New Podcast Episode: The Bell Tower, Tower of London: Thomas More, Elizabeth I, and Other Histories, Part 3

Approaching the Lower Wakefield Tower, Tower of London, England

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Saturday, May 4th, 2018, continued

After parting with Simon, Laurence and I step out of the Tower grounds for a quick lunch, though when we return, our first stop features sights and stories that could turn anyone’s stomach. As you may have guessed, it’s the torture room of the Lower Wakefield Tower. As the signage indicates, the chamber now dedicated to the history and artifacts of the Tower’s legacy of torture was likely not used for that purpose at the time. However, it’s well chosen for its current purpose. The underground stone chamber is entered via a series of short stairways and small narrow doorways, evoking an increasing sense of entrapment among stones as cold and impassive as were the torturer’s sympathies.

There is no direct link between this chamber and Thomas More or Elizabeth I, but both of them had strong associations with the use of torture… Read the written version here

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The Bell Tower, Tower of London: Thomas More, Elizabeth I, and Other Histories, Part 3

Approaching the Lower Wakefield Tower, Tower of London, England

Saturday, May 4th, 2018, continued

After parting with Simon, Laurence and I step out of the Tower grounds for a quick lunch, though when we return, our first stop features sights and stories that could turn anyone’s stomach. As you may have guessed, it’s the torture room of the Lower Wakefield Tower. As the signage indicates, the chamber now dedicated to the history and artifacts of the Tower’s legacy of torture was likely not used for that purpose at the time. However, it’s well chosen for its current purpose. The underground stone chamber is entered via a series of short stairways and small narrow doorways, evoking an increasing sense of entrapment among stones as cold and impassive as were the torturer’s sympathies.

There is no direct link between this chamber and Thomas More or Elizabeth I, but both of them had strong associations with the use of torture. This comes as no surprise when it comes to Elizabeth, since, infamously, torture was used particularly often on political and religious prisoners during her reign. At the time, torture was regarded by many as an effective method of wresting confessions and information from accused enemies of church and state. Though it was illegal under English common law, torture or the threat of torture was nevertheless used in some cases, especially those in which the crime was considered particularly harmful to the state. England had been rife with religious and political turmoil for decades by the time Elizabeth ascended the throne, so there was a driving political interest in restoring order by cracking down on religious and political dissidents. Protestant Elizabeth reversed her elder sister and royal predecessor Mary I’s policies designed to restore England to Catholicism, religious ties which their father Henry VIII had severed so that he could divorce his wife and marry Elizabeth’s mother Anne Boleyn. So, plots and intrigues against Elizabeth’s reign by papal loyalists abounded, and private citizens practiced their Catholic religion in secret since it was once again illegal.

Sign for the torture exhibit at the Lower Wakefield Tower, Tower of London

Elizabeth believed that national unity necessarily included unity of creed as well as nationwide fealty to her, and under her administration fines, imprisonment, torture, and even death were seen as effective deterrents to dissent and disloyalty. Many claim that Elizabeth harshly persecuted Catholics and other religious dissenters for practicing their faith at least as ruthlessly as Mary’s administration had persecuted Protestants, or at least that Elizabeth had failed to interfere when her officers did so. But other historians characterize Elizabeth’s suppression of Catholicism as comparatively mild except when it was linked to religiously-motivated plots to undermine or delegitimize her rule. Elizabeth had many friends who were known Catholics and dissenters and, especially earlier in her reign, rarely punished them for it so long as they kept their beliefs to themselves. She famously stated that she had ‘no desire to make windows into men’s souls.’ But those who were perceived threats to the security of Elizabeth’s throne were often dealt with ruthlessly, though Elizabeth herself was sometimes reluctant to order such punishment.

Regnans in Excelsis, Pius V’s papal bull excommunicating Elizabeth I

Initially more hands-off regarding the practice of religion by otherwise loyal private citizens, Elizabeth’s administration cracked down more severely on the practice of Catholicism after Pope Pius V excommunicated her in 1570. Prior to this excommunication, Elizabeth seemed to have considered the practice of Catholicism as a private matter of conscience so far as this didn’t interfere with their duties as loyal subjects. After the excommunication, however, English Catholics and Elizabeth were all placed in untenable positions. Pope Pius V was not content merely to banish Elizabeth from the Church; he called on Catholics to renounce their loyalty and obedience to her on pain of their own excommunication. In doing so, Pius bound politics to religion far more firmly than Elizabeth had done or wanted to do. Since Elizabeth believed in the legitimacy of her own reign and was bound to promote and protect it, she was unable to overlook this attack on her right to rule and felt forced to act.

