Hello.

Well, I’m in fairly relaxed mode this morning because this is the final post in the 5½-6 month long project, The Rights’ Future.

What I’m doing now is introducing the video of the debate I had at LSE with David Davis MP, on the future of rights – with me arguing that the future lies on the Left, and David replying that, contrary to what I say, Human Rights can be viewed as a Right Wing, or a Right-of-Centre notion.

So I hope you enjoy that,  and the audience interaction that follows, with the whole event ably chaired by my colleague and friend Francesca Klug.

But it’s the way we’ve chosen to sign off on The Rights’ Future, I’m not sure what comes next. I think it would be a good thing to have some kind of permanent record in book form, but the main thing has been the activity itself. The project’s energy has owed so much to you, the viewers, and those of you among the viewers and readers, who’ve actually engaged as well, offering comments along the way. I’ve been very very grateful to you all.

Some statistics are included in the start of my presentation in the debate, and you get a sense there of quite how many of you have been involved as readers, watchers and contributors. But for now, thank you very much, and Goodbye.

The Debate

This House Believes that the Future of Rights is Left not Right LSE Literary Festival, February 2011

T19 and T20 responses – audio transcript.

Well here we are: the last reply by me to the comments from you all that have done so much to enliven and enrich the Rights Future.  Your responses to tracks 19 and 20 (about my human rights assumptions and my model of the right rights’ future) have been as stimulating, indeed as challenging, as ever.

I’ll have one ‘wrap-up’ comment introducing the video of the final event, and then that will be it (more or less: see my comments right at the end here).

Common Threads

Let’s start with ideas that have been strongly shared between many of you and which indeed serve to sum up what a lot of this project has been about.

To Craig Valters right at the end, human rights is ‘the language of the good’.  For Kate Donald, ‘empathy is … the real key to human rights’. Favio Farinella speaks for many of you I know when he describes human rights as ‘common feelings that are to be transmitted among cultures.’  His generous account of the project ends with his insight that ‘human rights are basically what people claim … when they are denied to live their life.’ They are embodied in ‘the perpetual will to change injustice.’ That last remark could be a distillation of our five months work.

Justice and the will to act have been constant themes.

Adam Brown is clear we must fight for our version of human rights.  Paul Bernal ‘wanted to do something that has a real impact.’  What matters to Craig is that ‘human rights make a real, achievable and genuinely positive difference’

Of course the phrase has been misused as Adam says and others of you undoubtedly believe, but equally that is no reason to give up on the term.  As Anthony J Langlois says,  ‘the only way to counteract this is by being the sort of people that [I describe], active, empathetic and desirous of making an impact for the betterment of people like us – willing to jump into the fray and hold our society and its institutions to account.’

There has also been a strong pragmatic dimension to what many of you have been saying, a sense of the energy and dynamic qualities not just to the people around rights but to the rights themselves.

Holly Bontoft puts it like this: ‘As the world moves on, so must our rights.’  To Alice we need to be ‘be endlessly pragmatic, always negotiating the tension between the need to go with the cultural grain and the need to speak universally in a world of pluralism.’  Federico Burlon intervenes ‘to underscore the importance keeping human rights pragmatic…. human rights as a political project of empowerment and freedom must remain practical and accessible.’  Lily Megaw argues that human rights ‘need to be allowed to develop over time, to be able to respond to contemporary demands so that individuals can make use of their emancipatory power.’

But how far does this pragmatism extend?

This is Lily again ‘We need struggle and solidarity, but we also a deeper meaning – a truth (T3).’

Of course I agree with Lily here.  The trick is to keep pragmatic politics and essential truths in the frame, never losing the one in needless obeisance before the other. I suppose this is another way of summing up the project.

And the cultural relativism point (made by Adam and followed up on by Alice) can be managed, I think, in the way I approach it in the post – universal values and principled and universal rights which are then concretized by laws reflective of the right human rights attitude.  The uprisings in the Arab world are about dignity – this is what gives meaning to their assertion of their rights – and it is a dignity that all of us (wherever we are in the world) can instantly recognize.  (Kate: ‘A much-needed reminder of the radical and revolutionary potential of human rights, their power and intrinsic universal appeal.’)

Values and principles are universal as are rights albeit their manifestation can vary from place to place – this is fine as long as these rights are good faith efforts at particularizing the values and principles that really, truly matter.

Apart from this justice and energy we have been discussing, there is also the self.

Anthon has throughout the project been the great advocate of the self and he has worked hard to ensure that we never forget the person that is and must be at the core of human rights.  For Anthony, the two key things about the subject are ‘justice and … the inviolability of the person (the sacredness of the person, in older language).’ Intuitions about each of these are universal at the core and each draws us to the language of human rights as our way of articulating what they feel like to us and therefore mean.

I have wrestled with the place of the self and have learnt a lot through doing this project.  I am now clear I am entirely with Anthony on the vital role of the ‘self’ albeit of course it has been the located self that has been at the centre of our attention.  As Anthony says, ‘Individual embodied selves are us, as it were, and I think that one of the prime reasons that human rights works as a political, ethical, social, emancipatory force is because it recognizes this front and centre.’

Embedding Rights

If energetic campaigning for justice in support of a rich understanding of the self is what human rights are about, how do we go about achieving this?   Anthony again: ‘For human rights to endure they need to be translated from the passion of individuals and groups of people into the very structures of society itself.’ Malcolm Ramsay puts it in the form of a question: “How do you drive forward large-scale change to achieve a better human rights future for all?”

I was thinking when reading Colin Harvey’s contribution to track nineteen of his question to me at the LSE event on Thursday last week – you will see it, I hope, when the event is put on the site. It was about the challenge of securing foundations for rights within a system that is at the same time properly and adequately democratic.  In other words we are back to the tension between politics and truth that I alluded to a moment ago.

Colin reminds us in his comments here about the hostility to the ‘non-belonger’ that is evident in even otherwise excellent national and/or regional systems.  How do we fight this, or stop it? Can truth control politics from the outside?

My answer is no.

In the end I do think that (in this world anyway) there is nothing outside politics, not even human rights, but that what we must do is grow a commitment to human rights that can then act as a check within our culture (Colin called it an ‘impediment’ in his question at LSE) – we could also call it a vital constraint on bad behavior (or commitment gadget as I called it on track four, quoting Pascal Boyer).

To help us to do this we often embrace ideas on behalf of which we claim to be a timeless certainty – and sometimes our religious faiths helps us to a true (and not just a tactical) belief in these ‘truths’.

But politics cannot without contradiction deliver the truth external to itself that its whole system of self-government must deny.

Maybe as Craig says ‘we don’t need the white lies.’   I would prefer if we didn’t – if we could cope with the contingency as well as the ethical power of the language of rights.  But many of us see the latter and reject the former, seeking a truth that we think the importance of human rights demands.

The truth I have come up with is an observation about nature, not a transcending moral theory.   It helps I think with ‘building a compassionate culture’ as Craig puts it. It is an odd kind of morality I agree, rooted as it is in nurturing the better parts of what we are (with ‘better’ here based on a theory of justice rooted in the self that our minds tell us is what ‘better’ is).  But for those without faith in something or some person larger than what we are it is all we have.

Law’s Empire?

Now on to the law.

As Anthony says ‘The law is both a key device but also a great danger.’   Paul, Holly and others of you share Anthony’s anxieties about law. As Duygu Akdag neatly puts it, ‘legal enforceability as the sole criterion of realising justice is too narrow a concept.’

Holly picks up a loose end in my treatment of the topic in the final essay.  When I describe human rights law as ‘the final product of a manufacturing process,’ I meant only final in the sense of the completion of a particular journey for a human rights idea from inception to realization in law.  The same journey could begin all over again the next day leading to a quite different destination.  The finality applies only to this particular process, and is not intended to imply a guaranteed durability for the product at the end of it.  This would contradict all I had been saying about the dynamism and positive volatility of human rights. I entirely agree with Holly that ‘As the world changes, we must change with it, and work to improve our understanding of it and each other.’

It seems to me that Holly is right when she says that ‘the role of law should depend on context.’

What context?

In a democracy with a strong democratic culture then it is right that law should be a mere messenger.

But in unjust or authoritarian societies, it can be heroic – a few South African judges took on apartheid (not many, I know) and the judges have been among the heroes of the people in Pakistan.

But human rights activists should see their dependence on courts as tactical and transitional.  Each should strive for democratic improvement, for a situation of the sort well described by Richard Buck: ‘The political culture must be one where democratic abuse of minorities is not tolerated and dissent is acceptable.’ And this human rights based democracy should entail having ‘multiple power centers in a society, so that one element cannot rule absolutely’ (Richard again) but – as he rightly observes – these must include big society and not just big business: ’Among the possible multiple centers of power are labour unions, religious organizations and universities.’

