Mihailo Markovic 1981
Source: Praxis International, 1981, No. 4.
Section 1 of this essay was prepared by Prof. Ljubomir Tadic and myself as a part of the collective statement of the Belgrade Praxis group “The Meaning of the Present-day Struggle for Human Rights.” – Note by the author.
Basic civil rights and liberties are great achievements of the past democratic revolutions. They are necessary – although not sufficient – conditions of free human life in any society. A critique of these rights which rejects or disparages them as merely “formal,” “abstract,” or “bourgeois” is devoid of historical sense and expresses an aggressive obscurantism, particularly when it comes from societies which not only have not overcome this “bourgeois” level, but have not yet even approached it.
These rights are surely limited, and in conditions of a very unequal distribution of wealth and of material and spiritual misery in which great parts of the population are still condemned to live, these rights indeed partly express only abstract possibilities which, for economic reasons, cannot be brought to life. But it is equally true that changes in economic systems without an essential political democratization do not lead to really new and more just forms of society. They tend to keep alive authoritarian institutions analogous to those in feudal society, in the same way as one-sided political democratization, without economic democratization, made the survival of slavery possible in the U.S. during a whole century from Washington to Lincoln. Socialist revolutions in our century rejected imperial and royal autocracies because they were imperial and royal, and not because any autocracy is incompatible with the principle of the sovereignty of the people. Power remained completely concentrated: it was possible to command from one single center not only executives, but also legislators and judges. The individual was called “citizen” and “comrade,” but the level of civil rights and of civil consciousness which had already been reached in the eighteenth century remained a distant, almost unattainable goal of political development. Instead of being a civil servant responsible to citizens, the state functionary keeps demanding proofs of political loyalty from them. The power fully controls people instead of being controlled by them. Instead of reaching the maximum of personal security when they behave in accordance with the constitution of their country, citizens end up in jail when they interpret literally those articles of the constitution which guarantee to them freedom of speech, freedom of public manifestation and demonstration, freedom of political organization.
It is true that bourgeois representative democracy can no longer be considered the optimal form for the political organization of society. It is, however, the necessary initial level of a democratic society. The presupposition of democracy is the recognition that demos (the people), is mature, able to make basic decisions, able, among other things, to elect its representatives. With nineteenth century political parties, powerful mediators between citizens and their representatives appeared on the historical stage. As a consequence of this mediation, the influence of the voters over elected representatives was diminished, the power of political parties and their factions in parliament was increased and alienated. This alienation reaches its maximum when a single, monolithic, authoritarian party monopolizes all political power. Under such conditions, elections no longer express the people’s will but its loyalty; they are no longer a right but an obligation. The purpose of the principle of limitation of re-election was to prevent a permanent alienation of the elected representatives from the electorate, and in some bourgeois societies it has been strictly respected for the last two centuries. By contrast, the institution of ruling cadres who can be removed only by the action of biological laws or as a consequence of disloyalty to the sovereign leader is much closer to a feudal than to a new socialist society.
The issue of human rights emerges in history in its practical political form at the moment of open conflict between a revolutionary bourgeoisie and state absolutism. Only then does the contradiction between law and state become manifest: law emerges as a guarantee of human freedom against the arbitrariness of state power, as an expression of the citizen’s resistance to oppression. Thus in the 1793 French Constitution, it was stated explicitly that the need to proclaim rights of free expression of thought and of free gathering and religious festivities involves “a presence of a memory of autocracy.” According to the constitution, “the law must protect public personal freedom against oppression by the rulers.” Freedom was recognized as a “natural, in-alienable right.” Laws ceased being mere instruments for subordinating people, ceased being tools of usurpation and tyranny. They now became the means of protecting the citizen from the abuses of the rulers. Political emancipation means that the state as a public power may not be used for the private goals of its functionaries.
Since 1789 the concepts of “constitutionality,” of “legal rule,” and “legal state” grant legitimacy only to that state which can be controlled by its citizens, only to that power which excludes autocracy and absolutism. In accordance with the concept of constitutional and legal guarantees of freedom, criminal law no longer protects “the interests of the state,” nor the imperative of “state reason,” but the interests, liberties, and rights of its citizens. A necessary condition of their protection is a judiciary independent of executive power. Laws and state acts which violate these principles of justice can no longer be considered legitimate. This affirmation of justice over the state and positive law was stated explicitly for the first time in the American Declaration of Independence and the French Declaration of The Rights of Man. It completes the great revolutionary democratic process which started with the Enlightenment and the idea of rational natural law. The focus of legality had now been shifted from force and sanction to civil freedom.
