Melbourne University Law Review
[The history of human rights has made resistance to domination and oppression their main end. However from early modernity onwards, natural rights underpinned the sovereignty of the modern state. This trend has been strengthened in postmodernity and human rights have become the moral order of a new empire under construction. From a philosophical perspective, it is argued that humanity is an indeterminate concept which cannot become the source of normative values. Universalism and cultural relativism, the intertwined strands of humanism, are unable to understand human rights as the legalisation of individual desire. In postmodernity, the action of human rights expands the boundaries of the social, but it also dismembers the subjected subject. Only if we conceive of human rights as dependent on the other can they return to their original end and become the postmodern principle of justice.]
A new ideal has trumped on the global world stage: human rights. It unites left and right, the pulpit and the state, the Minister and the rebel, the developing world and the liberals of Hampstead and Manhattan. Human rights started their life as the principle of liberation from oppression and domination, the rallying cry of the homeless and the dispossessed, the political program of revolutionaries and dissidents. But their appeal is not confined to the wretched of the earth. Alternative lifestyles, greedy consumers of goods and culture, the pleasure-seekers and playboys of the Western world, the owner of Harrods, a former managing director of Guinness plc, as well as a former king of Greece, have all glossed their claims in the language of human rights.
Human rights were initially linked with specific class interests and were the ideological and political weapons in the fight of the rising bourgeoisie against despotic political power and static social organisation. But their ontological presuppositions ¾ the principles of human equality and freedom ¾ and their political corollary ¾ the claim that political power must be subjected to the demands of reason and law ¾ have now become part of the staple ideology of most contemporary regimes and their partiality has been transcended.
Internationally, the New Times after the collapse of communism have elevated human rights as the central principle. Humanitarian interventions, war crimes tribunals and domestic prosecutions of heads of states for violations of human rights are all part of the new order. Human rights are the fate of postmodernity, the energy of our societies, the fulfilment of the Enlightenment promise of emancipation and self-realisation. Human rights are the ideology after the end, the defeat of ideologies, or, to adopt a voguish term, the ideology of globalisation at the ‘end of history’.
And yet many doubts persist. The record of human rights violations since their ringing declarations at the end of the 18th century is quite appalling. ‘[I]t is an undeniable fact’, writes Gabriel Marcel, ‘that human life has never been so universally treated as a vile and perishable commodity than during our own era.’ If the 20th century was 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 of the previous and less ‘enlightened’ epochs. The 20th century was the century of massacre, genocide, ethnic cleansing — the age of the Holocaust. At no point in human history has there been a greater gap between the poor and the rich in the Western world or between the North and the South globally. No degree of progress allows one to ignore the fact that never before, in absolute figures, have so many men, women and children been subjugated, starved or exterminated. It is this paradox of triumph and disaster that I want to explore.
A second paradox characterises the theory of human rights. While rights are one of the noblest liberal institutions, liberal political and legal philosophy appears unable to grasp fully their operation. Part of the problem must be attributed to the woefully inadequate historical sense and philosophical awareness of the liberals. The world they inhabit is an atomocentric place that is constituted by social contracts, motivated by blindness and veils of ignorance, attributed to ideal speech situations and harking back to the pre-modern certainty of single right answers to moral and legal conflicts. Similarly, the model of the person populating this world is that of the self-certain individual, knowledgable and reflective — a Kantian autonomous subject, who does not belong to class or gender, has no unconscious or traumatic experiences and who stands towards the world in a position of perfect control. Indeed, it is striking that our most acclaimed theorists of rights forget 200 years of social theory and philosophy and act as if they have never heard the names of Marx, Freud, Nietzsche or Weber.
Let me offer, in seven inevitably condensed epigrammatic theses, an alternative genealogy and philosophy of rights.
Ancient Greece did not distinguish between law and convention or right and custom. Custom is a strong cement: it binds families and communities firmly, but it can also numb. Without external standards, the development of a critical approach towards traditional authority is impossible: the given goes unchallenged and the slaves stay in line. Originally, the root of all authority is the ancestral.
