Human Rights and Modern Liberalism: A Critique
| Date | 01 October 2003 |
| Author | Anthony J. Langlois |
| DOI | 10.1111/1467-9248.00438 |
| Published date | 01 October 2003 |
| Subject Matter | Article |
Human Rights and Modern Liberalism:
a Critique
Anthony J. Langlois
Flinders University
The idea of human rights has become one of the central moral notions of both the theory and
practice of international politics. While its foundation and future in the practice of politics looks
bright, it is an idea that still causes great trouble at the theoretical level. What are human rights?
Why do we have them? To what should we attribute the authority of their moral claims? The
theorist Michael Freeman has suggested one theory that by addressing such questions may serve
as a foundation for human rights. His theory, however, ends by begging the questions it set out
to answer.
The idea of human rights has over the past 50 years made a significant move from
the hallowed halls of Western academe to the consciousness of the ‘everyday
citizen’ in many parts of the world. This has happened through the application
of a term that only half a century ago was recoined and updated, having been pen-
sioned off as an interesting piece of intellectual history dependent upon intellec-
tual assumptions ‘we’ had all dispensed with in the name of modernity and
progress.
The Rights of Man, an idea unfashionable for some time, became Human Rights.
As if through a flash of divine and redemptive revelation, the utter and stark
tragedy of the Second World War – a war that engulfed the world in its existen-
tial intensity – gave birth (it seemed) to an idea which might prevent the whole
damnable mess from ever happening again. That, at any rate, is how one may have
felt while listening to Eleanor Roosevelt in 1948 as she first declaimed the Uni-
versal Declaration of Human Rights. It was her hope, she told, with fervour and
tangible conviction, that the declaration may become the Magna Carta for ‘all men
everywhere’. This hope, it can be argued, has come substantially to fruition.
Theoretical Troubles
It would seem that the human rights project is alive and well. What is not so
healthy is our understanding of what it is we say we promote, when we declare
our allegiance to human rights. It is the sad truth of the intellectual history of
human rights that, after 50 years of political advocacy, we still do not know what
human rights really are, what it means for us to have them, how we would do
best to justify them to aliens from Mars (to employ a technique from modern
analytic philosophy: Rorty, 1979), let alone to those who are stranger still – human
persons who do not seem able to grasp the rationale of our moral self
understandings.
© Political Studies Association, 2003.
Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
510
A N T H O N Y J . L A N G L O I S
Human rights has been called a movement in search of a theory (Kothari, 1991).
This is certainly apt. Finding a theory is going to be difficult, however, because of
the high degree of heterogeneity in the component parts of what we may call the
contemporary human rights discourse. This discourse draws on a wide range of
backgrounds, of which we may catalogue the following because of their prominent
placement. Most immediately to hand is the field of international human rights
law, in which human rights take on the concrete aspect of enforceable positive law.
It is obvious, here, why we have rights – because the law says we do. Ah, but the
law can be changed – as it was by Hitler in Germany. So, we appeal to the law
behind the law (the ‘natural law’); with this we open a veritable can of worms,
because the idea of a law behind the law is – for all its sometime desirability and
apparent simplicity – a highly fraught and contested idea.
We are immediately faced, on contemplating a natural law, with the intellectual
terrain of metaphysics and theology, a terrain that many moderns find inhospitable
to their intellectual preferences. Such have often turned to contract theory, with
its procedural liberalisms, its political (‘not metaphysical’) conceptions and its
hypothetical scenarios (such as Rawls’s ‘veil of ignorance’). Such theory is used to
secure a cosmopolitanism, universal in scope, the moral outlook of which trans-
lates into rights applicable to all people everywhere. In contrast, a range of femi-
nist, critical, post-colonial, post-modern, variously religious and communitarian
theorists – all of whom are committed at some level to the discourse of human
rights – has struggled with the manner in which the stock Rawlsian liberalism of
the past 30 years has shaped the way in which the human rights discourse has
been theorised and disseminated.
