Liberalism is no longer suitable as the principle philosophical foundation for human rights thinking.
Violence against women – including assault, mutilation, murder, infanticide, rape and cruel neglect – is perhaps the most pervasive yet least recognised human rights issue in the world.
For human rights to be legitimately universal, their ontological claims, or their ‘givens’, must reflect a fixed and accessible reality. They must locate values which are meaningful to everyone at any given time. They must also apply universally by appealing to the ‘fundamentals’ of ‘human nature’. Therefore, human rights, as a practice of international politics, should locate a singular, universal morality by which to live by and should apply universally to any given life that is taking place today and in the future. In this essay, particularly drawing on the work of V. Spike Peterson (1990) and Veronique Pin-Fat (2000, 2010), I will show that this is an (im)possible pursuit. There are fundamental presumptions which shape the normative order we promote and, in varying degrees, practice. The ethos at the centre of this essay is made clear by V. Spike Peterson when she claims that ‘becoming conscious of deep structure assumptions enable us to recognise and critically examine patterns at the surface level of concrete manifestations’ (Peterson (1990:304). By understanding what we have incorrectly presumed to be universally true we are able to challenge the resulting practices. Specific to this essay, by exposing a ‘masculine’ focused gender dynamic within the presumptions of human rights discourse it becomes possible to explain why some people are not entitled to the same rights as others. Moreover, by destabilising the supposed universality of human rights we politicise their formation giving those who are currently silenced and ignored by human rights discourse a chance to speak.
This essay is therefore an attempt to expose the theoretical foundations of human rights as gendered. It will show that universal claims within human rights discourse are actually illusionary and rely on the exclusion of political difference and that it is this process which occurs across gendered lines. In order to do this it must be shown that human rights contain a masculinist ontology – an understanding of human nature imposed by taking the standpoint of men (more specifically elite, white men) as generic where a male-as-norm position is taken feminine existence is ignored. For the purpose of this essay I would like to break down this critique of human rights as masculinist by taking three areas which make up their ontology; these are ideas about ‘the individual’, ‘human nature’ and ‘rationality’ which construct our dominant notions of human rights. By focusing on the limitations of the ontology of human rights I hope to go some way to explain the methodological and epistemological failings which follow.
The Individual – securing masculine domination
Human rights are based upon a liberal notion of the individual. Feminists from different backgrounds have made significant attempts to show that this individual is ‘masculine’ (Pateman 1989, Nash 1998, Peterson 1990). It follows from this that governmental structures based upon a ‘masculine’ individual must be ignorant or aggressive towards difference. Kate Nash provides three ways in which to understand ‘masculine’ that are useful here. Firstly, it may refer to a desire to become detached and judge by rational universal principles. Secondly, it may refer to the way differences in the way the sexes have been historically positioned; as mothers or breadwinners for example. This positioning is often antagonistic concerning differences between men and women. Finally, it may also mean ‘masculine’ by association with ‘man’ or ‘men’ within the theory itself (Nash 1998:29). I will now use these three ideas in conjunction with the scholarship of feminists seeking to expose the gendered structure of the individual while referring, in a more focused way, to the ‘masculine’ individual with international human rights discourse.
Seyla Benhabib provides a critique of classical contract theorists who wish to express the individual as an ‘autonomous self’ totally detached from context in which they exist (Benhabib 1987:159). She argues that we see this desire in Hobbes when he wishes to imagine the world in a way that women’s existence disappears from the picture. Hobbes states ‘let us consider men… as if even now sprung of the earth, and suddenly, like mushrooms, come to full maturity, without all kind of engagement to each other’ (Benhabib 1987:161). By theorising the world in this way Hobbes is able to separate sons from their mothers and free them from any form of biological or social dependence on ideas of femininity. This critique is not limited to Hobbes, it is apparent in the scholarship of many liberal theorists. An ‘ideal observer’ utilised by David Hume (amongst many others), ‘categorical imperative procedure’ undertaken by Kant, an ‘impartial spectator’ in Adam Smith’s work, Rousseau’s ‘general will’ and John Rawls’ ‘original position’ all suggest a desire to wish away context and establish a certain position as somehow ‘impartial’ when in fact they rely on the exclusion of difference (and most often require the silence of women).
