3

Human rights theory as solidarity

Jos-Manuel Barreto
The state of mind is that of
passionate sympathetic contemplation (),
in which the spectator is identified with the suffering God,
dies in his death, and rises again in his new birth
F.M. Cornford,
on the meaning of the word theory in the Dionysian cult
I have had no other interest but this:
to liberate [the Indians] from the violent deaths
which they have suffered and suffer
through compassion at seeing multitudes of people
who are rational
Bartolom de las Casas, in his will

Lets formulate some questions that are important for those who are engaged
in making theory of human rights but which are rarely thematised: Why do
legal theory? Why are scholars interested in elaborating a theory of human
rights? A number of answers come to the tip of the tongue: in order justify and
advance the cause of human rights; as a way of fulfilling political or ideological
commitments; as a result of a commitment to justice or to the enforcement of
rule of law; to learn about the phenomenon of the law; because it is part of the
business of the academy; out of a professional duty and as a way of earning a
living; due to the pleasure of fiddling with theories and abstract thinking. It can
also be the consequence of the combination of some or all the above motives.
Above all, lets try a different track to answer these questions. Baxi has
complained about how recent and sophisticated Western theories of democracy
and human rights ignore the materiality of the violation of human rights or the
voices of those who suffer, in a well-established feature of academic common
sense that he describes as the cruelty of theory (2002, 14). In a similar way,
Horkheimers critique of Kantian morality did not only attack the metaphysical

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CONTEMPORARY CHALLENGES IN SECURING HUMAN RIGHTS

way of thinking but it also pointed to the theorists themselves. Horkheimer did
not criticise the metaphysical forgetting of being as Heidegger did, but the
immoral character of the forgetfulness of the suffering of the wretched of the
earth and their struggles in history (Brunkhorst 1993, 78). For Horkheimer,
metaphysicians and theorists are scarcely impressed by what torments
humanity and, while their reflections on history and society are irreproachably
objective, suffering or even outrage over justice, or sympathy with victims are
foreign to them (Schmitt 1993, 29).
This inability to look at those who suffer and the retreat of philosophy,
critical legal theory and human rights theory from the scenes of the battlefield
has to do with their immersion in the intellectual modern culture. A theory
indifferent to suffering and obsessed with objectivity or justification is just the
expression of the platonic and modern conception of philosophy as theory of
knowledge or epistemology. In modernity, to think philosophically supposes
a search for objectivity for the conditions that must be present to ensure
knowledge can aspire to truth. The question confronting the philosophical
effort is that of how the subject can get access to the object in such a way that
ideas or concepts attained during this process apprehend the object as it is. This
was the hegemonic form that philosophy adopted from the historical dawn of
modernity. Having its remote antecedents in Plato, philosophy as epistemology
acquired a dominant position with the emergence of transcendental
subjectivism. Philosophy dwelled and remained imprisoned within the vicious
circle of the relationship between subject and object, which constitutes the
plane inhabited by the doubts of Descartes cogito that aspires to certitude. It
is in this realm that the subject takes distance from the empirical world and
from common sense and advances towards the transcendental pure a priori, as
in Kant. This is also the case of the sphere in which Hegels dialectic between
subject and object occurs and leads to absolute knowledge.
Later, in the context of the 20th century Anglo-North American
philosophical tradition, a survey of the ways in which philosophy developed
under the Neo-Kantian hegemony shows philosophy as consisting basically
of conceptual analysis, explication of meaning, examination of the logic
of language and of the structure of the activity of mind (Rorty 1979, 12).
In all of these forms of philosophical work, it is also the question of truth
and meaning that drives the task of thinking. Thus, the way of thinking
inaugurated by the Socrates-Plato partnership, re-launched by Descartes and
pursued by Neokantian analytical philosophy, marks modern philosophy with
its epistemological character (Rorty 1979, 15664).
In the human rights arena the epistemological ethos of modern philosophy
turns, as in Kant, into a sustained reflection on human dignity, which is deduced
from the universal maxims that rule human conduct, namely the different
instantiations of the categorical imperative. Turning from anthropology to
pure reason, ethical norms are reached by a process in which moral reason takes

HUMAN RIGHTS THEORY AS SOLIDARITY

15

distance from any empirical experience. This metaphysics of morals guarantees

the construction of a priori laws, which are necessary and universal and
therefore are to be obeyed by all (Kant 1978, 56). In one of its formulations,
the imperative of pure practical reason prescribes that human beings should
never be treated as means alone but also as ends. The consequence derived from
the categorical imperative is the principle according to which being human is
to be understood as an end-in-itself. This principle sustains the dignity of all
human beings that, in turn, becomes the foundation of human rights. The
epistemological orientation of modern philosophy has also led the tradition
to conceive of the theory of rights as conceptual analysis, in order to make the
concept of human rights clear and to define their meaning (Freeman 2002,
2). It also points to an engagement with the truth of human rights, namely
with a reflection on topics such as the characterisation of human nature, the
existence itself of human rights and the definition of what precisely they are
(Donnelly 1985, 1).
Rorty believes that the task of thinking should rest on our relations with
other human beings and should not be constructed in terms of our relation to
non-human reality (1985, 25). Platonism and Kantianism have weakened the
ability of our culture to listen to outsiders and to be sensitive to those who
are suffering (Rorty 1991a, 13). A philosophy overwhelmingly concerned
with truth and epistemological subjectivism distracts or distances us from
our fellow human beings and blurs our sense of solidarity (Rorty 1999, xv).
This is due to the fact that our readiness to note and to become involved with
those subjected to pain and humiliation is not cultivated or simply neglected.
When philosophy consists basically of a reiterative formulation of metaphysical
or epistemological questions, it is natural to forget or to relegate human and
social suffering as secondary matters, assuming that they are just appearances
or the product of a common sense way of looking at the world (Rorty 1996a,
74). In this intellectual climate suffering becomes an odd topic or even a nonphilosophical theme.
Rortys critique of Platonic and Kantian epistemological philosophy
supposes a prioritisation of ethics over theory of knowledge, and the inclusion of
the quest for knowledge within the ethical endeavour. In a move that resembles
Levinas priority of ethics over ontology, Rorty asserts a precedence of ethics
over epistemology: knowledge is basically orientated by an ethical and political
interest in solidarity (1991b, 24; 27). The specifically epistemological duties
of a philosophy as solidarity are those of putting together and generalising
our intuitions, always with a practical aim, which in some cases could be that
of how strengthening the self-awareness, power and efficacy of human rights
culture (Rorty 1994, 117).
Rorty attempts, as Dewey did before, a critique of the vision of philosophy
as theory of knowledge out of a longing for less cruel and less unjust societies
(1979, 13). Anti-foundationalism is, in this sense, a move from philosophy

