2020s >> 2023 >> no-1432-december-2023

As the government considers whether to press on with yet another scheme that rides roughshod over human rights law, we must remind ourselves that rights are not really all they’re cracked up to be.

With the UK Supreme Court’s recent ruling that the government’s plan to deport refugees to Rwanda is unlawful, the attention of the political bubble in Westminster has turned once again to the Tory Party’s favourite bugbear, the Human Rights Act. Once again, the talking heads of British ideological conservatism have been trotted out to denounce the perceived pernicious influence of foreign judges, and call for the repeal of this allegedly unfair and un-British piece of legislation. The debate over the future of the much-maligned Act, which incorporates the 1950 European Convention on Human Rights into British law, has been brought to a boil in recent times by numerous pieces of government legislation which call into question its hallowed principles.

High-profile and divisive environmental protests by groups such as Just Stop Oil, and Britain’s largest wave of strikes since the late 1980s, have both resulted in repressive legislation, in the form of a Public Order Act and a Strikes (Minimum Service Levels) Act, both given Royal Assent in July this year. Before this, questions of human rights were raised by the Overseas Operations (Service Personnel and Veterans) Act 2021 and the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, both designed to grant immunity to certain agents of the state for infringements of the ordinary law.

Over in the liberal quadrant of the political spectrum, left-wing voices have reacted to such legislation with horror and dismay. For instance, in a recent interview on its website with Oliver Eagleton, Momentum, the ex-fan club of the ex-Labour leader, referred to this slew of new legislation as the ‘British State’s Authoritarian Turn’. Similarly, in response to the Supreme Court’s Rwanda judgment, Akiko Hart, the Interim Director of civil liberties pressure group, Liberty, accused the government of ‘dismantling the protections that keep us safe and allow us to challenge injustice’ so that ‘only they can win.’ On its website, Liberty hails the Human Rights Act as meaning that ‘you can defend your rights in UK courts’ and compel public bodies to ‘treat everyone equally, with fairness, dignity and respect.’ So the debate goes on.

In the mainstream perception of modern politics, socialists are expected by rote to join the chorus of voices crying out to protect our rights. There is certainly high pedigree in this expectation. After all, high-profile Labour Party figures have been supporting civil liberties as long as the party has existed; Clement Attlee and Harold Laski were founding members of Liberty in 1932, in response to police violence against hunger marchers. But this common conception of socialists as civil liberties crusaders is, ironically, further proof of these so-called socialists’ lack of any real red credentials.

This is not to say that socialists are opposed to the notion that people should be able to protest without being beaten up or arrested, or that individuals should not be dealt with unfairly. Rather, the socialist accepts that to expect such things from the capitalist state is a fairy tale. Human rights law is a noble thing, but under a capitalist economy, nobility is a bourgeois virtue. In reality, human rights rest upon a fundamental – wilful, gleeful – ignorance about the basis of capitalist society.

Bourgeois law, the law of the capitalist state, rests on a fundamental incompatibility between words and deeds, as recognised by all socialists; that the law treats us as free and equal individuals, but the economy treats us as slaves. This contradiction was at the heart of Marx’s thesis in On the Jewish Question. As Marx argued there, the political state is ‘the species life of man in opposition to his material life.’ The political realm is based upon citizenship, egalitarianism, and rights; civil society is based upon egoism, cut-throat dealings, and cold-hearted, calculated egoism. Thus we live in a world where voters starve, and citizens sleep in bus stations. We all have the right (at least on paper) to vote and protest our government, but none of us has the right to eat.

The self-proclaimed socialists of today’s capitalist left, in the Labour Party and outside it, would do well to remember the words of Evgeni Pashukanis, the Soviet judge and jurist whose seminal General Theory of Law and Marxism turns 100 next year:

‘The constitutional state (Rechtstaat) is a mirage, but one which suits the bourgeoisie very well, for it replaces withered religious ideology and conceals the fact of the bourgeoisie’s hegemony from the eyes of the masses’.

Pashukanis points to the ‘ties of mutual dependence’ between, for instance, peasants and landowners, or wage workers and capitalists. To Pashukanis (as to all Marxian socialists), it is these relationships of dependency which form the real basis of the state and its law. These ties are material ties, concerning our relationship to the sources of life, and affecting our ability to provide for ourselves as individuals. The law – law of property, law of contract, criminal law etc – are the state’s ideological reflection of these material ties. These material dependencies are the core from which the bourgeois state grows, and from which its law emanates. But to the legal theory of the state ‘it is as if they did not exist.’ To put the point in a more literary fashion, one need only note the wise words of Anatole France:

‘The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread’.

Sam Moyn, an American liberal professor, notes in his 2018 critique of human rights law, Not Enough: Human Rights in an Unequal World, that until the late twentieth century ‘people were overwhelmingly more likely to utter the word socialism than the phrase human rights in every language’. The growth of mainstream human rights politics has coincided with the death of a politics which, though flawed, sought if nothing else to articulate a vision of human freedom which reached beyond the confines of the bourgeois state and its limited rights; one based not upon legalistic idealism and the daydreams of bourgeois academics, but upon a recognition of the realities of a class-divided society.

In reality, we are not free, and no amount of human rights can change that. The Human Rights Act may sometimes allow you to enforce your rights in a British court, to a limited extent. But it does not guarantee fair treatment or dignity. The bills of rights and international treaties of the world cannot ever hope to accomplish such a colossal task when control of the resources and productive machinery of the world, on which we all depend for our day-to-day existence, is centralised in the hands of a tiny minority of individuals and regulated by the anarchy of a global market whose arbitrary spasms can bring down elected governments and throw millions into destitution overnight.

In reality, human freedom cannot be contained in the narrow and self-defeating limitations of human rights. Human rights – severely limited in scope, and enforced by capitalist states through gritted teeth or not at all – are merely a slapstick imitation of the idea that humans should live with dignity, respect, and community.

Socialists believe not in the ‘human right’ of the egoistic individual, but in the human freedom of the entire species. We gain our freedom by abolishing our rights; by abolishing the degrading class-divided economic structure and its authoritarian states which generate rights like a fire generates smoke. So if you wake up every morning to face the daily grind of wage labour, poverty, or the jackboot and the billy club; if you are struggling to be free in a world which has turned its back on you, stand up not for human rights, but for socialism. Forget the insipid and mealy-mouthed lawyer’s justice, and stand for a world where the means of life – the productive machinery of society and the goods it produces – belong not to one class, but to everybody as a community.

‘You are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody’ (Jean-Jacques Rousseau).

UTHER NAYSMITH

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