T1 – Coming Out

Human rights provide the best platform for progressive politics in our post-political age

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We need to acknowledge that social democracy was a wonderful accident of circumstance, and that it is, sadly, either going or on the way out of our public life. Perhaps it will return. But while it is away, human rights must step into the large gap it has left in our public space. It is progressive politics for our capitalist, post-political age.

Traditional politics once did its best to deliver decent life chances for all, whatever their background, class or wealth. Politicians were informed by a basic commitment to equality. This was an equality rooted not on outcome – where we ended up – but rather on access to opportunity. It was driven by an esteem for every individual’s capacity and potential that was a million miles away from the dreary, compulsory equivalence which its critics unfairly claimed was what equality entailed.

A vital part of this approach was universality – we paid taxes together when we could and drew benefits when we needed them – there was no categorising people as ‘deserving’ or ‘undeserving’ – we were all together sharing a bit of land in the brave escapade of living together.

This old politics was rooted not only in equality but in a respect for the dignity of all of us that made sense of that equality. It did not call itself a human rights approach, because it did not need the term: it had other phrases – like social justice; justice; and fairness – that would do just as well and an organisational ideology – social democracy – that delivered the power needed to effect real change.

But nowadays progress needs human rights.

The Fit

There is more to this than simply a case of shared values.  Human rights protagonists are committed to the outcomes towards which old politics used to strive.  From the 1948 Universal Declaration on Human Rights onwards and especially via the International Covenant on Social, Economic and Cultural Rights in 1966, the list of human rights has always included the basic necessities of human flourishing – such as rights to an education, to health, to work, to social assistance in bad times, and much else besides.

Despite its apparent utopian extremism, pragmatism has always been part of the human rights oeuvre, with many of the more ambitious entitlements now coming with the price-tag ‘progressive realisation’.  Neither does the subject come along with the counter-productive extremism of the ideologue: the right to property (including the property beyond your needs that you happen to have) provides exactly the kind of contact with reality that politics is used to and radical, unidirectional interest groups eschew or reject.

Human rights tell us not only what we ought as humans to have but how we should go about getting them.  The closeness of the subject to social democracy is most evident in the commitment that each has to the indispensable role of democratic politics (‘civil and political rights’ as the human rights people describe it) in realising their shared ethical aims.  And increasingly too, the human rights perspective acknowledges the duty that lies on a state to intervene to achieve the right, human rights outcomes. What human rights people call ‘positive obligations’, old style politics called the enabling role of the state.

We may confidently conclude that given the way it has developed over the years, human rights has lost the individualism and the blinkered one-issue view of the world that it might once have been validly accused of having.  It has matured into a way of doing progressive politics, sharing an egalitarian ethic, an understanding of the role of government and a consciousness of the need for democratic engagement with more formal political operators on the left of our political spectrum.

So What’s The Problem?

To work as politics, however, human rights need first to slew off a lot of baggage from the past.  It may look like politics but it is not (yet) felt as politics.

First we need to work around the fact that the recent history of our subject has seen it grow out of anti-politics.  The 1948 Declaration never caught on because it seemed so much to stand outside and apart from the big political questions of the moment – the rival models of the world offered by capitalism and communism: being in neither camp it ended up being brutally used by both, a plaything in the ‘no-mans-land’ of the Cold War.

When human rights began once more to take off in the late 1960s and early 1970s, it was not because of the international covenants with their careful words and nuances; rather human rights were incarnated in the work of moral activists whose greatness lay in the rejection of the politics around them – the politics of communism in the Soviet Bloc, of authoritarian tyranny in Latin America.

Linked to this rejectionism and giving it strength is the moral certainty that has long surrounded human rights.  This is not in the law but in the minds of those who see in human rights an antidote to the disgraces of politics (the compromises; the deals; the concessions to power).

For many, human rights have seemed a temptingly quick route to that state of ethical Nirvana which the great patron saint of human rights Vaclav Havel has called (in a title to one of his books) Living in Truth.  But it is hard to do business with somebody who is not only always right, but always better as well.  What might have been true in the particular circumstances of Eastern Europe and South America in the 1970s and 1980s is not necessarily true everywhere, all the time.  It cannot be true if the circumstance is democratic politics – as the churches have found (and human rights need to discover) preaching is not the same as dialogue.

The depth of this human rights’ separateness from politics is nowhere more evident than in its embrace of law.  Wandering about outside the main narratives of the cold war, human rights seized on law as a neutral force that it could seek to possess.  To the dissidents of the 1970s, law appeared as a moral force – a set of truths – through which to counter the political decay that they saw all around them, a kind of morality in action.