Peterson argues that this critique follows through into human rights discourse. She states that a human rights model ‘presupposing atomistic individuals with equal potential for rationality is congruent with the autonomous moral agent of Kantian justice’ (Peterson 1990: 304). It could therefore be argued that the individual subject of human rights therefore relies on the exclusion of feminine difference in order to appear universal. This idea is prominent in the work of Veronique Pin-Fat. In what she terms the ‘(im)possibility’ of universal human rights she argues that all ‘universal’ thought relies on the subordination, but never quite separation, of difference. Drawing on the work of Derrida, she argues that this difference will always haunt principles which are established as universal; meaning that they are always doomed to conjunctive failure. This is because they do not depict an objective reality but a particular discursive one constructed through language at the expense of alternative thought. The ‘universality’ of human rights rely on the ability to maintain the facade that they are ‘impartial’ and ‘objective’ which, in turn, relies on the silencing of all bodies associated with difference. If all those who are subordinated remain silent then the regime appears balanced and fair. It is only be exposing the gender dynamic within human rights that they can be challenged.
The liberal individual has been critiqued as ‘masculine’ by feminists because it has been associated with roles that have been limited to the possession of men. The individual of modern political theory is invariably a head of household, traditionally a position that only men have held (Nash 1998:30). Also, qualities such as ‘rationality’, ‘independence’, ‘public’, ‘political’ and ‘civil’ are associated with masculine behaviour while femininity has traditionally been associated with their binary opposites. The construction of men as possessors of these qualities make them appropriate political subjects while women are more likely to be seen as dependants or completely ignored. John Stuart Mill defines labour as a contract between two free and equal individuals. Gatens critiques this understanding as exclusionary because this is an understanding of wage relations which cannot be applied to the work that women carry out in the home (Gatens 1992:36). Through his grammar, Mill has presumed that unpaid labour by women is a natural precondition of wage-labour outside the home (Gatens 1992:34-9). Without this presumption the existence that Mill theorises would not be possible.
The priority of ‘civil and political rights’ in human rights literature relies on the same presumption of John Stuart Mill and many other classical liberal theorists. For example, the Universal Declaration of Human Rights (UDHR) defines the family as entitled to ‘protection from society and the state’ (Parisi 1998: 145). This statement confirms the complete privacy of the family from international justice. This is arguably a gendered process because it is within the family that many women are abused; whether through battery, rape or domestic servitude. Feminists have claimed that civil and political rights therefore provide no protection for women who face violence in the private sphere; women’s existence is ignored and made invisible (Mackinnon 2007:43). The unequal and ‘inhuman’ treatment of women in the private sphere allows men to enjoy their relative freedom and respect in the public sphere. The individual, in practice, is male because a significant body of human rights can only be claimed by those who function in the public sphere (MacKinnon 2007:9).
Defined Against the Feminine
Just as a particular understanding of ‘masculine’ is reliant on a corresponding understanding of ‘feminine’, an understanding of the word ‘individual’ finds its meaning in relation to other words. Within this understanding the ‘individual’ is an empty signifier like all other words. Poststructuralists have shown that there is no metaphysical meaning beneath language and therefore meaning is always discursive and attempts to fix definitions are political and exclusionary (Pin-Fat 2010: ch.6). All attempts by liberal theorists to define the ‘individual’ as masculine are political moves based upon the exclusion of another. Since the scholarship of Simone de Beauvoir feminists have been keen to expose this strategy. De Beauvoir stated that ‘he is the subject, he is the Absolute – she is the Other’ (De Beauvoir 1974: xix). Taking up this position Carole Pateman states that for classical liberal theorists ‘men alone have the attributes of free and equal ‘individuals’… women are born into subjection’ (Pateman 1988:41). Taken together we see the idea that men’s civil freedom is reliant upon women’s private subordination and that men’s status as ‘individual’ relies upon women’s status as ‘other’. The notion of the ‘individual’ in its current form is premised on women’s exclusion.
