JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(3) Human Rights

Noam Chomsky - Universal Declaration of Human Rights

HR

Kundera on human rights

 The language of international human rights has become associated with all sorts of claims and disputes. Almost everyonenow emphasizes their point of view in terms of an assertion or denial of rights. Indeed, for some in the West, it seems we have already entered an era when rights talk is becoming banal. Let us illustrate this with an excerpt from Milan Kundera's story 'The gesture of protest against a violation of human rights'. The story centres on Brigitte, who, following an argument with her German teacher (over the absence of logic in German grammar), drives through Paris to buy a bottle of wine from Fauchon.

She wanted to park but found it impossible: rows of cars parked bumper to bumper lined the pavements for a radius of half a mile; after circling round and round for fifteen minutes, she was overcome with indignant astonishment at the total lack of space; she drove the car onto the pavement, got out and set out for the store.

As she approached the store she noticed something strange. Fauchon is a very expensive store, but on this occasion it was overrun by about 100 unemployed people all 'poorly dressed'. In Kundera's words:

 

It was a strange protest: the unemployed did not come to break anything or to threaten anyone or to shout slogans; they just wanted to embarrass the rich, and by their mere presence to spoil their appetite for wine and caviar.

Brigitte succeeded in getting her bottle of wine and returned to her car to find two policemen asking her to pay a parking fine. Brigitte started to abuse the policemen and when they pointed to the fact that the car was illegally parked and blocking the pavement, Brigitte pointed to all the rows of cars parked one behind the other:

'Can you tell me where I was supposed to park? If peopIf people are permitted to buy cars, they should also be guaranteed a place to put themle are permitted to buy cars, they should also be guaranteed a place to put them, right? You must be logical!' she shouted at them.

Kundera tells the story to focus on the following detail: at the moment when she was shouting at the policemen, Brigitte recalled the unemployed demonstrators in Fauchon's and felt a strong sense of sympathy for them: she felt united with them in a common fight. That gave her courage and she raised her voice; the policeman (hesitant, just like the women in fur coats under the gaze of the unemployed) kept repeating in an unconvincing and foolish manner words such as forbidden, prohibited, discipline, order, and in the end let her off without a fine.

Kundera tells us that during the dispute Brigitte kept rapidly shaking her head from left to right and at the same time lifting her shoulders and eyebrows. She again shakes her head from left to right when she tells the story to her father. Kundera writes: We have encountered this movement before: it expresses indignant astonishment at the fact that someone wants to deny us our most self-evident rights. Let us therefore call this the gesture of protest against a violation of human rights.

For Kundera, it is the contradiction between the French revolutionary proclamations of rights and the existence of concentration camps in Russia that triggered the relatively recent Western enthusiasm for human rights: The concept of human rights goes back some two hundred years, but it reached its greatest glory in the second half of the 1970s.

Alexander Solzhenitsyn had just been exiled from his country and his striking figure, adorned with beard and handcuffs, hypnotized Western intellectuals sick with a longing for the great destiny which had been denied them. It was only thanks to him that they started to believe, after a fifty-year delay, that in communist Russia there were concentration camps; even progressive people were now ready to admit that imprisoning someone for his opinions was not just.

And they found an excellent justification for their new attitude: Russian communists violated human rights, in spite of the fact that these rights had been gloriously proclaimed by the French Revolution itself!

And so, thanks to Solzhenitsyn, human rights once again found their place in the vocabulary of our times. I don't know a single politician who doesn't mention 10 times a day 'the fight for human rights' or 'violations of human rights'. But because people in the West are not threatened by concentration camps and are free to say and write what they want, the more the fight for human rights gains in popularity the more it loses any concrete content, becoming a kind of universal stance of everyone towards everything, a kind of energy that turns all human desires into rights. The world has become man's right and everything in it has become a right: the desire for love the right to love, the desire for rest the right to rest, the desire for friendship the right to friendship, the desire to exceed the speed limit to right to exceed the speed limit, the desire for happiness the right to happiness, the desire to publish a book the right to publish a book, the desire to shout in the street in the middle of the night the right to shout in the street. The unemployed have the right to occupy an expensive food store, the women in fur coats have the right to buy caviar, Brigitte has the right to park on the pavement and everybody, the unemployed, the women in fur coats as well as Brigitte, belongs to the same army of fighters for human rights.

