The Paradoxes of Human Rights

Costas Douzinas, Birkbeck Institute for the Humanities, University of London                     Constellations, An International Journal of Critical and Democratic Theory, Volume 20, Issue 1, pages 51-67, March 2013                                       

A new ideal has triumphed on the world stage: human rights. It unites traditional enemies, left and right, the pulpit and the state, the minister and the rebel, the developing world and the liberals of the West. The new world order, we are told, is genuinely liberal democratic. Ideological controversies of the past have given way to general agreement about the universality of western values and have placed human rights at the core of international law. After the collapse of communism, human rights have become the ideology after the end of ideologies, at the end of history, the morality of international relations, a way of conducting politics according to ethical norms.

And yet many doubts persist. The record of human rights violations since their ringing declarations at the end of the eighteenth century, after WWII and again since 1989 is quite appalling. If the twentieth century is the epoch of human rights, their triumph is, to say the least, something of a paradox. Our era has witnessed more violations of their principles than any previous, less “enlightened” one. Ours is the epoch of massacre, genocide, and ethnic cleansing. At no point in human history has there been a greater gap between the north and the south, between the poor and the rich in the developed world, or between the seduced and the excluded globally. Life expectancy at birth is around 45 years in sub-Saharan Africa but over 80 years in Northern Europe. No belief of progress allows us to ignore that never before in ‘peacetime’ and in absolute figures, have so many men, women, and children been subjugated, starved, or exterminated.

There is a second paradox: if the world has accepted a common humanitarian vision, have conflicts of ideology, religion, and ethnicity ceased? Obviously not. This means that human rights have no common meaning or that the term describes radically different phenomena. There is something more: human rights are perhaps the most important liberal legal institution. Liberal jurisprudence and political philosophy, however, have failed rather badly in their understanding of rights. Two hundred years of social theory and the three major ‘continents’ of thought, according to Louis Althusser, do not enter the annals of jurisprudence: Hegel, Marx, the post-Marxists, and the dialectic of struggle; Nietzsche, Foucault, and the analytics of power; Freud, the post-Freudians, psychoanalysis and subjectivity. As a result, jurisprudence and political philosophy return to the 18th century and update the social contract with ‘original positions’ and ‘veils of ignorance,’ the categorical imperative with ‘ideal speech’ situations and fundamental discourse principles all referring to individuals fully in control of themselves.

The mainstreaming of human rights and the rise of cosmopolitanism coincided with the emergence of what sociologists have called “globalization,” economists “neo-liberalism,” and political philosophers “post-democratic governance.” Is there a link between recent moralistic ideology, greedy capitalism and bio-political governmentality? My answer is a clear yes. Nationally, the bio-political form of power has increased the surveillance, disciplining, and control of life. Morality (and rights as morality's main building block in late capitalism) was always part of the dominant order, in close contact with each epoch's forms of power. Recently, however, rights have mutated from a relative defense against power to a modality of its operations. If rights express, promote and legalize individual desire, they have been contaminated by desire's nihilism. Internationally, the modernist edifice is undermined at the point when the completion of the decolonization process and the relative rise of the developing world create the prospect of a successful defense of its interests. The imposition of ‘cosmopolitan’ economic, cultural, legal, and military policies is an attempt to reassert western hegemony.

The wars of the new world order as well as the 2008 economic crisis and its political culmination in 2011 give us a unique opportunity to examine the post-1989 settlement. The best time to demystify ideology is when it enters into crisis. At this point, the taken for granted, “natural”, invisible premises of ideology come to the surface, become objectified, and can be understood for the first time as constructs. The ‘humanitarian’ interpretation of the Iraq and Afghanistan wars highlighted the absurdity of killing humans to ‘save’ humanity. The absence of human rights demands in Madrid, Athens, or Occupy Wall Street indicated their limited relevance for the most important movement of our times. In the wake of this world wave of protest, several major themes of political philosophy need to be re-visited.

This essay briefly presents an alternative approach to human rights built over a long period of campaigning and scholarship in a trilogy of books.1 It follows the insight that the term human rights, with its immense symbolic capital, has been co-opted to a large number of relatively independent discourses, practices, institutions and campaigns. As a result no global ‘theory’ of rights exists or can be created. Different theoretical perspectives and disciplinary approaches are therefore necessary. This article starts a short history of the idea of humanity and moves to the political, legal, philosophical, and psychological aspects of rights. To indicate this multi-layered approach, it puts forward an axiom and seven theses that re-write the standard liberal approach to rights.

The Human Rights Axiom

The end of human rights is to resist public and private domination and oppression. They lose that end when they become the political ideology or idolatry of neo-liberal capitalism or the contemporary version of the civilizing mission.

Thesis 1

The idea of ‘humanity’ has no fixed meaning and cannot act as the source of moral or legal rules. Historically, the idea has been used to classify people into the fully human, the lesser human, and the inhuman.

If ‘humanity’ is the normative source of moral and legal rules, do we know what ‘humanity’ is? Important philosophical and ontological questions are involved here. Let me have a brief look at its history.

Pre-modern societies did not develop a comprehensive idea of the human species. Free men were Athenians or Spartans, Romans or Carthaginians, but not members of humanity; they were Greeks or barbarians, but not humans. According to classical philosophy, a teleologically determined human nature distributes people across social hierarchies and roles and endows them with differentiated characteristics. The word humanitas appeared for the first time in the Roman Republic as a translation of the Greek word paideia. It was defined as eruditio et institutio in bonas artes (the closest modern equivalent is the German Bildung). The Romans inherited the concept from Stoicism and used it to distinguish between the homo humanus, the educated Roman who was conversant with Greek culture and philosophy and was subjected to the jus civile, and the homines barbari, who included the majority of the uneducated non-Roman inhabitants of the Empire. Humanity enters the western lexicon as an attribute and predicate of homo, as a term of separation and distinction. For Cicero as well as the younger Scipio, humanitas implies generosity, politeness, civilization, and culture and is opposed to barbarism and animality.2 “Only those who conform to certain standards are really men in the full sense, and fully merit the adjective ‘human’ or the attribute ‘humanity.’”3 Hannah Arendt puts it sarcastically: ‘a human being or homo in the original meaning of the word indicates someone outside the range of law and the body politic of the citizens, as for instance a slave – but certainly a politically irrelevant being.’4

