The Crisis of the Traditional Model of Human Rights
María del Carmen Barranco Avilés 7 July 2020

A puzzling starting point

The starting point of “The Tragedy of Human Rights: Liberalism and the Loss of Belonging” is “that human rights are as much the problem as they are the solution to the contemporary challenge of constructing civil society”. Surprisingly, the authors blame human rights success on “the rise of authoritarian, xenophobic, racist and certainly anti-liberal leaders and political parties”, which are so hateful precisely because they fight rights. After reading the first paragraph of Seligman and Montgomery’s article, the question coming to mind is how violations of rights can stem from the existence of too many rights.

The main thesis of the paper, summarized in the last paragraph, is that “human rights need not be the only mechanism for the extension of dignity”: again, this sounds astounding. In my opinion, if human rights are thought to be tools for human fulfilment, but theories and legal systems of protection of such rights exclude important components of human good, or even rule out some human beings from the enjoyment of rights, these theories and systems, not necessary rights, are to be blamed.

If we agree that the idea of human rights has performed an important historical role of emancipation, as Seligman and Montgomery seem to accept, prudence advises to not disregard rights before being sure they have become useless.

Indeed, liberalism — at least in the way in which it is understood in the text — is not the only possible conception of human rights. On the contrary, the assumptions underlying the classical liberal theory of human rights are being revised thanks to the impulse of critical theories resistant to giving up the emancipatory character that, despite everything, is inherent in the idea of rights. Among these theories, feminisms, critical race theories and disability studies have played a significant role.

The contribution of critical thought allows to draw a comparison between a traditional model of rights and a contemporary one. While the authors’ arguments criticizing human rights fully apply to the former, they appear to have already been incorporated into the latter[i].

 

The tragedy of a world without human rights. Between imperialism and ghettoization

Seligman and Montgomery criticise rights for allegedly not taking into account the human need for belonging. In their opinion, “it is precisely within these bounded communities — which are, moreover, real and active entities — that human actors are born, thrive, live, die and make sense (or not) of their worlds and the worlds of others”. Individual rights are not able to fulfil people’s claim for “help and mutuality that comes with and within community, much more than simply the abstract and impersonal application of the principle of justice”. According to the authors, this is the reason for the success of exclusionary belonging narratives elaborated by the contemporary extreme right. In their proposal, the challenge reads as follows: “how can we articulate a politics of belonging — which we recall, always embraces some exclusionary element — without succumbing to the rhetoric of the extreme right both at home and abroad?”. However, the way the ‘extreme right’ is depicted is somewhat shocking and even naïf. The authors seem to disregard that the only belonging the extreme right recognizes is the Western one. Certainly, human rights were born in a Western nest, thus they are a cultural concept, but the culture of human rights is much less restrictive than the extreme right’s proposal. I struggle to understand why the title of the article should be “the tragedy of human rights” instead of “the tragedy of the Western extreme right”.

“The tragedy of human rights” contains a plea for difference. In this regard, I would say that even the traditional model of rights is more respectful of diversity than would be a world without rights — or where rights are privileges of ours — as advocated by the extreme rights. Luckily, I do not think the only choice is between a politics of ghettos and the imperialism of rights.

With a view to excluding rights from intercultural dialogue, several authors have already faced this alternative. Among them, we can find positions shortening the list of rights to widen the space for difference. This is the case for authors like Ignatieff[ii]. The minimalism of rights thesis is still imperialist[iii], but it also reinforces some of the most exclusive assumptions of the traditional model of rights. In this last regard, Boaventura de Sousa Santos highlights how “the often voiced cautionary comment against overloading human rights politics with new, more advanced rights or with different and broader conceptions of human rights, is a latter day manifestation of the reduction of the emancipatory claims of Western modernity to the low degree of emancipation made possible or tolerated by world capitalism. Low intensity human rights as the other side of low intensity democracy”[iv].

I will try to justify that the answer to the challenge posed by Seligman and Montgomery is not abandoning rights or thinning them down, but rather widening their scope to make them completely suitable for the protection of human dignity.

 

From a traditional to a contemporary model of human rights

Although universalism and individualism are indeed crucial to the concept of rights, current proposals coming from critical theories have revealed the traps hidden in both. Certainly, the project of rights can only be universalist if this means that every human being, everywhere, is entitled to them, but it does not imply impartiality and uniformity in the way the traditional conception does.

In the conception of rights criticized by Seligman and Montgomery, theories of rights are presented as universal because they are pretended to be grounded in an impartial and decontextualized reason. Cultural relativism brought to light that human rights are the product of culture. The historical and cultural character of the concept can help us question its understanding as absolute truths, but this does not undermine the possibility to shape rights beyond Western culture, nor that they are worthless or despicable principles.

