Not All Pandora’s Boxes Are the Same: If Transitional Justice Is to Be Effective a One-size-fits-all Approach Is Not the Right Choice

By Domenico Carofiglio

Domenico Carofiglio graduated from the War Studies Department of King’s College London in 2016. He is now pursuing a double degree in Public Policy and Development at Sciences Po Paris and Bocconi University.

Abstract

This article analyses the role of transitional justice as a tool able to establish a link between the local and global, the national and international, the particular and the universal. By drawing on examples from Nigeria and East-Timor, this article explores the tension between the global and the local, and the resulting outcomes when one excessively overcomes the other. In doing so, the article looks at the effectiveness and relevance of transitional justice by focusing on its relation with the discourses of global politics, arguing that for transitional justice to be effective a one-size-fits-all dimension is to be discarded in favour of an application of transitional justice as a legal tool that helps communities to find their own way to come to terms with a tormented past. The imposition of de jure universally-applicable rules does not necessarily bring about de facto effectiveness of such rules; the local realities where these rules apply cannot be ignored. This paper begins by defining transitional justice, globalisation and globalised politics, and it will shed light on what is meant by local needs. Building on the definitions provided, the second section will outline a theoretical framework for the arguments at issue, by focusing the attention on the link between transitional justice and global politics; as will be seen, such a connection is theoretically informed by concepts of globalisation, glocalisation and liberalism. Finally, beyond the traditional examples used in the transitional justice literature, such as those of Rwanda and Uganda, the essay focuses on the cases of Nigeria and East-Timor.

An Introduction to Transitional Justice

‘Transitional justice as a concept emerged from a global wave of political transitions’ (Apland, 2012). Indeed, those countries that recently transitioned to democracy could not do so without coming to terms with their tormented past. Abuses and wrongdoings had to be addressed and overcome in order to pave the way for intergroup and national reconciliation. This is how transitional justice came about. In his seminal article “Democracy’s Third Wave”, Samuel Hungtinton stated that since the beginning of the 1970s up until the end of the century, ‘at least 30 countries made transitions to democracy’ (1991, p.12). The concept of transitional justice is strongly interwoven with the broader phenomena of democratisation, and ultimately, with globalisation. More precisely, the discourse of transitional justice today has a global normative reach whose ramifications extensively affect international affairs (Teitel, 2014).

This article shall analyse the role of transitional justice as a tool able to establish a link between the local and global, the national and international, the particular and the universal. By drawing on examples from Nigeria and East-Timor, this article will hence explore the tension between the global and the local, and the resulting outcomes when one excessively overcomes the other. In doing so, it will look at the effectiveness and relevance of transitional justice by focusing on its relation with the discourses of global politics, arguing that for transitional justice to be effective a one-size-fits-all dimension is to be discarded in favour of an application of transitional justice as a legal tool that helps communities to find their own way to come to terms with a tormented past. The imposition of de jure universally-applicable rules does not necessarily bring about de facto effectiveness of such rules; the local realities where these rules apply cannot be ignored. This paper begins by defining transitional justice , globalisation and globalised politics, and it will shed light on what is meant by local needs. Building on the definitions provided, the second section will outline a theoretical framework for the arguments at issue, by focusing the attention on the link between transitional justice and global politics; as will be seen, such a connection is theoretically informed by concepts of globalisation, glocalisation and liberalism. Finally, beyond the traditional examples used in the transitional justice literature, such as those of Rwanda and Uganda, the essay focuses on the original cases of Nigeria and East-Timor.

A matter of definitions

The concept of transitional justice points out at a legal scholarship. However, it would be quite simplistic to look at it as a mere subject of judicial academic inquiry. Indeed, the theorisation and mise en œuvre of transitional justice is an enterprise that involves not only academicians but also, for its very nature, a plethora of other actors ranging from human rights activists and lawyers to sociologists, anthropologists and policy-makers (Hinton, 2010; Rush and Simic, 2014). To be clear, by drawing on the definitions offered by a series of authoritative sources, transitional justice can essentially be seen as a set of judicial and non-judicial mechanisms to achieve peace and reconciliation and to restore justice in societies affected by mass atrocities and wrongdoings committed by authoritarian and repressive regimes (Roth-Arriaza and Marriezcurrena, p.1; Teitel, 2003, p.893; Mani, 2002, p.17; UN Secretary General, 2004, p.5). When defining transitional justice, Hinton adds that ‘it is critical to explore how a sense of justice after genocide and mass violence is always negotiated within particular localities enmeshed with global and transnational flows of ideas and ideologies’ (2010, p.1). Hinton’s consideration touches upon the link between transitional justice and globalisation on a conceptual level; this link will be further analysed in the theoretical section.

Joseph Stiglitz generally provides a standard definition of globalisation as ‘the closer integration of the countries and peoples of the world […] and the breaking down of artificial barriers to the flows of goods, services, capital, knowledge, and people across borders’ (2002, p.3). The Global Politics scholarship investigates the processes resulting from political globalisation in relation to questions of social power. At the heart of the field is the emergence and growing influence of international organisations, non-state actors, multinational corporations and social movements, all at the expense of the state and its Westphalian significance (Nye, 1990). Equally important, global politics concerns matters of global governance and decision-making which fluctuate between, and are in tension with, the national and supranational.

Whereas the previous definitions are straightforward, it is rather difficult to define what local needs are really about. In its ‘one-size-fits-all solutions’ conceptualisation (Nagy, 2008, p.287), transitional justice serves the purpose of shedding light on abuses and atrocities and its perpetrators in order to create a democratic society. Reconciliation of those who have survived is thus fundamental to fulfil the ultimate objectives of establishing a human rights regime, rule of law and democracy. However, these liberal globalised principles are not always an adequate response to what the local needs truly are (see theoretical section). In the context of North-African countries that are de jure transitioning to democracy after the Arab Spring, the ‘Islamists largely reject the universal claims of human rights, stressing rather the specificity of local needs and contexts and a different set of norms’ (Robins, 2015, p.187). While it is debatable the extent to which these countries are de facto transitioning to democracy, agreement can be reached on the argument that local needs should be always defined depending on the reality in question and on ad-hoc basis. While each and every reality should not remain insulated from the global, it is not necessarily the case that all realities are apt for the appliance of universal ‘liberal democratic politics and neoliberal economics’ (Robins, 2015, p.190) that are part of the liberal globalisation “package” brought about by transitional justice (see case-study section). Local needs are undoubtedly subject to specific circumstances that change from case to case.

