Human Rights in Ancient Tradition: Greece, Rome and the Religions

The extension of citizenship. The gradual widening of Roman citizenship, culminating in its general grant to free inhabitants of the empire, is sometimes cited as an early universality. Treat it carefully: it universalised a status and its privileges, which is the opposite of a right held by virtue of humanity, and the word to reach for is the one from [What a Human Right Is], where a right dependent on status is a privilege.

And Rome too was a slave society, in which the slave was in law a thing. Any account that presents Roman law as an ancestor of human rights has to hold that fact in view.

The religious traditions

Each of the major traditions asserts human worth from a source above human authority, and the assertions are the material an examiner expects to see named.

The Judaeo-Christian tradition grounds worth in the creation of the human being in the image of God, which is an assertion of equal worth independent of status, and supplies a strong obligation of care for the stranger, the widow and the orphan.

Islam asserts the honouring of the children of Adam, the unity of humankind from a single origin, and detailed obligations of charity and of just dealing; the farewell sermon's statements about the equality of Arab and non-Arab are commonly cited in this context.

Buddhism and Jainism supply non-injury as a general obligation extending beyond the human, and the Buddhist sangha's admission of members without regard to birth, as [Human Rights in Ancient Tradition: India] records.

Confucian thought supplies the obligation of the ruler to govern for the people's welfare and the loss of the mandate to rule where he does not, which is a standard above the ruler expressed as a political principle.

What all four have in common is worth stating in one sentence, because it is the examinable point: they ground human worth in something above human authority, and they express the consequence as an obligation on those with power rather than as a claim in those without it.

The common shape, and the common limit

Set the traditions side by side and the same pattern appears in each.

And the fact that has to be stated rather than avoided: Greece, Rome, and the societies of every one of these religious traditions held slaves, and several of the traditions were used to justify it. A comparative claim that skips this is not a comparison; it is advocacy.

What the comparison establishes for Module IV

Against the charge that human rights are a Western imposition, the traditions establish that the underlying intuitions, that human beings have worth and that power answers to a standard it did not make, are not the property of one civilisation. That is a real answer to the objection in [Colonialism and the Making of the Instruments], and it is the answer the Vienna Declaration's universality claim ultimately rests on.

Against an overstated defence of universality, the traditions establish equally that none of them produced individual entitlements, equality of holder or remedies, so the modern framework is a genuine innovation and not a rediscovery. [From Natural Right to Human Right] shows what the innovation consisted of.

The position that survives both objections: the intuition is shared, the legal form is modern, and universality is a claim about the form. A candidate who states it that way has an argument that neither side of Module IV can knock over easily.

Worked example

A State argues before a treaty body that human rights are a European construct exported by former colonial powers, and that its own tradition, which is not European, has always protected human welfare in its own way and should be permitted to continue doing so without external supervision.

Concede the historical premise in part. The instruments of 1948 and 1966 were drafted in a period when much of the world was still under colonial rule, and [Who Was in the Room in 1948] sets out the membership honestly. That concession costs nothing and buys credibility for what follows.

Deny the conceptual premise with the traditions. The intuition that human beings have worth and that rulers answer to a standard they did not make appears in Greek, Roman, Indian, Islamic, Judaeo-Christian, Buddhist and Confucian thought alike, so the objection cannot be that the underlying idea is foreign.

Then locate the actual innovation, and note who it protects. What 1948 added was the individual entitlement, the equality of holder and the machinery. Every one of the traditions the State invokes graded persons by birth or sex and none gave a subject a claim against a ruler, so the State is invoking traditions that would not have protected most of its own population in order to resist an instrument that does.

And answer the supervision point on its own terms. Vienna paragraph 5 requires that national and regional particularities be borne in mind and then makes the duty unconditional regardless of political, economic and cultural systems; and the Bangkok Declaration itself, at paragraph 7, stresses the universality, objectivity and non-selectivity of all human rights. The State's own regional declaration does not support the position it is advancing.

What it does NOT mean

It does not mean these traditions contained human rights. They contained the intuition and not the entitlement.

It does not mean the traditions are interchangeable. They ground worth differently, and the differences matter for [Cultural Relativism].

It does not mean the modern framework is culturally neutral. Its form, an individual entitlement enforced against a State, is a particular legal form, and the honest claim is that the form is the innovation.

And it does not settle Module IV. It removes one objection, that the idea is foreign, and leaves the objections about drafting, selectivity and enforcement standing.