The idea of human rights has had great success in law: with the increased democratisation of the world, more and more states have constitutional courts enforcing bills of rights, and international bodies increasingly see an individual’s capacity to take legal action as a test of their very worth.  But the price paid for this is to turn the whole subject over to the lawyers and in doing so to bleed it of its radical energy and political potential.

And finally being unsure of itself in the political field, the human rights idea has allowed itself to be drained of life and energy, too vague to give offence, too easily co-opted across the political spectrum, too gentle to be truly challenging   –  appealing to all, it impacts on none.

Off The Fence

We are living through a time of immense political turbulence during which the gains of social democracy are being set aside under cover of an emergency produced by capitalist excess.  This is happening in the confident belief on the part of those driving it that no counter-story can be credibly shaped which will be able to survive this blitz – the unions are old hat, the churches neither here nor there, and equality an unaffordable thing of the past.

To resist effectively requires just such a narrative, one that makes sense of why it is wrong and offers a fresh approach to the problems of the moment. It is because he imposed no story of his own that President Obama has become a prisoner of events in America, reacting to the truths of others rather than staking some out for himself.

Human Rights Fits The Bill

Human rights reflect an approach to the person which emphasises both the social nature of us all and the need each of us has to equip ourselves to lead successful lives. The idea of rights carries with within it the message of moral imperativeness, and the legal framework that is already in place permits a speedy fleshing out of what this respect for human rights truly entails.  And we should not be afraid of saying that these days what this involves is radical

  • fairness with a hard edge
  • a zeal to eradicate circumstances of injustice and structured disadvantage in order properly ensure that human flourishing should not be accorded as a matter of right only to those whose birth and social situation have guaranteed it anyway

Human rights can work in the speeches of a progressive politician seeking to explain why equality counts while not wanting to be manoeuvred into a contrived political ghetto, marked ‘old time socialism’.

They can assist the labour movement in articulating why attacks on living standards need to be resisted wherever they occur.

Human rights can also work on the streets as a galvaniser of political action in defence of equality and universality, two totems of past decency in desperate need of being shored up.

And law has a place too, as a defender of past gains which have fought their way onto the statute book.

And The Future?

The human rights idea will know it has come of age when reactionary politics resists them for then we will be sure they have found their true meaning.  And if ideas of social justice and social democracy ever do return, they will find the candle of equality has not been wholly extinguished in their absence.

Further Reading

An Heretical History – Rethinking The Foundations Of Human Rights

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31 Responses to T1 – Coming Out

  1. Paul Bernal says:

    In what you describe as the ‘capitalist, post-political age’, there are many gaps that need filling – not least the gap in terms of economic justice that many are feeling (or fearing) as our economies are in various degrees of crisis. Am I correct in understanding your general thrust as suggesting that human rights should be able to fill that gap, or at least to try? If we’re talking about ‘fairness’, it feels as though the idea of fairness is being challenged pretty dramatically in economic terms right now, and not nearly enough is being said about it in anything approaching a progressive or positive way. Is that a task that human rights should be attempting?

  2. This may be coming from an overly legalistic viewpoint, but perhaps the key to using human rights discourse as a substitute for social democracy is first deciding what it is we are trying to protect. You are clearly coming from a perspective that includes social rights, although there are many people who would consider themselves human rights advocates that do not proclaim these as requirements in a just society. There could be a pragmatic argument that if we limit the number of rights we try to protect, or prioritise rights, then it becomes easier to protect those, before moving onto others. These few rights then become a bare minimum, or protected centre of society, which politics and economic values cannot influence. While we should certainly aim for social rights, there is far more discussion about what ‘right’ is in this context; this is perhaps the role of politics, to decide what these social rights are, at least until a broad consensus is reached.

    I certainly agree that the law and lawyers cannot be the protectors of human rights, or the only participants in the rights discourse, but maybe the role of the law should be to enumerate and enshrine these untouchable rights that we want to protect most. Once rights are recorded in such a way, it is much harder to weaken or undermine them. In a just society, law is the tool of the democracy that civil and political rights are trying to protect.

    Having said this, I can certainly see the need for rights to protect people from capitalism, as well as enable them to participate in it. For example, a fear of becoming destitute through losing one’s job can prevent someone from exercising their right to freedom of speech in the workplace. However, rights can also be used to allow people to function as economic actors, if we are to have an economy-based society.