If we now turn to the political and legal uses of humanitas, a similar history emerges. The concept ‘humanity’ has been consistently used to separate, distribute, and classify people into rulers, ruled, and excluded. ‘Humanity’ acts as a normative source for politics and law against a background of variable inhumanity. This strategy of political separation curiously entered the historical stage at the precise point when the first proper universalist conception of humanitas emerged in Christian theology, captured in the St Paul's statement, that there is no Greek or Jew, man or woman, free man or slave (Epistle to the Galatians 3:28). All people are equally part of humanity because they can be saved in God's plan of salvation and, secondly, because they share the attributes of humanity now sharply differentiated from a transcended divinity and a subhuman animality. For classical humanism, reason determines the human: man is a zoon logon echon or animale rationale. For Christian metaphysics, on the other hand, the immortal soul, both carried and imprisoned by the body, is the mark of humanity. The new idea of universal equality, unknown to the Greeks, entered the western world as a combination of classical and Christian metaphysics.

The divisive action of ‘humanity’ survived the invention of its spiritual equality. Pope, Emperor, Prince, and King, these representatives and disciples of God on earth were absolute rulers. Their subjects, the sub-jecti or sub-diti, take the law and their commands from their political superiors. More importantly, people will be saved in Christ only if they accept the faith, since non-Christians have no place in the providential plan. This radical divide and exclusion founded the ecumenical mission and proselytizing drive of Church and Empire. Christ's spiritual law of love turned into a battle cry: let us bring the pagans to the grace of God, let us make the singular event of Christ universal, let us impose the message of truth and love upon the whole world. The classical separation between Greek (or human) and barbarian was based on clearly demarcated territorial and linguistic frontiers. In the Christian empire, the frontier was internalized and split the known globe diagonally between the faithful and the heathen. The barbarians were no longer beyond the city as the city expanded to include the known world. They became ‘enemies within’ to be appropriately corrected or eliminated if they stubbornly refused spiritual or secular salvation.

The meaning of humanity after the conquest of the ‘New World’ was vigorously contested in one of the most important public debates in history. In April 1550, Charles V of Spain called a council of state in Valladolid to discuss the Spanish attitude towards the vanquished Indians of Mexico. The philosopher Ginés de Sepulveda and the Bishop Bartholomé de las Casas, two major figures of the Spanish Enlightenment, debated on opposite sides. Sepulveda, who had just translated Aristotle's Politics into Spanish, argued that “the Spaniards rule with perfect right over the barbarians who, in prudence, talent, virtue, humanity are as inferior to the Spaniards as children to adults, women to men, the savage and cruel to the mild and gentle, I might say as monkey to men.”5 The Spanish crown should feel no qualms in dealing with Indian evil. The Indians could be enslaved and treated as barbarian and savage slaves in order to be civilized and proselytized.

Las Casas disagreed. The Indians have well-established customs and settled ways of life, he argued, they value prudence and have the ability to govern and organize families and cities. They have the Christian virtues of gentleness, peacefulness, simplicity, humility, generosity, and patience, and are waiting to be converted. They look like our father Adam before the Fall, wrote las Casas in his Apologia, they are ‘unwitting’ Christians. In an early definition of humanism, las Casas argued that “all the people of the world are humans under the only one definition of all humans and of each one, that is that they are rational…Thus all races of humankind are one.”6 His arguments combined Christian theology and political utility. Respecting local customs is good morality but also good politics: the Indians would convert to Christianity (las Casas’ main concern) but also accept the authority of the Crown and replenish its coffers, if they were made to feel that their traditions, laws, and cultures are respected. But las Casas’ Christian universalism was, like all universalisms, exclusive. He repeatedly condemned “Turks and Moors, the veritable barbarian outcasts of the nations” since they cannot be seen as “unwitting” Christians. An “empirical” universalism of superiority and hierarchy (Sepulveda) and a normative one of truth and love (las Casas) end up being not very different. As Tzvetan Todorov pithily remarks, there is “violence in the conviction that one possesses the truth oneself, whereas this is not the case for others, and that one must furthermore impose that truth on those others.”7

The conflicting interpretations of humanity by Sepulveda and las Casas capture the dominant ideologies of Western empires, imperialisms, and colonialisms. At one end, the (racial) other is inhuman or subhuman. This justifies enslavement, atrocities, and even annihilation as strategies of the civilizing mission. At the other end, conquest, occupation, and forceful conversion are strategies of spiritual or material development, of progress and integration of the innocent, naïve, undeveloped others into the main body of humanity.

These two definitions and strategies towards otherness act as supports of western subjectivity. The helplessness, passivity, and inferiority of the “undeveloped” others turns them into our narcissistic mirror-image and potential double. These unfortunates are the infants of humanity. They are victimized and sacrificed by their own radical evildoers; they are rescued by the West who helps them grow, develop and become our likeness. Because the victim is our mirror image, we know what his interest is and impose it “for his own good.” At the other end, the irrational, cruel, victimizing others are projections of the Other of our unconscious. As Slavoj Žižek puts it, “there is a kind of passive exposure to an overwhelming Otherness, which is the very basis of being human…[the inhuman] is marked by a terrifying excess which, although it negates what we understand as ‘humanity’ is inherent to being human.”8 We have called this abysmal other lurking in the psyche and unsettling the ego various names: God or Satan, barbarian or foreigner, in psychoanalysis the death drive or the Real. Today they have become the “axis of evil,” the “rogue state,” the “bogus refugee,” or the “illegal” migrant. They are contemporary heirs to Sepulveda's “monkeys,” epochal representatives of inhumanity.

A comparison of the cognitive strategies associated with the Latinate humanitas and the Greek anthropos is instructive. The humanity of humanism (and of the academic Humanities9) unites knowing subject and known object following the protocols of self-reflection. The anthropos of physical and social anthropology, on the other hand, is the object only of cognition. Physical anthropology examines bodies, senses, and emotions, the material supports of life. Social anthropology studies diverse non-western peoples, societies, and cultures, but not the human species in its essence or totality. These peoples emerged out of and became the object of observation and study through discovery, conquest, and colonization in the new world, Africa, Asia, or in the peripheries of Europe. As Nishitani Osamu puts it, humanity and anthropos signify two asymmetrical regimes of knowledge.10 Humanity is civilization, anthropos is outside or before civilization. In our globalized world, the minor literatures of anthropos are examined by comparative literature, which compares “civilization” with lesser cultures.

