Anti-individual morality in the international human rights system
| Published date | 01 June 2022 |
| DOI | 10.1177/09240519221092588 |
| Date | 01 June 2022 |
| Author | David McGrogan |
| Subject Matter | Articles |
Anti-individual morality in the
international human rights
system
David McGrogan
Associate Professor of Law, Northumbria Law School, Northumbria University,
CCE1, Newcastle upon Tyne, UK of Great Britain and Northern Ireland, NE1 8ST
Abstract
This article argues that modern human rights practice is largely imbued with an understanding of
morality which is properly described as ‘anti-individual’in the sense in which Michael Oakeshott
used that phrase. In summary, this means that the contemporary human rights movement is
informed by a vision of morality as something that is to be imposed on populations from above
for their own good, rather than something that inheres within each individual and is contingent
on free choice. This gives effect to a fundamentally managerial approach, meaning that international
human rights lawnow largely manifests itself in obligationsimposed on States to coordinate societies
towards benevolent ends. This undoubtedly derives from goodmotives, but it means that the human
rights movement for the most part buttresses an aggrandisement of the State that will happen
regardless. This places it on the si de of a creeping paternalistic ‘soft d espotism’–a development
that is to be regretted.
Keywords
Morality, oakeshott, negative freedom, criticism, the individual, capabilities approach
1. INTRODUCTION
Modern human rights practice is an increasingly technical exercise, often focused on the achieve-
ment of statistically verified goals of various kinds. In this article, I identify within this trend the
prevalence of a particular understanding of morality, which the English political philosopher
Michael Oakeshott labelled ‘anti-individual’. According to Oakeshott, there is in modern
Corresponding author:
David McGrogan, Associate Professor of Law, Northumbria Law School, Northumbria University,CCE1, Newcastle upon
Tyne, United Kingdom of Great Britain and Northern Ireland, NE1 8ST.
Email: david.mcgrogan@northumbria.ac.uk
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(2) 137–157
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519221092588
journals.sagepub.com/home/nqh
governance a tendency to understand moral choice as being properly exercised by a class of experts
who coordinate society towards benign, pre-determined ends, rather than something that inheres
within each individual person. This, I suggest, manifests itself in the sphere of human rights in a
conceptualisation of human rights law as being the means by which to bring about the improvement
of universal welfare or well-being. Here, human rights become understood to be both the justifica-
tion for the setting of certain societal goals, and as the means by which those goals are to be met,
achieved chiefly through putting obligations on the State. This in turn encourages an increasingly
managerial perspective on how human rights obligations are to be implemented –a vision of the
State as the coordinator of society towards certain objectives. The consequence of the prevalence
of this kind of morality within the international human rights system, I argue, is an understanding of
the human individual as passive, pliant, and ever-more reliant on the State for the satisfaction of
needs and wants. This is undesirable in itself, but also means that international human rights law
for the most part simply buttresses wider trends in modern governance –something that can
only be regarded as a missed opportunity.
2. HUMAN RIGHTS AND HUMAN AGENCY: TWO DISPOSITIONS
In the summary records of the early meetings on the drafting of what became the two core inter-
national human rights covenants, we find a revealing exchange, taking place between Lord
Dukeston, the representative of Great Britain, and his Ukrainian counterpart, Michael
Klekovkin. In it, Dukeston makes the claim that the aim of drawing up a binding international
human rights convention was to secure freedom of speech, conscience, and association, so as to
‘gradually bring [those rights] to the knowledge of those who did not yet enjoy them’. Once this
was achieved, individuals could then, working together, achieve the creation of other rights if
they so desired within their own domestic legal frameworks –but this was, ultimately, up to
them. Economic and social rights might, without these fundamental freedoms, be ‘imposed by a
philanthropic State’, but such would be little more than a ‘dictatorship’.‘It [is] better to teach
the common man how democracy work[s] than to regard him as a child and impose certain rules
on him,’Dukeston goes on. ‘The world [needs] free men and not well-fed slaves’.
1
In reply, Klekovkin articulated the mirror-image of Dukeston’s argument. ‘Economic rights such
as trade union rights, social insurance, the prevention of unemployment, etc., [are] the foundation of
all other rights,’he argued. ‘The common man [is] only interested in freedom of speech and
freedom of the press, when he [is] protected against poverty.’This meant that any document that
failed to recognise the primacy of economic and social rights would be ‘lacking in sincerity’
and, in times of unemployment or economic crisis, ‘ring hollow’.
2
To anybody familiar with the history of the human rights movement, of course, this exchange
calls to mind the long-running dispute between proponents of purportedly ‘negative’and ‘positive’
rights, which so characterised academic discussion of human rights during the Cold War, and which
is now rightly felt to be old hat.
3
My aim in drawing attention to the comments of these now rather
1. UN Economic and Social Council, Commission on Human Rights, Second Session, 42
nd
Meeting, UN Doc E/CN.4/SR/
42, 16
th
December 1947, 14-15.
2. ibid 16.
3. See for example Dinah Shelton and Ariel Gould, ‘Positive and Negative Obligations’in Dinah Shelton (ed) The Oxford
Handbook of International Human Rights Law (OUP 2015) 562.
138 Netherlands Quarterly of Human Rights 40(2)
To continue reading
Request your trial