JUSTICE - No. 71

7 Spring 2024 I will elaborate on the Jewish contribution to the emergence of human rights. Rights can be conceived of as either national or universal. The historiography of rights emphasizes how they first emerged in national contexts, like the American colonies and later the French revolution. The colonists in America were fighting for the rights of Englishmen.2 The French were more universalist and spoke grandly of the rights of man but did not extend them to the enslaved people in their own colonies, or to women. As national constitutions began to spread in the 19th century, they included lists of rights for particular peoples, be they Dutch, Danish, or Bolivian. It was the transformation of these national projects into a truly international concept, by which every person by virtue of her humanity was worthy of protection, that required the horrors of the Holocaust to effectuate it. That was the vision of the Universal Declaration. Jewish scholars were well-represented in the group of lawyers who built our modern conceptual architecture. These include Tom Buergenthal’s own teacher and collaborator, Louis Henkin, the scion of a great rabbinic family, who authored an important book called The Age of Rights (whence my title);3 Rafael Lemkin, the principal author of the Genocide Convention and inventor of the term, who began his life’s work after encountering the Armenian genocide; Egon Schwelb, who served in the United Nations’ Human Rights Division, playing a role in the international covenants that legalized human rights in the 1960s, and who authored the idea of crimes against humanity; René Cassin, the French jurist who played a central role in the drafting of the Universal Declaration of Human Rights; Jacob Robinson, the first legal advisor to the UN Commission on Human Rights who also served as the legal advisor to Israel’s mission to the UN; and perhaps most famously, Hersch Lauterpacht, a judge of the International Court of Justice who provided intellectual underpinnings to the human rights idea and worked behind the scenes at Nuremberg. Those men and others played an outsized role in producing the norms of international human rights; Tom, who was a generation or more younger than the others, worked to institutionalize them. Most of them were born into a Europe in which they were second class citizens, and most lost their families in the Holocaust. They were able to transcend these things, in part because they took advantage of the cosmopolitan opportunities of general legal education that were newly available to Jews. This Jewish contribution to international human rights may on its surface seem unusual. The principal − though not only − political program for Jewish security in international law was particularist, namely the Zionist movement to establish a homeland for the Jewish people in Palestine. We know and understand the connection between the Holocaust and the founding of the State of Israel in 1948; the tension between that particularist project and the general law of human rights is being adjudicated in this very building as we meet, and debated on the streets of Tel Aviv.4 There is much to say about that issue, which is beyond the scope of my lecture, except to say that the way Lemkin defined genocide is broad, and acts need not rise to the level of the Holocaust to meet it. For my main theme, the relevant point is that the founding of a state is a reflection of particular national aspirations, rather than international ones. There were other strains of modern Jewish history that pushed in a cosmopolitan direction. With the rise of European romantic nationalism in the 19th century, the position of Jews was in great flux. Even as they were being emancipated from ancient restrictions, they were in a vulnerable position as a landless minority within a continent awash in territorial nationalism. Hungary for the Hungarians and Romania for Rumanians created particular problems for those of different ethnicities who lived in each other’s respective country, but at least they had a putative homeland which could offer a place to flee to and a government to which they could appeal in 2. James H. Hutson, “The Bill of Rights and the American Revolutionary Experience,” in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS AND LAW 1791 AND 1991, Michael James Lacey and Knud Haakonssen, Eds. (Cambridge: Cambridge University Press, 1992), 62-97. 3. Louis Henkin, THE AGE OF RIGHTS (N.Y.: Columbia University Press, 1990). 4. Israel has had an increasingly oppositional relationship with the human rights community, especially since the occupation that began in 1967. See James Loeffler, ROOTED COSMOPOLITANS: JEWS AND HUMAN RIGHTS IN THE TWENTIETH CENTURY (New Haven: Yale University Press, 2018), ix. The human rights movement was institutionalized after the Six Day War. See Samuel Moyn, THE LAST UTOPIA (Cambridge: Harvard University Press, 2010). The antagonistic relationship that developed was not expected by Lauterpacht and Robinson, who sought a leadership role for the nascent state in human rights, while pushing for genuine international mechanisms of protection.