[What follows is a very slightly edited version of a speech I delivered yesterday at the Danube Institute’s Rule of Law Conference in Budapest. It is a 10-minute summary of many of the themes I have recently been exploring on my Substack and which I will ultimately, in due course, elucidate in a book. You may find it shorter, more discursive and more direct than my usual posts, but this also perhaps makes it more digestible. New readers may choose to look at some of my previous posts for further detail, some examples being here, here, here, here and here.]
What I would like to talk to you about today is the small matter of the future: the trajectory on which we find ourselves as we head towards the end state of liberalism, and indeed, of modernity as such.
This may not be a topic easily dealt with in the course of ten minutes. But examining developments in the field of human rights will help us to achieve our objective. This is because, as the most perceptive of leftist critics have always argued, human rights are fundamentally a technology of liberalism. They produce the liberal subject. By examining the type of subject which human rights produce, we therefore understand better the liberal future that awaits us.
Let me then frame our discussion by asking what the past decade has taught us about what human rights law is really for. And here I will borrow a technique developed by a Hungarian, although he lived for most of his life in France, Anthony de Jasay.
De Jasay observed that if we want to understand the State, it helps to imagine it as a person – with objectives, desires and motives. Let us, then, taking a leaf out of his book, imagine that human rights law is a person. And let us therefore examine human rights law as though it had motives and desires of its own. What, looking at this person’s behaviour – as made manifest in court decisions and the activities of activists and campaign groups – can we glean about his or her project?
Certainly, securing freedom of speech does not appear to be on the agenda – human rights law seems to be intensely relaxed about censorship. Certainly, it is not for the elimination of discrimination as such – human rights law appears to be quite happy with discrimination as long as it can be understood in a positive sense as leading to the goal of substantive equality. And certainly, as we saw in 2020 and 2021, it is not particularly interested in civil liberties – the rights to freedom of association, to freedom of conscience, to bodily autonomy and indeed to liberty itself. Those things human rights law easily and readily sacrifices.
On the other hand, human rights law appears to be very concerned about particular aspects of the rights of immigrants and asylum seekers – namely, the right essentially not to be returned to one’s country of origin in any circumstances. Human rights law appears to value substantive equality – equality of outcome – very highly. During the pandemic, its chief concern appeared to be protecting the most biopolitical of matters: not just health, but life itself. Human rights law, as we have recently seen in the jurisprudence of the European Court of Human Rights, is also extremely worried about climate change. And it is very keen that there should be no diminution in the size and scope of the welfare state. These are the things, then, which human rights law would seem to care about most.
Thinking of human rights in this way, as though it is a person, with a will and a consciousness, therefore helps us very easily understand what its purpose is. And, holding it up for examination in this way, we see that this purpose is absolutely not a matter of limiting the power of the State. Far from it. Human rights law’s chief concern is rather to facilitate the expansion of the scope of State power to each and every horizon – to bring within its purview not only the means of human subsistence, not only the substantive equality of each and every individual human being, not only the populations of every part of the globe if they are able to make the physical journey to a human rights-respecting location, not only sickness and disease, not only even human life but the very climate itself. There is no aspect of economic, social, cultural or naked biological life that is beyond its ambition.
Human rights, then, is a technology of liberalism par excellence if we understand liberalism not as a limited form of government but rather as how Leo Strauss described it – as that form of government which promises complete emancipation within the universal and homogeneous state. A state in which all are made equal, all are freed from conditions of want, and all human difference is made politically irrelevant because all are secured in the mutuality of recognition.
Strauss was of course commenting on the thought of Alexandre Kojève. But it is through another Straussian sparring partner – separated by centuries of time – to whom we must turn to properly understand this phenomenon: namely Niccolò Machiavelli.
Strauss presents Machiavelli to us as the central figure in the break between modernity and what came before it. This is because Machiavelli represents an understanding of government as being grounded only in temporal justification – never theological justification. The practice of modern government gets its legitimacy and its justification from the fact that it, precisely, ‘governs’: it acts upon the world.