But the discovery, or rather the invention, of the concept of nature challenged the claim of the ancestral. Philosophy could now appeal from the ancestral to the good — to that which is good intrinsically, by nature. Nature as a critical concept acquired philosophical currency in the fifth century BCE when it was used by the sophists against custom and law, and by Socrates and Plato in order to combat moral relativism of the sophists and to restore the authority of reason. Turning nature into norm or into the standard of right was the greatest early step of civilisation, but it was also a cunning trick against priests and rulers. To this day, when knowledge and reason are subjected to authority, they are called ‘theology’ or ‘legal learning’ but they cannot be the philosophy practised by the Greeks. Nature (the most cultured of concepts), the idea of the good and political philosophy, were all born together in an act of rebellion.
This critical function of nature was in evidence in the appeal to natural rights by the great revolutions of the 18th century and again in the popular rebellions in Eastern Europe in the 1980s. Indeed, the symbolic foundation and starting point of modernity can be located at the passing of the great revolutionary documents of the 18th century. They returned to the critical function of classical natural law, which had been concealed by successive layers of Christian theology. But victorious revolutionaries turned rulers can become as oppressive as their predecessors. The popularity of natural rights declined dramatically after the great declarations and the revolutions of the 1980s ended up in the mafia governments of the 1990s and the destruction of whole cultures and populations through the discipline of the market.
Let me now turn to the relationship between power and morality or between sovereignty and human rights. We can explore the strong internal connection between these two superficially antagonistic principles in three key periods of national and international construction: the late 18th century, the post-WWII international system and, finally, the New Times emerging after the collapse of communism.
The great 18th century declarations pronounced natural rights inalienable because they were independent of both governments and temporal and local factors and they expressed, in legal form, the eternal rights of man. Rights were declared on behalf of the universal ‘man’. Yet, the French Declaration is quite categorical as to the real source of universal rights. Let us follow briefly its strict logic. Article 1 states that ‘men are born and remain free and equal in their rights’; art 2 that ‘the final end of every political institution is the preservation of the natural and imprescriptible rights of man’ and art 3 proceeds to define this association: ‘The source of all sovereignty lies essentially in the Nation. No corporation or individual may exercise any authority not expressly derived therefrom.’
It was the act of enunciation which established the power of a particular type of political association, the nation-state, to become the sovereign law-maker and secondly, of a particular ‘man’, the national citizen, to become the beneficiary of rights. First, let us consider national sovereignty. The declarations set out the universality of rights but their immediate effect is to establish the boundless power of the state and its law. It was the declaration of rights which established not only those rights but also the power of the constituent assemblies to legislate. In a paradoxical fashion, these declarations of universal principle ‘perform’ the foundation of local sovereignty. If the declarations ushered in the epoch of the individual, they also launched the age of the state — the mirror of the individual. Human rights and national sovereignty — the two antithetical principles of international law — were born together, their contradiction more apparent than real.
The legislator of the proclaimed universal community was none other than the historical legislator of the French or American nation. From that point — statehood, sovereignty and territory — followed a national principle. If the Declaration inaugurated modernity, it also started nationalism and all of its consequences: genocide, ethnic and civil wars, ethnic cleansing, minorities, refugees, the stateless. Citizenship introduced a new type of privilege which was protected for some by excluding others. Since the revolutions, nation-states have been defined by territorial boundaries and have shifted exclusion from class to nation: the modern formal class barrier.
One could argue that the French National Assembly notionally split itself into two parts: a philosophical and a historical. The first legislated on behalf of ‘man’ for the whole world, the second for the only territory and people it could, France and its dependencies. The gap between the two is also the distance between the universality of the law (eventually of human rights) and the generality of state legislation. From that point onwards, it remains unknown, as Lyotard put it,
whether the law thereby declared is French or human, whether the war conducted in the name of rights is one of conquest or one of liberation, ... whether those nations which are not French ought to become French or become human by endowing themselves with Constitutions that conform to the Declaration.
