Our Father Cain and the Rise and Fall of Human Rights

If you were to unfurl the tattered skein of human rights, and then trace the many scarlet threads of human wrongs interwoven therein, following them back through the knots and coils of history, eventually you would reach the crucial moment when the fratricide Cain found himself looming over his victim Abel. Considerable speculation has naturally been devoted to the particulars of this Ur-murder, though the basic fact pattern provided by the Hebrew Bible is well enough known: violently jealous and “very wroth”, Cain “rose up against Abel his brother, and slew him”. A great many details are admittedly missing here, at least from a forensic standpoint. Was the act premeditated, and thus a murder in the legal sense? Or was it a crime of passion, lacking malice aforethought, and thus more akin to manslaughter? The Hebrew term that is employed for Cain’s act, a form of the root harag, “to kill”, is rather more ambiguous than the typical root for murder, ratsach. That Cain “rose up” is equally open to interpretation. He might well have been lying in ambush, but we cannot discount the possibility that he had first been pinned down by his brother during an altercation.

A closer inspection of the crime scene draws us deeper still into Pascal’s “cloaca of uncertainty”. There is a Mishnah stating that Abel’s blood was “cast over the trees and stones”, suggesting a multiplicity of wounds inflicted by a furious assailant, but this gets us no closer to whether those wounds were dispensed in a mad frenzy, or whether, as Rashi posited, Cain “inflicted many wounds upon him because he did not know from where his soul would depart”. (The art of murder, one must remember, was very much in its infancy.) It has been hypothesised that it was a spade or a scythe that drew first blood, those being the tools of Cain’s trade, but the incident surely predates the origin of metallurgy. The weapon may therefore have been rather more primitive, say the jawbone of an ass or camel, or it may have been a staff, or a stone, or even Cain’s own set of bared teeth. Afterwards, the first killer may even have slaked his burning thirst on Abel’s spilt blood, only to vomit forth gore-flecked drupelets that sprouted antediluvian monsters (or so the non-canonical Book of Enoch would have it). Regardless of the grisly details of Cain’s butchery, it suffices to observe that humanity irrevocably succumbed to deadly internecine strife in only its second generation.

Towards the end of 1768 Voltaire produced The A B C, or Dialogues between A B C, Translated from the English by Mr Huet, a set of seventeen dialogues so radical that it is astonishing that it took eight full years for them to wind up on the Vatican’s Index Librorum Prohibitorum. In the third of these colloquies, “On whether man was born wicked,” C archly wonders:

Isn’t it because of Cain that we are damned, and not because of Adam? For we look as though we are descended from Cain, if I’m not mistaken, given that Abel died unmarried; and it seems to make more sense to me to be damned for fratricide than for an apple.

To which A responds:                       

It can’t be because of Cain, for it’s stated that God protected him and gave him a sign in case he should be beaten or killed. It’s even stated that he founded a town [at a time] when he was still almost alone on the earth with his father, his mother, his sister, who became his wife, and a son named Enoch. I’ve even seen one of the most boring books, entitled The Science of Government, by some seneschal from Forcalquier named Réal, in which the law is derived from the town built by our father Cain.

Voltaire’s Enlightenment-era interlocutors, despite their apparent disagreement, were actually in accord: we are living in a world that Cain built, a world seemingly governed by laws, but in which, all too often, “Man to Man is an arrant Wolfe”.

“Man hardly appears when Cain slays Abel, probably with a stone or a club,” observed the Calvinist polemicist Harry Alfred Long in an 1885 tract, “but primeval Cain is improved upon by [the arms manufacturers] Krupp, Armstrong, and Martini, who slay their brethren afar off scientifically and satisfactorily to all but the slain”. Technological advances may have turned fratricide into an oft-times sterile science, but the “primal eldest curse”, as King Claudius put it, still “smells to heaven”. Little wonder, then, that Freud at various times concluded that civilisation was “built on the suppression of instincts”; that “Men are not gentle creatures who want to be loved, and who at the most can defend themselves; they are, on the contrary, creatures among whose instinctual endowments is to be reckoned a powerful share of aggressiveness”; and that “every individual is virtually an enemy of civilization, though civilization is supposed to be an object of universal human interest”. If the subpersonal primordialism of psychoanalysis is not to one’s liking, perhaps Isaac Bashevis Singer’s similar case, as presented in The Family Moskat, will prove more persuasive:

“Then, according to your opinion, who’s to blame for the present crisis?”

