LIBERAL APPROACHES TO HUMAN RIGHTS
LIBERAL
APPROACHES TO HUMAN RIGHTS
Liberals have always been the watchdogs of
democratic values on the European continent. As a value-oriented force, we
should work together for an Eastern Partnership “based on commitments to the
principles of international law and to fundamental values, including
democracy, the rule of law and
the respect for human rights and fundamental freedoms”
The values and standards of
democracy, good governance and stability should actually be the basis of the
western or liberals. Human rights are a contemporary version of natural rights,
which are central to liberal thought. What could be more liberal than drawing
up a list of rights with
which to discipline states?
Most liberal public intellectuals, like Michael Ignatieff
and Richard Falk, support the
human rights project, and human rights have issued in an
extensive political practice
of NGO activism, political criticism, international judicial
decisions, and even
humanitarian military intervention. They of course acknowledge that
the Universal Declaration of
Human Rights includes a long list of rights that was not part
of earlier liberal documents,
like the Declaration of the Rights of Man and Citizen or the
Bill of Rights in the United States
of a long list of welfare
rights, such as to social security, leisure, ‘food, clothing, housing
and medical care and necessary
social services’ (Article 26), unemployment benefits,
education, and cultural
participation, is a natural extension of the early liberty (civil and
political) rights. On this
account, the contemporary conception of human rights does not
depart in its fundamentals
from earlier liberal ideas.
Before moving to
contemporary theory, it is necessary to establish the liberalview of natural
rights or ‘human rights’ and the rights-bearing subject. It is fairly clearthat
the original liberal political morality was fundamentally connected to
individual
liberty. Since Locke has been
so often claimed by the liberal tradition, I will focus on
him, though not
exclusively. The Lockean rights-bearing
subject is a rational, self-willing agent:
The Freedom then of man and Liberty of acting according to his own Will,
is grounded on his having Reason, which is able to instruct him in that Law he
is to govern himself by, and make himknow how far he is left to the freedom of
his own will.’
However, not all rights are
alienable, or conceived of as his property. The right to selfpreservation, for
instance, cannot be alienated, which is why an individual cannot sell
himself into slavery or give
to the state the power to kill him.
Yet the individual enters civil society by
consenting to alienate his natural right to judge in his own case and
byestablishing positive law and government to settle conflicts. Each enters
this contract in order better to protect his freedom to exercise his rights ‘as
he lists’: ‘a Liberty to dispose, and order, as he lists, his Person, Actions,
Possessions, and his whole Property, within the Allowance of those Laws under
which he is.’
Some rights, then, are like property, but one
or two are not, and overall no individual can properly be said to have these
rights unless he has the rational capacity to act according to his own will. So
far it would seem moral agency is fundamental. It defines the rights-bearing
capacity, and is the end thatnatural rights seem to protect. At first blush,
then, the restrictions on the alienability ofrights seem designed purely to
secure the individual’s liberty
. In the liberal tradition,
then, liberty is fundamental to rights even when it comes to
the question of
self-preservation. The duty to self-preservation derives from an interest in
individual autonomy, but also
from a duty to the system of liberty and rights of others.
Finally, it is worth noting
that some early liberals did accept certain forms of ‘welfare’
provision, so long as it did
not conflict with the recognition of individuals as free, equal,
and independent beings. But
even then, they did not suggest this provision of welfare
was a right. Later we shall
see how welfare provision on the liberal view can
complement liberty and secure
rights.
liberalism is an ideology committed to the
individual and a society in which individuals can pursue and realize their
interestLiberals espouse a wide array of views depending on their
understanding of these principles, but generally liberals support ideas such as capitalism (either regulated or not),constitutionalism, liberal democracy, free
and fair elections,human rights and the free exercise of religion.[ The early liberal thinker John Locke, who is
often credited for the creation of liberalism as a distinct philosophical
tradition, employed the concept of natural rights and the social contract to argue that the rule of law should replace both Traditionalism and absolutism in government,
that rulers were subject to the consent of the governed, and
that private individuals had a fundamental right to life, liberty, and property.
Liberal
Human Rights Theory
The modern liberal conception of human rights
is guided generally by two different viewpoints competing between human rights
as needs-based morality and human rights as political commitment to individual
liberty. Following Isaiah Berlin
What both these theories seem to rely on is an
external institution or agent that allows the rights to be “given” or “ensured”
to the rights holder. Moreover, both rely heavily upon a theory of
individualism. But it can be said that the contemporary human rights movement
“lost” something from the past, classical liberal position on rights. As David
Chandler puts it:
What was lost in the promulgation of human
rights theory in the 1990s was the connection between rights and the subjects
who can exercise those rights [...] This separation of rights from their
subjects leads to the redefinition of both rights and subjects through the
human rights discourse. In fact, the logical conclusion of human rights policy
would be the end of politics as a sphere for the resolution of social questions
of the distribution of goods and policy making.4
This is seen as the departure from the
“negative rights” liberal viewpoint and a move towards the “positive rights”
position. But was this ever the case? Was this connection ever “there” in the
first place in order for it to be “lost”? The conception of rights in and of
themselves seem to presuppose a relationship between a certain type of institution--one
that can bestow or grant rights--and the subject and thus a certain apolitical
morality and ethics.