To conclude on these points, globalisation results in specific processes which raise issues at the heart of the academic inquiry of global politics. In light of the connection between transitional justice, globalisation and global politics, Ruti G. Teitel notes that ‘important normative questions arise in the interaction of transitional justice and globalisation’ (Teitel, 2002, p.899). Framed in global politics terms, Teitel (2002, p.899) asks: ‘at what level should the relevant decision-making regarding transitional justice occur?’. Teitel’s considerations bring us to the following section that provides a theoretical rationale for better understanding the relation between global politics and transitional justice.

A theoretical framework: transitional justice, globalisation, glocalisation, and liberalism

Globalisation

By looking at the relation between globalisation and transitional justice, it is shown that globalisation has the effect of making transitional justice a technocratic legal tool that ignores lived realities. That is, globalisation makes transitional justice more detached from the local realities it deals with and it shifts transitional justice’s very objectives from the establishing of democracy and the rule of law in a country transitioning to democracy, to the mere ‘adherence [of that country] to a modicum order’ (Teitel, 2002, p.898). The glocalisation discourse provides an understanding of globalisation whereby the global and the local are seen in complementarity rather than in contradiction with each other (Robertson, 1994). Indeed, as long as there is excessive emphasis on one way or the other, transitional justice will not be able to grasp the demands of lived realities and correctly address them in relation to globalised politics. The fact that transitional justice primarily looks at high politics rather than starting from ‘the deep politics of a society and asking what this implies for the high politics of the state’ (Andrieu, 2010, p.545) demonstrates how transitional justice is fundamentally entrenched with a liberal ideology; whereby political rights are privileged over social, economic and cultural ones. This further limits the capacity of transitional justice to understand local realities and to correctly frame the latter in the now globalised texture of world politics.

Against the background of the complex relationship between globalisation and transitional justice, Teitel discusses ‘the increasing detachment of transitional justice from local politics and its corresponding transformation into a form of global law and politics’ as well as its ‘increasing globalisation’ (2014, p.1). Hence, the issue of the impact of globalisation on transitional justice’s appliance seems to be one of agreement (Teitel, 2014). Nonetheless, it is not clear whether globalisation directs transitional justice towards a decentralisation of justice by accommodating global forces to local realities or rather to judicial decision-making occurring at the global level (Teitel, 2002). In this regard, Teitel states that despite being born as a tool for spreading a universal rights paradigm, after the Cold War transitional justice came to be too entrenched in local ideas of legitimacy and the rule of law, with the risk of ignoring the actual power politics framework induced by ‘post-Cold War globalising transformations’ (Teitel, 2002, p.893).

Transitional justice’s vacillation between the local and the supranational is symptomatic of the tension at the heart of ‘contemporary global politics’ (Teitel, 2002, p.893). Despite Teitel’s sound arguments in “Transitional Justice in a New Era” (2002) whereby she argues that globalised transitional justice is in fact too local in its legal approach, it appears instead that globalisation is forcing transitional justice towards the application of liberal globalised principles, such as the rule of law, democracy and human rights while ignoring tout court local specificities and their interaction with global political mechanisms. In fact, Nagy affirms that the actual impact of globalisation on transitional justice is that its response to local realities is made in globalised legalistic terms which are too abstract if the aim is to positively engage with local ‘lived realities’ (Nagy cited in Teitel, 2002 p.276). Similarly, Hinton suggests that by considering justice as something transcendent and universally applicable, the local perceptions of justice are ignored and this dooms transitional justice to certain failure (Hinton, 2010). By analysing the case studies of Nigeria and East-Timor, this essay will show that Teitel’s arguments on the globalised nature of transitional justice, as well as its ‘independent potential’ (Nagy, 2008, p.277) in shaping political and social transitions, are not universally applicable. The independent power of justice is not effective ‘in societies such as those of the Arab world […] where the secular assumptions of a globalised liberalism are rejected by significant segments of the population, as well as important political actors’ (Robins, 2015, p.287). Consent and legitimacy are clearly a conditio sine qua non if transitional justice is to be efficient in allowing war-torn societies to come to terms with past violence and repression. In line with Nagy’s argument, the case studies will prove that globalised transitional justice is often blind to the very local needs it tries to engage with.

Globalisation not only influences transitional justice in the application of an international legalist paradigm far from local realities, but more importantly it also alters the objectives of transitional justice. Globalisation often results in the devolution of the nation-state paradigm whereby the traditional state power is heavily constrained, hence transitional justice has a shift in its goals: whilst originally aiming at bringing about democracy and the rule of law, globalisation forces transitional justice to pursue more modest goals of peace and stability, and more generally human security (Teitel, 1999; 2002; 2014). The question is whether this kind of response brought about by globalisation is more appropriate and universally applicable than the original aims of the rule of law and democracy. As touched upon in the definition of globalisation and global politics, there are today new actors besides the traditional and supreme agency of states in the international arena; this development must necessarily mean that there are more interests at stake which are not only linked to states but also to transnational NGOs and more generally to the global civil society (Nye, 1990). From a normative perspective, it is plausible to think that by promoting peace, the rule of law and democracy will necessarily come along. However, as Teitel (2002) argues, it is unclear how short-term peace-making operations will eventually bring about the advancement of the rule of law. Given these considerations, the question regarding the appropriateness of today’s transitional justice objectives as imposed by globalisation can hardly be answered, especially in normative terms. Nonetheless, it can be argued that the recent focus of transitional justice on general human security is more applicable to highly diverse local realities than the liberal principles of rule of law and democracy (Teitel, 2014).

