By Matthew Moore
Matthew Moore is a postgraduate student at London School of Economics and Political Science.
Human rights are portrayed in legislation as universal, inalienable and apolitical, which diverts intellectual discourse from the discussion of its theoretical, normative principles and the bearing this holds on the human rights corpus’ emancipatory potential. Liberalism is defined by its principles, tracing back to Locke, who reasoned that states hold a duty to protect humanity via upholding the principles of “lives, liberties and estates” (Locke,1988, p.180). Vitally, for Locke these principles are ontologically assumed as natural rights, the realisation of which is sufficient for the emancipation of individuals. For something to be emancipatory, it must, akin to what Trotsky noted “increase the power of man over nature and … [abolish] the power of man over man” (Trotsky, 1938). In order to be considered emancipatory, human rights must be demonstrated as liberating to mankind, while simultaneously being free from coercion in its means and ends, the presence of which would negate the former. This is echoed by Marx who considered emancipation to be located in the individual wherein “individual man” must “reabsorb in himself the abstract citizen” and “man recognise and organise his ‘own powers’ as social powers” (Marx, 1843).
The argument advanced here claims human rights are intrinsically liberal, ontologically and substantively, and that the emancipatory potential of human rights is entirely undermined by this liberalism. The structure is as follows. First, it will be contested that despite academic and legislative claims to the contrary, human rights are intrinsically liberal courtesy of mirroring the Lockean ‘social contract’. Human rights share the liberal ontological assumption of natural rights, and implicitly advocate for liberal substantive principles, namely, property rights (‘estates’), self-determination (‘lives’) and the preservation of free markets, the criteria for individual liberty (‘liberties’). This liberalism is derived from human rights being a project of agency which sets its framework for action within the prevailing order, characterised by these principles, and thus implicitly legitimises and advocates for their reproduction.
Secondly, the significance of human rights’ liberalism will be grounded in the liberal ontology of natural rights being an invalid justification for human rights’ emancipatory potential, as the claim that liberal human rights are self-evidently emancipatory courtesy of their capacity to uphold humankind’s natural entitlements lacks demonstrability and rests on circular reasoning. Moreover, this failure of natural rights unearths a critical issue, for, in successfully presenting liberal principles as universal values, it allows for the movement to be comprehended under the Marxist lens of cultural hegemony as an ideological tool which reinforces the dominant worldview, making the case that human rights’ liberalism renders it coercive in its implementation, and thereby an obstruction to emancipation.
Finally, in addition to being coercive in their means, liberal human rights are also coercive in their ends, as the freedoms offered are paradoxical in that labourers are free to present themselves on markets, but the act of selling their labour freely ensures their enslavement to capital. Furthermore, Liberal human rights are bourgeois rights, suffering from viewing emancipation as achieved through non-interference, rather than in our relationships with others. These substantive points, coupled with the intrinsic liberalism of human rights undermines its emancipatory potential entirely because any attempt to enforce bourgeois rights will reproduce the coercive relations of production, aggravating the structural difficulties rather than emancipating individuality.
Human rights as intrinsically liberal
Mutua (2007, p.25) highlights that the human rights regime “distort[s] the true identity of the corpus,” which makes pinpointing its principles difficult. For instance, Griffin disputes the claim that human rights are tied to liberalism. Contrarily, he suggests there is one sole theoretical claim in human rights legislation, integrated into the UN in 1966, which claimed that “rights derive from the inherent dignity of the person” (Griffin, 2001, pp.5-6). This provides evidence for human rights’ liberalism because the liberal, ontological assumption of natural rights is akin to this claim about humankind’s inherent dignity, with both ontologically asserting self-evident rights as their justifying basis. However, Griffin underestimates the extent of this theoretical, liberal grounding by overlooking the manifestation of the substantive elements of the Lockean social contract being implicitly embedded in human rights legislation alongside natural rights.
