A contribution to an exchange on Human Rights: Advancing the Frontier of Emancipation
I appreciate Kathryn Sikkink’s thoughtful, clear-headed account of the achievements of the human rights agenda over the last eight decades, but I remain skeptical that such an agenda, however expansive, can advance the cause of a Great Transition. Sikkink’s proposal seems to raise as many questions as it does answers. In the comments that follow, I discuss each of her “four pillars” in turn.
First and foremost, the alleged “universalism” of human rights claims should be qualified in much stronger terms. One would not wish to deny for a moment that leaders, activists, and others from the Global South have productively used rights claims to secure benefits of various kinds for their communities. But this does not make rights discourse any less essentially Eurocentric. This is not just a matter rights being a “Western invention.” The very notion of inalienable human rights as we know them today presupposes a uniquely modern Western kind of reality, one where all of the most vital life-sustaining mechanisms, from free market economies to liberal democracies, are premised on metaphysical commitments to materialism, to anthropocentrism, to secularism, and perhaps above all to individualism. This notion takes for granted the proposition that humans are naturally presocial, monadic beings, all born with congenital rights to pursue their own individual “life, liberty, and property.” And as a historian who specializes in the study of pre-modern experiences, I feel comfortable saying that the very idea that humans need to be individually protected from “the community,” however defined, by certain universal natural rights would make little or no sense in any non-modern reality.
For example, this idea of the universal rights of individuals would have made little sense at all in the world of the classical Athens, where Athenians were all born to be integral components of the social body of a particular polis, a kind of human superorganism whose very existence depended upon the symbiotic relations it maintained with its own ancestral land and its own pantheon of gods. It would have made little or no sense in the world of Ming China, where life itself depended upon the unencumbered ability of the emperor to exercise his divine mandate and align “all under Heaven” with the timeless “way of Heaven.” And it would make no sense at all in those many “animist” worlds studied by the likes of Eduardo Viveiros de Castro, Philippe Descola, and Nurit Bird-David, where humans share forms of personhood and subjectivity with a multitude of other agencies, including animals, spirits, rocks, forests, and rivers.
Indeed, the notion of universal individual rights makes sense only in a world where, inter alia, humans monopolize all agency and subjectivity, where the individual being of humans ontologically precedes their social being, and where individuals have already in effect been granted license to pursue their means of existence for themselves. Which is to say, rights did not originally exist somewhere out there “in nature” as materially self-evident, mind-independent things-in-themselves, awaiting discovery by classical liberals and French philosophes. They are, in the end, products of a very specific historical environment, cultural artifacts that could only acquire full meaning and realness under the contingent conditions of one particular, highly anomalous metaphysical conjuncture, the one we call Western modernity.
This essentially non-objective, mind-dependent character of rights in turn helps to explain what the author calls their “expansiveness.” And I would argue that this expansiveness is at least as much a weakness as it is a strength. Again, it goes without saying that we should celebrate the extraordinary proliferation of rights claims that has secured all manner of benefits for, say, women, racial minorities, and other historically marginalized or disadvantaged groups since the 1950s. But this same proliferation also speaks to the inherent plasticity or elasticity of rights as mechanisms. By now, almost any imaginable rights claim by one group of individuals will almost inevitably contravene or contradict the established or potential rights claims of others. The student’s right to live free in a peaceful, gun-free environment contravenes the gun owner’s right to bear arms. The tenant’s right to affordable, rent-controlled housing contravenes the landlord’s right to extract rent at the market rate. The mother’s right to choose contravenes the fetus’s right to life, and so forth.
And it is precisely this kind of ontological elasticity which has caused some in the field of “Critical Legal Studies” to suffer what Duncan Kennedy has called a “loss of faith” in the whole discourse of rights.1 After all, for a new right to become fully realized in experience as a legally enforceable mechanism, the case for it must be weighed against the cases for those other rights which the new right would inevitably contravene. In other words, the reality of a right will always depend upon a process of adjudication, whether conducted by a judge, by legislators, or by some other authorized agency. And history teaches us all too clearly that such decisions are more likely to be determined by the adjudicator’s prejudices, ideological commitments, policy imperatives, or enforceability concerns than by any objective force of the particular rights in question.
