During his short presidency, President Trump has downplayed human rights, preferring to emphasize American economic and military interests abroad. He has sought to develop close ties with autocratic Arab rulers and invited human rights abusers such as Philippines president Rodrigo Duterte to the White House. Yet the administration has not totally sidelined human rights concerns, either, as seen in the responses to Syrian chemical weapons attacks.
While his “America First” campaign seemed tailor-made for an emphasis on national interests at the expense of human rights, Trump’s ambivalence on human rights also reflects a broader trend among conservatives, who increasingly view human rights suspiciously, seeing their promotion as a liberal ideological project that encompasses an expanding number of rights and undercuts fundamental conservative values. This is evident most clearly in domestic debates, where liberal rights activism has been heavy-handed.
Over the last few decades, the human rights project has become increasingly progressive, advocating a singular way of living the good life, with a concomitant demotion of values that don’t fit in, such as those associated with religious belief or with social institutions such as families, churches, schools, local communities, and clubs. This shift has spurred a backlash among conservatives, as evidenced by First Things editor R. R. Reno’s statement that he is “Against Human Rights.”1
This stance is understandable given current trends—but it is not truly conservative. Although those on the right do not accept the liberal universality that currently drives much of the discourse and action around human rights today, they continue to believe in the inherent dignity of every human being, which includes the right to the security of life and property, due process, and the protection of fundamental liberties. The forms that these rights take can vary across societies depending on historical context, but they are essential.
Indeed, human rights can trace their origins back to Judaism and Christianity, which, in great contrast to their surroundings, emphasized the dignity and absolute worth of every person regardless of their place in the social hierarchy. Religious convictions strongly influenced early conservatives such as John Selden, who fought to safeguard “divers rights and liberties” against the power of arbitrary rule. They also played a role in the conservative case against communism and totalitarian policies in general, and in support of civil rights for black Americans in the 1960s.
Conservatives have both a narrower and a broader understanding of human rights than liberals. The number of rights that concern conservatives is smaller, but what is required to protect them and build a successful society is more expansive. Whereas liberals put rights at the center of their worldview, conservatives see them as dependent on social institutions, a complementary set of duties, and a healthy appreciation of virtue. Rather than being “Against Human Rights,” conservatives could more accurately be said to believe in a different vision of human rights—a vision with values shared by many societies worldwide. Unfortunately, the progressive takeover of human rights promotion alongside an individualist turn in Western culture has blurred this vision. This partially explains the Trump administration’s ambivalence.
Restoring this positive vision could enable Trump to both advance American interests and make clear that American values stand with the dignity of every human being everywhere—achieving a balance that his predecessors have struggled to achieve. He could differentiate himself more clearly from his predecessors and project a more positive message at home and abroad by couching this vision in terms common to other societies.
The Roots of Human Rights
Anglo-American conservatives have historically had a much more modest and context-specific understanding of rights than the vision prevalent today.2 Recognizing a higher authority, a natural law established by God, that could be learned from the accumulated experience of many generations and which the Bible (and, for Selden, also the Talmud) provided reliable guidance, they rejected the “unrestricted use of pure and simple reason” as a way to govern on the grounds that it would produce judgments that are “intrinsically inconsistent and dissimilar among men.” A purely rationalistic approach would lead to confusion and a breakdown in social and political order. As such, except for a core group of laws that apply everywhere (e.g., the seven Noahide Laws), they prescribed no universal rules for how to organize states. As Selden wrote, “Diverse nations, as diverse men, have their diverse collections and inferences, and so make their diverse laws grow to what they are, out of the same root.”
Natural law emerged from the Jewish concept, later adopted by Christianity, that God was the creator of all things and that man was created in his image. As Genesis describes, “And God created man in His image; in the image of God He created him; male and female He created them.” For the first time, all people were equal, endowed with infinite dignity and preciousness. The impact was revolutionary on the vision of reality that had existed, when most life was viewed as at best instrumental, often casually destroyed or ignored in what were deeply hierarchical societies. Concepts regarding everything from history to time to human nature to the moral good were transformed, first as Judaism developed and then as Christianity spread.
Although it only delineated the relationship between nobles and the king, the Magna Carta of 1215 laid the groundwork for constitutional law—and core conservative ideas about rights. Designed to protect the ancient laws and customs by which England had been governed from encroachment by King John, it included such fundamental principles as the right of individuals to due process in accordance with the law and the limitation of the power of government. Everyone was to be treated equally by the state. Rules were to apply to governors as well as the governed. Citizens had the right to own and inherit property and be protected from excessive taxation.
