The Tragedy of Human Rights: Liberalism and the Loss of Belonging – A reply to our Critics
Adam B. Seligman 23 July 2020

Before anything else, I would like to thank everyone for contributing to this project. Conversation among friends and colleagues is the only way that any of us can move to greater understanding of the issues we are deeply concerned with and so I am grateful to all for your thoughts and the time you have taken in putting them into writing. For all these reasons and many more, I wish to extend special thanks to Silvio Ferrari for organizing this exchange.

I would like to begin by noting how fascinating it is to me to see that the focus of almost all contributions has been on the issue of human rights and its “tragedy”. Yes, that indeed was the provocative title of the article, provocative on purpose. But do remember, tragedy (from Aristotle to Umberto Eco) is experienced when we identify with the tragic hero who violates a major norm and whose fate leaves us with increased empathy and a broadening of our moral vision. So our fundamental attitude toward human rights and its failure to provide what it seemed to promise should be clear. We never suggested that human rights should be “abandoned” as Maria del Carmen Barranco Aviles seems to suggest. Nor do we insist that we must chose “belonging instead of rights” as Elena Pariotti implies. We do claim that a politics of rights that has ignored the need for belonging has led to extremely deleterious consequences – which is a very different type of argument – and speaks exactly to her point that the “language of human rights” can face contemporary challenges only when the “idea of belonging” is also articulated. Our whole paper is an argument for just that approach.

While aimed at putting in relief the tension between rights and their outcomes, some of our interlocutors saw the title as “a punch in the gut”, others argued at length over the two words we said on constitutional rights, still others sought to re-reconceptualize human rights in a more useful way (an attempt we applaud), and yet others rose to its defense. My feeling, however, is that most simply missed the point of the paper. For we never state that rights should be subordinate to belonging nor that belonging was a “solution” (to which problem is not clear) as Zanetti seems to indicate. In fact, we stress that belonging is a human need and as such must be recognized and dealt with rather than simply ignored, denied, or wished away. This need may well be, and often enough is, “problematic”, (as we indicate) but an ideology of rights does not have the tools to address it.

Nowhere however did we claim that human rights are a “bad idea,”, or should not be advanced or that law is not necessary for human wellbeing. We explicitly state the opposite and do so more than once. What we do claim is that by making “rights the highest and most noble of our social and political virtues” we have ignored other, equally important visions of the human good. We question “the idea of human rights as the primary vehicle” for articulating visions of the moral good. Yet this nuance is lost in almost all the responses to our article. The real thrust of the article—on belonging and the human need to belong—is, in most the papers, ignored, glossed over or understood as inherently rightist and ethnocentric. It is also equated with “identity,” though we are at great pains to show the difference between identity and belonging. This is a reprise of precisely the problem we were trying to address.

It is interesting by the way, that in the current massive protests over policing, racism, and white supremacy in the USA, none of the protest discourse centers on rights. Where rights are mentioned it is in the right-wing media and pundits, supporters of the Trump administration telling us that the President has “a right” to go to any church he pleases or the police have a “right” to protect property.1 The struggle of the protestors—black, white, brown, and all shades between—is over belonging. More than 55 years after the signing of the Civil Rights Act, black Americans are still not treated as belonging to the polity. In opposition to the massive street protests stand conservative and right-wing forces still determined to withhold by means fair and foul, full citizenship to all members of the civitas. To miss this and to think that this is a struggle over human rights is simply to turn a willfully blind eye to political developments and more, to the social reality underlying them.2 Belonging and its boundaries, in other words, membership—as we say in the article—is being negotiated and struggled over. “Rights”, as Karl Marx realized so long ago in On the Jewish Question, are a weapon in this struggle.

Current events notwithstanding, our interlocutors have expressed themselves in a wide-ranging set of arguments that cannot be individually addressed in the space allowed. Thus, out of necessity, I respond through a grouping of two recurrent themes that emerge in many of the papers: the individual and collective and the particular and universal.