We can substitute ‘American’ for ‘French’ and have the perfect contemporary position: the discourse of the universal needs a unique subject to pronounce it. But this particular enunciator of the universal should remain unaffected by its demands, as the current American hostility towards the creation of an International Criminal Court proves.
On the subjective side, the separation between human and citizen is the main characteristic of modern law. The modern subject reaches their humanity by acquiring political rights of citizenship. The alien is not a citizen. They do not have rights because they are not part of the state and they are lesser human beings because they are not citizens. One is a human to greater or lesser degree because one is or is not a citizen to a greater or lesser degree. The alien is the gap between human and citizen. We become human through citizenship, and subjectivity is based on the gap, the difference between universal man and state citizen. Modern subjectivity is based on those others whose existence is evidence of the universality of human nature but whose exclusion is absolutely crucial for concrete personhood, in other words, for citizenship.
We can observe the same internal linking between human rights (the moral perspective on politics) and national sovereignty in the great enterprise of international standard setting since 1945. A huge process of international legislation and codification has been taking place on the world stage, but also regionally, and even at the national level as the inexorable pressure to introduce a bill of rights in Britain has shown. Why has so much energy been placed on this attempt to codify what is a human being? Because ‘it is quite conceivable’, according to Arendt, ‘that one fine day a highly organized and mechanized humanity will conclude quite democratically — namely by majority decision — that for humanity as a whole it would be better to liquidate certain parts thereof’. The ‘market’ of human dignity and equality did not conceal a ‘hidden hand’, and people voted and still vote for regimes and parties determined to violate all human rights, as the examples of Hitler’s Germany and Milosevic’s Yugoslavia show.
An endless process of international and humanitarian law-making has been put into operation, aimed at protecting people from the putative assertions of their sovereignty. To paraphrase Nietzsche, if God, the source of natural law, is dead, he has been replaced by international law. But there are many problems with these globalised rights.
First, this huge enterprise of legislation and codification has become the safest haven of a sui generis positivism. Codification, from Justinian to the Code Napoléon, has always been the ultimate exercise of legislative sovereignty, the supreme expression of state power. In the same way that the early declarations of rights helped to bring about the absolute, indivisible and illimitable power of the sovereign, so too the post-WWII expansion of international human rights turned the principle of non-intervention in the domestic affairs of states into the cornerstone of the law and founded the power of the new international institutions. The major powers unanimously agreed that human rights could not be used to pierce the shield of national sovereignty. Human rights became a major tool for legitimating, nationally and internationally, the post-WWII order, at a point at which all principles of state and international organisation had emerged from the war seriously weakened. The principles of human rights and national sovereignty, both paramount, paradoxically served two separate agendas of the great powers: the need to legitimise the new order through their commitment to rights, without exposing the victorious states to scrutiny and criticism about their own flagrant violations.
Second, law-making in the huge business of human rights has been taken over by government representatives, diplomats, policy advisers, international civil servants and human rights experts. But priests, princes and Prime Ministers are the enemy against whom nature, natural rights and human rights were conceived as a defence. The business of government is to govern, not to follow moral principles. Governmental actions in the international arena are dictated by national interest and political considerations, and morality enters the stage always late, when the principle invoked happens to condemn the actions of a political adversary. Government-operated international human rights law is the best illustration of the poacher-turned-gamekeeper.