In short, this points to a considerable confusion about the nature of the human
rights discourse. Is it legal, political, moral, metaphysical, natural, fideistically (or
confessionally) religious, contractual, institutional, cosmopolitan, communitarian,
post-(of your choice), or some pluralistic combination? If the latter, how are we to
think about it in such a way that does not immediately fall into contradiction? If
we pick one of the former – say, contract theory – what are we to do when critics
perceptively note that our contractualism has an implicit metaphysics, and that
we cannot escape privileging the particularistic accounts of the good from which
we were trying to escape (Larmore, 1996, p. 51)? See generally the arguments
of Fish (1994), Taylor (1989), MacIntyre (1988), Rorty (1979), Gray (1995) and
Hauerwas (2001).
Evading Metaphysics – Assertion Replaces Theorisation
of the Good
It is commonly stated that we have human rights simply because we are human.
It is our humanity, not our class status, our ethnic origin, our wealth, our relation
to the law, or anything else, that gives us our human rights. Simply, our human-
ity (Donnelly, 1989). This is the doctrine of subjective right, most famously iden-
tified with the writings of Thomas Hobbes and Hugo Grotius (Hobbes, 1991;
Grotius, 1925). They wrote at that time when the idea of rights was taking its
modern shape, having emerged out of the long-standing natural law paradigm
which saw a derivative relationship between the natural law, our duties and our
H U M A N R I G H T S A N D M O D E R N L I B E R A L I S M : A C R I T I Q U E
511
rights. This paradigm was, of course, deeply identified with Christian theology and
the idea of there being a divine law-giver. This law-giver (God) was the ultimate
insurance for socio-political organisation, and for the rights (derived from the
duties of others) that one had as a member of the community (Hauerwas, 2001,
p. 43).
The rights found in the natural law paradigm, then, are conceptually very differ-
ent from those being developed by the subjective right theorists. One of the most
obvious ways in which this difference manifests itself is with regard to the deriva-
tion of rights content. Rights born of natural law have a long and auspicious tra-
dition from which their content may be derived. In the end, though, there is a
conceptual link between the content of the rights and their ultimate authorship by
God (albeit through the agency of and therefore sanctioned by the theological tra-
ditions and the institution(s) of the church).
Subjective right theory in principle bypasses God, the church, theology, tradition
and the natural law to which these have given rise in its search for content. It goes
straight to the idea of our being human, our ‘common humanity’. This is the
deontic reflex which gives rise to the deontic dogma of human rights (‘we have
human rights simply because we are human’). It also gives rise to a great deal of
confusion. Confusion because it is not clear, and it never has been clear, how
authoritatively to give content to subjective rights simply on the basis of their
claim to derive from our humanity, while providing a cordon sanitaire between this
humanity and any substantive human tradition or conception of the good. To illus-
trate, Knud Haakonssen, writing about the eighteenth century in America when
subjective right theories were becoming established, asserts that a culture was
created in which rights talk was able to flourish – with the caveat ‘whatever it
meant’ (Haakonssen, 1991, p. 61). Rights talk was de rigueur, but few understood
what they were talking about. There were, as a consequence, some extraordinary
claims about the content of subjective rights – that is, about what rights we had.
For example, the natural right that public office should be limited to Protestants.
Or, that people’s natural rights were violated because the judge was being paid by
the king. Or, that church ministers had a natural right to be paid by the state
legislature (Reid, 1986, p. 88).
The principal problem with the subjective right project is that it is not possible to
have unmediated access to something called ‘our humanity’, from which we auto-
matically derive or identify our basic human rights. This positivist assumption, that
we can somehow look at our humanity and unproblematically read off from it a
universal bill of human rights, is the central flaw in the deontological approach
(Gray, 2001, p. 327). All such readings of humanity turn out to be thoroughly
indebted to one or another of the substantive human traditions. Thus, most of the
initial readings of the content of subjective rights are very similar to the old natural
law – duty – rights paradigm, for precisely the reason that this is the provenance
of their content. It was smuggled, as it were, from one...
To continue reading
Request your trial