The European Court of Human Rights: would Marx have endorsed it?

It’s not hard to find a critic of the European Court of Human Rights these days. I have no intention, in this post, of joining this increasingly voluble choir of nationalists, fear-mongers and far right or authoritarian regimes. What I want to do is to approach the ECHR in the context of this series of articles on human rights and liberalism, in particular market liberalism, and ask whether Marx would have endorsed the Court as an ‘intrinsic human good’ for  Europeans?

Could the ECHR have convinced Marx that it has succeeded in lifting the veil on abstract rights masking substantive injustices as per his critique of rights in Capital? Could it persuade him it has fought against civil rights becoming a banner for liberal egoism and individualism as per On the Jewish Question?

There is nothing new in saying that the ECHR was created to fight fascist and authoritarian political  regimes and to lock European states in to democratic and politically liberal forms of government. Indeed, the term ‘necessary in a democratic society’ appears in the text of the Convention multiple times when the Convention seeks to restrict rights of expression, association, assembly, privacy and religion. This suggests that the core purpose of the ECHR is to fight the real-time ills of a lack of political liberalism in European societies. The market and the ills of economic liberalism, however, are not part of the purposive development of the Court. Further than this, as seen in the Strasbourg Court’s developing doctrine of deference to democratic parliaments (S.A.S v. France), the primacy of democratic decision making in the court’s case law suggests that as long as the market economy is endorsed by some form of democratic citizen participation (Hatton v. UK), the Court is happy to let markets be markets.

The only heuristic channel though which the Court addresses market liberalism is when the consequences of market liberalism pose a danger to its ‘effective rights interpretation’ doctrine. With commitment to effective, not abstract, rights, the Court crosses paths with Marx’s critique of liberal rights in Capital. In the now landmark Airey v. Irelandjudgment of 1979, the ECHR stood up against the abstractness of Irish domestic law when rejecting the government’s argument that a woman who cannot afford a lawyer in divorce proceedings would still get a fair trial. In paragraph 24 of the judgment the Court declared that ‘the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’. In doing so it opened the door for the creation of a social, context-sensitive and concrete theory of human rights as opposed to an abstract liberal theory of rights devoid of any context. Thousands of applicants after Airey have told the Court that they did not really enjoy rights while homosexuality was criminalised (Dudgeon v. UK), when rape was not investigated (MC v. Bulgaria), or when their families (Marcx v. Belgium) or trade unions (Demir Baykara v. Turkey) were not recognised.  

This, however, is indeed a mere crossing of paths. Whilst Marxist critique of abstract rights turns largely on the abstract forms masking substantive injustices perpetrated by the political economy of liberal capitalism, the European Court of Human Rights criticises abstract rights for their failure to deliver real consequences for an applicant. That applicant, however, can range from a company or a group of individuals who cannot access the real value of their property, to a worker.

The effectiveness of rights in the European Court of Human Rights case law has since given birth to other progressive doctrines, namely, the living instrument doctrine (Tyrer v. UK), autonomous concepts doctrine (Alexeyev v. Russia) and the positive obligations doctrine (Dubetska and others v. Ukraine). All of these doctrines, too, offer opportunities for individuals to challenge constantly changing domestic economic policies and demand more from the state to assist them in their individual or collective self-development. These doctrines, however, also do not tie in to a thicker view about freeing rights from being mirrors of liberal capitalist economic relations.

In this respect the relationship between effective rights and anti-market liberalist agendas is rather hit and miss. The Palomo Sanchez v. Spain decision illustrates this well. Here, the Court was faced with workers using satirical cartoons of managers to highlight the difficulties they had unionising and domestic Spanish Courts defending the rights of these managers not to be humiliated. The ECHR concluded that the Spanish Courts did not act unreasonably when they weighed the right of employers not to be defamed by employees at work as more valuable than the right to free expression of the employee at workplace - ultimately deciding that the dismissal of the worker by the employer was a proportionate response. Whilst the case helped make the rights of managers real and effective, workers' rights to expression and work security remained abstract. The European Court of Human Rights did not ask deeper questions about why deference to labour laws structured for an economically liberal system did not pose a challenge to its effective rights doctrine.

How one wants to portray the ECHR of course depends on which palette of cases is picked to paint the portrait.  What is consistent, though, is that the European Court of Human Rights has given more thought to the necessary conditions for broad political liberal ideals of positive and negative liberties to flourish in democratic settings. The heuristic device of “effective rights” has worked well for this purpose. When it comes to economic liberalism, however, the ECHR is an “on and off”  interlocutor about how law and rights as forms obscure underlying substantive social and economic relations. We may expect it to continue both to demystify and contribute to the ‘mystification’ of rights (K. Marx, Capital, vol 1, 729-30) on a case by case basis.

This article is part of the Human rights strand of the Liberalism in neoliberal times series that OurKingdom is running in partnership with Goldsmiths, supported by the Department of Sociology. You can read Kate Nash's introduction to this strand here. You can read Gholam Khiabany's introduction to the whole series here.

Liberalism in neo-liberal times - an OurKingdom partnership with Goldsmiths, University of London