Quick revision

• Greece: the unwritten law above the ruler's decree; the physis and nomos question posed by the Sophists; the Stoic claim that reason is common to all, so the standard binds beyond the city. Athens excluded women, resident foreigners and slaves, and Aristotle defended natural slavery.
• Rome: the ius gentium, law observed among all peoples, distinguished from the ius civile, later merged with the ius naturale, which is how the vocabulary reached the modern writers. The extension of citizenship universalised a status, not a right by virtue of humanity. Rome was a slave society.
• The religions: creation in the image of God and care for the stranger, the widow and the orphan; the honouring of the children of Adam and the unity of humankind; ahimsa and admission to the sangha without regard to birth; and the Confucian mandate lost by a ruler who does not govern for the people's welfare. All four express the consequence as an obligation on power, not a claim in the powerless.
• The common shape: all supply a standard above the ruler, the knowability of that standard, obligations of rule, and universality of the standard. None supplies a claim-right, equality of holder, a remedy, or universality of application.
• Every one of these societies held slaves. An answer that omits this is advocacy rather than comparison.
• The position that survives both objections: the intuition is shared, the legal form is modern, and universality is a claim about the form.

Test yourself

1. What did Greece and Rome each contribute? Greece contributed two things. The idea of an unwritten law binding on the city, which Antigone states when she refuses to leave her brother unburied on the ground that the unwritten and unfailing laws of the gods are not of today or yesterday and that no mortal's decree may override them; and the Stoic claim that reason is common to all human beings, so the standard is one for everybody and the wise person is a citizen of the world rather than of a city, which is the first appearance of the idea that a rule can bind beyond the polity that made it. The Sophists' distinction between physis and nomos is worth adding, because it posed the question the whole tradition then answered. Rome contributed the practical vocabulary, distinguishing the ius civile of Roman citizens from the ius gentium observed among all peoples, which later merged in juristic thought with the ius naturale and is the route by which the classical material reached the medieval and modern writers. Both contributions are about the standard rather than about any person's claim, and both societies held slaves.

2. Why must the extension of Roman citizenship be treated carefully? Because it universalised a status rather than recognising a right. The gradual widening of citizenship, culminating in its general grant to free inhabitants of the empire, is often cited as an early universality, and in one sense it was: the same body of privileges came to be enjoyed by a far wider population. But a human right, on the definition this paper works with, belongs to a person by virtue of their humanity and not by virtue of any status, and an entitlement that depends on holding citizenship is precisely what that definition excludes. Two further points complete the answer. The grant was to free inhabitants, so it left the slave population exactly where it was, and in Roman law the slave was a thing rather than a person. And a status conferred by an emperor can be withdrawn by an emperor, which fails the requirement that the entitlement be prior to and binding on the authority.

3. What do the religious traditions have in common for this purpose? That each grounds human worth in a source above human authority, and each expresses the consequence as an obligation on those with power rather than as a claim in those without it. The Judaeo-Christian tradition grounds worth in the creation of the human being in the image of God and imposes strong obligations of care for the stranger, the widow and the orphan. Islam asserts the honouring of the children of Adam and the unity of humankind from a single origin, with detailed obligations of charity and just dealing. Buddhism and Jainism supply non-injury as a general obligation extending beyond the human, and the Buddhist order admitted members without regard to birth. Confucian thought makes the ruler's authority conditional on governing for the people's welfare, the mandate being lost where he does not. The shared structure is the important part: worth is asserted, an obligation follows, and no forum is created in which the person of worth may enforce anything.

4. What does the comparison establish for Module IV, and what does it not? It establishes that the underlying intuitions are not the property of one civilisation, which is a real answer to the charge that human rights are a Western construct imposed on others: the idea that human beings have worth, and that power answers to a standard it did not make, is present in Greek, Roman, Indian, Islamic, Judaeo-Christian, Buddhist and Confucian thought alike. It does not establish that any of those traditions contained human rights, because none produced an individual entitlement, none achieved equality of holder, and none supplied a remedy against the ruler; all of them graded persons by birth, sex or status, and every one of the societies concerned held slaves. So the modern framework is an innovation rather than a rediscovery. The position that survives both objections, and the one worth arguing, is that the intuition is shared, the legal form is modern, and universality is a claim about the form rather than about ownership of the idea.

5. A State says human rights are a European export and its own tradition should be left to protect welfare its own way. Answer it. Concede part of the historical premise first, because it is true and conceding it buys credibility: the instruments of 1948 and 1966 were drafted while much of the world was still under colonial rule. Then deny the conceptual premise, because the intuition the instruments rest on appears across Greek, Roman, Indian, Islamic, Judaeo-Christian, Buddhist and Confucian thought, so the objection cannot be that the underlying idea is foreign. Then locate the actual innovation and notice whom it protects: what 1948 added was the individual entitlement, the equality of holder and the machinery, and since every tradition the State invokes graded persons by birth or sex and gave no subject a claim against a ruler, the State is invoking traditions that would not have protected most of its own population in order to resist an instrument that does. Finally answer the supervision point from the State's own regional text: Vienna paragraph 5 requires national and regional particularities to be borne in mind and then makes the duty unconditional regardless of political, economic and cultural systems, and the Bangkok Declaration itself stresses at paragraph 7 the universality, objectivity and non-selectivity of all human rights.