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David Renton and Bill Bowring – a debate on socialism and human rights


David Renton in Socialist Lawyer Number 64, June 2013, p.32;  and reply in Number 65, October 2013 p.40

Click to access SocialistLawyer64.pdf

Click to access SocialistLawyer65.pdf

Do socialists still have an alternative concept of rights? David Renton

An obvious starting point is Karl Marx’s position on human rights. We can begin with his response in 1844 to Bruno Bauer’s pamphlet The Jewish Question, in which Bauer opposed Jewish demands for political liberation on the grounds that no one in Germany was emancipated and that Jews should fight not for their liberation but for universal liberation. This sparked some caustic remarks from Marx on the limited notion of liberation espoused by Bauer. Political emancipation, Marx observed, took the form of negative liberties such as the right not to be imprisoned or the right not to be prohibited from having a profession. Marx wrote: ‘Liberty … is the right to do everything that harms no one else … [T]he 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 It is the right of this separation, the right of the restricted individual, withdrawn into himself.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.’

Over the next forty years, Marx and Engels were to sharpen this critique of rights and develop a richer sense of how an alternative society might work. But they never wavered from this original scepticism to demands for a universal ‘freedom’. Faced with the proposal that there should be a right to work, Marx’s instinctive answer was to demand what his son-in-law Paul Lafargue nicely formulated as ‘the right to be lazy’, i.e. rather than just demanding that all should be able to work, Marx and his allies wanted everyone to be free from having to work.

Perhaps the best developed example of Marx’s critique of rights was his 1875 Critique of the Gotha Programme. All universal rights, Marx argued, by their nature, result in unequal treatment: ‘Right, by its very nature, can consist only in the application of an equal standard; but unequal individuals (and they would not be different individuals if they were not unequal) are measurable only by an equal standard insofar as they are brought under an equal point of view, are taken from one definite side only — for instance, in the present case, are regarded only as workers and nothing more is seen in them, everything else being ignored. Further, 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’s Critique is worth bearing in mind when considering, for example, the employer’s duty under section 20 of Equality Act 2010 to make reasonable adjustments for a disabled worker. If an employer employs two workers, one of whom is disabled and uses a wheelchair and one of whom does not, and the doors to enter the workplace are beside a short flight of stairs, an equal balance between disabled worker and employer can only be achieved by the employer buying a ramp to the door. The same treatment of both workers would result in the employer discriminating against the disabled worker. An equal outcome depends on unequal treatment. Even contemporary law, at its present limited stage of development, obliges the employer to buy the ramp; although it allows the hegemony of the employer back in by making the purchase necessary only if it would be ‘reasonable’ to require it. What for contemporary law is a heavily-qualified anomaly is in Marx’s hands, the principle under which an entire legal system would be constructed:

‘In a higher phase of communist society’, he wrote, ‘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!’

This is one of those concentrated passages of careful thought that repays careful re- reading. First of all, it is clear from it that Marx, despite, his rights scepticism, understood the desire for justice that lies behind most rights discourse, whether the rights themselves are virtuous or otherwise. He was not hostile to justice but passionate about going much further in the same direction.

Second, in referring to ‘phases’ of communist society Marx is describing socialism not as a one and for all process, but as a series of steps towards an ideal. Like the novelist who writes and rewrites the same book, or like Marx himself in his decades long struggle to complete Capital, we should not assume that the first draft will be the final version.
Third, long before a just system of ‘rights’ could possibly be practical, all sorts of conditions will have to be encountered and passed: the breaking down of the division of the day between work and non-work, the spread of co-operative forms of production, and the extraordinary increase in human productive capability that we could have if only the whole world had universal access to the very latest technology on the same terms. In contemporary terms, Marx is envisaging a world in which all of Africa and all of Asia had access to the same levels of agriculture and industry as the most developed regions of the West; Marx is asking what law there might be during, and beyond, transitions of this scale.

In these circumstances, the revolutionary fragment buried even in laws such as the present-day Equality Act law could be developed and generalised, i.e. there would be ‘rights’, but unlike the rights enshrined in the European Convention on Human Rights, the equality principle would be equality of outcome rather than equality of opportunity. Everyone should give what they can; everyone must have what they need.
Drawing on Marx, a useful approach to the problem of right in the crisis of the present day, could be to disregard temporarily the search for further and better lists of rights in order to focus on their revolutionary kernel: i.e. the right to a just outcome. Part of establishing a fair outcome depends on a system of expropriation.

There are models, even under contemporary law, of how this could work. In the emerging field of environmental law, there is a developing concept of environmental ‘responsibility’. For example, Section 24 of the South African constitution provides a right of all people to have access:
‘a. to an environment that is not harmful to their health or well-being; and
b. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that
i. prevent pollution and ecological degradation;
ii. promote conservation; and
iii. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.’
A moment’s thought will show that the idea of a right to prevent ecological degradation is a right that is only capable of enforcement if there are others, i.e. people holding property, who have caused or risk causing that degradation.

