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Critical Theory of Human Rights

Part of the Political Philosophy and Public Purpose book series (POPHPUPU)

Abstract

International human rights have become an important global norm that has increasingly been incorporated into international law and global conventions. Human rights are a key reference point of mobilizations by diverse groups and international nongovernmental organization (INGOs) in global publics and global civil society. And human rights are also often critically appropriated by domestic and transnational political struggles of political activists and dissidents. Yet human rights are also used and abused by regimes, global (legal, economic, and political) institutions, and powerful corporate interests stabilizing a profoundly injust global social order. Drawing from Frankfurt School theorizing and critically examining more recent discussions among theorists partly indebted to this tradition (Benhabib, Forst), this chapter reflects on contemporary human rights debates and their meaning for critical cosmopolitan theory and politics today. It is argued that contemporary critical theory offers an important lens to situate human rights in global and local social and material conditions while recognizing human rights as a tool in struggles for political freedom and global social justice.

Keywords

  • Legal Norm
  • Deliberative Democracy
  • Global Civil Society
  • Frankfurt School
  • Human Rights

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Notes

  1. 1.

    For instance, over 40 human rights and gay rights groups, including major international nongovernmental organizations (INGOs) such as Amnesty International, Human Rights Watch, and the Human Rights Campaign, supported the political struggle with an open letter to the ten world sponsors of the 2014 Winter Olympics hosted by Russia in Sochi in the prelude to the Games, “urging them to denounce the law and run ads promoting equality for lesbians, gays, bisexuals and transgender people” (cited in Crary 2013).

  2. 2.

    Exceptions are critical studies by Seyla Benhabib (2006, 2011) and Rainer Forst (2012), to which I will briefly turn later in this chapter.

  3. 3.

    For an initial overview on this reception and the relevance of Horkheimer for critical legal studies (CLS) see Cotterrell (1997) and, focusing on Franz Neumann and Otto Kirchheimer, who are not part of the “inner circle” of Frankfurt School theorizing, Scheuerman (1997).

  4. 4.

    See Marx (1975). On Marx and jurisprudence, see Fine (2002). Adorno sharpens his lens for the critique of rights in his own critical reading of Hegel’s philosophy of right. Offering an appropriate interpretation of Hegel or not, for Adorno Hegel betrays his philosophy of freedom but his degradation of individuals realistically reflects the reality of modern society’s development and the modern state’s actual indifference to the lives of individuals, which finds reflection in the indifference of law (Adorno 1966; Adorno 1964; Fine 2012: 165f). The false universal that Hegel glorifies, Adorno suggests, affirms a concept of the state in which the collective overwhelms the subjective rights of the individual Hegel also talks about. Ultimately, despising both individual freedom and free institutions, Hegel, in Adorno’s view, promotes blind obedience to the state organization by unreflectively selling the integration into the “objective legal norm” as rational and democratic (Adorno 1966: 345). Tolerating the particular only as a category, however, reduces the dialectic of legal norms and rights, which can both restrict and generate or protect freedom, into a “dialectics at a standstill” (Adorno 1966: 334; Rensmann 2016: 26–29).

  5. 5.

    It is noteworthy that Horkheimer and Adorno’s argument from the start also, if only cautiously, concedes that there may be a moment of freedom in the relative independence of law. As justice brooks no interference, law possibly provides a place of right against direct domination or political interference, that is: the rule of immediate power.

  6. 6.

    It is noteworthy that the Frankfurt School’s first major work addressing human rights, the Dialectic of Enlightenment, was written at a time when human rights had no international institutional grounding and was still largely limited to intellectual debates, philanthropy, or embedded in minority rights. Critical Theory’s initial treatment thus preceded the Nuremberg Trial, the Genocide Convention, the Universal Declaration of Human Rights, and the Preamble of the United Nations Charter, which shortly thereafter gave universal human rights international legal status.

  7. 7.