Kundera's essay makes a few points about the changing world of human rights. First, for some people today, human rights are obvious, self-evident, and simply logical. There is often no challenge regarding the source of these rights or even the theoretical foundations of a rights claim. The foundations of the rights regime seem to us so solid that the act of invoking rights in itself seems to make you right.

Second, human rights are claims that automatically occur to one once one feels hard done by. A sense of injustice can breed a feeling that one has been denied one's rights. Appeals to rights as derived through irrefutable logic and entitlement are today somehow more immediately convincing than concepts such as 'social contract', 'the law of nature', or 'right reason'. Brigitte convinces the police through an appeal to a logical entitlement to a right to park on the pavement. An appeal for generosity, forgiveness, humanity, or charity would have involved a different gesture.

Third, a shared sense of grievance provides powerful succour for those claiming their 'rights'. When those of us who feel aggrieved stand together in protest we find strength through solidarity.

The law itself may be the target of the protest. Outrage at law can somehow delegitimize such laws even in the eyes of law enforcers. Obedience to the law is a habit often related to the law's reasonableness. Invoking our human rights has become a way to challenge laws that we feel are unjust (even when the law has been adopted according to the correct procedures). In fact, human rights law has now developed so that, in almost all states, national law can be challenged for its lack of conformity with human rights. As laws are repealed and struck down, there is a valid perception that the legitimacy, or even legality, of all law has to be judged against human rights law. The hierarchy between human (or constitutional) rights law and normal national law is now mirrored at the international level in the hierarchy between general international law and certain 'superior' international law prohibitions (known as 'peremptory' or 'jus cogens' norms).

Human rights operate from a higher plane and are used to criticize normal laws. Fourth, appealing to rights and ensuring respect for rights is a way of, not only achieving a fixed goal, but changing the system we live in. Human rights are important as instruments for change in the world. Human rights have moved on from the idea of citizens' individual entitlements in a national revolutionary proclamation (such as the French Declaration of 1789 or the political settlements contained in the Magna Carta of 1215).

Today, not only are human rights claims instrumental in changing national law, but human rights principles have also become relevant to designing international development assistance projects, evaluating lending conditions and project designs of the international financial institutions, facilitating transitions from communist to market economies, rebuilding war-torn societies, and combating poverty.

Fifth, for some there is an historical association between human rights and Western preoccupations, and it has therefore been tempting to dismiss those who raise the issue of human rights as divorced from the actual deprivations they are talking about. The example of a rich girl complaining about lack of parking space is of course deliberately absurd and ironic. But Kundera's story illustrates how human rights outrage can quickly be made to seem ridiculous, even hypocritical, as certain Western governments selectively sanction and support human rights violations. It would, however, be a mistake to overemphasize the association of human rights with Western hypocrisy. In fact, the modern human rights movement and the complex normative international framework have grown out of a number of transnational and widespread movements. Human rights were invoked and claimed in the contexts of anti-colonialism, anti-imperialism, anti-slavery, anti-apartheid, anti-racism, and feminist and indigenous struggles everywhere. Western governments may recently have dominated the discourse at the highest international levels, but the chanting on the ground did not necessarily take its cue from them, nor did it sing to the West's tune.

Sixth, the sense of solidarity amongst those who believe they are the victims of a human rights violation can transcend class, gender, and other distinctions. This sense of connectedness is critical to understanding the changing world of human rights. Part of the justification for the primacy of certain human rights norms in public international law is that certain acts offend the conscience of humanity. It is the sense of common humanity and shared suffering that keeps the world of human rights moving and explains the gesture of protest against a violation of human rights.