“Human nature. You can call a man capitalist, Bolshevik, Jew, goy, Tartar, Turk, anything you want, but the real truth is that man is a stinker. If you beat him he yells. And if the other fellow is beaten, then he develops a theory. Maybe it’ll be better in the next world.”

The veil of civilisation can be as delicate as silken tulle. When it slips off, or is ripped off, we find ourselves once again looking out upon the field of Cain, our countenances fallen, our brother’s blood crying out to us from the earth.

Such is the thematic abundance of the story of Cain and Abel that it can support any number of glosses. Anthropologists suspect that the inveterate enmity between pastoralists and agriculturalists lies at the heart of the narrative. Theologians like Augustine of Hippo, on the other hand, see in it the “hostility between the two cities themselves, between the city of God and the city of men,” and “a kind of foreshadowing of the pilgrim City of God; showing that it was to suffer unjust persecution at the hands of the wicked and, in a sense, earth-born men, that is, men who delight in their earthly origin and rejoice in the earthly felicity of the earthly city”. For his part, the philosophe Chamfort pondered whether:

If, the day after Cain killed Abel, Adam had been told that a few centuries later in Paris some seven or eight hundred thousand people would be piled up all together in one single enclosed space of some twelve square miles, would he have been able to conceive that such a multitude could possibly live side by side? Wouldn’t he have had an even more terrifying idea of the monstrous crimes likely to be committed? We must always keep this in mind to console ourselves for the abuses arising from such extraordinary conglomerations of human beings.

Chamfort’s philosophical pessimism was certainly borne out in his own abbreviated lifetime, as thousands of souls were fed into the hecatomb that was the French Revolution’s règne de terreur. The slogan “liberté, egalité, fraternité” quickly shed its first two components and emerged as “fraternité ou la mort”, “fraternity or death”, but Chamfort felt that “the fraternity of these people is like that of Cain and Abel”, and that the revolutionary catchphrase would be better rendered as “sois mon frère ou je te tue”—“be my friend or I will kill you”. Cain’s story had provided Chamfort with what Ricardo Quinones would later call “a shattering reminder of the fragility of the human compact … a breach in existence, a fracture at the heart of things”.

For the international jurist, there is yet another aspect of the story that stands out. Recall the Lord’s sentence upon Cain:

And now cursed art thou from the ground, which hath opened her mouth to receive thy brother’s blood from thy hand. When thou tillest the ground, it shall not henceforth yield unto thee her strength; a fugitive and a wanderer shalt thou be in the earth.

Only then did the severity of the situation dawn upon the perpetrator, whose initial, impertinent defence—that he was not his brother’s keeper—hardly laid the grounds for a convincing plea bargain.

Behold, Thou hast driven me out this day from the face of the land; and from Thy face shall I be hid; and I shall be a fugitive and a wanderer in the earth; and it will come to pass, that whosoever findeth me will slay me.

In Dante’s Purgatorio, the voice of Cain echoes throughout the Valley of the Beasts, sounding out those famous words, “Anciderammi qualunque m’apprende”, “whosoever findeth me will slay me”, accompanied by the unforgettable lament:

Di mia semente cotal paglia mieto;

o gente umana, perché poni ’l core

là ’v’è mestier di consorte divieto?

From what I’ve sown, this is the straw I reap:

o humankind, why do you set your hearts

there where our sharing cannot have a part?

Philo of Alexandria, in his Quaestiones et Solutiones in Genesin, reckoned that “every evil-doer has something which immediately awaits him and is to come”. Vagabondage, outlawry, the loss of impunity—all these would indeed await Cain in his exile, and worse besides, were it not for the protective oth, or mark, afforded to him “lest any finding him, should kill him”.

During the 2009 trial of the infamous Khmer Rouge operative Duch for war crimes and crimes against humanity, the youngest brother of one Cambodian torture victim poignantly testified:

In Christianity, there is the story of Cain. He killed his brother, but Abel’s eyes followed him everywhere, to the point that he could never be at peace and had to ask someone to dig a hole and bury him in the earth. A French author once wrote: “And after they had shut the crypt upon his brow, / The eye was in the tomb and looked at Cain.” So even though he was buried, his brother’s eyes followed him into the grave; they followed the corpse. More than twelve thousand people died at S-21, which means twice that number of eyes follow the defendant every day and ask him to explain. In Christianity, his sins are forgiven. But in Buddhism, good is rewarded with good. I believe that, right now, there are more than twenty-four thousand eyes following the defendant. There is nowhere to go to hide from them.

