Paper given by James Panton
The relationship between individuals and the state has been radically transformed in the last couple of decades.
The clearest way to illustrate the relationship between individuals and the state is in terms of the way that rights are currently understood. What I’m going to argue is that rights, which were originally conceived as markers of, and means towards, the achievement of individual autonomy and collective self determination, are now conceived in terms of an image of individuals who are vulnerable, incapable and incapacitated. It is around this model of the citizen that the state is now organised. And this has very serious implications, I think, for the way that an attempt to develop a more progressive social agenda has to view the current discussion of rights.
1. History
The debate over rights until recently took the form of a political debate between defenders of liberty, individual sovereignty, and the free market, who sought to defend the individual against the encroachments of the state, AND the assertion of a more positive, welfare oriented, leftist vision of collective rights and social welfare.
The Libertarian account of rights is organised around the idea of a self-determining, autonomous individual. His rights are those of “life, liberty and the pursuit of property”, as Adam Smith had it – or “life, liberty and the pursuit of happiness” – as Jefferson reformulated the claim in the American Declaration of Independence.
This is an individual who has a sphere of negative or formal freedoms from state intervention. Along with the right to self-ownership, property, and to pursue his vision of the good life, this sovereign individual also has the right to believe what he thinks is true, to argue for those beliefs with others without fear of censorship or recrimination, and to associate with other individuals to better pursue his interests.
What this model assumes is that, left to his own devices, the individual is the best judge, and the final arbiter, of his own freedom.
The very formal nature of these libertarian negative rights is both their great strength and their greatest limitation.
Their strength is that they establish a vision of the individual as autonomous and self-determining; an vision which I think underpins the possibility of any meaningful democratic social organisation.
But it is their weakness that in being purely formal, while provide all citizens with a sphere of freedom from intervention, this in no way ensures that the individual is able to act freely – to determine his own life, and to pursue his own interests. In reality, while negative rights applied to all citizens, they were actionable only by those who already the social power and wealth to pursue them on their own terms.
-- The right to property, and thus to the free disposal of one’s property, seems pretty meaningless to an individual who, in order to survive, has no option but to sell his labour on the terms set by his employer.
-- And the right to the pursuit of happiness may seem empty to a sick individual who lacks the means and funds to seek medical treatment for his ailments.
Towards the end of the 19th century, this became abundantly clear as the ranks of the citizenry was filled with individuals lacking wealth and power, but keen to pursue their capacity for self-determination. It was the Left, the Labour Movement, and those Liberals concerned with greater social justice, who took up the call for a more meaningful account of rights. In order that the majority might be in a position to exercise their freedom and autonomy, they needed the means, the social resources, and the goods that society could provide.
-- The development of employment legislation in the latter decades of the 19th century was one such positive step that began the long slow process of making more equal the relationship between employer and employee.
-- The emergence of state funded education, then state funded health care, culminating in the founding of the Welfare State after the Second World War, are all further examples of the state’s provision of the positive conditions through which greater freedom and autonomy could be enjoyed by the majority.
The political contestation between Right and Left, Free-Market and Social Welfare, was a struggle around the best way in which class society could be organise to realise the human capacity for freedom and self-determination. They were contestations over social power and the distribution of the social product. The different sides differed in their understanding of that freedom and self-determination, and they struggled over the political organisation that could achieve it. But they were united by a belief that freedom, autonomy and self-determination were capacities that human all human being shared.
2. The Enabling State:
In the post-war period, the founding of the Welfare State, and the organisation of political legitimation around it, suggested that the advocates of positive rights and social welfare had one the day. But by the 1980s the Welfare consensus was un-ravelling, less due to criticism from outside that due to the undermining of its underlying philosophy that resulted from the retreat of politics, and the loss of faith in a vision of humanity as progressive and free – the very retreat from politics we discussed this morning.