  3. Favio Farinella says:

    I think that in the end, it is all about a struggle for (capitalist) freedom and (socialist) justice, in an era of dead Gods. I mean that the discourse of human rights implies the claim for those basic human needs (freedom and justice) while at the same time, it takes the place of a faith in which the human being can rely to fight against earthly powers.

    In this sense I agree that human rights becomes an ethical policy (maybe an ideology in a mediate future) that confronts with realpolitik. A policy that is best exposed by processes of democratic participation in decision-making, though the outcome is still unknown. Many transitional democracies advocate their truth in human rights though in fact they constitute a cheap masquerade for authoritarian/totalitarian ambitions. Thus we come back to the need for some common minimum standard of effective outcome in order to bless a regime with the word ‘democratic’. If not, human rights’ activists will be in trouble to fight those fake democratic governments, and they will appear as undermining democracy.

    In fact, the coalitional power of human rights is one of aims, not of means. There will still be place for discussing ideas about how we reach economic, social and cultural standards.

    Finally, we may think of a post-political age in which claims are being made to Capitalism (as a praxis, not an ideology) in order to respect human dignity, legality and democracy.

    • Picaflore says:

      Taking up the invitation for ‘non-academic’ inputs – I feel I must respond to Favio’s thoughts. Faith and Human Rights are not mutually exclusive – my faith is a motivator to actively support human rights. In my intrepretation, Christianity (and I am sure other faiths) is quite clear. Human rights are central to Jesus’ message and behaviour, and founded in the understanding that we are ALL special because we are all created in God’s image. Jesus seeks out those explicity who are excluded, unequal, discriminated – not able to access the same rights / freedoms as those of more wealthy or fortunate. He is also clear, along-side the ‘principle’ of supporting the ‘underdog’, is our responsibility to act – to actively ‘love our neighbour’ in the face of an unequal society. Check out Christian Solidarity Worldwide for a contemporary example of this (http://www.csw.org.uk), quoted from their website: “We exist to redress the injustice faced by those who are discriminated against or persecuted on religious grounds, to champion human rights and to stand in solidarity with the oppressed.”

  4. Zoe Fiander says:

    Do human rights look like politics? Yes and no (or no and yes, more accurately).

    As you say the neutrality of the law has been used as a convenient vehicle for the message. A couple of points from this:

    Why have human rights advocates sought to distance the label ‘politics’? Tension at two levels – first, ideological tension between universality and the demands of pluralistic politics. Oh, this is a tired argument, but I don’t think it can be dismissed so easily. I think the tension really is felt on a fundamental level, not just the pragmatic level where the message is to be ‘sold’ (for want of a better word).

    Second, on that pragmatic level – though it sounds strange, perhaps most of the difficulties are here? The label ‘politics’ is tarnished and hard to reclaim. It’s almost impossible to think about politics without calling into mind ideas of ‘compromise’ – certainly in the public imagination. This naturally sits uneasily with the core human rights message even when it is clearly defined, and even when it makes allowances (as in progressive realisation of social rights). The practical difficulties shouldn’t be underestimated. The rationale for treating human rights as an ‘antidote to the disgraces of politics’ deserves a little bit more recognition for its possible pragmatism – an exploration of why that route is so compelling. At its core, is it ethical idealism, or political pragmatism that encourages it? If the latter, it becomes much harder to reframe the debate in the terms you suggest, because it suggests that human rights movement is already playing a subtle politics in a carefully framed debate.

    Intellectual honesty (call a spade a spade, if it is doing the digging?) vs efficacy (does accepting the political nature of human rights itself dilute the message?). Maybe I over-egg the dangers of becoming overtly political!

  5. Paul Bernal says:

    Conservatism (with a small c) has been claiming to be ‘apolitical’ for as long as I can remember – and that claim has been rebuffed vigorously by those on the left for just as long. Isn’t the same thing true the other way around? I mean, that claims for any kind of ‘progressive’ movement such as the human rights movement to be apolitical would be (and is) rebuffed by those on the right. From my perspective, if human rights is to be meaningfully progressive and radical, it cannot be seen as apolitical – because to be apolitical would mean that it can’t fully and appropriately confront the political movements that it should be confronting.

  6. Zoe Fiander says:

    Paul: I am playing devil’s advocate to an extent, but it seems to me there’s potential value in claiming to be apolitical, and also that human rights’ appropriation of law (if we accept that this has occurred!) is an indicator that it has been quite successful in making the claim. Not wholly successful because those on the right would argue that the judiciary’s a vested interest full of bleeding hearts.

