Human Rights and the Adjudication of Everything

We are not becoming more like China; we are becoming more like ourselves

The Blinded Samson, by Lovis Corinth

Heaven is above all yet, there sits a judge…

-Queen Katharine, from Henry VIII

In my last post, I promised that I would say more about what the ‘human-rightsisation’ (sorry) of everything tells us philosophically about the trajectory we are on. Here, I will do just that.

As we shall see, human rights provide a particularly useful lens through which to examine our predicament. Once we have looked through that lens, we see with greater clarity that our problem is not that we are becoming more like China, as is often said nowadays, or that our institutions have been taken over by a Gramscian ‘long march of the woke’. We are, rather, seeing the consequences of that peculiar Western creation, modern secular liberalism, play out. Indeed, it is much more accurate to say that the creeping totalitarianism which we see advancing across the Western world simply displays what is hidden to us about the very grounds on which we are governed, and have long been governed. This makes the struggle against it truly generational, and foundational. It is not a problem that can be solved by tinkering.

The Sibling Aesthetic

Let me begin, though, by going back to a book which I have mentioned here before - the poet Robert Bly’s The Sibling Society. The title is sufficient for our purposes, and to demonstrate that Bly was hitting on something important. The book diagnoses our problem as being that we have come to see ourselves, and each other, as being akin to siblings - with nobody willing metaphorically to take on the mantle of parent (even, perhaps especially, actual parents). This can be attributed to the atomisation that liberalism ultimately insists on and requires: liberation from social bonds, and hence social ties, and hence sociality as such - and hence in other words from responsibility to anything greater than the self.

This, I think you will agree, makes a great deal of sense as far as it goes. We all intuit what Bly was talking about. Like siblings, the people who make up our societies are insistent on equality. They want very much to know that everybody is being treated in the same way and achieving the same outcomes - and they find it outrageous for anybody to occupy a position of authority over others in the same way that a sibling chafes against a brother or sister telling him what to do. Yet at the same time, also like siblings, they desire very strongly to be primus inter pares - they jostle continually for position, keeping score as to who is winning and losing, and competing for the attention and favour of whoever is the pseudo-parent at any given moment - the State, the employer, and so on.

This, then, is the emotional tenor of our political, commercial and cultural sphere: a mass of squabbling individualistic siblings, all ferociously asserting their right to be treated as what they percieve to be an equal, and all constantly looking to any and every given authority figure to intercede on their behalf if they feel they have been in some way slighted. The result is a strange mixture of abstract equality (everybody parroting Ronald Dworkin’s old line, or something like it, about ‘equal concern and respect’), and concrete self-centredness (I should be more equal than everybody else). We all, I think, recognise this way of thinking - we see it everywhere. One might indeed call it something like the sibling aesthetic: everybody is equal but the world itself nonetheless must bend over backwards to conform to the needs and desires of each and every individual. That these things are mutually contradictory does not seem to pose a difficulty - it even seems to be an important feature of what is going on.

The consequence of the sibling aesthetic is that the entirely justified and understandable campaigns by historically marginalised groups for formal equality, in terms of being treated in the same way by the law, has been superseded by a drive amongst everybody in society to impose their will upon the world under the guise of substantive equality. Because I am a carer, I must not lose my job even though my employer considers it not to be economical; somebody who is not a carer must lose his job instead. Because I feel myself to be non-binary, I must recieve taxpayer funding so that I can have an operation so as to have a penis and a vagina. Because I am an old lady, the government (read: the taxpayer) must do more to protect me from bad weather. Because I am an old man, I must not be offered a chair unless everybody else is being offered one and should be paid compensation if I am. Because I am a refugee and a sex offender, I must not be deported back to Afghanistan because I would suffer worse treatment there as a sex offender than I would here. And so on and so forth. The flimsy premise is that an inequality is being remedied, when actually the argument is that the reified ‘me’ must be given more than my siblings.

On Government and Underwear

So far, so good, but why has this come to pass, and what do I mean to suggest when I say that this is the consequence not of an inchoate Sinification but rather of the realisation of the predicates of Western secular liberalism itself?

Let us think a little bit more about Machiavelli and the early modern ‘break’ with the past. As I have previously argued, at the centre of the modern, secular project is the question of government. What is secular government for, since by definition it cannot merely have been pre-ordained by the theological order of things?

Well, it must precisely be to govern - the secular State exists in order to do things that purportedly could not otherwise be done. For Hobbes, obviously, this meant preserving society against a descent into the state of nature. But the whole thing didn’t simply stop there; if the State exists in order to do things that could not otherwise be done, that is really just another way of saying that wherever an argument can plausibly be made that the world could be in some sense better than it currently is, it follows that the State should step in. Since the world could be better, but is not (the logic goes) then that must be because somebody has failed to make it better. ‘Society’ is not equipped to improve things, and therefore it falls to the State to do so.

Secular modernity itself, then, lacks philosophical constraint on the scope and scale of State power. Where such constraints exist, they are technological, politically pragmatic, or economic (X cannot physically be done; Y is not palatable to the electorate; Z is not affordable). They are not based on principle (the State should not do X, Y or Z).