Early English conservatives such as Sir Edward Coke, Sir John Eliot, and Selden fought the Stuart kings James I and Charles I to defend their rights as guaranteed under English traditions (including the Magna Carta) from creeping authoritarianism. In 1628, the English Parliament passed the Petition of Right, which lays out specific liberties that the king is prohibited from infringing upon and was the forerunner of many of the original ten amendments in the U.S. Bill of Rights. Later, after the English Civil War, Parliament built on the same principles in restoring the constitution, inviting the next Protestants in line to the throne to serve as monarchs (William and Mary), and passing the Bill of Rights in 1689. The combination—the Glorious Revolution—would safeguard “their religion, rights and liberties.”
Edmund Burke, who is often considered the founder of conservatism today, inherited and incorporated these ideas into his own thinking. His emphasis on both rights (as understood by conservatives) and institutions (as passed down from history) is reflected in the complex set of positions that he defended during his lifetime: American independence (because the King had trampled on American rights); the traditional English constitution; Indian traditions (which were being uprooted by the East India Company); and Catholic emancipation. Yet, the “forward-looking traditionalist” (in the words of Yuval Levin) was fervently opposed to “general theories concerning the ‘rights of men,’” such as those that were embodied in the French Revolution. A universal—generic—approach that had little grounding in local context would undoubtedly mean that “their sure inheritance” from history would “be scrambled for and torn to pieces by every wild, litigious spirit.” In contrast, incremental change that builds on existing institutions and rights and strengthens the ties that bind people together can both preserve a community’s valuable historical inheritance and improve its condition. The American constitution, which, as Russell Kirk writes, “borrowed deliberately and liberally from the English constitution” and whose “general frame and substance” accorded with the “political principles of the Rockingham Whigs, whose manager and intellectual chief Burke was,” fits this mold well. The institutions were adapted from the English context; the Bill of Rights was modeled on the Petition of Right and English Bill of Rights.
The Widening Chasm over Human Rights
There are, broadly speaking, two different approaches to organizing society: one focused on maximizing personal freedoms and the other on maximizing the robustness of relationships and institutions. The first centers on the autonomous individual and emphasizes the liberty of each person as long as they do nothing to harm anyone else; the second centers on the wellbeing of society as a whole, emphasizing the interdependence of each person within the groups and networks they belong to.
These approaches assume and promote different definitions of the good life. Individualistic societies highly value choice and fairness, and they emphasize moral concepts such as rights, liberty, and justice. On the other hand, sociocentric societies highly value order, hierarchy, and tradition; they emphasize moral concepts such as duty, respect, reputation, patriotism, sanctity, and purity.
Not surprisingly, these two social orders have different conceptions of human rights and the role of the state in enhancing human welfare. Autonomy-centered societies prefer a human rights framework that offers broad protections for individual choice and which gives the state a large role in enforcing rules. Cultural differences, traditions, and social institutions can be set aside if they conflict with human rights goals. Sociocentric societies, in contrast, prefer a human rights framework that includes a few core rules that ensure certain minimum standards are met while providing flexibility for local adaptation. The state is still important but plays a different role in enforcing rules. Traditions and social institutions, considered crucial to identity and feelings of dignity, are given a relatively large role. Human rights are seen as but one of many ways to better lives and improve how societies work.
Whereas progressives—and even many Republicans in our highly individualistic culture—emphasize the autonomy-centered approach, conservatives historically emphasized a more sociocentric approach. The latter, with its emphasis on community and social ties, would have resonated with Burke. In contrast, Republican ideology (and much of contemporary conservative thought) has gradually become, in the words of Levin, “too rhetorically strident and far too open to the siren song of hyperindividualism.” As such, while progressives advance social freedom and justice through the human rights field they dominate, many Republicans today fight in parallel to advance economic freedom with little if any regard for the broader social ecosystem, ceding potential influence abroad. There is no strong political force in the United States pushing for policies that strengthen communities, traditional institutions, and the moral character of human beings.
Instead, we have, as Mary Ann Glendon notes, an unnecessarily narrow interpretation of the treaties, laws, and ideas that underpin human rights; an ever-expanding list of rights; a diminution of the important role originally played by duties, responsibilities, social institutions, norms, and morality; a debasement of political discourse; and an unnecessarily expansive role for the judiciary in setting public policy, which produces “coerced, and often unsatisfying, social arrangements.” The progressive domination of much of the discourse as well as their overwhelming influence on key institutions (including the media) in the human rights field means that today too often rights promotion is based on a particular, singular worldview about what it means to be a person, and what is just, good, and worth pursuing. As Makau Mutua writes, “They [human rights organizations] claim to practice law, not politics. Although their mandates seek to promote paradigmatic liberal values and norms, they present themselves as neutral, universal, non-ideological, non-partisan, and unbiased.” Values that don’t fit into this worldview are ignored or devalued.
