Critiques of Rights and Duties
The first critiques of human rights started to appear immediately after the Declaration of the Rights of Man and the Citizen. In his Reflections on the Revolution in France ( 2009),Edmund Burke accused the abstraction and the arrogance of the natural and inalienable rights of man. He thought that it was arrogant and limiting for the drafters of the Declaration to cast aside traditional notions that had stood the test of time. Burke did not deny the existence of natural rights; rather he thought that the a prior reasoning adopted by the drafters produced notions that were too abstract to have application within the framework of society. In stating that ‘the pretended rights of these theorists are all extremes; and in a proportion as they are metaphysically true, they are morally and politically false’, Burke argued that abstract rights are meaningless without a societal framework: ‘What is the use of discussing a man’s abstract right to food or medicine? The question is upon the method of procuring and administering them’ (Burke, 2009: 50).
It was not the rights themselves, as much as the level of abstraction and the placing of them above government which Burke found dangerous. He stated that, ‘those who pull down important ancient establishments, who wantonly destroy modes of administration, and public institutions, are the most mischievous, and therefore the wickedest of men’ (Burke, 1827: 197). For Burke, politics had no simple answers, and definitely no overarching, universal maxims such as those expressed in the Declaration.
Rather the rights afforded to individuals were to be assessed in the context of the social framework. However, he acknowledged that the simplicity of the Declaration was attractive and feared its ability to undermine social order. Burke believed that the absolute nature of these principles of abstraction was inherently revolutionary; they were uncompromising and any derogation from the principles constituted a reason to rise up in arms. This was a problem because ‘all government is founded on compromise and barter. We balance inconveniences; we give and take; we remit some rights that we may enjoy others’ (Burke, 2005: 222). The natural rights ‘against which there can be no prescription; against these no agreements is binding’ (Burke, 2009: 32) gave the revolutionaries the tools to destroy the very society that Burke believed afforded them with rights.
The 18th-century utilitarian philosopher Jeremy Bentham criticized the Declaration of the Rights of Man and the Citizen in his text ‘Anarchical Fallacies’ ( 1843). One of the critiques Bentham levelled against the Declaration was its assertion of rights in the form of absolute and universal norms. He argued that absolute rights possessed by everyone equally are meaningless and undesirable. They lack meaning because if everyone has, for example, unbounded liberty, there is nothing precluding them from using that liberty to impinge on the liberty of another. In this way ‘human government and human laws’ are required to give some bounds to rights in order for them to be realized. However, since these rights are declared to be imprescriptible, this means any interference of the laws and existing government is excluded from the outset. In addition to this contradiction, Bentham warned of the dangers of couching rights in absolute terms. A government that is able to protect every person’s right absolutely and equally is a utopian aspiration, but the Declaration couches it as the conditions for its legitimacy. ‘Against every government which fails in any degree of fulfilling these expectations, then, it is the professed object of this manifesto to excite insurrection’ (Bentham, 1791: 506).
Not only did Bentham think that there was no logical basis for the theory of natural rights, he believed that their individualistic approach was harmful to society. Bentham thought that society was dependent upon people’s ability to pursue the greater good, not just the short term satisfaction of their own desires. The advancement of natural rights, which he saw as celebrating selfishness, was to provide the means to break down the social community that makes human life bearable.
Marxist critique of human right
Karl Marx also took issue with the individualistic bias of the Declaration. However, contrary to Bentham, he did so not in order to oppose this individualism to the social community, but in order to read in it the expression of the existing bourgeois society and ideology. In On the Jewish Question, he claims:
Above all, we note the fact that the so-called rights of man, the droits de l’homme as distinct from the droits du citoyen, are nothing but the rights of a member of civil society – i.e. the rights of egoistic man, of man separated from other men and from the community. Security is the supreme social concept of bourgeois society, the concept of the police, the whole society exists only to ensure each of its members the preservation of his person, his rights and his property. (Marx, 1844)
Thus for Marx, liberal rights and ideas of justice are premised on the idea that each of us needs protection from other human beings.Therefore, liberal rights are rights of separation, designed to protect us from such perceived threats. Freedom in such a view is freedom from interference. What this view denies is the possibility – according to Marx, the fact – that real freedom is to be found positively in our relations with other people. It is to be found in human community, not in isolation. So insisting on a regime of rights encourages us to view each other in ways that undermine the possibility of the real freedom we may find in human emancipation.
