Defending rights against the right

The rights of those who have least are under concerted attack, says Nina Power. We must organise to protect them

February 22, 2015 · 14 min read

In a section of Capital entitled ‘The Limits of the Working Day’, Marx describes the antagonism between the labourer and the capitalist – the former wishing to limit the sale of his labour power to a ‘definite normal duration’ and the latter wanting to make the working day as long as possible in order to extract the maximum amount of profit. Both the labourer and the capitalist have ‘rights’, says Marx; both the seller and the purchaser are tied up with the law of exchange – yet in practice there is great asymmetry between these ‘rights’. As Marx goes on to say, ‘Between equal rights, force decides.’

What does Marx’s claim mean for any discussion of rights today? Should we look to an analysis of capitalist exploitation before we can understand what it means to defend human rights in the abstract? What does it mean, as Marxists, as anarchists, as ‘leftists’, to hold onto or defend particular rights or sets of rights – the European Convention on Human Rights, the right to protest, the right to a family life, the right to a fair trial, for example? What are the possibilities and limits of using ‘rights’ as the basis for political organising today?

We cannot begin any discussion of rights without first noting how completely they are under attack by the coalition government. Barely a week goes by without David Cameron or one of his MPs savaging the Human Rights Act because it means giving prisoners the vote or pulling out of Europe to put a stop to other such abominable attempts at creating more equal and just societies. In October, Cameron announced his plans for a new ‘British’ bill of rights, which would be rooted ‘in our values’ – our values, presumably, being those that would allow migrants to drown, terror suspects to be extradited to the US without charges or trial, defendants to represent themselves in court without access to legal aid, tax cuts for the rich and poverty for increasing numbers.

As Labour’s justice spokesman, Sadiq Khan, has pointed out, all this potentially UKIP voter-friendly talk of a ‘British bill of rights’ remains, perhaps deliberately, vague: ‘They can’t spell out, how it would differ from the Human Rights Act. If it is different, Cameron needs to be honest with the British people and say which rights he wants to strip from them – the right to a fair trial, the right to life, or perhaps the right to privacy or freedom of expression?’

In a strikingly familiar attack on the notion of rights 225 years ago, Edmund Burke, Margaret Thatcher’s ‘ideological mentor’, held up purported ‘real rights’ in opposition to the ‘false claims of rights’ – equality, liberty, fraternity – represented by the French revolutionaries. These latter rights were dangerous, claimed Burke, because they represented ‘metaphysical’, ‘abstract’ demands that would lead to everyone seeking to claim them, violently upsetting the existing order and displacing political and social elites who ‘know best’.

Burke thus defended rights only insofar as they accorded with the rule of law as determined by his class. Men have a right to ‘do justice’, Burke argued. They also have a right to the ‘fruits of their labour’ and to inheritance (presumably without taxation). ‘All men have equal rights,’ he wrote in 1790, ‘but not to equal things’, thus taking away with one hand what he had granted with the other. To demand an ‘equal dividend’ of money and power from the state, would be unjust, Burke suggested, because some would (and should) be able to start with more. The law, the political elites and ‘convention’ would determine what was and wasn’t fair.

It seems likely that Cameron’s proposed bill of rights, if it ever comes to fruition, would resemble something like Burke’s set of ‘real rights’ – those that overwhelmingly preserve capitalist relations, property ownership, inheritance and social hierarchies. Prisoners, the poor, those in need of legal aid, immigrants, the propertyless and the sick would presumably be excluded by omission, having little purchase in the current system.

Radical duty

Our duty, then, would appear to be obvious: to stop the dismantling of human rights and to preserve as much of the revolutionary fervour that guided the ‘abstract’, ‘metaphysical’ political imperatives that guided the French Revolution and that caused Burke so much anxiety.

Yet Marxists and others on the left have often been suspicious of rights talk. The export of ‘human rights’ by belligerent imperialist governments has been legitimate cause for concern in the sense that these campaigns are often clearly doing nothing of the sort and instead acting as a kind of cover-story for capitalist and colonialist takeover. ‘Rights’ seem to be something that lie on the side of the state, even if it is populations, or segments of populations, that have historically fought for them.