More’s connection to torture may be much more troubling since he’s a Catholic saint, let alone given that he was in many other ways an admirable character. However, not all see More in such a glowing light. One of the most controversial facts about More is that he advocated torturing recalcitrant heretics. Some might find it more understandable that Elizabeth, as head of state responsible for enforcing the rule of law, would include torture as a tool of enforcement since it was at least somewhat consistent with the standards of the time. More likewise, in his tenure as Chancellor of England, was responsible for upholding the rule of law and maintaining national security, and in an era when church and state were so intertwined, this entailed enforcing religious uniformity. Neither More nor Elizabeth had access to the large modern body of evidence that torture is not, in fact, effective in gathering reliable intelligence, nor does it deter ideological extremism.

Pages from Thomas More’s A Dialogue Concerning Heresies, 1532

However, as writer Michael Shermer notes, even then, many doubted the rightness and effectiveness of torture, especially those who routinely heard startling and manifestly untrue ‘confessions’ extricated from those under duress. It seems that the otherwise kindly and intelligent More may have been capable of similar insights if he was not himself blinded by his own zealotry. More’s customarily mild and forbearing disposition may have given way to harshness in dealing with heretics because of his deep religiosity in his particular brand of Catholicism. As his biographer Peter Ackroyd writes, ‘More believed in the communion of the faithful, living and dead, while [to More, the heretical Martin] Luther affirmed the unique significance of the individual calling before God.’ According to author and Tudor specialist Melita Thomas, More regarded the Catholic Church as a community of souls whose unity with the divine was threatened by heresy much in the same way as a healthy body is threatened by disease. Like a cancerous tumor, heresy must be identified and ruthlessly cut off from the body of the church. In the case of heretics, there could be no mercy without sincere and complete repentance, since nothing less than the eternal salvation of souls was at stake. Thomas does not offer this as an excuse for More’s bloodthirstiness in this regard but as an explanation.

Historian Brian Moynahan is not among those who believe that this explanation excuses More’s advocation of torture for heretics. He believes that More was at best inconsistent and at worst hypocritical in this matter. In more than one instance, More confessed to his daughter Margaret Roper his fear of the pain he might suffer if he was tortured or put to death for his refusal to swear to the Act of Succession, which, among other things, rejected papal authority over the Church in England. More’s refusal had already led to his imprisonment and, he was sure, would ultimately lead to his execution. In a letter to Margaret on the 3rd of June, 1535, More wrote that his interrogators made the point that More himself, when Chancellor, ‘examined heretics’ and ‘compel[ed] men to answer’ on pain of death. Why shouldn’t More himself, his interrogators asked, suffer the same treatment he had recommended for others? After all, those accused of heresy likewise refused to submit to the authority of the state and the church. More defended himself on the grounds that he could not submit since it was a matter of conscience. But, as his interrogators observed, his defense comes off like a case of special pleading since that was arguably true of accused heretics as well.

A door to the room with torture instruments and exhibits in the Lower Wakefield Tower, Tower of London

Besides, when it comes to those who we honor for their exceptional virtue and expansive moral imagination, commonly used defenses such as ‘well, they were a person of their time’ sound less convincing. The point of bestowing the status of sainthood or sage seems to be that those so honored are exceptional, that they should be able to reason and feel beyond the limitations of their own time, especially in matters of morals and justice. For example, I’ve never accepted the excuse that Thomas Jefferson’s slave-owning was just an understandable manifestation of his ‘being a man of his time.’ The plain fact is, Jefferson knew better but persisted in slave-owning (and -buying and -selling) anyway because freeing them would have caused him personal inconvenience. For both Jefferson and More, insights about the wrongness of their worst practices were available to them, so it’s not as if it’s a matter of 20/20 hindsight or unfair retroactive judgment according to new standards not yet conceived of at the time. As discussed above, torture was illegal under English common law and recognized by many as a cruel infringement on personal integrity, and an accomplished and well-read lawyer such as More was surely cognizant of this. It was also a common charge at the time that torture was used to force false confessions from people just as it was supposed to force true ones, a charge that Catholics later made against Elizabeth and her administration. It seems that Elizabeth and More, like Jefferson, failed their own best selves when it came to an important issue of justice and human rights, and they could and should have known better.

