Jack Straw, Human Rights and the 21st Century

Just heard a speech by Jack Straw on 'Human Rights in the 21st Century', although by virtue of his position as politico the talk was of course slightly incoherent it was nonetheless interesting for several reasons. Firstly, the speech has to be read with the recent government announcement on a 'Bill of Rights and Duties', secondly the speech's tone and structure give us some idea of the general government position on rights, thirdly I think Straw's inchoate theoretical probings actually provide a useful foil for people like me. So - seeing as I had nothing else to do - I thought I'd give a rundown of what Straw said and my own opinions on the matter.

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

Now, I will refrain from immediately commenting upon this particular assesment of the threat of international terrorism, at least until I discuss the relevance that Straw attributes to this. What is particularly interesting is that Straw (unlike certain members of the Government and the Opposition) doesn't seem to think that the HRA is inadequate in dealing with terrorism. In fact Straw thinks the HRA is absolutely necessary in order to 'establish and marshall the lawful bounds of our [the government's] response [to terrorism]'. Straw did seem to have some problems with particular decisions by the court - particularly concerning deporting people to places where there is a real chance they will be tortured (he prefers a substantial chance) - but in general he seems supportive of their overall approach. Personally, I actually found this to be quite gratifying, especially after hearing Dr. Reid's ranting for as long as I had to. However, Straw did note that although he wishes to maintain the 'principles' of human rights, he thinks there are some issues with the applications.

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

Straw then argued that this 'consumerism' is incompatible with 'politics' - as politics requires people consider their long-term interests, make some sacrifices for the social whole and engage in meaningful public participation. According to Straw the result of this process has been that our rights have become 'commoditised' (what a hideous, hideous word - has the man never heard of the term 'commodified'!?). Rights are exercused so as to injure others, with no concern for the 'public good' or our collective right. Furthermore, people become covetous of the rights of others, which they view as a type of 'possession'.

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 to
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.

And 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.

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 egoistic
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.

All 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:

As individual entitlements, bourgeois rights confer
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)

She 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.

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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Law

Why law?

In order to stop my fellow vanugardist from constantly heckling me about my laziness and lack of a work-ethic I have decided to make a post. Frankly, I reserve the Right to be Lazy and fear that my comrade is infected with a hideous managerial work ethic. Anyway, this will not be the normal type of post here, as I am not Scottish. I am also far too much of a student for my own good, hence the content of this post.

So basically I am interested in Marxist approaches to the law. More specifically I am not a ‘Marxist looking at the law’ or a ‘lawyer who likes Marxism’ but I make some attempt to do both (although this shouldn’t be mistaken for an attachment to the law – because I’m really not). So in this post here I basically attempt to justify my odd position (although there are certainly a few contemporary Marxist legal theorists), and say why it is we might focus on law.

So the first thing I want to say is that a there hasn’t really been a lot of Marxist work done about law as a specific phenomenon. There have been quite a few works which (of necessity) include law as an element of the social totality, but many of these haven’t really been able to grapple with the specificity of law. So a lot of the time you’ll just hear that law is an ‘expression of the will of the dominant class’ or something, which – although it might have some useful content – tells you nothing about law as a specific phenomenon.

In this respect there is really only one ‘classic’ work of Marxist legal theory – E.B. Pashukanis’ General Theory of Law and Marxism – this is a work which has influenced me quite a lot. So I suppose later on in some posts I will expand upon the some theoretical points (or rather I’ll link or re-post some old stuff) and show how taking an in-depth position on legal theory (bearing in mind there is no revolutionary movement without revolutionary theory) actually does serve at least some practical purpose.

So, here I’m just going to outline some reasons why I think it’s interesting and important to have a Marxist account of the law. Basically, I want to move from more abstract questions to concrete questions, although obviously these two factors are intimately related.

Law and Liberalism

Anyone who wants to make any sense of liberalism has to engage with the law. On one level this is obvious. Most of the classical liberals from Hobbes to Locke to Montesquieu to Rousseau all had to explicitly deal with law. In fact in many of these account the law assumes an absolutely central role (Hobbes is someone who really springs to mind in this instance).

The importance of law to liberalism isn’t just a happy accident, it’s a result of the structure of liberal thought and its presuppositions about ‘human nature’. Whilst it’s always difficult to define a political position as amorphous of liberalism one can find certain commonalities of liberalism. Firstly, liberals have a certain theory of human nature – basically this holds that (at the very least) human being have a propensity towards selfishness and individualism. Closely linked to this is the fact that liberalism starts from the‘naturally independent, autonomous’ individual.

From this perspective you come to the central problematic of liberalism (and what I think is the best way to frame this). If you have a group of individual, selfish agents who need to interact in some way how can you fit this together. Since these individuals are meant to be independent, each with their own ‘plan of life’, they can’t be unified by any broad ‘purpose’, or good, or status.

