Author: Ronan Duff
In his account of the trajectory of utopian thinking, The Story of Utopias, Lewis Mumford observed that “[m]an walks with his feet on the ground and his head in the air; and the history of what has happened on earth… is only one-half of the Story of Mankind.” While etymologically utopia may be ‘nowhere’, Mumford asserts the importance developments in this parallel reality have on our own, as “[n]ews from Nowhere is real news.” For Mumford, the realm of utopian ideals holds as much sway in the prior and continued path of human history as any influencing factor in the realm of the mundane. The realm of utopian thinking is the realm of ideological conjecture and progression and, as such, within this scope half of history may be observed as the history of utopias, in their underlying direction and propulsion of social development.
Francis Fukiyama infamously asserted an end to history’s journey in this ideological sense in the oncoming arrival of a global liberal utopia, envisioned in his controversial The End of History; an arrival sighted in the oncoming collapse of the Soviet Union, symbolically marked by the fall of the Berlin Wall in the year of his essay’s publication. Drawing upon the Hegelian dialectic, Fukiyama’s assertion envisions the homogenisation of the utopian realm that Mumford identified, now occupied solely by the Western model of liberal democracy. In this view, the ostensible global threat posed by communist ideology appears to have withered with the totalitarian socialism of the Soviet Union. Thus, for Fukiyama, the alleged lack of any practical ideological challenge to its global status effectively renders liberal democracy’s purportedly perfect balance of liberty and equality thesis without an antithesis, thus dispelling any possibility of its synthesis and any ideological continuation beyond liberalism. Despite the multitude of detractors to this thinking, for Fukiyama liberal democracy’s ascendancy as the final global ideology marked our arrival at the last utopia, for better or worse.
Samuel Moyn’s The Last Utopia alludes to a similar final arrival, though narrowing its scope of analysis from global ideological history entire to the sphere of human rights law. In Moyn’s view, the firm establishment of human rights as a central and irrefutable concept within the legal-political sphere marks a similar ideological stopping point. Moyn argues that the social movement from which the legal and political principles of human rights emerged was built upon the ruins of prior pes, following the collapse of their predecessors and competitors. Human rights are themselves classified in utopian terms by Moyn in their evocation of “another, better world.” In Moyn’s theorisation of the development of human rights the historical markers which Fukiyama identified as indicators of liberal democracy’s victory, predominantly the collapse of the Soviet Union and the subsequent reception of former Soviet states into the global democratic realm permitted by the disintegration of the Iron Curtain, instead serve as the ruins from which human rights emerge and spread. While for Fukiyama these events served as indicators for liberalism’s ideological victory, in Moyn’s conception these events served as “catalysts for the explosion” of human rights as, amid the anxiety of this period, the utopian vision of human rights proved an attractive goal: a “minimalist, hardy utopia”. A utopia which could be attained within and weather the collapse of the prior utopias from which it emerged, thereby “leaving behind political utopias and turning to smaller and more manageable moral acts.” Thus, Moyn argues, from these origins human rights have therefore homogenised their realm of ideological dialogue to become the “core language” of legal and political discourse, which in their extensive usage across the political field have therefore “sapped the energy from [the] old ideological contests” which preceded them. In so doing rights have thus marked a halt, or “ferment,” in utopian thinking in their suppressive effect upon all alternative avenues of utopian thinking.
Yet while his vision of a last utopia may bear similarity to Fukiyama’s in its expression of a finality in global thinking, Moyn’s conception of human rights as “the last utopia” crucially eschews the historical determinism with which Fukiyama presented his final utopia. Moyn’s vision of human rights’ emergence in the 1970s argues against the myth of deep roots which sources human rights’ beginnings further back in the development of history and thus presents their arrival with an air of pseudo-Hegelian expectancy. Moyn also argues against the historical certainty of this emergence, attributing it instead to choice and accident rather than any pseudo-Hegelian model of development. Thus, as Susan Marks observes, in this theorisation “[Moyn] wants us to understand the ascent of human rights as not just more recent, but also less inevitable, than is commonly supposed.” This strive against such deterministic assumptions is exhibited clearest in Moyn’s open statement of uncertainty that, should human rights in their critical assessment be “found wanting,” then another utopia may be sought to take its place. Moyn’s heralding of a last utopia is not celebratory, as Fukiyama’s was, but rather diagnostic in its observance of our ideological stagnation. Moyn’s last utopia thereby envisions the possibility, and potential necessity, of a world beyond itself, outwith its own ideological boundaries. Lenses through which we might observe these boundaries emerge in the rights theory of Karl Marx and Jacques Rancière, each offering differing avenues of critique with which to direct our conception of the now-global presence and effect of human rights. Critique which, in turn, enables utopian thinking outwith the limitations of the last utopia within which we have found ourselves entrenched.