As I look at the instruments of torture and the descriptions of how they were used, I find I have no stomach for lingering or for taking or sharing photos of the instruments or displays. It’s true that these artifacts and the uses to which they were put are of historical interest. But there are photos and articles galore featuring these dreadful things in books and on the internet, and I get the feeling that this room is more often a scene of gruesome entertainment than a place of somber reflection on humankind’s history of inhumanity to one another. I’ve no doubt the latter very often takes place here too, but perhaps the gloomy, creepy mood of the room puts me in a pessimistic state of mind. I’ve seen enough representations of these instruments and read enough about them already that I feel I’m learning nothing new nor am I having an experience of particular value in this room. I take no photos and beat a quick retreat.

Traitors’ Gate under St Thomas’ Tower, from inside the walls of the Tower of London. As you can see, the sky has a grayish cast to it: I took this photo last time I was here at the Tower in January

Elizabeth I When a Princess, c. 1546, attributed to William Scrots, via Royal Collection Trust

We leave the chamber and head toward the southwest corner of the Tower complex. On the way, we pass St. Thomas’ Tower, originally built in the 1270’s by Edward I, and the Traitors’ Gate below it. This is where both Elizabeth and More entered the Tower as prisoners. This wide arched entryway was built so that small boats could easily and securely enter the Tower and deposit their detainees. Then-Princess Elizabeth entered this archway by boat on March 18, 1554, as Mary’s prisoner. As discussed in the previous installment of my Tower visit story, Elizabeth had been connected to Sir Thomas Wyatt’s rebellion, the purpose of which was to prevent Mary’s marriage to King Philip of Spain and to place Elizabeth on the throne. Elizabeth was reported to have said as she entered this gate, ‘Oh Lord! I never thought to have come here as a prisoner; and I pray you all, good friends and fellows, bear me witness, that I come in as no traitor, but as true woman to the queen’s majesty as any is now living.’ As our guide Simon told us earlier today, the truth of Elizabeth’s protestation of total innocence is still debated to this day.

When More entered Traitors’ Gate as Henry VIII’s prisoner on April 17th, 1534, he made no such impassioned protestations of innocence. Instead, as was his wont, More made a joke. When asked for his ‘upper garment,’ More offered his hat, though he would have known that what was required from him was his gown or outer coat. In addition to the warm coat he was loathe to give up, More also wore his gold chain of livery en route to the Tower, which appears to be a form of protest against losing his freedom and his job because he acted according to his religious beliefs. Simon told us earlier today that More’s chain is still worn by Mayor of London. The rooms in St. Thomas’ Tower over the Traitors’ Gate had just been rebuilt and refurbished as part of the many improvements Henry made to the Tower in preparation for Anne’s coronation celebrations. Since Henry’s desire to make Anne his queen was the impetus for More’s imprisonment here, the irony is a bit thick.

William Roper, by Hans Holbein the Younger, ca. 1535-1536, Metropolitan Museum of Art, public domain via Wikimedia Commons

Returning to More’s stated fears of suffering and death during his imprisonment, he seemed nevertheless to refuse to let them rule his decisions, through sheer force of will. Prior to his entering the Tower, More said to his son-in-law William Roper on his way to Lambeth Palace where he had been summoned to take the Oath of Succession, ‘Son Roper, I thank our Lord the field is won.’ Ackroyd thinks More’s statement admits of two interpretations: that he had conquered his feeling for his family enough to be able to leave them behind if that’s what it took to stay true to his conscience, or that he had managed to conquer his fears on his own behalf so that he could better plan how to conduct himself. I’d like to think it was the latter. However, commenting as the direct observer when More made this statement, Roper believed it was the former.