    In terms of the value – is this about whose terms the confrontation occurs upon? By pushing an apolitical vision of human rights (apolitical fiction…) it’s at least arguable that the frames of the debate shift, instead of remaining within the boundaries of what we usually consider as politics. Part of winning a debate is getting people to speak your language, after all.

  7. Paul Bernal says:

    I wouldn’t argue with much of that – there’s certainly a value in being perceived as apolitical. There’s another downside to it too, however, particularly when looked at from the perspective of the history of charities and ‘aid’. If human rights are viewed as apolitical in the same way that aid and charity is viewed as apolitical, then it can be marginalised and even trivialised – for people without power, being given aid by the generous and benevolent rich is very different from having a political claim to a fairer distribution of resources and power.

    For me, it’s not a simple question, and doesn’t have a simple answer – but overall I’d rather make strong claims and suggest radical solutions, and that probably means being ‘political’.

    • Zoe Fiander says:

      I’m inclined to agree (I was still making up my mind while typing the above!). I suppose what I’m getting at is that if human rights is to be successfully and obviously ‘political’, we need to understand and take account of the various rationales for neutrality. And there’s nothing wrong with a bit of idealism…you could probably shift the frame of debate in a political context, even, just might be quite a lot harder!

  8. Chris Keating says:

    I would say that human rights are political….

    But if the concept of human rights is useful, it’s because they are a set of rights which are limited in scope and acceptable to a range of political doctrines and moral views.

    I would follow Rawls in arguing that if you have correctly defined human rights then all ideologies in a healthy democratic society will be able to share the same conception of human rights. Respect for human rights is what entitles you to a full place in democratic discourse.

    Trying to make human rights the basis for a complete political project has two hazards: first that you risk over-defining human rights, stretching the concept of what someone is entitled to further than it should go; and second that by polarising debate into people who support human rights vs those who do not you undermine the function of human rights as a universal standard.

  9. I think human rights in their basic conception (civil rights) are necessary for politics to flourish in a democractic society. Having said that, if we are to draw a definition of human rights any wider than that, they will become political in the sense Chris mentions. For human rights to be protected within a state or system, there would need to be some sort of consensus on what those rights are. If the nature of those rights is still under debate, they do risk being manipulated into a political issue.

    • Paul Bernal says:

      So I take it that neither of you, Chris and Holly, agree with Conor when he says:

      “…being unsure of itself in the political field, the human rights idea has allowed itself to be drained of life and energy, too vague to give offence, too easily co-opted across the political spectrum, too gentle to be truly challenging – appealing to all, it impacts on none.”

      For me, he expresses in a nutshell the danger of attempting to be acceptable to too much of the political spectrum. Human rights has to stand for something, and has to be challenging rather than just anodyne – and that, for me, means it has to be unashamedly political.

      • Personally I approve of everything that is contained in the International Bill of Rights, but I think that a lot of it is hard to enforce when there’s no consensus behind it. Perhaps it’s a two-layer system for me; those rights that are easily accepted and so can be enforced without much controversy, and an ideal layer of rights that do not yet have a consensus, but that those who believe in HR would argue for.

        • Paul Bernal says:

          That’s a good way to express it – perhaps it’s that second layer, the ‘cutting edge’ of human rights that I feel more interested in because it’s more radical and less ‘acceptable’, and because it is more likely to challenge the current iniquities.

  10. Jenny Brown says:

    I would suggest that human rights are a form of crystallized politics – they are the monuments erected after hard-fought and hard-won political battles. Once highly contested, they run the risk of becoming commonplace and apolitical as time wears on. The lived reality and everyday utility of rights may become routine and insignificant. It is the job of human rights activists to press for more secure guarantees and maintain a certain level of paranoia regarding rights to ensure that people do not become complacent.

  11. Conor |Gearty’s initiative to provoke us to discuss the future of human rights is a most welcome development! I hope that the opportunity is taken up by many interlocutors.

    I particularly welcome Gearty’s emphasis on the politics of human rights – although I have some reservations about human rights being seen as a simple substitute for a broad based progressive politics (or as identical with such). The reservations go to the heart of questions about what we think the human rights project is about. Many would argue that the human rights project is about supplying basic rights to all peoples everywhere, rights that can be (it is hoped, perhaps naively) agreed upon despite our many differences, political and otherwise. From this point of view, the human rights project supplies a base line upon which people can then build whatever politics they like – be it progressive, liberal, conservative or whatever. Clearly one risk here is that by co-opting human rights for the progressives, you lose its capacity to appeal to those who do not so self identify.

