Balkinization: Doing human rights without a belief in progress

Doing human rights without a belief in progress

Guest Blogger

Alice M. Miller

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

For those of us who use the language and tools of human rights in social justice advocacy, progress is a kind of leitmotif of our work: aren’t we aiming for better places, better things? In the last decade, sexual rights has begun to function globally as one of the new markers of ‘progress’ in contemporary human rights work. From being a set of rights which were interpreted into more accepted rights (health rights, reproductive health, rights of bodily integrity, rights of association and expression) sexual rights, mostly in the guise either of women’s sexual and reproductive rights or ‘gay rights’ are emerging as clear independent standards.

This emergence is hard fought and deeply prized, and yet I am reluctant to use the word “progress” in this work. After twenty-five years of this work, I think rights work can be happiness-making without the certainty that it sticks as ‘progress’. Some of my reluctance to trumpet sexual rights as progress lies in my ambivalent relationship to the construct of progress generally, and some lies in the particular role sexual rights are playing in global politics.

In all social justice work, allies are imperfect, coalitions fail and heroes fall. Many policy and law reforms ostensibly for the good generate unintended harms, as when the recognition of the new crime of ‘trafficking’ mostly resulted in the visas of young women being pulled at borders. Repressive efforts by states such as anti-homosexual propaganda laws and criminalization of information on contraception ironically succeed in producing the homosexual and the autonomous woman. None of this would surprise post-modernists, Foucauldians or critical legal theorists, but it seems to me rarely admitted in rights work.

Progress seems to me to be a vexed concept in human rights work: it lends rights advocates the vantage point of righteousness and judgment, the perch from which we condemn injustice and call for new and better things. It evokes hope for the oppressed, as in the pronouncement by Martin Luther King, Jr that “the arc of history bends toward justice”. As a value in justice work, it works with my mother as well as on the street and it even succeeds in the courts, evoking nods of judicial approval, as in the US Constitutional standard which celebrates “evolving standards of decency that mark the progress of a maturing society” , Trop v Dulles (356 U.S. 86, 1958 ).

And yet, progress as a value tossed into rights work also skitters dangerously close to the edge of superiority rather than solidarity in work in human rights. Progress also serves as a sharp- edged ruler held by whomever is the current victor: it divides civilizations into civilized and un-civilized, the latter fit for conquering and exploiting as they are brought into progress, into the light. In the ranking and arranging of nations and peoples in hierarchies of importance. Different inquiries into rights have played active roles: this too is the legacy of invocations of progress in rights.

Women’s rights has played this double edged role for over a century, as evaluation of the treatment of women was factored into standards for decolonization (see some of Karen Knop’s analysis in Diversity and Self-Determination in International Laiw for the UN’s role in this, and Lata Mani’s work on Contentious Traditions for a fine exploration of British-Indian struggles over women’s rights). Rights work has often been fiercely criticized for its replication of the posture of “white men saving brown women from brown men’, as Gyatri Spivak famously phrased it.

Contemporary sexual rights work has some of this same tendency in the hands of the nations who have picked up the standard as part of their geopolitical positioning. Moreover, perhaps because sexual rights has had to gain credibility as a form of rights work, advocates have often mistaken respectability for respect. There are many moments in which ‘progress’ in the sexual rights claims of one group has been made by the strategic clambering of one group up the ladder of respectability over the backs of others. Some sub-groups ascend the sexual hierarchy by conforming to as many of the prevailing standards of sexual legitimacy as possible. Other advocates seek the longer and more difficult route of changing the standards of sexual legitimacy for everyone. Think of the respectability attached to monogamy, sex without money, regulated fertility. These short cuts to advance by groups are not new problems, or unique to sexuality, nor are they likely to end—they are part and parcel of social struggles.

If one takes a historical perspective as the starting point for doing rights (both as the context in which struggles arise and as the thing that one is in) there is no end game in rights work. Benjamin described the Angel of History to have its face “turned towards the past. Where we see the appearance of a chain of events, he sees one single catastrophe, which unceasingly piles rubble on top of rubble . …..But a storm… drives him irresistibly into the future, to which his back is turned, while the rubble-heap before him grows sky-high. That which we call progress, is this storm."

It seems to me that rights advocates, including sexual rights advocates, need to assume the rights claims will change with use—and seek to see a kind of aliveness in social and political engagement, not success or victory as a single point . To treat rights work deontologically rather than teleologically. And to give it a rest just sometimes. We are in history, not the end of it.

Alice M. Miller is Co-Director, Global Health Justice Partnership of the Yale Law School and the School of Public Health and Assistant Clinical Professor, Yale School of Public Health. You can reach her by e-mail at alice.miller at yale.edu

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