Provincializing Natural Law and Secular Human Rights

There is a picture by Klee called Angelus Novus. It shows an angel who seems about to move away from something he stares at. His eyes are wide, his mouth is open, his wings are spread. This is how the angel of history must look. His face is turned toward the past. Where a chain of events appears before us, he sees one single catastrophe, which keeps piling wreckage upon wreckage and hurls it at his feet. The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise and has caught in his wings; it is so strong that the angel can no longer close them. This storm drives him irresistibly into the future, to which his back is turned, while the pile of debris before him grows toward the sky. What we call progress is this storm. – Walter Benjamin

Benjamin, a subject of endless fascination in the Euro-American academy today, was an assimilated German Jew whose syncretic philosophy remains an especially wonderful incorporation of Jewish theology and the empirical critiques that Marxism had to offer of modern life. Benjamin’s thought is all the more inspiring in light of his tragic death: while fleeing from the Nazis, he committed suicide, at the tender age of 48, on the French-Spanish border. His quasi-theological ruminations have much to teach those who tout progress as necessary for a better tomorrow. 

In the passage above, from his “Theses on History,” Benjamin speaks of an angel longing for a paradise before history, when everything was whole, and when the world was enchanted by the image of God. Pulsating with messianic energy, the angel hopes for redemption and to purge mankind of the artifacts of barbarism that it has collected on its journey to the present. Jumping into a transcendence that challenges the liberatory potential of secularism, Benjamin thinks our goal is to save the past in order to save ourselves. 

Klee’s angel stands at a special vantage point to offer a thoughtful analysis of the US State Department’s recent decision to pursue a human rights campaign based on natural law. The essence of natural law moral theory “is the claim that standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings.” (1) The State Department released a notice of intent to establish an advisory committee, called the Department of State Commission on Unalienable Rights, the nature and purpose of which is to:

…provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights. (2)

Unsurprisingly, this decision has drawn the ire of liberals who are certain of the bald prejudice such a program has the potential to generate. Shaykh Hamza Yusuf, one of the West’s most influential Muslim thinkers, has been recruited to serve on the Committee – a move that in part can be attributed to his close friendship with Princeton Professor Robert George. George has long been influential in conservative and Christian circles and has served as the intellectual force behind the creation of the committee. 

To be clear, expressing moral disapprobation at Yusuf is a fool’s errand. Such criticism misses the opportunity to have a more substantive conversation about what human rights mean for those who take issue with secularism – which Benjamin struggled with in his own ways – and how such rights have contributed to changes in Islamic liturgy, practice, and embodiment in various ways in the United States and abroad. Suspicious of too much commitment to divine commandment, progressive Muslims – many of whom fall into what Ismail Royer has dubbed the “American Reform Denomination” – often growl for representation and a seat “at the table” because “Muslim” has come to be understood primarily as a sociopolitical, anthropocentric category of difference. When Yusuf – who by no means is above criticism – has been able to answer that call, they pay him with strokes of the stick. Again however, Yusuf’s presence on the Committee is not of much moment here because the Committee and its members, as Samuel Moyn has noted, are quite weak and lack political power. (3) What is deserving of far more attention are the broader normative commitments that Muslims might want to see play out in a conversation about human rights, if not embodied in diplomacy or politics. 

Tropes and Techniques

For decades, human rights in its various permutations has been a highly effective proxy through which the West has waged a kind of low intensity ideological warfare in the Muslim world. Those advocating for such rights have been able to collapse, generate, and transport technologies of difference (think: race, gender, etc.) and new sensibilities and lifestyles that have changed how Islam is practiced. In fact, various juridical and political weapons and the ideas and normativities they work to fasten (many of which spawned organically in the West) have been smuggled through an anthropocentric, rights-based rhetoric. Can Muslims (and other similarly situated confessionalists) support a program that primarily draws its valuations of religion from the benefit it can give solely to humans? What of the eschaton and salvation? Would it be a stretch to say that the program of secular human rights turned the winds pushing Klee’s angel towards the future into gusts that drew their strength from a disapprobation of tradition? 

If the fascism that led Benjamin to his death was the pathological result of modernity, then can the post-war international liberal order that claimed to redeem modernity from moral stupor escape such a fate, given its hair-raising complicity in and aggravation of environmental destruction, genocide, and massive economic inequality? 

Some in liberal circles would push back against the finger pointing that conservatives engage in, and instead locate economic inequality and environmental destruction in the neoliberal, market-oriented structures that betrayed the redistributionist welfarism of mid-twentieth century Euro-America. Moyn – arguably the most influential human rights historian in the academy – has expressed disapproval of the move towards a natural law human rights program, and he has criticized Harvard Law Mary Ann Glendon for leading the Committee. (4) For liberals like Moyn, human rights established primacy from the 1970s onwards precisely through an unfortunate compromise with the market by taking on a mission of basic sustenance, whereby the focus was not on closing the gap between the wealthiest and the poorest, but on saving the worst off from indigence. (5)

And for Moyn, this Committee represents another step in the wrong decision. On the other hand, Patrick Deneen suggests, in Why Liberalism Failed, that the moral crises facing America today have to do with the dogmas of secularism: an inability to accommodate fundamental difference, neglect of ideological diversity, and a politico-social moment that refuses the stability tradition sermonizes. Moyn has generally dismissed such critiques – including Mike Pompeo’s “repeated shout-outs to 1776” – as part of a countertradition that is nostalgic, that “bowdlerizes liberalism” and one that narrates “a declension, after high medieval plentitude, from William of Ockham to the opioid crisis.” (6)

Offering a New (Old?) Outlook

Undulating with meager attention to the Euro-centrism of their critiques, Moyn and Deneen fault neoliberalism (the market) and liberalism (the secular state), respectively, as the Gordian knots of our time. And yet, Benjamin’s angel – who bears the brunt of modernity’s tragic denouement – is able to grease the skids much more elegantly. His brilliance lies somewhere in between Moyn’s aspiration for secular human rights cleansed of market fundamentalism, and Deneen’s concern about what Saba Mahmood calls a “religiously neutral political ethic.” 

Wael Hallaq (with whom Moyn formerly served on the Columbia faculty) has offered an appraisal of progress that may give Klee’s angel some courage. He argues that progressives think that an invocation of “historical moral capital” amounts to nostalgia and an attempt to restore premodern practices (Moyn appears to fall in this camp). (7) However, Hallaq thinks this is a misconception: using the past to draw upon an understanding of the world that features “virtues and competence of moral instruction” is not an attempt to “roll back” the modern project. 

Rather, such a project (like natural law) actually seeks to retrieve the overarching values that paradigmatically defined Christianity (or Islam) and its ways of life for well over a millennium. The invocation of an ethic of some historical tradition is often dismissed because modernity is able to rationalize and justify the practices of the present by using history to pronounce on anything that is deemed to stand outside its boundaries. 

Can natural law then be reasonably understood as a response to a secular human rights agenda that religious conservatives may see as inadequately equipped to the respond to the challenges modernity has created? Moreover, can Moyn’s own nostalgia for the post-war welfare state withstand blunderbuss accusations of a Euro-centrism that turned its back on a developing world which came to weather through the solecisms of a civilization that continued to treat it as an antiquated species of neo-medieval ruffians? 

Hallaq writes: “The political, legal, and cultural struggles of today’s Muslims stem from a certain measure of dissonance between their moral and cultural aspirations, on the one hand, and the moral realities of a modern world, on the other – realities with which they must live but that were not of their own making.” (8) Apparently, while British democracy was espousing an exemplary distributive economic program for its own citizens, it also fancied a coup that deposed Iran’s democratically elected prime minister because he decided to do the same for his own people (by nationalizing the country’s oil supply, and thus jiggering it from the control of the Anglo-Persian Oil Company, today known as BP). 

Coercion and Secularism

Any secular vision of human rights must contend with its past – especially because it cannot offer its own pathogenesis. Secular human rights cannot claim to draw out the origins of problems generated by the contradictions in its own logic and normative commitments, which often conflict with those of Islam. Mahmood reminds us: 

The political solution that secularism proffers…lies not so much in tolerating difference and diversity but in remaking certain kinds of religious subjectivities (even if this requires the use of violence) so as to render them compliant with liberal political rule…Underlying this hermeneutical project is a secularized conception of religion in which religion is understood to be an abstracted category of beliefs and doctrines from which the individual believer stands apart to examine, compare, and evaluate its various manifestations. (9)

Time and time again, secular human rights advocates are able to define traditionalist interpretations of rights and duties out of existence by arguing that they are “based on an empiricist notion of history in which the particularity of the Quran” is rooted but “from which their true meaning must be abstracted through the poetic resources of human labor.” (10) Does that mean that Muslims should unquestioningly embrace the natural law-driven human rights promulgated by Christian conservatives sympathetic to the moral and eschatological plight of Muslims? No, but they can certainly find solace in a moral cosmology that does not condemn invisible actors of justice like God to a realm of holy irrelevance. 

As Moyn notes, “any new social right depends on a new configuration of interests to institutionalize it.” (11) If Muslims hope to protect and grow their traditions pursuant to the moral valences of Shari’a, then facing the challenges of modernity with the tools of yesteryear – morals, virtue, and divinity – can offer some optimism. Maybe tradition can also offer more than a patchwork solution to the punishing winds pushing Klee’s angel to a future in which fluidity and uncertainty reign. Maybe when we have more confidence in tradition, fortune may shine its light upon the victims of secular violence. And maybe Benjamin can see that accursed pile of debris finally disappear.

Works Cited

    https://www.iep.utm.edu/natlaw/
  1. https://www.federalregister.gov/documents/2019/05/30/2019-11300/department-of-state-commission-on-unalienable-rights
  2. https://prospect.org/article/can-pompeo-redefine-human-rights-trump-era
  3. https://prospect.org/article/can-pompeo-redefine-human-rights-trump-era
  4. https://www.thenation.com/article/human-rights-are-not-enough/
  5. https://www.commonwealmagazine.org/neoliberalism-not-liberalism-has-failed
  6. Hallaq, Wael B. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament. New York, Columbia University Press, 2014.
  7. Ibid.
  8. Mahmood, S. “Secularism, Hermeneutics, and Empire: The Politics of Islamic Reformation.” Public Culture, vol. 18, no. 2, 1 Apr. 2006, pp. 323–347, 10.1215/08992363-2006-006. Accessed 14 July 2019.
  9. Ibid.
  10. Moyn, Samuel. Not Enough: Human Rights in an Unequal World. S.L., Belknap Harvard, 2019.

Photo credit: Demand and Supply by Erik Johansson


About the author: Shahrukh Khan is a guest contributor. He is a JD candidate at Emory University School of Law. His interests include American law, history, and Punjabi culture. You can follow him on Twitter here.

One thought on “Provincializing Natural Law and Secular Human Rights

  1. Natural rights as a recovery of some notion of traditional (Islamic or religious or transcendental) values would consonant if taklīf were an ʿaqlī rather than sharʿī matter, at which point you ought to decide whether you’re gonna be a muʿtazilite or ashʿarite. If this disjunction is irrelevant to understand why HY would participate in the committee, then maybe the author’s construal of his possible motives or the larger meaning of the act misses the mark.

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