Human Rights and its Rhetoric as a Problem
The thesis that is defended in Seligman and Montgomery’s article is that human rights rather than being a solution can constitute a problem in the construction of civil society that, among other things, have made the sense of shared belonging more difficult to attain. This thesis, provocative and profound in its consequences, brings up the possibility of a discussion and revision of the place and the functions of rights in legal and political arguments and in our societies, in which they appear to constitute a guide when it comes to evaluating the greatest or smallest moral correctness and political system.
Provocation, a useful tool for reflection, is already present in the title. Because to speak of a tragedy of human rights could imply several things. It could suggest that the claim of human rights has led us to a tragic situation or that the message of rights – the promise of a better and fairer world – is in itself tragic, and cannot be carried out; or on the contrary, the tragedy is precisely that it identifies itself with the violation of rights. I believe that there are good reasons to opt for the last two possibilities. But Seligman and Montgomery’s suggestive text seems to favour the first option.
Well, to speak of a human rights tragedy requires, I believe, an initial conceptual effort. The discourse of rights is complex for various reasons; in which normative and descriptive dimensions mix, not always clearly distinguishable. But furthermore, and given the polysemic nature of the idea of human rights, it requires identifying and choosing which idea of rights that one is handling. This is important considering that we are in a field in which several concepts, categories, and theories come together. Thus, one cannot assume a human rights concept that is exclusively understood as a moral aspiration, to defend another, which demands that that moral aspiration be recognized in positive law. On the other hand, not all rights are included in positive law. Also, not all rights have the same relation with the individual or social aspect of the person; in this way individual rights do not have the same relevance as participative (political) rights, for example, when it comes to highlighting the importance of belonging to community strategies. In addition, the vision and valorisation of human rights will be different if they evolve in a liberal theory setting or in a communitarian theory setting.
The above is important because Seligman and Montgomery’s proposal makes a general criticism of human rights, when in fact it seems that the aim is a determined category of rights, the individual, inspired by a determined theory, the liberal.
On the other hand, what does it mean when we speak of a rhetoric of human rights? I am afraid that in many cases it has to do with what we could consider the broken promises of rights, or with the fact that the aspirations for compliance and their effectiveness is unfeasible, or that rights display themselves as strategies that in fact do not have a lot to do with an initial project, or spurious resources are used with rights to achieve aims that have little to do with them.
It is true that the discourse of rights makes up a scope prone to rhetorical misuse. This is true for at least two reasons, one general and another more specific. The general has to do with the normative nature of rights, which forces us to recognize the possible distance between theory and practice; its effectiveness. In fact, we are not meeting a singularity of rights head on but more like facing a noticeable characteristic in any normative discourse where we can observe the –very often tragic- distance between what is and what ought to be. This distance -or contradiction- is noticeable in other normative discourses such as that around morals. The normative discourse makes up the space in which we can find problems tied to inefficiency; falling short of fulfilling the norms. This is different to what happens with descriptive discourse, where it is not possible to find this kind of problem. This is a circumstance that was made evident by Hans Kelsen when he distinguished between the natural laws and the human laws.
The more specific reason is related to the demanding character of rights, that protect important possessions or values and that are constructed in a much stronger way than other normative systems. In this way, the possibilities of ineffectiveness are greater than in other cases in which the legal and moral demand is not so strong. So that what is observed in relation to rights is that the stronger the demands, more are the possibilities for inefficiency. A directly proportional relationship exists between both elements. On the other hand, the values that are at stake when we speak of rights are not like what is considered in the framework of other normative claims. Its biggest importance causes its violation to be felt as more tragic. All of this in a context in which the emotional approximations are not extraneous.
Not all the discourse about rights is rhetoric. It is not a characteristic applicable to any reflection about rights. In fact, there are many theories, many ways to defend and argue in their favour. But what is certain is that it is a field given to rhetoric, among other things as nowadays the respect of rights has converted itself, not only in a judgement of excellence, but in a minimum requirement for the legitimacy of the political system and the exercise of power. It is not too bold to acknowledge that fair societies are those respectful towards rights. Probably this is what explains why all political regimes present themselves as respectful of rights, perhaps less accurately than their actual situation.. Nobody wants to show themselves as uncommitted to rights. In that way, rhetoric would be found not only in the discourse around rights but also in the discourse certain regimes have in relation to rights. The rhetoric must combine therefore situations that have to do with what we could consider the “pathology” of rights. It is here that we find one of the functions of rhetoric, which has to do with obtaining certainty and agreement through the masking of reality. Masking reality is what it sets out to follow, on the other hand, when certain procedures or measures in international relations, such as supposed “humanitarians” that appear to guarantee rights but hinge on less honourable motives.
