Battle in Print: The rise and rise of human rights – an unalloyed good?

James Gledhill, 27 September 2006

The language of human rights permeates our moral and political discourse. The concept, which was first given precise articulation in the UN Universal Declaration of Human Rights (UDHR) in 1948, has now become an indispensable part of how we understand ourselves as citizens. Grand claims are made on behalf of the idea of human rights, which is credited with providing ‘values for a godless age’. UN Secretary General Kofi Annan has referred to the Declaration as the ‘yardstick by which we measure human progress’. Yet parallel to the rise of the term there has been a growing sense of uncertainty about the moral foundation of human rights and about what function they should serve. This unease spreads well beyond the regular tabloid furores about ‘politically correct human rights thinking gone mad’.

In this essay I will review a number of criticisms of the idea of human rights. By setting out the concept’s historical evolution I will argue that problems surrounding it are less to do with the concept of human rights itself and more to do with the way it has been moulded by contemporary circumstances. One of the reasons for the triumph of this idea, I will suggest, is that it provides a sufficiently diffuse and flexible moral framework to accommodate the concerns of an anxious and uncertain world.

The idea of innate rights has always had its detractors, progressive as well as conservative. The utilitarian philosopher Jeremy Bentham famously declared that the idea of ‘natural and imprescriptible rights’ was ‘nonsense upon stilts’. For Bentham rights were what the law said they were; everything else was simply imaginary. More recently, the communitarian political philosopher Alasdair MacIntyre has compared the belief that people have rights with belief in the existence of witches and unicorns. In different ways both criticisms overlook the capacity for abstract moral ideas to take root in the heart of social and political life. While we may not think of ourselves as proud owners of things called rights, we have come to behave as if we are entitled to make claims on others. This change in how we regard ourselves is a phenomenon that spreads beyond what is set down in law.

Thinking in terms of rights therefore takes us beyond our immediate experience, encouraging us to reflect on the nature of our relationships with others from a universal perspective. But this too has been the basis of criticism, as it is taken to assume an abstract asocial being as the bearer of rights. ‘In the course of my life’, the conservative Joseph de Maistre observed, ‘I have seen Frenchmen, Italians, Russians; I even known, thanks to Montesquieu, that one can be a Persian; but man I have never met.’ From a very different standpoint, Karl Marx argued that bourgeois rights – the ‘rights of man’ – served to conceal social divisions and abstract away from the concrete material reality which defines the possibilities for the overcoming of these divisions.

This tension between the abstract universality and political particularity of human rights directs us to the tension between human rights and democracy. Whilst rights place areas of life beyond the influence of politics, they are also essentially political and depend for their existence on recognition by a political community. Rights place principled limits on the extent of political power, but this requires political support in order to be legitimate. Rights are designed to protect political agency, but in so doing threaten to reduce the scope of that agency.

Yet these two aspects of rights are not necessarily in opposition. The language of rights, and the model of citizens that it entails, generates a model of political legitimacy that goes beyond any particular rights which a document might allocate to citizens. Citizenship can be conceived as the ‘right to have rights’ rather than as a specific set of rights. As such, rights form the basis through which citizens claim access to the public sphere and challenge the nature of political arrangements. Rights point towards as yet unarticulated political possibilities that cannot be determined by the state. In the absence of Marx’s assurance of a necessary historical progress towards a socialist society, rights provide the political space in which future possibilities are projected. As Slavoj Žižek (2005a) has argued, whilst there is a danger in focussing on rights in abstraction from their political context, the reverse is also true. Indeed, if ‘we try to conceive political rights of citizens without reference to universal “meta-political” Human Rights, we lose politics itself, i.e., we reduce politics to a “post-political” play of negotiation of particular interests’.