This brings us to the third “pillar,” namely, the “supranational” character of rights. The rights-supporting interventions of supranational adjudication bodies like the UN Security Council and the ICC have been at best highly selective, shaped and determined more often than not by prevailing geopolitical or economic exigencies. One might draw a parallel here with the “laws” of war. Of course, having some laws of war is better than having no laws at all. But such laws are all too often applied after the fact, usually by the victors or the global powers-that-be. So why bother having such laws at all if their application can never be truly neutral or impartial? I don’t think it would be too cynical to suggest that such laws in the end serve to legitimize warfare as a “civilized,” rule-abiding pursuit. They allow us to engage in mass slaughter while still maintaining some pretense to civility.
So, too, with our human rights claims, which likewise can never be adjudicated by wholly disinterested or impartial arbiters. Needless to say, our current modern global order, with its steady, if uneven, proliferation of rights, is distinctly preferable to an order that would recognize, say, only a bare minimum of property rights. But it would not be hard to make the case that the ultimate source of the globe’s most persistent, systemic problems is modernity itself in its various forms, whether liberal capitalist, “communist,” “post-communist,” or otherwise. For one can hardly dispute that modernization projects, especially those pursued for over 200 years now by the “enlightened” West, have authorized and naturalized the infliction of historically unprecedented levels of damage upon the minds, bodies, ecologies, and environments of all the planet’s lifeforms, human and non-human alike. In such a context, it may again not be too cynical to claim that our universal human rights end up serving as a kind of legitimation device, allowing us to pretend that our world is still somehow “civilized” despite so much evidence to the contrary.
This brings us in turn to the “emancipatory” capacities of rights, the final anchor of the author’s agenda. Here, she assumes a conventional liberal calculus, whereby social goods are merely an aggregate of individual goods, to argue that her agenda would ultimately effect a Great Transition by promising to extend rights into areas like health care, clothing, and housing, thereby guaranteeing “the full security of the individual.” In this vision, rights would then serve as “the connective tissue” that could bind together “disparate movements” and “awaken” a “global citizenry” to the possibilities of a new dispensation. Again, who would not want a world where people are more “bound together,” where basic necessities like housing, clothing, and medical care are all but guaranteed? But whether rights are the mechanisms best equipped to secure such a world must again be questioned.
Some weaknesses of modern rights as foundations of social order have already been mentioned above, not least their ontological elasticity as mechanisms; the near-impossibility of their impartial, objective adjudication; and their uncomfortable complicity with the Western capitalist common sense that has historically authorized, inter alia, imperialism, colonialism, mass industrial servitude, and environmental degradation on a hitherto unimaginable scale. To this list, one might add that there seems to be something almost self-contradictory about a project that would use rights to forge new bonds among a “global citizenry.” If the ultimate goal here is to furnish some kind of “connective tissue” between "disparate" groups, it is hardly self-evident that mechanisms which are expressly designed to turn humans into free-standing, autonomous individuals would be the most effective means to this end. Besides, do we really want a world homogenized under the banner of liberalism, a world full of Western-style individuated subjects, especially given the incalculable historical damage so far caused by such beings? Do we really want to occlude or suppress all other ways of being human, such as the various indigenous ways that have somehow managed to survive the predations of our voracious modernity?
So long as we remain confined within this modern individualist world of ours, then of course we need rights to protect us, the more expansive and emancipatory the better. But I would far prefer a world which presupposes human interdependence rather than human individuality, a world where the very idea of individual rights would make little or no sense at all. And in order to help us imagine such a world, I would say there is very much we can learn from the innumerable non-modern, non-individualist ways of being human that have flourished in both the present and the past.
1. Duncan Kennedy, “The Critique of Rights in Critical Legal Studies,” in Left Legalism/Left Critique, eds. Wendy Brown and Janet Halley (Durham, NC: Duke University Press, 2002), 178-227. Durham, NC.
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