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Marx, the State, and Spinoza: Against Hobbes and Schmitt

Bill Bowring: Marx, the State, and Spinoza: Against Hobbes and Schmitt

Legal Form:  A Forum for Marxist Analysis of Law

In 1859 Marx stated that he intended to examine “the bourgeois economic system in this sequence: capital, landed property, wage-labour; the state, foreign trade, world market“. [1] But he was unable to write his analysis of the state.

This post seeks to answer the following question: which are the sources on which Marx would have drawn in a critique of theories of the state? This question is also of contemporary importance. A significant number of scholars of constitutional law who wish to criticise mainstream liberal theories of the state and constitutionalism are attracted not by Marxist critiques, but by the writings of Carl Schmitt and Giorgio Agamben. A good example is the recently published Political Theology: Demystifying the Universal (2017) by my colleagues Anton Schütz and Marinos Diamantides; and the recent work of Costas Douzinas, for instance Human rights and Empire: The Political Philosophy of Cosmopolitanism (2007). I argue that they are all part of a lineage which commences with Thomas Hobbes.

Thomas Hobbes (1588–1679) and Baruch Spinoza (1632–1677) made diametrically opposed claims as to the nature of the state. What they had in common, though, was that they were both materialists, a radical position in an age of “divine right”. They shared their materialism with Karl Marx. But Marx was a follower of Spinoza, not of Hobbes. In 1841, while in Berlin writing his doctoral dissertation, Marx made a substantial transcription in Latin [2] from Spinoza’s Tractatus Theologico-Politicus (TTP), especially from Chapter XX (“It is shown that in a Free Republic everyone is permitted to think what he wishes and to say what he thinks”) [3] and Chapter XVI (“On the Foundations of the Republic; on the material and civil right of each person, and on the right of the Supreme Powers”) [4]. These were the fourth and eighth chapters from which Marx transcribed. It is clear that after the three chapters in which Spinoza demolished divine transcendence and intervention (Chapters VI, XIV, and XV), Marx went straight to the passages which interested him most at that time.

Hobbes’ two major works were De Cive (1642) and Leviathan (1651). Spinoza published the TTP in 1670. In his letter of 2 June 1674 to his close friend Jarig Jelles, Spinoza addressed the profound difference between Hobbes and himself: “I always preserve natural right unimpaired, and I maintain that in each State the Supreme Magistrate has no more right over his subjects than it has greater power over them.” [5] In his strongest book, Spinoza and Politics,Etienne Balibar notes that for Hobbes, man’s natural right is unlimited but self-destructive, since every right infringes every other right, leading to a “war of all against all”. [6] In order to establish security, natural rights must be replaced by civil right, by a juridical order. The state of nature must be replaced by the “‘body politic’, in which the will of the many is entirely represented by that of the sovereign (the law)”. [7] Although from a materialist, this is the source from which the conservative Catholic (and erstwhile Nazi) Carl Schmitt drew heavily. [8]

In the TPP, which Balibar rightly described as a “democratic manifesto” [9], Spinoza wrote that “the democratic state” is “the most natural state, and the one which approached most nearly the freedom nature concedes to everyone”. [10] Curley explains that Spinoza “attempts to deduce, from fundamental principles of human nature, both the tendencies to discord which make the state necessary, and the tendencies to harmony which make it possible”. [11] Later, in the Ethics, Spinoza wrote that “[a] man who is guided by reason is more free in a state, where he lives according to a common decision, than in solitude, where he obeys only himself”. [12] In his transcription, Marx highlighted: “So the end of the Republic is really freedom”. [13]

Marx put what he had learned from Spinoza to immediate effect. His first publications, in 1842 and 1843 respectively, were “Comments on the Latest Prussian Censorship Instruction” [14] and “On the Freedom of the Press” [15]. Marx cites Spinoza just once: “verum index sui et falsi” (“truth is the standard both of itself and of the false”) [16], but his animated rejection of Prussian censorship was Spinozist through and through. Marx wrote in his “Comments”: “Morality recognises only its own universal and rational religion, and religion recognises only its particular positive morality. Hence, according this instruction, the censorship must reject the intellectual heroes of morality, such as Kant, Fichte and Spinoza, as irreligious, as violating propriety, manners and external decorum. All these moralists start out from a contradiction in principle between morality and religion, for morality is based on the autonomy of the human mind, religion on its heteronomy.” [17]

If Marx had been able to examine the state as he had intended, I have no doubt that his elaboration would have had within it the spirit of Spinoza.

[1] “‘Preface’ A Contribution to the Critique of Political Economy” [1859] in Karl Marx, Later Political Writings, ed. Terrell Carver (Cambridge: Cambridge University Press, 1996) 158, at 158 (original emphasis).

[2] Marx-Engels-Gesamtausgabe [hereinafter MEGA], vol. IV/I (1976), 233–276.

[3] MEGA, vol. IV/I (1976), 5–7.

[4] MEGA, vol. IV/I (1976), 9–11.

[5] Letter 50, in Edwin Curley (ed.), The Collected Works of Spinoza, vol. 2 (Princeton: Princeton University Press, 1988), 406.

[6] Etienne Balibar, Spinoza and Politics, trans. Peter Snowdon (London: Verso, 1998 [1985]), 55.

[7] Ibid. (original emphasis).

[8] See especially Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol, trans. George Schwab and Erna Hilfstein (Chicago: University of Chicago Press, 1996 [1938]). See also Jacob Als Thomsen, “Carl Schmitt–The Hobbesian of the 20th Century?”, 20 (1997) Social Thought & Research 5.

[9] Balibar, Spinoza and Politics, 25.

[10] Curley, Collected Works of Spinoza, vol. 2, 289.

[11] Edwin Curley, Behind the Geometrical Method: A Reading of Spinoza’s Ethics (Princeton: Princeton University Press, 1988), 119.

[12] Ethics, bk. 4, prop. 73, in Edwin Curley (ed.), The Collected Works of Spinoza, vol. 1 (Princeton: Princeton University Press, 1988), 587.

[13] MEGA, vol. IV/I (1976), 237.

[14] This text was first published in Anekdota zur neuesten deutschen Philosophie und Publicistik, Bd. 1. See Marx/Engels Collected Works [hereinafter MECW], vol. 1 (London: Lawrence & Wishart, 1975), 109–131.

[15] This text was first published in the Rheinische Zeitung. See MECW, vol. 1, 132–181.

[16] Ethics, bk. 2, prop. 43, in Curley, Collected Works of Spinoza, vol. 1, 479.

[17] See MECW, vol. 1, 119.

Bill Bowring is Professor of Law at Birkbeck, University of London

Academic Freedom Under Threat from Commodification, Privatisation and Authoritarian Populism

INTERNATIONAL HUMAN RIGHTS ACADEMY OF THE AEGEAN
IZMIR, TURKEY
“Academic Freedom”
Friday 22 September 2017
“Academic Freedom Under Threat from Commodification, Privatisation and Authoritarian Populism”
Prof. Bill Bowring / Lawyer
President of the European Association of Lawyers for Democracy and World Human Rights (ELDH)

I bring you greetings from the European Lawyers for Democracy and Human Rights (ELDH), of which I am the President, and from the Haldane Society of Socialist Lawyers in England. I am the Joint International Secretary. I am very grateful to Fatma Demirer and Deman Guler for their invitation for me to participate in this important conference in such a beautiful venue. We are very proud that our Turkish members are CHD, a founder member of ELDH, and OHP, who have recently joined. We are in solidarity with all our Turkish colleagues who have been persecuted and prosecuted.

This is my first time in Izmir, but not my first time in Turkey. I began to take cases against Turkey on behalf of Kurdish applicants in 1992, and for the next 10 years helped to win many cases, especially Özgur Gündem v Turkey, on the right to freedom of expression. I appeared as an advocate twice in fact-finding hearings in which the European Court of Human Rights sat for a week in the Supreme Court in Ankara. I have been many times in Istanbul and Ankara.

Commodification

A few days ago we celebrated 150 years since the first publication of Capital: A Critique of Political Economy, by Karl Marx. Last week there was a large two day conference in London, with leading scholars from Britain, Germany, Italy, Portugal, Spain and the US, and over 100 participants.

The ideas of Karl Marx are very much alive, as is the principle on which with his collaborator Friedrich Engels he insisted: “Communism is for us not a state of affairs which is to be established, an ideal to which reality [will] have to adjust itself. We call communism the real movement which abolishes the present state of things. The conditions of this movement result from the premises now in existence.”

Capital has an unceasing drive and imperative, not only to grow faster and faster whatever the human consequences, but also to turn every human activity into commodities for sale. This is because capital cannot live and expand without the realisation of value through the sale of commodities. This is how the Law of Value works itself out, in the process of valorisation. Capitalists are not necessarily motivated by greed or malice: in order to continue for one single days as capitalists, they will whether they like it or not be subject to the Law of Value, which is just as impossible to avoid or ignore as the Law of Gravity.

There is no field of human activity exempt from commodification. A recent book is entitled “Everything is for sale”.

Privatisation

Kishore Singh is the United Nations Special Rapporteur on the Right to Education. He has published two very important reports. The first, in 2014, focused on the protection of education from privatisation; and the second, in 2015 concerned protection of education from commercialisation. He is particularly critical of the UK.

In the UK we have the highest proportion of privately run, for profit, prisons in the world, and my own field of Higher Education has been completely privatised. English Universities receive practically no money from the Government, and instead all of our students pay or borrow £9000 a year. This is the most expensive higher education in Europe. In Germany and Scotland, higher education is free of charge.

In the recent General Election in the UK, the Conservative Party of Theresa May lost its overall majority in Parliament, largely because, contrary to their expectations, so many young people came out and voted Labour, which promised to cancel fees for the future. The Labour Party under Jeremy Corbyn is now the largest political party in Europe, with over 600,000 members, many of them in their 20s. Whereas the Conservative Party has less than 100,000 members, and their average age is – 72!

The privatised higher education system in England is shamed by casualisation. 54% of academic staff and 49% of teaching staff are employed on causal contracts, for a particular course, with no guaranteed hours, no sick or holiday pay, and no security. Even academics on “permanent” contracts have no job security (unlike tenure in the US) and can be dismissed at any time.

A few days ago academics at Leeds University published a letter in The Guardian complaining that they are liable to dismissal if their research or writing upsets commercial or government funders.

The privatisation of higher education and the enormous fees paid or borrowed by students have led directly to the obscene spectacle of Vice-Chancellors (Rectors), earning 5 to 6 times as much as professors, as much as £300,000 a year or more.

Most worrying is the fact that the Government’s anti-extremism policy, named “Prevent”, imposes a legal duty on academics to spy on their students and to report their students to the authorities for any behaviour which might be considered to be “extremist” – whatever that means. My colleagues have organised a campaign, and on my office door there is now a poster proclaiming that we are “Educators not Informers”.

Authoritarian Populism

My own country is now divided as never before, with the country split in two over the issue of Brexit, leaving the EU. Most of those who voted to leave were told lies by the Brexit campaign, had no idea what the EU was, and in fact voted against migrants. As Home Secretary (Minister of the Interior) Theresa May was obsessed by the issue of migrants. In reality the Brexit campaign was a right-wing populist movement, whose ideology was xenophobia.
Similar right-wing populist movements are disrupting the politics of France, Germany, Hungary, Poland, and Austria.

