1. Seligman and Montgomery’s essay raises some significant philosophical and political questions regarding the impact of human rights on the development of civil society. Under the first profile, the authors argue that advocating human rights as “the primary vehicle through which we articulate our shared moral vision” may have “unintended consequences which can be destructive of the very communities they purport to protect”; under the second, they argue that this same insistence on human rights is one of the causes of “current rise of authoritarian, xenophobic, often racist and certainly anti-liberal leaders and political parties” in many parts of the world. A critical analysis of these arguments must therefore address both their theoretical and practical implications. Within the limits of my abilities, I will do so by trying to frame my considerations on Seligman and Montgomery’s writing in a broader perspective, which aims to find a way out of the impasse they highlight. My main argument is that belonging requires rights and vice versa or, to use the language of the two authors, that a community of trust cannot thrive outside the realm of confidence. Now the pendulum, which for a long time has been moving in the direction of individual and universal rights, seems to be returning to collective and particular belongings. It is therefore necessary to find a new point of balance and this requires reconsidering the notion and role of human rights. Without them, however, no community of trust can be imagined.
2. The two authors contrast the universality of human rights with the particularity of the communities of belonging. They write that the emphasis on human rights has led to underestimating other “equally significant human needs and visions of the good” such as “the need for human belonging”. Belonging means “to be member of a particular community, with a particular past, particular stories, smells, tastes, and so on”. Communities of belonging (or communities of trust) “are those of shared moral disposition, familiarity, sameness, and common experiences”; the two authors contrast them with the “realm of confidence”, i.e. a “collective of rights bearers, of dissimilar experience and disparate moral values”.
The question is therefore whether the universality of human rights and the particularity of the communities in which we spend our lives are really irreconcilable: whether, in other words, human rights cannot be considered a value for all people (whatever their race, religion, language, history, culture, etc.) without severing the bond that unites each of these people to a specific community.
This way of contrasting the universal and the particular dimensions of human life seems to me a somewhat poor reading of reality, which is made up of a thick network of daily interactions between one and the other dimension.
Each one of us, even though we live within different and particular contexts, perceives (with the heart, even before reason) that there are certain universal rights and obligations: for example, the right not to be placed in the alternative of abandoning one’s faith or being killed, of educating one’s children in a particular religion or of no longer seeing them. Even the most radical fanatics, ready to impose this choice on “infidels” in the name of their religion, would perceive the injustice of this alternative if it were imposed on them. Perhaps they would die not to betray their faith, but they would do so shouting at the wrong they have suffered. If this starting point is accepted, then the question is how to find the point of confluence between the conception of rights and duties that we develop within the particular community of which we are part and the perception that there is a core of rights and duties that transcends the boundaries of this particular community. In my opinion, the first step in the search for this point of confluence is the awareness that the universal can only be imagined and conceived by starting from a particular experience. This does not mean that it is impossible to imagine and conceive rights and obligations that are universal in the sense that they apply to all human beings. It simply means to be aware that my universal vision cannot be dissociated from my particular experience, as individuals can imagine the rules that could be applied to all human beings and not only to the members of their own community only starting from their own experience. The recognition that it is impossible to think of the universal abstracting from the particular context in which we are immersed has an immediate consequence. It entails that, in their current formulation, also human rights (which represent the highest contemporary expression of the universality of rights) are born within a particular time and space: the time after the Second World War and the geographical and cultural space of the Western world (which at that time was hegemonic within the United Nations). The aspiration to universal rights can be timeless and boundless, as is suggested by the fact that it crosses the whole of human history, taking different names from era to era (ius gentium, natural law, natural rights, etc.). However, the concretization of this aspiration can only be context specific.
