The contextuality of rights

One argument of the critics of the liberal conception of universal rights is that its proponents believe in its timeless and context-independent validity, while in fact it is a contingent consequence of particular historical, political and cultural developments in the geopolitical space defined as “the West”. In this chapter I

analyze this claim and its position in the democratic theories studied here; and its possible implications for the political and moral arguments in favor of the universality of rights. The claim that the politics of rights is a contingent result of certain political and historical developments is obviously empirically true and undermines the conception of “natural rights” that humans automatically possess in the capacity of their mere humanity. I will argue that this, however, does not affect the validity of arguments for the moral and legal universalism contained in the politics of universal rights: the fact that such politics is neither “natural” nor necessary does not contradict its moral and political appeal.

The critics of the universality of rights who see the declarations of rights as milestones of a certain cultural development of particular societies and thus unfit for other societies and contexts (e.g. Mouffe 2005, 102-103; Chris Brown 1999, 103-123), see that cultural-historical development in communitarian, holistic terms as a harmonious and inevitable for those societies, ignoring the fact that even there rights and egalitarian values emerged through a multitude of political struggles, sometimes against the odds. The conception and politics of liberal rights has in many polities been introduced as a politics of resistance to curb the hierarchical and antidemocratic powers – aristocratic, theocratic, Fascist, Communist or other – that emerged from within the same cultural spaces. As Ignatieff points out, the Universal Declaration of Human Rights was drafted in the aftermath of WW II as a reaction not to “non-Western” societies, but to the barbarism of war and totalitarianism in Europe, in an attempt to prevent similar developments from occurring again (Ignatieff 2001, 63-67).

Insofar as some classical liberals have treated rights as “natural” and thus beyond moral and political disputes, they are indeed vulnerable to the anti-foundationalist critique pointing out the contingency and contextuality of rights. On the other hand, few proponents of moral and legal universalism, even among conventional liberal theorists, actually subscribe to such totally objectivist view of rights. Pointing out the contingency of the emergence of rights discourses constitutes a valid critique against rigid conceptions of rights as given and undebatable; but it does not undermine, and may clarify and strengthen, political arguments in favor of the universality of certain rights. In the discussions on whether or not a universalist conception of rights is a precondition of democratic legitimacy and egalitarian justice, the meaning of the concept of rights is often left unquestioned. By “rights”

conventional liberal writers usually mean a set of “rights and liberties” that most

liberal democratic states have established in their constitutions or that UDHR declares globally inalienable. In contrast, as indicated above, radical democratic, multicultural and feminist discourses, if using the rhetoric of rights at all, attempt to extend the range of enforced rights; relativize them through a politics of “special rights” for social groups; or question the whole rights discourse as either irrelevant or downright harmful for the interests of less privileged groups and persons. This wide range of positions indicates in itself that the meaning and extent of rights to be enforced in particular polities is debatable and by no means self-evident.

Acknowledging the contingency and contextuality of the concept of rights I will revisit its meanings in order to re-evaluate its use in democratic political discourses and highlight the conflicts, contradictions and dilemmas about rights that are unavoidable in modern democratic societies and render the enforcement, interpretation and implementation of rights inevitably debatable and thus impossible to settle beyond democratic deliberations. At the same time I will argue that recognizing the contingency of rights does not make the concept irrelevant for promoting egalitarian, inclusive politics. Nevertheless, the contingency of rights has implications for how the concept can be used in political and theoretical discussions.

The variability of the use of the concept of rights indicates that it has no singular, uncontested meaning. Even if the universality of certain political and civil rights is a widely accepted (that is, “hegemonic”) value in current liberal democratic theories and practices, the awareness of the contingency of the concept reminds its proponents of the relative historical newness and political fragility of their explicitly political commitment whose permanence cannot be taken for granted.

In spite of the relative consensus on certain universal rights in current liberal democracies, there are disagreements even about which rights are basic and absolutely inviolable, and which rights are to be enforced by states, local authorities or the international community against states. Discussing the meaning of the concept of rights I will ask what the justificatory power of the concept is based on;

what makes the concept politically vital and what it means for democracy. I revisit the argument about the discursive powers of the language of rights and law, accepting it as an empirical observation, but questioning its assumption that those powers have a negative effect on the subjects they form and produce. Finally I will argue that the recognition of the contingency of rights and the discursive powers they implicitly exercise is not incompatible with justifications of the commitment to some universal rights as a premise of all egalitarian and democratic politics,

assuming that rights are conceived of in non-metaphysical, openly normative and political terms.

2.1. Liberalism and progressivist rationalism

One of the critical arguments against rights-thinking and “liberalism” as such is that it is based on strong universalist, progressivist and rationalist narratives and thus loses its legitimacy once those narratives are deconstructed¹⁹. Once the timeless and absolute “truth” claims are questioned, the critics claim, the universalism of the liberal politics of rights is compromised beyond remedy and can no longer lend legitimacy to a political regime or favor its further democratization. “Liberalism” is seen as a project of political modernity, representative of the Enlightenment humanist ideals that have been compromised by decades of critique; thus its values have limited relevance for the problems and struggles of our “postmodern” times.

For example, Mouffe takes distance from “liberalism’s modernist values” in her call for a break with rationalism, individualism and universalism (Mouffe 1993, 7).

