As a general rule, the precise significance of historical shifts, developments or movements can take a long time to reveal themselves. This is no doubt also true for human rights. For good or ill, and in many ways that remains to be seen, the language of human rights has become ubiquitous in moral, philosophical and political discourse over at least the last thirty years. Over this period we can point to instances where the language of human rights has been used to mobilise support for political prisoners, to prevent evictions of shack dwellers and to advance the cause of same sex marriage. By the same token, there are numerous episodes where the language of rights has been used to consolidate corporate power or legitimate imperialist interventions around the globe.
The grand question, then, of the value or otherwise of this rise in the language of rights remains open. On the terrain of this open question there are many sites of support and critique for the idea and language of rights, here I want to focus on one of the key critiques of rights and rights talk, what I will refer to as the “displacement thesis”. In a well-known essay on rights, Wendy Brown provides a sharp and useful articulation of the displacement thesis. She notes that human rights have come to be viewed, or presented, as ‘the progressive international justice project’, and then goes on to note that:
Human rights activism is a moral-political project and if it displaces, competes with, refuses, or rejects other political projects, including those also aimed at producing justice, then it is not merely a tactic but a particular form of political power carrying a particular image of justice, and it will behove us to inspect, evaluate and judge it as such.
Brown then goes on to argue that in light of the renewed vigour of American imperialism, perhaps instead of human rights support for indigenous movements in post-colonial societies, or other narratives, would be more efficacious in resisting the depredations of the global imperial order. She further argues that if one approach is to be favoured over the other, then we must recognise that it is difficult to engage in simultaneous emancipatory projects at once. Finally, Brown concludes by arguing that the language of human rights ‘is a politics and it organizes political space, often with the aim of monopolizing it’.
While Brown’s contention that the language of human rights is one among a number of different forms of political power is useful and incontrovertible, the displacement thesis she advances is problematic. It should be said that Brown is not the only one to advance this argument, and numerous critics of rights, from Morton Horowitz in the 1980s to Robin West in a recent intervention, have marshalled it in one way or another. However, Brown’s clear articulation of it provides a useful starting point to engage with an important issue in the debate about the role of rights, and of law more broadly, in movements for radical social change.
If we boil the displacement thesis down, what it amounts to is the assertion that in any given society or historical period, movements for radical emancipatory change can only make use of a singular discourse. That is to say that any individual or movement who is dissatisfied with the extant social and political environment they inhabit, can only respond to and critique it in one dialect. A further implication of this argument is that in the contemporary global dispensation the language of rights tends to crowd out, or indeed preclude, the use of other emancipatory discourses; such as claims for distributive justice, substantive equality or meaningful democracy.
Certainly the intense legalisation of rights over the last thirty years, and the concomitant formalisation and professionalisation of rights practice, lend some support to this argument and make it intuitively appealing. But the shortcomings of a particular strand of liberal legalism hardly provide the basis for the jettisoning of rights, as such, which this line of argument would entail. Notwithstanding its intuitive appeal, the displacement thesis is fundamentally flawed. It is flawed because the emancipatory monolingualism it presumes is not born out, either by historical experience or contemporary struggles for fundamental social change. If, indeed, insurgent movements were limited to a singular choice among contending discourses, then the rhetoric of the French Revolution would have pursued Liberty, Equality or Fraternity and not all three. The American Declaration of Independence would have limited itself to a self-evident truth, rather than a collection of them.
Similarly, if the displacement thesis held, contemporary movements such as Abahlali baseMjondolo in South Africa, the Movement of the Landless in Brazil or the World Social Forum, would have to eschew the language of rights in favor of a discourse of distributive justice, or enhanced democracy, or anti-imperialism. Instead, all of these movements manage to mobilise numerous, complimentary (and contradictory) discourses in pursuit of their strategic objectives. While certainly at any given time, depending on the prevailing conditions and the specific aims of the movement, one discourse or other might take precedence, these movements, as with many historical antecedents, nonetheless engage in an emancipatory multilingualism, which gives the lie to the displacement thesis.
All of this is not to say that the language of rights, particularly in its dominant rendering, is unproblematic. But to follow the displacement thesis to its conclusion would be to accept the abandonment or jettisoning of rights by movements for radical social change, in favor of another, presumably less problematic, emancipatory discourse. But this sort of strained maximalism is fundamentally problematic. Within a context of globalised capitalism, where neoliberalism is the hegemonic ideology, there is no discourse – be it democracy, justice, equality – that exists beyond or outside the system, and cannot be co-opted and manipulated to justify the extant order.
The problem with the displacement thesis is that it implies there is some silver bullet argument, a singular one that is superior to the language of rights. But, in struggling against the injustices we see around us and seeking to build a better future, we have no choice other than to work with the tools at our disposal, including rights. As Terry Eagleton puts it ‘A different future has to be the future of this particular present. And most of the present is made up of the past. We have nothing with which to fashion a future other than the few, inadequate tools we have inherited from history’. This, of course, includes rights.
None of this is meant as an apologia for rights, particularly for the dominant discourse and practice of human rights, but more modestly to point out that we should be slow to jettison rights on the basis that by utilising them we somehow prevent ourselves from engaging other languages of resistance and change. In a way this point is well caught by Audre Lorde, who once wrote that she could not ‘afford the luxury of fighting one form of oppression only’; not only does any emancipatory movement necessarily have to challenge different forms of substantive oppression and injustice, it has to do so by drawing on a wide array of tactics and emancipatory discourses, and embracing one does not preclude the adoption of another.
Originally Published on Critical Legal Thinking.