This article is part of our April theme, Human Rights Critiques.
By Justin Clemens
The world-historical events that blasted talk about “rights” out of the studies of scholars and the salons of intellectuals were the American and French Revolutions. These revolutions established rights not only as key moral and metaphysical issues, but also as popular grounds for mass political action. Take the unprecedented Declaration of the Rights of Man and the Citizen adopted in 1789 by the French revolutionaries. The Declaration asserted rights to be secular, universal, and inalienable, the immutable property of humanity – and therefore essentially directed against inherited authority, existing social mores and tyranny.
One of the stunning things about these declarations is how quickly their own adherents moved through the contradictory possibilities that such declarations opened up. First applied to a stratum of adult male property owners, radicals immediately (and justifiably) raised strong concerns regarding the rights of women, slaves, non-Europeans, and so on. The radical Jacobins who briefly assumed power over the National Convention abolished slavery in the French colonies in 1794; but they were also the first “terrorists,” enthusiastically executing thousands with the new industrial device that was the guillotine. “Rights” began as a Janus-faced instrument, able to be directed against the depredations of monarchy while providing new justifications for massacre.
From the first, the contradictions inherent in rights discourses were expressly articulated and actualised: rights were for all people/only for some people, for emancipation from oppression/for new forms of oppression, inalienable/constantly alienated, and so on. As the Italian philosopher Giorgio Agamben comments:
“It is almost as if, starting from a certain point, every decisive political event were double-sided: the spaces, the liberties, and the rights won by individuals in their conflicts with central powers always simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves.”
This political paradox has not yet been resolved.
The most incisive contemporaneous critics of the Revolution did not hesitate to attack the very concept of “rights” as an inimical force. Could there be a more succinct or more scornful dismissal of human rights than Jeremy Bentham’s? Bentham is the so-called “Father of Utilitarianism”, that is, a technocratic doctrine of “the greatest good for the greatest number”, to be calculated by quasi-mathematical means (the famous so-called “felicific calculus”). In a text originally titled Anarchical Fallacies, first published in French in 1816 but probably composed in late 1795, Bentham asserts that the content of the Declaration is “execrable trash” and that the very idea of “the natural and imprescriptible rights of Man” is “nonsense upon stilts”.
Even before the Terror, Bentham had been livid about rights. As he had recognised in 1789, anticipating the horrors that he saw as inevitably attendant upon such metaphysical confusions, such a declaration of rights has serious problems. First, it is unintelligible, i.e., its alleged universality conflicts with the particulars a constitution demands. Second, it is simply false, i.e., its claims are clearly not supported by reality. Third, its real-world applications compound and exacerbate disorder, e.g., to keep changing particular laws in line with the supposedly universal nature of rights is to immediately contravene one’s own principles and foment reactions.
For Bentham, the Declaration was not just one metaphysical fallacy among others, but the ultimate expression of metaphysics disastrously injected into reality by revolutionary politics. For Bentham, the content of the Declaration comprised, at best, a set of non-binding moral precepts, but because it presented itself as speaking of “the natural, inalienable and sacred” rights of man, it was utterly compromised.
At the same time, Edmund Burke, a British politician of an entirely different stripe, expressed his objections to the Declaration in his famous Reflections on the Revolution in France. Although Burke had been a notorious supporter of the American Revolution, he couldn’t abide the French: “In the famous law of the 3rd of Charles I, called the Petition of Right, the parliament says to the king, ‘Your subjects have inherited this freedom’, claiming their franchises not on abstract principles ‘as the rights of men’, but as the rights of Englishmen, and as a patrimony derived from their forefathers.” “The Rights of Man?” Burke pretended to ask, only to respond: “Give me the rights of an Englishman!”
Leaving aside the mild irony that Burke was Irish, his point is clear: abstract metaphysical propositions do not have legal, moral or practical purchase. What can and does have bite, however, is the organic development of local freedoms over a long historical period, guaranteed by the ongoing presence of competing institutions, no one of which is able to secure absolute dominion for itself (for instance, monarchy, parliament, the professions, etc.). The rights-saturated abstractions of the Revolution could only entail a terrifying and ungrounded kind of government, one that might at any time become a lethal weapon wielded by the untrammelled whims of its leaders.
While it was the discourse of rights that swept the world in the wake of the Declaration, Bentham and Burke’s objections did not go entirely unheard. On the contrary, as the European empires expanded their spheres of influence throughout the 19th century, aspects of Bentham and Burke’s complaints accompanied the spread of rights. Almost without anybody noticing it, rights discourse came to be articulated with a kind of organic Burkean nationalism, on the one hand, and a technocratic Benthamite moralism, on the other.
