Human Rights Law isn’t Protecting the Individual Against the State, but Facilitating the Expansion of the State into Every Nook and Cranny of Our Lives

[What follows is a very slightly edited version of a speech I delivered yesterday at the Danube Institute’s Rule of Law Conference in Budapest. It is a 10-minute summary of many of the themes I have recently been exploring on my Substack and which I will ultimately, in due course, elucidate in a book. You may find it shorter, more discursive and more direct than my usual posts, but this also perhaps makes it more digestible. New readers may choose to look at some of my previous posts for further detail, some examples being here, here, here, here and here.]

What I would like to talk to you about today is the small matter of the future: the trajectory on which we find ourselves as we head towards the end state of liberalism, and indeed, of modernity as such.

This may not be a topic easily dealt with in the course of ten minutes. But examining developments in the field of human rights will help us to achieve our objective. This is because, as the most perceptive of leftist critics have always argued, human rights are fundamentally a technology of liberalism. They produce the liberal subject. By examining the type of subject which human rights produce, we therefore understand better the liberal future that awaits us.

Let me then frame our discussion by asking what the past decade has taught us about what human rights law is really for. And here I will borrow a technique developed by a Hungarian, although he lived for most of his life in France, Anthony de Jasay.

De Jasay observed that if we want to understand the State, it helps to imagine it as a person – with objectives, desires and motives. Let us, then, taking a leaf out of his book, imagine that human rights law is a person. And let us therefore examine human rights law as though it had motives and desires of its own. What, looking at this person’s behaviour – as made manifest in court decisions and the activities of activists and campaign groups – can we glean about his or her project?

Certainly, securing freedom of speech does not appear to be on the agenda – human rights law seems to be intensely relaxed about censorship. Certainly, it is not for the elimination of discrimination as such – human rights law appears to be quite happy with discrimination as long as it can be understood in a positive sense as leading to the goal of substantive equality. And certainly, as we saw in 2020 and 2021, it is not particularly interested in civil liberties – the rights to freedom of association, to freedom of conscience, to bodily autonomy and indeed to liberty itself. Those things human rights law easily and readily sacrifices.

On the other hand, human rights law appears to be very concerned about particular aspects of the rights of immigrants and asylum seekers – namely, the right essentially not to be returned to one’s country of origin in any circumstances. Human rights law appears to value substantive equality – equality of outcome – very highly. During the pandemic, its chief concern appeared to be protecting the most biopolitical of matters: not just health, but life itself. Human rights law, as we have recently seen in the jurisprudence of the European Court of Human Rights, is also extremely worried about climate change. And it is very keen that there should be no diminution in the size and scope of the welfare state. These are the things, then, which human rights law would seem to care about most.

Thinking of human rights in this way, as though it is a person, with a will and a consciousness, therefore helps us very easily understand what its purpose is. And, holding it up for examination in this way, we see that this purpose is absolutely not a matter of limiting the power of the State. Far from it. Human rights law’s chief concern is rather to facilitate the expansion of the scope of State power to each and every horizon – to bring within its purview not only the means of human subsistence, not only the substantive equality of each and every individual human being, not only the populations of every part of the globe if they are able to make the physical journey to a human rights-respecting location, not only sickness and disease, not only even human life but the very climate itself. There is no aspect of economic, social, cultural or naked biological life that is beyond its ambition.

Human rights, then, is a technology of liberalism par excellence if we understand liberalism not as a limited form of government but rather as how Leo Strauss described it – as that form of government which promises complete emancipation within the universal and homogeneous state. A state in which all are made equal, all are freed from conditions of want, and all human difference is made politically irrelevant because all are secured in the mutuality of recognition.

Strauss was of course commenting on the thought of Alexandre Kojève. But it is through another Straussian sparring partner – separated by centuries of time – to whom we must turn to properly understand this phenomenon: namely Niccolò Machiavelli.

Strauss presents Machiavelli to us as the central figure in the break between modernity and what came before it. This is because Machiavelli represents an understanding of government as being grounded only in temporal justification – never theological justification. The practice of modern government gets its legitimacy and its justification from the fact that it, precisely, ‘governs’: it acts upon the world.

For Machiavelli, this meant modern government could be understood as a relationship between governor and governed in which the former must at all times ‘govern’ in such a way as to secure the loyalty of the latter. Without that loyalty, the relationship would break down and the governing framework would collapse. The modern state’s obsession, then, would be to govern in such a way as to retain the population’s loyalty. And those familiar with Machiavelli will know that he believed there were only two ways in which this could be realised. The state could represent the norms and virtues of the population as a republic. Or it could rule the population as a prince. In a republic, loyalty is secured by the connection between government and people. In the principality, loyalty is secured by the purported necessity of government, without which the population will decay into corruption.

The rule of the prince, then, relies on a discourse through which the population is constructed as vulnerable, needy and decadent – incapable of being left to its own devices, and incapable of governing itself. Government justifies itself, in this model, through a portrayal of itself as indispensable, since the people, without it, are corrupt.

In Chapter VI of The Prince, we see this stated very succinctly, in the course of a single sentence. “It was necessary”, Machiavelli tells us, “For Moses to find the people of Israel slaves in Egypt and oppressed by the Egyptians, in order that they might be disposed to follow him to escape this servitude.” Note the emphasis: it was necessary for Moses that the people of Israel were in a position of vulnerability, destitution and enslavement, that he might be the one to free them and that they might therefore be disposed to follow him.

This is, in essence, the promise which the modern State, and modern liberalism, which increasingly rejects the concept of representative government, makes. Trust in me, and let me lead you, because without me all is chaos. You, the people, cannot be trusted to govern your own affairs, cannot be trusted to cooperate with each other directly, and cannot be left alone – because to do so would be to give effect to your own corruption. It is I, the State, who can free you from want, who can deliver you to a position of perfect equality, who can liberate you from any and all constraint, who can protect you from sickness and death, and who can even protect you from the climate itself. This is the reason why I exist, why I govern, and why I should retain your loyalty.

I will not belabour the point, which should by now be clear, which is that human rights law, in its current iteration, functions as the quintessential tool of liberal political reason. What I mean by this, and those familiar with the work of Michel Foucault will recognise that I borrow his language, is that human rights law functions to justify the exercise of government in the liberal mode – it provides a reason, or a set of reasons, why a liberal governing framework should exist and perpetuate itself.

And it should also be clear now as to the type of human subject which human rights law produces, and the type of relationship which that human subject has towards the State: one of total reliance, in which the individual is liberated, equalised, made secure and morally improved by State power, and in which – by extension – the total merger of State and society, wherein the justification for the existence of government will never be questioned, is ultimately realised. That is the trajectory on which we travel, and it is that project for which human rights is the vanguard. Elaborating the substantive nature of that end state is beyond the scope of my comments here, but I daresay we will see it play out in due course.

Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.