Human rights engage questions of value, values and valuation. However, to directly inquire about the ‘value of rights’ has long been seen as sacrilegious by many in the human rights community who have tended to treat rights as absolute trumps over politics. Following the (still) dominant Western liberal script, rights are here seen to articulate, in the form of individual entitlements vis-à-vis public authority, the fundamental precepts of subjective personal autonomy, which, in turn, is deemed to be constitutive of the human condition and human dignity. As such, rights represent not a set of values relative to other values, but the absolute value of human beings who are, in the Kantian formula, ‘ends unto themselves’. Yet, this (liberal) conception, and the human rights law-faring practice it underwrites, has of late come under severe attack from various sides.
On one hand, the crisis of ‘world public order’ that has been rocking the liberal paradigm for at least a decade has eroded the established legitimation narratives, such that the gap between what people perceive as reality and its ‘official’ image has become unbridgeable. Rising inequality, the precarization of labour and the immiseration of growing sections of society, especially – but increasingly not only – in the global South, have led to massive disenchantment amongst those being (or feeling) left behind.
The consequent structural instability and social fragmentation has led to a turn to the populist right and its irredentist narratives, which has not only unburied the most rabid forms of neo-nationalist, xenophobic, racist, anti-LGBTQ+, anti-poor (and, indeed, anti-everything associated with the left or the liberal center) discourse, but it has also and often with particular verve scorned human rights and their defenders. The latter are seen as protecting and empowering the ‘wrong humans’, notably those who purport to quarrel with ‘the system’ and its values, who are deemed therefore to have lost their (real or potential) value and who are, consequently, subject to being legally or physically eliminated.
On the other hand, and in curious parallel to the right populist onslaught on human rights, a new set of academic critiques from the intellectual right, center and left has emerged: firstly, a right critique advanced, inter alia, by Eric Posner and others working under the premises of ‘law and economics’, contends that rights are impediments to the efficient allocation of scarce resources through market mechanisms and, as such, distort the formation of ‘just market value’. Secondly, an enormously influential centrist critique, led by revisionist human rights historians such as Samuel Moyn, holds that the politics surrounding the historical positivizing of (internatiomal) human rights reveals their fundamentally epiphenomenal character as ideological constructs legitimating and naturalizing (great) power politics during the post-War and Cold War periods.
As such human rights are not only politically largely irrelevant, but they also actively betray the fundamental value of equality as they allegedly neither articulate an egalitarian utopia nor are capable of serving as instruments against inequality. And thirdly, a set of new left critiques that frame rights as essentially ideological configurations that distort our understanding of social reality, or, more precisely, of the structural causes behind the social ills which human rights purport to address only individually and piecemeal. As such they help maintain these causes intact or even aid their proliferation and they obscure and obstruct more effective ways of addressing them. Insofar as human rights substitute genuinely political action – which is here often understood as involving the struggle over (material or immaterial) distributional schemes – with a (legally) formalized and individualized approach that merely targets the symptoms produced by these underlying causes, human rights effectively de-politicize and thereby naturalize the latter, thus contributing to their continued reproduction.
Rights as (mere) handmaidens of capitalist value production….
Unsurprisingly, this left critique of rights (and, perhaps more surprisingly, also aspects of Moyn’s centrist take) tends to align with Marx’s account of the function of liberal rights as both a necessary legal infrastructure for the ‘free’ market exchange of commodified labour – and, hence, as an element of the system underlying the constitution and extraction of surplus value – as well as an ideological configuration that obscures the inequality of the (rights-based) exchange relationship through the semblance of equal rights.
From this vantage point, rights are unavoidably implicated both in capitalist value production and in the fragmentation and atomization of society upon which capitalist exploitation is premised. While Marx’s original critique was premised on classical liberal ‘negative’ civil and political rights, later Marxists have extended the critique to positive ‘welfare’ social and economic rights – alongside (Keynesian) welfare economics – arguing that rights-based welfare entitlements either serve, once more as mere cosmetics to embellish the ugly reality of exploitation, or as instruments to fine-tune the operation of the capitalist production cycle by both smoothing the reproduction (and productivity) of labour and by shoring up market resilience in case of inevitable hiccups.
Overall, this analysis of the political economy of rights cannot but be seen as plausible, not least during the current conjuncture and even from outside of the premises of classical Marxism. The core concern of many left critics is, thus, that expansive rights (activism), such as in relation to multinational corporations, is simply the wrong agenda for a truly transformative politics, yet still occupies (too much of) that agenda in practice. Two questions, however, must be allowed from the perspective of the human rights community: is this really all there is to rights in/under capitalism? And are there sufficiently strong and evident alternatives so as to obviate rights (activism) all together?