It is hardly controversial, since Marx, that the whole idea of civil liberty, of political emancipation, has its class limitations. The human individual is split, in that idea, into an immoral, economic egoist and an abstract citizen who is supposed to be a moral person. What is controversial, and what makes the debate about human rights so important today, is the stubborn rejection of political emancipation in toto by official Marxism in socialist countries. Clearly what tries to remain hidden behind dogmatic theory about the incompatibility of bourgeois and socialist democracy is a long praxis of drastic suppression of human rights and the revival of state absolutism. It is true that bourgeois law presupposes the enslavement of humans to things; that private property is an obstacle to, rather than a guarantee of, freedom; that bourgeois democracy gives a very limited amount of political power to its citizens. But how can an absolutist state, even when it calls itself socialist, be considered a better, historically superior form than a liberal, representative democracy? What follows from Marx’s dialectical critique of bourgeois law is that political emancipation is a great progressive achievement. Even though it is not “the ultimate form of human emancipation,” it is the highest form of human emancipation “within the existing world order.” But if political emancipation is a phase of universal human emancipation, socialism cannot ignore or reject it without jeopardizing the very reason for its existence and the legitimacy of its ultimate goals. The great emancipatory tradition is one of the grounds of socialist revolution. Of course it went beyond the narrow horizon of bourgeois law and carried in itself the goals of universal human liberation. However, political emancipation can be transcended but not repudiated.
The Constitution of the Russian Federal Socialist Republic of 1918 in its Declaration of Rights of Exploited Working People laid down as its basic task the abolition of the exploitation of one person by another and stated as its general principles: “true freedom of conscience,” “true freedom of thought,” “true freedom of choice,” “true freedom of association,” and “true freedom of education” for working people. There was an obvious intention in this first Soviet constitution to remove the contradiction between the form and the content of democracy. On the other hand, by proclaiming “the dictatorship of urban and rural proletariat and poorest peasants,” the first Soviet constitution deprived earlier ruling classes of many rights. The Soviet legal theory of that time defined the dictatorship of the proletariat as a power “which exercises coercion over the bourgeoisie and in doing so is not constrained by any law.” Such a view was interpreted at that time as a legal revolution. Soviet legal theory justified the complete subordination of law to politics in the transition period by “revolutionary expediency.” The danger of bureaucratization was completely overlooked: according to the official Soviet ideology it was a “ridiculous and absurd nonsense” to oppose the dictatorship of masses to the dictatorship of leaders; it was “an elementary truth” that the relationship between the leaders, the party, and the class was “ordinary, normal, and simple.” As a matter of fact, however, and in a rather simple way, the dictatorship of the class was indeed reduced to that of the party which, in turn, degenerated into the dictatorship of a single party leader.
After the critical year of 1921, in the Bolshevik party leadership the view prevailed that the party mechanism in the system of the dictatorship of the proletariat could secure its leading position only under the condition of monolithic unity. That meant the complete elimination not only of other, even socialistic, parties, but also of any organized groups and factions within the Bolshevik party itself. The dictatorship of the proletariat turned out to be incompatible with political democracy. The bourgeois fetish of law was replaced by a bureaucratic fetish of politics. The vague idea of “revolutionary expediency” was later transformed into the cynicism of the “reason of state.”
In the new system there was no place for the associations of citizens and producers that Marx spoke about. There was indeed no place for any organization that rested on the self-determination and self-initiative of liberated individuals. Duties prevailed over rights, prohibitions and sanctions over liberties – the ideal of any authoritarian power. The legitimacy of an utterly voluntaristic state praxis was based on an assumption of reified, suprahistorical, suprahuman “objective laws” of socialism which acted independently of the consciousness of actual living people. “Masses” were construed as purely mechanical, passive material modelled according to the twists and turns of this non-human necessity. What started as a Marxist critique of bourgeois law ended up as a conservative justification of political Caesarism.
What remained of proclaimed real liberties of conscience, thought, education, and organization were caricatured forms only. A citizen was free to think but was suspect until he or she proved that their thinking was “constructive.” One was free to elect as one’s own representatives only those who were previously chosen by the Party. One was also free to join all those organizations and societies which underwent strict and permanent Party control. “Real” education has been subordinated to the pragmatism of daily politics and the imperatives of a thoroughgoing pseudo-revolutionary indoctrination. The citizens were not even aware of their right to know what the state did in their name and how it spent the surplus product of their labors.
