A Plea for Mercy

Abstract

As many critics have pointed out over the past thirty years or so, the basis for human rights talk is both philosophically shaky and historically shallow. Yet over the same period, the vocabulary of human rights has become so entangled with our moral intuitions and legal systems that few are willing to give it up. In particular, it is not clear how the vulnerable would make novel claims to protect themselves from harm or seek redress for past injury without drawing on the language of rights. Criticism of human rights is frequently motivated by a desire to restrain the ambitions of governments that support military intervention to defend human rights abroad, but human rights law has provided one of the few effective mechanisms for calling those same governments to account. In this context, Noel Malcolm’s eloquent critique of human rights is perhaps distinguished less by the novelty of the arguments themselves as by a rare willingness to accept their consequences. Although he maintains a commitment to the substance of many of those rights usually designated as ‘human rights’, ‘things such as justice, non-torture, freedom of expression and a basic level of welfare’, in his view the term ‘human rights’ embodies ‘more a rhetorical strategy … than a real argument’. What we are discussing are not rights that ‘must always have applied to every member of the human race’, but rather ‘fundamental political rights’ that are specifically ‘protections against abuses of state power’ and ‘relate directly to the conditions of legitimacy of the government that wields that power’. Malcolm interprets the latter requirement quite narrowly: the term ‘legitimacy’ applies only to regimes based ‘on the general modern democratic assumption that legitimacy will be maintained or lost in accordance with the way in which the government serves the people it governs’. As such, ‘the state in question is not any state in human history, but a democratic one, or one in which the citizens desire to be governed democratically.’ This account may seem unsatisfactory for a variety of reasons: why is the concept of legitimacy restricted to democracies, and why within a democracy is the legitimacy of a government assumed to depend on the performance of the government rather than, say, the constitutionality of its election? (There must be some scope for legitimate governments to govern badly, and for illegitimate ones to govern well.) Furthermore, if a breach of human rights is whatever action or inaction would delegitimate a government in a particular democratic society, it follows that a human right is not something easily specified without reference to the constitutional arrangements of the society in question. Malcolm accepts this implication: ‘This approach to human rights is “non-foundationalist”: it does not need to explain why each of these important goods is in fact good. It is sufficient to know that they are held as special goods in a political context.’ That is perhaps why Malcolm’s model here appears to be something like the US Bill of Rights (and in the pamphlet from which the article is drawn, he argues forcefully for a British Bill of Rights). But how effectively do such historical documents capture what we have in mind when we talk about human rights? The Second Amendment protects the right to bear arms. Some US citizens doubtless consider gun ownership and the freedom to form a militia to be one of the most salient of their rights than human beings, but most do not. Nevertheless, Malcolm’s account would seem to commit him to defending this and other constitutional oddities elsewhere as fundamental rights, the breach of which might delegitimate an otherwise competent democratic government. The chief problem with Malcolm’s approach is not that it dispenses with too much, but that in trying to hold on to some residual formula for human rights he slides towards constitutionalism and loses sight of the human suffering that motivates the demand for rights in the first place. In this respect, Bernard Williams’s essay on ‘Human Rights and Relativism’, which Malcolm acknowledges has some affinities with his own, acts as a corrective. Williams’s argument is framed in realist language that emphasises what is ultimately at stake: ‘It is important to remember the elementary truth that even in settled circumstances the political order does rest on the legitimated direction of violence’. The key term here is ‘political’. It is possible to have order without legitimacy, but ‘the situation of one lot of people terrorizing another lot of people is not a political situation’. Political order only emerges when the dominated accept the legitimacy of those who have power over them, and ‘our conceptions of human rights are connected with what we count as such a legitimation.’ On this view, ‘A violation of basic human rights approximates to unmediated coercion’; in other words, moments where there is domination without legitimation, and rule is maintained without the consent of the ruled. There are, therefore, ‘conceptions, which apply everywhere, of what it is for the solution to have become the problem …. Under [which] we recognize the most blatant denials of human rights, torture, surveillance, arbitrary arrest, and murder’.i However, it is not clear that Williams’s discussion of legitimacy, which focuses primarily on the justifications given for domination, necessarily involves human rights at all; he just takes for granted that what we refer to as human rights will map onto the universal problem of unmediated coercion. Compared with Malcolm’s, Williams’s account is therefore both more inclusive in scope (it applies to everyone in all times and places) and more restrictive in content, in that it relates primarily to the organisation of violence, and, as Malcolm notes, does not appear to include any socioeconomic rights. What Malcolm and Williams share is the assumption that the question of human rights is inextricably linked to the legitimacy of power: for Williams, a human rights violation is any illegitimate use of coercive power; for Malcolm, it is an action of any kind that would delegitimate a democratic government in the eyes of its citizens. These proposals are modest when compared with the more grandiose human rights theories. Nevertheless, both may still be claiming too much. What motivates both Williams and Malcolm is the intuition that, as the latter puts it, ‘the ruled have a special kind of political claim not to be harmed in a range of ways’ and the belief that ‘Any regime which regularly violates [such claims] is acting oppressively, tyrannically, despotically’. But it is possible to accept these ideas, and to describe how they operate, without talking about human rights or even legitimacy. The underlying problem is that, for whatever reason, some people always end up having power over others, and that includes the power to do them harm. What, if anything, makes that power acceptable to those who are vulnerable to it? Both Williams and Malcolm would say legitimacy, while acknowledging that that legitimacy can be forfeited if power is exercised unacceptably. Where legitimacy is determined by some ritual, ideological or genetic factor, there may perhaps be ways of distinguishing legitimacy from acceptability. But if, as both Williams and Malcolm would have it, legitimacy is something that is lost when power is exercised unacceptably, then it seems to add nothing to the idea of acceptability, except perhaps an indication that a certain threshold has been reached. Perhaps talk of legitimacy is just as much a ‘rhetorical strategy’ as talk of human rights? Without legitimacy, it is even more difficult to generate rights for those over whom that power is exercised. Where there is no right to power, there is also no defined limit to the extent of that power and so no corresponding right to immunity from it. But does this really matter? As Malcolm indicates, there are all sorts of infringements of a person’s property and integrity that do not give rise to human rights claims because there is no relevant authority against whom to make the claim. Natural disasters cause great harm and do not infringe our human rights, and so too do traffic accidents which are the result of human agency. If we are insured, we can make claims for damages, but our rights do not come into it. Malcolm argues that state power is special because ‘it is hugely greater than the power of individuals or other ordinary legal persons.’ But he does not explain how or why this quantitative difference in the power to harm should become qualitative. Political disasters, like traffic accidents, are usually just the result of individual selfishness and unresolved coordination problems, i.e. largely a matter of chance. And though we all hope for luck and even try to make it, no one has a right to expect it. If human rights do not exist, and neither does legitimacy, then there is only power and the varying degrees of acceptance of power by those over whom it is exercised. Talk about human rights may nevertheless be important because it directs our attention to the possibility that there are certain harms that people want to avoid, no matter what (i.e., no matter who inflicts them, and no matter for what reason they are inflicted). If inflicting such harm amounts to undoing the entire political order, then this suggests that we might be better off describing that political order in terms that directly reflect the primacy of avoiding such harms. Judith Shklar called this ‘putting cruelty first’. The virtue traditionally ascribed to rulers who put cruelty first was mercy, because mercy makes the exercise of power (whether legitimate or not) more acceptable to those who may be harmed by it. According to Seneca, it was mercy that made the difference between a monarch and a tyrant. And yet mercy is not so much a norm as an abrogation of an existing norm to the benefit of the vulnerable. As such it manages to capture many of the concerns of human rights: it is focused on the avoidance of cruelty; it knows no boundaries (i.e., does not stop at the borders of the state); it is sensitive to local norms, so what counts as merciful in one situation may not be merciful elsewhere. And if supplicating for mercy sounds rather more ignominious than claiming your human rights, it should not. It may well be a more accurate description of what human rights claims actually amount to, with the difference that the legitimacy of the power to which the claim is made is never taken for granted. Mercy is just a way of adjusting the relationship between those who have brute power and those over whom that power is exercised to the benefit of the latter. With luck, the tables may be turned one day. Despite its importance in European political thought before the Enlightenment, mercy has largely disappeared from the discourse of politics. But it has left a void, especially when it comes to discussing the vulnerability of non-nationals and future generations to political decisions made in today’s nation states. Malcolm’s work is valuable in that it shows how little human rights can do to fill the gap.