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What's Wrong with Rights?: Social Movements, Law and Liberal Imaginations
Rights occupy a strange position in global politics. On the one hand, they’re used by business and governments as a justification for globalization—if the spread of corporate capitalism also helps lead to improvements in human rights, then globalization must be good, right? At the same time, though, even those on the left who are skeptical of that discourse tend to hew to a belief in rights themselves, like the right to food, medicine, housing, free speech, assembly, and religion.
How can these conflicting attitudes towards rights be reconciled? Radha D’Souza lays out the problem and the solution in this book, applying legal thought to human rights to bridge the gap between rights in the abstract and their institutional context. Through close looks at real struggles, D’Souza shows how the left around the world can develop new strategies and tactics to achieve the goals embodied by rights discourse without giving cover to globalization.
How can these conflicting attitudes towards rights be reconciled? Radha D’Souza lays out the problem and the solution in this book, applying legal thought to human rights to bridge the gap between rights in the abstract and their institutional context. Through close looks at real struggles, D’Souza shows how the left around the world can develop new strategies and tactics to achieve the goals embodied by rights discourse without giving cover to globalization.
272 pages, Hardcover
First published December 15, 2015
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October 17, 2021
An impressive book tracing the link between the constitution of human rights under the conditions of late capitalism. D’Souza’s large theme concerns the ideology of liberalism and the way that it projects hope for human emancipation onto the contours of a social and economic system that is in a constant state of development and change. She sees it as “a world view comprising a complex of ideas, assumptions and beliefs in philosophy, jurisprudence and political theory and praxis about individual and economic freedoms.”
She insists that the record of human rights claims is judged in accordance with the period of history of which they are apart. This has to be segmented into an age when the idea of rights centred on the notion of sovereignty and self-determination which projected the nation state as the arena for social mobilisation. During this period ‘old social movements’ (OSMs) did not subscribe to liberal modes of thought but instead aimed for a change in the nature of society itself. They have leverage in the context of a capitalism that is defined by its national-competitive-industrial (NCI) character and are inflected by collectivist impulses which are the basis for the OSM form of struggle.
During the OSM stage pre-fixing rights as ‘human rights’ is done less stridently than will become when the transition is made to the modern period transnational-monopoly-finance (TMF) capitalism. But rights of all kinds are products of a ‘thought world’ and are capable of being reworked and put to fresh usages when the historical conjunction moves on. Reframed as a part of the liberal imagination rights take their place in “a merchant’s world view inscribed in the very structure of reason such that it extends an accountant’s logic to every sphere of human life.
Referencing Goethe’s comments on liberalism being rooted in ‘sentiments’, D’Souza argues that its resilience in the mind of social movements that promote human rights “lies in its ability to sustain the belief that sentiments can be un-problematically translated into political action.”
This is plausible only because liberalism projects the view that the scope for human rights is independent of the economy on which social movements are attempting to act. The source of the rights which they are fighting for is the legal pluralism which emerged from the contractual freedom and technical innovation that capitalism nurtures and which challenged the “rigoristic morality” which had been a hallmark of the preceding state-centred social system. Quoting Oche Onazi D’Souza sets out how the demise of state-centred rights comes to be seen as granting agency to subaltern claims, giving voice to “the poor, marginalised or oppressed.” What is actually does, she argues, is advance “the possibility of co-existence of state-centred and subaltern views” ….. [it unhinges] “rights from citizen-state relations and transforms it into a normative concept without moorings in the materiality of the world.” In short, “Challenges to ‘human’ rights remain as a contest of norms in the domain of ideas.”
This is an unequal contest. The subaltern classes mobilised in the struggle for rights in the OSMs are driven by the desire to live the life of a human being to its fullest capacity. But the economic elites which align their interests with states are motivated by the need to resolve what D’Souza describes as a “usurer’s dilemma.” If allowed to proceed without any restraint the pursuit of profit would result in the ruin of the forms of social existence that make profit possible, as Karl Polyani pointed out. Under neoliberal capitalism the dominant groups extract surplus value from the economic rents that come from monopoly control of assets and interest from debt. This usury creates the problem of judging the moment when the extraction of revenue from these sources would be in danger of killing the productive forces that TMF capitalism has in its maw. Corpses don’t repay their debts and because of this creditors have to have a reliable means for judging the point where revenue streams are optimised, and the risk of default kept to a minimum. D’Souza essentially sees this space as the place where modern-day human rights gets its traction.
