Chapter 7: Rights

by Nivedita Menon
What Are They Good For?
Chapter 7: Rights
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Published
Sep 11, 2019

Let us remind ourselves that the notion of rights as we understand them today arose in a specific time/space configuration. It is from the seventeenth century that in Europe individuals began to be seen as autonomous and separate entities. The notion of rights for individuals emerged in modernity both as a vehicle of emancipation from feudal fetters of guilds and communities, and as a means of privileging an emerging bourgeois class within a discourse of formal egalitarianism and universal citizenship. Thus, rights emerged both as a means of protection against arbitrary use and abuse by the sovereign, and as a mode of securing the newly emergent dominant social orders of class and gender.

A revealing instance of the slipperiness of the assumed progressive nature of rights is the right to work. What paves the way for the capitalist system, in Marx’s view, is primitive accumulation—the process of violently expropriating from the labourer the means of production and transforming it into capital, carried out in Europe in the fifteenth and sixteenth centuries by individual acts of violence. By the eighteenth century, law itself became ‘the instrument of theft of people’s land’.1 This process was accompanied by a disciplinary discourse on work that criminalized and brutally punished the refusal to perform labour. Early colonial policy also used the policy of forced labour, particularly in Africa. The intervening centuries and developments in the global capitalist order have seen a radical reversal of this discourse. From the disciplinary discourse of the obligation to work, resisted by the target population, gradually there emerged the social and economic order in which work is unavailable, and all means of self-employment have been destroyed. The resistance of the propertyless to this order is manifested in struggles for the right to work. In short, capitalism initially had to discipline populations into labour, but could never produce enough employment for the vast numbers that were dispossessed and proletarianised. The phenomenon of unemployment having been created, the conditions of possibility emerged in which the right to work could be articulated. The emergence of this right, as of other rights, thus cannot be seen as a simple moment of historical progress.

In India the colonial intervention decisively transformed indigenous notions of justice and brought them in-line with the requirements of modern legal discourse. Rights in the modern sense were produced by colonial transformation of judicial discourse and administrative institutions. The language of rights did empower many subaltern sections against indigenous elites, but it is evident that its emergence was not unambiguously and universally emancipatory. As the work of many historians shows, the new language of rights had devastating consequences for many. For instance, it was through the language of rights that an alliance between British Victorian morality and the male elite of the matrilineal Nair community started the process of legally ending matriliny—pitting the rights of the wife against those of the sister, the subject of course, being assumed to be the Nair male.

Liberal individualism never became the uncontested core of anti-imperialist struggles for democracy. Whether Gandhi and Ambedkar in India or African socialists like Nyerere and Nkrumah, most nationalist leaders constructed national identities, not through the idea of individual citizenship but through that of communities—caste, religion, ethnic groups. Their language of politics remained non-individualistic. And yet there remained always a tension in postcolonial democracies between the community, defined in different ways, as the bearer of rights and the individual. This tension is evident in the Indian Constitution, for instance, where the Fundamental Rights protect the rights of both the individual and the religious community. Sometimes this leads to contradiction between the two—as when equal rights for women as individuals comes into conflict with religious Personal Laws, all of which discriminate against women. Similarly, the demand for reservations in representative institutions on the basis of group identity—women, castes, or religious communities—fundamentally reshapes the conception of political representation at the core of liberal democracy, that of the individual.

The idea of the individual citizen empowered with rights in the public sphere derived its emancipatory potential precisely from its positioning against feudal absolutism. With the passing of that historical moment in the West, and the mediated and refracted manner in which ‘modernity’ is encountered in colonial and postcolonial societies, the language of rights has lost much of its relevance. The extension of this language from rights of the individual against the state, to the rights of collectivities against one another and against individuals, as well as rights defined in such broad terms as the right to be fully human—these rights to be guaranteed by the state—has raised contradictions that have not been adequately confronted.

Take for instance the universal rights/multiculturalism dichotomy. The rights discourse does not permit us to challenge both ends of this dichotomy—the reification of cultural boundaries by the discourse of multiculturalism as well as the unproblematic assertion of universal rights by its opponents.

We know by now that an unqualified defence of the notion of universal human rights is all too often linked, in the current world scenario, to the United States of America as the global champion. In the new unipolar world, the choice is posed as one between universal rights protected by good governance, and an anti-human rights position supported by (Islamic) religious fundamentalists or dictators. What this polarization obscures is the fact of internal opposition to dictatorship, and that external action usually ends up strengthening the dictatorial forces, swamping democratic opposition within those countries on a tide of resurgent nationalism.

But at the same time, the alternative cannot be a defence of rights for communities assumed to be internally homogeneous. The framework of multiculturalism poses the problem for liberal democracies as one of the external relationship of different communities to other communities, to be mediated by the state, when the problem of gender or caste is internal to the very constitution of the community itself.

Thus, French feminists should hesitate to support the French government’s prohibition on wearing the hijab in schools, for this could feed into processes marginalising and demonising the Muslim community. Moreover, the critical voices internal to the community may be delegitimized within the community, not strengthened, by open support for the French government’s policy from the mainstream feminist movement. In such a scenario, alliances should be between feminists outside and feminists inside the community, not between some feminists and the state.

Feminist critiques of the universalism of international human rights discourses must, in short, equally strongly attack the particularism of the nation state and of the community. Our space will have to be the terrain of solidarities that are simultaneously anti-imperialist, counter-globalisation, and post-nationalist.


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