Politicising human rights in Europe: Challenges to legal constitutionalism from the Left and the Right

Abstract

In this article I compare the political rhetoric of Podemos and the Tories. Ideologically opposed, both parties use populist rhetoric and both thematise human rights as central to their populism. The article compares the parties’ uses of human rights along three dimensions: Who are human rights for? What are human rights? And how should they be achieved in practice? How Podemos and the Tories construct human rights challenges the ongoing project of European legal constitutionalism, the juridicalisation of rights which means that disputes over the interpretation of rights are referred to constitutional courts, where – ideally – they become the object of impartial and definitive decisions by judges who reason only through legal principles.

Podemos from the Left is challenging European legal constitutionalism in the name of social justice, the Tories from the Right in the name of security: both parties construct European elites (and in Podemos’s case, national elites too) as a danger to democracy. Demonstrating what it means to take seriously the theoretical consequences of social constructivism - human rights are necessarily political – the article proposes a framework for the analysis of explicitly politicised human rights.

Keywords:

• constitutionalism
• law
• courts
• democracy
• populism
• neoliberalism
• social rights
• migrants

Acknowledgements

Thanks to Richard Bellamy, Alan Scott and Neil Washbourne for expert advice and good ideas – and also to the anonymous reviewer who drew my attention to the European Charter of Social Rights of the Council of Europe.

Disclosure statement

No potential conflict of interest was reported by the author.

Note on contributor

Kate Nash is Professor of Sociology at Goldsmiths, University of London, and Faculty Fellow at the Center for Cultural Sociology, Yale University. She has written and published widely on the sociology of human rights, including ‘Between Citizenship and Human Rights’ Sociology 43, no. 6 (2009); and The Political Sociology of Human Rights (CUP 2015). The Cultural Politics of Human Rights: Comparing the US and UK (CUP, 2009); and The Political Sociology of Human Rights (CUP 2015).

Notes

1. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton University Press, 2003).

2. Philip Alston and Ryan Goodman, eds, International Human Rights, 4th ed. (Oxford: Oxford University Press, 2013).

3. Christian Tomuschat, Human Rights: Between Idealism and Realism (Oxford: Oxford University Press, 2014).

4. Alec Stone Sweet, ‘A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe’, Global Constitutionalism 1, no. 1 (2012): 53–90; Miguel Maduro, ‘Europe and the Constitution: What if this is as Good as it Gets?’, in Rethinking European Constitutionalism, ed. J.H.H. Weiler and M. Wind (Cambridge: Cambridge University Press, 2000).

5. Cas Mudde, Populist Radical Right Parties in Europe (Cambridge: Cambridge University Press, 2007).

6. Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy (London: Verso, 1985); Ernesto Laclau, On Populist Reason (London: Verso, 2005); Ínigo Errejón, ‘Ernesto Laclau, teórico de la hegemonía’, 2014, https://www.academia.edu/6751485/Ernesto_Laclau_te%C3%B3rico_de_la_hegemon%C3%ADa (accessed 8 August 2015); Ínigo Errejón and Chantal Mouffe, Podemos: In the Name of the People (London: Lawrence and Wishart, 2016). The leaders of Podemos go to some trouble to deny that they are on the Left because they do not think the Right/Left distinction is meaningful to voters in Spain. In fact, they believe that it makes many voters nervous who would otherwise support their programme for social justice. However, concerned as they are with social justice and equality, the leaders of Podemos certainly do not deny their affiliation with the values around which the Left traditionally mobilises. And outside Spain they are routinely identified as a ‘left-wing’ party.

7. Slavoj Žižek, ‘Against the Populist Temptation’, Critical Inquiry 32, no. 3 (2006): 551–74; see also Andrew Arato, ‘Political Theology and Populism’, in The Promise and Perils of Populism: Global Perspectives, ed. Carlos de la Torre (Kentucky: University of Kentucky, 2015).

8. In ‘Reframing Justice’, Nancy Fraser outlines the importance of these questions as meta-level framings that have become necessary as Westphalian limits of justice are called into question in a globalizing world: Nancy Fraser, ‘Reframing Justice in a Globalizing World’, New Left Review 36 (2005): 69–88. On the importance of these questions to human rights: Kate Nash, The Cultural Politics of Human Rights: Comparing the US and UK (Cambridge: Cambridge University Press, 2010): 15–16.

9. Pablo Iglesias, Politics in a Time of Crisis: Podemos and the Future of a Democratic Europe (London: Verso, 2015); Pablo Iglesias, ‘Understanding Podemos’, New Left Review 93 (2015): 7–22.

10. Francesca Klug, Values for a Godless Age, the Story of the UK’s New Bill of Rights (Harmondsworth, Middlesex: Penguin, 2000); Nash, Cultural Politics of Human Rights.

11. Iglesias, Politics in a Time of Crisis, 203.

12. Conservative Party, ‘Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’, 2015, https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf (accessed 25 August 2015).

13. Seyla Benhabib, Another Cosmopolitanism (Oxford: Oxford University Press, 2008).

14. Christian Joppke, Citizenship and Immigration (Cambridge: Polity, 2010).

15. In populist rhetoric there is very often an ‘enemy within’. Those who are worthy of respect – ‘the heartland’ – are distinguished from the unworthy. While worthy citizens are honest and unassuming, the unworthy take advantage of the very decency of ‘ordinary people’ to further their own interests. As Taggart puts it, the virtues of ‘the people’ are the mirror opposite of the vices of the demonised Others, which are always scheming elites, and very often calculating villains within civil society too: Paul Taggart, Populism (Buckingham: Open University Press, 2000), 93.

