Criticisms of rights

Abstract

This book presents a critical legal defence of human rights. To do so, requires, first, an engagement with the many criticisms surrounding rights. This is the aim of this chapter. First, there begins an analysis of an unholy alliance of conservative (Edmund Burke), utilitarian (Jeremy Bentham) and communist (Karl Marx) perspectives. These critical perspectives coalesce around the French Declaration of the Rights of Man and the Citizen, 1789, primarily the rights of man, which we associate with the more common term, natural rights. For many of these critics, natural rights were vague and unclear, deceiving ordinary people into thinking that they had more power than they really did. Furthermore, this idea of the ‘universality’ of natural rights had failed to consider the differences between one society and another. Indeed, not only were there problems with the uncertainty of natural rights, but there were problems with the holders of such rights, too. Who were they? And did natural rights annexe the rights-holder from their society? Modern articulations of, say, Edmund Burke’s criticisms have found favour in the writings of Hannah Arendt and Giorgio Agamben. Has the persecution of peoples occurred because individuals were no longer subject to the safety and security of a country, meaning they lacked the fundamental ‘right to rights’? What about the rights of groups? Have considerations surrounding gender and sexual orientation, race, disability etc been abandoned in the discourse of rights? Indeed, has the discourse of rights gone too far? Are questions of eg. social justice more relevant to political rather than legal arenas? Are there too many rights, downplaying and trivialising existing ones? These are questions which this chapter explores.