Individual Autonomy and Collective Belonging

Many of the papers start from a position that individual autonomy is a self-understood human good. Freedom is understood in terms of autonomy (F.J. Roig), as the actions of the “original and active free will” and, consequently, belonging is “a state of affairs from which one needs to emerge” in order to realize the “constitutive autonomy” of the individual (Botturi). This is the taken-for-granted assumption of many secular liberals and an admirable one among others. However, a quick glance around the world will prove that there are literally billions of individuals who understand themselves as living subnomos, under revealed codes of conduct where freedom is understood as the actualization of revealed commands. This notion of existing subnomos by the way does not at all impinge on an individual’s freedom, use of reason, ability to dissent from collective decisions or any of the other constraints on individual agency that many of our interlocutors seem to equate with our views. Lucia Bellucci in fact brings in quotes from Malinowski and Leach on archaic, relatively undifferentiated societies to show how even in such formations there was room and “relevant space for individual freedom”. But to what purpose? Ours is not an argument against freedom, but for the need to recognize the human need for belonging and certain effects that follow. It is a matter of no small importance however that almost all our interlocutors suggest that one can only exist at the expense of the other. It is thus most curious how simply raising some questions on the possible negative consequences of the current hegemonic rule of a politics based on human rights is taken to be an attack on the individual per se.

There are at least two issues here that should not be conflated. One is the issue of autonomy and how terribly mistaken it would be to assume that the literally billions of people who see it differently than secular liberals are somehow automatically tainted with a right-wing brush. This is simply not true. The other issue is belonging. I recall a discussion with a human rights activist in Chisinau (what for some of us with historical memories will always be Kishinev, because of the 1903 and 1905 pogroms) who was very upset with the thesis presented in our paper and claimed that of course she had a community of belonging – other human rights activists in Geneva. When I asked her if they would bury her mother there was total silence as if I had uttered an obscenity. This is no small matter. I have attended strategic planning meetings by the Open Society Foundation where the organization was trying to come to terms with (what I term their) failure or (what they term the) backlash to their work in Eurasia. They blamed the Russian secret service (which clearly plays an important role) and the American Evangelical missionaries (who also play a role). No one seemed willing however to go deeper and to admit the possibility that an Orthodox priest can give to a Romanian peasant something that no human rights activist can. Here too, it seems to me that Marx had something relevant to say on this issue over 150 years ago.

In East Africa when you ask people where home is, they tell you: “Where my ancestors are buried.” This is true among many peoples in the world, though not so much among Western liberal academics, which is perhaps one reason for so many misunderstandings. Different homes however understand such matters as individual, community, terms of communal membership and so on very differently. A good case in point is the issue of Female Genital Modification. In the Karamoja cluster (North-East Uganda, North-West Kenya, South Sudan) it is practiced by many ethnic groups who also practice a rather extreme form of male circumcision, where the skin of the whole penis is stripped off. Human rights groups – who are by the way oblivious to male circumcision as it is not on their global “agenda” – are of course aghast at the practice of female circumcision (now illegal in both Uganda and Kenya, which means that is simply going underground and is medically more dangerous for that). Coming from abroad with serious funding and state support they make the type of arguments for freedom and autonomy articulated in some of these papers. These Kantian arguments are advanced in the middle of the bush, with no running water, no electricity (outside of the occasional generator), dire poverty, no medical care or education among illiterate farmers and cattle herders. Monies are disbursed, village power is realigned, and the Enlightenment advanced. No one pays much attention to the fact that uncircumcised males have no authority at all in the village, are laughed at, and on death their bodies are not taken out through the hut’s threshold, but a small hole is made in the mud wall and they are dragged out with a rope around their neck, “like a dead dog.”3 Uncircumcised females are prohibited from gathering dung to insulate their huts, do not have access to grain stores, and must give their place in the line for water to a circumcised woman. They have no place in society.

This is not to say that female circumcision or modification or mutilation (and the word used already “gives away” one’s position) is necessarily a good thing. It is to say however that the issue is much broader than human rights. To make an argument about human rights and ignore the social consequences of its implementation is really a dangerous arrogance. To refuse to recognize the existence of other, competing moral goods and values, is a form of neo-colonialism.