Glocalisation

The progression of transitional justice with globalising politics implies a bi-dimensional interaction of the supranational/global and the national/local. To analyse this interaction, Roland Robertson (1994) uses the term glocalisation, which he intends as a deconstruction of globalisation. The term synthetises the broader concepts of globalisation and localisation not as an antinomy but rather as being in a continuous interaction whereby ‘the global is not in and of itself counter posed to the local’ (Robertson, 1994, p.35). The concept of glocalisation does not modify the considerations made with regards to globalisation’s impact on transitional justice; nonetheless, it helps to understand the complex dimension where transitional justice operates and how it could be improved. Robertson (1994) argues that it is incorrect to see the local assertions of norms, rules and identities as against, and at the same time, challenged by globalising trends. Transitional justice should ultimately work for the connection of these dimensions – supranational and national, universal and particular. That is, by looking at transitional justice through glocal lenses, the former could be envisaged as a tool where the global and the local are harmonised and in mutual complementarity, rather than an international legalist paradigm which works at the expense of local assertions of justice.

Therefore, it can be argued that the glocalisation discourse could help transitional justice overcome the traditional polarity between the global and local found in both Teitel and Rosemary Nagy’s works on the globalisation of transitional justice. In this sense, Robertson (1994) refers to the idea of a global culture as ultimately informed and shaped by local cultures. This interconnectedness, in Robertson’s thinking, does not envisage global culture as a mere ‘homogenisation of all cultures’ (1994, p.31). On the contrary, when one refers to the idea of global justice, it can be argued that rather than trying to engage with and be receptive to local conceptions of justice, transitional justice might eventually end up becoming a homogenising tool for global justice. When the global Westernised justice paradigm completely ignores local needs, local specificities and societal demands are likely to put into question the legitimacy of one-size-fits-all international legal institutions as the International Criminal Court. This was exactly the case in the context of Rwanda and Uganda’s transition to democracy whereby Rwandan neo-traditional gacaca courts – community-level courts based on Rwandan traditional law – and Uganda’s mato oput – ceremony set up for reconciling former enemies – and other traditional cleansing ceremonies were preferred and called upon by the local populations vis-à-vis the International Criminal Court-led procedures (Nagy, 2008; Andrieu, 2010). Both cases eventually demonstrated how justice at the local level can be, in specific circumstances, much more effective and appropriate in order to pave the way for de facto reconciliation in conflict-ridden communities. Unfortunately, the conceptual underpinnings of the transitional justice discourse are still too reliant on global vs. local antagonistic perspectives. A glocal approach, instead, would be most appropriate in picking up what is useful from global liberal practices of justice, without dismissing the importance of allowing local communities to find their own way to deal with past sufferings (Robins, 2014; Schabas, 2005).

Liberalism

Robins (2014) draws a line between liberalism, globalisation, and transitional justice. ‘Liberal hegemony has permitted globalisation, not just of rights but also of neoliberal economics, and it is no coincidence that the goals of transitional justice align perfectly with the integration of transitional states into global markets’ (Robins, 2014, p.187). A globalised liberalism manifestly informs transitional justice. The relationship is clear: regardless of the realities transitional justice encounters, the traditional response is built on the imposition of a series of liberal normative goods ranging from the rule of law to human rights, from combating impunity to ultimate justice (Robins, 2014). Spence (2010) notices how the US’s response to 9/11 led the Bush administration to implement transitional theory and practice which ‘hijacked the tenets of liberalism, emphasising the universal appeal and relevance of democratic government and the free market for countries labouring under oppressive rule in the Third World in particular’ (Spence, 2010, p.4). However, unconditional appliance of the liberal paradigm to transitional justice is far from being unchallenged.

In theoretical terms, Kora Andrieu (2010) notes that the liberal character of transitional justice stems from its top-down approach to state-building which means that the primary focus of transitional justice is on high politics, namely building democratic institutions. Andrieu goes on to argue that looking at the deep politics of society, which is what the people mean to be legitimate in terms of governance, would be more effective in nurturing democracy in the state. Andrieu (2010) observes that liberal transitional justice is effectively committed to the building of democratic institutions – often unsuccessfully. According to Andrieu (2010), transitional justice’s primary objective should instead be about promoting a culture of democracy through a more spontaneous bottom-up approach. The global liberal paradigm that transitional justice brings about translates not only to an unbalanced focus on high-politics over civil society’s interests, but also in the excessive privileging of political rights over economic and cultural ones (Andrieu, 2010). Little attention is paid to the relationship between transitional justice and development because the actual model of liberal transition ‘focuses only on liberalising growth and marketisation without taking into account wider demands for social justice’ (Andrieu, 2010, p.544). This is also argued by Renaut (2005) who claims that transitional justice should be more detached from the liberal-legalist paradigm which favours political rights of freedom and liberty and which overlooks cultural, social and economic rights. A top-down state building approach to transitional justice and the fact that it glosses over social, cultural and economic rights in favour of political ones, ‘show the limits of the state-based, legalist and neoliberal approach to transitional justice’ (Andrieu, 2010, p.554). The following section will back up the arguments hitherto made by demonstrating how transitional justice unsuccessfully connects local needs and globalised politics when it is either too global or too local.

Transitional justice in operation: relevant case studies of local dynamics affecting and affected by global politics

Going beyond the traditional examples used by transitional justice academic enquiry, such as those of Rwanda and Uganda, the rest of the article focuses on two overlooked cases: Nigeria and East-Timor. The former shows how global liberal values can be manipulated by local extremists when the appliance of transitional justice highlights the hypocrisy of the liberal paradigm felt by the local population. The case of East-Timor illustrates how excessive reliance on local forms of justice – which are nevertheless instructed with liberal dictates in their quest for accountability – risks losing sight of transitional justice’s very objectives, that is, the fundamental pursuit of justice and the search for truth.