Roper also made an important observation about More’s beliefs that landed him here in the Tower. Ackroyd, like Melita Thomas of Tudor Times, points out that More, as we have seen, believed strongly in the Church as a community. More believed further that its spiritual authority rests on its divinely-guided consensus expressed through papal decrees. Yet both Thomas and Ackroyd point out that More’s views on papal supremacy shifted somewhat over the years. Initially, Roper, also More’s earliest biographer, described it, More thought that insofar as he was also a temporal prince, the Pope’s authority should not be urged so strongly by Henry VIII in his 1521 treatise A Defense of the Seven Sacraments. Henry VIII consulted More as an editor and advisor for the work; More’s involvement was later used in the attempt to coerce and destroy him in the case that eventually led to his death. According to Roper, More was accused of ‘unnaturally procuring and provoking’ Henry to argue strongly in favor of the Pope’s authority, thereby putting ‘a sword into the Pope’s hands to fight against himself,’ Yet, as we see, More remembered that affair quite differently. When it comes to spiritual rather than temporal matters, More thought of papal authority emanating from, and therefore in some sense secondary to, the Church, the body of Christ on earth. But over time, More’s belief in the final authority of the Pope over the earthly Church strengthened to the point that he, at least in part, bet his life on it.

The Salt Tower and adjoining arched structure where menagerie was, Tower of London

Entry to the lower chamber of the Salt Tower, Tower of London

Turning left at St. Thomas’ Tower, we head for the Salt Tower at the southeast corner of the Tower compound. It was built in the 1230’s under King Henry III’s reign. Simon told us earlier today that this is the other prime candidate as the site of More’s imprisonment. It was also among the most secure chambers, so influential prisoners whose cases were most politically charged were often held here.

This is perhaps, then, the site of his daughter Margaret’s visits and where More received and composed letters to her, the closest of his children. From the beginning of his imprisonment, Margaret acted as the go-between for More and his family, relaying messages and news between them. Margaret had, rather slyly, made herself welcome as a visitor to the Tower by taking the Oath of Succession in full while adding the exculpatory clause ‘so far as will stand the law of God.’ While More was required to take the full Oath with no amendments or additions whatsoever, Margaret was allowed leeway in this because she was seen as ‘covered’ by her husband Roper’s swearing to the unalloyed Oath anyway. Since she was his wife and therefore, by law and custom, his subservient, his Oath applied to her as well. Since Margaret had taken the Oath, it was hoped that she could influence her father to do so. Until More’s imprisonment became more harsh and restrictive in the months preceding his death, Margaret was allowed a great deal of access to her father.

Left, Historical placard and right, lower chamber of the Salt Tower, Tower of London

Margaret Roper by Hans Holbein the Younger, ca. 1536, Metropolitan Museum of Art, public domain via Wikimedia Commons

Margaret was highly educated, a rarity for Tudor women, studying Latin, Greek, philosophy, theology, science, and mathematics from an early age. She wrote letters to her father in Latin to improve her skills and became an expert in that language to the extent that she translated one of Erasmus‘ Latin works into English for publication when she was 19. She was also a well-respected scholar though little else of her work survives outside of her famous correspondence with her father. Among the many topics of their in-person discussions and letters, More and Margaret adapted fables he had told to her as a child to refer to the current political situation and his dispute with the king. She and More also composed a long letter in dialogue form to show clearly and compellingly why More felt he could not take the Oath of Succession without flouting his conscience and damning his soul.

More wrote a great deal when he was imprisoned as long as he had access to writing materials, a privilege denied him as the circumstances of his imprisonment became more severe as the pressure to conform was ramped up. In addition to his correspondence, More wrote religious treatises and two of his most famous works after UtopiaThe Sadness of Christ and the Dialogue of Comfort. In the latter, More retold, through one of its characters, a fable that his own mother told him, about a priest fox who hears a wolf’s and an ass’s confessions. Utopia, a tale of an imaginary land with a system of philosophically-derived, seemingly idealized customs and governance that are nevertheless as problematic as the idealized society in Plato’s Republic, reads like a fable as well as satire. As we can see, fables played a strong role in More’s imagination.

A view of the upper chamber of the Salt Tower, Tower of London

Memorial plaques at Tower Hill Scaffold Site near the Tower of London

Laurence and I explore the upper and lower chambers of the Salt Tower, examining the fascinating inscriptions and drawings carved into the walls by prisoners held in these rooms over the years. We continue on and explore other parts of the Tower unrelated to this story.

