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Language and Freedom in Critiques of Human Rights
Since before the ink was dry on the Universal Declaration of Human Rights, the human rights framework has been the subject of heated criticism. Philosophers have focused their attention on what some see as the ethical impoverishment of a rights-based approach (e.g., Badiou 2002; Taylor 2008). Anthropologists have warned that claims to universalism threaten cultural diversity and that efforts to protect rights too often fail to take local realities into account (American Anthropological Association [AAA] 1947; Englund 2006; Esteva and Prakash 1998). Although some scholars of international relations debate the empirical evidence regarding whether the human rights regime has promoted justice (Simmons 2009; Snyder and Vinjamuri 2003), others decry the deceptive ways it legitimizes and sustains global inequalities in power (Inayatullah and Blaney 2012a).
Should such criticisms be understood as fundamentally opposed to a rights-based approach or as requiring modifications to current practice? In other words, might these critics be satisfied only with the dismantling of the human rights regime, or could they be understood as strengthening it by pointing out areas in need of improvement?
In what follows, I will suggest that the answer to this question depends in part on critics' premises in regard to the relationship between language and human agency. Diverse literatures across multiple disciplines have offered nuanced conceptions of 'agency' and 'freedom' as well as identified problems with these terms. For the aims of this discussion, I use the terms agency and freedom to describe the capacity for reflective insight into one's own ideas and assumptions and the possibility of choice in relation to one's ethical commitments. I suggest in what follows that whether the human rights framework contains irresolvable ethical, cultural and political weaknesses is contingent on how one views the human capacity for self-awareness and discernment in relation to the language in which concepts are articulated.
I first review three common types of critiques of human rights, which I categorize according to their focus on ethics, culture and politics. Given space constraints, I briefly summarize these critiques and the traditions from which they emerge, rather than delve into the complexity of their intellectual orientations and the diversity within each one. I do so to discuss how these critiques are dependent partly on conceptions of agency in relation to language, which I address subsequently. Next, I examine a case study of police officers participating in a human rights course in India that is suggestive of how people may enact a discourse even as they question and negotiate it. I draw on this case to suggest a cautious optimism in regard to the possibility that people are not defined by the ideas that helped to form them. I close with a discussion of how the rights movement might accommodate the ethical, cultural and political critiques, provided one assumes the possibility of some measure of human freedom in relation to concepts and language.
HUMAN RIGHTS AS INSUFFICIENT: THE ETHICAL CRITIQUE
Although they share a sense of the insufficiency of human rights as ethical ideals, these critics occupy two poles: those who mourn the loss of revolutionary politics and those who see human flourishing as rooted in strong institutions, traditions and communities. The former insist that the human rights movement has garnered its strength from the destruction of more radical and hopeful visions of change. The philosopher Alain Badiou (2002, 9), for example, laments that the recourse to rights fails to provide an aspirational ethics. Rights protections proscribe the worst human behaviour but say little about the best. On a similar note, the historian Samuel Moyn (2012) traces how the narrowing of justice to individual political rights was possible only in the regrettable decline of bolder movements such as for economic justice. It is only with the death of movements to transform the political landscape, such critics suggest, that the prevention of the basest actions could seem like the only worthy endeavour.
Philosophers in what is often referred to as the communitarian tradition also lament that a narrow focus on individual rights is a weak substitute for a more all-encompassing ethics. But for them, it is not revolution but coherent tradition that individual rights eclipse. For Alasdair MacIntyre (1981), for example, it is tradition kept alive by cohesive community and the practices that its adherents cultivate that allow the ethical life to flourish. Similarly, Charles Taylor (1992) and Will Kymlicka (1991, 1995) have defended the importance of collective identity against a sole focus on individual rights, based on the reasoning that our affiliations and relationships constitute much of who we are and what makes life good. In an even more daring departure from liberalism, Taylor (2008, 742) warns that rights codes risk valorising justice at the expense of love.
In their focus on radical social transformation or on communities that sustain nonlegalistic ethics, these critiques offer alternatives to liberal rights-based claims. Yet the concerns they express have the potential to complement human rights. Articulated within the liberal tradition, rights aim to protect the ability of people to live out their conceptions of the good life. At a minimum, rights are meant to create safeguards that prevent the intrusion of powerful agents — in particular, states — into the lives of the less powerful. When these protections are routinely and pervasively violated, this may be a — though not the only — reason to call for radical social change such as through revolution. When they are upheld, rights protect the ability of people to live out their more comprehensive visions of flourishing.
