The recent proposal concerning an amnesty for members of the armed forces involved in violations of human rights has renewed an old discussion in Peru: While some political leaders and representatives of civil society were in favour of the amnesty, others pleaded for the categorical validity of human rights. In order to reach our own conclusions, we will have to face some basic questions: What role do human rights play in any society? Can we allow violations of human rights if these are for the benefit of the country as a whole?
The most distinctive feature of human rights is their universality. Usually, rights have a clearly defined addressee and their validity depends on their concretisation by an authorised instance. Thus, the right to vote holds its validity in the Peruvian Constitution (chapter III) and applies exclusively to Peruvian citizens who are older than 18 years and not imprisoned.
Human rights, in contrast, transcend these barriers because they are concerned with rights corresponding to man in his plain condition as human being: These are the rights to life and liberty, including the right to live in a social environment (language, education, etc.). Since human rights touch such fundamental issues, some call them natural right. The treatises on natural right go back to the ancient Greeks, but I rather want to focus on an author of the early modern age, namely English philosopher Thomas Hobbes (1588-1679).
In order to understand Hobbes’ terminology it’s very important to distinguish between natural right (ius naturale) and the law of nature (lex naturalis). Natural right has its validity in the state of nature which is characterised by the complete absence of any order. As there are no established rules, natural right is a “right to all” regarding the primary goal of human life: survival (chap. 14). According to this logic, killing another person doesn’t constitute a crime since there is no rule prohibiting it. What’s more, due to the lack of rule, the act of killing may even be justified as necessary for survival since no rule prevents the other from doing the same.
Hobbes actually believed that the state of nature existed within some North American tribes (chap. 13). But it’s rather hard to imagine a community not acting in accordance with a minimum of commonly accepted rules. It’s therefore more reasonable to conceive the state of nature as a thought experiment that helps us to understand the constitutive premises of a society. To find them, we must first ask ourselves what are the fundamental rules for any legitimate society – that is, rules without which a just society is unconceivable.
It’s under these circumstances that Hobbes presents us the law of nature. Burnt out by the war of “every man against every man” (bellum omnium contra omnes), by solitude and the lack of cooperation, plagued by the constant fear of a violent death, man starts thinking about how to overcome the state of nature. The conclusion is both simple and momentous: Everyone has to seek peace as long as he has the hope of obtaining it (chap. 14). That’s the law of nature. Based on it, Hobbes derives 18 additional laws, all of them serving as means in order to achieve peace. Among them are the obligation to keep contracts (pacta sunt servanda) and to avoid harmful attitudes like arrogance or excessive vengeance. There also is the precept concerning the impartiality of judges (chaps. 14-15).
Men have the choice between war and peace, between the state of nature and citizenship, between war of all against all and cooperation, between arbitrariness and equal rules for all. When looking at the issue from outside, with objectivity, the right choice seems obvious. It’s clear that men have a better life in community than in a state of permanent confrontation. But Hobbes didn’t trust too much in the human capacity for reasoning. According to him, we are too prone to our “natural passions” to always be obeying the dictates of our reason (chaps. 17, 14). Others have suggested that not keeping a contract is the most worthwhile choice and therefore men will always encourage everyone to seek peace except themselves (c.f. Höffe 2002³). Game theory has discussed this problem widely as the dilemma of the free rider. Howsoever, the solution Hobbes aims at is the Leviathan, that is, the state.
Hobbes thinks of the Leviathan as a monarch or an assembly with absolute powers (chap. 17), but that isn’t interesting for our purposes. We will rather focus on the fact that Hobbes conceives the state as the result of a contract: Every citizen, interested in peace as he is, looks for an instance able to dictate rules and to stand up for their abidance. In order to achieve this objective, he contracts a state (chap. 17). Thus, Hobbes explains, the state is an authority insofar the authors (every citizen) have authorized the state to exercise it (chap. 16). The reason of being of the state is therefore clearly subordinated to the will of the citizens.
Let’s return to our initial question: What is the role of human rights for any society? Hobbes himself doesn’t speak about “human rights”, but now it’s evident that the law of nature and its derivates are universal. They establish the conditions of a just society and thus their validity persists even without the incorporation of state authority. Moreover, only a society and the deriving state which respect human rights have legitimate authority, for only this way it can be ensured that the most important interests of each citizen are represented.
Going back to the Peruvian context, there are other interpretations suggesting that human rights represent an obstacle imposed by international courts, socialists or NGO’s contrary to Peruvian interests. In 1999, the then-president Alberto Fujimori declared unilaterally he would not follow the verdict of the Inter-American Court of Human Rights which annulled some sentences dictated against persons accused of terrorism by Peruvian military justice. The Inter-American Court argued these kind of sentences violated the American Convention of Human Rights of which Peru is party.
But human rights can only get in the way of state interests if the state isn’t defined in relation to the interests of all its citizens. Those who say that under some circumstances it’s necessary to kill innocents or convict someone without giving him or her the right to defence, are implicitly saying that society as a whole stands above the well being of its single citizens. According to this perspective, perpetrating an injustice against individuals would be legitimate if this happens for the overall benefit of the collective.
These type of argumentation only makes sense if we accept that some have more rights than others. The fact that, according to figures from the Peruvian Truth and Reconciliation Commission, during the times of terror about 75 % percent of the victims had Quechua or other native languages as their mother-tongues and that the fate of these victims were at that time hardly noticed by media and society, indicates that a major part of society hasn’t been and perhaps still isn’t willing to recognize all fellow citizens as persons with equal rights. The recent proposal for an amnesty points out in the same direction, for it implies that a member of the armed forces accused for violations of human rights has privileges in comparison with an ordinary accused.
If we, in contrast, want to conceive the Peruvian nation as a common enterprise, able to embrace the various identities and customs under a common denominator, then human rights are the only way. Rights that, given their universality, correspond with the most important interests of each and everyone. There lies the real challenge and fundament for our society.
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Bibliography:
– Thomas Hobbes: Leviathan. Ed. by J.C.A. Gaskin. Oxford University Press 1996.
– Otfried Höffe: Politische Gerechtigkeit: Grundlegung einer kritischen Philosophie von Recht und Staat.
Suhrkamp, Frankfurt 2002³.
English version: Political Justice: Foundations for a Critical Philosophy of Law and the State. Polity Press,
1995.
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