She makes this argument most forcibly in the chapter dealing with the third world debt crises of the 1980s and beyond when the imposition of IMF structural adjustment programmes on indebted nations brought economic growth to a halt and threatened massive levels of default. The Washington consensus which had underpinned the loan strategies, informed as they were by the dogma that global trade in commodities where each country had a comparative advantage would always produce growth, was found to be fundamentally flawed because it had taken no account of the inequality of exchanges which were an inevitable consequence of imperialism. A post-Washington consensus was hastily put together which required loan repayment schedules to take at least some account of the core interests of the debtor nations.
D’Souza sees this opening as providing the opportunity for new social movements (NSMs) came into their own. This form of social mobilisation has made the call for respect for human rights, rather than societal change, its central demand. These NSMs differs from OSMs because they see the tensions within capitalism as providing the grounds for an appeal for negotiation over the type of rights which could co-exist with TMF.
Post-Washington consensus NSMs aimed to root human rights in a panoply of international instruments that bore the imprimatur of the United Nations and which had potential to be justiciable in the established court systems. Using models of law that were informed by contract this meant that the states and corporations that were being called to account by the NSMs could also represent their interests as that of human rights as well, with the ‘human’ in these instances being present as a corporate entity. Before long the ‘human’ rights violations that were finding their ways into the courts were most likely to take the form of a major transnational company alleging a transgression arising from the fact a state had passed legislation that placed them at a trading disadvantage. As cases stacked up the assertion of the new human rights model increasingly undermined the principle of national sovereignty which had been the starting point for the rights claimed by the OSMs.
A chapter looking at the practice of international election monitoring considers the implications of this tool, so popular with NSMs, for the concept of national sovereignty. D’Souza argues that it has become the means by which ‘the will of the international community’ has replaced ‘the will of the people’ as the point at which the legitimacy of national elections is established. Liberals of various hues sign up to election monitoring exercised when the state in question is considered problematic across an array of various liberal concerns but are much weaker advocates of accountability when democracy-suppressing measures are entrenched in the electoral systems of liberal capitalist states.
The book moves on to consider the revision of the whole idea of national sovereignty as ‘disaggregated sovereignty’ as sketched out by the former US state department official Anne-Marie Slaughter. Over and above states acquiring legitimacy in accordance with the standing of international law, Slaughter holds that the duty of compliance devolves directly onto various state officials, including civil servants and judges. A disaggregated sovereign state “must be governed without a government”, functioning with the priority obligation to ensure adherence to the “international regime of rights which act as the normative standard of our times.”
The NGOs and social movements that adapt to working within this frame are obliged to “reconstitute citizen-state relations as networks within specific market sectors that mirror the global markets.” The implications of this show up most sharply in Third World states (D’Souza’s favoured term) where “unequal international relations” have to be embedded within national constitutions to create a situation of accountability to the international community. D’Souza provides case studies of the ways in which the instruments which render these states accountable, election monitoring and the imposition of the legal systems of states that are home to the corporate ‘victims’ of state-backed activities displace the systems of justice established under the principle of national sovereignty have rescripted the rights that were once idealised as representative democracy. “Intangible property rights” are under-written by the IMF and the search is on for a surrogate for bankruptcy proceedings that can be applied against supposedly sovereign nations.
The extremely problematic side of human rights has not been better presented that the argument that is set out in this book. But it is in the ‘what to do about it’ that disappointment with its direction becomes most acute. D’Souza wants to get back to a mode of struggle against capitalism that unproblematically asserts the (old) social rights of the disposed against the rentiers and usurers. The embers of what was once a fiery resistance still glow in the examples of Cuba and various guerrilla insurgencies across the world, but it is hard to be overly optimistic that this provides the model across the planet.
Perhaps the flaw in the argument is in seeing the TMF version of human rights as the endgame for the liberal imagination, forever trapped by its merchant view and the segmentation of human existence into bits that can be traded-off for a smidgeon of preferment. The bigger frame continues to evolve and the entry of global capitalism into the new age of climate change crisis is likely to raise usurer’s dilemma to new heights. We no longer require a modification to the structure of indebtedness that will allow payments to TMF capitalists to continue, such as allowed the Washington consensus to segue into its slightly less harsh version, but a total rethink of just about everything if there is any chance of staving off a planetary catastrophe. What sort of strain will this place on the neoliberal global order that privileges the human rights which D’Souza excoriates? Is it possible that their critique will move on from the pages of a tightly-argued booked and into the activism of even newer social movements that have learnt from the mistakes of the past?
