as well as the institutional dynamics, that sustained colonialism and slavery have not expired along with formal empires and trans-Atlantic slavery.
Non-universal Human Rights
While contemporary liberalism often associates human rights with the legacies of classical thinkers, law is frequently invoked as the key to current understandings of human rights. There exists a pervasive legalism that sees human rights as apolitical and ahistorical sets of events in which lawyers call witnesses, ascertain intent, and measure evidence of violation against the growing body of national and international laws. This is not to say that national and international laws are irrelevant, but undue emphasis on them and the legal scholarship surrounding them obscure how the definition and interpretation of human rights are enmeshed in broader social, spatial and temporal processes. Instead of being seen purely as an instrument to assess human rights, law, especially that pertaining to rights, was also an enabler of colonialism and maintains this role in administering the ongoing consequences of it. As mentioned earlier, colonial judiciaries may have in some places and in some respects borrowed from indigenous traditions, but they ultimately served the cause of colonial domination over lands and peoples.
States, no matter how they acquired their powers, are unique in having what is depicted as legitimate authority to interpret and administer rights of populations. They are protected through the construct of political sovereignty, which enables states to ignore, contradict or violate law. This is significant for European powers, which are largely immune from formally being charged with legally defined human rights abuses related to colonialism and enslavement since the crimes took place before the instruments, and courts such as the ICJ, the International Criminal Court (ICC) and regional bodies like the Inter American Court of Human Rights or the European Court of Human Rights (ECHR), were established. Although there is in law a concept of continuing violation, courts in Europe have been reluctant to hear such cases because they ‘have usually a political aspect with which tribunals are, in principle, hesitant to deal and, secondly, because of the fear that the examination of such cases will increase considerably the workload of the organs with competence to deal with complaints for violations of human rights’.21 That the principle of continuing violation does not extend to colonial situations was recently affirmed by the ECHR in a case brought by descendants of the twenty-four Chinese rubber-plantation workers executed by British soldiers in 1948 at Batang Kali, Malaysia. The judges reasoned that the killings that the troops were accused of carrying out in the colony occurred before the Court was established.22 Other means to hold Britain accountable through a Public Inquiry were rejected by the Cameron government in 2015. As this case illustrates, in its caution regarding retroactive application to the colonial past, the law permits, even embraces, selectivity in what violations are justiciable. German atrocities in Europe before and during World War II, for example, were not exempt from retroactive law.
It is no doubt true, as Max Weber argued, that impartial and rational law is simply the latest phase in the history of authority.23 To be legitimate, it must follow prescribed rules and procedures, and, by doing so, law supplies legitimacy to states, in part through the imagined social contract. But this appearance of legitimacy presupposes both that the law covers all eventualities that states administer, and that politicians, especially executives, work for the public good rather than for a partisan or other cause. It further assumes that the law itself, which states create, interpret and enforce, is impartial. In his classic statement on this, ‘Politics as a Vocation’, Weber admits that, among the ranks of politicians, lawyers loom large.24 This means that those who are charged with formulating and interpreting the law also wield powers to manipulate the law in myriad ways. In considering Batang Kali, the lawyers at the ECHR and politicians of the British state each affirmed the selective inapplicability of human rights.
Hence, even Weber’s legal rational authority can never be a purely bureaucratic exercise. Drawing on the works of Giorgio Agamben,25 we could say that it is not an impersonal bureaucracy that formulates and dispenses law and applies it rationally to all individuals, groups and institutions. Rather, although there are some sporadic checks such as judicial reviews in most countries, state sovereignty enables executives to override the checks, making any attempts to separate the legal from illegal a Sisyphean task. While qualifications, differentiations and conditionality can be applied to human rights laws, following the philosopher Carl Schmitt, Agamben argues that a ‘state of exception’ is vested in sovereignty itself. Indeed, pronouncing exceptions to the general rule is what defines sovereignty. The state is sovereign over citizens and free to make laws to control, categorize, register and document people, as well as to make differentiations within the citizenry and between it and non-citizens. The state can also make new laws or take executive actions to supersede protections of civil liberties and to violate its own laws. In democracies, state officials need not always follow the tortuous legislative processes to implement such differentiations, and can circumvent or ignore the multitudes of laws, conventions and protocols to impose decisive action. The state of exception is increasingly common and has become the ‘dominant paradigm of government’.26 Therefore, if the formal and informal group differentiations of rights are not enough to sustain legally a hegemonic social and economic order, a state of exception is the default position.
However, a state of exception is often unnecessary, because of the existence of social differentiations that rule out exercises of human rights that might be inconvenient to state politicians in one regard or another. Contemporary differentiations in the position of people regarding their human rights in colonial situations are paralleled internally by massive social and economic inequalities in Western countries that have serious implications for the exercise of rights. These were publicized by nineteenth-century reformers in Britain and the USA such as Seebohm Rountree, Charles Booth and Henry Mayhew, as well as their twentieth-century counterparts Jacob Riis, Jack London and George Orwell. These writers vividly described the misery that befell working people as urban industrial capitalism established itself. The wealthiest cities were populated by masses of paupers, homeless people, beggars, and sick and infirm people living on streets or in overcrowded hovels. The exacerbation of inequality coincided with the advent of capitalism, which Karl Marx and Friedrich Engels, jointly and separately, would use as evidence for their commentaries on capitalist society. One dimension of this was the realignment of rights away from those obtained via feudalism – in which mutual obligations between landowners and peasants cemented a stable but exploitative social order – to capitalism, where owners of capital (employers) replaced the paternal bonds with the ‘callous cash nexus’, the uncertainties of economic cycles, and mechanisms to minimize wages and maximize production.
In the vast arena of social and economic change in which capitalism emerged, Marx and Engels have shown that relations of production dictate the specific types of rights that pertain to workers – and therefore the unhealthy, degrading and dehumanizing conditions in which they lived. The massive inequalities produced and maintained by capitalism therefore meant that, even though the ‘rights of man’ existed in Marx’s time, and today universal human rights exist on paper – for example, through rights to an adequate standard of living in the UDHR and elsewhere – they are compromised because people cannot realize these rights equally. In the Marxian view, this is because the unequal social order is legitimated by an ideology that asserts that wealth and poverty reflect differences in individual merit.
In the wider Marxist view, law is an institution that derives its power from the state, and the state reflects the economic and political interests of those who own the productive institutions within capitalism. In his 1843 essay ‘On the Jewish Question’, Marx commented on human rights,27 arguing that Jewish emancipation could not be achieved without Jews emancipating themselves from finance capital (in which they had excelled because they were banned from entering other trades in much of Christian Europe) and promoting broader economic emancipation. Both Jewish emancipation and wider human emancipation depended on rejection of capitalism, which in Marx’s view shaped state actions to perpetuate exploitation and inequality.
For Marx, human rights held out little hope for emancipation. This was because the ‘Rights
