Rights ≠ Justice

Transcribed from the 17 March 2018 episode of This is Hell! Radio (Chicago) and printed with permission. Edited for space and readability. Listen to the whole interview:

Social and political rights don’t exist in a vacuum. They exist in the real world and are underpinned by economic rights. The rights of children, for example, to go to school and to get education is not independent from the rights of their parents to have a job. We have this bizarre situation where globalization says you have to have austerity, and then we say we want children to have a right to education. Well, the two things can’t be separated.

Chuck Mertz: Rights are a seventeenth- and eighteenth century idea that at one point in history seemed enlightened. But as those rights grew and became what we know today as “human rights,” they changed. In a world where the idea of political freedom leading to economic freedom has been turned on its head, the very concept of rights can undermine the good work of social movements.

Here to tell us what’s right and wrong about rights, lawyer, writer, and activist Radha D’Souza is author of the book What’s Wrong with Rights: Social Movements, Law, and Liberal Imaginations. Radha also works with the Campaign Against Criminalizing Communities, a group that brings together human rights activists, lawyers, journalists, and communities which find themselves targeted by so-called “anti-terrorism” legislation.

Welcome to This is Hell!, Radha.

Radha D’Souza: Hello, Chuck, thank you for having me.

CM: It’s great to have you on the show.

You write that due to your involvement with social movements as a social justice activist, as a constitutional lawyer involved in labor, civil rights, and public interest cases, and later as an academic, you witnessed the arguments around rights in social movements, legal practice, and academic scholarship. You describe what you witnessed as “radically different assumptions about rights: their histories, their role and purpose, and the interrelationship between rights and social philosophy and political theories and practices, and in legal doctrine and practice.”

To what extent are these differing ideas of rights in social movements, legal practice, and academic scholarship—the areas where we turn to for our guidance on our understanding of rights—in conflict with one another?

RD: This is the conflict I struggled with, because when I was a lawyer I thought the problem was the law—and with colonial law in particular. And then when I came to academia, it seemed that there was a completely different understanding. As a lawyer (and especially as a constitutional lawyer), one of the things that you see is the state and how the state actually maneuvers the law. There can be a stated purpose of a law that says, for example, that child labor is abolished. As a constitutional lawyer you see the administrative apparatus and the way it works in all its open nakedness, and you can see how that stated purpose is never achieved.

This is the contradiction, and yet social movements think that by having a law, you can get justice. When I came to academia, believing that I could critique some of these assumptions that lawyers have, there were certain philosophical assumptions that I had to confront. Liberal philosophy believes that having rights is the vehicle for justice. Ultimately, people are looking for justice, especially in social movements. But because of the way liberalism personalizes rights such that each individual becomes a bearer of rights, the entire concept of rights is based on interests, so justice has very little to do with it.

The assumption is that each rights-bearer has an interest that they will use that right for—which works very well for people with economic interests, but it doesn’t really work for people who are at the receiving end of the economic systems that we have. One of the things that liberal rights does is completely separate economic rights from political rights.

I campaigned in the nineties and onward with social movements on globalization and the effects of the WTO and all of that, and I remember the whole rights discourse coming back. It seemed to me that the way these social movements were embracing rights as a vehicle for freedom simply could not see how rights were in law, and were philosophical and theoretical assumptions, and we were advocating going back to something.

But within this thing which globalization was bringing (because globalization was essentially about legal reforms everywhere—domestically, internationally), it seemed to me that the concept of an international rights regime was something we hadn’t talked about, and it didn’t feel like the old rights. It didn’t talk like the old rights, it didn’t walk like the old rights. That’s when I started thinking that there is something fundamentally wrong with the way we understand rights within social movements.

CM: And you write how in the 1990s you were drawn into international issues, first during a campaign against a bill, the Child Labor Deterrence Act proposed by US Democratic senator Tom Harkin: “The bill prohibited importation into the US products made by child labor, an issue with serious consequences for millions of poor Indian families whose children worked in the carpet industry, an important export item.”

How often did you witness good intent and successful, salable politics, yet bad outcomes? Did the politics and the idea of good intent overcome any ability, for those who were writing this kind of legislation, to see the potential for bad outcomes?

