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Protest Culture, Neo-liberalism, and Contingent Human Rights

If protest culture represents the expression of intellectual and political liberty in contemporary neo-liberal societies, it also represents the scope and limitations of such freedoms.
Joe Lockard and Joel Schalit

Issue #65, January 2004

If protest culture represents the expression of intellectual and political liberty in contemporary neo-liberal societies, it also represents the scope and limitations of such freedoms. According to such a perspective, the right to protest and engage in social criticism uncomfortably validates the political constellations that simultaneously produce war, poverty, and neo-colonial power relations. Such are the dialectical antimonies of participatory democracies with free market economies. They express their hostility towards their own democratic political structures through their contradictory embrace of freedom of speech and constitutional rights on the one hand, with laissez-faire economics and military-driven foreign policies on the other.

What makes this uncomfortable balancing act work is the continuous demand for tolerance made by citizens and civil libertarians, specifically state tolerance of the necessary role that dissent always plays in democratic societies. For example, on a visit to Germany in May 2003, greeted by large groups of demonstrators, US President George W. Bush affirmatively stated "That's good. That's democracy. See, I love to visit a place that is confident in her freedom, a place where people feel free to express themselves, because that's what I believe in." Equally, American soldiers in Iraq repeatedly cite US domestic protest as a validation of their military campaign ('we're fighting here so you can protest there'), even as they occupy a foreign country and deny its citizens the most basic of political freedoms.

Protest may gain tolerance, but protest is feared depending on its origin. Media scenes of civil dissent within the dominant West have become part of neo-liberalism's self-complimentary ideological paradigm, whereas protests originating from subordinated cultures and nations represent an intrinsic threat. The confidence that Bush expresses is a belief in the efficacy of internalized social controls that marginalize dissent within powerful metropolitan cultures like those which exist in the US. It is market hubris that Bush exudes, a deeply-held faith that constitutional democracies will consistently reject the destabilizing potential of protest and affirm the ideological values that underwrite social inequality. For such a worldview, protest is the right of ideological losers who pose no intrinsic threat to a transnational, consolidated, expansive, and entrenched middle-class electoral bloc that bases its present and future prosperity on being winners in a global market.

Even if protest should be successful, it also unconsciously confirms a systemic belief in the internal capacity of electoral democracy — a narrowly-conceived understanding of democracy's ultimate potential — to correct its errors and override the contradictory nature of constitutions which guarantee civil but not economic equality. In the United States, for example, the Civil Rights Movement of the 1950s and 1960s achieved retrospective legitimization as corrective social protest that confirmed, not challenged, the democratic nature of the nation, despite the fact that racial discrimination has shifted in nature rather than been eliminated. The social destabilizations of the 1960s and its protests have been converted into historical capital to contribute to confidence in the nation, not a questioning of that confidence. Such expressions of certitude emerge from a consumer confidence in protest as a state-protected value, not in the desirability or efficacy of social protest in practice: protest is one more available commodity and option for consumer dissatisfaction in a democracy.

Dissent and protest evidence the existence of a free market of opinion, one that profits through diverse social valuations and confirms a fundamental governing stability. Communications media provide a nominally free exchange mechanism that informs the market of public opinion, and yet these very same media are the basis of an ideological hegemony that protest criticizes because these media continually reaffirm and normalize the values of American capitalism. And thus the cycle turns on itself as state authority generates protest, protest confirms the existence and legal protection of democratic values, media restate that protest is both part of the democratic value system yet marginal, and this circular hegemonic ideology in turn confirms the benign character of state authority. While protest may always express a post-capitalist utopian horizon that transcends this negative dialectic, in such a scenario, horizons do not consistently — if ever — translate into concrete political practices that transcend their negation by the market.

Under neo-liberalism, protest becomes a morally contradictory engine against state power because it confirms a democratic organization where fundamental human rights — personal autonomy, economic welfare, health, education — are subject to commodity regimentation that prioritizes the market over socio-economic freedoms. To state this is neither to capitulate to such coercive incorporations nor suggest that this represents an irremediable state that cannot be overcome from within a market-driven society. Rather, it is to recognize the neo-eschatology of neo-liberalism. For contemporary neo-liberalism, civil protest constitutes the annunciation of a self-correcting mechanism where perfected repression derives from free expression. If this is the realization of Herbert Marcuse's theory of repressive tolerance, where the state enables opposition only in order to moderate it, it also represents a new and vastly broader elaboration of both repression and tolerance. Where Marcuse's understanding emerged from and was lodged within analysis of single nation-states and manichean Cold War polarities, to analyze the function of protest under the globalizing imperative of neo-liberalism is to elaborate on repressive tolerance as a constituent element of an emergent world system.