If the universal dimension of human rights is genetically linked to the variety of particular histories, cultures, and societies in which humankind is divided, different conceptions and formulations of universal rights and obligations are possible. In this perspective, human rights are the meeting point between the different visions of universal principles and rules developed within particular contexts. I am aware that most of the time this goal is not achieved as the different power relations among political and social actors favor the hegemony of a specific concretization of human rights. However, this is part of the human condition and does not exclude that, in principle, human rights ought to be conceived not as a closed and static legal order but as a process which is constantly evolving through the dialectic between particular experiences and their universal projections. I shall try to explain the difference between these two models of human rights with the distinction used by a Roman jurist of the second century, Gaius, between ius civile and ius gentium. The former is the law which is peculiar to each people, the latter the law which is shared by all peoples. We can understand human rights as the ius civile of a globalized world, that is a set of rights and duties that applies uniformly in all parts of the world. Alternatively, we can understand them as the ius gentium, that is as a dynamic legal process constantly supported and nourished by the legal traditions of all the particular communities that live in our world. In other words, human rights can be conceived as a normative world in its own right, capable of responding to the needs and aspirations common to all humankind, or as the evolving framework within which different normative worlds (generated by the communities of trusts evoked by Seligman and Montgomery) can develop, interact and contribute to the definition of the horizon that includes them. In this perspective, this horizon –that is the horizon of human rights- is constantly defined and redefined through the dialogue between the visions of the universality of rights that arise within these particular legal traditions. It seems to me that this second conception of human rights facilitates a constant exchange between communities of trust and realm of confidence, responding to the concerns of Seligman and Montgomery.
Concluding this first set of remarks, there is no “tragedy of human rights”. There is instead the tragedy of a specific conception of human rights, which ignores the link between universality of rights and particularity of legal traditions. As a consequence, the latter is prevented from contributing to the definition of the former. In the perspective I tried to outline, human rights are not necessarily the tombstone that buries any particular conception of good and justice. Seligman and Montgomery are right to denounce the existence of a drift in the wrong direction and the dangers inherent in the hegemony of a specific concretization of human rights. However, I think they are mistaken when they exclude that a correct conception of human rights may play a positive role precisely in the protection and sustainable promotion of different worldviews and life experiences generated within a community of belonging (or trust). This will emerge even more clearly from the examination of another profile of the universal-particular dialectics, the issue of the limits of diversity.
3. In the second part of their article, Seligman and Montgomery take sides in favor of a “politics of difference” that takes collective differences “as constitutive of individual and their communities; a resource to be preserved […] and a challenge to be met, rather than either ignored […] or erased”. I agree with their appeal and believe that a model of weak legal pluralism offers interesting possibilities to achieve this goal. However, both a politics of difference and a system of legal pluralism must find place within a shared horizon. Can human rights provide it? I am inclined to answer in the affirmative. On the one hand, human rights can play a role in guaranteeing the peaceful coexistence between people who are part of different communities of belonging; on the other, they prevent these communities from adopting practices and advancing claims that are incompatible with the dignity of human beings.
In order to explain the first function that human rights can perform, I shall follow Robert Cover’s line of reasoning. Cover does not speak of “communities of belonging” or “communities of trust” but makes use of the expression “normative worlds” to indicate the social groups (religious, cultural, political and so on) that are capable of producing new narratives and legal meanings (jurisgenesis) through the commitment of their members to translate into reality the worldview that inspires them. We are not too far from the communities of trust and belonging evoked by Seligman and Montgomery. Once explained that these groups play a fundamental “jurisgenetic” role and are the forces of creation of new legal orders, Cover recognizes that each “normative world” can become “unstable and sectarian in their social organization, dissociative and incoherent in their discourse, wary and violent in their interactions”. Precisely because they can degenerate into intolerance, an external force of maintenance and regulation of the system is required “to ensure the coexistence of worlds of strong normative meaning”[1]. This is why, in Cover’s language, the forces that create the world require other forces that maintain it: alongside the powerful forces that produce new legal meanings, the presence of forces that are weaker from the “jurisgenetic” point of view but that ensure the coexistence of different normative worlds is necessary. Cover did not live long enough to know globalization, therefore, in his vision this maintenance role was performed primarily by the liberal nation States. In the new global scenario, the same role needs to be performed at the supranational level and precisely at the level of human rights.