To illustrate this point: I once had a drunken debate at the pub with a Marxist friend and former colleague about the merits and flaws in left-wing thought. As you can imagine, five or six pints each to the good, we were in the mood to set the world to rights. At some point in the discussion, he blurted out the immortal line: ‘Well, at the level of underwear we can all accept that we don’t want the State to run everything.’ Nobody, that is, wants a world in which the State can tell you that you now have to start wearing yellow y-fronts or a grey one-size-fits-all bodysuit.

But on what grounds should the State be prohibited from doing this? Within a secular modern framework there aren’t really any - beyond, to repeat, the technological, economic, or politically pragmatic. At the moment those imperatives would not suggest State-mandated underwear is imminent. But those considerations can rapidly shift. We recently accepted (well, almost everybody accepted) that the State can make it a requirement for one to go about covering one’s face with a mask. All that needed to happen for that situation to arise was an argument as to why it would make things better if the State did so - and a receptive audience for that argument amongst lawmakers, combined with a sudden ramping up of technological and economic power accordingly. So could we envisage a scenario emerging in which the State sought to mandate the type of underwear that people wear?

There is nothing in principle to stop the modern State from doing this. I don’t suggest it is likely, I hasten to add; rather, I suggest that secular modernity possesses no principled argument why it should not. All we can do is bleat that people should be free to choose, but we cannot explain why - except to appeal to some notion of bodily autonomy or privacy that itself only raises further questions as to why it should exist. And therefore we would have no principled justification for objecting if somebody were indeed to come up with a vaguely plausible reason as to why State-mandated underwear would be ‘better’ than free choice.

(This in a nutshell is what modernity means: lacking a principled argument as to why the State should not tell you what underwear you are allowed to wear.)

Individuating and Equalising

Since the only factors constraining the modern State are technological, economic and what is politically pragmatic, then, the result is that as technological, economic and political opportunities expand, so inevitably does the scope and scale of the State’s governing ambition. All that is needed is an argument as to why any particular intervention would make things in some sense ‘better’. And this is the stall which the modern State, then, sets out to the populace: I am not here to make and keep laws as a reflection of the way in which God makes and keeps laws over creation; I am here to make your life better through my government of society, and that is why you should accept my existence, and put your faith in me.

It is a necessary and inevitable corollary of this promise that it is totally individuated, and totally equalising. To be human, to be alive in the world, is to encounter tragedy and unfairness. All of us, in our individual circumstances, come across situations which justify a kind of rage at creation for its slights and disappointments - unforeseen illness, financial misfortune, uncontrollable events and force majeure; the fact that we are not as good-looking, or tall, or capable, or intelligent, or self-disciplined as we wish were were; the fact that that we came from poor backgrounds or went to crap schools; the fact that we have had more than our fair share of suffering. And for those who are not religious, and therefore lack the teachings of the Book of Job, or the gospels, or the Buddha, etc., to contextualise their tragedy, the idea that there is out there in the world a great power that possesses the capacity to take it away - to make everything better in the most individuated way possible - is of course immensely seductive. The more the State can individuate its government, then, the better for its project.

And that project is made more seductive yet by the notion that, in making everything better in individuated terms, that great power will also be rendering everything equal: it will be remedying the great injustice that siblings feel so viscerally when they get the sensation that they have not recieved their just desert in relation to those around them. As the State makes things better for one individual, then, it must make things better for all - it must drive at all turns toward the goal not only of improvement, but equality. This must be its deep and ineluctable incentive. We do not, in other words, like the ideal of equality because we are nice people. Rather, we push the State towards the ideal of equality because we each of us resent the inequalities to which we feel subject, and because a promise to eliminate those inequalities will inevitably appeal to each and every one of us more fully than could any alternative.

State as Kritarch

It is worth reflecting once again, then, on the contributions of Alexandre Kojève. For Kojève, modernity was on a trajectory, as we have seen, to the universal and homogeneous state - one in which everybody would be exactly equal and in which the only differences between individuals would be cosmetic. To jettison the cod-Hegelianism for which Kojève is famous, this was more-or-less based on the very dynamic which I have here identified: all injustices, slights, misfortunes and inconsistencies being remedied by a vast, regulatory, liberating power that would free us from all constraint, from all wrongs, and for good.

In an earlier post, I said that this was a recipe for the state’s total control over society in the name of ‘liberation’. That was, in retrospect, a slip of the keyboard. The correct way to think about it is not, I think, so much total control, as total adjudication. We are not exactly heading towards a situation in which the State tells us what to do at any given moment. Rather, the future which lies before us seems to be one in which a great judge - what I feel compelled to call a ‘kritarch’ - irons out all purported injustices and inequalities, in such a way as to achieve a full and final levelling effect across the surface of society, such that the tiniest ripple is flattened as in a mill pond.

Kojève provides us with a glimpse of this in his Outline of a Phenomenology of Right. Here he depicts a complete and final system of juridification in which true equality can be realised. To simplify, a society which is comprised of individuals who are equal is necessarily founded in a complete and total system of adjudication. This is so, because otherwise inequalities will always threaten to bubble up and disupt the perfect equilibrium that has been achieved; if individuals are left to their own devices they will inevitably produce inequalities in their interactions. There must therefore be set up a kind of permanent third party to which anybody rendered unequal can appeal in order to provide a resolution through a proper procedure which everybody can accept as restoring equilibrium.

