Review: What’s Wrong With Rights?

Radha D’Souza’s investigation into the international liberal rights regime is a welcome intervention that should make us question the framework of ‘rights’.

‘In the epoch of imperialism the struggle against capitalism is the struggle against imperialism and its ideology of rights.’ – Radha D’Souza, What’s Wrong with Rights, p. 71

It is not difficult to see that Radha D’Souza’s What’s Wrong with Rights was written by a lawyer. An enormous wealth of empirical data topples from every page in baffling and serpentine acronyms, exploring the relationship between NSMs, OSMs, INGOs, TNCs, GGPs, IEOs and IEMs in post-WC TMF capitalism. The book, despite being only 211 pages long, presents a constant challenge to any reader not keeping a strict mental note of every new abbreviation.

The fact that D’Souza is a lawyer is, however, a source of many of the books clearest strengths. D’Souza provides the reader with a rigorous and comprehensive account of the development of international law in the era following the Second World War, substantiating her arguments with in-depth individual case studies. For this reason alone the book is an invaluable resource, drawing connections between imperialism, international election monitoring, human rights, and the management of Third World debt into a compelling history of the contemporary international legal framework.

At the same time, there are points where it is clear that D’Souza is unable to break out of this legalism and its associated ideological paradigm. At several points in the book D’Souza’s argument seems to explore the contradictions of the international rights framework but stops short of reaching obvious conclusions, often falling back into utopian conceptions of the liberal social contract between state and citizen, which, it is imagined, has been distorted by imperialism and globalisation. It would not be fair to say that this shortcoming characterises the entire argument, but the book sometimes feels stuck in a confused tension between recognising the limits of rights-based activism whilst being unable to decisively connect these limits to a class analysis which could shed more light on the repressive character of law and state power.

D’Souza’s basic argument should not be unfamiliar to Marxists. She argues that whilst arguments based on ‘rights’ can seem to have an unproblematically progressive character, they are in fact deeply implicated in political assumptions which disorientate and demobilise precisely those movements which attempt to articulate their strategies through a rights-based discourse. A principal contention is that the discourse of rights characterises the strategies of the vast majority of ‘new social movements’, such as international charities and NGOs, in opposition to the previous politics of ‘old social movements’, such as socialist parties, trades unions, and anti-imperialist national liberation movements. D’Souza rightly points out that ‘liberalism’s core commitment is to alienable property as an inalienable right’^[1], meaning that rights, first and foremost, serve to regulate the exchange of commodities and to structure capitalist social relations. Rights are inextricably bound up with the social relations of capitalist modernity, and any appeal to one’s ‘rights’ implies a third party (usually the state) with the power to enforce those rights and a common interpretation of the meaning of those rights which is somehow apolitical. As such, rights in fact serve to mask the economic and political context from which they spring behind the fiction that we are all, as individuals, formally ‘free’ to enter into contracts to exchange our property, even though some of us, apparently by blind luck, have nothing to sell but our labour-power, whilst others own the means to employ and sack workers. The contradiction of capitalist legality rests on the fact that since we all have the same rights and are equal before the law we are ‘compelled to sell [ourselves] of [our] own free will’^[2]. Rights, therefore, even when they seem to promise equality, actually serve to protect the very property relations at the heart of capitalist inequality, and mystify the power of the institutions which enforce them.

However, What’s Wrong with Rights is not primarily concerned with this basic argument. The vast majority of the book is dedicated to understanding the way in which the nature of ‘rights’ is transformed by attempts to apply rights to an international legal framework and how this has confused the politics of progressive movements. D’Souza aptly demonstrates how ‘human rights’ have served the interests of global imperialism, and how an international rights framework has been consciously constructed by institutions such as the World Bank, the United Nations and the International Monetary Fund to assert the hegemony of the world’s most powerful nations and financial institutions. She also explores the way in which the internationalisation of rights and legality has necessarily involved the development of increasingly complex institutions and arbitrators beyond individual nation-states, and the inversion of relationships which had characterised classical liberal conceptions of the rights of citizens. For instance, the development of International Election Monitoring, premised on the ‘right to free and fair elections’, has, since the 1990s, developed into a broader project of ‘capacity building’ for liberal democracy, providing the justification for the UN and powerful imperialist nations to re-write entire national constitutions and restructure national economies in the interest of ‘democracy promotion’. D’Souza points out how, from the outset, International Election Monitoring inverted the basic conceptions of liberal democratic representation, constituting as it did a fundamental departure from principles of national sovereignty and non-intervention in the domestic affairs of sovereign states. The universal ‘right to free and fair elections’ provided the justification for inspectors from the UN and imperialist nations to monitor and even disqualify the results of national elections, delegating the interpretation of the national mandate to an international association of the world’s most powerful states. Similarly, D’Souza demonstrates how the management of international debt has necessitated the development of international risk-management frameworks, integrating ‘human rights’ into calculations of ‘corporate risk’. D’Souza traces how these new frameworks have then been used to reshape national economies to the benefit of transnational corporations under the guise of fighting ‘corruption’ and similar ‘human rights abuses’.

