International ConferenceHuman Rights - Describing a Process of

Cultural TransformationLuxemburg, 21-23 May 2015

Bill Bowring

Towards A Materialist Theory of Human Rights: Against 'Revisionism'

and the ‘Religious Turn’   

Where I am coming from

•I studied Philosophy (special subject Kant) at University, and was strongly attracted to Marx’s method of critique (Capital is a Critique of Political Economy) from my teens.•I became a barrister (advocate) and practised full-time for fifteen years: criminal law, squatting and housing law, family law, central-local government conflict, civil actions against the police – all, in retrospect, “human rights” in some sense•I was and am a political activist, prosecuted by Margaret Thatcher in the 1980s•But I had no interest in international law or “human rights” until I took part in a mission to Israel and Palestine in 1987. Became an academic in 1990, started teaching human rights law in 1992

Where I am coming from

•From 1992 to 2004 I took many cases on behalf of Kurds against Turkey, and from 2000 many cases on behalf of Chechens against Russia, at the European Court of Human Rights•Now cases against Armenia, Latvia, Russia•I have recently been invited to Uzkekistan, Kyrgyzstan, Ukraine, Turkey as well as teaching in France, Germany and Netherlands•I have been deported from Russia in 2005 and 2007 – first time took legal proceedings in a Russian court, the second time I was saved by the regional human Rights Ombudsman

Why should we worry about human rights foundation, origins or theory?

•What is the legitimacy of this practice – what word is it precisely that I am spreading or seeking to vindicate?•Professor Ivor Crewe, former Essex Vice-Chancellor, compared contemporary human rights activists to 19th century Christian missionaries – spreading the gospel•See for example Francesca Klug

• “Values for a Godless Age: The Story of the United Kingdom's New Bill of Rights” (2000)

• “A Magna Carta for All Humanity: Homing in on Human Rights: Time for a New Enlightenment?” (2015)

•That is not my approach in my practice as a human rights advocate, and as a consultant and trainer in the former USSR, Israel/Palestine•My research and writing are my attempts to explain to myself the significance (if any) of what I am doing

Religion

•In May 2014 Douzinas organised a conference at Birkbeck, ‘The Actuality of the Theologico-Political’, with speakers including John Milbank and Rowan Williams. •From the preview: ‘Religion can help to revive the political, to re-politicize politics: it can help the construction of new political subjects who break out of the ethico-legal entanglement and ground a new collective space.’ •Sam Moyn in “Last Utopia” - p.213

• “As a number of its partisans in the 1970s were well aware, human rights could break through in that era because the ideological climate was ripe for claims to make a difference, not through political vision but by transcending politics. Morality, global in its potential scope, could become the aspiration of human kind.”

Samuel Moyn

•‘The Last Utopia: Human Rights in History’ (Harvard, 2010), and the recent ‘Human Rights and the Uses of History’ (Verso, 2014).

•p.1 “When people hear the phrase “human rights”, they think of the highest moral precepts and political ideals… they have in mind a familiar set of indispensable liberal freedoms. And sometimes more expansive principles of social protection…. 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.”•p.2 “The drama of human rights, then, is that they emerged in the 1970s seemingly from nowhere.”•p.155 “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.”

Sam Moyn in two new collections

•Costas Douzinas and Conor Gearty have recently published two edited collections on human rights with Cambridge University Press

• Gearty and Douzinas The Cambridge Companion to Human Rights Law (2012): Moyn - “Do human rights treaties make enough of a difference?” p.329

• Douzinas and Gearty The Meanings of Rights: The Philosophy and Social Theory of Human Rights (2014): Moyn - “Plural cosmopolitanisms and the origins of human rights” p.193

•Moyn – “The Continuing Perplexities of Human Rights” (2013) – answering Cheah, Benhabib and Anghie•Moyn - “A powerless companion: human rights in the age of neo-liberalism” in Law and Contemporary Problems (2014) – answering Marxist international lawyer Prof Susan Marks

• See Susan Marks “Four human rights myths” in Kinley et al (eds) Human Rights: Old Problems, New Possibilities (Edward Elgar, 2013)• Myth of presumptive universality• Myth of deep roots• Myth of no politics• Myth of the dangerous dark

