A book review on Mervyn Frost’s Constituting Human Rights: Global Civil Society and the Society of Democratic States

August 22, 2011

By Belachew Mekuria Fikre, Addis Ababa University Centre for Human Rights

Book Review; Mervyn Frost, ‘Constituting Human Rights: Global Civil Society and the Society of Democratic States’. London and New York: Routledge, 2002. 161 pp. ISBN: 0-415-27227-0

‘[H]ow are we to think about the clash between our civilian rights and our citizenship rights?’ This is the fundamental ethical question that Mervyn Frost’s book examines in light of a previously articulated ‘constitutive theory.’[i] Professor Frost argues for the centrality of human rights discourse in global politics in which ethical dilemmas of these types are unavoidable. The arguments are constructed based on the two fundamental practices that most of us are participants, as members of the global civil society and as members of democratic and democratising states. Then he takes on an extensive investigation of various ethical conundrums we found ourselves in because of our membership in these ‘apparently’ conflicting practices. The central problem that the book intends to address is the indifference within the practice of international relations to take human rights seriously. Accordingly, through the instrumentalities of constitutive theory, Frost propounds the urgency of bringing human rights back in to reconcile these conundrums.

In the introductory chapter, the author examines the two major global practices within which almost all members of the global community participate in one way or another. These are the global civil society in which we claim first generation human rights and the society of democratic and democratising states in which we are privileged with citizenship rights. And further the chapter examines how we are, as participants, being pulled to opposite directions by these two practices because of the ethical questions that we encounter in our everyday lives, both as civilians and citizens. No doubt that the circumstances of migrants, refugees and asylum seekers are some of the hard cases that test our ethical standards to the limit and the book provides in its subsequent chapters how we should respond to these problems both as civilians and as members of democratic and democratising states.

Chapter two analyses how human rights have been marginalised in world politics. It raises a number of ethical problems pertinent in our dealings as players in international relations and how we address them. The dominance of realism, understanding human rights as valid only where they are being enforced and the dominance of legal positivism are but some of the reasons why human rights have not assumed a position they legitimately deserve within the global politics. This critical discourse on the reasons for sidelining human rights is given to argue for the impossibility of any satisfactory understanding of the two major practices of contemporary world politics and thus the impropriety of responses to the ethical dilemmas without a proper understanding of the place of individual human rights within them.

In chapter three a discussion is made on the features of the two foundational practices that the book has introduced in chapter one. It is in this chapter that a fundamental assertion is made to distinguish practices in the global civil society and within democratic and democratising states from that of purposive associations. While associations are formed with a set purpose-like profit generation-and operate externally from the members participating in them, Frost explains that the practice we engage in as civilians and citizens, which he calls foundational practices, are distinct because by participating in such practices we create for one another values which could not be achieved in any other way. These practices trump those of all the other associations in case a conflict emerges. He sums up the chapter by saying that these two foundational practices are fundamentally constitutive of who we take ourselves to be. The thrust of the chapter is then we, as members of the global civil society and the society of democratic states, practice individual human rights and citizenship rights in these respective practices which are both authoritative and ethically foundational.

In chapter four a normative analysis is made to show how the rights we claim as civilians within the global civil society on the one hand and the citizenship rights we claim within the democratic and democratising states relate to one another. Frost draws the conception of rights within a family, civil society and democratic and democratising states first by looking into the Hegelian model of civil society and by showing the enormous changes that occurred after ‘philosophy of right’ by Hegel. He rather focuses the importance of society for rights-claims and dismisses the conception of rights as natural and to be wrong-headed. We can only perceive ourselves as what we are and the practices we engage in the civil society and democratic and democratising states if the rights-conferring aspects are recognised and seriously upheld. Otherwise, Frost concludes, the practices would have been something different and we, the participants would have also been something else than who we are.

Chapter five is central to the overall content of the book (together with chapter six) in the sense that in it the author reclaims a space within the global politics for rights-discourse by using the constitutive theory. Its being global in the sense of not knowing any territorial limits, treatment of non-participants as participants as a means of bringing them back in to the play-ground of global practices of civil society, absence of such thing called ‘you are in or out’ approach because participation in it is an incremental/transformational process than conversional/domination are some of the distinctive features of global civil society expounded in this chapter. These features, it is argued, make civil society an exceptionally important practice within which we claim for ourselves first generation rights.

The sixth chapter examines the second level of practice where citizenship rights-claims are made within democratic and democratising states. The need for this level of practice is justified because of a number of shortcomings that the civil society has when looked at in light of ethical standards. Some of the pertinent shortcomings discussed in this chapter are alienation, competition and absence of community within the global civil society. The author then systematically brings in citizenship rights claims as constitutive practices to bridge those gaps that prevail within the other authoritative practice, namely the civil society.

The seventh chapter is in order as a concluding section to the discussions made so far by claming that rights that we claim as civilians and citizens are irrefutably compatible than contradictory, exist in parallel than being mutually exclusive. What we are expected to do when faced with ethical questions both as civilians and as citizens must be in line with what we are constituted of as such. And in both levels of responses there cannot be an inherent contradiction, rather there is coherence.

General observations

The book, as a normative theory on international relations and the role human rights play, is a fundamental contribution to the dilemmas that prevail in world politics in the past, present and presumably in the future. The claim that there exists a global civil society where every participant must be presumed to enjoy first generation rights might appear too optimistic within the prevailing factual circumstances where views of universality are highly contested. Moreover, the book takes the socio-economic conditions that define a country’s level of development and thus the dissimilarities in the level of standard of living amongst citizens very lightly. Where living standards are polarised and so long as we admit the prevailing differences in democratic maturity amongst civil societies, the tension between sovereignty claims and individual rights remains a challenge that we encounter in dealing with issues of migration, refugees and the others that are presented in this book as ‘hard cases.’

In one of the footnotes, the author explains ‘right to life’ as second generation right in contrast to what he calls ‘negative liberties.’ The latter term is used to denote first generation rights of individuals such as freedom of speech, movement, contract, conscience, the right to own property and the right not to be killed and assaulted.[ii] Even if the right to life has components in terms of both negative and positive liberties, it is hardly possible to classify the positive liberty aspect of it as second generation right, except describing those specific rights constituting the right to life like health, food, livelihood, etc. Therefore, the direct reference to right to life as second generation right appears to be a relegation of this fundamental right that is often referred to as the ‘mother of all rights.’

[i] This is a theory that Frost had discussed at length in his book ‘Ethics in international relations’ as a theory that aims ‘to bring to light the internal connections between being an individual rights holder of a particular kind and being a member of a certain kind of social institution.’ Mervyn Frost, ‘Ethics in International Relations: A Constitutive Theory’, Cambridge, Cambridge University Press, 1996, p 140.

[ii] Foote note 10, in chapter 1, page 140

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: