Laws are not written on parchment, but on sensitive human skin.

Fritz Brauer

From the perspective of the early twenty-first century, it may sometimes seem as if the history of human rights should be told as a success story constantly progressing; as a historical “victory” of combining philosophical ideas, revolutionary political declarations as well as historically groundbreaking legal conventions.Footnote 1 However, these very ideas, proclamations and declarations mostly emerged from experiences of blatant injustice or even massive violence, from arbitrary political rule, state terror or even devastating wars. This historically unpleasant insight very often recedes into the background. A famous example of the importance of those experiences is arguably the most symbolic document of all human rights developments, namely the Universal Declaration of Human Rights of 1948. It reminds us in its preamble that the “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”. And from today's point of view, it is very unlikely that this “mankind”—which had just been “united” within the new framework of the United Nations—would have made such a concerted decision to protect human rights under international law, if the global catastrophe of the two world wars and the fascist barbarities in Nazi Germany and elsewhere had not sent out the message, which could now be heard worldwide, that such disasters must not be repeated.Footnote 2

From the perspective of the history of philosophical ideas, these in part monstrous experiences of historical injustice in the twentieth century—interpreted as a worst case scenario that erupted and caused some kind of global rethinking—brought to fruition a famous prognosis from the late eighteenth century, according to which the progressive globalization of political relations would lead—step by step—to a worldwide awareness of historical injustice and thus also to progress in positive international law. It was Immanuel Kant who wrote in 1795 in his treatise Toward Perpetual Peace:

Since the (narrower or wider) community of the nations of the earth has now gone so far that a violation of right on one place of the earth is felt in all, the idea of a cosmopolitan right is no fantastic and exaggerated way of representing right; it is, instead, a supplement to the unwritten code of the right of a state and the right of nations necessary for the sake of any public rights of human beings and so for perpetual peace; only under this condition can we flatter ourselves that we are constantly approaching perpetual peace.Footnote 3

Kant was already hoping or even of the conviction that, in reaction to local but globally witnessed violations of human rights, serious global legal progress would come about, with which the international community of peoples would agree on a world order providing for peace in favor of the rights of individual “citizens of the world”. In the following essay I want to tie in with this visionary, but after 1945 no longer utopian hope of Kant: The history of human rights, as it will be shown, is—last but not least—to be told as a legal history of the collective “processing” of experiences of historical injustice. The supposed “victory” of human rights in the twentieth century has been the tragic result of monstrous violence, countless victims and dehumanizing suffering. Therefore, if human rights theory wants to make sense of the historical “meaning” of human rights after 1945, one will have to follow these traces of war, violence and degradation that have etched themselves (and continue to etch) into modern human rights thinking.Footnote 4

However, a central methodological difficulty must be mentioned: “Original” or authentic experiences of war, violence and degradation are hardly accessible from today's perspective. The academic discourse on human rights violation is rather dependent on historical documents and documentation, reports of eyewitnesses as well as on literary, autobiographical works in which historical injustice has already undergone a certain process of reflexive interpretation. The extremely difficult methodological question is, how exactly the personal or biographical experiences documented in these exemplary testimonies do relate to any collective learning processes that are reflected in corresponding and ongoing developments of human rights thinking. But this difficult question will be answered here only to some extent.Footnote 5 The following considerations are rather to be understood as basic initial or propaedeutic hints as to how the historical “legacy” of inhuman or even barbaric experiences of injustice could be tapped by a philosophy of human rights well informed by contemporary history.Footnote 6

The first main section of this essay will deal with the conceptual linking of the ideas of “human rights” and “human dignity”, which can be understood as a legal-philosophical as well as international answer to the civilizational ruptures of the twentieth century. In the second step, the “totalitarian content” of the experience of violations to human rights and human dignity will be discussed; mainly by referring to the impressive memoirs of Jean Améry. In the third section, this will lead to the central conceptual insight that human rights theory should distinguish between “fundamentalist” and “relativist” violations of human rights and that by no means every violation of a human right is at the same time a fundamentalist violation of human dignity. Thus, two very different forms of experience of discrimination and human rights violations are labeled. These two different experiences unfold in correspondingly different political dynamics as soon as public disputes, and thus political struggles against concrete human rights violations, arise. At the end, the main upshot of these reflections will be the following: the dynamics of experience-saturated struggles against human rights violations and corresponding discrimination as analyzed here do result in a historical learning progress of national and international law, which draws ex negativo a diametrically opposed lesson from grave experiences of inhuman unequal treatment.

1 Human Rights as a Response to the Civilizational Ruptures of the Twentieth Century

1.1 The Original Catastrophe of the First World War

Some years ago, in July 2014, marking the 100th anniversary of the outbreak of the First World War, the shelves of major bookstores were filled with voluminous bestsellers,Footnote 7 conveying to their readers in rich detail the geopolitical causes and consequences of that “great seminal catastrophe of the twentieth century”.Footnote 8 Far more than 17 million people met a violent death. But in those rather academic studies of history or political science, the reader usually learns little about the victims themselves and the very often horrifying violence they have experienced and suffered on the battlefields as well as in the trenches of gas warfare. How could such terrible experiences of violence be put into a “sober” scientific analysis? How to convey these experiences to an audience today that has only heard from stories about the First World War and thus the physical and psychological annihilation of an entire European generation of young men only from stories? In the context of this phenomenologically difficult undertaking, literary narratives and biographical memoirs may be far more effective; such as the famous novel All Quiet on the Western Front by Erich Maria Remarque, which was originally published in 1929 and may have shaped the public image of the personal or subjective horror of the devastating war like hardly any other work of world literature.Footnote 9