Our last stop pertaining to this exploration takes us outside the Tower walls to the Tower Hill Scaffold Site in Trinity Gardens, only a mile from where More had been born on Milk Street. Trinity Gardens is a pretty little park on a rise across the A100 / Tower Hill road from the Tower, dominated by the Tower Hill Memorial to those of the Merchant Navy and Fishing Fleets who died in World War II. The Scaffold Site, small and somewhat easy to miss, is just to the east of the Memorial. A stand of palm trees that I had seen when here last in January helps me find the site again. It’s surrounded by a very low concrete wall or curb interspersed with short concrete obelisk-shaped posts. Bronze green-patinaed plaques contain some of the names of over 125 people (according to one of the plaques) that were put to death here over the space of around 400 years. Thomas More’s, Thomas Cromwell’s, and Thomas Wyatt’s are among them, three Thomases all closely connected to the histories I’m here to follow.

After one year and three months of imprisonment in the Tower, after persuasion, influence, separation from his family, financial pressure, and increasingly harsh confinement failed to bend him to Henry VIII’s will, More could no longer escape the executioner. More was executed on July 6th, 1535, just five days after his trial. Henry never took kindly to opposition from anyone, but the perceived lack of loyalty from his friends and those he had shown special favor in the past irked him most and provoked his harshest responses. Despite a long string of promises not to force his old friend More to betray his conscience, Henry ordered his execution after More refused to go along with Henry’s change of mind. Henry extended one mercy to More: instead of the protracted and agonizing traitors’ death by hanging, drawing, and quartering to which he had originally been condemned, More’s sentence was commuted to the relatively humane death by beheading. By all accounts, More died courageously, swearing his personal loyalty and friendship to Henry while affirming his primary loyalty to the will of God as he saw it. Characteristically, some of his last remarks were kindly and joking ones, apparently to cheer up the executioner, who More assured was simply sending him to heaven where he wanted to go anyway. More exhorted the executioner to escort him safely up the platform’s wobbly steps but to let him make his own way down afterward, and admonished him to strike carefully since More’s short neck might make him accidentally botch the job.

Scaffold Site at Tower Hill, to the north near the Tower of London

Margaret was not there to witness More’s execution. In my further research, I find that it’s still uncertain as to whether this was out of grief, or because she wasn’t informed in time to get there, or because she and the rest of More’s family weren’t allowed to attend. Despite her absence, More was no doubt comforted by the memory of his last encounter with her. Margaret waited among the crowd where she knew More would pass when he was returned to his Tower cell after his trial in Westminster Hall. Upon seeing him, she discarded the dignified bearing expected of her as a gentlewoman, pushing her way through the crowd and, recklessly, past his armed guards, and flung herself on More, showering him with embraces and kisses. According to Roper, there was scarcely a dry eye among those who witnessed this scene. Margaret was loving and solicitous of More’s legacy as she had been of himself. After his severed head had been displayed for a time, Margaret conspired to have it retrieved and it was buried with her. She quickly went to work collecting, arranging, annotating, and publishing a collection of her father’s works and letters. It’s as much the work of Margaret as anyone else that her father’s memory remained so prominent, and so positive, in English, Catholic, and Renaissance history.

UPDATE: in researching the practice and legality of torture in Tudor England, I found more information about the inscription I found as I left the Bell Tower chamber where Elizabeth was imprisoned which includes ‘In forture strange, My trouth was tried, Yet of my liberty ye denied…’ According to scholar Elizabeth Hanson, it was written in 1581 by Thomas Myagh, who had been imprisoned and tortured at the Tower under suspicion of involvement in an Irish rebellion against Elizabeth’s reign.

*Patron of this Tower of London journey: Laurence Murphy ~ With warmest gratitude, thank you!*

*Listen to the podcast version here or on Google Play, or subscribe on iTunes

~ Ordinary Philosophy is a labor of love and ad-free, supported by patrons and readers like you. Any support you can offer will be deeply appreciated!