…or (also) as (transformative) irritants…
In relation to the first question, one potential problem with the Marx-based critique –as, incidentally, also with Moyn’s historical revisionism – is its focus on the genesis of rights and the derivation of their function therefrom. This would seem to make the Marxist account of rights prone to deductive over-interpretation in the sense that the factual workings and effects of rights ‘out there’ are exclusively deduced from the premises about their function in the political economy of capitalism. While this conforms with the historical materialist method, it risks an undercomplex account of the ‘real’ life of rights (under capitalism). For rights activism, not least in and through courts, is not static but highly time-dynamic, involving elements – people, institutions, legal frameworks – which, over time, generate effects that generate further effects and so on. In the language of systems theory, which also owes some debts to Marx, ‘rights-in-practice’, produce systemic recursivity, self-reflexivity and, more often than not, non-linear consequences (see, inter alia, Gunther Teubner, ‘Counter-Rights: On the Trans-Subjective Potential of Subjective Rights‘). The state is here a test tube in which different and decentrally-generated impulses are mixed together to produce uncertain and often unstable outcomes. While many of these impulses are today generated by corporate actors seeking value maximization – much in the way understood already by Marx – those transmitted through (human) rights come from the smallest units of agency, notably people, who nearly always resort to (legal) rights as a last resort to try to resist the concrete instantiations of an ever-advancing commodification process.
To be sure, this is not a romanticized story of ‘little people’ (eg, Galanter’s ‘have-nots’) going against the ‘big bad state’ or ‘big bad companies’ (the ‘haves’) through human rights upheld by heroic courts, because the results of rights-driven judicialization are neither uniform nor uniformly in favour of the ‘have-nots’.Fundamentally, their repercussions over time grow less transparent as complexity augments. Yet that is the point: not that ‘rights-in-practice’ are (also) enactments of liberal ideology, but that they are capable of irritating ‘the system’ despite and beyond their ideological (or ‘native’ systemic) functions. Indeed, a systems theoretical reading of capitalism and (neo)liberalism, as it is most clearly pursued in Gunther Teubner’s contribution to this symposium, would recognize such fundamental cross-systemic irritability as an inherent property of the system’s logic. Concretely, rights irritate Marx’s ‘law of value’ in capitalism in two ways: they produce (legal) uncertainty against capital’s requirement of legal certainty, and they can, at least momentarily, impact on the amount of extractable surplus value in particular sectors, forcing capital to adapt in unplanned ways. This dual irritation, generated from within ‘the system’ itself and regardless of its concrete consequences at any one point of time, produces subversive dysfunctionalities. Marx himself admitted the self-subversive potential of capitalism and it has been one of the key enterprises of subsequent Marxist thought to try to spell out the many different ways in which this may happen, whether through self-conscious class struggle, through the complex interaction of emergent properties (such as the long term and indirect consequences of rights-based strategic litigation), or though generalized systemic crisis, or all of these. However, both Marxism and systems theory as exposed here by Teubner retain a degree of ambivalence about how transformative a role they respectively allocate to the non-linearity (aka indeterminacy) of these processes. The contention here is that ‘rights-in-practice’ as at once system stabilizing and inherently transgressive are a part of that story.
…and claims for equal dignity
Which leads to the second question: can rights (activism) really be dispensed as long as rights remain a ‘fact of the world’ still turned to by (nearly) everyone everywhere, from street protesters to litigants, from the families of black youths killed by police in Rio de Janeiro’s favelas to the plenipotentiaries of (some) states and international organizations, in order to protest injustice and demand minimally dignified living conditions? Can all those looking at rights as a last resort be summarily disowned for acting under false consciousness? Or can rights activism really not result in more than depoliticizing fragmentation? Is not the vision of social relations that rights convey prima facie similar to what Marx imagined to be a communist society. For, in substance, they express a shared space, an (arguably) concrete utopia in which all collectively and conjointly enjoy equal dignity. Individual rights claims are, from this vantage point, claims of equality, that is, claims to be treated as an equal part of this (concretely utopian) human society when that equality is felt to be denied. As this denial is the base condition under capitalism rights claims are always also solidarity claims that are not confined to the individual claimant but always imply a hypothetical erga omnes. Rights claims are also always political claims that articulate a counterfactual and potentially subversive insistence on human dignity in the face of its systemic denial. While rights cannot possibly be the only ways of promoting change, neither are they just ‘bad politics’, not least as they remain one of the most deeply-embedded concrete forms for (re-)claiming the ‘real’ value of humans.
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All the best, Max Steinbeis