The Right to Have Rights

Citizenship is often referred to, in the words of Hannah Arendt, as the right to have rights, a phrase central to chapter 9 of The Origins of Totalitarianism ("The Decline of the Nation-State and the End of the Rights of Man"). She was highlighting a paradox: that the universal declaration of human rights was meaningless outside of the context of the nation state, whose rights were limited to the national citizenry and therefore not universal. Though this is actually a conservative argument that originates in Edmund Burke's condemnation of the universal ambitions of the French Revolution, it struck a chord in 1951 in a Europe still awash with displaced persons and a world struggling to come to terms with the establishment of the state of Israel: a development that both crystallised the national rights of Jews and immediately deprived many Palestinians of their own rights. It was also a reminder of the failings of the interwar period, with the denial of rights to national minorities and the institutionalisation of refugees through Nansen passports, as well as a pointer to the way that the developing Cold War would centre polemically on the rights of dissent and democratic representation (though it's worth noting here how little contemporary tragedies such as the partition of India seemed to inform the debate around rights and citizenship).

The paradox that Arendt noted remains at the heart of today's discourse on rights, for example in the British tension between the European Convention on Human Rights and the nebulous ideal of a "bill of rights" that would be a particular expression of the national genius (itself an ambiguous concept in a multi-national state whose original Bill of Rights in 1689 was distinctly sectarian). Arendt's resolution of the paradox, insofar as she advanced one, was that no one should be denied the right to be a member of some political community - that they shouldn't be made stateless - as without this foundational right there could be no other rights. This made a sort of sense during the Cold War, when the denial of political rights often led to exile and asylum claims were treated sympathetically, at least in the context of movement East to West if not South to North, but in the present the right to have rights is increasingly a qualified right applied within the borders of a national polity. This highlights that the issue of rights is about something more fundamental and persistent than the statelessness that emerged with the fragmentaion of the old European empires after 1918.

The core of the rights entailed by membership of the national community - or, to put it another way, the supreme rights of citizenship - are political rights. But this presents a problem that has been present since the formalisation of the liberal ideal of citizenship in the 17th and 18th centuries, namely that these rights were never regarded as universal (and nor was democracy associated with universal suffrage until well into the twentieth century). Not only was the 1689 Bill of Rights explicitly anti-Catholic, but the US Constitution of 1776 famously excluded native Americans and slaves from the national community while the 1789 Declaration of the Rights of Man and of the Citizen denied full political rights to women and also failed to abolish slavery (though its claims to universality were still enough to inspire the revolt in Haiti). Olympe de Gouge, author of the Declaration of the Rights of Women and the Citizen, argued that if "Women have the right to mount the scaffold, they must also have the right to mount the speaker's rostrum". She never made it to the National Assembly but she did meet the guillotine in 1793. 

This discrimination in political rights is seen today not only in the tangible form of citizenship apartheid, as practised in Israel (both de jure in the 2018 Basic Law and de facto in the occupied territories), or an insistence that particular minorities prove their loyalty as citizens, as many across the political spectrum in France are now demanding. It also takes the form of the disciplining of citizens through restrictions on their national rights up to and including expulsion, as in the UK's 2014 Immigration Act and the current Nationality and Borders bill. Though such extreme measures may be rare in practice, the establishment of the principle of the "sovereign right of expulsion" - that the state can administratively deprive you of your rights such that the outcome is no different to being driven out of the country at the point of a gun - means that the lesser qualification of political rights, such as the denial of the vote to prisoners or the introduction of mandatory IDs at the ballot box, can be framed as modest hygiene measures rather than part of a more general programme that seeks to restrict democracy.

