To understand the political background of the refugee crisis, we must turn our gaze elsewhere; in fact, in the opposite direction. The crisis at hand confronts us with a predicament of modern political thought — modern liberalism even. It is a problem that we have successfully repressed but that now returns with a vengeance, namely the inadequacy of the lingo of human rights.
A more promising alternative has been to follow Kant in appealing to reason instead of nature or God; that is to claim that the rights of humanity are grounded in our capacity for rational deliberation. However, in order to uphold this position one must defend a metaphysical conception of reason — an account of rationality that transcends its reduction back to blind naturalistic explanations — and while Kant himself indeed defended such a metaphysics, current political thinking prides itself for being “post-metaphysical.” John Rawls’s dominant formulation of justice is famously “political, not metaphysical,” and the eminent German philosopher Jürgen Habermas recently reaffirmed his early slogan, according to which “we have no alternative to post-metaphysical thinking.” While it may well be true that we do not have such an alternative, it is also true, to speak with Kant, that “every theory of justice must … contain a metaphysics, and without the theory of justice there is no theory of the state.”...While it is true that German history generates special commitments to human rights, the problem is precisely that we do not know how to think of these rights in political terms.--Omri Boehm,New York Times.
Human rights are political conversation stoppers. Once they are invoked matters of principle are settled, and put aside, and all that remains is the technocratic discussion of solving the means by which to implement them. That is, while we often claim that rights generate duties, politically they are designed to generate obedience.
The problem is that rights-talk is increasingly hollow.* I mean this in four senses: first, as Boehm notes, their ultimate metaphysical justification is ungrounded and they require such ground. Second, rights talk is (increasingly) politically ineffective. States and considerable parts of their electorates act as if rights talk is not meaningful or, worse, that rights, especially those of others (non-citizens, foreigners, refugees, un-represented, etc.) are optional thereby undermining their very existence. Third, as Boehm notes, in order to re-activate adherence to rights, historical memory (of Nazi genocide) is prompted in order to create a psychological disposition favorable to respect for rights (of others). But this is a doomed strategy because at best it will be just one of many competing psychological dispositions. Fourth, rights are hollow to those that are supposed to benefit from their protection and are left in dangerous, if not fatal, oft-literal no-man's land.
Now, Boehm thinks that the solution to the hollow-ness of human rights is a return to metaphysics in order to solve the justificatory problem. It would be easy to satirize the wish that metaphysics has this kind of political power (and that, therefore, we need to teach the Barcan formula in civic education classes). But the underlying idea seems to be that once that metaphysical problem has been solved rights can return to being authoritative conversation stoppers. But the significance of metaphysics in this sense (as authoritative background) is a by-product, I think, of that period of the Christian era in which (parts of) Christianity was wedded to enforcing metaphysical dogmas that were secured by reason. And while Christianity will undoubtedly continue to exist, that era is unlikely to return (not just for political, but also for metaphysical reasons). The point here is not a historical or sociological.
I do not mean to suggest in the previous paragraph that metaphysics and philosophy are not important politically in the sense embraced by Boehm. I have noted, too, that, for example, Europe's political malaise is more than just a failure by the technocrats to deliver open-ended economic growth and income. Rather, Boehm seems to think that a politics ruled by reason -- indirectly via rights that enforce agreement -- is genuinely possible. Here he is no different from those philosophers and other citizens of humane, good will that believe access to moral and metaphysical truth ought to be privileged in the political arena.
But to think that truth or reason will rule is a misguided (and also dangerous) conception of politics. For that is precisely the domain of life where one acts under conditions of great uncertainty in order to maintain minimal unity. Polities recognize, of course, that there are areas where such truth is available and then the experts and technicians are given free reign. Undoubtedly human rights lawyers and activists had hoped to obtain or, perhaps thought they had already achieved, such autonomy from politics with its own specialized discourse and intricate legal realm. But at bottom the authority of the law requires political will. It is unlikely that political will is restored by a better metaphysics alone. That is, rights are intended to secure noble human ends within an often indifferent and hostile political life.
The problem, then, is how to secure these (moral) ends within politics in the absence of rights. I have no answer to that, but it strikes me that if rights are failed conversation stoppers, perhaps we should re-consider the whole strategy of conversation-stopping. That is, within political life we need to address the fears and aspirations of those that would deny political strangers minimal shelter and protection from the cruelties of fate and other men (recall). If we do not trust our capacity to do so, we really have no faith in our democratic way of life.
*I reached that point during the Rwandan genocide which could have been prevented by quite modest military intervention that was already available on the ground.
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