Despite using numerous case-studies throughout the book, D’Souza is primarily concerned not with examining the limits of specific rights, but with understanding what rights do, what political and social forces rights-claims set in motion. Following the Bolshevik legal theorist Evgeny Pashukanis, D’Souza observes that ‘social relations precede legal relations’^[3]; that is, legal arguments and assertions are the product of specific social relations, since they rely on normative ideas of moral and ethical ‘common sense’. The utility of D’Souza’s analysis is that it doesn’t stop at a superficial account of rights limited to a legal framework, but sets out to discover what forms of social relations provide the context for rights, and what impact rights, in turn, have on those social relations. When we talk about our ‘rights’ we are invariably relying on ethical and social understandings of what is meant by ‘justice’ or ‘fairness’; understandings that are normalised by society and form the basis of how we understand our own subjectivity and our place in the world. Crucially, when we talk about ‘our rights’, we rely, consciously or unconsciously, on an understanding of ourselves as ‘legal persons’ who are automatically entitled to certain legal protections and freedoms. D’Souza neatly observes that in this respect: ‘Rights are conceptual tools which create legal subjects capable of forming contractual relationships’^[4].

This gets to the heart of a Marxist analysis of law. Law is part of what is often called the ‘superstructure’; the complex set of social relations which buttress and support capitalist production and exchange. Everything in the superstructure necessarily also involves assumptions, ideas, and premises which support these social relations, the glue which holds them together and rationalises them, what is referred to in Marxism as ‘ideology’.

The concept of ideology is a tricky one in Marxism because it has a strict meaning, which refers to its place in a Marxist understanding of society, and a colloquial meaning, where it is often assumed to mean something like ‘illusion’; for most people in a day-to-day sense, ideology simply means a fixed set of political beliefs or principles, usually juxtaposed to ‘common sense’. In Marxism, by contrast, ideology is the name of the implicit assumptions, conscious and unconscious, which structure all social relations and all institutions – ideology is the answer to the question of how society reproduces itself, all of the understandings and assumptions that are necessary for society to go on, day after day. In this regard ‘ideology’ refers to a question which always has a material basis, and cannot be simply abstracted into the realm of ‘true’ and ‘false’ ideas. There is no economic or political process, no social practice, which can exist without an accompanying ideological complement. Law, and legal practice, is no different, and as Marxists, we cannot understand the law without also investigating the question of a corresponding ‘legal ideology’. As Etienne Balibar has observed:

Legal ideology is related to the law; but although it is indispensable to the functioning of the law, it is not the same thing. The law is only a system of rules, i.e. of material constraints, to which individuals are subjected. Legal ideology interprets and legitimates this constraint, presenting it as a natural necessity inscribed in human nature and in the needs of society in general.^[5]

As has already been noted, the law recognises ‘legal persons’ with the capacity to enter into contracts to alienate their property. This is the same thing as saying that ‘legal ideology’ transforms individuals into legal persons, since the law, with its coercive and ideological power, creates a set of social relations in which, in order to get by, in order to even begin to act in and on society, we must think of ourselves, even unconsciously, as legal persons. Likewise, legal ideology continually makes us believe, even against our better judgement, that the state is a neutral arbiter of social relations, since the very basis of our subjectivity as legal persons, or as citizens, depends on the implicit belief that, ultimately, the state is above the conflicts of society, and mediates them in the name of justice. Legal ideology, like all ideology, is powerful because it creates subject positions (establishing the reference points for our subjectivity) which predetermine our unconscious beliefs and the finite set of actions available to us. The fact that legal ideology continually forces us to think of ourselves as legal persons, with legal rights and responsibilities that are granted to us by law and enforced by the state, also continually reproduces the assumption that society is a collection of individuals, and makes invisible the structures which constitute class society. Legal ideology constitutes ‘legal personality’ by establishing an ideological relationship between individual citizens (and non-citizens) and the state, in which individual citizens are defined as the beneficiaries of state recognition.