It stands to reason, then, that there are crimes so heinous that they may be punished anywhere and by anyone, and that there is, as the Book of Job has it, “no darkness, nor shadow of death, where the workers of iniquity may hide themselves”. The Enlightenment polymath Georg Christoph Lichtenberg memorably suggested in a similar vein that “there are names that ought to be stamped on every gallows in the world”. And yet, with all due respect to the aforesaid Cambodian testimony, that is not exactly the lesson of the story of Cain, for we know that the perpetrator himself escaped earthly justice, and that our legal system, as Voltaire wryly noted, was then “derived from the town built by our father Cain”. Thus the story of the first murder informs us not just about man’s inhumanity to man, and the resulting need for universal justice, but also about the sheer impracticality of any universal system of crime and punishment.

Human rights law has long struggled with the above conundrum, hamstrung as it is by a not inconsequential defect, namely that it does not, strictly speaking, exist. As Peter Hitchens persuasively argued in a November 2018 article, “human rights do not exist”, for they have “no objective foundation which requires us to acknowledge that they are present among us, and that we must be guided by them. If we chose not to believe in them, they would disappear like so much vapour in a stiff breeze.” In this, human rights law differs greatly from natural law, “the Laws of Nature and Nature’s God”, as Thomas Jefferson put it, laws that are, in Saint Paul’s phrasing, “written on [the heart]” and illumined by divine revelation. Human rights likewise differ from the sort of civil rights enshrined in Magna Carta (1215), the English Bill of Rights (1689), or the American Bill of Rights (1791), which, as Hitchens elaborated, provide “clear limits on the abuse of state power, and as far as that goes, [are] more useful than a trainload of conflicting, cloudy Human Rights”.

International law is undeniably nebulous. John Austin, in his 1832 treatise The Province of Jurisprudence Determined, properly noted that the law of nations is not law at all:

the law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected.

Dean Acheson put it rather more bluntly during the Cold War: “much of what is called international law is a body of ethical distillation”. In the specific area of human rights law, this distillation becomes particularly concentrated, albeit with a perversely inverse proportionality to its real-world efficacy.

To make matters worse, states are not moral persons, and humanity writ large has made for a decidedly fickle ally. The conclusion of every geno­cidal campaign is invariably met with a call of “never again”, and yet, just as invariably, it happens again and again. Reflecting on the stark lessons of the Holocaust, Hannah Arendt held that “if one is attacked as a Jew, one must defend oneself as a Jew. Not as a German, not as a world-citizen, not as an upholder of the Rights of Man, or whatever.” The historian James Loeffler, building on Arendt’s point, rightly observed that “in the face of actual tyranny, any theoretical notion of general humanity quickly vanishes. Human rights prove a mere abstraction.” This is what comes of there being no reliable enforcement mechanism for what are meant to be the most fundamental rights of all.

It is unsurprising, then, that the rhetoric that surrounds human rights, and the treaties that make up the corpus of human rights law, tend to be aspirational and precatory. The preamble to the 1998 Charter for a Permanent International Criminal Court, for example, contends that “the most serious crimes of concern to the international community as a whole must not go unpunished”, traditional notions of national sovereignty and jurisdiction notwithstanding. This language is provided more in hope than expectation, one suspects, but the drafters were exhibiting a keen awareness that criminal impunity represents the main obstacle to a truly universal human rights regime.

