This article explores the prospects for theory and practice of the modern human rights protection. The author believes the human rights institutions to be currently in crisis mode because of their inability to overcome their dependence on the liberal doctrine of rights and freedoms being innate. This doctrine was imposed on the society as the only valid ideology that does not need any scientific verification or moral mediation and basically is a quasi-religious phenomenon. It was this very ideological and political dependence that caused the human rights movement to clash with the civil society and principles of democracy (as stated by the author) as well as split the human rights defenders into fundamentalists and postmodernists. Today, the human rights protection is the enforcing branch of government and a political subsystem, as it legitimizes and delegitimizes political subjects. The human rights institutions can retain their role in society by overcoming their dependence on liberal and other ideologies, abandoning the obsolete enlightenment concept of innate rights and acknowledging the priority of morality in the society.
enforcing branch of government, civil society, delegitimization, democracy, dereligionization, natural right, liberalism, morality, postmodernism, human rights, human rights protection, positive (civil) law, religionization, fundamentalism
The global crisis affected not only economics, but also ideology and political and social institutions, including those related to human rights protection. Society does not feel that human rights institutions could provide social opportunities, and perceives their activities as 'games' of the political class. A thorough analysis of both human rights practices and their theoretical basis is therefore in order today.
A vast majority of human rights defenders would readily admit that their work is based on the liberal understanding of rights and freedoms. We should therefore devote some attention to the origin of the discourse of rights and freedoms before speaking directly about human rights protection.
Origins of Rights and Freedoms Discourse
The idea of ‘basic’, ‘fundamental’ human rights and freedoms, such as the right to life and property and the freedom of conscience and speech, holds an important place in the theory of human rights protection. No matter how they are used by their owners, these rights and freedoms are of absolute value to the liberal thought. A special emphasis is given to their supposedly innate, or ‘natural’ character (‘natural right’ – jus naturale), which endows these rights and freedoms with their ‘inalienable’ quality. In other words, no one has the right to take those rights away. Hence follows the existence of some secondary, non-fundamental rights, which could be taken away or alienated. That thought is usually hushed up until it would suddenly emerge in the most unexpected situations when it materializes out of the blue that the rights to work, to housing, free education or direct democracy are not rights per se, but interests whose protection is not necessary as it may interfere with the provision of ‘basic’ rights.
It is implied that the ‘natural’, ‘fundamental’ rights do not depend on the place, time and specific legislation – in contrast to the positive rights, which are directly spelled out in the legislation. A paradoxical situation emerges in this case: although natural rights are elevated above all other rights, they are in no way specifically guaranteed. The importance of natural rights, which are independent of historical circumstances and shared by all the people in the world, creates a picture of society as a sum of mutually identical ‘universal’ entities possessing identical legal needs. Hence the practice of classifying individual rights as ‘universal values’, which also include pluralism. Here, the logical incompatibility of the idea of plurality and a single, standardized set of fundamental rights of the individual is usually not taken into account: the contradiction is interpreted as a sign of the highest truth according to the classical principle of credo quia absurdum.
We might note parenthetically that the idea of natural rights in its liberal version (apart from the ancient and medieval ones, which require separate discussion) comes from the corresponding doctrine of John Locke and Jacques Maritain. It should be noted that despite two centuries of development of philosophical and social thought, this idea has survived in liberal thought to the present day in an almost unchanged form since the Enlightenment. It emerged from the cultural soil of secularized Protestantism with its secular austerity, cult of ‘success’ (with its popular slogan of grace spreading with investment), and justification of social inequality through the idea of ‘being chosen for salvation’, obtained through a consistent interpretation of a number of Aurelius Augustine's ideas.
The set of basic, fundamental human rights in the liberal concept is thus the same for any person, regardless of their socio-cultural environment. And these are the rights which, according to liberal human rights activists, should be protected.