Western individualists of all political persuasions must recognize that promoting human dignity does not always mean securing individual autonomy. Not only do different societies—and different parts of our society—have different definitions of rights, but they also have a different vision concerning the place or exercise of individual autonomy. Many of the rights currently promoted by progressive human rights activists are highly dependent on a particular culture or worldview—one that has evolved significantly over the past half century. A different vision of society would promote and implement rights differently. For instance, whereas approval of any right to kill or harm oneself was once unthinkable, now ever-widening forms of physician-assisted suicide are becoming acceptable. While the amputation or reshaping of the body was formerly seen as unethical and dangerous, now sex reassignment surgery is accepted and encouraged (while, for some, circumcision is considered a human rights violation). Marriage used to emphasize the needs of children; now it is centered on the rights of adults. Instead of developing a concept of children’s rights that constrains the freedom of parents, a concept of adult rights that often deprives children of much needed social support predominates.3 In all these cases, what is at issue is not the importance of mores and rights, but which rights and harms to emphasize, and who is permitted to make choices.
The evolution of human rights discourse has prompted many of the growing disagreements over human rights between countries (and between different parts of American society). By assuming that, as Sally Engle Merry notes, “human rights are part of a distinctive modernist vision of the good and just society that emphasizes autonomy, choice, equality, secularism, and protection of the body,” progressive rights proponents have converted their own cultural norms into universal rights. This approach produces an ever-growing number of rights while it assumes a uniform value system across countries. It generally views culture as an obstacle that needs to be changed through education and the intervention of national and international authorities—not a very appealing proposition to people who understandably cherish their values, history, and sovereignty.
Indeed, when progressives urge non-Western countries to discard tradition or heterodox ways of living, or adopt a one-size-fits-all approach to various challenges that they face, they engender ill will and undermine whatever consensus on human rights existed in the aftermath of World War II (when the Universal Declaration of Human Rights was adopted; see below)—consensus that could bridge differences across cultures and improve human wellbeing—and that was rooted in an older vision of human rights that conservatives were much more comfortable with. Today, autonomy-centric progressives too often incite resistance from sociocentric societies to even those reforms that ought to be acceptable to them. Such a dynamic yields a cycle whereby, as Charles Taylor and others have pointed out, American (or Western) condemnation helps feed a negative reaction, which leads to further condemnation, more reaction, and so on. Such a pattern is apparent in the relationship between the West and the Middle East, and, to a lesser degree, parts of Asia. It has seeped into the relationship with Africa as the latter has grown rapidly and become less dependent on Western largesse.
This unhealthy dynamic undermines both American interests and values. It aggravates relationships (compromising interests) by focusing on a particular interpretation of human rights irrespective of context—an interpretation that does not necessarily improve lives. This is especially noteworthy in fragile states, when liberal ideas of governance and justice have often undermined weak social cohesion and stability (e.g., Libya, Afghanistan). But it is also true in places like China, where a non-Western path to development has been immensely successful for the great majority of its citizens.
The proliferation of rights talk, especially among Western-backed international actors—who play an outsized role in setting international agendas and determining the policy of weak states—has left any country or organization promoting other ways of flourishing on the defensive. The latter, with a weak hand in debates over a wide variety of issues, are often forced to come out “Against Human Rights” even if they are sympathetic to some of the principles. They lack an effective framework to engage the subject, and they lack a compelling alternative positive narrative for how problems can be addressed.
This is unfortunate because, as Glendon has written, even though rights discourse can easily handle issues related to rights, markets, and the state, it does not provide an easy way to value and make use of the smallish groups and systems that inculcate the values and practices that shape how societies and countries as a whole evolve and how effectively their communities, political systems, and governments will work. Many of the problems countries around the world are now facing—such as rising inequality, weakening social cohesion, and faltering institutions—cannot be addressed with a rights framework. A much more dynamic approach is necessary to balance peace with justice, institutional reform with social change, and economic development with democratization in fragile states. This approach sees human rights as being few in number and dependent on context-specific factors for implementation. Culture and history are not enemies of rights, but part and parcel of how they have to be applied.
Such an approach would better reflect both religious and early conservative thinking on rights. Judaism and Christianity, for instance, provide central roles for duties, virtues, and social institutions, highlighting their significance to any conservative vision of human flourishing.