Similarly to Fukiyama and Moyn’s approaches to liberal democracy and human rights respectively, Marx envisions a historical endpoint in communism. While Fukiyama and Moyn give accounts of history marked by utopias, Marx theorizes otherwise, instead asserting that “[t]he history of all hitherto existing society is the history of class struggles.” History, within the Marxist view, is thereby brought to an end by the arrival of communism, in its “freeing of the whole of society from exploitation, oppression and class struggles” which mark historical evolution. While whether this posthistorical end is similarly utopian in its conception has been the subject of much debate, Marx nonetheless envisions a world beyond the economic interests which underlie Fukiyama’s last utopia.
In keeping with his materialist method developed in The German Ideology, Marx’s critique of rights therefore keeps its focus upon the subject of the rights it examines. This subject, Marx argues in On the Jewish Question, is effectively divided into two through the exercise of their rights within the political state, as each individual then leads a double existence through the separation of each individual’s private and political existences through the abstraction of the former at the hands of political existence. Drawing upon Rousseau’s theory of political abstraction, Marx argues that interaction in the political sphere through rights serves to deprive individuals of their real powers in exchange for alien powers which require society in their use. This alienates individuals from their agency and relieves the political realm from involvement and responsibility in any material suffering within the private corporeal life of the individual. Thus while Marx nonetheless recognises rights as “a great progress,” this progress is only to the very limit of the freedom which can be achieved within the present world order.
Marxist critics such as Susan Marks have been quick to apply Marx’s rights critique directly upon the present system of human rights. On Moyn’s vision of rights and their ascendance, Marks argues that Moyn’s vision of rights and their ascendance omits one key factor: the parallel ascendance of private capitalism. As Marks argues, the consolidation of neoliberalism was facilitated by the “non-political creed” of human rights, one which complimented the privatisation and deregulation central in liberalism’s functioning. Costas Douzinas elaborates on this point, arguing that human rights are a “necessary companion” to the global functioning of economic capitalist production and consumption, in their construction of freedom as in the absence of interference, an absence which Douzinas deems euphemistic for the limited state economic regulation central to neoliberalism. Thus, human rights through the Marxist critique serve to maintain economic interests through their limitation on any organisational challenge to the functioning of capitalism. This is visible in examples such as the ECHR’s “political” application of Article 11 as permissive of the “elaborate and burdensome” restrictions on political strike action held in the Trade Union and Labour Regulations (Consolidation) Act 1992 in RMT v UK. As such, through the lens of the Marxist critique of human rights, the final utopias of Moyn and Fukiyama emerge fundamentally entangled.
Yet while the Marxist critique of human rights may provide a cogent critique of the application of present rights frameworks, this stretch hasn’t been without strain. There is significant disparity between the context and nature of the system of rights which Marx critiques and the present-day global system of human rights. Moyn notes this disparity in his response to Marks critique of his own rights theory, arguing that international human rights have since “broke in fundamental ways” from the application within the statist model which Marx focused upon. Furthermore, Marx’s critique of rights engages with human rights in the form of the droits d’homme and citoyen as held in the Declaration of the Rights of Man and Citizen, a text which, Marx notes, fundamentally formulates rights in relation to personal liberty and the protection of one’s individual property. Yet in their modern conception, human rights are presently more associated with and applied to the end of alleviating suffering across the globe than with the protection of property rights, for which contract and property law has developed to oversee. Given these connective failings, the Marxist critique of rights “falls silent when it comes to the specificities of our problem” thus requiring significant work to be made on the part of Marxist legal theorists in applying Marx’s writings to assert and critique such a codependent link between human rights and global capitalist interests. While Moyn concedes that the connection argued by Marks and others is indeed possible, he nonetheless argues that it remains far from obvious, and thus Marxists must work to “build rather than assume” such a connection.