This is not the only function human rights can perform. As already mentioned, they also have the task of providing the horizon within which the creative activity of “communities of belonging” develops. Not all the claims that arise from this activity are acceptable and it is not possible to exclude a priori that some of them collide with the dignity of the human person, both in relation to the members of the community itself (think of the case of dissidents) and to those outside it (think of the case of “infidels”). To avoid these dramatic consequences, it is necessary to identify a limited but strong core of rights and obligations that must be respected by all people, outside but also inside their communities. This precludes the “communities of belonging” from violating some fundamental rights that must be respected always and everywhere, even in a system of legal pluralism. This conclusion applies, for instance, to demands from parents to refuse medical treatments that could save their children’s lives or to subject them to surgery that seriously and permanently damage their physical integrity. Although these demands may be grounded on the tenets of a religious community, they cannot be accepted.
In conclusion, a sustainable “politics of difference” can only develop within a shared horizon. Once, this horizon was the one outlined by the constitutional law of each state. Today it has become more complex because another supranational dimension, that outlined by human rights, has been added to this national dimension. However, without the restraining function of human rights, the risk of a “politics of difference” degenerating into a “politics of conflict” is too great.
4. I have the impression that Seligman and Montgomery’s critical remarks on human rights are the manifestation of a more general misunderstanding of the role that law plays in the regulation of social relations. Therefore, before concluding my comments on the theoretical implications of their thesis, I would like to advance an argument which does not concern human rights but, more generally, the place of law in the construction of a healthy civil society. This time I will take as my guide John Stuart Mill and more precisely, his writing concerning the value of “experiments in living”[2]. Mill believes that different worldviews require a space of “experiments in living” to become socially significant: “the worth of different modes of life should be proved practically” through “experiments in living”. In other words, different conceptions of existence should be corroborated by the practical evidence provided by lives that are lived in accordance to these conceptions. It is these collective “experiments in living” that continuously generate and regenerate the sense of belonging and the sentiment of shared community that Seligman and Montgomery repeatedly mention.
The two authors stress on several occasions that “rights provide no sense of belonging” and “appeal to no sentiment of shared community”. But this is not the task of rights and few, with the exception of some human rights extremists, claim it is. The role of rights is another, that of providing the security that is indispensable for the development of the “experiments in living” of which Mill speaks. Without the security that comes from being holders of inviolable rights it is difficult to take the risk inherent in “experiments in living” and without them the sense of belonging degrades to attachment to roots and traditions. Nobody falls in love with a legal system but many appreciate the freedom and security it can provide for living a life consistent with their beliefs. Here and there, the authors recognize this role of law (“One could well argue that such claims [for the help and mutuality that comes with and within community] can be made only when some minimal rule of law is already in place. And that may indeed be so”), but they refrain from exploring the possibility of synergies between “rights” and “belonging” assuming that they are irreconcilable terms. Instead, I believe that the sense of belonging can be strengthened by a “politics of rights”. Think of minorities. Without rights, minority members are likely to live in fear and fear can easily lead to conceal their identity or manifest it in forms that are antagonistic and unfriendly to the majority’s. In both cases the absence of rights hinders the development of alternative forms of “living together” that are the generating elements of the sense of belonging. In this perspective, the security deriving from the existence of a strong platform of rights can be an asset for the flourishing of communities of belonging.