But what do we do when it is the state that seeks to abolish elements of itself? When the ‘withering away’ of the state comes not as a result of the actions and passions of revolutionary forces but as a consequence of neoliberal reform, privatisation, fire-sales and welfare cuts? If the state were seeking to abolish prisons, police and other elements of its repressive and oppressive functions, we would be able to celebrate a certain kind of destruction of the state and of state ‘rights’. Unfortunately, in the real world it is the rights of the worst off that are the first to go, the rights fought for by workers and the union movement for centuries, the rights demanded by those unable to stand alone. The rights that are left belong only to the fantasy image of homo economicus, that mythical Robinson Crusoe alone on his island, so beloved of economists and neoliberal states – acquisitive, selfish, isolated.

The destruction of the state by the state, and the elimination of rights by the right creates something of a paradox for the ostensibly anti-state left. As Stuart Hall put it in 1984:

On the one hand, we not only defend the welfare side of the state, we believe it should be massively expanded. And yet, on the other hand, we feel there is something deeply anti-socialist about how this welfare state functions. We know, indeed, that it is experienced by masses of ordinary people, in the very moment that they are benefiting from it, as an intrusive, managerial, bureaucratic force in their lives. However, if we go too far down that particular road, whom do we discover keeping us company along the road but – of course – the Thatcherites, the new right, the free market ‘hot gospellers’, who seem (whisper it not too loud) to be saying rather similar things about the state. Only they are busy making capital against us on this very point, treating widespread popular dissatisfactions with the modes in which the beneficiary parts of the state function as fuel for an anti-left, ‘roll back the state’ crusade. And where, to be honest, do we stand on the issue? Are we for ‘rolling back the state’ – including the welfare state? Are we for or against the management of the whole of society by the state? Not for the first time, Thatcherism here catches the left on the hop – hopping from one uncertain position to the next, unsure of our ground.

krauze-rightsIllustration: Andrzej Krauze

One can immediately see how much further the right has gone over the past 30 years, and how much traction the left has lost. The state these days is without doubt oppressive, obsessed with gathering information about its citizens and deeply punitive when it comes to punishing those – protesters, rioters – it deems to be unruly. But we hear much less now about its supposedly ‘managerial’ and ‘bureaucratic’ functions: not because these elements do not exist, as anyone who has tried to fill out a form to claim benefits will tell you, but because the centralising functions of the state have almost all been parcelled up and subcontracted out to private firms, attempting to make profits out of other people’s need.

The many deaths that have followed ‘fit for work’ policies and benefit cuts to the disabled and sick are grim indications of the end-consequence of this kind of approach. What does it mean to be ‘against the state’ and ‘against rights discourse’ when the daily elimination of these rights and provisions is being pushed through by your enemies with all the subtlety of a giant robot bulldozer in a glass factory? Rights may well be ‘bourgeois’ in formulation, but if the absence of some of them leads directly to death, deportation and dispossession, we need to think strategically about where our critique of rights might lead us.

We are certainly not in a position to celebrate the destruction of the welfare elements of the state, or the eradication of certain rights (to strike, to protest, to have a fair trial, to have a family life – particularly for those seeking asylum or residency) just because these eliminations make the state ‘smaller’. Besides, these gaps and privatisations correspond to a tightening up of other state functions, regardless of whether ‘the state’ now wears G4S or Serco uniforms. The shrinking of the state neither entails the freeing of the makers as laissez-faire libertarians might desire (in which case the banks should have failed and state bailouts should never have been given), nor the eradication of social control. On the contrary, we are more controlled, surveilled and punished as a consequence of the state’s shrinkage, at the same time as we are being less cared for by it.

Rights for all

How, then, to proceed? The anti-austerity movement, in all of its diversity, has campaigned on a variety of rights-based fronts, just as the very legal recourses to preserve these campaign tactics (judicial reviews, legal aid) are being taken away. Groups such as Fuel Poverty Action have cleverly used the language and rhetoric of rights discourse to create their own documents. Fuel Poverty Action launched its ‘energy bill of rights’ in October 2014, bringing together the demand for enough energy for cooking and heating (drawing implicit attention to the fact that ‘heat or eat’ has become a miserable choice for many) with a call for renewable, non-polluting energy sources.

