Discursive Framings of Human Rights

Negotiating Agency and Victimhood

Karen-Margrethe Simonsen, Jonas Ross Kjaergard, Karen-Margrethe Simonsen, Jonas Ross Kjaergard

• Publisher: Birkbeck Law Press
• Year: 2016
• ISBN:
  9781317371403
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Rhetoric
• Index: Languages & Linguistics

What does it mean to be a subject of human rights? The status of the subject is closely connected with the form and rhetoric of the framing discourse, and this book investigates the relationship between the status of the subject and the form of human rights discourse, in differing aesthetic and social contexts. Historical as well as contemporary declarations of rights have stressed both the protective and political aspects of human rights. But in concrete situations and conflictual moments, the high moral legitimacy of human rights rhetoric has often clouded the actual character of specific interventions, and so made it difficult to differentiate between the objects of humanitarian intervention and the subjects of politics. Critically re-examining this opposition – between victims and agents of human rights – through a focus on the ways in which discourses of rights are formed and circulated within and between political societies, this book elicits the fluidity of their relationship, and with it the shifting relation between human rights and humanitarianism. Analysing the symbolic framings of testimonies, disaster stories, atrocity tales, political speeches, and philosophical arguments, it thus establishes a relationship between these different genres and the political, economic, and legal dimensions of human rights discourse.

Part I

Troublesome origins

The genealogies of human rights

Chapter 1

On the use and abuse of history in philosophy of human rights

Lena Halldenius

Anyone who is interested in human rights and history is called upon to engage in, or form an opinion on, the rapidly escalating and rather divisive academic debate about what a correct history of human rights looks like. Is ‘our’ concept of human rights ancient, medieval, early modern, modern, newer than modern? Did it find its shape in the late eighteenth century, as Lynn Hunt and several others claim, or is it a much later product of political and religious debates in the twentieth century, with little or no conceptual connection to anything prior to that, as another main mover, Samuel Moyn, argues? Sources invoked in these interventions span political struggles and rhetoric, legal developments, activism, pamphleteering, etc. The historiography of human rights has become its own vibrant research field.¹

History also plays an important role in the philosophy of human rights, more so than in philosophical discussions focusing on related concepts, such as justice, and in a different way, as we will see. In philosophy, history tends to be used in order to make it credible that there is a tradition of rights as a moral idea, or an ethical ideal, that transcends national boundaries. In the example that I will investigate, this moral idea is tightly spun around the moral dignity of the human person.

I am sceptical of Moyn’s strong discontinuity thesis, but agree with him that there has been a shift in conceptions of human rights during the twentieth century, from ‘politics of the state to the morality of the globe’ (Moyn 43). Rather than figuring in, or as, constitutional principles of the political life of a polity and the relation between a state and its members, the notion of (human) rights has come to serve as the name of a state- and politics-transcending ethical position on the status of the human person, and the relations between human persons. Amartya Sen represents this move towards personal morality, and away from contestation and politics, when he says that:

Human rights can be seen as primarily ethical demands. They are not principally ‘legal’, ‘proto-legal’, or ‘ideal-legal’ commands. Even though human rights can, and often do, inspire legislation, this is a further fact, rather than a constitutive characteristic of human rights.

(Sen 319)

I find this move to be problematic, but at present am concerned with only one aspect of it, which has to do with the use of history in philosophy of human rights. If the move from politics of the state to morality of the globe is a recent one, it goes without saying that trying to ground a state-transcending morality of human rights with the help of early modern history is problematic. Still, philosophers of this kind of morality of human rights are prone to projecting it back onto an unsuspecting past, claiming to base their accounts on a long-standing human rights tradition that, frankly, is not there, at least not in that form. Examples of such influential contributors to philosophy are Martha Nussbaum, Thomas Pogge, Jeremy Waldron, and James Griffin. Griffin will be my main example, and the focus of my critical discussion. I zoom in on Griffin for two reasons. First, his reliance on what he refers to as a historical notion of human rights is not exceptional – he fits this pattern of invocations of history in support of a moral theory – but it is unusually explicit. Second, Griffin claims that ‘our’ concept of human rights is a product of eighteenth-century Enlightenment thought. If ‘our’ concept of human rights is Griffin’s concept, then that is false – as we will see – but I agree that the eighteenth century is a pivotal moment, and that Enlightenment thinkers are a rich source that we do well to attend to.

As we will also see, the concept that we could build with Enlightenment sources as philosophical inspiration will not confirm, but challenge, the move from politics to morality, and will incorporate, as necessary components, principles that Griffin explicitly rejects. Even if there is no obvious tradition from eighteenth-century philosophers (I will, as we go along, articulate specifically who they are) to us, there are good philosophical reasons to excavate their commitments for purposes of challenging, rather than confirming, the moralized conception of human rights that, arguably, is ‘ours’.