In order to surmount this impediment, a series of international institutions have been created to deal with a failure rate that—when looking at the course of the twentieth and twenty-first centuries—would make a reliability engineer blanch and quail. We have seen ad hoc tribunals like those of Nuremberg come into being, with military courts dispensing well-deserved Siegerjustiz (victors’ justice), though not without occasional lapses into hypocrisy, such as Soviet attempts to pin liability for the Katyn massacre on the Nazi defendants. We have seen the creation of other ad hoc tribunals, like the International Criminal Tribunal for the former Yugoslavia (ICTY) and its sister court arising out of the Rwandan genocide (the ICTR), decades-long experiments in delayed justice put somewhat to shame by regional transitional justice efforts like those of the Bosnian War Crimes Chamber and the Rwandan Gacaca courts. And we have seen the birth of the International Criminal Court (ICC), an intergovernmental body and tribunal which has managed to issue all of thirty-six arrest warrants for thirty-six African politicians, while promptly falling to pieces whenever it is suggested that prosecutors might look into alleged American or Russian misdeeds in Afghanistan or the Crimea, not to mention other human rights catastrophes of pressing concern. It is all a bit of a shambles, and it is for that reason that human rights practitioners and scholars have been obliged to produce two more doctrines aimed at effectuating universal justice: Responsibility to Protect and universal jurisdiction, the former proactive, the latter retroactive, and each designed to be less reliant on international institutions and collective decision-making.

The first of these doctrines, Responsibility to Protect, is premised on the notion that sovereignty necessarily gives way to the need to prevent genocide, war crimes, ethnic cleansing and crimes against humanity, Responsibility to Protect (often abbreviated as “R2P”) was adopted as a vague “global political commitment” by United Nations member states during the 2005 World Summit, and is meant to provide a framework for the early prevention of human rights crimes through mediation, sanctions or “peacemaking”. The taproot of this principle extends relatively deeply in some respects, humanitarian interventions on behalf of the weak, oppressed or stateless having long been popular, at least in the abstract. More than two centuries ago Edmund Burke was arguing that “if Dutchmen are injured and attacked, the Dutch have a nation, a Government and armies to redress or revenge their cause”, and “Britons have armies and laws, the laws of nations … to fly to for protection and justice. But the Jews have no such power and no such friend to depend on. Humanity then must become their protector and ally”—Responsibility to Protect, in other words, avant la lettre.

Traditional notions of sovereignty typically precluded such lofty sentiments. The law of nations was once quite easily defined as, in the words of the Italian jurist Arrigo Cavaglieri, a “system of promises between co-ordinated and juridically equal subjects”. The arch-realist Talleyrand warned against the “ridiculous pretension to be master in another’s” domain, and attachments to the “force of treaties” and “ancient rights” persist to this day. But after the Enlightenment and the French Revolution states increasingly sought to cloak their actions in the mantle of morality. We have already seen John Austin’s assertion that international law is bound up in moral sanctions. British Foreign Secretary John Russell, during an international crisis relating to the collapse of the Kingdom of the Two Sicilies in 1860, followed suit, declaring that “there occur, from time to time, cases in which the ordinary rules established by the law of nations cannot be observed without promoting the continuance of wars”. In such circumstances, “no force of treaties, no ancient right, no armaments by sea and land, can protect the throne of a sovereign whose counsellors rely for safety on arbitrary and cruel punishments rather than on the affections of the people”. “Where a Treaty is confirmed by national feeling and opinion,” he continued, “it is easily upheld and maintained; but, where it has no such sanction, it is like a decayed tree, that only waits for a gust of wind to be overthrown.”

A century later, the debate between those of the Talleyrand and Russell school was still being waged, this time at the 1964 session of the United Nations-established Special Committee on Principles of International Law Concerning Friendly Relations and Co-operations among States. There, the Czechoslovak delegation advanced the official communist view:

States shall refrain from any direct or indirect intervention under any pretext in the internal or external affairs of another state. In particular, any interference or pressure by one State or group of States for the purpose of changing the social or political order in another State shall be prohibited.

This was pretty rich coming from international socialists, and the British delegation responded that “in an interdependent world, it is inevitable and desirable that states will be concerned with and seek to influence actions and policies of other states”. By the beginning of the twenty-first century, one notes with interest, human rights advocates were actually promoting the doctrine of Responsibility to Protect as a way to make such interventions de rigueur.

The fatal flaw of the doctrine of Responsibility to Protect has always been that, as we have seen above, states are in no wise equivalent to moral persons, and humanity in general is hardly deserving of any trust. An “international community” might conceivably agree that, for example, a crisis loomed in Syria in the aftermath of the Arab Spring protests, and that there existed some generalised responsibility to protect beleaguered civilians caught between a dizzying array of belligerents. But the Russian Federation may feel responsible for, say, the Alawite, Druze or Orthodox Christian minorities, while the United States may feel a similar responsibility for civilians besieged in Aleppo, or the Free Syrians, or the Kurdish People’s Protection Units. The result will not be a concerted humanitarian effort, but rather an extended proxy war and a geopolitical bear garden. (And that is in the case of a conflict with significant international interest and involvement, unlike the violence in, say, the Central African Republic, which has resulted in some 650,000 internally displaced persons but hardly any headlines, let alone calls for international intervention.) One might also look at how Muammar Gaddafi’s siege of Misrata prompted NATO strikes and regime change—“We came, we saw, he died”—but of the resulting instability, torture, extrajudicial executions, flourishing slave markets and consequential effluence of refugees into the Mediterranean, far less has been said, let alone done.