Jacques Rancière's 2004 critique of Arendt centres on what he sees as her questionable separation of the realms of the political citizen and the stateless: the presumption that those denied the rights of citizenship are thereby excluded from engaging politically, such that denationalisation equates to depoliticisation. This obviously rests on a narrow definition of the political, which may have been tenable in the 1950s but seemed too restrictive by the 1970s and the flowering of a range of activism (anti-racism, feminism, gay rights) that sought to intervene in society directly rather than via the vector of formal politics. Arendt's position has been rescued to a degree by those who emphasise that her understanding of statelessness centred not simply on the loss of political presence but on "world-loss", the loss of a sense of belonging in a human community, and that it is this that has been resisted by the growth of solidarity.  Another way of looking at it is that Arendt's own experience of statelessness (from 1937 to 1950) as a haute bourgeois German Jewish intellectual led her to see it in terms of individual exclusion and flight, to the detriment of a recognition that most exclusions affect entire communities and many do not even result in physical displacement.

While nation states continue to offer meagre support to refugees and asylum-seekers, and while social solidarity remains fitful - oscillating between sentimentality and disinterest, the activism of supporters is significantly better than it was in the postwar years precisely because it has moved on from charity and a pious humanitarianism to political engagement and thus the assumption of rights. Parallel to this, there has been an increasing recognition that groups within society, otherwise secure in their citizenship, face restriction and even outright curtailment of their rights in a structural manner that cannot be divorced from the operation of the state. For example, that "The key insight behind Black Lives Matters activism is, after all, that black Americans cannot depend on their government to guarantee them the standard legal protections routinely enjoyed by white citizens." Paradoxically, as the global population has become more mobile due to the opportunities of globalisation and the imperative of advancing climate change, the right to have rights has increasingly been discussed in terms of the qualification of citizenship rather than its supersession. 

It is not remotely likely that the UK government will deprive six million people of their citizenship, but it is restricting the rights of that number. The idea that such fundamental rights could be qualified or taken away entirely gives rise to a pervasive sense of insecurity. This may express itself negatively in xenophobia and a lack of sympathy for refugees, but the causes are more to do with a fraying sense of social identity and the precariousness of employment and public services. A good example of this, and the anxieties it gives rise to, is the NHS. Being "free at the point of use" traditionally meant that it did not concern itself with the entitlement of those who sought its help. The introduction of an entitlement test, and the associated charging (more performative than effective), was partly driven by the creeping markestisation of the health service, but it also reflected the turn towards the idea that the NHS was the restricted right of the national community rather than a service operating on the principle of common humanity - i.e. that you had to be a legitimate citizen, not just a person in need of medical assistance. 

For a long time after 1945, rights were seen as a defence against the encroachment of the market into social relations. Not only could rights not be bought or bartered, but the realm of rights was conceived as being distinct and inviolable. Arendt's concern was that this realm ultimately depended on the nation state rather than any common humanity or the UN's hopeful declaration. The stateless were doubly disadvantaged - lacking rights and the right to have rights - but they could achieve rights once they crossed the border into citizenship. But this conception of a limited but secure realm of rights has given way under neoliberalism to an interpretation of rights as conditional privileges within the nation state. Universal human rights have not disappeared, but they are increasingly marginalised as someone else's concern ("We should look after our own first"), while their invocation has been reduced to a justification for military intervention by the West or a means by which the West ritually criticises other nation states for their "abuses". 

The idea of conditional privilege is a return to classical liberal thinking in which universality is no more than a rhetorical flourish that obscures a deliberate discrimination between the worthy and the unworthy, even when the latter are nominally included in the national community, such as women then and dual passport-holders now. This means that we have eroded the right to have rights. We may have and be able to exercise rights, but we no longer possess an absolute right to do so. That is because citizenship is now a privilege rather than a right, and a privilege that can increasingly be bought by the rich, and not just in the UK but in many countries around the world. Ironically, what is becoming universal is not the rights of man (or woman), but the privileges of wealth. The old ideal of a world state is slowly becoming a reality, but it will be a supranational state in which citizenship is strictly limited on an invitation-only basis. As Bong Joon Ho, the Korean director of the film Parasite puts it, "Essentially we all live in the same country called capitalism".