For her, nonetheless, “[this] does not imply the rejection of any idea of rationality, individuality or universality, but affirms that they are necessarily plural, discursively constructed and entangled with power relations” (Ibid.). Mouffe acknowledges that what she calls “democratic revolution” is a product of the Enlightenment; but she also argues that “the reformulation of the democratic project in terms of radical democracy requires giving up the abstract Enlightenment universalism of an undifferentiated human nature”, implying that liberal universalism, as defended by the proponents of conventional liberal as well as deliberative democratic theorists, still relies on such semi-metaphysical notions (Ibid. 13). Later, Mouffe presents her project of radical democracy more explicitly in opposition to “Enlightenment universalism and rationalism”, of which she sees both Rawlsians and Habermasians as representatives. She claims that liberals see the “postmodern” questioning of categories like “human nature”, “universal reason”, “rational autonomous subject”

and the faith in unconditional universal truth as threatening to liberal democracy as such, asserting that actually it is not (Mouffe 2000, 17).

19 Here, critics use the term “liberalism” broadly, meaning not just conventional liberal theory, but liberal democracy in general terms as politics based on the idea of universal rights, the rule of law and some institutions to channel democratic decision making. Thus I use it in quotation marks.

Brown argues in more unconditional terms that liberalism’s legitimacy is pined on “the story of emancipatory and egalitarian progress”, a story that in her view has been rendered incredible by its “constitutive others”: in her view, the

“perceived stratifications along lines of class, race, gender, and sexuality not only challenge egalitarian civil and political enfranchisement as the primary criteria of justice; they also expose the formal equality promised by liberalism as severely compromised by the character of a (white, bourgeois, male, heterosexual) hegemonic subject” (Brown 2001, 9).

Brown connects liberalism’s legitimacy problem circularly to the loss of credibility of the progressivist narrative: not only does the cracking faith in “progress”

compromise liberalism as a theory because it is seen as dependent on such faith; but the practical shortcomings of liberal democratic regimes prove that progress in terms of freedom and inequality not only has “not yet” been achieved, but is essentially unachievable. She argues:

“An understanding of liberal universalism as not simply containing a history of excluded others but having specific normative content – heterosexual and patriarchal families, capital, and ‘property in whiteness’ – erodes the credibility of its classic story of progressively widening its scope of freedom and equality, extending the goods of enfranchisement and abstract personhood to more and more of the world’s populations” (Ibid.).

This argument; while underestimating the extent to which “liberalism”, with its emphasis on individual and political rights and freedom of association and speech, has enabled the disprivileged groups to publicly question, challenge and change some of its allegedly immutable “normative contents”, especially in comparison to illiberal regimes where any such questioning is automatically forcefully silenced;

binds moral and legal universalism to a determinist narrative of “progress” in the way that the non-determinist recognition of the contingent, particular and imperfect characteristics of liberal universalism is bound to disqualify it also as a moral norm and political project.

Along with the “modern” narratives, Brown questions the “individual” as not only a “masculinist” concept, as seen above, but also as a modernist fiction; thus the political progressiveness of individual constitutional rights is also put under scrutiny: “the fiction of the autonomous, willing, reasoning, rights-bearing subject convened by modernity is articulated in liberal democratic constitutions and a host of other liberal institutions” (Brown 2001, 10). For Brown the death of modernist essentialism implies the death of the liberal conceptions of freedom, equality and personal autonomy: ”The developments in philosophy and in feminist, postcolonial and cultural theory have eroded freedom’s ground” (Brown 1995, 18-19, my

emphasis). As the subject is inevitably constituted by “social powers”, she cannot be free, even if granted legal rights as an individual. Brown argues that feminist critique has led to the disintegration of the “‘universalist’ ground and context of Enlightenment formulations of freedom” as well as the “solipsism” and “fictional sovereign individualism” of liberalism (Ibid. 20-23). She claims that “liberalism”, as well as more conventional strains of feminism, rely on notions of “Truth”;

“Morality”, “subject” and normativity that in her view have been delegitimized by the postmodern discourses: thus in effect, “liberalism” as the ideology of liberal democracy is delegitimized too. Brown questions all central liberal concepts such as

“willing”, “consent”, autonomy, “deliberate”, and right; claiming that each of them has been denounced as either racist, ethnocentric, heterosexist, culturally imperialist or all of these. Trying to purge democratic politics from such compromised modernist notions, Brown prefers to theorize democracy as “multiple struggles against domination”. (Ibid. 37-40; 47-48.)

The idea of purging politics of normative notions raises many questions like why and how one would resist domination without appealing to any normative claims; and whether, lacking normative qualifications, all political struggles should be regarded equally relevant; and whether such equivalence itself can be implied without an appeal to the norm of equality. I will return to the meaning of the basic humanist notions of “individual” and “humanity” for the politics of rights and democracy in the next chapter; here I will focus on the question whether legal and moral universalism, as retained in theories of conventional liberalism and deliberative democracy, indeed is so strongly bound to the progressivist “modern” narratives that delegitimizing the latter necessarily also delegitimizes the former; asking: is the notion of rights connected to absolutist notions of truth, morality and human nature, so that it stands or falls with them? Must the concept of rights be seen as a strictly universal category; timeless, ahistorical, apolitical, independent of social and political contexts – and must it be discarded if not seen as such? Does acknowledging the impossibility of absolute objectivity compromise the notion of rights as a moral and political category; and does the recognition of the historical contextuality of the politics of rights affect its capacity to provide legitimacy to political regimes?