It is obvious that the concept of rights and freedoms is conceptually weak: being absolutized to such extent, the idea of rights therefore instantly negates itself, taking form of the classical liar paradox. It is enough to ask: does every person in every situation need to be protected? In case of the affirmative answer, ‘totalitarian’ subjects who deny the principles of human rights are also included into the field of human rights protection, which leads to a sharp decrease in the level of legal awareness in society, which inevitably serves to generate new human rights violations. The activities of human rights defenders thus turn into Sisyphean work, becoming meaningless. In case of the negative answer, the protection of human rights assumes a selective character, which means that its principles could not even for form’s sake be considered universal. This is what the situation is like in practice, and here we are dealing not with a civil religion, but with ordinary ideology and socio-political technology. The human rights community is not ready to live with this consciousness: it is a lot less profitable to be a technologist than a master of the dominant discourse and a bearer of social definitions, as practically stated, for example, in Article 2 of the Constitution of the Russian Federation, effective since 1993 after the well-known events.
There is only one way out of this vicious logical circle: to justify the universal character of rights and freedoms through the category of transcendence – through direct religionization. The concept then stands to attain a providential aspect that transforms the idea of methods and goals into the classic slogan ‘Do what you must, come what may’. In which case, the whole concept acquires the mode of legitimate irrationality.
It would seem that formally this is the order of action that currently takes place. The fundamental rights in the liberal discourse symbolize the sacred principle, which should be backed up by the hyperreality of absolute freedom. The problem is that, not being external to the concept of ‘rights’, this kind of religiosity is therefore unable to perform a legitimizing function. By virtue of the nominalistic rationality proclaimed by the Enlightenment way of thinking, it does not point to any transcendent object or instance outside the idea of rights and freedoms, and, being identical with it, cannot therefore serve as its basis. The ideology of rights and freedoms is thus transformed into a religious phenomenon, which determines its anti-historic character and the persistent desire to avoid rationalization and consistent argument. And rationalizing and arguing in favour of an object, even quite successfully, automatically deprives the object in question of its sacred character – even in light of the fact that to find a convincing argument for the existence of ‘innate’ rights and freedoms is hardly possible. Something requiring rational explanation can no longer be sacred.
Following the liberal philosophy of law, the liberal human rights doctrine is doomed to this kind of self-isolation due to a historical breakup with religious traditions. This is the price that the liberal project gets to pay for its nihilism (with the last phase of this nihilistic line of thought having generated the ideas of ‘the great disruption’ and the ‘end of history’ of Francis Fukuyama, ‘the new Enlightenment’ of Ulrich Beck, the endlessly continuing modernism of Jürgen Habermas, the idea of a non-political ‘traditional society’, etc.). Having during the process of secularization declared religion to be a ‘personal matter’, secular liberalism thus deprived itself of the opportunity to appeal to historical religion. There cannot exist a particular basis to a universal concept as it by definition requires a universal basis.
In this unenviable situation, the discourse of human rights and freedoms can only religionize its concepts and institutions while pretending to be unaware of the ongoing scientific debate about the nature of the individual, the essence of freedom and the different understanding of these categories in different cultures. The development of scientific and philosophical thought does not change anything in the once established system of liberal postulates. As will be shown later, this fact largely determines the dictatorial tendencies of liberal human rights theories.
Historical Fate of the Concept of Natural Rights
The speculative character and dogmatism of the liberal philosophy of law became evident as early as the nineteenth century. This was repeatedly pointed out by thinkers who shared the criticism of natural law theories from the standpoint of historical law; G. W. F. Hegel and the Hegelians in particular. The criticism continued into the twentieth century. The conservative philosopher Alain de Benoist, for example, openly described the liberal discourse of human rights as dogmatic, intolerant of dissent and seeking to convince the society of the absurdity of its criticism.
It was also noted that the concept of rights and freedoms does not include scientific verification or falsification and can on this basis be considered an unproven hypothesis or, speaking from the standpoint of falsificationism, be instead placed among unverifiable metaphysical doctrines like Marxism or Freudianism. Yet not only does the liberal worldview avoid the scientific verification of the doctrine of natural rights, it also separates it from ethics, historical religion and positive law. The doctrine thus stands to receive no conceptual grounds at all, and remains a system of theses that is ‘suspended in the air’. It is enough to doubt the self-evidence of this doctrine and demand proof, and the doctrine will automatically lose any logical meaning.
