Human Rights Contested – Part I

This post (presented in two parts) is drawn from a review article that will be forthcoming in The Journal of Intervention and Statebuilding, which looks at a recent set of critical writings on human rights in order to consider the profound limitations and evocative possibilities of the contested idea and politics of human rights.

Human Rights in a Posthuman World: Critical Essays by Upendra Baxi. Oxford: Oxford University Press, 2009.

Surrendering to Utopia: An Anthropology of Human Rights by Mark Goodale. Stanford, CA: Stanford University Press, 2009.

The Divided World: Human Rights and Its Violence by Randall Williams. Minneapolis, MN and London: University of Minnesota Press, 2010.

After Evil: A Politics of Human Rights by Robert Meister. New York, NY: Columbia University Press, 2011.

The central tension of human rights is that they propagate a universal and singular human identity in a fragmented political world. No one writing about human rights ignores this tension, but the most important question we face in judging the value of human rights is how to understand this tension and the divisions it creates. The expected divisions between good and evil, between moral universalists and dangerous relativist, between dignified interventionists and cowardly apologists, have long given shape to human rights, as both an ideal and a political project. Seeing the problems of (and for) human rights in these habituated ways has dulled our capacity for critical judgment, as few want to defend evil or violent particularisms or advocate passivity in the face of suffering. Even among serious and determined critics our inherited divisions are problematic (and increasingly over rehearsed), whether we think of human rights as the imposition of Western cultural values, or in terms of capitalist ideology serving the interests of neo-liberal elites, or as an expression of exceptional sovereign power at the domestic and global levels. The ways that these divisions deal with the tension at the heart of human rights misses the ambiguity of those rights in significant ways.

     Rather than trying to contain the tensions between singularity and pluralism, between commonality and difference, in a clear and definitive accounting, the authors of the texts reviewed here allow them to proliferate. Rather than trying to resolve the problem of human rights, they attempt to understand human rights in their indeterminate dissonance while exploring what they might become. To create and invoke the idea of humanity is not a political activity that is unique (either now or in the past) to the ‘West’. The people most dramatically injured by global capitalism sometimes fight their oppression by innovating and using the language and institutions of human rights. Political exceptions – the exclusion of outsiders, humanitarian wars and imperialist conceits – are certainly enabled by the same sovereign power that grants rights to its subjects, which is a metaphorical drama all too easily supported by human rights, but it is only a partial telling of the tale, a telling that leaves out how human rights can reshape political authority and enable struggles in unexpected ways. The work of these authors pushes us to reject the familiar divisions we use to understand the irresolvable tension at the centre of human rights and see the productive possibilities of that tension. If human rights will always be invoked in a politically divided world, and will also always create further divisions with each declaration and act that realises an ideal universalism, then our focus should be on who assumes (and who can assume) the authority to define humanity, the consequences for those subject to such power, and the ends toward which such authority is directed.

     Starting from this alternative approach is important for the simple reason that it alters the viewpoint from which we evaluate human rights, as we are no longer stuck, as a matter of the terms of discourse, defending particularism, relativism or passivity in the face of injustice, and instead we are enabled to challenge the idea that some human beings have a unique privilege to intervene and bring salvation to others, to determine the meaning of human rights, while also affirming the active political agency of women and men throughout the world taking up the tool (or weapon) of human rights to preserve their own dignity. All four authors ask us to re-focus in this manner (though the specifics obviously differ in important ways) and for that reason the works themselves are openings rather than definitive statements. I ask three general questions of the authors in order to explore the openings they have provided: How are human rights made? Who are human rights for? What do human rights promise? In answering these questions through these texts I suggest connections and differences, highlight deficiencies and insights, and try to encourage further developments on the beginnings they present to us.

How Are Human Rights Made?