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Sources and inspiration:

Ackroyd, Peter. The Life of Thomas More. London: Chatto & Windus, 1998

Annual Survey of Visits to Visitor Attractions: Latest Results.‘ VisitBritain.org

Borman, Tracy. The Story of the Tower of London. London: Merrell Publishers Limited, 2015

Borman, Tracy. ‘The Tudors and the Tower.‘ Tudor Times website, 3 Aug 2015

Bowker, M. ‘Roper [née More], Margaret (1505–1544), Scholar and Daughter of Sir Thomas More.’ Oxford Dictionary of National Biography

Camden, William Norton, Robert; Hans and Hanni Kraus. The historie of the most renowned and victorious Princesse Elizabeth, late queen of England. Contayning all the important and remarkeable passages of state both at home and abroad, during her long and prosperous raigne. Composed by way of annals. Neuer heretofore so faithfully and fully published in English.
Sir Francis Drake Collection Library of Congress. London: Printed by N. Okes for B. Fisher; 1630

Collinson, Patrick. ‘Elizabeth I (1533–1603), Queen of England and Ireland.‘ Oxford Dictionary of National Biography.

English Monarchs website: ‘The Bell Tower’ and ‘The Queen’s House

Erasmus, Desiderius, Margaret Roper, and Richard Hyrde. A Deuoute Treatise vpon the Pater Noster, Made Fyrst in Latyn by the Moost Famous Doctour Mayster Erasmus Roterodamus, and Tourned in to Englisshe by a Yong Vertuous and Well Lerned Gentylwoman of. XIX. Yere of Age. London: Thomas Berthelet, 1525

Freeman, Thomas S. (2002). ‘`As true a subiect being prysoner’: John Foxe’s notes on the imprisonment of Princess Elizabeth, 1554-5.‘ (Notes And Documents). The English Historical Review, 117(470), 104-116

Furness, Hannah. ‘Wolf Hall is ‘Deliberate Perversion’ of History, says David Starkey.The Telegraph, 26 Jan 2015

Graham, Beckett and Susan Vollenweider. ‘Episode 43: Elizabeth I, Part One‘ and ‘Episode 44: Queen Elizabeth 1, Part Two‘ for their History Chicks podcast

Guy, John. A Daughter’s Love: Thomas and Margaret More. London: Fourth Estate, 2008

Guy, John. ‘For What Did Thomas More So Silently Die?’ Lecture published at Tudors.org

Hanson, Elizabeth. ‘Torture and Truth in Renaissance England.’ Representations, no. 34, 1991, pp. 53–84

House, Seymour Baker. ‘More, Sir Thomas [St Thomas More] (1478–1535), Lord Chancellor, Humanist, and Martyr.‘ Oxford Dictionary of National Biography.

Jones, Jonathan. ‘Wolf Hall is Wrong: Thomas More was a Funny, Feminist Renaissance Man.‘ The Guardian, 29 Jan 2015

Marc’hadour, Germain P. ‘Thomas More.’ Encyclopædia Britannica

Massie, Allan. ‘Let’s Not Overlook the Gory Details of Gloriana.The Telegraph, 02 Jun 2012

More, Thomas. The Apology of Sir Thomas More, Knight. from The Complete Works of St. Thomas More, Vol. 9. Yale University Press, published online by The Center for Thomas More Studies

More, Thomas. Conscience Decides: Letters and Prayers from Prison Written Between April 1534 and July 1535. Selected and arranged by Dame Bede Foord; preface by Trevor Huddleston; introduction by Germain Marc’hadour. London: Geoffrey Chapman Ltd, 1971

More, Thomas. The English Correspondence of Sir Thomas More, 1947 Rogers edition, Princeton University Press, published online by The Center for Thomas More Studies

Moynahan. God’s Bestseller: William Tyndale, Thomas More, and the Writing of the English Bible – A Story of Martyrdom and Betrayal. New York: St. Martin’s Press, 2003

Pius V. Regnans in Excelsis: Excommunicating Elizabeth I of England. 1570 (encyclical). From Papal Encyclicals Online

Roper, William. The Life of Sir Thomas More1556. Ed. Gerard B. Wegemer and Stephen W. Smith. From Center for Thomas More Studies, 2003

Shermer, Michael. ‘We’ve Known for 400 Years That Torture Doesn’t Work.‘ Scientific American, May 1, 2017

