By Benjamin Authers
Geoffrey Harpham’s recent posting on the Humanity Blog raises a number of interesting questions at the intersection of human rights, intervention, and law. At the heart of Harpham’s article is a talk that Michael Ignatieff gave in March 2013 at a National Humanities Center Conference on Human Rights and the Humanities. There, Ignatieff—academic, novelist, journalist, and former leader of the Canadian Liberal Party—put forward what was received as a rather controversial thesis: that states have a right to “be wrong” about justice.
In Harpham’s report, Ignatieff argued that defending state sovereignty guarantees a “moral pluralism” whose virtue is the protection of the independence (including the socio-cultural difference) of weaker states against their stronger counterparts. If states are not recognized as “masters in their own houses” who could be wrong in many—although not all—treatments of its citizens, there is little basis on which to resist an ideological imperialism that might justify interventions for poorly-conceived or inconsistent humanitarian reasons.
Ignatieff put forward a more full account of this position in his 2012 New Republic article “The Return to Sovereignty”. In promoting human rights, Ignatieff argues, we should wish for stronger sovereigns, not weaker, and for those sovereigns to be “more capable, more responsible, and more legitimate.” It is this that will anchor human rights in domestic practice, vernacularized at the local level. But what Ignatieff also makes clear in this version of his argument is that while sovereignty should be accorded considerable weight, it is not absolute. The “right of states to be sovereign” he argues, “derives in turn from individual self-determination, the right of individuals to be free. If this individual right is crushed, an individual retains the right to appeal for help outside, and those outside have a duty to assist.” So while sovereigns have a right to be wrong, they do not have a right to abuse rights where whole populations are threatened—ethnic cleansing and genocide—something that would for Ignatieff invoke the Responsibility to Protect doctrine.
Where Ignatieff ends up—not unreasonably, perhaps—is with a desire for a consistent set of principles in which to ground state intervention for human rights abuses. The UN provides such a space where “the claims of the strong are put through the test of justification in front of the weak.” But in the first instance, he argues, the enforcement and realization of human rights principles should be local and guided by a belief in the “irreplaceable responsibilities of sovereign authority.”
One of the things that Harpham takes from Ignatieff’s talk is a recanting by Ignatieff of his earlier endorsement of intervention. Harpham is certainly correct in attributing to Ignatieff a tendency to see in certain states the capacity to bring human rights to the world. This has taken on a number of forms in his writing; before entering Canadian politics, for example, Ignatieff made a series of assertions about Canada’s capacity to bring a particular kind of political and human rights ideology to the world at large (see, for example, his lecture “Peace, Order and Good Government: A Foreign Policy Agenda for Canada”, or his 2000 Massey Lecture The Rights Revolution)
Reflecting on the New Republic article, it seems that Ignatieff has refocused rather than recanted such ideas. He continues to privilege democracies, describing them as having more “moral latitude” in their capacity to be “right” about justice than non-democratic states because of their institutionalization of checks and balances to limit majoritarian power and protect minorities. He also suggests that intervention can be warranted in situations of revolution, which he describes as an opportunity for democratic states “to align sovereignty more closely with justice.”
One of Harpham’s concluding thoughts is that the idea of human rights was “stuck” at the end of the National Humanities Center’s conference: “pulled in two directions by aspirations to universal notions of justice, freedom, and dignity on the one hand, and, on the other, by the limited, local, and merely legal means that fallible humans must deploy to achieve these ends.” Law fares badly here, with Harpham suggesting that all laws, premised as they are on the necessity of making categorisations and distinctions, necessarily breach principles of equality.
Putting to one side Harpham’s conception of equality here, which sits in contrast to a stream of jurisprudential thought that particularises equality as a rights doctrine, I wonder whether his conception might also be read as indicative of a deeper ambivalence about law in rights discourse. For Harpham law seems to be a limitation, the marker of where fallible humanity delimits between its aspirations and its current capacities.
In the past, Ignatieff has also drawn a line between human rights ideals and the law’s role in enabling them. Early in The Rights Revolution, he introduces the legal form of rights as something of an uncomfortable necessity. “Rights are more than dry, legalistic phrases,” he asserts. They “are not just instruments of the law, they are expressions of our moral identity as a people” (2). He reiterates this later, admitting that
it may seem strange to confess a love for something so seemingly legalistic and desiccated as rights. Yet we need to think of rights as something more than a dry enumeration of entitlements in constitutional codes, as more than a set of instruments that individuals use to defend themselves. Rights create and sustain culture and by culture we mean habits of the heart. Rights create community. (125, emphasis mine)
For Ignatieff, conceiving of rights as more than law can help us to better understand how they can be equated with culture and community to become “habits of the heart.”
I take some issue with Ignatieff’s apparent legal embarrassment here, as his argument seems to miss the intrinsic role that law plays in constituting national cultures, and draws a somewhat arbitrary line to separate law from community. Law is one of the originary means of talking about rights, at the very least because it often creates the forum in which rights are contested and that justifies their enforcement. The political, normative, and internalized model of rights that Ignatieff idealises in The Rights Revolution is given partial form by the narratives of law, whether in the common law, legislation, treaties, or constitutions.
I want to stress that this is not an apology for law, with its many institutional and philosophical limitations and repeated inabilities to produce the substantive equality and dignity that rights ideals call for. But it seems limiting to be trying to disentangle law from rights when they are so conceptually intertwined. Desmond Manderson argues convincingly in Words Without Music that many of our ideas are deeply shaped by a legal aesthetic: a street march with legalized ideas about freedom of expression, for example. We might see a similar legal heft in Ignatieff’s call for consistency in international interventions, given how central consistency (and equality) is to our understandings of legal fairness. When we think about how—and whether—states can be wrong about justice, our ideas of law in positive and idealistic senses must surely be at issue, for to talk about rights and justice we call on the language of law even if, ultimately, that language proves inadequate.