Taking Rights Too Seriously?
Reconsidering the role of rights in progressive political movements
“Weaponised by libertarians and conservatives, liberals, and leftists alike, rights now appear so ubiquitous in contemporary political discourse that we rarely stop to think about some of the more problematic roots, aspects, and implications of this concept”
Taking Rights Seriously
In 1978, the liberal political philosopher Ronald Dworkin published his now acclaimed book, Taking Rights Seriously, which is a collection of essays authored over the previous decade. Writing during the time of the civil rights and anti-war movements, Dworkin attempted to develop a unique theory of law and politics that addressed flaws he perceived in both utilitarianism and legal positivism which dominated philosophical and political discourse at the time. He contends that the law is formed through processes of judicial deliberation that adhere to general underlying principles which are grounded in the values of the political community, and he places the concept of rights at the centre of this theory. In Dworkin’s eyes, the most fundamental of these is the “right to equal concern and respect” (TRS 272), which protects individuals and minority groups from potential discrimination and oppression whilst still enabling governments to facilitate democratic decision-making, enact progressive reforms, and promote the public good.
As the title suggests, Dworkin’s goal for Taking Rights Seriously was to position rights at the forefront of a reinvigorated liberal political discourse, and over fifty years later it seems as though he succeeded. Today it is almost impossible to imagine a discussion about law, politics, or philosophy that does not involve the concept of rights in some shape or form. Interestingly, people are utilising the language of rights outside of the familiar realm of liberty and the well-established rights to vote, bodily autonomy, and freedom of speech or religion. Recent popular movements have invoked the language of rights to address significant issues of distributive justice and call for progressive economic and social reforms. Americans invoke a “right to healthcare” in the fight for universal public medical care, labour activists call for a “right to a living wage” amidst the rising cost of living, and a familiar slogan for Australians during the current housing crisis is “housing is a human right”.
Weaponised by libertarians and conservatives, liberals, and leftists alike, rights now appear so ubiquitous in contemporary political discourse that we rarely stop to think about some of the more problematic roots, aspects, and implications of this concept. In the rest of this article, I will argue that utilising the logic and rhetoric of rights may not be the most effective strategy for progressive movements struggling for socio-political and economic change, and that taking rights too seriously may actually hinder our society from progressing past many problems of distributive justice that it currently faces.
Rights and Community
“Activists and politicians who invoke rights to advocate for housing or healthcare are missing the broader social forest for the individual trees”
The first argument against taking rights too seriously comes from a group of political philosophers known as the communitarians. In the wake of a revitalisation of liberal thought led by the likes of John Rawls, David Gauthier, and the aforementioned Dworkin, some thinkers took issue with the deeply individualistic foundations of the politics of rights. Liberalism seeks to provide a framework in which individuals are free to pursue whatever type of life they wish to lead, so long as that life is consistent and compatible with a similar freedom for all other individuals in a political community. Most liberal theorists claim that rights provide this framework: they protect individuals from unjustified interference of the state and others whilst ensuring essential levels of liberty, fairness, and equality for all. However, proponents of communitarianism argue we cannot correctly conceive of individuals outside of their social, historical, and cultural circumstances. They contend that in order to refer to an individual we must first reference the communal relationships and contexts that constitute their identity and nature.
The philosopher Michael Sandel critiques liberalism from this communitarian perspective, taking aim at the individualism that underpins the theory of liberal rights. For individual rights to be the foundation of a liberal political system that is conducive to all reasonable conceptions of a good life, they can only be possessed by an “unencumbered self”. The unencumbered self is a picture of the individual as they exist prior to and separate from all connections, purposes, traits, and goals; it is an abstract subject that stands beyond any particular characteristics or desires that a person may have. Granting individual rights to this unencumbered self allows us to create a framework for justice that is unconstrained and universal, and therefore applicable and acceptable to all reasonable people regardless of their distinctive wants, roles, or aims.
However, Sandel highlights that creating the unencumbered self by sequestering any concrete attributes or connections an individual may have also removes any criteria for claims about distributive justice. If any particular feature I have is not really an essential part of me as a subject, then there is no reason for me to deserve anything that I receive. Likewise, if all of my relationships have nothing to do with defining me as a subject, then I can have no obligation to other individuals beyond non-interference. Distributive justice is based on principles of redistribution and sharing, and therefore presupposes moral ties between the people whose material and social connections form a community. Sandel argues that in focusing on the individualised subject, a politics founded on rights ignores the constitutive relationships that shape a person’s identity and bind them to their fellow participants in life.
