The Human Right
Not a week goes by without someone accusing somebody of some human-rights violation. The accusers are politicians, journalists, and speakers from organizations committed to improving moral conduct in the world of states; generally they reside in the free West. The accused are generally politicians somewhere else, foreign governments, and “self-appointed” rulers. The court expected to take up the charge is primarily the international democratic public, i.e., more of an imagined judge, whose penal power consists in defaming the accused. When state powers capable of asserting themselves worldwide act as prosecutor, they not infrequently go ahead and declare themselves to be both judge and executor of their verdicts, which include quite harsh penalties. The club of European sovereigns and the U.N. in New York have additionally set up special courts that take up many an official action for human-rights violations in perfect legal form. The substance of the accusations is the great variety of more or less brutal acts that a ruling power commits against its subjects.
So how to judge such cases?
I. Legitimizing state power by human rights
1. What the idea of a human right says and accomplishes
The idea of a human right, a natural right peculiar to the human species, links up with the familiar meaning and reality of law. Virtually everyone knows and experiences the law — no matter whether or not they can theoretically explain it — as society's set of rules and regulations made binding by a state's monopoly on the use of force and governing the pursuit of each and every interest. Whatever one may think is right and proper, whichever rights against others one may think one has, claim, or sue for: they are factually valid insofar as the state power makes them valid by law, so that — as everyone also knows — the state is called on or appears on the scene itself in all real legal questions and collisions. And when an interest turns out to ‘have the law on its side,’ then this interest, regardless of what it involves and what practical effects it has, is as indisputably valid as the Highest Power that grants it license. In this way, the state power inscribes itself on every practically pursued will as a Higher Will. The fact of the state's being the Highest does not take away its character of being a power relying on force; and no matter how institutionalized, formalized, and objectified the law is, it does not spare state power from being exercised by its human representatives, i.e., from remaining, in this respect, an ordinary relation of force between people. Nevertheless, in law, this relation exists in this form of the state's superior force confronting those ruled as Higher Will — as the acknowledged authority for everything they are supposed to do and everything they are allowed to do.
So the last word and the actual basis of all law-making is the state monopoly on force — but the human-right idea will not leave it at that. It insists that state rule over a society has to be legitimate, i.e., be able to cite an authority — expressly beyond the state's use of force as the real source of real law — that justifies this force. This authority is supposed to be the human being as a species.[*] According to the doctrine of natural law, the state's respect for this being is thus no less than the recognition of its species nature as the source of a law termed ‘suprapositive,’[†] which, in the dialectic typical of law, is the ‘basis’ for all merely ‘positive’ law, the law the state enacts with its force. ‘Suprapositive’ species-law is supposed to be at the same time both the actual basis of all sovereign power over those ruled and the absolute limit to it. According to the human-right idea, those ruled are pre-state legal persons. Mindless of the contradiction involved in turning the law, i.e., the forcefully established relation between ruler and subjects, into a natural determination that these subjects are supposed to have without any relation to some state authority, the human-right idea treats people eo ipso as holders of a right. Accordingly, as it is commonly put, this right has to be ‘not granted, but guaranteed’ by the state. Through this guarantee — and this is the second side of the elementary contradiction in human-right thinking — the holders of state power are supposed to be corresponding to their subordinates when they place themselves above the latter as their rulers, i.e., when they enter into this antagonism to them. In this way, the exercise of state power, which decrees rules for all of society and makes sure they are followed, appears as if it were following a rule itself and thus as a service of a higher kind. And that is all that the legitimacy proviso inherent in the human-right idea says, and what it impressively accomplishes: since state power is imagined to be relative due to the higher right of man, it becomes unconditionally valid, that is to say, absolute.
So the human-right idea simply takes for granted the fundamental antagonism inherent in rule by not bothering to discuss it any further but instantly turning it into a matter of the legitimacy of state force. The human right provides an answer to the question of what the higher permission is for the vast majority of people's lives being regulated by a chosen few of their fellow species members: by the functionaries of a social apparatus, namely, the state. What is sought and found, or rather made up, is a point of view that makes the state's sovereign force worthy of recognition and consent in this antagonism between the holders and the objects of power; a point of view that also supplements the antagonism with its very opposite, as a second element of the relation between rulers and ruled: a relation of correspondence, which is presented just as abstractly as is the antagonism between the two sides.
This principle is not new. The holders of state force have always had the need to invoke something higher than their forcefully asserted power. Not only have they always had an unshakable will to use their population for all their sovereign needs and virtually insatiable claims. They have also had an equally pressing need to declare this fundamental antagonism — and the many concrete ones associated with it — to be right from a higher vantage point, i.e., irrelevant when it comes to their claim that their subjects consent to their rule. The claim to legitimacy for state force addresses the antagonism between those above and those below in order to abolish it theoretically: a higher authority acknowledged by both sides of the power relation is supposed to give rise to an imagined unity between them, against which the material antagonism between them simply doesn't matter.
What is new about the human-right legitimacy doctrine is the particular authority that the state faces in order to draw its legitimacy from it. Whereas previous rulers and their legal scholars construed a legitimizing triangular relationship between themselves, their subjects, and a separate, third authority (preferably a God), present-day states cite for their legitimacy a most impressive dual relation: they need no other or higher authority for the rightfulness of their governance than those they govern. So the latter find themselves in a double role: first, they are the ones who are subject to the state's rule and have to align and relativize their interests in accordance with what it permits and prohibits, and at the same time they attest to the absolute acceptability of this power relation, because the state draws the higher right for its actions from them, by recognizing them as the bearer of this right that binds it.
It is thus clear by which strange capacity people pursuing their daily affairs more or less successfully while inhabiting the territory of such a state end up with the rank of a higher legal and legitimizing authority. It is in any case not their interests, the practical and practiced content of their will, that the state respects in them as ‘inalienable’ under natural law. After all, with whatever interests people pursue and with the means they have or do not have, they only too clearly fill the role of objects of rule: they must obey the rules set by the state, rules showing the valid limits constraining their actions as well as the state sanctions they face when they violate them.
The supra-individual human nature the modern state allegedly faces, and from which it purports to take the supra-legal guidelines for its actions, is characterized by the oddity of a will as such, something actual people do not have. The ‘unconditional respect’ that nature supposedly claims for all human beings applies not to what they want, but rather to their belonging to the species that has actually achieved the species-typical feature of possessing a will. So this claim is separate from whatever they want or need, from what circumstances they live or dwell under, even — depending on philosophical or religious preference and interpretation — separate from whether they are individually capable of exercising a will in relation to themselves and their surroundings. The debates about unborn life and the dignity of coma patients are characteristic highlights of this appeal to the free will, which detaches this will not only from all content but even from its individual bearers, subsuming the latter completely under the ‘species.’
The ‘human being’ with his ‘freedom of will’ as postulated here is an invention brewed up by philosophers of law, an imaginary figure construed for their purposes. His crucial feature — an empty will, calling for recognition of its autonomous supremacy as such — is a theoretical absurdity, because a will is nothing without its content. In contrast to the ‘nature of man’ glorified in human rights, his actually existing nature gives rise to a whole range of content for his will, namely, sundry needs relating to his basic, physical constitution. When a primate becomes Homo sapiens with his species-typical free will, he doesn't set those needs aside but recasts them in a new way. They exist for him, he pursues them as interests, considers them in terms of the conditions and means of realizing them, and starts fiddling around with all the aspects of this relation both in theory and in practice. In this way, his will is thus not free of content, but is free in relation to it. Within the species, which by the way has nowhere acted as a collective agent but rather has normally acted with some degree of antagonism, all kinds of interests have therefore developed in the course of human history, which no longer simply derive from the natural side of human existence. They are increasingly shaped in the course of history by the various forms of society, together with these societies' respective levels of theoretical mastery of nature, technological progress, and a more or less antagonistic division of labor. But at no time has the species achieved a will without content.
No matter how absurd this construct is, it turns out to be extremely productive for legitimizing purposes. For if the respect due the human right is aimed at the sovereignty of an empty will, all the real content of people's will is not merely overlooked, it is declared irrelevant. When the state bows to the abstract autonomy of the will, it is showing a blatant and profound disregard for the interests that concretely exist. Therefore, no matter how badly, how systematically, its actions damage those interests, this does not per se discredit the legitimacy it lays claim to by citing as it does its respect for human ‘will as such’ rather than promising to serve this or that interest. In actual fact, respecting the sacred sovereignty of the individual over himself — his will — goes along splendidly with every concrete liberty the state takes when really governing. It need only declare that it is all the while keeping an eye out for the abstract power of disposition that the living objects of its rule have over themselves. And this it always accomplishes, according to the logic of the human right, as long as what it expects people to put up with satisfies the absurd criterion that they, purely theoretically, can want it. Fulfilling this demand for the sheer possibility of conscious consent by those affected — this possibility being somehow expressible in the abstract nature of will — is what constitutes the entire respect that elevates every state action above fundamental criticism, even and especially when such actions have a restrictive, harmful, or even destructive effect on plenty of interests. Nothing makes the state look bad as long as the will and awareness of those affected are not simply eliminated or bypassed, but kept in play as well. In that case, state action is harmonious with its subjects' volition-based species nature (or is it species-based volitional nature?), i.e., with their essential, higher identity. For this justification logic, the formalism of Subject and Object — everyone is to be treated as the former, nobody may be reduced to the latter — becomes the fitting universal formula, because it obliterates what it concretely means for whom to be Subject of what and under which conditions.
