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Justice and Rights in Europe Today

In all the ways that I have indicated earlier in this six-part series, one can readily argue that liberalism, even Kantian liberalism, is not, after all, metaphysically agnostic. To the contrary, the other aspect to its ethical minimalism is clearly a materializing and reductive ontology. This observation therefore challenges the assumption that liberal societies are really neutral as to belief or to metaphysical assertion. Perhaps such neutrality is impossible, in which case one could argue that the public and established bias ought to run towards nobler, more “ideally realist” beliefs and affirmations, likely to be more romantically inspiring. Besides, as I have already suggested (in the long-term wake of the French romantic philosophers Maine de Biran and Félix Ravaisson), the liberal conviction, which holds that our “additions” of habits to nature are not fully natural and not objectively valuable for anything more than human preference, is not really livable, and does not actually accord with our tacit assumptions, even if we claim to be agnostic or atheist.

But how might all this relate to contemporary Europe? It implies, I think, that justice is a wider context than rights, and that the two are but questionably dealt with in separate courts, or at least courts that are not coordinated with each other. Rights without justice prove exponentially expandable and then incoherent. How are we to coordinate, for example, the right of an immigrant to non-deportation with the right of citizens to security from terrorism—to allude to some recent instances? On the other hand, justice without regard to rights, properly understood, can sink into positivism and utilitarianism. We need to consider both the equity of relations and the initiatory and claim rights of individuals (as founded in the natural order), and then to link these together in terms of the always-mutual foundation of rights and duties. One can say that each individual has a claim right—rather than outright “entitlement”—to expect that other human beings, via the public at large or its state aspect, will help them to find work, accommodation, health, education and security. But if this is seen as a right primarily and foundationally, and not a collective duty combined with aspiration towards creative work, beautiful housing, preventive health, ethically formative education and true adventure besides safety, then all we are doing is expanding the bed of resources for unfettered capitalism and licensing greater state control to instrumentalize our lives.

It seems equally wrong to arbitrarily and exponentially extend the list of rights, as the European Court of Human Rights has recently tended to do, beyond unexceptionable general requirements for the just treatment of human beings. When this happens, civilly-established rights take the dubious form of non-negotiable legal imperatives, such as the right to vote, as when it is said that this right cannot be removed even from criminals in prison. It is surely the case that such a matter remains debatable: is no defiance of the law so bad as to forfeit one’s right to a share in shaping it? Such cases are best left to various sovereign judgments to decide upon in particular times and places. The most that can be said in general (according to perennial principles of constitutionality, that predate specifically modern modes of representation) is that individual people have a right to partake in the popular assent to political legitimacy.

Given all this, could the EU, looking back to its essentially Catholic—and not Kantian—founding principles, potentially make a contribution to the re-establishment of a natural law horizon, including a reasonable consideration of natural rights? A step in this direction, strangely enough, might be for the EU to ratify the European Convention of Human Rights as a body, and not just as constituent nations. Imperfect as the convention currently is, this could achieve two things.

First, the possibility of greater coordination of the courts of rights and justice (the latter being already an EU organ) would place rights back in a political context, rather than the impotent global-cum-individual context. This could also bring more focus to group rights and on the distributive relation of one individual right to another. Here, one can say that the aim of international protection of people from torture, false detention and unwarranted intrusion into their lives is crucial. But construing this aim in terms of rights, i.e., to those things “not happening” (no torture, no detention, no intrusion, etc.), is conceptually odd. While it helpfully stresses individual initiative towards self-protection, it insufficiently stresses the duty of government to respect human integrity and just procedure. Thus, this construal tends to collude with the emergence of unjust circumstances that can then only be dealt with in terms of “protest.” And again, the reality of marginal cases demands that the bounds of justifiable interrogation, holding before charge, and state intrusion into privacy, have sometimes to be judged in relation to wider circumstances and broader questions of the justice and security due to other people and the wider community.