Polly Higgins’ Eradicating Ecocide uses interchangeable terms of environmental ‘responsibility’ and ‘stewardship’ and portrays the key task of the moment as being to shift the focus from commodity to responsibility.

Now we are used to hearing ‘responsibility’ as a weasel-word to justify, for example, right-wing arguments that welfare benefits should not be universal, but should be made conditional, e.g. on a person taking up low-paid part-time work, which will contribute to a general lowering of the average wage.

But there are other notions of ‘responsibility’ which point in more interesting directions. When family members ask a court to determine where a child should live, the starting question is whether the applicant has ‘parental responsibility’. The idea is very simply that a child, as a human being, cannot be subject to the ordinary principles of private property, they cannot be owned. Accordingly rather than asking first ‘who has the right to care for the child?’, the court’s first question is ‘who has the duty of care?’ Contrary to the demands of campaigns such as ‘Fathers for Justice’, the answer will not necessarily be ‘the father’, it may not even be either of the parents. Section 3 of the Children Act 1989 defines parental responsibility as ‘all the rights, duties, powers, responsibilities which by law a parent of a child has…’

When a local authority’s social workers have reached an interim view that a child is suffering or likely to suffer significant harm living with their parents (section 31 Children Act), they initiate care proceedings. The initial step in these proceedings is often for the local authority to ask the court if it may share parental responsibility with the parents.

Children Act 1989 proceedings are not by any means ‘model’ instances of the law at its best. In ‘private’ Children Act 1989 proceedings involving disputes between parents there are many examples of the law getting it wrong, whether by disregarding the views of victims of domestic violence, or by reaching the right decisions in the event but doing so slowly. In ‘public’ Children Act 1989 care proceedings, courts are torn between competing instincts including the knowledge that children in care are often bitterly unhappy, and the consciousness also that some families are actually so unsafe that there is no alternative but to remove the child. The positive feature of this litigation is the absence of a ‘parents’ rights’ discourse. A parent who says merely that their child is their child, therefore it is their right that the child should live with them, will not get far; the court will expect a much more serious focus on the true best interests of the child. If only we could learn to treat the ownership of property with the same scepticism with which we already treat the purported ownership of children.

As a conceptual example in considering how a fully developed legal concept of environmental responsibility might work, a person who believes that a polluter risks causing ecological degradation on a piece of land, might petition a court complaining that the polluter has lost the right to environmental responsibility for that piece of land. A court would investigate. It might find that the applicant’s case was made out, in which case, they could listen to proposals that the responsibility for that piece of land should be given to another. They might find that the applicant’s case was hopelessly weak. They might instead find that the land should remain with its present owner, but only on an interim basis, subject to the present owner demonstrating that their custodianship was rapidly improving and they were taking all steps to prevent pollution.

There is no reason of principle why there should not equally be an overriding duty of ‘social responsibility’. In order for someone to exercise any right as an owner of property, or for any contract to be enforced, the owner should be capable of being challenged by anyone – a worker, consumer, anyone – on the grounds that their stewardship of the property was deficient, and should be given to another. Where an employer did not pay the minimum wage or their workplace was unsafe, the ordinary principle should apply that their workplace should be passed to another.
The rule that is proposed is simple and intuitive. Questions of whether a workplace is properly run could easily be determined by juries, to whom we already leave inquests and sometimes very complex questions of criminal law.

There is no political will in Parliament for anything like this model of social responsibility because the large majority of political forces are signed up to a vision of untrammelled corporate power, with all the disasters that has caused, in terms of recession, bankers’ bail outs, and collective austerity. We are not going to see the expropriation of capital without social upheaval.

In working out the next step for the rights discourse, socialists should go further than the majority of rights activists. We have a concept of right in which the highest categories are human need, and agency to answer human need. The next step is a right of expropriation where property ownership limits human potential.

The simplest rebuttal of the present proposal – for an overarching concept of social and/or ecological responsibility which would be capable of taking priority over all other property rights and any contractual agreements – is that class society has been in existence for around 10,000 years without having anything like such a practice. For around a third of that time we have had an idea, through contract law, that property is disbursed in agreements, the terms of which are binding on the contracting parties. No commercial agreement could be attractive if its effect was constantly uncertain. This is exactly the spirit in which socialists should respond to big questions about what the law should be in the future. Socialists should demand what is absolutely incompatible with the conditions of capital and the State: the right not to be exploited. We ask of course in a modest fashion, pointing out in this way the absurdly limited conditions under which capitalism allows billions of people worldwide to live.