Stanford, Peter. ‘Sir Thomas More: Saint or Sinner?’ The Telegraph, 20 Jan 2015

Teysko, Heather. ‘Catholics in Elizabethan England.‘ Renaissance English History Podcast: A Show About the Tudors, episode 26, Jul 6, 2015

Teysko, Heather and Melita Thomas. ‘Tudor Times on Thomas More.’ Renaissance English History Podcast: A Show About the Tudors, episode 55, Sep 16, 2016

Tower Hill Memorial.Commonwealth War Graves Commission website

Weikel, Ann. ‘Mary I (1516–1558), Queen of England and Ireland.’ Oxford Dictionary of National Biography

Are Human Rights Anything More than Legal Conventions? by John Tasioulas

Eleanor Roosevelt and The Universal Declaration of Human Rights

We live in an age of human rights. The language of human rights has become ubiquitous, a lingua franca used for expressing the most basic demands of justice. Some are old demands, such as the prohibition of torture and slavery. Others are newer, such as claims to internet access or same-sex marriage. But what are human rights, and where do they come from? This question is made urgent by a disquieting thought. Perhaps people with clashing values and convictions can so easily appeal to ‘human rights’ only because, ultimately, they don’t agree on what they are talking about? Maybe the apparently widespread consensus on the significance of human rights depends on the emptiness of that very notion? If this is true, then talk of human rights is rhetorical window-dressing, masking deeper ethical and political divisions.

Philosophers have debated the nature of human rights since at least the 12th century, often under the name of ‘natural rights’. These natural rights were supposed to be possessed by everyone and discoverable with the aid of our ordinary powers of reason (our ‘natural reason’), as opposed to rights established by law or disclosed through divine revelation. Wherever there are philosophers, however, there is disagreement. Belief in human rights left open how we go about making the case for them – are they, for example, protections of human needs generally or only of freedom of choice? There were also disagreements about the correct list of human rights – should it include socio-economic rights, like the rights to health or work, in addition to civil and political rights, such as the rights to a fair trial and political participation?

But many now argue that we should set aside philosophical wrangles over the nature and origins of human rights. In the 21st century, they contend, human rights exist not in the nebulous ether of philosophical speculation, but in the black letter of law. Human rights are those laid down in The Universal Declaration of Human Rights (1948) and the various international and domestic laws that implement it. Some who adopt this line of thought might even invoke the 18th-century English philosopher Jeremy Bentham, who contemptuously dismissed the idea of natural rights existing independently of human-made laws as ‘rhetorical nonsense – nonsense upon stilts’.

Now, it is true that since the middle of the previous century an elaborate architecture of human rights law has emerged at the international, regional and domestic levels, one that is effective to wildly varying degrees. And for most practical purposes, it might be that we can simply appeal to these laws when we talk about human rights. But, ultimately, this legalistic approach is unsatisfactory.

To begin with, the law does not always bind all those we believe should abide by human rights. For example, some states have not ratified human-rights treaties, or have ratified them subject to wide-ranging exceptions (‘reservations’) that blunt their critical edge. A country such as Saudi Arabia can have a seat on the UN Human Rights Council yet persist in severe forms of gender discrimination – for example, prohibiting women from driving – because it made its acceptance of human-rights treaties subject to an override in the case of conflict with Islamic law.

Moreover, the international law of human rights, like international law generally, almost exclusively binds states. Yet many believe that non-state agents, such as corporations, whose revenues in some instances exceed the GDP of all but the wealthiest nations, also bear grave human-rights responsibilities. When manufacturers such as Nike use 12-year-olds to stitch soccer balls in Pakistan, or internet service providers such as Yahoo secretly hand over the emails of dissidents to the Chinese government, many critics decry not just corporate malfeasance but human-rights violations. And this is so even if the corporation has complied with the laws of the country in which it is operating.

It is precisely in response to the threat to human rights posed by corporations that the ‘Guiding Principles on Business and Human Rights’ (2011), the brainchild of the Harvard political scientist John Ruggie, were established. Endorsed by the UN, the principles are not legally binding either on states or corporations. Instead, they aim to provide an authoritative statement of human-rights responsibilities that apply directly to corporations, quite apart from any legal obligations they might also bear. Ruggie’s ambition is that the principles will eventually inform corporate decision-making at all levels, illustrating the fact that human rights go beyond law and its enforcement.