I do a great deal of work in relation to Russia, and since 2000 have represented many Chechens at the European Court of Human Rights, as well as taking environmental cases and cases on freedom of expression and the right to organise in civil society, and to demonstrate. Russia, like Turkey, is suffering under a conservative authoritarian regime, with practically no opposition mass media, no opposition political party with any hope of election, and severe repression of civil society especially human rights activists. In recent days Russia is now effusing to implement judgments of the Strasbourg Court, and there is a real threat – as with the UK – that Russia will leave the Council of Europe and the European Convention.

Academics are being dismissed for opposing the regime in Russia, the European University in St Petersburg is under threat; and the Central European University in Budapest has recently been saved after a vicious and anti-semitic campaign against it by the government.

And here we are in Turkey, with the arrest and detention of hundreds of academics, many of whom are dismissed, arrests and detention of lawyers, prosecutors and judges, the elimination of free mass media, and severe action taken against the HDP – and Amnesty International.

All of us here have a duty to take a stand and to organise to the best of our ability against these dangerous phenomena.

Review of Slavoj Žižek’s “Lenin 2017”

Lenin 2017: Remembering, Repeating, and Working ThroughLenin 2017: Remembering, Repeating, and Working Through by Slavoj Žižek
My rating: 5 of 5 stars

What is very good about this book is the presentation of such important texts from the last years of Lenin’s life, working through really intractable problems of Soviet Russia, isolated and weakened after intervention and civil war. Zizek shows that he really understands Lenin’s thoroughly principled insistence that the “waving of little red flags” could not resolve such problems, only a slow and patient inculcation of bourgeois culture and bourgeois management under Soviet political control. Lenin’s image of mountaineers having to retrace their steps, a much more dangerous and difficult task than an ascent is particularly beautiful and apt. The references to and citations from Robespierre and the quotations from Badiou are apt and very helpful. Whether Milner and Lacan are equally good guides is a matter for legitimate discussion.

View all my reviews

Marxism as a Methodology, presentation at Birkbeck Law School Residential Weekend, Cumberland Lodge, 17 September 2017

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Karl Marx and ‘Marxism’

Karl Marx and ‘Marxism’

Bill Bowring

Karl Heinrich Marx was born on 5 May 1818 at 664 Brückergasse in Trier, a town located in what was then the Kingdom of Prussia’s Province of the Lower Rhine. You can visit the house to this day; it is under the protection of the German SPD. His father was a successful lawyer, descended from a family which produced the rabbis of Trier from 1734, but who converted to Lutheranism before Marx’s birth. Karl’s mother was from a Dutch Jewish family. In 1836, Marx became engaged to Jenny von Westphalen, a princess of the Prussian ruling class, and married her in June 1843. From 1836, he became fascinated by Hegel’s philosophy, and was associated with the “Left Hegelians”, in their critique of religion and the ancien régime. He studied law in Bonn and Berlin, but his doctoral thesis was on philosophy. His thesis, “The Difference Between the Democritean and Epicurean Philosophy of Nature”, was finished in 1841, and he was awarded a doctorate by the University of Jena.

Marx did not follow an academic career. Instead, he became a journalist and political activist. In 1842 he moved to Cologne and began writing for the radical newspaper Rheinische Zeitung. Due in part to his increasingly revolutionary writing, the paper was closed by the government in 1843, the same year that he wrote On the Jewish Question (of which more below) published in February 1844 in the socialist Deutsch-Französische Jahrbücher. He was then 25 years old. Having been obliged to move to Paris, Marx met Friedrich Engels, his lifelong friend, colleague and benefactor, in August 1844. Their joint work, the Communist Manifesto was published in the “year of revolutions”, 1848. Marx moved to London in May 1849, and remained there until his death on 14 March 1883 at the age of 64, devoting himself to research and writing, and intense political activity. His field of study and analysis was the critique of political economy. Very few of his works were published in his lifetime. Despite the support of Engels, he lived for the most part in poverty, and of seven children only three daughters survived to adulthood, Eleanor, Jenny and Laura, all revolutionaries. A maximum of 11 people came to his funeral. Somehow, he has not been forgotten.

Marx did not write any work of philosophy, although he may at one time have intended to do so. Unlike Hegel, he did not leave behind a system. Far less did he write systematically on law, ethics, or morality. Instead, his intellectual life was devoted to uncompromising critique, in particular the immanent critique, critique from the inside, of the work of the great Scottish and English political economists, Adam Smith (1723-1790) and David Ricardo (1772-1823). Marx was especially excited by Ricardo’s labour theory of value, the corner-stone of Ricardo’s Principles of Political Economy and Taxation (1817), published the year before Marx’ birth. Marx radicalised Ricardo’s insight, and the resulting “critique of political economy”, Volume One of which was the only major work published in his lifetime, is rightly named Capital.

For Marx, ‘capital’ and, indeed ‘capitalism’ – are the names of the system driven by capital’s unceasing urge to valorise itself, in which every social relationship, every intellectual creation, and every human appropriation of the material world is reducible to money. Marx’ analysis and critique have lost none of their acuity, and there is unanimous agreement that today we live in the interstices of universal capitalism.

Marx’s writing is full of outrage at the ruthless exploitation and oppression inherent in the capital’s alienation from human beings of the enjoyment of the products of their labour, in the bizarre abstract, dehumanised world of the circulation of commodities and money. But this fury is based not on a moralistic stance or condemnation of evil, but on the denial to human beings of the full realisation of their human potential in society, their species being. There is no transcendence in Marx’s critique, not even redemption.

Marx and Spinoza

That is because Marx was a thorough-going materialist. It should be no surprise that in 1841, as he completed his doctoral thesis, and shortly before he wrote On the Jewish Question, Marx made a close reading of the work of the great Jewish rationalist philosopher Baruch Spinoza (1632-1677), in particular his Theological-Political Treatise, transcribing extensive passages in the original Latin and German translation. Yovel points out (p.79) that “Spinoza is almost always present in Marx’s thought. But, we may add, the actual presence of Spinoza in Marx far surpasses his direct mention by name.” By the way, Yovel makes an heroic but unsuccessful attempt to read religion back into Marx. But in the passage cited he is quite right.

Spinoza radicalised rationalism, determinism, and the principle of sufficient reason, on the basis of a conception of the human being in which “Every man exists by sovereign natural right, and, consequently, by sovereign natural right performs those actions which follow from the necessity of his own nature…” (Ethics, Prop. XXXVII Note II). As does everything in nature. For Spinoza, the most ruthless of all materialists, there is no good or evil in the world (or transcendence or divine intervention): “In the state of nature, therefore, sin is inconceivable; it can only exist in a state, where good and evil are pronounced on by common consent… Sin, then, is nothing but disobedience, which is therefore punished by the right of the State only.” He declares (Prop LXVIII) that “If men were born free, they would, so long as they remained free, form no conception of good and evil”; but (Prop. LXXIII) “The man, who is guided by reason, is more free in a State, where he lives under a general system of law, than in solitude, where he is independent.” This is explained further in the Proof of that Proposition, as follows: “Therefore, the free man, in order to enjoy greater freedom, desires to possess the general rights of citizenship.”

This thought is also to be found in the Theological-Political Treatise which Marx so painstakingly transcribed. In Chapter XVI, entitled “Of the Foundations of a State; Of the Natural and Civil Rights of Individuals; And of the Rights of Sovereign Power”, Spinoza reminds us that

“… the right and ordinance of nature, under which all men are born, and under which they mostly live, only prohibits such things as no one desires and no one can attain: it does not forbid strife, nor hatred, nor deceit, nor, indeed, any of the means suggested by desire.”

This we need not wonder at, for nature is not bounded by the laws of human reason, which aims only at man’s true benefit and preservation; her limits are infinitely wider, and have reference to the eternal order of nature, wherein man is but a speck…”

This is nature which is infinite and eternal, without purpose or teleology save its own deterministic laws which are for the most part necessarily inscrutable to humans, and in which sub specie aeternitatis, from the perspective of the eternal, humans are less than significant. Humans are nothing whatsoever except to themselves. Thus, with absolutely rigorous logic, Spinoza holds that there is no justice or injustice in nature or in the natural behaviour of humans:

“Wrong is conceivable only in an organised community… It can only arise… between private persons, who are bound by law and right not to injure one another. Justice consists in the habitual rendering to every man his lawful due: injustice consists in depriving a man, under the pretence of legality, of what the laws, rightly interpreted, would allow him. These last are also called equity and inequity, because those who administer the laws are bound to show no respect of persons, but to account all men equal, and to defend every man’s right equally, neither envying the rich or despising the poor.”

That is, nature is indifferent to exploitation, and the natural actions of humans naturally seeking to do everything possible to them cannot be described as good or evil in any sense other than that given in organised society. Capital, and capitalism, are human creations, in no sense necessary parts of the natural order, that is, are quite unlike volcanoes, tsunamis, stellar explosions or super-massive black holes. The injustice of capitalism on a Spinozist account is precisely human activity which has, as with the sorcerer’s apprentice, taken on an inhuman, vampiric character, in the process de-humanising human beings in the process.

Spinoza, like Marx, did not prescribe or describe any kind of Utopia, communist or otherwise. Neither of them have any pretension to utopianism. Their ambition is that human beings should be freed to live productively in society, to be truly human.

In Chapter XX Spinoza writes

“… the ultimate aim of government is not to rule, or restrain, by fear, nor to exact obedience, but contrariwise, to free every man from fear, that he may live in all possible security; in other words, to strengthen his natural right to exist and work without injury to himself and others… in fact, the true aim of government is liberty.”

Indeed, Chapter XX is headed “That in a free state every man may think what he likes, and say what he thinks”.

In this, Spinoza was not only far ahead of his time; his concept of democracy was radicalised far beyond the limits of liberalism.

On the Jewish Question

It is in this light that On the Jewish Question should be approached.

The first line of this text is: “The German Jews desire emancipation. What kind of emancipation do they desire? Civic, political emancipation.”

Jay Bernstein has given one of the most nuanced and perceptive readings of this text. Another, from a liberal perspective, is to be found in Jeremy Waldron’s Nonsense Upon Stilts, which also provides the text. In this work the young Marx engaged with the rights set out in the French Declaration of Rights of Man and of the Citizen, 1789, and the Constitutions of 1793 and 1795; as well as the revolutionary documents of the American war of independence.

Bernstein correctly points out (p.92) that this work is “… usually read as an attack on the discourse of rights. Such readings are at least partial if not altogether false.” What such readers miss (p.99) “is that its complex dialectical argument deploys two senses of ground or foundation: a sense in which civil society represents the real ground or foundation of society as a whole, and a sense in which the state is the ground or foundation, not the mere ideological front, for civil society.”

Marx has a strong conception of the “species being” of the human, of the life of the human being in community with others. In this sense, Marx is a communitarian. Marx wrote, in answer to the question posed at the start:

“The perfected political state is by its nature the species-life of man in opposition to his material life. All the presuppositions of this egoistic life [ie material life – BB] continue to exist outside the sphere of the state in civil society, but as qualities of civil society… He lives in the political community where he regards himself as a communal being, and in civil society, where he is active as a private individual, regards other men as means, debases himself to a means and becomes a plaything of alien powers…”

Thus,

“The rights of man are partly political rights, rights which are only exercised in community with others. What constitutes their content in participation in community, in the political community or state. They come under the category of political freedom, of civil rights…”

It is on this basis that Marx noted the fact “that the so-called rights of man, the droits de l’homme as distinct from the droits du citoyen, are nothing but the rights of a member of civil society – i.e., the rights of egoistic man, of man separated from other men and from the community.” And Marx focuses quite correctly on the least political right, the right to private property:

“But, the right of man to liberty is based not on the association of man with man, but on the separation of man from man. It is the right of this separation, the right of the restricted individual, withdrawn into himself. The practical application of man’s right to liberty is man’s right to private property. What constitutes man’s right to private property? The right of man to private property is… the right to enjoy one’s property and to dispose of it at one’s discretion (à son gré), without regard to other men, independently of society, the right of self-interest. This individual liberty and its application form the basis of civil society. It makes every man see in other men not the realization of his own freedom, but the barrier to it.”