Marx argued that the society that gives rise to the idea of rights is the same as that which gives rise to the commodity form. They are two sides of the same coin. It is a society based on production by independent producers whose contact with each other is mediated through the exchange of products in the market. These producers are formally free to produce what and how much they wish. They are formally equal in that no producer can force others to produce against their will or expropriate their products against their will. They are self-interested in that they are all entitled to pursue their own private interests regardless of what others think or do. Their contact with other producers takes the form of free and equal exchanges in which individuals exchange their property in return for the property of another and this exchange of unneeded things in return for useful things appears to be done for the mutual benefit of each party.
The juridical figure of the Person, so central and foundational for the discourse of human rights, is thus the superstructural expression of an atomized society in which the private labour of each individual is blindly socialized ‘at his back’ via the fluctuations of the capitalist exchange. The individualism and abstraction of human rights are thus not an error of method, but instead express correctly the alienation and impersonal domination of capitalist society.
Hannah Arendt, Giorgio Agamben
Closer to our time, human rights have been criticized not so much for their philosophical stature (abstraction, arrogance and so on), but for the way in which they (mis)functioned in real events.
Prior to World War II, millions of people have been deprived of their citizenship not only in Nazi Germany, but also in many democratic countries of the West. Compounded by the refugee crisis brought about by the war, this created a situation in which countless people were left practically without any legal statute or defence. Hannah Arendt (1973) saw in this extreme situation a logical possibility inscribed in the Declaration of the Rights of Man and the Citizen, namely, the curious division of the bearers of rights into ‘men’ and ‘citizens’. This split was already problematic in the Declaration itself, since it assumed that these natural and inalienable rights – which should, thus, apply to any person – are somehow restricted or particularized, and apply only to citizens. Hence, these natural rights seem to apply only under a certain political condition – namely, citizenship. This paradoxical imbalance inherent in the initial Declaration exploded in dramatic fashion during the war, when it was clear that the inalienable rights of man are indeed conditioned on the statute of citizenship. Thus, precisely those most in need of protection through these rights – the stateless people, the displaced, the refugees – were denied this ‘natural’ right.
Hannah Arendt’s critique of human rights was revisited more recently by Giorgio Agamben, who saw in this imbalance inherent in the original Declaration – between natural men as such, and men as citizens, as the only bearer of rights – the classical biopolitical operation, by means of which political sovereignty is grounded in the opposition between bare life and political life and is instituted through the exclusion of the former. Thus, the contemporary crisis of human rights, first analyzed by Arendt in the refugee crisis, is, for Agamben, nothing but proof that the classical mechanism of sovereignty does not function anymore. The concrete outcome of this dramatic breaking down of political sovereignty, the derailment of the operation of articulating a political life on the basis of an excluded bare life, is the camp, which thus constitutes, for Agamben, ‘the paradigm of modernity’ (Agamben, 1998: 73).
Another trend of criticism of human rights comes in our time from the post-colonialist tradition, where Indian legal theorists like Ratna Kapur and Upendra Baxi have been active. The general argument consists in accusing the false universality of human rights as Western particularism.
Ratna Kapur, in ‘Human Rights in the 21st Century’ (2006), for example, argues that ‘assertions about the universality of human rights simply deny the reality of those whom it claims to represent and speak for, disclaiming their histories and imposing another’s through a hegemonising move’ (Kapur, 2006: 674). The abstract universality of human rights is, in fact, a ‘discriminatory universality’, and one can see this in all the attempts of the West to relate to its other. There are three such attempts, and they are all equally discriminatory:
The first is through the assumption that the difference can be erased and the ‘Other’ tamed and assimilated through some form of cultural or racial strip. The second is to treat the difference as natural and inevitable. And finally, there is the response that justifies incarceration, internment or even annihilation of the ‘Other’.