Every opinion about the liberal rights and freedoms thus turns into a tautology: something ‘is true because it cannot be untrue, and it cannot be untrue because that can never be’. As Alain de Benoist justly notes, ‘the further the discourse of human rights spreads, the greater grows the ambiguity of their nature and their foundations’ [3, p. 357].
And yet, despite the complete uncertainty of its conceptual status, the doctrine of natural rights and freedoms positions itself as an indisputable foundation for any opinion on social topics. Moreover, ‘the liberal doctrine of human rights becomes an academic discipline and starts to claim the status of a scientific theory’, while its adherents believe that it was ‘only discovered, as opposed to invented by the European ideologists of modern liberalism’ [5, p. 83]. It is noteworthy that special textbooks on this ‘discipline’ exist – in spite of the fact that rights and freedoms are not the subject area of any science, as they are postulated, but not investigated.
Extending as far as the sphere of science and education, the hegemony of the liberal human rights discourse tends to lead to the formation of rigid authoritarian ideology in which ‘the liberal understanding of law is identified with the understanding of law as such’ [5, p. 81-82] and, in a broader view, the liberal outlook is declared to be the only one that has meaning.
Based on the above, it is necessary to recognize that rights and freedoms are a mytho-religious phenomenon that claims to be the central element of the civil religion of any society, regardless of its cultural and historical features. But where Christianity and other Abrahamic religions perceive the value of the human person as the image and likeness of God, liberalism, engendered by secularism that had divested the traditional religion of its universal importance, is forced to religionize its own axioms by transferring to them the sanction of the sacred that it had taken from Christianity.
It gives rise, for example, to the religious discourse of ‘a free and successful person and his or her self-realization’, in which the person produces all of the criteria pertaining to him- or herself, using his or her intrinsically valuable judgement about whether or not he or she is free and successful, and whether his or her self-realization is successfully accomplished. This brings to mind the Hegelian World Spirit establishing and developing itself out of itself. As the idea of personal autonomy, freedom and self-sufficiency seems to determine itself, a logical circle is formed – only to be overcome by an arbitrarily constructed religious postulate. Instead of God, this quasi-religion centres on Man, not as a concrete person, but as an abstract identity in likeness of any other person – hence the use of the concept of ‘universal’.
No matter whether one chooses to term this process as self-reference or recursion, it must be noted that this kind of subject simultaneously acts both as an object and as the source for the concept of ‘universal’. This in turn points to syncretism of quasi-religious liberal thought, which brings it closer to the magical consciousness of the early pagan beliefs than to the later religious systems characterized by a developed moral and ethical sphere and complex rationality.
The creation of the quasi-religious construct of liberalism based on the idea of natural rights and freedoms presupposes the negation of another kind of religion – the one described by J.-J. Rousseau in his arguments about civil religion as the historical one. It is this epistemological attitude that the denial of Christianity within the framework of secular humanism is connected with. Ultimately, this denial also includes de-Christianization of law. The law is gradually ‘liberating’ itself from the original moral premises. Therefore, if we choose to follow de Benoist in considering Christianity as a remote source of the liberal conception of individuality, we are faced with the case of distorting the original idea till it becomes its own opposite. Thus, for example, where ‘the Christian universalism contains the idea of universal equality in the bud’, (de Benoist), the priority of this idea within the framework of the liberal understanding of rights and freedoms is extremely low, it being contradictory to the absolutized concept of freedom. It is not surprising that by the end of the twentieth and the beginning of the twenty-first century, the denial of Christianity had led the liberal philosophy of law to the denial of true democracy – that is, the one characterized by the equality of rights and the priority of interests of the majority. These concepts are branded as ‘vulgar’, ‘archaic’ or ‘undeveloped’ democracy, until they are finally called ‘populism’.