This at the same time makes the state force presented by the human right undergo a remarkable transformation. If the legitimizing logic of the human right is based on the starting point of thinking of rule as a potentially despotic machine that needs to be curbed by the human right so that rulers' deeds aren't misdeeds, then rule that complies with the limits drawn by the human right appears to be not simply a curbed and thus legitimate power whose actions do not interfere with people's naturally derived rights, but the condition for this human nature's existence. For within this construction, man's free will is directly and inseparably linked to the relation he has with the state through natural law; after all, the limits on state action are supposed to be inherent to man as his natural substance. From which it follows that when a state, obligated to recognize the sovereignty of the human will, keeps to the limits defined by the human right, it is not merely respecting the human nature that these limits are inherent to, but fulfilling it. If prohibiting state encroachments on the Subject with his abstract will is immanent to this Subject, then a state's recognition of this prohibition is nothing less than the fulfillment of his will. The state's actions are thus the observance of a dictate of human nature, and a proud and imperious human nature is the legal claim to — proper — rule.
Man has the right to be the servant of a master that attends to him: that is the miserable substance of the great Enlightenment notion of the natural human right. It doesn't matter how much it is philosophically inflated, or that states are nowadays not content with proclaiming this principle of legitimacy but go to some lengths to demonstrate that all of their dictates cast in the form of laws actually conform to this principle. Ultimately, all the scrupulous examination of laws as well as the need for correction that a supreme court occasionally establishes go to prove that the state, when fulfilling the nature of the human species, basically does everything right precisely when pursuing its own agenda. This form of legitimation does not fit every form of rule equally well.
2. The origin and home of the species-being having human rights is the bourgeois state
The idea of state force being ‘tied back’ to its subjects' natural right, the postulated moral necessity of the state's rule being relativized by the ‘autonomy of will’ of those governed, thereby giving the state the right to rule over its people — this idea became prominent with the advent of modern bourgeois states. They found this idea to be a fitting idealization of the abstract principle of their ‘model of rule’ and thus useful for absolutizing their moral nature, and so took up the idea and elaborated it accordingly.
The free-will celebration, that immediately turns into a celebration of the state force that grants free will its natural rights, is based on, and points to, the fact that bourgeois democratic states actually do assign a peculiar role to the will of the citizens when sovereignly setting up and overseeing conditions in society. This peculiarity of bourgeois rule definitely does not mean that it has ever exercised any restraint in imposing itself on all elements of its subjects' lives compared with other forms of rule. Rather, the praise of bourgeois states for introducing a rule characterized by self-restraint and service to those ruled is aimed at the content of the regulations and their relation to the interests of citizens. These interests enjoy fundamental recognition by the ruling power; a recognition so fundamental that the state sees and accepts no content in the real material interests that human species-beings in the flesh happen to have and develop in the course of their history other than the fact that people have interests — these people being called persons — and aim to realize them with means that are at their disposal as their own means. The bourgeois state gives these persons a boost in getting what's theirs by bestowing the legal institution of property on its citizens: the state defines conditions under which the objects of people's material interests are to be assigned to individual persons as objects of an exclusive right of disposal, i.e., their property. For the acquisition of property — to be distinguished from the material production of useful goods — it stipulates that this must necessarily be done by way of exchange, by trading in goods and services, and it also stands by with a service to enable everyone to utilize this necessity for himself: it bindingly defines a money that concretely represents the exchange value of everything salable and has to be earned before anyone can get hold of what he desires. Recognizing people's materialism therefore at the same time involves constraining all interests to interact on the basis of, and in accordance with, mutually exclusive property rights that are quantified and made concretely manageable in the form of money. By rules that no statesman had to come up with, but that the state force holds up against all inherent contradictions and against all opposition, this kind of economy leads to a well-known result: it faithfully reproduces the division of human persons into those who by virtue of their property have others work to increase the owners' money assets, and a large majority who have to earn money somehow through work, essentially for other people's interests in accumulating property.
Hence the bourgeois state takes an acknowledging stance toward a materialism that it by no means finds separate from itself and leaves that way. It defines the content of this private materialism by providing it with the bourgeois system of property as the universal and indispensable means for pursuing it. And in this way, the offer that the state presents with its legally standardized opportunities for making money proves to be one that simply can't be refused: it is the obligation that all economic activity must serve the accumulation of private property in the form of money. Regardless of whether one is wealthy and invests one's money to increase it, whether one is less wealthy and hands over one's labor power and lifetime in exchange for a wage or salary to serve the success of such an investment, or whether one is otherwise engaged, all members of modern, gainful society are — from private materialism — cogs in the works of the accumulation of money, which the state reports on a national balance sheet. This is a record of its own benefit, which its free citizens have automatically provided in their pursuits. The total product of private efforts existing in the form of increased money assets is the source of the state's power, money skimmed off by levying taxes or bonding its national economy's future accumulation by way of sovereign debt.
With the bourgeois state's property system and the money the state establishes, it thus ties its citizens down to a freedom that — according to all historical experience — when properly exercised serves the state's interest better than any authoritarian commands to the people, commands which to the bourgeois mind constitute tyranny. It bindingly declares that what its citizens do and don't is their private affair, and thus brings about an economy consisting of so many mutually dependent and mutually opposing private efforts to earn money. It influences the course of these efforts so as to make them serve its requirements. In this way, it exercises its regime over society as the fulfillment of its citizens' needs, so that the state's sponging-off and pocketing appear as a service to them.
This is where its special human-rights doctrine of justification comes in, declaring in principle and then also in detail that the state, in its organization of bourgeois society, is fulfilling a duty it owes to man's prior natural right.
3. The catalog of human rights idealizes the bourgeois raison d'état and its methods
In their constitutions and other more or less binding human-rights documents, bourgeois states turn this relation between ideology of justification and actual raison d'état upside down. They always act as if the various fundamental rights followed from the towering principle of man's pre-state natural right that they are committed to. In fact, the catalog of fundamental or human rights is a collection of more or less idealistic, basic formulations of the necessities and methods for asserting them that result, for such states, from their raison d'état.
“Everyone has the right to a nationality.”
Though it is merely the fifteenth article of the UN Declaration of Human Rights, it makes the general contradiction of the human-right idea explicit. The affirmative relation to the social institution called ‘state,’ which of course first has to exist, is turned around into the natural endowment of man that state force is only supposed to conform to, i.e., logically follow.
Actually, the notion of belonging to a nation is more telling than it first appears, for it is indeed not the state that belongs to man, but man to the state. ‘Nationality’ is the name for no less than the claim the sovereign power makes on people, its grip on them, i.e., the subsumption of all their activities under its directives. What a state subsequently intends to provide its citizens with in the way of living conditions, for which of its plans and in whatever way it wants to deal with them, i.e., make them a resource for itself — all of that attains its real legitimacy from the bond, declared by nationality, of citizens to ‘their’ state. Which means that this bond is characterized by the total passivity of that pole of the relation that is supposed to be the claim holder in human-rights diction. This relation's exclusivity, which again not man but the state provides, includes a second relation, which the nationality-blessed people do not even need to be aware of. By claiming them as its citizens, the state excludes other state powers from this grip. The state uses its nationals equipped with their passports to assert itself with its right against others of its kind, treating its citizens purely as the object of an exclusive claim that they belong to it, i.e. that it has disposal over them — a claim that therefore man does not assert toward ‘his’ state, but rather the latter against other states.
The human-right idea, in contrast, is that the nature of man does not only yearn for such a relation of belonging to some state, but actually has a pre-state right to it. The relation is ideologically turned upside down and man declared the active side, the real generator of this relation, while the state is supposed to be merely obeying higher law when asserting that someone belongs to the state's people. The fact that states prove how free they are by creating quite different rules themselves for granting or refusing citizenship to people inside or outside their territory — that hardly goes with the ideological claim that there is a natural right to belong to a state. Similarly, it is not at all difficult to see why the status of being stateless is indeed a disaster sui generis. Nature is not the problem, but rather a globe that modern state powers have divided up among themselves completely by waging a whole lot of war, so that if someone has no legal, formal affiliation to a state he is practically unable to exist — so much do state powers equate the living individual with the citizenship status that they assign or deny him. Not that belonging to a state involves any promise of guaranteed livelihood, of course. A citizen enjoys the freedom of organizing his livelihood himself.
Article 19: “Everyone has the right to freedom of opinion and expression…”
It is none of the state's business whether or how free citizens cope with their lives as long as they abide by the law. They are allowed, and supposed, to take care of themselves — and hence they also have to take care of themselves, since the other side of the private-freedom coin is that all people's interests are merely private: neither other private individuals nor the state are responsible for what becomes of them.