What is it that we are studying, and how?

What is it that philosophers do, or claim to be doing, when they study ideas from the past? What I have to say here is in no way radically new, but it provides us with a useful methodological context. One common view is that it is distinctive of philosophical, rather than historical, study of the past, that one engages with arguments and ideas directly. There are different rationales for this. One is that philosophical questions are perennial or time-resistant: when Aristotle, Rousseau, and Rawls address matters of ‘justice’ (or something that may be reasonably translated as ‘justice’), what they say may be meaningfully analysed, compared, and assessed, without filtering it through differences in historical situation. Alternatively, one remains agnostic regarding the perennial nature of philosophical problems while excavating the philosophical past as a vast repository of possibly useful ideas. One could then consider the potential of Aristotle’s, or Rousseau’s, or Rawls’s, or others’ accounts of justice, for addressing justice-related issues in our own time.

The ‘perennial questions’ approach comes with deliberately discounting the historical, political, intellectual, or scientific context within which a text was produced. The ‘vast repository approach’ may be used with the same kind of discounting, but is not committed to it. It is perfectly possible to hold that the history of philosophy may be used as a bank of good ideas, while insisting that we cannot know what those ideas are, or understand what those philosophers are saying and conveying, without interpreting them in relation to their own intellectual milieu. This, roughly, is my position.

What we study in the history of philosophy are, strictly speaking, arguments, rather than texts, and we risk getting the arguments wrong if we do not attend to the relevant historical circumstances within which those arguments were made. What a philosopher could possibly have meant by the words used is constrained or shaped by whatever received and contested meanings of words that were available and so could have made sense to him or her, given the discursive context in which the arguments were formed.² Philosophers want to persuade; they have aims to promote and arguments to win, and even though a philosophical aim may be to transcend the present, the communication of that aim will be conditioned by whatever makes sense in that present. We need to be clear about what this does not entail: it is not to deny that there may be a continuity of concerns, a similarity of terminology, or even that ideas can survive, persist, and reappear, as it were. The point is a methodological one about what we need to do and know, if we aim to understand the philosophical content and purpose of what we are studying, rather than impose our own conventions and intuitions upon it.³

Both the ‘perennial questions’ and the ‘vast repository’ rationales require stringent attention to the sources, albeit in different ways. One cannot gesture vaguely towards the past and claim to have achieved something of philosophical significance. Why, then, is such gesturing common practice when the matter at hand is ‘human rights’, or ‘rights’, more generally conceived? This rhetorical question proceeds from the tendency in human rights philosophy to appeal to an evolving tradition of thought as support of one’s own preferred conception.

First, let me note that vague gesturing or partial exploitation of the past is not a vice exclusive to those who invoke the trope of an evolving tradition. We may remind ourselves of the purposes to which Robert Nozick used John Locke’s theory of natural rights and acquisition of property. The fact that Locke wrote property into the natural realm is exploited by Nozick in support of a near absolute right to private property against state intervention. Nozick was not concerned with the philosophical and political context within which Locke’s account of rights and property took shape, or with who Locke’s interlocutors were. Locke is employed to lend credence to Nozick’s own position, while Locke’s standing in the philosophical canon is supposed to convey authority. This is ‘ipsedixitism’, as Bentham put it with reference to Cicero: ‘the master has said that it is so; therefore, say the disciples of the illustrious sage, therefore so it is’ (Bentham, Deontology 323).

Nozick, at least, was clear about which source he was abusing. Such explicitness is not to be found when ‘our’ concept of human rights is placed within this kind of narrative: ‘The moral notion of human rights has evolved from earlier notions of natural law and natural rights’ (Pogge 54); ‘there is a continuous, developing notion of human rights running through this history’ (Griffin 2); ‘[t]he notion of human rights that emerged by the end of the Enlightenment – what can reasonably be called the Enlightenment notion – is the notion we have today’ (Griffin 13). The moral concept of human rights as we know it, then, is the historical fruit of an early modern concept of natural rights, which in its turn was born of earlier, ancient and medieval concepts of natural law. Despite the historiographical struggles that I mentioned in the introduction, this smooth transmission of rights through history has remained an attractive idea in philosophy. History is now not a repository of ideas that might be useful and fruitful if we could only understand them properly, as much as a tradition that has been handed down to us, a tradition that not only allegedly explains, but also justifies, human rights as we claim to know them. We can appeal to this tradition in support of the existence, value, and correct explication of human rights. Despite all the work that the tradition is made to do, it seems to require little close attention to particulars in those historical sources in order to be taken as gospel. We already know what the tradition is, or what we need it to be. It is like oral history, or ‘ipsedixitism’, only now the sage is left vaguely unknown.

