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Why we should worry about the theoretical foundations of human rights law and practice


Critical Legal Thinking

– Law & the Political –

Human rights claims are always scandalous, and were a scandal and an affront to the law from the very start.

Eugène Delacroix's Liberty Leading the People

Ivor Crewe, the former Essex Vice-​Chancellor, and a political scientist, used to compare contemporary human rights activists to 19th century Christian missionaries, spreading the gospel to less enlightened peoples. There is more than a grain of truth to this ironical jibe, aimed at his colleagues in the Human Rights Centre.

Late last year I was invited to make presentations on behalf of the Council of Europe in Bosnia and in Macedonia. I have just been twice to Russia. I am about to go and do human rights work in Tajikistan and Kyrgyzstan for the UK’s Foreign and Commonwealth Office, and through my EHRACproject I take many cases to the European Court of Human Rights at Strasbourg against Russia and other countries of the Former Soviet Union.

What is the legitimacy of this practice – what word is it precisely that I am spreading or seeking to vindicate? What right do I have to pass judgment on the governments of states which have such different culture and histories from ours? In what way can the people I meet benefit from what I have to say as a human rights expert and practitioner?

One “true believer” in human rights is my LSE colleague Francesca Klug. The titles of two of her books are Values for a Godless Age (2000) andA Magna Carta for All Humanity: Homing in on Human Rights: Time for a New Enlightenment? (2015).

On the other hand, there is a growing literature expressing deep scepticism in the human rights project, especially the world of movements such as Amnesty International – for example Stephen Hopgood’s Keepers of the Flame: Understanding Amnesty International (2006) and The Endtimes of Human Rights (2013). Hopgood says that Amnesty is “much more like a Free Church whose main product, thus far, has been moral authority, not social change.”

The controversial Chicago scholar Eric Posner has recently published The Twilight of Human Rights Law (2014), in which he concludes that the complex and growing structure of UN human rights treaties, committees, state reports, and individual complaints actually makes very little difference to suffering humanity.

And there is now a highly influential ‘revisionist’ account of human rights by the Harvard historian Samuel Moyn, in his The Last Utopia: Human Rights in History (2010) and Human Rights and the Uses of History(2014). He starts by saying, not so unusually:

When people hear the phrase “human rights,” they think of the highest moral precepts and political ideals… The phrase implies an agenda for improving the world, and bringing about a new one in which the dignity of each individual will enjoy secure international protection. It is a recognisably utopian programme.

However, his most controversial claim is that “The year of human rights, 1977, began with Carter’s January 20 inauguration, which put ‘human rights’ in front of the viewing public for the first time in American history.” Indeed, he argues that “The drama of human rights, then, is that they emerged in the 1970s seemingly from nowhere.”

For me, that is a puzzling claim, since I would start in the late 18th century with the American Bill of Rights, and in particular in 1789, in the French Revolution, with the Déclaration des Droits de l’Homme et du Citoyen(Declaration of the Rights of Man and of the Citizen — Olympe de Gouges drafted a Declaration of the Rights of Woman and the Female Citizen, but was guillotined). Moyn argues that the Déclaration did not really concern “human rights” as he understands them, but are rather about the “politics of the state” — the creation of the nation of France. He pours similar scorn on the Right to Self-​Determination and the national liberation struggles after World War II.

Of course, Moyn is quite right to identify the 1970s as the period of the explosion in the use of human rights language by world leaders, especially President Jimmy Carter, and the rise to prominence of Amnesty International, Human Rights Watch, FIDH, and other international human rights non-​governmental organisations. All of them share a lack of internal democracy and accountability. They are answerable only to morality and the grandiose structure of international human rights law.

However, for me, human rights are rather different from domestic law, and do not have their origins in the international treaties post WW II. That is, they do not have their origins in legislation. Human rights are not “the command of the sovereign” (in the words of the English positivist John Austin) and cannot be ascertained by a “rule of recognition” (H. L. A. Hart). Nor are human rights part of the law as a whole (law as integrity) on the basis of which Judge Hercules always comes to the right answer (Ronald Dworkin).

I argue that human rights claims are always scandalous, and were a scandal and an affront to the law from the very start. I recommend to my students a great collection: Jeremy Waldron’s Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (2014). All three subjected human rights as set out in the French Déclaration to severe criticism. Edmund Burke, the father of English conservatism, saw the Déclaration as embodying terrorist language which would blow up all hard-​won freedoms and venerable institutions. “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts,” said Jeremy Bentham, one of the fathers of English liberalism. And Karl Marx saw these civil and political rights as the rights of the egotist, who does not want to participate in society.

In my 2008 book The Degradation of the International Legal Order: The Rehabilitation of Law and the Possibility of Politics, I have sketched a materialist and historicised account of the genesis and significance of human rights. This account focuses on the concretisation and recognition of each “generation” of human rights in the context of revolutionary events — civil and political rights in1789, social and economic rights in the aftermath of WWI I and the Bolshevik Revolution, and third generation rights of interdependence starting with the right of peoples to self-​determination.

Working this out in detail is my current preoccupation.

Bill Bowring is Professor of Law at Birkbeck College, Barrister, Fellow of the Essex Human Rights centre, founder and chair of the European Human Rights Advocacy Centre (EHRAC), author most recently of Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power(Routledge, 2013). Follow Bill on Twitter at @BillBowring

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