That is, the opposite of the purpose of communal living in the state as conceived by Spinoza and by Marx. Marx concludes:

“None of the so-called rights of man, therefore, go beyond egoistic man, beyond man as a member of civil society – that is, an individual withdrawn into himself, into the confines of his private interests and private caprice, and separated from the community. In the rights of man, he is far from being conceived as a species-being; on the contrary, species-like itself, society, appears as a framework external to the individuals, as a restriction of their original independence. The sole bond holding them together is natural necessity, need and private interest, the preservation of their property and their egoistic selves.”

Marx returned to the question of rights much later in his life, in 1875, in a polemical critique of the draft programme of the United Workers’ Party of Germany, known as the Gotha programme. It was published in 1890, after Marx’s death. The draft declared that once the instruments of labour had been converted into common property, there would be a “fair distribution of the proceeds of labour” on the basis that “the proceeds of labour belong undiminished with equal right to all members of society”. Marx pours scorn on such a notion of “equality”. Humans are not equal.

“But one man is superior to another physically, or mentally, and supplies more labour in the same time, or can labour for a longer time; and labour, to serve as a measure, must be defined by its duration or intensity, otherwise it ceases to be a standard of measurement. This equal right is an unequal right for unequal labour… one worker is married, another is not; one has more children than another, and so on and so forth. Thus, with an equal performance of labour, and hence an equal in the social consumption fund, one will in fact receive more than another, one will be richer than another, and so on. To avoid all these defects, right, instead of being equal, would have to be unequal. ”

Marx then attempted one of his very few descriptions of what communist society would be like, ending with a famous slogan:

“In a higher phase of communist society, after the enslaving subordination of the individual to the division of labour, and therewith also the antithesis between mental and physical labour, has vanished; after labour has become not only a means of life but life’s prime want; after the productive forces have also increased with the all-around development of the individual, and all the springs of co-operative wealth flow more abundantly — only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs!”

But this is not exactly an analysis of human rights. But it could be described as Utopian.

Marx and ‘generations of rights’

The rights of man to which Marx refers in On the Jewish Question were the “first generation” of human rights, the civil and political rights, which together with the right to private property, have temporal and geographical origins: they sprang directly from the French Revolution in 1789, and the American Revolution of the same period. Marx’ critique of these “first generation” rights, properly understood, was and remains incisive, indeed definitive.

What Marx could not anticipate was the increasing importance, as a direct result of political events and struggles, of the “second” and “third” generations, namely social and economic rights, and peoples’ rights.

The temporality of the recognition in international law of the “second generation” of human rights, social and economic rights, as human rights can also be located very accurately. These rights achieved the status of legal rights, and, most important, became available as instruments of legitimation and struggle, as a direct consequences of the events of 1917, more specifically in the creation of the International Labour Organisation in 1919. The ILO remains the most important source and mechanism for protection of social and economic rights. These rights have recently become much more concrete, in the context of the collapse of the USSR, by way of the Council of Europe’s 1996 Revised Social Charter, which came into force in 1999, with its mechanism for collective complaints, by Trade Unions and NGOs, to the European Committee of Social Rights.

The “third generation” – the peoples’ rights to self-determination, to development, to a clean environment, to peace – were recognised as rights in international law following the colonial struggles of the 1960s, specifically with the coming into force of the two great UN Covenants on Human Rights in 1976. They have lost none of their relevance in the context of continuing cruel injustice of the global economy.

Marx and self-determination

Self-determination and anti-colonial struggle were also central to Marx’s project from the 1850s onwards, and in this regard he would have found himself in tune with contemporary notions of human rights.

First of all, Marx, having opposed Irish independence, became a firm supporter. In his letter to Engels on 2 November 1867 Marx wrote:

“The Fenian trial in Manchester was exactly as was to be expected. You will have seen what a scandal ‘our people’ have caused in the Reform League. I sought by every means at my disposal to incite the English workers to demonstrate in favour of Fenianism…. I once believed the separation of Ireland from England to be impossible. I now regard it as inevitable, although Federation may follow upon separation.”

The trial in question was that of the ‘Manchester martyrs’ – William Philip Allen, Michael Larkin, and Michael O’Brien – who were members of the Irish Republican Brotherhood. The men were executed after having been found guilty of the murder of a police officer during an escape that took place close to Manchester city centre in1867. That is, Marx was, in the words of the contemporary UK Terrorism Act 2006, ‘glorifying terrorism’, and terrorism committed by bourgeois nationalists at that. He would now face a stiff sentence.

Marx himself used the term ‘self-determination’ on at least two occasions, in a political rather than a philosophical context. In his letter of 20 November 1865 to Hermann Jung, Marx referred, under the heading ‘International Politics’, to ‘The need to eliminate Muscovite influence in Europe by applying the right of self-determination of nations, and the re-establishment of Poland upon a democratic and social basis.’ Furthermore, in a speech on Poland delivered on 24 March 1875, he declared:

What are the reasons for this special interest of the workers’ party in the fate of Poland? First of all, of course, sympathy for a subjugated people which, with its incessant and heroic struggle against its oppressors, has proven its historic right to national autonomy and self-determination. It is not in the least a contradiction that the international workers’ party strives for the creation of the Polish nation.

August Nimtz shows how Marx and Engels gave support to religious-led Arab resistance to French imperialism in Algeria in 1857; expressed strong sympathy for the Sepoy Mutiny against Britain in India in 1857-9; and by 1861 wrote, as the US Civil War loomed, that US expansion into Texas and what is now Arizona and New Mexico, brought with it slavery and the rule of the slaveholders. At the same time, they were quite clear that the ‘booty of British imperialism’ had begun to corrupt and compromise the English proletariat. Pranav Jani focuses on Marx’s response to the 1857 revolt in British India. He explains that Marx was transformed from a ‘mere observer’ of the anti-colonial struggle to an active participant in the ideological struggle over the meaning of the Revolt. This enabled him also to refute racist representations of Indian violence in the British press ‘by drawing a sharp division between the violence of the oppressed and that of the oppressor and dialectically linking the two.’ Jani concludes that if Eurocentrism makes Western Europe the centre of the globe, then the Marx he presents is not Eurocentric. (p.82-3)

 

Karl Marx On the Jewish Question, pp.146-174 at http://www.marxists.org/archive/marx/works/1844/jewish-question/

 

Karl Marx Critique of the Gotha Programme at http://www.marxists.org/archive/marx/works/1875/gotha/index.htm

There are two excellent biographies:

Francis Wheen Karl Marx Fourth Estate, 2010

David McLellan Karl Marx  Palgrave McMillan, 4th ed 2006

And the best short introduction to Marx’s thought:

Etienne Balibar The Philosophy of Marx Verso, 2007

For a contemporary set of assessments of Marx’ philosophy:

Andrew Chitty and Martin McIvor (eds) The Philosophy of Karl Marx Palgrave MacMillan, 2009

 

Also:

Kenneth Baynes “Rights as Critique and the Critique of Rights: Karl Marx, Wendy Brown, and the Social Function of Rights” Political Theory  Vol. 28, No. 4 2000, pp. 451-468

Jay Bernstein  “Right, revolution and community: Marx’s ‘On the Jewish Question’’, in Peter Osborne (ed.), Socialism and the Limits of Liberalism, London: Verso, 1991.

Bill Bowring “Misunderstanding MacIntyre on Human Rights” in Kelvin Knight and Paul Blackledge (eds) Revolutionary Aristotelianism: Ethics, Resistance and Utopia, special issue of Analyse & Kritik, (2008), v.30 n.1, pp.205-214

Hugh Collins Marxism and Law Oxford, 1982

Bob Fine Democracy and the Rule of Law Blackburn Press, 2002, ch.2 ‘Marx’s critique of classical jurisprudence’ pp. 66‐85 and ch.4 ‘Law, state and capital’ pp. 95‐121

Prinav Jani “Karl Marx, Eurocentrism, and the 1857 Revolt in British India” in Bartolovich, Crystal and Neil Lazarus Marxism, Modernity and Postcolonial Studies Cambridge, Cambridge University Press, 2002, pp.81-100

Philip J. Kain Marx and Ethics Oxford:Clarendon Press 1991

August Nimtz, ‘The Eurocentric Marx and Engels and other related myths’ in Crystal Bartolovich and Neil Lazarus Marxism, Modernity and Postcolonial Studies  Cambridge: Cambridge University Press, 2002, pp.65-80

Jeremy Waldron Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man Routledge, 1987

Yirmiyahu Yovel Spinoza and Other Heretics: The Adventures of Immanence Princeton, 1992; especially Chapter 4 “Spinoza and Marx: Man-in-Nature and the Science of Redemption”, pp.78-103

 

 

Marxism as a Methodology

Marxism as a Methodology

Bill Bowring, Birkbeck College

Karl Marx – 1818 – 1883

* ruthless radical materialism – derived from Aristotle and Spinoza

* imminent critique – the title of Capital – the critique of political economy

* no doctrine of political organisation, save the above

* no utopian vision of the future

Some quotes:

“But, if constructing the future and settling everything for all times are not our affair, it is all the more clear what we have to accomplish at present: I am referring to ruthless criticism of all that exists, ruthless both in the sense of not being afraid of the results it arrives at and in the sense of being just as little afraid of conflict with the powers that be.”[1] (1843)

“Communism is for us not a state of affairs which is to be established, an ideal to which reality [will] have to adjust itself. We call communism the real movement which abolishes the present state of things. The conditions of this movement result from the premises now in existence.”[2] (1845)

“A philosopher produces ideas, a poet poems, a clergyman sermons, a professor compendia and so on. A criminal produces crimes. If we take a closer look at the connection between this latter branch of production and society as a whole, we shall rid ourselves of many prejudices. The criminal produces not only crimes but also criminal law, and with this also the professor who gives lectures on criminal law and in addition to this the inevitable compendium in which this same professor throws his lectures onto the general market as “commodities”.”[3] (1861)

“While the miser is merely a capitalist gone mad, the capitalist is a rational miser.”[4]

“Capital is dead labour, that, vampire-like, only lives by sucking living labour, and lives the more, the more labour it sucks. The time during which the labourer works, is the time during which the capitalist consumes the labour-power he has purchased of him.”[5]

 Literature

Introductions:

Etienne Balibar (1995) The Philosophy of Marx (Verso) – no index unfortunately

“I would also like to defend a somewhat paradoxical thesis: whatever may have been thought in the past, there is no Marxist philosophy and there never will be; on the other hand, Marx is more important for philosophy than ever before.”