16. Errejón and Mouffe, Podemos.

17. Podemos, ‘Mover ficha: convertir la indignación en cambio político’, 2014, http://tratarde.org/wp-content/uploads/2014/01/Manifiesto-Mover-Ficha-enero-de-2014.pdf (accessed 29 April 2016).

18. Podemos, ‘Documento Final Del Programa Colaborativo’, 2014, http://www.congde.org/contenidos/descargar/attachedfiles/1175/original?1400068557 (accessed 25 August 2015).

19. Alston and Goodman, International Human Rights.

20. Theresa May, ‘On Counter-terrorism’, speech delivered to the Royal United Services Institute, London, 2014, https://www.gov.uk/government/speeches/home-secretary-theresa-may-on-counter-terrorism (accessed 25 August 2015).

21. Paulo G. Carozza, ‘From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of Human Rights’, Human Rights Quarterly 25 (2003): 281–313.

22. Podemos, ‘Mover ficha’.

23. There has been a good deal of discussion about whether Protocol 30, the ‘opt out’ from the charter, would actually be effective in practice. See The House of Commons European Scrutiny Committee Report, 2011, http://www.consilium.europa.eu/uedocs/cmsUpload/st06655-re01.en08.pdf (accessed 28 April 2016). Since the ‘Brexit’ referendum, however, once the negotiations for the UK to leave the EU are complete, ECJ rulings will no longer apply at all in the UK, making the question redundant.

24. This distinction is inspired by Nancy Fraser’s analysis of the possibilities of ‘scaling up’ the national public sphere: Nancy Fraser, ‘Transnationalizing the Public Sphere: On the Legitimacy and Efficacy of Public Opinion in a Post-Westphalian World’, in Transnationalizing the Public Sphere, ed. Kate Nash (Cambridge: Polity, 2014).

25. Pablo Iglesias, ‘Podemos – Pablo Iglesias’, 2014, https://www.youtube.com/playlist?list=PLhKnrz7gbJ0Eurun8HblPX4i_Q2WX5ss6 (accessed 4 January 2016).

26. Podemos, ‘Documento Final’, 28; Podemos, ‘Directiva Derechos Humanos y Control Ciudadano de Podemos’, 2014, http://www.lasexta.com/a3document/2014/05/30/DOCUMENTS/00001/00001.pdf (accessed 4 January 2016).

27. Vincenç Navarro and Juan Torrez López, ‘Un Proyecto Económico Para La Gente’, 2014, https://web-podemos.s3.amazonaws.com/wordpress/wp-content/uploads/2014/11/DocumentoEconomicoNavarroTorres.pdf (accessed 29 April 2016).

28. Ibid., 18.

29. Vera Gutiérrez Calvo y José Manuel Romero, ‘Propuesta para la reforma constitucional, partido a partido’, El Pais, 6 December 2014.

30. Alec Stone Sweet, ‘Constitutional Courts and Parliamentary Democracy’, West European Politics 25, no. 1 (2002): 77–100.

31. Amending a rights provision of the Spanish constitution is very difficult: it requires a ‘super-majority’ in both houses, the Cortes and the Senate, of two-thirds of the vote, followed by the dissolution of parliament and ratification of the proposed reform by referendum. No such changes have been made to rights in the Spanish constitution since it was established in 1978: see Stone Sweet, ‘Constitutional Courts and Parliamentary Democracy’, 91.

32. Calvo y Romero, ‘Propuesta para la reforma constitucional’.

33. Thanks to Richard Bellamy for this point.

34. Luis Gomez y Carmen Pérez, ‘Los círculos del descontento’, El Pais, 2 June 2014; Podemos, ‘Principios Oganizativos’, 2014, http://podemos.info/wp-content/uploads/2015/06/Documento-organizativo.pdf (accessed 25 August 2015).

35. Conservative Party, ‘Protecting Human Rights in the UK’.

36. Ibid., 6; Angela Patrick, ‘Incoherent, Incomplete and Disrespectful: The Conservative Plans for Human Rights’, 2014, http://ukhumanrightsblog.com/2014/10/03/incoherent-incomplete-and-disrespectful-the-conservative-plans-for-human-rights-angela-patrick/ (accessed 18 August 2015).

37. Conservative Party, ‘Protecting Human Rights in the UK’.

38. Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007); Richard Bellamy, ‘Political Constitutionalism and the Human Rights Act’, International Journal of Constitutional Law 9, no. 1 (2011): 86–111.

39. Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000); Fritz Scharpf, ‘The Double Asymmetry of European Integration. Or: Why the EU Cannot Be a Social Market Economy’, Max-Plan-Instutit Für Gesellschaftsforshung Working Paper 09/12 (2009).

40. Scharpf, ‘The Double Asymmetry of European Integration’, 9.

41. The structural consequences of the ECJ are not specifically thematised in the rhetoric of Podemos either – even though democratic reform of EU institutions is central to their project for securing rights.

42. Jurgen Habermas, The Lure of Technocracy (Cambridge: Polity, 2015).

43. Scharpf, ‘The Double Asymmetry of European Integration’, 20–1.

44. Habermas, The Lure of Technocracy.

45. Podemos has enjoyed remarkable electoral success, winning five seats in the European Parliament in 2014, just months after it was formed, and 69 seats in the elections in December 2015, forcing the two major parties in Spain to consider government by coalition for the first time in Spanish history. In the elections of June 2016, Podemos joined with other small parties on the Left and won 71 seats – not enough to trouble the Partido Popular which will now form a government without a majority, but still impressive considering that the party is so new and so radical.

46. Stuart Hall, The Hard Road to Renewal: Thatcherism and the Crisis of the Left (London: Verso, 1988).

47. Quoted in Habermas, The Lure of Technocracy, 88.