Review
Belden’s book Rethinking Human Rights for the New Millennium (2003), addresses a conflict among three human rights theories and provides a compelling synthesis of the three.
According to The Declaration of Independence, “All men are created equal, . . . they are endowed by their Creator with certain unalienable Rights.” These 15 words provide the basis for the three competing theories of human rights, which I call the Naturalist, the Constructivist and the Marxist.
Each of the three takes a different view of the origin and subject of these 15 words, and of other human rights documents. Naturalists emphasize the words of the Declaration. They believe that, as the Declaration says, these rights are divinely inspired, and that they are given in the same way that the “laws of nature” are given: they are fixed universals that only have to be discovered. Constructivists emphasize the activity of the founders. Human rights are neither natural nor divinely inspired: they are human-made. Marxists emphasize the interests of the authors—i.e., white male property owners. What Anatole France said about the law under capitalist society, Marxists can say about human rights: “in its majestic equality, [they] forbid the rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread.”
Belden would agree with the Naturalists: all men (and, he would add, all women) are equal—but he rejects the Naturalist belief that human rights are fixed. They are neither natural nor divine. In this he agrees with the Constructivists that they are human-made. But Belden then would add that they are not made just willy-nilly. They are not arbitrary. Human rights claims can be objectively evaluated. And while he agrees with the Marxist that human rights have served conservative interests, he would add that they need not always do so. They have liberatory possibilities. To give up on human rights is to abandon a potentially powerful weapon for social justice.
Belden believed that while human rights are constructed, the construction can be evaluated in terms of existing material and cultural conditions, and the developmental potential available at a particular time in a particular place. What counts as a legitimate human rights claim will change depending on the existing possibilities for development. A particular conception of human rights that once had progressive functions can become reactionary if it fails to adjust to new conditions and identify emerging possibilities. While Belden had considerable sympathy for the Marxist understanding of human rights, he holds that it needs to take their evolutionary potential more seriously.
For Belden the greatest need today is to guard against totalitarian states—whether on the left or the right. One way to do this is to recognize that rights can apply to groups—like Native Americans, African Americans, women, or the disabled—as much as they apply to individuals.
The concept of a hate crime is a good example of a group right. It is applied to individuals who do not simply violate another person’s right, but who do so out of antipathy for the group the victim belongs to.
Some conservatives object that it is not the hate but the act itself that is a crime and that should be punished. They argue that while hate is a factor in deciding the nature of a crime—say whether a killing is murder or manslaughter—there is no crime of hate. People should be free to love or to hate whomever they wish. Belden’s book helps us to understand why this view is wrong.
Hate is more than just a motivator; it is also a message. When a crime in committed because of a person’s identity as a member of a specific race or religion or because of their physical characteristics, it is a crime both against the individual victim and against the entire group to which the victim belongs. Such a crime serves as both a message to other haters—you should do the same—and to all members of the victims group: watch out, be scared, we will get you.
Belden’s untimely death means that there are issues that his work implicitly raised but that he did not have the time to address. Here are some of them:
- What are the factors that enable a group to claim that it is the kind of group that has rights such that when a member is attacked it can be seen as a violation of a group right as well as an individual one?
- When is a hate crime an assault on a group and when is it just an assault on one individual who happens to share a characteristic that many others share? For example, an assault on a Red Sox fan by a Yankee fan is not normally thought of as a hate crime, even though a lot of Yankee fans do hate the Red Sox and their fans.
- Is there a difference between rights that accrue to all individuals in a group and rights that belong to the group itself as a group—say those intended to protect the group’s identity but that in so doing legitimately limit the rights of individuals in the group? Two examples come to mind: the first is the restriction on some Native Americans to only sell their home to members of their tribe. The second is the authority granted to Amish parents to remove their children from school beyond eighth grade on the grounds that further education would alienate them from their community (as decided in Yoder v. Wisconsin).
- The Amish example raises an important educational question: should the “right to an education for future autonomy” of the child (Joel Feinberg) trump the community’s “right to self-renewal”?
Remembrance
Belden is no longer here to help us with these questions. Sadly, after a long illness and an extended stay at the Meadowbrook nursing home, where he continued his advocacy work and his writing, Belden passed away.
Belden left us at a bad time. When universities are extorted by the Trump administration for not expelling student protesters; when law firms are threatened with huge fines if they don’t appease the president; when ICE drags students off the street and arrests, jails, and threatens to deport them, and all without warrant; when legal immigrants are sent to a notorious prison in El Salvador; and when fear is the administration’s weapon of choice, Belden’s voice is needed more than ever.
I have been proud to count him as a friend and colleague for many decades, and will miss him greatly as will many others. But perhaps the largest loss is to those future students and faculty who will never get the chance to know him, to argue with him, to witness his kindness, and to experience his openness. But perhaps a few of them will address the questions that Belden’s ideas suggest.
Walter Feinberg is the C. D. Hardie emeritus professor of philosophy of education at the University of Illinois, Urbana-Champaign. His latest book, Educating for Democracy, is published by Cambridge University Press.
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