David Renton is a barrister at Garden Court Chambers and a member of The Haldane Society’s executive committee.

Socialism and rights

A reply to David Renton’s “Do socialists still have an alternative concept of rights?” Bill Bowring

David Renton’s thoughtful and trenchant article in SL64 has done us all a great service, opening up questions of crucial importance to the Haldane Society. That is because we are socialists, committed to solidarity in resistance to the depredations of capital, and to fighting for its abolition. We are not simply human rights defenders, though many of us are active in a host of human rights organisations, for example the Bar Human Rights Committee and the Solicitors International Human Rights Group.

What then should be our understanding of the discourse of human rights, which has become something like a secular religion or substitute for religion? And the practice of human rights protection often looks worryingly like Eurocentrism; European standards against US power politics or geopolitical mayhem. That was the issue in the notorious Kadi judgment of 2008, in which the European Court of Justice annulled the decision, taken initially by the UN Security Council (as the Sanctions Committee) placing Mr Kadi on the terrorist list. The ECJ did so in the light of “the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 6(1) EU as a foundation of the Union.” That is, European principles.

And so far as the UK is concerned, human rights are liberal rights, the right of the individual to dignity. In reality, even the Tories have no problem with the Council of Europe’s “three pillars”; the rule of law, multi-party democracy, and the protection of individual human rights. As Adam Wagner wrote on 3 September 2013 on the UK Human Rights Blog, under the heading “Why we would be mad to leave our European Convention on Human Rights”:

“It cannot be overstated how fundamentally British the ECHR is. The included rights were based largely on those developed by the British common law, reaching back to the 1215 Magna Carta and the 1689 Bill of Rights. After the Second World War, imposing traditional British values on foreign legal systems was seen as part of the victor’s spoils. British politicians “made a huge contribution to the drafting”, said Lord Bingham, “reflect[ing] values which we in this country took for granted and which had, we thought, been vindicated by our military triumph”.

British politicians were instrumental in drafting the ECHR, building on the 1948 Universal Declaration of Human Rights and older British common law liberties. Sir David Maxwell-Fyfe, a Conservative politician and lawyer, drafted much of it after he had joined the European Movement on the invitation of Winston Churchill.”
This conception of human rights has no place for collective rights, for example the rights of the working class, or even of trade unions. The UK, like other common law countries, refuses to have anything to do with social and economic rights, refuses to ratify the Council of Europe’s Revised Social Charter with its system of collective (not individual) complaints by trade unions and NGOs to the European Committee of Social Rights, or the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The jurisprudence of the European Committee of Social Rights, with many decided cases, can be found at

David Renton is not a liberal; he is a revolutionary socialist. He has made a fine reputation as a lawyer fighting for workers’ rights, and is well known for his 2012 Struck out: Why Employment Tribunals fail workers and what can be done (Pluto Press).
What does he say? He writes that, drawing on Marx, a useful approach to the problem of rights in the present situation

“… could be to disregard temporarily the search for further and better lists of rights in order to focus on their revolutionary kernel: i.e., the right to a just outcome (my emphasis, BB). Part of establishing a fair outcome depends on a system of

There is no disagreement between David Renton and me as concerns the need for expropriation.

But we differ as to what Marx actually wrote. Indeed, Marx and Engels wrote very little on law, and even less on what a future communist society might look like. David Renton asserts that after Marx’s acerbic critique of the rights contained in the French and American declarations of the late 18th century, essentially the same rights as are contained in the ECHR, in 1844 in his On the Jewish Question:

“Over the next forty years Marx and Engels were to sharpen this critique of rights and develop a richer sense of how an alternative society might work.”

In actual fact, Marx and Engels affirmed the opposite, in 1845 in The German Ideology. They wrote that:

“Empirically, communism is only possible as the act of the dominant peoples “all at once” and simultaneously, which presupposes the universal development of
productive forces and the world intercourse bound up with communism.”

And continued with one of my favourite passages from their works:

“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.” (their emphases)

Thus, they were and remained perfectly clear that communism could only come about once abundance (“the universal development of the productive forces”) had been established all over the world. They refrained from providing any blueprint for future society. Except that is for another famous passage in the same work:

“ For as soon as the distribution of labour comes into being, each man has a particular, exclusive sphere of activity, which is forced upon him and from which he cannot escape. He is a hunter, a fisherman, a herdsman, or a critical critic, and must remain so if he does not want to lose his means of livelihood; while in communist society, where nobody has one exclusive sphere of activity but each can become accomplished in any branch he wishes, society regulates the general production and thus makes it possible for me to do one thing today and another tomorrow, to hunt in the morning, fish in the afternoon, rear cattle in the evening, criticise after dinner, just as I have a mind, without ever becoming hunter, fisherman, herdsman or critic.”

