The Law Cannot Be Enough: Human Rights and the Limits of Legalism

The law cannot be enough
Human rights and the limits of legalism

Anthony Woodiwiss

During the lead-up to the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, only a few brave states supported the idea that the Declaration should be made legally binding. 1 For the majority, and especially for the ‘Big Powers’, such an idea was anathema since they saw their advocacy of human rights more as a way of making political gains for themselves vis-à-vis each other than as imposing legal constraints on their own activities. Moreover, many states had much to hide as a consequence of their activities in their colonies and/or in the area of race relations. It is somewhat surprising, therefore, that some scholars, myself included, should now be worrying about the significance of the legalization process summarized in the following passage:

[From the late 1970s onwards,] although political concepts, such as those associated with feminism, informed some of the campaigns for the new covenants, legal discourse became ever more entrenched as the source of concepts to think through difficulties as well as more generally ‘handle’ human rights issues. Furthermore, the various [United Nations] committees became ever more confidently judicial in their reasoning and the tone of their comments and ‘views’… This development was buttressed by the emergence of regional human rights jurisdictions in the forms of the European Court of Human Rights, the African Commission on Human and Peoples Rights, and the InterAmerican Court for Human Rights. Thus legal and political discourses coexist under the terms established by the hegemony of legal discourse with the result that even the proponents of politically inspired arguments can only hope to make a difference if they use legal terms or, minimally, do not challenge legal norms or procedures—legal reasoning, then, is now virtually the only possible way of working within the conceptual field of human rights.

(Woodiwiss 2003:30–1)

This extract concludes an explanation for the occurrence of legalization that it would be inappropriate to repeat here. However, in order to explain why legalization should have become a cause for some concern, it is necessary to say that, insofar as the western powers who sponsored most of the developments just outlined, have come to accept the possibility that human rights should be legally enforced, it is because they now feel they have little to fear and much to gain from such enforcement. This, in turn, is thanks not simply to the demise of one of their major political competitors, the Soviet Union, but also thanks to the success of another western initiative, namely the establishment of the doctrine of ‘justiciability’ (the idea that only supposedly cost-free, civil and political rights are or should be immediately enforceable by a court). Thus what for me makes legalization a cause for concern is that the price paid for it has included neglect of both economic and social rights and the world’s cultural variety.

This said, the consequent narrowing of both the present purview of, and the future possibilities for, human rights discourse has been challenged repeatedly ever since the General Assembly adopted the UDHR. Several states, notably the Soviet Union, abstained from voting for the UDHR because they felt that the idea of a common humanity had been hijacked by adherents to a particular ideology, namely ‘bourgeois individualism’. Subsequently, non-white peoples, women, sexual minorities, developing countries, and non-western cultures more generally have also discovered or felt that they had been excluded from the UDHR’s conception of a common humanity. In all such cases the excluded parties have resorted to political action in an effort to reverse their exclusion. Sometimes they have been successful. More often they have not and their complaints of exclusion have typically been dismissed as groundless, at least initially. However, most of the aggrieved parties have responded by insisting that such dismissals simply compound the neglect of the rights violations they complain of. Because of these experiences, it has gradually become practically clear that what should count as a human right, the universality or otherwise of the present array of human rights, and indeed the very idea of a common humanity, are not simply matters of intellectual controversy but also matters of power, not simply matters of philosophy and law but also matters of social structure and politics. Thus one is led to see any rights regime, whether international or national, as an index representing the disposition of power in the jurisdiction concerned. Consequently, when read sociologically, the coverage, content, inclusions, and exclusions of rights texts tell us not only who is protected against what, but also the sort of people and the aspects of social relations that are especially valued (or not) by the governmental body responsible for constructing, approving and enforcing the regime.

Accurate though I believe this practical sociological understanding of the ambivalent nature of rights regimes to be, it is also an understanding that may prompt some rather dangerous ideas. Especially dangerous, in my view, is the suggestion one hears increasingly often from those angered by the numerous hypocrisies that have been, and remain part of, human rights thought and practice, namely that a politics grounded in an optimistic view of human nature may be better able to protect individuals than the law since the latter is grounded in a pessimistic view that almost invites victimization (Badiou 2001). In my view, this is very unlikely to be the case. Although it is true that sometimes in the past such politics have provided an effective means of ending such hypocrisies, they have just as often been the cause of many of the denied or neglected abuses that gave rise to the charges of hypocrisy in the first place. This is because optimistic political projects have tended to reject any ethical constraints with the result that, as history attests, the pursuit of the good has all too easily been transformed into the administration of evil (Moore 1972, 1978). As the critics allege, the law may indeed be where various hypocrisies are most deeply embedded. 2 However, not only did the law, in the form of ‘the rule of law’, gain its presently exalted role in western social life as a means of both constraining and facilitating political and especially state actions, but in this form it is also a self-limiting activity in that it is rule-bound as well as rule-enforcing. Thus, if society’s aspirations are reasonably quickly entrusted to the law, they are far less likely to produce monsters than if they remain solely objects of political calculation. As indeed the critics also stress, the main danger in entrusting anything to the law is that nothing at all will happen.

That said, it remains the case that the law on its own is unable to secure respect for human rights. In a country like Britain there are many millions of legal events every day—ranging from street cautions, through arrests, bankruptcies, and property sales, to imprisonments—but one’s sense of their significance is greatly diminished once it is remembered that billions of other social events also take place every day that are not subject to direct legal intervention. The disproportion between human rights related legal events and social events with a potential human rights content is in all probability even greater, since human rights tend not to be proactively enforced, whether by specialized agencies (as in the case of the criminal law) or through requirements to follow certain legally specified forms of action (as in the case of the civil law). Instead, human rights, where they are enforced at all, tend to be reactively enforced on the basis of victim complaints and, moreover, only in relation to a narrow range of social interactions. Human rights, then, tend to be legally enforced only at the extremities of social life. This, however, suggests not that legal regulation should be abandoned but that legal enforcement strategies should take account of two related sociologically generated considerations. First, enforcement mainly depends on the ordinary respectfulness or oppressiveness of daily life, especially as regards relations between citizens and representatives of the state. This indicates that the most effective enforcement strategy would be a preventative but still legislatively and legally mediated one that attends to the causes of violations rather than simply punishes violators. Second, to be effective the legal enforcement of human rights must not only be incorporated into the criminal and civil law but also, and most importantly, it must mobilize the supportive elements and/or processes present within the social routines of everyday life. In sum, it is the impossibility of law’s omnipresence plus the self-restraint intrinsic to it that both makes law socially safe, or at least safer than politics, and means that its interventions (in this case, human rights) must be sociologically and locally informed as well as both preventative and reactive, if they are to have any significant effect.

Thus, in line with what one might expect of what I am happy to regard as the ‘science of the obvious’, the broadest sociological insight with respect to human rights is that the overall structure and general tenor of social relations, the law, and politics each play important but different roles in securing and enhancing respect for human rights: the overall structure and tenor of social relations determines and enforces basic expectations as regards what is acceptable or unacceptable behaviour; the law provides a potentially powerful and relatively safe means of reinforcing such expectations, since it can mobilize and focus the power of the state in a controllable way where there are particular difficulties; and politics furnishes the most important direct means of effecting change in both social expectations and reinforcement strategies. This said, and although it enables us to define the limits of legalism quite precisely, it does not exhaust the account of such limits. This is because these different spheres of social life are not in any sense hermetically sealed entities. Rather, they are more like ‘Chinese boxes’ or M.C.Escher’s perspectives in that they exist inside one another. Thus they are inter-connected in many and complex ways which means that outcomes are sometimes as unexpected as they are unintended and unpleasant; that is, interventions on behalf of human rights can sometimes do more harm than good.

From a sociological perspective, then, and as with many other such controversies in the human rights area, the debate over the legalization of human rights seems to be unhelpfully polarized between two supposedly mutually exclusive positions. On the one hand, there are those who regard this development in a largely positive light since it means that the most important human rights are at last being seriously enforced, namely those civil and political rights considered justiciable (see Donnelly, this volume). On the other hand, there are those who argue that it is a negative development since the same privileging of civil and political rights means giving up the search for a better society in that it implies that liberal democracy and its inegalitarian social prerequisites, namely capitalism and the state, can never be surpassed. What, despite the excellence of the individual contributions, makes the debate unhelpful is the sociologically rather obvious point that, given the complexity of the social-structural interactions that produce particular modes and instances of legalization, both positions may be, and probably are, true. In other words, the two sides are talking past one another. But why should this be? In my view it is because they are not actually discussing the social-structural complexity that determines the nature and significance of legalization in particular instances but rather repeating a deep disagreement concerning the correctness or otherwise of the established and basically contractarian conception of rights and its claims as to the agreed, egalitarian and consensual nature of rights. On the one hand, those who favour legalization do so because they accept the contractarian conception. This is the conception that John Locke introduced in these words:

Men being, as has been said, by nature all free, equal, and independent, no one can be put out of this estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe, and peaceable living, one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left, as they were, in the liberty of the state of Nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.

(Locke 1689: para. 95)

On the other hand, those who are critical of legalization reject the contractarian conception because it neglects the darker side of human rights doctrine and practice, namely that which involves or depends upon compulsion, inequality and conflict and arises from the strong association between rights discourse and the rise of capitalism. In what follows I will begin by agreeing with the critics of contractarianism but end by outlining a synthetic position.

The two faces of human rights

In my view, a minimal requirement if the current debate is to be transcended is a recognition of the double-edged character of human rights discourse—double-edged in the sense that something was lost as well as given with the arrival of rights. Put as plainly as possible, but to take sides immediately, I understand the term rights to refer to a legally enforceable set of expectations as to how others, most obviously the state, should behave towards the rights-bearer. These expectations take the form of limitations on, and/or requirements of, the behaviour of the pertinent others. The bearers of rights have to be entities legally considered to possess ‘personality’—that is, legally deemed to be autonomous moral agents—and therefore capable of taking decisions and accepting responsibilities, as in the case of adult persons, trade unions, corporations, or states. More controversially, rights-bearers may also be members of groups legally recognized as entitled to make claims to protection on the basis of the principle of reciprocity 3 because they have been denied the possibility of autonomy as a result of factors such as age (children), race, gender, sexual orientation, poverty, illness, or indigenousness. With respect to persons, the initial bearers of rights, the limitations or requirements placed on others may relate to the bearer’s person, property or other legally specified and individualized relationships or expectations.

When I say that with such an understanding I will ‘take sides immediately’, the debate I have in mind is that between the supporters of natural law theory and the Legal Positivists concerning the nature of rights (Jones 1994). According to natural law theory, certain rights are intrinsic to human beings, whether as individuals or members of groups, in the sense that humans are born with them. For the Legal Positivists, by contrast, all rights are extrinsic to individuals and groups in that they are created and attached to legal persons by external forces, notably by legislative acts and/or judicial decisions. So distinguished, it should be immediately clear why a sociologist would side with the Legal Positivist camp: to put it slightly flippantly, Legal Positivism leaves space for a social and therefore sociologically accessible dimension as regards the development of rights and their attachment to their bearers, whilst Natural Law theory prefers to fill that space with divinations of one kind or another.

Only gold members can continue reading. Log In or Register to continue