Can we do more to produce the universal true democratic cultures which make human rights more real and us less dependent on courts?

I would agree with Richard that ‘The West has got to be a little quicker in endorsing democracy, and military aid should only go to robust democracies. ‘

Paul raises the issue of the international enforcement of human rights in his response to track twenty. Yes perhaps I ought to have developed this point as it does warrant fuller treatment – would some kind of International Court of Human Rights be a valuable addition to the universal embedding of human rights, able (and Paul gives us this example) to advise on Iran or (we might add) Egypt and Bahrain?  Perhaps yes – so long as it was properly representative of the worlds’ peoples (not necessarily their governments) and also had the power to advise not command (more Human Rights Act than US constitution).  But it really does feel like another essay – and I have finally run out of space!

Richard Buck talks about a different kind of enforcement, of a military and economic nature. He lays out a highly coherent and intelligible framework for sure, but how realistic is it? Can we sensibly say ‘the just war doctrine must be rigorously applied to the decision-making’ and expect it to happen like this in reality? That is the Iraq trap into which some of us fell a few years ago, I feel.

And Federico is indirectly in point here: ‘ if we aim to put forward a version of human rights as an inclusive, empowering, liberating project based on giving everyone equal esteem, we will have to show why human rights and not violence and looting are a better alternative for these people to have a voice.’

Democratic Reform Starts At Home

To be concerned about improving human rights and democracy abroad often gives an impression of complacency at home.  Thankfully we have avoided this in the course of this project, or at least I hope we have.

As Kate puts it, ‘human rights must engage more with economic power and inequality, its role in the political process, and the implications this has for equality more generally, especially in terms of political power and speech’

To Malcolm our ‘playing field is hugely tilted’ – I agree.  That is why we also need a fair democratic system that can produce effective human rights law.  (I am not talking now about this or that electoral system but rather about the pernicious impact of money and how to reduce it.)

We can go further too, or at least Malcolm argues very strongly that we can: ‘there are a few relatively small changes, in crucial areas, which have the power to fundamentally transform the social landscape – not overnight, but hugely over the course of one generation, and completely over the course of two or three.’ I think his idea of ‘concentrating on fixing …specific flaws’ is a strong one.

• Target specific reforms to the political process that would reduce the power of money and then push hard for them;
• Develop Malcolm’s imaginative ideas about property and the need to restrict accumulation. (I wonder by the way why anyone is allowed inherit real estate at all – given property is not infinite, is this not a crass violation of the value of equality?)

Should we go further?

Malcolm again – ‘we can establish a voluntary society whose members covenant with each other to live by higher standards than the common law requires, with sanctions – enforceable in the courts through contract law – for those of us who fall short.’

The hankering after a new society, a New Lanark of the future, is something that has long been out and about in the world of radical reform.  But Malcolm’s suggestion, that  ‘we must build a new society – on new foundations – and swallow the old one from within’ strikes me as perhaps asking too much of us if we take it quite as intently as I think he might want us to.  To me, politics is about slow work to bring everybody with us more by argument and immediate example than by creating new models of living which will lack reality for those whom we are seeking to (and must) win round.

Does Coherence Matter?

Zoe Fiander (with Anthony agreeing on this one) says that my eighth assumption in track nineteen is wrong, that the subject of human rights is coherent – or maybe she has misunderstood me, she adds kindly!

I didn’t express myself clearly, I think that is it.

I am all for its ethical coherence and its intellectual coherence – but the latter not at any price. This is why I talk about ‘relative intellectual coherence’ – its fine unless you submit it to the scholastic microscope but I am saying you shouldn’t bother to or worry if such scrutiny shows up a few tiny imperfections. Rather we should celebrate this kind of incoherence as a price well worth paying for making strong ethical sense.

Zoe says ‘Perhaps I am biased as I would like all 10 points to hang together in a “deep and consistent” way…! ‘  I think they do, and deeply enough for our purposes.  But if you dive too deep you can drown – and you will certainly get separated from the swimmers you went out with.  There is such a thing as ‘deep enough’, a time when you tell your brain to stop, and to settle for the unity we have and which makes sense to our hearts than the deeper unity that the brain demands but which risks destroying everything else.

Some Gaps

Christina mentions women’s rights and Paul agrees that in general they are ‘paid far too little attention’.  I agree, the gendered perspective adds a deep dimension to human rights – I think I should have made more of an effort to discuss women’s rights directly.  Having said that, it was of course up to my respondents to make the points on behalf of women – Chrstina herself is a good example of this, and Duygu’s post in response to track 20 is an excellent example of the kind of fresh input that this perspective can bring.  But there was not much I could do by way of expanding the contributors – I could hardly coerce people into participating in a voluntary human rights project!

This last observation must also stand as my reply to Jose-Manuel Barretto, when he comments that the project was ‘too Eurocentric’ with ‘not enough people from different backgrounds’, when we needed a ‘much more open dialogue’.  True the project was limited to those with access to the internet but I don’t understand this limitation to be the basis of Jose-Manuel’s criticism.  People from over a hundred countries dipped into the project from time to time.  Maybe we should have done more to make people want not only to read but to write as well: more people like Jose-Manuel in fact, willing and able to wrest the initiative from me and to drive forward a forceful but different version of human rights.

This was a possibility.

But as I said by way of response to Christina our dialogue is not rooted in compulsion – we respect (to use a deeply Anglo-Saxon legal metaphor) the right to silence – whatever trouble it gets me into with those of you (like Jose-Manuel?) who confuse my openness to silence with a desire to impose my point of view.

And That’s It?

Well sort of, but I hope not entirely.  I will be putting up the video of the event on 17 February, with (I hope) some final thoughts.  And I’ll be in touch as well about a further chance for those of us who have contributed regularly to meet and to think through what we should do with the whole project now this phase is over.

I have found it one of the most energising and exciting projects of my academic life.  It has been full of life and zest from the start.  And that is down to all of you, those of my readers who have read and those who have contributed, especially.

Thank you to you all.

Download the complete article as a PDF.

T20 intro video – audio transcript.

What are the main distinguishing features of a person dedicated to human rights?

Activism: an energetic commitment to engage with the world, either on behalf of others or to assert – in common with others – rights of one’s own.

Empathy: a feel for the humanity of others, an ability to see others in the world as though you were they, a capacity for spontaneous solidarity.

Impact: the desire to make a difference, to achieve tangible outcomes – a freed prisoner; a humanely treated detainee; the previously hungry now well fed; liberation of a people from tyranny.

Impact is linked to achievability, as Paul Bernal and others of you remind us in your responses to track 19 (on which more later this week, in my final post).  The narrower the goal, the greater the likelihood that it is both achievable and can be seen to have been achieved.  But if they are defined in this way, human rights victories will inevitably be highly particularised, always peripheral to the main action in society – the small change of a state whose paper currency is power and inequality.

How do you drive forward large-scale change to achieve a better human rights future for all?

And linked to this, how do you sustain such improvements, protect them from future drift back into the failed space from which you have just managed to escape?

This track – the final track in our project – is about securing the right human rights future, and then keeping it.

I get to law at the end, but must first prepare the way.

Circles Of Belonging

A brief synopsis of my approach to rights:

The very core of the human rights idea is this propensity to care for others: summarised at track nineteen.

The first circle around this core is where we find the values that flow from the realisation of this propensity in culture: our commitment to equality of esteem and to the freedom of all to lead successful lives.

These values of equality and liberty are universal, natural and contingent.

Every culture has these qualities, however they might be described and however eclipsed they might be by circumstance – even the vilest place in the world has glimpses of them, albeit they might have been reduced to sporadic acts of heroism on the margins of overwhelming evil.  An evil polity is one in which the capacity to reflect the values of equality and liberty in public discourse has been obliterated.  And a good society is one in which they are given a generously free rein.

If we need a theory to be able to call one of these situations good and the other one bad, we can call it a theory of justice.  To me this is not much more than a description of why we ought to nurture the better part of our nature, to the advantage of other tendencies we might have.  I know philosophers tell us to be on our guard about deducing an ‘ought’ from an ‘is’ – they call it the naturalistic fallacy – but what should we do if there is nowhere else to turn, give up on morality altogether?  My theory of justice turns one part of what ‘is’ into ‘an ought’ and the other, (I say darker) bits of us into an ‘ought not’.

The second, wider human rights circle, which surrounds the values of equality and liberty (themselves enclosing the core of caring) locate these values in a set of principles which can guide a society on how it should realise these values in action.

Here we are getting closer to the human rights idea in concrete form:

• The principle of respect for human dignity: to release the human flourishing that equality and liberty demand
• The principle of representative government: to guarantee equality of esteem in the public sphere, with each of us counting equally as citizens simply in view of our being
• The principle of legality: a necessary correlative of representative government and a hedge against violations of dignity, with only actions mandated by the people’s representatives  being allowed to the state

This is the right human rights model, a series of ever wider circles with our inclination towards goodness being buttressed by values and principles pointing in the same direction with ever greater concreteness.