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CONTEMPORARY CHALLENGES IN SECURING HUMAN RIGHTS

understood as epistemology to philosophy understood as solidarity. In this

framework, objectivity is not the goal of inquiry but the alleviation of the pain
others are enduring. The force driving the intellectual adventure is not that
of a quest for truth, a love for knowledge, a will to know or a desire for an
epistemology (Rorty 1979, 163). Rather, it is an impulse or desire for solidarity
(Rorty 1991, 21), for answering the plea of fellow human beings. Our impulse
to think and the spontaneous inclination to do philosophy or legal theory
come from our openness to strangers, from a concern, a preoccupation or an
intuitive apprehension for those who are victims of violence. That openness
allows us to be witness to the suffering of others and to cultivate inside us
a fellow feeling (Rorty 1979, 9). In this perspective the pursuit of freedom,
solidarity, and human rights and the struggle against oppression, humiliation
and cruelty are the forces driving philosophical inquiry (Rorty 1989, xiii).
The ethics of sympathy developed within the ambit of Critical Theory
can also be drawn into this discussion on the nature of theory. If the basic
interest of Critical Theory is, according to Horkheimer, that of striving to
reduce suffering (McCarthy 1993, 138), theory acquires an ethical drive and
takes the form of an existential judgement (Brunkhorst 1993, 72). It is said
that Adorno was also close to this impulse, as sympathy with the suffering of
the victims of violence acted as motivation of his thinking (Morchen, cited in
Garcia-Duttmann 2002, 6). If the experience of individual suffering is at the
basis of social criticism (McCole 1993, 18), then the main object of theory is
not the search for truth but rather the practical aim of the alleviation of pain.
But again, such an object is not defined in abstract or rationalistic terms: the
relief of the suffering which is human, both individual and social, and that
of past, present and future generations becomes the teleology of morality
and theory, and the political motive of the critical theorist.
The idea of philosophy as solidarity has, as a consequence, a partisan
conception of philosophy. In an epistemologically orientated theory the subject
is in front of the object society or the world and just in front of it, being
in this way a spectator. To step outside or to remain at a distance from the
society with which we are dealing is assumed to be a necessary condition for
objective knowledge. This would allow the analysis of a particular society from
a universal or transcendental point of view. This does not occur in a philosophy
built out of a feeling of sympathy or solidarity. In this scenario, the one who
knows is a participant who reflects upon the situation and acts upon it (Rorty
1979, 1819). Those developing theory are engaged in a relation with those
under scrutiny, occupied in learning how to deal with the situation in which
others are involved, and eager to make a contribution to that community.
Theory is conceived of as cooperative human inquiry and the Neopragmatist
philosopher is seen as a partisan of solidarity (Rorty 1991, 21; 24) as
somebody who serves the community (Rorty 1996b, 17).

HUMAN RIGHTS THEORY AS SOLIDARITY

17

The implications of such a conception of philosophy are present in Rortys

theory of human rights. Human Rights, Rationality and Sentimentality, Rortys
only piece entirely dedicated to reflect on human rights, begins with the image
of a Muslim man being physically and psychologically destroyed on the orders
of his Serbs captors in Bosnia. This text later develops into a meditation about
long term cultural strategies that ensure this kind of atrocities do not happen
again. In a more traditional tone, Michael Freemans Human Rights begins with
a story about the fate of a Pakistani teenager who is raped, handed by the
police to her family and finally murdered as a punishment for dishonouring
her tribe. Maintaining that the analysis of the concept of human rights must
be combined with a sympathetic understanding of the human experiences to
which the concept refers, and assuming that we sympathise with the victims,
Freeman goes on to develop his chapter on Thinking about Human Rights (2002,
23). In a similar sense Costas Douzinas describes his The End of Human Rights
as a critique of legal humanism inspired by a love of humanity (2000, vii).
The rhetorical devices used here to begin the analysis give us a clue about the
origins or the compulsion that leads the theorist to think about human rights
in the first place.
Rortys Neopragmatism ends up as being a philosophy of solidarity as
hope, freedom and human rights substitute knowledge, truth or objectivity as
guides of thinking (1991, 33). Theory is not created by a love of knowledge. It
is openness to others and a desire for solidarity that makes us to think of rights.
The theory of human rights is developed by theorists witnessing the pain of
others and out of a desire to reduce their suffering. The human rights scholar
wants to get involved and to intervene, and to take the side of the victim of
all victims against all perpetrators. To be in front of those who are victims of
cruelty, humiliation and oppression, and to look at the face of those who suffer
are the experiences that give birth to the theory of human rights. Theories in
general and legal theory in particular are consequences of sympathy. Human
rights theory is solidarity.

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CONTEMPORARY CHALLENGES IN SECURING HUMAN RIGHTS

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