This is presumably why so many of the struggles for rights throughout the 19th and 20th centuries have effectively engaged moral outrage in the elaboration of political demands, whether internal to polities (for example, the great feminist struggles since 1789) or in conflicts between nations (for example, in the great anti-colonial struggles in which forms of historically-infused nationalism used rights as the language to redress ongoing injustices in regard to their imperial masters), or upon technocratic felicific justifications to adjust legal machinery to ensure, say, the rights of the child or the rights of the disabled, in the name of a bigger social good.
Perhaps despite appearances, then, modern rights discourses essentially functioned as a paradoxical trinity of competing elements: Universal Rights (from the American and French Revolutions), Organic Nationalism (via Burke) and Utilitarian Technocracy (as per Bentham). What’s strange about this unlikely trinity is that it functioned through the antagonism of its components, each of which contradicted the other two, but which together gave a certain dynamism to their functioning. The Universal conflicted with the National; the Natural conflicted with the Utilitarian; the Organic conflicted with the Technocratic; and so on. Traces of this conflict are still (albeit barely) legible in what is perhaps the greatest modern assertion of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in 1948.
But has the triumph of “Human Rights” since 1948 had unintended, unexpected consequences? Today, when the language of rights is ubiquitous – the lingua franca in which to prosecute all or any claims regarding injustice or inequality – a peculiar triple evacuation occurs.
First, nationalist sentiments have come to be practically separated from human rights discourses, to the point where nationalism itself seems to be an inhibitor upon, if not flagrantly opposed to, the equality of rights.
Second, the idea of a moral good has been entirely reduced to an economic good, undermining any felicific calculus that goes beyond the fiscal.
Third, and perhaps most importantly, the crucial addressee for the language of rights seems to be absenting itself altogether from the claims of rights themselves: whereas the French Declaration had been clear that “the principle of all sovereignty resides essentially in the nation”, contemporary states under conditions of globalisation are no longer nations in this sense; they tend to be deaf to rights except as instrumental rhetoric.
In line with other contemporary commentators, I see a new kind of post-rights discourse emerging and exerting its control: one that is technocratic (but not Benthamite); statist (but not Burkean); and exceptionalist (rather than universalist). The Nazi jurist Carl Schmitt famously asserted that “sovereign is he who decides on the exception”, which means that, no matter the language within which such exceptionalism is couched, the contemporary key to power is once again to undermine and exempt oneself from the law. In such conditions, Hannah Arendt’s analysis of stateless persons as having lost even the “right to have rights” – though these were of course the people who most required them – can now, paradoxically, be extended even to those who are, nominally, citizens of a state.
The role of transnational corporations in this development cannot be under-estimated. Indeed, politics in the first world is itself now being reconfigured along the lines of corporate governance. Because corporations must try to externalise costs in their quest for profitability in an environment of global competition without limit, all invocations of “rights” per se enter into a functional de-ratification at every level. What is important to corporations is a flexible, rapid hierarchy of command, control and communication – certainly not the rights of human beings. The claims of rights have become inaudible to super-state actors, which now try to treat themselves as above and beyond all and any laws.
It may well be that – as the French Revolutionaries believed – the nation is the ultimate addressee and agent for any kind of rights discourse, not least because it (allegedly) sustains the monopoly of violence necessary to give such rights the force of law. But if and when state agents see themselves not as the addressees of claims by their populations, but as adjudicating and administering exceptions to rights by extra-territorial forces, then any attempt to have recourse to rights can only signify an eclipse of their import and a form of frustrated action.
Rights discourses are now of uncertain address, when the putative addressees are decisively resigning from every legal reciprocity to the “people”, and consigning their own leadership to techno-economic interests.
Simultaneously, the moral and political force of the United Nations – as the supposed harbinger of a unified humanity – also comes under attack. As we have recently seen in Greece and Italy, technocratic governments can now be appointed over and above any determination by their own people – and supposedly for the people’s own good. If human rights have any pertinence at all, they need to be administered by experts, not by the humans who are meant to bear those rights.
In such a context, continuing to interpret the situation in terms of “rights” may not be the best course of action. The rhetoric of rights will undoubtedly continue to be used, but perhaps now only – as Bentham thought – to confuse discussions and to camouflage the real operations of exception. Or, even more strongly, the use of rights discourse has itself become an “anti-political principle”.
Bentham’s own suggestion was for a simpler, less-metaphysical determination, which he called “Securities Against Misrule”. Populations always need protection against the necessarily destructive powers of any agency that has freed itself of governmental checks and balances by concentrating decisions in an executive (of whatever kind). This is precisely what the term “security” designates. In this context, Bentham was not simply for state security (singular), but for securities (multiple) against the state itself. Whether such an eventuality is now even possible remains to be seen.