Beitz (2003, p.26) insists that the UN Declaration’s framers found “the philosophical … arguments difficult, … [and] the framers agreed to disagree about the theoretical foundations of human rights”. Yet, conflating a lack of conscious theoretical grounding with an absence of it is mistaken. Indeed, Beitz simultaneously and unwittingly exhumes this liberalism in his acknowledgement that the Declaration contains “provisions associated with economic rights and self determination” (Beitz, 2003, p.28). Because, the economic rights he refers to are found in Articles 23-25 of the UN Declaration, and are not apolitical, but are rights which assume, as Mutua notes, “the legitimacy of capitalism and free markets” (Mutua, 2007, p.31). This is essential as capitalism is characterised by the principles of the liberal Lockean ‘social contract’. For instance, it upholds the right to private property (‘estates’), access to free markets, which is the Lockean embodiment of individual liberties (‘liberty’), and the right to self-determination (‘lives’), completing the trio, rendering human rights as substantively liberal.
Moreover, Beitz’s insight holds utility in establishing this liberalism as intrinsic to human rights, for, his claim remains plausible. Indeed, human rights’ liberalism is derived from assuming the parameters of the prevailing order as the framework for action. To illustrate this, by granting human rights within the parameters of the characteristics of the prevailing order, namely capitalism, human rights fall under Cox’s notion of a ‘problem-solving theory’, meaning rights are “value-bound by virtue of the fact [they] implicitly accept the prevailing order as its own framework” (Cox, 1981, p.129). This is significant because it suggests human rights’ liberalism will prevail so long as it assumes the legitimacy of the prevailing order characterised by capitalism. Thus, as opposed to being conscious liberal norms, which therein implies the possibility of altering its liberalism, the underlying assumptions of the Declaration’s economic rights render it intrinsically liberal. Because, by assuming the legitimacy of capitalism, a defining aspect of the prevailing order, and with the capitalist mode of production being one characterised by the Lockean principles of a right to private property (‘estates’) and access to markets, then rights will serve to legitimise and advocate for the preservation of that order, ensuring liberalism is integral to human rights’ furniture. The ontological liberalism of natural rights is also eternal intrinsic to human rights, because, human rights are incapable of defending this substantive liberalism, for, if legislation did, it would concede they are principles rather than rights.
Hence, human rights are substantively liberal courtesy of its problem-solving methodology, and also in its explicit appeal to the liberal ontology of natural rights as a justifying base. Therefore, in order to cogently frame liberalism as critically undermining the emancipatory potential of human rights, this must be reasoned through a critique of the emancipatory potential of the substantive Lockean principles alongside the ontological justification of natural rights.
Human rights’ means as coercive liberalism
The liberal ontology of natural rights implies the emancipatory potential of human rights is self-evident because if natural rights exist, human rights are emancipatory in maintaining the rights which humankind are naturally entitled to. Equally, if the validity of this claim is invalidated, presenting liberal principles as incontestable rights unearths a deceptive element in human rights, facilitating a claim that human rights are coercive in their means, emancipations antonym.
Donnelly and Griffin assert that human rights “are born out of the rights we have as human beings” (Donnelly, 2007, p.282). However, this assertion is impossible to demonstrate. Kant attempts to add a justification, claiming humankind’s rationality holds intrinsic worth, “realised in the adoption of humanity as an end in itself” which is deserving of respect through natural rights (Kant, 1964, p.96). Yet, it does not follow from humanity’s capacity for rational thought that humankind holds self-evident rights. Kant’s argument is undermined by its fallacious circular reasoning, as he ironically appeals to humankind’s capacity for rationality to justify a set of natural rights, but this justification holds no rational basis, due to a lack of capability to clarify or demonstrate it. However, Dworkin critiques this counter-argument, emphasising that “it does not follow from the fact that a statement cannot be proven that it is not true” (Dworkin, 1976, p.81). Dworkin is correct, an absence of demonstrability cannot be conflated with an absence of existence, but, this distinction holds no academic weight. For, as Macintyre notes, Dworkin’s argument can be applied to justify the existence of “witches and unicorns” (Macintyre, 1980, p.69). Even if one concedes that a natural right or a unicorn could exist, proving it is impossible, which ensures that they are asserted as self-evident by Kant, Locke, Griffin and Donnelly.