Once before Europeans brought their truths to the African continent. Millions suffered as a result and many millions are still suffering with its consequences. As for allowing those Africans whose social structure, kinship organization, and sense of belonging have been usurped by the new ideology of rights—human rights, rights to property, to sexual expression, to individual autonomy (as opposed to collective responsibility)—into Europe: well, that is another matter as we well know. (In fact, if we wish to reconsider, as Zanetti requests, our questioning the morality of linking foreign aid to the legal status of sexually non-conforming individuals, we should bear in mind as well that only approximately 10 percent of those persecuted for their sexual orientation and seeking European asylum have their applications granted.)4

One final word on this theme. At least one of the papers seems to imply that the need for belonging to a community with its own boundaries—of inclusion and hence exclusion—necessitates an almost automatic “friend-enemy opposition” to those beyond its boundaries (Luzzati). As we see from John Holmwood’s paper, this was certainly not the case, at least in terms of Britain’s Muslim citizens who, against formidable opposition, are seeking integration through the most quotidian of venues, education. In this context, it is well to bring into the discussion a recent article in the NY Times on the ultra-orthodox Hasidic community in New York State who were hard hit by the coronavirus and whose members then drove hundreds of kilometers to donate plasma in hospitals of distant states such as Delaware and Pennsylvania.5 These are not communities organized on the basis of human rights, nor ones who would agree at all with its Kantian foundations. Yet, the communal rabbis told people to violate the Sabbath, an almost unimaginable violation, in order to donate the plasma. Now one cannot find a more closed, particularistic community nor one with such a strong ethos of exclusion and high, almost impregnable, boundaries. Yet, they were told by their leaders to violate the most sacred of commandments in order to save human lives—not Jewish lives, mind you, but human lives. There are then a multitude of possible bases for human good, as for inter-personal and inter-communal relations, not predicated at all on human rights or a belief in individual autonomy; as was evinced by a recent demonstration of ultra-orthodox Hasidic Jews in favor of Black Lives Matter.6 Contra Zanetti, I would argue that people can feel affinity as well as empathy for others without necessarily sharing with them a sense of belonging. I would add here that, in opposition to the claim made by Pariotti, there are in fact many existential conditions that do “exercise a normative force”. The Bible is replete with the normative force exercised by the widow, orphan, and stranger.

 

Minority Protection and Universal Values

Silvio Ferrari has offered a strong defense of human rights along several different axes, many with which I agree. When he cautions that rights are not tasked with providing belonging, for instance, I totally agree. If rights cannot provide belonging and belonging is necessary to human well-being, then politics predicated solely on rights has something deeply amiss and cannot provide for certain basic human needs. That is the point of our article—again, one that many seemed to miss. When Ferrari speaks in favor of legal pluralism, I could not agree more. For what is legal pluralism? It is precisely the mediation of abstract universal individual rights with a recognition of communal, collective mores, desiderata, ways of thinking and behaving, expectations and ideas of selfhood that are not universal or fungible. It is a recognition of the existence, alongside of every nomos, of a narrative tradition as well, to paraphrase Robert Cover, who Ferrari refers to approvingly. As Cover taught, “For every constitution there is an epic, for each Decalogue a scripture.”7 In Ferrari’s reading of Cover, the role of these epics and constitutions are “jurisgenetic” but also unstable and given to sectarianism and incoherence, and therefore need to be modified by external forces to ensure maintenance and regulation of the system. He clearly identifies human rights with these regulatory functions. But perhaps human rights law is, itself, “jurisgenetic” of a very particular community and it too suffers from incoherence, sectarianism and dissociative effects. Think not only of the case of FGM noted above, but also the role of the International Criminal Court in the post Lord’s Resistance Army wars in northern Uganda. The ICC sought criminal liability for perpetrators of crimes. The villages sought to reintegrate children combatants into the structures of village life and find a way for former combatants, indeed for former perpetrators and victims, to live together. There are traditional ways of effecting this, not at all based on Western notions of culpability.8 The conflict was not between a jurisgenetic law and a regulatory one, but of two forms of jurisgenetic law; only one, however, claiming universal validity. Pilar Zambrano’s suggestion of a “realist semantic approach to the discourse of rights” would therefore be very interesting to explore in this context and would seem to point to yet an additional tool (to that of legal pluralism) to connect rights to concrete, particular cultural and so, lived, human imperatives.