This freedom to privately exercise one's will of course includes the expression of this will. Anyone can express whatever he wants; no one needs to tell any master, much less the state, what he or it wants to hear. One may air views about the circumstances that make one's life easy or difficult and make suggestions about how to organize them differently, and better. What is characteristic of the status of private freedom altogether also applies here: all opinions and notions, suggestions and critiques are approved as private views. However, this does not mean that its citizens' views and intentions are simply none of the freedom-loving state's business. Even in the modern world, judgments about anything at all testify to a theoretical and intentional detachment from the “given” conditions protected by the legal state order, might possibly reveal a criticism of “reality” and the will to change it, but in any case are suspected of having a tendency to encroach on prevailing conditions, the state's control of them, and everyone's guaranteed freedom to adapt to them. Hence, just as bourgeois state force furnishes its citizens' acknowledged materialism with the commitment to property as a useful condition for conducting their lives, it is also bound to hand out a rule for its citizens' power of judgment. Namely this, that the free use of the mind is no more than just that: a subjective view without any claim on being objectively valid — such an aspiration to “absolute truth” would be incompatible with our democratic order — that is, one must not presume to want to touch theoretically or practically on what is really valid, say, the continued existence of prevailing conditions. Objectivity and the will to change need to be separated off from judging the world and its customs: that is the small constraint that the bourgeois constitutional state attaches to its recognition of the freedom of man's power of judgment.
Declaring that thought and expression are free is thus a binding assignment of status that is quite formidable. Precisely where circumstances are being judged and where one's interests need the judgment to be objective, one's will and mind are nailed down to their pure subjectivity. The faculty of judgment is assigned the role of self-satisfied generator of noncommittal commentary on the way of the world. An individual enjoying the freedom of speech need not fear any refutation; no one will disagree without fundamentally acknowledging his right to think whatever he wants about what he experiences. So without any explicit rejection, what someone thinks and wants is actually most respectfully rejected.
And not only that. When the expressed views are esteemed as free acts regardless of their content, it is their freedom that is considered their crucial feature — i.e., that the individual expressing his opinion has essentially exercised his license to express an opinion. On this higher level of licensed freedom in which everything such views say is disregarded, the state postulates a fundamental agreement between all those freely opining and itself. All it hears in their utterances is an abstract yes to it, as the authority that permits them to say what they want. Especially when the state itself is what the allowed opinions are about. In this area it particularly benefits from its method of permitting criticism and thereby declaring it to be not merely irrelevant in substance, but actually a declaration of consent, beyond all criticism, to the freedoms the state grants. On Sundays and major holidays, the leaders of bourgeois states like to expressly underline this brazenness once again, claiming that every dissatisfied mutter among the people is proof that the latter are enjoying the freedom they give it and are at any rate absolutely satisfied with that.
The human-right doctrine defines this both contemptuous and co-opting position of bourgeois rule toward people's judgments and desires as a right that all legitimate state force has to comply with. When man's mental and communication achievements are fundamentally perverted into acts of exercising a license, the doctrine interprets this as a pre-state and supra-state legal claim springing from the nature of human reason — as if the important thing to ‘man’ when using his brain and exchanging views with his fellows were by nature nothing but being allowed to think and say something or other.
Article 21(3): “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
Here, the theoretical fault intrinsic to the human-right principle — asserting that a positive relation to the state is a peculiarity of the species, i.e., that submitting to the state is a species-specific legal claim to it — is applied to a constitutional procedure, the election.
The bourgeois state perpetuates its abstract recognition of its citizens' will objectively in the holding of elections. Citizens are called on to express their satisfaction or dissatisfaction with past or planned actions of the government not only as ranters at the pub or writers of letters to the editor, but also as voters. And when defining the modalities of this organized expression of will, the state again defines no less than the will itself. The permission to take part in selecting candidates for certain public offices first of all restricts citizens to elections quite fundamentally as the only acceptable way to influence actions of the state.
So it makes sense that elections are celebrated as democracy's finest hour; citizens simply have no other opportunity to make themselves bindingly heard by their rulers. Not that they are not allowed to comment on just anything; they are only being asked for their opinion on the alternatives printed on the ballot, which as a rule involve not what is done but only who is to do it. The mature voter may of course ask himself whether the various persons presented actually stand for big policy differences or only nuances or not even that; he is free to link any ideas and hopes for continuing or changing the national agenda to whether certain persons are voted into or out of office, but all of that remains his private calculation. The ballot makes his views and concerns degenerate into merely individual motives, which disappear once and for all in the mark he makes. After that, the marks, without any names or comments, are added together according to procedures that are again determined by the state and that in mature democracies are almost always unfathomable to the voting species member.
It can therefore be safely regarded as ironic when an election is paraphrased as ‘eliciting the will of the electorate’ while the method of ‘eliciting’ contains a complete definition of the will it is supposedly merely ‘eliciting.’ After all, whatever the millions of individual voters may have hoped for from marking their ballots the way they did, the election result later presents to them a collective electoral will in which their votes count as mere equally valid atoms, a will that they are further obligated to recognize. What the elected rulers proceed to do with their empowerment is solely up to them and is binding for all voters equally. This is what the state commits itself to when periodically putting some of its offices up to vote. By authorizing the voter to choose among candidates, it binds him to the outcome of the election, which — whatever it is — is by definition the continuation of state rule.
The human-right idea generously brushes aside this objective benefit of free elections for the state that organizes them. And the fact that a lively democracy is rampant with derogatory judgments about the campaign circus, the phoniness and corruption of the candidates, and the gullibility of voters — this also leaves the human-right idea unmoved. All of that is fine in terms of human rights because, according to this doctrine, man is characterized by a will that is essentially based on the right to be recognized by the state that governs him. And elections satisfy this right with a lot of effort and even greater noise. While the state disregards each specific concern when it accepts only the one concern of periodically exerting a state-defined influence on the selection of state personnel, who are then obliged to follow ‘their conscience’ only, the ideology of human right sees this the other way round: the state is obeying the general species-will and legal right for it to set about its sovereign work only when properly legitimized by those it governs. So when the ruling power is ruling, it is fulfilling nothing less than human nature as long as voters vote every few years.
Article 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
What is striking about this jewel of a human right (which even has its own treaty, the UN Convention Against Torture) is how it takes for granted not only that the state is a condition of existence that human nature demands, but also that the force it uses to identify and punish wrongdoers is fine. One thing is simply clear and tacitly understood: when it comes to the enforcement not of human rights, but of the real law enacted by the state, man doesn't have a chance. He is powerless against a force-wielding apparatus which is capable of anything — and only and precisely for this reason does the apparatus deserve gratitude and appreciation for promising not to be inhumane when proceeding against suspects and dealing with convicts.
Bourgeois rule actually has more mundane reasons for this interesting self-restraint than a reverence for the legal authority of “man.” Not the least important is, for example, the experience that torture is of extremely limited value as a technique for investigation. After all, the judicial process is supposed to get the right people, not those most sensitive to pain. In a bourgeois polity, however, the public power, when investigating and punishing, is not merely following such pragmatic considerations but is quite simply following the general line of its rule over its people. It relies as a matter of principle on its citizens' self-interest — attached to the money economy as a condition — as the source of its power. And it maintains the standpoint that man's pursuit of his rightly understood happiness ultimately turns people into useful opportunists even when a few of them show a lack of respect for its laws and violate the conditions set down for happiness in life. The supremacy of the real law relentlessly requires that such disrespect be formally ascertained and the culprit harmed in a way that leaves no doubt that an attempt at self-realization against the existing order will definitely backfire. But even then, the offender is not excluded from the circle of legal persons that the state claims as its base. His just punishment is not supposed to destroy any prospect of a “normal life” forever, but rather to bring home the lack of alternative to the rules prescribed for it. The state does not release anyone, not even its criminals, from its demand for a conduct of life in which a person's striving for gain coincides with his civic usefulness.
The relevant legal doctrine translates this state-materialist demand into the fiction of a fundamental will to abide by the law, which is taken for granted in the citizen and which must be restored in the convicted criminal by breaking his deviant will. In the name of this fiction, this doctrine forbids denying legal persons, even those who have gone astray, their will to lead a responsible life; and forbids ruining this will by destroying their indispensable means of existence, a fit body — the death penalty for capital crimes is a borderline case in legal doctrine. Things like permanent mutilation by cutting off limbs, a public ban excluding someone from civic life, and other nasty practices that might appeal to a private desire for revenge are therefore considered to be “inhumane treatment”; at least in principle. In individual cases, the inhumane has to be carefully differentiated from lawful encroachment on the liberty and property of an offender or a suspect since the difference turns out to be not all that striking and clear in practice. However, legal doctrine rises here to a philosophical level that makes it easy to cite human rights as the binding guideline for criminal justice, too: while investigating and when punishing, the state power has to show respect for its victims' formally free will; it has to act so that those it is treating would have to be able to consent to their treatment in their capacity as legally minded persons; it must not degrade “man” to a mere thing…
So as long as the state meets its commitment to recognize and acknowledge the fundamentally law-abiding will in man — the will for the state and its laws — then everything it does is fine in terms of human rights. This includes all the consequences, which are no joke for those affected even when all constitutional procedures and principles are adhered to. Precisely when the state no longer allows for any material calculation on the part of its citizens; when it shows up the citizen's will as having no power and no means when faced with the state's force; and, demonstratively without calculating, makes this will suffer for failing to keep within the state-set limits: this is when the human-right idea sees nature as the basis for man's legal claim toward the state — the right to be subjected to a treatment that his innate legal nature could say “Yes!!” to.