Discourse of Rights and Freedoms as a Social Braking Mechanism
The reason for the current theoretical vulnerability of the liberal concept of rights and freedoms is its close dependence on the long-outdated social and philosophical concepts of the eighteenth century. The philosophical thought of the nineteenth and twentieth centuries progressed and developed in collaboration with the historical analysis of society (from Hegel and the Marxists to Fernand Braudel, Immanuel Wallerstein and Pierre Bourdieu), while also giving rise to existentialism, depth psychology, philosophy of logical analysis, pantextualism and the archaeology of knowledge and finally to various types of religious neoorthodoxy. All these trends had actually passed the social philosophy of liberalism by without affecting it in any way. Meanwhile, by modern standards, the ideology of natural (innate) human rights could be considered as an anti-historical hoax of ‘false consciousness’ within the framework of ‘left’ thought. The neopositivist program of logical analysis of language (Rudolf Carnap, early Ludwig Wittgenstein and others) would see it as a set of statements free of meaningful content. Poststructuralist criticism would consider it as the separation of the sign from the referent (Jacques Derrida), neoorthodoxy (from neopatristic synthesis followers to the radical orthodoxy of John Milbank) – as a heretical quasi-religious construction of immanentist, secularist consciousness, etc.
Despite proclaiming the importance of social progress and generalizing and sacralising the very concept of ‘Progress’ at the level of rhetoric, the ideology of fundamental ‘natural rights’ remains, however, static and prone to be intellectually archaic, seeking to force the society to live by the standards of the eighteenth-century philosophy. Until now, this trend has only been worsening, thereby reinforcing the dogmatization and historical regression of liberal ideology. The latter kept losing its original energy, while turning into political demagoguery.
This kind of regression is clearly visible in the analysis of modern liberalism with, for example, the decline in its rationality becoming increasingly noticeable. The cult of scientific rationality, created by the Enlightenment, is giving way to neo-mythologization and irrationalization, as can be clearly seen in the example of the human rights doctrine, removed deliberately from the framework of scientific and social criticism and at the same time claiming the status of an academic discipline for no reason whatsoever.
And while in theory this is due to the religionization of the liberal doctrine of rights, whose principles are imposed upon society as an indisputable truth, in practice, these principles are instilled by political, economic and power methods. It is enough to recall the tolerant attitude of the human rights defenders to the oligarchic regimes and the so-called ‘humanitarian interventions’.
Yet no matter how much liberal human rights activists try to strengthen their exclusive status of a social arbiter and avoid choosing a valid rather than an abstract system of values, this path will remain a dead end and can only lead to new forms of totalitarianism. Trying to sit on more than one stool is fraught with a fall: sooner or later they are bound to drift apart.
At first, the ‘drifting apart’ will appear as the fragmentation of the ideological field of human rights concepts and the deepening of their contradictions, theoretical gaps and conceptual differences. Both the differences and the fragmentation have long been noted and recorded in the West, and on both political flanks, with the left criticism represented, for example, by Noam Chomsky, and the right by Alain de Benoist. The former argued that modern liberalism violated literally all the principles of classical liberalism . The latter, a philosopher representing the ‘New Right’, proposed in his work ‘Beyond Human Rights’ to distinguish between two types of liberal ideology – the classic enlightenment liberalism of J. Locke, J.-J. Rousseau, T. Jefferson, etc., and the modern liberalism, associated with the concepts of tolerance and multiculturalism . In the same work, de Benoist once again points to the ideological and unscientific nature of the liberal concept of rights and freedoms.
The situation is completely understandable. Having achieved hegemony and so aspiring to become something more than ideology – namely, the dominant identity in the society, liberalism moved on to historically absorb and assimilate left and conservative ideas, using them alternately and situationally, wherever and whenever it was convenient. In the context of the current liberal model crisis, we are gradually beginning to witness the reverse process: the growing criticism of liberalism from both right and left. It is as if the liberal Leviathan is expelling the discourses it had previously absorbed by appropriation and assimilation.
