9 Conclusion: In praise of human rights nihilism [T]he highest values are losing their value (Nietzsche) I started this book because I found the idea of human rights both attractive and unconvincing, if not positively dangerous This ambivalence drove me to ask: can we/should we believe in human rights? The last chapter has contended that different people will answer this question differently Natural scholars, who regard human rights as inherent and inalienable entitlements, will respond: of course, we must believe in human rights! Protest scholars will give the same answer, but for a different reason: to them, human rights is the best language we have to set human beings free of oppression Deliberative scholars not think the issue is a matter of faith: they look at human rights as good political principles which have been agreed in some circles and hopefully will command greater and greater commitment Finally, discourse scholars are sceptical: in their view the hype which surrounds human rights talk is misplaced; intellectually untenable and possibly morally counterproductive in inhibiting the imagination of more emancipatory projects I have come to the conclusion that I am mostly a discourse scholar At the end of this book, my personal ambivalence towards human rights has not subsided I am clearer, however, as to why I am not as enthused by the concept as others are, as well as to the logic of my position The appeal of the critique(s) of human rights As far as I am concerned, a realist, utilitarian, Marxian, particularist and feminist critique of human rights is not only legitimate but also called for To restrict these critiques to the (admittedly reductive) understandings which this book has given them, I have shown how human rights remain enmeshed in state interests; allow us to evade important moral dilemmas which must be confronted; fail to include in their ambit everyone irrespective of social position; trumpet universal truths which not hold in the face of social diversity but nonetheless stand because of the prevalent balance of power; and ignore women’s concerns without even realizing it 272 Conclusion These critiques are intimately linked, even if their presentation in different chapters and their one-line summary in the previous paragraph could suggest otherwise From my perspective, the critiques overlap so much that they are virtually the same thing.1 This is so even though I recognize that each critique can be seen as different from any other and that there are many different ways of being a realist, a utilitarian, a Marxist, a particularist or a feminist What I am saying is that it is possible to feel one is a realist because one is also a utilitarian, a Marxist, a particularlist and a feminist – and mutatis mutandis for each of the other four terms.2 I am not the first one to allude to the idea that these individual critiques feed off each other For example, in The Twenty Years’ Crisis (already quoted in Chapter 3),3 E H Carr chiefly presented himself as a ‘realist’, a label which stuck as he later became recognized as a precursor of the realist movement which developed in international relations after World War II For him, ‘[t]he outstanding achievement of modern realism ha[d] been to reveal the relative and pragmatic character of thought itself ’.4 Such ‘relativism’ or ‘particularism’ regularly surfaced in the book, for example in the assertion that ‘“impartiality” is a meaningless concept where there is no common ground at all between contending [worlds]’.5 Carr also repeatedly acknowledged his debt to Marxism.6 While he violently disagreed with Bentham7 and simply did not think about feminism, his work nonetheless shows how the five critiques reviewed in this book could be seen to spring from the same source To me, they represent different ways of getting at the same thing Challenging the orthodoxy: In Nietzsche’s footsteps What unites these critiques, at least in those variants of them which I find most interesting, is a rejection of the human rights credo They can all be used to take issue with the Kantian affirmation, on which the human rights orthodoxy is based, that ‘practical reason’ can guide us in moral matters By accepting that such a possibility is a delusion, they display what could be characterized as a Nietzschean perspective.8 Long shunned in courses on ethics, Friedrich Nietzsche (1844–1900) is now regarded as an essential figure in the history of Western philosophy.9 He is popularly known for having attacked ‘almost everything that [was] considered sacred: God, truth, morality, equality, democracy, and most other modern values’.10 His name is forever associated with ‘nihilism’, a word which he himself used in many different ways,11 but which has at its core a reference to ‘the devaluation of the uppermost values’ In Nietzsche’s words: What does Nihilism mean? – That the highest values devaluate themselves There is no bourne The aim is lacking; ‘why?’ finds no answer.12 273 274 Who Believes in Human Rights? Why this devaluation? Johan Goudsblom explains its occurence through the following two questions: ‘Have we not learned, as members of a civilized society [inverted commas omitted in the original!], that we must be prepared to discuss and examine the reason why we act the way we do? And yet we not find, time and time again, that not a single argument with which we may wish to