Cohen contended that ‘bullshit’ in academia stems from an argument holding “unclarifiable unclarity,” that is, lacking clarity due to an inability for clarification (Cohen, 2013, p.4). This reliance on self-evidence renders the liberal ontology of natural rights as incapable of justifying the implementation of human rights, due to reliance on self-evidence rendering them a phenomenon that is impossible to clarify or demonstrate, ensuring defences of them are ‘Cohen-bullshit’. The Cohen-bullshit of liberal ontology is debilitating to human rights’ emancipatory potential in two ways. First, it shows human rights are not self-evidently emancipatory due to upholding the liberal natural rights of mankind, with the illegitimacy of this liberal ontology ensuring human rights lack a concrete justification. This forms the basis for our second point, for, utilising the liberal ontology of natural rights “as if it could provide us with a rational criterion is to resort to fiction” (Macintyre, 1981, p.70). This is critically debilitating to the emancipatory potential of human rights when combined with the knowledge that UN Declaration acts “as though such documents are the final truth, [implying] that questioning its doctrine is perverse and unwelcome,” unearthing a distinct purpose to commit Frankfurt-bullshit (Mutua, 2008, p.30). Frankfurt-bullshit is a desire to persuade regardless of the truth, and the process of the human rights regime utilising Cohen-bullshit argumentation as a means of justifying and presenting substantive liberal principles as incontestable morality is Frankfurt-bullshit (Frankfurt, 2005, p.19). This Frankfurt-bullshit excavates human rights as a project concerned with persuasion, rather than truth, allowing for it to be conceived of under the Marxist theories of cultural hegemony and a tool in the reproduction of the ruling ideology, which implies that human rights’ liberalism renders the project’s means as inherently coercive, which is the opposite of emancipation.
Gramsci’s theory of ‘cultural hegemony’ notes the capability of the ruling class to enforce their worldview as the dominant worldview, under which its participants perceive the dominant ideology, the status quo, as a given, in spite of the fact that the order will be aligned with ruling class interests (Gramsci, 2014, p.506). This force ensures that this dominant ideology is reproduced, catalysing the “interpellat[ion] of individuals as subjects” of ideology (Althusser, 1970, p.188). These theories are applicable to illuminate the coercive implementation of human rights, demonstrating that its liberal embeddedness renders them a hegemonic and ideological tool. Gramsci viewed the state as the force of cultural hegemony, not institutions. But, as Cox notes, institutions are “an expression of hegemony, [but] cannot be taken as identical to hegemony” (Cox, 1981, p.137).
Evidence of the UN, the human rights project’s legislative embodiment being hegemonic is found in an examination of its policy. When the UN was formed, its stated primary aim was the maintenance of peace. This is consistent with Cox’s claim that “institutions … initially encourage collective images consistent with the power relations… [of] a particular order” (Cox, 1981, p.136). Yet, since the early 1970s, the UN has decreased its budget for peacekeeping relative to an increasingly dominant emphasis on “economic development and cultural exchange” (Meisler, 2011, pp.167-8). This economic development and cultural exchange involves advocating for access to markets and property rights across the globe via policy levers inclusive of multilateral aid and humanitarian interventions. These values are the same liberal principles which were previously demonstrated to be implicitly embedded in the UN Declaration of Human Rights’ economic rights. Hence, advocating for economic development and cultural exchange serves to advocate for the liberal human rights globally. Thus, the UN, the legislative and enforcing entity of the human rights project “become[s] the anchor for hegemonic strategy since they lend themselves to the universalisation of policy” (Cox, 1981, p.137).