During a frontline mission, the main character of the novel, Paul Bäumer, a young war volunteer, is wounded, and during his stay in a field hospital and in view of the human suffering that manifests itself there, the following thoughts come to his mind:

It is impossible to grasp the fact that there are human faces above these torn bodies, faces in which life goes on from day to day. And on top of it all, this is just one single military hospital, just one—there are hundreds of thousands of them in Germany, hundreds of thousands of them in France, hundreds of thousands of them in Russia. How pointless all human thoughts, words and deeds must be, if things like this are possible! Everything must have been fraudulent and pointless if thousands of years of civilization weren’t even able to prevent this river of blood, couldn’t stop these torture chambers existing in their hundreds of thousands. Only a military hospital can really show you what war is.

And the protagonist continues in a reflection on the fate of his whole generation of fellow sufferers that is both biographical and gloomily diagnostic of the times:

I am young, I am twenty years of age; but I know nothing of life except despair, death, fear, and the combination of completely mindless superficiality with an abyss of suffering. I see people being driven against on another, and silently, uncomprehendingly, foolishly, obediently and innocently killing one another. (...) What do they expect from us when a time comes in which there is no more war? For years our occupation has been killing—that was the first experience we had. Our knowledge of life is limited to death. What will happen afterwards? And what can possibly become of us?Footnote 10

Only some years before Remarque and equally under the impression of the historical catastrophe of the First World War, German theologian and philosopher Ernst Troeltsch was confronted with very similar horrors challenging also intellectual thinking of his time. According to Troeltsch, the massive catastrophe just experienced made it inevitably questionable whether and how philosophy would be able to react to this comprehensive “decomposition” of humanity in Europe and elsewhere as well as to the “nihilism” rampant in the following post-war period by acquiring any “new” moral values. In an academic lecture already written in the early 1920s and obviously under the acute shock of the war eventsFootnote 11 Troeltsch states: All “natural norms”—and all “supernatural” ones also—had proved to be completely illusory and incapable of stopping the catastrophe of war. Instead, the European value system had been carried to its grave on the blood-soaked and gas-fogged battlefields, and millions of human beings had been sacrificed to the nationalist interests of belligerent governments. Perplexed and desperate, the post-war world looks at a heap of ruins—architectural and also moral ones—and now asks itself how—under these circumstances—any kind of resurgence of enlightened humanity might ever come about again:

History demands a confrontation with the idea of an enduring and authoritative system of values, which, after all, seemed to be washed under and torn to shreds by this very current.Footnote 12

The historical and philosophical answer, which Troeltsch himself sketched in his lecture, will prove to be truly visionary for the twentieth century: In view of the desolate fragmentation of Europe, indeed of the world as a whole, brought about by this terrible war, a global reflection on the very “ideal of humanity” must follow; and thus a reflection not on what distinguishes the German as a German, the Frenchman as a Frenchman, the Russian as a Russian, but rather on what makes a human being a human being and thus has to be regarded as the decisive equal aspect of everyone’s moral respectability. This, according to Troeltsch, is a twofold creative task: On the one hand, mankind, torn as it is, needs to reflect on what human beings are able to make out of themselves and their moral capacities in free and productive “self-creation”. Troeltsch calls this human capacity the creative potential of “human dignity”. On the other hand, every single human being should respect exactly this creative capacity of human dignity also on the part of every other human being. And it is precisely this universal claim to equal respect, which is to protect the human dignity of each individual human being, that is meant by the idea of inalienable “human rights”. In other words, and according to Troeltsch’s far-sighted view of both the philosophy of history and international law, the world after 1918 should seek a new normative framework of orientation first and foremost in a truly global reflection on the mutually justifying connection between human dignity on the one hand and human rights on the other.Footnote 13

1.2 The Revolution of Human Rights Under International Law After 1945

What neither Troeltsch nor Remarque nor any other sensitive contemporary may have suspected: another two decades will pass, and 60 million more people will die under often barbaric circumstances, before this historical and philosophical “message in a bottle” seems to arrive. It will only be the horrors of the Second World War and the monstrous experiences of totalitarian barbarities inside and outside Nazi-Germany through which the world community seems to come to its senses by establishing international laws reflecting on the violent connection between human dignity on the one hand and human rights on the other. It was not until 1945 that this “new” understanding of humanitarian values began to emerge on a global scale, according to which the threatened but converging world community, integrated both politically and by means of international law, had to declare rights of “the” human being—grounding them on the very idea of an equal, but empirically contested claim to human dignity.Footnote 14

Thus, for example, the Charter of the United Nations from 1945 speaks of the “scourge of war, which twice in our lifetime has brought untold sorrow to mankind”. These sorrowful experiences should bring the international community of states closer together within in a whole new peace cooperation of international law “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”. And the Universal Declaration of Human Rights of 1948, as already quoted in part at the beginning of this essay also recalls that the “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”, prompting the world to recognize the “inherent dignity and of the equal and inalienable rights of all members of the human family” as “the foundation of freedom, justice and peace in the world”. Therefore, even at the level of the United Nations, which had just been founded shortly after the Second World War, a conceivably close and implicitly violent connection between human rights on the one hand and human dignity on the other hand is asserted, which Troeltsch had already envisaged at the beginning of the 1920s: It is because every human being should live a decent life free from war, violence and barbarism and thus in dignity, that humanity as a whole—and now also all nation states and governments in this world—must see to it that human dignity is effectively protected by individual human rights.

