Dark ages of human rights? Linda A. Malone reviews Inventing Human Rights.

The leader of the most powerful nation in the world embarks on military campaigns purportedly to spread the revolution of democracy, but which instead lead to worldwide accusations of imperialistic aggression. Strongly supportive of religious freedom and protective of religious minorities, he nevertheless restricts freedom of speech and the press in the asserted interests of national security. His position on civil and political rights seems inherently contradictory. His unbending focus on nationalism leads to a nadir in respect for human rights; their advocacy is portrayed as being selfish and unrealistic, endangering the security of the state. Ultimately the leader alienates both sides of the political spectrum, being too liberal for the religious traditionalists and too conservative for the rights activists.

So goes the description of Napoleon Bonaparte in Lynn Hunt's Inventing Human Rights, a history of the genesis, the decline, and the hopeful rebirth of human rights from the 1700s to the 1948 Universal Declaration of Human Rights. By the time Napoleon was removed from power, Hunt writes, "he was denounced by both traditionalists and defenders of rights as a tyrant, despot and usurper," his only legacy being "a few more secrets in the art of tyranny." As these words suggest, a disturbing conclusion of Hunt's book is that those who do not know this history are doomed to repeat it, with the current epoch repeating the dark ages of human rights in the 1800s.

There is a tragic irony to this history when Abu Ghraib, Guantanamo Bay, domestic spying, and overt defense of torture dominate the news in the United States. History does not support the suggestion that the United States is confronting a threat to its very existence that the country has never before experienced, as some have claimed. Rather, this line of argument is a highly suspect justification often used by politicians seeking to justify their own disregard of human rights.

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Hunt condemns these current human rights developments in the United States, but she also regretfully notes that the concepts, theories, and very terminology of human rights were largely American constructs from the very beginning. It was a quintessentially American dictate that governmental legitimacy had to be justified by its guarantee of human rights. The 1776 Virginia Declaration of Rights proclaimed that "all men are by nature equally free and independent and have certain inherent rights"--which, according to universalist philosophers like Locke, included life, liberty, and property. Such universalist thinking enabled US revolutionaries to imagine the rupture of tradition and British sovereignty necessary that led to the founding of the United States of America.

One of the most intriguing aspects of this entertaining and instructive book is Hunt's attempt to explain why the notion of human rights was born in this time period of civil society. Her conclusions have potential implications for our own era, when societal divisions and political violence tend to elevate the security of the state above protection of individual liberties.

The idea that individuals have rights paramount to the interests of the feudal lords, the king, the landowner, and the state, originates from an incipient sense of individual autonomy. According to Hunt, this is traceable to as varied elements as a rising sense of shame over bodily functions to the novels of the 1700s. A significant consequence of the growing sense of individual autonomy was the rejection of torture as a means of testing guilt, eliciting confessions, and extracting the names of accomplices. As early as the 1780s, Voltaire, Beccaria, and others had made the complete abolition of torture as well as other forms of cruel punishment a fundamental human rights demand. Voltaire would first use the term "human right" in his Treatise on Tolerance on the Occasion of the Death of Jean Calas, where he powerfully depicted the brutal torture of a man proclaiming his innocence, even as his body was being publicly destroyed on the false suspicion that he murdered his son.

In short, the "truths" of human rights became "self-evident" (in the words of the Declaration of Independence) as civil society developed incipient perspectives based on new feelings of individual autonomy and empathy for others.

An evolving literary culture contributed to this shift in sensibility. Particularly critical were the epistolary novels of the eighteenth century, which encouraged readers to identify directly and intensely with characters across gender, national, and class barriers. Hunt postulates that these novels evoked a new culture of empathy, pointing to Rousseau's Julie and Richardson's Pamela and Clarissa as examples. But the moral influence of these books was not limited to the literary world. No less a central human rights figure than Thomas Jefferson put these very books at the top of his list of recommended reading (along with his personal favorite, Sterne's Tristam Shandy), insisting that fiction produces a greater drive for moral education than history.

Yet even in the United States, the emphasis on human rights came under assault early on in history. By 1789, just 22 years after the monumental declaration of the inalienable rights of all (or more precisely, all men), Congress passed the Alien and Sedition Acts that criminalized criticism of the US government. Even now, anti-free speech acts rise from the shadows at times when national leaders feel their power in peril (for example, during the Iran-contra scandal).

It was in the nineteenth century that the ideology of human rights fell victim to the political aspirations of a breed of political leaders different from the American founders. These men portrayed the security of the nation-state and reverence for its leaders, as the pre-eminent social obligation. As the Italian nationalist Giuseppe Mazzini assserted, "What is a Country ... but the place in which our individual rights are most secure?" In this context, universality was the enemy of the nation-state. Moreover, the ideal of human rights was portrayed as a selfish and self-indulgent notion. There were some thinkers who agreed with this viewpoint. Jeremy Bentham, the father of utilitarianism, dismissed human rights as being "nonsense upon stilts." It would take two horrific world wars in this century to eradicate the supremacy of the nation-state as the essential construct of civil society, and the result was the establishment of the United Nations and the Universal Declaration of Human Rights.

Today, the ascendancy of the nation-state over universality has been accompanied by genocide, ethnic cleansing, sexual trafficking, torture, slavery, and a litany of the most grievous human rights abuses. If Hunt is correct that a sense of common cultural perceptions led to the recognition and acceptance of universal human rights, what are we to conclude from the current rights crisis? Mass culture has never been more commonly shared, from worldwide media outlets to global franchises and Internet communications. Why has this commonality of culture not led to increased empathy but instead to the xenophobic "us" versus "them" aspects of the nation-state? Hunt suggests that the ideology of universal human rights prompted two "evil twins" that "the call for universal, equal, and natural rights stimulated the growth of new and sometimes fanatical ideologies of difference. New modes for gaining empathetic understanding opened the way to a sensationalism of violence."

The question remains, however, as to which societal factors caused this change in the universal recognition of human rights. It is certainly debatable whether these evils were created by universalism or simply a moral numbness from crisis overload. But whatever evils that universalism may have engendered, why has the response not been increased activism for human rights? Hopefully, the answer may be that from a historical perspective, we are indeed on the cusp of a renewed commitment to universal human rights. Moral outrage and activism in the United States seems to be increasing proportionally in relation to a growing disillusionment with the domestic and international policies of the current administration. The example which is set by the United States in this turn of events, just as in the 1800s, cannot be overestimated.

LINDA A. MALONE is the Marshall-Wythe Foundation Professor of Law and Director of the Human Rights and National Security Law Program at The College of William and Mary School of Law. Inventing Human Rights: A History is by Lynn Hunt (W.W. Norton, 2007).