What is more, Responsibility to Protect utterly vanishes when, to take but one recent and prominent instance, hundreds of thousands or even millions of Uighur men, women and children find themselves in Chinese camps or under surveillance in Xinjiang, subjected to brainwashing, humiliation, forced ingestion of alcohol and pork, and organ harvesting, all of which amounts, at the very least, to cultural genocide. The June 17, 2019, China Tribunal Final Judgement and Summary Report stated:

forced organ harvesting is of unmatched wickedness even compared—on a death for death basis—with the killings by mass crimes committed in the last century. There is justifiable belief in the minds of some or many—rising to probability or high probability—that Genocide has been committed. In line with this, and by considering the evidence and the law, there can be no doubt that there is a duty on those who have the power to institute investigations for, and proceedings at, international courts or at the UN to test whether Genocide has been committed.

For all that, there are no prominent voices of any kind advocating on behalf of an international “responsibility to protect” oppressed minorities in East Turkestan, for reasons that are obvious enough. The very notion of “responsibility” etymologically implies an answer or offer in return, and in this case the silence with which the China Tribunal report has been met would suggest that the doctrine of Responsibility to Protect indeed amounts to little more than “so much vapour in a stiff breeze”.

Faced with the deficiencies of this approach, human rights advocates have been obliged to change tack. How much easier it would be to harness the awesome power of hindsight, and bring war criminals to justice retroactively, after the shooting and looting have ceased, and the perpetrators have (ideally) lost and can be apprehended and dealt with at leisure. Such is the basis of the doctrine of universal jurisdiction, the other tool ostensibly engineered for the universal eradication of criminal impunity.

The systematic study of universal jurisdiction began in earnest in 2001, when an assembly of scholars and jurists from the International Commission of Jurists, the Netherlands Institute of Human Rights, and the Urban Morgan Institute for Human Rights met in Princeton, New Jersey, in order to formulate principles relating to this crucial area of international criminal law. Emerging from the meeting were the so-called Princeton Principles of Universal Jurisdiction, which included the classic definition of the doctrine:

criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.

The year 2001 is not, of course, the beginning of the story of universal jurisdiction, which is often said to be of considerable vintage. We have already seen how Cain worried that “whosoever findeth me will slay me”, though this is more of a broad sensibility than a legal doctrine. Still, Yoram Dinstein has asserted that “since time immemorial, international law has allowed other States … to prosecute persons (especially, albeit not exclusively, members of the armed forces) for war crimes”. Another international legal scholar, Maria Antonella Pasculli, has even suggested that “the source of this principle” can be found “in a few passages of the Old Testament”, particularly where:

in some books, it is written that God does not only indict and punish the Jewish people, the inhabitants of the place called Israel, but also foreign people and foreign States, such as Damascus, Gaza, and Edon, once they have committed delicts offensive to all the mankind.

It seems bizarre, albeit revealing, to equate the divine “universal jurisdiction” of the Lord of hosts to the jurisdiction exercised by, say, the Old Bailey or the Stuttgart Higher Regional Court in trying the occasional Hutu rebel or Nepalese torturer. Most jurists instead look to the age-old treatment of pirates, those so-called hostis humani generis, or “enemies of all mankind”, for evidence of a deep history of extra-territorial criminal jurisdiction. Even this is unsatisfying, for stateless pirates plying the high seas obviously constitute a special case, and even then, as Eugene Kontorovich has pointed out, “very few criminal prosecutions for piracy can be found that depended on the universal principle”. It was really only in the aftermath of the Holocaust that the case for truly universal jurisdiction for gross human rights crimes began to be made. Writing in 1945, Willard Cowles noted:

Because of the mobility of troops in the present war and the practice of transferring troops from one front to another, it may well be that units of Gestapo, SS, or other German organizations, which have been charged with committing some of the worst war crimes, may have been moved from one front to another, perhaps as “flying squadrons”. It may also be a fact that many, even hundreds of, members of such groups have now been captured and are prisoners of war in Great Britain or the United States. Such prisoners held by Great Britain may have committed atrocities against Yugoslavs in Yugoslavia or Greeks in Greece. German prisoners in the custody of the United States may have committed atrocities against Poles in Poland before the United States became a belligerent.