Under feminist analysis this relationship of masculine dominance and feminine subordination is clear within definitions of citizenship in human rights. Charlesworth argues that the structure and institutions of international legal order set up under the United Nations reflect and ensure ‘the continued dominance of a male perspective’ (Charlesworth in Peters 1995:104). This argument is supported by statistics which suggest that women are either unrepresented or underrepresented in national and global decision-making processes and are often restricted to insignificant and subordinate roles (Charlesworth in Peter 1995:104). Male domination of human rights discourse has meant that the focus when constructing what counts as a human right has been issues that affect men while ‘women’s concerns’ reflect a distinct and limited category. Within the most significant human rights declarations, courts and international political organisations women’s rights are ‘othered’ to human rights. Human rights are gendered because they rely on particular notions of masculinity in order to fill them with meaning while denying the existence or the importance of over 50 percent of the population. As Peterson argues, human rights are ‘gender specific’ in a world where they can’t afford to be (Peterson 1990:306).
Human Nature – Being (hu)man
In order to establish a fixed notion of ‘human rights’ we must make specific assumptions about ‘human nature’ and we must adopt a particular ontology concerning the social make-up of the political subjects and relations with ‘others’. This is problematic, however, because when we do this we establish particular formations of power as natural and unquestionable and therefore depoliticised. Although this is a poststructuralist feminist position, radical feminists have also tried to show that no element of human rights is ‘impartial’ and that ‘behind all law is someone’s story – someone whose blood, if you read closely, leaks through the lines’ (Mackinnon 1993: 84). Here we see relative unity (at least for feminists) over the idea that claims to impartiality and objectivity are authoritarian and rule out ways of thinking differently. Deconstructing ‘human nature’ involves feminist questioning into how the particular representation of the ‘human’ is constructed and at who’s expensive (Pin-Fat 2000:669). Postpositivist feminists have been particularly active in attempting to explain how it is the things that are taken as ‘given’ which rule out women attaining human rights and overcoming oppression (Peterson 1990:303). This position has been communicated in many different ways, for example, Mackinnon argues that ‘human rights principles are based upon experience, but not that of women’ (Mackinnon 1993: 84). It has been argued, therefore, that human rights rely on a simplistic gender binary which excludes women.
How the dominant culture seeks to represent their lived reality constructs the ‘official’ version – the norm – by which all alternatives are assessed (Peterson 1990:217). This generates an A/Not-A model in which deviations from the norm are subordinated. Anything associated with Not-A may be punished, rejected, found amusing, ignored; Not-A is never given the same respect as A (Prokhovnik 2007:12-25). The power of the idea of ‘human nature’ is therefore in naming. Defining one’s social reality in one’s chosen image is a political move which has detrimental effects on all other alternative ways of understanding and describing how we ‘really are’. Not-A is silenced by the dominance of A’s representations of self.
This has led postpositivist feminists to claim that men have illegitimately claimed the right to define a singular ‘human nature’ and in doing so have taken control of all structures which pre-ontologically accept this masculine ‘human nature’. In Okin’s extensive review of Western political theorists, such as Aristotle, Aquinas, Machiavelli, Locke, Rousseau, Hegel and others, she argues that men are defined in such ways that overlap with the ways we prefer to understand human nature while women are defined against them (Okin 1992). For example, Kant’s model of moral agents is based upon ‘rational beings’ where women ‘lack these humanly essential characteristics’ (Okin 1992:143). Kant defines women as unable to think logically while simultaneously associating humanity with rational thought. By doing this he establishes women as ‘inhuman’; contrary to the values with associate with humanity. More explicitly Kant states that women ‘do something only because it pleases them… I hardly believe that the fair sex is capable of principles’ (in Okin 1992:152). Women are characterised as not only inhuman but also unqualified to be rights holders.
