In The Tragedy of Human Rights: Liberalism and the Loss of Belonging, Adam B. Seligman and David W. Montgomery argue that the success of right-populism is an output of the emphasis the liberal tradition put on universal rights while it has “denied, denigrated, or simply turned a blind eye to other, equally significant human needs and visions of the good”.
The authors set a neutral and thin approach to the shaping of the public sphere based on universal rights against a thick approach based on belonging to communities narrower than political community and ascribe to the first horn the responsibility for the diffusion of several forms of the “current rise of authoritarian, xenophobic, often racist and certainly anti-liberal leaders and political parties in Europe, the United States, the Middle East, Russia and elsewhere”.
This view seems to echo some well-known criticisms to liberalism, namely (i) the criticism to the ‘liberal self’ and to the ‘subject of rights’ as autonomous, interested in preserving his/her individual freedom to construe and pursue his/her plans of life, and detached – as to the definition of his/her interests – from identities and bounds; (ii) the criticism to the thesis of the separation between the private sphere and the public sphere and its normative strenght; (iii) the criticism to any “thin” approach to justice, i.e. any approach that tries to find justificatory criteria for the domain of justice that are supported by the largest basis of consent as it is possible. Values dealing with justice vs. values dealing with good distinction; overlapping consensus on justice.
The novelty in Seligman and Montgomery’s proposal lies in the application of this critical stance to liberalism for understanding right-wing populism. Even if we wanted to narrow the analysis of this multifaceted phenomenon to this aspect only – that is, the impact of human rights discourse and practice on the perception of social and political bounds – it should be underlined that the conclusion can be easily reversed. One may say that populism has been fostered by the discontent caused by failures in human rights implementation much more than by the low appeal of the “politics of rights”. To the extent that human rights are not actually warranted for everyone or for every social groups, a feeling of detachment from institutions, politicians, and political community spreads and becomes the basis for a new style of political communication through which politicians promise to give voice to disapponted people. It is important to stress that, to explain this phenomenon, both the failure to warrant citizens fundamental rights and the violation of human rights of those who are kept outside the domestic borders or at the margin of the society are relevant. This is because the mechanisms of exclusion cause a general lack of social security, which of course hinders the rise of confidence. Therefore, we may maintain that human rights are much of the problem, but because they have not been fully or properly implemented, not because they have been given too much weight.
However, I pass over the explanation of populism and focus on the contraposition between human rights and belonging, which is at the core of Seligman and Montgomery’s point. I aim showing that it starts from rejectable premises on both human rights and belonging and that it is misleading as to its practical consequences.
Before debating in detail the proposal, a preliminary note is required. Seligman and Montgomery’s proposal may be tackled from two different approaches. According to the first approach, it may be understood as a contraposition between the culture of rights and the culture of solidarity and responsibility based on closeness. The explicit reference in the text to the Toennies’ heuristic framework relying on the distinction between Gemeinschaft and Gesellschaft seem to bring in this direction. I, nevertheless, refuse to read the paper as if its message was a generic recovering of the idea of Gemeinschaft. The awareness of its unsuitable character to frame public choices in pluralistic societies was the premise of the liberal justificatory approach to ethical and political values in the public sphere. Such premise seems to be still valid and should not be forgotten for the time being. Therefore, I read the proposal as an invitation to look into some difficulties that the language of rights may face in meeting specific needs of people and in (all?) contemporary societies. If my understanding of the proposal is correct, then its analysis needs to be focused on the core notions: human rights and belonging.
What human rights are not? How not to fetishize the idea of human rights
Seligman and Montgomery point out that their target is not the idea of human rights, but their “unintended consequences which can be destructive to the very communities they purport to protect”.
Since I think that human rights analysis necessarily refers to different levels – the notion, the conceptions and the practice –, which need to be someway interconnected, I find this tenet unclear. It would seem to imply that human rights in practice have some undesirable consequences, which do not depend on either the way rights are conceptualized or their intended implementation. So, the question arises: Why, according to Seligman and Montgomery, human rights would have been the cause of those undesirable consequences on social relationships?
A discourse on human rights cannot and should not be worked out without making explicit the view of human rights it relies on. The target of Seligman and Montgomery criticisms seem to be one of the versions included within the constellation of the liberal theories: the “atomistic” version. This is not, however, the most agreed version of human rights theories and obviously there is room for many ways of conceptualizing and justifying human rights that are very distant from that.