Consequently, the philosophical conviction that the ideas of human dignity and human rights are “two sides of the same coin” seems to have seeped into international law after 1945 as a result of the historical experience of massive and inhuman injustice: From now on, whoever might claim for human rights will always do so also in the name of a fundamentally threatened human dignity. And the other way around: whoever believes in human dignity must at the same time stand up for its protection by universal human rights. And so, in the following period of stabilizing and expanding the United Nations, there is hardly any document relevant to human rights in which there is no explicit mention—usually right at the beginning—of the dignity of “the” human being, from whose worthiness of protection corresponding human rights are to be derived.Footnote 15

This conceptual link between human dignity and human rights, which—from the perspective of the history of philosophical ideas—had not at all been familiar before, should be seen as the result of a mass experience of a historically unprecedented catastrophe. It was only after the Second World War that human dignity became a leading “legal concept”Footnote 16; a legal good to be protected under both constitutional and international law and thus at the same time an “obligation of all state authority”, as it says, for example, in famous Article 1 (1) of the German constitution from 1949. Conversely, it was not until after the Second World War that it became legal practice to explicitly commit the idea of human rights to the protection of human dignity. This specific conceptual linkage, which has somehow “emerged” in legal history, can be interpreted in such a way that the horror of the two world wars and the totalitarian crimes within and outside Nazi-Germany—by being perceived worldwide—must have been more than just a global shock at mass violations of specific fundamental rights of the individual. Rather, there has been a worldwide shock about systematic “crimes against humanity” and thus about experiences of violent crimes that, in a sense, went deeper than legally codified experiences of violence and injustice before.Footnote 17

What is meant by “deeper” here: these historically unprecedented forms of injustices not merely negated any specific legal claims of the individual victim; e.g., a right to life, to physical integrity, to freedom of movement, political participation, etc. Rather, these monstrous crimes negated—to a certain extent “through” these concrete individual claims—the basic value of mere humanity, indeed, humanity as such. The victims concerned—not only on the battlefield or as parts of the civilian population that has been bombed, but especially as victims of the barbaric concentration and extermination camps—were treated in such an “inhumane” way that they were implicitly denied to be members of the human community at all—as to be respected morally or legally as of equal worth. And at the same time, it had become more than questionable whether the emphatic use of the category of “humanity” would still have any normative unifying power at all.Footnote 18

It was Hannah ArendtFootnote 19 who pointed out this problem immediately after the Second World War: The atrocities of the war and the fascist barbarities have led not only to a mass violation of individual human rights, but to a complete disenfranchisement of the victims, by way of their successive degradation and complete dehumanization. Those victims were deprived of all rights by being denied their very humanity and thus all moral and legal relevance. Human life had been sacrificed millions of times on the battlefields or even deported as “unworthy” to the concentration camps in order to be “gassed” there with bureaucratic and industrial meticulousness. This prompted Arendt, as is well known, to the critical question of what use the so-called human rights were to all the innumerable victims, but also to refugees and stateless persons, who had not even been in possession of a much more fundamental right, namely the “right to have rights” at all.Footnote 20

It is precisely this fundamental loss of human respect that took the form of a comprehensive brutalization and totalitarian dehumanization in the various arenas of violence, whether in the trenches, in the urban hail of bombs, in fascist “night and fog actions”, in the prisons of the Gestapo and above all in the extermination camps.

This dehumanization not only manifested itself in the way those victims were treated by their tormentors, but even seemed to take hold of the victims themselves in a perfidious and fatal way, slowly turning them into a kind of perpetrators of their own. In Primo Levi’s memoirs If this is a man one can read with respect to the extermination camp:

No one must leave here and to carry to the world, together with the sign impressed on his skin, the evil tidings of what man’s presumption made of man in Auschwitz. (...) One has to fight against the current; to battle every day and every hour against exhaustion, hunger, cold and the resulting inertia; to resist enemies and have no pity for rivals (...). Or else, to throttle all dignity and kill all conscience, to climb down into the arena as a beast against beasts (...). Survival without renunciation of any part of one’s own moral world (...) was conceded only to very few superior individuals.Footnote 21

And Remarque had already pointed out something very similar with regard to the young soldiers of the First World War:

In the same way that we turn into animals when we go up the line [the front, A.P.], because it is the only way we can survive, when we are back behind the lines we become superficial jokers and idlers. We can’t do anything about it—it’s compulsive. We want to go on living at any price, and therefore we can’t burden ourselves with emotions that might be all very nice to have in peacetime, but are out of place here.Footnote 22