    This critique is grounded in the critique of liberal political theory’s notion of negative freedom—in its classical version: Bentham—where the function of the law and the state is to secure that individual liberty, based in the axiom of liberal individualism, is infringed as little as possible. The liberal idea of negative freedom, or freedom from interference, leads to a minimalist definition of human rights as freedom from direct physical violence, leaving other fundamental questions of human (social) need as well as universal human freedom and democratic empowerment unaddressed. Adorno proposes (and justifies) a primacy of human solidarity that is based on a raw moral, if not “vulgar-Marxist” claim, namely that all poverty needs to be abolished: “There is tenderness only in the coarsest demand: that no-one shall go hungry any more” (Adorno 1974: 156). Ultimately, this is a claim all liberal theory seeks to evade. Of course, the cheated masses Horkheimer and Adorno talk about here in the context of a theory of fascism and antisemitism are especially the fascist masses which reject the liberal claim of human rights altogether in face of their lacking realization.

  8. 8.

    Indeed, Irr rightly argues that the “literalism of the rights discourse,” despite its appeal to political contestation, “testifies to the rise of Weberian technocracy, a structure that addresses inequality for the purpose of crisis management,” not inequality’s “principled eradication” (Irr 2012: 173). Yet it seems misguided to discern some sort of absolute negativity as an inevitable tendency toward “unlimited power … at any price” (Horkheimer and Adorno 2002: 138). There is no direct path to a “regression to absolute barbarism” (Irr 2012: 173), in the form of antisemitism, fascism, and the complete destruction of the rule of law and rights entitlements.

  9. 9.

    Adorno and Horkheimer unfold a critique of enlightenment reason without throwing the baby out with the bathwater, that is, destroying the critical element of enlightenment concepts such as freedom and reason, without which there can be no human emancipation; Critical Theory is the project, in the words of Stephen Eric Bronner, to self-reflexively reclaim the Enlightenment, not to abandon it or defame it. See Bronner (2004; Rensmann 2011: 5). As Adorno and Horkheimer argue: “The critique of enlightenment … is intended to prepare a positive concept of enlightenment which liberates it from its entanglement in blind domination.” Adorno, indeed, investigates the self-destruction of enlightenment in order to create self-awareness of this process and ultimately to rescue enlightenment. Adorno’s method is “determinate negation” with and beyond Hegel. It gives prominence to an element which “distinguishes enlightenment from the positivist decay to which [Hegel] consigned it.” “Enlightenment is totalitarian” only in so far as it “prejudges its trial,” that is, insofar that it becomes a closed system and turns its claims to autonomy into its opposite: an exclusively heteronomous logic (see Horkheimer and Adorno 2002: xviii, 18). Indeed, as James Schmidt aptly puts it, the relentless critics remain loyal to Enlightenment hopes (Schmidt 1998: 835).

  10. 10.

    While freedom is a product of history, Adorno preserves and defends the “permanent component” (Adorno 1964: 181) of the concept of freedom against the historical dialectical tradition of Hegel and Marx (Fine 2012: 164), that is: for Adorno freedom has always ties to individual human beings, in spite of all historical changes the meaning of freedom has undergone over time, and “concrete possibilities of freedom can be found at every moment in history … whenever individuality genuinely asserts itself” (Fine 2012: 164).

  11. 11.

    “For all their dyspeptic, and often careless, dismissal of political liberalism, Adorno and Horkheimer are political liberals in the sense clarified for us by John Rawls.” (Benhabib 2011: 38)

  12. 12.

    For a persuasive critique of Arendt’s Kantianism with regard to the antinomies of law from a perspective that invokes Adorno’s critique of the legal form and his materialistically grounded spirit of solidarity, see Reeves (2009).

  13. 13.

    Nazi and fascist ideologies aim at destroying Western legal norms, an early modern example of which is the Nazi ideologue Alfred Rosenberg (1923). While fascist and other authoritarian groups and regimes demonstrate until this day that human rights are not inalienable but indeed can be systematically and grossly violated, those who expose this contradiction in order to oppose human rights altogether as a farce are in sync with the blind fascist affect against right. Critical Theorists reject such indeterminate negation of law and human rights as a regression to naked particularism, collective and individual, that expresses an anti-Western, anti-Enlightenment ideology.

  14. 14.

    This profoundly distinguishes Critical Theory from poststructuralists like Butler (1992), who fail to understand the dialectics of rights and other critical concepts.

  15. 15.

    She also argues against liberal “interventionism” and “possessive individualism” (Benhabib 2011: 67).

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Rensmann, L. (2017). Critical Theory of Human Rights. In: Thompson, M. (eds) The Palgrave Handbook of Critical Theory. Political Philosophy and Public Purpose. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-55801-5_29

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