We are all entangled in a web of mutual identities, relationships, involvements, and obligations, from which it is impossible to separate a purely individual conception of a person. As a subject, my understanding of myself and how I exist in the world is created and developed by the way I interact with the people around me, just as my actions and relationships continuously shape the identities of others I engage with. This intersubjectivity cannot be captured by the inherently atomistic concept of rights, meaning activists and politicians who invoke rights to advocate for housing or healthcare are missing the broader social forest for the individual trees. Providing and securing these vital goods and services has enormous impacts not only directly on the individual receiving them, but also on others to whom they are inextricably related and on the broader community that helps form their values, beliefs, and sense of self. Utilising a political language of rights thus limits the claims we can make about justice, directs our collective imagination away from fruitful communal perspectives and solutions, and denies us a more expansive and fulfilling understanding of ourselves and our society.
Rights and Membership
“If a person is not a member of a community then they are not entitled to the benefits of security, wealth, fairness, or connection that come from those rights allocated among communal members”
The second criticism of the notion of rights also employs the idea of community, but this time in relation to how rights are granted and enforced. Michael Walzer, another communitarian philosopher, agrees with Sandel that the concept of distributive justice presupposes a community of interconnected people that are committed to dividing and sharing resources with each other. However, rather than considering how collective relationships constitute the subjects within a community, Walzer focuses on the boundaries of the community itself and how they affect individuals on either side of the communal frontier. He argues that because distribution must always occur in a community, then it is the distribution of membership, rather than resources or rights, that must be the primary concern of justice. Even if rights are able to create a just framework that protects individuals and fairly allocates resources to meet all needs and deserts, if a person is not a member of a community then they are not entitled to the benefits of security, wealth, fairness, or connection that come from those rights allocated among communal members. Non-members normally do not even come into consideration when questions of rights are concerned.
Walzer says that the typical example of non-membership is a stateless person, who lives in a condition of infinite danger because they are always at risk of expulsion. One need only look at the treatment of the 35 million refugees around the world today to confirm that those without membership to a community are not afforded the same rights and resources as others. But it is not only stateless persons who are affected by the question of membership. Even if a person is nominally a member of a community through nationality and citizenship, exclusion from certain relationships can lead to an erosion of that membership in practical issues of distribution.
For example, as the cost of rent and housing has risen dramatically in many nations, people have become locked out of real estate and rental markets and no longer have access to housing or shelter. Homelessness obviously raises questions about justice in relation to the distribution of housing, but a lack of access to this vital resource has further ramifications for the distribution of membership as well. The vast majority of the populace do not really see homeless people as fellow members of their community with whom they could or would form relationships or share resources. Regardless of their official citizenship status, contemporary society generally ignores, abandons, and excludes the homeless when making decisions for its members about justice and distribution. This is especially the case in many liberal market economies, where decades of neoliberal policies have decimated public housing and cut off anyone unable to participate in the market from the distribution of shelter, leaving them in a very dangerous position of precarity and exclusion. Therefore, invoking a language of rights may not be able to reverse this trend, because homeless people no longer have a guaranteed place in the collective whole and thus are not considered by the community when it is allocating a “right to housing”.
Universal Human Rights
“I think she [Hannah Arendt] would have been better off not taking the concept of rights so seriously in the first place”
To circumvent the problem of membership, many have turned to the concept of “human rights” that are bestowed upon all people simply by virtue of them being a part of the human race. This notion is most famously outlined in the United Nations Universal Declaration of Human Rights, which was drafted by representatives from across the globe and proclaimed at a General Assembly resolution in 1948. The document sets out 30 articles proclaiming various inalienable rights that every human being is endowed with, including rights to health, work, education, and property. Over the decades many activist groups and politicians have utilised the Declaration in support of progressive change (think of the Greens current slogans “Housing is a human right” and “Trans rights are human rights”), and it has inspired similar affirmations of broader human rights such as those laid down in the United Nations Covenant on Economic, Social, and Cultural Rights.
The initial appeal of making rights universal to all humans is obvious, as it creates one global community in which every single person on earth holds membership. However, political theorist Hannah Arendt argues that embodied in this notion of universal human rights is a fundamental contradiction: states are required to protect the inalienable rights of all people, despite being grounded on the inherently exclusionary principles of national and territorial sovereignty. The foundation of the nation-state is the right of a political community to self-determination and sovereignty, which extends beyond the sovereignty of any particular individual and does not yield to any higher power or universal law. Arendt’s own experience of statelessness when fleeing Nazi Germany informs her critique that without provision from a politico-judicial entity both civil and human rights are ultimately always alienable, as the state can become an instrument of oppression and totalitarianism rather than the guarantor of rights. As a solution she proposes that the “right to have rights”, the right to be a member of a politico-linguistic community, is a necessary precondition for all other human rights, though I am unconvinced by this suggestion. By clinging on to the idea of rights she lets the problems of membership and sovereignty in through the back door, and I think she would have been better off not taking the concept of rights so seriously in the first place.