RD: It’s a slightly tricky question, because generally in developing countries it was easier to sell that argument; it was easy to argue that if you really want children to stop working and go to school and do what children usually do, then the parents have to be looked after. You have to protect the parents’ jobs, the parents’ land, the parents’ employment; only by doing that can you protect children.

That was an easy argument to make in most developing countries. But in developed countries, it was a slightly more difficult argument, and it also had the potential to become divisive within social movements. For example, when this Harkin bill campaign was on, I was invited to speak at several places in Europe in particular, and typically I would ask people in the audience: How many people here think no child should have to go to work and all children should be going to school? And everybody would put up their hands. Then I would ask: How many of you think synthetic carpets are environmentally bad, not good for the environment or for people, and therefore natural carpets are better? Now there would be a slight hesitation, but hands would still go up. Then I would ask: How many of you are willing pay more for your carpets so that children can go to school, parents can get work, and we can have environmentally friendly products? That is where the whole issue was crystal clear. What were the options?

It is very difficult, and I appreciate the difficulty in seeing how the standard of living and the wealth of the West comes from a long history of exploitation around the world. It’s a very difficult thing for a good, well-intentioned person to come to terms with, the politics of that reality. But that is our reality.

CM: You write how social movement responses to four issues central to rights-based democracy—representative democracy, accountability of public officials and political leaders, property rights, and governance—are woven into the structure of arguments and inform analysis of rights.

How much is your work on rights, then, not only a reconsideration of rights, but a reconsideration of representative democracy, accountability, property rights, governance—is this not only a discussion on rights but a challenge to how we govern ourselves and the laws that govern us?

Trickle-down theory is a practical policy development that comes from this idea that economic freedom will guarantee political freedom, and therefore you don’t have to do anything, you just have to follow the neoliberal mantras around fiscal deficits and austerity and all these policies that they claim are going to “make the cake bigger.” If the cake is bigger, then there will be more to go around. But the cake can get bigger and bigger and still not go around. Indeed, that possibility is what neoliberalism completely forecloses.

RD: Absolutely. Rights are the foundation of the way we govern ourselves and the laws that govern us. Our entire legal system is based on a regime of rights. It’s based on a regime of property rights; it’s based on a regime of institutional rights—it’s a framework within which corporations are like human beings, are legal persons and natural persons, and therefore have rights. The foundation of our legal system is based on rights.

However, although in the eighteenth and nineteenth centuries people considered the linkages between economic rights and political and social rights, this seems to have vanished after 1945, after the end of the world wars and with the arrival of the so-called new international order, and increasingly we don’t make the connection to property rights (it is simply assumed; it is taken for granted as the way the world is). The whole discussion centers now around social rights, or human rights.

This is what I challenge. If we look at the World Bank’s globalization agenda, the structural adjustment programs, they all bring back property rights; they internationalize and universalize property rights. But we never make those connections.

CM: You do not want to reduce rights, a broader concept, to human rights. You write about what is entailed in reducing rights to human rights. What do you mean by “reducing” rights to human rights? This is a key concept in your book.

RD: Yes. Classical liberalism, going back to John Locke and Thomas Paine and all those classical Enlightenment thinkers, Hobbes and so on—when they talked about rights, they talked about rights as something that included economic rights as well as social and political rights. Therefore it was a much broader concept of rights. But what has happened since the end of World War Two is the economic rights are just assumed and taken as given. We don’t talk about economic rights anymore. We don’t talk about whether corporations have rights, what economic actors’ rights should be, whether it is okay to curtail their rights, and so on. That is a holy cow, we can’t touch it.

The whole debate since 1945 has been about social and political rights, but social and political issues are always underpinned by economic relationships. Social and political things don’t exist in a vacuum. They exist in the real world and are underpinned by economic rights. Going back to the example of child labor: the rights of children to go to school and get education is not independent from the rights of the parents to have a job. We have this bizarre situation where globalization says you have to have austerity because of debt issues; you have to have flexible labor markets, so to speak; and then we say we want children to have a right to education. Well, the two things can’t be separated. That’s what I’m saying.

That’s what we have started to do. The human rights discourse completely de-links the social and political issues from the economic issues. This is one of our major problems with rights in the present day.

