There must be a certain pleasure in denouncing the flaws of liberalism. One of the recurring writing styles is the accusation of abstractness. Some arguments and notions of this tradition seem, in fact, to hover in a too rarefied atmosphere, impervious to some fundamental and solid realities which are central to the flourishing of human beings: traditions, roots, customs, and further ancestral elements. That liberalism based on the primacy of subjective rights, on equality between unencumbered individuals, on the prohibition of referring to a given concept of the “good” in decisions de lege lata or de lege ferenda, that, in short, this political liberalism represents a philosophical-juridical and philosophical-political option not without risks and problematic elements, is a notion that is by now part of the doctrinal background of anyone working in the field.
Adam B. Seligman and David W. Montgomery’s contribution is an intelligent and refined text which does not suffer of self-satisfied airs, and seeks, in its tone and content, to be respectful of the doctrinal tradition that it critiques; these features alone merit attention. It should be taken seriously because it contains themes and tones already present in other critiques of political liberalism, but with an intense awareness of the risks also posed by communities – of their dark side.
One of its main ideas is that human rights, as a normative notion, “do not really work” because they obscure every man and woman’s sense of belonging to a given community, substituting with abstract individualism those cherished “shared values” (they do not use this expression), which alone can constitute a solid premise to face “the challenge of constructing civil society”.
The contentious thorn of the text is then represented by a political note: the far right has hijacked the notion of belonging (a concrete and sanguine notion that is not abstractly universal), and by using it unscrupulously is reaping successes that endanger those very values that are dear to human rights advocates. The powerful and effective rhetoric of shared values, of common roots, has been left to the evil sovereigntists, who are now advancing threateningly. The notion of common roots is recklessly exploited, in order to titillate crowds eager for identitarian validation, confused (one might add) by historical events (migrations, new technologies, unprecedented health problems) that both fascinate and disturb.
The title of the paper by Seligman and Montgomery explicitly speaks of the Tragedy of Human Rights, and it is perhaps their hardest expression, probably inspired by the understandable desire to stir the reader’s attention with an almost provocative phrase. Elsewhere, quieter tones are employed, implying that human rights alone are essentially “not enough”. They should not be fetishized. They are not only a solution but also part of the problem.
Some themes Seligman and Montgomery employ are, nevertheless, already well-known. For example, as Joshua Mitchell stated, “religion is not a preference”. This is an appropriate reminder. Religions are not items available on the shelves of a liberal or postmodern supermarket, that autonomous individuals, abstract atoms of free and disembodied humanity, choose arbitrarily on the basis of subjective and unquestionable preferences. Religious faith can deeply structure the identity of a man or woman, for example through the belonging that it creates towards a comprehensive group; towards a community. The idea of arbitrary choice can radically contrast many religious experiences, which sometimes revolve around an irresistible vocation, an existential scenario that cannot be described in terms of a cold choice between one item or another.
However, it is not that liberalism forces religion to be conceptualized as a preference with the perverse aim of offending and diminishing faith and theology, nor because it cannot understand its true nature, the radical questions on the human condition that religions entail (and the fundamental role they play in forging and keeping alive a sense of belonging on which the identity and development of an individual can hinge). Legal liberalism aims at allowing the individual to claim fundamental freedoms, for example, the possibility of religious conversion; a conversion that is itself also religion, and therefore can enjoy those same protections.
Faith is therefore not merely a preference, it is not the frivolous will with which each person can freely choose the superstition that attracts him or her (under the unbearably patronizing gaze of a wise, agnostic, secular and tolerant ruler), there is no doubt on this. But when a community, while offering that sweet sense of belonging, that precious existential Gemütlichkeit, prevents its members from freely undertaking fundamental choices, it may become appropriate to treat faith normatively just as if it were a preference: something that must remain, in certain cases, available to the subject who freely chooses. This is paradoxically important precisely because the value, impact, and relevance of religion is not that of a mere and perhaps capricious “preference” between indifferent adiaphora (an idiosyncratic but ultimately irrelevant free choice), but something existentially decisive that can itself impact the conception of the very institutional order that guarantees such freedom.
