Radha D’Souza teaches law at the University of Westminster, UK. She is a social justice activist from India, where she worked in labour movements and democratic rights movements, first as organiser and later as activist lawyer. Radha is a writer, critic and commentator, and has worked with solidarity movements in the Asia–Pacific region.
Before we look at the problems associated with “rights” it is important to understand what the word means, not least because it means different things to different people at different times. “Rights” are commonly understood to mean entitlements to do or not do something, and for others to respect that entitlement. Social justice activists often believe that the corollary of “rights” is obligations and responsibilities, and that social injustices exist not because of problems with the concept of “rights” as such but because the concomitant of “rights” – “obligations” and “responsibilities” – have been erased from our thinking and from debates about “rights”. These beliefs are based on misunderstandings of the real nature of “rights”. The misunderstandings arise partly because “rights” are a philosophical, political and juridical idea, and the concept and its meanings in philosophy, political theory and law are not the same. Confusions arise because the three overlapping fields are used interchangeably in different contexts.
In part, misunderstandings about “rights” persist within social justice movements because they have forgotten the history of “rights” and the critique of “rights” by revolutionary thinkers of the late nineteenth and early twentieth centuries, and the political programmes of the successful movements for socialism and national liberation struggles to alter the nature of “rights”. As a result, social movements, instead of learning from and developing those revolutionary experiences, have discarded the history of struggles against “rights” and feel frustrated that “rights” do not work, but have nothing to offer beyond “rights”. If we wish to move forward, it is important therefore to grasp the concept of “rights”, its history and the critique of “rights” by radical movements of working people in the past.
It may be noted that the concept of “rights” is peculiar to Greco-Roman civilisations, but its history need not concern us here except to note that the philosophical concept was an objective concept associated with ethical and moral ideas of what is right or wrong. As all human beings are required to do “right” and abstain from doing “wrong”, the philosophical concept was supposed to guide people in “right” actions.
Philosophers of capitalism
The philosophers of capitalism in the eighteenth and nineteenth centuries radically transformed the classical idea of “rights” into a subjective political idea attached to individuals who became “right bearers” vis-à-vis the state and society. The idea of “rights” was transformed into “freedom from state” and social constraints. As such, the corollary of “rights” is “freedom”, “choice” and absence of restraint. Today, the philosophical idea of “rights” exists at best as a moral ideal because the political philosophers of capitalism have put rights on a different institutional and juridical foundation. When social justice activists speak of “rights” they have in mind this classical ideal, but often it is forgotten that the institutional and legal basis for objective “rights” do not exist any more.
Capitalism developed the idea of “rights” to new levels by introducing two components that radically altered the nature of “rights”. First, philosophers of capitalism introduced the novel idea that property was a natural and inalienable right attached to every person in the same way as life, and the conditions that sustain life: air, water and food. Second, “rights” were articulated as negative juridical concepts, in that “rights” only guarantee the possibility of something, not the actual thing. Thus the right to collective bargaining creates the possibility of a living wage but does not guarantee a living wage; the right to property makes it possible to own a home but does not promise everyone a house to live in.
It is therefore wrong to think that through default, somehow, “rights” have come to be equated with property rights. “Rights” in its modern form and as a political idea owes its very existence to property rights, and is inseparable from it; and the concomitant idea of freedom is about freedom to own and accumulate property without interference from the state. Circumscribing property rights for social purposes does not take away its primacy in the political and legal order. Capitalism will be impossible if property rights are taken out of the scope of “rights”.
The revolutionary critique
Revolutionary social movements of the early twentieth century advanced three main philosophical criticisms against “rights”, which are still valid. First, the “empty shell” argument: liberal rights are negative endowments that promise the possibility of, but do not create the conditions for, their fulfilment. Second, that any talk of “rights” in politics must be backed by an economic system that facilitates it, and capitalist individualism, commodity production and market economy do not create the conditions for freedom from want and other freedoms; to the contrary they create bondage and oppression. Third, the “means to an end” argument: “rights” free labouring people from feudal obligations and old forms of oppression (caste, gender, and so on) and allow limited political space for organised dissent, which is useful not for its own sake but only if people actually organise themselves to create the conditions for real freedoms.
Socialist revolutions of the early twentieth century extended the philosophical critique to the political arena and removed property from the idea of “rights” and tried to infuse the idea of “rights” with positive substance, so that the right to a job meant that everyone should have a job, not just the possibility of finding a job; the right to education meant that schools should be free so that every child could go to one, and not just the possibility of education for those who could afford it, or those supported by charities.
Given this backdrop, is fighting for “rights” the road to follow? To say yes is effectively to go backwards in history or to argue, as some modern-day philosophers of capitalism such as Francis Fukuyama argue, that there is no alternative to liberalism in philosophy, politics and law, the foundations of which stand on the idea of “rights”. For emancipatory social movements, a more useful way of understanding the question of “rights” would be to interrogate critically the return of the “rights” discourse in the contemporary context of neo-liberalism. The socialist and national liberation struggles articulated and attempted to achieve “human emancipation” and “liberation” from oppression, not “rights”. Neo-liberalism claims legitimacy on the grounds that this aspiration can no longer be fulfilled because socialism has been defeated. The real question then is: are we willing to concede the hope of human emancipation to “empty shell” possibilities of “rights” based on the primacy of property, which very few possess? Are we ready to concede that liberation from oppression is not possible because the economic system cannot be changed?