Back to Basics: A Conservative View of Human Rights
Conservatives need to recover a rights framework.4 Only a return to basics, as envisioned in traditional conservative thought, with a strong core of rights, ample appreciation of the role of institutions, and a flexible interpretation of other priorities can address diverse societal needs, gain wide backing from people across the globe, and advance American interests.
When conservatives have discussed rights historically, it is usually with the understanding that they are based on a divine source and represent a sacred moral order. There is no need to change these foundations, but there is a need to translate the language into a form that fits the way rights are discussed today. Combining deeply-held principles about the best way to organize society with Burkean and Tocquevillian ideas about social institutions and the importance of continual cultivation of the social ecosystem would create a comprehensive framework to counter the progressive rights-only framework that is now dominant.
Advocates should focus on a core set of rights (the equivalent of a modern Noahide code) in order to eliminate, in the words of William Galston, the “great evils of the human condition.” These rights would build on historical conservative values such as those articulated in the great seventeenth- and eighteenth-century documents—for which there is a strong consensus across all groups at home—progressive and conservative—as well as across most groups in different parts of the world. This “minimal universalism” would aim to ensure that all people live with “basic decency,” but not seek to transform society to fit a particular worldview of how it should be structured.
This commitment to a minimal universalism would go far towards creating a human rights framework that transcended political and cultural perspectives—and had close to universal support—because it would stick to the basics of what is needed to establish a just society in which every person could live with dignity and it would avoid overreaching based on a particular view of how people should live. Such an approach would seek to ensure that the values-based part of our foreign policy concentrated on establishing minimal standards for all humans such that they had the dignity that being created in God’s image entitled them to. It would avoid much of the backlash that human rights has generated in many countries outside the West because it would appeal to a core set of values that are shared across groups and cultures and not seek to remake any group or part of the world in the progressive image of society. The United States would end up taking a harder line on a few core issues everywhere but directly challenge the authority of fewer regimes than today, taking a more agnostic attitude to how they organized themselves and addressed myriad problems.
A core set of rights already exists in international human rights law in the small set of rights that many human rights treaties already consider legally-binding notstandfeste: non-derogable or emergency-proof rights. In discussions during the drafting of several human rights treaties, representatives referred to these as “fundamental” and “essential au respect de nous-mêmes.”5 Academic works have called them “the most basic human rights,” “core rights,” “irreducible core,” “sacrosanct rights,” “les droits fondamentaux reserves.”6 The bedrock of this group are protections against genocide; slavery; torture; cruel, inhuman or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; and discrimination based on race, color, sex, language, religion, or social origin.7 This list should be expanded to include rights for which there is ample support in both historical conservatism (as reflected in the older rights documents) and the Universal Declaration of Human Rights, which has by far the greatest appeal across the world of any human rights document. Some candidates for addition include the right to marriage (between a man and woman); fair access to citizenship; protection against arbitrary searches, arrest, imprisonment, and confiscation; and equal protection of laws and procedures of fair trial.
Other rights with wide acceptance across cultures—such as the right to education; travel; choice of profession; association; disposing of personal property; religious, intellectual, expressive freedom; a fair public hearing; freedom from interference with privacy, family, home and correspondence—all of which are listed in one of the major international human rights treaties—would not be ignored, but they would be deemphasized, at least within a rights framework (they could always be promoted separately for their inherent worth). Different rights in this second grouping could be prioritized depending on the context, allowing some countries to emphasize religious freedom over individual rights (and vice-versa) or economic development over democracy (and vice-versa). Different groups could implement them differently, providing scope for social institutions to play a much larger role than today, when the state is too often assumed to be the sold guarantor of individual wellbeing.
The more controversial set of rights (a third grouping) that lack broad support in some societies—such as the right to same-sex marriage; birth (the right to not be aborted); euthanasia; care as an elderly person—would be set aside in such a way that would allow different groups the right to determine whether they were important or not. Liberal states could expand the list while conservative states reduced or modified it.
While both a conservative and liberal human rights regime may condemn acts against what Michael Walzer, professor emeritus at the Institute for Advanced Study in Princeton, calls the “minimal and universal moral code”—core rights—for conservatives, eliminating such acts are the main purpose of human rights, while for liberals they have become just a subset of a much larger constellation. As such, conservatives can better focus their energies on this select group, and not become distracted or have their efforts dissipated by an inflated sense of purpose and power.