Therefore, the UN does not enforce human rights via the discourse of justifying its substantive liberal free market principles, or a defence of property rights, but through ‘economic development’ which implicitly legitimises and advocates for these substantive liberal principles. In doing so, the UN not only entrenches the ruling ideology but ensures the reproduction of ideology by deceptively presenting these principles of the prevailing order as a given, unearthing the sinister coercion in human rights which is incompatible with its emancipatory vision.
Human rights can thus be critiqued on the grounds Horkheimer dismissed authoritarianism, for, they attempt to be “commands … [which attempt to] dispossess man of his own conscience” (Horkheimer, 1993, p.86). Because, the implicit advocating of these liberal freedoms and globalised spread of them “become[s] a command to conform to the social order based on commodity exchange, to the legal forms that rule it, the representations that justify it, and the practices they call for” (Bidet, 1970, p.27). This is critically undermining to human rights’ emancipatory potential because the coercive ideological interpellation of individuals is intrinsic to human rights’ adoption. For, the subject of ideology can “enjoy his symptom only as its logic escapes him – the measure of the success of its interpretation is precisely its dissolution” (Zizek, 1989, p.21). In other words, the success of liberal human rights’ implementation hinges on coercion because the concession of rights as principles rather than natural in turn concedes that human rights are principles as opposed to rights. Contrary to being emancipatory, the liberal principles embedded in human rights ensure its coercion as the regime must necessarily present these liberal values as the incontestable rights of man based on the Cohen-bullshit of the liberal ontology of natural rights. Liberal human rights which assert the validity of property rights and individual liberties to represent oneself on markets inhibits one the individual liberty to disagree with this form of freedom. Thus, liberalism in human rights is undermined by its implementation, which is, as Gramsci notes, “bureaucra[tic] … crystallization of the leading personnel which exercises coercive power, and at a certain point becomes a caste” (Gramsci, 2014, p.246).
However, criticism of this reasoning, like Botting, claim that “human rights may be unicorns, but they can fight wicked witches” (Botting, 2016, p.65). This implies that the focus on coercive means overlooks the emancipatory potential in human rights’ outcomes. Moreover, Beitz dismisses natural rights, but upholds their ability for “remedying injustice” (Beitz, 2003, p.38). However, while “a means can be justified only by its end … the end in its turn needs to be justified” (Trotsky, 1938). Thus, the response to these critiques is to counter them by extending the argument, contending that the ‘ends’ of human rights that Beitz and Botting hail are not emancipatory, and that the freedoms offered by liberal economic rights are barriers to human emancipation, rather than the guarantor and embodiment of it.
Liberalism rendering human rights untenable in its ends
Charvet and Kaczynska-Nay claim that if granted liberal rights, “human beings…are able to take major decisions for themselves [and] it [is] wrong to subject them to the coercive authority of others” (Charvet and Kaczynska-Nay, 2008, p.317). Yet, human rights are a ‘coercive authority’. To illustrate this, human rights are rights to non-interference, which view emancipation as found in our restraints from one another, rather than in our relationships with others. Marx expands, suggesting “none of the so-called rights of man … go beyond egoistic man; an individual withdrawn into himself, into the confines of his private interests and separated from the community” (Marx, 1844). Indeed, ‘lives, liberties and estates’ are means for pursuing private economic interest, which illuminates a paradox in that for those without capital, these liberal freedoms granted under human rights allow them to sell their labour ‘freely’, but in the process, loses their freedom because, as Zizek illuminates, “the real content of this free act of sale is the worker’s enslavement to capital” (Zizek, 1989, p.21). These liberal rights are bourgeois rights, which reflect the interests of the dominant class, ensuring human rights are exposed as coercive not only in their means, but the freedoms themselves are paradoxically coercive. Indeed, “every ideological universal” including human rights to individual liberty, self-determination and property rights “are false as it necessarily includes a specific case which breaks its unity, lays open its falsity” (Zizek ,1989, p.21). Hence, liberalism’s principles are both integral to human rights and incompatible with emancipation due to its freedoms paradoxically containing barriers to freedom and emancipation.