One response to the ethical critique, then, is to view it as unproblematic. Many liberal theorists would readily agree that an orientation to individual rights is inadequate for a rich ethical life. Libertarians in particular would argue that liberal societies are meant to protect rights as a kind of negative holding space that its inhabitants fill with their own content (Hayek 1960/ 2013; Nozick 1974). Liberal theorists who see a more active and positive role for the state in ensuring basic rights would also view the political-legal system as protecting, rather than providing, citizens' commitments. John Rawls (1993), for example, famously maintained that liberal societies are made possible by overlapping consensus among citizens' substantive conceptions of the good, but are not intended to fully define these conceptions. So the right to free speech may not for many people be sufficient as an ethical ideal. But that right is meant to secure the ability for those people to articulate freely those ideals that are.
Critics offer a different response. For one, they suggest that people are not capable of separating their private commitments from their sense of the public good, such that a liberalism that is neutral to substantive questions is untenable. Second, they argue that principles free from such substantive premises cannot be found; even if people could achieve such neutrality, it is not available (Sandel 1998; Taylor 1998).
Given such a view, human rights could not be understood as a skeleton on which any creature can be brought to life. Rather, these rights presuppose much that will determine the shape and nature of any conceptions of justice or goodness that spring from their protection. To name only a few of these conceptions: that the individual is the unit that matters, that choice is paramount, that individual suffering is of no value and is never justifiable by reference to the good of something outside the individual, that suffering should always be prevented and that all people deserve the same treatment. Premised as it is on substantive answers to questions about what is just and good, critics argue, human rights compete with other ethical traditions rather than providing the latter with neutral protection. As such a Taylorian conception of love — or any other radically different philosophy of the good — cannot simply be layered over the rights framework.
This confusion between minimalist legal protections and substantive ethics may be intrinsic to the human rights framework, caught as it is between law and social movement. If it was either one of these in isolation, the problem may not arise at all. Domestic criminal law, for example, is not criticized on these grounds. Few people aspire only to refrain from stealing, killing, and raping yet do not feel that laws prohibiting these actions constrain their affirmation of higher goods.
The human rights framework cannot, like domestic criminal codes, rely primarily on a legal regime, however, because the former lacks a global police to enforce its laws. The intergovernmental agencies that produce human rights treaties rely on domestic courts and pressure from other states as well as transnational activist networks to uphold their guarantees (Finnemore and Sikkink 1998; Keck and Sikkink 1999), but these measures are incomplete. It is partly for this reason that the United Nations (2006) aims to spread a 'culture' of human rights; culture is often the only way rights will spread at all. Human rights activists must win hearts and minds because rights must be something people affirm. Without attaining the status of settled domestic law — perhaps the ultimate goal — human rights must give people something to believe in.
As such, human rights reside in a kind of purgatory between minimalist legal framework and rich ethical tradition. As a legal apparatus that aspires to universality, the human rights framework is intentionally limited in what it prescribes. But as a social movement that relies on persuasion in the absence of a strictly enforceable international law, the rights framework must inspire voluntary allegiance. Hence activists and institutions present a moral narrative that draws on themes of salvation, natural justice and mercy. A philosophy that is on one hand about limiting public intrusions into the private sphere to maximize personal liberty is at the same time a movement that calls on people the world over to dedicate their time, resources and concern to those who suffer. It is this uncertainty about its own status as legalistic, minimalist enforcement regime and aspirational ethics that engenders criticisms of overreach and underwhelm.
Hence the human rights regime is not sufficient on its own either to enforce law or define the good life. Like the liberal tradition from which it developed, it is not intended to offer a comprehensive conception of the good. Observations that it fails to offer such a conception then can be accepted as descriptive rather than as undermining the premise of the movement.
However, given critics' argument that a framework of individual rights is premised on particular conceptions of the good, how could it offer protection for different ethical traditions without undermining them? How one answers this question will depend in part on the extent to which people can be understood as exercising some measure of ethical and intellectual freedom in relation to concepts and the language we use to articulate them. I return to this question, but first I address a second and third kind of critique that both lament not that the human rights framework offers too little, but that it imposes too much.