The Politics Of Doing Good

Where do rights fit in this world of ever-broadening circles of instinct, values and principles?

Human rights flow out of this process of increasing specification.  They emerge as the finished product in an assembly line in which all the worker/creators agree in general terms about what they are doing but then argue vociferously about how best to go about achieving it.

In human rights, politics is this process of manufacture and human rights law its end result.

The people’s representatives approach the public forum with whatever words are to hand to promote their view of the world.  The human rights activist will deploy the language of rights to drive home the importance of action on the values and principles of good behaviour that matter to him or her.  Others might root their calls for action in different terms, words like ‘fairness’ and ‘justice,’ or even ‘community’ and ‘national security’.

There will be many arguments on the margins about how the various ideas behind these words might best be traded – in terms either of what they mean or of how they need to be reined in for the greater good of all.

Law emerges from this process of disputation.  The human rights activist hopes for laws which promote the values of equality and liberty and the principles of dignity, democracy and legality in which he or she believes. These are human rights laws: sometimes they are described exactly in these terms (like the UK’s Human Rights Act); more often the human rights dimension needs to be spotted in the substance of the measure itself, what it is aimed at and how this goal is in fact informed by the ideals of equality and freedom that lie behind the human rights project.

The human rights agenda is bound to be a radical one if pursued with honesty in the political arena.  It stands for a commitment to equality of esteem and a commitment to human flourishing which

• demands a much leveller playing field on issues such as schools, housing and health.
• sees immediately the disastrous effects of autocracy in the world and campaigns for democratic change to come from within such places, whatever the short term impact on the interests of our own country
• indignantly rejects the brand of ‘muscular liberalism’ promoted by the UK prime minister in a recent speech in Munich as wholly destructive of the cultural aspect to identity which is such a part of human flourishing for so many.  (I was so affronted by this speech that I have devoted my last sidetrack to it, appearing at the same time as this essay).

In short: human rights gives us a way of looking at things in general, a perspective rooted in a moral theory, and an argument about what can best be done to make our society better – a political as well as a moral theory.

A Necessary Diversion

Law soon, but some necessary ground-clearing first.

I can’t end this project without once again addressing an issue that comes up time and again.

Is all this really global? Can there be universal human rights?

For human rights to be an authentic activity there have to be. But in saying this we must not fall into the trap of cultural imperialism. But nor should we simply cry triumphantly ‘Look at Tunisia and Egypt!’ and rest our case (though it is tempting).

How do we steer a path between the unreal ambition of a global rights’ absolutism and the quiescence of ‘anything goes’ relativism?

Here is how I think it works.

As we get closer to action what the values and principles that I have been discussing entail will inevitably differ, not only from place to place but (within a place) from culture to culture as well.  What we are after is what Ronald Dworkin calls the right attitude to the person.

Let’s take as an example some conduct which is said by those doing it to be consistent with human rights and by others not to be so.  How do we resolve this argument?  We should ask:

is the disputed action  driven by a bona fide commitment to the values of equality and liberty and the principle of human dignity?

If yes it is an action whose outcome we must respect even if it is not what we ourselves would have done.  The European Court of Human Rights has a legal name for this idea of respectful subsidiarity:  the margin of appreciation.  In English law, judges are familiar with the same kind of idea, Wednesbury Unreasonableness.  They understand that public bodies can do things they disagree with, but they cannot for this reason alone conclude that they are legally impermissible: it just happens to be stuff the judges themselves would have done differently or not at all.

It is the same with countries around the world.

The key to universalism is understanding there are two kinds of wrong: the wrong of ‘I would have done it differently’ and the wrong of ‘hey that is totally out-of-order’.  The first is about the right thing to do in a particular place, the second is about the right attitude to have: the first is locally sensitive, the second a universal imperative.

Tougher Than It Looks

And so, it is clear that with human rights it’s not true to say that ‘Anything goes’.

Sure in a good society there will be near agreement about the centrality of equality and liberty – the argument will be about detail, with the attitude being taken for granted.

However this is not always guaranteed to be the case.

Sometimes to keep the right attitude the human rights themselves may need to be downplayed, or even breached

How can this happen?

Well there is an obvious risk of an open society being transformed from within, of people using its freedoms in order to grab the power then to transform it.  In order better to protect itself from this moral calamity, many such societies simply do not allow the participation of anyone dedicated to an entirely different version of truth and goodness: to racial or gender supremacy for example, or to a political system driven by self-appointed elites (military; communist; theocratic), or (increasingly) to a point of view which regards certain kinds of sexual expression as intrinsically flawed and for that reason worthy of punishment.  These kinds of wrong attitude bar entry to the body politic in many good societies, either as a matter of culture or even in some places as a matter of law.

So here is the first point, a human rights respecting polity has an entry test, only those with the right attitude are allowed in. It manages its polity to ensure that it accords with principle and human rights values even if this seems to breach human rights in particular cases.

Sometimes though it is the right attitude itself that is itself put under strain by events.

Suppose that laws with entirely the wrong attitude escape the process of manufacture unscathed – maybe the political situation has become desperate and decent people have panicked, or supposing that usually good people have succumbed to pressure to yield to their dark side.  In other words in the language we have been using here, a good society is drifting to the bad, the right attitude is becoming less easy to take for granted, more often honoured in the breach than in the observance.

The Law To The Rescue?

Many feel that the law has an important role in both these scenarios, as a defender of the process of democratic decision-making even from the democrats themselves.

This is where I part company with many proponents of human rights.

The temptation is to say, ‘let the courts protect us – the judges can act as our ethical referees, stopping us from breaking the ethical rules which underpin our political game’.  Ronald Dworkin for example has consistently taken this line.

I think this is well-meaning but ill-advised, on two scores.

First, it is ineffective – judges cannot stand aside from the crowd indefinitely. Even with the best will in the world they are bound to succumb eventually, or be removed.

And second, relying on judges like this impoverishes the body politic by removing the seriousness that flows from its capacity for uncontrolled action.  A political system overseen by judges lacks the depth that flows from an awareness that its decisions have real consequences. Politics becomes like a nursery game played with nannies stationed at every exit ‘in case the children go too far’.

As the great American judge the beautifully named Judge Learned Hand once said ‘Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.’

Enforcement is nine-tenths of the law.

And enforcement is not just about police and zealous officials.  It’s about how we respond to laws, in our hearts as well as our minds.

I am confident enough that given an equal playing field, the human rights story is a persuasive one which will win out on the day. Liberty will stay in the heart if it is given a chance to make its home there. Laws like the UK Human Rights Act play a part in embedding right attitudes – but they must never do so at the expense of free and full debate, must never seek to close down discussion by appeals to truth outside the debate.  It is because the Human Rights Act does not do this that I think of it as a model piece of human rights legislation: see T7 – The Right Rights’ Model.

However I must go back to the first scenario mentioned above –  can we trust the political system to police itself? Should courts at least be able to protect the good health of the democratic system itself, the civil and political rights that are essential to its proper operation, even if they are rightly not able to evaluate outcomes for human rights consistency?

They may not be driving the human rights car to any particular destination, but surely they are responsible for ensuring that the vehicle is working properly and at least staying on the road?

This is trickier.

Many scholars unimpressed by substantive interferences with policy by the courts have found attractive this idea of the judges as referees of process rather than of play: John Hart Ely’s Democracy and Distrust is probably the most famous.

It’s a seductive idea – the courts ensuring that politics is fair and then keeping it fair – ensuring that the votes are equal; that all those entitled (eg prisoners?) get the vote; the constituencies are fairly constructed; the playing-field of political interaction remains level during election campaigns; the legislative process does not become suffocated by money-interests; and much else besides.

It is not just this list, it’s the ‘much else besides’ that worries me.  How far would this need to go?  The guardianship of process sounds fine in theory but in reality it is likely to be messy, conflictual and highly political.

In the end I think that the protection of the integrity of the political must also remain within politics.  My colleague at LSE Grégoire Webber has written a very good book along these lines.

Of course as human rights campaigners, we must argue for a better and a fairer and a less money-oriented political process.  We must argue for legislation which helps transform the process into one in which each voice truly counts as much as any other.

But there are no short cuts.

The law must always be a messenger for our thoughts, not take their place.

This right rights’ future is a matter for all of us. Law is a vital instrument but politics is inescapable. Conor Gearty

T19 Responses – audio transcript.

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T19 intro video – audio transcript.

Right at the start of this project I argued for a manifesto for human rights, a declaration of ten principles around which the subject should organise itself.  I believe that these principles hold the key to our subject’s future, to securing the right rights future.

As this phase of the project draws to a close, I’d like to reflect on why I think human rights deserve this attention.  Digging a bit deeper into the origins of my point of view, I can see that there are ten assumptions that I have been making about human rights along the way, unspoken perspectives that explain the view I take and the optimism that I bring to my argument.

It is right, now, to pull these thoughts to the surface – will they survive the scrutiny that comes from such exposure?

If not the argument that flows from them is in trouble.

What do you think?

Words Flowing From Within

The first point is that the language of human rights is well placed to make the impact the project’s manifesto claims for it.  It is in pole position so far as contemporary expression of the instinct for caring is concerned –

– and here we encounter the first three assumptions that drive my approach to rights:

1. The meaning I want to give to human rights captures a truth about ourselves which is part and parcel of what we are, an essence not a construction.  The subject dies without it.

Human rights assert that there is something about the fact of each of us that makes every one of us count, that the esteem in which a person is held is rooted not in what they have or who they are or where they are from but in the fact that, simply put, they are.   Track 3 and  track 4 try to get under the skin of where this claim comes from.

This assumption exposes my belief that without it the idea of human rights disappears as a firmly rooted perspective on anything – it becomes a floating signifier available to all. In such circumstances, sure we can fight for our point of view but we can have no claim to its supremacy over any rival versions of human-rights-truth.

And the two further assumptions within this assumption:

2. Human rights are about caring, about reaching out to the other, empathising with the stranger.

and

3. Human rights constitute the best language available at the current time to achieve a society in which all have the best chance to flourish in their lives.

Both of these perspectives are controversial.  They give the language of human rights a dynamic character, with rights (and even rights language itself) ebbing and flowing as the moment demands.  They hinge on my belief in the relative quiescence of other progressive talk (relative that is to the potential of human rights to do better work in this area).  If any of you think that ‘socialism’ or ‘justice’ are better rallying calls, now is the time to say so.

Taking As Well As Giving

Human rights are not an ethic separate from the world but are deeply immersed in the public morality of living together well. They do not float into one’s hands, delivered by some angelic collective good.  So it follows:

4. Human rights are an attitude to fight for in politics.

They are a way of looking at the world that demands that all being seen be accorded their due.  Track one sets out this stall right from the start, and the project stands or falls by it – tracks like those on property and righteous anger show how it works in practice.  If human rights were above politics they would not be worth having and would not in any event exist: politics are what we are when we are together.

And it must follow from this that human rights stand not just for receiving the gifts of the compassionate but for action for the self as well, for asserting one’s will, both singly and in association with like-minded others:

5. Human rights are about empowering the disempowered to seize control of their lives as a matter of right. (Track two and track five)

Now this ‘self‘ for whom human rights act both as protector against wrong and as platform for asserting a better future is an enriched self, one whose personhood thrives through association with others (track ten), one which is at home with religious faith but without ever being required to have it (track thirteen), and one which is collective where this is needed but not to the point where the individual is subjected to any kind of grander general will (track eighteen).

What is the common link in all this?

(6) The project assumes the self to be the starting point for human rights, seeking to enrich the term with a wealth of identity and solidarity for sure, even to build an emancipatory story while working to avoid the pitfalls of the selfish self – but without ever losing this focus on the individual person as the basic building block upon which hinges the necessary truth of human rights.

I appreciate from the responses to the rights of people that this is perhaps the trickiest assumption of all of those that I have made.

Transcending Boundaries

LSE’s Space for Thought Literary Festival next week (at which our project ends) is called CROSSING BORDERS.  This suits human rights perfectly.

7. The study of human rights is not an academic discipline, a zone of learning with discrete methodologies, autonomous ways of thinking, its own private language and cohort of scholarly leaders.

Of course there are departments that focus on the mechanical offshoots of the human rights idea, technicians of constitutional rights, of human rights groups as part of social movements, of philosophical ideas like autonomy and liberty, and the like.  But these are bit parts of a broader story, not the main act.

Here we come to what I think is one of the main reasons human rights as an idea has succeeded to the extent that it has.  It is an intellectual cuckoo, thriving on the use it has made of the nests of other ideas.

Consider the sweep of intellectual history so brilliantly described in Michael Sandel’s account of  Justice on BBC4 recently (and I hope the link is still available when you read this).  Sandel discusses the influence of three pivotal thinkers, Aristotle, Immanuel Kant and Jeremy Bentham on the way we think today.  He never mentions human rights but what clearly comes through is how our subject is a cuckoo’s collage of past thinkers’ best bits.

• From Kant we have taken this idea of the absolute importance of treating the individual correctly, of respecting him or her as a person and of never reducing such a person to being a mere instrument of our will.This works well with what we think of as unqualified rights but which are in fact uncompromising prohibitions: the refusal to countenance torture and slavery are the clearest two examples.  But carried too far it can seem too extreme, unreasonable even – as Kant often appears, even to his followers today.
• So from Bentham human rights takes not the crudity of happiness at all costs but the need when we are realising rights in law sometimes to subjugate our ideals to the exigencies of the moment, to qualify our view of what rights entail to take account of what might be deemed ‘necessary in a democratic society’ (to borrow a phrase from the European Convention on Human Rights).  Thus is the deal reached between representative government and the dignity of the person – Kantian on essentials, Benthamite on means so long as they do not destroy these essentials.
• From Aristotle we get our rich reading of human rights, the one which this project has consistently followed, the idea of the moral goal of human rights being the creation of a platform for our better selves, albeit (and here maybe we differ a little form Aristotle) with the idea of what is better being left to us, with the only demand we make being that we think about the question and address seriously the challenge of leading a successful life – what Ronald Dworkin in his recent book calls our ethical obligation.

The promiscuity of human rights extends across departments, plucking the importance of place from Anthropology, a sense of transcendentalism from Theology (albeit without God), the value of morality in international affairs from a branch of IR, and much else besides.

I could go on.

8.  A great virtue of human rights is its relative intellectual incoherence, its freedom from the disciplined thought required within disciplines. Its strength hinges on a kind of energetic flexibility that would be impossible were the subject more pleasing to those who value deep and consistent thinking above all else.

Freed of the discipline of discipline, the human rights perspective roams free across all fields of study, throwing itself into every sort of disciplinary battles –  a kind of ethical shop steward for the species (and indeed beyond, into animals and even  trees).

Soaring From The Ivory Tower

It is this vital, vibrant stupidity that allows human rights to escape into public discourse to impact on corporations (track twelve), to be the successful focus for emancipatory movements everywhere (track two and track five), to reach hearts as well as minds (track four) and even to resist (using all its weapons: compassion; law; solidarity) the counter-terrorism juggernaut (track fourteen)

And Law?

My own specialist field and the one on which my assumptions are hardest to flush out:

9. Human rights need law, but as the messenger of ideas rather than their creator.

More on this and on law generally next week, when – in the final essay in this series – I turn to what the right human rights future would look like and how best to get there. Law has a huge part to play in this, a supporting act that is always veering towards centre stage.

And my tenth assumption, in many ways the one that makes this project possible, which drives me and I suspect many of my readers and contributors too

10. There is a right rights future – and it is one that is worth fighting for, not only because it is right but also because it is achievable.

More on this as well, next week and at the Literary Festival the following Thursday.

T18 responses – audio transcript.

There was much controversy over this essay.  But first, the areas of agreement.  Many of you echoed my central concerns over peoples’ rights.

• the ‘self-identifying’ nature of a people (Holly Bontoft) – indeed the philosophical quagmire that the idea of a people gets us into (see Paul Bernal’s second post)
• the risk that a people will be captured by a false leader.  Colin Harvey put a part of what I was getting at starkly but to great effect: ‘How many progressives lined up in the 20th century with brutal rights-denying regimes which ruled under a banner of notionally progressive and world-changing practice?’
• I wish that David Cameron after his recent speech on the dangers of multiculturalism would read Christina’s almost poetic plea in her first post to (as I put it, not Christina) celebrate our wondrous complexity, as individuals with a hinterland rather than members of a group.

Essentially, I see acceptance by most of you of the value of human rights as a field focused on the person – more on this in a moment.

But first:

Neo-Con Con?

Thinking about what Favio Farinella has said in his post, I have no apologies for believing in representative government as the only appropriate governmental space in which to argue for the dignity of persons. One of my central concerns with the idea of the right of peoples as a human right – and it is central to what I was saying in this essay – is that it misses this vital precondition for the effective embedding of human rights.

I don’t think that insisting on this is culturally insensitive of me.

Many places have had representative governments in the past and of course we don’t have it here in the Global North in quite the way that many of us allow ourselves to believe.  (Colin is absolutely right that ‘we need to pay more attention to democratic design.’ And Richard Buck is very good on this too, in his second post – certainly the ‘group can be a cruel task master’ even where it is a democratic one – and working out where human rights fit in this correct form of government is a key challenge for sure.)