For Machiavelli, this meant modern government could be understood as a relationship between governor and governed in which the former must at all times ‘govern’ in such a way as to secure the loyalty of the latter. Without that loyalty, the relationship would break down and the governing framework would collapse. The modern state’s obsession, then, would be to govern in such a way as to retain the population’s loyalty. And those familiar with Machiavelli will know that he believed there were only two ways in which this could be realised. The state could represent the norms and virtues of the population as a republic. Or it could rule the population as a prince. In a republic, loyalty is secured by the connection between government and people. In the principality, loyalty is secured by the purported necessity of government, without which the population will decay into corruption.
The rule of the prince, then, relies on a discourse through which the population is constructed as vulnerable, needy and decadent – incapable of being left to its own devices, and incapable of governing itself. Government justifies itself, in this model, through a portrayal of itself as indispensable, since the people, without it, are corrupt.
In Chapter VI of The Prince, we see this stated very succinctly, in the course of a single sentence. “It was necessary”, Machiavelli tells us, “For Moses to find the people of Israel slaves in Egypt and oppressed by the Egyptians, in order that they might be disposed to follow him to escape this servitude.” Note the emphasis: it was necessary for Moses that the people of Israel were in a position of vulnerability, destitution and enslavement, that he might be the one to free them and that they might therefore be disposed to follow him.
This is, in essence, the promise which the modern State, and modern liberalism, which increasingly rejects the concept of representative government, makes. Trust in me, and let me lead you, because without me all is chaos. You, the people, cannot be trusted to govern your own affairs, cannot be trusted to cooperate with each other directly, and cannot be left alone – because to do so would be to give effect to your own corruption. It is I, the State, who can free you from want, who can deliver you to a position of perfect equality, who can liberate you from any and all constraint, who can protect you from sickness and death, and who can even protect you from the climate itself. This is the reason why I exist, why I govern, and why I should retain your loyalty.
I will not belabour the point, which should by now be clear, which is that human rights law, in its current iteration, functions as the quintessential tool of liberal political reason. What I mean by this, and those familiar with the work of Michel Foucault will recognise that I borrow his language, is that human rights law functions to justify the exercise of government in the liberal mode – it provides a reason, or a set of reasons, why a liberal governing framework should exist and perpetuate itself.
And it should also be clear now as to the type of human subject which human rights law produces, and the type of relationship which that human subject has towards the State: one of total reliance, in which the individual is liberated, equalised, made secure and morally improved by State power, and in which – by extension – the total merger of State and society, wherein the justification for the existence of government will never be questioned, is ultimately realised. That is the trajectory on which we travel, and it is that project for which human rights is the vanguard. Elaborating the substantive nature of that end state is beyond the scope of my comments here, but I daresay we will see it play out in due course.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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Expurgated version of the headline
“Labour Hasn’t Done its Homework”
The policy may well be “crackers” but it plays well to the audience Labour plays to. But I don’t much care whether it is crackers or not, I just think it’s wrong because it is a politically motivated attack on people exercising their free choice to opt out of the state indoctrination camps.
Well said – this is the heart of the matter. Not only do private schools enable people to escape indoctrination, they supply employment to a tranche of the educated class – like the author – who in one way, shape or form object to overweening state power. The left longs to impoverish such heretics. Finally, as bastions of high standards and free thought (now somewhat compromised), private institutions doubly expose the abysmal failure of the comprehensive dump. With Stalinist tenacity and no care at all for real world fallout, the malignant, oppressive goons of the left want to stamp them out. The darkness, in matters of schooling, policing, health, banking, foreign policy (the long kow-tow to red Beijing), the church, the media, the arts, journalism, has never been more Stygian in my lifetime.
Indeed – I would not want to work in any school (and few schools would have me, as I am Literally Hitler) but if I had to then an independent school could be an option, if it had the right leadership.