Rights and History
“Many contemporary movements paradoxically continue to reproduce and strengthen the structures that they are trying to fight against, and may in fact benefit from abandoning this nominal object altogether”
A final reason why I am sceptical of modern progressive advocates of change utilising the rhetoric and politics of rights, is that doing so risks obscuring and ignoring the conceptual history of rights that conflicts with their stated goals. Since the language of rights has become so ubiquitous today, it is sometimes easy to forget that rights are not actually a physical or material entity, even if we all treat them as such. French philosopher Michel Foucault spent his life analysing these types of “nominal objects” like criminality, madness, and sexuality, which are political categories and concepts that are not tangible or natural, but rather are constructed and shaped by specialised bodies of language and knowledge. In examining how individuals interact with each other and govern themselves in relation to these nominal objects, he shows that these socially constructed political entities mediate human behaviour, relationships, and society. This form of analysis also highlights that this method of governing behaviour, which he terms “governmentality”, is always imbued with specific aspirations and techniques to control or exclude certain ideas or “undesirable” subsections of the population.
For example, Foucault traces the history of sexuality back to the time of ancient Greece, where the gender someone was attracted to was relatively unimportant in defining identity; sexuality said as much about a person as what food they liked to eat. However, as Christianity and the practice of confessional spread, people began to see their sexual desires as a core part of their soul and identity. Eventually, sexuality became an object of political concern that came to govern how people conceived of themselves and interacted with others, which led to the external and internalised exclusion and oppression of queer individuals. This Foucauldian analysis of nominal objects and governmentality is also highly illuminating when applied to the concept of rights. In these terms, rights are a socio-political concept that has emerged and developed over centuries from a continuously evolving body of discourse encompassing various political, legal, and philosophical disciplines and movements. Rights are a nominal object that shapes our understanding of what a proper subject ought to be and how individuals should view their relationships and interactions with each other and the state in a specifically western liberal way. As a technique of governmentality, rights produce a politics of liberalism that excludes many of the conceptions of the individual, community, economy, and society which progressive activists’ champion. Foucault’s method therefore shows that, by entering into and utilising the discourse of rights, many contemporary movements paradoxically continue to reproduce and strengthen the structures that they are trying to fight against, and may in fact benefit from abandoning this nominal object altogether.
The intellectual historian Jessica Whyte examines this process of a rights-based governmentality in action by linking the discourse of human rights to the rise of neoliberalism. She highlights how neoliberals like Friedrich Hayek, Milton Friedman, and the Mont Pelerin Society identified the concept of human rights as the key to creating a moral framework for a competitive market society. In opposition to an ascendant Keynesianism and strengthening socialist and decolonial movements, the neoliberals sought to remake the socio-political and economic organisation of society in such a way as to exclude and eliminate all possible futures except for the spontaneous order generated by an unrestricted market. They framed human rights as the fair and just basis of peaceful and civilised economic exchange, juxtaposing these morals of the market with the supposedly violent and savage amorality of politics in order to delegitimise any calls for redistribution or structural reform. Many prominent humanitarian organisations like Amnesty International, Human Rights Watch, and Liberté sans Frontière embraced this idea of human rights as the central issue of justice, and in doing so also adopted the neoliberal framing of politics as the only sphere of illegitimate oppression. As a result, these organisations tended to focus on the abuses of individualised political rights whilst ignoring the more broadly damaging neoliberal economic reforms, as was the case when Amnesty criticized the Pinochet military dictatorship for political imprisonments, yet overlooked its wholesale destruction of protective economic institutions and their replacement with a brutally unequal and marginalising market system. Whyte shows how human rights empowered and legitimated neoliberalism by highlighting their historical connection and continuing failure to address the most pressing societal challenges, and calls for progressive movements to reconsider invoking rights in the struggle against such a neoliberal market society.
Beyond Rights
I have hopefully demonstrated a need for progressive movements to move beyond a language and politics of rights, as taking them too seriously can present significant obstacles in the struggle for socio-political and economic reform. One example of such a politics beyond rights is the Capabilities Approach developed by Amartya Sen and Martha Nussbaum, which presents a central list of freedoms and capacities that all humans require to live a dignified life. With the concrete and situated notion of dignity as its foundation, the approach places great emphasis on the ability to form relationships, affiliate with other beings, and participate in community and thus transcends the abstract and individualised perspective of rights. Another fruitful perspective could be a political-economics founded on the concept of community, informed by an emerging theoretical and empirical literature. Reorienting political discussion towards the communal relationships that enable us to share resources, experiences, identities, and values will highlight the inherent intersubjective reality of society. It would foster a new level of social awareness beyond governing objects by illuminating the unique and interrelated social functions we fulfil and the interconnected nature of each human individual. This communal perspective would place obligation at the heart of politics, emphasising the responsibility that each person must take for their actions in relation to all those who are affected by them, not just those perceived to have membership. Through such a politics of community progressive movements can overcome the limitations inherent to the discourse of rights and advocate for necessary change based on more expansive and meaningful conceptions of identity, justice, and freedom.
This piece was written by UQ PPE Alumni, it is the first in what will hopefully be many pieces by our esteemed and talented graduates of PPE.
Thank you to Clare Johns and Devika Moss for editing this piece and helping to showcase the voices of our amazing alumni.