Therefore, the allusion of the rhetoric of rights, sometimes can hinge on good arguments, it must be wary of: a) avoiding generalization b) not confusing the sense of rights with situations of a pathology of rights.
Normativity and Mormal Points of View
In Seligman and Montgomery’s text, what appears as the object of critique is a fixed vision of rights, the liberal vision, and indicates some of its damaging consequences, like the ones that have to do with exacerbated individualism and the omission of the fact that humans are political beings that develop existence in a social network of interactions. At the same time, it is accepted that extolling rights, denigrate or reject other theories of the good (“By making human rights the highest and most noble of our social and political virtues, liberalism has all too often denied, denigrated, or simply turned a blind eye to other, equally significant human needs and visions of the good”). At this point we should remember that the origin of the idea of human rights has a strong liberal and individualistic component, and another is that it is the only possible theory.
The article accepts that the idea of human rights is contrary to strong roots, the feeling of belonging to a community. And it defends a certain idea of community, based on certain contents (“.., its own past, its own traditions, stories, smells, tastes, jokes, obligations, recipes, holidays, moral judgments, boundaries of what is permissible and prohibited, basic frames of meanings, fears, and desires”) with boundaries as well as the ability to distinguish from other communities (a particular community).
Can we apply this idea of community to rights? Can we speak of a community of rights? Also, here we can find ourselves with the contents that the authors attribute to the idea of community. In the case of human rights, we are facing elements that are characterized by their moral sense. Moral significance is what allows us to identify the parts of the community. And this moral meaning, at the same time, is going to be the one that establishes the limits, the community boundaries and the features that allow us to distinguish. We are facing a moral community, that is characterized by having a universalist vocation. The allusion of universality is an element of rights discourse, that at the same time presents a dimension that is potentially controversial. In this sense, human rights present themselves in this sense as opposed to the idea of privilege that by nature implies exclusion and distinction. This contrast is something that we observe in the dynamics that allow us to interpret the historic evolution of rights, both regarding the passage of medieval liberties to the rights claimed in modernity and what will be the successive extensions of the holders of those rights.
The problem comes from that normative nature of rights. As with any normative system, as a last resort rights imply a determined theory of good and human flourishing, that might or might not be shared from other points of view. To have a respectable theory of flourishing is not exclusive to the idea of community. Any accepted conception of good makes identifying practices compatible content with this conception, but at the same time creates others that contrary to or not compatible with it. In this way, participating in the rights discourse forces us to admit that not all normative proposals, cultural practices, are compatible with the rights discourse. This is a consequence of the identification of rights with a conception of good. It is the same with the idea of community, that implies also a conception of good.
The problem is demonstrated when tension, or even incompatibility, arises between the theory of rights as good and other theories of good. To participate in the moral discourse (be it rights or other) makes us do two things: a) distinguish good and wrong concepts from a moral point of view; b) choose and identify where this incompatibility exists. This must be acknowledged unless we are radical sceptics. The rights discourse, as with any other normative discourse, can be more or less flexible, but as with other materials, elasticity has its limit. Not everything fits into the rights discourse. It is precisely for this reason that we can shout enough is enough! Or, never again!
To speak of human rights, therefore, means assuming a moral point of view. It is from this point of view that we determine the incompatibility between the demands of rights and other proposed norms. Not all normative proposals deserve the moral appreciation that comes from the perspective of rights. That explains how we consider, for example, certain situations as discriminatory and sensitive to criticism. It is the moral point of view that allows the criticism.
It is crucial to admit that this characterisation (that can be used as a target of criticism) is not exclusive to the moral discourse of rights, but touches any moral discourse, and also applies to the idea of community that Seligman and Montgomery refer to in their text. Because the community also assumes a moral discourse that could hinder human flourishing. There is nothing that decides ex ante that the morals of a community, for the mere fact of being so, should favour human flourishing.
Individual, Community and Human Flourishing
There is however, the problem of tension between two inalienable dimensions of the subject: the individual and the group. The tension between individualism and communitarianism is the expression of this duality in the field of political philosophy and moral philosophy.
Any reflection on the individual and the community must consider the relationship between both dimensions, which can be analyzed in complementary or exclusive terms. Seligman and Montgomery give the idea of rights as driving forces of disintegration, as an expression of centrifuge dynamics facing the idea of a centripetal and cohesive community as the origin of moral sentiments.
The idea of community implies a discourse on belonging and the identification of unifying elements. It is true that the discourse of rights is the scenario of a reflection and a discussion about the spreading of belonging (animals, nature, post-humanism) but this is not an impediment to acknowledging that these two elements (belonging and shared dimensions), allow us to speak of a community articulated around rights: a community of rights. A community, with a vocation of extension that characterizes it since, at least conceptually, it is more interested in highlighting the shared elements among the members of the community than the elements that differentiate it from other communities.