By the early 1990s a new model of the state had emerged, and around which individuals across the political spectrum were coalescing. This was not a “providing” Welfare State, but an “empowering” or Enabling State. Where the Welfare State would provide the goods and services that the majority required, the Enabling State would seek to empower this majority through providing the tools and skills to take greater responsibility for their own lives, be it in the sphere of health, education, or government.
However, I want to suggest that there is a real paradox behind this notion of empowerment in the enabling state. Let me give you a couple of examples.
-- In the sphere of education, we have moved from a vision in which it was assumed that children, if provided with the education, skills and knowledge, could develop on their own into autonomous citizens; towards a vision in which the state plays an increasingly explicit role in socializing children to become good citizens. This is the reason that citizenship education is at the heart of current education initiatives.
-- In the sphere of health, we have moved from a vision in which health care was provided in order that individuals could recover from illness and return to take their role in society as quickly as possible, to a vision in which the enabling state plays an increasing explicit role in advising us and training us in how to stay healthy – what to eat, how to exercise, how not to drink and especially how not to smoke.
The paradox is that the explicit aim of empowering us to take more responsibility for our lives is underpinned by a view of individual who, in the absence of third party intervention, cannot possibly navigate their way through life. It is a vision which begins from the premise of individuals as vulnerable and incapable, and moves through an attempt to educate, cajole, and construct us as good citizens.
3. The New Vision of Rights:
This underlying pessimism about the capacities of individuals is expressed very clearly in the vision of rights that has come to prominence under the Enabling State. This is a vision of Rights which has its origins in the rise of Human Rights in the Post War period.
A comparison of the conception of rights that underpinned the founding of the United States and the end of the 18th century, and the conception of rights that founded the European Convention of Human Rights and Fundamental Liberties in the 1950s, can illustrate the fundamental difference.
The First Amendment to the American Constitution state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Here, the legal capacity of the state to legislate is hemmed in by the condition that laws passed do not impinge upon the rights which individuals already possess.
By contrast, Article 1 of the European Convention begins: “The High Contracting Parties [that is States] shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”.
Rights, in other words, are not held before States, but are rather supplied by them.
In the Human Rights Doctrine, individuals are no longer seen to be the active parties; their rights are no longer a marker, much less an expression, of their agency. On the contrary, it is the state that is the agent of rights; it is the state that provides rights, secures them, and ultimately, enacts them on our behalf.
4. Children’s Rights – the paradigm example:
The implications of this are brought out very clearly in the example of children’s rights – an understanding of rights that I think is paradigmatic of the rights we have under the Enabling State.
The 1989 United Nations Convention on the Rights of the Child begins by noting that “childhood is entitled to special care and assistance”, and that the child, “by reason of his physical and mental immaturity, needs special safeguards and care”.
Almost all of the conventions 52 Article then begin with the statement that “States” must ensure, safeguard, or secure, children’s rights. Less often, the Articles will outline the responsibility of parents or guardians to ensure the protection of their child’s rights.
This isn’t surprising. Because of the very “physical and mental immaturity” of children – the very thing that makes them children and not adults – children obviously cannot be expected to enact their own rights. It seems obvious that if children are to have rights they must be enacted on behalf of children, by a third party – parents, or in the logic of the Convention, more often than not, by the State.
The confusing thing here, however, is that if rights have been entirely dislocated from the vision of human agency and activity that underpinned rights as they were understood through the political struggles of the late 19th and 20th century, then what do we mean when we talk about rights now?
Once rights have lost their mooring in the individual subjects who bear and enact them, they float loose. They become empty categories which we apply wherever and whenever we find something of particular value.
It is because we value the security of children that we endow them with rights. But what this really means is that we seek to give children special protection precisely because they are particularly vulnerable.
