Men cannot live without seeking to describe and explain the universe to themselves. The models they use in doing this must deeply affect their lives, not least when they are unconscious; much of the misery and frustration of men is due to the mechanical or unconscious, as well as deliberate, application of models where they do not work… The goal of philosophy is always the same, to assist men to understand themselves and thus operate in the open, and not wildly, in the dark.
-Isaiah Berlin, The Purpose of Philosophy
Last month I presented two papers on human rights at the ISA conference in Montreal (both are available in draft form from the ISA website, here and here, please do not cite, but comments are welcome). Attempting to offer a summary of those papers, however, has made clear to me that they are importantly connected and perhaps incomplete as separate papers – hence the “should” in the title. Together, the papers offer a pluralistic and agonistic reconstruction of human rights as a political concept and an ethical ideal. I’ll try to offer a shorter version of the argument that connects these two papers here, though broken into three (relatively) short posts. My reconstruction begins (Part 1) with a theoretical analysis of human rights, which forms the basis for an argument (Part 2) about how we should understand the history of human rights and, finally, (Part 3) leads to a defence of a democratising reconstruction of human rights.
The Nature of Human Rights Claims
Human rights, I argue, are of central importance for contemporary political theory because they respond to the basic question of legitimate authority, which is most simply the question of what justifies the coercive power of political authority. Traditionally, the question of legitimate authority addressed to the modern state and it is from this line of thinking that we inherent the rights discourse – in which authority is rendered legitimate by protecting the rights of individual members of the political community, which is a group importantly distinct from those actually subject to the coercive power of the state.
The details of this can be filled-in in many ways, but the logic of rights is central to modern political thought. These political rights, and the institutions of governance they support, in turn, are justified by an appeal to moral rights. The moral appeal is central to the rights tradition as it is the absolute and certain quality of moral principles that justify the limitations imposed upon political authority and the powers granted to political authority to exclude, harm and constrain. Human rights emerge from this modern rights tradition, but the conditions and consequence of their emergence are complex.
The discourse of human rights upsets modern accounts of political authority on two fronts. First, the member of the political community ceases to be the privileged bearer of rights – “the human” becomes the political subject to whom political power must justify itself. This element of human rights thinking grows out of democratic revolutions and struggles for liberation that contest exclusive terms of political membership in the name of more inclusive standards. Second, the assumption that the state is the site of legitimate authority is undermined. In part the state undermines itself through its own actions, as the modern state turned its awesome powers of destruction upon its citizens it brought the need for an authority above the state into stark relief. Equally destabilising, world events revealed the international system, which guaranteed the exclusive authority of each state, as a source of fundamental violence and conflict, and, further, the global forms of economic and political domination enabled by the European inter-state system were increasingly seen as immoral and in need of transformation.
Human rights, then, respond to the central political question of our contemporary condition, or at least represent the contemporary transformation of the question at the heart of the rights tradition. The search for a response to this question – the effort to determine the site and nature of legitimate political authority in our contemporary world of increased global connections, persistent diversity and multiplying and expanding threats – engenders profound anxiety. The worry is that moral principles capable of justifying a universal authority may not be available and that the moralisation of the statist order (whether through a reform of the state or a cosmopolitan transformation) is not possible. I take this diagnosis of anxiety , at least in part, from William Connolly’s work – more importantly, however, I also take up his agonistic orientation in suggesting that this anxiety is not unavoidable – though it does require rethinking the way we think about the question of political authority, as well as the identities and communities invoked to legitimate coercive power.
Moral rights must be convincing to and valued by every human being, and therefore must be universal – which also allows them to act as a universal standard for legitimate authority – this is the basic logic of conventional human rights thinking. These moral rights, in turn, mark out what political authority can and cannot do to individuals and thereby grant coercive power its authority so far as moral rights are respected in political life. Political authority, therefore, must be fundamentally universal as well, whether that authority takes the form of a nation-state that protects the rights of its citizens or a cosmopolitan form of governance in which universal institutions preserve the rights of all individuals. This framing generates interminable debate over what moral rights are due to every human being and whether this is determined by identifying what is essentially and undeniably valuable in humanity (essentialism) or by discovering the necessary conditions of rightful action (rationalism). Further, the site of legitimate authority must be found in a form of idealised community, with either the particular/natural political community (communitarianism) or a universal polis in which every human being is included (cosmopolitanism) receiving pride of place.
This, I think, maps out the general intellectual impasse around human rights, delimited by those who support restrictive account of rights and those favouring a more expansive cosmopolitan vision. Beyond leading to a stagnant impasse that resists resolution, critics of conventional human rights thinking highlight the exclusive and assimilative elements of an appeal to the moral significance of humanity as a political identity, and to the ways in which the political transformations (nationalist or cosmopolitan) reify and fail to challenge established power hierarchies in world politics. In the end the space for manuever and progress in thinking about human rights can seem limited – I want to suggest an alternative analysis of human rights that I think opens up these debates in an important way.
