What are human rights?Probing questions of legality and morality can help us understand the paradox that not all humans have humanity
www.theguardian.com/commentisfree/libertycentral/2009/mar/18/human-rights-asylumIn an extremely thoughtful thread in response to last week's article, Are rights universal?, contributors discussed the metaphysical status of rights, their universal or local grounding, and their political import. Zdenekv took me to task for not understanding that, according to "moral realism", people have rights "like any other natural property" – one could say like they have arms or legs. Jami, a failed asylum seeker living in the shadows, answered the moral realist in Monday's Guardian coverage of a report by the refugee charity Parfras.
An underground humanity without shelter, food or the right to work survives in our cities on less that one dollar a day, Parfras revealed. In the accompanying video, Jami, who sleeps in parks, quietly contrasts himself to his friends who have "papers" – and implicitly contrasts himself to the rest of us, too. "What's the difference between me and them?" Jami asks. "They are human like me. People like me have two hands, two eyes and two legs. What's the difference between me and them?" He ends his heart-rending description of destitution, homelessness and despair by quietly addressing people like us who, from our comfortable homes and offices, keep proclaiming, "'Human rights, human rights'. But where are the human rights for the asylum seekers?" In haunting and halting sentences echoing suffering humanity from Shylock to Primo Levi, this natural philosopher states an indisputably realistic truth: we may all be human but humanity has always excluded, despised and degraded some of its parts. Humanity is not one.
How can we understand this paradox that not all humans have humanity in a human rights world? The growth of rights-talk has obscured the terms, so to understand what Jami tells us, we need to start again. "Human rights" is a term combining law and morality. Legal rights have been the building block of western law since early modernity, while, as human, rights refer to a type of morality and to the treatment individuals expect from public and private powers. Human rights are a hybrid category, which introduces a number of paradoxes at the heart of society by bringing together law and morality.
The rule of law
Let me start with legal rights, the part that really counts in power's treatment of people. Private property and contractual rights were introduced in early modernity, both resulting from the emergence of a market economy and contributing to its victory. Culturally, rights were precipitated by what Alasdair MacIntyre has called a "moral catastrophe": the destruction of pre-modern communities of virtue and duty. Because capitalist society, made up of individualism and free will, lacks a universal moral code, restraints on private egotism must be external. Crime, tort and legal rights achieve precisely that. The law empowers individuals to enforce their rights but also limits the exercise of these rights so that in theory we can all have an equal amount of rights. When disputes arise, it is the business of lawyers and judges to resolve them. These rule experts have propagated a commonly held view that laws and rights are like facts: they have an objective meaning that can be discovered by the professionals. Legal rights turn social and political conflict into a technical problem about the meaning of rules.
Legal rules and rights, however, do not come with their meaning on their sleeve. They must be interpreted in order to be applied and most rights disputes involve at least two contradictory but plausible legal meanings. Human rights provisions in particular are general and abstract. Take the "right to life", which opens most bills of rights and human rights treaties. Its statement does not answer questions about abortion, the death penalty, euthanasia or indeed about whether this right protects the necessary prerequisites for survival, such as food, shelter or health care. In most cases, a human rights claim is the beginning rather than the end of a dispute about the meaning of the right or its relative standing vis-à-vis conflicting rights. At this point, moral, political or ideological considerations unavoidably enter legal arguments, influenced by the decision-makers' ideological, political or moral stance. Lawyers are supposed to use reason and precedent to make the exercise of power neutral and objective, yet this repressed subjectivism always returns.
Moral prescriptions
Second, whether recognised or not by law, human rights are moral claims. A Chinese dissident who asserts the right to free political activity is both right and wrong. Her "right" does not refer to an existing legal entitlement but to a claim about what morality (or ideology, or international law or some other higher source) demands. In this sense, the morality of human rights is always in potential conflict with their legal status. Human rights confound the real and the ideal. Take Article 1 of the Universal Declaration of Human Rights: "all human beings are born free and equal in dignity and rights". But as Jeremy Bentham noted first, newly-born infants depend for survival on their carers, while the statement that people are born equal flies in the face of huge disparities in the world. Biological and social nature distribute wares unequally, an unavoidable result of the accidents of birth and history. Equality is unnatural and must be fought for. Human rights statements are therefore prescriptions: people are not free and equal but they ought to become so. This depends on political will and social conditions. Equality is a call for action not a description of a state of affairs.