Charvet counters that those without capital are not enslaved by it because “liberalism protects … the freedom to pursue excellence” (Charvet and Kaczynska-Nay, 2008, p.317). Yet, this claim implies that excellence is achieved through becoming bourgeois, exhuming their faulty definition of emancipation, catalysing further emancipatory issues with liberal human rights. Because, insisting that liberal human rights ensure emancipation through giving citizens aspirations to hold capital assumes the belief that “by abolishing [their] existence as bourgeois, you abolish [their] existence as an individual” (Marx, 1977, p.101). Indeed, for Charvet and Kaczynska-Nay, becoming bourgeois is emancipation’s end, with liberal human rights providing the framework. Therefore, they believe themselves to be “an individual only insofar as he is bourgeois” (Marx, 1977, p.101). By hailing liberal, bourgeois rights to property, individual liberty and self-determination as the embodiment of individuality, Charvet and Kaczynska-Nay tacitly deploy the ontology of natural rights refuted earlier, and consequently, hold no rational justification. Indeed, this identification of private property as the abstract embodiment of the emancipation of individuality, neglects that it is Lockean principles are, as Marx notes, “social relation[s] corresponding to a definite stage of production,” namely capitalism, and could only be considered individual “so long as they have not become fetters of the existing productive forces” (Marx, 1977, p.102).
Moreover, to emphasise this critique whilst accentuating human rights’ liberal freedoms as coercive, Charvet and Kaczynska-Nay neglect that the coercive enslavement to capital is not constrained to workers, but also encompasses the bourgeoisie due to the competitive nature of capitalist markets ensuring “most of the surplus value squeezed out of the workers is not consumed … [but] is reinvested in further production” (Callinicos, 2012, p.127). The bourgeoisie are enslaved into a cycle of continuous production of capital accumulation for its own sake, becoming cogs in the reproduction of the capitalist relations of production, yet Charvet and Kaczynska-Nay hold this as the pinnacle of excellence obtainable through liberal freedoms. Hence, human rights’ liberalism does not lead to emancipatory ends for either bourgeois or proletarians, and therefore cannot reward excellence.
Hence, the final task is to demonstrate that the above ensures liberalism renders human rights entirely incapable of emancipation, a contention subject to criticism by defenders and critics of rights alike. Kolakowski criticises the employment of Marx to disregard human rights’ capacity for emancipation, arguing that “although Marx despised bourgeois rights, he never argued it did not matter whether those rights were valid in bourgeois society” (Kolakowski, 1983, p.85). Yet, bourgeois rights can only be defended within bourgeois society if two assumptions are held. First, that bourgeois rights, despite their flaws, improve the livelihoods of citizens within bourgeois society. Second, one must also assume the presence of bourgeois rights does not act as a barrier to greater emancipation. Yet, Marx proclaimed that “in reality it is a question of revolutionizing the existing world, of practically attacking and changing existing things” (Marx, 1977, p.62). Thus, if Kolakowski’s reading of Marx is correct, Marx was contradicting his own aims, overlooking bourgeois rights as the antithesis to revolutionary, emancipatory change.