Even the most naive citizens hardly believe today that all those articles of the Constitution which guarantee freedom of conscience, thought, speech, publication, and organization are really written for them. They know they could be held responsible for a crime “against the people and the state” or end up in a mental hospital if they take the Constitution of their country seriously and behave according to it. One of the most oppressed strata of this pseudo-socialist society is precisely its “ruling class”: the workers do not even have the traditional rights which they exercised in capitalist society before they were “liberated,” namely, the right to organize into trade unions and the right to strike. A really new, free, and just society presupposes both political and economic emancipation. What lies beyond both an authoritarian, coercive state and a reified market regulation of production is a democratic socialism in which all public power that is necessary for the regulation of socially necessary processes remains in the hands of self-governing councils and associations of citizens and producers themselves.
How can we justify human rights and, indeed, any given or conceivable legal order? If we reject the idea of their divine origin, we seem to have essentially the following four alternatives:
(1) A static, ahistorical relativism exemplified in any empiricist, pragmatist, or structuralist approach. From this point of view each particular society, each civilization, has a set of rules which regulate human relationships and maintain a necessary level of social cohesion. These sets are different and incommensurable paradigms – like Bachelard’s different types of rationalism, or Kuhn’s scientific paradigms, or Levi Strauss’s “codes” for the expression of specific social structures. This type of approach allows an objective study of each particular paradigm but rules out the possibility of speaking of a universal human justice. Moral and legal systems cannot be compared: all concepts of “good,” “right,” “ought,” or “just” become relative to a specified system, and it does not make sense to evaluate one morality as “better” than the other.
(2) If this relativism does not satisfy us, because it tends to strip the general ideas of “human being” and “history” of any meaning, we may turn to an absolutism of a Kantian or phenomenological kind. There is a transcendental concept of the human person and of practical reason; an ahistorical, autonomous good will, a universal moral law (the “categorical imperative”), provide the basis of all morality and justice. Those who, like Scheler, reject the identification of the apriori with the formal and of the aposteriori with the substantial, may project moral values into a particular realm of validity (Geltung) outside of both spheres of the material world and human consciousness.
(3) Those who, in an age of rapid historical progress, do not see much merit in such a static conception of both a formal ethics of duty and of an axiology of values “in themselves,” may prefer the historical absolutism of Hegel. Any particular moral order within a family, a nation, or a civilization, and morality in itself as a form of consciousness, are only objective stages in the development of an absolute Spirit. This approach opens the possibility of comparison and critique of various moral and legal systems, of seeing their inner limitations, of evaluating one as merely a particular moment of the other. However, the basic assumption of an absolute mind implies the absence of history, of the possible creation of new forms of morality and law in the future. The system had to be closed if it claimed absolute truth: all real development took place in the past.
(4) The legitimate heir of Hegel’s thought, Marx left behind an ambiguous body of ideas. Those which nowadays constitute the foundation of official Marxist ideologies offer a historical but relativist conception of morality and law. According to it there is a true development of morality in history. History – and not only the past but also the future – may be seen objectively as a process of growth of social productive forces and a succession of increasingly rich and free socio-economic formations. But history may also be seen subjectively as a history of class struggles. Each class has its own morality rooted in the objective material life conditions of that class. An overemphasis on the class character of humans and a reluctance to see elements of universal humanity in each individual and class lead back to relativism. This is obvious in the Marxist orthodoxy of both the Second and Third Communist International and also in the Marxist structuralism of an Althusser. Rather than seeing in the future what Hegel established in the past (namely, a process of totalization of humans in general, our progressive enrichment and emancipation), both orthodox and structuralist Marxists construe history as a series of modes of production which are separated by social ruptures – revolutions and cultural (“epistemological”) gaps.
While it could be argued that Marx himself is very much responsible for this relativist interpretation (consider Marx’s Sixth Thesis on Feuerbach: “Man is an ensemble of social relations”), he also made essential contributions to a humanist, truly historical conception of morality that goes beyond the dilemma of absolutism versus relativism. The view of the human being as a universal self- consciousness, developed in Hegel’s Phenomenology of Mind, was transcended by a conception of the human as a practical being who creates its history, its material life conditions, social forms, morality, and law beyond any preconceived limit.
The ultimate foundation of human rights is constituted by those essential needs of each individual the fulfillment of which is, under given historical conditions, a necessary condition of social survival and development. Law is just, humane, and universally valid only if particular statutes and legal acts express such universal needs; if they do not, then law is only the expression of naked force. If law is reduced to positive law, to what is written in the laws of a state, it is nothing but a justification of particular interests of the ruling elite. In such a case law would be, as Thrasymachus in Plato’s Republic put it, “what benefits the most powerful.”