CM: You mention land rights, pointing out that “land is quintessentially a relationship. Land is not a thing. It is a bond that ties people to nature and to each other. Land is the glue that holds people and nature together to form places. Historically, rights transform places into property, transforming a relationship into a commodity.”

As they are exercised today, how much does a fight for rights lead to a commodification of all things?

RD: It does. Social movements often don’t see the extent to which a demand for rights leads to commodification of the thing that they are demanding. This is why land is important. Land was one of the first relationships to be commodified, and that is very closely tied to the history of modernity itself, the history of capitalism. If we look at pre-modern societies, whether in Europe or anywhere else, people and land go together. Yes, there was exploitation—there were the feudal lords, the manorial system and all of that. But the relationship to nature was a very closely-tied one; people were absolutely entwined with nature.

One of the things that capitalism does is separate labor and nature. People become one thing, one commodity—you can sell your labor in a labor market—and land becomes another commodity. This is done through the instrument of rights by establishing that your right to land is one thing and your right to sell your labor is another thing. If we look at the early thinkers—John Locke, for example—they are very conscious of that, which is why they say labor itself is your property. The fact that you can work becomes your private property which you can sell to whoever you want. And then of course land becomes private property. This separates the relationship between nature and people, and communities.

This is then what rights go on to do in every sphere of life.

CM: In every sphere—that’s a really important part to stress.

You write, “Rights claims conceal what is entailed in our relationship to land and nature. Indeed, rights claims facilitate the transformation of places into properties and home-land in home-market.” Yet even the more radical movements on land, such as indigenous people’s movements that are opposed to the very notion of land, forest, and water as property frequently end up supporting the idea of human rights to land.

To you, what explains even indigenous misreading and misunderstanding of human rights or rights in general?

RD: In the case of indigenous people, it’s a question of finding the right language. There is a lot of interpretation issues involved here. It is about how we articulate a political claim that is not in the language of rights. That question is a wider one, because it’s everywhere: how do you articulate claims to land, claims to water, claims to resources, claims to labor, in a way that is not in the language of rights?

To get to that, a deeper political discussion is needed on alternative forms of articulating rights. I think it is partly the inability of social movements to come together, to bang their heads together to see how else we can do this, that is a major problem. It remains a major problem, because we have not deconstructed rights yet. It remains the only way for articulating political demands.

The discourse is disconnected from the way the real world works. We are no longer able to see, if we demand the right to food, who is going to implement it. How is it going to be implemented? What are the institutional mechanisms? Who is driving this demand for the right to food? Why is the World Bank keen to have it in its policy manual? We don’t flesh out any longer how these things are going to work.

CM: We had a long conversation last week with Julie A. Wilson about her book Neoliberalism. How much do you see rights claims exacerbating if not reinforcing the neoliberal order? Are rights claims at the heart of the neoliberal order?

RD: Absolutely. But they are a new articulation of rights; that’s important. It’s not the same as classical liberalism. Classical liberalism collapsed when capitalism collapsed in the middle of the last century. So the world war era is a very important piece here, because that is when the old collapsed and the new emerged from that. That was also the period when even John Maynard Keynes said liberalism was dead. The socialists said liberalism was dead. The fascists said liberalism was dead. There was a convergence of views from diverse political viewpoints that liberalism was no longer working.

Indeed it was not working because capitalism itself had collapsed at that time. It was rather a question of how to revive capitalism. The fascists had a certain answer, the socialists had a certain answer, and the neoliberals had a certain answer. The neoliberals reworked the liberalism of the nineteenth century, and they put it on an internationalized, globalized foundation that was actually more receptive to and worked better for monopolistic forms of capitalism which emerged.

That reworking is what I say makes neoliberal rights different from what nineteenth century liberal rights were like. Of course, neoliberals didn’t get to dominate until the economic crisis of the early sixties and the seventies, going on into the eighties, when they had risen and expanded in their influence. But the reworking began during the war period when societies like Mont Pèlerin were set up.

So yes, rights are core to neoliberalism, but the kinds of reformulated rights that we see with the rise of neoliberalism are something quite different from classical rights. So just because the word rights is used—just because the language is the same—doesn’t mean the substance is the same.