One further important point raised by Ferrari has to do with minority rights and the importance of human rights legislation to guarantee minority freedoms. Indeed, in some instances this is no doubt the case, but it is not always the case by any means. Holmwood’s paper presents a very strong example for how a discourse of rights as embodied in the Human Rights Act of 2010 was used in the United Kingdom to discriminate against Muslim citizens in the Trojan Horse Affair and prevent their achieving full membership in the collective—using rights-based arguments all the way. Anver Emon has made similar arguments in the context of French law.9 Didi Herman does something similar in her book, An Unfortunate Coincidence on English law and Jewish communities.10 What Holmwood (and to some extent Emon and Herman) does so admirably is to show just how historically embedded are ideas of rights (a path outlined by Marx in the 19th century) and of communities so constituted, and how problematic is an uncritical avowal of universal human rights without taking into account the historical circumstances of domination, imperialism, and colonialism in the making of this European ideal. Indeed, in an ironic twist, American Secretary of State Mike Pompeo and other evangelical Christians in the United States, for whom the “right” of religious conversion is primary – are in fact using historical arguments to limit universal human rights to that of the “freedom of religion”, thus pursuing their sectarian politics through the so-called regulatory framework of human rights.11 How this “right” is currently being played out on the African continent under the auspices of American Evangelical missionaries is itself a fascinating study in social dislocation and the fraying of collective mutuality.

Which takes us to the problem of universalism and particularism that is at the core of so many of the critiques of our work. For, after all, our argument is an attempt to carve out a place for the particular individual, community, tribe, or, following Holmwood and Burke, “little platoon.” The tension between the two – and it is a tension, as Talcott Parsons realized 70 years ago – is not only irreconcilable but constitutive of society. Any attempt to resolve it in one of its terms, including that of universal human rights leads to tragedy. The 20th century provides ample examples. Connected to this tension is that between trust and confidence, which we note in the article and which is addressed by our interlocutors. However, to identify trust with law, as does Andrea Pin, is profoundly mistaken, at least sociologically. Confidence is abstract, and most often, but not solely, identified with our attitudes toward institutions, including legal institutions (in which we may or may not have confidence) and has to do with our ability, or assumed ability, to predict outcomes. Trust on the other hand is mostly associated with individuals, with whom we have some familiarity, some bonds and ties, and toward whom we are willing to grant some “moral credit” even though we cannot confidently predict their response or action in a given concrete situation. 12 We are willing to trust them as we have neither sanctions nor the law to impose sanctions as a basis of confidence.13 It is an indicator of a very different set of relationships than is confidence and truly we cannot live a full human life without either which is why we totally agree with Pin’s final sentence that “a sense of belonging cannot properly develop unless political and legal institutions reconsider their role”. Our paper was a modest contribution in this direction, to push scholars to precisely this reconsideration. A final word on trust and belonging; just to note that Lucia Bellucci totally misunderstood us pertaining to others experienced as either a risk or as a danger. We clearly were referring to others inside the community, not to outsiders from other communities. It goes without saying that outsiders are perceived as a danger to communities of trust, certainly, for example, if they happen to be white Christian invaders.

Conclusion

One move in this direction of reconsideration is to recognize where our scholarly arguments are inhibited by our own taken-for-granted worlds; and that such starting assumptions lead us along particular paths and not others. One such assumption turns on the idea of identity; that, for example, our identities are “intersectional”. I wonder if this is an emic or an etic determination. While very much a new buzz word among academics and other educated elites, it is unclear just how many folks outside of first world countries see themselves in these terms. The answer given to the Soviet-era politruk’s question “Who are you?”, for example, sums up the experience of most: “We are Orthodox” [that is, Christian].

Viola, on the other hand, begins by positing the “crises of collective identity”—something that I do not believe holds true globally—which he presents first as an empirical observation then moves on to a normative claim that social cooperation requires the need to modify “one’s own choices political, cultural or identitarian.” This of course assumes that our “identities” are a choice; a preference, perhaps like our taste in ice-cream or automobiles. Viola is claiming that to live together we must all live in a particular manner, that is, the manner the author approves of: as fungible, negotiable selves, unconnected to any transcendent truth or sacred conceptions. In other words, the only way to live together is not to belong anywhere. Loyalty, commitment, honor, none of these are values beyond the transactional. And if the privatization of land holding in Africa, under the aegis of the World Bank, is ripping society apart leading to high rates of alcoholism and prostitution, or if, under the freedom of religion, the new Christian families among the Roma of Bulgaria are undermining traditional life, ties and sense of mutuality, these are just the costs of the “free flowering” of newly private individuals.