Transitional justice in Nigeria: when violence is conducted in the name of liberal principles

Growing violence in Nigeria is an issue that has recently received international attention due to the mass killings by the terrorist group Boko Haram in 2009 (The Guardian, 2009). Prior to this tragedy, Nigeria had been experiencing protracted violence as a means of enforcement of the Sharia law. Effectively, in the early 2000s, Nigeria transitioned to a civilian democratic government after the country’s military coup d’état in 1966. The democratisation process of Nigeria is still on-going and since its beginning in 1999, it has been characterised by violent conflicts ‘over the legal bounds of identity and citizenship, civility and criminality, with armed youths the new agents of policing’ (Casey, 2006, p. 119). Such violence, as Hinton argues, results from the ‘vernacularisation of liberal ideals associated with transitional justice in northern Nigeria’ (2010, p.12). The example of Nigeria and its transition from military to democratic rule is emblematic of a particular dynamic of interaction between globalised politics and local needs as mediated by transitional justice. In this specific case study, it is shown how local religious, social norms and beliefs can interact with liberalism, global justice and globalised practice in a way that the global is adapted by the local and made fit for it, whereas often the reverse occurs. Hinton synthetises this argument by affirming that Nigerian ‘youth, enmeshed in the intersection of liberal universalism […] and their on-the-ground observations of the world, actively construct their identity, moral and social status […] through a violence they assert as just’ (Hinton, 2010, p.13).

Beyond the transition process, what is relevant is the reaction of Muslim youths, particularly in Kano State, towards their forced induction to liberal universalism and the imposition of global ideas operated by Western European government personnel and the Nigerian leadership (Casey, 2006). The violent enforcement of Sharia law stems from the felt hypocrisy of Kano youths which resulted from the clash of espoused and imposed liberal ideals with the recollection of a hurtful colonial past and with the ‘mediated images of Abu Graib […] and the war in Iraq’ (Casey, 2006, p.120; Nye, 2008). Muslim Hausa are the majority of the population and their adoption of Sharia is claimed to be democratic on the grounds that, simply put, they are the largest ethnic group. They consider Sharia as a democratic alternative to the new allegedly-democratic government which they instead perceive as a “recolonisation” and the expression of the global war against Muslims combined together (Casey, 2006). The mechanism whereby the global is adapted by local actors and is made fit for their needs and social demands is clear in the Nigerian case. As argued by Casey (2006), the Muslim Hausa manipulated the language of human rights and what they see as the democratic principle of majority rules to give legitimacy and implement Sharia. The felt hypocrisy of espoused liberal universalism motivates Kano youth to use violence as a legitimate means of ensuring justice. The latter is ‘based on the idea of democratic majority Muslim Hausa rule’ and as Casey concludes is at ‘the cross roads of liberal universalism […] and religious orthodoxies where yan daba [Nigerian urban ward gang members] and Hisba [the enforcing wing of the Sharia Implementation Committee] enter the realms of blood sacrifice’ (Casey, 2006 p.133). In other words, this case study epitomises a core issue of transitional justice which is the friction/reaction between globalised politics and local needs; an ultimate tension of the global politics discourse between the supranational and national.

The peculiarity of this case however stands in an unusual process, whereby the local appropriates global discourses through transitional justice in such a manner that the manipulation of global liberal principles is used to empower local religious extremism. The balance of transitional justice between the local and global is in favour of the local in a very distorted way, which eventually results in regionally concentrated violence being conducted in the name of liberal universal principles.

Transitional justice in East-Timor: international justice cannot be a chimera

Protracted violence that occurred in East Timor from 1974 to 1999 was the direct consequence of Indonesian President Soeharto’ invasion and subsequent annexation of East Timor. When the country was freed from Indonesian chains in the late 1990s, the UN Transitional Administration in East Timor (UNTAET) set up the Special Panels of the Dili District Court to investigate the crimes committed during the Indonesian occupation. Through the case study of East-Timor, Elizabeth F. Drexler (2010) further supports the thesis that success for transitional justice does not stand either in the blind appliance of international legalist principles or overly-local forms of justice. It is rather in the concurrence of the two dimensions that transitional justice can effectively meet local needs while remaining in harmony with globalising politics. Drexler argues that an excessive localisation of accountability for the crimes committed during the conflict made it impossible to identify the very perpetrators of several human rights violations during the Indonesian occupation; violations which were in fact committed by international actors, of which many were indeed Indonesians but also included a significant number of Western countries who indirectly upheld the Indonesian military occupation, such as the US (Drexler, 2010; Nagy, 2008).

On the one hand, the case of East-Timor shows how the international legalist paradigm too often sees justice in terms of accountability rather than advancing the very objectives of transitional justice, that is, intergroup and national reconciliation (Drexler, 2010). However, if it is true that accountability and consequent prosecutions are somehow essential to move on after prolonged periods of human rights violations, it is also true that when the burden of justice is completely left into local hands in the hope that global legalist norms will be upheld, the consequences are unforeseeable. The hybrid courts set up for East-Timor proved to be ineffective in bringing justice. The UN, in fact, created a Special Panel for holding perpetrators accountable. However, its jurisdictional prerogatives were highly criticised for being too local in their reach. With very little cooperation from the Indonesian authorities, the East Timor Tribunal trials ended up leaving many Indonesian alleged perpetrators of human rights violations and other foreign actors almost unpunished (Drexler, 2010).

When affirming that transitional justice needs to take what is useful from the global liberal practice, one is referring to such tools as an international legal framework covering human rights violations with both de jure and de facto jurisdiction and enforcement power. In the case of East-Timor that would have been crucial to address ‘the international components of injustice and their implications in the conditions of possibility for specific acts of violence’ (Drexler, 2010, p.51). International tribunals charged with the upholding of the international legal framework for human rights violations would certainly help bringing powerful non-Timorese actors to justice (Drexler, 2010). East-Timor demonstrates that there are instances where the international legalist paradigm can fail, such as in the unconditional demand for accountability rather the reconciliation. Nonetheless, it also shows that the global liberal practice has much to offer in the pursuit of justice and truth. For example, the absence of an international tribunal prosecuting human rights violators translated into the impossibility of bringing foreign actors involved in the violence before a court.

Both case studies lead to the conclusion that the appliance of transitional justice needs to be balanced between global and local dimensions and that the liberal practice is not a one-size-fits-all solution. In Nigeria, the hypocrisy of espoused liberalism led to violence. In East-Timor, the almost absence of international legal practice left non-Timorese human rights violators unpunished. As these cases show, even if in quite diverse circumstances, transitional justice is not currently effective in connecting globalised politics and local needs.

