Thursday, May 21, 2015

Formal and Substantive Human and Civil Rights by Joseph Massad


The Soviet/US struggle over defining human rights is now the stuff of  history given the US victory in the Cold War but a brief review is necessary. While the US insisted that having the right to work, to free or universally affordable health care, free education, daycare, and housing (which the Soviet system granted in the USSR and across Eastern Europe as substantive and not merely as formal rights) are not human rights at all. the Soviets, in the tradition of socialism, insisted they were essential for human life and dignity and that the Western enumeration of the rights to free speech, free association, free movements, freedom to form political parties, etc., were “political” and “civil” and not “human rights, and that in reality in the West, they were at any rate only formal and not substantive rights except for the upper echelons of society and those who owned the media and could access it and could fund election campaigns, etc.

Moreover the Soviets argued that it was essential for humans to have human rights in order to be able to access civil and political rights in a substantive manner and that granting formal civil and human rights while denying substantive human rights amounted to granting no rights at all. Perhaps most important in this regard is that the post-World War II US definition of human rights did not encompass in the 1950s and 60s the rights of African Americans to vote, to receive the same social services as whites, and not to face official institutionalized racial discrimination – all of which were referred to in the US lingo as mere “civil rights.”. Malcolm X’s insistence that US violations of the human rights of African Americans should be taken up by the United Nations, which had the power to impose sanctions on the United States as a racist state, earned him much opprobrium and a much lesser status in latter official commemorations that Martin Luther King, who was satisfied principally with limiting the Black struggle in the US to the arena of “civil rights.”

While the Soviet form of “popular democracy” was anchored in the hegemony of this system of (human) rights and its resultant substantive and massive benefits and massive limits and (civil) restrictions applied universally to all Soviet citizens, the US system of liberal “democracy” was anchored in its own system of rights that granted substantive and massive benefits to smaller portions of the citizenry while applying massive restrictions to the larger portions. The post-World War II Soviet system did not need to resort to major coercive means when its hegemonic system did not seem all-encompassing; indeed in a country of some 260 million people, at the height of the 1960s and 1970s  Brezhnevite repression, there were no more than 500 political prisoners in the country. Amnesty International’s count in 1980 was that the Soviets had no more than 400 people imprisoned for political dissidence between 1976 and 1980. The postwar United States, in contrast, had to rely, especially in the late 1940s, on more massive means when the hegemony of its system was weakened, as evidenced by the McCarthyist repression and the repression of the antiwar and civil rights protests of the 1950s-1975, and had hundreds of political prisoners (under varying legal pretext used to prosecute activists), who are harder to count due to the use of criminal charges to imprison them. The reassertion of the US coercive system would be strengthened through its new racialized and repressive criminal justice system since the 1980s and more after September 2011 with legislation of the Patriot Act and related repressive measures.

While in the late 1980s and early 1990s, as the hegemony of Soviet-style “popular democracy” eroded under the increasing US Cold War assaults on the USSR, most Soviet and East European citizens hoped to end the “popular democratic” systems of their ruling Communist Parties and gain Western style political and civil rights. They wanted that latter not instead  of but in addition to retaining those human rights that the Soviet system guaranteed them. In the end, they lost their existing human rights and gained very little Western political and civil rights, and even the modicum of rights they did gain were more formal than substantive and subjected to the vagaries of financial and class power. It was in this context of an all-persuasive imposition of neoliberalism on a global scale that the U.S. discourse of human rights and the meaning the US gives to “human rights” reigned supreme.

[This carefully drawn distinction between human and civil rights, formal and substantive, as illustrated in the contrast between the Soviet and US ideology and systems during the Cold War, plays an important role in Professor Massad’s analysis of the UN, private philanthropy the United States government, and domestic political action groups ‘crusades’ to save, for instance, women and ‘gays’  from the oppressive impositions of ‘Islam’ , that is, to reform Islamic societies in line with Western notions of civil rights to the utter neglect and even direct destruction of human rights in both the formal and substantive sense. A few examples will suffice.]

