Kate Nash makes the useful point that universalist claims for human rights have historically been articulated within very different forms of rights- and needs-based understandings. For example, there is a great deal of difference between human rights claims articulated in the form of natural rights, in order to oppose state regulation and interference in the social sphere, and human rights claims articulated in the form of social democratic demands for state provision of services and support. Of course, human rights claims can be made to enable the expansion of state regulatory power as much as for the retreat of the state and can be articulated in pre-modern, liberal, and neoliberal forms. In short, discussing human rights in the abstract, or in ‘for or against’ terminology, is rarely a useful or productive exercise.
Many commentators have observed the fact that universalist claims of promoting human rights have become an integral part of a new, more hierarchical international order, undermining UN Charter restrictions on the use of military force and justifying new, more coercive forms of international regulation and intervention in the postcolonial world. To view these consequences of human rights claims and discourses as the ideological misuse or abuse of human rights would already be to approach the question of understanding human rights with a certain set of assumptions. These assumptions would be based upon an idea that universal human rights claims necessarily challenge entrenched power relations and are an important mechanism of advocacy on behalf of the victims of abuses or those excluded from traditional frameworks of representation. However, prior assumptions, of the purity of universal human rights claims (and of their potential abuse by powerful actors), are increasingly seen to be problematic.
Human rights claims cannot, in themselves, be accurately seen as either enforcing or challenging the existing relations of power. The one thing that can be asserted with confidence is that human rights claims conflate an ethical or moral claim with a legal and political one. The discourse of the ‘human’ belongs to the sphere of abstract universal ethics, while that of ‘rights’ belongs to the framework of a concretely constituted legal and political sphere. In conflating the two spheres, human rights claims pose a challenge to rights as they are legally constituted. The content of this challenge, whether it has any consequences, and, if it does have consequences what these consequences are, are matters for concrete analysis. To suggest that any challenge to the framework of legally constituted rights is necessarily an effective one, or necessarily a good or progressive one, would clearly be naive.
In fact, it was the challenge of naivety of universalist claims that was famously articulated by Jeremy Bentham, the utilitarian philosopher, when he denounced the idea of human rights as ‘nonsense on stilts’. He had nothing but contempt for the newfangled universal ‘rights of man’ proclaimed at the end of the eighteenth century.1 For Bentham, rights meant nothing unless they were enforceable with clear contractual obligations and backed by law. Declarations of the ‘rights of man’ were no more than rhetorical fancies and collections of pious wishes, which were not worth the paper they were written on. The idea that we were born with universal equal rights simply because we were human made no sense to Bentham. Firstly, we are born into a relationship of dependency rather than equality, and are not considered as moral or legal equals until we reach maturity (children are not born with criminal liability as they are not responsible for their actions). Secondly, it was clear that there could be no universal human equality: the opportunities we have depend fundamentally on the societies we live in and our position within those societies. As Kate Nash implies the ‘right to rights’ is a product of social, historical, and political contestation.
In recent years human rights have often been problematised if they are understood in top-down or social democratic ways, which are held to ignore the social, historical, and cultural preconditions necessary for the ‘right to rights’. As World Bank policy advisor, Oxford professor Paul Collier argues, rights regimes, in some contexts, are not a solution to political conflict but rather a catalyst for it.2 More radical social theorists, such as Bruno Latour, have also critically engaged with modernist modes of rights understanding. He persuasively argues that Western societies have forgotten the lengthy processes that enabled them to establish liberal rights regimes, which depend on the establishment of a political culture that has to be steadily maintained, renewed, and extended and cannot be exported or imposed.3
This shift away from formal universalist understandings of democracy and human rights is increasingly evidenced in the shifting understanding of human rights-based approaches to empowerment. When empowerment was seen as an external provision of legal and political mechanisms for claims, it was subject to failure and not seen to be sustainable. Human rights-based non-governmental organizations now increasingly seek not to empower people to access formal institutional mechanisms but to enable them to empower themselves. This approach places the emphasis on the agency and self-empowerment of local actors themselves, not on the introduction of formal frameworks of rights and provisions, supported by international human rights norms. It is often argued that empowering local actors themselves, evades the moral imperialism of imposing Western human rights norms, but also avoids the moral relativism of merely accepting local traditional practices.4 It seems possible that we will increasingly see human rights as a pragmatic approach to empowerment that does not necessarily take the universalist and abstract forms associated with either natural rights or with social democratic provisions.5