Right(s) now!
Pro: Rights and radicalisation
There are good reasons to get our hands „dirty.“ Not only because demands for rights and for participation have a long history. And not only as a purely tactical reference to existing, albeit insufficient rights. There are two other, key arguments, why the radical left should claim
the terms as their own:
(a) The political discourse gyrates around democracy and human rights, the radical left should be able to express itself in this language. Referring to these terms could be a way out of public marginality for the radical left.
(b) There are worlds between claim and reality in the legal concept. To immanently criticise the contradictions of rights, to use its claim against the material reality and beyond it; this can contribute to a radicalisation of society.
Why „Rights“?
Rights are an expression and codification of relations of power in society. No capitalism without the right to private property, no market exchange without legal regulation. And: bourgeois rights are inseparably connected to the monopoly of violence of the nation state. Rights relations are therefore, potentially, violent relations. However: rights in their concrete expression are also always a result of social struggles. The struggle for rights was a central strategy of Western workers and of the women’s movement. And for social movements in the global South, it is (still) self-evident to operate with the term rights: the right to land, the right to political expression, the right to elementary human rights.
The fact that many rights are taken for granted in the “affluent societies” of the North emerges now that they are being questioned: protective rights against state intrusion and repression are being undermined by the global expansion of security legislation; economic, social and cultural rights are under pressure through cuts in welfare and the ethnicization of conflicts; and, as national states operate increasingly repressively, political and participation rights are playing a more and more marginal role in bureaucratic and internationalized governance structures. This tendency towards disenfranchisement has not gone unnoticed by the bourgeois media. Reason enough for a radical and internationalist left not to ignore this debate.
The Rights of the Others
Rights are claims that are made by everyone, and that can be demanded by „the others.“ Most bestowed rights, however, are connected to citizenship, and even the principally pre-state human rights need national states to recognise and implement them.
The tendency towards generalisation is, however, immanent in the structure of rights: the law is no respecter of persons. Although this myth of equality before the law is one of the great lies of bourgeois society: apart from the exclusivity of citizenship, the existence of social classes
and the unequal distribution of resources that is connected to it makes political rights a privilege of the few.
But: the internal contradiction of rights, between the principle of equality for all and the real social, cultural, and individual differences can be radicalised. The moral claim of bourgeois (basic) rights, “to always see the others as the ends and not the means” (Kant) – can be used to hold the constitutional state to ransom. Rights can thereby become the truth of the pudding for the marginalised, strangers and “superfluous.” In this spirit, following Rosa Luxemburg, and against the legal practice, the following can be postulated: rights are always the rights of the others.
Point of no Return
Another emancipatory aspect of rights is the protection and codification of achievements of struggles. Even though rights have to be fought for and defended again and again, they still constitute a reference point in everyday life, and often guarantee enforcement of legitimised entitlements. A radical left cannot leave this to the state. The innovation of the discussions around Global Social Rights (GSR) as opposed to the human rights discourse is to appropriate these rights in everyday struggles. Appropriation means to decide oneself the content of these rights, to adapt them to one’s own way of life, to define the modalities in dealing with legal entitlements – and not to leave this to state procedures.
However: trusting in solidarity or in disadvantaged individuals and groups to fight (again and again) for their rights cannot substitute for a state guarantee of rights, however limited this might be. The individual or collective “do it yourself” leads to new inequalities. In the process, those who have already learned how to fight and to organise are at an advantage. If rights are rejected as state-oriented or structurally violent, how then can a line be drawn behind which hard-won and socially accepted entitlements cannot be withdrawn? What is emancipatory about a society in which every right needs to be fought for day after day?
GSR and Participation
Truly liberal, we could tell the rulers, would be to guarantee social rights. The demand to understand economic, social and cultural conditions as political and not as personal, goes to the heart of the liberal contradiction. The acknowledgement of economic, cultural and social rights has long become common sense in the human rights discourse, but not in dominant public discourse, to say nothing of social reality. This is where a radical or radicalising reference to GSR can intervene and drive the half-hearted incantation of human rights as just “political freedoms” beyond its own restriction. The demand for and the appropriation of political, but above all social and cultural rights could then become a convergence point of diverse and global social struggles.
The realisation of GSR would then mean self-determination and participation in all public decisions. Participation cannot (only) mean the inclusion of people in existing, usually state, mechanisms of social negotiation. Participation in its radical sense would mean to create the material conditions for the possibility to raise one’s own voice and to organise. The discourse on rights, with all its contradictions, offers the chance to intervene radically in this sense and to create connections between large numbers of struggles taking place across the globe. Why should we ignore this opportunity?
Contra: De-juridification versus submission to the status quo
“So it's not a coincidence that these - in their wording - “universal” declarations only confined themselves to re-establishing an European order and ... ultimately save White Europeans from themselves.”
Rights do not protect the excluded but rather create them. On the one hand, the legal order has the character of a flexible, differentiated system – as demonstrated by the manifold exclusions of refugees – but on the other hand it serves as an order to enforce (supposedly) inalienable rights. However, these rights only apply if they are guaranteed by a supreme power.