The “positive” conception holds that liberty
of the individual is not a fundamental aspect of human rights but instead
places a premium upon the needs that rights protect. The “negative” conception
argues along the lines of the classical conception of liberal thought and
references “natural rights.” These recognition of rights assign a certain type
of moral agency to the individual and are based on a certain interpretation of
human nature. What follows from this conception is a society that creates
institutions that are arranged upon the assumption of an individualist
conception of moral agency. As Seven B. Smith, speaking on Hegel’s critique of Liberalism,
puts it:
In fact, to speak about rights is not to
assert a simple proposition but is implicitly to make a complex set of
interlocking claims that can be reduced to five parts: who shall enjoy which
rights under what circumstances and for what purposes, and which kinds of
restraints need to be imposed to make the enjoyment of those rights possible?
An appeal to rights necessarily involves an appeal to the social and political
institutions and institutions that make the protection of rights possible.5
What is problematic about this position is
that assumes a monopoly on what human nature is and builds a society and its
institutions around that conception.
The theory of natural rights emerged from a
specific historical condition. In the time which most classic liberal writers
emerged and propagated their theories the conception of “man,” the essential
rights holder, was quite literal if not more so. In fact, “man” basically meant
white, property owning man. Women, blacks and unpropertied laborers were not
part of the equation due to their material dependence as a condition for
limiting their inclusion and use of reason. Thus, it is argued that the theory
of “natural rights” was simply an empirical view of the world as opposed to a
natural theory. Hegel was one of the first philosophers to point out that the
universality of theorists like Locke and Hobbes were not really empirical, but
based on preconceived, “theory loaded” conceptions:
Thus, despite the empiricists’ claims to have
built their theories of natural rights on the simplest and most elementary
needs, their methods of determining these needs is already “theory loaded.”
Their descriptions of these needs are not simply neutral but invariably commit
them to adopting a particular view of society and the future.6
As such, the historical conditions of the time
of the writing of the classic liberal writers largely influenced their view of
society. It would be a fallacy to assume that modern liberal human rights
theory has somehow overcome that era and are not themselves a reflection of
modern historical conditions.
A certain contradiction emerges when one looks
beyond the revolutionary movements that overthrew monarchism and feudalism and
instead to the reform movements that included workers, women and minorities
into the realm of rights. What is essential to recognize about the recognition
of their rights is that they were basically appealing to a higher power to give
them their rights as opposed to a revolutionary movement which sees itself as
becoming that higher power. Thus, the position within liberal human rights
theory that gives privilege to the classical “rights struggle” because it is an
exercise of moral agency instead of a “third-party paternalism” is decidedly
false. Aside from the revolutionary movements, almost all instances in which
marginalized groups of people attained their “rights” were through the granting
of them by the higher, paternal authority of the state and its legal system.
Additionally, the granting of rights only coincided with the historical
economic and political conditions that made them feasible. If it were not for
the change in these conditions, violent suppression of these marginal groups
would have continued (much as they do today in the underdeveloped parts of the
world).
Furthermore, liberal theorists like John Rawls
see certain political issues as being “settled once and for all”:
[W]hen certain matters are taken off the
political agenda, they are no longer regarded as appropriate subjects for
political decision by majority or other plurality voting. For example, in
regards to equal liberty of conscience and the rejection of slavery and
serfdom, this means that the equal basic liberties in the constitution that
cover these matters are reasonably taken as fixed, as correctly settled once
and for all. They are part of the public charter of a constitutional regime and
not a suitable topic for ongoing public debate and legislation, as if they can
be changed, one way or the other by the requisite majorities.7
As Rawls puts it, there are some issues which
are off the table. Political representation of those who advocate for “slavery”
or “feudalism” do not enjoy a representation in the congresses of Western
nations. But the limit of liberal theory is that it does not recognize how we
got to this point. The fact is that these constituents did not simply retreat
from the political sphere. In most cases they were forcefully suppressed and
following this, the ethical and moral coordinates of political society
continued to exert pressure on the social and cultural norms that made
“slavery” and “Feudalism” no longer part of rational, reasonable discussion.
Another problem with the “negative” view of
human rights is that it has been largely seen as the political component of
laissez faire free market capitalism in the economic realm. In other words, the
liberal “negative rights” holding “individualist” position on human rights is
one of political and civil rights as opposed to material ones. The necessity of
material subsistence is seen as something to been achieved through means of
“self-preservation” which certain political and civil rights--such as the right
to freedom of association or the right to property--are to facilitate.