Transitional justice at crossroads

The analysis in this article sheds light on how the process of globalisation – entailing what is defined as a global human rights regime – together with ‘liberal democratic politics and neoliberal economics’ (Robins, 2015, p.190), does affect the role of transitional justice in mediating globalised politics and local needs. In light of that, this article argues that if transitional justice is to be effective in the connection between globalised politics and local needs, it will have to take from the ‘global liberal practice what is useful’ (Robins, 2015, p.190) whilst always supporting locally-contextualised communities to find their own way to come to terms with a tormented past (Robins, 2015). In short, transitional justice needs to be more glocal in its approach. To be sure, whether transitional justice’s revised approach will bear fruit is not certain but it is quite clear that, at least for the time being, transitional justice is unable to bridge the gap between globalised politics and local needs. Transitional justice now faces a choice between persisting in trying to instill liberal practices with little success, or attempting to glocally collide ‘strategies, institutions and norms of a global practice with everyday lives of local actors impacted by violations’ (Robins, 2015, p.188).

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The human right to be enslaved: how human rights’ coercive liberalism was masked as emancipatory

By Matthew Moore

Matthew Moore is a postgraduate student at London School of Economics and Political Science.

Human rights are portrayed in legislation as universal, inalienable and apolitical, which diverts intellectual discourse from the discussion of its theoretical, normative principles and the bearing this holds on the human rights corpus’ emancipatory potential. Liberalism is defined by its principles, tracing back to Locke, who reasoned that states hold a duty to protect humanity via upholding the principles of “lives, liberties and estates” (Locke,1988, p.180). Vitally, for Locke these principles are ontologically assumed as natural rights, the realisation of which is sufficient for the emancipation of individuals. For something to be emancipatory, it must, akin to what Trotsky noted “increase the power of man over nature and … [abolish] the power of man over man” (Trotsky, 1938). In order to be considered emancipatory, human rights must be demonstrated as liberating to mankind, while simultaneously being free from coercion in its means and ends, the presence of which would negate the former. This is echoed by Marx who considered emancipation to be located in the individual wherein “individual man” must “reabsorb in himself the abstract citizen” and “man recognise and organise his ‘own powers’ as social powers” (Marx, 1843). 

The argument advanced here claims human rights are intrinsically liberal, ontologically and substantively, and that the emancipatory potential of human rights is entirely undermined by this liberalism. The structure is as follows. First, it will be contested that despite academic and legislative claims to the contrary, human rights are intrinsically liberal courtesy of mirroring the Lockean ‘social contract’. Human rights share the liberal ontological assumption of natural rights, and implicitly advocate for liberal substantive principles, namely, property rights (‘estates’), self-determination (‘lives’) and the preservation of free markets, the criteria for individual liberty (‘liberties’). This liberalism is derived from human rights being a project of agency which sets its framework for action within the prevailing order, characterised by these principles, and thus implicitly legitimises and advocates for their reproduction. 

Secondly, the significance of human rights’ liberalism will be grounded in the liberal ontology of natural rights being an invalid justification for human rights’ emancipatory potential, as the claim that liberal human rights are self-evidently emancipatory courtesy of their capacity to uphold humankind’s natural entitlements lacks demonstrability and rests on circular reasoning. Moreover, this failure of natural rights unearths a critical issue, for, in successfully presenting liberal principles as universal values, it allows for the movement to be comprehended under the Marxist lens of cultural hegemony as an ideological tool which reinforces the dominant worldview, making the case that human rights’ liberalism renders it coercive in its implementation, and thereby an obstruction to emancipation.  

Finally, in addition to being coercive in their means, liberal human rights are also coercive in their ends, as the freedoms offered are paradoxical in that labourers are free to present themselves on markets, but the act of selling their labour freely ensures their enslavement to capital. Furthermore, Liberal human rights are bourgeois rights, suffering from viewing emancipation as achieved through non-interference, rather than in our relationships with others. These substantive points, coupled with the intrinsic liberalism of human rights undermines its emancipatory potential entirely because any attempt to enforce bourgeois rights will reproduce the coercive relations of production, aggravating the structural difficulties rather than emancipating individuality. 

Human rights as intrinsically liberal 

Mutua (2007, p.25) highlights that the human rights regime “distort[s] the true identity of the corpus,” which makes pinpointing its principles difficult. For instance, Griffin disputes the claim that human rights are tied to liberalism. Contrarily, he suggests there is one sole theoretical claim in human rights legislation, integrated into the UN in 1966, which claimed that “rights derive from the inherent dignity of the person” (Griffin, 2001, pp.5-6). This provides evidence for human rights’ liberalism because the liberal, ontological assumption of natural rights is akin to this claim about humankind’s inherent dignity, with both ontologically asserting self-evident rights as their justifying basis. However, Griffin underestimates the extent of this theoretical, liberal grounding by overlooking the manifestation of the substantive elements of the Lockean social contract being implicitly embedded in human rights legislation alongside natural rights. 

Beitz (2003, p.26) insists that the UN Declaration’s framers found “the philosophical … arguments difficult, … [and] the framers agreed to disagree about the theoretical foundations of human rights”. Yet, conflating a lack of conscious theoretical grounding with an absence of it is mistaken. Indeed, Beitz simultaneously and unwittingly exhumes this liberalism in his acknowledgement that the Declaration contains “provisions associated with economic rights and self determination” (Beitz, 2003, p.28). Because, the economic rights he refers to are found in Articles 23-25 of the UN Declaration, and are not apolitical, but are rights which assume, as Mutua notes, “the legitimacy of capitalism and free markets” (Mutua, 2007, p.31). This is essential as capitalism is characterised by the principles of the liberal Lockean ‘social contract’. For instance, it upholds the right to private property (‘estates’), access to free markets, which is the Lockean embodiment of individual liberties (‘liberty’), and the right to self-determination (‘lives’), completing the trio, rendering human rights as substantively liberal. 