Of course, this and the other human rights canonized by the UN or the individual states in their constitutions do not draw their adulatory ‘plausibility’ from the twisted logic of philosophical constructions of natural law. They are familiar as praise of bourgeois rule through the comparison that they evoke, which is often enough also expressed: among other forms of rule that don't or didn't — “even!” — restrain themselves the way the modern, Western-style constitutional state — “at least” — does, a person has or had to face very different forms of abuse of state power than here or today. Any reference to the fact that bourgeois states have other things to do than restrain themselves, any inquiry about who actually stands to gain from this civilized way of running a state, is disposed of with the recommendation to take a look at some terrible country or some past era and shudder at the way people are or were treated there. But such comparisons presented for ideological reasons have a telltale element: even though the end result is supposed to be only the difference between the two sides of the comparison, what they have in common is taken for granted here too — otherwise there would simply be nothing to compare and certainly nothing to applaud. In order to concoct praise from the absence of torture, one needs to imagine the ‘unimaginable’ — as a somehow plausible possibility in the free nations of the West as well. This interest-driven comparison is supposed to refute the idea that the ways of using force proscribed by human rights are ‘options’ for bourgeois states — but it's no use: praising the form of rule that helps man achieve his natural destiny by, of all things, denying itself certain forms of oppressive violence only works in the context of everything man knows ‘his’ state capable of in this department.
Democratic, constitutional states prove how little far-fetched that knowledge is whenever they see a disruption in the normal business of ruling their society. Then they confess that the principles of their rule are not the least bit “pre-state,” and powerfully demonstrate that what in normal times they protect as civil rights and liberties is exactly what they do not want to dictate of their own accord, always forbidding themselves doing what they don't need to do anyway due to their raison d'état. In less normal times, that is, when a state sees itself under attack, it takes the liberty — according to the ‘pressure to act’ it then identifies — to declare the self-tailored procedures for deploying its force-wielding apparatus to be temporarily invalid. When fighting its enemies, a democracy, which reserves the attribute ‘militant’[‡] for itself in such cases, resorts to methods it finds unserviceable during the normal course of things. Then the state starts using the “robust interrogation methods” otherwise known as “torture” for extorting information from opponents, who it calls terrorists; the trouble of legal proceedings for prosecution, detention, trial, etc., is declared to be a fuss that undermines the efficiency of the state's force-wielding machinery, and from now on those “streamlined procedures” are used that are branded as “despotism” on other occasions. Criticism quickly turns into subversion; and when the nation's troops are deployed abroad, a “control over information” comes into favor that is otherwise considered human rights-abusive “censorship.” Elections might then be viewed as a risk to “domestic peace” that should better be avoided, and so on. All this is not surprising — it is merely the other side of the fact that ‘adherence to human rights’ is never anything other than the expedient organization of bourgeois state force ideologically puffed-up as humanistic self-restraint. When a national emergency leads to frictions between the public power's actions and the way it promotes its legitimacy, there is an army of legal advisors, constitutional judges, political philosophers and critical journalists standing by. They assiduously maintain the lie, established by judicial procedures in normal times, that state force is constrained by its commitment to a pre-state law, i.e., legitimized by human nature itself. Then it is time for the legally provided proceedings and courts of review and appeal, accompanied by a lively and critical public discourse about the limits and the limits to the limits of a state's use of force, about values and the dilemmas they produce… No matter what the relevant judicial findings and wise decisions are: in toto, all those in the first through fourth estates participating in this circus testify to the nature of democratic rule being thoroughly good and civilized in terms of human rights. This form of rule knows no shackles in practice, but never makes use of its total freedom without showing an awareness of human-rights problems.
Postscript on social human rights
Some humanistically minded people occasionally support the view that reducing human rights to the “first-generation” basic rights to freedom and a fair trial does not do justice to man. As proof of how right they are with their conception of man, they, too, point to the UN human-rights catalog. In their view this catalog is good for more than imputing to man, in complete abstraction from all his real interests, a species-specific need for, and right to, proper rule, i.e., one that proceeds with respect for his abstract freedom of will. In their opinion, the human right does in fact offer a lever for committing state force to people's material wants and needs in its — albeit somewhat less prominently placed — social department. They are mistaken.
Firstly, a mere look at things already shows that the official international recognition of so-called social human rights does not in the least alter the fact that people's social situation remains a by-product of their integration into capitalist moneymaking and the system-conforming welfare services of the states that want this system. The necessary consequences of this system, from overwork for low wages, through homelessness, up to lack of food and water on a massive scale, the spread of virtually medieval plague scenarios, and the like, are everyday reality in the twenty-first century. So when the ‘International’ of capitalistic sovereigns solemnly commit to the social rights of their subjects, this is nothing more than cheap, counterfactual comfort. That coin has a conspicuous reverse side: secondly, what remains of the hypocritical and unserious commitment to minimum social standards is the state power's declaration that it is exclusively in charge of the ‘social question.’ Not a single social human right provides any mitigation, much less elimination, of any distress. But each one of these rights makes it clear that the particular state involved is in charge of it — at least in the negative sense that those affected mustn't make it a reason to terminate their loyalty to their rulers. This, thirdly, turns the role of these rulers completely upside down ideologically. Anyone advocating that social demands on the state be grounded in human rights should be able to see that this demand takes the state's entire power of ‘formative action’ for granted, while at the same time disregarding the fact that the state uses this power to establish and permit those conditions in which even the most elementary basic needs are an uncertain thing. All the fine social human rights are aimed at the necessary consequences of the economic system that the state establishes with its monopolistic force — and yet this state is not supposed to be understood as the originator; its power is instead seen as a repair agency that is in principle available for all kinds of good purposes. The use of this power is not dictated by a responsibility for ideologically construed rights, however, but rather by its actual requirements. And these definitely fail to include a decent life for all or even for only a majority of citizens. Such a life comes about, or it doesn't, as the dependent variable of the social constraints established by the state.
And that is why, fourthly, even Western states are willing to sign off on social human rights too, at least in the UN catalog. For precisely the hypocritical separation of their use of power from the economic and social consequences for the mass of the people allows the redressing of these consequences to be depicted and given the nod through as an ideal of bourgeois rule. At the same time, this cements the inferior status of this branch of human rights in principle. As the hopeful, noncommittal wish list for people's material living conditions, social human rights are intrinsically a different thing from bourgeois rule's technical specifications allegedly taken directly from human nature and completely focused on the abstract principles and procedures of this rule. Therefore, a respectable bourgeois state will never commit to guaranteeing particular social living conditions as a standard to adhere to. It finds it all the more disgraceful from its human-rights point of view when other states justify their power by citing their social deeds and ambitions. For they are only diverting attention from the fact that they flout the basic, eternal legal requirements to be met by a truly humane rule. Social benefits cannot compensate for human-rights deficits. And in the reverse direction the question does not even arise.
The Western states did not invent the social chapters in the UN human-rights catalog; an entire real-socialist East Bloc was needed for that. For its worker-friendly leaders, promulgating social human rights was the appropriate retort after the West tried to make them look bad by puffing up the techniques of bourgeois rule into human rights. The reason why the powers of the Free West could easily take this ideological counteroffensive and eventually won the competition over how to define human nature (and not only that competition) was certainly not the sounder arguments and research results of Western human-rights theorists. As always in such cases, the victorious ideologies were here, too, the ideologies of the victorious. The Western canopy of values embodied in the idea of the human right is spread over the whole of humanity today because a power struggle has been settled. In this struggle, human rights actually played a not insignificant role as the human-rights weapon. Just as they do more than a merely ideological service today when the leaders of the free world supervise the rest of the planet.
II. Delegitimizing state force in the name of the human right
The origin and the theoretical content of the human-rights species doctrine lie in the glorification of bourgeois state force. But the human right is actually employed mainly and in generous doses with a critical intention: governments are accused of flouting it, violating it, trampling on it, and the like.
One is struck by a first, fundamental difference resulting from the target of such allegations. In established democracies, government agencies are now and then accused of lapses: transgressions that not only violate the highest of values but also go against the statutory procedures of the public power and are thus recognizable as mistakes that not only depart from the governance practiced, but also contradict its principles and may even be examined by the state power in its capacity as highest court. So, in such cases, the allegation of a human-rights violation, no matter how often it needs to be raised and how common the discredited practice is, carries a huge compliment to the rulers, a pretty boundless vote of confidence. Even and especially when certain cases of the state's use of force are condemned as deviations, this thus amounts to a glorification of state force itself.
Things are different in relation to states that — for whatever reason — handle their governance by rules unlike those that apply in a proper, market-economy, constitutional state and are found in an idealized form in the catalog of human rights. When such states are accused of a human-rights violation, this regularly challenges the legitimacy of the prevailing system of rule altogether; at least in the form of calling for drastic corrections to the state constitution; but popularly also in the form of allegations that deny the criticized governments the right to govern on their own authority at all. Such states are measured against the basic idea of the human right, against the paradoxical ideal of a rule at the service of its people; are found to be more or less illegitimate; and ranked on a scale of how unbearable they are. The charges are brought in the name of identified victims in particular, who are no longer regarded as exceptions but as the rule, and thus in the name of the whole governed people in general, who ultimately have to be regarded altogether as victims of a power that cannot be approved.
One is also struck by the even more important difference regarding who is raising such allegations. This difference tends to be generally perceived as one of scope, of the degree to which the allegation carries practical weight. But this is only one aspect, the fact being that, depending on who is making himself the mouthpiece of human-rights admonitions or condemnations — be it a real political power, its partisan national public, or the minority of idealists outraged about conditions in the world — the allegations are extremely different in terms of what they actually mean.