As I say in the essay, Favio, while it is true that human rights ‘have been historically advanced by and through peoples’ I think those times are past.  Take Egypt as an example – Mubarak feigns reluctance to retire because he says  the Egyptian people need him. But if you were to look at the impact of his rule on the rights of Egyptian individuals, you would quickly come to a different conclusion. The abstract idea of a peoples’ rights as some kind of overarching human right leaves too much scope for bandits like Mubarak.

I am resting my case on what Paul says in his first post that peoples’ rights are ‘qualitatively different from human rights.’

Not that they are wrong necessarily – I do not say that.  But that they are different. And treating them as human rights does damage to our project.

Reframing The Individual

None of what I argue for means that you are stuck with some arid individual, an identity-less automaton.  The last section of my essay, addressing exactly this, was vital.  So Lily Megaw, for example, is not much different from me – I agree that group rights ‘can be extremely important because they dig a little deeper, focusing on the experiences of a smaller people in a region, or in a specific domestic/cultural environment.’ But as Lily goes on to note, the ‘end of this track highlights that group rights work when they grasp the notion of the whole person as a social being who is contextually embedded.’  Richard puts it a slightly different way, when he observes that ‘the social milieu must provide the person with a minimum level of support—a grounding’ but it’s the same point and a reading that matches what I was seeking to work through in the essay.

Is there so much of a difference here?  Being part of a group is often intrinsic to our identity for sure – I agree with that – but what I am saying is that when we speak of the group as such we should be careful about conflating its identity with what we, individually, are.

A Fundamental Critique?

This last point re-emerges in the strong critical engagement with what I have had to say in this essay from Joe Hoover and Anthony J Langlois in particular but others of you as well.

Let me try and answer the various observations made by Joe and Anthony, referring to others of my respondents as and when required.

1. My basis for claiming the lack of a human rights engagement on the part of colonial liberation movements rests not only on the absence of legal systems of enforcement (though this was of course the case) but also on the lack of a strong human-rights dimension to these movements’ arguments for freedom.  There is, I’d say, a contrast here with the universalism of many of the revolutionaries of the late eighteenth century.
2. Concerning the question of post-independence abuses of rights by the leaders of newly liberated countries, the idea of a right of a people focused on the oppressive effects of foreign occupation – this was fair enough.  But it was not a language well equipped to continue critical engagement with power, post liberation. It did not cause such abuse, of course not, but (especially when separated from any right to representative government) it had far too little to say about subsequent abusive catastrophes.

Okay maybe they were not ‘bad consequences’ (Craig Valters) in the direct sense.  But this particular vocabulary of peoples’ rights did not have the depth to challenge the tragic transformation of the tribunes of the people into national brigands. Their having ‘taken over’ human rights may have been put it a bit too strongly, I concede this to Anthony.  ‘Unhindered, unembarrassed’ might be better – not least because they could point to the right of a people to self-determination as (after 1966 anyway) the key human right, first and in both documents.  Sure, Anthony, the thing is supposed to be holistic, and Lee, yes there are not supposed to be blank cheques – but what is this loud emphasis on peoples’ rights as a human right supposed to be if not a dramatic effort at priorisation? (This is the same sort of point I have already made, about Egypt, when responding to Favio.)

3. I agree with Joe that all this grew out of the commitment to state sovereignty that had been re-forged after World War II and the bipolar international system that emerged almost immediately after this.  But to point to a bigger problem is not to say that the smaller one (of the negative impact of peoples’ rights as human rights) does not exist.
4. I agree with Joe’s careful rendering of the distinction between state and peoples’ rights, and also with his observation that this does not remove the problematics that surround peoples’ rights, serving merely (but usefully) more clearly to lay the groundwork for their articulation.
5. Towards the end of their responses both Joe and Anthony remark with approval on the concluding observations in the Track about the need for the rights of individuals to reflect the whole identity. We are back with where I was when I responded to Lily, a bit earlier.

Perhaps what really matters is where we are all starting from.  I begin with the individual and then grow my understanding of his or her life by drawing more and more of his or her experience into my understanding of what it truly is that helps him or her to flourish, to thrive as a person. Anthony is very clear on this – and on ‘the right to exit’ which I also think is fundamental but which starting with the group can sometimes obscure. Everything hinges on how you in a self-aware and reflective way choose to grow – in or outside the group must be up to you, not up to the group.

This does not mean that there are not rights of a people, rights to ‘national’ self-determination or rights of an anti-colonial struggle or of rebellion – just that these are not part of this (or perhaps any?) human rights story.  Forcing them into the human rights narrative in the way the 1966 covenants did stores up the kinds of problems for the future that my track tried to identify.

I think contra Craig that you simply must not lose the individual in all this, much as we might want to for all sorts of sensible philosophical, political and historical reasons.

All ideas are always faulty, it is just a case of what faults you want to be forced to explore, explain away etc.

I’d prefer to be engaging with the weaknesses of the individual model (with the individual enriched by identity) than a peoples’ model where the critique revolves around the submerging of the individual.

Broadening The Rights Discourse

Joe and Anthony push me to think much harder about where community fits in my scheme of rights.  They are exactly right to do this, as is Colin whose post is a fascinating reflection on how human rights language can encompass issues of equality and social justice – as regular readers will know a key goal of this whole project.  I am sure from his past contributions that Anthony will echo Colin’s point that we ‘need a substantive view of what the purpose of a world of human rights is’ – without this we will be incapable to providing creative work where it is needed and criticism when it is warranted.

I will return to this vital question of how to construct a politics of human rights in my last essay on this project, due at the start of next week.

And Finally…

Trees one week, not even people the next? This was Lily’s pithy second post.  Paul swooped from the skies to defend me.  I would love to branch out into this but wood not want to turn the argument between Paul and Lily into a treesome. We need to trunkcate this discussion: best to leaf it.

Perhaps some of you have twigged what I am on about?

Download the complete article as a PDF

T18 intro – audio transcript.

This is not so easy an argument for a progressive to make.

The ‘person’ evokes an image of the isolated individual, separated from the world, identity-less in his or her desiccated, universalised humanity: the sort of libertarian nightmare we all attacked in the last track.  In contrast the ‘people’ to which persons belong – the various ‘peoples’ which make up the world – sound busy, energetic and richly human by contrast.  The idea has history on its side too, and sentiment as well.

Why exclude such a full version of what we are from the umbrella of human rights?

There is no doubt that the ‘rights of peoples’ is an idea that has done good emancipatory work in the past.  We would not be where we are today without it.  But ideas come and go – and this one is now ready to be pensioned off.

A Lively Past

It’s perfectly true that many of the highlights in the history of human rights have been about the rights of peoples

• The American Declaration of Independence in 1776 was primarily about the freedom of the colonies from British rule.  (Maybe this is why the slaves and native-Americans didn’t matter when it came to constitution-building a few years later: liberation was for colonial peoples, not individual persons)
• The Haitian equivalent (here in its original form, having been recently rediscovered in the British National Archives) is even more clearly committed to national, not individual liberty
• Through the 19^th century the large idea of nationalism competed with that of socialism for the attention of progressive minds everywhere: the heroes of the time were Garibaldi, the Klepht resistors to Ottoman rule in Greece, even constitutional ‘patriots’ like Ireland’s Charles Stewart Parnell.  Human rights – the big idea of the defeated French earlier in the century – drifted into redundancy, surfacing only from time to time and then as part of something else, the liberation of serfs and slaves for example, or the then fast emerging idea of humanitarian law
• This concentration on the rights of peoples continued right through the first half of the twentieth century: it was a big part of the US President Wilson’s fourteen point plan which was to play such an important role in founding the League of Nations after the First World war.  All the talk was of national sovereignty for peoples and then protecting the rights of minorities within national systems

You might have thought that the Second World War would have dealt a deadly blow to minority rights – indeed to the sovereignty of states themselves – in favour of a new emphasis on human rights.  But nothing like this happened in any kind of straightforward way.  The background story is at common track one:

• The original idea was for human rights for all and self-determination for the colonies, but as the war came to a close, powerful habits reasserted themselves and the new order that was erected disturbingly mirrored the old

This was evidenced by:

• A reaffirmation of national sovereignty – but only for states lucky enough already to have it
• A downgrading of human rights to the realm of the highly ethical but entirely unenforceable, viz the Universal Declaration of Human Rights
• A dumping of the idea of national or peoples’ rights so far as the colonies were concerned

Breaking Free

Only the strength of the anti-colonial resistance to this stitch-up prevented its success.

The 1950s through to 1966 was a second great age for the rights of peoples, when the energies of nineteenth century nationalism were rediscovered and played out not on Europe’s narrow canvass but on the world stage.

