Developing a Progressive Theory of Rights: A Preview of Liberalism and Liberal Rights

“Finally, even a thinker as cynical and sharp as Michel Foucault invoked the language of rights to discuss the ‘right to intervene’ to liberate suffering individuals from the imposition of tyrannical sovereignty.”

Introduction

“It is puzzling enough that a people which is just beginning to liberate itself, to tear down all the barriers between its various sections, and to establish a political community, that such a people solemnly proclaims (Declaration of 1791) the rights of egoistic man separated from his fellow men and from the community, and that indeed it repeats this proclamation at a moment when only the most heroic devotion can save the nation, and is therefore imperatively called for, at a moment when the sacrifice of all the interest of civil society must be the order of the day, and egoism must be punished as a crime. (Declaration of the Rights of Man, etc., of 1793) This fact becomes still more puzzling when we see that the political emancipators go so far as to reduce citizenship, and the political community, to a mere means for maintaining these so-called rights of man, that, therefore, the citoyen is declared to be the servant of egotistic homme, that the sphere in which man acts as a communal being is degraded to a level below the sphere in which he acts as a partial being, and that, finally, it is not man as citoyen, but man as private individual [bourgeois] who is considered to be the essential and true man.”

Karl Marx, “On the Jewish Question” 1843

Karl Marx, who studied law in early life before turning to philosophy and economics, was not a fan of liberal rights. In his seminal essay “On the Jewish Question” he characterized them as the “so-called” rights of man, which framed people as egoistic, private individuals rather than active citizens of a community. The ideological effect of this framing was to depoliticize social life, while also insulating property relations from substantial critique since they were venerated as flowing from fundamental rights. Since then, progressives have long agreed that Marx was probably correct in his denunciation of liberal rights. Generations of Marxist theorists delighted in taking pot shots at rights discourse, with Althusser being especially brutal in discussing the liberal individual’s embeddedness in the “heaven of the state,” where his rights would be respected and would take the place of politics. Post-colonial theorists denigrated rights as a “Western construct with limited applicability”—or even as a new form of imperialist imposition. Unsurprisingly, critical legal theorists have shared many of these skepticisms, taking liberal rights theory to task for its alleged apoliticism, ideological suppositions, defense of the status quo, and a host of other sins. Pierre Schlag discusses the “empty circles of liberal justification” and its flailing efforts to ground rights discourse foundationally. Duncan Kennedy wrote artfully on the way property rights are used to insulate powerful institutions and figures from critique. Perhaps the most sustained and balanced criticism was offered by Costas Douzinas in his classic book The End of Human Rights. Summarizing many of the same positions in a 2009 article for The Guardian, Douzinas opines:

“The ideological power of human rights lies precisely in their rhetorical ambiguity. Despite being part of the law, human rights are the latest expression of the urge to resist domination and oppression. They are part of a long and honourable tradition, which started with Antigone’s defiance of unjust law and surfaces in the struggles of the despised, enslaved and exploited. Those who defend Jami redeem the value of human rights, while those who use human rights rhetoric to defend the pension rights of Fred Goodwin contribute to the banalisation and eventual atrophy of rights. This atrophy paradoxically follows the triumph of rights, which have mutated, expanded and been turned into a vernacular touching every aspect of social life. Rights have become ubiquitous at the cost of their specificity and significance. Rights recognition has become the main target of politics, with group claims and ideological positions, sectional interests and global campaigns routinely expressed in the language of rights for individuals. But when rights become a trump card that defeat state policies and collective priorities, allegedly to support the liberty of the individual, society starts breaking up into a collection of atoms indifferent to the common good. This way politics is depoliticised. Both liberty and security suffer.”