Limits of statute law
Turning to law, legal theorists, following in the footsteps of political theorists of capitalism, developed legal principles and innovated institutional mechanisms that sustain capitalism. The most significant legal development was the idea of statute law, by which we mean different Acts of legislature on different social issues enforced by a court system backed by police powers. This form of law, which most people today think is “natural”, as if that is how law has always been, came into existence only with capitalism, and is far from being “the way law has always been”. Under statute law, each aspect of social life is cast into a distinct legislation or statute which makes it difficult to envisage the social whole. What one statute gives another can take away. For example, a statute may provide for a minimum wage, but if prices go up as a result and cancel out the wage gains, that is not an issue that can be addressed within the scope of the minimum-wage legislation. A statute may grant the “right” to education, but treasury and fiscal management rules may simultaneously require cuts in spending. “Choice” then is limited to whether we allow budget cuts to affect the “right” to education or some other “right”, like health for example.
Socialist movements, while strong on philosophical critique and political action, were weakest in legal development and institutional innovation. If we wish to advance, and not go backwards, we need to rethink how we can recover the gains made by liberation struggles, what the weaknesses of those struggles were, why working people everywhere lost, and how we can regain the ground and consolidate the gains when they are recovered. Those who say there is no alternative to “rights” do so by forgetting the history of struggles against “rights”, and implicitly deny the possibility of emancipation and liberation.
Social justice movements need to reflect on five broad themes in relation to “rights”. The first and most important is what may be called the “colonial question”. Neither liberal theory, nor politics, nor law extended “rights” to colonial subjects in the colonial era. Although based on liberal ideas and “rights” talk, the power structures of the post World Wars world privileged the victors, primarily the Allies, whether it be through the United Nations Security Council veto, or the weighted voting rights in the World Bank and the International Monetary Fund, or the dispute resolution mechanisms in organisations like the World Trade Organisation. The UN Charter by institutionalising and privileging the “rights” of the Allies and the victors in the Second World War, has perpetuated neo-colonialism, poverty and wars. Without challenging the constitution of the UN, any “rights” talk at nation-state level today is a non-starter. The “colonial question” in the neo-liberal era is a philosophical and political question, and it is not possible to find a juridical solution to a more fundamental problem of our times, as many social justice movements try to do when they advocate “rights” as the solution. Besides, the legal systems in “Third World” countries by and large were created by colonial powers and remain neo-colonial institutions. To speak of juridical ideas of “public goods” and “commons” and “community” without evaluating how their social substance has been warped by imperialism past and present is to insist on confusing appearance with reality.
Second, the impulse for “rights” talk today is largely driven by environmental questions, and is primarily about extending private property regimes to aspects of nature and natural resources, something that was impossible before but made possible today by technology. For example, water was attached to land rights until technology made it possible to separate water from land and deliver it across continents, a development that required legal and institutional innovation.
Third, while the political idea of “rights” promotes the idea of equal opportunities for all, the juridical idea rests on the foundational myth that the “corporate person” stands on the same footing as the “natural person”. The size and reach of corporations today are vastly different from what they were in the eighteenth or nineteenth centuries, and make the legal myth of the corporate person an absurdity. The real issue is whether “rights” claimed for the natural person can be extended to corporations. Cracking the juridical myth on which modern society is founded is a task that needs to be taken more seriously and fleshed out programmatically in politics.
Fourth, capitalism has transformed the structure of communities. Communities too are formed on market principles based on common “interests” in the market-place, and not allegiance to “people in places”. For example, a person joins a trade union because of common interest with others in the labour market, and joins a consumer organisation because of common interest in commodity prices, and joins a “water rights” movement because of interest in water, and so on. Interest-based communities alter the character of “rights” in fundamental ways. As each interest is governed by a different statute law enforced by a different set of institutions, it is no longer possible to find institutional and legal recognition of “people-in-places”, whose well-being requires the convergence of several interests.
It is sometimes argued that, notwithstanding all of the above, it is possible to create parallel enclaves where indigenous communities and knowledge flourish. This may be possible in the short term, but not in the long term, because imperialism is capitalism plus militarism, and both are by their very nature expansionist. Customs and traditions grow from economic and production relations. Colonialism arrogated to itself power over economic relationships and allowed “freedom” for cultural practices whether in the economy or society, as if tradition could exist without economic foundations. By doing that, imperialism appropriated the productivity and social stability following from the space provided for customary knowledge and practices. To insist on “customary rights” without considering the imperialist context and colonial history within which it survives is only to insist on being blind.
Fifth, there are three interrelated battlegrounds on which movements desirous of human emancipation must fight: the philosophical, the political and the economic. Each of these involves very different types of struggle, and yet emancipation is impossible without fighting on all three fronts. Of the three, economic struggles were prominent in the Cold War era; the end of the Cold War has seen the return of political struggles, and on both fronts emancipatory movements have gained considerable experiences and successes everywhere. On the philosophical front, emancipatory movements have more or less abandoned the field; and the conundrum of “rights” exemplifies this failure. Dismissed by social justice movements as “too academic” or irrelevant or simply talk-shops, and sometimes, sadly, with contempt for people’s intellectual capabilities – evidenced by arguments like “ordinary people will not understand philosophical issues” – abandoning this field of struggle is an important reason why emancipatory movements have become stuck in conceptual grooves. This is a problem in its own right for those who wish to get to the bottom of the “rights” conundrum.