It is at this point that the law becomes useful. Law is therefore seen in a double sense. Firstly, as people like Grotius thought it served as a way of demarcated the autonomous sphere of each individual. It creates a kind of shield of interlocking rights and duties. Secondly, and this is in a more Hobbesian vein, law serves as a non-moral ‘trump’ to individual disputes. This ‘trumping’ function is also how you can ‘coordinate’ the diverse lives of these ‘autonomous individuals’, because it provides a conclusive guide to what happens when individuals come into dispute.

But in a way this begins to seem a little contradictory, law is a device which both coordinates (in its trumping sense) and dissociates (in its ‘demarcating sense’), Pashukanis notes this contradiction, saying (General Theory of Law and Marxism, p.70):

Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society". On the one hand, law completely merges with external authority, and on the other it completely opposes every external authority not recognized by it.

Without the law liberalism (ideologically) completely falls apart. It is forced either to revise its central presuppositions about human nature, or reject the autonomy of the individual, or support a Hobbesian ‘state of nature’.

It is not accidental therefore that the radical anti-liberal critiques concentrated to a large extent on the role of law and rights within liberalism. The main example of this is Carl Schmitt, German fascist and utter bastard – yet someone who focused particularly on the intersection of law and liberalism. But there is also Marx’s famous On the Jewish Question, and numerous bits of Lenin.

Now of course, this all remains rather abstract, but I think it does address real concrete problems. Firstly, the intimate connection of law and liberalism might tell us to be slightly wary of raises slogans about the ‘rule of law’, and making paeans to it. Furthermore, we of course live in a broadly ‘liberal’ society, and as such one in which law assumes (at least at first sight) a particularly important role.

Law and Capitalism

Of course, this all seems rather airy fairy (and believe me it will remain so), stuck in the ‘idea’ of liberalism. Yet, as I have argued before, liberalism is a product of capitalism. I’ll briefly go through this connection, and then I’ll explain some other reasons why capitalism and law are deeply interconnected.

The presuppositions of liberal theory begin to make sense when you analyse the historical transition from feudalism to capitalism (bearing in mind this was a long transition). So basically (and this is very sketchy) feudalism involved individuals being placed into static, customary rules. Their ‘rights and duties’, such as they were, arose by reference to their position in the political order.

The basic point is that in the transition to capitalism this status was demolished by the commodity form. Guilds and hereditary castes were broken up; the old system of land tenure (the connection of the peasantry to the land) was destroyed. So what we have here is a situation where individuals increasingly resemble the liberal vision of them. They no longer have any status based connection with their employer/employee, instead it is a relationship based solely on a cash nexus.

But simultaneously with this you have a great drawing together of people. Increasingly, owing to capitalist manufacture people are brought together, disputes inevitably arise, demarcation needs to take place. And here is the relationship between liberalism and capitalism, the problems of liberalism are the problems of capitalism – how do increasingly disconnected individuals, who are nonetheless brought into contact find a way to be ‘dissociated yet integrated’. So, in capitalism, as with liberalism, law plays a central role.

However, and as I will make clear later, the connection between law and capitalism runs deeper than the one described above. The above description shows that law is connected to capitalism because of the ‘solution’ to some of the problems it throws up. However, I (and in fact anyone who follows Pashukanis) think that there is a more structural connection between law and capitalism. This is a topic that is beyond the confines of this (already overlong) introduction. It is something I have written about before and will write about later. However, there are some opening things I would point out.

The most important thing to first note is that central to capitalism is the commodity. The commodity is the ‘unit’ of capitalism, and through the unfolding of its internal structure, and through many mediations you will eventually reach the state of the world today. However, as Marx notes:

It is plain that commodities cannot go to market and make exchanges of their own account. We must, therefore, have recourse to their guardians, who are also their owners Commodities are things, and therefore without power of resistance against man. If they are wanting in docility he can use force; in other words, he can take possession of them. In order that these objects may enter into relation with each other as commodities, their guardians must place themselves in relation to one another, as persons whose will resides in those object, and must behave in such a way that each does not appropriate the commodity of the other, and part with his own, except by means of an act done by mutual consent. They must therefore, mutually recognise in each other the rights of private proprietors. This juridical relation, which thus expresses itself in a contract, whether such contract be part of a developed legal system or not, is a relation between two wills, and is but the reflex of the real economic relation between the two. It is this economic relation that determines the subject-matter comprised in each such juridical act.

In other words, the commodity relationship posits and presupposes the legal one, since in order to exchange a commodity (and a commodity is only characterised by exchange) one must recognise someone else as your equal. This connection is vastly important since it shows the primal connection between law and capitalism. On the level of commodity exchange (and this incidentally is why law pre-dates capitalism) the two are irrevocably and structurally linked.

This is of course central to the arguments of Lenin and Engels on the link between bourgeois ‘equality’ and the commodity form.

With this established one can go on to consider how the law is important to more concrete, everyday situations, which I’ll talk about next time I post. Also, I'll talk about why I think my philosophical orientation is best.

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