The gradual decline of Western dominance is changing these hierarchies. Similarly, the disquiet with a normative universalism, based on a false conception of humanity, indicates the rise of local, concrete, and context-bound normativities.

In conclusion, because ‘humanity’ has no fixed meaning, it cannot act as a source of norms. Its meaning and scope keeps changing according to political and ideological priorities. The continuously changing conceptions of humanity are the best manifestations of the metaphysics of an age. Perhaps the time has come for anthropos to replace the human. Perhaps the rights to come will be anthropic (to coin a term) rather than human, expressing and promoting singularities and differences instead of the sameness and equivalences of hitherto dominant identities.

Thesis 2

Power and morality, empire and cosmopolitanism, sovereignty and rights, law and desire are not fatal enemies. Instead, a historically specific amalgam of power and morality forms the structuring order of each epoch and society.

We will explore the strong internal connection between these superficially antagonistic principles, at the point of their emergence in the late 18th century here and in the post-1989 order in the next part.

The religious grounding of humanity was undermined by the liberal political philosophies of early modernity. The foundation of humanity was transferred from God to (human) nature. Human nature has been interpreted as an empirical fact, a normative value, or both. Science has driven the first approach. The mark of humanity has been variously sought in language, reason or evolution. Man as species existence emerged as a result of legal and political innovations. The idea of humanity is the creation of humanism, with legal humanism at the forefront. Indeed the great 18th century revolutions and declarations paradigmatically manifest and helped construct modern universalism. And yet, at the heart of humanism, humanity remained a strategy of division and classification.

We can follow briefly this contradictory process, which both proclaims the universal and excludes the local in the text of the French Declaration of the Rights of Man and Citizen, the manifesto of modernity. Article 1, the progenitor of normative universalism, states that ‘men are born and remain free and equal of right’ a claim repeated in the inaugural article of the 1948 Universal Declaration of Human Rights. Equality and liberty are declared natural entitlements and independent of governments, epochal, and local factors. And yet the Declaration is categorically clear about the real source of universal rights. Article 2 states that ‘the aim of any political association is to preserve the natural and inalienable rights of man’ and Article 3 proceeds to define this association: ‘The principle of all Sovereignty lies essentially with the nation.’

‘Natural’ and eternal rights are declared on behalf of the universal “man.” However these rights do not pre-exist but were created by the Declaration. A new type of political association, the sovereign nation and its state and a new type of ‘man’, the national citizen, came into existence and became the beneficiary of rights. In a paradoxical fashion, the declaration of universal principle established local sovereignty. From that point, statehood and territory follow a national principle and belong to a dual time. If the declaration inaugurated modernity, it also started nationalism and its consequences: genocide, ethnic and civil war, ethnic cleansing, minorities, refugees, the stateless. The spatial principle is clear: every state and territory should have its unique dominant nation and every nation should have its own state – a catastrophic development for peace as its extreme application since 1989 has shown.

The new temporal principle replaced religious eschatology with a historical teleology, which promised the future suturing of humanity and nation. This teleology has two possible variants: either the nation imposes its rule on humanity or universalism undermines parochial divides and identities. Both variants became apparent when the Romans turned Stoic cosmopolitanism into the imperial legal regulation of jus gentium. In France, the first alternative appeared in the Napoleonic war, which allegedly spread the civilizing influence through conquest and occupation (according to Hegel, Napoleon was the world spirit on horseback); while the second was the beginning of a modern cosmopolitanism, in which slavery was abolished and colonial people were given political rights for a limited time after the Revolution. From the imperial deformation of Stoic cosmopolitanism to the current use of human rights to legitimize Western global hegemony, every normative universalism has decayed into imperial globalism. The split between normative and empirical humanity resists its healing, precisely because universal normativity has been invariably defined by a part of humanity.

The universal humanity of liberal constitutions was the normative ground of division and exclusion. A gap was opened between universal “man,” the ontological principle of modernity, and national citizen, its political instantiation and the real beneficiary of rights. The nation-state came into existence through the exclusion of other people and nations. The modern subject reaches her humanity by acquiring political rights of citizenship, which guarantee her admission to the universal human nature by excluding from that status others. The alien as a non-citizen is the modern barbarian. He does not have rights because he is not part of the state and he is a lesser human being because he is not a citizen. One is a man to greater or lesser degree because one is a citizen to a greater or lesser degree. The alien is the gap between man and citizen.

In our globalised world, not to have citizenship, to be stateless or a refugee, is the worst fate. Strictly speaking, human rights do not exist: if they are given to people on account of their humanity and not of some lower level group membership, then refugees, the sans papiers migrants and prisoners in Guatanamo Bay and similar detention centers, who have little if any legal protection, should be their main beneficiaries. They have few, if any, rights. They are legally abandoned, bare life, the homines sacri of the new world order.

The epochal move to the subject is driven and exemplified by legal personality. As species existence, the “man” of the rights of man appears without gender, color, history, or tradition. He has no needs or desires, he is an empty vessel united with all others through three abstract traits: free will, reason, and the soul (now the mind) — the universal elements of human essence. This minimum of humanity allows “man” to claim autonomy, moral responsibility, and legal subjectivity. At the same time, the empirical man who actually enjoys the ‘rights of man’ is a man all too man: a well-off, heterosexual, white, urban male who condenses in his person the abstract dignity of humanity and the real prerogatives of belonging to the community of the powerful. A second exclusion therefore conditions humanism, humanity and its rights. Mankind excludes improper men, that is, men of no property or propriety, humans without rhyme and reason, women, racial, and ethnic sexual minorities. Rights construct humans against a variable inhumanity or anthropology. Indeed these “inhuman conditions of humanity,” as Pheng Cheah has called them, act as quasi-transcendental preconditions of modern life.11

The contemporary history of human rights can be seen as the ongoing and always failing struggle to close the gap between the abstract man and the concrete citizen; to add flesh, blood and sex to the pale outline of the ‘human’ and extend the dignities and privileges of the powerful (the characteristics of normative humanity) to empirical humanity. This has not happened however and is unlikely to be achieved through the action of rights.

