July 26, 2022

Human Rights and the Common Good

Philip Kotler

I spent many years examining the idea of the Common Good (see Philip Kotler, Advancing the Common Good: Strategies for Business, Governments, and NonProfits, Praeger, 2019). Enlightened citizens, in voting on gun control, abortion, or environmental management, need to ask whether a proposed law would advance or hurt the Common Good. Is our society better with no gun control or strict gun control? Is our society better with permitting abortion as a woman’s human right or in banning abortion? Is our society better off with no environmental laws or with rigorous environmental laws?

We first have to define what we mean as advancing the Common Good. The Common Good advances if more people in a society are happier, or improve their health and well-being, or are less ignorant and more educated. We can applaud the Nordic nations (Sweden, Norway, Denmark, Finland, and Iceland) because their social aim is to produce citizens who are happy, healthy and educated. In all rankings of nations by these three measures, all the Nordic nations are in the top eight.

Consider two cases where new human rights advanced the Common Good.

· The U.S. allowed human slavery to be practiced from 1619 until 1865. Slaves had no human rights. Their master could assign any tasks, punish them, abuse them. Their family members could be sold to other landowners. Slaves led miserable lives. Abolitionists worked feverishly to free them and opposed letting new states establish slavery. Freeing slaves would allow these human beings to grow their potential and add to the Common Good.

· The U.S. did not permit women voting rights until 1922. Men wanted women to be wives managing their children and the home. Women had jobs in the meantime earned only 2/3 of what men were paid doing the same work. Men said that women knew little about commerce, governance or politics and therefore couldn’t vote intelligently. Clearly passing the women’s right to vote produced over time a great increase in the Common Good.

Most social progress in industrial countries came from strengthening human rights. Americans refused to pay tea taxes to Great Britain on the grounds that “taxation without representation” is wrong and the American Revolution began.

Thomas Jefferson wrote the following words in the U.S. Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

This majestic statement was inspired by Jefferson’s reading about the European Enlightenment and its major thought leaders including Francis Bacon, Rene Descartes, John Locke, Voltaire, Denni Diderot, Jean-Jacques Rousseau, and David Hume. The Enlightenment period ran from 1637 (Descartes “I think, therefore I am”) to 1815 (the end of Napoleon) and it produced a new consciousness of life and meaning. Disappearing were the feudal days of Kings, princes, and serfs. God and religion was losing some of its absolute power. Rapidly emerging was “freedom of thought, rational inquiry, critical thinking, religious tolerance, political liberty, scientific achievement, the pursuit of happiness, and hope for the future.”

The Enlightenment period was followed by the invention of the steam engine and the Industrial Revolution. Major economic, social and political changes were occurring. Population grew, the number of cities multiplied, economies expanded, new and cheaper consumer goods appeared, new production technologies emerged, and European nations expanded their colonial empires. Global expansion confronted Europeans with the recognition of new religions, cultures and behaviors.

The Evolution of Human Rights

Let’s recognize that most of humanity’s time on earth was without a concept of human rights. The value of human life was slow in coming.

The earliest sign of reverence for human life can be traced back to Babylon’s King Hammurabi drawing up the ‘Code of Hammurabi’. (1760 BCE). The King promises to ‘make justice reign in the Kingdom and promote the good of the people’. More than 1000 years later in India (528 BCE — 486 BCE), Gautama Buddha spoke of morality, reverence for life, non-violence and right conduct. At a similar time, the founder of the Jain sect, Lord Mahavira, talked about the right to life and “Live & Let Live.” Finally the New Testament has Jesus preaching “Do unto others as you would have them do to you (Luke 6:31). The “golden rule” could be seen as the beginning of the ultimate thinking about human rights.

Did the ancient Greeks believe in human rights? Ancient Greek writings do not carry the word “rights.” Socrates, Plato and Aristotle, did posit the existence of natural justice. Aristotle was said to be the father of natural law. The major Greek philosophers were preoccupied with the themes of “justice,” “virtue,” “the good,” and “the beautiful.” Athens citizens had the “freedom” to discuss, debate and vote on public issues. Once the public vote was taken, all citizens had to obey the vote. Greek society’s needs had priority over individual needs. Greek citizens could be exiled, jailed or executed if they violated Greek norms of behavior. Remember that much of the work in Greek society was done by slaves who had no rights. Greek society did not have the modern concept of man “as a free, autonomous agent who chooses his own ends, selects his own means to attain his desired ends, and in general lives for himself.” Human and individual rights were an alien notion to the mind of the ancient Greeks. The right of an individual to live his own life as he or she desired with no interference or dictates by political interests was not present in Greek society.

Ancient Rome also lacked the modern idea of human rights. Up to a third of the Roman population were slaves. Free Roman citizens had to follow the norms of the society.

The first historical light on human rights appeared in the Middle Ages on June 15, 1213 in the form of the Magna Carta. The Magna Carta was imposed on King John of England by rebellious barons to limit his power and prevent arbitrary royal acts like land confiscation and unreasonable taxes. The king would have to consult a defined body of laws and customs before initiating changes in land confiscation or unreasonable taxes. The Magna Carta advanced the rights of barons and official figures, not the rights of individual citizens.