This, of course, must be writ large across the whole of the universal and homoegenous state, with that third party - the State-as-kritarch - constituting a necessary presence in each and every human interaction, directly as actual judge or, much more commonly, indirectly as a kind of lurking, looming presence of which everybody is at all times acutely conscious. Thus we see in the universal and homogeneous state the simultaneous disappearance of politics and the final triumph of law-as-regulation; the only thing that ultimately matters in such a state of being is a total juridical power which is always available to intervene (or threaten to do so) to restore equality between any given individual and anyone else. The end result is that no human interaction is really carried out on a one-to-one basis, because even in their most intimate relations the individuals concerned are aware that the awesome power of the kritarch State is there, hovering over them, ready if necessary to step in.

Human Rights as a Technology of Liberalism

Human rights, which have over time, as I have explained, increasingly taken on the dimension of positive obligations imposed upon the State, are in this sense an almost perfect technology for realising modern secular liberalism’s project. This is because they provide the justification, and the means, for the adjudication of everything to take place. Wherever a given individual has in some sense been rendered unequal, he or she has the right to make a redistributive claim that will force the State to remedy that inequality, either directly or through in turn imposing duties on other individuals (and, ideally, through not having to actually act at all, but by providing, as I earlier said, a kind of lurking, looming presence to which everybody in their conduct always consciously or unconsciously refers). ‘All human rights are achieved for all,’ as the UN Office of the High Commissioner for Human Rights used to describe its purpose - the irony of course being that though this is envisaged as an end goal, really it is a recipe for the ongoing, continual modulation of each and all human interactions, to ensure that no inequality of outcome results, in perpetuity.

What we now see emerging, in the doctrine of the right to protection from the effects of climate change, is in this sense simply an iteration of the same phenomenon. On the one hand, the dynamic is that which underlies all rights claims: because I am old, climate change affects me more than the young, and hence the State must do more on my behalf to bring the positions of old and young back into equilibrium at the surface of that mill pond which was earlier mentioned.

But on the other hand, a new phase is suggested in which the State positions itself as the adjudicator of disputes between the individual and the very world itself - promising to reconcile not merely each and every person with each and every other, but to reconcile the individual with all of creation, such that all of the ills which our inhabited reality foists on us - the fact that we must suffer, and face tragedy, and become sick, and grow old, and in our turn die - are themselves finally remedied. That this is an impossible, indeed hare-brained, idea matters not one tiniest bit. It is the implied promise of the modern project, and that it will never come true is in a sense precisely the point - that is what keeps the project sustained.

The Deepest Roots

What confronts us, then, is truly monumental: nothing less than the mode of governance which necessarily follows where a people have been individuated and atomised through the crucible of secular liberalism, which burns away any sense that the individual is part of a greater whole, and which indeed subjects all forms of the ‘greater whole’ - religion, nation, community, even family - to what Oakeshott called ‘the tribunal of the intellect’ and finds them wanting.

Where a people have become secularised, and ‘liberated’ in this way, then all that is left is the relationship between the individual and the State, and the promise made by the latter that it will solve all problems, heal all wounds, avenge all slights, and smooth over all inequalities. And it is no surprise that the doctrine of human rights should arise in such circumstances as the very vehicle through which that relationship will be modulated and reinforced, as a freestanding body of principles upon which the demands of the individual can rest, and the benevolent power of the State can be bent to meet those demands. What we see in consequence is a strengthening of the individuating and totalising forces which are so evident all around us.

I began this piece by suggesting that this is a problem which cannot be solved by tinkering. It will now be evident why. It is not that I think tinkering is pointless or that policy does not matter; battles can be fought and won, and compromises arranged. But what we face is a situation in which the most fundamental questions about how we are governed need to be raised, and understood - and in this respect it is absolutely no surprise that, wherever one looks around the world, conservative political parties find it almost impossible to make inroads against what it is they face. This is because they face a problem with roots that, in political philosophical terms, go deep, deep down - right into the water table. The issue is not, in other words, ‘woke’ capture of institutions. It is the very earth from which ‘wokeness’ ultimately sprang.

How, then, does a secular, modern, liberal society of atomised individuals come to embrace the notion that there is something greater than the State and its government? How doe such a society come to see that the relationship between the individual and State should be among the least important of all, rather than the one that matters most? How does such a society abandon the notion that the State should indeed ‘govern’ rather than represent? How does such a society reinvigorate its confidence in the ability of ordinary people to make things better on their own, in cooperation with those around them? How in short does such a ‘society’ learn to be a society once more: one that has a past to which we owe gratitude, a future to which we owe responsibility, a present which we love, and which is tied together by shared commitments that are not forced by the State, but which arise through human feeling? And how does it do this in a generous, open-hearted way that is capable of incorporating difference, as any society in the contemporary world must? In short: Son of Man, can these bones live?