Protest as Contingent Human Right

Two forms of contingency condition contemporary human rights: contingencies of state and contingencies of capital. To have a 'right' per se is to be subject to the outcome of social negotiation between interests of states and capital, between citizenship and class. It is not a product of recognizing a greater metaphysical reality of universal human rights, or an ideal type of communicative activity where truth is determined through dialogue and consensus. Dissent and protest exist within the negotiation matrix of these forces no differently than any other assertion of human rights. Yet they have as their idealization a democratic set of affairs that corresponds with undistorted communicative activity, where consensus, policy and difference are arrived at through dialogue between individuals and the communities they belong to, and the state.

Concerning the state, classic liberal defenses of free expression derive from the capacity of protest to change systems of government in an ideally dialogical fashion, whereas under neo-liberalism the defense of free expression originates in its incapacity to alter perceived unalterable principles towards which all economic and governmental systems must converge through globalization. Contemporary protest frequently represents aggregated individual free expression rather than collective action, which does not share the same legal protection.

In the post-September 11 legal environment in many countries, protest as a human right is contingent on its inability to actualize the argumentative and alternative policy contents of political protests. Where protest embodies an actual challenge to the stability of government power or ruling social elites, the contingent nature of that right emerges. Actualization of nominal constitutional rights — such rights as appear guaranteed in nations that participate in global neo-liberal economic and political organizations — leads to their effective neutralization by the transnational economic rights of global corporations guaranteed specified privileges by free trade treaties. Equally, actualization may be conditioned on a protest's perceived test of a state's alignment within and identification with this world system, and particularly its ideological sponsors in the West.

One example of this repressive paradigm appeared during and in the wake of Egyptian protests against the Iraq War. As documented in a Human Rights Watch report released in November 2003, during peaceful demonstrations in late March, Egyptian police dispersed protestors and violated their rights of free assembly, arrested hundreds, mistreated and tortured many detainees, and did not provide medical care. The Egyptian government, heavily reliant on US aid for arms and public works investment, quietly deplored the war but functioned under the constraints of its alliance with the US. To permit uncontrolled public expression of anti-US opposition, even where that expression might not have differed greatly from the private opinions of Egypt's elites was to risk mass demonstrations that might threaten the Mubarak government's 22-year existence. Since the Mubarak government has operated continuously under the emergency police powers of Emergency Law 162, reconfirmed as late as February 2003 and now part of the international 'war on terrorism,' this recent suppression of anti-war protest is only a new instance in a long campaign of social repression. The offense of the anti-war protestors was less their global political opinion, much more its local manifestation and an implicit challenge to business-as-usual with the United States. In this instance, the inconvenience of free expression and free association determined its unacceptability and contingency; or translated into different words, Egyptian anti-war protestors demonstrated that political silence in public is the only right available on a non-contingent basis for non-conformists.

Where the test of free expression and public protest lies in their incapacity to effect significant social change, civil society is undergoing processes of constriction and devaluation of protest. In such environments, the legal price that can be exacted for protest increases commensurate with the disturbance and threat that protest produces. In societies such as Egypt, China, India, Indonesia, Russia, Uzbekistan — and the United States — legal disabilities against protest have significantly increased since September 11, even as the formalities of constitutional protection have remained in place. While rights have retained identical legal formulations as prior to that date, the hollowing out and degradation of the exercise of entitlements has been substantial and continuing. That process has come about through new legislation, re-legislation of emergency powers, implementation of restrictive regulation, exercise of police authority, special judicial and administrative procedures, surveillance regimes, and — often beyond public view but sometimes not - exercise of simple thuggery.

It is factual rather than alarmist, when surveyed within a comparative international context, to observe that the civil liberties associated with exercise of dissent and protest have declined precipitously within these past two and a half years, to levels previously associated with the early Cold War during the 1950s. Then too, a bifurcation of global politics into endlessly antagonistic competition, one that proved to have a quite definite end, was the justification for an assault regime against civil rights. The repressive cultures of that period were penetrated by the protest cultures of Woolworth lunch counter sit-ins and by samizdat underground publishing, each responding to the exigencies of their respective national environments. That depressed era of civil liberties generated numerous protest cultures and movements that redefined legal milieus and the entire concept of human 'rights' as having a more profound, intrinsic, individualized and extensive establishment than civil rights. Similarly, given provocative stimuli from the Patriot Act in the United States and other imitative legislation enacted with or without the consent of national legislative bodies, there are reasonable grounds for arguing that action to restrict the parameters of civil dissent will produce its own antithesis in the form of expanded protest movements. The state, cast as both violator and protector of human rights, is constantly re-invented by its domestic political forces as a social organism that can be improved by evolution or revolution as an improved means of human rights guarantee. Statist contingency is of the political moment, of the cycle between rights expansion and contraction.