The adoption of this position is often not obvious in the ‘gender-neutral’ treaty language (although sometimes it is). It is much more obvious, however, in the practice of international human rights. When women are abused in ways that are unique to women human rights legislation does not seem to apply (Mackinnon 2007:32). This is, arguably, because human rights are defined upon a human nature that is only applicable to men. Whereas men have great reason to fear their political and civil rights being violated in the public sphere they have much less reason to worry about being trafficked as sex slaves, forced motherhood, domestic servitude and other offensive which often occur in ‘private’. This is why human rights have often done very little to help women in these circumstances. The presumptions of the men who constructed human rights based upon what they thought counted as important to humans render the lives of women ‘inhuman’. The (mis)treatment of women in human rights follows from their status as oppositional and inferior to men and therefore their identity as bodies which are not worthy of respect.
The idea that international human rights are gendered becomes apparent when we start to think in alternative ways; many which are not possible through mainstream analysis. For example, we may ask: how do human rights protect humans from gender based violations? What we find is that no international crime recognises what Andrea Dworkin calls ‘gynocide’ or what Dianna Russell and others call ‘femicide’ – the destruction of women as women (Mackinnon 1997:192). This is a practice that occurs in reality and yet is absent from law. The power of the law lies as much with what it is able to ignore as what it is able to focus upon. Although international law may not actively support violations against women, by completely ignoring this it means that these violations don’t even count as human right offenses. If human rights legislation truly saw women as humans then surely they would be protected against sex-selective abortions, female infanticide, deprivation on the basis of sex, sexual abuse in childhood, rape, battering, dowry burning, ‘honour’ killings, homophobic violence, forced sterilisations, rape/death camps in war and prostitution as sexual slavery. In their current formation human rights do not explicitly or significantly address any of these issues. By only addressing concerns that men have within current practices of international politics these issues are not relevant to human rights. In the few cases where women are able to appeal to their human rights they are forced to appeal to legislation which doesn’t quite fit to the offensive committed against them (Mackinnon 2007: ch. 3).
Rationality – Rationalising exclusion
By exposing the historical contingency and conceptual inadequacy of a ‘universal’ concept of reason, feminists such as Raia Prokhovnik have sought to destabilise exclusive notions of rationality (Prokhovnik 2007:12-25). They argue that dominant ideas of ‘rationality’ in western political theory are gendered and rely on the exclusion of women. The target of their meta-theoretical criticism has been Cartesian dualism where the body and mind are theoretically separated and preference is given to the mind. The idea that the mind can become disembodied and disembedded reflects the broader notion that we are able to reject our political context and discover rationality in its ‘pure’ form. Although this may produce a set of principles that appear universal, they are not. Principles cannot be universal if they rely on the expulsion of difference. They are merely particular principles asserted as universal above all other alternative ways of theorising. Pin-Fat has also shown that the particular can never be truly separated from the abstracted principles and that universal claims will remain haunted by the particularity they wish to expel (Pin-Fat 2000).
Poststructuralist feminists have also attempted to show that this process is gendered. It is women who have generally been associated with particularity and context in which men must reject to find ‘pure’ rational principles. Traditionally, women have been associated with emotion while men are associated with rationality. This arrangement prevents women from being considered political agents while political agency is associated with rationality and therefore limited to men. The effect of both social practices around rationality, and ideas and discourses around reason, has been to discriminate against women and naturalise their subordination (Prokhovnik 2007:13). If this idea can be seen to permeate human rights discourse it can been shown that human rights make presumptions about gender that perpetuate women’s subordination.