1. Legitimation and means of imperialist force — by delegitimizing adversaries
a) Official charges in regard to human rights are verdicts about the (il)legitimacy of other ruling powers
When governments accuse their colleagues elsewhere of violating human rights, the point is the political meaning of the allegation, not its particular content. That is why nobody laughs, especially not the government under attack, when holders of a state's monopoly on force swear that force must never ever be a means of politics and that a government elsewhere has violated this principle. However fabricated or hypocritical the charge may be, the matter at hand is clear and unambiguous. A government uses the moral accusation to object to the way the other state is exercising rule. It is thereby withdrawing, at least to some extent, its respect for the sovereignty of the other sovereign to decide for itself how to rule. This is the point intended by the accusers, and it is the point taken by those criticized.
In so doing, this moral attack of course refers to methods of the state's use of force, citing particular items from the catalog of human rights. So the “human-rights issue,” when it is raised by one ruler against another, turns out to be (sometimes more, sometimes less) a question of which system is to prevail. This was already the case in the days when the human-right idea was introduced into the stock of ideologies of the bourgeois state. Since then, “human rights” have functioned when needed as the matching legal ground for the — often militant — claim of capitalist democracies to transform political and economic conditions inside countries classified as backward to make them useful as market economies and easier to control from outside. The human right was extensively used this way most notably at the time of the ‘Cold War’ waged by the Western alliance against the Soviet East Bloc, since communist workers' parties there actually established a different system of labor and providing for the people, and a different way of using state force compared to those bourgeois relations whose principles are found in idealized form in the human-right idea and the corresponding catalog. Here, such charges partly stood for a criticism directed most decidedly against the socialist system, without having to register any more about the enemy system than the annoying fact that half the world was removed from the political ways of democratic capitalism and the interests prevailing in the ‘first world’ and that an estimable world power was striving to build an alternative world order. In any case, for the leaders of the ‘free world’ and for their opponents in the East as well, the crucial political meaning of the “human-rights issue” already consisted in opposing the state power that used an “iron curtain” to seal off its territory from access by democratic imperialism and managed to assert its sovereignty for decades.
Even after the end of the real, big alternative system, a certain element of the ‘system question’ is still attached to the charge of human-rights violations when it is raised by a Western government against another power. But whatever such an allegation addresses, the essential point of incriminating the other power's misconduct and its cited victims is to indicate one's reluctance or refusal to recognize the other sovereign. And that is no slight thing, since it touches upon the very basis of normal, peaceful intercourse between sovereign states: ruling powers recognizing each other as authorized holders of the political monopoly of force over the country and its people, and pursuing their own interests in the other nation without passing the other sovereign by, but only through it and its autonomous establishment of order. For the leaders of every nation, the recognition of their state's sovereignty coincides with the recognition of their own sovereignty as the legitimate managers of their nation; anything else is regarded as ‘interference in internal affairs’ and not tolerated. It is this relation of recognition that is called into question by the charge of a ‘human-rights violation,’ since with this accusation a government presumes to pass judgment, on behalf of another people — virtually every single human member of it — on the legitimacy of the other power ruling it: on its entitlement to act on behalf of its own people as master of its own country. How far the accuser wants to go, i.e., where the lack of respect for the other state belongs on a scale from “slight” to “fundamental,” results not so much from the criticized practices of the rulers as from the type and the severity of the criticism being made. That is the stuff of foreign policy; it is what diplomats are good at.
When a government denounces ‘human-rights violations,’ then it is invoking the morality of a ruler's decency in order to assert a claim to sovereignty over the accused state and — to a certain degree — against it. It is claiming the role of advocate of a binding international order that allocates rights and duties to all rulers. By referring to a system of rights that stands above all states, it asserts its own interests as universally valid rights, i.e., as obligations that bind other states. Consequently, it confronts the criticized regime, not as a party to a dispute, but as a judge authorized to decide on matters of what use of force is correct in terms of human rights and can thus be allowed by it. Depending on what the complaints brought forward are, i.e., how unfriendly the accuser announces it will be, the criticized state is either more of a target of warnings or already the object of corrections to be made by force, regardless of whether it shows ‘repentance’ or a readiness to change.
At the same time and beyond, a government that accuses others in the name of human rights insists that all other states acknowledge its verdicts to be the valid interpretation of a common humanist canon, and acknowledge the claim to supreme policy-making power asserted in such verdicts to be an irrefutable directive. It is out to enlist other countries for its strained or openly hostile relations with a foreign power, ultimately to co-opt the whole ‘international community’ to this end. That is the political meaning of human-rights diplomacy towards third parties. Should these other states refuse, or demonstrate too much doubt and aloofness, then they might need to be asked whether they are serious enough about respecting the canon of human rights — that is, to put it plainly, whether they attach sufficient importance to friendly relations with the criticizing power, which hasn't accused another sovereign of improper conduct just for the fun of it.
b) The credibility of human-rights morality coincides with the strength of the imperialist force invoking human rights as its legal ground
Because it is a matter of presuming a right to rebuke other sovereign rule, human-rights criticism by a sitting government counts — not merely in practice, i.e. in terms of its result, but also insofar as the moral weight of the critical judgment on another power's transgressions is concerned — exactly as much as it has the ability and will behind it to force others to respect its offensively voiced and asserted disrespect for the other rule. It is of course always hypocritical when governments act as if they can't stand the sight of blood or tolerate a trade-union ban in some distant land any longer. But this doesn't matter when the warning or threat conveyed in this form toward another state impresses its rulers and third countries. Then the moralism needs to be taken seriously, because it coincides with a serious threat. Then it is no use “exposing” it as hypocrisy, because the implicit threat is credible enough. What makes the necessary impression is nothing other than a sufficient quantity of impending force — after all, states are nothing but institutionalized social apparatuses of force and don't understand any other language. For the credibility of human-rights delegitimation from state to state, the important thing is therefore that the status of superiority asserted and claimed in the legal ground has the necessary threat potential to go with it — because what the human right stands for as a state's legal ground is in truth nothing but the claim to global policy-making power authenticated by sufficient force.
To set a proper stage for the threat potential necessary for monitoring international practices, and thereby cultivate the semblance that human-rights morality is not the useful legal ground reserved for the strongest but rather the true motive for the use of international ordering force, the modern family of nations has created an impressive institutional framework. The UN is regarded by all concerned as the relevant executive body for higher law. Its statutory mission is in fact to promote the observance of human rights worldwide. Since 2005, its official tasks also include the ‘responsibility to protect,’ to be exercised militarily if need be; this is increasingly followed up in international tribunals and in courts. The latter complete the diplomatic/legal semblance that state force is subject to a higher law recognized by all force monopolists, that its regulations are binding for all, and that its violation will therefore inevitably lead to appropriate criminal consequences on the part of the ‘international community’ and its relevant institutions. But everyone also knows that the UN is only good as a body for executing legal decisions against one of its sovereign members to the extent that the US and its Western alliance make this their concern in any given case. The only reason why the custom of citing human rights in the UN and its relevant bodies is not a bad joke is that the power of this club, contrary to all egalitarian appearances, is based on a clear hierarchy among the many ‘united national’ force monopolists. The legitimizing authority of ‘man,’ who lives in every country in the world and demands that the family of nations keep a check on his government and rebuke it when necessary, is universal on the solid basis of the universal claim of a very small number of elite states to domineer over all sovereigns in the name of a generally valid order.
The US has always defined its role as the only legitimate (and now also the only remaining) superpower in such a way that it no longer wants or needs to presume unconditionally the sovereignty of its weaker partners, competitors, and adversaries. Instead, sovereignty is something that others must earn, namely, by letting America tell them where their place in the world order is; what their self-interest is, ‘properly understood’; and what the legitimate means for pursuing this interest are. America insists that every other state subordinate itself in this way to its claim to order the world. And for grading the sovereign states' fundamental willingness to cooperate and for making known the corresponding dose of its dissatisfaction, a US administration uses its periodic report on the state of human rights in the world in general and public accusations in particular as one diplomatic means. Even good allies are not spared admonishment when America deems that they are overdoing it with their high-handedness within the partnership or with their efforts to compete in world politics. For example, the US government lets conscientious objector Germany know that its tendencies toward criminalizing such an honorable faith community as Scientology definitely touch on the human right to religious freedom, or it reminds warmonger Israel that even Palestinians have a human right to their own state. The critical tone is clearly different towards states such as China or Russia. Their governments are accused of regularly violating human rights, which pretty fundamentally challenges the legitimacy of their exercise of power: dubious elections, censored Internet content, how they deal with the freedom of the Fine Arts and religion — all this is an ‘alarming’ indication that undemocratic governance is the rule. The message couched in human-rights code is not intended to be a mere ‘warning’ either, but conveys a reservation on principle, which America has to assert alongside all the dealings it has with these powers — namely, in short, against their claim to having the same world-political status as the superpower. Human-rights allegations have a quite different meaning again when it comes to America's notorious enemies, which have been fairly numerous. With a corresponding crescendo of laments, the US government notifies rulers such as the Taliban in Afghanistan, Saddam Hussein in Iraq, Libya's Qaddafi, or the North Korean Kims that it has decided to find their inhuman abuse of power and thus the continued existence of their rule itself to be intolerable, i.e., it has decided to move on to a confrontation aimed at eliminating the disruption to world order that it defines such regimes to be. In these cases, human-rights diplomacy is (pre-)war diplomacy, which moves within the well-defined bounds of an offer to capitulate and a declaration of war.