• India and Pakistan were early starters, their independence assured by 1947
• The states of South-east Asia achieved their freedom from the mid 1940s on, often against the bitter opposition of the colonial powers (Dutch, French, British, and even – if we include the Philippines – the United States).  The Portuguese did not leave East Timor until 1975 and Britain Brunei only in 1984.
• Human rights played no part in any of these struggles.  Its moment had come – and gone – in 1948.  These countries had to do it by themselves.

Membership of the United Nations General Assembly grew as more states came on board.  When the chance finally came for a now greatly expanded UN to complete its work on an international bill of rights, in 1966, unfinished business remained to be done.  Both the covenant on civil and political rights and the economic, social and cultural rights charter contain the same Article One:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

This is a wrong turning for human rights – entirely understandable (these new states had all been pretty well shafted by the old regime after the war) but a wrong turning nonetheless.

• How can ‘peoples’ have a self? It is hard enough locating what a ‘self’ is in a single individual, much less a gathering of (maybe) millions of them?
• And anyway what is a ‘people’?  How can we tell which crowd of people is a ‘people’ and which is not?  Is it a matter of who shouts the loudest?
• If this is it, supposing the shouting is accompanied by shooting? Lots of people claim to ‘speak for their people’ – which ones do and which don’t?  Is it that the guy with the biggest gun is always going to be the guy with the biggest voice?
• Whoever gets to speak for the ‘people’ right at the start of statehood wins the jackpot – this ‘leader of the people’ is free not only to develop the country in any direction at all but also to ‘determine’ the people’s ‘political status’ – but what does this mean?  Is any framework of government at all fine so long as the people’s leader says it is?  Can the people counter their ‘leader’ in any way at all, ever?

Human Rights Goes Wrong

This is going to sound very neo-conservative of me but as I say I think the international community made a disastrous mistake when it allowed the leaders of peoples (and hence states) to take over human rights like this, to claim that they had rights of their own held on behalf of their peoples which they would then be able happily to exercise as they saw fit – but without there being any mechanism for these so-called rights to be tested or challenged for by the world community.

Of course there were extenuating circumstances.

• The UN Charter had itself erected the principle of sovereign power into an absolute of international relations, so these new states were just tapping into something that was already there
• These covenants were signed at the height of the Cold War so from the point of view of the two big blocs what mattered so far as these new leaders were concerned was which side they were on, not how they behaved towards their people
• In 1966 the idea of human rights had drifted right off the international radar into seeming redundancy, so common article one seemed neither here nor there in a couple of covenants expected soon to be forgotten.  The human rights movement had yet to begin the revival that has transformed how we see the term (see common track one again)
• The anti-colonial movement generated heroes in the way that 19^th Century nationalism had done – what right had western democracies (which had often fought bitterly against these men and women) now to say ‘we don’t trust you to run your country properly’?

Just because a disaster is excusable does not mean it is not a disaster.

We now know (at a bitter cost of millions of lost lives) what we had chosen to forget, that external domination is not the sole cause of human rights failure.

The evidence is everywhere that appalling human rights violations can and are visited on the ‘peoples’ of the world by their supposed ‘leaders.’  These ‘voices of the people’ mouth platitudes on their behalf while their security apparatus destroys those among the people who dare to resist their oppression.

Hosni Mubarak is Egyptian just as Zine al-Abidine Ben Ali is Tunisian.  It is decades of deep corruption too late for colonialism to work as an alibi for such indigenous kleptocracy.  (President Paul Kagame of Rwanda, discussed in my response to Track Seventeen) was especially brilliant on this in the question and answer session after his talk at LSE in October 2007.)

A Better Model

A true commitment to human rights demands we ditch this old idea of a blank cheque for dictators.

This does not require us to plunge back into isolated individualism.

As this project has been trying (relentlessly !) to show, there are better human rights models to hand:

• Human rights promote the whole person, recognising the importance of the social and so stressing not just the dignity of the individual as such but also how this dignity is made manifest through association with others (speaking; talking; gathering; joining).
• It also grasps that the person is made whole by the full expression of what he or she is – and that this is made up not of the person in isolation but rather the person embedded in  his or her place, with an identity, a cultural hinterland, a past (lived by others) that can authentically and rightly be called part of their self, their very ‘own’.
• ‘Group rights’ work where they are part of this identity, where they draw attention to the richness and depth and multi-layered texture of what it is to be this particular person, maybe one with disabilities, or one who draws strength from a long-rooted linkage to a place, or one whose gender leaves them especially vulnerable to having their potential as a person left unrealised.
• Human rights are concerned with the person, fully embedded in where he or she comes from while being free to go where he or she wants.

The flourishing human is not free of identity or culture, but nor is he or she trapped by them.  And   no self-styled leader of his or her ‘people’ can tell him or her what to do. Leadership is earned and re-earned again and again.  Human rights activists call this democracy. Conor Gearty

T17 responses – audio transcript.

I unlocked quite a groundswell of hostility to libertarianism. Federico Burlon was first off.  I liked his references to Latin America and also many of his phrases (‘Libertarianism seeks to preserve the status quo to the detriment of the dispossessed’).  Colin Harvey entirely accepts ‘the atomistic, selfish and isolated caricature’ of libertarianism that to an extent I agree I painted.  Paul Bernal sees this version of freedom as the way ‘the powerful get to assert their power.’  Fatima worries about the ‘hijacking’ by libertarians of ‘the rhetoric of human rights’. Craig Valters, coming in a bit later, is also very hostile.  And Alice castigates ‘the startling inability of libertarianism to address the malign and unaccountable influence of supra-national capitalism’.

So we were all in broad agreement about much of this track – indeed I’d say Federico and perhaps others would go further than even I did  Luis Paulo Bogliolo sums up this part of the discussion: ‘liberty must indeed know its place’

So is there much to discuss?

For sure there is – many threads headed off out of the main thoroughfare into very interesting territory.

Private Power

I was struck by a criticism many of you made of libertarianism that I had not picked up on – its inability to say anything at all about private power.

The focus on the state detracts the libertarian from seeing the malign effect on freedom of corporate power – whether this takes a media or a more conventional business shape.  Luis Paulo develops this theme, as do Alice and others of you as well.  It is certainly a strong point: through its uninterest in the abuse of private power, indeed its frequent sympathies with the entities engaged in such actions, libertarianism is exposed as little more than the handmaiden of privilege.

And once we are freed from having to take liberty as seriously as the libertarians insist, we suddenly discover all this energy for media reform (Luis Paulo; Richard Buck) and for corporate regulation (Alice’s ‘real power’).  For progressive politics in other words – human rights in action.

There is a big project theme in all this. As Luis Paulo puts it ‘We cannot talk about human rights without placing ourselves ideologically and politically.’  So what if this is controversial – anything worth saying always is.

The Role Of The State

I think Richard’s remark that states are the ‘ultimate libertarians’ is helpful to our understanding of the subject – it reminds me of how Hobbes viewed international law.  For me (and Richard I think) it helps point out the necessity of international partnership.

Richard thinks I give ‘the state too much credit.’ Maybe – but I don’t think his vision of a state with the proper balance of power between liberty and community that he goes on to propound (his ‘best bet’) is that far from my own. Proper here does not and must not entail institutional impotence.  I don’t think the best state is the one that can do least – and I think sometimes that advocates of separation of powers have this goal implicitly in mind.  (I am not sure if Richard is one of these – though I suspect he might be…. At least a bit)

Speaking about states needing power and libertarians enjoying too much of it leads to some tricky dilemmas.  Does Rwanda ‘highlight that the idea of a “free press” is not some “trump” which overrides other clearly more important factors – or even necessarily “better” than a not-so-free press’ as Craig says?   This is a difficult one.  I have been to Rwanda a couple of times and of course President Kagame spoke at the centre for the study of human rights when I was its director – some of the audience at least felt I had no business inviting him, not least because of his record on press freedom.

Intuitively and on the basis of my experience of Rwanda I agree with Craig on this – though where does it end?  Can President Kagame and his ministerial team do whatever they want?  Surely being opposed to unfettered media freedom does not mean the government must have a blank cheque?  But unless you have an independent judiciary, a lively civil society, a fearless legal culture and an impartial police force that is exactly what you risk – how many countries have these?  Does Rwanda?

Favio Farinella (strongly supported by Christina) puts the other side strongly – ‘freedom is better defended with more freedom’ as Christina says.  I think that the examples Favio gives of state clampdowns are of states (Egypt, Yemen, Tunisia) where the conditions are malign and where it is right for us to think the worst of such illiberal governments.  They have not created any kind of liberal space so deserve no benefit of the doubt.

What Is A Successful Life?

As we are constantly encountering in our discussions in this project, there is a benign aspect to state power, one that unqualified libertarianism unequivocally threatens.  I am with Anthony J Langlois in his strong defence of the state as a vital deliverer of human rights (‘the authorising instrument for what we are legitimately due’ as he puts it with characteristic elegance).