To ask how are human rights made is to already take a position, one that sees human rights as social constructions rather than divine laws or principles of transcendent reason. To start from this position is to be sceptical of metaphysical deductions of moral norms, but this scepticism is broadly accepted at least since Richard Rorty suggested that a human rights culture is just one of the cultures that humanity has made for itself, it represents one of the shapes that the malleable human animal has taken. Secure, tolerant, concerned, and relatively rich liberals make Rorty’s human rights culture; they have used some of their wealth and security to develop a culture that is defined by their desire to prevent the suffering of human beings, wherever they may be located geographically and culturally, and which, he thinks, should be spread as widely as possible. In their own way each author under consideration here picks out inadequacies in Rorty’s ironic liberalism by raising questions about what the human rights culture is, what it is good for, who speaks for it, and how it is made.

     Upendra Baxi begins Human Rights in a Posthuman World by reminding us that

When grassroots postmodernists summon us to a struggle against the “monoculture” of universal human rights and liberation from the re-colonizing “Global Project” of human rights, by “bringing human rights down from its pedestal” and the summons for resituating human rights “amidst other significant cultural concepts which define a “good life” in a pluriverse”, they embark on a different theory project than those rights-weary thinkers who insist that the very idea of human rights is based on a moral mistake.

Baxi’s grassroots postmodernists are not Rorty’s liberal ironists, even if they agree that rationally deduced moral principles are rarely adequate protection; they are often insecure, struggling, poor, abused and ignored, but they are not waiting for wealthy liberals to save them, they are not waiting to be protected up by an ironic rather than divine power. Nor are these grassroots postmodernists critical philosophers like Gorgio Agamben, who deduces an irredeemable wrong written into the logic of human rights that necessarily preserves and justifies the exceptional power of sovereign authority. Rather they are women and men living in varied communities, struggling to live with dignity, making use of human rights when it enables those ends (Baxi’s politics for human rights) and opposing human rights when they are pernicious (Baxi’s politics of human rights). This is the key shift in each of these texts, a move to see human rights not simply as a product of ‘Western’ culture; nor the exclusive domain of lawyers, politicians and international civil society representatives who draft international human rights declarations and treaties; nor as a gift given by moral philosophers, good-hearted activists or imperial powers bringing the benefits of civilisation.

     While Baxi’s work draws both on critical human rights activism and postcolonial legal theory to reorient how we understand human rights, in Surrendering to Utopia Mark Goodale starts from anthropology’s ambiguous historic engagement with human rights to understand how they are made by those far away from centres of elite power, both geographically and ideologically. He suggest that not only are international human rights norms ‘vernacularized’ as they move from elite cosmopolitan centres into the wider (and not necessarily less cosmopolitan) world, but that they are also made through everyday social practices of political struggle in non-elite centres and in marginal spaces of the international system. Further, Goodale argues that we should ‘prioritize human rights in the vernacular’, which is to argue ‘that “human rights” (understood diffusely) must be both theorized and legitimated in terms of the groundedness of social practice, those mundane (yet often transformative) occurrences of what de Certeau called the “practice of everyday life.”’  This suggests looking to how those subject to international human rights law understand and reconstruct legal and moral norms, and to how human rights are made and remade through everyday practices of political struggle. Both Baxi and Goodale go beyond constructivist human rights scholarship that focuses on the diffusion of norms from the international to the local. In place of that top-down model they look to the scepticism, resistance and creativity of ‘grassroots postmodernists’. This move to consider how human rights are used and created by communities that are struggling for dignity, as well as how human rights enable linkages that form an alternative global network, risks appearing naïve, as a romantic narrative of authentic struggle realised through a universal appeal to shared humanity. Neither author succumbs to that risk, but in the critical company I have forced them to keep here, they appear at first glance to be potentially too sanguine.

     Human rights cannot simply be remade through creative acts of ethico-political imagination, they are the artefacts of a particular political history and they have been institutionalised in problematic ways. Remaking human rights is a political project, demanding both struggle and the construction of new institutions – which is of special importance because human rights have been a central pillar of the post-Cold War liberal order and cannot be redeemed easily. As Robert Meister argues in his theoretical and historical study After Evil, ‘Today the invocation of human rights is often part of a political project fundamentally at odds with the revolutionary struggles based on human rights: it is the war cry of a self-described “international community” led by the victors in the cold war.’ Liberal human rights are presented as a higher politics premised on the transcendence of vulgar politics through ethics, which renders violent struggle and political contestation into evils to be avoided because they always risk turning into exceptional and horrific violence and atrocity. Human rights are a politics that comes after evil. In this time after evil, victims and beneficiaries of past violence are reconciled and the individuals responsible for evil are punished, avoiding the need for revolutionary changes that might upset power structures beyond limiting (but not eliminating) their capacity for violence and commit cruelty.