The contingent relationship of rights to capital is paradoxically both more obscure and clearer than the dependency of human rights on state recognition and enforcement. Obfuscation of that relationship with capital has been one of the leading characteristics of a neo-liberal concept of human rights. In Values for a Godless Age (2000), for example, Francesca Klug usefully schematized modern political and legal development of human rights into three major waves. A first wave in the late eighteenth century opposed authoritarian polities through emphasizing legal guarantees of liberty, national declarations of rights and equality, opposition to abuse of state and Church powers, and protection of minorities. In a second wave after World War II, international human rights treaties assigned states a positive duty to protect rights and not abuse them, together with creating international courts and monitoring organizations. Klug argues that a distinguishable third wave of human rights has emerged in the context of globalization and the abuses of transnational capital, one that shifts expanded obligations onto socially-responsible corporations through conduct codes and trade agreements, and private NGOs such as Amnesty International, to promote human rights together with the public sector. Quite parallel to the US State Department's country reports on human rights practices, that emphasize an alliance with multinational capital to protect human rights via private-sector organizations (the Global Sullivan Principles, the Fair Labor Association, the Worker Rights Consortium, the SA 8000 initiative, the 'No Sweat' initiative, the Apparel Industry Partnership), this neo-liberal model posits that human rights can be developed via privatization. While acknowledging cultural variations that upset the organizational neatness of this historicization, Klug suggests that countries such as the United States remain embedded within the first-wave approach to rights, whereas Britain — and presumably other EU countries — are participants in the third wave that promotes an evolved human rights ethic. In short, human rights are postulated to emerge as a legal equivalent of punctuated equilibrium in evolutionary science.

The argumentation of Klug's thesis has its compelling moments, but is insufficient, first, in that the roles of protest cultures in the production of these waves are reduced to Carlylean representative intellectual figures and legislative or treaty-making instances. This model represents a historical movement through human rights in the abstract rather than recognition of the critical function of popular mass protest in creating these new statements. However, second and most crucially, her neo-liberal thesis ignores the function of capital in delimiting the content of a human 'right,' a function that capital has played in Europe and the Americas since at least the seventeenth century. Historically capital has had the most adverse effect on the development of human rights via the commodification of humanity, and has been the leader in the suppression of human rights in preference to protection of property rights, whereas neo-liberal ideologies, in the words of one State Department report, are committed "to using the universal language of human rights to build public-private networks to promote democracy and human rights worldwide. . ."

Anti-economic concepts of human rights are in vogue today, despite the work of Amartya Sen and those he influences, although it was the work of generations from Rainborough and the Levellers onwards to ensure the indivisibility of basic economic security from social rights. And yet simultaneously much neo-liberal thought proceeds from postulates that link advancement of economic regimes of benefit to primary capital markets to expansion of human rights globally, and for the citizens of less-developed countries in particular. While neo-liberal social literature contains a diversity of writers and identifiable intellectual threads that in part can explain this contradiction, their reconciliation comes in that what they share at base is acceptance, implicit or explicit, of the commodification of rights. Non- or anti-economic understandings of human rights endorse passively through elision that same commodification 'capital investment equals human rights' advocacies endorse explicitly. Insofar as civil society is conceived as a market by another name, then rights become social products, produced more abundantly by better-functioning market-societies. So viewed from this perspective of interchangeability, a 'right' may be obtained through juridical, legislative or executive commodification equally as through the putative expansion of social liberality through overseas capital investment. That same 'public-private' partnership appears quite differently and more cynically ironic outside buttoned-down human rights reports, under authoritarian governments that carefully balance-test opportunities for the enrichment of local elites against the necessary visible minimum tolerance of expressive rights. Under late twentieth-century neo-liberalism, human rights concepts that emerged in the eighteenth and nineteenth centuries as powerful, sweeping, and revolutionary forces were reduced to market-improvement mechanisms for right-functioning capitalism.

Left protest cultures, as socially progressive or explicitly anti-capitalist formations, have come to embody the antithesis of such rights commodifications. In affirming human rights of democratic expression and opposition to reification of rights, left protest cultures represent a critical challenge to the social grip of repressive tolerance. If the Internationales that emerged from late nineteenth century anti-capitalist protest became a succession of failed monolithic ideological blocs and servants to repressive and atrocious regimes, the twenty-first century anti-globalist, anti-war, and anti-capitalist protest movements are giving rise to organizations like the World Social Forum, fragmented and democratic by design. The political organization emerging from social protest reflexively resembles public manifestations themselves, broad, diverse, and not amenable to authoritative management. To understand protest cultures is thus to engage with one of the most profound sources of contemporary political change.

Joe Lockard is assistant professor of early American literature at Arizona State University. Joel Schalit is associate editor of Punk Planet Magazine. Schalit's books include Jerusalem Calling (Akashic, 2002), The Anti-Capitalism Reader (Akashic, 2002), and Collective Action: A Bad Subjects Anthology, with Megan Shaw Prelinger (Pluto, forthcoming 2004). Schalit is currently working on a book on Middle Eastern politics, Israel Versus Utopia, for Akashic. Both are Bad Subjects editors.

Copyright © 2004 by Joe Lockard and Joel Schalit. All rights reserved.