Which is very far from being a serious vision of the future, but is instead part of a comment on the present.

Furthermore, their Manifesto of the Communist Party of 1848 says nothing about a future communist society. Instead, the final section, Part IV, begins:

“The Communists fight for the attainment of the immediate aims, for the enforcement of the momentary interests of the working class; but in the movement of the present, they also represent and take care of the future of that movement.”

Communists, therefore, struggle on the side of the working class in the present day. And Marx and Engels go on to specify their attitude to existing parties in the various European countries. The class struggle has not gone away, far from it, and now intensifies all over the world. In passing, it is of great interest that two recent American block-buster films, Hunger Games and Elysium, both depict bitter and bloody class struggles in the future.

To return to On the Jewish Question, Marx condemned the bourgeois rights of the
Declarations, asserting 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.” That is, the man who wants to be left alone by the state, principally to make money.

David Renton then, quite properly, turns his attention to Marx’s 1875, thirty years later, Critique of the Gotha Programme – that is, the programme drafted by Lasalle for the new mass workers’ party, the German Social Democratic Party, an explicitly socialist document.

I disagree with David Renton’s interpretation of Marx’s critique.

The provision which attracted Marx’s merciless criticism was

“3. The emancipation of labour demands the promotion of the instruments of labour to the common property of society and the co-operative regulation of the total labour, with a fair distribution of the proceeds of labour.”
For Marx, this necessarily implies “equal right”, that is, bourgeois right. Under capitalism, the worker receives remuneration according to the amount or quality of work done. But, Marx insists, human beings are not equal at all, starting with their “… unequal individual endowment, and thus productive capacity”, that is, physical and mental endowment. One worker is brighter than another, stronger than another.

And, Marx continues:

“… 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.”

It is not, as David Renton suggests, that for Marx “..all universal rights… result in unequal
treatment”. The point is that human beings are unequally endowed, and have unequal personal lives. As Marx makes clear, his famous slogan “From each according to his ability, to each according to his need”, can only be realised “… after the productive forces have also increased” and “all the springs of co-operative wealth flow more abundantly.” We now know, as Marx and Engels did not, that there are severe ecological barriers to achieving abundance.

To sum up, Marx and Engels insisted that communists fight in the present, we cannot predict the future, and of course there is no certainty that the working class will win.
Marx and Engels both drew deeply from the radical materialist Baruch Spinoza (1632-1677), for whom all transcendence, anthropocentrism, and teleology were anathema. In 1841 Marx made extensive transcripts, in Latin, from Spinoza, pages 233 to 276 in Volume IV/1 (1976) of the Marx/Engels Gesamtausgabe, the MEGA which continues in production. And in the Introduction to his Dialectics of Nature, written in 1883, Engels wrote:

“It is an eternal cycle in which matter moves… a cycle in which every finite mode of existence of matter… is equally transient, and wherein nothing is eternal but eternally changing, eternally moving matter and the laws according to which it moves and changes. But however often, and however relentlessly, this cycle is completed in time and space… we have the certainty that matter remains eternally the same in all its transformations, that none of its attributes can ever be lost, and therefore, also, that with the same iron necessity that it will exterminate on the earth its highest creation, the thinking mind, it must somewhere else and at another time again produce it.”

This is Spinoza. One can be quite sure that if the earthly paradise were ever achieved, that would be the moment at which a passing asteroid would eliminate the planet and all its inhabitants, workers and capitalists alike. Something like Lars von Trier’s film Melancholia.

To return to the question of rights. I think that a strong case can be made for the proposition that each generation of “human rights” has its origins in revolutionary struggle, and that is why they remain, unlike black-letter law, so powerful and so scandalous. The first generation of civil and political rights, now enshrined in the ECHR, had their origin in the French and American Revolutions, abhorred by Edmund Burke, the father of English conservatism. We should take our stand with Burke’s enemy, Tom Paine, whose Rights of Man and Common Sense still read as a full frontal attack on contemporary English political corruption. The second generation, social and economic rights, were first treated as legal rights in the International Labour Organisation which was created in 1919 as a direct response to the October Revolution of 1917. Haldane’s John Hendy and Keith Ewing have shown how the UK shamelessly violates its ILO obligations. And the key right of the third generation, the right of peoples to self-determination, was first promoted by Marx, Engels and Lenin, and came to fruition in the anti-colonial struggles after WW II. Self-determination struggles continue for the Irish, Basques, Kurds, Palestinians, Tamils ( see SL 53, The right to self- determination)… That, for me, is the “revolutionary kernel” of rights.

Bill Bowring teaches law at Birkbeck College, is a barrister practising at the European Court of Human Rights, and is International Secretary of the Haldane Society.


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