Yet even if such a connection is made, the mere realisation of it through the Marxist lens does little to actively alleviate the inequality it perceives, nor to provide any method with which to actively push towards the posthistorical Marxist objective beyond the liberal capitalism it critiques. As Moyn argues, “the mere act of criticizing human rights does little to provide useful alternatives” to present rights systems. While through the continued efforts of Marxist thinkers to apply it to present-day human rights a Marxist critique of rights may emerge as a clear vision of Fukiyama and Moyn’s utopias interlinked, it does little to show the potential of this critique beyond mere observation. Nor does it outline how such detached critique might indicate and facilitate the movement towards utopias outwith the present application of human rights.
The rights theory of Jacques Ranciere offers a compelling and antithetical alternative to Marxism’s disengagement with human rights. In the keystone in his overarching critique of human rights systems, Who is the Subject of the Rights of Man?, Rancière appears to align with Moyn’s critique of the Marxist critique of rights’ application in the present day, arguing that the Marxist critique remains “impossible to revive.” Yet even if, as Moyn alludes, the Marxist critique may revived through more robust connective theory, Rancière nonetheless remains critical of Marxist theory at large, arguing that the effect of Marxist theory, Marx’s critique of rights implicitly included, was not so much negligible, as Moyn argued, as detrimental. Rancière, in his Disagreement, classifies the Marxist approach to politics as metapolitics, and On the Jewish Question as “the canonical formula for metapolitical interpretation,” observing that the approach within envisions politics itself as illusionary in its abstraction from and masking of social inequalities. For Marx, all political life was a mere abstraction from material existence, as can be observed in On the Jewish Question in Marx’s assertion that man, through political emancipation, frees themselves only in “an abstract, narrow and partial way.”
However, while for Marx this disparity between the lives of man and citizen is evidence of the illusion of politics, for Rancière this gap is not, as Marx argues “a scandal to be deplored,” but rather a crucial and primary condition of the exercise of politics. In Hannah Arendt’s The Origins of Totalitarianism, Arendt envisions the opposite of Marx’s metapolitics, with abstract life being that outwith rather than within political existence. Whereas for Marx political life was the abstraction of man’s material existence, for Arendt this private life outwith the political was a “deprived” life, as opposed to the ‘full’ life of public action and debate. Rancière’s approach aligns with Arendt’s to some extent, particularly in the importance in which she holds the political arena as a space for interaction and dissent. However, Rancière ultimately rejects Arendt’s Aristotelian conception of a ‘full’ human life, and thus rejects her wider conception of the political space as one of “world-disclosing public action through which individuals reveal their humanness.” Rancière also openly opposes Arendt’s “rigid opposition” between the political and private realm which, in its oppositional nature, creates an exclusiveness to the political realm, rendering Arendt’s view exclusionary in this approach.
For Rancière, politics is instead concerned with inclusion. Rancière’s break from Althusser and Marx itself came from his observance of “the exclusion of a silent majority” in relation to their political philosophies. Thus Rancière observes ‘real’ politics as the process of disrupting the unified polis through the contesting of the boundaries of the community on the basis of equality. As such, Rancière argues that the subject of the rights of man cannot be so easily identified in the generalisations of both Marx and Arendt, but rather are more open to dispute. As Rancière argues, “political subjects are not definite collectives” but rather “fluctuating performers” whose role is to incite a dispute through argument and demonstration as to who is and isn’t included in their count.
As Costas Douzinas observes, the Marxist critique of rights crucially “neglected the possibility that the groundlessness of the discourse of rights and the non-determination of the concept of man… [would] create the conditions of future self-realisation.” This groundlessness and non-determination of the subject of rights is central to Rancière’s rights theory, in his argument against concrete definitions of political subjects. On this basis of this groundlessness, Rancière argues that the subject of the rights of man isn’t, as noted above, an individual or collective, but rather a bridge between the written inscription of law and those who make the case for its verification in one way or another. We can see these two bridged points in legal documents such as the Declaration of the Rights of Man and the Citizen, which simultaneously sets limits upon who is granted rights under the declaration, yet nonetheless inscribes that “all men are born and remain free and equal.”
For Marx, this equality has no political significance, as it merely refers to the equal right to personal liberty which, Marx asserts, serves to create each individual as an equally detached “self-sufficient monad”. Rancière’s position meanwhile is vastly opposed to Marx’s framing of political insignificance, as he argues that the inscription of equality is in fact crucial to politics. Equality for Rancière, like the subject of rights themselves, is similarly indefinite; a concept open to dispute as to what rights entail and to whom they refer to under certain circumstances. An inscription of equality within such legal documents as the Declaration of the Rights of Man and Citizen thus acts as an implicit inscription of those “who have no part” within the present sphere of implementation of these rights. Thus, while the Marxist critique of the Declaration of the Rights of Man and Citizen merely poses a critique of its limitations, Rancière’s critique encourages active engagement with the rights inscribed within, arguing that “given that the Declaration of Rights states that all men are born free and equal” the question thus arises from this analysis: “what is the sphere of implementation of these predicates?”