     The limits of this politics of human rights does more than constrain us to a liberal-capitalist framework (beyond which we are repeatedly told we cannot see), it also reinforces the nationalist structure of state authority in contemporary world politics, which Meister ties to the logic of both colonialism and genocide. Colonial settlement makes the question of how the settler can live among ‘savages’ explicit, which is unavoidable so far as the sovereignty of a people is thought in terms of a moral sameness (civilisation) that is unsettled by insistent difference (barbarism). This dynamic not only gives us the civilising mission that continues to resonate in contemporary human rights discourse, but it also makes genocide thinkable.

The settler’s question is, “How can we live among these savages without civilizing them?” For the colonial project of civilization and governance to get under way, however, living without the “savages” must always be a conceivable option. It then follows that living without the settler must also be imaginable for a nationalist liberation struggle to occur as an outcome of colonialism.

What this suggests is that liberal human rights can oppose genocide but not the national and statist order that makes it possible. Human rights act as the redemption of the civilising mission, coming after the evils of colonialism and genocide have been repudiated and punished, but unable to offer any grander account of justice to the victims of a liberal order based on global capitalism and the nation-state. Human rights are disabled in this way because they focus on preventing cruelty and violence in their specific and physical form foremost (rather than on structural violence and social deprivation), while also seeking to reconcile victims to the nationalist state order to pacify them, to make them into citizens capable of living with the beneficiaries of past violence and oppression – if not the perpetrators of injustice. This means that while the most dramatic perpetrators of violence and cruelty will face punishment, the powerful individuals and communities that uphold the existing order are redeemed and their roles as counterrevolutionary saviours confirmed in human rights practice.

     Randall Williams also links human rights to the colonial project and highlights the difficulty of challenging the given coordinates of political and social power within contemporary human rights discourse, of getting beyond The Divided World – which is a theoretical critique of human rights drawing on both historical and cultural sources. Like Meister, he finds explicit linkages between universal human rights as an ideal and the racist ideology of colonialism, suggesting that as ‘long as the power to confer or withhold the recognition of the Other’s humanity remains a decision made elsewhere, there will be no substantial alteration of the material conditions that serve as the basis for the very possibility of a distinction between the human and the inhuman.’ The dominant politics of human rights, then, is not easily contested or surpassed, which Baxi and Goodale also acknowledge, but reading these authors together suggests that finding alternative ways of making human rights is difficult and dangerous work, which may not be worth taking on. Williams is pessimistic about the prospects of human rights to enable political change, such that any transformative potential they have will only be achieved by stepping outside the legal framework of international law, which he argues (invoking China Miéville) can only reaffirm the authority of the state, granting legitimacy to its violence while outlawing the use of violence in opposition. Meister likewise thinks that human rights must become part of a revolutionary politics that can see beyond the nation-state and the inequalities of contemporary capitalism if they are to be more than the ideology of the powerful.

     Its likely Goodale and Baxi would agree with much of this analysis, but the optimism one finds in their work grows out of their engagement with specific oppositional struggles that make use of human rights, by focusing on human rights made outside the direct control of powerful global elites. As Goodale suggests this leads to ‘human rights’ that ‘remain fluid and essentially plural and depend not on a hypothetical set of principles articulated by a small sliver of the global community but on the social actors for whom human rights come to form part of their contextualized legal, moral, and political practices.’ Yet, even if we identify the legacies that have made human rights what they are, while also paying attention to the ways they are (and have been) made and used in pursuit of very different projects, the question of what is to be done remains. The adoption of human rights by abused, marginalised and struggling peoples may be a necessary and at times effective strategy, but can it do anything to alter the order of things in profound ways? Can they be more than political tools that enable the weak to grab the ear of the powerful in hopes of pleading for mercy without demanding substantive justice?

Continued in part II.

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