Most laws on the books today that discriminate against women in formerly colonized Muslim-majority countries, including nationality laws, are derived from Western liberal and secular colonial and national laws, yet no slogans that oppose secularism and liberalism,, seen as European par excellence, have identified these ideologies as essentially sexists and gender-discriminatory; yet somehow all Islamists are often condemned for allegedly being essentially sexist and that this is the main characteristic of their social programs. The point here is that if the concern with Islamists taking power is because some Islamists’ gender policies or views ( and many Islamist parties in fact have a far better record on gender equality and women’s representation than secular parties in the region), then why is opposition not articulated as strongly against non-Islamist parties (e.g. Mubarak and Sisi in Egypt) whose record on women is often far worse?

Some would say that in the U.S. and West European countries, at least since the mid 1980s, laws ( masquerading under the rubrics ‘crimes of passion’ and ‘domestic abuse’ rather than what is called ‘honor killings’ in Islamic society) that protected men who commit crimes against women have been removed but in Jordon they remain on the books. But if this is so, research has not turned to a condemnation of the Jordanian government and the regime which uphold this law, and which is derived from the Napoleonic code, but Arab culture and “Islam” tout court,  when all Islamic jurisprudential schools are condemnatory of “honor crimes” as murder and refuse to offer mitigating circumstances to men whom commit them. These crimes also occur at far lower rates in Muslim countries than in the U.S., whatever the laws on the books are.

In dealing with the question of the hijab and other dress codes, Mossad quotes Wendy Brown (commenting on an article in The New York Times in her paper “Civilizational Delusions”):

Decades after Euro-Atlantic women rose up against sexual codes that bound them to the roles of subservience, unpaid and unrecognized labor, sexual availability and decorative objectification, what is to be made of these New York women teetering on the balls of their feet in stilts? Imagine walking for an hour in such shoes, let alone running for a bus, chasing after children, navigating inclement weather, standing all day at work or even just for two hours at a cocktail party? In Islamic religious female dress, one would surely be more comfortable, far less likely to sprain an ankle, slip on ice, trip on an uneven sidewalk, permanently damage one’s feet, or succumb to chronic sciatica or other back injuries. One might have a better concentration, a wider subjective imaginary, and more versatility in greeting the various episodes and possibilities of a day.. In short, if shoes nearly impossible to stand let alone walk in are freely chosen, that does not make them shoes of freedom, something that of course that can be said of the hijab or niqab as well. Yet to my knowledge, no one, anywhere in the Western world, has ever seriously considered passing legislation to outlaw such shoes, their making or their wearing, including in schools or state offices.

The anthropologist Lila Abui-Lughod's Egyptian native informants authorized her to make this plea to western feminists :"I have done fieldwork in Egypt over more than twenty years and I cannot think of a single woman I know, from the poorest rural to the most educated cosmopolitan, who has ever expressed envy of US women, women they perceive as bereft of community, vulnerable to sexual violence and social anomie, driven by individual success rather than morality, or strangely disrespectful of God.”

Many, even the vast majority of poorer Muslim women  reject the Convention on the Elimination of All Forms of Discrimination against Women’s premise of total gender equality with regard to housing provision, economic maintanence of the marital home and children, and child support in the case of divorce, given that Islamic jurisprudence has historically placed great emphasis on male responsibility in these arenas. Indeed this ‘traditional logic may explain why poverty and economic well-being  in Arabic countries cannot be easily identified as a gender issue, unlike the U.S. which, at any rate, is one of the few nations that has continuously refused to ratify the CEDAW.

[Most of Joseph Assad’s book consists of a Critical analysis of the historical roots and contemporary elaborations of Orientalism (he is the  the disciple of Edward Said), Semitism and the Abrahamic conceptions of cultural in our current “Clash of Civilizations” and “War on Terror”. It makes for difficult  reading, confounds pre-conceptions and embroils the reader in controversy especially in regards the the issues surrounding the use of terms such as ‘Queer’, “Gay” or even ‘Sexuality” which have no functional equivalence in the Arabic language and which he has suggested the use of which by government agencies and NGO’s in protecting ‘rights’ is more provocative of repression in Islamic contexts then understanding.

But the careful distinction he makes between ‘human’ and ‘civil rights, and the role these conceptions play in neo-liberal agenda ( expanding ‘global finance’, opening international trade, invoking ‘austerity’ on foreign and our own governments and supporting repressive secular regimes)- which de-emphasizes the former in favor of the latter in the context of phantasmagoric representations and essentializations of the Islamic Other and no lack of self-deception with regard to the substantive character of its own society- holds the treatise together.]

Islam in Liberalism by Joseph A. Massad; University of Chicago Press, 2015


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