(Kapur, 2006: 675)
Therefore, be it assimilation, tolerance or violent rejection – in all its logical possibilities, the proclaimed universality is discriminatory. According to Kapur, the problematic gap between the assertions of rights and ‘those whom it claims to represent and speak for’ can only be reduced by the ‘centring of excluded subjects, excluded zones and excluded histories’ (Kapur, 2006: 687). The story of human rights must ‘be told from the perspective of transnational migrants’ (Kapur, 2006: 686), for example, because of the ‘urgency of re-reading human rights from alternative locations, the excluded zones or from the perspective of excluded subjects’ (Kapur, 2006: 685). As Kapur puts it emphatically, they – the excluded ones – are ‘the creditors’. Unless the West opens the door, repays its debt of ‘cultural erasure’ and allows them to tell the story as it really is, that is from their own perspective, there is no chance to ‘put some life back into a project in desperate need of resuscitation and to give this body [the legacy of human rights] a soul’ (Kapur, 2006: 687).
For Upendra Baxi (2002), the starting point in his critique of human rights is rather similar to Ratna Kapur’s: the modern conception of human rights was based on the ‘discursive devices of Enlightenment’, which were in fact ‘devices of exclusion’ (Baxi, 2002: 29). The passage from modern human rights to contemporary human rights is a passage from an exclusionary to an inclusionary approach, which is accomplished by ‘taking suffering seriously’: ‘No phrase except a romantic one – the revolution in human sensibility – marks the passage’ from the first to the second. Baxi claims that the previous, formal and abstract conception of human rights was in fact ‘essentialist’; while the contemporary one, based on the concrete experience of pain and on the direct access to difference, is not.
In their anti-foundational approaches to human rights, Richard Rorty (1998) and Michael Ignatieff (2003) argue that universal human rights are not to be based on a belief in a ‘metaphysical’ idea of human rationality, but on a pragmatic idea of sensibility to cruelty. Although they both try to hold on to crucial ingredients from the original project of human rights (the Enlightenment utopia for Rorty, its universalism for Ignatieff), the way to achieve these goals is, for Rorty and Ignatieff, by discarding the maximalist claims to human nature and universally shared rationality and by replacing them with ‘the most we can hope for’ – a minimalist account of resistance to cruelty. In both cases, this shift towards minimalism and sentimentalism is grounded on a pragmatic basis: as Rorty argues, ‘the best, and probably the only, argument for putting foundationalism behind us is [that] it would be more efficient to do so, because it would let us concentrate our energies on manipulating sentiments, on sentimental education’ (Rorty, 1998: 176). At first glance, sentimental education seems to do the whole job: ‘Producing generations of nice, tolerant, well-off, secure, other respecting students of this sort in all parts of the world is just what is needed – indeed all that is needed – to achieve an Enlightenment utopia.’ On more careful inspection, the shared sensibility to cruelty is not the only necessary ingredient, since it has a condition of possibility of its own – security. ‘Security and sympathy go together, for the same reasons that peace and economic productivity go together.’ As it turns out, sentimental education, as vital as it is, is only the moral super structure that drags along the even more vital base, namely, the shared peace and security of our shared mode of production.
This liberal criticism of human rights has been, in its turn, criticized by Wendy Brown (2004), who accuses the depoliticizing effect – with crucial political implications – of this ‘minimalist’ liberal rearrangement of the doctrine of human rights. First, argues Wendy Brown, human rights discourse, as imagined by Ignatieff, not only aspires to be beyond politics (notwithstanding his own insistence that it is politics), but carries implicitly antipolitical aspirations for its subjects – that is, casts subjects as yearning to be free of politics and, indeed, of all collective determinations of ends.
Second, human rights ‘are not simply rules and defences against power [as Ignatieff claims], but can themselves be tactics and vehicles of governance and domination’. In the best-case scenario, what they amount to is ‘a form of “empowerment” that fully equates empowerment with liberal individualism’. And third, human rights are not just an innocent defensive tool attached to a pre-existing subject, but they actually produce the subject to whom they are assigned.
In its very promise to protect the individual against suffering and permit choice for individuals, human rights discourse produces a certain kind of subject in need of a certain kind of protection. The point is that there is no such thing as mere reduction of suffering or protection from abuse – the nature of the reduction or protection is itself productive of political subjects and political possibilities.
Another trend of critical reappraisal of human rights comes from the post-Althusserian perspective. Here, human rights are analyzed on the model of the Althusserian ‘ideological interpellation’ – namely, focusing on the way in which the declaration of human rights creates its subjects by means of its symbolic efficiency. In this framework, the inadequacy of the declaration of human rights – the tension between their abstract, natural bearer and their concrete, particular referent which was blamed by Arendt or the post colonialists, becomes the very source of their political efficiency.