This leads us to a crucial distinction between globalisation and universalisation which has been almost totally elided in the debate on human rights. The variable universalism of classical natural law or the Kantian normative universalisation both acted as regulative principles: they gave a perspective from which each particular action could be judged, in theory at least, in the name of the universal. The empirical universality of human rights, on the other hand, is not a normative principle. It is a matter of counting how many states have adopted how many and which treaties, or how many have introduced which reservations or derogations from treaty obligations. When normative universality becomes a calculable globalisation, it turns from a lofty, albeit impossible, ideal into the lowest common denominator of state interests and rivalries. Every state and power comes under the mantle of the international law of human rights, every government becomes civilised as the ‘law of the princes’ has finally become the ‘universal’ law of human dignity. But this is an empirical universality, based on the competitive solidarity of sovereign governments and on the pragmatic concerns and calculations of international politics. The community of human rights is universal but imaginary: universal humanity does not exist empirically and cannot act as a transcendental principle philosophically.
Let me turn to the world order that emerged at the turn of the 20th century. After the collapse of communism, a new global arrangement is being established which follows moral principles of universal applicability. International human rights are the most common form of universal morality, and their task is to impose moral principles on the exercise of (domestic and international) power — to moralise politics. The moralisation of politics is evident at a number of levels. The most important and violent is the use of force for ‘humanitarian intervention’ by the United States or an American-led coalition with or without United Nations authorisation. The usual justification for the gross violation of sovereignty is that atrocities and other flagrant violations of human rights allow the overriding of the cardinal principle of the international order of modernity.
The moralisation of international politics and the accompanying weakening of the principle of sovereignty is taken further with the tendency to criminalise politics and to pursue, through the courts, leaders who have committed human rights violations. The international criminal justice system appears unstoppable. The early feeble efforts of the ad hoc criminal tribunals for Yugoslavia and Rwanda are now coming to maturity with the extradition of Milosevic and his trial at The Hague. At the same time, the creation of a permanent war crimes tribunal with its own charter has recently become a reality.
However, the various versions of moralism, whether they are presented as cosmopolitanism, or universal morality or human rights, express and promote the quasi-imperial configuration of the power of the New Times. Its signs are everywhere. At the ideological level, the collapse of communism signalled the victory of the principles of mass capitalist democracy and human rights, the main Western weapon in the ideological Cold War. In the same way that the victory of the Christian Roman Emperor Constantine over pagan opponents in the Eastern Empire led to the spread of Christianity around the known world, the American triumph over the ‘evil empire’ has led to the global dissemination of the principles of universal morality.
But these principles and the attempt to disseminate them are not simply the result of the liberal or charitable disposition of the West. Global moral and civic rules are the necessary companion of the universalisation of economic production and consumption, of the creation of a world capitalist system. Over the last 20 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. These are being gradually supplemented by moral and civic regulations and directives which prepare the individual of the new order, a world citizen, highly moralised, highly regulated but also highly differentiated materially, despite the common human rights that everyone enjoys, from Helsinki to Hanoi and from London to Lahore.
We can find parallels with the emergence of early capitalism. The legal system first developed the rules necessary for the regulation of capitalist production, including rules for the protection of property and contract and the development of legal and corporate personality. Only later did civic rules emerge, mainly with the creation of civil and political rights, which led to the creation of the modern subject and citizen. These rules gave the man of the classical declarations the legal tools and public recognition necessary to cut his traditional ties, abandon any residual ideas of virtue and duty and organise his activities and life-plan according to a calculation of interest borne by the institution of rights.
Similarly today, the universalisation of morality follows the gradual unification of world markets. As economic practices and legal rules and conventions become standardised, unified ethics, semiotics and law become the international lingua franca. The universalism of human rights cannot work in the abstract. It can only operate as an instrument of the leading powers of the New Times or by the citizens claiming not just formal but material equality. While human rights appear to be universal and uninterested in the particularities of each situation, their triumph means that they will soon become tools in political conflict, thus undermining their claim to universality. The common reference to values will not stop their polemical use, as the Milosevic trial clearly indicates.
The universalism of rights was invented by the West, but will be now used by the South and East to make claims on the distribution of the world product. The recent converts to universal values are led to believe that improvement of domestic human rights will strengthen their claim against world resources. Milosevic was extradited to The Hague for a few hundred million dollars in aid to Serbia and the new Afghan regime is promised a few more million if they police the orders of America. Aid agreements routinely impose privatisation, market economics and human rights as the new gospel of liberation. Neo-liberal economic policies and human rights appear to promise an inexorable process of equalisation between East, South and West.
