law or in terms of a being created in the image of God, whether it concerns “natural” rights or divine commands. The decisive factor is that these rights and the human dignity they bestow should remain valid and real even if only a single human being existed on earth; they are independent of human plurality and should remain valid even if a human being is expelled from the human community.
When the Rights of Man were proclaimed for the first time, they were regarded as being independent of history and the privileges which history had accorded certain strata of society. The new independence constituted the newly discovered dignity of man. From the beginning, this new dignity was of a rather ambiguous nature. Historical rights were replaced by natural rights, “nature” took the place of history, and it was tacitly assumed that nature was less alien than history to the essence of man. The very language of the Declaration of Independence as well as of the Déclaration des Droits de l’Homme—“inalienable,” “given with birth,” “self-evident truths”—implies the belief in a kind of human “nature” which would be subject to the same laws of growth as that of the individual and from which rights and laws could be deduced. Today we are perhaps better qualified to judge exactly what this human “nature” amounts to; in any event it has shown us potentialities that were neither recognized nor even suspected by Western philosophy and religion, which for more than three thousand years have defined and redefined this “nature.” But it is not only the, as it were, human aspect of nature that has become questionable to us. Ever since man learned to master it to such an extent that the destruction of all organic life on earth with man-made instruments has become conceivable and technically possible, he has been alienated from nature. Ever since a deeper knowledge of natural processes instilled serious doubts about the existence of natural laws at all, nature itself has assumed a sinister aspect. How should one be able to deduce laws and rights from a universe which apparently knows neither the one nor the other category?
Man of the twentieth century has become just as emancipated from nature as eighteenth-century man was from history. History and nature have become equally alien to us, namely, in the sense that the essence of man can no longer be comprehended in terms of either category. On the other hand, humanity, which for the eighteenth century, in Kantian terminology, was no more than a regulative idea, has today become an inescapable fact. This new situation, in which “humanity” has in effect assumed the role formerly ascribed to nature or history, would mean in this context that the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself. It is by no means certain whether this is possible. For, contrary to the best-intentioned humanitarian attempts to obtain new declarations of human rights from international organizations, it should be understood that this idea transcends the present sphere of international law which still operates in terms of reciprocal agreements and treaties between sovereign states; and, for the time being, a sphere that is above the nations does not exist. Furthermore, this dilemma would by no means be eliminated by the establishment of a “world government.” Such a world government is indeed within the realm of possibility, but one
may suspect that in reality it might differ considerably from the version promoted by idealistic-minded organizations. The crimes against human rights, which have become a specialty of totalitarian regimes, can always be justified by the pretext that right is equivalent to being good or useful for the whole in distinction to its parts. (Hitler’s motto that “Right is what is good for the German people” is only the vulgarized form of a conception of law which can be found everywhere and which in practice will remain ineffectual only so long as older traditions that are still effective in the constitutions prevent this.) A conception of law which identifies what is right with the notion of what is good for—for the individual, or the family, or the people, or the largest number—becomes inevitable once the absolute and transcendent measurements of religion or the law of nature have lost their authority. And this predicament is by no means solved if the unit to which the “good for” applies is as large as mankind itself. For it is quite conceivable, and even within the realm of practical political possibilities, that one fine day a highly organized and mechanized humanity will conclude quite democratically—namely by majority decision—that for humanity as a whole it would be better to liquidate certain parts thereof. Here, in the problems of factual reality, we are confronted with one of the oldest perplexities of political philosophy, which could remain undetected only so long as a stable Christian theology provided the framework for all political and philosophical problems, but which long ago caused Plato to say: “Not man, but a god, must be the measure of all things.”