I went to a local boys’ private school as a day pupil back in the 1980s on an assisted place. My parents were both working and, with a lot of sacrifices, were able to send my brother and me to the school. When my Mum lost her job at our local TV station as a result of the 1990s’ ITV franchise war closing many TV stations around the country, I left the school because I wasn’t happy there and restarted my A Levels at a further education college. My brother left when he finished his GCSEs.
Now, there’d be no possibility of people like my brother and me ever going there in the first place. A VAT increase would wipe out even more pupils and close many. I can imagine all the schools are looking to the super-rich from abroad, the same as the universities.
From what I understand, my old school is a co-educational school now – I haven’t been involved with old boys’ clubs or anything. It’s likely woke as hell, doing everything the leftists want.
My conclusion is that the wealthy leftists who now run much of the left in this country want these schools for their children and no one else’s. We’re in the odd situation here – one that’s happened with Democrats in the USA – where the left are run by the super-rich and the right of centre, usually self-made, are less rich.
I live in an area of north London where the private schools have been taking unfair advantage of their privileged tax status in engaging in extremely expensive luxurious development projects to the detriment of their resident neighbours. These projects are driven by the headmater wanting to create a legacy but primarily in trying to cater nowadays for an extremely wealthy international clientele rather than as used to be local children. Private schools and universities too need to go back to looking after the locals not foreigners, otherwise privately educated people like me, will also question why they should be having these tax advantages.
Well that may be the case for the schools you have in mind and possibly others, but it’s surely not the case for all of them. You could also argue that people sending their kids to those schools are saving taxpayer’s money so why not reward that in part?
I think universities are a different case as they are effectively subsidised by the taxpayer because student “loans” are not loans and are underwritten by the government. You could also argue that charging foreign students/pupils lots of money subsidises it for the locals.
Why are they not loans? Interest is charged and they are repayable (unless you can’t afford to repay them) – you can’t just walk away from them if you earn sufficient income over many years.
It’s a graduate tax, not a loan. What other “loan” products are simply forgiven if you “don’t have enough money” to pay them back? When you take out a loan, both parties risk something – the lender risks not getting their money back, the lendee risks a CCJ and ruined credit score, or bankrupty. Students loans are risk-free for students and universities. The effect has been to subsidise a huge increase in people going to university partly from those who graduate and earn decent money, which I don’t think completely unreasonable, and partly from general taxation because such a high % of “loans” are likely to be defaulted on.
I could equally ask what tax are you aware of that is calculated by reference to a principal advanced and and annual interest rate. It feels like a blend of the two, possibly.
None that I am aware of but calling it a loan was political theatre so they had to dress it up, though to be fair it’s capped in terms of the total amount paid which is unusual for a tax
I’ve always found the charitable status odd. Are the ‘fees’ in effect a donation to a charity? The private school I went to had a lot of rundown areas, substandard desks and the lockers were rusty, battered and falling to bits. When I was at the end of my first year there, loads of posh new lockers got put in the entry hall, covered in plastic wrapping. Great! I thought. We’ll have those next year. I forgot about them over the summer holiday.
In the sixth form, the school’s fortunes had turned somewhat. The yearly intake had dropped by 25 per cent and half my year group quit after GCSEs to do A Levels elsewhere, which was a shock to the school. I left at the end of the first year sixth form. One time, I was in the school basement in the only year I did in the sixth form, helping a porter with move some tables. Those hundreds of ‘new’ lockers were all down there, still wrapped in plastic. They’d used the money from the likes of my parents and the state to buy new gear to keep for future generations, long after I was gone. I felt somewhat aggrieved about that, given the state of the lockers being used the whole time I was there. The school went fully co-ed a couple of years after I left. When I was there the sixth form, the school had quite a few girls, but they managed a paltry eight when I was in the sixth form.
Apparently lots of ex-pupils still hang out together at the school’s old boys’ club. I couldn’t imagine doing that. I got the hell out of there and never went back. Never really saw anyone from there again unless I bumped into them by chance. Lots went to the further education college. I had nothing in common with them anyway, being an assisted place pupil.