There is, however, a double risk in Seligman and Montgomery’s contribution. Merely saying that focusing exclusively on human rights without regard for the problem of belonging involves some specific dangers: It risks banality and obviousness. If, on the other hand, human rights are accepted, but in a subordinate position to belonging, one risks oversimplification (and other dangers of which the authors are well aware).
It is true that belonging is important, that it represents an important factor in the construction of the identity of (not abstract but) situated individuals, which can also represent an asset worthy of protection. But this is not enough to question the notion of human rights, the abstract model of which, as Barbara Bello pointed out to me (citing Letizia Mancini’s lesson), can also be deconstructed in order to take into account “the specific situations of many individuals that are at the intersection of several characteristics of the identity”. At the end of the day, on the other hand, we are not told how a policy (or a jurisprudence) of belonging would deal with difficult cases, with the hard cases in which human rights could more clearly take a position.
The notion of belonging places emphasis on roots. This is a notion that seems to refer to forms of shared primary morality, and ultimately to “burkean” manners. Since the Hart-Devlin debate, however, we are aware of the risks involved with the underestimation of critical morality, that which questions precisely inherited traditional norms. Human beings and institutions can be evaluated and critiqued (not of their roots, but rather of their fruits), of the actions they perform, which can be perceived as absurd and unjust even when they are compatible with the sense of belonging as well as in harmony with some shared roots. The notion of human rights is also a great attempt to normatively criticize institutional structures, customs consolidated in ancient roots; for example, slavery or unacceptable forms of discrimination.
In some cases, there have been criticisms of policies restricting aid to needy nations on the basis of obliging them to create openings towards the LGBT community: what sense does it have to impose our Western notions of human rights on populations that, in their ancestral and shared values, do not recognize these notions as valuable? What is the point of tying our assistance, which they desperately need, to a moral capitulation of an ethical and religious framework that gives meaning to their identity and ultimately to their life? It is not that these questions are meaningless, and it is right to fear the sin of cultural imperialism. But of course, these questions take on a different tone when placed against the background of the lives of the LGBT people in question: when you have first-hand accounts, perhaps by interviewing those people we are talking about, on the quality of life of the LBGT community in some countries in the world. It would be appropriate if those who question the policy of linking aid to respect for fundamental human rights, would tell us their opinion on the question: is it therefore right that in the name of belonging, these individuals are persecuted, imprisoned, humiliated, and killed? If this were, in fact, not right, what should be done? What is the normative alternative to these policies?
However, the politics of belonging encounters a logical difficulty from the outset. Membership is contingent. This means that each “belonging” can be, in theory, different from any other. Seligman and Montgomery’s text essentially refers to only national and religious affiliation.
Belonging cannot be easily codified in a top-down consideration, because of the very statute of the notion. At best it would become a kind of “human right to belong”, a bit like Arendt titled one of her essays “Es gibt nur ein einziges Menschenrecht”, which was in fact the “right to have rights”. There is no external, overarching point of view that allows definitive classifications: because if contingency is taken seriously it conditions itself as a category, so that a universal treatment of the notion can become quite complex.
Belonging can, for example, be declined in such ways as to make the intra-specific differences paradoxically more intense than the extra-specific ones. An Italian Catholic can share a stronger sense of belonging with the Bangladeshi Muslim that is of tolerant temperament, than with the kind but tenacious neighbor that is a Christian Jehovah’s Witness. By turning Seligman and Montogmery’s argument on its head, belonging therefore sometimes seems more of a problem (albeit a fascinating one) than a solution.
In other words, belonging does not easily occur in a limpid system, built around reassuring dichotomies: as soon as things get a little interesting, it immediately breaks into a kaleidoscope of spirals, that do not quite overlap harmoniously. This does not happen by chance, however: it is the logic of the category that determines this state of affairs. Of course, this logic allows the position (the “place”) of a given situated individual to produce a partial but effective point of view, capable perhaps of generating an engaging simplification and, in short, an opinion on the surrounding conceptual (and institutional) context. The risk then becomes that of a normative framework that is painfully rooted in exclusion.