Lastly, through the eyes of Kundera and Brigitte we observe several different logics of human rights depending on culture, time, place, and knowledge. This is a European story. There are African, Asian, or American stories which would be very different. But we suggest that Kundera helps us here because he identifies this special contemporary gesture as an internal human feeling which drives the discourse. The vocabulary of human rights is not a simple revelation of a deep universal structure which we all innately understand. Nor is it a language to be learned as an adult. It is the story of struggles concerning injustice, inhumanity, and better government. And at the same time, the world of human rights provides the tools for states to pursue foreign policy goals. Unless we understand some of the driving forces behind human rights we risk missing the currents which will determine its future direction. Kundera's scepticism may jar - but it also strikes a chord. The contradiction between our commitment to the 'obvious' moral logic of human rights, and our cynicism towards certain rights claims has to be addressed head-on if we want to understand the world of human rights today.

 

Limits to rights reasoning

 

Having considered what makes human rights language resonate, let us now examine further aspects of the backlash against rights. We saw earlier how the popular media in Britain were blaming human rights for prioritizing criminals' rights over the rights of the law-abiding citizen to be safe and free from crime.

In the United States, emphasis on rights is sometimes seen as undermining participatory politics. Mary Anne Glen don's book Rights Talk: The Impoverishment of Political Discourse asks a series of questions about whether the elevation of rights has been at the expense of citizens taking responsibility for a vital political life. The prevailing consensus about the goodness of rights widespread, though it may be, is thin and brittle. In truth, there is very little argument regarding which needs, goods, interests, or values should be characterized as 'rights,' or concerning what should be done when, as is usually the case, various rights are in tension or collision with one another. Occasions for conflict among rights multiply as catalogs of rights grow longer. If some rights are more important than others, and if a rather small group of rights is of especially high importance, then an ever expanding list of rights may well trivialize this essential core without materially advancing the proliferating causes that have been reconceptualized as involving rights.

But perhaps the problem Glendon wants to address is more closely connected, not so much to the need to protect the value of core rights against devaluation, but to the way that rights are perceived by some as absolutes. The penchant for seeing rights as winning ploys for arguments about freedom is nicely illustrated by Glendon:

The exaggerated absoluteness of our American rights rhetoric is closely bound up with its other distinctive traits - a near silence concerning responsibility, and a tendency to envision the rights-bearer as a lone autonomous individual. Thus, for example, those who contest the legitimacy of mandatory automobile seat-belt or motor-cycle helmet laws frequently say: 'It's my body and I have the right to do as I please with it.' In this shibboleth, the old horse of property is harnessed to the service of unlimited liberty. The implication is that no one else is affected by my exercise of the individual rights in question. This way of thinking and speaking ignores the fact that it is a rare driver, passenger, or biker who does not have a child, or a spouse, or a parent. It glosses over the likelihood that if the rights-bearer comes to grief, the cost of his medical treatment, or rehabilitation, or long-term care will be spread among many others. The independent individualist, helmet less and free on the open road, becomes the most dependent of individuals in the spinal injury ward. In the face of such facts, why does our rhetoric of rights so often shut out relationship and responsibility, along with reality?

This is a reminder of the fact that not everyone agrees that emphasizing individual rights as a way to organize society is the best way to ensure a fair distribution of opportunities, wealth, and development. Some would prefer to emphasize the need to create a sense of responsibility and community among individuals. Others, as we started to see with Marx, believe that focusing on rights dissuades us from radical changes to the status quo, redistributive policies, and collective arrangements for the general good (and especially for the least well off).

But we have slipped back into talking about 'rights' rather than the specific category 'human rights'. This is a recurring challenge in an introduction to human rights: the origins of contemporary human rights lie in the natural, constitutional, and political rights discourses that emerged in the Enlightenment and found their way into the constitutions of the 18th and 19th centuries. Let us therefore try to disentangle modern human rights from all this 'rights talk'.

 

'An Essay on Rights' by Mark Tushnet

 

 

People need food and shelter right now, and demanding that those needs be satisfied - whether or not satisfying them can today persuasively be characterized as enforcing a right - strikes me as more likely to succeed than claiming that existing rights to food and shelter must be enforced.

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