Indeed, we know from our Western histories that formal liberties cannot be contained in their formalism for too long. Soon, the workers with the vote and freedom of speech will demand the income and resources needed to make their new-found freedoms real: they will ask for the material preconditions of equality. Lecturers in China and farmers in India will demand to earn as much as those in Helsinki or Southern France, something that can only be done through a substantial reduction in the Western standard of living. But the (implicit) promise that market-led home-based economic growth will inexorably lead the South to Western economic standards is fraudulent. Historically, the Western ability to turn the protection of formal rights into a limited guarantee of material, economic and social rights was based on huge transfers from the colonies to the metropolis. While universal morality and rights now militate in favour of reverse flows, Western policies on development aid and Third World debt, and American policies on oil pricing, gas emissions and defence spending, indicate that this is not politically feasible. 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 — rather than the elimination of war — will lead to new and uncontrollable types of tension and conflict. Spanish soldiers met the advancing Napoleonic armies, shouting ‘Down with freedom!’ It is not difficult to imagine people meeting the ‘peacekeepers’ of the New Times with cries of ‘Down with human rights!’
Universalist morality claims to muster agreement about the content of its prescriptions. It follows that as human rights become the lingua franca of the New Times but are unable to eliminate conflict, the formal struggle over human rights will revolve predominantly around their interpretation and application. As always, the universal is placed at the service of the particular: it is the prerogative of a particular to announce the universal. The enunciating particular can place itself towards the universal in two positions: either it can attach an opt-out clause and exclude itself from the applicability of the universal or it can arrogate itself the exclusive power and right to offer the correct interpretation of the universal. France was the enunciator of the universal in early modernity, the US in the New Times, and they have adopted both practices. The opt-out clause is most apparent when the Americans denounce the universal jurisdiction of the new International Criminal Court and declare that under no circumstances will they allow American personnel to be tried by it. But they also claim the power of the sole authoritative interpreter. During the Afghan campaign, President Bush declared that, despite the unanimous view of international lawyers to the contrary, his interpretation of the Geneva Conventions was the only valid one and accordingly, the Taliban prisoners held in the Guantanamo Bay camp would be designated not as prisoners of war, but would instead fall into the novel category of ‘unlawful combatants’.
Who or what is a human? Even if we had the answer, when does the existence of a human being (and its associated rights) begin and when does it end? What about foetuses, children, the mentally or terminally ill or prisoners? Are they fully human, entitled to all the rights that belong to humanity, or are they only partially human, since their rights are severely restricted? Do they enjoy fewer rights because they are lesser humans or on account of some other quality? What about animals? The animal rights movement, from deep ecology and anti-vivisection militancy to its gentler green versions, has placed the legal differentiation between human and animal firmly on the political agenda and has drafted a number of bills of animal entitlements. Important philosophical and ontological questions are involved here. How did we arrive at the concept of human nature and humanity?
The concept of humanity is an invention of modernity. Both Athens and Rome had citizens but not ‘men’, in the sense of members of the human species. Free men were Athenians or Spartans, Romans or Carthaginians, but not persons; they were Greeks or barbarians but not humans. The word humanitas appeared for the first time in the Roman Republic. It was a translation of paideia, the Greek word for education, and meant eruditio et institutio in bonas artes, The Romans inherited the idea of humanity from Hellenistic philosophy, in particular Stoicism, and used it to distinguish between the homo humanus, the educated Roman, and homo barbarus. The first humanism was the result of the encounter between Greek and Roman civilisation, and the early modern humanism of the Italian Renaissance retained the two characteristics of nostalgia for a lost past and for exclusion of others who are not equal to this Edenic period. It was presented as a return to Greek and Roman prototypes and was aimed at the barbarism of medieval scholasticism and the gothic north.
