In his insightful ‘Inaugural Editorial’ for the Irish Human Rights Law Review, Donncha O’Connell briefly addresses the lack of enthusiasm in Ireland for a political approach to human rights (rather than juridical). There is much to commend the editorial. Perhaps the most interesting element is O’Connell’s sense of the political and its relation to human rights. He poses the traditional dichotomy between law and politics, and furthermore within politics, between social movements and the traditional political sphere of the legislature. He argues that human rights in Ireland tends to be too focused on the juridical forms, ‘Too much time [he says] is spent on winning arguments about textual formulae that may or may not affect actual outcomes for actual human beings’ (p.xi). However, he argues that at the base of this lies a dysfunction in the Irish polity. Referring to civic republicanism, he diagnoses this fundamental dysfunction as an absence of ‘public morality’.
In this critique, he shows himself to be alive to the problem of rendering human rights as an essentially legal form, thereby excluding other disciplinary perspectives. However, there is a secondary issue: Once you accept this initial refusal to enclose human rights in law, the question becomes how to frame the political sense of human rights. I would like to take up O’Connell’s analysis, and push it in a different direction.
In a time with very different targets and problems, a pair of (then) newly emergent ‘young Derrideans’ – Jean-Luc Nancy and Phillipe Lacoue-Labarthe – opened a center to study what they called the ‘retreat of the political’. (See Jean-Luc Nancy & Phillipe Lacoue-Labarthe Retreating the Political). What they called the ‘retreat of the political’ was the manner that ‘the question of the political, that is the question as to its exact nature or essence, retires or withdraws into a kind of evidence or self-givenness, in which that which is political in politics is taken for granted or accorded a kind of obviousness which is universally accepted.’ (Ian James, ‘On Interrupted Myth‘ 9.4 Journal for Cultural Research, p336). In this withdrawal of the political, the everyday horse trading of politics takes over and the fundamental questions as to the sense of the political community disappear. This sense of the ‘retreat of the political’ is everywhere in evidence in Ireland. Politics in Ireland’s hegemonic neo-liberalism is presupposed as that which happens after and in the wake of the economy. In other words, politics is over-determined by the economy, erased under the sign of the market. This retreat of the political into the givenness of everyday politics leads Nancy and Lacoue-Labarthe, in a typical deconstructive move, to give ‘retreat’ a second sense. The ‘retreat of the political’ should be re-treated or re-traced, in order to rediscover the potential within politics. The political is the essence of politics, which politics has forgotten. By losing sight of the fundamental possibilities of politics, the political has withdrawn. We must therefore withdraw from politics to rediscover the political.
It is at this level, that I would applaud O’Connell. By rejecting the simple reduction of human rights to a juridical form, he sees that law is not the end (i.e. the telos) of human rights. He suggests that judicial human rights decisions should not be seen as an end, but as the beginning of ‘dialogue’. He tells us that ‘[t]he unfinished business of the Constitution is progressed, inter alia, by the Legislature’ (p. xii). This inter alia is crucial. Law is responsive, but not just through the ‘proper’ political processes (elections, Dáil debate, lobbying, etc), but also by way of what O’Connell calls social movements. The problem of the analysis of ‘public morality’ instead of questioning ‘the Political’ is that it tends to only look to these ‘proper’ political processes. These social movements certainly undertake ‘proper’ acts (marches, lobbying, etc), but also what we could call ‘improper’ acts (everything from civil disobedience to the ‘blue flus’ and traffic protests, even certain militant strikes, if we are looking from the hegemonic neo-liberal discourse). These acts are classed as improper because they attempt to rupture the givenness of the situation. They do not travel the well trodden paths to the Fianna Fail tent at the Galway Races, but rather attempt to reveal the ‘state of the situation’ (See Emilios Christodoulidis ‘Strategies of Rupture’, Law and Critique, (2009), p3). Law is responsive to both proper and improper political actions. However, within the already given paths to power there is a tendency to translate demands for justice into the language of the day, thereby losing the just-ness that those movements strive for. Thus, it is sometimes in the improper political acts that we most clearly get political transformation.
We have seen a number of interesting and often quite radical social movements in Ireland in the last years, from the anti-war and shell-to-sea civil disobedients, to the farmers’ and taxi drivers’ protests. While the farmers, for instance, are often portrayed in individualistic terms of self-interest, at a grassroots level (no pun intended) it is evident that these movements are responding to fundamental question of the political, questions about how we should organise a state, the relationship between (the) people and ‘the economy’ in terms of sovereignty. These are the questions of neo-liberalism, globalisation, economies of risk and the apparently unstoppable conglomeration of big business, i.e. the political rather than everyday politics.
The problem for human rights, as Bloch notes, is that there is an originary split between natural (and later human) rights and social utopia. While I disputed the necessity of this distinction in my last post to this site, in general in the literature this divide remains. Too often human rights do not provide the tools to think about the most important issues of the political. The challenge is to try to think about human rights in a broader sense, to link it with more radical senses of social justice. This requires us to engage in an analysis of human rights’ political potential, not merely in what their role is in the petty politics of the day. Thus, while there is much in O’Connell’s editorial that is to be commended, I wonder if it does not go quite far enough. I have argued previously that perhaps in Ireland it may be useful to understand human rights in an a-legal fashion (See Hans Lindahl) treating them as strategies of rupture.
While human rights should not be disassociated from politics, the political in which they are enframed is crucial. I suggest that human rights should not only be understood in terms of petty politics with its overdetermination by the economic. Instead, they should be examined in order to grasp something much more fundamental; the possibility and potential of the political. Human rights present us with a crucial conjunction: they demand that we think about the link between ‘human’ and rights, or more radically put, between the question of what is fundamental to being (human), and the politico-legal makeup of community (rights). The challenge is to think a human rights which is not overdetermined by humanism and liberal capitalism. The call of human rights is to think about being-together on a fundamental level, to begin to understand both the possibilities of politics and the manner in which human rights can be used. I would suggest that it is not a matter of looking to some ‘public morality’ which Ireland lacks but which other countries have in spades. The challenge for a different human rights in Ireland is to think about how we break the economic hegemony, challenging its ‘necessity’. Mourning for some potentially lost public morality runs the risk of missing the very real and material possibilities for a ruptural idea of human rights in Ireland right now.
This article was originally posted on the Human Rights in Ireland blog.
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