Human rights are a subcategory of legal rights protecting important goods and activities. They are given to people on account of their humanity rather than membership of narrower categories such as state or nation. Refugees who have no state, nation or law to protect them should be the prime beneficiaries of human rights, recipients of the consolations of humanity. Despite the claims of liberal philosophers, however, bare humanity offers no protections. Human rights, we could conclude, do not belong to humans; they help construct who and how one becomes human. Jami has no rights at all – indeed, in his case, the paradoxical relationship between law and morality has been resolved through the elimination of the moral command. While he bleeds and hurts like the rest of us, he is not fully human.
The ideological power of human rights lies precisely in their rhetorical ambiguity. Despite being part of the law, human rights are the latest expression of the urge to resist domination and oppression. They are part of a long and honourable tradition, which started with Antigone's defiance of unjust law and surfaces in the struggles of the despised, ensalved and exploited. Those who defend Jami redeem the value of human rights, while those who use human rights rhetoric to defend the pension rights of Fred Goodwin contribute to the banalisation and eventual atrophy of rights. This atrophy paradoxically follows the triumph of rights, which have mutated, expanded and been turned into a vernacular touching every aspect of social life. Rights have become ubiquitous at the cost of their specificity and significance. Rights recognition has become the main target of politics, with group claims and ideological positions, sectional interests and global campaigns routinely expressed in the language of rights for individuals. But when rights become a trump card that defeat state policies and collective priorities, allegedly to support the liberty of the individual, society starts breaking up into a collection of atoms indifferent to the common good. This way politics is depoliticised. Both liberty and security suffer.
Identity politics
Rights have also become the main tool of identity politics. In postmodern societies 'I want X' or 'X should be given to me' has become synonymous with 'I have a right to X'. This linguistic inflation weakens the association of rights with significant human goods. The right to choose our childrens' school or our mobile phone is presented as important as the right to be free of torture or to have food on the table. But when every desire can be turned into a legal right nothing retains the dignity of right.
There is more. Rights talk has become an easy and simple way of describing complex historical, social and political situations, a type of "cognitive mapping" particularly useful for media coverage. Take the miners' strike, so much in the news recently. When presented as a conflict between the right to strike and the right to work (as is often the case), a complicated set of relations, histories, traditions and communities is reduced to a simple calculus of right versus right, one of which must be wrong. This translation hinders both understanding and resolution. As the scope of rights increases their inherent absolutism makes the antagonists intransigent.
Finally, human rights have become the last universal ideology globally. It unites the North and the South, globalising imperialists and anti-globalisation protesters, first world liberals and third world revolutionaries. Human rights are used as a symbol or synonym for liberalism, capitalism or individualism by some and for development, social justice or peace by others. In the South, rights are seen as primarily collective rather than individual, social and economic rather than civil, associated with social justice rather than liberty. Does the victory, universality and ubiquity of rights indicate that they transcend conflicts of interests and the clash of ideas? Have rights become a common horizon uniting Cardiff and Kabul, London and Lahore? It is a comforting idea, daily denied in news bulletins. If there is something perpetual about our world, it is the increasing wealth gap between the metropolitan lands and the rest, the yawning chasm in income and chances between the rich and the poor, the ever new and strictly policed walls that divide the comfortable middle classes from the 'underclass' of immigrants, refugees and undesirables. If anything, our world looks increasingly more hostile and dangerous, and the administration of justified or imagined fear has become a major and common tool of governments.