5. Finally, there are the political implications of Seligman and Montgomery’s critical analysis of human rights. In their view, the overestimation of the role of human rights in the development of civil society is one of the reasons that explain the success of the extreme right leaders and political parties. They have been given the opportunity to draw “upon narratives of belonging to an exclusivist end which leaves a good deal of different societies at risk in ways that ease the naturalization of calls for the eradication of “less-desirables””. The spread of this narrative is a fact, the issue is certainly topical, and I would like to address it from the angle of the process of nationalization of (the majority) religion which is more and more evident in many countries. Slogans like “America first” or “Italians first” have become popular in different parts of the world because they express the need to reaffirm national identity. The nationalization of religion is a component of this broader drive. Religious symbols are a good example to illustrate this trend. Religious symbols are increasingly exploited for political goals: in a country I know very well, the leader of the most important nationalist party does not miss the opportunity to kiss a crucifix at every political rally. He is not a person known for his religious fervor; therefore, it is correct to interpret his behavior as a political strategy to convey the message that there is a direct link between the Catholic religion and the identity of that nation. In another country, a woman has been denied citizenship because she used to wear a burqa, a fact that has been considered as a sign of failed integration in the national society. In both cases –kissing the crucifix and banning the burqa- religion is primarily regarded as a cultural element, an indication that reveals whether a person shares or does not share the cultural values that make up a nation. This process of culturalization and nationalization of religion has a huge impact on religious minorities, which are inevitably disfavored by the tight bond that is established between national identity and the majority religion. As each religion is a minority somewhere in the world, no religion can feel at ease in this scenario.
Seligman and Montgomery carefully distinguish belonging and identity, with arguments that I personally share but which, I fear, have little impact on the field of politics, where the nationalization of (the majority) religion goes hand in hand with the emphasis on the importance of roots, tradition and belonging. Politicians and opinion leaders perceive identity and belonging as one.
In this scenario, what is the only defense to which religious minorities can appeal when they are blamed for not being Italian or American enough? Human rights, and more precisely the rights that guarantee religious freedom and prohibit any discrimination on religious grounds. They may be unable to warm the hearts of the members of ostracized minorities but are the only resource that is left when, in the hands of the majority, belonging and identity become a weapon against them. This is possible precisely because these rights do not depend on sharing a specific culture or belonging to a particular community but are intended to guarantee some minimal requirements all human beings are entitled to. Once again, we are brought back to the dialectic between universal and particular dimensions and to the restraining function that the former can exercise when the latter goes astray.
6. What conclusion can be drawn from reading Seligman and Montgomery’s text? Their central argument is that “abstract, universal and unencumbered human rights” can stifle the need for human belonging. Since it is rooted in human soul and cannot be suppressed, today this need for belonging manifests itself in authoritarian, xenophobic, and racist forms that end up destroying the very values that human rights would like to safeguard. Engaging with communal differences is the remedy that the authors propose to an “ultimately homogenizing politics of abstract human rights that makes of every individual a morally autonomous agent devoid of inherited ties and obligations”. It is a coherent analysis, which explains one of the reasons for the spread of populist and nationalist movements in many parts of the world.
In my opinion, however, this criticism is slightly off the mark. Its target should not be human rights but a certain way of conceiving and translating them into universal standards. Is a society without human rights the correct response to the human rights tragedy? Certainly not, and the authors themselves acknowledge this. However, they do not make a resolute effort to find an alternative conception of human rights that safeguards the spaces of existence of communities of belonging and trust. This may leave the doubt that they do not consider this path to be viable and regard the whole human rights system as inevitably bound to failure.
Once this point has been made, it must be acknowledged that Seligman and Montgomery’s writing has a great merit: that of reminding us that every legal system -including the system of human rights- derives its strength from social realities that are embedded in a particular context and that includes the communities of belonging that are at the center of the analysis of the two authors. Law is not only a system of social control, as Richard Posner claims; it is also a bridge between the present and a possible but not yet realized future, as Robert Cover affirms. This future, Seligman and Montgomery tell us, is not attainable without passing through communities of belonging and trust, which are capable of elaborating an alternative vision of reality and generating the engagement and commitment through which that vision can be transposed from the field of the possible to that of the real. Human rights cannot and must not be an obstacle to this process of producing law. If the way they are conceived is such an obstacle, we should call architects, not bulldozers, as it is not a matter of demolition but of renovation.
[1] Robert Cover, The Supreme Court, 1982 Term — Foreword: Nomos and Narrative, in Harvard Law Review, 97, 1983, p. 16 and 12.
[2] On liberty, Indianapolis, Hackett, 1974, p. 54.
Photo: Fabrice Coffrini / AFP
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