There is an inherent political power in this questioning, as Rancière states that in such instances where equality is inscribed “an element of the kratos, the power of the people exists.” The harnessing of this kratos, Rancière argues, may be manifested and maximised in practice through litigious cases which challenge the boundary of this purported equality, and to whom it applies and excludes. The political strength of rights therefore lies in the “back-and-forth movement” between that which is inscribed within the law and that which is argued such open predicates such as equality include. Thus, as Rancière shows, we may challenge the sphere of implementation of human rights through such disruptive strategic litigation by making the case for wider inclusion of ourselves and others and, on the basis of equality, challenging the boundaries of the subject within these rights.
While the Marxist critique of rights provides an initially robust approach to human rights and their effect upon the individual subject, it ultimately provides a theory which, as critics of the Marxist approach have noted, requires a great deal of theoretical effort to be made in order to solidify the tenuous connections made by Marxist thinkers between Marx’s original theory and the present system of human rights. This critique thereby provides little in this application beyond the mere critical observation of an interdependence of rights and liberalism. In contrast, Rancière’s proposed strategic engagement with human rights not only provides a compelling critique of rights and their open indefiniteness, but also actively encourages the application of this critique in practice through dispute, and in so doing to utilise the system of human rights in order to make it deliver the very inclusion and equality it promises. An act which opens the ideological boundaries of Moyn’s last utopia to those beyond its present horizons, and thus contains utopian potential within itself.
Declaration of the Rights of Man and the Citizen 1789
European Convention on Human Rights
National Union of Rail, Maritime and Transport Workers v United Kingdom  ECHR 336
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 L Mumford, The Story of Utopias (1962) 12
 S Moyn, The Last Utopia (2010) 10
 Ibid. 4
 Ibid. 8
 Ibid. 121
 Ibid. 147
 Ibid. 227
 S Moyn, “Substance, Scale and Salience: The Recent Historiography of Human Rights” (2012) 124 Law and Social Science LR 8:123–40
 Moyn, Utopia, 7
 Susan Marks, “Four human rights myths” in D. Kinley, W Sadurski and K Walton (eds), Human Rights: Old Problems, New Possibilities (2013) 225
 Moyn, Utopia, 10
 K Marx and F Engels, The Communist Manifesto (1848) 3
 Ibid. 44
 Ibid. 35
 Marks 226
 C Douzinas, “Seven Theses on Human Rights: (3) Neoliberal Capitalism & Voluntary Imperialism” (2013) available at http://criticallegalthinking.com/2013/05/23/seven-theses-on-human-rights-3-neoliberal-capitalism-voluntary-imperialism/
 A Bogg, “Beyond Neoliberalism: The Trade Union Act 2016 and the Authoritarian State” (2016) 299 Industrial LJ 25
 National Union of Rail, Maritime and Transport Workers v United Kingdom  ECHR 336
 S Moyn, “A Powerless Companion: Human Rights in the Age of Neoliberalism” (2014) 153 Law and Contemporary Problems 77
 Ibid. 153
 Ibid. 153
 Ibid. 169
 J Ranciere, “Who is the Subject of the Rights of Man” (2004) 287 The South Atlantic Quarterly 103
 J Ranciere, Disagreement (1995) 82
 Marx, The Jewish Question (1844) 32
 Ranciere, Disagreement, 87
 Ranciere, The Subject, 298
 A Schaap, “Enacting the right to have rights: Jacques Ranciere’s critique of Hannah Arendt” (2011) 39 European Journal of Political Theory 10(1)
 Ranciere, The Subject, 299
 J Deranty, “Ranciere and Contemporary Political Ontology” (2003) Theory and Event 6/4
 J Tranke, Jacques Ranciere: An Introduction (2010) 42
 Ranciere, The Subject, 303
 Ranciere, Disagreement, 89
 Costas Douzinas, The End of Human Rights (2000) 165
 Declaration of the Rights of Man and Citizen 1789
 Karl Marx, On the Jewish Question, 42
 Ranciere, The Subject, 305
 Ibid. 303
 Ranciere, Disagreement, 88
 Ranciere, The Subject, 305