In my opinion, the best way to conceptualize human rights is to keep together the ideal tension inherent in the notion and some salient features of its institutionalization process, which may be called the “practice” of rights. A “pure”, totally detached from the practice, idea of human rights risks to be pointless. Failures of the practice should be regarded as having an impact on the conceptualization and this latter should not completely neglect aspects such as the intended functions of human rights or the challenges they are meant to face. Looking at human rights as a public normative practice (Beitz, 2009, p. xii, 14 and passim) seems in this sense to be a promising approach. This view brings us to address the relationship between human rights and values.
I agree with Seligman and Montgomery on maintaining that human rights should not be thought of as “the primary vehicle through which we articulate our shared moral vision”, as a means for human flourishing. I would also add that they cannot function as a “glue” for social ties. Nevertheless, they are related to values in a way that is unique and significant for assessing their role in social processes. I am explaining my view in four points.
The first deals with the peculiar nature of human rights moral embedding. Human rights are not common values but are grounded on values. Moreover, their relationship with values is not plain. This becomes obvious when we pay attention to the fact that human rights are claimed (as moral rights) before being set (institutionalized), and that this happen when some moral values are aknowledged and regarded as potentially at risk in face of given challenges as well as of given social and/or political settings. That means that rights arise from a critical drive and not from consent. Human rights always hold a critical potential towards common ways of thinking, morality and practices; they are an ideal and a tool that derive from taking the point of view of those who do not have voice.
The specific structure of the moral embedding of human rights is at the core of their complexity: on the one hand, since they are based on values, their content and their justification are open ended; on the other hand, since they are not themselves values, they cannot function as means to constrain or stop ethical conflicts. Their openess is also a source for meaning and what makes them suitable to face different challenges in different contexts, to be a tool for criticizing common ways of thinking and even morality. In other terms, by underlining that human rights have a structural but always open relation with values leads to conclude that human rights tend to function as an input for making conflicts emerge with regard to new interpretations of values much more than as a result of an already achieved consensus.
Second, human rights have a relational structure, which plays multiple roles. To begin with, their background values need to be largely acknowledged, if they have to be suitable to impose duties on others. Then, the institutionalization process tranfers this acknowledgment into practice.
Obviously, the atomistic understanding of human rights fails to account for this relevant feature.
Third, the selections of needs or claims that should be translated into human rights is a matter at issue. The label ‘human rights’ should be reserved to moral and/or legal idea or norms (depending on whether we are talking about moral rights or legal rights) to be met for all human beings. The concept should refer to such claims that can be justified by strong moral principles and aim either to protect the subject against threats affecting his/her dignity or to endow him/her with a support to pursue some essential purposes. In this sense, human rights set a baseline for the protection of human dignity against domination and oppression, to warrant a decent life, “everyone’s minimum reasonable demands upon the rest of humanity” (Künnemann, 1995, pp. 170-171). Of course, a decent life is a necessary but not sufficient condition for a flourishing life.
Fourth, not all legal rights are human rights. It is very important to keep in mind the difference between constitutional rights and human rights, nothwistanding – for technical reasons that deal with the protection mechanisms – in terms of implementation, and sometimes even in terms of content, they may overlap. Interesting enough, the examples that are delivered by Seligman and Montgmomery about human rights in the paper seem to refer, strictly speaking, to the level of constitutional rights. The difference counts. While constitutional rights rely on a common political culture, human rights are less demanding, they are supposed to protect at the treshold level human dignity within specific contexts, and the scope of the consent on values they required is narrower. Therefore, it is true that they may be seen as those rights that are ascribed to those who are ‘nothing more’ than human beings, i.e. who are not given the chance to live within stronger, thicker and more meaningful bounds. Nevertheless, it is both trivial and essential to remind that it is very difficult for a society, a political community and a global order to warrant the human flourishing without having human rights protected.
What does ‘belonging’ mean?
The notion of belonging also needs to be clarified. Belonging – Seligman and Montgomery point out – “is not just an ineluctable emotional need” but is a “strut for cognition, understanding and our ability to engage with the world”.
They stress that belonging is a condition, not a feature, and that it should be distinguished from having an identity. Such a distinction is what takes the need for having belonging protected away from the perspective of claiming ‘cultural rights’ and from the politics of recognition approach. Because of this approach, it seems that the acknowledgment that cultural identity have been given within human rights paradigm does not play any role in filling the gap between belonging and rights. This part of their argument grounds the unrelatedness between the language of rights and the language of belonging. It would seem that there is no meeting point between them.