It is clearly a forced process. It means the need to discontinue playing for both sides of the board, supporting the right and the left in different parts of the world, for example, the workers' movement ‘Solidarity’ in Poland and the ultra-right circles like the Pinochet regime in Chile. Today’s political resource no longer suffices to keep up this balancing act.
At the next stage, the ideological divergence within the liberal discourse results in a split among the various political subjects, such as, for example, national and financial-globalist ones, and, which is especially important to us, among various human rights groups, which is an important sign of the crisis of human rights protection as such.
Splitting of the Human Rights Community
Two poles are increasingly emerging as the human rights community is divided into supporters of classical liberalism and adherents of postmodern liberalism. Classical liberalism stands to protect the ‘basic’ rights and freedoms of the individual. Postmodern liberalism is actively engaged in fighting discrimination and protecting the rights of small social, political, religious and sexual groups, viewed in opposition to the majority. Strictly speaking, both positions stand to contradict the democratic principles, since true democracy is based on the priority of the interests of the majority, usually reflected in one way or another in electoral procedures.
In this case, however, we are not so much interested in the conflict between the liberal activists and the real civil society, as in the division between the human rights communities or ‘generations’, to use the term coined by human rights activists that focuses on the chronology of the formation of ideological movements within the liberal human rights doctrine. The sharpest contradiction is quite naturally observed between the first and the last ‘generations’.
Director of the SOVA Center for Information and Analysis and human rights activist Alexander Verkhovsky wrote an article on this topic. A proponent of the priority of the private individuals and their basic civil rights, he criticizes his postmodernist colleagues who prioritize the protection of small social groups. Alexander Verkhovsky terms the classical liberal interpretation of human rights protection as ‘human rights fundamentalism’. This term attains a distinct positive connotation in his statements.
According to Alexander Verkhovsky, ‘The defenders of rights are beginning to specialize and different human rights sectors even embark upon confrontation (for example, defenders of freedom of speech and fighters against discrimination)’ . The conflict is likely to keep growing, and the views are going to get ever more radical on both sides. Postmodernists quite seriously intend to overpower their orthodox opponents during the struggle for space, which in this case is represented by the space of the human rights ideology, or, as some lawyers would dub it, ‘alternative law’ and its influence on a certain part of society.
To understand the causes of this conflict, it is necessary to take into account the late modern society identity formation mechanisms. From the postmodern point of view, every identity is in a sense a product of cultural ‘mosaic’, which is directly reflected in the ideas of philosophical and social constructivism. The constructivist idea of ‘imagined communities’, offered by constructivists and Benedict Anderson  in particular (see also the collection of essays titled ‘The Invention of Tradition’ edited by Eric Hobsbawm and Terence Ranger (1983) and the monograph ‘Nations and Nationalism Since 1780’ (1990) by Eric Hobsbawm), is designed not only to suppress historical communities (nations and religious denominations), but also to form new types of community – imagined, ‘project-related’, ‘algorithmic’ and ‘network’ communities developing on the basis of various social platforms. This also applies to the production of so-called local identities within the regionalist trends . The concept of ‘imagined communities’ allows to create social constructs and project ethnicities, claiming that they exist on equal rights with the historical communities: that the Siberians and the Cossacks are not Russian, for example, or that there exist the Pomor ethnic group, the ‘Kaliningrad ethnicity’, etc.
Here it becomes necessary to note an important circumstance: the explosive growth in the number of project-oriented ‘small groups’ (‘minorities’) is gradually changing the collective perception of both the individual and his or her rights. The individuality criteria set in the era of classical liberalism are ill-suited for the modern ‘minority society’. A postmodern individual is part of one or several communities, each of which has its own interests and, as a consequence, its own legal priorities. Thus, the conflict between the civil society and the official power, to which orthodox liberals attach so much importance, is in the end replaced by an endless struggle of small social groups. Each of these groups uses concepts and symbols that differ from the conventional concepts and symbols of orthodox liberalism. The social minority discourse is primarily concerned with discrimination and, accordingly, with the idea of group and cultural rights as opposed to 'universal’ ones. Orthodox liberals, meanwhile, associate anti-discrimination protection of rights with the sphere of ‘second-to-third order’ rights, and such group rights are very difficult to separate from group interests that are only using the human rights ideology as a cover.