The canonical response to this type of observation is that human rights also exclude; their universality is fictitious. Seligman and Montgomery touch on this point; they do it in passing and with elegant grace. This is an important point, and some keen contemporary scholars are well of aware of it.
Hans Lindahl’s last book, for example, is an illuminating one. It deftly shows how there is no legal order that can be defined as an inside without outside ; even globalized systems do not escape this hard rule, and neither can any system of human rights. The system can therefore be conceived as borderless but not as limitless, it can be without (geographical) boundaries but cannot be without limits; it necessarily excludes not so much the foreign but the strange. Exclusion is inevitable.
These observations, penetrating and precise, are obviously not enough to condemn the current notion of human rights. The fact that there is no definitive metaphysical and universal foundation of human rights that necessarily prevents any exclusion, does not in fact mean that every system of exclusion is equivalent.
It can be argued with good reason that, if you dig deep enough, you will find that every system is based on exclusion and contingency, but what is relevant is precisely how deep we must eventually dig: doctrinal details can therefore become quite interesting.
For example, an interesting case (in the contemporary debate) in which the idea of belonging can be stress tested with the notion of human rights is that of biocultural rights. Biocultural rights are conceptualized by their supporters as a bundle of rights that emerge from a series of institutional documents as well as certain practices, which serve to implement environmental conservation strategies by populations and groups whose identity revolves around a concept of stewardship of the earth. One therefore takes care of the environment emphasizing ancestral and inherited practices, and not with questionable top-down methods, as for example the creation of reserves from which populations can indeed be expelled precisely with the idea of conserving natural heritage in mind.
These rights can take various forms, but typically they are constructed with the intention of protecting the languages and ways of life of the communities in question. These ways of life can encounter tension with the Western and liberal notion of human rights, for example as regards the treatment of women. These are interesting cases, certainly worthy of discussion, not only on the level of overarching principles, but also on their finer aspects; this is indeed a specific case, on which however there is already a considerable debate. If Seligman and Montgomery want to pursue their interesting theses, they may perhaps find it more interesting to start from precisely these finer points, where the topic that concerns them is active, rather than denouncing a more general “tragedy of human rights”.
The political problem remains, however. Are we not leaving the powerful language of belonging in the hands of an irredeemable and unscrupulous Right, which uses it to implement policies that are indeed, fiercely in contrast with the notion of human rights?
We should appreciate the lack of blackmail-like tones in Seligman and Montgomery’s text: One never gets the impression that they accuse the “leftist kitsch” (Kundera, Walzer) for the electoral successes of the extreme right. They only highlight certain risks with fine philosophical grace.
The rhetoric of identitarian belonging, in these cases, rests on several factors, for example on some real problems and on a group (or more) of individuals as scapegoats. This tends to generate motivational factors that refer to notions existing in shared perceptions, but not necessarily based on any empirical feedback. It is not enough to say that real, empirically verifiable security has increased in Italy, and that only perceived security has decreased. Perceived security is not synonymous with an ectoplasmic non-reality. You die from a psychosomatic ulcer just like you die from a physiological one, because a psychosomatic disease is not unreal, it only has a specific etiology.
There is no doubt that human rights policies must take these problems seriously and not leave key political themes under the exclusive monopoly of a resentful Right. It is fair to reiterate that political philosophy cannot be concerned only with the issue of argumentation, detached and cold, but also with the question of motivation, into which a number of contextual factors – the roots – also enter. The phenomena must be governed, and the need for roots, a theme on which the prowess of Simone Weil and Hannah Arendt can still give us fundamental indications, must certainly be taken seriously.
Nonetheless, to affirm that from these needs and themes a definitive argument is produced against the notion of human rights could, all in all, be configured as a non sequitur.
 Hans Lindahl, Authority and the Globalisation of Inclusion and Exclusion, Cambridge University Press, 2019.
 Giulia Sajeva, When Rights Embrace Responsibilities, Oxford University Press, 2018.
Gianfrancesco Zanetti is Full Professor of Legal Philosophy at Università degli Studi di Modena e Reggio Emilia.
Photo: Fabrice Coffrini / AFP
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