A different conception of humanitas emerged in Christian theology, superbly captured in the Pauline assertion that there is no Greek or Jew, free man or slave. All men are equally part of spiritual humanity which is juxtaposed to the deity. They can all be saved through God’s plan of salvation. Universal equality ¾ albeit of a spiritual character ¾ a concept unknown to the classics, entered the world stage. But the religious grounding of humanity was undermined by the liberal political philosophies of the 18th century. The foundation of humanity was transferred from God to (human) nature. By the end of the 18th century, the concept of ‘man’ came into existence and soon became the absolute and inalienable value around which the whole world revolved. Humanity, man as species existence, entered the historical stage as the peculiar combination of classical and Christian metaphysics.
For humanism, there is a universal essence of man and this essence is the attribute of each individual who is the real subject. As species existence, man appears without differentiation or distinction in his nakedness and simplicity, united with all others in an empty nature deprived of substantive characteristics except for his free will, reason and soul ¾ the universal elements of human essence. This is the man of the rights of man, someone without history, desires or needs, an abstraction that has as little humanity as possible, since he has jettisoned all those traits and qualities that build human identity. A minimum of humanity is what allows man to claim autonomy, moral responsibility and legal subjectivity. At the same time, he who enjoyed the ‘rights of man’ was a man all too man — a well-off, heterosexual, white male — who condensed the abstract dignity of humanity and the real prerogatives of belonging to the community of the powerful. Indeed, one could write the history of human rights 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’.
The existence of ‘non-humans’, the ‘vermin’ of older and more recent concentration camps, the potential of world annihilation by nuclear weapons, recent developments in genetic technology and robotics indicate that even this most banal and obvious of definitions is neither definite nor conclusive. Humanity’s mastery, like God’s omnipotence, includes the ability to redefine who or what counts as human and even to destroy itself. From Aristotle’s slaves to designer babies, clones and cyborgs, the boundaries of humanity have been shifting. What history has taught us is that there is nothing sacred about any definition of humanity and nothing eternal about its scope. Humanity cannot act as the a priori normative principle and is mute in the matter of legal and moral rules. Its function lies not in a philosophical essence but in its non-essence, in the endless process of redefinition and the continuous but impossible attempt to escape fate and external determination.
We can conclude that the ‘human’ of rights, and humanity, is a floating signifier. As a signifier, it is just a word, a discursive element that is neither automatically nor necessarily linked to any particular signified or meaning. On the contrary, the word ‘human’ is empty of all meaning and can be attached to an infinite number of signifieds. As a result, it cannot be fully and finally pinned down to any particular conception because it transcends and overdetermines them all. But the ‘humanity’ of human rights is not just an empty signifier; it carries an enormous symbolic capital, a surplus of value and dignity endowed by the revolutions and the declarations and augmented by every new struggle that adopts the rhetoric of human rights. This symbolic excess turns the ‘human’ into a floating signifier, into something that combatants in political, social and legal struggles want to co-opt to their cause, and explains its importance for political campaigns.
From a non-essentialist perspective, rights are highly artificial constructs, a historical accident of European intellectual and political history. The concept of rights belongs to the symbolic order of language and law, which determines their scope and reach with scant regard for ontologically solid categories, like those of man, human nature or dignity. From a semiotic perspective, rights do not refer to things or other material entities in the world but are pure combinations of legal and linguistic signs, words and images, symbols and fantasies. No person, thing or relation is in principle closed to the logic of rights. Any entity open to semiotic substitution can become the subject or object of rights; any right can be extended to new areas and persons, or, conversely, withdrawn from existing ones. Civil and political rights have been extended to social and economic rights, and then to rights in culture and the environment. Individual rights have been supplemented by group, national or animal rights. The right to free speech or to annual holidays can be accompanied by a right to love, to party or to have back episodes of Star Trek shown daily. If something can be put into language, it may acquire rights and can certainly become the object of rights.