With this theoretical backdrop in place, a number of concerns can be raised about the way that the language of rights now works in practice. In particular, the proliferation of demands which claim the status of rights – a phenomenon known as human rights inflation – risks degrading their currency. This involves both the extension of rights into new domains, such as children’s rights, animal rights or environmental rights, as well as the increasing codification of traditional rights, such as the right to free speech and to equality before the law. Rather than rights facilitating and encouraging a process through which citizens themselves debate and determine the conditions of their society, relationships are formalised and rights are reconceived as privileges dispensed within a predetermined political landscape. The underlying basis for rights in the model of an active citizen is obscured and moral and political imagination impoverished.

The moral claim of rights risks being squeezed out by a political practice in which people scramble to play the trump card of rights claims and the phrase ‘but it’s my right’ becomes an all-purpose means of justification. The model of a ‘right to have rights’, on the other hand, privileges the rights required for realising the status of an active citizen. The effect of rights inflation is to weave evermore complex patterns into an already crowded legal patchwork of rights, qualifications and exceptions, where the addition of new rights necessarily hems in those that already exist.

To get to the bottom of the present situation it is useful to roughly trace the three generations of development of human rights thinking. The first corresponds with the eighteenth century Enlightenment, the era of the United States Declaration of Independence and the French Declaration of the Rights of Man and Citizen. The second wave was a response to the Second World War, producing the UDHR, which added economic, social and cultural rights to existing ideas of civil and political rights. Finally, the third wave has added a global dimension to human rights, separating them from the principle of state sovereignty, so that human rights becomes a standard through which governments and non-governmental organisations assess global affairs.

Three things are notable about the first two waves. First, they articulate an aspiration rather than stating a fact. The first wave was bound up with national revolutions. The claim in the US Declaration of the self-evident truth of human equality was as much a rhetorical appeal as the recognition of an existing reality. The appeal in the UDHR that as well as recognising their freedom and equality, human beings should ‘act toward one another in a spirit of brotherhood’ is freighted with the recognition of the consequences of failing to do so. Second, this moral aspiration was set within a social consensus that gave it direction. The post-Second World War environment made it possible for the parties to the UDHR to paper over the fact that they could only agree on what articles to support and not on why they supported them. This leads to the third point: it is only with the third wave that rights come to impose legal obligations rather than set goals for states; that rights became a matter of filling in legal details within an already constituted moral scheme. Today, the language of human rights has been cut adrift from its social, and therefore moral, foundations. Rights no longer articulate the possibility of political progress and the more they take on the register of instrumental pragmatism, the less they can be regarded as an ultimate moral standard.

Michael Ignatieff (1999), amongst others, has recognised that human rights are now faced with a midlife crisis. He says,‘The secularism of its premises is ever more open to doubt in a world of resurgent religious conviction’ and that human rights have ‘become the major article of faith of a secular culture that fears it believes in nothing else’ (Ignatieff 2001). But his response is a brand of moral minimalism. Instead of fruitless reflection on the justification of human rights we should instead focus on the worst cases of human rights violations. As he puts it, ‘liberal freedoms may be some way off. But we could do more than we do to stop unremitting suffering and gross physical cruelty’. And this is not strategic, but rather ‘the most we can hope for’ (Ignatieff 2001).

There is, however, real reason to doubt whether this should be ‘the most we can hope for’. It is related to the way in which rights become re-conceptualised when divorced from their foundations. Žižek(2005b) quotes the French philosopher Jacques Rancière: ‘when they [rights] are of no use, you do the samer as charitable persons do with their old clothes. You give them to the poor. Those rights that appear to be useless in their place are sent abroad, along with medicines and clothes, to people deprived of medicine, clothes and rights…They become humanitarian rights, the rights of those who cannot enact them’. The domestic sphere and the international are related. Without a sense of the way in which human rights hold open political possibilities at the domestic level it has become increasingly possible for human rights to be reconceived at the international level as something that can be provided by third-party intervention.

When rights are detached from accountability to those who would seek to exercise them they are pressed into service as an instrument for constructing a community which will exercise them alongside their role of making moral claims. This can be related to what David Runciman (2006) calls the ‘politics of good intentions’ where the distinction between moral principles and political pragmatism is blurred amidst a fuzzy glow of warm words. Human rights have been reduced to an instrument for achieving community through the promotion of values.