Meanwhile, America's European allies are also good at declaring themselves protecting powers of human rights all over the world. They take the USA's imperialist weight as an example, and consider their status as its strategic allies inside and outside NATO as a good basis for acting as order-enforcing powers toward the rest of the world. They are potentially affected by every affair involving force on the globe because they claim the right to tell other states how to use their force. On occasion they also make diplomatic use of human rights towards the leading power itself, in order to indicate that their own ambitions are incompatible with policy directives from Washington. For example, they might have ‘differing assessments of the human-rights situation’ in a third state. And when the US wages wars that do not in the least suit them strategically, they actually discover that certain methods used by the American military and intelligence services are likely to undermine the credibility of the human-rights superpower and the West in general…
When the universalistic legal ground so wonderfully matches the universal claim to enforce order that is founded on absolute superiority, then it is no wonder that all the other states can only look foolish when they try to support their own legal and assertive claims by wielding the human right against its appointed guardian. The reason why the attempts of notorious ‘potentates’ and ‘despots’ to simply turn the tables before the ‘world public’ are so regularly laughed at, or ‘end in uproar’ when Western diplomats consider this appropriate, is really not that they are worse at political hypocrisy. They quite simply lack the power that gives their claims unquestioned weight, and that therefore commands respect for their moral accusations intended to give these claims legitimacy. Their humanistic pathos lacks credibility because it is not an expression of the ability to assert oneself in world politics on the basis of a suitable arsenal of means of force, but is rather intended to replace such an ability.
c) The human right turns into a practical means when imperialist powers deal with peoples — those of their adversaries and their own
The diplomatic importance that imperialist powers give their human-rights allegations is one thing. Another is interference in the internal life of other nations, which goes by the title of responsibility for highest values and relief for oppressed peoples. Propagating human rights and thus delegitimizing another government is a means for destructively affecting the relationship between rulers and those ruled within the nations subject to global political oversight.
For the imperialist overseers of the world order, the foundation of deploying any state power, namely, the people's loyalty to the state, appears as a ‘weak point’ of a rule they declare to be more or less illegitimate, i.e., as one — among several — chances to effectively interfere with and shake up the criticized regime. They attempt to functionalize any dissatisfaction they discover or manage to arouse in the foreign people, in order to alienate them from their rulers. Citizens of such a state are to stop directing complaints about their situation towards their rulers, taking for granted that they are universally in charge, as a people is otherwise supposed to do. Their dissatisfaction is supposed to make them rebel against their rulers, ignore any concessions that might be made, and decide that all reasons for dissatisfaction prove that their rule is illegitimate and denies them their right to good government. The people should therefore not merely confirm the verdict of illegitimacy that has been passed by others; they should act as an agent for actually enforcing this verdict. They are aided in this by the necessary amount of propaganda material, from radio and television stations to the overt or covert action of NGOs. Entire opposition movements are adopted or sometimes specially built overnight, equipped, and incited to a power struggle, whose outcome is of course way out of their control. Any resulting casualties serve the involved imperialists as an additional legal ground against the disfavored power. For the calculatingly supervised opposition, these casualties are only supposed to be a reason to toughen their resistance — although what comes of the fight is solely a matter of what the foreign sponsors want to do with it. If these sponsors for some reason decide to ‘deescalate,’ then such an opposition has to fend for itself. The imperialists fulfill their role as nonpartisan judges of whether the other country's politics conform to human rights by demanding that the opposition of course also respect their authority as leading human-rights advocates, and drop their ‘fifth column’ again when it stops being useful, with the same cynicism they built it up with — which regularly happens not because of what the opposition does, but because calculations change. Then it suddenly turns out that the unfortunate regime opponents are not ‘exemplary democrats as we understand the term,’ and what was still being celebrated up to now as a ‘hope-inspiring movement that has taken hold of the country’ reveals itself to be a fatal ‘spiral of chaos and violence.’
The human right proves useful to the dedicated powers for their domestic use as well. Those in office make nothing dependent on the sentiment of the people when it comes to the world politics they deem necessary. But as democratic leaders, they attach great importance to not acting ‘over people's heads,’ instead telling them where they have to agree with their leadership in regard to some particular foreign policy. For that, the human right is a valuable handle because it legitimizes wholesale all the harsh measures they consider appropriate vis-à-vis other countries, as well as those they have in store for their own people as a result. That is another reason why leaders cite the human right all the more vehemently the more militant they decide to be toward their enemies. It is the way the people are familiarized with costs and sacrifices that might diverge considerably in nature and extent from the sort of civilian services they are accustomed to. When it is declared increasingly inappropriate to take account of another state's interests for one's own calculations; when civil relations with the other state are consequently replaced little by little by purely damaging actions; when finally military force is on the agenda, i.e., the destruction of human life and the material basis for life, so that what is legally and morally forbidden in normal times is now commanded by the state; and when damage to human lives and property must also be factored in and accepted on one's own side, then free citizens need an extra dose of morality, and in its most honest form: enthusiasm for the just use of force.
There is nothing that more clearly characterizes the political importance of the human right than its outstanding suitability for this high imperialist purpose, as has been tested and proven many times in vigorous democracies.
2. Constructing public enemies
A democratic public follows its national leadership's foreign policy, including the officially supplied moral interpretation of it, with interest and with the necessary critical distance. It automatically directs its attention to the concerns of the nation's global politics. It has no illusions about what its government politically intends with its human-rights allegations, and affects worldly wisdom when appropriate. With all its informing and speculating about all sorts of motives and background factors, one thing is certain: such a public knows how to distinguish properly between the official grounds for hostilities and what it considers to be the real reasons. However, this does not prevent it from getting all excited about human-rights violations exactly when its nation's imperialist agenda dictates — or actually turning things upside down and praising its state's foreign policy as human-rights policy, by critically examining how well politics is fulfilling the lofty humanistic mission it claims to be pursuing. This is how — namely, critically — the public confuses the veneer with what is truly behind it, or what it thinks should be behind it. And it finds its calling in spreading the word accordingly. First and foremost, it propagates a public enemy in keeping with its nation's imperialism, i.e., blaming the inhuman character of another state for one's own state's decision to adopt a hostile relation to it. Secondly, it assesses its own nation's foreign policy and its success in managing the difficult task of acting in accordance with human-rights principles without losing sight of the benefits for one's native country.
a) With the public enemies it cultivates, the public is brilliant at constructing and illustrating moral abstractions
Once the decision is made to define the use of force by a foreign ruler as a human-rights violation, and to define any encroachments taking place there not as exceptions but as the rule, everything that state power does acquires a peculiar interpretation. No matter what it is, every action is put in relation in one way or another to the charge one is pressing and shown in its proper light from an accusing point of view. No part is played in the knowledge of a country by the many acts performed by a state ostracized on human-rights grounds, other than its mere harassing of its people in an extravagant manner; or by the fact that those in power there too are out to make their people useful, i.e. productive. “Government violates human rights” — that not only takes care of the moral verdict, it also indicates how such a rule and its country deserve to be treated. What especially does not count is the fact that nowadays the discredited rule is mainly busy complying with the economic interests prevailing worldwide (which the world's democratic public considers to be without any alternative, and so beyond criticism) and tailoring their country, along with its animate and inanimate resources, to these interests. Though the relevant facts are not unknown, they are ranked, in light of the accusation, as fairly unimportant and definitely not — as they usually are — as a good reason for the government's use of force. In this case a human right-savvy public, which will, for example, quite casually discuss the need or lack of need for a bit of torture when fighting terror at home, will not accept national emergency as an argument. It consistently derives its descriptions of the situation and stock-taking of a wrong kind of sovereignty from its fixed condemnation, creating a portrait of a state power whose main, in fact sole, purpose is to suppress upright, courageous dissidents.
So it is clear what the investigative front men and spearheads of the public find newsworthy in such places, and how they report. When the known purpose of all assessments is to stylize a foreign rule as evil, circumstances automatically turn into examples of that, when in another context they would speak for something completely different or not even be of any interest at all. Famines are no longer a consequence of the spread of deserts or perhaps a misguided economic policy, but proof that the government doesn't care about the survival of its own people. Terrible working conditions in factories are not dismissed as the ‘downside’ of an economic upturn that testifies to the state's ambition to modernize, but show that corrupt officials are not upholding that great good that makes profit-making noble in the free world: the human dignity of the economic factor known as labor. And when the analysis of the situation in such a country might actually include a consideration that low wages make economic sense, it is completely beyond the comprehension of public evaluators of the global human-rights situation when a government keeps its liberty-thirsty youth from seeing an Internet site or forbids an artist to have his grand show. Then people, who have been adopted by the Western journalist as virtually his own kind without being asked, are being denied freedom of action. There is no need to ask what is driving those involved and affected because the main thing is clear: it's a case of unwarranted deprivation of liberty. This disqualifies the whole system much more trenchantly than, just by way of example, even the worst poverty due to the market economy. Thus, in the interests of extensively researching a public enemy, much that is disparate becomes commensurable, and the important is expediently separated from the unimportant. If it serves the cause, it is sometimes quite useful to make up some appropriate news. And the Western public is at its very best when it de-politicizes the acts of force it is all excited about to the point of attributing them to psychology, portraying the ruler as having a deformed character and being some mixture of a comic figure and a monster.