The next step occurred in 1628 with the Petition of Right. The English Parliament sent this petition to King Charles, complaining of a series of breaches of law. Charles had tried to finance his war against Spain and imposed a forced loan compelling gifts from his subjects and imprisoning those who did not comply. Parliament found this to be a violation of the spirit of the Magna Carta and wanted to reclaim the rights of Parliament and of free men to observe the rule of law. The Petition of Right called for recognizing four principles: no taxation without the consent of Parliament, no imprisonment without cause, no quartering of soldiers on subjects, and no martial law in peacetime. The Petition of Right came to be regarded as a constitutional document of the United Kingdom.

In 1689, the Parliament of England passed the English Bill of Rights that creates separation of powers, limits the powers of the king and queen, enhances the democratic election and bolsters freedom of speech. The Bill of Rights established the doctrine of Parliamentary supremacy. The Parliament became the supreme source of law-making over the monarch and the courts, The crown may not create new taxes without approval of Parliament. No army may be kept during peace time without consent of Parliament. The people have the right to bear arms so long as they are allowed to by law. The United States Bill of Rights was mainly modeled after the English Bill of Rights.

In 1776, the new United States passed the Declaration of Independence — proclaiming the right to “life, liberty and the pursuit of happiness.” This was the first utterance of this powerful phrase and it came from Thomas Jefferson.

Thirteen years later, in 1789, the French Revolution and the storming of the Bastille took place to secure “liberty, equality and fraternity.” The French National Assembly released The Declaration of the Rights of Man and of the Citizen, stating that all citizens are equal under the law. The National Assembly believed that the ignorance, neglect, or contempt of the rights of man was the cause of public calamities and government corruption. The National Assembly determined to publish a solemn declaration of the natural, unalienable, and sacred rights of man, The document listed 17 articles, including:

· Men are born and remain free and equal in rights.

· The natural and imprescriptible rights of man are the rights of liberty, property, security, and resistance to oppression.

· Liberty consists in the freedom to do everything which injures no one else. Law can only prohibit such actions as are hurtful to society.

· Every citizen has a right to participate personally, or through his representative, in its foundation. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.

· No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. The law shall provide for such punishments only as are strictly and obviously necessary. All persons are held innocent until they shall have been declared guilty

· No one shall be disquieted on account of his opinions, including his religious views. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.

· The security of the rights of man and of the citizen requires public military forces. These forces are, therefore, established for the good of all and not for the personal advantage of those to whom they shall be intrusted.

· A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all the citizens in proportion to their means. All the citizens have a right to decide, either personally or by their representatives, as to the necessity of the public contribution; to grant this freely; to know to what uses it is put; and to fix the proportion, the mode of assessment and of collection and the duration of the taxes.

· Society has the right to require of every public agent an account of his administration.

· Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.

Finally, in 1948, the United Nations passed The Universal Declaration of Human Rights, the first document listing the 30 rights to which everyone is entitled. Driven by the desire to prevent another Holocaust, world leaders explicitly spelled out the rights everyone on the planet could expect and demand because they are human beings. Included in the thirty articles are:

· All human beings are born free and equal and should be treated the same way.

· Everyone can claim their rights regardless of sex, race, language, religion, social standing, etc.

· Everyone has the right to life and to live in freedom and safety.

· No one has the right to treat you as a slave nor should you enslave anyone.

· No one has the right to torture you.

· You should be legally protected in the same way everywhere like anyone else.

· The law is the same for everyone and should be applied in the same manner to all.

· You have the right to obtain legal help and access the justice system when your rights are not respected.

· No one can arrest or detain you arbitrarily, or send you away from your country unjustly.

· Trials should be public and tried in a fair manner by an impartial and independent tribunal.

· You are considered innocent until it can be proved you are guilty according to law. If accused of a crime you have the right to a defence.

· You have the right to protection if someone tried to harm your good name, enter your home without permission or interfere with your correspondence.

· You have the right to leave or move within your own country and you should be able to return.

· If you are persecuted at home, you have the right to seek protection in another country.

· You have the right to belong to a country and have a nationality.

· Men and women have the right to marry when they are legally able without limits due to race, nationality or religion. Families should be protected by the Government and the justice system. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses.

· You have the right to own things. No one has the right to illegally take them from you.

· Everyone has the right to freely manifest their religion, to change it and to practice it alone or with others.

· Everyone can think and say what they like and no one should forbid it.

· You have the right to organize and participate in peaceful meetings.

· Everyone has the right to take part in their country’s political affairs and equal access to public service. Governments should be voted for regularly.

· Society should help individuals to freely develop and make the most of all advantages offered in their country.

· Everyone has the right to work in just and favourable conditions and be free to choose your work with a salary that allows you to live and support family. Everyone should receive equal pay for equal work. Everyone has the right to form and to join trade unions for the protection of his interests.