That said, parents who use private health and send their kids to private school should be able to get significant tax relief for taking the burden off the state system.
I think the schools qualify as “charities” if they meet certain criteria, such as offering x assisted places or having their pupils doing local community work (helping old folks, teaching reading in schools, etc) or allowing local residents access to sports facilities.
Hello, Chips here, there are not “tax advantages”. There would be “tax advantages” if other people were paying for Education and it was taxed. But they aren’t. 93pc of the market is provided via a state-run, state-funded near monopoly. The VAT-free status of top schools is not far off equivalent, per pupil, to the tax-paid expense in the state sector.
Nobody pays VAT on education. Some people get their education for “free”. Those that pay handsomely are not using the “free” education they are entitled to, they are instead paying quantities of income tax etc to buy education a second time.
I’m pretty convinced that nobody in Labour cares about arcane stuff like second- and third-order effects. They simply need money. And hence, they’re looking for a way to raise indirect taxes people cannot avoid by clever tax evasion schemes. They’re going to raise whatever can be raised and find then out what the outcome will be.
Indeed – and if they can do that by taxing the “rich” then so much the better.
And ‘rich’, in the left’s view, means ‘middle class’. ‘Super rich’ don’t count as they’re the Labour donor class.
Indeed. Most people I know are middle class but are well off enough to live in areas with reasonable state schools, so they will be happy to continue voting Labour, as most of them already do.
There is the conundrum in Labour. From their ivory towers, their six figure salaries and plush lives, I doubt if any Labour politician even knows any poor people anymore (Maybe a cleaner or their gardener). They have no connection with the granite of our nation and cannot grasp the obvious truth that the ONLY people who are taxed in our country are the rich. The only way to make more taxes is to MAKE MORE PEOPLE RICH.
Its the age old story of the guy driving past the bus queue in his Rolls Royce. The Free marketeer will say. ‘Gosh, If I work hard, I might have one of those one day’, and the Socialist will say ‘Look at him, Why doesn’t he catch the bus like us.?’. C’est la vie comrade.
They have no connection with the granite of our nation and cannot grasp the obvious truth that the ONLY people who are taxed in our country are the rich.
That’s obviously wrong because there are plenty of indirect taxes on all kinds of things (and probably second-order indirect taxes, too, eg, assuming someone buys a beer, that someone pays alcohol duty on the price of the beer and VAT on the price of the beer plus alcohol duty — at least, that’s how it works in Germany) and these not only affect everyone, they also affect poorer people disproportionally because these have to spend a higher part of their income which is thus subject to such taxation.
I’m also pretty certain that I’m being taxed and while I earn enough to make savings, I’m far from rich. Rich people own property and can thus make handy amounts of money without working (I’m meanwhile paying £1000 per month as rent for a pretty run-down and chronically mould-infested flat which cannot really be heated in winter, at least not to temperatures people apparently take for granted, ie, something in excess of 15 degrees centigrade [probably less — occasional chattering of teeth on colder days is a regular occurence]).
Fair comment. I had income taxes in my mind when I was typing
.
Hello, Chips here. If Labour don’t care about the effects, which are not “arcane” they are the reality of people’s lives, they must not form a government.
I wonder what is your point….do you agree with me they won’t raise any tax, and will probably cost more, therefore it’s a terrible policy? Or do you instead believe it will raise £1.5bn or whatever, in which case please explain why my reasoning is wrong? Or do you think it’s OK for Labour to wage class war and never mind the cost….that harming posh people is a pleasure not a chore, even if poor people suffer in the process?
As I have done my best to explain in the article, it’s not a particularly “clever” tax evasion, to withdraw kids from private school, then quit work (or go part-time, or retire early); and it certainly isn’t “clever” if schools are forced to cut costs and in the process of destroying taxable activity, less tax is raised.
That’s genrally the route that the ‘politics of envy’ follow. My only concern would be that those hypocritical members of the Labour party, who decry private education but ensure their childen get the benefot from it, will have to get the same crap state education as us proles get.
The kind of people affected by this policy are not stupid.