Additionally, universality is rooted in the idea that human rights were aimed to protect the essential qualities of human beings. Nevertheless, those who built this model depicted the abstract rights holder from their situated viewpoint and experience. As a result, an idealization of their own features is presented as a universal representation of humanity. That is why autonomy and rationality are considered as requirements both for moral agency and to be entitled to rights. This is also the reason for disdaining the body alongside vulnerability as a part of the human condition[v]. In this framework, human interdependency is invisible. People considered to be dependent, who happen to be most of humanity, are excluded from rights, and claims for recognition are rejected as being at odds with to liberty. A different representation of the human condition allows to embody and to situate human beings[vi].

As already pointed out, the impulse of critical theories and social movements supporting them has transformed the model of human rights. The theoretical framework rooted in homogeneity is being progressively replaced by an increasingly inclusive, thus universalist conception. Human suffering is placed at the core of this contemporary model of human rights, which questions the representation of the human condition underlying rights and more specifically emphasises the weight of corporeality and vulnerability for what means to be a human being.

The traditional model sets the key features of the human condition in reason and autonomy. Thus slaves, pagans, barbarians, colonized peoples, indigenous peoples, women, children, poor people and the ‘insane’ are considered unworthy of entitlement[vii]. On the contrary, taking human suffering seriously implies to include vulnerability among the features of human condition considered relevant for the attribution of human rights. And this is so both in that suffering is a necessary characteristic of every human being and when it is a contingent situation as a result of the interaction between the condition of some human beings and how society is organized.

Among critical theories, feminisms have developed an important role dismantling the traditional image of the rights holder as man, owner, white, heterosexual, adult and socially and physically independent. As is the case of the article under review, the refuse of universality led some feminist movements and theories to refuse human rights too as a vehicle for their claims. Despite the diversity of feminisms, feminist thought shows that presenting autonomy and rationality as the condition for the attribution of rights is a choice privileging male experience. In Young’s words, “an important contribution of feminist moral theory has been to question the deeply held assumption that moral agency and full citizenship require that a person be autonomous and independent. Feminists have exposed this assumption as inappropriately individualistic and derived from a specifically male experience of social relations which values competition and solidarity achievement. Female experience of social relations, arising both from some women’s typical domestic care responsibilities and from the kinds of paid work that many women do, tends to recognize dependence as a basic human condition. Whereas on the autonomy model a just society would as much as possible give people the opportunity to be independent, the feminist model envisions justice as according respect and participation in decision making to those who are dependent as well as to those who are independent. Dependency should not be a reason to be deprived of choice and respect, and much of the oppression many marginals experience would be lessened if a less individualistic model of rights prevailed”[viii]. Additionally, if ‘moral agency’ is meant to be part of the human condition, it can only be so in a normative sense and become an ideal to be achieved for any human being.

The new rights holder depiction leaves aside the consideration of reason as the trait that determines the attribution of dignity and rights. Its embodiment allows to include human needs as part of the human condition. One of the consequences of this change for the systems of protection is the modification of the list of human rights, as well as of the relationship between the various types of rights, which thus far have been regarded as possessing different degrees of importance.

Furthermore, the contemporary model regards autonomy as an objective to be achieved, as opposed to its traditional understanding as the condition for the attribution of rights. Dependency relations acquire relevance in the discourse of rights, and this is so for at least two reasons.

First of all, dependency relationships are relevant to rights, because at times they become situations of arbitrary domination in which the dignity of ‘dependent’ subjects is endangered. This reflection also justifies a revision of the separation between the public and the private. As opposed to the traditional scheme, in which rights are placed at the service of the supposedly autonomous subject, in the contemporary model, this subject appears as a power against which rights must operate. Also, caution is to be exercised for the assessment of the relation between individuals and the community in Seligman and Montgomery’s work: the protection of individuals against group oppression is not equivalent to denying their identity.

Secondly, it should be remembered that accepting dependency as an aspect of the human condition implies that human fulfilment is only possible through the interaction with others. As a sheer consequence, cultural and other identities need be considered for the protection of human dignity but also to rethink the role of care in ethics, politics and law.

In this regard, the traditional model — even in an elaborated version such as Amartya Sen’s theory of capabilities — considers that the value underlying rights is freedom of choice. This aspect only partially reflects the complexity of the human condition and it has been criticized in the light of the contemporary model, which considers that the ethical theories underlying rights must value relationships and not only choices. Indeed, the priority of freedom of choice implies that the human capacity to make decisions continues to be the fundamental component of the idea of ​​dignity: in this scenario, care is important only as one among the possible individual choices. A more inclusive conception of the human condition gives value to care as a necessary and important social activity and therefore leads to consider that to promote and facilitate responsibility and care is also part of the human rights project[ix]. Otherwise, we run the risk of continuing to represent the rights holder as an isolated human being.