As incomparable as the fates of soldiers and concentration camp victims may be, the message emanating from both accounts is that there is obviously something even worse than one's own violent death. And that is a survival of inhumane violence on an equally inhumane or even “animalistic” level, which in the end turns formerly proud people with hopes and moral self-respect into barbarians themselves. It is the desperate and ruthless desire for life at any cost that ends up playing into the hands even of one's own degradation,Footnote 23 and accordingly the historical lesson of these brutal experiences could be the following: If human beings are systematically put into a situation in which they have to fear incessantly for their “naked” life, they will permanently experience this as a double dehumanization and degradation, because in the end they may even see their own personal activity or even “responsibility” of being entangled in it. Perhaps it is precisely this forced “complicity” that constitutes the sadistically most cruel aspect of such crimes against humanity, which the discourse on human rights and human dignity has been opposing since 1945. What is at stake here, it seems, is not only the already inconceivable amount of physical extermination that accompanies the two world wars and totalitarian crimes. Rather, it is about the “evil tidings”, as Levi puts it, of “what man’s presumption made of man in Auschwitz”, and that is: doubly degraded and thus undignified creatures, desperately begging for naked living, who no longer seem to be entitled to respect or self-respect, and in view of whom Levi’s book title arises as a question: Is this a man?

2 On the Significance of Human Dignity According to Jean Améry

2.1 Reflections from the Inhumane Life

It must be difficult for all those born later, indeed it is almost downright presumptuous, to talk or write about the very barbaric dialectic of a loss of respect and self-respect which, according to Levi, has occurred in the concentration camp—and not only there. This fatal connection between the struggle for naked survival on the one hand and the experience of fundamental inhuman degradation on the other is elaborated with particular clarity in the memoirs of Jean Améry. If one reads his deeply disturbing reports and philosophical interpretations of his own experiences as a victim of Nazi terror, it also becomes clear that this terrifying connection between naked survival and dehumanization forces a “new” understanding of the philosophical term “human dignity”. The original subtitle of Améry’s collection of autobiographical essays named At the Mind's LimitsFootnote 24 spoke of “Bewältigungsversuche eines Überwältigten” (coping strategies of an overwhelmed). What has been largely overlooked by the philosophical debate on the concept of human dignity, for which contemporary witnesses such as Améry or Levi are known to have played a significant role, is the fact that Améry explicitly wanted his memoirs, noted down at different times and on different occasions, to be understood retrospectively and explicitly as a learning process—both personal and philosophical—concerning the concept of dignity. The preface to the first edition of the volume from 1966 states:

(T)he reader (...) will come upon contradictions in which I myself got caught up. In the essay on torture, for example, it was still completely unclear to me what significance should be given to the concept of dignity, and I brushed it off with a sweep of the hand, as it where, whereas later, in the essay on my Jewishness, I believed to recognize that dignity is the right to life granted by society.Footnote 25

In fact, in those two essays of the volume, which were written first in biographical terms (“At the Mind’s Limits” and “Torture”), one initially finds exceedingly mocking remarks, which from a distance might remind the philosophical reader of Arthur Schopenhauer’s famous criticismFootnote 26 of Immanuel Kant’s concept of dignity:

We did not become wiser in Auschwitz (...). We perceived nothing there that would not already have been able to perceive on the outside; not a bit of it brought us practical guidance. In the camp, too, we did not become “deeper,” if that calamitous depth is at all a definable intellectual property. It goes without saying, I believe, that in Auschwitz we did not become better, more human, more humane, and more mature ethically. You do not observe dehumanized man committing his deeds and misdeeds without having all of your notions of inherent dignity placed in doubt. We emerged from the camp stripped, robbed, emptied out, disoriented (...). With that we lost a good deal of arrogance, of metaphysical conceit (...). Jean-Paul Sartre said at one point that it took him thirty years to rid himself of traditional philosophical idealism. I can guarantee that it did not take us as long.Footnote 27

And elsewhere he states:

Not much is said when someone who has never been beaten makes the ethical and pathetic statement that upon the first blow the prisoner loses his human dignity. I must confess that I don’t know exactly what that is: human dignity. One person thinks he loses it when he finds himself in circumstances that make it impossible for him to take a daily bath.Footnote 28

At first glance, it seems as if Améry, who was tortured by the Gestapo and later deported to Auschwitz, did not have a proper concept of dignity—as a philosophical category of interpretation—at his disposal. Rather, this concept seems to have been lost in Auschwitz altogether—which would even speak directly against today’s common interpretations of the human rights concept of dignity as a historical reaction to the Holocaust. But with the last essay of the cited book (“On the Necessity and Impossibility of Being a Jew”) this impression changes dramatically:

To be a Jew, that meant for me, from this moment on, to be a dead man on leave (...) The death threat, which I felt for the first time with complete clarity while reading the Nuremberg Laws, included what is commonly referred to as the methodic “degradation” of the Jews by the Nazis. Formulated differently: the denial of human dignity sounded the death threat.Footnote 29

And a little later, this idea is further elaborated:

What is dignity, really? (...) Degradation, that is: living under the threat of death, would be an inescapable fate. But luckily, things are not entirely the way this logic claims. It is certainly true that dignity can be bestowed only by society, whether it be the dignity of some office, a professional or, very generally speaking, civil dignity; and the merely individual, subjective claim (“I am a human being as such I have my dignity, no matter what you mean, do or say!”) is an empty academic game, or madness. Still, the degraded person, threatened with death, is able—and here we break through the logic of the final sentencing—to convince society of his dignity by taking his fate upon himself and at the same time rising in revolt against it.Footnote 30

And Améry gives the following example of this revolt, as a kind of reminiscent of Albert Camus’ L'Homme révolté:

