Chapter 3: Human Rights, Markets, States, and Movements
Marx’s critique of human rights as classically liberal in ‘On the Jewish Question’ is well-known.1 In this polemic essay Marx compares human rights (chiefly the right to liberty and security) to political rights. While human rights protect individual property in civil society, the political rights of citizens prescribe a ‘heaven on earth’ of cooperation and self-determination in the state. Natural law ideals of human rights encoded in positive law work against state socialism for Marx (and of course this is not his political aim, which is ‘human emancipation’). Marx was writing about the ‘Rights of Man and of the Citizen’ of the French Revolution. Is his critique still relevant today?
In contrast to eighteenth-century ‘rights of man’, international human rights today are more social democratic than liberal. The Universal Declaration of Human Rights (on which subsequent UN Conventions of human rights elaborate) was made in the wake of the New Deal in the United States, alongside the creation of welfare states in Europe, and with the input of delegates from the USSR. Far from prescribing a state that polices the security of private property, the post-war international human rights regime looks more like a blueprint for social democracy. The same goes, though more obliquely, for European human rights law today, at least as far as ending discrimination goes. It is true that the European Convention on Human Rights of the Council of Europe is limited to civil and political rights—to classically liberal rights of freedom from the state, and also to democratic rights to elect and be elected that actually alter classical liberalism. But in the European Union, these are now supplemented with social rights in the Lisbon Treaty and in the case law of the European Court of Justice. Constitutions in other parts of the world—in India and Latin America—go still further, adding multicultural group rights as well as social and economic rights. On paper, if human rights are liberal, they are a version of liberalism that is more collectivist than individualist (more ‘New Liberal’ than classical liberalism).
But perhaps if human rights are social democratic on paper, in principle, they may be liberal in practice. Indeed, there is a good deal of suspicion today that human rights are neoliberal in practice.
There is certainly some basis to these suspicions. It is effectively in the gap between international law and compliance with that law that human rights become part of projects of neoliberal imperialism. It is a paradox that in international law it is only states that violate human rights, but it is also only states that have the responsibility to guarantee human rights. It is a paradox, but it is not nonsense. Making states the guarantors of human rights against themselves involves another presupposition: that states are all basically the same. It presupposes that states have all been through the same historical formation: that they have developed administrative capacities that depersonalise and limit power through bureaucracy and the separation of powers; and that they have been made relatively responsive to an active civil society of non-governmental organizations and investigative journalists. In other words, making states the guarantors of human rights presupposes states that are both liberal and democratic.
At best this presupposition rests on a very partial and idealised history of state formation in the Northwest—the European settler states that share broad commonalities in terms of capitalist industrialisation and the development of citizens’ rights. And what they also share is a centrality to twentieth-century geopolitics. Because what this history leaves out most significantly is the history of colonialism. As Partha Chatterjee has argued, in most of the world people live in postcolonial states.2 Postcolonial states were formed in the nineteenth century to be administered from elsewhere, so they were never as intense or as uniform in relation to citizens as colonial states: they were built on obedience to local powers and subjection rather than on winning consent. In this respect, human rights can be seen as a continuation of imperialism: they are largely irrelevant to most people in most of the world, and they serve chiefly as justifications for international public policies, even military interventions that are led by Northwestern states. And neo-imperialism is connected to neoliberalism in that at the same time they are engaged in ‘leading’ human rights internationally, Northwestern states are themselves being restructured by regulation designed to free markets from social welfare settlements, which were achieved through democratisation, to the advantage of global elites.
This understanding of human rights is in many ways compelling. But it is not the whole picture. It is complicated by constructions of human rights against public policies that promote markets. I’ll just give a couple of the most interesting recent examples here. One is the human rights to health claimed by Treatment Action Campaign in South Africa, which took on drug manufacturers to bring down the price of retroviral drugs and put in place a national network of grassroots health care for people suffering from AIDS.3 Another example is the Rights of Peasants demanded by La Vía Campesina, which is linked to MST (the Movement for Workers without Land) that squats large landholdings in Brazil.4 Both these mobilisations invoke human rights as political ideals, they use the law, and they address states at local, national, and international scales, but they do not depend on the law or on the administrative capacities of the states in which they are situated. In fact, both have operated on the border between legality and illegality in order to exercise rights in practice. Both participate in paradoxes of human rights, between citizenship and humanity, universalism and diversity, emancipation and governance.5
It seems that whether you think human rights are liberal depends in large part on where you look, what you are looking for, and how. Hannah Arendt is often invoked in discussions of human rights—both for and against. For Arendt what is important is not the state or the law but political community. Famously, she sees rights as guaranteed only where there is a ‘right to rights’.6 This is an enigmatic phrase—which is surely part of its attraction. What seems clear, though, is that investigating what ‘the right to rights’ might look like in practice today will surely lead us in directions that neither classic liberals nor Karl Marx would ever have imagined.