Rationality and Human Rights
Richard Rorty explains how Serbian men were able to rationalise the torture and mass murder of Muslim men, women and children by distinguishing between humans and animals (Rorty 1993:112). By making claims that Muslims are ‘animals walking about in humanoid form’ they are able to treat them in ways that they would never treat people they perceived as human beings (Rorty 1993:113). This type of behaviour is not limited to those wanting to torture and murder. You and I may try to understand the behaviour of the Nazis as ‘inhuman’ or refer to individual Nazis as ‘animals’. This is a way of supporting our particular notion of how humans should and shouldn’t behave. By condemning behaviour we don’t approve of as inhuman we ‘other’ it to our own principles based upon our own particular rationality. This also shows us that ‘human’ is not a universal term, at any time someone may be accused of being ‘non-human’ and therefore subject to treatment that someone categorised as ‘human’ would have to endure. There are also other ways of doing this. For example, if the British legal system decides that you may be a ‘terrorist’ you will be treated in ways that other suspected criminals aren’t. This may include more time spent in custody and zero contact with friends and relatives. The argument here is that how we define a person allows us to treat them in different ways. If they happen to be defined in a way that we dislike then we may be legitimately able to mistreat them, torture them or even kill them.
It is possible to show that the exclusion of women in human rights discourse has been rationalised. For example, the term ‘man’ has been used synonymously with ‘human’. Article 1 of the Universal Declaration of Human Rights encourages us to ‘act towards one another in a spirit of brotherhood’ (MacKinnon 1999:42). Article 23 demands that we pay ‘everyone who works’ and goes on to state that this ensures a life of human dignity for ‘himself and his family’ (Mackinnon 1999:42). By defining humanity as masculine, women are subtly silenced and excluded. They are at best treated as dependants while at worst treated as deviants. Sometime the androcentric basis of human rights is not so obvious but it can be readily inferred. While the declaration confirms that ‘everyone’ has a right ‘to take part in the government of his county’ governments are still overwhelmingly run by men. Overall, the explicitly masculine language of these statements is not gender-neutral; it is literal and refers only to men.
It has been shown that the ‘human’ in human rights legislation is gendered and reliant on exclusion in the same way the Serbian military’s definitions of the ‘human’ have relied on the exclusion of Muslims. Women’s exclusion from human rights is therefore based upon a particular rationality which works to represent women as antithetical to humanity. Treating the abuse of women and the lack of protection for women in human rights discourse as anomalous is a mistake. It is part of the dominant discourse and stems from a particular way of conceptualising gender where before one must first be defined as male before being defined as human (Lyotard 1993:136). Being defined as female or feminine places you in a position which means you are of no real concern to international justice. You are placed in a fixed position where you are associated with characteristics, such as emotion, which are ignored, rejected or reviled which must be contained in the private sphere. You are therefore subject to treatment that those associated with dominant characteristics wish to bestow upon you. The subordination of women in human rights is, therefore, not just an emotional hatred expressed through legal structures but also a rationalised discourse in which women are systemically and systematically defined in a way which supports their subordination.
This essay has shown that the ‘givens’ of human rights discourse reflect a particular gendered discourse rather than objective and impartial values. They neither supply a singular, universal morality nor apply to all humans universally. The assertion of this particular discourse as universal rules out alternative ways of theorising and silences all those who are excluded. The excluded, in human rights discourse, are all those associated with femininity. By taking a male-as-norm position, human rights confirm women’s oppression. Only by exposing the particular foundations upon which universal thought is established can we re-politicise the formation of human rights and engage in a constant debate aimed towards inclusive human rights.
It has been shown that the construction of ‘the individual’ is premised upon the exclusion of women. By asserting the rights of the ‘individual’ liberal theorists concerned with rights have been able to silence women from the beginning. Their ‘givens’ taken as pre-ontological facilitate the priority of values which are associated with masculinity which provides the grounding for a limited set of principles which reflect the needs and demands of men. Women, therefore, become ‘subject to’ rather than ‘subjects of’ human rights. Feminist critiques of a singular ‘human nature’ have shown that women have been defined as deviant and opposition to human norms. Humanity is constructed alongside a particular construction of masculinity while a binary understanding of gender ensures that femininity is associated with inhumanity. Finally, it has been discussed how women’s subordination is essential to the particular rationality proclaimed by human rights discourse. Women are stripped of ‘human’ status in the pursuit of particular men asserting their own principles as universal. Women’s discursive ‘difference’ complicates universal principles and they are ‘othered’. This produces principles which appear rational, impartial and universal when they are really particular and stabilised by the exclusion of femininity.