D’Souza finished her book by apologising for the fact that she continues in her day job as a practising human rights lawyer ready to appear in court to argue over issues that she would sooner confine to dust. That is the much situation that tens of thousands of people working with the perspectives of NSMs across the world fine themselves in. Perhaps they are not all just doing it to earn a living. Maybe they are accumulating knowledge and experience and that will be of use when the whole neoliberalism regime comes tumbling down.
She insists that the record of human rights claims is judged in accordance with the period of history of which they are apart. This has to be segmented into an age when the idea of rights centred on the notion of sovereignty and self-determination which projected the nation state as the arena for social mobilisation. During this period ‘old social movements’ (OSMs) did not subscribe to liberal modes of thought but instead aimed for a change in the nature of society itself. They have leverage in the context of a capitalism that is defined by its national-competitive-industrial (NCI) character and are inflected by collectivist impulses which are the basis for the OSM form of struggle.
During the OSM stage pre-fixing rights as ‘human rights’ is done less stridently than will become when the transition is made to the modern period transnational-monopoly-finance (TMF) capitalism. But rights of all kinds are products of a ‘thought world’ and are capable of being reworked and put to fresh usages when the historical conjunction moves on. Reframed as a part of the liberal imagination rights take their place in “a merchant’s world view inscribed in the very structure of reason such that it extends an accountant’s logic to every sphere of human life.
Referencing Goethe’s comments on liberalism being rooted in ‘sentiments’, D’Souza argues that its resilience in the mind of social movements that promote human rights “lies in its ability to sustain the belief that sentiments can be un-problematically translated into political action.”
This is plausible only because liberalism projects the view that the scope for human rights is independent of the economy on which social movements are attempting to act. The source of the rights which they are fighting for is the legal pluralism which emerged from the contractual freedom and technical innovation that capitalism nurtures and which challenged the “rigoristic morality” which had been a hallmark of the preceding state-centred social system. Quoting Oche Onazi D’Souza sets out how the demise of state-centred rights comes to be seen as granting agency to subaltern claims, giving voice to “the poor, marginalised or oppressed.” What is actually does, she argues, is advance “the possibility of co-existence of state-centred and subaltern views” ….. [it unhinges] “rights from citizen-state relations and transforms it into a normative concept without moorings in the materiality of the world.” In short, “Challenges to ‘human’ rights remain as a contest of norms in the domain of ideas.”
This is an unequal contest. The subaltern classes mobilised in the struggle for rights in the OSMs are driven by the desire to live the life of a human being to its fullest capacity. But the economic elites which align their interests with states are motivated by the need to resolve what D’Souza describes as a “usurer’s dilemma.” If allowed to proceed without any restraint the pursuit of profit would result in the ruin of the forms of social existence that make profit possible, as Karl Polyani pointed out. Under neoliberal capitalism the dominant groups extract surplus value from the economic rents that come from monopoly control of assets and interest from debt. This usury creates the problem of judging the moment when the extraction of revenue from these sources would be in danger of killing the productive forces that TMF capitalism has in its maw. Corpses don’t repay their debts and because of this creditors have to have a reliable means for judging the point where revenue streams are optimised, and the risk of default kept to a minimum. D’Souza essentially sees this space as the place where modern-day human rights gets its traction.
She makes this argument most forcibly in the chapter dealing with the third world debt crises of the 1980s and beyond when the imposition of IMF structural adjustment programmes on indebted nations brought economic growth to a halt and threatened massive levels of default. The Washington consensus which had underpinned the loan strategies, informed as they were by the dogma that global trade in commodities where each country had a comparative advantage would always produce growth, was found to be fundamentally flawed because it had taken no account of the inequality of exchanges which were an inevitable consequence of imperialism. A post-Washington consensus was hastily put together which required loan repayment schedules to take at least some account of the core interests of the debtor nations.
D’Souza sees this opening as providing the opportunity for new social movements (NSMs) came into their own. This form of social mobilisation has made the call for respect for human rights, rather than societal change, its central demand. These NSMs differs from OSMs because they see the tensions within capitalism as providing the grounds for an appeal for negotiation over the type of rights which could co-exist with TMF.
