The Absurdity of Human Rights Law

Conceptual incoherence is a feature, not a bug

[In early October of this year I gave a presentation at an academic conference on The Limits of Positive Obligations in Human Rights Law, held at Lund University in Sweden. This post is based on the text of that presentation, with a little information and explanation added for a non-expert audience. It is necessarily a bit more discursive and informal than my regular posts here, and a lot more rambling, for which I apologise. If you find the content interesting, and feel as though you have the chops, you may be interested in a PhD studentship on a related topic, for which I am currently advertising.]

What I would like to talk about today is what I will call the ‘positivisation’ of human rights in a political philosophical perspective. What explains the positivisation of rights? And what kind of relationship between the State and individual does it produce?

This, obviously, requires us to begin at the beginning: what do I mean when I use the word ‘positivisation’?

Let’s start then with what is nowadays really the orthodox theoretical position within academia and in human rights policy circles, which is that the old division of the corpus of human rights into ‘negative’ and ‘positive’ variants was a fake one, and that all rights are basically part of the same corpus.

To briefly sketch out some of the history of human rights law, then, immediately after the Second World War and for some decades following, the world was divided over the question of whether human rights were to be understood as ‘negative’ (i.e., purely constraining State action) or ‘positive’ (i.e., requiring the State to act). This stemmed from a well-known ideological division between liberal West and communist East: whereas in the West human rights were thought to support individual freedoms from torture, censorship, discrimination, etc., in the East they were thought to support collective claims that were held against the State to provide schooling, housing, food and so on.

This resulted in a bifurcation of human rights law into two separate fields. On the one hand were so-called ‘civil and political’ rights (the rights to due process, freedom of speech, freedom of association, and so on), and on the other were the ‘economic, social and cultural’ rights (such as the right to work, the right to education, the right to social security, and so forth). Although in the end most countries in the world adopted both frameworks, the USA only ever recognised the former category and the USSR only ever recognised the latter, and still to this day the USA only accepts the existence of civil and political rights while China (Hong Kong excepted) only accepts the existence of economic, social and cultural ones.

This division has always bothered human rights advocates in the West, who for the most part, being on the ideological left, have long advocated the realisation of economic, social and cultural rights in their own jurisdictions. And so, particularly after the end of the Cold War, a concerted doctrinal and theoretical effort has been made to unify all human rights under the same umbrella and insist that they are all (as the slogan goes) ‘interrelated, interdependent and indivisible’. There is no meaningful distinction, according to contemporary human rights orthodoxy, between ‘negative’ and ‘positive’ obligations - all human rights encompass both.

This requires a little unpacking. On the one hand, philosophically, the idea is that the project of realising human freedom not only requires the State to refrain from oppressing its people, but also requires it to provide the material conditions within which freedom can be properly realised. Hence for instance the insistence of Sandra Fredman, a prominent contemporary human rights theorist, that:

[H]uman rights hold out more than just the promise of freedom from State interference with their exercise. Human rights are based on a much richer view of freedom, which pays attention to the extent to which individuals are in a position actually to exercise those rights.

To put the matter crudely with a simplistic example, for somebody like Fredman (who represents the current mainstream view in human rights circles) it is no good just having, say, freedom of speech if that only means the State cannot suppress speech. Actually, to properly ‘exercise’ freedom of speech the individual must be equipped by the State with the necessary literary skills and education in order to express him- or herself fully.

Doctrinally, this has meant the collapsing of the categories of ‘negative’ and ‘positive’ rights, so that all human rights are nowadays thought to have both qualities. Hence, for example, the right to freedom of speech is thought not just to require the State to refrain from restricting speech, but to impose an obligation on the State to ensure that everybody in its jurisdiction is able to speak freely. Obviously, this does not just mean a hands-off approach - it is as much about encouraging some voices, and quietening others, as it is about simply refraining from interfering with speech.

This has led to the elaboration of the doctrine of ‘respect, protect and fulfil’. The idea here is that the State must respect each discrete right in the sense of not violating that right; it must protect each discrete right in the sense of ensuring that people do not violate each other’s rights; and it must fulfil each discrete right in the sense that everybody must be in a position to ‘enjoy’ the goods that the relevant right is supposed to secure. Hence, as the Maastricht Guidelines of 1997 put it (this was originally in relation to economic, social and cultural rights but nowadays the logic applies across the board):

The obligation to respect requires States to refrain from interfering with the enjoyment of […] rights. Thus, the right to housing is violated if the State engages in arbitrary forced evictions. The obligation to protect requires States to prevent violations of such rights by third parties. Thus, the failure to ensure that private employers comply with basic labour standards may amount to a violation of the right to work or the right to just and favourable conditions of work. The obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. Thus, the failure of States to provide essential primary health care to those in need may amount to a violation [of the right to health].