For Cowles, the only solution to this fluid jurisdictional landscape was a regime in which “every independent State has jurisdiction to punish war criminals in its custody regardless of the nationality of the victim, the time it entered the war, or the place where the offense was committed”.

When Adolf Eichmann found himself in Jerusalem, on trial in the Beth Hamishpath, it was on the basis that his crimes were, according to Attorney-General Gideon Hausner, ones “which affected the whole of mankind and shocked the conscience of nations … grave offenses against the law of nations itself”. It followed that “authority and jurisdiction to try crimes under international law are universal”, and Israel, as the forum deprehensionis (“the court of the country in which the accused is actually held in custody”), had the “universal authority” to try and punish the universal enemy that was the former Obersturmbannführer. What Hausner might not have foreseen, however, is the extent to which the doctrine of universal jurisdiction would spread across the globe, paving the way for its application in courts all over the world.

The universal principle would, in the coming decades, be employed against not just notorious war criminals like Eichmann, but those far lower down the genocidal depth charts, as in the German prosecution of the nonagenarian Ukrainian-American concentration camp guard John Demjanjuk, or the Belgian trial of two Rwandan Benedictine nuns, Consolata Mukangango and Julienne Mukabutera, for allegedly having distributed gasoline to militia members during the 1994 Tutsi genocide. And one can only imagine the horror with which Hausner would have greeted the news that Israeli officials like Doron Almog, Moshe Yaalon, Avi Dichter, Ehud Barak, Ariel Sharon and Tzipi Livni have all had to contend with frivolous international arrest warrants predicated on universal jurisdiction. As Ed Morgan cleverly formulated it, “While Sharon may have responded with a defensive ‘why me?’ the most pressing question is appropriately addressed to the court: ‘why you?’” Universal jurisdiction all too often means never having to answer that question satisfactorily.

The opening of the legal Pandora’s box of universal jurisdiction has played no small part in releasing the scourge of “lawfare” into the world. Even those involved with the Princeton Principles project were mindful of the obstacles to international criminal universalism, such as the “potential dangers of the abusive or vexatious exercise of criminal jurisdiction, including universal jurisdiction”, the “range of reasonable disagreement [that] sometimes exists within societies and among societies about the culpability of alleged criminals, the good faith of prosecutions, and the wisdom and practicality of pursuing alleged perpetrators”. Scholars less sympathetic to the doctrine have posited that, as universal jurisdiction “is not premised on notions of sovereignty or state consent”, it may actually have “dangerous consequences … creat[ing] conflict and possibly hostilities among countries”, as Eugene Kontorovich has cautioned. Power politics naturally comes into play as well, as we have seen with the doctrine of Responsibility to Protect. To take but one example involving the usual suspect, when “China bristled in February [2014] when a Spanish judge issued arrest orders for former top Chinese officials as part of investigations into a 2006 human rights complaint by a Tibetan-Spanish monk who accused the former leaders of genocide, torture and crimes against humanity”, Spain promptly passed a law “that limit[s] investigations of cases that do not involve Spanish victims or alleged perpetrators”. Universal jurisdiction, in its applied form, is not so universal after all.

Ultimately, the central struggle in the realm of human rights is the one between, to use the classical terms, lex lata (the law as it is) and lex ferenda (the law as it should be). An analogous struggle plays out within every polity, and within every person, in most every filament of our mortal coil. Indeed this was the struggle that played out when Cain was “very wroth, and his countenance fell”, and the Lord told him, “If thou doest well, shall it not be lifted up? and if thou doest not well, sin coucheth at the door; and unto thee is its desire, but thou mayest rule over it.” So it seems appropriate to end near where we began, with the story of the city that, in Voltaire’s telling, was “built by our father Cain”. The Hebrew word for city, iyr, suggests watchfulness or wakefulness, and, as Leon Kass wrote in a 1996 essay for First Things:

civilization as it comes into being starting from his founding act is tainted: the city is founded in fear of violent death, but first, in fratricide. This taint, one must believe, is, from the Bible’s point of view, inherent in civilization as such. We follow its emergence in the hope of learning why and how it may be defective.

