At last weeks first birthday workshop on human rights in Ireland, Fergus Ryan from DIT, suggested that the crucial problem for human rights activists in Ireland was that decisions at the ECHR or Supreme Court were seen as the end of the story, ignoring what he called the ‘cultural change’ necessary for successful human rights action. He argued that you cannot adduce this or that ECHR decision in a political argument and expect that to be the end of the matter. Rather, it is necessary for people to culturally buy-in to human rights. To this point, Mark Kelly of the Irish Council for Civil Liberties asked; how long do we have to wait for cultural change. I want to suggest that this discussion is crucial to understand the place of human rights in Ireland.

Perhaps the most significant and fundamental debate that has occurred in international human rights over the last twenty years is the question of culture. I don’t want to be overly reductive about this complex debate, but in the international texts this can be traced from two sets of rights; the first being cultural rights (ICCPR Art 27) which enshrine the protection of what Bourdieu called habitus. The second insertion of culture, in a more subtle sense, is in self-determination (ICESCR & ICCPR common Art 1). ‘A people’ is the subject of the right of self-determination. This ‘people’ however, is largely given an ethnic identity. What binds a people together is an affective bond of common value, shared history, and some sort of identification with a sense of belonging-together. In both of these renderings of a collective subject, culture forms the horizon of meaning. It is what people emerge from (acculturation) and what binds them together in order that they be sovereign (or at least self-determining). It is in this sense, I argue, that Ryan’s assertion should be understood. By culture I take him to mean the mores in which recognition of ways of life (from transgender people through to travellers) takes place. In his view then, human rights are about changing societal values and beliefs. Crucially, he argues that this change must come from within the society. I would fundamentally agree with this position. If human rights are seen as imposing a political change, then they run the very serious and very dangerous risk of being utterly rejected by the people of a state. In this, the legalism that sometimes defines human rights scholarship and even activism is very dangerous and potentially self-defeating.

However, and here is the nub of my argument. By framing this insight in terms of culture, Ryan imports a very curious set of assumptions, and a very difficult series of associations. Anyone that has read the academic debates on human rights over the last twenty years will be deeply familiar and I suspect utterly exhausted by the relativism debate. Relativism itself is an interesting philosophical position, however, the manner in which is has been taken up in human rights, both by those who proclaim themselves to be ‘relativists’ and by the ‘universalists’, is deeply problematic. At the heart of the debate is culture. However, it has always appeared to me that, all too often, it is the political frameworks and decisions of groups’ (defined often by their gathering under a state as much as by some sort of common ethnicity) that are rendered as culture. Ultimately then, while I agree with the underlying idea, I want to argue against Ryan’s assertion that we need ‘cultural’ buy-in. Rather, what is necessary is to change the terms of the discourse, to change the ground upon which politics happens. This is something that I referred to in one earlier post (in a philosophical sense) as ‘the political’ or in another as ‘the political imagination’. Human rights have the power to rupture the given political framework. They have a crucial role in rupturing  that which seems perfectly reasonable in the current hegemonic ideological framework.

What I want to get at today, however, is the fundamental correctness of Ryan’s diagnosis of human rights. While I quibble with the terms, the idea is more than sound. The goal of human rights must be to change the constitution of the political, rather than be successful in this or that case. A victory in a particular case either domestically or internationally is a powerful tool, however, this victory must be reinserted into the Irish political imagination which is a much more difficult job to do. This is the often forgotten and sometimes derided framework of the constitution. When the preamble says: ‘We, the people of Eire…’ it makes a point which is so often skipped over. While the religious (in the first and third paragraphs) and nationalist (of the fourth) overtones of the preamble are worthy of derision, the framework of popular sovereignty remains of the utmost importance and should not be understood simply in terms of periodic elections. The people is the source of all law and all authority. The idea of a referendum retains this structure albeit in an attenuated sense (see Negri, Insurgencies, Chapter 1), by asserting that only by changing the people may you change the constitution. I realise this may seem banal to any constitutionalist, however, the point is that as law, human rights are under the people.

The reason I take issue with the term culture in this sense is that it lends itself all too easily to Mark Kelly’s question: How long do we wait for cultural change? Ryan’s response to this is exactly correct, it is not a matter of waiting for a culture to change, it is a matter of making culture. However, I would add to this response; ‘But How?’ Given that vast swathes of theorists cannot agree on exactly what culture is, nor upon how it changes, it becomes clear that culture and cultural change is always just beyond our grasp, always ever so slightly too organic and anarchic to put your finger on. The political, even the political imagination, on the other hand is material. It is that within which politics takes place, it is the ground upon which political opinions seem reasonable. By shifting this ground, what is possible in politics itself changes. Equally, by terming it culture, there remains something of a naturalistic framework. Where culture, correctly, demands respect, politics demands disputation and the clash of ideas. By framing the change in terms of culture I suspect Ryan opens his idea to the passivity inherent in Kelly’s question. The possibility of human rights in Ireland, however, is precisely to rupture the given configuration of the political. It holds the possibility of gathering together counter-publics to resist the increasing role of religion in politics or the hegemonic neo-liberal economism.

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Written by Illan Rua Wall

Illan rua Wall is an associate professor in law at Warwick University, and author of Human Rights and Constituent Power: Without Model or Warranty (GlassHouse Press/Routledge). You can contact him at i.r.wall@warwick.ac.uk