    But then this is where the politics of human rights really does become apparent – many people already reject human rights because they recognise the direct political implications of the so called universal rights agenda. Far from being a minimal set of basic rights, the UN Universal Declaration is a comprehensive liberal manifesto which would radically reshape any society that took its requirements seriously. There is nothing neutral or apolitical about the demands of that document.

    Gearty says that the UDHR includes the basic necessities of human flourishing – rights to education, health, work – as well as to the civil and political rights referred to by some of the above commentators as the “real human rights”. And he also tells us that human rights “tell us not only what we ought as humans to have but how we should go about getting them”. This, I think, is problematic. The lists of rights in the UDHR and associated Covenants (collectively, the International Bill of Rights, in the literature) are very abstract. Notoriously, a right to education or health looks very different in the UK to what it does in many other countries – Australia, the USA, Vanuatu, Zimbabwe, etc. But the right to free speech also looks very different in each of these jurisdictions (to the extent that they have it). Rights only really become rights on the ground – and on the ground they need to be institutionalised and interpreted, and they always end up looking very different then, to what they do in the UDHR. So much so, that they may be hard to recognise.

    This is the real politics of human rights! Rights of any sort are a tool; human rights, none less so. But there is no rest for those of us who want a progressive politics. All over the world human rights are being coopted by conservative or reactionary forces, who use both the language and the institutions of rights to undermine an emancipatory politics. The rights of the (conservative) religious, for example, being used to oppress women, gays and lesbians. The rights of groups being used to oppress individuals within those groups who want to leave or voice a different view. And so on.

    And this is perhaps why I am concerned about Gearty’s apparent wish to identify human rights politics with progressive politics. I think it is up to those of us who have an emancipatory politics or a liberal or social democratic politics to use human rights to fight for these ends – and I think that at a fundamental level the content of such documents as the UDHR represents a liberal and emancipatory politics. But at the same time, progressive politics has to be much larger than a human rights politics.

    And here we come back to the fundamental tension that lies at the heart of the discussion: is human rights about securing a basic minimum, or is it about making the human person (individually and in society) flourish? A human rights minimalist will want human rights to be a platform upon which other things are built. A “flourisher” will more happily go along with the identity option.

    Either way, the tension is hard to resolve – and this is because, either way, those prosecuting a human rights politics have to have some vision of what the human is. And this is deeply controversial, deeply political, and – like it or not – deeply divisive. This is where the universalist rhetoric of human rights falls down: the vision of human dignity that lies behind human rights is not shared by all.

    I don’t think there is any point, as one of the comments has suggested, in trying for an apolitical fiction here: pretending that we all agree on something only makes the political conversations we need to have harder. Much better to say that we disagree, and here is why, and lets take things from there and see where we end up. Ending up with a convincing progressive human rights politics requires those of us who see the world in those terms to make compelling arguments (and they are there to be made) and to bring people with us. People are more likely to come if they sense that their views are being taken seriously.

    Much more could be said, and I look forward to saying some of it in response to Gearty’s forthcoming missives on these and related matters!

    • Zoe Fiander says:

      “This is where the universalist rhetoric of human rights falls down: the vision of human dignity that lies behind human rights is not shared by all.”

      Should universalism be seen as aspiration instead of foundation in order for human rights to function successfully as politics?

  12. Seevun Kozar says:

    Gearty says something to the effect of “governments should not like to do it”.. And I think that is the point, it ought to be about power/resource distribution to be able to carry the torch of social justice. And as a result, cannot be based on overlapping consensus (sorry Rawls fans). If we reduce human rights to things that virtually everyone agrees on, such as “puppies are cute,” they lose all meaning.

    In such a context, there is no need to worry about defending human rights, other than in relation to a minuscule minority of the population. If human rights are to be something of value, something that needs to be protected, they must be offensive to some. That not only makes human rights political in themselves, but pursuing what may give offense to others in a public arena is the basis of modern politics.

    • Zoe Fiander says:

      “If human rights are to be something of value, something that needs to be protected, they must be offensive to some.”

      This is an uncomfortable point given how we typically think about human rights. It implies an ongoing interest in violations. I think that’s probably true (to some extent no different from any criminal law) …would it lead to a sort of virtuous circle in a best case scenario? As in, if you ever reach a point where compliance/consensus threatens to strip a right or a law of its meaning, you raise the bar? But this would never happen in practice…

      • Seevun Kozar says:

        The point is that if everyone agrees, then there no discourse. If human rights discourse is to be a valuable tool in achieving social justice, it must not stop at consensus.