Obviously, then, laws can be profoundly unjust. Just law cannot be based on the authority of the state, but on a superior principle which makes the state itself possible and meaningful. That higher principle was interpreted in various ways in the philosophical critique of positive law: “natural law,” “rational law,” “reason,” “freedom,” “external, unchangeable justice,” “absolute moral values,” “logos of history.” Such interpretations make sense as a challenge to legal positivism and as the expression of critical thought which cannot reconcile itself with a legal apology for an existing tyrannical and inhuman order. However, the essential limitation of such interpretations is the fact that they are unhistorical or even antihistorical. The principle on which all law rests must allegedly hold in a transcendental way, for every conceivable society, sub specie aeternitatis. What follows, then, is that human rights are determined by the very fact that an individual belongs to the human species, that those rights have already their ultimate formulation in eighteenth century bourgeois revolutions, and that the whole historical process after that should only render economic and political conditions for their implementation.
The static, ahistorical nature of this approach makes it acceptable to the conservative forces of bourgeois society. However, the fact is the human species is not merely given – it undergoes a process of permanent self-determination and self-development. Actually existing human rights and liberties constitute only a phase in this historical process of increasing emancipation.
How can one criticize positive law and yet avoid idealistic transcendentalism? How is it possible to hold that law is historically conditioned and open to development, and yet avoid an eclectic relativism?
In order to build a point of view which is historical but not relativistic, critical but not sceptical, objective but not transcendental, we must ascertain those specific features of human activity which make the difference between the simple flow of time and human history. Then we must ask which are the specifically human needs that make this activity possible and which permanently evolve in the course of human history. Do not these constitute the very basic source of human rights?
One has to ask if human history as a whole is a meaningful process or not. Before answering such a difficult and complex question, one could ask a simpler, more general one: What constitutes the meaning of any life process? Jacques Monod’s answer was teleonomy: a unique, primary project of preservation and multiplication of the species. One could ask here: what makes this basic project “valuable?” Why is preservation of species better than disappearance? Why is it better to multiply than to simply restore the already achieved quantitative level?
The only answer to such a question is the following: What is here described as “better” or “worse” is not merely a matter of subjective preference, it refers to a tendency which is a necessary part of the very definition of life. Surely not all individuals and species survive and multiply. But while they do, they are alive. In a similar way one should add that life involves a tendency to maintain and increase order and structural complexity; a process of change in the opposite direction toward lesser order and complexity is “bad” for a living organism since it leads to the destruction of life. It is therefore being described in negative terms: as a process of degradation.
The comparable question with respect to human history asks: What is the primary project of historical development? Which are the objective conditions necessary for human survival and development, not as a mere living organism but as a distinctly human being? Many things which actually occurred in the course of history do not belong to such conditions: famines, floods, earthquakes, massacres, destruction. What made human history possible and indeed unique – in view of the explosive development of the last few thousand years – was a specifically human activity: praxis. Praxis is purposeful (preceded by a conscious objective), self-determining (choosing autonomously among alternative possibilities), rational (consistently following certain general principles), creative (transcending given forms and introducing novelties into established patterns of behavior), cumulative (storing in symbolic forms ever greater amounts of information and conveying it to coming generations so that they can continue to build on the ground already conquered), self-creative (in the sense that young human individuals, after being exposed to an increasing wealth of information and new environmental challenges, develop new faculties and new needs). Praxis is a new, higher-level form of the human species. It retains genetic invariance, self-regulation, teleonomy. But it goes far beyond them. The plastic genetic material will be shaped in countless different ways by social conditioning; self- regulation will become more and more conscious and autonomous; and the conservative telos of the species – preservation and multiplication – will be replaced by an entirely new basic project: the creation of a rich manifold, increasingly complex, and beautiful environment, self-creation of persons with an increasing wealth of needs. Many human activities are clearly not instances of praxis, nor are they characteristic of human history. The repetitive work of a slave, serf, or modern worker resembles more a beaver’s dam building than creative work.
As in the discussion about the basic, inherent teleonomy of life, it is possible to ask the question: What is the good of all this creation and self-creation? Is it not better to go back to simple organic life in as natural an environment as possible, with a minimum of needs? And, as in the earlier case, the answer is that a different telos is possible, but it would not be the telos of human history. The emergence of human life is this gigantic step from the simple, organic, repetitive, narrow natural world to the complex, civilized, continuously developing, vastly expanded historical world, from a poverty of needs and abilities to an increasing wealth of goals and life-manifestations.