From the point of view of orthodox human rights defenders, ‘either they are not human rights in the sense of ‘something that neither the states nor the powerful can take away...’ or they are not so much universal rights inherent to all people, as collective interests expressed in the form of ‘human rights’, such as the right of the employee for a vacation...’ . It is, unfortunately, typical that the human rights activist author also includes the social rights of the civil majority into ‘group interests’.
In the postmodern understanding, rights and freedoms tend to become much more instrumental, openly shifting from the sacralization of the ‘universal’ civil freedom towards the technocratic understanding of freedom as a sphere of concrete social and political possibilities.
This is the gist of the legal discourse of the postmodern minority society, which in a certain context becomes identical to the ‘consumer society’, ‘society of seduction’ (Jean Baudrillard), ‘society of the spectacle’ (Guy Debord), etc. While social minorities are successfully mastering human rights rhetoric and technologies, they still protect the interests of their group, and not the ‘basic’ rights and freedoms of the individual. This is the essence of the conflict that reflects the competition between the two types of liberal ideology. Old school human rights activists are losing the fight. Postmodernity wins. Fundamentalists, however, have little intention to yield. Quite the contrary, they view the postmodern approach as a threat to liberal human rights protection in general and give a rallying call to fight against this threat – ‘against the increasingly powerful identity policies...that split and even undermine liberal (and other) political nations and the very liberal structure of society (where it exists) with the use of human rights vocabulary’ .
It is worth noting how the intentions of liberal fundamentalists and postmodernists, equally nihilistic towards the values of traditionalism, are distributed. The former seek to preserve the unity and integrity of the legal space, even though placing in its centre an abstractly and scholastically understood private individual – a ‘common man’, devoid of socio-cultural mediation. The latter are gradually returning to the idea of mediating the rights of the individual by collective values and interests, considering the individual as part of the whole – the kind of whole, however, that has a project-related, as opposed to a cultural and historical origin, and where the historical subject is often replaced by a theoretical construct.
It goes without saying that neither position satisfies the criteria of cultural authenticity and traditionalism.
Problem of the Social Status of Human Rights Defenders
The social status of human rights groups raises as many questions as the theoretical foundations of the liberal doctrine of rights and freedoms. Liberal human rights activists are unable to support themselves with the classic democratic argument: they are not chosen or appointed by anyone. They choose instead to refer to the alleged spontaneous democratic nature of their activities, arising from the belief that anyone can theoretically become a defender of human rights, since protection of human rights is not a profession, but an individual civil choice.
Reality, however, begs to differ from this scheme. Human rights activities have over decades become much more professional. Its participants have formed close-knit groups with fairly clear ideologies and interests, making use of long-established media and other public platforms, where outsiders are not allowed. Should the author of this article wish to appear at one of these sites with his personal monitoring of the legal situation, he would stand very little chance to be accepted and heard there.
The number of potential ‘human rights defenders’ who are able and willing to speak out on the subject of someone's rights, is by several orders of magnitude greater than the number of those who have a real opportunity to do so. This is a situation where selectivity is inevitable, so any talk about universal participation does not make sense. And this is one of the undemocratic characteristics of human rights practices.
Compared to an ordinary person, human rights defenders seem to have a special immunity since law enforcement, investigative and judicial bodies try to ‘leave them alone’. Where for an ordinary citizen, participation in protest activities is fraught with the risk of detention and deprivation of liberty, known human rights defenders are as a rule eager to be detained as they see it as a means to earn political capital. Yet even if detention does occur, they tend to be quickly released. Official authorities may even fear to punish some leaders for real crimes, unrelated to politics and human rights protection – economic crimes, for example. In other words, although unofficially liberal human rights defenders speak against the ruling establishment represented by state institutions, they are in fact built into this establishment and form an integral part of it. Their role is to legitimize and delegitimize certain political actors, and to form decorative, allegedly non-governmental and non-political ‘civil structures’. The latter fact serves to significantly complicate the formation of real civil society institutions.