So the question of rights is always connected with their enforcement. The typical, though not only, form of rights is the state-sanctioned or supranational law, where a nation-state or a supranational institution (“the community of states”) is the enforcing power. For a legal order,
it is constitutive that it has to refer to something (in order to be applicable) – usually to a territory, a defined group of people, etc. And within this rationale, state-set rights are inclusions alongside which ‘others’ are excluded (e. g. non-citizens, since rights do
not apply to them or they are subject to “special law”). Moreover, law intervenes in a regulative and “normalizing” way, for example in gender relations and outlooks on life – e.g. by defining relationships as “fictitious marriages” (Scheinehen) or
as “Bedarfsgemeinschaften” (1), or by intervening into unemployment benefit recipients’ lives who are forced to move.
Therefore our goal cannot be a further juridification, but, on the contrary, should be a “de-juridification”. For example global freedom of movement is not imaginable as a right – as it is a question of open borders and unregulated movement (which no state can “guarantee”),
not of a universal codification of who is allowed to cross borders or who is allowed to stay or a definition of who is a “refugee”. Actual freedom of movement would thus be a state – not a state of law.
Legal certainty?
Rights usually refer to an enforcing governmental body. From a strategic point of view, it can sometimes be a useful means in order to achieve a short-term objective to denounce rights violations of this body in concrete political struggles. In that way, one can demand the compliance with,
or the enforcement of, principles this power is supposedly bound by, and consequently force it onto the defensive. However, we should not take the legal system more seriously than its founders: Just as the bourgeoisie ultimately have a tactical relation to the law, we ourselves should look
at it as a means to an end in social confrontations.
The term ‘right’ is not a term critical of power and domination: Laws control, in all spheres of society, who is (not) entitled to what. But this is exactly what should be challenged in the name of solidarity and self-determination. Also, the juridification of demands fought for
as an always new result of societal confrontations can be a partial success, but at the same time it is control and containment of the movement, i.e. an attempt to (re-)capture (collective) human practices. To be more concrete, the movement across borders taking place contrary to the law is
something different than “controlled immigration” that allows for the entry of a select few through the servants' entrance.
And even on once hard-won juridifications as expressions of movements’ successes no long-term guarantee is granted: Codified law also has an expiration date that is determined by the societal climate; and it is often broken exactly when it would be needed most.
Global Social Rights (GSR) – a state reformist project.
Hoping for a legal guarantee, the proponents of GSR always find themselves stuck with the dilemma of declaring the utopian character of their notion of rights, while at the same time actually recurring to the enforcement of those rights (by states). Consequently, the idea of the welfare state becomes the field of struggle, and the state a potential ally against the mechanisms of an uncontrolled, neoliberal market economy. To demand such rights on a global scale in turn means accepting the basic structures and believing that the European model of a socially cushioned capitalism is a realistic or desirable future for the whole world. The demand for global social rights (which, by the way, have existed for a long period of time in detailed UN Conventions) only at first glance seems to be a means for the emergence of a new transnational “convergence” of social movements. But precisely because a norm has to be universally valid and therefore applies independently of the individual case, it is not suitable as a reference for ideas of far-reaching plurality and their correlations (respectively, their conflicts). If demands are kept rather general, like the “right to food”, other questions follow: What kind of food? How much food? Does it matter how the food is produced? Etc. Thus, the line between a demand for standardisation through universally valid rights and the prerogative of interpretation of what the rights of others are often becomes blurred.
Shouldn't we instead say: “Que se vayan todos!” (2) – “They should all get lost!”? Let’s get rid of the representatives, of everybody who wants to take our place, who wants to speak in our name? If, however, the process of planetary liberation is sought in an alliance with the bourgeoisie, the sincere reference to rights and the appeal to “liberality” are comprehensible. But this is no solution to the problem of the weakness of the radical left, for there is no shortage of “directional demands”, common platforms and the like. There is rather a lack of involvement regarding real social contradictions, with the people who have to deal with them, and of finding ways to strengthen and politicise their obstinacy and resistances. Instead of entangling ourselves in debates that stay oddly bloodless and vanish quickly (who recalls the debate on appropriation?), we should get involved in the every-day struggles. There we can take up and perpetuate the elements of self-determination and self-empowerment that are expressions of antagonistic political and social processes. In this sense, the point is to understand and promote these utopian elements as a potential for real social change, and not to campaign for the idea of a better global legal system.
1) The term “Bedarfsgemeinschaft” was introduced into German social legislation with the Hartz reforms under the SPD/Green Party administration. Literally it means “community of needs” and refers to married couples, civil partnerships, relatives or persons living together who are assumed to be willing to support each other. In practical terms, it means that people on welfare who live in a “Bedarfsgemeinschaft” receive less money.
2) Central slogan of the movement of self-organization that arose from the crisis in Argentina in 2001.