Moreover, this position advocates a distinction between those rights which are
decided upon “politically” and those that are decided upon “morally.” In this
sense, the rights holder contributes to the process in which rights are
enforced an articulated instead of being a “passive receiver” of human rights
that are entitled to him from a higher moral authority. This position has been
seen as largely discredited especially seeing as how almost no modern
democratic liberal government functions on this level of rights. Although there
may have been a time when non-interference was enough in respect to liberty,
the conditions of industrialization and the progression of capitalism has
forced a re-conceptualizing of what human rights entail. Part of the
delegitimization of this position rests on the issue regarding that in order to
exercise the right to participate in the process certain preconditions are
necessary such as material security and those with more of it tend to exercise
the “right to participation” unequally than those with less. Furthermore, this
“individualist” position seems to be wholly incapable of taking into account
and acting upon conceived morally desperate situations--especially in the
international arena given cases of genocide and ethnic cleansing.
This again can be seen as a limitation on the
theory and conception of liberal human rights theory and the political
institutions it entails in the face of changing historical conditions. In a
world of globalization, interdependency, transnational corporations and a
myriad of other international concerns that did not underscore the fabric of
society during the heyday of classic liberalism, the conception of the
“individualist” human rights theory seems entirely outdated and inadequate to
deal with these problems. If it were to be truly enacted in practice, it would
amount to a political position of sitting by and watching as one group of
people committed genocide upon another and excused as an example of “the rights
struggle”--as people exercising their moral agency in a battle to claim their
rights.
The “positive” view of human rights encounters its own contemporary
problems and are at the heart of the debate within liberalism. The question
regarding the “positive” view is that it is uncertain of who is to ensure that
rights are ful filled. If the “negative” position cannot adequately deal with
the problems of new historical conditions, then perhaps the “positive” position
can. But even if this conception is seen as advancing the interests
of the down trodden masses of the world in situations where
intervention was seemingly necessary because the situation could not allow a
waiting period for those people to exercise their own sovereignty and claim
their rights for themselves, it is not hard to see how this can be seen as a position
which advocates for the “victim hood” of those who are “powerless” and paints
them as needy and pitiful. This position obviously defends a conception of
human rights that requires moral intervention on behalf of these “powerless” in
the name of a higher moral authority and ethical superiority. What this amounts
to is essentially a form of “humanitarian imperialism.
Liberalism is a historical movement the same as any. It began
as a political movement aiming to replace the institutions of feudalism and
monarchism with ones based on individual liberty. It has evolved into something
different which can best be seen as two different positions; a moralistic and
ethical superiority discourse that seeks to impose itself in a form of
humanitarian imperialism or a liberalism with a libertarian tinge that
advocates nonintervention and thus excuses gross misery on the basis of the
subjects “struggle for rights.” The contemporary human rights movement thus
acts as an obscurant for the relations of power and the interests they
represent. The agency is not in the individual, but in the institutions that do
the empowering actions of intervention, defense or assistance that is portrayed
as an exercise of moral duty or protects the rights of the holder within a
certain border. Using the US
intervention in Iraq
It is clear that the US over throw of Saddam Hussein,
legitimized in terms of ending the suffering of the Iraqi people, was not only
motivated by other political-economic interests (oil), but also based on a
specific idea of the political and economic conditions that should open up the
perspective of freedom to the Iraqi people (Western liberal democracy,
guarantee of private property, inclusion in the global market economy, and so
on). Thus the purely humanitarian antipolitical politics of merely preventing
suffering amounts in effect to the implicit prohibition of elaborating a
positive collective project of sociopolitical transformation.8
When power is used from a position of moral
truth, it does not have to use the more discomforting language of the political
or economic type. While the classic liberal position would like to encourage
more transparency, more checks and balances, liberty that is more individual
and less state intervention, it is obvious that this position is naive. The
liberal state itself is founded on position of moral supremacy, not just
political action, and will continue to exercise this supremacy. Moreover, the
idea that the ideal liberal state is constituted upon a political relationship
of reciprocal responsibility to its liberty practicing, rights-bearing,
politically active constituents who are constantly in a position to check a
“morally superior” exercise of state power and intervention is equally naive.
It does not adequately take into account an important issue regarding issues of
class and economic relations.
If one defends human rights the liberal
perspective today, one is defending a status quo situation of specific types of
institutions and more or less defending the highjacking of the theory in the
interest of modern power relations. Liberal human rights theory was once a
progressive calling designed to check and eventually overthrow the whimsical
institutional powers of theocratic and monarchist regimes and give a voice to
oppressed, but this is not the case today.
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