It is then only a short step from the idea the children have rights to the idea that animals have rights. Like children, they lack autonomy, but like children, they are seen to be in need of “special care and attention”. And from animal rights, we can move further: what about the rights of the generations who are not yet borne – surely we have a duty to ensure that they have a world left to them that is fit to live in? Surely that is their right? Or even inanimate objects. What about the rights of the environment not to be abused, or the rights of the natural world to be maintained in its current state without the destructive intervention of humans.
Once rights have lost their relationship to active subjects, they become applicable to the passive entities – to children who are not yet fully social and autonomous; to animals who lack autonomy altogether, to the natural world.
But when rights are applied in this way, our vision of rights, and the way they are enacted, comes to assume the passivity of their bearers. Adult citizens, who are inherently vulnerable and in need of guidance, have rights in so far as these rights can help to educate them in the duties of good citizenship. Adult citizens are reduced to the level or children or animals in need of protection – from each other, perhaps even from themselves.
We are granted rights by the state, on condition that we use them correctly. Hence:
-- If I have a right to speak freely, I also have a responsibility not to offend others
-- If I have a right to dispose of my free time as I please, I also have a responsibility not to annoy my neighbours
-- If I have a right to health care, I also have a responsibility to look after myself – to watch my weight, to drink sensibly, to exercise regularly.
Any Right under the enabling state entails a concomitant responsibility. Should I fail to enact my responsibilities, the state is there to empower me: to help me to achieve my potential as a good citizen. Should this assistance fail, of course, since only the state is in a position to enact and defend my rights, it is also in a position to curtail or remove them.
It is important to note that this is not something which is imposed upon us by an authoritarian state. Rather, rights are gifted to us, as all privileges are. In the contemporary language of politics, the pursuit of my freedom, whether individually or collectively, is transformed into an appeal to the state to grant me rights. And this is indeed the paradoxical vision of freedom many of us appeal to: to the State to guarantee our rights against troublesome neighbours, or towards better health; to defend our children against strangers; to defend laboratory animals against the abuse of vivisectionists….. The list goes on.
In this way, the assumption of vulnerability with which the Enabling State views its citizens becomes a self-fulfilling prophecy. It is the arbiter of all conflicts; the guarantor of social justice; and the condition upon which we exists as political citizens.
We have moved a long way from rights as they were understood in the political conflicts of the 19th and 20th century. The current language of rights lacks all relationship to the formal negative rights of libertarians which, for all their limitations, nonetheless provided a framework of autonomy and individual sovereignty around which democratic politics could be organised. And we have moved even further from the vision of those Leftists and Welfare Liberals who saw collective or social rights and the means by which social iniquities could be redressed, and through which the majority could engage in an attempt to build a better world for themselves. Lacking faith in autonomy, we are no longer seen to be free in our sphere of non-intervention. And lacking the possibility to navigate our way through life without continual assistance an enabling, there is no possibility that we might engage in a project of social rights towards greater welfare, re-distribution, social justice, or a better world.
Conclusion:
So, what is to be done?
I think first of all we need to be very suspicious of the language of rights at the moment which actually serves to limit our ability to take responsibility for ourselves and our actions.
In the absence of a vision of human autonomy, we need to recognise that appeals to positive rights, of whatever form, have become meaningless. Calls for redistribution, welfare and social justice made sense in a context of politics who’s very aim was the realisation of self-determination and greater freedom. If self-determination and freedom are off the agenda, positive rights can mean only an appeal to the state to intervene yet further, and enfeeble us even more.
I think second, we need to note that the simple fact of asserting and defending our autonomy – our capacity to regulate our own lives, to live as responsible adults and democratic citizens without the need for constant third party interventions – this becomes an essential political act. It becomes a way of establishing a vision of ourselves as self-determining individuals, who might even be able to engage in a progressive politics that seeks to take hold of the future.
What we need to do, therefore, is to establish a culture which views the aspiration to autonomy in positive terms, and a network of relationships that can be supportive for individuals who want to exercise their freedom. And I think this one of the most important tasks that the Manifesto Club ought to set itself.