Thesis 3

The post-1989 order combines an economic system that generates huge structural inequalities and oppression with a juridico-political ideology promising dignity and equality. This major instability is contributing to its demise.

Why and how did this combination of neo-liberal capitalism and humanitarianism emerge? Capitalism has always moralized the economy and applied a gloss of righteousness to profit-making and unregulated competition precisely because it is so hard to believe. From Adam Smith's ‘hidden hand’ to the assertion that unrestrained egotism promotes the common good or that beneficial effects ‘trickle down’ if the rich get even bigger tax breaks, capitalism has consistently tried to claim the moral high ground.12

Similarly, human rights and their dissemination are not simply the result of the liberal or charitable disposition of the West. The predominantly negative meaning of freedom as the absence of external constraints – a euphemism for keeping state regulation of the economy at a minimum – has dominated the Western conception of human rights and turned them into the perfect companion of neo-liberalism. Global moral and civic rules are the necessary companion of the globalization of economic production and consumption, of the completion of world capitalism that follows neo-liberal dogmas. Over the last 30 years, we have witnessed, without much comment, the creation of global legal rules regulating the world capitalist economy, including rules on investment, trade, aid, and intellectual property. Robert Cooper has called it the voluntary imperialism of the global economy. “It is operated by an international consortium of financial Institutions such as the IMF and the World Bank…These institutions…make demands, which increasingly emphasise good governance. If states wish to benefit, they must open themselves up to the interference of international organisations and foreign states.” Cooper concludes that “what is needed then is a new kind of imperialism, one acceptable to a world of human rights and cosmopolitan values.”13

The (implicit) promise to the developing world is that the violent or voluntary adoption of the market-led, neo-liberal model of good governance and limited rights will inexorably lead to Western economic standards. This is fraudulent. Historically, the Western ability to turn the protection of formal rights into a limited guarantee of material, economic, and social rights was partly based on huge transfers from the colonies to the metropolis. While universal morality militates in favor of reverse flows, Western policies on development aid and Third World debt indicate that this is not politically feasible. Indeed, the successive crises and re-arrangements of neoliberal capitalism lead to dispossession and displacement of family farming by agribusiness, to forced migration and urbanization. These processes expand the number of people without skills, status, or the basics for existence. They become human debris, the waste-life, the bottom billions. This neo-colonial attitude has now been extended from the periphery to the European core. Greece, Portugal, Ireland, and Spain have been subjected to the rigors of the neoliberal “Washington Consensus” of austerity and destruction of the welfare state, despite its failure in the developing world. More than half the young people of Spain and Greece are permanently unemployed and a whole generation is being destroyed. But this gene-cide, to coin a term, has not generated a human rights campaign.

As Immanuel Wallerstein put it, “if all humans have equal rights, and all the peoples have equal rights, then we cannot maintain the kind of inegalitarian system that the capitalist world economy has always been and always will be.”14 When the unbridgeability of the gap between the missionary statements on equality and dignity and the bleak reality of obscene inequality becomes apparent, human rights will lead to new and uncontrollable types of tension and conflict. Spanish soldiers met the advancing Napoleonic armies shouting “Down with freedom!” Today people meet the ‘peacekeepers’ of the new world order with cries of “Down with human rights!”

Social and political systems become hegemonic by turning their ideological priorities into universal principles and values. In the new world order, human rights are the perfect candidate for this role. Their core principles, interpreted negatively and economically, promote neo-liberal capitalist penetration. Under a different construction, their abstract provisions could subject the inequalities and indignities of late capitalism to withering attack. But this cannot happen as long as they are used by the dominant powers to spread the ‘values’ of an ideology based on the nihilism and insatiability of desire.

Despite differences in content, colonialism and the human rights movement form a continuum, episodes in the same drama, which started with the great discoveries of the new world and is now carried out in the streets of Iraq and Afghanistan: bringing civilization to the barbarians. The claim to spread Reason and Christianity gave western empires their sense of superiority and their universalizing impetus. The urge is still there; the ideas have been redefined but the belief in the universality of our world-view remains as strong as that of the colonialists. There is little difference between imposing reason and good governance and proselytizing for Christianity and human rights. They are both part of the cultural package of the West, aggressive and redemptive at the same time.

Thesis 4

Universalism and communitarianism rather than being opponents are two types of humanism dependent on each other. They are confronted by the ontology of singular equality

The debate about the meaning of humanity as the ground normative source is conducted between universalists and communitarians. The universalist claims that cultural values and moral norms should pass a test of universal applicability and logical consistency and often concludes that, if there is one moral truth but many errors, it is incumbent upon its agents to impose it on others.

Communitarians start from the obvious observation that values are context-bound and try to impose them on those who disagree with the oppressiveness of tradition. Both principles, when they become absolute essences and define the meaning and value of humanity without remainder, can find everything that resists them expendable.

Kosovo is a good example. The proud Serbians killed and ‘cleansed’ ethnic Albanians in order to protect the integrity of the ‘cradle’ of their nation (interestingly, like most wild nationalisms, celebrating a historic defeat). NATO bombers killed people in Belgrade and Kosovo from 35,000 feet in order to defend the rights of humanity. Both positions exemplify, perhaps in different ways, the contemporary metaphysical urge: they have made an axiomatic decision as to what constitutes the essence of humanity and follow it with a stubborn disregard for alternatives. They are the contemporary expressions of a humanism that defines the ‘essence’ of humanity all the way to its end, as telos and finish. To paraphrase Emanuel Levinas, to save the human we must defeat this type of humanism.