Andrew Collier (2004) Marx (Oneworld Publications)

Peter Osborne (2005) How to read Marx (Granta Books)

Recommended:

Louis Althusser (2005) For Marx (Verso)

Alain Badiou (2007) The Century (Polity)

Alain Badiou (2010) The Communist Hypothesis (Verso)

Boris Groys (2010) The Communist Postscript (Verso)

Susan Marks (2000) The Riddle of all Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford)

Susan Marks (2008) International Law on the Left: Re-examining Marxist Legacies (Cambridge); includes chapters by Martti Koskenniemi, B. S. Chimni; China Miéville; Bill Bowring; Anthony Carty; A. Claire Cutler; Brad R. Roth; Obiora Chinedu Okafor; Susan Marks.

Csaba Varga (ed) (1993) Marxian Legal Theory (New York University Press) – contains many Hungarian scholars, but also Eugene Kamenka “A Marxist Theory of Law?” (1983); Ronnie Warrington “Pashukanis and the Commodity Form Theory” (1981); Eugene Kamenka “Lukacs and Law” (1987); Richard Kinsey “Marxism and the Law: Preliminary Analyses” (1978); Peter Fitzpatrick “Marxism and Legal Pluralism” (1983); Alan Hunt “The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law” (1985); Alan Stone “The Place of Law in the Marxisn strcture – Superstructure Archetype” (1985)

[1] Letters from the Deutsch-Französische Jahrbücher, Marx to Ruge, Kreuznach, September 1843, at http://www.marxists.org/archive/marx/works/1843/letters/43_09.htm#criticism

[2] Karl Marx. The German Ideology. 1845, Pt I: Feuerbach. Opposition of the Materialist and Idealist Outlook A. Idealism and Materialism at

http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm#p48

[3] Marx’s Economic Manuscripts of 1861-63, Part 3) Relative Surplus Value, //Digression: (On Productive Labour)//, Volume 30, MECW, p. 306-318 at http://www.marxists.org/archive/marx/works/1861/economic/ch33.htm

[4] Karl Marx. Capital Volume One, Part II: The Transformation of Money into Capital, Chapter Four: The General Formula for Capital, at http://www.marxists.org/archive/marx/works/1867-c1/ch04.htm#9a

[5] http://www.marxists.org/archive/marx/works/1867-c1/ch10.htm#4a

 

The first Soviet constitutions, self-determination and the right to secession

Forthcoming in the SCRSS Digest, No 3, Autumn 2017 issue

Professor Bill Bowring, President of SCRSS, Birkbeck College; International Secretary of the Haldane Society of Socialist Lawyers

This short article examines the central core of the first constitutions of Soviet Russia and of the USSR, and its continued relevance. Its predecessor, the Tsarist Russian Empire, was a multi-national, multi-ethnic empire whose components had varying degrees of autonomy, from Finland, which was a Grand Duchy with its own parliament, laws and Lutheran religion, to Poland which had been incorporated into the empire as a result of the 19th century Partitions, to the Baltic territories conquered from Sweden in the Great Northern War, and the former Khanates of Kazan and Astrakhan conquered by Ivan the Terrible, in the 16th century, and the Khanate of Crimea, annexed by Catherine II in 1783. And many more.

Lenin had campaigned from before the outbreak of World War I for the destruction of the Tsarist (and other) Empires, and for the principle of the Right of Nations to Self-Determination, on which he wrote a substantial book. He drew from the writings of Marx and Engels from the second half of the 19th century, as they fought for the right to self-determination of Ireland, of Poland, of Algeria, of India and many others. Lenin’s opponents included Rosa Luxemburg, the Austro-Marxists, Otto Bauer and Karl Renner, and the revolutionary Jewish Bund, all of whom opposed the break-up of their respective empires and regarded the right of nations to self-determination as a surrender to bourgeois nationalism. Their aim was to achieve socialism over the whole existing territories of the Russian and Austro-Hungarian Empires.

The first constitutional document of Soviet power following victory in the October Revolution was the Declaration Of Rights Of The Working And Exploited People (the Declaration), drafted by Lenin on 3 January 1918, and published in Izvestiya on 4 January. On 12 January it was approved by the Third All-Russia Congress of Soviets and subsequently formed the basis of the Soviet Russian Constitution of 1918. According to Chapter 1, Article 1: “Russia is hereby proclaimed a Republic of Soviets of Workers’, Soldiers’ and Peasants’ Deputies. All power, centrally and locally, is vested in these Soviets.” This was immediately followed by Article 2: “The Russian Soviet Republic is established on the principle of a free union of free nations, as a federation of Soviet national republics.”

The phrase “free nations” was crucial.

Thus, Chapter 3 welcomed the proclamation of “the complete independence of Finland, commencing the evacuation of troops from Persia, and proclaiming freedom of self-determination for Armenia.”

All these were put into practice forthwith. On 6 December 1917, the Finnish Diet adopted a declaration of Finland’s independence, and the Council of Peoples Commissars, on 18 December 1917, issued a decree on Finland’s independence. At that meeting Lenin personally handed the text of the decree to Finnish Prime Minister Pehr Evind Svinhufvud. On 9 December 1917 in conformity with the Brest-Litovsk Treaty between Soviet Russia on the one side and Germany, Austria-Hungary, Turkey and Bulgaria on the other, Soviet Russia and Persia worked out a common plan for the withdrawal of Russian troops from Persia. And on 29 December 1917 the Soviet Russian government issued the Decree on Turkish Armenia.

The next step was the Constitution of the Russian Socialist Federated Soviet Republic (RSFSR), which was adopted by Fifth All-Russian Congress of Soviets on 10 July 1918. The Declaration, together with the Constitution constituted a single fundamental law of the RSFSR. Altogether, the Declaration and Constitution contained 90 articles, covering all constitutional aspects of the new socialist republic.
For the purposes of this article, the following provision was of particular importance:

“11. The soviets of those regions which differentiate themselves by a special form of existence and national character may unite in autonomous regional unions, ruled by the local congress of the soviets and their executive organs. These autonomous regional unions participate in the RSFSR upon a Federal basis.”

These were principles as to which Lenin was uncompromising. In 1919 the three Baltic Republics, Estonia, Latvia and Lithuania became independent, despite their bourgeois governments, as did Poland, despite the war between it and Soviet Russia. In 1922, towards the end of his life, Lenin came into sharp conflict with Stalin as to whether Georgia should have the right to independence, albeit under a Menshevik government.

On 31 December 1922 Lenin wrote, in his Testament :

“It is quite natural that in such [Stalin’s actions in Georgia] circumstances the “freedom to secede from the union” by which we justify ourselves will be a mere scrap of paper, unable to defend the non-Russians from the onslaught of that really Russian man, the Great-Russian chauvinist, in substance a rascal and a tyrant, such as the typical Russian bureaucrat is… I think that Stalin’s haste and his infatuation with pure administration, together with his spite against the notorious “nationalist-socialism” played a fatal role here.”

Lenin died on 21 January 1924.

On 31 January 1924 the Constitution of the USSR was approved by the II Congress of Soviets of the USSR. This formalised the December 1922 Treaty on the Creation of the USSR between the Russian SFSR, the Ukrainian SSR, the Byelorussian SSR, and the Transcaucasian SFSR to form the Union of Soviet Socialist Republics.

It started with a Declaration, Part 1, which included: “It is only in the camp of the Soviets, only under the conditions of the dictatorship of the proletariat that has grouped around itself the majority of the people, that it has been possible to eliminate the oppression of nationalities… The will of the peoples of the Soviet Republics recently assembled in Congress, where they decided unanimously to form the USSR, is a sure guarantee that this Union is a free federation of peoples equal in rights, that the right to freely withdraw from the Union is assured to each Republic…”

It was on this that Lenin had insisted in 1922. Articles 4 and 6 proclaimed:

“4. Each one of the member Republics retains the right to freely withdraw from the Union.
6. The territory of the member Republics cannot be modified without their consent; also, any limitation or modification or suppression of Article 4 must have the approval of all the member Republics of the Union.”

Lenin’s principled position remains highly controversial in Russia.

As early as 1991, the year of the collapse of the USSR, Vladimir Putin denounced Lenin, and was filmed doing so. A YouTube clip contains a number of such statements by him over the years. On 25 January 2016 Mr Putin accused Lenin of placing an ‘atomic bomb’ under Russia. In Mr Putin’s opinion Lenin was responsible both for destroying, with German money and backing for his travel from Switzerland to Russia in 1917, the great Russian Empire; but also of preparing the destruction of the great USSR. Thus, Mr Putin was particularly critical of Lenin’s concept of a federative state with its entities having the right to secede, saying it had heavily contributed to the 1991 breakup of the Soviet Union. He added that Lenin was wrong in his dispute with Stalin, who, in Mr Putin’s words, advocated a unitary state model. For Mr Putin, Stalin was in the line of great Tsars, from Ivan IV, to Peter I, to Catherine II.

Mr Putin also said that Lenin’s government had whimsically drawn borders between parts of the USSR, placing Donbass under the Ukrainian jurisdiction in order to increase the percentage of proletariat, in a move Mr Putin called “delirious”.

When the USSR collapsed in late 1991, the 15 Union Republics, all of which had the right to secede under the 1978 Constitution of the USSR, duly became independent states, to the horror of Mr Putin and his fellow-thinkers. In 1990-1991 many federative components of the RSFSR sought to gain the status of union republics, so as to have the right to secede. Several, including the Republics of Chechnya, Tatarstan and Bashkortostan, declared sovereignty. Chechnya suffered two bloody wars from 1994 to 1997, and from 1999 to 2009; Tatarstan was granted special treaty status by President Yeltsin which it has only recently lost. Under the 1993 Russian Constitution there are 21 ethnic republics in the Russian Federation with until recently their own presidents, state languages in addition to Russian and other privileges, although no right to secede. Mr Putin is working hard to reverse Lenin’s policy of federative relations.