A judgment of this kind is still factual. What has been argued so far is that, as a matter of fact, the specific characteristic of humans and human history is praxis. A basic normative standpoint is taken when one commits oneself to supporting, stopping, or reversing that trend of growing creativity in history. This is the point of a crucial bifurcation in ethics.
To commit oneself to increasing creativity in history, to praxis as the basic axiological principle, means to assert that it ought to be universally accessible, that it ought to become a norm of everybody’s life. This again means to encourage discovery of the essential limitation of given social forms, institutions, and patterns of action; it means to try and explore new, hidden possibilities of a different, richer, more complex, self-fulfilling life; to express them in the form of ideals; to examine strategies of bringing them about. This type of ethical orientation is clearly critical and emancipatory.
A conformist, status-quo preserving approach involves a tendency to reserve praxis for the elite and to condemn the vast majority of human beings to inferior, not characteristically human, forms of activity; involves offering receptivity as a surrogate for creativity and condemning emancipatory ideals as utopian. It resists further liberation processes, but at least it tends to retain the level of freedom already achieved.
A retrogressive normative attitude to history involves a commitment to the reversal of the historical trend, to the restoration of already dismantled master- slave social relations. Servility is offered as a substitute for creativity: the glory of conquest and domination, on the one hand; the honor of serving and patiently, loyally enduring, on the other.
These three basic attitudes to history are mutually incompatible. The dialogue between those who advocate them makes sense only in order to establish whether they have been taken consistently and whether they can be lived in practical life. If this is the case, discrepancy in value judgments cannot be overcome.
Assuming that we accept the universalization and continuation of praxis in history as our fundamental normative standpoint, the question is what else does it involve, and how could it be further analyzed? What is meant by saying that humans are and ought to be beings of praxis?
(1) In contrast to traditional materialism and empiricism, the human person is not merely a reflection of external natural and social forces or a product of education; he or she is not only a superstructure of a given economic structure but also a subject who, within the constraints of a given situation, create themselves and reshape their environment, change the conditions under which certain laws hold, and educate the educators. On the other hand, in contrast to Hegel, a human is not conceived as a self-consciousness only, but as a subject- object who is constrained not only by the quality of existing spiritual culture but also by the level of material production and the nature of social institutions. However, precisely because we have both subjective and objective dimensions, both spiritual and material power, we are able to understand our limitations and, also, to overcome them practically.
(2) Humans are certainly actual, empirical beings. An ethical theory becomes irrelevant when it merely imposes on us norms which are completely divorced from that empirical reality and have no ground in it. Certainly, using sophisticated means of manipulation and brute force, certain obligations and duties can be forced upon a community, but a true morality cannot be produced in such a way. It has to be autonomous, and only an actual (individual or collective) subject can lay down its own moral laws. On the other hand, moral norms, by the very nature of being norms, are never a mere reflection of actual existence. Morality, like every act of praxis, begins with an awareness of a limitation in actual empirical existence, in the way we habitually, routinely act. Norms may be already present in our customary behavior, but these are either legal norms imposed by force, by the threat of social, overt coercion, or customs unconsciously accepted in the process of socialization and blindly, instinctively followed like any unconditioned reflex. Morality involves a conscious, free choice among alternatives, and that choice transcends the immediate, selfish needs of our actual existence – it expresses long-range needs and dispositions of our potential being.
Human potential is not a part of directly observed empirical existence, but it belongs to the reality of a person or community and is empirically testable. Far from being a vague metaphysical concept, the notion of a potential capacity or of a disposition can be operationalized by stating explicitly the conditions under which it would be manifested (provided that those conditions can be produced in specified ways and the reality of dispositions tested).
(3) Both in actuality and potentiality a human being is, in the first place, a unique person with quite specific capacities, powers, and gifts. A person is also a particular, communal being: only in a community does one become a human, bring to life one’s abilities, appropriate accumulated knowledge skills and culture created by many preceding generations, develop a number of social needs: to belong, to share, to be recognized and esteemed. The levels of particularity are many: an individual belongs to a family, to a professional group, class, nation, race, generation, sex, civilization.