Human rights introduce morality into law and offer limited legal enforcement to moral claims. But as morality is not one and the law is not a simple exercise in reasoning, moral conflict enters the legal archive and legal strictures regiment moral responsibility. Jami's story reminds us what the purpose of human rights is. His sad soliloquy attests to the fact that human rights have only paradoxes to offer.
Human rights and the paradoxes of liberalism chronosmag.eu/index.php/index.php/c-douzinas-human-rights-and-the-paradoxes-of-liberalism.htmlHuman rights are a hybrid of liberal law, morality and politics. Their ideological power lies in their ambiguity, not in their adherence to liberal values of individual freedom.
(originally published in OpenDemocracy)
Costas Douzinas
Human rights are the last universal ideology after the proclaimed ‘end’ of ideology and history. They unite the North and the South, the Church and the State, first world liberals and third world revolutionaries. Human rights are used as a symbol for liberalism, capitalism or individualism by some and for development, social justice or peace by others. In the South, rights are seen as primarily collective rather than individual, social and economic rather than civil, associated with equality rather than liberty.
Does the victory and ubiquity of rights indicate that they transcend conflicts of interests and the clash of ideas? Have rights become a common horizon uniting Cardiff and Kabul, London and Lahore? It is a comforting idea, daily denied in news bulletins. If there is something perpetual about our world, it is not Kant’s peace but the increasing wealth gap between North and South, between rich the poor and the mushrooming and strictly policed security walls dividing the wealthy from the ‘underclass’ of immigrants, refugees and the ‘undeserving poor’.
The protests and uprisings that broke out recently all over the world demanded social justice and equality not human rights (‘We are the 99%’, ‘stop austerity and cuts’). The absence of appeals to human rights gives us the opportunity to revisit their theoretical and political premises. ‘Human rights’ is a combined term. Legal rights have been the building block of western law since early modernity modelled on the right to property, the first and still most significant right. As human, rights introduce a type of morality in the way public and now private powers should treat people. The legitimacy of modern law was based on its claim to be ideologically neutral, beyond morality, ideology and politics. The proliferation of human rights marks the realisation that state law could be bent to the most atrocious policies. Human rights are therefore a hybrid category of liberal law and morality. But as morality is not one and the law is not a simple exercise in reasoning, moral conflict enters the legal archive and legal strictures regiment moral responsibility. As a result a number of paradoxes enter the heart of society by bringing together law and morality. Let me offer five theses developing some of the paradoxes.
Thesis 1. Human rights classify people on a spectrum between the fully human, the lesser human and the inhuman.
Liberals claim that human rights are given to people on account of their “humanity” instead of membership of narrower categories such as state, nation or class. If that were the case, refugees, undocumented immigrants, the Guatanamo Bay prisoners who have no state or law to protect them should be prime beneficiaries of the consolations of humanity. They have very few. ‘Bare’ humanity offers no protection and whoever claims to represent it lies. Humanity has no fixed or universally acceptable meaning and cannot act as the source of moral or legal rules. Historically, the barbarians for the Greeks and Romans, the heathen for the Christians, the ‘uncivilized’ for the imperialists, the ‘irrational’ racial and sexual minorities for the privileged, the ‘illegal immigrants’ for the citizens or the economically redundant for the affluent have been divisions of ‘humanity’. Human rights help construct who and how one becomes human.
Thesis 2. Power and morality, sovereignty and rights are not fatal enemies as is often argued. Instead a historically specific amalgam of sovereignty and morality forms the structuring order of each epoch and society.
Natural rights, the early modern predecessor of human rights, were a necessary companion of the nation-state and nationalism. The French Declaration of the Rights of Man stated that ‘all men are born free and equal’ but gave its ‘universal’ rights only to French white, male and propertied citizens. The post-WWII order combined ‘non intervention’ in the domestic affairs of states, that is the strongest possible support of national sovereignty, with the claim of universal human rights. As President Reagan said of the Universal Declaration and its social and economic rights, it is akin to children’s ‘letter to Santa’. Finally, the post-1989 ‘new world order’ has pierced the national sovereignty of ‘rogue’ states nominally to protect citizens from their evil governments. But the aftermath of the Afghanistan and Iraq invasions shows that the spread of democracy and human rights was a flimsy smokescreen. In the past, the ‘civilizing mission’ included missionaries and gunboats today human rights, missiles and drones. The combination of the huge structural inequalities and state repression of neoliberal globalization with a legal ideology promising dignity and equality creates a systemic instability leading the ‘new world order’ to its demise.