However, the protagonists of democratic opinion-forming prove their professionalism above all by the skill with which they give their depiction of the situation the moral persuasiveness required to fit the charge. The crucial trick here is to adopt the perspective of the victims, of those affected by the ostracized state's actions. This can easily be done without having to know or say much more about these people than that they are victims. Their status, or the apolitical empathy to be aroused with drastic images, positively demands that one abstract from all factual circumstances of the exhibited misery and reasons for it, from the political purposes of both those in charge and those affected, demands focusing instead on the suffering of the latter and the evil intentions, the malice of the former. It is this moralism that makes the required political partisanship irrefutable.
But there is one attribute that victims do need in order to serve as proper witnesses for the prosecution: they have to be innocent. After all, people with human rights on the brain take it for granted that states use force to inflict suffering in one form or another to retaliate for guilt they have established when their prevailing law has been violated. So the accusers, thinking of course only of human suffering, proceed to make remarkable distinctions with the greatest of ease. Whether a murdered or suffering person is wearing a uniform or not is commonly accepted to be just as important a distinguishing feature as sex and age when it comes to whether someone is good for being cited as evidence. Civilians, women, children, the old and the sick… — only such victims as these undeniably prove the apolitical malice of the rulers, and confirm the picture of force applied without measure or purpose that is being drawn to portray the criticized state. It is never a problem to find such victims. After all, they are looked for in the realm of the regime that has been declared intolerable and whose negative image is being cultivated by the public agitated over human rights. And they are suitably picked out from among the wide assortment of victims that every state with its monopoly on force produces in accordance with its purposes and its situation.
It must now of course be demonstrated that it is the other way around as far as looking for and finding is concerned, i.e., that it is not the judgment about the ruling power that is the reason for identifying suitable victims, but rather that one's honest horror in the face of innocent victims is the reason for condemning the evil rule. This is a task in and of itself insofar as a mere look at conditions, although it provides material for all sorts of criticism, fails to supply a clear decision about the question of guilt or innocence and often even about the victim status itself. Whether protesters who are incarcerated, or beaten up or shot on the street, are innocent victims or else rabble-rousers out to provoke chaos and violence; whether those in uniform are actually not ‘henchmen’ but instead ‘young men, practically adolescents’ forced into service for a fanatic and hopeless struggle for the regime's survival, who have to be pitied as ‘cannon fodder’; whether civilians are really civilians or merely not wearing uniforms; and so on — no one can find that out no matter how sharply he looks. A state propaganda department can always counter on the picture level in any case, rejecting the accusers' evidence as forged and telling its own horror stories about its foes. And because it is not about arguments but about the moral persuasiveness of interpreted pictures, and because it is actually supposed to be about just that so that one appears to be establishing the truth in a nonpartisan way, then counterexamples, which disturb the preexisting judgment that is seeking confirmation, must in their turn be exposed as fraud. It's even worse when one's own pictorial evidence is revealed to be fake… So to uphold the credibility of its accusations, the public has plenty to do — and it knows right away what it is. The crucial matter when it comes to persuasively portraying a public enemy — the equivalent to objectivity and accuracy for a judgment of moral condemnation — is the authenticity of the testimony produced: proving one was “really close” to where nasty things were happening, in possession of real, live victims; and best of all having one's own reporter on the scene. As the eyes and ears of the those sincerely and deeply concerned at home, the reporter guarantees the accuracy of the descriptions and images provided and therefore the validity of everything they stand for. He serves this purpose all the better when he becomes a news item himself. Then the terrible circumstances of his ‘investigative work,’ especially when the regime deliberately creates them for him, prove how terribly right it is to be against the country, and make this morally binding for all well-meaning people. At the same time, the public, which cares about nothing more than authentic testimony, frees itself from the need to get genuine testimony, by extensively problematizing the question of genuine or fake, reliable or unreliable witnesses, photos, and informants. On this meta-level, the investigator's awareness of the problem guarantees his moral integrity, which, in this altered form as well, is supposed to neatly coincide with the validity of his verdicts about the denounced regime.
b) The public problematizes the credibility and limits of its nation's imperialist morality
Again, the human-rights accusations that the free public presents in the form of graphically illustrated descriptions of customs in the various hotbeds of political evil are, in the final analysis, properly credible if, when, and to the extent that they are to be taken seriously in practical terms, i.e., they basically match the real key powers' reservations and declarations of hostility. This ensures not only that such condemnations appear practically relevant, but at the same time that the moral position from which they are issued is sound. It makes them more than an idealistic, private opinion — it makes them a valid determination of the situation. A self-respecting free public naturally interprets this clear relation, too, the other way around. It takes the liberty of rating its analyses as directives for politics to follow, and of checking whether the state powers in charge are acting on a human-rights imperative in their global politics by helping to implement the corresponding human-rights catalog. What the public is avowedly concerned about here is not so much what is actually happening in the world, but rather the credibility of politics that invokes human rights, and is measured against them by their public advocates even when it doesn't invoke them. This criterion involves an interesting mix-up and a remarkable admission. The public is firstly foisting its own credibility problem on politicians — that is the mix-up — and, secondly, by expecting politicians to eliminate this problem by appropriate efforts, it is admitting that its own human-rights commitment is only worth as much as the power acting in this regard. It is not conceding, and certainly not recognizing, that the human right is in fact nothing but an authorization invoked by sovereign powers who see themselves responsible for world order. But the critical public does realize that championing human rights is absolutely pointless without a force-wielding authority that is able to exert some degree of world rule and uses human rights as its moral authorization to do so.
As a result of this equivalence between the virtue of human rights and the power of imperialist self-assertion, the moral imperative by which the Western public customarily measures its rulers is sharpened, differentiated, and relativized in certain ways.
On the one hand, all real imperialist calculations are permanently suspected of watering down the resoluteness with which foreign-affairs politicians are supposed, in the public's not very humble opinion, to rebuke their foreign counterparts in matters of human rights, insist they correct their methods of rule, or actually see to correcting them themselves. So a national public intoxicated with human rights will inevitably become dissatisfied with its own government. In the freedom of the government to use human rights for its imperialist projects, the public sees the governing foreign-affairs politicians being unprincipled, not being serious, or being dishonest in realizing the high mission about which it feels in unwavering agreement with them. When a state's condemnation of another state is not followed, or not followed fast enough, by what a public incited with human rights thinks needs to be done, then its front-line fighters can get unpleasant. Ironically, the holders of political and military ranks, whose job consists in nothing other than freely using the nation's means of force they have been authorized to use, must then submit to sharp questioning reminding them of what they have actually been empowered to do. The accusation of pussyfooting is always in the air. And at certain great moments of freedom-loving journalism, it actually happens that politicians don't have to explain why they are waging a war, instead having to justify themselves for not waging a war.
On the other hand, a pluralistic, strongly opinioned public does not lose sight of the practical concerns of its state power that had better keep order on the globe. The public at least recognizes the fact that such concerns exist, that its nation's power somehow depends on these concerns being taken care of, and that this goal is not always served with human-rights moralism. Without abandoning the imperious demand for a world politics in the spirit of human rights, and entirely committed to the hypocrisy involved and to the concern about whether such hypocrisy is credible, the proponents of realism in world politics recall that a government is additionally, and even primarily, obligated to serve its own people and not to worry about other peoples' well-being. As soon as world politics costs something, the campaign for human rights is suddenly no longer the highest imperialist duty, but a burden that one's own nation's human material can only be expected to shoulder when some substantive national calculations work out, whichever they may be. For example, in Germany's dealings with China, the interests of VW have to be looked after alongside the human rights of the Divine Lama; and vis-à-vis the Russian anti-democrat Putin, the opportunities for a strategic energy alliance must be tended to along with artistic freedom for Pussy Riot. This means that the human-rights ethos of democratic world politics has to endure a certain relativism. But this too can actually be justified from a higher, not just strictly national, standpoint; by pointing out — neither out of modesty, nor only hypocritically — that even the greatest national power has limits and cannot be expected to worry “all the time” about “all human misery” “everywhere,” and “constantly” take action against wrongdoers in office “all over the world”…
And sometimes the limits of imperialist power are not merely invoked hypocritically but actually reached, in large-scale operations that are formally dedicated by their organizers to the global enforcement of human rights. For example, at the beginning of the twenty-first century, an entire decade's worth of crusades justified by human rights have failed to deliver the result expected in the West and are officially assessed as anything from unproductive to detrimental. And an educated public promptly discovers that the moral standard by which it has kept on bullying the whole world has internal limits. Maybe the reason why those states and peoples are consistently so ungrateful for the years of help they were given with cruise missiles and ground wars is that our Western understanding of human rights and human nature is actually not universal but culturally specific?
3. Guidelines for bad criticism
No question: champions of human rights who criticize living conditions in other states, and humanitarian organizations actively meddling there, want nothing to do with the mainstream public, which generally worries about a people's misery exactly as long as its own government is more or less hostile to that people's state. These critics are disturbed by people's plight even when their own nation's agenda is not using it as the entitlement to interfere, and often enough they know that Western states maintain good relations with not terribly democratic regimes even though those in charge here in the West are quite aware of the ‘human-rights situation’ over there. When they accuse a government of being a human-rights violator, they will not accept the excuse that it was forced by circumstances or a national emergency to treat people as shabbily as it does. They denounce what they regard as a human-rights violation even when it happens in their own or an allied nation; they will not be accused of partisanship. And they especially won't hear that a ruling power — no matter which one — can't do anything about the deplored conditions. They target states as the sovereign creators of all living conditions; but the way they do it is all wrong.