I will now introduce my main example and the focus of my critical discussion: James Griffin’s much-lauded ethical account of human rights as grounded in dignity, conceived as ‘normative agency’, and claimed to express ‘the Enlightenment project on human rights’ (Griffin 152, 13).

The example: Griffin on history, rights, and equality

In On Human Rights, James Griffin claims to favour a bottom-up approach to human rights in ethics (29).⁴ He does this by exploring what he takes to be the historical tradition of rights, with the aim of remedying the indeterminateness of the notion of human rights found in it. His account of the best ethics with which to make human rights determinate proceeds from ‘normative agency’: a person’s capacity to form and pursue a worthwhile life. Human rights should be seen as protections of this capacity, which is alternatively referred to as the status of personhood. Griffin suggests that this way of understanding human rights is the ethically best way of making them determinate, given the historical tradition of human rights.

The historically evolving conception of human rights to which Griffin subscribes originated, we are told, in the doctrine of natural law in ‘Greek and Roman antiquity’ (9), and appeared in its ‘modern’ form in the twelfth and thirteenth centuries via Thomas Aquinas’s theological account of man’s innate disposition to reason (176). In the seventeenth and eighteenth centuries, this already-modern conception underwent a process of secularization, and the product of that process is the concept that is familiar to us today: there ‘has been no theoretical development of the idea itself since then’ (13).⁵ A challenge for us now is that when God was taken out of the equation in the late seventeenth century, nothing was put in its place, leaving the term not only indeterminate, but ‘nearly criterionless’ (14). No wonder it needs a bit of reining in.

The one criterion that remains in Griffin’s historical notion is that rights are entitlements that ‘we have simply in virtue of being human’ (13). Here, ‘being human’ is shorthand for a specific moral good that is inherently associated with being a person. This is common parlance. When Martha Nussbaum talks about human rights, ‘human’ is shorthand for an Aristotelian notion of human flourishing (72); for others, it refers to some set of human interests (Tasioulas 662ff), or equality of status or rank (Waldron 47–49). For Griffin, ‘being human’ stands for the moral capacity to form and pursue a worthwhile life (34). It is this moral feature – that human quality by virtue of which rights are held – that determines and limits what persons have a right to.

That Griffin’s is a moral theory, where morality is logically prior to politics and law, is also evident in the fact that he defines rights as claims that human agents have, and which can be asserted against all other individual agents and groups, not against the political institutions of society, however conceived (Griffin 177). Rights are interpersonal norms of interaction. In Pogge’s words (and against Pogge’s own view), for Griffin, rights are ‘interactional’, not ‘institutional’ (Pogge 45, 64).

Now, if the term ‘rights’ really is nearly without criteria, what does it mean to proceed from a notion that it is nevertheless said to contain, not to mention to regard that notion as a side-constraint on the best ethics within which to embed it? Let me start with a brief reflection.

It would be rash to deny offhand that the process of abstraction from, or filtering, what actual philosophers have actually argued could yield something useful: a raw notion, perhaps, or a common presupposition. A question is how to perform such filtering without biasing the process towards an end result upon which one has already settled. Can we know that we have got the raw notion ‘right’, rather than missed it, by mistaking it for something else? Maybe there is no raw or core notion at all, only a jumble of ideas that could be structured and combined in a variety of different ways, none of which is necessarily more genuine or true to some kind of original sense (whatever that might be) than another. In Griffin’s case, the procedure results in an extremely individualistic and private presupposition, before which an eighteenth-century protagonist of natural rights would stand baffled. To anticipate: Griffin does not allow for a human right to democratic participation since he believes that, in principle, the rights-grounding capacity for enabling one to form and pursue one’s own path in life may be secured in societies without democratic institutions. Contrary to what he believes, this conclusion is in no way supported by eighteenth-century philosophy of natural rights.

The only conceivable way to go about trying to identify a ‘historical notion’ is, I maintain, by attending to the circumstances in which issues of rights have arisen, and to various points that philosophers have wanted to make by using a rights terminology. If there are historically prevalent and philosophically indispensable features of eighteenth-century accounts of rights, we find them in political presuppositions and conceptual features that Griffin either fails to see, outright rejects, or treats as contingent, notably the common good, the principle...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Prologue: human rights for Martians
• Introduction
• PART I Troublesome origins: the genealogies of human rights
• PART II Negotiating victimhood: the politics of contextual rhetoric
• PART III Responding to human suffering: affective space and aesthetic response
• Index