The first thing that Straw was keen to stress (and something that is quite telling about his attitude towards the Human Rights Act (HRA)) was that historically and culturally Britain is a country that has been at the heart of the human rights project. He rightly pointed out that British lawyers were at the heart of developing the European Convention on Human Rights (ECHR). Further, he put forward the position that 'human rights' are a tradition that has been rooted in British life since the Magna Carta. Whilst I agree with the latter point as far as it goes I'm pretty sceptical about it. Although it seems clear that Britain's rights tradition does coincide with the content of the ECHR it certainly does not have a content of positively enumerating rights and then 'balancing' these rights with exceptions. Rather, the British tradition of 'liberty' is of one where one can do whatever is not forbidden. However, the effort to 'domesticate' human rights is one that speaks volumes about Straw's position, clearly Straw is attempted to combat the typical accusations of the press the the HRA and the ECHR are alien impositions foisted on Britain by an ever-expanding Europe.
However, as was rather predictable, Straw begins to move to our present 'context'. For Straw the post-Cold War situation has been marked with the growth of an 'enabling state' and the spread of democracy to most of Europe. But simultaneously with this there still remain a number of authoritarian states and (dum dum dum) the growth of an international terrorist movement that operates outsides the bounds of ethics and leality. He further noted that this terrorism was qualitatively different from previous forms of terrorism because:
- It is truly international, with non-national terrorists operating from foreign states with foreign backing
- The terrorists have access to large and powerful weapons (biological, chemical, nuclear etc.)
- The aims and scope of the terrorists are very different from preceding forms of terrorism
Straw proceeded at this point to utterly demolish the Tory analysis of the Human Rights Act, this was awesome and very little needs to be said on it. The most interesting part of Straw's lecture came in his amateur sociological examination of modern capitalism. Basically, Straw argued that there has been much deeper structural changes than just 9/11 which influence Britain's culture of rights; basically he pinpoints two key features:
- There has been an increase in the heterogenousness of the British population and he links this to the problem of communities 'separating' out etc., obviously this would lead to a decline in a national/collective/public life
- Globalisation has made people much less deferential, independent and empowered; but this has also turned people into 'consumers' peoples' primary identity therefore is not as the citizen but consumer
Whilst this is all very interesting I really don't see why we need to tie it in with globalisation. The critique that Straw advanced is one that has been advanced countless times pre-'globalisation', in fact here is a rather famous analysis which bears remarkable ressemblence to Straw's:
It is puzzling enough that a people which is just beginning toAnd who made this critique? Why it was Karl Marx in his On the Jewish Question. The basic structure of this critique has been voiced by conservatives, liberals etc. What I would argue here is that the vision Straw presents to us - of civil society as a collection of egoistic individuals whose main form of contact is through clashing rights - is one which is constantly reproduced by capitalist society. The whole point is that this can't really be overcome by simply cementing new political forms over it, since these forms don't tend to touch the social relations which produce certain forms of social life and since - as Marx notes - politics is conceived only as a means of guaranteeing or affecting one's private, egostic sphere.
liberate itself, to tear down all the barriers between its various sections,
and to establish a political community, that such a people solemnly proclaims
(Declaration of 1791) the rights of egoistic man separated from his fellow
men and from the community, and that indeed it repeats this proclamation
at a moment when only the most heroic devotion can save the nation, and
is therefore imperatively called for, at a moment when the sacrifice of
all the interest of civil society must be the order of the day, and egoism
must be punished as a crime. (Declaration of the Rights of Man, etc., of
1793.) This fact becomes still more puzzling when we see that the political
emancipators go so far as to reduce citizenship, and the political community,
to a mere means for maintaining these so-called rights of man, that, therefore,
the citoyen is declared to be the servant of egotistic homme, that the sphere
in which man acts as a communal being is degraded to a level below the
sphere in which he acts as a partial being, and that, finally, it is not
man as citoyen, but man as private individual [bourgeois] who is considered
to be the essential and true man.
I would further argue in this vein that actually the whole idea of rights-based politics and rights-culture presupposes this state of affairs. This is where Straw really screws up in my view, the idea of rights being 'commoditised' (arrrgh!!!!) really seems to miss the point that the very right-form is grounded in the notion of an egoistic, individual man with an inviolable area of space, that is to say that the right-form is bound up with the commodity form:
None of the so-called rights of man, therefore, go beyond egoisticAll of this means that Straw's solution - reminding people that rights also entail duties towards others - is kind of lame. I mean, he makes a really interesting critique (or at least I read him as doing so) but simply can't go beyond the right's based framework. But the point is that unless you go beyond the rights-based framework you can't possibly transcend the notion of man as a 'consumer' as the defining characteristic of life. Inga Markovits traces this quite well in her examination of the differnce between 'bourgeois' and 'socialist' rights, as she first argues:
man, beyond man as a member of civil society – that is, an individual
withdrawn into himself, into the confines of his private interests and
private caprice, and separated from the community. In the rights of man,
he is far from being conceived as a species-being; on the contrary, species-like
itself, society, appears as a framework external to the individuals, as
a restriction of their original independence. The sole bond holding them
together it natural necessity, need and private interest, the preservation
of their property and their egoistic selves.
As individual entitlements, bourgeois rights conferShe then fleshes out this conception arguing that it results in a focus on dispute, precision and individualism. This critique dovetails nicely with Marx's, and seems a hammer in the coffin for Straw's analysis.
autonomy in a limited area, which then can be exercised at the discretion of
the rightholder. In a way, all bourgeois rights are modelled after property
rights: they map out territory, set up fences against prospective intruders,
or, to quote Marx, they delineate the elbow room of the individual capitalist.
(Socialist vs. Bourgeois Rights: An East-West Comparison; (1978) 45 University of Chicago Law Review 612-636 at 614)
So, ultimately, my real issue with this bit of Straw's speech was that he tried to present this phenomenon as something 'new', whereas it is one which he plagued capitalism since its outset. Further, his proposed solution is uniformly rubbish, and in facts would result in no change whatsover. Though actually this is something Straw seems to love to do. As a lawyer he oftens realises what the law is but then proposes some change to the law which is not a change at all.
Ok, I've written way too much, and it's all got rather rambling, but on the plus side, at least it's not about RESPECT!
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