Ends and Means: A Response to Rights as Weapons

| November 2019
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In Clifford Bob’s latest book, Rights as Weapons, he argues that rights are not political ends in themselves but are rather an effective means by which to win political conflicts. To make this argument, Bob sets aside the moral and ethical aspects of rights and instead focuses on their political components, providing a “systematic account” for the mechanism of political usages of rights. In fact, one of the biggest contributions of this book is to map out varying ways in which rights are used strategically. The author identifies different tactics and offers a clear lexicon for individual cases. Rights as “camouflage, spears, dynamite, blockades, and wedges” depict each tactic’s application with empirical examples. Not only does he identify each tactic and characterize its function, this analysis enhances our understandings about how rights claims operate in actual political situations. Also, their versatility in movements creates political power that the tactics maximize. In sum, rights are powerful instruments—weapons—for political ends.

In this essay, I discuss two issues concerning the instrumentality of rights. The first is the book’s theoretical frame of legal realism, which in this book signifies the decoupling of morality and rights. Bob claims that his definition of rights “follows that of legal realists” (p.11), which consciously omits “a moral component” (p. 10). The author’s decision to cut off morality from rights may be a strategic choice, but his take on the legal realist frame creates confusion. Legal realism, unlike legal positivism, does not necessarily reject the effects of moral aspects in legal procedures. The idea behind legal realism1 is to observe judicial decision-making in order to understand actual adjudication processes. There is a debate surrounding the theoretical stance of legal realism. but it would not be wrong to say that morality’s position within the legal system is not the main concern of the theory. What matters is not Bob’s sincerity to legal realism but the outcome of this confusion. The question is whether he aims to cut off morality itself or the effects of morality.

Bob does not deny that moral effects—“moral and ethical appeals”—have “tactical usefulness” (p. 11). However, he limits the effects to the realm of rhetoric, which can be canceled by competing rhetoric from potential opponents. For him, “activists could use rights as weapons only because they had political movements or states behind them, lending strength to their claim” (p. 209). Namely, manpower, financial resources, and institutional support bestow instrumentality on rights. But, how are the material supports to back up a certain rights claim mobilized in the first place? He does not provide a clear answer to this question, other than to show maneuvering political leaders able to pick up compelling rights claims to serve their purposes. Surely it is part of a leader’s skill to discern the most effective rights claims, but that does not create the power that produces actual effects.

In Chapter 6, for example, Bob describes how French nationalists used the claim of national rights to prohibit full veils in public–the so-called “burqa ban.” The real reason this claim succeeded is not due to a decision made by the leaders of the French nationalists. Rather, this rights claim mobilized the National Assembly and public opinion. The power of mobilization is derived from the sense of entitlement that the rights claim grants. Bob recognizes the political argument of French officials, that the veil infringes upon the “basic principles” of the French republic (liberté, égalité, and fraternité), but does not acknowledge that this argument cannot be politically effective without the moral effects of the rights claim. In other words, the ban passed because people believed the French nation ought to be–not just is–able to pursue its national identity (the controversy over national identity is another matter).

My concern is that the author’s attempt to “scrape away the carapace of morality around rights” (p. 215) undermines his own argument if it turns out that the rights’ instrumental power is derived from the very fact that rights have this “carapace” to begin with. Even further, is it not this form of morality, rather than the content of rights—whatever that may be—that constitutes the very political component of rights and which weaponizes them? Otherwise, rights would be a purely legal matter. In another case in Chapter 6, women’s rights in the Afghanistan War are used as “dynamite” against local culture because of their ability to appeal to the sense of “the right thing to do” (p. 141) among the international community. This sense of legitimacy constitutes the political currency of rights being utilized to mobilize, institutionalize, and execute the intervention in Afghanistan. Without the peel of morality, women’s rights would not have been a viable tool for the “Hillary Doctrine.”  

My point should not be misunderstood as criticism of Bob’s omission of morality. And it is not to argue that rights inherently embed certain moral values. On the contrary, I agree with Bob’s conception of rights as lacking inherent capacity or political program to advance human emancipation or progressive democratic ideals. This means that the moral effects of rights are contingent upon historical and local contexts of rights movements. However, if this is the case it seems appropriate to ask, what exactly is this morality that he is trying to cut off? Is it the morality that evokes Euro-centric liberal values precipitated by 19th-century moralism? Or, is it normativity that rights imply? He seems to argue the former, but does not mention the latter, which obfuscates his claim on the legality of rights.

This brings us to my second issue point of discussion. The legality of rights is clearly the key to their instrumentality. Rights are useful in many ways for political movements, but they are a particularly powerful tool for imposing requirements due to their legality. The legality embedded in rights exerts instrumental power in political conflicts. Bob notes that the instrumentality of rights has some particular power when compared to other political ideals such as “justice, equity, or fairness,” none of which “result in enforceable legal obligations. Rights do” (p. 18).

But how do rights create legal obligation? One straightforward answer is that rights inform legal duties. After all, documentation of rights is one of the traditional legal forms. The Bill of Rights was one of the many British legal forms that were adopted by the Framers of the Constitution. By the same token, the Universal Declaration of Human Rights functions as one of the basic documents of international law. Yet, what triggers legal duties cannot be understood without a normative basis that the law shares with rights claims. The tradition of legal theories indicates that there is a normative basis that establishes the legal system, what Hans Kelsen called “the basic norms.”2 This normative base is the condition of possibility for the legal system’s validity. Although a full discussion of morality and law, such as that featured in the “Hart – Fuller debate,”3 is well beyond scope of this contribution, it is worth noting that even H. L. A. Hart—known for his opposition to the morality of law—acknowledged the basis of “fundamental accepted rules.”

What matters here is that normativity enables rights’ peculiar position both as means as much as ends. The author’s over-emphasis on the means therefore may mislead when it comes to the instrumentality of rights. When Bob states: “In the same-sex marriages dispute, for instance, the core issue is about marriages themselves, and secondarily the right to them. The right is a means that makes marriage possible legally, and claims to the right helped make them possible politically” (p. 210). He does not acknowledge that what makes living together a marriage is the normative status that a couple acquires through the right to get married. Marriage is a social institution. Getting married means to obtain legal status as a married couple. There is no such thing as “marriages themselves” unless it is political and legal, which cannot be activated without rights.

The critiques above do not negate the advantages of Bob’s work, which provides a specified landscape of rights conflicts in political movements. My focus on moral effects and normativity is an attempt to complement his theoretical argument on instrumentality without relapsing back into moralist and doctrinal interpretations of rights and rights claims. His claim on rights as weapons is valid but limited in fully illuminating how rights work.


-Hye Yun Kang

Hye Yun Kang is a postdoctoral fellow in the Mershon Center for International Security Studies at The Ohio State University.

 

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  1. Most basically, see H.L.A Hart, The Concept of Law (Oxford: Oxford University Press, 1961, 1994), 124-54; Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), 31-44. The debate between legal realism and legal positivism is well documented in Brian Leiter, “Legal Realism and Legal Positivism Reconsidered,” Ethics 111, no. 2 (January 2001).
  2. Hans Kelsen, General Theory of Law and State (Cambridge: Harvard University Press, 1949), 401.
  3. H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, no. 4 (February 1958); Lon L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review 71, no. 4 (February 1958).

Category: Online Book Symposium: Rights as Weapons, Online Exclusive

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