Secondly, the ratification would create a context for rights that transcends the unfortunate binary at present: the nation-state context for rights (which even Samuel Moyn at times admits is now played out)[1] on the one hand, and the depressingly negative, apolitical global context (which colludes with neoliberalism by beginning to craft a world ruled only by markets and courts, in suppression of socio-political purpose, wise guidance and democratic consent) on the other. Namely, a substantively political inter-state “commonwealth”, or “reformed imperial” context for both justice and rights. Because it must commence with the incorporeally relational at the inter-state level, this third option might restore the place of natural equity ad alterum alongside a genuine concern with natural rights, and this beyond the instincts of the sovereign state, which have been bound up with the promotion of isolation and alienation since its inception. Given the sheer profusion today of transnational legal issues, this international context of integration of right with justice is required still more than their integration within, for example, the procedures of English common law, however desirable that might be. Inversely, the excessive dogmatic extension of general rights, under the pressure of liberal ideology, is as likely to occur within states as beyond them, and it is precisely states alone that today have the power to render mistaken rights enforceable and non-suspendable (such as the supposed absolute right of every prisoner to vote, not to mention such false, “anti” rights as the right to kill oneself, to abort one’s child in any circumstance or to artificially create human life). At the same time, the needed integration of right with justice at a transnational level certainly requires the operation of greater political power and effectiveness (backed up by more genuine popular participation) at the federated European level.

In short, it may be that we need just relations across borders if we are to restore just relations inside them—but not in terms of a ius gentium that has itself usurped the place of natural law. We need just relations in terms of a reconceived ius gentium that would, for the first time in history, fully subordinate the law of nations to the law of nature and so move away from the Stoic cosmopolis towards a Philonian megalopolis.

EDITORIAL STATEMENT: This is the sixth and final installment of a six-part series by John Milbank on natural law and natural right. The installments will be collected here as they are published. 

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Featured Image: European flag outside the Commission [detail], Date taken: 18 July 2006, Author: Xavier Häpe; Source: Wikimedia Commons, CC BY 2.0.

[1] To some degree, one detects in Moyn’s always-stimulating work (see especially Human Rights and the Uses of History) a kind of “typically American leftism” which regards the American rebellion against supposed British “colonialism” as paradigmatic for all later radicalism. But the evidence might suggest that the American legacy, for all its importantly qualifying republicanism in the original sense (often now all too lacking in the UK), has tended to promote an ideological liberalism, whereas “conservative” Canada has actually been helped by its imperial and then commonwealth connections towards a more balanced social democratic and communitarian reality. I would tend to invert Moyn’s view as to the intrinsic superiority of the American international as opposed to the European imperial mission, for all the exploitative capitalist horrors of the latter. He tends to overlook the fact its positive aspects involved not just claims to “humanitarian missions” (which I think he also assesses somewhat unfairly, in equating them with the Iraq debacle today), but constitutional, legislative and cultural bequests, including the very possibility of nationhood and modern political governance which remain intensely valued in the “third world” today. And one could argue that the very worst horrors have been in fact the post-colonial ones, where an overly western model of nation-statehood has been pursued by corrupt local elites in collaboration with post-imperial, less constrained corporate economic forces, backed by western governments that have lost the fetters of any paternalist conscience. In this context it is maybe overly cynical of Moyn to see the recent new concern with torture since the 1970’s as merely our objection to “others doing it”—for the post-colonial states often resorted to a novel epidemic of torture in order to establish their rule in harsh circumstances, while, at least officially, the British imperial regime had started to outlaw torture and so implant the idea of its non-acceptability. Finally, however much policing the abolition of slavery did indeed help to extend British imperial power, one should not downplay the point, stressed by Moyn himself, that the animus against slavery came primarily from sincere developments in Christian thought, rather than from a rights discourse that can readily favor the ownership even of people. The fact that imperial advantage coincided with an ideal, only requires to be viewed cynically, perhaps, if one takes for granted that “empire” is a more sinister formation than the “nation state.” But the latter is equally the result of primary seizure and suppression of diverse populations and sometimes has proved far less hospitable to cultural diversity and international mediation. The latter always requires substantive empires or “post-empires”—the formal mediation of an organization like the UN in the name of “rights” being obviously useless. In this context the problem with the US might be said to be that it is just not naturally imperial enough. Rudyard Kipling and John Buchan were, unfortunately, wrong to think that the US was the UK’s natural international successor. In the future, British foreign policy must take cognizance of this and recover its independence, which will potentially allow it—despite its relative size and a host of  present and historical reasons—to play a globally pivotal role.

John Milbank

John Milbank is Emeritus Professor of Politics, Religion and Ethics at the University of Nottingham where he is also President of the Centre of Theology and Philosophy. His most recent book, written with Adrian Pabst, is The Politics of Virtue: Post-Liberalism and the Human Future.