And this is related to the idea, previously mentioned, that human rights are ‘indivisible, interdependent and interrelated’ – the notion here being that if we’re going to respect, protect and fulfil human rights, then it all has to be done tout court. You can’t, for example, have a rights-respecting state that does not torture people but which doesn’t provide, say, social housing, because the right not to be subject to torture and the right to housing are somehow all part of the same coherent rights-respecting whole. To cite from an article that I just happened to be reading the other day, chosen only because it is so representative of the mainstream view:

[T]he vision of a comprehensive human rights system was built on the understanding that, in order to guarantee the dignity of the human person, all human rights should be reached. In this way, the integral human rights system is established where the violation of one of them, either civil or political right; or economic, social and cultural, damages the achievement of the others.

The position then, in UN circles, is nowadays then that, to quote Michelle Bachelet, the previous UN High Commissioner for Human Rights, the goal has to be that ‘all human rights are achieved for all’. It’s all the same project - all rights, civil and political, economic, social or cultural, are to be realised together in lockstep and are indeed mutually supportive and sustaining - and crucially the State has an active role in realising all of them. There are no rights which are purely ‘negative’ and hence merely requiring a ‘hands-off’ approach. All rights have to be secured and all rights have to not just be respected, but protected and fulfilled, and therefore require extensive intervention by the State in society.

This has two clear consequences. The first is the State for obvious reasons necessarily gets bigger and becomes more interventionist. The second is that the scope of positivisation of rights – the extent to which they are thought to justify State intervention in society in order to secure some good or other for some individual or group of individuals – also gets bigger. We have to make sure that all human rights are achieved for all, and this includes making sure that all human rights are fulfilled for everybody, and this is really what the task of the State is all about with respect to human rights in practice.

Now, this is patently absurd - a fig leaf that covers a whole host of zero-sum trade-offs that simply cannot be wished away. But let’s just park the absurdity for a moment, because it will become important later on. Let us for a moment think purely about the effects.

And specifically I want to talk here about the effects on the State. I mentioned just now that the developments I have highlighted all point towards an ever-increasing role for the State in society. I’d like to dig into that subject a little more deeply, and it’s helpful here to adopt a thought experiment of Antony de Jasay’s.

De Jasay, for those unfamiliar with his work, suggested that it was useful in understanding the modern State to imagine it as a single person, with motives, desires, impulses and emotions the same as you or I. This was because the State can be thought of as really an aggregate of the motives, desires, impulses and emotions that are in the individual hearts of all of the men and women who are in positions of authority in its employ. And as de Jasay pointed out, this simply creates a natural tendency within the State to expand. The default position is to grow, for the obvious reason that people rarely want to reduce or limit their own power or status, and generally fight tenaciously against any attempt to deprive them of it.

But let’s put this in more political philosophical terms by thinking about the situation in which government finds itself in modernity – with particular reference to the position of Machiavelli and the so-called ‘antimachiavellian’ body of literature that developed in response to his thinking.

Northern Italy of the late 15^th and early 16^th century was described by JGA Pocock as a ‘mental world’ in which political power was ‘fragile and morally questionable’. This is because, bluntly, it was chaotic – a war-torn patchwork of many different polities, many of which having come into being recently or under the rule of lords who had recently seized power or usurped it. And Machiavelli therefore had a clear idea that government was ‘contingent’. His interest in The Prince was in addressing rulers with contingency in mind – that is to say principi nuovi, new princes, who had come to power afresh (with apologies to Will Smith) – as opposed to principi naturali, ‘natural princes’, who were legitimised on the basis of heredity or tradition, or indeed theology in the sense of natural right. This means his advice can be boiled down to what the antimachiavellians, most prominently Giovanni Botero, called ragion di stato or raison d’Etat: the form of reason which justifies the ‘founding, conserving and expansion of dominion’.

A very influential branch of Machiavelli scholarship has drawn particular attention therefore to Machiavelli as a harbinger of modernity, because the ‘mental world’ which he inhabited can be said to foreshadow the mental world of the modern understanding of government. This is because, to moderns, government is always ‘new’ in the sense that moderns can never accept inherent or intrinsic justifications for the position of the ruler. Modernity, in political terms, is a long story in which every conceivable basis for the existence of a principi naturali or anything like it is rejected in thoroughgoing terms. We do not accept divine right, we do not accept tradition, we do not accept feudal law, we do not accept primogeniture as being rationales for the existence of government. The rationale has to come from somewhere else.

So, since modern government is new, it is faced with Machiavelli’s quandary and the reason why, on its face, his advice was being offered. Given that government is new, and therefore contingent, and therefore lacking in an inherent or intrinsic justification for its persistence, how is it to ensure that it indeed persists? What is the rationale, to repeat, for the founding, conserving and expansion of dominion?

Michel Foucault’s answer to this was, in essence, that what you do is nothing less than constructing the modern State – understood not as a Nietzschean ‘cold monster’ which imposes itself on society, but as a set of ‘reflective practices’ deriving from the need precisely to govern. To unpack that, the modern State derives its justification, and its rationale, from the fact that it governs. Lacking intrinsic or inherent justification, it makes a plea for extrinsic justification instead. And this consists of a promise which also must be understood as having emerged in modernity, directly as a result of the Scientific Revolution and the Enlightenment, to make the material and moral conditions of the population better. It became possible in modernity to imagine that task was achievable and necessary. And this because in effect the cause of the State and the foundation of raison d’Etat: the State exists, and is justified in existing, because it governs. It makes the world materially and morally better for the population.