The only limits to the ceaseless expansion or contraction of rights are conventional: the effectiveness of political struggles and the limited and limiting logic of the law. Human rights struggles are symbolic and political: their immediate battleground is the meaning of words, such as ‘difference’ and ‘equality’ or ‘similarity’ and ‘freedom’, but if successful, they have ontological consequences — they radically change the constitution of the legal subject and affect peoples’ lives. If we accept the psychoanalytic insight that people have no essential identities outside of those constructed in symbolic discourses and practices, a key aim of politics and of law is to fix meanings and to close identities by making the contingent, historical linkings between signifiers and signifieds permanent and necessary. But such attempts can succeed only partially because identities are always open to new symbolic appropriations and articulations within different discourses and practices, and every — partially — fixed identity is always overdetermined by the surplus value of the floating signifier.
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.
The continuing pathos of the universalism/relativism debate coupled with its repetitive and rather banal nature indicates that the stakes are high. The universalist claims that all cultural value and, in particular, moral norms are not historically and territorially bound, but should pass a test of universal consistency. As a result, judgments which derive their force and legitimacy from local conditions are morally suspect. But as all life is situated, an ‘unencumbered’ judgment based exclusively on the protocols of reason goes against the grain of human experience ¾ unless, of course, universalism and its procedural demands have become the cultural tradition of some place: the US would be a prime candidate. The counter-intuitive nature of universalism can lead its proponent to extreme individualism: only I, as the real moral agent or as the ethical alliance or as the representative of the universal, can understand what morality demands. Moral egoism easily leads to arrogance, and universalism to imperialism: if there is one moral truth, which it is incumbent upon its agents to impose on others, there remain many errors. What started as rebellion against the absurdities of localism ends up legitimising oppression and domination.
Cultural relativism, and communitarianism, are potentially even more murderous, because they have privileged access to community and neighbourhood, the places where people are killed and tortured. Relativists start from the obvious observation that values are context-bound, and use it to justify atrocities against those who disagree with the oppressiveness of tradition. But the cultural embeddedness of self is an unhelpful sociological truism; the context, as history, tradition and culture, is malleable ¾ always under construction rather than given and unchanging. History does not teach anything; it is historians and journalists, intellectuals and politicians, academics and ideologues who turn historical events into stories and myths, and in so doing, construct ways of seeing the present through the lens of the past.
Kosovo and Rwanda are good example of this process. It was only after Milosevic withdrew Kosovo’s autonomy in 1994 and declared that it would remain forever in the Yugoslav state, as the cradle of the Serb nation, that Serb oppression started and the Kosovo Liberation Army became active. The fratricidal nationalism which took hold of the two communities was created and fanned by the respective power-holders. This process was even more evident in Rwanda. The genocide there was committed not by monsters but by ordinary people who were coaxed, threatened and deceived by bureaucrats, the military, politicians, the media, intellectuals, academics and artists into believing that killing was necessary to avoid their own extermination at the hands of their victims. The tribal rivalry between the Hutu and Tutsi was redefined, fanned and exaggerated to such a point that the ‘action’ eventually became inevitable.
In Kosovo, Serbs massacred in the name of threatened community, while the Allies bombed in the name of threatened humanity. Both principles, when they become absolute essences and define the meaning and value of culture without remainder or exception, can find everything that resists them expendable. Both positions exemplify, perhaps in different ways, the contemporary metaphysical urge: each side has made an axiomatic decision as to what constitutes the essence of humanity and follows it, like all metaphysical determinations, with a stubborn disregard of opposing strategies or arguments. They both claim to have the answer to the question ‘what is human value?’ and to its premise ‘what is (a) human?’, and both take their answers to be absolute and irrefutable. Universalism then becomes an aggressive essentialism, which has globalised nationalism and has turned the assertiveness of nations into a world system. Community, on the other hand, is the condition of human existence, but communitarianism can become even more stifling. When the supposed opponents become convinced about their truth and the immorality of their demonised opponents, they can easily move from moral dispute to killing. At that point, all differences disappear. From the position of the victim, the bullet and the ‘smart’ bomb kill equally, even if the former travels only a few yards from the gun of the ethnically proud soldier, while the latter covers a huge distance from the aircraft of the humanitarian bomber.