Before me I see the prisoner foreman Juszek, a Polish professional criminal of horrifying vigor. In Auschwitz he once hit me in the face because of a trifle; that is how he was used to dealing with all the Jews under his command. (...) In open revolt, I struck Juszek in the face in turn. My human dignity lay in this punch to his jaw.Footnote 31

2.2 Life Under the Threat of Death

As already indicated, Améry himself retrospectively claimed to have learned something important from these own experiences of inhumane degradation, and he did so with a decidedly philosophical view of the traditional concept of human dignity. But exactly what philosophical insight of Améry's is at stake here? If something important was lost to him during Gestapo detention and later on in the concentration camp, then this can only be a very specific concept of human dignity, namely the metaphysical or religious, but in any case “idealist” concept of dignity as an inalienable value property or innate “dowry”. It is precisely this concept of dignity which, according to Améry, has become historically obsolete and which has now to be replaced by a new interpretation of dignity generated ex negativo from one’s own experiences of brutal violence. And that is the idea of dignity whose essence is the solid and defensible capacity to respond to any attempts at humiliation with a counter-defense that is able to preserve one’s own self-respect. Human life, according to Améry, is always at stake when a person is treated in such an inhumane way that she is not killed but confronted with the cruel message that she will never again be able to be sure of her life. This human being is rather left alive because someone wants to inscribe on this person the message that she is, as Améry says, “not worthy of life”.Footnote 32 And precisely this inhumane assertion of fundamental unworthiness requires a reaction from the person concerned, which she may not always have the strength or courage to perform.

So it seems that there is indeed something much worse than one’s own death, namely a life in permanent danger of arbitrarily imposed death; a life that “dehumanizes” human beings—step by step—by reducing them in a degrading and humiliating way to their “bare” existence.Footnote 33 Henceforth, it is others who are masters of my life—no longer myself. The person becomes “vogelfrei” (outlawed), and the degrading point about it is not the permanently possible death as such, but a life beyond any control. And sometimes it may even seem better to actually die than to continue living in such an inhumane way. At the same time, in view of this total dehumanization, there remains only one way to remain human in a humane way; in a way that seems unquestionably heroic and is “conceded only to very few superior individuals” (Levi), which is highly dangerous and therefore hardly recommendable. And that is the rebellion, if necessary violent, against the completely degrading and dehumanizing “logic of the final sentencing”, as Améry puts it.Footnote 34

Just to avoid a possible misunderstanding: It is not to be claimed here that today’s use of the concept of dignity, e.g. in bioethical contexts, always resonates with the depth of the totalitarian dimension pointed out here.Footnote 35 Apart from that, many interpreters still adhere to an ultimately metaphysical concept of dignity as an innate “dowry”, which would vehemently deny a conceptual dependence of dignity on concrete social respect or one’s own self-respect. For the time being, we shall only reflect on the historical experiences from which the post-totalitarian concept of human dignity and its conjuncture with human rights is motivated. And if one wants to refer to Améry at this point, as suggested here, it is his interpretation of his own experiences of inhumane injustice that establishes a philosophically revealing connection between the concepts of “dignity” and “life”: On the one hand, there is a qualitative difference between mere survival and a specifically humane or decent life in dignity. In other words, one can live a life without living decently “in self-respect.” On the other hand, naked survival is not simply a necessary “vital” condition for that life in dignity. Rather, a life in dignity might already become impossible if it is a matter of living in the face of constant threats to life.

According to Améry and also Levi,Footnote 36 a life in involuntaryFootnote 37 danger, being subjected to arbitrarily acting perpetrators, is degrading, humiliating or even dehumanizing, because the person concerned, by worrying incessantly about her own survival, is reduced to an “animal” that wants nothing but to survive—and is therefore capable of doing just anything. Life, on the other hand, has dignity only when it has a certain value for the person concerned; a value that goes beyond mere survival. And in contrast to metaphysical, religious or “idealistic” conceptions of dignity, as Améry says, life does not have this value per se and therefore innately and inalienably. Rather, what many ancient interpreters of dignity once took for granted also applies here: The dignity of the individual human being depends on social recognition and thus on an intersubjectively mediated, incorporated “attitude” towards one’s own life; an attitude of self-respect that the person concerned must sometimes even defend directly against social attacks and attempts at degradation.Footnote 38 From there it follows: It must already be a matter of a qualified human life if we want to speak of dignity, and the quality meant here is attained only if those persons concerned are allowed to lead a life that transcends the naked struggle for survival and is borne by self-respect. Human life has dignity only when the people concerned ascribe to it a value that generates their self-respect.

3 Violations of Human Dignity and Rights

3.1 Two Types of Human Rights Violations

In view of the historically and violently “grown” connection between human rights and human dignity, the question is obvious whether human rights violations always also represent violations of human dignity—and vice versa. In Améry’s writings, the concept of human rights—in contrast to that of human dignity—is not explicitly mentioned. But his memoirs well support the view that human rights violations of lesser “severity” are possible, violations whose message does not directly amount to a totalitarian and permanent death threat. One can think of the much-discussed example of state or intelligence agency intrusions into the private sphere, of cases of arbitrary bans on demonstrations, of state manipulation of elections or governmental censorship of the press. All these practices may be human rights-relevant or even direct human rights violations, but it would obviously be going too far if these incidents were to be understood as first moments of a “chronicle of a death foretold”.