The individualism of universal principles forgets that every person is a world and comes into existence in common with others, that we are all in community. Every human is a singular being, unique in her existence as an unrepeatable concatenation of past encounters, desires, and dreams with future projections, expectations, and plans. Every single person forms a phenomenological cosmos of meaning and intentionality, in relations of desire conversation and recognition with others. Being in common is an integral part of being self: self is exposed to the other, it is posed in exteriority, the other is part of the intimacy of self. My face is “always exposed to others, always turned toward an other and faced by him or her never facing myself.”15

Indeed being in community with others is the opposite of common being or of belonging to an essential community. Communitarians, on the other hand, define community through the commonality of tradition, history, and culture, the various past crystallizations whose inescapable weight determines present possibilities. The essence of the communitarian community is often to compel or ‘allow’ people to find their ‘essence,’ common ‘humanity’ now defined as the spirit of the nation or of the people or the leader. We have to follow traditional values and exclude what is alien and other. Community as communion accepts human rights only to the extent that they help submerge the I into the We, all the way till death, the point of ‘absolute communion’ with dead tradition.16

Both universal morality and cultural identity express different aspects of human experience. Their comparison in the abstract is futile and their differences are not pronounced. When a state adopts ‘universal’ human rights, it will interpret and apply them, if at all, according to local legal procedures and moral principles, making the universal the handmaiden of the particular. The reverse is also true: even those legal systems that jealously guard traditional rights and cultural practices against the encroachment of the universal are already contaminated by it. All rights and principles, even if parochial in their content, share the universalizing impetus of their form. In this sense, rights carry the seed of the dissolution of community and the only defense is to resist the idea of rights altogether, something impossible in global neo-liberalism. The claims of universality and tradition, rather than standing opposed in mortal combat, have become uneasy allies, whose fragile liaison has been sanctioned by the World Bank.

From our perspective, humanity cannot act as a normative principle.. Humanity is not a property shared. It is discernible in the incessant surprising of the human condition and its exposure to an undecided open future. Its function lies not in a philosophical essence but in its non-essence, in the endless process of re-definition and the necessary but impossible attempt to escape external determination. Humanity has no foundation and no end; it is the definition of groundlessness.

Thesis 5

In advanced capitalist societies, human rights de-politicize politics.

Rights form the terrain on which people are distributed into rulers, ruled, and excluded. Power's mode of operation is revealed, if we observe which people are given or deprived of which rights at which particular place or point in time. In this sense, human rights both conceal and affirm the dominant structure of a period and help combat it. Marx was the first to realize the paradoxical nature of rights. Natural rights emerged as a symbol of universal emancipation, but they were at the same time a powerful weapon in the hands of the rising capitalist class, securing and naturalizing emerging dominant economic and social relations. They were used to take out of political challenge the central institutions of capitalism such as religion, property, contractual relations and the family, thus providing the best protection possible. Ideologies, private interests, and egotistical concerns appear natural, normal, and for the public good when they are glossed over by rights vocabulary. As Marx inimitably put it, “freedom, equality, property and Bentham.”17

Early human rights were historical victories of groups and individuals against state power while at the same time promoting a new type of domination. As Giorgio Agamben argues, they “simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves.”18 In late capitalism, with its proliferating bio-political regulation, the endlessly multiplying rights paradoxically increase power's investment on bodies.

If classical natural rights protected property and religion by making them ‘apolitical’, the main effect of rights today is to depoliticize politics itself. Let us introduce a key distinction in recent political philosophy between politics (la politique) and the political (le politique). According to Chantal Mouffe, politics is the terrain of routine political life, the activity of debating, lobbying, and horse-trading that takes places around Westminster and Capitol Hill.19 The ‘political,’ on the other hand, refers to the way in which the social bond is instituted and concerns deep rifts in society. The political is the expression and articulation of the irreducibility of social conflict. Politics organizes the practices and institutions through which order is created, normalizing social co-existence in the context of conflict provided by the political.

This deep antagonism is the result of the tension between the structured social body, where every group has its role, function, and place, and what Jacques Rancière calls “the part of no part.” Groups that have been radically excluded from the social order; they are invisible, outside the established sense of what exists and is acceptable. Politics proper erupts only when an excluded part demands to be included and must change the rules of inclusion to achieve that. When they succeed, a new political subject is constituted, in excess to the hierarchized and visible group of groups and a division is put in the pre-existing common sense.20

What is the role of human rights in this division between politics and the political? Right claims reinforce rather than challenge established arrangements. The claimant accepts the established power and distribution orders and transforms the political claim into a demand for admission to the law. The role of law is to transform social and political tensions into a set of solvable problems regulated by rules and hand them over to rule experts. The rights claimant is the opposite of the revolutionaries of the early declarations, whose task was to change the overall design of the law. To this extent, his actions abandon the original commitment of rights to resist and oppose oppression and domination. The ‘excessive’ subjects, who stand for the universal from a position of exclusion, have been replaced by social and identity groups seeking recognition and limited re-distribution.

In the new world order the right-claims of the excluded are foreclosed by political, legal, and military means. Economic migrants, refugees, prisoners of the war on terror, the sans papiers, inhabitants of African camps, these ‘one use humans’ are the indispensable precondition of human rights but, at the same time, they are the living, or rather dying, proof of their impossibility. Successful human rights struggles have undoubtedly improved the lives of people by marginal re-arrangements of social hierarchies and non-threatening re-distributions of the social product. But their effect is to de-politicize conflict and remove the possibility of radical change.

We can conclude that human rights claims and struggles bring to the surface the exclusion, domination and exploitation, and inescapable strife that permeates social and political life. But, at the same time, they conceal the deep roots of strife and domination by framing struggle and resistance in the terms of legal and individual remedies which, if successful, lead to small individual improvements and a marginal re-arrangement of the social edifice. Can human rights re-activate a politics of resistance? The intrinsic link between early natural rights, (religious) transcendence, and political radicalism opened the possibility. It is still active in parts of the world not fully incorporated in the biopolitical operations of power. But only just. The metaphysics of the age is that of the deconstruction of essence and meaning, the closing of the divide between ideal and real, the subjection of the universal to the dominant particular. Economic globalization and semiotic monolingualism are carrying this task out in practice; its intellectual apologists do it in theory. The political and moral duty of the critic is to keep the rift open and to discover and fight for transcendence in immanence.

Thesis 6

In advanced capitalist societies, human rights become strategies for the publicization and legalization of (insatiable) individual desire.

