Negative governmentality through fundamental rights: The far side of the European Convention on Human Rights

• Published date: 01 September 2018
• Date: 01 September 2018
• DOI: http://doi.org/10.1111/eulj.12242

ORIGINAL MANUSCRIPT

Negative governmentality through fundamental

rights: The far side of the European Convention on

Human Rights

Muhammad Ali Nasir*

Abstract

This essay analyses those statements that mention legal norms in negative terms. Specifically, it analyses those

statements that define a legal system by mentioning how legal protection does not work and where legal protec-

tion ends, and those statements that identify what rights‐holders do not have to with their legally protected free

capacities. This essay argues that these statements address a systemic question. It calls such a dynamic as nega-

tive governmentality. The argument proceeds in four steps. It introduces the concept of negative governmentality

by arguing that the idea of freedom requires both the positive affirmation of moral agency and the constraining of

moral agency (Section 2). It then explores how rights constitute freedom by limiting rights or making exceptions to

them (Section 3). Later, it analyses how rights‐based norms prevent abuse of rights by holders of rights (Section 4).

Finally, it sees how rights‐based norms constrain the legal guarantor of rights, i.e., a state (Section 5). The essay

concludes by mentioning the importance of negative governmentality (Section 6).

The nature of an use is best discerned by considering first, what it is not; and then what it is: for it is the

nature of all human science and knowledge to proceed most safely by negative and exclusion, to what is

affirmative and inclusive.

Francis Bacon, On the Statute of Uses

1

The concept of freedom is a pure concept of reason. It does not constitute an object of any theoretical

knowledge that is possible for us; and it can by no means be valid as a constitutive principle of

speculative reason, but can be valid only as a regulative and, indeed, merely negative principle of

speculative reason.

Immanuel Kant, Introduction to the Metaphysics of Morals

2

*

PhD Candidate, Institut für Politische Wissenschaft, Ruprecht‐Karls‐Universität Heidelberg, Heidelberg, Germany. I am grateful to

Mark Tushnet, Tom Poole, and Michael Haus for their comments on an earlier version of this essay. Special thanks are due to the

anonymous reviewers and, particularly to Agustín José Menéndez, the editor, of the European Law Journal for their useful feedback

at every stage of writing. The usual disclaimer applies.

1

J. Spedding, R.L. Ellis and D. D. Heath (eds.), The Works of Francis Bacon (Houghton, 1857), at VII: 398.

2

I. Kant, Metaphysical Elements of Justice (first published 1797, Hackett 1999; translated by J. Ladd), at 14 (original emphasis).

Received: 26 April 2016 Revised: 6 February 2017 Accepted: 25 July 2017

DOI: 10.1111/eulj.12242

Eur Law J. 2018;24:297–320. © 2018 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 297

1|Introduction

One of the key arguments of Jeremy Bentham against the French Declaration of Rights (the 1789 Declaration of the

Rights of Man and of the Citizen) concerned the syntax of the document. The reader of the Declarationcould easily be

deluded into thinking that the rights enshrined in the text were virtually limitless, because no explicit reference was

made to limits, restrictions and exceptions.

Suppose a declaration to this effect: No man's liberty shall be abridged in any point. This, it is evident, would

be an useless extravagance, which must be contradicted by every law that came to be made.

3

This is what justified Bentham's characterisation of the Declaration as ‘nonsense upon stilts’:‘This, we see, is

nothing: It leaves the law just as free and unfettered as it found it’.

4

One need not agree with Bentham's full theory of rights to be of the view that he had a point when he

emphasised the importance of limits and restrictions in the full and proper definition of rights. Quoting Bentham again:

‘No law can be made that does not take something from liberty; those excepted which take away, in the whole or in

part, those laws which take away from liberty’.

5

In other words, rights have to be set in their socio‐economic and polit-

ical context, something which requires focusing on the formally ‘negative’side of rights, that is, on limitation clauses,

exceptions and anti‐abuse provisions. Limitations and restrictions not only render the definition complete, but also

play a fundamental role in shaping and moulding the very understanding of rights entertained by rights‐holders. It

can thus be argued that fundamental rights play a key role in the governing of European societies, not only by

affirming certain normative standards (and in the process producing normative knowledge) but also by deeply shaping

the way in which the addressees of the law regard themselves and their environment.

In this article, I offer a systematic reconstruction of the ‘negative’clauses of the European Convention on Human

Rights, in particular its limitation and exception clauses (Section 3), its anti‐abuse clause (Article 18, analysed in Sec-

tion 4) and last, but not least, the clause that restricts the extent to which states can limit or except rights (Article 18,

considered in Section 5). The next section is devoted to exploring the role of rights in the governing of European soci-

eties, in what, following Foucauldian terminology, we may refer to as ‘negative governmentality’,or, more precisely, as

‘negative intergovernmentality’.

One methodological caveat. The article is written across disciplinary and substantive ‘borders’. Quite obviously,

the article speaks to debates in the literature on the European Convention on Human Rights, and more generally,

about the protection of fundamental rights. The key claim in this regard, as already pointed out, is that proper under-

standing of the Convention rights depends on considering not only the ‘positive’definition of rights, but also their

‘negative side’.It is the latter, as just underlined, that provides an understanding of the systemic relationship between

the different Convention rights, or to put it differently, a systemic reconstruction of the content of the Convention. At

the same time, however, the article engages with the politico‐scientific debates on governmentality, that is, with lit-

erature that focuses on the way conduct is governed.

6

In particular, it seems to me that a legally‐grounded analysis

may contribute to filling a major gap in such (i.e., governmentality) analyses, i.e., the extent to which the shaping of

3

J. Bowring (ed.), The Works of Jeremy Bentham (William Tait, 1843), at II: 493a.

4

Ibid.

5

Bowring, above, n. 3, at II: 493b.

6

E.g., M. Foucault, Security, Territory, Population: Lectures at the College de France 1977–1978 (Palgrave Macmillan, 2007); M.A. Nasir,

‘Governing (through) Religion: Reflections on Religion as Governmentality’, (2016) 42 Philosophy & Social Criticism, 873; B. Sokhi‐

Bulley, ‘Government(ality) by Experts: Human Rights as Governance’, (2011) 22 Law & Critique, 251; M.A. Nasir, ‘Weighing Words:

On the Governmentality of Free Speech’, (2016) 25 Social & Legal Studies, 69; M.A. Nasir, ‘Between the Metropole and the Postcolony’,

(2015), 34 Environment and Planning D: Society and Space, 1003; N. Rose, P. O’Malley and M. Valverde, ‘Governmentality’, (2006) 2

Annual Review of Law and Social Science, 83; M.A. Nasir, ‘Biopolitics, Thanatopolitics and the Right to Life’, (2017) 34 Theory, Culture,

and Society, 75.

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