Anthony says this: ‘human rights are about identifying fundamentally important aspects of human being and making sure they are available for all.’  He sees the role of the democratic state in securing this while also emphasizing the need to empower rights-bearers to say what they need, not simply to be talked about by us.

I agree with Anthony and indeed he is developing further what I said in the track.  We are for the community wresting the power of definition from (libertarian?) elites.

But ….

…. is the individual getting lost in all this?

Ronan McCrea opens the point up when he challenges my theory of human rights to be accommodating to all sorts of people, to be sensitive to how they want to build their lives, and above all not to impose ‘objective’ versions of success on all.  To be open to individual interpretation in this way, the idea of a successful life needs to be nuanced (Ronan’s word) with a dose of libertarianism (my awkward phrase).

There is a big point here.  Is a successful life entirely in the eyes of the life-holder?  Ronald Dworkin’s new book is very interesting on this

Look at this sentence from Ronan: ‘Respecting someone’s right to choose their own identity and life respects their dignity to a greater degree than imposing one’s own ideas of dignity on them.’  The key word here is ‘choosing’.  There is reflection, engagement, the thinking through a plan, not just drift.  It’s the same as with Dworkin I think.  With the right to lead a successful life comes the responsibility to choose what that means.  With this caveat I agree entirely that (as Ronan puts it) ‘the human rights movement must be wary of trampling excessively on individual liberty in pursuit of its own goals.’

An Information Free For All?

This is Colin’s neat description of the post Wikileaks era.  My respondents were fairly conflicted, as am I. Luis Paulo for example wants ‘legitimate restrictions’ but acknowledges at the same time that ‘governments have abused secrecy and deceived citizens too often.  And as Colin notes even in his free-for-all world stuff is still held back – nothing is quite as free as it seems.   I agree with Colin that while libertarianism is not the answer ‘there needs also to be space to be free from our open, transparent, free for all world.’

To Paul, Julian Assange has managed ‘to reverse the former balance of power’.  Wikileaks is ‘more about freedom than about the more damaging side of libertarianism.’  It as ‘brought at least a degree of accountability’ – to others rather than themselves I am tempted to add.  It strikes me that it is about accountability as much as about power.  (See Paul’s Side Track Five for his further thoughts.)

Anthony’s link interested many of you.  My friend John Naughton has written a fascinating essay for the Guardian that has attracted a great deal of attention (deservedly).  (And here is John’s further effort to make sense of the issue.)

Craig captures the mood of our discussion when, having seen the value of the releases but also their danger, he queries ‘where does the line get drawn – and most crucially really – who draws the line?’  Back to accountability and justification which in turn feed back to culture – constants in deep thinking about human rights.

Download the complete article as a PDF

T17 intro video – audio transcript.

It is time to tackle freedom.

• Does support for human rights mean that we should all be free?

If so

• What does freedom mean? Is freedom the same as liberty?

And if it is

• Is liberty the same as license?

The notorious occulist Aleister Crowley once famously said

Do what thou wilt shall be the whole of the law. Aleister Crowley

Was he a human rights activist?

And then there is the whole question, following on from this, of where the state fits.

• Can laws control freedom/liberty/(license?)?

If so

• On what basis?

And

• Are such laws infringements of our human rights or necessary to secure and/or protect them?

The television personality Jeremy Clarkson has strong opinions about speed cameras and semi-hysterical views about destroying them.  Maybe like Aleister Crowley he is a human rights activist?

There is this running tension in our subject, rival views of what it entails, which we can no longer avoid.

How does the idea of human rights connect with individual liberty?

Past Truths

Our subject originates in the 17^th Century, with Hobbes.  Of course his idea that we all had rights to everything (everything that it took to keep us alive) led him to the conclusion that the only way to preserve ourselves was to give up our freedom, to hand it all over to a Leviathan state to protect us from the anarchy of our indefinite but disastrous freedom: the famous frontispiece of Hobbes’s book captures well what the theme of that book is.

Hobbes left no room for human rights – nor any for liberty for that matter.

A generation or two later, John Locke came along and his line was different.  True, he took many of his themes from Hobbes, especially the idea of a government that has been set up through a social contract made by people for whom submitting to a government is much more agreeable than the freedom of the state of nature that precedes it.  But unlike Hobbes, Locke saw people keeping their natural rights – indeed the purpose of the government created by the social contract was to better protect, not destroy, their rights.

So government was a kind of deal – a way of protecting individual freedom rather than transcending such freedoms through the exercise of a collective will (as others, most famously, the Swiss thinker Jean- Jacques Rousseau were later to argue).

Why do any of these old thinkers matter?  How do they influence what we think to be human rights today.

More and more I believe this:

It is not what famous philosophers from the past have thought that makes them original.  Of course they work hard, read a great deal, push themselves, get on with their patrons and so on.

But it is not the inherent brilliance of their minds that makes the key difference.  Rather it is their good luck in having their ideas come along at the right time.  If the conditions happen to be right their views are taken up, embedded in culture and become the norm.

What drives these ‘conditions’?

How well the ideas being discussed fit with the underlying political and/or economic power of the day is my (pessimistic? cynical? realistic?) answer.

Hobbes becomes famous because as he said himself his work ‘fights on behalf of all kings and all who, under whatever name, hold regal rights’ – telling the powerful it is morally right to be absolutist is bound to make you popular among the influential.  (I have written a long paper about his malign influence – Escaping Hobbes.)

And Locke works because he tells people that government cannot invade their basic rights, and those basic rights are their individual rights to life, liberty and estate – their inalienable freedoms.

As subsequently understood this becomes a belief that somehow as individuals we are free, over and above government

• No discussion of what being free amounts to in practice
• No sociological sophistication – no appreciation that for some economic disadvantage means such freedom is an irrelevance
• No inclination to subject ‘freedom’ of this sort to any kind of critical scrutiny, to peer behind it to ask how the contemporary status quo (with its masses of (in practice) differently free people has come to be constituted)
• Feeds an inevitable suspicion of government as a constant threat to individual freedom and liberty

Now I am exaggerating the implications of the theories that underpin contemporary libertarianism.  But the point is not so much what the great minds make of an idea so much as what those on the hunt for a moral basis for their good fortune do with it, since these are the people who matter.

For the rich and the powerful, those who have everything to gain from leaving things exactly as they are, this theory is perfect.  The state must protect their wealth and makes sure the agreements they make are enforced (Locke demands all this) but it must not do anything else.  More interference than this is a breach of liberty, a denial of freedom!

Even income tax is a concession, with redistributive taxation being morally illegitimate (as one of the most famous proponents of this position Robert Nozick argued, to the delight, no doubt, of well-educated tax-evaders everywhere).

Jeremy Clarkson’s clarion calls for freedom and the decision by leading Conservative David Davis to fight a by-election on the issue of liberty are all echoes in public discourse of this fundamentally libertarian line.

So when, for example, Davis recently so strongly opposes votes for prisoners that he forces a government climb down on the issue  or when he slams the Human Rights Act, he is being perfectly consistent.

For him and libertarians generally freedom and liberty are not the same as human rights.

They are right.

A Different View Of Freedom

The human rights idea does not of course disown the idea of freedom, or that of liberty.

Rather it gives both concepts a different spin and as a result smaller (but still significant) places in the overall ethical scheme which human rights entail.

What is confusing is that freedom and liberty have two meanings in human rights, the first general, the second rather narrow.

Let’s take each in turn.

First the more abstract of the two.

• For human rights freedom is about equality of esteem for all: see track one and much of common tracks one and four as well.
• The subject is universalistic down to its bones: it is concerned with securing for all a successful, flourishing, ethically responsible life.
• That word securing is important.  Human rights protagonists do not just accept whatever the status quo happens to be.  The idea is a transformative one, willingly embracing change where this is likely to increase the capacity of unlucky, the poor, the disregarded, the weak to enjoy better lives, to make use of the platform for ethical success that it is the job (and moral imperative) of human rights to build.
• In the pursuit of this rich version of freedom, the human rights idea embraces the state.  Of course there needs to be directed action from the centre to get the right things done.  And of course this may sometimes require those with more than enough for the enjoyment of their freedom to give up some of their wealth to those who have none – the resources of the world are not infinite and individual accumulation cannot but come at a cost to others: equality of esteem entails at least this.
• As we saw in common track two, civil and political rights fit easily within the world of human rights because they are the means through which a government rooted in equality can be constructed.

On this version of our subject, the state is the friend not the enemy of human rights.  Freedom is what we must work to secure for all, not the name we give to the luckily-enjoyed luxuries of the few.  And freedom is not freedom from government interference as such – it is the freedom to lead a successful life which an effectively functioning human rights culture can provide better than most other models of government (or indeed any other?).