It is possible to think about human rights and our contemporary political condition differently, in a way that both relieves the late-modern anxiety associated with conventional human rights thinking and avoids the impasse generated by conflicting moral visions of humanity and political community, which must be held with a significant measure of certainty in order to limit contestation over the fundamental terms of political life. This involves a reconstruction of both the political function of rights and their ethical substance.
Rather than thinking about the invocation of rights – human or otherwise – as a way of responding to the question of legitimacy in a final and complete way, we can see the claiming of rights as part of the ongoing constestation over the terms of legitimate authority, as an ongoing challenge to political order. This idea draws on Bernard Williams’ argument that the first political question, which he describes as the basic demand for legitimation that authority must provide, can not only be answered in many different ways but that it can always be asked again. (Williams 2007) Bonnie Honig takes this understanding of rights further and in a more radically democratic direction by suggesting that rights are not only an element of the order of authority but also a tool for opening up fundamental political questions such as who belongs to the political community, what is the nature of a just society, and what are the appropriate boundaries of the political community. (Honig 1993 and 2003) This requires understanding rights outside of the social contract model in which the question of how to justify authority is answered by pre-social moral rights that are known outside of political time in a timeless moral space (thanks go to David Owen for this formulation), instead the claiming of new rights, including the moral claims they put forward, is a political act that express the effective democratic sovereignty of the people to contest and alter the basic structures of political life – including the definition of “the people”. (Connolly 2005)
What this implies is that rights have a more everyday nature than we normally appreciate. They are not exceptional postulates of political life derived from pre-social/political moral principles that imbue them with certain truth and justificatory power. Drawing on John Dewey’s philosophy, I argue that rights are in part the institutionalised relationships that define privileges and obligations within the community. (Dewey 2002 and 2009) These institutionalised relationships, enforced by laws and courts as well as social custom and affective personal orientation, reflect ethical ideals that have been deemed satisfactory and worthy of preservation. Rights are not, however, an indivisible and unalterable programme of rights, nor are they given by God, reason, or human nature – instead they are products of our social development. This analysis of rights de-particularises rights as they are a basic political grammar that defines the institutionalised privileges and obligations – the European tradition of individual liberal rights is one way in which that grammar is fleshed out, but it is hardly the only one, even within a European/Western tradition of political thought.
This does not mean that rights lack ethical content. Rights instantiate particular values that we pursue in political life; they represent a past claim that a particular ideal is valued and a judgement that this value should structure social life – such that individuals should be accorded a fair trial or that indigenous communities should have rights of autonomy within the state, etc. The ethical values that rights consolidate and institutionalise can reflect longstanding communal norms and customs or the emergence of new claims still struggling for legitimacy – human rights under this model are part of an expanding political frame in which questions of legitimacy are opened up to include new political subjects (not simply those the citizens of the state) and new sites of political community (exceeding the territory of the nation-state as well as the presumption of territoriality itself). Human rights respond to the question of what, if any, privileges and obligations are accorded to the human subject in the context of political relationships that exceed the domestic state and the conventional inter-state system.
Further, this implies that the meaning of humanity itself is open to contestation and cannot be restricted to the rational human or the suffering human or the human as member of the community or the human as vulnerable exile – but instead this analysis of rights affirms an ambiguous humanity, a humanity that is and can be many things. In the context of making human rights claims this means that the status that is appealed to through humanity is formally universal (it can be taken up by anyone as a matter of definition), but at the same time it is substantively overfull or ambiguous – we can claim rights to based on various aspects of our humanity. These claims are of course made in a political world and they must find support, justification and institutional success if they are to become effective, and they respond to particular problems, contexts and experiences. By placing contestation at the heart of rights claims plurality is infused into our understanding of human rights and they take on an ambiguous political function, existing both as an element of social order and a tool for the disruption of that order.
This is only a partial reconstruction of human rights, one which suggest a different (essentially agonistic) way of understanding rights – what I turn to in further posts is (part 2) how this account is supported by an historical analysis of human rights and also alters our historical understanding, and (part 3) a consideration of the possibilities opened up by this account of human rights – which involves arguing for a democratising human rights ethos.
“Not to assert one’s right. –To exercise power costs effort and demands courage. That is why so many fail to assert rights to which they are perfectly entitled –because a right is a kind of power but they are too lazy or too cowardly to exercise it. The virtues which cloak these faults are called patience and forbearance.”
-Friedrich Nietzsche, Human, All Too Human
William E. Connolly, Pluralism (Duke University Press, 2005).
John Dewey, Human Nature and Conduct: An Introduction to Social Psychology (Prometheus Books, 2002).
John Dewey, Outlines of a Critical Theory of Ethics (BiblioLife, 2009).
Bonnie Honig, Political theory and the displacement of politics (Cornell University Press, 1993).
Bonnie Honig, Democracy and the Foreigner (Princeton University Press, 2003).
Bernard Williams and Geoffrey Hawthorn, In the Beginning Was the Deed: Realism and Moralism in Political Argument (Princeton University Press, 2007).