        And yes, as soon as basic elements are achieved/agreed upon the bar must be raised, if the goal is to move toward a more just system. I do not believe there is an end (or a Eutopia) which would be an “end of history” for human rights/social justice, nor do I see it as a cycle, but as a steady march forward toward a more progressive future.

  13. John Foley says:

    This is mischievous. President Obama has an authentic personal story – which he articulated in writing before the presidency was in the offing – based upon his own upbringing as an outsider. His efforts to reform the health system in the USA will arguably have a more beneficial impact on a lot more people than adopting a legalistic human rights perspective.

  14. Kate Donald says:

    I agree with Conor that “progress needs human rights” and that human rights advocates should embrace their radical, political potential rather than denying their political nature due to fear of the old ‘dirty hands’ problem. But human rights are part of the social justice project, not a replacement for it. Nor would I be so ready to lie down and accept the death of progressive politics/social democracy/political commitments to equality etc. If the problem is that human rights have become drained of their danger, their zest, by embracing law instead of politics, then surely we need more politics, not less!

    “The human rights idea will know it has come of age when reactionary politics resists them for then we will be sure they have found their true meaning.” Surely, reactionary political regimes and leaders all over the world already do resist human rights, regularly? But we’re still no closer to finding that true meaning.

    However, if we are to accept and promote human rights as political, we have to accept the fact that they can be used by conservative political forces too; there is nothing to stop this and nor should there be. They are as entitled to their interpretations as everyone else. Part of accepting human rights as political is to accept these battles over interpretation and context rather than sweeping them under the carpet. Of course, politics also involves compromise, shades of grey, ‘least-bad’ decisions: so ‘human rights as politics’ will mean they are subject to these trade-offs occasionally. But how do we square these with the supposedly absolute legal commitments in the ICCPR, ICESCR, etc.? This is difficult to resolve. Part of the strength of human rights, as well as a major weakness, is that they can be legal entitlements, moral imperatives, political weapons, radical, conservative, universal, contested, localised…all at once.

    In my opinion, dialogue, debate and disagreement are part of the human rights project, not an obstacle to it. And by the way, puppies leave me cold.

  15. Nick Mcgill says:

    I have always understood social democracy as being founded on common interest and that has elements of both economic as well as the social benefits from working together with others to the greater good of all. I would look therefore to some economic advantage to be built into a theory of human rights.
    I fully agree that the takeover by lawyers of the human rights cause has marginalised it and made it a weaker rallying cry for individualism, freedom and social justice. The association with law and lawyers has lead to the human rights cause being increasingly bracketed with “health and safety” in the common perception, in terms of its usefulness and relevance to the world today particularly in Britain.

  16. Jamie Grace says:

    Conor makes the very important conclusion that “…law has a place too, as a defender of past gains which have fought their way onto the statute book”. The comment that I would like to make is twofold. Firstly, I would like to argue that the law is the best possible vehicle for the further development of human rights, not just the best defender of hard-won freedoms. How can it not be? It is overwhelmingly through legal systems that human rights have actual ‘bite’. Making advancing human rights legally enforceable creates rolling platforms for each successive bound of a rights generation. Furthermore, and secondly, judges’ minds and our courts are important actors in the field of promoting human rights. In my own area of research interest, Article 8 of the European Convention on Human Rights outlines a notion of the human right to respect for private and family life, and the confidentiality of personal correspondence. But the European Court of Human Rights, as Nicole Moreham has identified in her research, has had to approach a great number of intersecting issues that blend with that single paper-based doctrine, and these issues have favourably stretched Article 8 in to new contexts for claimants.

    • Paul Bernal says:

      Is may be really ‘overwhelmingly through legal systems that human rights have actual ‘bite”, but is it really through legal systems that human rights have actual effect?

      I would argue that the legal bite only functions when there is the political will for that legal bite to have force, and that the political will comes at least in part from public acceptance. If the public accept and believe in the rights, if they support those rights and put that support into political effect, then the law might have a chance. For me, law follows politics rather than the other way around. Both are needed, but without the political will the law has little chance of making its bite felt.