· Each work day should not be too long and everyone has the right to rest and take regular paid holidays.

· You have the right to have what you need so that you and your family do not go hungry, homeless or fall ill.

· You have the right to go to school, continue your studies as far as you wish and learn regardless of race, religion or country of origin.

· You have the right to share the benefits of your community’s culture, arts and sciences.

· To make sure your rights are respected, there must be an order that can protect them. This order should be global.

· You have duties toward the community within which your personality can fully develop. The law should guarantee human rights. It should allow everyone to respect others and to be respected.

· No one, institution nor individual, should act in any way to destroy the rights enshrined in the UN’s Universal Declaration of Human Rights..

The United Nations Universal Declaration of Human Rights is distinctive in providing the most complete listing of human rights.

What is Happening Now to Human Rights?

Human rights are far from universal. Human rights vary in every nation. Many “rights” issues arise with abortion, gun control, air and water pollution, crime and punishment, and immigration and refugees. Sovereign nations have the power to define citizen’s rights and also to make changes in their rights. For example, consider how Ireland has handled the abortion issue.

In 1861, Ireland banned abortion. This ban remained in place until 1983 when Irish citizens voted and passed a referendum that “acknowledges the right to life means the life of the woman and the unborn are seen as equal. In 1992, the Irish courts ruled against letting a 14-year-old suicidal rape victim travel to England to terminate her pregnancy. The ruling was later overturned by Ireland’s Supreme Court, saying that the credible threat of suicide is grounds for an abortion in Ireland. Yet this left medical practitioners uncertain about how to handle tough abortion cases.

Over the next several years, the debate continued over whether a pregnant mother can flee to England for an abortion, or could abort a baby who has down syndrome, or a suicidal mother might abort, or a pregnant mother could abort a child resulting from rape or incest. In 2013, Ireland passed a new law legalizing abortion when doctors deem that a woman’s life is at risk due to medical or suicidal complications. But the government also introduced a maximum penalty of 14 years imprisonment for having or assisting in an unlawful abortion. In 2016, the UN warned that Ireland’s ban on abortion even when there is a fatal abnormality is a cruel and inhuman treatment.

In 2017, a Citizens’ Assembly recommended the introduction of unrestricted access to abortion and won a 64% favorable vote. Finally, the Irish government said it will hold a referendum on whether to change the abortion laws. The vote was held in May 2018 and a 64.51% favorable vote led the government to introduce legislation allowing abortion in the first 12 weeks of pregnancy, and between 12 and 24 weeks in exceptional circumstances. All this took place in a country with a huge Catholic population, finally acknowledging the complications a pregnant mother faces in her pregnancy and the terrible uncertainties that medical personnel had faced.

Let’s turn to the same abortion issue that has been bitterly fought in the U.S. between the “right to choose” people and the “right to life” people. In 1973, the U.S. Supreme Court finally decided the issue in the famous Roe vs. Wade Right to Privacy decision. The U.S. Supreme Court ruled in a 7–2 decision that the U.S. Constitution conferred the women’s right to have an abortion. The court established a pregnancy trimester timetable to govern all abortion regulations in the U.S. The decision struck down many federal and state abortion laws and fueled a continuous debate on its legality, morality and religious implications.

On June 24, 2022, the U.S. Supreme Court shocked the nation by overturning Roe v. Wade, ending the right to abortion which had lasted 47 years. The U.S. Supreme Court’s majority in a 6–3 decision held that the earlier decision was “egregiously wrong” and the arguments “exceptionally weak” and “damaging.” This decision meant that abortion was put in the hands of individual states to ban abortions for any reason. Several states are reinstating their old laws banning abortion. Many Republican states and their legislators and governors are busy adding criminal penalties to mothers and doctors who get involved in an abortion. The decision is producing legal chaos and unusual hardship on pregnant mothers and medical practitioners.

This reversal of Roe vs. Wade may affect other civil rights. Justice Clarence Thomas of the Supreme Court said that the legal rationale for the Roe-Wade decision overturn could be applied to overturn other major civil rights cases, including those that legalized gay marriage, barred the criminalization of consensual homosexual conduct, and protected the right of married people to have access to contraception. The Court may even approve of annuling single sex marriages.

Conclusion

My interest in civil and human rights arose in connection with hoping that the nation continues to favor decisions that advance the Common Good. Human rights are pillars that support the Common Good. In many cases, the majority of voters are strongly in favor of laws that protect and advance the Common Good. However, the legal maneuvers of minority opponents allow them to dismantle or weaken human rights. The majority of American citizens favor women’s abortion rights, gun control, and environmental protection legislation. We need to worry about legislatures that get elected and don’t represent majority opinion. Up to now, we assumed that the U.S. Supreme Court will protect and advance human rights. Now this hope has faded.

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Philip Kotler

Philip Kotler is the S.C. Johnson and Son Distinguished Professor of International Marketing, Kellogg School of Management, Northwestern University (emeritus)