Liberal theories from Immanuel Kant to John Rawls present the self as a solitary and rational entity endowed with natural characteristics and rights and in full control of himself. Rights to life, liberty, and property are presented as integral to humanity's well-being. The social contract (or its heuristic restatement through the “original position”) creates society and government but preserves these rights and makes them binding on government. Rights and today human rights are pre-social, they belong to humans precisely because they are humans. We use this natural patrimony as tools or instruments to confront the outside world, to defend our interests, and to pursue our life plans

This position is sharply contrasted by Hegelian and Marxist dialectics, hermeneutics and psychoanalysis. The human self is not a stable and isolated entity that, once formed, goes into the world and acts according to pre-arranged motives and intentions. Self is created through constant interactions with others, the subject is always inter-subjective. My identity is constructed in an ongoing dialogue and struggle for recognition, in which others (both people and institutions) acknowledge certain characteristics, attributes, and traits as mine, helping create my own sense of self. Identity emerges out of this conversation and struggle with others which follows the dialectic of desire. Law is a tool and effect of this dialectic; human rights acknowledge the constitutive role of desire.

Hegel's basic idea can be put simply. The self is both separate from and dependent upon the external world. Dependence on the not-I, both the object and the other person, makes the self realize that he is not complete but lacking and that he is constantly driven by desire. Life is a continuous struggle to overcome the foreignness of the other person or object. Survival depends on overcoming this radical split from the not-I, while maintaining the sense of uniqueness of self.21

Identity is therefore dynamic always on the move. I am in ongoing dialogue with others, a conversation that keeps changing others and re-drawing my own self-image. Human rights do not belong to humans and do not follow the dictates of humanity; they construct humans. A human being is someone who can successfully claim human rights and the group of rights we have determines how “human” we are; our identity depends on the bunch of rights we can successfully mobilize in relations with others. If this is the case, rights must be linked with deep-seated psychological functions and needs. From the heights of Hegelian dialectics, we now move to the much darker territory of Freudian psychoanalysis.

Jus vitam institutare, the law constitutes life, states a Roman maxim. For psychoanalysis it remains true. We become independent, speaking subjects by entering the symbolic order of language and law. But this first ‘symbolic castration’ must be supplemented by a second that makes us legal subjects. It introduces us into the social contract leaving behind the family life of protection, love, and care. The symbolic order imposes upon us the demands of social life. God, King, or the Sovereign act as universal fathers, representing an omnipotent and unitary social power, which places us in the social division of labor. If, according to Jacques Lacan, the name of the father makes us speaking subjects, the name of the Sovereign turns us into legal subjects and citizens.

This second entry into the law denies, like symbolic castration, the perceived wholeness of family intimacy and replaces it with partial recognitions and incomplete entitlements. Rights by their nature cannot treat the whole person. In law, a person is never a complete being but a persona, ritual or theatrical mask, that hides his or her face under a combination of partial rights. The legal subject is a combination of overlapping and conflicting rights and duties; they are law's blessing and curse. Rights are manifestations of individual desire as well as tools of societal bonding. Following the standard Lacanian division, rights have symbolic, imaginary, and real aspects. Their symbolic function places us in the social division of labor, hierarchy, and exclusion, the imaginary gives us a (false) sense of wholeness while the real disrupts the pleasures of the symbolic and the falsifications of the imaginary. Psychoanalysis offers the most advanced explanation of the constitutive and contradictory work of rights.

The symbolic function of rights bestows legal personality and introduces people to independence away from the intimacy of family. Law and rights construct a formal structure, which allocates us to a place in a matrix of relations strictly indifferent to the needs or desires of flesh and blood people. Legal rights offer the minimum recognition of abstract humanity, formal equivalence and moral responsibility, irrespective of individual characteristics. At the same time, they place people on a grid of distinct and hierarchical roles and functions, of prohibitions, entitlements and exclusions. Social and economic rights add a layer of difference to abstract similarity; they recognize gender, race, religion, and sexuality, in part moving recognition from the abstract equality of humanity to differentiated qualities, characteristics, and predications. Human rights may promise universal happiness but their empirical existence and enforcement depends on genealogies, hierarchies of power and contingencies that allocate the necessary resources ignoring and dismissing expectations or needs. The legal person that rights and duties construct resembles a caricature of the actual human self. The face has been replaced by an image in the cubist style; the nose comes out of the mouth, eyes protrude on the sides, forehead and chin are reversed. It projects a three-dimensional object onto a flat canvas.

The integrity of self denied by the symbolic order of rights returns in the imaginary. Human rights promise an end to conflict, social peace and well-being (the pursuit of happiness was an early promise in the American Declaration of Independence). A society of rights offers an ideal place, a stage and supplement for the ideal ego. As a man of rights, I see myself as someone with dignity, respect, and self-respect, at peace with the world. A society that guarantees rights is a good place, peaceful and affluent, a social order made for and fitting the individual who stands at its center. A legal system that protects rights is rationally coherent and closed (Ronald Dworkin calls it a “seamless web”), morally good (it has principles and the consequent “right” answers to all “hard” problems), pragmatically efficient.

The imaginary domain of rights creates an immediate, imaged and imagined bond, between the subject, her ideal ego, and the world. Human rights project a fantasy of wholeness, which unites body and soul into an integrated self. It is a beautiful self that fits in a good world, a society made for the subject. The anticipated completeness, the projected future integrity that underpins present identity is non-existent and impossible however and, moreover, differs from person to person and from community to community. Our imaginary identification with a good society accepts too easily that the language, signs and images of human rights are (or can become) our reality. The right to work, people assert, exists since it is written in the Universal Declaration, the international Covenants, the Constitution, the law, the statements of politicians. Billions of people have no food, no employment, no education, or health care – but this brutal fact does not weaken the assertion of the ideal. The necessary replacement of materiality by signs, of needs and desires by words and images makes people believe that the mere existence of legal texts and institutions, with little performance or action, affects and completes bodies.