Thesis 3. In advanced Western societies, human rights de-politicise politics.
I do not refer here to traditional civil liberties and the limited protections the underprivileged, the oppressed and the poor still claim and rarely get. This is the core case of civil liberties. The problem lies elsewhere: human rights have lost their significance and edge by becoming the vernacular expression of every kind of individual aspiration and desire (every ‘I want X’ can potentially become ‘I have a right to X)’ and a dominant language of public policy. The right wing leads the attack by targeting ‘illegal immigrants’, prisoners, and ‘bogus refugees’ while promoting the rights of property owners, bankers and crime victims. For the defenders of free market individualism, rights are playthings of the middle class. As Labour and the Tories move to the ideological centre, conflict was declared finished. The emphasis on the rights of property owners and consumers pursues the same agenda. It gives the impression that rich bankers and the unemployed or the privacy of the middle class and the basic dignity of the unemployed belong to the same register.
Antagonism is the reality of politics and social justice its aim. Rights as individual entitlements cannot tackle inequality nor are they synonymous with justice. Indeed liberal jurisprudence considers social and economic rights secondary because they are not ‘justiciable’, that is their nature makes them somehow inappropriate for litigation. When individual rights become the site and stake of politics, they join the ‘choice’ agenda and a manifestation of neo-liberalism.
Thesis 4. The distance between ‘having’ a right and ‘enjoying’ it is huge.
Take the ‘right to work’ or the claim that we are ‘all born equal’ both mainstays of international treaties. Having a ‘right’ to work means nothing for the millions of unemployed. Formal rights are silent as regards the preconditions for their exercise. The ‘right’ to work does not refer to an existing entitlement but to a political claim. In this sense, the politics of rights is always in potential conflict with their legal status. Human rights statements are prescriptions: people are not free and equal but they ought to become so. Only political struggle not the law can achieve this. Equality is a call for action not a description of a state of affairs. Again take the nominally non-controversial ‘right to life’. Its statement does not answer questions about abortion, the death penalty, euthanasia or whether the necessary prerequisites for survival such as food, shelter or health care should be protected. In most cases, a human rights claim is the beginning rather than the end of a dispute about its meaning or its standing vis-à-vis conflicting rights.
When God, the author of natural law died, international law replaced him as the source of the latest higher source of morality. The ideological power of human rights lies precisely in their rhetorical and political ambiguity, the oscillation between ideal and real, between humanity and national citizenship, between law’s order and the desire for a better world. When human rights are part of the law, the law includes a principle of self-transcendence, which pushes against the law’s settled state. A legal system with human rights is paradoxically not equal to itself, since human rights can call the whole of law to account. In this sense, rights become not the last ideology but the latest expression of the human urge to resist domination and oppression and the intolerance of public opinion. They are part of a long and honourable tradition, which started with Antigone’s defiance of unjust law and surfaces in the struggles of the despised, enslaved or exploited. In this sense, rights have a double meaning and life. They are (legal) claims to be admitted to the privileges of the law and (political) demands to have the whole of the law improved or changed.
Thesis 5: The end of human rights is to resist public and private domination and oppression. They lose that end when they become the political ideology or idolatry of neo-liberal capitalism or the contemporary version of the civilizing mission.
Costas Douzinasen.wikipedia.org/wiki/Costas_DouzinasCostas Douzinas (Greek: Κώστας Δουζίνας; born 1951) is a professor of law, a founder of the Birkbeck School of Law and the Department of Law of the University of Cyprus, the founding director of the Birkbeck Institute for the Humanities at Birkbeck, University of London, the President of the Nikos Poulantzas Institute and a former politician.