The shared elements that also define a community have two dimensions, one inclusive and another selective. This cannot be renounced by any community, including those presented in the article as an alternative to rights. That is to say, whereas the idea of community implies differentiation with other communities, it has a steadfast selective component.
Furthermore, it points out that the problem is the consideration of human rights “as the only morally legitimate arbitrator of social relations“. I do not believe that the fundamental role that rights have in the interaction of social relations prevent acknowledging that this function: a) must coexist with other interaction strategies of social relations; b) develops itself in an established context by the same idea of community. This is a source of tension and problems, as mentioned above, that originate from the greater or lower compatibility between the rights and other social order guidelines.
In the article, this greater or lower compatibility is what exists between two models of community: communities of trust and communities of confidence. But what appears to stand out is that the feeling of belonging is a unique tradition to communities of trust, with values and shared experiences, familiarity, equality. Communities of confidence, on the other hand, hinge around the idea of rights, they are characterized by disintegration, by difference and by dispersion; could appear selfish and dangerous. An idyllic community in front juxtaposed with another that is far from it. One of the distinctive guidelines is revealed between the value of peace and the value of justice. While one of the elements of the communities of trust is the value of peace, the value of justice is characteristic to the communities of confidence. The clear separation between justice and peace seems problematic. True peace understood beyond the absence of external physical violence, is only achieved in conditions of justice. Without justice, peace is the peace of cemeteries that Kant refers to. These conditions of justice fulfil themselves through respect and the guarantee of moral requirements of which rights form a part.
Human Rights and Belonging
The discourse of rights and the idea of belonging are not extraneous to each other. In our societies, in which the roots are so different, it is ever more complex to resort to shared traditions to define belonging. What we observe is that rights define a status of more or less full-citizenship and make up the element that identifies belonging to a community. A member of the community is the subject who has recognized rights. Rights are authentic instruments of social integration, from here we can identify them as an important component of the social link. Citizen, and therefore member of the political community, is one whose rights are recognized and can exercise them. More rights, more citizenship. In our societies, those which rely on their intrinsic plurality, the ethnic, traditional or religious references have lost a great part of their unifying potential; the social link is determined by rights. The Other, the different one, does not only have a determined skin color, religion or language; the Other is also the one to which rights are not recognized
Is it right to dissociate human rights from human flourishing? On the contrary, it could be maintained that rights make human flourishing possible. The question we must ask ourselves is what does this human flourishing consist of? It seems that an appropriate way to understand the idea, in the tradition of modernity, is that it is linked to the idea of free personal development. The subject flourishes when it can build and develop its own life plans without interferences, of course, without causing harm to others. This idea rests on a true discourse about autonomy and freedom, whose value should not have to depend on its liberal origin, it already transcends. It is precisely freedom and autonomy that give value to individual decisions. The design and development of individual preferences is the aim, therefore, of human flourishing.
It is true that these preferences define themselves in the setting of a community to which the subject inevitably belongs. It is not possible to deny the subject‘s social dimension. But instead of claiming that states that the value of a subject’s decisions depends on whether they have been accepted into a community and agree with the community’s same opinions, it is possible to maintain another claim that these decisions are valuable only insofar as they have been freely taken. These conditions of freedom are necessary for the development of the “new politics of difference” that is claimed in Seligman and Montgomery’s proposal.
This new politics goes beyond individual preferences, on the contrary, it is “constitutive of individuals and their communities“. The idea of difference can be attributed to the community. This is the opinion that seems to be reflected in the article. But difference can also be attributed to the subject, in relation to the community to which it belongs. Unless it is assumed that belonging to a community – a matter that in most cases does not depend on a personal decision – prevents the possibility of difference
We can observe the problem that the individual sphere and belonging are mutually exclusive, in that the “implicit prioritization of the individual is at the expense of belonging”. On the contrary, it is possible to defend the possibility of individual development in a setting constituted by belonging to the community as an expression of the subject‘s social dimension. These two dimensions of the subject, the individual and the social, form part of its constitutive nature and it is possible that between the two dimensions conflictive relationships are established that can be an expression of tension between the public and the private, which is a primary concern of liberalism (as well as other schools of thought). Human rights can serve as a useful tool in the protection and security of the subject as well as in its conception of human flourishing and of its differences.
Francisco Javier Ansuátegui Roig is professor of Philosophy of Law at the Carlos III University of Madrid.
Photo: Fabrice Coffrini / AFP
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