Foucault’s insight – and this is really inchoate in his writings on the subject, but no doubt implicit in it – was that this was suggestive in turn that someday the State would itself be superseded by a truly global form of government. Once humanity had gained the understanding that the world itself was something to be materially and morally improved, and once it had come to understand government as being justified on the basis of governing, i.e. on the basis of materially and morally improving the world, it would be inevitable that attention would turn to the foundation, conservation and expansion of dominion over the globe itself. Phillip Cerny has rather neatly labelled this raison du monde – the form of reason which justifies the existence of global government. I rather like Foucault’s coining of the phrase ‘political reason’, which was how he described any form of reason dedicated to the rationalisation of the founding, conserving and expanding of dominion in any sphere, not limited to the State.

So, from all of this, we derive a picture of modern government as driven to present itself as materially and morally improving the world, in order to provide a reason as to why it should exist. That is the essence of political reason. And of course it really brings us back to de Jasay. Anybody who has a role in the functioning of the modern State must definitionally reason in this way, because they cannot rely on inherent or intrinsic justifications for their status.

To use an example that is close to home for an academic audience, whether the universities we work for are strictly speaking public or private institutions, they are lavishly funded and supported by the State. And why is this the case? What is the argument which we use to support ourselves? Well, it certainly can’t be tradition. It certainly can’t be inheritance. It can’t be because God says so – much as we might sometimes behave otherwise. It’s because we (purportedly) make things materially and/or morally better. We have impact, we produce knowledge, we educate, we train, we introduce the young into a marvellous world of intellectual adventure - sometimes - and so on and so forth. And so on and so forth across the piece with respect to every facet of, and every institution within, the modern State apparatus.

So, in light of all of this, it is unusual to encounter a modern State choosing to limit its power through simply refraining from doing things. This is not to say that it doesn’t ever happen, of course. And it is not to say that even in choosing to limit itself in certain ways it will still generally be making a plea to be making things materially better – that was the whole rationale behind the supply-side reforms on either side of the Atlantic that came be referred to as ‘neoliberal’. It is simply to say that by and large, because the State justifies its existence on the basis of governing, it can be thought of as being on a permanent mission to bring society ever-increasingly within its scope of operation. And it follows that global governance, because it too relies on political reason, will function along similar lines – and be driven to grow correspondingly.

The idea, then, that the classical liberal conception of negative ‘freedoms from’, which some conservative critics of human rights law still insist on, would ever last is really for the birds. That was undoubtedly in the heads of at least some of the drafters of the European Convention on Human Rights. But it was never likely to last, and it is obvious that as a matter of theory, doctrine, and jurisprudence that rights would ‘positivise’ over time – and will I think continue to do so.

The really interesting question then really becomes the type of authority which is being created as rights continue to positivise and as we continue to move to a situation in which the State lays claim to be achieving all rights for all.

Earlier on I said that the idea that all rights could be achieved for all was an evident absurdity. I hope I don’t have to spell out why in detail, but anybody who doubts this simply needs to think about the civil rights era in the USA and explain how it is that the freedom of association of racists and the liberties and right to non-discrimination of members of minority groups can be reconciled on the basis of ‘all rights being achieved for all’. The realisation of those two rights within that context can only be achieved through a trade-off - and this is true in countless other cases when one thinks in a detailed way about the relationships between different rights.

Now, obviously this raises the question of how all of the zero-sum trade-offs implied by ‘all rights achieved for all’ are made, and the political choices which will necessarily underpin all of those trade-offs. But I want to focus on the bigger picture. The fact that ‘all rights are achieved for all’ is an absurdity, and yet that it seems to be blithely advancing regardless, suggests that there is something interesting going on here – that we are on a trajectory towards something like the end-state which Alexandre Kojève imagined.

Kojève envisioned a ‘universal and homogeneous state’ as lying at the end of modernity, meaning, let us say, a form of relationship between State and individual in which every single person was made perfectly equal and hence perfectly free. As becomes clear in his commentary on the Outlines of a Phenomenology of Right, Kojève makes clear that the universal and homogenous state would of necessity be ruled by a kind of totalising system of adjudication between competing rights claims. There would be no Marxist withering away of law, but something like the opposite – the complete replacement of the political by the juridical. There would be what Jeff Love, one of Kojève’s biographers, calls ‘a surrogate “instinct” or “program” regulating all individuals completely and finally.’

And, without wishing to oversimplify, that would appear to be something like the proposition which ‘all rights achieved for all’ makes: the constitution of a regime which is predicated on its possessing the wisdom and the capacity to adjudicate trade-offs between the rights that each and every individual possesses in respect of everything. If there is a way to describe the way in which political reason manifests itself through human rights law, then, it would appear to be something like a justification for the founding, conserving and expanding of dominion on the basis of being able to reconcile and balance all of everybody’s rights, in all of their aspects, negative and positive, in perpetuity. The absurdity then, to repeat, is a feature and not a bug, and come what may I think that rights will therefore persist in their positivisation provided indeed that the conditions of modernity so persist.