Human Rights: Political Not Metaphysical

[Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School and the author of Humanity’s Law (Oxford University Press 2011).]

Sam Moyn, writing in this Sunday’s New York Times (“Human Rights, Not So Pure Anymore”)
claims the current relationship of human rights is compromised, and nostalgizes the past. As he puts it:

[T]he whole idea of human rights has lost some of its romantic appeal and moral purity. Today the issue of human rights is no longer just about limiting power in the global arena but also about how to deploy it.

Was human rights ideology ever disconnected from political struggle in the way that Moyn suggests?

For Moyn the heroic phase of the history of human rights is the time during the Cold War where human rights were a moral source of resistance by courageous dissidents to illegitimate or tyrannical state power. Yet as the Charter 77 movement illustrates, even in this period human rights were an impetus not just for resistance but for political reconstruction, providing a foundation of legitimacy for post-commmunist regimes. This has had important and salutary consequences for the shape of power in those post-communist countries where human rights not nationalism or religion have been the foundation for the new order (Moyn’s article is oddly accompanied by a photo of Solzhenitsyn whose anti-commmunism was of course based in reactionary religious nationalism not human rights thinking.)

The same has been true of the interaction between human rights discourse and political struggle against apartheid: human rights played an essential role not only in resistance to apartheid but in shaping the political transition in South Africa. Human rights thinking provided the central inspiration for the new South African constitutional order, where international law is an integral part of domestic constitutional norms.

Contrary to Moyn the experience of the role that human rights have played not just in resistance but in democratic state-building and political transition has only enhanced their moral force, just as the internet and social media have increased the ability of non-state actors to deploy human rights ideas as a unifying discourse. Thus recently, human rights-based claims were central to the demands for political change in the Arab Spring. Which is not to say that human rights has triumphed over competing transformative ideologies based in religion and/or nationalism.

In a passage that seems to have been written before the 2007-2010 economic and financial crisis and its aftermath, Moyn suggests: “for some dreamers, human rights mean ensuring citizen welfare in the form of economic justice both within and among states. Yet the idea of international human rights has become prominent in an era when many governments are turning away form the welfare state in the name of the free market”.

This elides the fact that the free market has been tarnished by recent events, and the reality that new high-growth nations such as Brazil have combined export-oriented development policies with expanded social welfare and activist industrial policy. Moreover, social and economic rights have altered the terms of important aspects of debates on globalization: access to medicines and intellectual property is one example and agricultural trade and food security is another.