Thus, there seem to be two fundamentally different forms of human rights violations committed by the state, and these two forms will be distinguished in the following by declaring one as “relativist” and the other as “fundamentalist”Footnote 39; whereby it will be shown that only in the second case is the human dignity of the affected victims also affected. The distinction in question takes account of the fact that human rights theories are generally confronted with two types of criticism when it comes to the claim of “universal” validity: One camp in this discussion represents a fundamentalist critique of human rights insofar as it fundamentally or a priori denies that all humans are bearers of human rights at all. Rather, a normative relevance of simply belonging to the human species is already denied on a principled level. The assumption here is that simply being a part of human mankind does not entitle people to anything at all; for the granting of basic rights is always based on more demanding criteria, which some people may satisfy and others do not. Or, as the “totalitarian” variant of this fundamentalist view puts it, some human beings have no morally or legally relevant value at all. They can be regarded as completely “worthless”, consequently lacking any basic rights at all, and they can therefore be treated like “things”, ”animals” or even as “pests”Footnote 40 and “vermin”—and “exterminated” accordingly.Footnote 41

The relativist critique of human rights does not necessarily go that far. It does not claim that some people have no human rights at all. It merely denies that all people strictly have the same rights a priori and unconditionally. Even today, for example, in some monotheistic religious communities, there is this widespread view that men, women and children might all belong to the circle of bearers of human rights. But at the same time the “divine plan” provides more rights for male members of the species than for women or children. This would mean: Men, women and children have human rights, but men have more human rights than women and children. The latter are denied the status of being a “full-fledged” and therefore equal status of a human being as a human being. They thus become “second-class” human beings, even though some human rights may very well be granted to them. Consequently, the idea of human rights is recognized here in principle, but at the same time the idea is also relativized. That means: limited in its normative scope or provided only with reservations.Footnote 42

These two forms of critique of human rights universalism start at different “depths” and find their active counterparts in forms of concrete human rights violations penetrating corresponding depths. Or, to put it differently: all particular violations of human rights can be understood as different forms of an “executed” critique of human rights—not in the sense that human rights violators would need a certain “theory” for their action, but in the sense that in this action anti-human rights attitudes are expressed, which are also familiar at the level of public or even academic discussions. Accordingly, empirical human rights violations can also have a different depth of intervention or different degrees of severity, depending on whether the equality of all human beings is only partially or fundamentally disputed.

Every concrete violation of a human right constitutes an act of legal “discrimination” because it calls into question the equal status of all human beings. But as already indicated, this human rights discrimination can occur in two fundamentally different ways: In the course of fundamentalist or even totalitarian discrimination, it is denied in principle that the people concerned have normative or legal significance and therefore also human rights. Consequently, these people are deprived of all their rights; they are “disenfranchised” as human beings and “dehumanized” precisely by being told that they do not count morally or legally at all. Exactly these are the experiences that Améry speaks about, that Levi is concerned with, and that Arendt also had in mind; humiliating experiences that result from an extreme or fundamental exclusion from the circle of those human beings who count. And from the middle of the twentieth century onward, these experiences can and will increasingly be reconstructed within human rights discourse with respect to the very notion of human dignity.

The situation is different, however, in the case of merely relativist forms of human rights discrimination. These forms of discrimination are far more frequent today. In relativist cases, what is just denied is being confronted with a human being that exactly has the same rights. Those people concerned may have normative relevance as well as human rights significance just by being human, but in an unequal way. In most of these cases, only a single right or subgroup of rights, e.g. political rights to participation, is denied, but not the very basic human rights status of being a human individual that counts. At the same time, this means that basically every violation of human rights is relativist in this sense. For—apart from the denial of an individual claim—the violation of a human right means nothing other than the refusal, executed on the victim, to recognize his strictly egalitarian status of full legal membership. But for a merely relativist violation of a human right to become a fundamentalist violation of the same human right, a decisive and more serious aspect must be added: In the fundamentalist case, not just a singular legal claim is denied and thus the status of egalitarian membership is disputed, but a complete disenfranchisement of the victim is targeted and thus her exclusion from the circle of those who count legally as human beings at all.

3.2 The Historical Struggle for Equal Human Rights

With the considerations just outlined, different depths and dimensions of experiencing human rights violations emerge. These differences generate a bifurcation among historical struggles against human rights discrimination. For this struggle can either mean the demand for political and legal inclusion of formerly fully excluded groups; an inclusion which is in a certain sense a priority because it is anti-fundamentalist and therefore extremely relevant for the equal recognition of human dignity as well. One may think here of historical struggles for the legal inclusion of slaves, black people, workers, women, migrants, homosexuals, the disabled, etc. In the past, individuals with the corresponding characteristics enjoyed no rights at all. Or this struggle is about “full” membership and the “continued” and strictly egalitarian inclusion of all those people who might already count in principle, but who have so far still been deprived of at least some specific human rights.Footnote 43 So, in all political disputes about human rights, either fundamentalist and therefore inhumane exclusions or merely relativist forms of unequal treatment are criticized and articulated. In both cases, however, a profound experience of political powerlessness is at stake, that goes beyond the concrete violation of an individual claim: a loss of power that results from the fact of either being completely disregarded by the representatives of public order or of not equally being taken “for granted”. And as we will see in a moment: When this powerlessness turns into public indignation and begins to organize politically, governments and institutional frameworks may come under pressure and begin to transform themselves in accordance with those human rights claims.Footnote 44

On a conceptual level, it should be noted first that any legal progress resulting from this two-stage struggle against human rights violations can be understood as steps in a “learning process”Footnote 45 of progressive non-discrimination; namely in the direction of fundamental inclusion in the first step and of equality in the second. The idea that this is a historical learning progress in law based on concrete experiences of injustice and dependent on social struggle.