Post-Washington consensus NSMs aimed to root human rights in a panoply of international instruments that bore the imprimatur of the United Nations and which had potential to be justiciable in the established court systems. Using models of law that were informed by contract this meant that the states and corporations that were being called to account by the NSMs could also represent their interests as that of human rights as well, with the ‘human’ in these instances being present as a corporate entity. Before long the ‘human’ rights violations that were finding their ways into the courts were most likely to take the form of a major transnational company alleging a transgression arising from the fact a state had passed legislation that placed them at a trading disadvantage. As cases stacked up the assertion of the new human rights model increasingly undermined the principle of national sovereignty which had been the starting point for the rights claimed by the OSMs.
A chapter looking at the practice of international election monitoring considers the implications of this tool, so popular with NSMs, for the concept of national sovereignty. D’Souza argues that it has become the means by which ‘the will of the international community’ has replaced ‘the will of the people’ as the point at which the legitimacy of national elections is established. Liberals of various hues sign up to election monitoring exercised when the state in question is considered problematic across an array of various liberal concerns but are much weaker advocates of accountability when democracy-suppressing measures are entrenched in the electoral systems of liberal capitalist states.
The book moves on to consider the revision of the whole idea of national sovereignty as ‘disaggregated sovereignty’ as sketched out by the former US state department official Anne-Marie Slaughter. Over and above states acquiring legitimacy in accordance with the standing of international law, Slaughter holds that the duty of compliance devolves directly onto various state officials, including civil servants and judges. A disaggregated sovereign state “must be governed without a government”, functioning with the priority obligation to ensure adherence to the “international regime of rights which act as the normative standard of our times.”
The NGOs and social movements that adapt to working within this frame are obliged to “reconstitute citizen-state relations as networks within specific market sectors that mirror the global markets.” The implications of this show up most sharply in Third World states (D’Souza’s favoured term) where “unequal international relations” have to be embedded within national constitutions to create a situation of accountability to the international community. D’Souza provides case studies of the ways in which the instruments which render these states accountable, election monitoring and the imposition of the legal systems of states that are home to the corporate ‘victims’ of state-backed activities displace the systems of justice established under the principle of national sovereignty have rescripted the rights that were once idealised as representative democracy. “Intangible property rights” are under-written by the IMF and the search is on for a surrogate for bankruptcy proceedings that can be applied against supposedly sovereign nations.
The extremely problematic side of human rights has not been better presented that the argument that is set out in this book. But it is in the ‘what to do about it’ that disappointment with its direction becomes most acute. D’Souza wants to get back to a mode of struggle against capitalism that unproblematically asserts the (old) social rights of the disposed against the rentiers and usurers. The embers of what was once a fiery resistance still glow in the examples of Cuba and various guerrilla insurgencies across the world, but it is hard to be overly optimistic that this provides the model across the planet.
Perhaps the flaw in the argument is in seeing the TMF version of human rights as the endgame for the liberal imagination, forever trapped by its merchant view and the segmentation of human existence into bits that can be traded-off for a smidgeon of preferment. The bigger frame continues to evolve and the entry of global capitalism into the new age of climate change crisis is likely to raise usurer’s dilemma to new heights. We no longer require a modification to the structure of indebtedness that will allow payments to TMF capitalists to continue, such as allowed the Washington consensus to segue into its slightly less harsh version, but a total rethink of just about everything if there is any chance of staving off a planetary catastrophe. What sort of strain will this place on the neoliberal global order that privileges the human rights which D’Souza excoriates? Is it possible that their critique will move on from the pages of a tightly-argued booked and into the activism of even newer social movements that have learnt from the mistakes of the past?
D’Souza finished her book by apologising for the fact that she continues in her day job as a practising human rights lawyer ready to appear in court to argue over issues that she would sooner confine to dust. That is the much situation that tens of thousands of people working with the perspectives of NSMs across the world fine themselves in. Perhaps they are not all just doing it to earn a living. Maybe they are accumulating knowledge and experience and that will be of use when the whole neoliberalism regime comes tumbling down.
July 9, 2018
"Perhaps at this historical moment, when capitalism in the 'epoch of imperialism' challenges us to question the very basis of European Enlightenment modernity, even saying the revolution will not be this, will not be that, stops us from lapsing into liberalism from sheer habit, and keeps us on track in our search for answers to the questions of our times."
Challenging, necessary read imo.
Challenging, necessary read imo.
October 10, 2024
Tostonaco
Displaying 1 - 4 of 4 reviews