It is thus possible to define human rights protection as a subsystem of official politics, and human rights defenders as an integral part of the political class that performs special functions. It is, in fact, a special branch of government – the enforcing one. The right to exclusive social control gives human rights defenders the status of a privileged social and political group. By virtue of its independence from any electoral procedures, this branch of government is quite autocratic. Not being limited to representative procedures, the enforcing nature of activities of the liberal human rights community appears to be fully anti-democratic. Despite their ‘formally informal’ character, the activities of such communities are similar to those of the Soviet party bodies that used to claim the title of ‘the intellect, honour and conscience of our era’. A similar status is now being claimed by liberal human rights protection, which may be one of the main reasons for the sharp and active rejection of the Soviet project by human rights defenders: in the presence of fundamental differences, ‘the similar’ is always perceived more sharply than the decidedly alien and distant.
Human rights rhetoric does not so much regulate human rights activities as serve as a cover for human rights groups politically influencing the functioning of official institutions of power. This influence, as we have already mentioned, lies in the legitimization and delegitimization of power actors and their political practices, which in turn indicates the political and ideological nature of human rights activities.
A human rights defender is always a subject and never an object of legal assessment. He or she thus stands at the end of the political ‘chain’, theoretically receiving an unlimited power resource while also obtaining symbolic capital from the role of mediator between the private individual and the state. This status of a human rights defender is not compatible with the idea of universal civil participation in the protection of rights and freedoms.
Inevitability of Conceptual Bases Revision
As the liberal concept of rights and freedoms is historically outdated and theoretically vulnerable, the human rights activities based on it are in constant conflict with civil society and its interests. Without a fundamental review of their ideology and practices, human rights groups stand to lose the last vestiges of public confidence. This review is both necessary and inevitable.
There exist today a number of important prerequisites and a set of serious historical, moral and legal grounds for this kind of review.
For example, when the Helsinki Accords, which to a large extent influence the letter and spirit of modern human rights concepts, were signed in 1973, the observance of ‘universal’ civil rights was linked to the inviolability of borders in post-war Europe. The cancellation of the last condition makes it possible to cancel the main body of the accords, which have anyway become obsolete and objectively require replacement.
The revision of the liberal concept of rights and freedoms and the principles of human rights activities should be started with the return to the unresolved, and actually ignored dilemma that arose during the discussion of the format of the basic human rights under the Universal Declaration of Human Rights.
On 10th December 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. When its principles were being developed, a ‘dissenting opinion’ was heard among the developers. A group of scientists from the American Anthropological Association, led by Melville Herskovits, issued a Memorandum questioning the globalist concept of human rights. The Herskovits group stated that standards and values are specific to the different cultures they originate from, which makes it impossible to create a single and universal (globalist) list of rights and freedoms.
The warnings of the Herskovits group were rejected by the UN, and subsequently effectively silenced. Today, however, this alternative version of the main articles of the Declaration is very important. Its presence suggests that the traditionalist (authenticist) concept of human rights has already been developed and exists in a format that meets legal requirements.
The wording of the key part of the Declaration of Human Rights created by Melville Herskovits reads as follows:
‘World-wide standards of freedom and justice, based on the principle that man is free only when he lives as his society defines freedom, that his rights are those he recognizes as a member of his society, must be basic’ .
The concept of the Herskovits group should be taken as a basis in the process of rethinking the ideology of rights and freedoms.
The principle of differentiated and free choice of legal priorities by subjects of law, regardless of any third party (‘enforcers of rights’), should be recognized as the most important principle of future concepts of rights and freedoms.