The source of this trend within the domestic sphere can be identified through considering the UK’s Human Rights Act. Francesca Klug, who advised the government on incorporating the European Convention on Human Rights into UK law, writes revealingly about the way that human rights now operate. She argues that first-wave human rights overlooked the importance of community. Liberty and equality were emphasised at the expense of fraternity. What we now recognise, she argues, is that rights have to be balanced by correlate responsibilities which take account of how potentially conflicting rights can be seen as fitting together into one scheme (Klug 2004).

This is something different than simply the juridification of politics – the shift of political contestation from the public to the judicial domain. Indeed, Klug is conscious of the charge that the Human Rights Act was imposed by a political elite and lacked public support. She is in favour of the fact that the Human Rights Act allows parliament the final say on legislation. Her alternative approach is indicated by the fact that she advocated the establishment of a commission to promote the values of the Act (Klug 27.6.2006). However, the seemingly innocent idea of ‘values’ plays an insidious role. With values replacing principle as the supra-political moral content of rights, political contestation is de-legitimatised and the vision of the rights-bearing subject altered. What is now elevated to the status of a principle is the necessity of balance and accommodation between different rights.

This is evident in Klug’s response to two recent debates: freedom of speech and civil liberties versus security. In the debate over the Danish cartoons controversy, Klug (18.2.2006) argued that freedom of speech has to be placed within a social context where it is limited by a principle of tolerance that is just as much part of the self-understanding of our society. ‘Human-rights values should not become a byword for endless legislation and litigation’ she argues. Instead, ‘they are intended to provide a framework for democratic societies to help us decide what we stand for and how to act, especially in times of tension’. In responding to David Cameron’s charge that the Human Rights Act fails to strike a proper balance between security and freedom, Klug points out that it is ‘one of the most moderate rights charters in the world, with most rights subject to limitations to protect “public safety” or “national security”’ (Klug 18.2.2006). Here political concerns about the erosion of popular sovereignty at the expense of judicial power are side-stepped only at the cost of positing a scheme of supra-political values that already operates to contain any conflicts between human rights claims. It is difficult to see how human rights can be made to matter to citizens unless they are taken to sanction appeal to principles, the consequences of which go beyond the way in which those principles are pre-packaged and constrained within a community’s existed values.

Therefore, alongside a shift in the domain in which politics occurs – the move towards the juridification of politics in the domestic sphere and towards non-state actors in the international sphere – there is also a change in the way that politics is understood. While at home judges are asked to tidy up the messy business of political disagreement, abroad political disputes are reduced to the status of humanitarian crises. The concern that rights have been emphasised above responsibilities is not without foundation. What is in question is the fact that it is citizens who must take on the responsibility to act as subjects with ‘the right to have rights’. As the German philosopher Jürgen Habermas has argued, rights cannot function without a culture of freedom in which people are accustomed to exercising their rights as true rights. The solution to the crisis of human rights cannot be to deny the need for moral and political foundations, or for the task of providing this certainty to be devolved to governments. The answer can only be more freedom rather than less, a greater awareness of the responsibility of citizens themselves to grasp the political possibilities that human rights open up and to make that potential a reality.

Author

James Gledhill is a PhD student in political theory, London School of Economics

References

Ignatieff, M. (2001). Human Rights as Politics and Idolatry. A. Gutmann (ed). Princeton, Princeton University Press.

Ignatieff, M. (1999). Human rights: the midlife crisis. The New York Review of Books 46(9).

Klug, F. (27.6.2006). Enshrine these rights. The Guardian.

Klug, F. (18.2.2006). Enlightened values. The Guardian.

Klug, F. (2004). Human rights: above politics or a creature of politics?. Policy & Politics Annual Lecture.11 March.

Runciman, D. (2006). The Politics of Good Intentions: History, Fear and Hypocrisy in the New World Order. Princeton, Princeton University Press.

Žižek, S. (2005a). Against human rights. New Left Review 34.

Žižek, S. (2005b). The obscenity of human rights: violence as symptom. Lacan.com.

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