How shall we describe the conceptual assumptions of the legal philosophy of such struggles? The struggle for human rights might be a struggle in favor of particular individual interests at a historically particular moment in time; e.g., a concrete fight for freedom of speech, political or social participation, and so on. At first glance, theory could therefore conclude that human rights disputes are solely about violated individual interests and concrete claims, according to the following scheme: The people affected subjectively experience the violation of a concrete legal claim—to freedom of expression, political participation, social share, etc.—and, together with others who are similarly affected, they decide to fight against these grievances and to struggle for the right in question.

But this quite schematic view falls short conceptually if it is understood in purely materialistic terms, i.e. as a struggle for the satisfaction of interests or needs. The struggle against human rights discrimination has a much wider scope: The respective individual rights holder may indeed be motivated to this struggle by the fact that she sees important personal interests violated. But this experience of discriminatory arbitrariness is not only an experience of denied claims, but at the same time an experience of political powerlessness in the face of refuted recognition as a full-fledged legal subject. As Franz von Jhering once noted in 1872, the disregarded person not only fights for the respective right that is denied to her, but always also for her own “self-respect”, which is offended by this discriminatory unequal treatment.Footnote 46 But, according to Jhering, that is not enough. Aware of it or not, when she fights for her right, she is fighting not only for her own claims and her self-respect, but at the same time for the claims and self-respect of all other persons who are denied this right. And, in the end, the person concerned, struggling for her recognition as a full-fledged legal subject, even fights for “the” right as such, because “in my right the right is offended and denied, it is defended, asserted and restored”.Footnote 47

That would mean: Whoever fights for a right at the same time fights not only for his own right, but also for that of all others as well as for the legal order as such. And whoever fights for a particular human right fights at the same time for the human right of all other human beings as well as for a non-discriminatory transformation of the legal order as a whole. In historical retrospect, all these originally individually motivated struggles successively lead to a collective struggle against any kind of unequal political treatment as well as against any attempts to still justify such unequal treatment. By successfully fighting down this or that unequal treatment, those who are still in favor of this inequality will run out of argumentative “ammunition”. They may still be convinced of the justifiability of a certain kind of discrimination, but if they lack the political power to execute this inequality—as it were, because the legal system has now made appropriate provisions—this will be of no further consequence. And what in the end historically “remains” or at least could remain is the idea of a strict equal treatment with respect to human rights, because this is the only idea against which nothing speaks—in the long run.Footnote 48 It is precisely this idea of a historically “residual” equality, which is fundamental for a proper conception of human rights; an equality not yet realized, but politically anticipated by all those who fight against concrete violations of human rights, even if they personally sue for quite concrete and first and foremost their own claims.

4 Human Rights Progress

4.1 Collective Learning?

The previous section proposed a conceptual mediation of material interests, individual and collective claims to respect and self-respect, and legal or political concerns of inclusion and equality. Only these three aspects together explain the “explosiveness” of struggles against human rights violations and thus the political or rhetorical “pathos” of human rights. The human rights struggle for successive non-discrimination, it had been claimed, leads to a progressive learning process in law. “Learning” here, in turn, means only that a legal collective comes to the historically grown insight that a relativist or even fundamentalist unequal treatment of different human beings can no longer be generally justified. From a methodological point of view, the intended learning outcome is therefore primarily a negative one: it merely states that a massive unequal treatment of certain people or groups no longer appears to be defensible. A positive justification for equality does not result from this. Nor do these learning processes show any compelling logic. Whether a particular person or collective is convinced of the ideas of human rights and equal respect always depends on whether one is already “used” to a corresponding “attitude” or “practice” of mutual respect.Footnote 49 Political opponents of human rights equality will hardly be persuaded to change sides by philosophical justification only. It seems to be true that a person cannot simultaneously advocate a contemporary conception of egalitarian human rights and deny the equal value of all human beings. But one can very well deny the equality of all human beings—but then this person has not accepted or no longer holds the position of a contemporary theory of universalist human rights.

However, in order to be able to speak of a political “struggle” for human rights equality, just a “single” individual learning progress, a particular personal experience of injustice or a lonely outraged voice will obviously not be enough. For individual human rights violations to develop a social dynamic, a significant number of people must suffer or at least witness relativist disregard and experience it as a kind of political powerlessness. And they have to transform this powerlessness into active indignation, they have to unite with others and to revolt against these rights violations they have suffered or witnessed. The political protagonists of these public disputes and confrontations can be quite different: the concrete victims themselves, their relatives or friends, so-called “victims’ advocates”, civil society initiatives, political parties or associations, transnational NGOs. In addition, human rights are also interpreted by parliaments, governments, ministries and at the level of international intergovernmental cooperation.