CM: You argue that “economic freedoms and economic institutions are seen as the necessary conditions for political freedoms and democracy. Milton Friedman, a neoliberal thinker, makes this point explicitly, reversing the position of political freedoms as the condition for economic freedoms. Friedman turns classical liberalism on its head.” Then you ask, “Should social movements not question the ramifications of these inversions of classical liberalism for rights which are so central to defining the relationships between economy, state, and civil society?”

How much is that the definition, to you, of neoliberalism: that instead of viewing political freedoms as a way toward economic freedom, neoliberalism defines economic freedom as the step toward political freedom? Does neoliberalism change our priorities to economic freedoms ahead of political freedoms?

RD: That is the assumption they ask us to believe. And this is not just a theoretical assumption that people like Friedman and many others make, but we also see it in the practical policies of the World Bank and the IMF, for example, where they say if you follow their market and economic policies, there will be a trickle down of benefits to everybody. The trickle-down theory is a practical policy development that comes from this idea that economic freedom will guarantee political freedom, and therefore you don’t have to do anything, you just have to follow the neoliberal mantras around fiscal deficits and austerity and all these policies that they claim are going to “make the cake bigger.” This is World Bank language. If the cake is bigger, then there will be more to go around.

But the cake can get bigger and bigger and still not go around. That possibility is what neoliberalism completely forecloses—and even stops us from thinking about.

This is a fundamental reversion. In classical liberalism, political freedoms were needed in order to get economic benefits. This is the basis of trade unionism. You need labor rights so that unions can bargain for better wages and so on. So that reversal is quite important for us today.

And if we look at social movements, at least since the debt crisis in the eighties, they have believed that if you have rights then somehow the World Bank will change, or the IMF will change, or US policymakers will change the way they do things. But that has not happened—it’s not meant to.

CM: You write, “European Enlightenment thinkers took rights as an ethical and moral concept in ancient European philosophy, and used it as a trope for a utilitarian economic and political philosophy supportive of emerging capitalism. As a trope, rights were pivotal to building institutions that replaced feudal institutions. The prefix human to rights has invisiblized the institution-building role of rights. The prefix human to rights continues to evoke ethical and moral sensibilities, and conceals its utilitarian purpose from view. It should not appear paradoxical, therefore, that the World Bank and displaced people both defend human rights.”

So more than anything, are human rights, in your opinion, what creates, builds, and reinforces the institutions of capitalism?

RD: In the modern context, yes. The claim for rights by social movements has actually reinforced the World Bank’s land acquisition policies, their development policies, and their debt policies. The more social movements ask for rights, the more the World Bank and institutions like it use them for developing economic institutions.

One of the World Bank’s most significant shifts was when they went from saying in the sixties and seventies that the World Bank has nothing to do with human rights to saying that they are the only real champions of rights. It was the World Bank that brought socioeconomic rights right into the heart of the debate around debt cancellation, around equitable trade between countries of the North and South, and so on.

But the language of rights allows them to appropriate a demand from social movements and then institutionalize it in a way in which social movements have very little control. Social movements don’t control how the World Bank operates or how it does its lending or borrowing.

CM: And you point out, “Within the domain of ideas, rights remain secure and insulated from the reality of dramatic, disconcerting, and violent changes in the world around us. The question for social movements and critical scholars wanting to change the world we live in is to ask, ‘What do rights actually do in the world?’”

How are rights insulated from the reality of dramatic, disconcerting, and violent changes in the world?

The more important thing is not to ask for a right to something, but the thing itself. So we don’t ask for a right to food, but we say we want food because we don’t have food and we need food. We don’t say we want a right to a house, but we say we want a house to live in.

RD: There is a big gap in the discourse of rights. Typically when we talk about rights, we talk about how people don’t have land, so can they get a right to land? People don’t have food, so can we have a right to food? That discourse assumes institutions work as they are supposed to in an ideal world; that interest groups are somehow moral, ethical groups; and therefore the capitalists or whoever will behave in a moral, ethical way. In fact, corporations are not even human, so to what extent can we expect them to behave ethically? That is a moot question.