Human rights and law

•Human rights are rather different from domestic law, and do not have their origins in the international treaties post WW II•They do not have their origins in legislation•Human rights are not “the command of the sovereign” (Austin) and cannot be ascertained by a “rule of recognition” (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 (Dworkin)•I argue that human rights claims are always scandalous, and were a scandal and affront to the law from the very start •See a great collection: Jeremy Waldon Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (re-issued by Routledge, 2014)•'Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts.' - Jeremy Bentham

The French declaration of 1789

•Moyn Last Utopia…•p.25 “The overwhelmingly important point, however, is that the rights of the revolutionary era were very much embodied in the politics of the state, crystallizing in a scheme worlds away from the political meaning human rights would have later. In a sense, every declaration of rights at the time (and until recently) was implicitly what the French openly labeled theirs: a declaration of the rights of man and citizen. •p.26 “…it is far more fruitful to examine how human rights arose mainly because of the collapse of the model of revolutionary rights rather than through its continuation or revival.”•and•p.197 “Most leading figures were well aware of – and scandalised by – the anticolonialist “capture” of the UN’s human rights project, with its installation of self-determination as the first of all human rights.”•Moyn has apparently not noticed that the European Convention on Human Rights closely follows the French Declaration

The French declaration of 1789

•Sam Moyn rightly pointed out yesterday that the ECHR was drafted by British conservative lawyers – who were strongly against a Court able to render obligatory judgments•And since Burke lists of rights were anathema in Britain (Tom Paine contra)•Britain feared actions from the Empire. No right of individual petition until 1966

• Greece v UK (1956-9), allegations of torture by British forces in Cyprus;

• East African Asians Case (1973), UK discriminated against Asians from East Africa who held British passports, denied them entry;

• Ireland v UK (1977), violations by UK of Article 3 ECHR (torture, inhuman and degrading treatment) at the start of the armed conflict in Northern Ireland 1969-1997

•In many ways the Human Rights Act 1998, when it came into force in 2000, brought Britain into the 18th century

The French declaration of 1789

•Jonathan Israel Revolutionary Ideas: An Intellectual History of the French Revolution from The Rights of Man to Robespierre (2014) •Controversial – but a huge improvement on Simon Schama, who does not mention the Declaration•p.77 “Saturated in the revolutionary terminology of the democratic Enlightenment, [the authors] proclaimed the Rights of Man to be established by la philosophie, not anyone’s laws or charters, or any religion, and hence, “éternels, inaliénables, imprescriptibles”. Lawyers, businessmen and professionals, once again, played little or rather no part.”•p.77-78 “The revolutionary leadership proclaiming basic human rights did not derive the doctrine (as has been claimed) from the “natural right” theories of Grotius… Rather, late seventeenth- and early eighteenth-century natural right theories, indeed the whole corpus of natural law, was scorned by them because natural lawyers… understood natural law to derive from the divine will and divine Providence and thus pronounced monarchy, aristocracy, and slavery all “natural” components of society… In 1789, all the Assembly leaders of a philosophique disposition, that is, most of those who counted in this debate, eschewed traditional natural law theories.”

The French declaration of 1789 and Spinoza

•Israel p.85

•"Disciples of Montesquieu, Voltaire, and Hume uniformly rejected equality and human rights, as they rejected la philosophie moderne and the revolution. Men are only truly equal, insisted Möser, in a Christian sense, spiritually. Nowhere should Christians consider men equal in worldly status or civil rights… •A vigorous reply to Möser “Are there really Human Rights?” [came from] the Spinozist Carl von Knoblauch (1756-94). •“The great inequality of force [among men] and consequent insecurity among the weak this creates,” explained Knoblauch, reiterating a key Spinozist argument, “drives people to form a state whose force, resulting from the uniting of many individual capacities and interests, then becomes a purposely directed power,” providing security and stability for all and “protecting the weak against the usurpations of the strong.”