Moreover, Beitz’s insight holds utility in establishing this liberalism as intrinsic to human rights, for, his claim remains plausible. Indeed, human rights’ liberalism is derived from assuming the parameters of the prevailing order as the framework for action. To illustrate this, by granting human rights within the parameters of the characteristics of the prevailing order, namely capitalism, human rights fall under Cox’s notion of a ‘problem-solving theory’, meaning rights are “value-bound by virtue of the fact [they] implicitly accept the prevailing order as its own framework” (Cox, 1981, p.129). This is significant because it suggests human rights’ liberalism will prevail so long as it assumes the legitimacy of the prevailing order characterised by capitalism. Thus, as opposed to being conscious liberal norms, which therein implies the possibility of altering its liberalism, the underlying assumptions of the Declaration’s economic rights render it intrinsically liberal. Because, by assuming the legitimacy of capitalism, a defining aspect of the prevailing order, and with the capitalist mode of production being one characterised by the Lockean principles of a right to private property (‘estates’) and access to markets, then rights will serve to legitimise and advocate for the preservation of that order, ensuring liberalism is integral to human rights’ furniture. The ontological liberalism of natural rights is also eternal intrinsic to human rights, because, human rights are incapable of defending this substantive liberalism, for, if legislation did, it would concede they are principles rather than rights. 

Hence, human rights are substantively liberal courtesy of its problem-solving methodology, and also in its explicit appeal to the liberal ontology of natural rights as a justifying base. Therefore, in order to cogently frame liberalism as critically undermining the emancipatory potential of human rights, this must be reasoned through a critique of the emancipatory potential of the substantive Lockean principles alongside the ontological justification of natural rights. 

Human rights’ means as coercive liberalism  

The liberal ontology of natural rights implies the emancipatory potential of human rights is self-evident because if natural rights exist, human rights are emancipatory in maintaining the rights which humankind are naturally entitled to. Equally, if the validity of this claim is invalidated, presenting liberal principles as incontestable rights unearths a deceptive element in human rights, facilitating a claim that human rights are coercive in their means, emancipations antonym. 

Donnelly and Griffin assert that human rights “are born out of the rights we have as human beings” (Donnelly, 2007, p.282). However, this assertion is impossible to demonstrate. Kant attempts to add a justification, claiming humankind’s rationality holds intrinsic worth, “realised in the adoption of humanity as an end in itself” which is deserving of respect through natural rights (Kant, 1964, p.96). Yet, it does not follow from humanity’s capacity for rational thought that humankind holds self-evident rights. Kant’s argument is undermined by its fallacious circular reasoning, as he ironically appeals to humankind’s capacity for rationality to justify a set of natural rights, but this justification holds no rational basis, due to a lack of capability to clarify or demonstrate it. However, Dworkin critiques this counter-argument, emphasising that “it does not follow from the fact that a statement cannot be proven that it is not true” (Dworkin, 1976, p.81). Dworkin is correct, an absence of demonstrability cannot be conflated with an absence of existence, but, this distinction holds no academic weight. For, as Macintyre notes, Dworkin’s argument can be applied to justify the existence of “witches and unicorns” (Macintyre, 1980, p.69). Even if one concedes that a natural right or a unicorn could exist, proving it is impossible, which ensures that they are asserted as self-evident by Kant, Locke, Griffin and Donnelly. 

Cohen contended that ‘bullshit’ in academia stems from an argument holding “unclarifiable unclarity,” that is, lacking clarity due to an inability for clarification (Cohen, 2013, p.4). This reliance on self-evidence renders the liberal ontology of natural rights as incapable of justifying the implementation of human rights, due to reliance on self-evidence rendering them a phenomenon that is impossible to clarify or demonstrate, ensuring defences of them are ‘Cohen-bullshit’. The Cohen-bullshit of liberal ontology is debilitating to human rights’ emancipatory potential in two ways. First, it shows human rights are not self-evidently emancipatory due to upholding the liberal natural rights of mankind, with the illegitimacy of this liberal ontology ensuring human rights lack a concrete justification. This forms the basis for our second point, for, utilising the liberal ontology of natural rights “as if it could provide us with a rational criterion is to resort to fiction” (Macintyre, 1981, p.70). This is critically debilitating to the emancipatory potential of human rights when combined with the knowledge that UN Declaration acts “as though such documents are the final truth, [implying] that questioning its doctrine is perverse and unwelcome,” unearthing a distinct purpose to commit Frankfurt-bullshit (Mutua, 2008, p.30). Frankfurt-bullshit is a desire to persuade regardless of the truth, and the process of the human rights regime utilising Cohen-bullshit argumentation as a means of justifying and presenting substantive liberal principles as incontestable morality is Frankfurt-bullshit (Frankfurt, 2005, p.19). This Frankfurt-bullshit excavates human rights as a project concerned with persuasion, rather than truth, allowing for it to be conceived of under the Marxist theories of cultural hegemony and a tool in the reproduction of the ruling ideology, which implies that human rights’ liberalism renders the project’s means as inherently coercive, which is the opposite of emancipation. 

Gramsci’s theory of ‘cultural hegemony’ notes the capability of the ruling class to enforce their worldview as the dominant worldview, under which its participants perceive the dominant ideology, the status quo, as a given, in spite of the fact that the order will be aligned with ruling class interests (Gramsci, 2014, p.506). This force ensures that this dominant ideology is reproduced, catalysing the “interpellat[ion] of individuals as subjects” of ideology (Althusser, 1970, p.188). These theories are applicable to illuminate the coercive implementation of human rights, demonstrating that its liberal embeddedness renders them a hegemonic and ideological tool. Gramsci viewed the state as the force of cultural hegemony, not institutions. But, as Cox notes, institutions are “an expression of hegemony, [but] cannot be taken as identical to hegemony” (Cox, 1981, p.137). 