The discourse is disconnected from the way the real world works. We are no longer able to see, if we demand the right to food, who is going to implement it. How is it going to be implemented? What are the institutional mechanisms? Who is driving this demand for the right to food? Why is the World Bank keen to have it in its policy manual? We don’t flesh out any longer how these things are going to work.

Let me give you a very concrete example from India. Some years ago, I think it was 2004 or 2005, the employer of a tea plantation in eastern India locked out their workers. Employers have a right to lock out their workers, so they locked them out. But the conditions of a plantation are quintessentially a colonial institution. The Plantation Act allows the plantation owner to provide accommodation for the workers on the plantation, and it is their responsibility to supply food to them. So what happened? When the workers are locked out, they have no food, because the employer is not providing them with food. They don’t have an address, because they live on the plantation.

There were starvation deaths on plantations as a result of this. What were social movements asking? These are lovely young people, very committed, very well-intentioned. They said, we need food security. We need right to food. And you have to tell them, “Look, the question here is not right to food. The question here is the Plantation Act, which gives the plantation owner complete authority and control over the lives of these people. That is the problem.”

Let’s look at the institutions. Does the state have the authority to intervene? It does. Because in India, the office of the district collector has the right, from colonial times, to go and make a spot investigation, and if people are dying or there is a calamity, he has the right and the power to make sure that food is supplied, or take whatever steps need to be taken to address this or that problem.

So this power is already there—why do you want a new right? And they all say, “Because the collector doesn’t do his job.” Okay, but if the collector doesn’t do his job now, how do we know that under the new Right-to-Food Act, whoever is authorized to administer the act is going to do it? If this is an old, established institution, the district collector’s office, and he’s not doing it, how do you know that the new guy is going to do it?

There is an inability to think through the practical and concrete ways in which this is going to play out in political life, in social life, in daily life. It’s a disjuncture that is becoming really politically problematic.

CM: How much do you think demanding whatever it is we want—not the right to having what we want—is the most effective way toward real social transformation?

RD: The more important thing is not to ask for a right to something, but the thing itself. So we don’t ask for a right to food, but we say we want food because we don’t have food and we need food. We don’t say we want a right to a house, but we say we want a house to live in. If demands are translated into that, it opens the pathway to see how we can then develop a politics that will actually give food, that will actually give housing or education or whatever it is that people need.

Now, because we start with rights, and then the rights are given through some legislation, like establishing a right to housing, then we don’t know what to do. The property owner also has the right to property, and then I have my right to housing, so whose right takes precedence? Who has greater power in the market? All those things start to get in the way of actually realizing those rights.

Instead of doing that, we say: “We don’t care how you do it, we want a house to live in, because we need one.” Politics would change radically. One of the big differences between the anti-colonial movement, the socialist movement that developed in the middle of the last century and now is that they didn’t ask for rights to housing or equality or the right to be free. They just said, “Please pack up and leave.” They didn’t ask for the right to self-determination. If you look at the slogans of that time, they said, “We are exploited; we don’t have food, and colonial policy is a big part of it. Therefore, end colonialism.” That was the demand.

I think we have come very far from that kind of direct, simple articulation of our needs.

CM: You write that the question for social movements and critical scholars is whether “more rights help us walk the road of human emancipation.” But there are struggles for rights here in the US that are celebrated, like the civil rights movement in the 1960s, or more recently the gay rights movement.

Is this a different form of rights? Or do the struggles for people of color and gay liberation also suffer form a misunderstanding and a lack of any deeper examination of the impact of rights?

RD: I think they do suffer from the same lack of understanding of rights, from the deeper impact of rights. The problem in the United States, from what little I know about the country, is not that African-Americans don’t have rights—the problem is that the police shoot them down. That’s the problem. And it’s not because the constitution does not give the rights.

I don’t know as an outsider; I wonder about the whole debate on gun control, for example; the right to bear arms which the constitution gives. The constitution does not seem to say, to the best of my knowledge, that only white Americans have the right to bear arms and not black Americans. But do you see the way in which that right actually plays out in society? I have not come across a black movement that says we should have a right to bear arms in a long time. Why is it that we don’t have more black groups bearing arms in the face of this police violence even though the constitution gives them as much right to as anybody else?

CM: Radha, I really appreciate you being on our show this week.

RD: Thank you so much for having me, Chuck.

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