Each generation of “human rights” has its origins in revolutionary struggle, and that is why they remain, unlike black-letter law, so powerful and so scandalous.
David Renton’s thoughtful and trenchant article in SL64 [Ed: republished 18 Nov 2013 on CLT] has done us all a great service, opening up questions of crucial importance to the Haldane Society. That is because we are socialists, committed to solidarity in resistance to the depredations of capital, and to fighting for its abolition. We are not simply human rights defenders, though many of us are active in a host of human rights organisations, for example the Bar Human Rights Committee and the Solicitors International Human Rights Group.
What then should be our understanding of the discourse of human rights, which has become something like a secular religion or substitute for religion? And the practice of human rights protection often looks worryingly like Eurocentrism; European standards against US power politics or geopolitical mayhem. That was the issue in the notorious Kadi judgment of 2008, in which the European Court of Justice (ECJ) annulled the decision, taken initially by the UN Security Council (as the Sanctions Committee) placing Mr Kadi on the terrorist list. The ECJ did so in the light of “the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 6 (1) EU as a foundation of the Union.” That is, European principles.
And so far as the UK is concerned, human rights are liberal rights, the right of the individual to dignity. In reality, even the Tories have no problem with the Council of Europe’s “three pillars”; the rule of law, multi-party democracy, and the protection of individual human rights. As Adam Wagner wrote on 3 September 2013 on the UK Human Rights Blog, under the heading ‘Why we would be mad to leave our European Convention on Human Rights‘:
It cannot be overstated how fundamentally British the ECHR is. The included rights were based largely on those developed by the British common law, reaching back to the 1215 Magna Carta and the 1689 Bill of Rights. After the Second World War, imposing traditional British values on foreign legal systems was seen as part of the victor’s spoils. British politicians “made a huge contribution to the drafting”, said Lord Bingham, “reflect[ing] values which we in this country took for granted and which had, we thought, been vindicated by our military triumph”.
British politicians were instrumental in drafting the ECHR, building on the 1948 Universal Declaration of Human Rights and older British common law liberties. Sir David Maxwell-Fyfe, a Conservative politician and lawyer, drafted much of it after he had joined the European Movement on the invitation of Winston Churchill.
This conception of human rights has no place for collective rights, for example the rights of the working class, or even of trade unions. The UK, like other common law countries, refuses to have anything to do with social and economic rights, refuses to ratify the Council of Europe’s Revised Social Charter with its system of collective (not individual) complaints by trade unions and NGOs to the European Committee of Social Rights, or the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The jurisprudence of the European Committee of Social Rights, with many decided cases, can be found at www.coe.int.
David Renton is not a liberal; he is a revolutionary socialist. He has made a fine reputation as a lawyer fighting for workers’ rights, and is well known for his 2012 Struck out: Why Employment Tribunals fail workers and what can be done (Pluto Press).
What does he say? He writes that, drawing on Marx, a useful approach to the problem of rights in the present situation
… could be to disregard temporarily the search for further and better lists of rights in order to focus on their revolutionary kernel: i.e., the right to a just outcome (my emphasis, BB). Part of establishing a fair outcome depends on a system of expropriation.
There is no disagreement between David Renton and me as concerns the need for expropriation.
But we differ as to what Marx actually wrote. Indeed, Marx and Engels wrote very little on law, and even less on what a future communist society might look like. David Renton asserts that after Marx’s acerbic critique of the rights contained in the French and American declarations of the late 18th century, essentially the same rights as are contained in the ECHR, in 1844 in his On the Jewish Question: “Over the next forty years Marx and Engels were to sharpen this critique of rights and develop a richer sense of how an alternative society might work.”
In actual fact, Marx and Engels affirmed the opposite, in 1845 in The German Ideology. They wrote that:
Empirically, communism is only possible as the act of the dominant peoples “all at once” and simultaneously, which presupposes the universal development of productive forces and the world intercourse bound up with communism.
And continued with one of my favourite passages from their works:
Communism is for us not a state of affairs which is to be established, an ideal to which reality [will] have to adjust itself. We call communism the real movement which abolishes the present state of things. The conditions of this movement result from the premises now in existence. (their emphases)
Thus, they were and remained perfectly clear that communism could only come about once abundance (“the universal development of the productive forces”) had been established all over the world. They refrained from providing any blueprint for future society. Except that is for another famous passage in the same work:
For as soon as the distribution of labour comes into being, each man has a particular, exclusive sphere of activity, which is forced upon him and from which he cannot escape. He is a hunter, a fisherman, a herdsman, or a critical critic, and must remain so if he does not want to lose his means of livelihood; while in communist society, where nobody has one exclusive sphere of activity but each can become accomplished in any branch he wishes, society regulates the general production and thus makes it possible for me to do one thing today and another tomorrow, to hunt in the morning, fish in the afternoon, rear cattle in the evening, criticise after dinner, just as I have a mind, without ever becoming hunter, fisherman, herdsman or critic.
Which is very far from being a serious vision of the future, but is instead part of a comment on the present.
