Law, Morality, and Culture in Rights as Weapons

| November 2019
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I distinctly remember meeting Clifford Bob three years ago at an International Studies Association conference, and learning about the fascinating ways in which Catalan nationalists employed animal rights to advance their causes. I am happy to see the broader project published in his excellent new book, Rights as Weapons. The book contends that rights are political instruments that can be employed not only to help the weak but also to hurt them. At the core of the book are three categories of strategies through which political actors can use rights instrumentally. First, they can mobilize support through “rallying cries,” which stress that one’s natural, universal, apolitical, and absolute rights have been violated. Second, they can deploy rights against opponents or third parties for a variety of reasons: to conceal their goals (rights as “camouflage,” in Bob’s words); to overturn specific laws or policies (“spears”); to undermine opponents’ culture (“dynamite”); to suppress other subordinate groups (“blockade”); and to weaken opposing coalitions (“wedge”). Third, opponents can respond by using rights as “shields” and “parries.” The latter include strategies that contradict opponent rallying cries (“denial”), promote their own set of rights (“rivalry”), depict themselves as victims of the other side’s violations (“reversal”), and reject unfavorable authoritative decisions such as court rulings (“repudiation”). These strategies are illustrated with fascinating examples and short case studies ranging from political struggles over civil rights and nationalism to religion and gender.

The book’s main contribution is to remind us that rights are political means that can be employed for a variety of ends, including oppressive ones. I see it as part of an emerging group of studies that offers a valuable corrective to scholarly literatures that have insufficiently recognized this instrumental aspect of rights and laws.1 The book also identifies what may be the most comprehensive catalogue of instrumental strategies pertaining to rights. Different chapters develop these strategies by discussing issues such as their most likely users, targets, and chances of success. This is a gold mine for those interested in the further theoretical expansion and empirical assessment of particular strategies. Bob’s erudite but accessible arguments, supported by interesting examples, make Rights as Weapons not only highly informative but also very readable.

Although there is much to like about this book, aspects of its argumentation raise questions. For my contribution to this symposium I will focus on three such areas:  the definition of rights, the empirical-methodological challenges of identifying specific strategies, and the conception of culture.

First, let us examine the book’s approach to rights. Rights, Bob tells us, are “the power of one entity, the rights-holder, to enforce a duty on another, the duty bearer, whether directly or through some institution such as a court” (pp. 8-9). This is a procedural definition, in which rights are substantively empty (p. 210). Various parts of the text provide hints as to the sources and nature of rights, duties, and their enforcement, but Bob explicitly acknowledges that the book downplays the moral aspect of rights (p. 8, p. 11). He distinguishes rights from other claims by stressing that the former entail legal obligations while the latter do not (p. 18). This suggests that codification into law is necessary for the existence of rights and their corresponding duties. Arguments that point to the extra-legal nature of rights, like those presenting rights as “natural,” make an appearance in the book, but are treated as instrumental “rallying cries” rather than as indicative of the true nature of rights. This approach raises a number of questions. Some readers may wonder whether the book underestimates differences between human rights and other types of rights as it places them all in the same broad category of “rights.” Others may wonder about the relationship between rights and laws: Should the book distinguish rights from the law and legal obligations more generally? Is the codification of rights in the law necessary for their existence?

One risk of emphasizing rights’ legal nature and downplaying their moral content is that this undercuts their critical function, which seems especially problematic for human rights. For much moral philosophy, codifying human rights in the law is not necessary for their existence. Human rights exist outside the law, usually as conventional-moral or metaphysical-moral objects. This extra-legal aspect allows human rights to critique unjust laws, including legal rights. The more we conceive of rights in legal terms, the more they lose this critical ability. This is concerning in cases where rights contribute to oppression, which are precisely the cases that motivate Rights as Weapons. This aspect of the book is less worrying if one treats it as part of a scholarly division of labor, where those with normative inclinations embrace the critical function of rights, while others embrace alternative functions of rights. It is nonetheless worth noting.

My second area of critique is empirical-methodological: the book treats rhetoric as instrumental, a means by which different sides in a political contest make claims in order to advance their substantive interests. This treatment becomes problematic because the book relies partly on such rhetoric as evidence to identify some strategies of using rights. That entails an implicit shift away from treating rhetoric as instrumental and being agnostic about its truth-value to treating such rhetoric as true. For example, Chapter 6 examines the rights as “dynamite” strategy, understood as the use of rights in ways that undermine the culture or community of the target. The book lists a number of helpful indicators for identifying whether particular uses of rights undermine the target’s culture and thus qualify as “dynamite,” including whether those in the target state assert that the opponent’s strategy undermines their culture (pp. 127-128). The book then argues that Western policies, such as aid conditionality, employed to counter LGBT discrimination in Africa qualify as “dynamite.” Much of the evidence for this comes from various African statements that such Western policies are adverse to the cultures of people in various African states.

Bob does acknowledge that this type of evidence is problematic in light of his instrumental treatment of rhetoric. Nonetheless, he argues that we should not dismiss such statements because if the people who say these things actually believe them, this will influence their own actions (p. 128). This point is valid, but many readers may be skeptical that this strengthens the evidence that Western pro-LGBT policies are adverse to African culture and thus qualify as dynamite. The book does also provide evidence that some African LGBT communities opposed Western tools of LGBT right promotion like aid conditionality. If, indeed, African LGBT communities were concerned that Western tools undermined African culture, this might have strengthened the case that these tools qualified as “dynamite”. Instead, the book mainly highlights their concerns that the West’s policies would result in anti-LGBT backlash (p. 138). To be sure, the methodological challenge of identifying strategies such as “dynamite” is far from insurmountable. Elsewhere in Chapter 6 Bob relies less on instrumental public rhetoric and more on other empirical indicators to help demonstrate the existence of specific strategies of rights use.

Lastly, the above example raises a broader question about the book’s approach to culture and the relationship between culture and rights. This issue is central to the rights as “dynamite” strategy, which implies that the instrumental use of some rights undermines certain cultures. By arguing that pro-LGBT Western policies are adverse to African culture, it implicitly suggests that anti-LGBT elements are essential to African culture. Bob is aware of this problem and acknowledges that anti-LGBT elements of Western culture were changed without destroying the broader culture (p. 133). What remains unclear, however, is why this fact should not undercut the claim that support for LGBT rights is destructive to African culture.

Rights as Weapons is a must read for everyone interested in the instrumental use of rights and laws in politics. It is accessible, packed with intriguing insights, and draws on a remarkable variety of interesting examples. Future work could build on the book’s general argument and its specific strategies of rights use. More research should analyze the net effect of the instrumental use of rights not only on those wielding these rights but also on the rights themselves. Some of the instrumental uses of rights advance the rights in question, but others may contribute to their erosion (p. 18). It would also be useful to inquire into how rights might shape chances of political success across actors. After all, different rights may not be equally amenable to “weaponization” by different sides for their respective causes. I look forward to the productive discussions this book will generate at the intersection of rights, law, and politics.

– Zoltán Búzás

Zoltán Búzás is assistant professor at Drexel University.

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  1. Ian Hurd, How to Do Things with International Law (Princeton: Princeton University Press, 2017); Rebecca Sanders, Plausible Legality: Legal Culture and Political Imperative in the Global War on Terror (Oxford: Oxford University Press, 2018); Fernando G. Nuñez-Mietz, The Use of Force under International Law: Lawyerized States in a Legalized World (London: Routledge, 2018); Zoltán Búzás, “Is the Good News about Law Compliance Good News About Norm Compliance?” International Organization 2018, 72(2): 351-382.

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

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