Following an analytical model much discussed within the political theory of international relations,Footnote 50 struggles for human rights—despite their sometimes very different political, social, cultural, religious or economic specifications—show significant commonalities: Political progress in countries with massive human rights deficits can be achieved if the victims of human rights violations succeed in networking not only with domestic civil society and forces of political opposition, but also with international human rights organizations and influential political players outside the respective states—whether by way of direct political cooperation or by drawing the attention of mass media to the human rights abuses in question. This dual networking at the national as well as international level creates simultaneous pressures “from above and from below”; pressures to which the governments of those countries in which human rights are violated will have to respond over time. To be sure, these governments will initially try to evade this pressure simply by denying the human rights deficits in question. But if a critical world public and thus the community of states continue to be informed about these deficits by mass media or NGOs, whose campaigns can serve as a kind of “transmission belt”, the former denial of human rights deficits often cannot be sustained, for the simple denial of problems is often counterproductive in the sense that it triggers additional indignation in the public sphere, only to strike back like a “boomerang” on the respective governments that have come under pressure—also in the form of international naming and shaming.

The governments concerned may then feel obliged to counteract the threat of a loss of reputation, also at the international level, by making—initially still tactically—first concessions. However, if the political struggle is then continued and if national and international pressure is noticeably sustained, the single boomerang effects might add up to a kind of “spiral movement”Footnote 51 and thus increasingly to real progress in human rights development, in that the originally tactical concessions—step by step—become a real “commitment” to those norms: Denial is ended, rhetorical self-restraints in the name of human rights are announced, corresponding norms are incorporated into laws or even the constitution, and international human rights treaties are signed. Yet, from there, it might still be a long way to a de facto “complicity” with these norms, a complicity that would mean more than a merely symbolic or rhetorical commitment. For a state to sustainably comply with human rights norms, public pressure must sometimes be maintained for a longer time, to ensure that mere rhetorical commitments gradually turn into governmental action that is actually motivated by human rights norms.Footnote 52

4.2 On the Political Dynamics of Lacking Legitimation

The considerations of the last section outline a historical and political process of human rights development, which can always lead anew from the individual experience of injustice to the collective struggle against human rights violations and finally to a systemic institutional “learning” of legal systems transformed by human rights. But this analysis only describes the dynamics in question. What explains this strange and almost coercive pressure on political regimes that urges them to transform themselves accordingly? It has been argued here that in political and historical struggles against human rights violations collective indignation over various forms of discriminatory disregard and political powerlessness is voiced. This political outrage, in turn, strikes at the public order and powers a form of demonstrative withdrawal of legitimacy: Those who protest or fight against violations of human rights expressively give those who have violated human rights “barriers” to understand that because they have exercised arbitrary state rule, they may no longer see themselves as legitimate representatives of the public order and or as agents of the democratic “sovereignty of the people”.Footnote 53

No kind of state action can any longer be understood as an expression of internal consent if the representation of the people no longer embodies the people’s “will” that legitimizes it in the first place.Footnote 54 This idea of a democratic social contract by means of a constitution that conforms to human rightsFootnote 55 is the normative benchmark or “touchstone”, as Immanuel Kant once stated,Footnote 56 with which not only genuine democracies but also all other forms of state rule must be checked and examined. Hence, the conceptual provocation of this contractualist tradition is: Even authoritarian states or dictatorships in which human rights are massively violated will depend in their very existence on a residual amount of consent on the part of their citizens and thus on the imaginary act of a joint delegation of rule—even if it is only in the form of tolerating arrogated rule or the mere absence of resistance and rebellion. Human rights protests, on the other hand, make it clear that these conditions of states legitimacy are eroding and that these governments and powers are now to be regarded as opponents or even enemies of the popular sovereign. It follows from this that massive human rights violations are obviously not only harmful to the individual victims, but always pose a serious threat to the legitimating framework of the public order as a whole.

At least under conditions of modern constitutional law, it is true that enacting arbitrary state rule by disregarding human rights undermines the proper conditions of state legitimacy as such. A state’s legitimacy will evaporate more and more as long as the state powers in question are met with public human rights indignation; that is, as long as the state and its representatives deviate all too strongly from the specifically modern ideal of a common legitimization of state powers through the consent of those who are subjected to these powers. Political struggles for human rights thus always remind us of the possibility of a truly democratic popular sovereignty, which is all too often “buried” under individual experiences of powerlessness as well as collective and structural ones. In other words, legal systems that come under pressure in the face of human rights protest “learn” the modern message of democratic popular sovereignty by now and then “releasing” the accumulated pressure by making human rights concessions.

As shown in the last section, this accumulated pressure for legitimation must come not only from “below” or inside, but also from “above” or outside. A critical world public, mediated by mass-media, is needed so that the political discourse on human rights can sensitize the public sphere to violations of human rights and build up public pressure accordingly. In the longer run a global “human rights culture”Footnote 57 might emerge, which will be stirred up by public reports and historical testimonies. And what is politically and historically thematized as human rights discrimination will at the same time develop global dynamics. The central aspect of this human rights culture would be the idea outlined above of an egalitarian political entitlement of all human beings just by being human. Those whose political power turns into discriminatory arbitrary rule will not learn this basic human rights lesson just by reading historical legal documents or philosophical treatises. Rather, this lesson will be the result of worldwide pressure generated by political indignation about living conditions that are untenable from the point of view of human rights. Only then, mankind might one day come to the point “that a violation of right on one place of the earth is felt in all” (Kant) and political consequences will follow accordingly. Global deliberation about outrageous human rights violations will more and more widely spread the basic human rights attitude of equal respect. This globalization would not just be a learning process, but real progress.