The presence of bourgeois rights which improve lives in bourgeois society, simultaneously act to ensure that bourgeois society is maintained and legitimised, rendering human rights untenable as an emancipatory project to an absolute extent. Mutua, whilst recognising the limitations of human rights’ liberalism, objects, claiming this view is “an abdication [which] … seek[s] to paralyze ourselves intellectually, so we have a rational excuse for doing nothing … this is cowardly [and] nihilistic” (Mutua, 2007, p.19). Yet, Mutua does not justify that this nihilism is misdirected, and suffers from a phenomena Horkheimer noted of the “self-imposed obligation to arrive at a cheerful conclusion … [and] effort to meet this obligation is one reason why a positive conclusion is impossible” (Horkheimer, 1993, p.87). Because, reconstructionist arguments like Mutua’s insist on trying to remedy the symptoms of the disease in the short run, proposing that African countries require “direct foreign investment, aid, and better trade terms” but in the process, Mutua’s proposals reinforce the liberal principles of human rights and serve to aggravate the structural issues (Mutua, 2008, p.37). Mutua is ‘utopian’ because reconstructionists strive for a society which operates “without the point of exception functioning as its internal negation” (Zizek, 1989, p.23). While one can sympathise with human rights’ utility in improving lives in bourgeois society, this cannot be conflated with being emancipatory. Because, these rights, to quote Wilde, are akin to “slave-owners … who were kind to their slaves, and so prevented the horror of the system being realised by those who suffered from it, and understood by those who contemplated it” (Wilde, 1891).
As clarified earlier, if the end of human rights is to justify as emancipatory to any extent it must, as Trotsky notes, “increase the power of man over nature and … [abolish] the power of man over man” (Trotsky, 1938). Due to its liberalism, human rights fail to this end. While they hold a capacity to dilute problems of the structural issue, they remain a barrier to emancipation courtesy of reinforcing its liberalism, and the coercive practices and paradoxical freedoms it offers – an issue which can only be sufficiently overcome by abandoning the project by reconfiguring the world order. This sounds utopian, but in a different manner to Mutua, because the analysis suggests this is the only sufficient solution, having demonstrated the incompatibility of human rights’ intrinsic liberalism with achieving emancipatory ends. In the human rights projects’ attempts to partially alleviate the issues derived from the paradoxical liberal freedoms offered by it, those liberal, paradoxical freedoms continue to be legitimised and reinforced, ensuring liberalism entirely undermines the emancipatory potential of human rights.
Human rights are intrinsically liberal, substantively and ontologically, and this liberalism entirely undermines the emancipatory potential of human rights. First, it was demonstrated that human rights are liberal as they share the ontological assumption of natural rights and implicitly advocate for the substantive Lockean principles of ‘lives, liberties and estates’ courtesy of its problem-solving methodology which assumes the legitimacy of the prevailing order characterised by a capitalism as the framework for action. This rendered its liberal features as eternal to the corpus’ identity.
Secondly, it was established that the human rights regime’s justificatory base is reliant on a defence of the liberal ontology of natural rights, a phenomenon which was categorised as Cohen-bullshit due to lack of demonstrability and clarity. This demonstrated that the human rights regime’s liberalism renders it incapable of rationally justifying its emancipatory capabilities. Moreover, this Cohen-bullshit base was demonstrated to hold a distinct purpose to present liberal principles as incontestable morality which unearthed a deception in human rights’ implementation which allowed for it to be conceptualised under Gramsci’s notion of cultural hegemony and Althusser’s ideological apparatus. Thereby, it was demonstrated that human rights’ liberalism renders it a coercive project in its means which interpellates individuals into subjects of ideology, which cannot be defined as emancipatory.
Finally, this was accentuated by arguing that the Lockean liberal principles in human rights hold a misguided conception of emancipation, viewing emancipation as found in our restraints from one another by enforcing non-interference, rather than in our relations with others. Furthermore, in addition to the aforementioned coercion in its means, the liberal principles of ‘lives, liberties and estates’ are also coercive in their ends because of the paradoxical freedoms it offers through individual liberty and property rights, which come into antagonistic conflict with the capitalist mode of production by seeking universality without its internal negation. This ensures that the free act of selling labour removes freedom through enslavement to capital. Thus, the emancipatory potential of rights is entirely undermined by its liberalism, because enforcing these bourgeois, economic rights will reproduce these coercive relations of production, exacerbating the structural issues rather than emancipating individuals from them.
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