Bill Bowring: Answers to questions from the Georgian Journal of Strategic Politics

Professor Bill Bowring, Birkbeck College, University of London
1. Can we say that the Russia has a state ideology? If so, what forms modern Russian state? Can you single out thinkers, or traditions that shape pollical-cultural identity of the state?
In my view the ideology of the contemporary Russian state is that Russia is and should continue to be a great power (derzhava), and deserves respect as such. The present regime looks back to Ivan IV, Peter I, Catherine II, Alexander I, II and II, and to the fact that in 1814 Russia defeated Napoleon and its army marched through Paris, and that in 1945 Soviet forces having defeated Hitler occupied Berlin. The greatest fear of the regime is that following the sudden collapse of the USSR in 1991, with the “parade of sovereignties” in many regions of Russia, the Russian Federation itself could break apart. That is why Mr Putin condemns Vladimir Lenin ferociously, especially his principle of the “right of nations to self-determination”. Mr Putin holds Lenin responsible for the end of the Russian Empire, for the murder of Tsar Nicholas II, and for the collapse of the USSR. I recall that Lenin’s last struggle (Moshe Lewin) was on the question whether Georgia should be entitled to independence. The present regime must also try to cope with a demographic crisis, the HIV/AIDS epidemic, crumbling infrastructure, and a really rubbish Navy…
By the way, it should be noted that when in 2008 Mr Saakashvili launched an idiotic war in South Ossetia, failing to block the tunnel, the Russian army reached Gori, the Georgian army having run away. The Russian army could in a few minutes have occupied Tbilisi, but did not do so. Why? Russia is plainly not in control of the regime in Abkhazia, nor of Ramzan Kadyrov’s bloody Islamist dictatorship in Chechnya, on Georgia’s border. The situation in the North Caucasus is one of the greatest threats to Russia’s continuing integrity.
2. What is essential for understanding the Russian way of thinking towards the others?
Is there a “British way of thinking”, or a “Georgian way of thinking”? My parents were both born in the USA, and most of my relatives are there. I spend a lot of time in the Former Soviet Union. Which “way of thinking” do I have? Most Russians I know, including my wife, are a mixture. She is half Tatar (Turkic) and half Mordovian (Finno-Ugric), with a family name (Brynza) which comes from Moldova. Is there a Tatar or a Mordovian way of thinking? Most Russians have Jewish ancestry and most certainly Ukrainian ancestry.
When I first visited Russia in 1983 Georgians were regarded as wealthy, glamorous, and proud. Attitudes have not changed much. Nearly every Russian family has at least one member who has been in prison, and almost all lost family members during the war. Intelligentsia families all lost people to Stalin’s repressions. These experiences, including the chaos of the 1990s, help to form Russian desire for stability, which is a large part of Mr Putin’s popularity.
At the level of the state there is a continuing fear not only of collapse or disintegration, given the existence of strong separatist movements in Russia, but of encirclement by NATO.
3. Can we say that Russia is trying to spread her ideology over the Eastern Europe?
I am following closely developments in Poland, Hungary, Turkey, Moldova, Britain, France – I don’t see any signs of Russian ideology in Turkey which also has a strongly authoritarian regime like Russia. The constitutional crisis in Poland with an authoritarian populist government at war with the Constitutional Court has nothing to do with “Russian ideology”. The success of Brexit in Britain, and the current extremist government, are not as far as I can see the result of “Russian ideology”. Figures such as Nigel Farage and Donald Trump admire Mr Putin for his authoritarian conservatism, not for his “Russian ideology”.
4. Is there a correlation between the rise of illiberal democracies in Eastern Europe and the strengthening of the Russian state influence?
I think you mean “correlation”. The answer is No. There are right-wing populist movements in many parts of the world. There is indeed Russian state influence throughout Europe, through RT and other forms of “soft power”, but this is designed to stir up dissatisfaction and turmoil in the EU.
5. Some scholars argue that Russia has enough soft power to be attractive for others, what makes Russia attractive? Especially for those in Easter Europe?
Russia in my view is not attractive in Eastern Europe. Ukraine and Poland has the same standard of living in 1991, now Poles are much better off than Ukrainians or Russians. I read in the newspaper today that more than 40 Russians have just died as a result of drinking bath oil containing methanol – because they could not afford real vodka. Easter Europeans will not be attracted by Russia’s AIDS epidemic or by the colossal scale of corruption, or the power of the Orthodox Church.
6. Arguably there is a link between populist movements in Europe and Russian administration, what we may expect in near future if we consider a situation in which the populism reaches its pick? Can we say that Eurasianism is not that utopian after all?
I am not aware of any writer, least of all Mr Dugin (or Count Trubetskoy), saying that Eurasianism is utopian. Dugin’s version is a vision of the bitter struggle for survival between a materialist, consumerist West and a spiritual, “sobornost”, theocratic, Byzantine, Eurasia. The most dangerous manifestation of populism in recent times is Donald Trump, and his inspiration came partly from Brexit, not from Russia – though he admires Mr Putin’s macho image. In any event Eurasianism is far from populism, and is indeed deeply authoritarian. Furthermore, I have written, in the final chapter of my 2013 book on Russia, about the strong influence of Carl Schmitt’s decisionism and authoritarianism on the Russian regime.
7. Some scholars argue that Russia is creating an alternative cultural-political model to the Western one, do you agree with the statement? if yes, what is it all about?
I have already disagreed – see above. Which scholars? I have not seen them. Which is the Western model, anyway? The USA? Germany? France? The UK – which will in my opinion soon break up?
8. Can the existence of an alternative way (Russian way) exist peacefully with the western way? Is the multipolar view cherished by some Russian thinkers intrinsically in conflict with the Western values?
First you must accept that there is an alternative, Russian, way, which I do not. Or for that matter, a “Western way”. Or a “Georgian way” – although Georgia is a much more homogenous state than most, with a very distinctive history and religion. And quite a few Western scholars, for example Mearsheimer in the US, have just as much a theory of a multi-polar world as does Dugin or Tsygankov.
9. Taking into consideration Russia’s current approaches, what should the Western rational policy look like?
This is a quite different question. Russia’s approaches to what? There are ideologues in Russia, for example General Reshetnikov, who argue that Ukraine was created by Lenin as an enemy to “Russia”, and has no right to exist. There are others, for example Mr Lavrov, who insist on Ukraine’s sovereignty, and insist that Russia has no intention of annexing Donbas. The US and EU have in fact done very little about Russia’s illegal annexation of Crimea. In Syria, Russia has scored a tactical victory over the US, but strategically is treading a very dangerous path, when it has allied itself with Shi’a powers, Iran and Hizbollah, when Russia itself has a very large Sunni Muslim population. President Trump is likely to have very different priorities from the EU, or Britain after Brexit. US relations with China are much more dangerous, potentially, than relations with Russia.

Additional:
1. What can you say about future of liberalism in Russia? Can existing liberal groups in the country attractive local electorate?
It depends what you mean by “liberalism”. Yabloko and Parnas present themselves as “liberal” parties and are described as such in the media, but have very limited traction with the electorate, as shown by their miserable results in the last Duma elections. There are a number of proponents of liberalism in Russia, in the sense of a free market economy, including Mr Yasin, the Scientific Director of the National Research University – Higher School of Economics, and the former Minister of Finance, Mr Kudrin, whose IV All-Russian Civic Forum I attended on 19 November. As you know, the Liberal Democratic Party in the UK is really struggling, as is the FDP in Germany. Maybe “liberalism” does not have a future in Europe! My opinion is that Russia badly needs a social democratic party, as exists in moist of Western Europe, with a base in the trade unions – and even more badly needs a split in the Communist Party. If there were an effective social democratic party, I am sure the Sravedlivaya Rossiya (SRs) would disappear.
2. Some scholars are concerned by Russia’s raising soft power. What is your opinion on the topic? Is Russia’s soft power as strong as it is sometimes presented?
Russia now spends more on RT than the UK spends on the BBC World Service, and its mix of conspiracy theories and pretended support for protest movements ahs gained it some audience in the UK and USA. But its constant lies and wild speculation means in my view that its real impact is strictly limited. Contemporary Russia has far less cultural attraction than did the USSR.
3. You argue that Putin criticizes Lenin. What about Stalin? Some scholars argue that in the latest books on Russian history there are attempts to re-think his role and introduce him as a good “manager”? (Phillipov, A.V. The Newest History of Russia, 1945-2006).
I don’t argue this – it is a fact. Putin regards Lenin, and has done for years, as a great enemy of Russia and responsible for the end of the Russian Empire, for defeat in WW I, and for the collapse of the USSR. See http://www.rbc.ru/opinions/politics/26/01/2016/56a7858e9a79477cc8cc27d7, and http://www.tvc.ru/news/show/id/84968, and http://www.rbc.ru/politics/25/01/2016/56a64b6d9a794762fc7e85a5. I already mentioned that Lenin’s last struggle was against Stalin, on the question of independence for Georgia. Stalin has now been rehabilitated as a great Tsar (and effective manager), along with Ivan the Terrible. Peter the Great. Under Stalin, the Russian Empire reached its greatest extent.

In Georgian at http://gjsp.ge/ka/880-2/

“Does Russia have a human rights future in the Council of Europe and OSCE?” in Doutje Lettinga & Lars van Troost (eds) Shifting Power and Human Rights Diplomacy: Russia (2017) Amnesty International Netherlands, pp. 53-63.

Doutje Lettinga & Lars van Troost (eds) Shifting Power and Human Rights Diplomacy: Russia (2017) Amnesty International Netherlands

England’s terror of the French Revolution: the historical roots of resistance to the Rights of Man and the case against the Human Rights Act

England’s terror of the French Revolution: the historical roots of resistance to the Rights of Man and the case against the Human Rights Act

Bill Bowring

In Frederick Cowell (ed) Critically Examining the Case Against the 1998 Human Rights Act (forthcoming)

Introduction

In this chapter I argue that the roots of English (nowadays British) unease and in some cases downright hostility towards the Human Rights Act (HRA), and the European Convention on Human Rights (ECHR) which it partially incorporates into UK legislation, is to be found in the sharp, even intemperate, responses to the Déclaration des Droits de l’Homme et du Citoyen of 1789 by the fathers, respectively, of English conservatism and English liberalism, Edmund Burke and Jeremy Bentham. I also seek to show that their tone and their arguments found their way into the influential writing of Albert Venn Dicey in the late 19th century, into the mind-set of the proponents of ‘political constitutionalism’ in contemporary Britain, and underlie contemporary opposition to the HRA.

I start in the recent past with some remarks on the drafting process for the ECHR in 1949-50, and the reasons why the ECHR is, as the UK desired, a much more limited document than the Universal Declaration of Human Rights adopted by the United Nations in 1948. The ECHR contains ‘first generation’, ‘justiceable’, human rights, in a concise form which is remarkably similar to that of the Déclaration, even if this is not expressly noted by contemporary scholars.

Second, I turn to A V Dicey’s remarks on the Déclaration and indeed all written constitutions especially those containing declarations or definitions of rights: his targets were the French and Belgian Constitutions of his time. I note that he commences with a quotation from Edmund Burke, from 1791, and that in passing he praises Bentham for having refuted the supremacy of natural rights. Third, I examine Burke both in his writings of 1790 and in the posthumous construction of his thought into a foundation of English conservatism. Fourth, I explore Jeremy Bentham’s posthumously published frontal attack on the Déclaration and the reasons why he may have reacted in this way. Fifth, I trace the echoes of Burke, Bentham and Dicey in the work of Richard Bellamy, a leading contemporary exponent of “political constitutionalism”.

It is my case that this colourful history is at the root of the opposition to or at least unease with the HRA which is the subject matter of this collection. In conclusion, I find support for my argument in the cover of a collection, focusing on one of the most outspoken opponents of the ECHR and HRA, Lord Sumption, published in 2016. The cover shows a print from 1794; and the Note on the print brings my argument full circle.

