Which theory of “rights” will dominate in the 21st century?

The most formidable critique of the concept of human rights comes from the German reactionary (and avowedly Nazi) legal scholar Carl Schmitt who insisted in his book, The Concept of the Political, that the politicising of the concept of “humanity” in an attempt to transcend the idea of the “political” (sovereign power) meant that the modern liberal state relegates its enemies to a status of non-humanity: “At the expense of its opponent, it tries to identify itself with humanity in the same way as one can misuse peace, justice, progress, and civilisation in order to claim these as one’s own and to deny the same to the enemy.”

The consequences of the monopolisation of “humanity” subsequently has “certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity.” Such charges have been levelled against those who justified the Iraq War on humanitarian grounds, or who advocated “enhanced interrogation techniques” were used on terrorist suspects.

I do not endorse this critique; I bring it up to keep proponents of a discourse of human rights on their toes, and remind them that human rights are not a default positon but something that must continually fought for, both on a political and intellectual level. However, in the rush to condemn various tyrannies, along with the infractions of Western states, many have not recognised a growing trend across the world, an insidious idea that I have taken to call ‘selective civil rights’, which is in effect a perverse parody of Schmitt’s critique.

There is no equal playing field here

We are all familiar with the situation of watching the news with an older relative, only for the image of a terrorist or a rapist to come on the screen and for that relative to loudly proclaim: “He wants shooting him!” Or maybe the prescription is not shooting, but torture, or exile, or imprisonment without trial. When you have the energy to do something other than roll your eyes, you often attempt to counter them on the grounds of human rights.

The invocation of human rights inevitably involves a reply along the lines of an appeal to group protection: what of “our” rights as citizens not to be attacked? What of the rights of all the women who have been raped? In this formulation, the rights of one group — citizens and rape victims for example — outweighs the group or individual being penalised for their alleged crime.

There is no equal playing field here; this idea of rights is “selective” because it insists that rights are awarded in degrees and are mutable by the state; they are “civil” as opposed to universal because they appeal to state power rather than ‘higher order’ principles.

This has perhaps been a view held amongst many people throughout the whole of modernity, but in the 21st century it has become a real foundation for a revitalised reactionary politics in a globalised era. For example, there were countless instances in the aftermath of the referendum of Leave supporters saying that virtually all European migrants should be immediately repatriated. When reminded that such a policy would not only break current agreements, but would infringe on human rights, the uniform chorus was almost deafening: “But what about British people? What about our rights?”

This is in no way confined to the reactionary right: when George Zimmerman was acquitted of the murder of Trayvon Martin, the editor of Jacobin Bhaskar Sunkara tweeted that it would be better if the Zimmerman case had been arbitrarily ruled on by a “people’s tribunal”, a fair trial be damned (the tweet has long since vanished). For him, Zimmerman was a nothing but a racist murderer; his rights were mutable to those of all African-Americans and the upholding of leftist decency. Of course, the verdict was ridiculous, but due process is not.

Often enough, to argue in favour of upholding the rights of Europeans is to be accused of loving them more than fellow Britons, and to have one’s own rights negated. To call an arbitrary ruling on Zimmerman by a group of self-interested moralists an affront to justice, is to be denounced as a “liberal”, or possibly a racist, and again have one’s rights negated.

we can have universal human rights, but only if we are consistent in applying them, and remain vigilant

In summary, the ‘humanity’ of the targeted is not enough for them to be treated as less than human.

Contrast this with a doctrine of universal human rights, rooted in the Kantian ideals of cosmopolitanism and respect for individual autonomy, wherein no individual is allowed to predominate over the other. This is not ‘mere liberalism’; these are the central humanist principles of the Enlightenment gasping for air in an age of resurgent nationalism, identitarianism, and communitarian fanaticism.

This is not to claim that human rights exist somehow as a property of the physical world: they are a discourse, a cultural construction of human speech and custom, but this does not drain them of ethical value. Human rights are not absolute; there are times a utilitarian action for the common good is the only decent solution that cannot respect the rights of every individual. But this does not mean that we should not nominally treat human rights as a core foundation.

To answer to both Schmitt and the ‘selectivists’: yes, we can have universal human rights, but only if we are consistent in applying them, and remain vigilant. But ultimately, the dividing line has already been set between those who believe in inalienable and universal rights, and those who believe that rights are relativistic and limited to their own select group as far as justice is concerned.

Which side shall win? The universalists have already ended up ceding ground to both the right-wing populism of Putin and Trump, and the identitarian groups who demand restricted “safe spaces” and different rules of conduct on racial and sexual grounds — all of them working from selectivist conventions.

The only way universalists will win is not to give into the selectivist discourse, and that the discourse of universalism must be defended, and continuously reinforced through rigorous discussion.


More about the author

About the author

Harris Coverley writes the Tweet Checking column for Disclaimer and is constantly looking for readers to help him correct the worst of internet. No stupidity or falsehood is too great a challenge.

He lives in Manchester and holds an MA in Intellectual History from UCL. He also writes short fiction and poetry, the former of which only Disclaimer has had the good sense to publish.

Follow Harris on Twitter.

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