There are many options open to them.
Many of their older offspring already now avoid swingeing university fees by studying overseas for a great deal less.
It is no surprise that the private tutor market is booming. By the way, what is the difference between private tutors and private education?
It is also no surprise that property prices continue to boom in the vicinity of the many outstanding state schools that do exist.
But the continued obsession of the labour party to reduce choice, diversity, in this country is a reaffirmation of their commitment to totalitarian socialism.
Therein lies the Conservative route back to power if only they were not so hopelessly dim……
Absolutely. There are burgeoning “British private schools” in Portugal at half the price. South Africa is an option too. As is home school.
Which is all part of why there is no money in this policy.
Many parents scarpe by to fund private education. If the cost increases they may send their children to state schools or they may reduce their expenditure on other things. The latter would reduce the tax take from (eg) home improvements, meals out and holiday spending.
Just as with private medical choice, this would make private choices more elitist which would no doubt be welcomed by Pimlico Plumbers, Blair and others who have managed to geta great deal of money for doing not much.
That’s a good point. In the UK private schools tend to be thought of as something for rich families but in low-income countries even very poor parents send their children to private schools, run on a shoestring budget, just to get better tuition. In the UK there may be at least some private schools that are not targeted at wealthy families – out of hours supplementary schools for cultural minorities come to mind.
These days, going to an elite private school makes it very difficult to get into Oxford or Cambridge, not that one would want to.
Labour fail to do their due diligence once again
it is not because we have money we send our children to independent schools but because the safeguarding failures and harmful curriculum within the state system.
Remove the VAT relief and those that are able to will sacrifice even more than they already have to keep their precious children from the State sponsored bricks and mortar schools. For those that would be unable to meet the cost increase we’ll not roll over and send them back to the cesspits but would find an alternative way be that online schooling, home-ed etc.
Thank you, I agree
Ironically, all that Labour’s policy will achieve is the closure of a large number of “lower grade” and therefore lower priced private schools ….. leaving a small number of extremely expensive, elitist institutions – stuffed with the children of the mega-wealthy.
That smaller number of extremely expensive, elitist institutions will continue to dominate the governmental (in the widest sense) Old Boy’s Club which is destroying this country …. with an even more concentrated Group-Think of individuals completely detached from the lives/life experiences of the vast majority of the population.
And State schools, which will have to cope with an influx of pupils forced out of the private sector, won’t have their standards raised; they’ll be lowered as the former private pupils will be a small minority. It is quite likely that the lefty teachers will actively discriminate against them.
State Education – already pretty bad – will sink to the levels of the Socialist NHS.
Thank you, yes I also doubt that State Schools are capable of absorbing an influx. Many have physical constraints. They don’t have the organisation in place. And the inflx won’t be evenly spread, it will be some schools with dozens or hundreds of ex-private school children at the gates.
Even if there was extra money (which there won’t be) the expansion programme will need to be driven by LEAs, and there’s no way they can deliver anything without swallowing half the expense in their own bureaucracy
There are at least two unintended tax consequence here.
My own observation over many years is that a significant subsidy to school fees is made by grandparents. If, in order to meet increased fees, grandparents increase that subsidy then the likelihood is that Inheritance Tax down the line will be reduced – assuming IHT still exists of course.
In addition, I’d like to see the exact calculations on an example school. VAT is a complex tax and having done some work in the past on VAT exemption for education, the outcomes of the application of VAT on fees and the consequential ability to reclaim VAT on purchases will create some unexpected consequences and anomalies, with no two schools being the same.
At the very least I would expect a blanket application of VAT on school fees to trigger a large raft of complex, expensive and time-consuming tax tribunal cases as each school makes a case for its own VAT treatment.
As always, Labour is looking through the wrong end of the telescope. Outside of the super rich, us ordinary folks choose a private education for our kids because the state system is genrally poor. If the state system was improved, the demand for private education would fall away.But that will never happen as the Labour supporting teaching unions don’t believe in excellenc, or even improving people.