The imaginary promoted by human rights enthusiasts presents a world made for my sake, in which the law meets (or ought to and will meet) my desires. This happy identification with the social and legal system is based on misrecognition. The world is indifferent to my being, happiness or travails. The law is not coherent or just. Morality is not law's business and peace is always temporary and precarious, never perpetual. The state of eu zein or well-being, the terminal point of human rights, is always deferred, its promise postponed its performance impossible. For the middle classes, to be sure, human rights are birth-right and patrimony. For the unfortunates of the world, on the other hand, they are only vague promises, fake supports for offering obedience, with their delivery permanently frustrated. Like the heaven of Christianity, human rights form a receding horizon that allows people to endure daily humiliations and subjugations.

The imaginary of rights is gradually replacing social justice. The decolonization struggles, the civil rights and counter-cultural movements fought for an ideal society based on justice and equality. In the human rights age, the pursuit of collective material welfare has given way to individual gratification and the avoidance of evil. The rights imaginary goes into overdrive when it turns images into “reality,” when legal clauses and terms replace food and shelter, when weasel words become the garb and grab of power. Rights emphasize the individual, his autonomy, and his place in the world. Like all imaginary identifications, they repress the recognition that the subject is inter-subjective and that the economic and social order is strictly indifferent to the fate of any particular individual. According to Louis Althusser, ideology is not “false consciousness” but is made up of ways of living, practices, and experiences that misrecognize our place in the world. It is “the imaginary relationship of individuals to their real conditions of existence.” In this sense, human rights are ideology at its strongest but one very different from that of Michael Ignatieff.22

Finally, the symbolic and imaginary operation of rights finds its limit in the real. We hover around the vortex of the real: the lack at the core of subjectivity both causes our projects to fail and creates the drive to continue the effort. When we make a demand, we not only ask the other to fulfill a need but also to offer us unreserved love. An infant, who asks for his mother's breast, needs food but also asks for his mother's attention and love. Desire is always the desire of the other and signifies precisely the excess of demand over need. Each time my need for an object enters language and addresses the other, it is the request for recognition and love. But this demand for wholeness and unqualified recognition cannot be met by the big Other (language, law, the state) or the other person. The big Other is the cause and symbol of lack. The other person cannot offer what the subject lacks because he is also lacking. In our appeal to the other, we confront lack, a lack that can neither be filled nor fully symbolized.

Rights allow us to express our needs in language by formulating them as a demand. A human rights claim involves two demands addressed to the other: a specific request in relation to one aspect of the claimant's personality or status (such as to be left alone, not to suffer in one's bodily integrity, and to be treated equally), but, in addition, a much wider demand to have one's whole identity recognized in its specific characteristics. When a person of color claims, for example, that the rejection of a job application amounted to a denial of her human right to non-discrimination, she makes two related but relatively independent claims. The rejection is both to an unfair denial of the applicant's need for a job but also it denigrates her wider identity. Every right therefore links a need of a part of the body or personality with what exceeds need, the desire that the claimant be recognized and loved as a whole and complete person.

The subject of rights tries to find the missing object that will fill lack and turn him into a complete integral being in the desire of the other. But this object does not exist and cannot be possessed. Rights offer the hope that subject and society can become whole: ‘if only my attributes and characteristics were given legal recognition, I would be happy’; ‘if only the demands of human dignity and equality were fully enforced, society would be just.’ But desire cannot be fulfilled. Rights become a fantastic supplement that arouses but never satiates the subject's desire. Rights always agitate for more rights. They lead to new areas of claim and entitlement that again and again prove insufficient.

Today human rights have become the mark of civility. But their success is limited. No right can earn me the full recognition and love of the other. No bill of rights can complete the struggle for a just society. Indeed the more rights we introduce, the greater the pressure is to legislate for more, to enforce them better, to turn the person into an infinite collector of rights, and to turn humanity into an endlessly proliferating mosaic of laws. The law keeps colonizing life and the social world, while the endless spiral of more rights, acquisitions, and possessions fuels the subject's imagination and dominates the symbolic world. Rights become the reward for psychological lack and political impotence. Fully positivized rights and legalized desire extinguish the self-creating potential of human rights. They become the symptom of all-devouring desire – a sign of the Sovereign or the individual – and at the same time its partial cure. In a strange and paradoxical twist, the more rights we have the more insecure we feel.

But there is one right that is closely linked with the real of radical desire: the right to resistance and revolt. This right is close to the death drive, to the repressed call to transcend the distributions of the symbolic order and the genteel pleasures of the imaginary for something closer to our destructive and creative inner kernel. Taking risks and not giving up on your desire is the ethical call of psychoanalysis. Resistance and revolution is their social equivalent. In the same way that the impossible and disavowed real organizes the psyche, the right to resistance forms the void at the heart of the system of law, which protects it from sclerosis and ossification.23

We can conclude that rights are about recognition (symbolic) and distribution (imaginary); except that there is a right to resistance/revolt.

Thesis 7

For a cosmopolitanism to come (or the idea of communism).

Against imperial arrogance and cosmopolitan naivety, we must insist that global neo-liberal capitalism and human-rights-for-export are part of the same project. The two must be uncoupled; human rights can contribute little to the struggle against capitalist exploitation and political domination. Their promotion by western states and humanitarians turns them into a palliative: it is useful for a limited protection of individuals but it can blunt political resistance. Human rights can re-claim their redemptive role in the hands and imagination of those who return them to the tradition of resistance and struggle against the advice of the preachers of moralism, suffering humanity, and humanitarian philanthropy.

Liberal equality as a regulative principle has failed to close the gap between rich and poor. Equality must become an axiomatic presupposition: People are free and equal; equality is not the effect but the premise of action. Whatever denies this simple truth creates a right and duty of resistance. The equality of legal rights has consistently supported inequality; axiomatic equality (each counts as one in all relevant groups) is the impossible boundary of rights culture. It means that healthcare is due to everyone who needs it, irrespective of means; that rights to residence and work belong to all who find themselves in a part of the world irrespective of nationality; that political activities can be freely engaged by all irrespective of citizenship and against the explicit prohibitions of human rights law.

The combination of the right to resistance and axiomatic equality projects a humanity opposed both to universal individualism and communitarian closure. In the age of globalization, of mondialization we suffer from a poverty of world. Each one is a cosmos but we no longer have a world, only a series of disconnected situations. Everyone a world: a knot of past events and stories, people and encounters, desires and dreams. This is also the point of ekstasis, of opening up and moving away, immortals in our mortality, symbolically finite but imaginatively infinite. The cosmopolitan capitalists promise to make us citizens of the world under a global sovereign and a well-defined and terminal humanity. This is the universalization of the lack of world, the imperialism and empiricism to which every cosmopolitanism falls.