The drafting of the ECHR

The Universal Declaration of Human Rights (UDHR)[1] was adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot in Paris.[2] Even a cursory glance at this document reveals that its 30 articles, with 26 substantive rights, contain many more rights than those listed in the ECHR. These include the right to social security (Article 22), the right to work, to equal pay for equal work and just and favourable remuneration and the right to form and join trade unions (Article 23), the right to rest and leisure including paid holidays (Article 24), the right to an adequate standard of living including food, clothing, housing, medical care, social services and social protection (Article 25), the right to education (Article 26), and the right to participation in the cultural life of the community (Article 27). That is, the social, economic and cultural rights which are noticeably absent from the ECHR. I have argued elsewhere that the UK and the other common-law countries share a profound scepticism concerning or even an allergy towards social and economic rights, not least because they are thought not to be susceptible to adjudication.[3]

Morsink not only highlights the “question of whether or not there are two kinds of rights in the Declaration, “real” civil and political rights and “utopian” social, economic and cultural ones”, and observes that “Some delegations thought that no cuts should be made in the area of social and economic rights, for they were the new and recently accepted rights.[4] These newer rights, it was thought should be spelled out in greater detail that the older eighteenth-century civil and political ones.”[5]  He also notes that “… a cursory reading of the Declaration might suggest that the drafters did not think of these “new”, nineteenth-century rights as having the same status as the older and more established civil and political rights that hail from the eighteenth century.”[6]

Brian Simpson relates that the negotiations in the Council of Europe which produced the ECHR took place from August 1949 to September 1950, and that the UK’s Foreign Office emphasised that the approach of the Council of Europe “should be on the right lines”.[7] The initial plan was for “a statement in concise form” of fundamental personal rights based mainly on the UDHR.[8] The issue was which rights were capable of legal enforcement[9], and the proposal was for a “minimum list of rights susceptible of legal enforcement”.[10] That is, the cutting of the “utopian” and non-justiciable social and economic rights in the UDHR. Simpson does not note the rather striking fact that that the final text of the ECHR , with its twelve substantive rights, was remarkably similar to the eighteenth-century civil and political rights to which Morsink referred. That is, the rights set out in the Déclaration des Droits de l’Homme et du Citoyen adopted by the National Assembly of France on 26 August 1789.[11] Furthermore, these are precisely the substantive rights to be found in the HRA, and although the authors of much contemporary criticism of the HRA may not be in any way conscious of it, their hostility echoes the outspoken condemnation of the English critics of the 18th and 19th centuries. I do note, with approbation of their historical sense, if not approval for their arguments, commentators such as Professor Guglielmo Verdirame, who recalls Edmund Burke as follows:[12]

“The British genius, as Burke understood, was to entrench liberty in the beliefs, traditions and habits of the British people, realising that this matters even more than abstract pronouncements. The association of liberty with tradition instils a sense of individual and collective ownership of those rights. It connects the individual with past and future generations. It minimises the atomising effect of purely individualistic entitlements.”

Furthermore, a Conservative politician has also cited Burke with approval when calling for repeal of the HRA.  In a Westminster Hall Debate, concerning a “British Bill of Rights”, Bill Cash MP described Burke as having identified “a proper kind of freedom” which he contrasted unfavourably with the “entirely abstract and in the event utterly destructive approach” represented by natural rights.[13] I show in this Chapter that opposition to the Rights of Man, to the French Déclaration of 1789, and latterly to the HRA, has a long and distinguished pedigree in English conservatism.

Dicey and the 1789 Déclaration

In the Appendix to his 1885 Introduction to the Study of the Law of the Constitution (The Law of the Constitution), Albert Venn Dicey (4 February 1835 – 7 April 1922) commented on the “rigidity” of the French Constitutions, starting with the Constitution of 1791 which contained the Déclaration, and the twelve French constitutions up to the 1875.[14] He commented that “An English critic smiles at the labour wasted in France on the attempt to make immutable Constitutions which, on an average, have lasted about the years apiece.”[15] Each one contained the Déclaration. The very first line of the preamble to the 1958 French Constitution (of the Fifth Republic) is as follows:

“The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946.”[16]

Dicey is frequently referred to today by English constitutional lawyers, an example being Alison Young in her 2008 Parliamentary Sovereignty and the Human Rights Act, who discusses Dicey at length.[17] The issue in her text is the compatibility of the HRA with Dicey’s doctrines of parliamentary sovereignty and the rule of law. But it is symptomatic of such contemporary engagements with Dicey, and hers in particular, that there is no reference to the 18th century antecedents to Dicey’s 19th century theorisation of the English Constitution, no mention of Burke or Bentham, and no mention of his constant engagement with the 1789 Déclaration in its contemporary (to him) manifestations on the continent.  In fact, throughout the Law of the Constitution, Dicey referred, adversely, to both the French and Belgian constitutions. The whole book should in my view be read as a polemical refutation of the call for protection of rights by way of written declarations or lists of rights. I do not apologise, therefore, for quoting Dicey at some length.

Belgium adopted its first constitution in 1831, drawing on French, Dutch and English models.[18] As Lefebvre pointed out, the Belgian Constitution differed from the French and American Constitutions in that it did not have a separate Droits de l’homme et du citoyen or Bill of Rights, but incorporated most of them into the main body of the Constitution so as to make them legally binding.[19] Dicey commented that

“… it is a mistake to think that the whole law of the English constitution might not be reduced to writing and be enacted in the form of a constitutional code. The Belgian constitution indeed comes very near to a written reproduction of the English constitution, and the constitution of England might easily be turned into an Act of Parliament without suffering any material transformation of character, provided only that the English parliament retained – what the Belgian Parliament, by the way, does not possess – the unrestricted power of repealing or amending the constitutional code.”[20]

That is, parliamentary sovereignty or supremacy. This passage immediately preceded the statement by Dicey of the

“… three traits of Parliamentary sovereignty as it exists in England: first, the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws; secondly, the absence of any legal distinction between constitutional and other laws; thirdly, the non-existence of any judicial or other authority having the right to nullify an Act of Parliament, or to treat it as void or unconstitutional.”[21]

This formulation brought Dicey straight to his point of comparison. In Chapter IV, “The Rule of Law: its Nature and General Applications”, Dicey commented:

“…the English constitution… was not created at one stroke, and far from being the result of legislation, in the ordinary sense of that term… [is] the fruit of contests carried on in the Courts on behalf of the rights of individuals. Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law… Hence flow noteworthy distinctions between the constitution of England and the constitutions of most foreign countries. There is in the English constitution an absence of those declarations or definitions of rights so dear to foreign constitutionalists.”[22]

Later in the book, Dicey was even more explicit as to what he was opposing. In Chapter VI “The Right to Freedom of Discussion”, Dicey wrote:

“The Declaration of the Rights of Man and the French Constitution of 1791 proclaim freedom of discussion and the liberty of the press in terms which are still cited in text-books as embodying maxims of French jurisprudence…”[23]

And later in the same chapter

“The Revolution (it may be fancied) put an end to restraints upon the press. The Declaration of the Rights of Man proclaimed the right of every citizen to publish and print his opinions… the Constitution of 1791 guaranteed to every man the natural right of speaking, printing and publishing his thoughts without having his writing submitted to any censorship or inspection prior to publication. But the Declaration of Rights and this guarantee were practically worthless.”[24]

Even more significant for the purposes of this chapter is the quotation with which Dicey started his book, on page 1, under the heading “The true nature of constitutional law”. Dicey’s quotation was as follows:

“Great critics,” writes Burke in 1791, “have taught us one essential rule… It is this, that if ever we should find ourselves disposed not to admire those writers or artists, Livy or Virgil for instance, Raphael or Michael Angelo, whom all the learned had admired, not to follow our own fancies, but to study them until we know how and what we ought to admire; and if we cannot arrive at this combination of admiration with knowledge, rather to believe that we are dull, than that the rest of the world has been imposed on. It is as good a rule, at least, with regard to this admired constitution (of England). We ought to understand it according to our measure; and to venerate where we are not able presently to comprehend.”[25]

The reference given by Dicey in his footnote is simply “Burke, Works, iii (1872 ed.), p.114. This was in fact a quotation from Burke’s From An Appeal from the New to the Old Whigs, in Consequence of some late Discussions in Parliament, Relative to the Reflections on the French Revolution, of 1791.[26] Dicey did not refer to Burke much in his text, but added in the same Chapter:

“The present generation must of necessity look on the constitution in a spirit different from the sentiment either of 1791 or of 1818[27]. We cannot share the religious enthusiasm of Burke, raised, as it was, to the temper of fanatical adoration by just hatred of those “doctors of the modern school”, who, when he write, were renewing the rule of barbarism in the form of the reign of terror…”[28]

What I have shown is that throughout the Law of the Constitution Dicey was arguing with the continental tradition of constitutionalism with its roots in the French Revolution and the Déclaration of 1789. And Dicey was most certainly following in Burke’s footsteps, as I will show, and as the quotation at the start of his book made absolutely clear.

Edmund Burke on the French Revolution

Edmund Burke (1729-1797) is often referred to as the “founder of modern conservatism”. The work which Dicey cited was written towards the end of his life, when he was 63 years old, and one year after his Reflections on the Revolution in France which Burke wrote from February to the summer of 1790.[29] It was, as Jeremy Waldron points out, an immediate success, selling more than 17,000 copies by the end of the year.[30] Burke was publicly congratulated by the king and other political leaders. But in 1794 his case for the impeachment of Warren Hastings (the then Governor of Bengal) for maladministration in India failed, his son died that year, and the French revolution had apparently achieved victory, and he died a bitter and troubled man in 1797. Burke’s starting point in his Reflections was to characterise English constitutionalism in terms of property and inheritance, terms which would be at once recognisable to his aristocratic and landed readers:

“You will observe, that from Magna Carta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity…”[31]

 

This was to be contrasted to the “rights of man” philosophy of the French revolutionaries:

 

“I shall only say here, in justice to that old-fashioned constitution, under which we have long prospered, that our representation has been found perfectly adequate to all purposes for which a representation of the people can be desired or derived… To detail the particulars in which it is found so well to promote its ends, would demand a treatise on our practical constitution, I state here the doctrine of the Revolutionists, only that you and others may see, what an opinion these gentlemen entertain of the constitution of their country…”[32]

In passing, he noted that the revolutionaries considered the English House of Commons as only a ‘semblance’, ‘a form’, ‘a theory’, ‘a shadow’, ‘a mockery’, perhaps ‘a nuisance’ – though he did not disclose the source of these epithets. Like Jeremy Bentham, to whom I turn next, he regarded the ideas of the French revolutionaries as intellectual terrorism, or more precisely an underground mine to blow up everything of value in a grand explosion.

 

“It is no wonder therefore, that with these ideas of everything in their constitution and government at home, either in church or state, as illegitimate and usurped, or, at best as a vain mockery, they look abroad with an eager and passionate enthusiasm. Whilst they are possessed by these notions, it is vain to talk to them of the practice of their ancestors, the fundamental laws of their country, the fixed form of a constitution, whose merits are confirmed by the solid test of long experience… They despise wisdom as the wisdom of unlettered men; and as for the rest, they have wrought under-ground a mine that will blow up at one grand explosion all examples of antiquity, all precedents, charters and acts of parliament. They have ‘the rights of men’. Against these there can be no prescription; against these no agreement is binding; these admit no temperament, and no compromise: anything withheld from their full demand is so much fraud and injustice. Against these their rights of men let no government look for security in the length of its continuance, or in the justice and lenity of its administration.”[33]

 

Thomas Schofield, Professor of the History of Legal and Political Thought and Director of the Bentham Project at University College London, where Bentham’s ‘auto-icon’ is preserved, analysed the effect of Burke’s polemic on contemporary English conservative thought.[34] He pointed out that the rights-of-man doctrine of the French revolutionaries posed as much of a danger to social order as the more tangible military threat posed by revolutionary France.[35] Indeed in his Letter to a member of the National Assembly and Thoughts on French affairs, Burke argued that the Britain and other European powers “should aid counter-revolution and expurgate rights-of-man philosophy”.[36] After the events of 1792 Burke’s polemic convinced conservatives that the proponents of rights-of-man philosophy, with its central principle of the sovereignty of the people, believed it should be universally applied, to every European state.

