The Colonialism of Human Rights. Colin Samson
in individual merit.
In the wider Marxist view, law is an institution that derives its power from the state, and the state reflects the economic and political interests of those who own the productive institutions within capitalism. In his 1843 essay ‘On the Jewish Question’, Marx commented on human rights,27 arguing that Jewish emancipation could not be achieved without Jews emancipating themselves from finance capital (in which they had excelled because they were banned from entering other trades in much of Christian Europe) and promoting broader economic emancipation. Both Jewish emancipation and wider human emancipation depended on rejection of capitalism, which in Marx’s view shaped state actions to perpetuate exploitation and inequality.
For Marx, human rights held out little hope for emancipation. This was because the ‘Rights of Man’ that emerged with the French Revolution were part of a series of governing principles that also brought about the power of the bourgeoisie who had principal interests in business, money, trade and exchange. While human rights articulated in the French Revolution signified the end of feudal rule and the church power that was used to prop it up, and also represented a victory by peasants in rejecting privilege, tyranny and humiliation, the new order of rights also enabled the functioning of a capitalist society dominated by commercial interests in which peasants would eventually be transformed into an industrial proletariat. French society remained grossly unequal, in what Honoré Balzac called a ‘democracy of the rich’.28 The French Revolution may have led to the abolition of privileges based on birth, rank and education, but it did this only to bring people under the central power of the state representing the bourgeoisie. Furthermore, echoing later critiques of liberalism, the ‘Rights of Man’ emphasizes individual rights that reorient people towards egoism and the accumulation of capital. The bourgeois concept of freedom, for Marx, is laissez faire, and the rights organized around this are those that enable the entire society to function to protect private property and capital accumulation while ensuring the subjugation of working people.
Capitalism – or at least organized profit-seeking – is therefore a major factor influencing human rights. The observations of Hannah Arendt in her essay ‘The Political Emancipation of the Bourgeoisie’29 segue to the contemporary linking of colonialism and human rights. Arendt remarks that the bourgeoisie required colonialism – and, by extension, gross violations of the ‘Rights of Man’. This is because capitalism works by investing capital that has been procured from material production, and, to maintain profitability in the face of competition, it must grow. To grow, it needs to travel. Therefore, the Americas, Africa and Asia provided rich sources of expansion for the labour, raw materials and, later, the markets of colonial powers.
Arendt quotes Cecil Rhodes, the British colonist, explorer and founder of the DeBeers mining company in South Africa in 1888, who fell into despair every night looking at the sky and realizing that these stars and planets could not be annexed and commercialized.30 The constant need to expand capitalism was for Arendt – and many other historians and political analysts since – the preparatory stage for fascism, that great denial of human rights of the twentieth century. Fascism represented a convulsive type of intra-European imperialism in which bankers and industrialists played key roles in supporting Mussolini and Hitler, materially and financially. Germany’s main aim was to capture as much territory in Europe as possible for the benefits of German industry and wealth creation, upon which Hitler realized Nazi legitimacy would ultimately rest. Germany was also governed by racial beliefs, as were the imperial and colonial conquests of its enemies, Britain and France. Denial, differentiation and violation of human rights were therefore driven by the central economic dynamic in Western societies.
Hierarchical Orderings of Rights
Often with little explicit reference to these social contexts, contemporary iterations of human rights such as the UDHR are those relating to liberty, nationality, privacy, property, religion, social security, education, culture, and freedom from slavery, torture and arbitrary detention. The ultimate guarantor of these rights is the state, which in the UN framework is assumed to be amenable to international moral pressure to enact liberal principles. Thus, human rights are most consistent with democratic political orders in which the state is seen to be a product of popular consent and, in turn, guarantees the rights of those that are its subjects. Indeed, advocates for rights of one type or another often frame them as a principle of nation-state democracy.
For example, the rights that Martin Luther King and members of the civil rights movement advocated were workers’ rights, fair employment, decent housing, guaranteed incomes and political participation. King’s dedication to the fusion of racial and economic justice was underlined by his support for striking sanitation workers in Memphis, the city where, tragically, he was assassinated. His advocacy was not just civil rights for African-Americans but human rights, and they were influenced by understandings of rights declarations that made no reference to racial specificity.31 The problem the movement addressed was that the state was not regulating the various spheres of civil society in order to allow for the realization of democratic rights. Thus, for King, ‘it is not a constitutional right that men have jobs, but it is a human right’.32 While he may have sensed that human rights were highly contingent, and that they favoured whites and those with property and money, King understandably pleaded for the universal human rights that the American government explicated in its Constitution, jurisprudence and laws. King was simply holding the US government to abide by its own stated liberal principles.
However, the fraught coexistence of assertions of universal human rights with variably applied civic and citizenship rights, which King contested, has endured within the Western history of ideas, as well as in policies and laws. As far back as Athenian democracy, complex laws applied to slaves and citizens differently, but their administration and rule were interlocking.33 Among the Romans, exemplified in the famous tablets of the Gortyn codes of the Roman Odeion of first-century Crete, laws were inscribed to apply differentially to separate categories of people – men and women, free people and slaves – and punishments for different configurations of transgression depended on the circumstances, and the status of both victims and perpetrators. Amendments were made that coincided with changing social patterns, and these can be interpreted from various inscriptions on the slabs.34 Hence, as Hanchard shows, democracies of the past relied on legal regimes of exclusion, and these are relevant to the consideration of contemporary democracies. The difference is, however, that contemporary democracies explicitly assert equality,35 while tolerating and often abetting the ongoing effects of exclusionary mechanisms.
Colonizing and enslaving shaped these exclusions since they were underpinned by ideologies emphasizing cultural hierarchy. This was expressed in the use of the trope ‘civilization’, which connoted an opposition to be overcome in the barbaric or savage. For Immanuel Kant, if a territory lacks ‘rudimentary modern legal and commercial institutions and a centralized coercive authority’, it is a threat to civilized states, which have a right to impose order upon the peoples of the territory to set them on the path of modernization.36 That may mean, as it often did under colonialism, not permitting such peoples equivalent rights to those who considered themselves civilized. Within this foundational liberal ideology, the human rights of non-European peoples under European dominion were often constituted as rights to be ‘modernized’, and therefore these peoples were denied some of the liberal ‘universal’ rights articulated by Enlightenment philosophers. The British Empire, for example, incorporated Asian, African and indigenous American peoples into its political and legal order with complex differentiations of rights according to caste, religion and tribe.37
Britain’s enslaved Africans in the Caribbean and elsewhere, of course, had no such citizenship rights, and the terms of the abolition of slavery dramatically illustrated how rights and privileges were mapped onto ways of thinking about human beings through hierarchy. Despite abolitionist voices, Britain did its utmost to preserve slavery. It was ‘the settled policy of England to encourage the slave trade’.38 The British Parliament intervened to prevent attempts to prohibit slavery or limit the importing of enslaved people in its North American and Caribbean colonies in the eighteenth century.39 After Britain eventually abolished