Evidence of the UN, the human rights project’s legislative embodiment being hegemonic is found in an examination of its policy. When the UN was formed, its stated primary aim was the maintenance of peace. This is consistent with Cox’s claim that “institutions … initially encourage collective images consistent with the power relations… [of] a particular order” (Cox, 1981, p.136). Yet, since the early 1970s, the UN has decreased its budget for peacekeeping relative to an increasingly dominant emphasis on “economic development and cultural exchange” (Meisler, 2011, pp.167-8). This economic development and cultural exchange involves advocating for access to markets and property rights across the globe via policy levers inclusive of multilateral aid and humanitarian interventions. These values are the same liberal principles which were previously demonstrated to be implicitly embedded in the UN Declaration of Human Rights’ economic rights. Hence, advocating for economic development and cultural exchange serves to advocate for the liberal human rights globally. Thus, the UN, the legislative and enforcing entity of the human rights project “become[s] the anchor for hegemonic strategy since they lend themselves to the universalisation of policy” (Cox, 1981, p.137). 

Therefore, the UN does not enforce human rights via the discourse of justifying its substantive liberal free market principles, or a defence of property rights, but through ‘economic development’ which implicitly legitimises and advocates for these substantive liberal principles. In doing so, the UN not only entrenches the ruling ideology but ensures the reproduction of ideology by deceptively presenting these principles of the prevailing order as a given, unearthing the sinister coercion in human rights which is incompatible with its emancipatory vision. 

Human rights can thus be critiqued on the grounds Horkheimer dismissed authoritarianism, for, they attempt to be “commands … [which attempt to] dispossess man of his own conscience” (Horkheimer, 1993, p.86). Because, the implicit advocating of these liberal freedoms and globalised spread of them “become[s] a command to conform to the social order based on commodity exchange, to the legal forms that rule it, the representations that justify it, and the practices they call for” (Bidet, 1970, p.27). This is critically undermining to human rights’ emancipatory potential because the coercive ideological interpellation of individuals is intrinsic to human rights’ adoption. For, the subject of ideology can “enjoy his symptom only as its logic escapes him – the measure of the success of its interpretation is precisely its dissolution” (Zizek, 1989, p.21). In other words, the success of liberal human rights’ implementation hinges on coercion because the concession of rights as principles rather than natural in turn concedes that human rights are principles as opposed to rights.  Contrary to being emancipatory, the liberal principles embedded in human rights ensure its coercion as the regime must necessarily present these liberal values as the incontestable rights of man based on the Cohen-bullshit of the liberal ontology of natural rights.  Liberal human rights which assert the validity of property rights and individual liberties to represent oneself on markets inhibits one the individual liberty to disagree with this form of freedom. Thus, liberalism in human rights is undermined by its implementation, which is, as Gramsci notes, “bureaucra[tic] … crystallization of the leading personnel which exercises coercive power, and at a certain point becomes a caste” (Gramsci, 2014, p.246). 

However, criticism of this reasoning, like Botting, claim that “human rights may be unicorns, but they can fight wicked witches” (Botting, 2016, p.65). This implies that the focus on coercive means overlooks the emancipatory potential in human rights’ outcomes. Moreover, Beitz dismisses natural rights, but upholds their ability for “remedying injustice” (Beitz, 2003, p.38). However, while “a means can be justified only by its end … the end in its turn needs to be justified” (Trotsky, 1938). Thus, the response to these critiques is to counter them by extending the argument, contending that the ‘ends’ of human rights that Beitz and Botting hail are not emancipatory, and that the freedoms offered by liberal economic rights are barriers to human emancipation, rather than the guarantor and embodiment of it. 

Liberalism rendering human rights untenable in its ends 

Charvet and Kaczynska-Nay claim that if granted liberal rights, “human beings…are able to take major decisions for themselves [and] it [is] wrong to subject them to the coercive authority of others” (Charvet and Kaczynska-Nay, 2008, p.317). Yet, human rights are a ‘coercive authority’. To illustrate this, human rights are rights to non-interference, which view emancipation as found in our restraints from one another, rather than in our relationships with others. Marx expands, suggesting “none of the so-called rights of man … go beyond egoistic man; an individual withdrawn into himself, into the confines of his private interests and separated from the community” (Marx, 1844). Indeed, ‘lives, liberties and estates’ are means for pursuing private economic interest, which illuminates a paradox in that for those without capital, these liberal freedoms granted under human rights allow them to sell their labour ‘freely’, but in the process, loses their freedom because, as Zizek illuminates, “the real content of this free act of sale is the worker’s enslavement to capital” (Zizek, 1989, p.21). These liberal rights are bourgeois rights, which reflect the interests of the dominant class, ensuring human rights are exposed as coercive not only in their means, but the freedoms themselves are paradoxically coercive. Indeed, “every ideological universal” including human rights to individual liberty, self-determination and property rights “are false as it necessarily includes a specific case which breaks its unity, lays open its falsity” (Zizek ,1989, p.21). Hence, liberalism’s principles are both integral to human rights and incompatible with emancipation due to its freedoms paradoxically containing barriers to freedom and emancipation.

Charvet counters that those without capital are not enslaved by it because “liberalism protects … the freedom to pursue excellence” (Charvet and Kaczynska-Nay, 2008, p.317). Yet, this claim implies that excellence is achieved through becoming bourgeois, exhuming their faulty definition of emancipation, catalysing further emancipatory issues with liberal human rights. Because, insisting that liberal human rights ensure emancipation through giving citizens aspirations to hold capital assumes the belief that “by abolishing [their] existence as bourgeois, you abolish [their] existence as an individual” (Marx, 1977, p.101). Indeed, for Charvet and Kaczynska-Nay, becoming bourgeois is emancipation’s end, with liberal human rights providing the framework. Therefore, they believe themselves to be “an individual only insofar as he is bourgeois” (Marx, 1977, p.101). By hailing liberal, bourgeois rights to property, individual liberty and self-determination as the embodiment of individuality, Charvet and Kaczynska-Nay tacitly deploy the ontology of natural rights refuted earlier, and consequently, hold no rational justification. Indeed, this identification of private property as the abstract embodiment of the emancipation of individuality, neglects that it is Lockean principles are, as Marx notes, “social relation[s] corresponding to a definite stage of production,” namely capitalism, and could only be considered individual “so long as they have not become fetters of the existing productive forces” (Marx, 1977, p.102).