Not that long ago there was a different experiment in Eastern Europe, Eurasia, and elsewhere dedicated to the establishment of a “new” (socialist) man. It too sought to destroy existing solidarities, kinship systems, religious obligations, and terms of collective mutuality. Then too the results were not particularly salutary. To see human rights and its liberal-individualist “justificatory approach to ethical and political values in the public sphere” as the sole arbiter of human good and fulfillment, which most of our interlocutors do (the quote is Pariotti’s) coupled with the utter rejection of the human need to belong as “unsuitable to frame public choices in pluralistic societies” (again, Pariotti) is to evince no small degree of historical ignorance if not arrogance toward our shared past—whether of late antiquity, the plural societies of empire, or indeed of many pre-nation state formations. It is not only blind to tradition, but betrays the cultural hubris of the conqueror, not of the conquered—not of the first nations in the Americas nor of the colonized peoples of Africa, Asia, or the Middle East.

A similar concern arises in terms of Lucia Bellucci’s warning that stressing religious differences is less than constructive (though to what end is not really explicated). I do not know if it is constructive or not, but it is certainly an empirical fact and has been for millennia. As such it must be acknowledged and incorporated into our understanding of the world and not simply wished away because some of us do not happen to feel religiously obligated. More troubling is that such calls to minimize (or trivialize) religious differences have generally been made from the position of the powerful and of the majorities; minorities on the other hand have fought tooth and nail to maintain their cultures, histories, languages, rituals, mores, and peoplehood. Such a warning as hers resonates for example only too well with the thousands of years of complaints against Jewish “difference”; from Antiochus Epiphanes’s repression of Jewish practice in the second century BCE; to Napoleon’s attempt to force every third Jewish marriage to be with a non-Jew in order to assimilate the Jews into the polity (not to mention more recent and well known histories).14 This is a story all minorities fear; it ended poorly then and we fear it may end poorly now as well.

Bellucci fears Europe’s “authoritarian” and “inhuman” past. However, as William Faulkner has taught us; “The past is never dead, it is not even past.” This is a truth evident in the myriad of rightist, authoritarian, Islamaphobic, anti-Semitic, and anti-immigrant parties, movements, and even governments in Europe today. These political forces are nevertheless rooted in real—and legitimate—human needs; needs too often ignored by the left and other advocates of human rights. Unless we admit these needs, we will forever be controlled by them, rather than ascendant over them.


References

1 Or, for example, the Trump supporting Arizona sheriff who refused to implement state stay-at-home orders (i.e. the law, enacted by the governor) because in the sheriff’s words “We are here to protect people from government overreach; we are here to protect their rights”. https://www.nytimes.com/2020/06/18/us/coronavirus-arizona-stay-at-home-mark-lamb.html (Accessed June 19, 2020).

2 It is telling moreover, that the only language in which to articulate the demands of the protesters in international fora is that of human rights; though the language of rights was not present in the protests, either against police brutality or white supremacy or racism or the agitation to remove statues of confederate soldiers and other advocates of slavery. See: https://www.nytimes.com/2020/06/17/world/europe/george-floyd-united-nations-human-rights-council.html (Accessed June 18, 2020)

3 CEDAR/EPA field-notes, Bukwa district, December 2019.

4 Data on this is very hard to come by and far from exact as with the exception of Belgium no European government provides information on LGBTQ+ asylum seekers https://www.humanityinaction.org/knowledge_detail/incredibly-queer-sexuality-based-asylum-in-the-european-union/

7 Robert Cover, Narrative, Violence and the Law: The Essays of Robert Cover. Ann Arbor: University of Michigan Press, 1992, pg.101.

8 Benedicto Kabiito and Margaret Angucia, Remembrance, Reconciliation and Community Reintegration: Living the Healing of War Memories in Northern Uganda. Kampala: Uganda Martyrs University Press, 2017.

9 Anver Emon, Religious Pluralism and Islamic Law. NY: Oxford University Press, 2012, pp. 272-291.

10 Didi Herman, An Unfortunate Coincidence. NY: Oxford University Press, 2011.

12 See on these issues: Adam Seligman, The Problem of Trust. Princeton: Princeton University Press, 1997; Niklas Luhmann, Trust and Power. NY: John Wiley, 1979; Anthony Giddens, The Consequences of Modernity. Stanford: Stanford University Press, 1990.

13 On this idea see, Keith Hart, “Kinship, Contract and Trust: The Economic Organization of Migrants in an African City Slum” in Trust: Making and Breaking of Cooperative Relations ed. by Diego Gambetta, Oxford: Basil Blackwell, 1988.

14 Jay Berkovitz, The Shaping of Jewish Identity in Nineteenth Century France. Detroit: Wayne Stat University Press, 1989, pg.44.

 

Photo: Yonas Tadesse / AFP


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