“There was now widespread agreement with Burke’s view that these doctrines tended ‘to the utter subversion, not only of all government, in all modes, and to all stable securities to rational freedom, but to all the rules and principles of morality.’”[37]

Democratic principles and the threat of sedition were now inseparable. In 1792 William Pitt the Younger (1759-1806)[38], the British Prime Minister who was a ferocious opponent of the French Revolution, and led Britain in the wars against France (which declared war against Britain in 1793) and Napoleon, explained to the House of Commons:

“This whole system of insurrection … would appear… to be laid in the Rights of Man, that monstrous doctrine, under colour of which the weak and ignorant, who are most susceptible of impression from such barren abstract speculations, were expected and attempted to be seduced to overturn Government, law, property, security, religion, order, and everything valuable in this country, as they had already overturned and destroyed everything in France, and endangered every nation in Europe.”[39]

 

In my view Pitt’s denunciation of the Rights of Man as a “monstrous doctrine” continues to resonate in the debates concerning the Human Rights Act. Benedict Douglas has noted that the intellectual legacy of both Bentham and Burke and their scepticism towards  rights has contributed to   the perception that there is a lack of popular ‘ownership’ over the  contents of the HRA.[40] It is noteworthy, however, that the antagonists in the debate over the future of the HRA  rarely refer to this history and speak as if  they are ignorant of it.

Schofield sums up the convictions of conservatives as follows[41]:

“Conservatives proceeded to argue that the inequalities of property and rank, as they existed in Britain, were perfectly just, in conformity with nature, and promoted both the individual and general welfare. This form of government, founded on property, guaranteed stability, equal civil rights and proper reward to industry and skill. The revolutionary government of France however had an unnatural basis, the sovereignty of the people. The revolution had destroyed security of property and instituted tyranny. By attacking property, it had assaulted the true principles of government, and because it was universal in its doctrines, it was universal in its application. The revolution was more than the destruction of the ancient monarchy of France; it constituted a world-wide onslaught upon civilization.” [42]

The historian Emily Jones has recently shown that by 1914 Burke had been firmly established as a ‘conservative’ political thinker whose work was directly associated with British Conservatism.[43] She observes that ‘Burkean conservatism’ centres round key concepts, drawn primarily from his Reflections on the revolution in France (1790), such as ‘the authority of tradition’, the organic, historic conception of society, and the necessity of order, religion, and property. Thus, she observes, Burke, who never produced a theory of government, is now generally referred to as the ‘founder of modern conservatism’.”[44]

Indeed, Burke never set out to be a political theorist, let alone a theorist of conservatism. As the title of his 1791 text shows, he saw himself as a Whig. He was an example of a polemicist and politician whose status as a “political philosopher of conservatism” was constructed by a “burgeoning literature in higher education”, systematising his letters and speeches, at the same time as a substantial number of political Conservatives appropriated his “conservatism”. Thus, Burke’s thought was moulded into “a much baggier but more polemically useful ‘theory’ of conservatism which eventually became seen as the basis of political Conservatism.” [45] Jones points out that Dicey defended the existing constitution against revolutionary ‘Jacobins’ in a series of books and articles. In these texts, Burke’s “Reflections”, a defence of the liberty of aristocrats and clergymen against atheists and the multitude as well as a eulogy of the British constitution, became a key source. The Fortnightly Review claimed: ‘It is the fashion in these days to quote Burke.’ In this perspective, says Jones, Home Rulers became French Jacobins, intent on destruction and not reform.”[46]

I agree with Jones’s estimation that ‘Burkean conservatism’ came to symbolise relatively vague concepts, such as hostility to constitutional change (including the critique of abstract ahistorical thought in politics, and the need for balance in the constitution), and support for private property, religion, historicism, and the organic nature of society. [47] Jones, however, does not focus on Burke’s specific attack on the “rights of man”, nor does she refer to Schofield’s publication in the same journal. However, the influence of Edmund Burke on Dicey and on the British attitude – and hostility towards – Rights of Man cannot be denied, in the context of his role as the “father of English conservatism”.

Jeremy Bentham and ‘Anarchical Fallacies’

Dicey did not refer in his Law of the Constitution to Edmund Burke’s younger contemporary Jeremy Bentham (1748-1832), except in the introduction, where he stated that the “dogma of natural rights” was in England condemned and confuted (refuted) by Bentham and his disciples. In Dicey’s view the declining influence of utilitarianism appeared to have given new strength to this doctrine.[48] Dicey did not tell his readers how Bentham had performed this service. Bentham’s attack on ‘rights-of-man philosophy’ was written in much stronger terms even than Burke’s. Bentham began working on his response to the 1789 Déclaration in 1795 and finished them in 1796. The document was originally entitled Pestulance Unmasked, but remained unpublished, though offered to an anti-Jacobin magazine under the splendid title No French Nonsense: or a Cross Buttock for the first Declaration of Rights: together with a kick of the A— for the Second… by a practitioner of the Old English Art of Self Defence.[49]

But it was not published under this title or any other until after Bentham’s death in 1832, and although there was a publication in French, it did not appear in English until my ancestor John Bowring edited The Works of Jeremy Bentham in 11 volumes in 1843.[50] There it appeared under the title Anarchical Fallacies; being an examination of the Declaration of Rights issued during the French Revolution.[51] Jeremy Waldron sets it out in full in his collection already mentioned.[52] Bentham’s vigorous condemnation of the Déclaration is well known

“Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, – nonsense upon stilts.. But this rhetorical nonsense ends in the old strain of mischievous nonsense; for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle.”

 

So much for terrorist language.[53] In another text which Waldron includes in his collection, Bentham’s Supply without Burden[54], first published in 1795, Bentham wrote:

“When I hear of natural rights… I always see in the background a cluster of daggers or of pikes introduced in the National Assembly with the applause of the President Condorcet for the avowed purpose of exterminating the King’s friends.”[55]

Hugo Bedau also refers to Bentham’s opinion, citing his colourful phrases, that the Déclaration

“… consists of “execrable trash,” that its purpose is “resistance to all laws” and “insurrection,” that its advocates “sow the seeds of anarchy broad-cast,” and, most memorably, that any doctrine of natural rights is “simple nonsense: natural and imprescriptible rights, rhetorical nonsense,-nonsense upon stilts.”[56]

In his later essay Philip Schofield noted that while Bentham was, until 1789, actively engaged in putting forward proposals for the reform of the French electoral and constitutional systems, Bentham was increasingly shocked by the violence of the Terror in France, and became ever more convinced of the superiority of the British preference for slow evolution, representative democracy through a sovereign parliament, and rights defined and determined by the courts.[57]

These events were the insurrection of 10 August 1792 when the Tuileries was attacked and the Royal family forced to flee, the September Massacres, the success of the French armies in Europe following the Battle of Valmy on 20 September 1792, and the abolition of the monarchy two days later. Bentham noted that the ‘characteristic properties’ of democratic government were ignorance, violence, extravagance, discontent, frequent wars, and danger of violent revolution.[58] Indeed, the feature which Bentham criticized most severely was the lack of intelligence in the people to conduct the business of government.

Schofield concludes that Bentham was edging towards the development of a radical utilitarian politics until the excesses of the French Revolution persuaded him to abandon this course, and instead to defend the existing institutions of the British polity. The historian J. H. Burns also noted[59] the divergence between the hopes of reformers and the reality of revolution in France. Even at his most sympathetic to the cause of radical reform Bentham was, according to Burns, already aware of the ideological gulf between his doctrines and those of the National Assembly. “The phrase natural right” he remarked in one of the unfinished letters to Mirabeau, “when opposed to utility is altogether an unmeaning one.” At that time Bentham had not yet turned his attention to the Déclaration, but his opinion of it was not be doubted.[60]

The American philosopher Hugo Adam Bedau (1926-2012) asked why Bentham described the Déclaration as containing “anarchical fallacies”.[61] He turned directly to why Bentham thought that the French “Declaration sow[s] the seeds of anarchy broad-cast,” and that it is a doctrine of “the rights of anarchy – the order of chaos.”  According to Bentham, the French Déclaration did this because of its tacit message “People, behold your rights! If a single article of them be violated, insurrection is not your right only, but the most sacred of your duties.”[62] As Bedau pointed out that this was a startling remark, since no such radically anarchic language actually appeared in the Preamble or in any of the seventeen articles of the French Déclaration. The only language coming at all close to this was to be found in the second article, where all persons are told they have “…natural and imprescriptible rights … [including the right of] resistance to oppression[]” (la résistance à l’oppression)[63].  Bedau pointed out that this was not to be found either in the American “Bill of Rights” of 1791 or in the 1948 UDHR. However, this assertion led Bentham to heap scorn on the very idea of an “imprescriptible” right – a right that no political or legal authority may or can suspend, modify, or nullify…[64]. Furthermore, Bedau pointed out that Bentham never explained why an insistence on “natural rights” as they were affirmed in the French Déclaration, were the sole or the dominant cause of political unrest in France.[65]

The footprints of Burke, Bentham and Dicey in contemporary “Political constitutionalism”

In this section of my chapter I trace some of the lasting effects, the continuing resonance, of English and British hostility to Rights of Man, in present day scholarship. Richard Bellamy is a leading contemporary exponent of “political constitutionalism” – as opposed to the “legal constitutionalism” of those who believe that it is high time that the UK followed the example of the rest of the world and adopted a written constitution.[66]  He points out that the UK presents a rather intractable puzzle to scholars of constitutionalism, a real paradox. Despite the absence to this date of a written constitution or even entrenched constitutional provisions – or even the equivalent of Israel’s Basic Laws[67] – the UK (or more accurately England) can claim to be the inspirer and originator of two key elements of modern “legal constitutionalism”: the separation of powers (the inspiration for Montesquieu’s 1748 De l’esprit des lois) and a bill of rights (as found in the 1689 Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown). Bellamy notes that “from more or less the same period” Parliamentary sovereignty emerged as the distinctive constitutional feature of the UK.[68]

I would say (which Bellamy does not) that this was fixed in constitutional practice in England in the seventeenth rather than the eighteenth century, and I would contend that parliamentary sovereignty is the direct consequence of Parliament’s victory in the English Revolution (or Civil War). This was noted in 1993 by Lord Templeman in the House of Lords in M v Home Office[69], when he characterised the submissions of the Home Office as “a proposition which would reverse the result of the Civil War”. This war culminated in the execution of King Charles I in 1649 and led to the first and last attempt at a written constitution for England, the Instrument of Government, drafted by Major-General John Lambert in 1653.[70]  Bellamy goes on to argue that parliamentary sovereignty has been a characteristic of the English constitutional order that “commentators from the late eighteenth century onward have believed negated, or at least trumped, both of these attributes of a legal constitution” – the separation of powers and a bill of rights. At this point Bellamy turns to Dicey:

“As Dicey, who became this doctrine’s chief ideologist, famously and approvingly noted, there is ‘in the English constitution an absence of those declarations or definitions of rights so dear to foreign constitutionalists.’”[71]

And mentions in passing Burke:

“However, from Edmund Burke onward, a host of defenders of the Westminster system have regarded it as offering a distinct and superior model of political constitutionalism, which protects British liberties far more effectively than could the paper parchment of a “legal” Constitution.”[72]

Bellamy is clear that his aim is “less to assess if current judicial practice suggests the HRA is compatible with a distinctly political conception of the constitution and more to explore if it could be so.”[73] At this point he returns to his opening paradox –

“In this way, skepticism about the possibility of a political constitution turns into skepticism about constitutionalism itself. And so we come back to the opening apparent paradox, the resolution of which arises by virtue of the British constitution’s remaining true to its history in successfully combining both the separation of powers and a bill of rights not in despite of but because of Parliamentary sovereignty.”[74]