justify our judgments and decisions can withstand critical analysis?’13 This is the dilemma from which nihilism emerges According to Nietzsche, Alan White remarks, ‘thoughtful human beings [would] of necessity be nihilists – and the thoughtless as well, although they [would be] less likely to know it’.14 Nihilism is often misunderstood as entailing a rejection of morality This is not the best way of understanding Nietzsche’s philosophy To quote Goudsblom again: [Nietzsche] felt summoned to a task which no one had yet dared to undertake: the investigation of morality as a problem He writes that the real moralist can be distinguished from the puritan in that the former dares to make a problem of morality If we not wish to lapse into new moral prejudices, then we have to take up a position outside morality, somewhere beyond good and evil [A] rightminded philosopher does not subject himself to the dictates of morality He plunges the vivisectionist’s knife into the virtues of his time The moral distinction between lies and sacrosanct lies is alien to him; he discriminates between truth and lies – and he goes for the truth.15 In fact, Nietzsche, especially towards the end of his life, was calling for new values to be created, especially through the interpretation of old values in a life-affirming way Many approach him today as an ‘impassioned and dedicated moralist’.16 In the words of Simon May, for example, ‘Nietzsche is a thinker who not only repudiates traditional conceptions of god, guilt, asceticism, pity, and truthfulness, but also retains a severe ethic of discipline, conscience, “self-creation”, generosity, and honesty.’17 Having said this, Nietzsche obviously does not provide any philosophical, moral or intellectual recipe which could be followed step by step This is in line with the fact that he ‘argues for a plurality of perspectives, a plurality of “truths” with none of them the “true” one’.18 As Robert Solomon usefully remarks, this is not that such ‘perspectivism [amounts to] the view that an opinion is as good as every other but rather that an opinion is only as good as its author, as meaningful as the thought that goes into it and the energy and sincerity that motivate it’.19 Why be afraid of human rights nihilism? ‘Nihilistic thought seeks to show that metaphysical “truths” simply express the subjective values of a given individual or social group, not the immutable, unchanging essence of either the divine, human or natural world.’20 This, of Conclusion course, is exactly what I have tried to show in respect of human rights orthodoxy Human rights are most commonly represented as given – inherent and inalienable Against this stance, I have intimated that human rights is a ‘system of persuasion’, a ‘kind of rhetoric’, an ‘expression of the will to power – even to domination – of those making the [human rights] truth-claims over those who are being addressed by them’.21 While I am not the only one to take this stance, I am in a minority My view is that human rights nihilism is healthy and necessary – even if it seems to open an abyss It is true that it immediately gives rise to the question: what will happen and what should you if you let go of human rights?22 Can you even let go of the concept? I certainly have not dared to, and continue to defend human rights as ‘strategically useful’ What would Nietzsche have said? I am not sure, but I am clear that he would have looked for a re-evaluation of the devalued values In a different but ultimately similar way, Carr the realist called for a ‘combination of utopia and reality’.23 He noted that realism is liable to result in ‘the sterilization of thought and the negation of action’ when it assumes a purely ‘critical and cynical aspect’.24 In his view, realism’s barrenness needs to be corrected by its contrary, utopianism.25 In his words, [T]he realist, in denying any a priori quality to political [values], and in proving them to be rooted in practice, falls easily into a determinism [He] runs the risk of treating purpose merely as the mechanical product of other facts If we recognize that this mechanization is untenable and intolerable, then we must recognize that theory, as it develops out of practice and develops into practice, plays its own transforming role in the process.26 At the end of this book, I have no programmatic statement to make about human rights, the political process, justice or human life I not see this as a weakness I feel the more justified in my ‘nihilist’ critique as I am writing these lines in July 2005, days after four bombs exploded in London ‘Our values and our way of life’ are being celebrated by Prime Minister Tony Blair and others as if what these notions entail were clear and ‘we’ were unequivocally on the side of ‘good’ against ‘evil’ But what ‘we hold dear’, to quote another phrase used by Blair, cannot be simplified to a glorified mantra of inherent, universal and inalienable human rights – which fall so short, in practice, of what they proclaim Needless to say, this is said with no sympathy either towards terrorism – from whichever direction it emanates, with or without the seal of state approval – or towards the erosion of civil liberties I was privileged to teach for a few years at the Vrije Universiteit Brussel LLM students who came from the four corners of the world The course aimed at making them think about what place was left to non-Western legal perspectives in a global world dominated by ‘the West’ The students reported they found the course intellectually challenging and emotionally intense I used to tell them that 275 276 Who Believes in Human Rights? I was hoping that they would remember our class discussions when, in the future, they might be in a position to make decisions which matter In the same way, this study does not aim at revolutionizing the world If it can influence readers, especially but not only those in the orthodoxy, to think twice before they assert their confidence in human rights, it will have achieved its political aim Notes Let me repeat that other critiques of human rights which have not been explicitly discussed in this book, for example inspired by communitarianism and critical race theory, could easily have been added to this study In a sense, they also amount to ‘the same thing’ Thus one feels a utilitarian because one is also a realist, a Marxist, a particularist and a feminist, etc For a challenging utilitarian morality which goes against the grain of our moral ‘intuitions’, see Jonathan Glover, Causing Death and Saving Lives (London: Penguin, 1990), esp Chapter 20 E H Carr, The Twenty Years’ Crisis, 1919–1939: An Introduction to the Study of International Relations (Basingstoke: Palgrave, 2001) Ibid., at 65, emphasis added Ibid., at 181 This passage refers to the impossibility of finding a ‘single impartial judge in the whole world [when, in the words of a representative of the Soviet Government in 1922,] there was not one world, but two, a Soviet world and a non-Soviet world’: ibid ‘Marx’ or ‘Marxism’ appear no less than 24 times in the index of Twenty Years Ibid., at 26 and 28 For the way in which Carr’s life came to represent ‘the unmaking of a liberal’, see the introduction by Michael Cox to the 2001 re-edition of Twenty Years, at xiv-xix Admittedly, the debate as to whether Nietzsche’s work is antagonistic to the Western philosophical tradition or is in direct continuation with it is not closed: Robert C Solomon, ‘Introduction: Reading Nietzsche’, in Robert C Solomon and Kathleen M Higgins (eds.), Reading Nietzsche (New York: Oxford University Press, 1988) 3–12, at 11 Solomon, ‘Introduction’, at 10 Maudemarie Clark, ‘Nietzsche, Friedrich (1844–1900)’, Concise Routledge Encyclopedia of Philosophy (London: Routledge, 2000) 630–1, at 630 11 Thus, he distinguished between ‘active’ and ‘passive’, ‘theoretical’ and ‘practical’ and ‘complete’ and ‘incomplete’ nihilism For other forms of nihilism to which Nietzsche referred in his work, see Alan White, Within Nietzsche’s Labyrinth (New York: Routledge, 1990), at 15 12 Friedrich Nietzsche, The Will to Power, transl by Walter Kaufmann and R J Hollingdale (London: Weidenfeld and Nicolson, 1967), at 13 Johan Goudsblom, Nihilism and Culture (Oxford: Blackwell, 1980), at x 14 White, Nietzsche’s Labyrinth, at 15 15 Goudsblom, Nihilism, at 24, emphasis in the original, references omitted 16 Solomon, ‘Introduction’, at 17 Simon May, Nietzsche’s Ethics and his War on ‘Morality’ (Oxford: Clarendon, 1999), at v For an assessment which some would find more balanced, see Lester H Hunt, Conclusion 18 19 20 21 22 23 24 25 26 Nietzsche and the Origin of Virtue (London: Routledge, 1991): ‘It is clear to me that there are certain Nietzschean ideas which I am committed to denying These include his devaluation of the intellect, his attempt to formulate an ethic which is entirely based on a conception of character, and his denial (at least in certain moods) of the value of spontaneous order But there are other ideas of his – including his relativism, his experimentalism, and his emphasis on the role the passions play in virtue – which seem to me valuable and important’: ibid at xvii Solomon, ‘Introduction’, at Solomon, ‘Introduction’, at 10 Jon R Snyder, ‘Translator’s Introduction’, in Gianni Vattimo, The End of Modernity: Nihilism and Hermeneutics in Post-Modern Culture (Cambridge: Polity Press, 1988) vi-lviii, at xii Ibid But conversely, one could ask: what happens if we keep holding onto human rights Wendy Brown remarks that ‘what rights promise may be as elusive, as otherworldly, as unattainable as that offered by any other political myth’ though we tend not to see this by mistakenly thinking of rights as ‘concrete, immediate, and available’: Wendy Brown, ‘Rights and identity in late modernity: Revisiting the “Jewish Question”’, in Austin Sarat and Thomas R Kearns (eds.), Identities, Politics and Rights (Ann Arbor: University of Michigan Press, 1997) 85–130, at 123 Carr, Twenty Years, at 14 Ibid., at 10 Ibid., at 10 Ibid., at 13–14 277 Appendix 1: The Convention: Selected Provisions The European Convention for the Protection of Human Rights and Fundamental Freedoms Article (obligation to respect human rights) The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention Section I (rights and freedoms) Article (right to life) Everyone’s right to life shall be protected by law No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a in defence of any person from unlawful violence; b in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c in action lawfully taken for the purpose of quelling a riot or insurrection Article (prohibition of torture) No one shall be subjected to torture or to inhuman or degrading treatment or punishment Article (prohibition of slavery) No