      • Jamie Grace says:

        Paul, I cannot help but accept that there is a core of truth in your comments to the effect that the law follows politics – but there is at the very least a duality here. Judges sitting in panels as courts occasionally look beyond politics to where they can advance or define human rights in a progressive manner. This is particularly clear in the mechanism of the Human Rights Act 1998 in the UK, and given the method of judicial review as the platform form which most human rights claims are launched. I would also go slightly further – not only do judges (and hence the law in the UK) go slightly further than politicians or society in defining and advancing rights where they can, even in the face of any hostility – for example, by outlining privacy and fair-trial rights for sex offenders and suspected terrorists – but politicians and the society they supposedly represent in our democracy are quick to do down human rights notions. Amongst the judiciary I feel that human rights will have more permanency if not more sway than amongst politicians or even citizens, potentially. It may be possible to suggest that because of the function of the common law and the doctrine of precedent, that human rights as a legal concept could potentially survive even the dismantling of the Human Rights Act 1998 by our politicians on behalf of the people whose interests they supposedly represent.

  17. Carl Schnackenberg says:

    Can human rights, as a platform for progressive politics, help eradicate injustice and structured disadvantage internationally? Or does the law need to help there, because there aren’t enough votes in restraining acts that increase prosperity domestically while decreasing it overseas?

  18. Collin Sullivan says:

    I do think turning human rights into a progressive politics (or vice versa) is risky, and I think Chris Keating summed up two concerns rather concisely, above:

    Trying to make human rights the basis for a complete political project has two hazards: first that you risk over-defining human rights, stretching the concept of what someone is entitled to further than it should go; and second that by polarising debate into people who support human rights vs those who do not you undermine the function of human rights as a universal standard.

    The polarization point is a particularly good one. By promoting human rights as a new politics of progressivism, the very concept of human rights is at risk of being written off by a significant portion of the population as mere leftism. Perhaps the point is that, as a concept, rights themselves are generally accepted among the populace, and so progressives should embrace the language of rights in order to build an effective political movement that would be wider than their own political base. If this were the argument, we would need to define which rights we’re discussing and which populace we’re polling. Here in the United States, for example, the far right sees ESC rights as little more than rebranded Marxism whereas the political center sees them as unnecessary at best.

    Further, the tenets of American exceptionalism dictate that we don’t need “human rights;” we have the Bill of Rights and the rest of the Constitution and that’s been good enough for more than 200 years (of course, it hasn’t been). In American politics “human rights” retains the stigma of globalism, and as such is not widely regarded as a viable political concept. It implies weakness rather than leadership, coalescence rather than fortitude, submission rather than dominance (speaking in terms of foreign policy, generally, but not exclusively).

    For human rights to become a central part of progressive politics in the United States, that stigma has to go. That won’t be easy. The American public–and the country’s politicians especially–are rather chauvinistic when it comes to their views on their own country. They’ve internalized some civil and political rights but only insofar as those rights are seen as American constructions. This is a major political and psychological hurdle that stands in the way of progressives adopting the language of human rights and using it to their advantage, and it is certainly a challenge to any practical application of Professor Gearty’s ideas.

    So, on the one hand there is risk, as Chris wrote, of human rights becoming a laundry list of wants rather than those very basic necessities required to live a life of dignity, and on the other there is a risk of only succeeding in garnering protections for those rights that are seen as part of a particular country’s identity (e.g. some civil and political rights in the US, but very few protections for economic, social and cultural rights there, if any). The degree of success that a political human rights campaign enjoys is very much beholden to the political culture of the society in which it’s waged.