That is where all relativists stop: a particular being invariably has a particular morality; there can be no universal standard of evaluation. Philosophers who develop such universal criteria had either to eliminate history like Kant in his transcendental ethics, or, like Hegel, to construe history as the process of actualization of a potential universal spirit. Both lead to absolutism. The problem becomes solvable only when the absolute spirit is replaced by the idea of a universal human species-being. As we saw, that universal is not only spiritual but also practical; it does not exist in abstracto but as the basic potential of concrete living individuals. The descriptive concept of this universal human nature is constituted by a set of conflicting general dispositions; some supporting development, creation, and social harmony; some causing conflicts and destruction. From the standpoint of historical praxis, the former are evaluated as “good” and enter into a normative concept of human nature. This concept is not fixed since history is, in contrast to Hegel, an open-ended process. This point of view is not absolutist as was Hegel’s: humans continue to develop, and in the future ever new forms of morality may be expected to evolve. And yet one need not relapse into relativism. Development in history is continuous: a translation and incorporation of the practical products and experiences of an earlier period into a later one remains possible, and there are trans-epochal invariants. Therefore there are good reasons to argue that, in spite of all discontinuities between particular epochs and civilizations, there is one universal human knowledge, there is one material and spiritual culture that grows, one human species-being that evolves through the life of all various individuals and particular communal beings. At a given moment of history there may be one theory that expresses their accumulated knowledge (that already achieved wealth of human beings) better than other preceding or coexisting theories. In the future this theory will also need revision, but at the present its author could have sufficiently good reasons to hold that his or her views are truer than those of his or her opponents. He or she may be wrong, but that must be shown by superior arguments.
A conflict concerning human rights is a special case of a conflict in value judgments. Its resolution would be rational under the following conditions:
(a) The proponents of conflicting value standpoints enter a dialogue (i.e. a discourse in which they are equal parties) in which they try to prevail by the force of arguments but allow from the beginning the possibility of a limitation in their own position which they are ready to overcome.
(b) The dialogue as a whole must be consistent: all contradictions that emerge must be resolved.
(c) The reasoning of both participants in the dialogue is regulated by rules (implicitly or explicitly accepted by both of them).
(d) A rational consensus will be reached if the opponents share the same ultimate principles.
Obviously it is very difficult to meet all those requirements. Partners in a communication on human rights are not always equal and are not always ready to give up any other force except the force of arguments. Also they are usually not ready to take a critical view of their own position and to allow for the possibility of its revision. Most people prefer to live with contradictions rather than to resolve them, and the rules which they follow are not always logical rules common to both opponents.
Especially difficult seems to be the requirement of shared basic principles. And yet it can be met. There are enormous differences in value judgments made in different situations. But if differences were put into brackets, agreements on basic preferences would be discovered surprisingly often.
A vast majority of people would agree that – other conditions being equal – life is preferable to death, creativity to destruction, freedom to slavery, communal solidarity to brute egoism, material well-being to poverty, development to stagnation, independence to being dominated, dignity to humiliation, autonomy to heteronomy, justice to abuse, peace to war. Disagreements arise about the hierarchy of such universal values and, especially, because other conditions are really not equal. Life need not be preferable to death when the price for it is loss of dignity; peace need not be preferable to war when it leads to less of freedom. Consequently, the greatest problem for the rational resolution of value conflicts is not the absence of any common axiological principles, but the conflicts among those very principles under various specific conditions and the fact that different communities, living under different historical conditions, assign those principles different weights and hold them in different hierarchical orders.
Those who deny the very possibility of agreement on certain basic values among people who belong to different cultures and different social systems should try to account for the fact that on December 10, 1948 the Universal Declaration of Human Rights was accepted by American, Soviet, and other leading politicians of the world. How was it possible for ideologues of conflicting political and social systems to reach consensus on a number of fundamental values? How was it possible to reaffirm, in Article 1, the principles of equality, freedom, and brotherhood? How was it possible to agree, in Article 2, on the principle of non-discrimination concerning race, color, sex, language, religion, political beliefs, and national and social origin? How was it possible to agree in articles 18-24 on the rights of free thought, conscience, information, organization; on the right of each person to participate in governing their country; the right to social security; the right to work and to have equal pay for equal work?
All this was possible because, in the first place, in present-day society certain basic things are no longer controversial. It is one thing to play a bizarre language game in a class room or in an academic journal, it is another thing to challenge seriously and publicly certain values on which the whole present civilization rests. American and Russian ideologues will easily endorse together that “No one must be kept as a slave or a serf; slavery or slave trade are forbidden in all forms” (Article 4). And why? Because their present-day social systems have come into being precisely as the consequence of the abolition of slavery, in one case, of serfdom in the other.