‘We all have the right to affordable energy to meet our basic needs. We all have the right not to be cut off from our energy supply,’ the bill declares. Demanding that energy be put back into public hands (‘Energy should not be run in the interests of big business and shareholders. There is an important role for both local community ownership and democratic, public ownership’), it seeks to link up need, proprietorship and care for the environment. Fuel Poverty Rights’ bill might be idealistic, but we need to distinguish between rights that genuinely are for all (let’s just be careful not to call them ‘real rights’ as Burke has already tainted that phrase) and ‘rights’ that only belong to one class, even if they are disguised as ‘shared’ values, as is likely in Cameron’s proposed ‘British’ bill.

I have spent the past few years working for a campaign that explicitly includes the defence of a particular ‘right’ in its title, forcing me on occasion to think through the implications of such a demand. Defend the Right to Protest, formed in the wake of the student protests of 2010 which saw multiple injuries, violent police tactics, dozens of arrests and serious criminal charges brought against often very young protesters, does not regard itself as a friend of the state. On the contrary, we have campaigned persistently against certain elements of the state – the police, the courts, prisons – in the name of those who suffer most at its hands.

Are we demanding something from the state? Does this make our campaign reformist rather than revolutionary? There is always a question of strategy. Working with left-wing lawyers makes sense if you want to get people off ridiculous charges and prevent them going to prison, even if you don’t have any commitment to the law as such. Taking the state to court when you can – such as the attempt to challenge kettling as a police tactic, as one woman, Lois Austin, did for a decade, taking her case all the way to the European Court of Human Rights – is another option.

Learning more about the law has not made me like it any more, however. I loathe, for example, the way in which precedent in English and Welsh law precisely avoids any possibility of universal principles of the kind present in the European Convention. In the Convention, the word ‘everyone’ appears far too often for the liking of the right, who would much prefer it if they could stick to ‘us’, ‘them’, ‘enemies’, ‘the poor’, ‘terrorists’, ‘undesirables’ and other such imposed and constructed divisions.

As Edmund Burke put it, and the Tories surely agree, people should know their place: ‘The occupation of a hairdresser or of a working tallow-chandler cannot be a matter of honour to any person – to say nothing of a number of other more servile employments. Such descriptions of men ought not to suffer oppression from the state; but the state suffers oppression if such as they, either individually or collectively, are permitted to rule.’

Cameron and co are, it must be said, even less compassionate than Burke. Those at the bottom of the social hierarchy these days do not ever escape – whether through neglect or by active force – ‘oppression from the state’.

In the meantime

We would do well to return to Marx’s observation that ‘between equal rights force decides’, but also to the distinction he made between civil (or political) rights and human rights. Far from being simply dismissive of rights as such, as some have misconstrued him, Marx identified that individual rights (bourgeois property rights, for example) are often given an ideologically universalising sheen, masking the real inequalities, violence and injustice that underpin them.

Marx’s vision of an ideal society would render such rights irrelevant, dissolving the division between civil society and the state. But that does not mean that in the meantime we should dismiss all rights as ‘bourgeois’ or ‘individualistic’. Clearly the rights gained by working people to work less, to return to the discussion at the beginning of this essay, or for child labour to be curtailed or abolished (something that has not yet happened globally, of course), or to have a fair trial, or to live with your family regardless of what your passport says (if you even have one) are profoundly valuable and should be fought for at all costs, especially when the state is trying (and often succeeding) in taking them away.

As the Polish philosopher and historian Leszek Kołakowski put it in 1983: ‘Marxists . . . behave consistently when they fight for civil liberties and human rights in despotic non‑socialist regimes, and then destroy those liberties and rights immediately upon seizing power.’

We can today recognise his description of ‘despotic non-socialist regimes’ reflected in the policies of Cameron’s government, and in its relentless attack on rights and the welfare state. If we are still a long way from ‘seizing power’, in the meantime we ought to do all we can to preserve those rights that protect people from the worst excesses of the force of the state – rights, and the humans that need them, then, against the right, who would like nothing more than to eliminate one and exploit and punish the other.

Nina Power teaches philosophy at the University of Roehampton and is a founding member of Defend the Right to Protest

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