Ideological (Mis)Use of Human Rights - David Chandler

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114 D. CHANDLER Introduction Many commentators have observed the fact that human rights frameworks have become an integral part of a new, more hierarchical, international order, undermining UN Charter restrictions on the use of military force and justifying new, more coercive forms of international regulation and intervention in the post-colonial world. To view these consequences of human rights claims and discourses as the ideological ‘misuse’ or ‘abuse’ of human rights would already be to approach the question of understanding human rights with a certain set of assumptions. Th ese assumptions would be based upon an idea that human rights claims necessarily challenge entrenched power relations and are an important mechanism of advocacy on behalf of the victims of abuses or those excluded from traditional frameworks of representation. Th is chapter will suggest that these prior assumptions, of the ‘purity’ of human rights claims and of their ‘abuse’ by powerful actors, are themselves problematic. Human rights claims can not in themselves be accurately seen as either enforcing or challenging the existing relations of power. Th e one thing that can be asserted with confi dence is that human rights claims confl ate an ethical or moral claim with a legal and political one. Th e discourse of the ‘human’ belongs to the sphere of abstract universal ethics, while that of ‘rights’ belongs to the framework of a concretely constituted legal and political sphere. In confl ating the two spheres, human rights claims pose a challenge to rights as they are legally constituted. Th e content of this challenge, whether it has any consequences, and, if it does have consequences what these consequences are, are matters for concrete analysis. To suggest that any challenge to the framework of legally constituted rights is necessarily an eff ective one, or necessarily a good or progressive one, would clearly be naive. In fact, it was the challenge of naivety that was famously articulated by Jeremy Bentham, the utilitarian philosopher, when he denounced the idea of human rights as ‘nonsense on stilts’ (see Chapter 1). He had nothing but contempt for the new-fangled universal ‘rights of man’ proclaimed at the end of the eighteenth century. For Bentham, rights meant nothing unless they were enforceable with clear contractual obligations and backed by law. Declarations of the ‘rights of man’ were no more than rhetorical fancies and collections of pious wishes that were not worth the paper they were written on. Th e idea that we were born with universal equal rights simply because we were human made no sense to Bentham. Firstly, we are born into a relationship of dependency rather than equality, and are not considered as moral or legal equals until we reach maturity (children are not born with criminal liability as they are not responsible for their actions). Secondly, it was clear that there could be no universal human equality: the opportunities we have depend fundamentally on the societies we live in and our position within those societies. However, few people would have the confi dence to argue in Bentham’s dismissive terms today. It would appear to be undeniable that our understandings of and respect for human rights are central to the way we and our governments make policy and act in international aff airs. Yet, despite today’s consensus on the fact that ‘human rights are a good thing’, there is still the nagging sense that Bentham may have a point, that human rights may sound very nice on paper but be much more ephemeral when it comes to giving these aspirations meaning and content, and that, nice as these claims sound, they may be open to abuse. Claims to anything can be abused and all claims to rights can be misused. However, it is vital to appreciate that it is inherent within human rights claims that they are more open to abuse or misuse than other claims, those of democratic and civil rights for example. Th e reason for this, in the words of Norman Lewis, is quite simply because human rights are not derived from ‘socially constituted legal subjects’ (Lewis, 1998, p. 85). Where Bentham saw abstract rights claims as merely childish or superstitious thinking, much as the ‘belief in witches or unicorns’; their abstract nature—the fact that they can refl ect radical and progressive aspirations rather than merely legally enshrined rights—is held to be a major factor in their use and support across the globe. Th is chapter is tasked with focusing on the downside of human rights claims—what is commonly understood by advocates of human rights to be the ‘misuse’ or ‘abuse’ of human rights. It will be demonstrated that the 08-goodhart-chap07.indd 114 12/9/08 3:05:54 PM
ambiguous and abstract nature of human rights claims is at the same time their point of attraction but equally makes the opportunity for ‘abuse’ a constant one. Unfor- Human Rights and the Legal Subject Th e discourse of human rights has a pre-history in terms of the claims of natural rights from the Enlightenment onwards where claims of a universal human nature were an essentialist grounding for ideas of individual equality and self-determination, which challenged the aristocratic and feudal social and political hierarchies (see Box 7.1). Natural rights claims are therefore seen at the centre of the revolutionary movements of liberal modernity: the Declaration of the Rights of Man and of the Citizen of the French Revolution and the Declaration of Independence and the Bill of Rights of the American Revolution. With the development of more social and historical frameworks of thinking, expounded by theorists such as Emile Durkheim, Max Weber, and Karl Marx, the idea of natural rights was discredited (see Chapter 6). In its place was a consensus of understanding that rights were social and political products, dependent Box 7.1 Sophocles’ Antigone: Ethics vs Law The conception of human rights can be dated back to ancient Greece and the work of the famous playwright Sophocles. To quote the US State Department pamphlet, ‘Human Rights and US Foreign Policy’, published in 1978: The idea of human rights is almost as old as its ancient enemy, despotism. . . . When Sophocles’ heroine Antigone cries out to the autocratic King Creus: ‘all your strength is weakness itself against [t]he immortal unrecorded laws of God’ she makes a deeply revolutionary assertion. There are laws, she claims, higher than the laws made by any King; as an individual she has certain rights under those higher laws; and kings and armies—while they may violate her rights by force—can never cancel them or take them away. (Cited in Sellars, 2002, p. vii.) This is an excellent example of the essence of human rights claims: legal rights are equated with power and oppression and challenged in the name of a non-legally constituted rights subject. IDEOLOGICAL (MIS)USE OF HUMAN RIGHTS 115 tunately, for the advocates of human rights frameworks, their openness to abuse is not incidental but is intrinsic to the concept of human rights themselves. on the state and society in which the individual lived. Concrete rights of citizenship replaced the abstract conception of natural rights. Twentieth-Century Critiques For the leading political theorists of the twentieth century, the idea of human rights as universal claims made no more sense than it did to Jeremy Bentham. Writing in 1950, in the aft ermath of the Second World War, Hannah Arendt remarked that the Holocaust demonstrated the abstract and meaningless nature of the concept of human rights (see Box 7.2). Where Jews were denied the rights of citizenship—their political status—they were forced to fall back on the abstract claims of human rights. In doing so, their status was transformed from active decision-making political subjects to objects of the charity or benevolence of others. For Arendt, what makes us human and rights-bearing subjects is not our bare humanity but our capacity to create rights-bearing and rights-giving political communities. Th e lesson of the Holocaust, for the Jews, was not the need to give more attention to human rights, but the need to ensure the political rights of citizenship, achieved through the struggle to establish and safeguard the state of Israel. Arendt makes the point here that human rights are ‘fi ctional’ rights: they are rights that are not dependent on the collective agency of their subject (Chandler, 2003). Individuals ‘freed’ from the political process of collective decision making no longer have an active say in what their rights are or should be; at most they are lobbying or begging others for favours and place themselves in a situation of dependency. For Arendt, the rights of the ‘human’ are much less than the rights of the ‘citizen’. Th e bearer of merely ‘human’ rights is subordinate, dependent, and in a position of supplicant to others. Th e response to these rights claims is there- 08-goodhart-chap07.indd 115 12/9/08 3:05:55 PM
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Ideological (Mis)Use of Human Rights - David Chandler

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