Politicians tend to agree (or at least to verbally make an appearance of agreement even when they know that the conflict of interests has not really been removed) because they are dealing with issues of direct, general concern, often with dangerous and disastrous practical implications; because they are doing it under the public eye, sometimes under great psychological pressure to come to terms with the opponent; and because they are very well aware of the possibility of construing agreement as a great personal success. They cannot afford to play with logical possibilities and allow themselves to be pushed into a defense of crazy theories – that could finish them as politicians. They act under much greater real constraints than the intellectuals, and in order to escape them they use ideology. What looks as a rational resolution of conflicts will often be a case of ideological resolution: missing consistency, distorting the customary meanings of words, and construing the own particular interest as the universal, therefore ethical, one.
For the time being such agreements are of limited, but by no means negligible, importance. They tend to erode rigid positions, to expand the spiritual horizons of the opponents, and to make them understand better alternative points of view. And even when the terms of a conflict solution are not taken seriously by those who produced it, they can be interpreted literally and used in surprising ways by large audiences everywhere. A good example is the 1975 Helsinki agreement on human rights which was reached easily by a number of governments because it was considered a harmless and non-binding document. It became important when it raised the hopes of millions of people and helped to articulate their demands for more freedom and justice.
Dialogues on human rights help us to see better where the real difficulties are on the road of rational resolution of value conflicts. In contrast to what many philosophers imagine, the greatest difficulties are not the absence of any general value principles from which particular value judgments can be derived, nor the incommensurability of the values of different social groups and cultures.
In the United Nations Charter, for example, American liberals and Soviet Marxists found ways to agree on whether private property is a human right or constitutes a violation of worker’s human rights. Article 17 says: “(1) Each has the right to own property alone or in community with others. (2) No one may be arbitrarily deprived of his property.” This is an example of a general rule that expresses what is common in the particular norms of Liberal and Marxist systems of values.
The Marxist does not deny that what he calls “personal property” in contrast to “private property” is a human right. Marx and Engels stated that capitalism abolished the personal property of artisans and farmers and concentrated property in the hands of a few individuals, whereas communism restores personal property on new ground. The Liberal, on the other hand, does not bother about the distinction between “private” and “personal” property and, rather satisfied that the formula about “the right to own property alone” is acceptable to the Marxist, has no reason to oppose the idea of communal property. After all, what is a corporation if not a peculiar form of communal ownership?
Again, to the Marxist it is of essential importance that the new revolutionary state may expropriate private property. This is unacceptable to the Liberal. But the latter can have no arguments against the formulation “no one may be arbitrarily deprived of his property.” He also believes in the State and the law, and he knows very well that modern factories, city quarters, railways, and airports would not have been possible without compulsory purchases of hundreds of thousands of private farms and houses. So he must reduce his defense of capitalism to the denial of “arbitrary” revolutionary expropriation. Once there is a new state and a new law, their acts cannot easily be criticized from the standpoint and to the advantage of a Liberal. An eighteenth century revolutionary democrat could challenge positive law from the standpoint of natural law, and he could condemn various coercive acts of any state from the point of view of the sovereignty of the people. For both a Soviet bureaucrat and an American quasi-liberal this is a dangerous approach. Sovereign people would hardly tolerate enormous concentration of either economic or political power in the hands of a few; they prefer to reduce sovereignty of the people to sovereignty of the state, thus to gloss over the right of people to challenge positive law, to recall its so-called representatives, and to overthrow the government which betrays public interests.
Thus we see that even antagonistically opposed participants in a dialogue may resolve their value conflicts because they share important interests against third parties (people, in our example, or small countries, or the Third world), and they invariably share some general interests of the whole epoch, of the type of civilization to which both belong, of humankind as a whole. No matter how ideologically divided, Eastern and Western Europe share not only institutions of the state, of law, and of personal property, but also of some kind of market, of marriage, of free elementary education, of a minimum of social security and welfare. Most of these could be reasonably challenged from a different civilizational standpoint. On the other hand, some interests are truly universal: for example, to support life on Earth, to preserve nature from irreversible pollution, to save non-renewable natural resources for future generations, to produce enough food and energy for all countries, to control and reduce demographical growth, to conquer epidemical diseases and natural catastrophies, to prevent a nuclear holocaust.