Bellamy has returned to this theme in his contribution to a collection devoted to Lord Sumption’s 2013 lecture “The Limits of Law”.[75] In expressing his trenchant views concerning the Human Rights Act 1998 and the dangers of “judicial lawmaking”, Lord Sumption did not mention Burke, Bentham or Dicey, though their ghosts, I suggest, are always present at his shoulder. Bellamy’s contribution is entitled The Limits of Lord Sumption: Limited Legal Constitutionalism and the Political Form of the ECHR.[76] According to the book’s index, Burke, Bentham or Dicey are nowhere referred to in the collection. Bellamy is highly critical of Lord Sumption’s “conservative” approach:

“However, whereas his arguments are institutionally and to some degree politically conservative, this is less so with regard to political constitutionalism. By and large, political constitutionalism has been proposed by those on the left of the political spectrum as much concerned by the judiciary’ s failure to uphold rights as by their propensity to discover new rights. From the political constitutionalist perspective, Lord Sumption’s limited legal constitutionalism is as contentious and as open to abuse as the more extensive versions he criticises, such as those he associates with Ronald Dworkin, John Rawls and the ‘ living instrument ’ doctrine of the ECtHR.”[77]

Conclusion

However, even if the Index is notable for the absences I refer to above, the cover illustration and the anonymous “A Note on the Cover” of The Limits of Lord Sumption , serve to help me to make my point. The illustration is the 1793 print by James Gillray, “Fashion before ease; or, a good constitution sacrificed for a fantastic form”. The Note reads:

“The print shows an unhappy Britannia being laced into a corset by Thomas Paine. Paine was the author of, amongst other books, The Rights of Man – and the title of this volume can be seen on the measuring tape, which dangles from his pocket next to his tailor’s shears. The Rights of Man, published a couple of years before Gillray’s print, called for the introduction of a written constitution for the United Kingdom (sic), the recognition that natural rights constrain the state… Paine’s intellectual rival, Edmund Burke, would have sympathised with the manner in which Gillray has chosen to depict the scene. For Burke, the British state was an organic entity, one that had developed over time, intertwined with the community of which it was a part. The rationalist attempt to draw up a set of rights that limited the states was bound to create discomfort: the protection of liberties is a function of a well-formed state, and not something that can be imposed on it from outside.”[78]

Gillray’s print and the Note support, I think, my argument that the case against the HRA has a great deal to do with the historical development of English constitutionalism. The intellectual origins of both Conservatism and Liberalism in their English manifestations, and with the horror felt by Burke and Bentham not only towards the French Revolution itself, were characterised against the idea of natural rights, in particular the intellectual ‘terrorism’ of the Déclaration. This led to a cultural scepticism of the concept of natural rights which were often cast as the direct anti-thesis of British constitutional traditions. In a similar way the contemporary debate about the HRA repeal frames supposedly British traditions, such as parliamentary sovereignty, against European notions, such as the protection of rights by the ECHR.

 

 

 

[1] Universal Declaration of Human Rights UNGA Res 217A(III) 10 Dec 1948.

[2] Johannes Morsink The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Pennsylvania Press 1990).

[3] Bill Bowring “Forbidden Relations? The UK’s Discourse of Human Rights and the Struggle for Social Justice” (2002) n.1 Law, Social Justice, and Global Development, at

http://elj.warwick.ac.uk/global/issue/2002-1/bowring.htm accessed 14 October 2016.

[4] Morsink (n.3) 84.

[5] Ibid.164. The delegations in favour of cutting were those from the USA, UK and India.

[6] Ibid. 222

[7] Brian Simpson Human Rights and End of Empire: Britain and the Genesis of the European Convention (OUP 2001) 649.

[8] Ibid 650.

[9] Ibid. 658.

[10] Ibid.661.

[11] Jeremy Waldron Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (Methuen 1987) 24.

[12] Guglielmo Verdirame “Why Britain should scrap the Human Rights Act” The Spectator 3 October 2014, at http://blogs.spectator.co.uk/2014/10/why-britain-should-scrap-the-human-rights-act/ accessed 24 November 2016.

[13] WH Deb 17 March 2011 Volume 525 col 116.

[14] A. V. Dicey Introduction to the Study of the Law of the Constitution ( first ed 8th ed 1885Macmillan 1931) 469.

[15] Ibid 474.

[16] English translation approved by the French authorities, at

http://www.thisnation.com/library/france.html (accessed on 14 October 2016)

[17] Alison Young Parliamentary Sovereignty and the Human Rights Act (Hart 2009). In her Conclusion, Young (p.161) makes it clear that her book argues for possible ways in which rights can be entrenched while preserving parliamentary sovereignty. She contends (p.162) that Dicey’s theory has been regarded as the “prevailing conception of sovereignty”.

[18] Edwige Lefebvre “The Belgian Constitution of 1831: The Citizen Burgher” (ZERP Diskussionspapier, Bremen 4/97) available at https://www.jura.uni-bremen.de/lib/download.php?file=13752639d7.pdf accessed on 14 October 2016.

[19] Lefebvre (n.18) p. 27

[20] A. V. Dicey Introduction to the Study of the Law of the Constitution (Macmillan, 8th ed, 1931); first ed 1885 86.

[21] Ibid 87.

[22] Ibid 192.

[23] Ibid. 234.

[24] Ibid. 252.

[25] Ibid. 1.

[26] Edmund Burke From An Appeal from the New to the Old Whigs, in Consequence of some late Discussions in Parliament, Relative to the Reflections on the French Revolution (London 1791), facsimile available at https://archive.org/details/appealfromnewtoo00burkiala (accessed on 14 October 2010), p.140-141

[27] This is a reference to the work of the historian Henry Hallam (1777 to 1859) View of the State of Europe during the Middle Ages, (12th ed), Volume 2, p267: “No unbiased observer who derives pleasure from the welfare of his species, can fail to consider the long and uninterruptedly increasing prosperity of England  as the most beautiful phaenomenon in the history of mankind…”.

[28] Dicey (n.20) 3.

[29] Its full title was Reflections on the Revolution in France and on the proceedings in certain societies in London relative to that event. In a letter intended to have been sent to a gentleman in Paris by the right honourable Edmund Burke, facsimile of the 2nd edition at

https://archive.org/details/reflectionsonre04burkgoog accessed on 17 October 2016.

[30] Jeremy Waldron (ed) Nonsense upon Stilts. Bentham, Burke and Marx on the Rights of Man (London, Methuen, 1987), Chapter 4 “Edmund Burke’s Reflections on the Revolution in France” (1790) 82.

[31] Ibid. 100.

[32] Ibid. 102.

[33] Ibid 103-4.

[34] Thomas Philip Schofield ‘Conservative Political Thought in Britain in Response to the French Revolution’ (1986) 29 The Historical Journal 601.

[35] Ibid. 601

[36] Ibid. 603

[37] Ibid 603, and Edmund Burke, The works of the Right Honourable Edmund Burke. a new edition (12 vols., London, 1808-13),VI, I48.

[38] He became the youngest Prime Minister in 1783 at the age of 24. He left office in 1801, but was Prime Minister again from 1804 until his death in 1806. He was also the Chancellor of the Exchequer throughout his premiership. See http://www.bbc.co.uk/history/historic_figures/pitt_the_younger.shtml accessed on 22 November 2016.

[39] Schofield (n34) p.604; and The Parliamentary Register (2nd series, 45 vols., London, I781-96), XXXVIII, 247.

[40] Benedict Douglas, ‘Why Human Rights Have Not Been Accepted in the UK’ U.K. Constitutional Law Blog 4th May 2015 available at http://ukconstitutionallaw.org accessed 20 November 2016.

[41] Schofield (n.34) 621.

[42] Ibid 621.

[43] Emily Jones ‘Conservatism, Edmund Burke, and the Invention of a Political Tradition, c. 1885-1914’ (2015) 58 The Historical Journal 1115.

[44] Ibid 1116.

[45] Ibid. 1118.

[46] Ibid 1121.

[47] Jones (n.43) 1123.

[48] Dicey (n.20) lxii.

[49] Waldron (n.30) 32.

[50] Hugo Bedau mistakenly gives the date of publication in English as 1834 – see Hugo Adam Bedau “Anarchical Fallacies”: Bentham’s Attack on Human Rights” v.22 (2000) Human Rights Quarterly 261.

[51] Jeremy Bentham Anarchical Fallacies in The Works of Jeremy Bentham edited by John Bowring (Edinburgh, William Tait, 1843), vol II, p.489-535, facsimile edition at

http://oll.libertyfund.org/sources/2124-facsimile-pdf-bentham-the-works-of-jeremy-bentham-vol-2/download (accessed on 17 October 2016)

[52] Waldron (n.30) 46-76.

[53] Ibid 55.

[54] Jeremy Bentham Supply without Burden in The Works of Jeremy Bentham edited by John Bowring (Edinburgh, William Tait, 1843), vol II, p.585-598, facsimile edition at

http://oll.libertyfund.org/sources/2124-facsimile-pdf-bentham-the-works-of-jeremy-bentham-vol-2/download accessed on 17 October 2016.

[55] Waldron (n.30) 74.

[56] Bedau (n.50) 263.

[57] Philip Schofield ‘Jeremy Bentham, the French Revolution and political Radicalism’ (2004) 30 History of European Ideas 381, 396.

[58] See University College London Library, Bentham Papers, xliv. 5.

[59] J. H. Burns ‘Bentham and the French Revolution’ (1966) 16 Transactions of the Royal Historical Society 95.

[60] Ibid. 103.

[61] Hugo Adam Bedau ‘”Anarchical Fallacies”: Bentham’s Attack on Human Rights’ (2000) 22 Human Rights Quarterly 26.

[62] Ibid 266.

[63] Article 2: “Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’Homme. Ces droits sont la liberté, la propriété, la sûreté, et la résistance à l’oppression.”

In French on the web-site of the French Conseil Constitutionnel, at

http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/la-constitution-du-4-octobre-1958/declaration-des-droits-de-l-homme-et-du-citoyen-de-1789.5076.html accessed on 18 October 2016. In English: “The goal of any political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety and resistance against oppression.”

[64] Bedau (n.61) 267.

[65] Ibid 268.

[66] See Richard Bellamy ‘Political constitutionalism and the Human Rights Act’(2011) 9 International Journal of Constitutional Law 86.

[67] See Basic Laws at  https://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm accessed on 18 October 2016.

[68] Bellamy (n.66) 87.

[69] M v Home Office [1993] UKHL 5.

[70] See Peter Gaunt ‘Drafting the Instrument of Government, 1653–54: a reappraisal’ (1989) 8 Parliamentary History 28.

[71] Bellamy (n.66) 86-7.

[72] Ibid 87.

[73] Ibid 88.

[74] Ibid.111.

[75] Lord Sumption: the 27th Sultan Azlan Shah Lecture, Kuala Lumpur, 20 November 2013 available at https://www.supremecourt.uk/docs/speech-131120.pdf accessed on 18 October 2016.

[76] Richard Bellamy “The Limits of Lord Sumption: Limited Legal Constitutionalism and the Political Form of the ECHR” in Nicholas Barber, Richard Ekins, Paul Yowell (eds), Lord Sumption and the Limits of the Law,  (Hart Publishing 2016).

[77] Ibid. 195.

[78] Ibid.

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