Yet there is a deeper problem with identifying human rights with existing laws. Laws are the creations of fallible human beings. They might be good or bad, and so are always subject to interpretation and criticism in terms of independent moral principles. The international law of human rights, on this view, does not establish which human rights exist; instead, its goal is to implement moral rights we already possess, simply by virtue of our humanity. Slavery, torture and racial discrimination did not suddenly become human-rights violations only when they were legally prohibited. It is the other way round: we have human-rights law in order to give force to human rights that in some sense pre-exist their legal recognition. Unfortunately, no consensus has yet emerged among philosophers or anyone else on how human rights are to be defended as objective truths, independent of law.

The late American philosopher Richard Rorty sought a way out of this impasse. Although a staunch liberal, he turned his back on the philosophical enterprise of attempting to give a rational justification for human rights. He judged that activity to be pointless now that human rights are a deeply embedded fact of our culture, not just our law. How can we justify human rights when they seem more compelling to us liberal Westerners than any other idea we might use to justify them? The real task that confronts us, Rorty thought, was the practical one of enhancing compliance with human rights worldwide, not the intellectual one of grounding rights in the fabric of reality.

A similarly dismissive attitude is adopted by Ruggie, who conceives of his Guiding Principles not as reflecting ‘true’ moral demands, but as rooted in empirically measurable ‘social norms and expectations’. At a more sophisticated level, the late American political philosopher John Rawls, in his last work The Law of Peoples (1999), insisted that in a pluralistic world we cannot build our public commitment to human rights on any controversial account of the ‘truth’ about humanity or the good. We have to return, instead, to shared ideas embedded in the culture of a liberal democracy.

But is it enough to rely on the supposed fact that human rights are embedded in a liberal democratic culture? Or do we need to be able to step back from that culture and offer an objective justification for the principles embedded in it, as the philosophers have long supposed? The problem is that social expectations and cultural assumptions not only vary significantly across societies, but that they are fragile: various forces ranging from globalisation to propaganda can cause them to change dramatically or even wither away. Would rights against gender or racial discrimination disappear if sexist or racist attitudes come to predominate?

The question is not fanciful. Once apparently settled beliefs about the impermissibility of torture or the rights of refugees have recently suffered a backlash. There can be backsliding as well as progress, with no guarantees either way. Social expectations and deep cultural assumptions are no more a sufficient basis for human rights than the law is. There is a fatal contradiction in defending human rights against the rising authoritarianism of a ‘post-truth’ era while simultaneously abandoning the belief that our commitment to those rights is itself grounded in the truth, and being prepared to defend it on that basis.

My own view is that human rights are rooted in the universal interests of human beings, each and every one of whom possesses an equal moral status arising from their common humanity. In other words, in defending human rights, we will need to appeal to the inherent value of being a member of the human species and, in addition, the interests shared by all human beings in things like friendship, knowledge, achievement, play, and so on. And we will need to ask whether these considerations generate duties that are owed to each and every human being. This proposal is hardly uncontroversial. The appeal to the inherent value of humanity will be contested by some as a brute prejudice – a ‘speciesism’ on a par with racism. Similarly, the appeal to universal interests will be contested by those who think that human rights are ultimately about respecting individual freedom regardless of whether it advances the right-holder’s well-being.

Whether I’m right or not, I am convinced that we cannot sustain our commitment to human rights on the cheap, by invoking only the law or the assumptions of our liberal democratic culture. Only a deeper justification can explain why we are right to embody them in the law, or maintain a liberal democratic culture, in the first place. This has precisely been the aim of philosophical defences of human rights from the 12th century up until very recent times. To keep our human rights culture in good order, we cannot avoid engaging with the question of justification. And we should think of this not as the exclusive domain of professional philosophers, but as a process of public reasoning to which all citizens are called to contribute.Aeon counter – do not remove

This article was originally published at Aeon and has been republished under Creative Commons.

~ John Tasioulas is the inaugural Chair of Politics, Philosophy and Law, and director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law at King’s College London. He is working on his latest book, Human Rights: From Morality to Law (forthcoming, OUP). (Bio credit: Aeon)

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