And defective it was, as evidenced by the exploits of Lamech, who by the seventh generation was boasting, “I have slain a man for wounding me, and a young man for bruising me.” The Apocalypse Attributed to Saint Methodius describes the events that followed rather poetically:

In the three hundred and fortieth year of Jared, that is of the second millennium, evil-intentioned men rose up in insurrection, wicked and lawless, full of every outlawry, out of the sons of Cain, Ioubeth, and Thouloukel, the offspring of the blind Lamech, who killed Cain. The Devil controlled them, and turned them to composing every kind of music.

Are we sure we aren’t still playing those self-same tunes? Walter Benjamin, in his 1940 essay “Über den Begriff der Geschichte” (“On the Concept of History”), described the angel of history in this way:

His face is turned to the past. Where a chain of events appears before us, he sees one single catastrophe, which keeps piling wreckage upon wreckage and hurls it at his feet. The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise and has got caught in his wings; it is so strong that the angel can no longer close them. This storm drives him irresistibly into the future, to which his back is turned, while the pile of debris before him grows toward the sky. What we call progress is this storm.

All of the human rights instruments and doctrines in the world have not fundamentally changed this primordial dynamic, emerging as it does from time immemorial.     

And yet we also have the parallel stories of Seth, Enosh and their progeny, who “began to call upon the name of the Lord”, and “walked with God”, and looked for comfort “in our work and in the toil of our hands, which cometh from the ground which the Lord hath cursed”. As Leon Kass concluded:

Recognizing the gap between man and God, Seth, Enosh, and their kin call out across it, hoping someone will listen. Of God’s response, we know nothing. But we cannot help but think that some progress has been made: the new approach to the divine proceeds through speech and hearing, not through gifts of food that we hope God might fancy. Someone seems to have divined that it is not through material means—or through pride of place or acquisition—that man can hope to stand in fitting relation to God. Someone seems to have divined that—more than the arts and sciences, power, and prosperity—decent human life and human relations require just such a reverent and attentive orientation to the divine.

Perhaps this is the lesson that should be taken away from civilisation’s faltering beginnings and questionable progress, though it might resound in quite a different way than the hollow pounding of a judge’s gavel or the deep bellow of a drone strike. Such a lesson may be looked askance at by certain members of the genus Homo saecularis, defined by Roberto Calasso in his masterpiece The Unnamable Present (2019) as those who “accept the religion—or, more precisely, the superstition—of society”. To cite once again Peter Hitchens’s profound 2018 essay on human rights:

far from providing the absolute prohibitions that a religiously-based rule of law claims to offer, Human Rights law unashamedly moves with the ethical fashions of the times. This may delight those who currently benefit from it. But if the times shift in another direction, and the ECHR, or the US Constitution, are moulded to fit that direction, will they be so pleased?

I am in turn reminded of the words of the Benedictine scholar Peter Cellensis, who in the twelfth century presciently warned:

From the window of quiet and contemplation, let us survey how the voluble wheel of secular life rolls around and then we shall be able to grasp the great inconstancy with which the secular conscience spins around. Just as wandering, worldly care knows no stable foundation, so secular conscience furnishes no sure and stable signs of itself. It changes its expressions not just from day to day and year to year, but hour by hour and practically every moment. Look at the forum, the tavern, the theatre, the brothel: they are all the workshops of error.

The human rights movement has sought to provide a stable foundation for the secular conscience, but all too often it has served as yet another workshop of error, rife with ineffectuality, under-theorisation, hypocrisy, self-indulgence, wilful ignorance and of course anti-Semitism, amongst other dire ills. Reader may determine for themselves whether this amounts to evidence of moral progress. Or perhaps it is a kind of progress, albeit of the sort Walter Benjamin described in his 1940 essay, a progress made with our back turned to the future, enabling us to survey the wreckage left behind us, as our countenances fall, and our brother’s blood cries out to us from the earth.

Matthew Omolesky is a United States-based human rights lawyer. In the November issue he contributed the article “Beijing’s Old Summer Palace and the Nature of Cultural Destruction”.