Furthermore, their Manifesto of the Communist Party of 1848 says nothing about a future communist society. Instead, the final section, Part IV, begins:
The Communists fight for the attainment of the immediate aims, for the enforcement of the momentary interests of the working class; but in the movement of the present, they also represent and take care of the future of that movement.
Communists, therefore, struggle on the side of the working class in the present day. And Marx and Engels go on to specify their attitude to existing parties in the various European countries. The class struggle has not gone away, far from it, and now intensifies all over the world. In passing, it is of great interest that two recent American block-buster films, Hunger Games and Elysium, both depict bitter and bloody class struggles in the future.
To return to On the Jewish Question, Marx condemned the bourgeois rights of the Declarations, asserting that
… the so-called rights of man, the droits de l’homme as distinct from the droits du citoyen, are nothing but the rights of a member of civil society — i.e., the rights of egoistic man, of man separated from other men and from the community.
That is, the man who wants to be left alone by the state, principally to make money.
David Renton then, quite properly, turns his attention to Marx’s 1875, thirty years later, Critique of the Gotha Programme — that is, the programme drafted by Lasalle for the new mass workers’ party, the German Social Democratic Party, an explicitly socialist document.
I disagree with David Renton’s interpretation of Marx’s critique. The provision which attracted Marx’s merciless criticism was
3. The emancipation of labour demands the promotion of the instruments of labour to the common property of society and the co-operative regulation of the total labour, with a fair distribution of the proceeds of labour.
For Marx, this necessarily implies “equal right”, that is, bourgeois right. Under capitalism, the worker receives remuneration according to the amount or quality of work done. But, Marx insists, human beings are not equal at all, starting with their “… unequal individual endowment, and thus productive capacity”, that is, physical and mental endowment. One worker is brighter than another, stronger than another. And, Marx continues:
… one worker is married, another is not; one has more children than another, and so on and so forth. Thus, with an equal performance of labour, and hence an equal in the social consumption fund, one will in fact receive more than another, one will be richer than another, and so on. To avoid all these defects, right, instead of being equal, would have to be unequal.
It is not, as David Renton suggests, that for Marx “… all universal rights … result in unequal treatment”. The point is that human beings are unequally endowed, and have unequal personal lives. As Marx makes clear, his famous slogan “From each according to his ability, to each according to his need”, can only be realised “… after the productive forces have also increased” and “all the springs of co-operative wealth flow more abundantly.” We now know, as Marx and Engels did not, that there are severe ecological barriers to achieving abundance.
To sum up, Marx and Engels insisted that communists fight in the present, we cannot predict the future, and of course there is no certainty that the working class will win.
Marx and Engels both drew deeply from the radical materialist Baruch Spinoza (1632–1677), for whom all transcendence, anthropocentrism, and teleology were anathema. In 1841 Marx made extensive transcripts, in Latin, from Spinoza, pages 233 to 276 in Volume IV/1 (1976) of the Marx/Engels Gesamtausgabe, the MEGA which continues in production. And in the introduction to his Dialectics of Nature, written in 1883, Engels wrote:
It is an eternal cycle in which matter moves … a cycle in which every finite mode of existence of matte r… is equally transient, and wherein nothing is eternal but eternally changing, eternally moving matter and the laws according to which it moves and changes. But however often, and however relentlessly, this cycle is completed in time and space … we have the certainty that matter remains eternally the same in all its transformations, that none of its attributes can ever be lost, and therefore, also, that with the same iron necessity that it will exterminate on the earth its highest creation, the thinking mind, it must somewhere else and at another time again produce it.
This is Spinoza. One can be quite sure that if the earthly paradise were ever achieved, that would be the moment at which a passing asteroid would eliminate the planet and all its inhabitants, workers and capitalists alike. Something like Lars von Trier’s film Melancholia.
To return to the question of rights. I think that a strong case can be made for the proposition that each generation of “human rights” has its origins in revolutionary struggle, and that is why they remain, unlike black-letter law, so powerful and so scandalous. The first generation of civil and political rights, now enshrined in the ECHR, had their origin in the French and American Revolutions, abhorred by Edmund Burke, the father of English conservatism. We should take our stand with Burke’s enemy, Tom Paine, whose Rights of Man and Common Sense still read as a full frontal attack on contemporary English political corruption. The second generation, social and economic rights, were first treated as legal rights in the International Labour Organisation which was created in 1919 as a direct response to the October Revolution of 1917. Haldane’s John Hendy and Keith Ewing have shown how the UK shamelessly violates its ILO obligations. And the key right of the third generation, the right of peoples to self-determination, was first promoted by Marx, Engels and Lenin, and came to fruition in the anti-colonial struggles after WW II. Self-determination struggles continue for the Irish, Basques, Kurds, Palestinians, Tamils (see SL53, The right to self-determination) … That, for me, is the “revolutionary kernel” of rights.
Bill Bowring teaches law at Birkbeck College, is a barrister practising at the European Court of Human Rights, and is International Secretary of the Haldane Society.