one shall be held in slavery or servitude No one shall be required to perform forced or compulsory labour For the purpose of this article the term ‘forced or compulsory labour’ shall not include: a any work required to be done in the ordinary course of detention imposed according to the provisions of Article of this Convention or during conditional release from such detention; 278 Appendix b any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; c any service exacted in case of an emergency or calamity threatening the life or well-being of the community; d any work or service which forms part of normal civic obligations Article (right to liberty and security) Everyone has the right to liberty and security of person No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: a the lawful detention of a person after conviction by a competent court; b the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; c the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; d the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial Release may be conditioned by guarantees to appear for trial Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation Article (fair trial) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law Judgment shall be 279 280 Appendices pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law Everyone charged with a criminal offence has the following minimum rights: a to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b to have adequate time and facilities for the preparation of his defence; c to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e to have the free assistance of an interpreter if he cannot understand or speak the language used in court Article (no punishment without law) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations Article (privacy and family life) Everyone has the right to respect for his private and family life, his home and his correspondence There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others Article (freedom of thought, conscience and religion) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance Appendix Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others Article 10 (freedom of expression) Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary Article 11 (freedom of assembly and association) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State Article 12 (right to marry) Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right Article 13 (right to an effective remedy) Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity Article 14 (prohibition of discrimination) The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status 281 282 Appendices Article 15 (derogation in time of national emergency) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, (paragraph 1) and shall be made under this provision Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed Protocol No to the European Convention for the Protection of Human Rights and Fundamental Freedoms Article (Protection of property) Every natural or legal person is entitled to the peaceful enjoyment of his possessions No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties Appendix 2: Voting pattern of individual judges in cases discussed in Chapter Chapter discusses selected Strasbourg case law from a feminist perspective As the text makes clear, the reasoning followed either by the Court or by individual judges in these cases often has nothing to with feminist concerns It would therefore be unwarranted to assume that there exists a direct connection between a vote of violation and a vote in favour of women, let alone a feminist vote Nonetheless, with the exception of the SW and Bowman cases, which appear in intermediate grey shading in Table below, a vote of violation (‘V’ in the table) is generally closer to a feminist position than a vote of non-violation (‘NV’) ‘I’ stands for inadmissible The four individual votes which appear in darkly shaded boxes are those quoted in Chapter either especially approvingly (V) or disapprovingly (NV) In an earlier draft of the table, names of male judges appeared in blue, those of women in pink This was with a nod to a well-entrenched tradition of dressing the two sexes in different colours and with the view of emphasizing that male judges should not be considered the norm and are no more neutral than women judges Reluctantly, but with consideration to publication costs, the names of female judges are now simply followed by an (F); corresponding (M)s have been omitted so as not to overburden the table The table omits two cases discussed at some length in the text: Karaduman, declared inadmissible by the Commission, and Dahlab, declared inadmissible by the Court by an undisclosed majority 284 Appendices Table Voting pattern of judges ... unchanging essence of either the divine, human or natural world.’20 This, of Conclusion course, is exactly what I have tried to show in respect of human rights orthodoxy Human rights are most commonly... given – inherent and inalienable Against this stance, I have intimated that human rights is a ‘system of persuasion’, a ‘kind of rhetoric’, an ‘expression of the will to power – even to domination... according to law Everyone charged with a criminal offence has the following minimum rights: a to be informed promptly, in a language which he understands and in detail, of the nature and cause of