Conservatives should also promote responsibility, duty, and virtue—nurtured by social institutions such as family, community, and religion—as a necessary second pillar (with rights) on which to build a robust society. This would dovetail with the sociocentric norms prevalent in other countries. Healthy political association depends on a certain degree of cooperation and common bonds. Healthy institutions, which underpin the whole rights regime, depend on the trust and common allegiance that an overemphasis on the individual can weaken. Edmund Burke recognized this. As John Morley, Edmund Burke’s biographer, notes, “To Burke, there was an element of mystery in the cohesion of men in societies, in political obedience, in the sanctity of contract; in all that fabric of law and charter and obligation, which is the sheltering bulwark between civilization and barbarism.” A balance is needed: some individual rights may have to be curtailed, modified, or suspended in some instances to advance a community’s overall goals (only some of which will involve rights) and to maximize the exercise of rights over the long-term. A more balanced approach would yield greater concern for standards of behavior rather than just the autonomy to make decisions.
This framework would enable the United States to promote a human rights agenda globally that was widely supported across countries—something not possible with the progressive vision—restoring the moral authority that has dissipated in recent years. Instead of being seen as overbearing, tendentious, and elitist in how it promotes rights, a more narrowly focused approach that integrated traditional concerns about religion and society and emphasized human dignity above all else would speak more directly to the concerns of people everywhere. It would disarm many of the concerns of rulers because the focus would not be on regime change but on regime improvement. Whereas progressive human rights actors too often incite resistance in non-Western countries—even to those reforms that ought to be acceptable to them—because of their one-size-fits-all approach that ignores history and context, the conservative approach would be better rooted in local values systems and enjoy wider legitimacy, thus making cooperation that advanced core rights more likely. As the world becomes more multipolar, and thus less determined by Western power, the need to take into account non-Western value systems, ideas, and ways of organizing society will only grow. Whereas the progressive worldview provides little scope for incorporating such changes—because it is uncompromisingly broad and rigid—the conservative view, which accepts the need for local adaptation and reserves universality to a select group of rights, offers a much better base to preserve the importance of human rights on the global stage going forward.
Retaking the Field
Though they were rooted in religious principles and nourished by conservative values, human rights have become more a liberal than conservative project—a central pillar of progressive thought and somewhat outside typical conservative concerns. Some may argue that any attempt by conservatives to promote human rights risks letting liberals define the terms of combat and thus puts conservatives at a severe disadvantage. But this ignores core tenets of conservative belief—which do allow for rights but in a more circumscribed form—while weakening the ability of conservatives to put forth a positive vision to tackle the myriad problems that societies face in an age when rights talk has become highly important. It is better to try to win these battles rather than thinking they are irrelevant or a lost cause.
The Trump administration seems to grasp the importance of some core human rights even while not wanting to give rights the same rhetorical priority as its predecessors. Whereas it has had no qualms reaching out to autocratic regimes and has resisted imposing American values on other countries, the Trump administration shows signs of serious concern over Syria’s use of chemical weapons, human trafficking, and the situation in Venezuela. Trump’s ad-hoc policies are not based on a clear framework, and in some ways they exhibit the unease within the Republican Party and its capture by Western individualism. Yet his approach—aiming to stamp out specific evils while not challenging other governments on their form—would have much in common with the renewed conservative vision outlined here if it was better articulated and more consistently applied.
Conservatives have long made the enhancement of human dignity and the protection of a core group of rights key elements of a broader strategy for improving the human condition. They need to stop ceding human rights to progressives and retake the field instead.
3 There is a children’s rights movement but it has never attempted to limit adult autonomy in the way described here. Instead, it has looked upon the state as the mechanism to reduce child labor, hunger, illness, mistreatment, etc.
4 Much of this section comes from my forthcoming book, Human Rights in Thick and Thin Societies: The Universal Declaration and Bridging the Gap.
5 See, for example, Council of Europe, Collected Edition of the ‘Travaux Préparatoires,’ Volume VI (Dordrecht; Boston; Lancaster: Martinus Nijhoff, 1985), 78-81 and 126-129.
6 See, for example, Thomas Buergenthal, “The American and European Convention on Human Rights: Similarities and Differences,” The American University Law Review 30 (1980-1981): 165; A.H. Robertson, “Humanitarian Law and Human Rights,” in C. Swinarski (ed.), Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet / Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Geneva: CICR/Martinus Nijhoff, 1984), 798; Aristidis S. Calogeropoulos-Stratis, Droit humanitaire et droits de l’homme (Dordrecht: Springer Netherlands, 1981), 130.
7 Ilia Siatitsa and Maia Titberidze, “Human Rights in Armed Conflict From the Perspective of the Contemporary State Practice in the United Nations: Factual Answers to Certain Hypothetical Challenges,” ADH Genève Research Paper, 2011.