Still, many questions arise about the normative potential of belonging. How can an existential condition exercise a normative force? Which kinds of belonging are taken into consideration by Seligman and Montgomery? Is there any relevant difference, to say, between belonging by choice and belonging by birth? Should claims of recognition made by groups where belonging is nurtured by forms of internal restriction of freedom, dissenting and exit be legitimated in the public sphere and have weight for public choices?
My point here is that, for giving belonging a normative role in the public sphere, we need to articulate such notion. Belonging is a fact, recognition and protection of belonging require to be supported by reasons.
It is worth noticing that not only belonging is a condition but it is also a static condition. Considering people as they belong to some communities or groups does not necessarily amounts to take their purposes or vulnerability seriously.
The matter is not whether or not to give room, within a given society, to some kinds of belonging, nor is it to choose between rights and belonging. The matter is how to select what kinds of belonging should be thought of as relevant for shaping social settings, institutions, and models of social justice. Therefore, the conclusion is that we cannot assess the suitability of the language of human rights to face contemporary challenges without articulating the idea of belonging. But this does not amount to choose belonging instead of rights.
Is the contraposition between human rights and belonging meaningful?
Which is the nature of the contraposition between human rights and belonging in Seligman and Montgomery’s discourse? Is it a real contraposition or a rethorical one?
Decades of debate on the polarity between politics of recognition and politics of equal dignity have taught us that the two approaches should be mutually integrated. While belonging and having an identity do not overlap, I think that conclusion also applies to the belonging-human rights contraposition.
Two interrelated issues are to be addressed to answer my question.
First: What normative claims can be drawn from belonging that can be relevant for the public sphere and for affecting the condition of single persons and/or of groups?
Second, having in mind the notion of human rights I argued for in the second paragraph, how can human rights interfere with belonging preservation? Can human rights protection inhibit the experience of belonging?
I would maintain that, depending on what belonging means for social and political life, human rights may, in some cases, neglect the condition of belonging, because it is not the target of the intended action of rights. In other cases, they may affect the range of expression of belonging and this happens because rights are aimed to protect also those who are not members of the group. The way belonging affects the non-members is a crucial aspect to shape the relationship between the condition of belonging and human rights. It should not be regarded as an independent variable. This is exactly the main concern of the liberal tradition, which – therefore – should not be too easily discharged.
While, on principle, the dignity that human rights are supposed to protect does not directly stem from being part of a community, group or culture and is inherent to each person as a human being, this does not necessarily impede that the needs human rights address may also encompass claims of belonging protection.
The example of interference that are offered by Seligman and Montgomery fails to clarify their perspective. First, the example clearly deals with identity, but it is not obvious in which sense it deals with belonging. Second, since it refers to (Danish) mechanisms aimed to integrate (or assimilate) immigrant people in a common political culture, it deals with a (very debatable) implementation of fundamental rights. It has nothing to do with human rights. Actually, such a trend can easily be criticized in the light of the human rights paradigm, which puts a strong emphasis on interculturality.
It seems to me that human rights protection and belonging protection can be polarized if they are regarded as symmetrical and co-extensive, but this is not the case if they are embedded into a coherent framework. The attention towards belonging may play as a path either to interprete and implement rights with an eye to specific contexts and needs or to go beyond the treshold of human dignity protection, towards human flourishing. In this direction, actually, the human rights paradigm has been evolving, by specifying the subjects of rights, multiplying the issues to be addressed and aknowledging the value of difference.
Mutually adjusting human rights universality and spheres of belonging is not a plain move, but it is required to make of universality of human rights a concrete universality.
In the end, I think that, Seligman and Montgomery’s contraposition between belonging and human rights has a rethorical function. It is a way to draw attention to the importance of giving room to the meaningfulness of collective dimensions for human life. The contraposition does not ground an alternative: How could the balance between the two “arenas of social interactions” – the community of confidence and the community of trust – be achieved without rights?
Beitz, Ch., 2009, The Idea of Human Rights, Oxford University Press, London/New York.
Künnemann R., 1995, “A Coherent Approach to Human Rights”, Human Rights Quarterly, 17, n. 2, pp. 323-342.
Pariotti E., 2018, Human Rights as Basic Rights: A Path to Universality?, Persona Y Derecho, 79, n. 2, pp. 153-177.
Trujillo I. and Viola F., 2014, What Human Rights are not (or not only). A Negative Path to Human Rights Practice, Nova Publishers, New York.
Elena Pariotti is Professor of Human Rights and General Theory of Law at the University of Padua.
Photo: Fabrice Coffrini / AFP
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