Moreover, to emphasise this critique whilst accentuating human rights’ liberal freedoms as coercive, Charvet and Kaczynska-Nay neglect that the coercive enslavement to capital is not constrained to workers, but also encompasses the bourgeoisie due to the competitive nature of capitalist markets ensuring “most of the surplus value squeezed out of the workers is not consumed … [but] is reinvested in further production” (Callinicos, 2012, p.127). The bourgeoisie are enslaved into a cycle of continuous production of capital accumulation for its own sake, becoming cogs in the reproduction of the capitalist relations of production, yet Charvet and Kaczynska-Nay hold this as the pinnacle of excellence obtainable through liberal freedoms. Hence, human rights’ liberalism does not lead to emancipatory ends for either bourgeois or proletarians, and therefore cannot reward excellence. 

Hence, the final task is to demonstrate that the above ensures liberalism renders human rights entirely incapable of emancipation, a contention subject to criticism by defenders and critics of rights alike. Kolakowski criticises the employment of Marx to disregard human rights’ capacity for emancipation, arguing that “although Marx despised bourgeois rights, he never argued it did not matter whether those rights were valid in bourgeois society” (Kolakowski, 1983, p.85). Yet, bourgeois rights can only be defended within bourgeois society if two assumptions are held. First, that bourgeois rights, despite their flaws, improve the livelihoods of citizens within bourgeois society. Second, one must also assume the presence of bourgeois rights does not act as a barrier to greater emancipation. Yet, Marx proclaimed that “in reality it is a question of revolutionizing the existing world, of practically attacking and changing existing things” (Marx, 1977, p.62). Thus, if Kolakowski’s reading of Marx is correct, Marx was contradicting his own aims, overlooking bourgeois rights as the antithesis to revolutionary, emancipatory change. 

The presence of bourgeois rights which improve lives in bourgeois society, simultaneously act to ensure that bourgeois society is maintained and legitimised, rendering human rights untenable as an emancipatory project to an absolute extent. Mutua, whilst recognising the limitations of human rights’ liberalism, objects, claiming this view is “an abdication [which] … seek[s] to paralyze ourselves intellectually, so we have a rational excuse for doing nothing … this is cowardly [and] nihilistic” (Mutua, 2007, p.19). Yet, Mutua does not justify that this nihilism is misdirected, and suffers from a phenomena Horkheimer noted of the “self-imposed obligation to arrive at a cheerful conclusion … [and] effort to meet this obligation is one reason why a positive conclusion is impossible” (Horkheimer, 1993, p.87). Because, reconstructionist arguments like Mutua’s insist on trying to remedy the symptoms of the disease in the short run, proposing that African countries require “direct foreign investment, aid, and better trade terms” but in the process, Mutua’s proposals reinforce the liberal principles of human rights and serve to aggravate the structural issues (Mutua, 2008, p.37). Mutua is ‘utopian’ because reconstructionists strive for a society which operates “without the point of exception functioning as its internal negation” (Zizek, 1989, p.23). While one can sympathise with human rights’ utility in improving lives in bourgeois society, this cannot be conflated with being emancipatory. Because, these rights, to quote Wilde, are akin to “slave-owners … who were kind to their slaves, and so prevented the horror of the system being realised by those who suffered from it, and understood by those who contemplated it” (Wilde, 1891). 

As clarified earlier, if the end of human rights is to justify as emancipatory to any extent it must, as Trotsky notes, “increase the power of man over nature and … [abolish] the power of man over man” (Trotsky, 1938). Due to its liberalism, human rights fail to this end. While they hold a capacity to dilute problems of the structural issue, they remain a barrier to emancipation courtesy of reinforcing its liberalism, and the coercive practices and paradoxical freedoms it offers – an issue which can only be sufficiently overcome by abandoning the project by reconfiguring the world order. This sounds utopian, but in a different manner to Mutua, because the analysis suggests this is the only sufficient solution, having demonstrated the incompatibility of human rights’ intrinsic liberalism with achieving emancipatory ends. In the human rights projects’ attempts to partially alleviate the issues derived from the paradoxical liberal freedoms offered by it, those liberal, paradoxical freedoms continue to be legitimised and reinforced, ensuring liberalism entirely undermines the emancipatory potential of human rights.

Conclusion

Human rights are intrinsically liberal, substantively and ontologically, and this liberalism entirely undermines the emancipatory potential of human rights. First, it was demonstrated that human rights are liberal as they share the ontological assumption of natural rights and implicitly advocate for the substantive Lockean principles of ‘lives, liberties and estates’ courtesy of its problem-solving methodology which assumes the legitimacy of the prevailing order characterised by a capitalism as the framework for action. This rendered its liberal features as eternal to the corpus’ identity. 

Secondly, it was established that the human rights regime’s justificatory base is reliant on a defence of the liberal ontology of natural rights, a phenomenon which was categorised as Cohen-bullshit due to lack of demonstrability and clarity. This demonstrated that the human rights regime’s liberalism renders it incapable of rationally justifying its emancipatory capabilities. Moreover, this Cohen-bullshit base was demonstrated to hold a distinct purpose to present liberal principles as incontestable morality which unearthed a deception in human rights’ implementation which allowed for it to be conceptualised under Gramsci’s notion of cultural hegemony and Althusser’s ideological apparatus. Thereby, it was demonstrated that human rights’ liberalism renders it a coercive project in its means which interpellates individuals into subjects of ideology, which cannot be defined as emancipatory. 

Finally, this was accentuated by arguing that the Lockean liberal principles in human rights hold a misguided conception of emancipation, viewing emancipation as found in our restraints from one another by enforcing non-interference, rather than in our relations with others. Furthermore, in addition to the aforementioned coercion in its means, the liberal principles of ‘lives, liberties and estates’ are also  coercive in their ends because of the paradoxical freedoms it offers through individual liberty and property rights, which come into antagonistic conflict with the capitalist mode of production by seeking universality without its internal negation. This ensures that the free act of selling labour removes freedom through enslavement to capital. Thus, the emancipatory potential of rights is entirely undermined by its liberalism, because enforcing these bourgeois, economic rights will reproduce these coercive relations of production, exacerbating the structural issues rather than emancipating individuals from them. 

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