From this it becomes clear that there are at least three statements we can clearly observe about the way that ideology operates: 1) there is no practice that does not require and reproduce an ideological complement; 2) ideology fundamentally creates subject positions which predetermine the finite agency of individuals (their practice) and their place within social relations, and 3) ideology, because it is the answer to the question of how capitalist social relations are reproduced, centrally concerns the primary apparatus of capitalist social reproduction: the State. It is for this reason that Marxist theorist Louis Althusser stated that ideology operates by ‘interpellating individuals as subjects’ through ‘ideological State apparatuses’ such as the courts, the police, the media, the family etc.

It is from this standpoint that we can both understand some of the strengths and weaknesses of What’s Wrong with Rights as Marxists. D’Souza’s analysis is materialist, recognising that understanding the politics of rights is not simply a question of studying the law, but also assessing the impacts of rights discourse on the terrain of legal ideology, i.e. what rights ‘do’ to social relations. Likewise, D’Souza recognises that the fundamental building blocks of liberal legal ideology are the reciprocal relationship between state and citizen – the book is an account of what happens when this relationship is disrupted by international capital. On the other hand, in grappling for an account of the contradictions of international legality, D’Souza has a tendency to forget the central role of the state in law and legal ideology. There are times when the book seems to lapse into a sort of nostalgia for ‘classical liberalism’ and the clear relationship between state and citizen on which it is based, which has been undermined by the internationalisation of rights, and times where D’Souza seems to be presenting the supposed erosion of classical liberalism as the threat to mass democracy, rather than identifying that threat as the capitalist state itself. Nevertheless, it is futile to complain that D’Souza does not manage to say everything at once, and the book remains a treasure trove of empirical data on the international rights regime.

Given the account of legal ideology given above, it is understandable that the reader might feel that the prognosis for revolutionary change seems quite hopeless, since we cannot think our way out of ideology. Against such pessimism, it is important to recognise that that first statement on the operation of ideology, that there is no practice that does not require and reproduce an ideological complement, works both ways. The key to new ways of thinking about the world, discovering new ways of imagining society, is in developing ways to act differently on the world. When we engage in struggle, when we act collectively, we also discover the basis of a subjectivity which is not defined by our individual legal personality. In realising our power, and the power of the working class, we gain insight into subject positions not determined by law and legal ideology, we establish the basis for forms of ideology which are the result of new forms of social practice. This is the same thing as recognising the truth of the materialist dictum that ‘being determines consciousness’.

D’Souza’s intervention is a welcome and necessary contribution because in questioning the utility of ‘rights’ it forces us to confront what else we might substitute to give substance to our struggles. Ultimately, this question forces us to confront a sobering fact that lies at the heart of revolutionary politics: that there is no form of hegemonic justice which is not, in the end, a reflection, however distant, of liberal legal ideology. For revolutionaries there is no final court of arbitration that will conclusively vindicate our efforts to build a better world, there is only the struggle. It forces us to recognise, in the words of Walter Benjamin, that ‘even the dead will not be safe from the enemy if he wins’,^[6] because even the moral and ethical frameworks which we take for granted, and by which we, and previous generations, are judged, are created by force and in struggle. Despite the allure of rights as a shortcut to express the injustice of the world around us, the language of rights hides from us the fundamental fact that we make our own justice, day after day.

^[1] D’Souza, What’s Wrong with Rights, p. 20

^[2] Marx, Capital, Volume 1, p. 543

^[3] WWWR, pg. 60

^[4] WWWR, p.57

^[5] Etienne Balibar, On the Dictatorship of the Proletariat, p. 67

^[6] Walter Benjamin, Theses on the Philosophy of History