Thus, for example, instead of criticizing the distorted that these rights represent, Slavoj Žižek (2005) directs his attacks exactly in the opposite direction, namely, against the ‘morality’ that recent approaches try to infuse in the abstract frame of these rights.
This re-naturalization of the subject’s particular condition leads to the consequence that the much praised ‘enlightened’ West begins to assume the traits of its presumed ‘fundamentalist’ Other. ‘What is effectively disappearing here is public life itself, in which one operates as a symbolic agent who cannot be reduced to a private individual, to a bundle of personal attributes, desires, traumas and idiosyncrasies’. The other target of Žižek’s critique is the very conceptual core of the morals of human rights, the notion of free choice, with its underlying belief in the undisturbed spontaneity and authenticity of the subject’s will. According to Žižek, in the consensual universe of naturalized particular beliefs, genuine free choice cannot be a simple and direct expression of the subject’s will and substantial identity: ‘a choice is always a meta-choice, a choice of the modality of the choice itself. The subject of free choice can only emerge as the result of an extremely violent process of being uprooted from one’s particular life-world.’ It is only with this violent gesture by means of which the individual extracts himself from his immediate life context and disrupts the organic unity of the social body, that genuine universality that is ‘universality for itself’, is generated. In as much as the abstract frame of human rights provides precisely such a space for the universality for itself, it designates the precise space of politicization proper. What [human rights] amount to is the right to universality as such – the right of a political agent to assert its radical non-coincidence with itself, to posit itself as the ‘supernumerary’ and thus as an agent of universality of the social itself.
Similar considerations were formulated by Jacques Rancière (2004). The French philosopher bases his reappraisal of human rights on his conceptual opposition between politics and police. While to Rancière, the police indicates the imposition of a partition on the social body which assigns to each part its own ‘natural’ place, politics occurs precisely when this natural partition is disturbed, when the harmonious consensus of the social body is shattered by the non-coincidence of each part with itself and by the imposition of disagreement [différend] as community. Human rights are an open site for both these possibilities. As an abstract inscription of formal equality, they provide the opening of an interval for political subjectivization. However, in their moralistic reappraisal which assigns to each part its right to assess its particularity and its own point of view, contemporary approaches to human rights seem to head in the opposite direction: ‘supposed efforts to make inequality explicit have rigidified it. For one thing, the making explicit of sociocultural difference has tended to turn that difference into destiny (Ranciere, 1995: 54). In his essay ‘Who is the Subject of the Rights of Man?’, Rancière tries to engage with a more sophisticated attempt to re-naturalize difference as irreducible. The tension between the formal universal bearer of human rights and his particular actual bearer, the non-coincidence between man and citizen, between bare life and political frame – a distinction which roughly corresponds to the one diagnosed by the postcolonialists, between an abstract frame of rights and the untranslatable suffering of the excluded. This opposition, while being rightly criticized by Hannah Arendt and, lately, Giorgio Agamben, nevertheless runs the risk of being hypostatized in their writings and turned into a new destiny. However, for Rancière, this distinction between man and citizen, between the subject of the enunciated and the real referent of human rights, is not the whole story: ‘the very difference between man and citizen is not a sign of disjunction proving that the rights are either void or tautological. It is the opening of an interval for political subjectivization.’ This means that, besides the two equally problematic alternatives delineated by Arendt and Agamben (human rights either as a tautology or as a void), there is a third possibility: ‘the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not.’ But this radical non-coincidence with itself of the subject of human rights, which reveals the sphere of human rights as being a possible space of genuine political subjectivization, is not at all blocked by the abstract nature of rights, but, on the contrary, opened precisely by this formal inscription of equality and universality. ‘The strength of those rights lies in the back-and-forth movement between the first inscription of the right and the dissensual stage on which it is put to test.’ It is this very abstract inscription of universal equality that discloses the political space in which each part can extract itself from its organic medium, affirm its non-coincidence with itself and claim a direct access to universality.
While the critiques of human rights have always accompanied the institution of these rights, the stakes of these critiques varied considerably depending on the historical context and on the politico-philosophical stance of their authors. Thus, while early critiques have accused the individualism and abstraction of the human rights and tried to put back the emphasis on society and the existing political order, which can only guarantee their partial enforcement, more contemporary critiques have blamed precisely their dependence on the existing political order and accused their false universalism as merely disguised particularism.