But we should not give up the universalizing impetus of the imaginary, the cosmos that uproots every polis, disturbs every filiation, contests all sovereignty and hegemony. Resistance and radical equality map out an imaginary domain of rights which is uncannily close to utopia. According to Ernst Bloch, the present foreshadows a future not yet and, one should add, not ever possible. The future projection of an order in which man is no longer a “degraded, enslaved, abandoned or, despised being” links the best traditions of the past with a powerful “reminiscence of the future.”24 It disturbs the linear concept of time and, like psychoanalysis, it imagines the present in the image of a prefigured beautiful future, which however will never come to be. In this sense, the imaginary domain is necessarily utopian, non-existing. And yet, this non-place or nothingness grounds our sense of identity, in the same way that utopia helps create a sense of social identity. We have re-discovered in Tunisia and Tahrir Square, in Madrid's Puerta del Sol and Athens’ Syntagma Square what goes beyond and against liberal cosmopolitanism, the principle of its excess. This is the promise of the cosmopolitanism to come – or the idea of communism.25

The cosmopolitanism to come is neither the terrain of nations nor an alliance of classes, although it draws from the treasure of solidarity. Dissatisfaction with the nation, state, and the inter-national comes from a bond between singularities, which cannot be turned into essential humanity, nation, or state. The cosmos to come is the world of each unique one, of whoever or anyone; the polis, the infinite encounters of singularities. What binds me to a Palestinian, a sans papiers migrant, or an unemployed youth is not membership of humanity, nation, state, or community but a bond that cannot be contained in the dominant interpretations of humanity and cosmos or of polis and state.

Law, the principle of the polis, prescribes what constitutes a reasonable order by accepting and validating some parts of collective life, while banning, excluding others, making them invisible. Law and rights link language with things or beings; they nominate what exists and condemn the rest to invisibility and marginality. As the formal and dominant decision about existence, law carries huge ontological power. Radical desire, on the other hand is the longing for what has been banned and declared impossible by the law; what confronts past catastrophes and incorporates the promise of the future.

The axiom of equality and the right to resistance prepare militant subjects in the ongoing struggle between justice and injustice. This being together of singularities in resistance is constructed here and now with friends and strangers in acts of hospitality, in cities of resistance, Cairo, Madrid, Athens.

NOTES

1- Costas Douzinas, The End of Human Rights (Oxford: Hart, 2000); Costas Douzinas and Adam Gearey, Critical Jurisprudence (Oxford: Hart, 2005); Costas Douzinas, Human Rights and Empire (Abingdon: Routledge, 2007). This essay summarizes and moves forward this alternative approach to rights. The final part of this work entitled The Radical Philosophy of Right will be published by Routledge in 2014.

2- Hannah Arendt, On Revolution (New York: Viking Press, 1965), 107.

3- B.L. Ullman, “What are the Humanities?” Journal of Higher Education 17/6 (1946), at 302.

4- H.C. Baldry, The Unity of Mankind in Greek Thought, (Cambridge: Cambridge University Press, 1965), 201.

5- Gin'es de Sepulveda, Democrates Segundo of De las Justas Causa de la Guerra contra los Indios (Madrid: Institute Fransisco de Vitoria, 1951), 33 quoted in Tzvetan Todorov, The Conquest of America trans. Richard Howard (Norman: University of Oklahoma Press, 1999), 153.

6- Bartholomé de las Casas, Obras Completas, Vol. 7 (Madrid: Alianza Editorial, 1922), 536–7.

7- Todorov, The Conquest of America 166, 168.

8- Slavoj Žižek, “Against Human Rights 56,” New Left Review (July-August 2005), 34.

9- Costas Douzinas, “For a Humanities of Resistance,” Critical Legal Thinking, December 7, 2010

10- Nishitani Otamu, “Anthropos and Humanity: Two Western Concepts of ‘Human Being’” in Naoki Sakai and Jon Solomon (eds.), Translation, Biopolitics, Colonial Difference (Hong Kong: Hong Kong University Press, 2006), 259–274.

11- Pheng Cheah, Inhuman Conditions (Cambridge Mass: Harvard University Press, 2006), Chapter 7.

12- Jean-Claude Michéa, The Realm of Lesser Evil trans. David Fernbach (Cambridge and Malden: Polity Press, 2009), Chapter 3.

13- Robert Cooper, “The New Liberal Imperialism,” The Observer (April 1 2002), 3.

14- Immanuel Wallerstein, “The Insurmountable Contradictions of Liberalism” Southern Atlantic Quarterly (1995), 176–7.

15- Jean-Luc Nancy, The Inoperative Community (Minneapolis: University of Minnesota Press, 1991), xxxviii.

16- Ibid.

17- Karl Marx, Capital, Volume One (Harmondsworth: Penguin, 1976), 280.

18- Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998), 121.

19- Chantal Mouffe, On the Political (London: Routledge, 2005), 8–9.

20- Jacques Rancière, Disagreement. trans. Julie Rose (Minneapolis: University of Minnesota Press, 1998); “Who is the Subject of the Rights of Man?” in “And Justice for All?” Ian Balfour and Eduardo Cadava, special issue, eds., South Atlantic Quarterly, 103, no. 2–3 (2004), 297.

21- Costas Douzinas, “Identity, Recognition, Rights or What Can Hegel Teach Us About Human Rights?” Journal of Law and Society 29 (2002), 379–405.

22- Michael Ignatieff, Human Rights as Politics and Ideology (Princeton and Oxford: Princeton University Press, 2001).

23- Costas Douzinas, “Adikia: On Communism and Rights,” in The Idea of Communism Costas Douzinas and Slavoj Žižek eds (London: Verso, 2010), 81–100.

24- Ernst Bloch, Natural Law and Human History trans. J.D. Schmidt (Cambridge Mass.: MIT Press, 1988), xxviii.

25- Costas Douzinas, Philosophy and Resistance in the Crisis (Cambridge, Polity, 2013), Chapters 9, 10, and 11.