The French declaration of 1789

•Sophie Wahnich In Defence of the Terror: Liberty or Death in the French Revolution (2003 and 2012)

•p.25 “… the relationship between the event [the proclamation that ‘the patrie is in danger’ 19 June 1792] and the Declaration of Rights, a relationship committing the bodies of the revolutionary actors, ready to die in order to save the revolutionary project because this was identified with the Declaration of Rights of Man and of the Citizen.”•See her more recent collection Histoire d'un trésor perdu : Transmettre la Révolution française (2013)•This is not the history of the English Law of Property Act 1925, revolutionary though that was

Spinoza

• Baruch Spinoza (1632-1677), a Sephardic Jew of Portuguese ancestry, living in Amsterdam, and excommunicated from his synagogue for denying the afterlife

• Probably the most radical materialist and atheist – “Deus sive Natura” – when he speaks of God he means Nature – no transcendence – human beings are not good or evil – just human beings

• Writing at the same time as Thomas Hobbes (1588-1679), but he had a diametrically opposite theory of the state

• Jonathan Israel Radical Enlightenment (2002) – p.270 “… where Hobbes holds ‘in the well governing of opinions, consisteth the well governing of men’s actions, in order to their peace and concord’, Spinoza teaches that while the individual must submit to the sovereign regarding his actions, he is free in his thought, judgments, and in expressing his views, both verbally and in writing. All attempts, admonishes Spinoza, to curb expression of views, and censure books, not only curtails legitimate freedom, but endangers the State.”

Spinoza

• Andre Santos Campos Spinoza’s Revolutions in Natural Law (2012)

• p. 14 “Spinoza’s Nature is mostly an all-inclusive self-causal productivity expressed in an infinite variety of attributes and modes, that is, an essential power for its own existence – the law is a conceptual modality of this power: hence, Spinoza’s philosophy of law translates into the formula jus sive potentia (law, or power).

• In a passage transcribed in Latin by Karl Marx in 1841 Spinoza wrote: “By natural Law and natural order I merely mean the rules of the nature of each individual thing, according to which we conceive it as naturally determined to exist and act in a certain way”. (TTP, XVI, Fundamenta reipublicae)

Spinoza

• p.18 “Spinoza’s revolutions in natural law imply that his conception has nothing to do with the moral requirements of justice, but is rather a sort of project for individuals to become the most natural beings they can be.”

• p.84 Spinoza: “As far as good and evil are concerned, they also indicate nothing positive in things, considered in themselves, nor are they anything other than modes of thinking, or notions we form because we compare things to one another. (Ethics, 4 preface)

• p.99 “Individual natural rights are the individual’s actual causal power in accordance with the individual’s natural laws. One has a right to do something if one does it – it is as simple as that.”

My project• In my 2008 book (The Degradation of the International Legal Order: The

Rehabilitation of Law and the Possibility of Politics) and in some journal articles 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, in 1919• third generation rights of interdependence starting with the right of

peoples to self-determination, a corner-stone of national liberation for colonial domination

My project

• This clearly runs counter to Moyn’s central thesis• However, he correctly identifies the 1970s as the period in

which human rights instruments and mechanisms became increasingly institutionalised and bureaucratised

• And in which international NGOs – Amnesty International, Human Rights Watch, Human Rights First, Freedom House, FIDH – despite their lack of democratic accountability and origins in religion (AI) and US foreign policy (HRW, HRF, FH) – have achieved prominence and legitimacy

My project

• There is a growing literature of critique – for example Stephen Hopgood’s Keepers of the Flame: Understanding Amnesty International and The Endtimes of Human Rights (2013):

• “[AI] is not first and foremost a human rights organisation at all. It is much more like a Free Church whose main product, thus far, has been moral authority, not social change.”

• Eric Posner’s The Twilight of Human Rights Law (Inalienable Rights) (2014) mounts a similar critique

My project

• I will pay special attention to another, explicitly Christian, recent revisionist account - Hans Joas’s The Sacredness of the Person: A New Genealogy of Human Rights (2013)

• James Nickel’s Making Sense of Human Rights (2007), James Griffin’s On Human Rights (2008), and Charles Beitz’s The Idea of Human Rights (2011) all seek to provide secular foundations for grasping the human rights phenomena, but sharing common assumptions.

• Christopher McCrudden’s “Human Rights Histories” (2014) criticises Moyn, from the position that

• “We have seen that the ‘orthodox’ historical account attempts to explain the spread of human rights as based on reason and the power of rational ideas. That may well be overly simplistic, but if that does not explain the diffusion of human rights, what does?”

My project

• I will endeavour to give another explanation, starting from Spinoza – that is, rigorously materialist

• That will provide me with the ammunition to explore and counter both Kantian and Post-Modern accounts of rights

• At the end of the day the content of human rights is, on my account, the resonance in terms of human freedom and human emancipation of the great historical events I have referred to