Rehabilitating rights within critical legal theory

This chapter builds on the previous one in revisiting some of the latter’s criticisms of human rights. It does not do so, however, as a means of reinforcing the arguments presented hitherto, but as a means of showing, say, the contradictions and double standards of the tradition of natural rights, which have been far from liberal. This analysis serves as one way of ‘rehabilitating’ rights within critical legal theory. Notwithstanding liberal principles of equality, either through natural law or natural rights, some ideas within that tradition have simply not been equal. Benedict de Spinoza, for example, tolerated slavery, as did John Locke. Indeed, the latter was a shareholder in a slaving company, the Royal African Company, and was involved in drafting the Fundamental Constitutions of Carolina, 1669, which legalised the practice. Of the first four Presidents of the United States, three of them – George Washington, Thomas Jefferson and James Madison – were from slave owning families, in Virginia, who, during their tenure as Presidents, did very little, if anything, in bringing about its abolition. Indeed, hypocritically, Jefferson, the author of the Declaration of Independence, dated 4 July 1776, had criticised the then British King, George III, for not having abolished slavery, in the Declaration’s first draft, in June 1776. Moreover, for the most part, women were excluded from being holders of rights in the state of nature, as well as holders of rights following the transition to civil society; they were even excluded from the social contract, the process of instituting political sovereignty. Into the 19th and 20th Centuries, the rights of persons of colour, as well as those of women, continued to be denied. Can the liberal tradition, therefore, legitimately claim a ‘monopoly’ over rights? Indeed, critical legal theory itself supports human rights. Modern perspectives on, say, Karl Marx assert that Marx’s traditional hostility towards rights, within capitalism, was confused and incoherent. Furthermore, with Marx saying very little about the communist state, following the overthrow of capitalism, is it wrong to claim that rights would not exist within communism? Rights against others, following capitalism, eg. preventing interpersonal harm, in the form of imposing obligations of restraint on people against their fellow citizens, would still be necessary. In this book’s critical legal defence of human rights, this chapter serves as the basis for defending rights within critical legal theory.