  19. Louise Thomson says:

    As economic power is primarily in the private sphere and many social decisions are dictated by those wielding this economic power, human rights needs to find a different tyranny to address than that of church and monarchy that inspired the idealism and rights revolutions of the Eighteenth Century.
    The lack of respect for equality and dignity of humans, as was evidenced by the unchecked power structures of previous ages, is now echoed in the behavior of those holding positions of economic power in the modern capitalist age. The state versus the individual is not the only battleground for rights.
    I believe this is not just about acts that actually restrict distributive justice but about how the corporate, capitalist world is shaping and manipulating the ethical and moral landscape to suit its aims. To use a quote by Dostoevsky, ‘If God does not exist, then everything is permitted’. Capitalism has stepped into the vacuum to tell us its version of the ‘good life’ and it uses powerful tools to do so.
    Liberal obsession with freedom has insisted that we be agnostic about a particular way of life or ‘conception of the good’. This has brought tremendous benefits to society but where are the voices that might participate in the discourse in defining the good life? As Conor points out, ‘the unions are old hat, the churches neither here nor there, and equality an unaffordable thing of the past’.
    I think we need to get off the fence about foundations and use the basic concepts of equality and fairness to claim some moral authority to discuss issues of unregulated economic freedom. As Charles Taylor has pointed out, liberalism has had no problem in moralizing justice. Questions of justice and fairness between people seem more clean cut and solvable than questions of the good life but this does not mean that we should be squeamish about it, these issues are too important. I realize that even using the phrase ‘the good life’ is qualitative and that the main reason for not looking at questions of the good life involves a respect for peoples’ freedom, a central tenant of western culture. I would argue that capitalist and corporate organisations are not so sensitive to freedom and have no problem with prescribing a way of life and in doing so they shape the moral landscape.
    With its background of liberalism, human rights can provide a platform to ask the question of whether there are there any universal truths and to counterbalance capitalist voices that would otherwise answer this question in a one-sided manner. I know this is controversial, particularly if viewed from a relativist standpoint but perhaps we can open up the discussion to include other fields? Studies in developmental and moral psychology are cross cultural and highly developed and identify concepts such as empathy, reciprocity and fairness which shape our moral standpoint as humans.
    I think this progress does need human rights; it is sensitive enough about individual freedoms to provide a backdrop to address the question of whether there are any universal truths about humanity and to bring this discussion into the political and cultural landscape to present a moral and ethical alternative to the capitalist voices around us.
    If social decisions are taken in the marketplace and democracy is not so much about ‘one person, one vote’ as ‘one dollar, one vote’, the potential tyranny we need to be able to address is clear. Human rights needs to reframe its fight for fairness and equality to include those in economic power rather than sticking to its traditional fight of the individual versus the state. It may need new tools to do so and I think those involved in human rights need to open the field to a more integral approach and to move beyond the confines of post-modern debate.
    I think it is a post-political age and it is difficult to see how progressive politics alone would be enough to achieve this but I think a cultural movement might be shaped or moved by a new, invigorated human rights debate that might involve anything from biology to literature. To go back to the Dostoevsky quote (and as Taylor points out) stating that ‘if god does not exist, then everything is permitted’ does not necessarily mean selfish nihilism, it may mean that everything is permitted in answering questions previously answered by religious dogma. Human rights has asked the question of what is important to humanity and has tried to provide some mechanism for regulating this in modern society, few other movements have attempted such big questions and have been so practical and pragmatic in approach. This is what makes the human rights movement so valuable as a potential catalyst for a wider social shift to something that looks more human and more fair.

  20. Antonia says:

    The point that Conor Gearty made about how equality has now been rooted in outcome instead of opportunity seems to me to be an important one. It is this shift in society that in many ways has led to not only a lot of disillusionment with politics, but overall social discontent which has allowed capitalist voices to take centre stage, due to the obvious fact that the route society is headed, is not one that is going to bring too many successful outcomes. Society seems to have polarised and people are more at odds with one another due to growing economic inequality in spite of equality of outcome. However, I do not believe that political ideology is going to effectively change much. In my experience, people are concerned with their finances, and in a time like this, the first thing to go is ideology. In order to have a successful movement, you need to be able to encompass the economic powers and use capitalism to your advantage. What is needed is firm policy which ensures the creation of equal opportunities, such as reform of the education system. The focus needs to be on the creation of a better and more successful society, not simply one that is more morally just. There is no reason why more successful, whether it be economically and politically, cannot go hand in hand with more social and moral justice. In fact for social democracy to work, they have to.

    This means the need for concrete policy which would be understandable and accessible to many people and more importantly would be present in people’s daily lives, thus ensuring that those not interested in this are unable to manipulate those they traditionally could. After all there will always be those more interested in themselves than society as a whole, but we must make equality of opportunity and human rights ideology so economically successful that the opportunity to manipulate is smaller and smaller.

    At first, I was concerned with the idea of human rights as politics, particularly as someone who believes it to be above simply the tit for tat arguing that politics seems to be now. However, if social democracy needs a face then human rights is certainly a part of it. The idea of its separateness from politics in its embrace of law appears strange to me. What is law if not the outcome of politics?

    Human Rights needs to remove itself from the realms of purely left wing politics. After all, Lloyd George as the initiator of a welfare state was a liberal and showed how social democracy, and much of what we would see as human rights, would benefit all of society, from the rich to the poor, because as history has shown, fewer people benefit and have a good quality of life when the gap between rich and poor is very big. People should have the opportunity to achieve what they want and can, but not at the expense of others. What a human rights movement needs to be careful of is becoming a list of wants, as someone has already said, and must correlate with economic theory because after all, what is the point of having the right to social assistance in bad times, when there is no money to fund this right?

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