 

Liberty and rights

If the rights holder is misrepresented as a rational selfish individual in the way that traditional model does, a human rights-based theory of justice would be unable to provide any kind of guidance in the management of cultural diversity, as Seligman and Montgomery rightly consider. The concept of liberty as non-interference is consistent with this image. Critical theories, however, show that another representation of the individual is possible, one that implies that liberty as non-interference is not the only one consistent with human rights.

Within a concept of liberty as non-interference, rights are aimed to preserve a space of freedom in which the rights holder is protected against interference by other individuals or the state. However, insofar as human fulfilment is a process that includes other subjects, it also requires interference. Therefore, it must be recognized that interference is not an obstacle to dignity unless it takes place in a context of arbitrary domination, which paves the way for a republican concept of freedom.

Seligman and Montgomery challenge the theory of rights to build a society able to include persons living with diverse cultural identities. I would have to agree that the theory of rights does not overcome such a challenge if the only possible conception were the traditional one.

As I said before, the traditional liberal model of rights has deficiencies that make it deserve the authors’ criticism. Without doubt, at this precise moment in history, there is a demand for recognition of differences greater than the liberal model can admit. Despite this, the contemporary model draws attention to the fact that cultural identity conditions human fulfilment and human dignity. Besides, as shown above, it adopts an alternative conception of the human condition, liberty and community more consistent with republicanism. Thus, they include solidarity, understood as the capacity to take as one’s own other people’s interests, as a part of the human condition. They also consider life in society as a requirement for human fulfilment and define liberty as non-domination.

In the republican outlook, it is easier to admit the recognition of cultural conditions as requisites rather than obstacles to human fulfilment and dignity, unless they favour arbitrary domination. This seems an adequate midpoint between relativism and the idea of a short list of rights not subject to discussion (rights as a ‘closed preserve’[x]). Republican liberty implies the recognition of identity alongside the protection of critical reflection on such an identity[xi].

I consider it worth exploring whether the contemporary model of rights can rise to the challenge posed by the article in lieu of abandoning rights as a project for a better society.

 

Human rights as the contemporary Western tool to protect dignity

After careful consideration, I have to confess my total agreement with the diagnosis presented by the authors, that is to say, with the criticism of the traditional liberal model. However, I cannot agree with the treatment. As already mentioned, the traditional model of human rights indeed disregards differences related to situations or identities, as well as vulnerability as a part of the human condition. Nevertheless, if human rights are not enough to protect the human dignity of all human beings, we should reformulate them instead of abandoning them. On the other hand, the principles underlying human rights lead me to admit that they are not the only possible tools for the protection of human dignity — another point in common with the authors — and that other cultures could have developed others strategies. This would imply to accept recognition as a precondition for living together.

This perspective allows to understand that “rights themselves are a far from sufficient condition for human flourishing and satisfying the need for roots” and is fully consistent with “the creation of new social and cognitive places” from a perspective of inclusion. The focus on educational spaces is indeed crucial; in this regard, it is worth reminding that the segregation to avoid is not only the racial, the ethnic and the cultural, but also the sexual, the economic and the segregation justified on grounds of ability.

 

References

[i] Baxi, U., The Future of Human Rights, Oxford University Press, New Delhi, 2002, pp. 24-41.

[ii] Ignatieff, M., Human rights as Politics and Idolatry, Princeton University Press, 2003.

[iii] Mazzarese, T., “Minimalismo dei diritti: pragmatismo antiretorico o liberalismo individualista?”, Ragion Pratica, nº 26, 2006, pp. 179-208.

[iv] De Sousa Santos, B., “Toward a Multicultural Conception of Human Rights”, in Gómez Isa, F. and De Feyter Koen (eds.), International Human Rights Law in a Global Context, University of Deusto, Bilbao, 2009, pp. 97-121,p. 106.

[v] Fineman, M., The Autonomy Myth. A Theory of Dependency, The New York Press, New York, 2004.

[vi] Benhabid, S., Situating the self: gender, community, and postmodernism in contemporary ethics, Polity Press, Cambridge, 1992.

[vii] Baxi, U., The Future of Human Rights, Oxford University Press, New Delhi, 2002, pp. 24-41.

[viii] Young, I.M., Justice and the Politics of Difference, Paperback reissue, Princeton University Press, Princeton and Oxford, 2011, p. 53.

[ix] Fredman, S., Human Rights Transformed. Positive Rights and Positive Duties, Oxford University Press, Oxford and New York, 2008.

[x] Garzón Valdés, E., “El consenso democrático: fundamento y límites del papel de las minorías”, Isonomía, nº 12, 2000.

[xi] Michelman, F., “Law’s Republic”, The Yale Law Journal, vol. 97, nº8, 1988, pp. 1493 y ss.

 

María del Carmen Barranco Avilés is Professor of Legal Philosophy at the Carlos III University of Madrid, where she directs the Institute of Human Rights “Bartolomé de las Casas”.

Thanks to Alessandro Di Rosa for his help with the English copy-editing of this comment.

 

Photo: Fabrice Coffrini / AFP


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