Although these critics of government machinations have identified state rule as the author of misery and cruelty, they see no reason not to accuse it of breaches, of violating norms they are supposed to fulfill, failing at tasks they are supposed to perform. This spares them any glance at the tasks that a national force monopolist really sets for itself in the world today, and the criteria it is actually committed to and trying to meet in the process. These real tasks and criteria are in fact not at all difficult for a critically detached judge of world events to identify. Any state power intent on being taken seriously by its peers will list, as its prime official duty, securing its monopoly on force, this being all the more important the shakier its basis is in the loyal service of its citizens. This monopolized force always focuses on instrumentalizing its people for the accumulation of the wealth that it accesses in order to ensure its own functioning nationwide. In accordance with the prevailing world order, it therefore presents its citizens with the wonderful alternative of either making themselves useful for a competitive market economy to that end or enduring absolute impoverishment, both of which require a level of oppression appropriate to local circumstances and customs… What fans and defenders of the human right to good treatment by superiors have in mind is, instead of these purposes, an image of rule in mind that depicts the creators of the conditions of existence in a particular place as service providers for managing these conditions, and depicts the force that compels all mortals into functional subordination as a public service that bestows order on customers known as ‘citizens.’ They interpret reality, which makes a mockery of their ideal, as a deviation, an exception that proves the imagined rule, and that therefore must be criticized as a breach of duty.
What they have to criticize here is actually not much, considering the real effects of the global regime of political-force monopolists. When it comes to their own rulers, human-rights activists at home in the democratic, imperialist realm of freedom only find a violation to object to in very exceptional cases. In the daily routine of a smoothly functioning system of domination and control with all the relentlessly enforced “practical constraints” that a bourgeois private individual takes for granted as the premises for his free calculations, they can see no constraint whatsoever, only harmless public authorities willing to serve. The most extreme criticism they level at their own rule is that it makes it too hard for refugees and other immigrants to integrate into this idyll. That already gives them practical proof that a state's rule can not only work quite differently from the cases that alarm them, but that the rule they have become accustomed to is also the binding normal case against which foreign ‘human-rights violators’ disgrace themselves as such. Accordingly, they criticize all kinds of things about them — but never what the incriminated governments accomplish on their territory with their intense efforts to assert themselves as competent administrators of a viable capital location alongside the established powers. They only criticize deficits: blatant or less blatant deviations from the political relations that they know and that they recognize as given realities. They find force being applied where their own government usually doesn't need it — and jump to the conclusion that there is basically no need for it there. Even the fiercest human-rights accusations draw on the idea that the deplored ‘excesses’ of state force are simply unnecessary. And this moral condemnation even likes to present itself as an objective diagnosis that the abusive rule should take to heart for its own benefit: a use of force going against human rights is really unnecessary even from the point of view of the perpetrators, it's actually counterproductive for their own cause… Those who criticize a state's use of force in the name of human rights are in fact making a case for rule that is entirely accepted, and therefore have no problem presenting their criticism as advice to the rulers.
The way they side with the victims of ‘human-rights violations’ follows consistently. People who interpret state force and forcibly produced misery as a violation, who are always interested in the harm done to human rights when a human is harmed, such people simply do not see the victim's damaged interest as sufficient reason to object. That would unavoidably mean clarifying and attacking the real conflict of interests between ruler and governed subjects. The diagnosis ‘violation of human rights’ already takes care of the ‘issue,’ because from the outset nothing more is asserted than an abstract legal claim. The victims, instead of having an interest, need a right fulfilled that they are entitled to, namely, the right to be subject to beneficial rule. The call for a people to be treated properly in terms of human rights not only fails to call this status of the powerless citizen into question, it takes the relation between ‘above’ and ‘below’ for granted and operates theoretically with it as a moral obligation of those in power. With the accusatory diagnosis that some ruler has abused the clear and entirely reasonable ‘division of labor’ between those governing and those governed, the victims that indignant human-rights advocates are out to protect are not simply entrusted to an idea, however, but to an ideated authority, which intercedes for them — in both senses of the word: for their benefit and in their place. This authority is first and foremost the accusers themselves, who would never think to recognize themselves as the affected human material of that very global system of rule that so often takes such glaring forms. So they definitely don't think of fomenting an uprising against this regime and those in the democratic centers who are chiefly responsible for it. They don't even think about how to stop the ‘International’ of reigning force monopolists that are in some cases allies, in some cases enemies, but in any case in fierce competition with each other. They much prefer to adopt the position of being a morally affected party jointly responsible for this ‘world order,’ regarding themselves as a first authority competent to combat abuses. And that they do — only logically — above all by appealing to the really ruling authorities to heed the human-rights code while going about their business of governing, which in principle no one wants to challenge.
This appeal is both self-confident and modest when it concerns cases — always exceptional cases — at home and is addressed to those in charge. The latter react by recommending legal action, which everyone has recourse to in a proper constitutional state. And taking such action makes all accusations end up submitting to the piece of self-control that a bourgeois rule bent on functionality customarily incorporates in its regime. When it comes to foreign ‘human-rights violators,’ human-rights defenders first write polite open letters explicitly acknowledging that the governing thugs are in charge, and count on being able to exert pressure that way because a government simply has to care about having a good reputation in world opinion. It doesn't bother them that at most they are inciting the ruling team's calculations about carefully staging some hypocrisy while securing its power. Nor does it bother them that even if their intervention is successful, they will never run out of cases. When human-rights indignation is supposed to produce more than a mere request to the perpetrators, then the ideated authority for improving rule around the world unerringly turns back to the authorities that it, on the one hand, quite realistically thinks have the real power to effectively rebuke other governments. Even though it, on the other hand, is not willing to hold them responsible for the global management of force, which obviously not only leaves room for quite a bit of ‘excessive’ force, but also creates reasons and brings about the need for it. If organized human-rights activists meet with a positive response, are perhaps even officially charged with monitoring compliance with some human right in some corner of the earth, or given carte blanche and the means to stir up dissatisfied parts of the population against a government that has fallen in disgrace with the leading imperialists, then such activists therefore don't let the political calculations they are serving bother them. They hold on to the illusion that it is actually the other way around — that it is they who have managed to functionalize imperialist calculations for their human-rights mission — even when the interest that those in power actually put into practice terminates their well-meaning initiatives just as it has allowed them room, or when it even constantly thwarts them at the same time.
Human-rights idealists in any case don't find it suspicious when they are well-liked by the state powers that, in fact, subject the world to their regime of competition and also still like to declare themselves guardians of the family of nations without wanting to have anything to do with the savage consequences that their competitive regime has led to in certain regions of the world. These activists take the liberty of seeing such cheap recognition as confirmation of their belief that they have an imperative on their side for mankind's entitlement to be well governed, and that the most powerful of the world powers must pay tribute to it. However, when they overdo it with this illusion and start really getting on the nerves of those in charge with their ideas of a better world, they are sometimes rebuffed by the governing politicians and above all by the journalistic ‘forward defense’ of national interests, as well as by a public that has embraced its rulers' ambitions and accustomed itself to the cynicism of politics and the official versions of what is happening. Then it is time for the activists to be accused of being out of touch with reality with their fine ideals that are so happily invoked by politicians giving ceremonial speeches. Then their desire to do some good and pursue their ideals suddenly makes them ridiculous do-gooders and starry-eyed idealists. These reactions on the part of the powerful and the mainstream indicate the lowly status that such a thoroughly decent desire for more decency in the world of rule has in actual fact, and what importance it is at most accorded. Idealistic campaigning for human rights is welcome as the bad conscience that judges rulers by the moral appearance of their rule, perhaps even reminding them of it. But then it also has to prove itself as the good conscience of the power that ensures the prevailing ‘world order’ and expects to be respected as a useful corrective authority for any lapses that might occur.
At the same time, it is definitely not true that the rulers in charge need to rely on freelance human-rights idealists for their good conscience and brazen self-praise of their rule. When the latter decide to go beyond whatever they have do as the human material of their capital site-managing governments and start advocating for more morality in world affairs, citing human rights to justify this request, then there is only one thing they are changing in the world, if anything: themselves, their attitude to world affairs.
And this change is not for the better.
[*] German Gattungwesen, usually translated as ‘species-being’ (a concept used by Feuerbach and criticized by Marx).
[†] German Überpositives Recht. The usual English term is ‘natural law.’
[‡] “Militant democracy,” a “democracy capable of defending itself” — these are terms coined by philosopher Karl Loewenstein. All democracies can suspend democratic procedures constitutionally in a designated “state of emergency.” See for example the US Constitution Article 1 section 9.
 This [Article 15(1)] and the following examples are taken from the 1948 United Nations “Universal Declaration of Human Rights.”
 There was plenty of that awareness summoned up in regard to the brutal methods of treating captured enemies especially at the beginning of the American-led ‘war on terror’: from the outsourcing of anti-terrorist torture chambers to states that are otherwise condemned for such practices, to heated discussions on how to define the boundary between ‘enhanced interrogation’ and ‘torture,’ and whether waterboarding — with or without the presence of additional experts — is within bounds or actually goes too far.
© GegenStandpunkt 2017