HUMAN RIGHTS AS OVERREACH: THE CULTURAL CRITIQUE
The executive board of the American Anthropological Association (AAA) submitted its critique of moral universality to the United Nations in 1947 as the commission was preparing the Universal Declaration of Human Rights. The board's concern was that such a declaration could not help but fail to respect the diverse ways in which people across the world think about the best way to live. Two premises motivated this concern: First, that 'standards and values are relative to the culture from which they derive', and second, that, 'any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind as a whole' (AAA 1947, 542). In other words, not only are conceptions of the good products of culture rather than transcendent truths, but also because of this, no one conception should be promoted among all people. Therefore, the board sought to remind the UN, 'There can be no individual freedom ... when the group with which the individual identifies as a member is not free' (AAA 1947, 541).
After decades of criticism followed in the same vein, more recently anthropologists have shifted focus away from whether human rights represent an ethics that are or should be universal, to the question of how rights concepts are translated into different contexts (Bajaj 2012; Goodale 2006; Merry 2006). A number of studies suggest that human rights efforts are less effective because their approaches conflict with local realities (Martin 2009; Wilson 2001). This more recent concern follows the same line of thought as previous anthropological objections, premised as it is on the notion that a universal framework insufficiently accommodates diversity. But the prior critique insists that (no matter how good the intention), a universal human rights declaration is wrong in principle. The later concern tends to presume that the principle is good but that the implementation is faulty.
Like the previous critics, these contemporary anthropologists argue in the name of understanding and respecting diverse cultural orientations but strive to make the rights framework more responsive to them. For example, an ethnographer in Thailand critiques human rights efforts to prevent child prostitution (Montgomery 2001). It is too simplistic to assume that parents are forcefully violating their children's rights to be free of such exploitation, she attests, and it is dangerous to protect children's rights by removing them from their families. For one, this violates children's right to remain with their parents. But rights workers must also understand that rather than being forced into prostitution, some children feel compelled to help their parents in this way because of ideals of filial piety. She reasons that children would not prove their loyalty to their parents in such painful ways if they were not impoverished. As such, activists should focus their attention on the whole community's economic rights.
Indeed, many of the more recent anthropological critiques question the importance of political rights given local conditions and concerns. In his provocatively titled ethnography Prisoners of Freedom, for instance, Harri Englund (2006) shows how the discourse of political rights in Malawi enhances the distance between rich and poor and distracts from the struggle against poverty. Others suggest that justiciable individual rights claims are not the best way to realize justice in places with indigenous systems of handling disputes, particularly when those systems are premised on reconciliation (Esteva and Prakash 1998). Still other recent anthropological work examines the distance between elite human rights professionals and the populations in whose name they work, setting off debates about the politics of global versus grassroots activism (Tate 2006).
Both the early anthropological critiques of universal claims and the more recent ethnographic work on how they are translated locally for the most part presume that human rights workers act in good faith and that theirs is a failure of sensitivity more than of intention. Trying to spread the good, human rights advocates may end up doing harm by undermining local beliefs or failing to take local realities into account. Other critics are not so sanguine.
HUMAN RIGHTS AS TOOLS OF POWER: THE POLITICAL CRITIQUE
Some critics argue forcefully that human rights are a tool of oppression not as a result of inadvertent cultural overreach, but because powerful Western countries use them to advance their own goals at the expense of weaker nations. One need only think of what seemed to some observers like a rather sudden concern in the US government about women's rights in Afghanistan as the United States prepared to invade the country; US outrage over the treatment of women under the Taliban was not sufficient cause for intervention before the attacks of September 11, 2001 (Abu-Lughod 2013).(Continues…)
Excerpted from "Critical Perspectives on Human Rights"
Copyright © 2019 Birgit Schippers.
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Table of ContentsPreface / Introduction, Birgit Schippers / 1. Rethinking the human in human rights, Moya Lloyd / 2. "A Performativity Proper to Refusal"? Judith Butler and the Resignification of Human Rights, Ben Golder /
3. Towards a Posthumanist Conception of Human Rights?, Birgit Schippers / 4. The Gender of Dignity, Karen Zivi / 5. Justification, Practice and Queer: global sexuality politics and human rights, Anthony J. Langlois / 6. Borders of Human Rights: Outlines of an Aporetic Critique, Ayten Gündoğdu / 7. Human Rights and Transnational Citizenship, Robin Dunford / 8. Eurocentric and Decolonial Histories of Human Rights, Jose-Manuel Barreto / 9. The Liberal Nature of Critique and Human Nature: Evaluating Critiques of Human Rights, Rachel L. Wahl / Afterword, contributor tbc / Bibliography / Index
+ race/indigeneity / class and economic hierarchy / critical human rights practices