“Finally, even a thinker as cynical and sharp as Michel Foucault invoked the language of rights to discuss the ‘right to intervene’ to liberate suffering individuals from the imposition of tyrannical sovereignty.”
“It is puzzling enough that a people which is just beginning to liberate itself, to tear down all the barriers between its various sections, and to establish a political community, that such a people solemnly proclaims (Declaration of 1791) the rights of egoistic man separated from his fellow men and from the community, and that indeed it repeats this proclamation at a moment when only the most heroic devotion can save the nation, and is therefore imperatively called for, at a moment when the sacrifice of all the interest of civil society must be the order of the day, and egoism must be punished as a crime. (Declaration of the Rights of Man, etc., of 1793) This fact becomes still more puzzling when we see that the political emancipators go so far as to reduce citizenship, and the political community, to a mere means for maintaining these so-called rights of man, that, therefore, the citoyen is declared to be the servant of egotistic homme, that the sphere in which man acts as a communal being is degraded to a level below the sphere in which he acts as a partial being, and that, finally, it is not man as citoyen, but man as private individual [bourgeois] who is considered to be the essential and true man.”
Karl Marx, “On the Jewish Question” 1843
Karl Marx, who studied law in early life before turning to philosophy and economics, was not a fan of liberal rights. In his seminal essay “On the Jewish Question” he characterized them as the “so-called” rights of man, which framed people as egoistic, private individuals rather than active citizens of a community. The ideological effect of this framing was to depoliticize social life, while also insulating property relations from substantial critique since they were venerated as flowing from fundamental rights. Since then, progressives have long agreed that Marx was probably correct in his denunciation of liberal rights. Generations of Marxist theorists delighted in taking pot shots at rights discourse, with Althusser being especially brutal in discussing the liberal individual’s embeddedness in the “heaven of the state,” where his rights would be respected and would take the place of politics. Post-colonial theorists denigrated rights as a “Western construct with limited applicability”—or even as a new form of imperialist imposition. Unsurprisingly, critical legal theorists have shared many of these skepticisms, taking liberal rights theory to task for its alleged apoliticism, ideological suppositions, defense of the status quo, and a host of other sins. Pierre Schlag discusses the “empty circles of liberal justification” and its flailing efforts to ground rights discourse foundationally. Duncan Kennedy wrote artfully on the way property rights are used to insulate powerful institutions and figures from critique. Perhaps the most sustained and balanced criticism was offered by Costas Douzinas in his classic book The End of Human Rights. Summarizing many of the same positions in a 2009 article for The Guardian, Douzinas opines:
“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, enslaved 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.”
The problem for defenders of human rights, particularly liberal human rights is that many of these criticisms have both theoretical and practical bite to them. As we shall see, it is undeniably true that liberal theorists and politicians have often invoked rights discourse to both depoliticize social life, particularly when democratization raises its dangerous head—and to insulate powerful institutions and figures from criticism. The most notable is, of course, the institution of capitalist private property. Moreover, many critical legal theorists are correct to point out that this is more than just an ideological dilemma. Liberal rights discourse finds its instantiation in the Court system, and a focus on rights can incline citizens, who are eager to change the system, to put their faith in what may well be a conservative or reactionary judiciary. Critical legal theory has long been excessively dominated by the often tedious politics of the American experience, but there is no doubt some universal applicability to concerns that Courts are unlikely to rock the boat that significantly. This is the case, even if Ronald Dworkin and other liberal egalitarians insist that they can and should. This is because the law in which liberal rights is codified was not intended and rarely functions as an instrument of dramatic change. Its orientation is towards preserving and maintain a degree of order across society: ordered liberty if citizens can be trusted, and for some neoliberal thinkers even authoritarianism if they cannot. Wanting to use liberal law on rights to change liberalism is as dangerous and eyeroll-inducingly idealistic as seeking to tear down the master’s house with his tools while he watches and nods approvingly.
The Left and Human Rights
For all that though, leftists in general (and even critical legal theorists specifically) have always been a little naughty in their approach to liberal rights—and even liberalism, more generally. They criticize them fiercely during the day, but aren’t afraid to flirt a little at night. Throughout his career Roberto Unger has called on progressives to recognize that what they want is not to abandon liberalism but instead to realize its potential as a kind of “super liberalism. Critical race and legal scholar Kimberlé Williams Crenshaw points out the importance of ensuring women and other marginalized groups can access their rights to better their lives on an everyday basis. Less grandiosely, the critical legal scholar Sergio Argüello reminds us that it is all too easy to abandon respect for liberal rights when you already possess them, missing the good they may do for marginalized people and the disadvantaged:
“It is necessary to look at these negative critiques, and take them seriously. They make important observations on the dangers and unintended consequences of using the institutional dimension of human rights. Nevertheless, it is also necessary to remember that their vision is just as incomplete as the others. As Critical Race Studies scholars have shown, for instance, it is easy to disown the formal protection of human rights when you have economic, cultural, and symbolic power to defend yourself without them. In some circumstances, law and rights can be used against others. But it is also possible that the total rejection of the same law or rights could be worse than their strategic use in other contexts. There is a great danger within the apologetic view of the intrinsic goodness of the rights and the veil that it creates. But at the same time, it is necessary to remember that behind the abstract problems presented on the law, there are histories of actual human beings that can improve their daily life through and with recourse to the law and rights. The fate of a single human must be enough to constrain the critical perspectives to make a generalization about the possibilities of human rights.”
