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.

Read More: Human Rights Law isn’t Protecting the Individual Against the State

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