All these different kinds of common interests constitute a basis on which some value conflicts can, and sometimes must, be rationally resolved. Our example suggests that both parties in the dialogue are able to reach consensus when: (1) they stop simply attacking the values of the opponent in the specific forms in which they were expressed initially; (2) they stop making propaganda for their own values in the specific form in which this is usually done; (3) they search for a more general formulation of their own values; (4) they make concrete suggestions as to how to generalize value judgments of the opponent; finally, (5) they look for a general rule which expresses the indispensable minimum content of both opposed value judgments.
The greatest difficulties arise in the application and the control of implementation of a solution of this kind. First, the parties in the dialogue (for humanitarian or propagandistic reasons) subscribe to the values which are incompatible with social make-up in their countries. Thus the Soviet representatives agreed to the right of each individual to move freely: to leave any country for good; to think and express their thoughts freely, without harassment; to exchange information and ideas across national borders; to have equal access to any public service in one’s country; to freely choose one’s profession; to organize trade unions for the protection of one’s interests, and so on. These rights could be practically implemented only if the whole Soviet system were radically changed. On the other hand, American and West European representatives have agreed to the abolition of any discrimination concerning race, color, sex, language, political affiliation, and social origin. Yet all these forms of discrimination exist, and will continue to exist for a long time. Furthermore, there are a number of specified rights which are hardly compatible with the capitalist system, such as: the right to work, to just conditions of work, to equal pay for equal work, to equal access to schools, and to an education oriented toward full development of one’s personality.
Second, because it is necessary to seek consensus at a sufficient level of generality, the problem of classification inevitably arises. It will often be unclear whether an individual case can be subsumed under a general norm, and, since various governments keep violating the norms, they deliberately obscure the issues by misclassifying the cases. When East European dissidents are fired from their jobs and locked up in prisons or mental asylums, these are not presented as cases of the violation of human rights but as justified defense of society from criminals and psychopaths. When Western radicals become victims of the Berufsverbot, or are urged to register as the agents of a foreign country, or are framed and jailed – these are also “legitimate acts against enemies of the democratic order.” Consensus on values had to be so abstract that all those repressive acts would not jeopardize it. Thus appearances of full respect for human rights can be kept.
Third, there is a tendency to make allowances for the exceptions from the agreed general norms. In politics such attitudes may pass as examples of realism, wisdom, and statesmanhood. From the philosophical standpoint these are cases of irrationality. Ethical principles either involve a claim to universal validity – then their practical application can be challenged only from the standpoint of a principle which ranks higher in the scale of values – or, if they can be disregarded because of a particular need, such as the strategic interest of one state, they are deprived of any validity. A universal declaration of human rights which should be obligatory for hostile countries but not for allies would hardly be worth more than the paper on which it has been written.
Fourth, to the extent that a consensus is rational, it implies an openness for critical examination of its practical import. However, East European governments reject the universal right of such a critique in the name of state sovereignty and non-interference in the internal affairs of other countries. This is clearly inconsistent with their ideological claim to be the heirs of ancient Greek democracy, the Renaissance, and the Enlightenment. One of the basic assumptions of this great tradition is that state power derives from the will of the people, and that human rights are prior to state rights.
From this analysis of existing dialogues of human rights it seems to follow that many conflicts in the future could be resolved if:
(1) the idea of human rights were generalized, including not only political but also economic and cultural rights;
(2) critiques of violations of human rights were more consistent and impartial, directed at allies as well as enemies;
(3) sovereignty of the state were subordinated to sovereignty of the people.
The present struggle for the practical realization of civil and human rights is a new dimension of contemporary emancipatory aspirations. To the extent that it stops being a mere phase of confrontation between governments and ideological camps, and achieves the character of a mass movement, it will contribute essentially to the abolition of present-day barriers to human freedom and social justice.
To be sure, in different societies it will assume different forms and priorities. In the countries of developed capitalism it is possible to use the level of political liberties already achieved in order to abolish present-day forms of economic exploitation and social oppression. In the countries of state socialism, an obvious prior need is the overcoming of state absolutism and a thoroughgoing political democratization. In the countries of the Third World it is essential that the basic material and cultural preconditions for the implementation of human rights be created, the growth of oppressive institutions and mechanisms adopted from modern industrial society be avoided, and the attempt be made to preserve still existing pre-industrial forms of human solidarity and autonomy. In none of these different situations will a higher level of human rights and liberties emerge spontaneously, nor will it be granted to a society by its government: it will be achieved only by the resolute struggle of various emancipatory movements. Even in the most difficult conditions, even without any political organization, strong, fearless individuals and groups may keep alive great emancipatory ideas of the past, and by their own example may contribute to the awakening of an elementary civil conscience.