This book describes how human rights have given rise to a vision of benevolent governance that, if fully realised, would be antithetical to individual freedom. It shows that contemporary human rights practice is increasingly managerial in nature, interested above all in measuring and improving human rights performance. This has the effect of shifting the focus of human rights from the individual rights-holder to the activities of the duty-bearer: the state, international organisation, or business. The result is a preoccupation with achieving measured improvements within abstract groups such as the population or ‘stakeholders’, with the individual rights-holder being relevant only insofar as he or she is a datapoint in a larger grouping. The book then analyses this trend and its consequences. It describes human rights’ evolution into a grand but nebulous project, rooted in compassion, with the overarching aim of improving universal welfare by defining the conditions of human well-being and imposing obligations on the state and other actors to realise them. The ultimate result is the ‘governmentalisation’ of a pastoral form of global human rights governance, in which power is exercised for the general good, moulded by a complex regulatory sphere which shapes the field of action for the individual at every turn. The conclusion is that it is unsurprising that this alienating discourse has failed to capture the popular imagination – and that if the human rights movement is to succeed it may be necessary for it to do less rather than more.
The introduction describes a paradox which is at the heart of the human rights movement, which is Trilling’s observation that attempts to improve conditions for others will frequently result in their coercion. It lays out the central argument of the book, which is that despite an apparent rhetorical commitment to individual empowerment and a preoccupation with rights’ supposed individualism among critics and advocates alike, rights in their modern form are better understood as a set of declaratory justifications for requiring States and other power actors to improve moral and material conditions for populations and sub-groups within them. This means that rights are hardly to be characterised as being associated with neoliberalism; they are better understood as having a structural bias towards a ‘power of care’ which attempts to specify the conditions of a good life and to deploy political and economic power in order to achieve them. The result is a managerial system which pays little if any attention to the individual and which frequently acts in opposition to individual agency.
This chapter describes the modern field of international human rights practice. It portrays it, borrowing from Koskenniemi, as managerial - a solipsistic and imperialistic regime which seeks to expand into every corner of human life with the aim of realising an overarching purpose. The chapter explains the most significant legal developments making this possible, from teleological interpretation of treaty texts, to the expansion of positive obligations through the ‘respect, protect, fulfil’ framework, to the imposition of duties on non-State actors. It shows that the result is an ever-increasing range of obligations being imposed upon an ever-widening scope of actors, and a preoccupation with how to achieve compliance and hence implement the overarching purpose of the regime.
This chapter provides a summary of Oakeshott’s thinking with respect to law and the State. It observes that the crucial element in this is the ambiguity of both phenomena. Law is sometimes conceived as general conditions of just or moral conduct, and sometimes as a “rule-book” for achieving particular purposes; and the State is sometimes conceived as a purposeless relationship between autonomous cives related only in their shared acknowledgement of a system of neutral laws, and sometimes as a purposive association for the achievement of nebulous goals such as the “common good”. The chapter then considers international law and international association in the same terms, particularly with respect to human rights, and notes that international law and international community are likewise ambivalent concepts vacillating between opposing poles roughly similar to those appearing in the context of the State. It suggests in particular that international human rights law is situated between two opposing ideals, as the conditions of just conduct on the part of States (nomocracy), or as a set of rules specifying ends and the means of achieving them (teleocracy), and that it will orient itself in one direction or another under the influence of both circumstance and prevailing ideas.
This chapter argues that international human rights law has come to orient itself towards teleocracy under the influence of what, borrowing from the French constitutional theorist Maurice Hauriou, it calls a “directing idea”. This directing idea is that human rights are the legal mechanism for achieving the overriding objective of improving universal well-being, and that this is to be brought about by assigning obligations to the powerful in order to make them act benevolently towards the powerless. The chapter locates this in a broader trend among international lawyers, which understands international law itself as, ultimately, a project of improving universal human welfare. The chapter then demonstrates that this directing idea is rooted in compassion, the hatred of looking on while others suffer, which imbues the human rights movement with a species of what Kundera described as “kitsch”. This causes human rights advocates to seek to give effect to their shared sense of compassion through law, which has the capacity to give effect to this feeling across time.
This chapter unites the work of Oakeshott and Foucault on the nature of the relationship between teleocratic law and governance. It argues that what Foucault labelled “governmentality” is chiefly the result of purposive social action. In the modern State such social action tends to take place within the complex of law, discipline and security, producing a regulatory or managerial approach which derives from law but achieves its purposes through what Foucault called “tactics” rather than laws. That is, while law is able to declare purposes and also specify intermediary objectives on the way to achieving those ends, it is unable in itself to realise them: it cannot in itself affect change at the desired level of the population. Instead, it must give rise to more indirect means for manipulating conditions within the population so as to “conduct conduct” more subtly. While, in other words, law becomes oriented to teleocracy, it retains elements of nomos which prevent it from bringing about social change on its own. Governmentality is understood therefore as the means of circumventing this problem. The chapter ends by arguing that just as the State was “governmentalised” by imagining the State as having the purposive of improving well-being - declared in law but achieved through regulatory “tactics” - so a sphere of global human rights governance is now being “governmentalised” by imagining the international community as having the purpose of improving well-being universally. Here, human rights law declares the relevant ends, and gives rise to the deployment of regulatory “tactics” for achieving them.
This chapter describes a series of regulatory “tactics” for the conducting of conduct with respect to improving human rights performance, and maps the contours of what it calls the “governmentalisation of global human rights governance”. It draws on the work of Miller and Rose to describe this as a phenomenon of “governing human rights at a distance”. It demonstrates that this consists of three broad and overlapping categories of tactics: auditing and other methods borrowed from financial management and accounting; the pluralisation and atomisation of governing functions; and the specification of new subjectivities. Taken together, these result in the creation of a regulatory sphere in which actors are continually enjoined to monitor themselves and others in light of human rights obligations or “responsibilities”; in which the governing of human rights is dispersed between public authorities, NGOs and other civil society actors, businesses and international organisations; and in which this entire range of actors, and even human individuals themselves, are re-conceived as being “human rights governors” in their own right.
This chapter provides a critique of the “governmentalisation of global human rights governance”. It argues that the phenomenon causes international law to have unpredictable effects for individuals; that it removes the conditions of international law from the realm of politics properly understood; and that it brings about a mode of rule which sees concern with the individual as an end in him- or herself replaced with an understanding that the individual is simply part of an abstract whole, which is the true field of action. The result is that human rights are set in opposition to the way in which freedom was conceptualised by both Oakeshott and Foucault - the necessary conditions within which self-enactment can take place, and hence the necessary conditions of a moral or ethical life. On the one hand this produces a kind of benevolent coercion - a pastoral power which is pervasive and potent for all that it is kind. But on the other it produces a distaste for the human rights movement in the very rights-holders themselves, setting them at odds with its aims and tactics, and resulting in a counter-conduct of basic refusal.
The chapter concludes that the notion that negative and positive obligations can be reconciled, or even are mutually supportive, is misguided. It argues instead that the two are antagonistic, and that the solution will only ever be an unsatisfactory and messy compromise. If this compromise resolves too much in favour of a view of rights which sees them as declaring conditions to be realised on the road to universal human welfare, then this will ultimately work to undermine individual agency. This will more than likely have the unintended consequence of making people less, rather than more, enthusiastic about the human rights movement.