Let us give a simple example: for a young person, the right to equal and free access to higher education (a social right) will constitute a priority and thus be ‘fundamental’. For a person of pre-retirement age, it will be another social right – the right to retire without raising the retirement age. For a politician, it will be the right to be elected to government bodies, as it is a professional interest of his or her social group (both social and political right). The list of fundamental rights should vary depending on the differences in the socio-cultural contexts of their application; one list cannot serve for all, like a religious dogma.
Building New Human Rights Protection Mechanisms
As much as human rights protection is necessary for society, the currently dominant liberal human rights doctrine needs rethinking, which will inevitably start with theory.
The liberal concept of human rights protection initially had a serious theoretical vulnerability. This has been shown by public practice – in particular, numerous examples of political arbitrariness and partisanship of human rights groups.
If human rights groups are to claim a socially useful role, they must reject liberalism as a discredited totalitarian ideology. The principles of protection of rights and freedoms can and should be conceptualized outside the field of this ideology, as well as other known totalitarian ideologies, and meet the criterion of ideological equidistance.
Human rights protection needs to be dereligionized. It is necessary for this purpose to fix its basic principle: the rights are not innate properties or attributes of a person, but a social institution, the result of this or that social structure. Human rights protection, like ideology, is a subsystem of politics and an enforcing branch of government. It serves the core values of society, whatever those values may be. Law is an extension of these values – a set of mechanisms that transform them into social norms (ideals, prohibitions, regulations, common patterns of behaviour in typical situations).
Only the moral mediation makes human rights effective.
Social rights are the most important ones in any state, since they are equally accessible to all members of society, and this accessibility is guaranteed by the very nature of this type of rights. This priority corresponds to an important moral principle – the principle of justice, without which rights, freedoms, values and rules of conduct lose their credibility and claim to universal character.
The cultural specificity of the law should be recognized. Each culture has a different understanding of personality and individual rights (the self-concept of a German and the self-concept of a Chinese person make for two different self-concepts). Therefore, declaring certain rights as universal (transnational) will always place one society in the dominant position over others.
It is national, rather than ‘transnational’ law that has priority in ensuring the legal status of the individual. This principle is legitimized both by the possibility of democratic expression of the will of each particular people and by the cultural specificity of legal institutions. Otherwise, there is a high probability of cultural hegemony and neo-colonialism under the guise of ‘transnationality’. ‘Transnational law’ is not sanctified by the will of a people and is therefore anti-democratic.
The spirit and the letter of the Universal Declaration of Human Rights need to be updated, and the list of rights – to be expanded and corrected in accordance with the socio-cultural characteristics of the subjects of law. The right not to starve, the right to security, to work, to housing, to education and health care, the right to control the media are the ones without which the list of rights turns to fiction.
A strong state will serve as the main guarantor of citizens' rights, and moral norms and cultural tradition – as their source. The priority of negative (civil and political) rights over positive (social, cultural and economic) rights is not compatible with the idea of protection of human rights and the rule of law. This approach inevitably ends with the infamous formula: ‘The state does not owe you anything – it did not ask your parents to have you’. The official who uttered these words proceeded from the principle of social and legal non-interference of the state, that is, from the priority of negative rights. This position is unacceptable for a representative of the state that lives on the taxes paid by citizens.
Civil, social and cultural rights can only be secured together, they cannot be separated and positioned on top of each other. It is equally pointless to divide rights into individual and collective: in case of violation, the rights of the individual and the rights of a representative of a social group (society, people, nation, religious denomination) are violated at the same time.
Today, more than ever before, human rights protection needs to move away from fundamentalism, to search for moral grounds and to approach the principles of true democracy.
The principle of social and legal equality is essential for the renewed concept of rights and freedoms. The prototype of this principle, from the Christian point of view, is the equality of people before God, but other forms of its justification can also be found.
List of References
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About the Author
SHCHIPKOV Aleksandr Vladimirovich is a Doctor of Political Science, Professor of the Religion, Philosophy and Religious Studies department at the Philosophy faculty of Lomonosov Moscow State University, and Advisor to the Chairman of the State Duma of the Russian Federation. E-mail: firstname.lastname@example.org
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