Finally, even a thinker as cynical and sharp as Michel Foucault invoked the language of rights to discuss the “right to intervene” to liberate suffering individuals from the imposition of tyrannical sovereignty.
I suspect there are several reasons for this Janus-faced approach to rights discourse, many of which will be explored throughout the text. Some of them are purely strategic. Critics like Crenshaw and Catherine MacKinnon will often invoke the language of human rights to agitate for the recognition of previously marginalized groups which have been denied them. This reflects Argüello’s salient claim that while criticizing human rights, we should not throw the baby out with the bathwater and fail to recognize their potential for progressive advancement within the context of a liberal society. But I think a significant part of the attraction is that the fundamental power and ubiquity of rights discourse makes it almost irresistible to try and latch more radical projects onto it. This means detaching rights discourse from its roots in liberalism and realizing its more radical potential for democratization and equality. Such a project has two dimensions to it. Firstly, one has to engage in a critique of liberal rights. Then, one needs to rethink how rights can be conceptualized and applied to advance more progressive causes. As put by Kathryn McNeilly in her excellent paper “After the Critique of Rights: For a Radical Democratic Theory And Practice of Human Rights” in Law and Critique.
“However, when we view liberal human rights through Laclau and Mouffe’s thought we can see that human rights need not be discarded straight away because of their liberal commitments and current attachment to restrictive power regimes. As Illan Wall states, echoing radical democratic sentiment, ‘to simply cede human rights to the liberal tradition is to fail to understand the significance of the democratic tradition in human rights’ (2012, p. 3). Rather, human rights may be viewed as one liberal discourse which stands to be reworked, which can be re-engaged in the context of a critical relation to power in order to make the values it espouses more concrete and thereby advance a more meaningful realization of the key values of liberal democracy.”
Conclusion: Developing a Progressive Theory of Human Dignity and Rights
My new book Liberalism and Liberal Rights with Palgrave MacMillan follows from this second orientation. It is committed to both criticizing the liberal conception of rights and putting forward a more democratic and egalitarian counter-interpretation centered around a novel model of human dignity. My argument is the radical potential of rights discourse for progressive projects has yet to be fully realized since the reconceptualization is often separated from a specific normative project. Often, it is purely futural, projecting how a new conception of rights “yet to come” (in Derridean terms) will prove more emancipatory than its liberal forebear. Liberalism and Liberal Rights endeavors to go a step further by providing more concrete arguments about what form this more radical conception of rights will take—and what emancipated rights bearers might look like. The model of human dignity presented here, which stresses the necessity of socio-political institutions so as to amplify the expressive capabilities individuals need in order to engage in dignified self-authorship, is meant to fulfill this ambition. It stresses that liberal theories of human agency have been too beholden to limited concepts of liberty, whether negative or even positive—to invoke the old dualism. Instead, it invokes human dignity to claim that agency is better understood as our overall capacity for self-authorship, which has three dimensions to it.
If the model of dignity put forward is attractive, this is married to a conception of rights, which needs to be far more robust than what is put forward by classical liberal polities. To be truly capable of self-authorship, individuals need firstly to have their standard negative liberal rights protected. But secondly, they also require very substantial rights to economic and social resources. Finally, they require substantial democratic rights to ensure that—what Axel Honneth calls their civic freedom—is respected: the freedom to live in a socio-political system in which individuals themselves have a substantial say in cooperation with all other members of the community. I believe that the three dimensions of self-authorship are well-captured in the call for respecting two “twinned” rights, which serve as guiding “mother rights” for more specific rights, specified with greater clarity down the line and depending on context. The first of the twinned rights is to democratic authorship of the socio-political contexts and laws which govern individuals. And the second is to an equality of expressive capabilities except 1) where inequities are demonstrably tied to significant welfare improvements for the least well off and 2) flow from the morally significant choices made by individuals. Under this model, people are to be granted far more democratic power—and society is to be far more equal than it presently is under liberalism and now neoliberalism. The twinned rights would serve as a principled source for developing a more specific set of rights enshrined within the law, which could be invoked to engage in what Benhabib would call “jurisgenerative” activities. What this means is that the more specific rights guaranteed would not conceptualized in a static manner characteristic of legal positivism or other legal philosophies, which focus on the need to preserve order. Instead these jurisgenerative rights would be continuously subject to reinterpretation by democratic polities to ensure they remain useful tools for the realization of democratic freedom and equality, which should not become ossified within established orders but continuously necessitate the transformation of socio-political contexts according to the needs and interests of its members.
Matt McManus is Professor of Politics and International Relations at Tec de Monterrey, and the author of Making Human Dignity Central to International Human Rights Law and The Rise of Post-Modern Conservatism. His new projects include co-authoring a critical monograph on Jordan Peterson and a book on liberal rights for Palgrave MacMillan. Matt can be reached at firstname.lastname@example.org or added on twitter vie @mattpolprof