So can government do whatever it wants in the name of freedom and the delivery of human rights? Is Rousseau’s general will (with its incendiary idea that we can be ‘forced to be free’) to rule the roost?

Liberty Must Know Its Place

This is where the second, and narrower meaning of freedom and liberty kicks in.

According to the human rights idea, interferences with our individual freedom need to be justified.  This is because its starting (but not end) point is that the individual is the best judge of what he or she needs to do to live a successful life.

Some interferences will never be justified.

The state needs never to torture a person, or enslave them, for example.

How do we know this?

Because the test of ‘need’, the basis for legitimate interference with individual freedom, is itself rooted in the idea of human rights: is this interference essential to provide for a richer human rights environment for all.  In the words of one of the most famous charters of rights (the European Convention on Human Rights) is this restriction on individual freedom ‘necessary in a democratic society’.

‘No’ to torture and slavery, obviously.

But often ‘yes’ to regulation of property, confiscation even – see track eight.

And quite possibly yes as well to regulation of speech (racial hatred; religious hatred; pornography), and to ‘infringements’ of privacy where the greater (human rights) good demands these (fingerprinting; breathalysing suspected drunk-drivers; warrants to search private property when a crime is suspected; prohibitions on dangerous drugs).

Yes too to legal proceedings against people who want the freedom to be racist, or sexist or homophobic (‘No blacks’; ‘No Irish’; ‘no same-sex couples’’)

And some issues which are of vast importance to libertarians come much lower down in the priorities of a proponent of human rights – speed cameras on the roads, CCTV cameras on the streets, identity cards – the issue for human rights is whether the powers are fairly exercised, not whether they exist at all.

Inevitably, so far as human rights are concerned, the issue is one of balance, and of justification.

So Who Does The Balancing?

The primary judge must be the elected body, the collective common sense of the community at large, guided (we would hope) by the principles that underpin a human rights approach to the world.

Judges are good too at sorting out priorities within the parameters set by the people.  This is where democratic human rights laws like the UK Human Rights Act can be very useful.

And there is a role for conscience as well, where the laws may get the balance between liberty and human rights utterly wrong, perhaps because the attitude of law-makers has been contemptuous of freedom right from the start.

But this is a very different discussion than one propelled by a belief in freedom outside the law to which all laws must be subject.

The human rights ideal has no scope for such selfish distortions of what freedom truly means.

Some Concluding Questions

• Am I too harsh on libertarianism?
• Do I run the risk of not taking individual liberty seriously enough?  Am I revealing that I am after all a closet statist…?
• And a topical one on which I am conflicted and would relish advice:
• Should the media be able in the name of political freedom to publish what they want without government control?  (I am not sure what I think of Wikileaks… is this political freedom or liberty transformed into license?)

T16 responses – audio transcript.

Must Environmental Rights Be Human-Centred?

This emerged as perhaps the key issue for most of you.

Lily Megaw wonders whether we should – for tactical reasons I think she would say – focus on achieving environmental rights indirectly, through the promotion of human rights.  Since humans are ‘fundamentally self-interested’ this is the best that can be hoped for, in her view. Paul Bernal also frames the issue as one of rights for humanity.  To Holly Bontoft when it comes to environmental protection we humans are ‘entirely self-serving’.

Maybe this is the best we can hope for.  But on this account, the rights of indigenous peoples end up bearing a big burden when one goes down that road, and I see Lily developing many examples by reference to the Inuit.  They are our gateway to the environment: is this to expect too much?

And is this too pat, this effort to talk only of humans when we really mean the planet?

Must its protection be as Richard Buck puts it ‘a function of their service to sentient beings’?

I think this is not to go far enough, even when it can (as with Richard) be cleverly expanded into a full scale environmental rights manifesto by hypothesizing about the interests of future humans.

Now I acknowledge what Anthony J Langlois says at this juncture, that the transition to environmental rights (even if only journeying from animal rights) is very difficult – and ‘also philosophically fraught’ as he says. Like the other respondents I have mentioned above Anthony thinks the whole thing ‘not about the environment, it is about us.’

Getting Half-Way Beyond The Human

As Anthony puts it, how do we identify the ‘value of anything aside from how we value it’? Well I guess for environmental rights we have to.

I agree the power analysis does not work here: there is no space for Lily’s ‘rights as constructed in response to adversity through social movements, as a tool for the defenceless to protect against abuses of power.’  That doesn’t describe the destruction of trees and irreplaceable flora and fauna, the melting of the arctic icecaps or the pollution of some once-grand lake.

But the abuse of power is there, the crude instrumentalisation of all around us for our own gain.  Does the lack of feeling on the part of the ‘victims’ (maybe ‘subjects’ is better, or even ‘receivers’) make no difference at all?  Does the thing instrumentalised have to have feelings for such instrumentalisation to be wrong? Must senses be the vital dividing line for which Richard argues (and by the by with all the obvious unhappy consequences for the less clever animals (and some members of the human race among them, as Joe Hoover later points out).

Maybe environmental rights is another way of saying that destructive use of the world is wrong because it lets us down, shows us in a bad light, de-dignifies us. Christina puts it well: ‘We have RESPONSIBLITY to the planet we live on and the air we breathe.’

Still human-centred but not now all about our right to eat, drink and live a good life.  Half way to recognising the quality of independent near-otherness in our environment that demands our respect.

Going The Full Distance

Why does our language not allow us to describe a vast climatic disaster as a kind of living thing?

In an article last Summer, Naomi Klein described looking at the Gulf of Mexico spill from the air as being like seeing ‘a violent wound inflicted on the earth itself’.  As Paul Bernal says, why not the right to life and the right not to be tortured?  Christina talks of an ‘earth [that] wants to breathe and regulate its body, much as we need to exercise and eat sensibly.’  Fatima Ahdash writes of the ‘poor and the environment’ sharing a common enemy, in the shape of ‘unregulated … capitalism’.  Favio Farinella is on to something similar when he talks of ‘Our instrumental capitalist rationality aimed at immediate profit’ which must ‘be replaced by an environmental rationality based on values, emotions and culture which points at limiting progress for the sake of inter and trans- generational solidarity.’

Does it matter that as Joe says this is all ‘deeply non-sensical’?

I don’t think we should necessarily run away from such anthropomorphism.

Joe himself provides a different but terrifically fresh and interesting way of looking at rights which provides an easy space for animals and also nature as well, more all-inclusive than even my effort with regard to animals on common track eight. Joe refers in his framing of his social account of rights to the possibility of a ‘spiritual’ dimension to identity (in a non-religious sense, for sure Christina!).

The idea of ‘life’ is surely bigger than the biological tests we impose on individual species-members.

It is not as narrowed down an idea as Holly’s almost-caricature: ‘If a cob of corn has rights, I find it hard to believe that those rights would ever trump those of a hungry human.’  Of course the man should eat.  But as Holly says in the sentence just before this one, ‘if the concept of environmental rights will help us to preserve out habitats, then it can only be a good thing’ – that is exactly what it is about – not this corn or that pea but the holistic (living in the broadest sense) world that has made them possible.

Alan P Brady reminds us the subject of human rights itself is trying hard to transcend its origins in a concern for the individual that while important misses the collective dimension that adds so much to the subject.  Often in human rights it is already not ‘I’ but ‘We’.  So collectivity like this is not foreign to our subject – read the declaration of the rights of indigenous peoples, or many of the rights in the Economic Social and Cultural Covenant. Maybe we can push this ‘we’ even further?

‘Relax: Technology Is The Answer’

I paraphrase Alex but only slightly: ‘The only act which will solve the environmental crisis is finding sources of clean energy, making them more affordable to developing nations and removing the profit-incentive from exploiting the earth’s resources to exhaustion.’

Now this has already attracted some attention from Richard and Craig Valters and Alex has responded.  But I for one can’t accept that it is right that ‘we should focus on the human issues and leave the environmental issues to the environmentalists who better understand the problems.’  We have this vital social justice angle that might otherwise easily go begging.  (Colin Harvey picks up on this towards the end of the posts as well.) Craig says ‘both sides of these arguments are simply instruments for the good.’

Who Speaks For The Environment?

Alan is absolutely right on this one.  We must. Grandmother Willow is sadly a Disney fantasy.  I like Alan’s ‘a directly analogous legal right for a tree is just a right for an environmental campaigning human’ except I would take out the ‘just’.  Favio has much of interest to say on the mechanics of what is involved here.

Taking To The Streets

Craig reminds us of police infiltration relationship between human rights and environmental activism clear is such cases: see track two. Suzy Madigan picks up on this too and makes some really interesting connections with terrorism (the subject of track fourteen. This is one area in which as Colin notes human rights can make a strong contribution – without colonising the whole territory for sure (a fear of Colin’s). I talk about this some more in the track and especially the article I mention there.