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. 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. ‘[M]y face [is] always exposed to others, always turned toward an other and faced by him or her, never facing myself.’ Being in community with others is the opposite of common being or of belonging to an essential community. Most communitarians, on the other hand, define community through the commonality of tradition, history and culture; the various past crystallisations, the inescapable weight of which determines present possibilities. The essence of the communitarian community is often to compel or ‘allow’ people to find their ‘essence’; its success is measured by its contribution to the accomplishment of a common ‘humanity’. But this immanence of self to itself is nothing other than the pressure to be what the spirit of the nation or of the people or the leader demands, or to follow traditional values and exclude what is alien and other. This type of communitarianism destroys community in a delirium of incarnated communion. A solid and unforgiving essence, be it that of nation, class, tribe or community, turns the subjectivity of man into totality. It completes subjectivity’s self-assertion, which refuses to yield. 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. As the French philosopher Jean-Luc Nancy puts it, this attitude is catastrophic because ‘it assigns to community a common being, whereas community is a matter of something quite different, namely, of existence inasmuch as it is in common, but without letting itself be absorbed into a common substance.’
Both universal morality and cultural identity express different aspects of human experience. Their comparison in the abstract is futile and the differences between the two 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 which 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 universalising impetus of their form. In this sense, rights carry the seed of dissolution of community and the only defence is to resist the idea of right altogether — something impossible in the global capitalist world. Developing states that import Hollywood films, Big Macs and the Internet also import human rights willy-nilly. The claims of universality and tradition, rather than standing opposed in mortal combat, have become uneasy allies, the fragile liaison of which has been sanctioned by the World Bank.
What are the stakes in the debate? Postmodern mass societies and the globalisation of economics, politics and communications increase existential anxiety and create unprecedented uncertainty and insecurity about life prospects. In this climate, the desire for simple life instructions and legal and moral codes, with clearly defined rights and duties, becomes paramount. Codification transfers the responsibility of deciding ethically to legislators and moralists, to false prophets and fake tribes. In an over-legalised world, rules and norms discourage people from thinking independently and discovering their own relation to themselves, others, language and history. The proliferation of human rights treaties and the mushrooming of legal regulation are part of the same process, which aims to relieve the burden of ethical life and the anxiety, or ¾ in Heidegger’s terms ¾ the ‘homelessness’ of postmodern humanity. International human rights law promises to set all that is valuably human on paper and hold it before us in triumph: the world picture of humanity will have been finally drawn, and everyone will be free to follow his or her essence as defined by world governments and realised by technologies that will dismember and reassemble the prosthetic human.
The twin aims of the Enlightenment were emancipation and self-realisation; domination and oppression the two evils it attacked. The struggle against tyranny and dictatorship is still the first priority in many parts of the world. But in Western, postmodern societies, self-realisation and self-fulfilment have become central aspirations of self and polity. In a society in which every desire is a potential right, it is forbidden to forbid.
Self-realisation is a process of shaping the self, an aesthetic poesis and care, which can only be carried out in relations with others and within a community. Other people, groups, and the law are aspects of our identity, the supports and constraints of our radical openness to the world. Being is being together, being with others. Human rights acknowledge the radical intersubjectivity of human identity, they involve the Other and the law in the construction of self. The Hegelian tradition explains how rights are involved in the struggle for recognition, and psychoanalysis adds that such recognition passes through the desire of the Other, as symbolic order or as other person. The desire for integrity projects the Other as non-lacking, but this gesture misfires: the Other is as lacking as self. Let us examine this dialectic of lack as expressed in rights.
A right-claim involves two demands addressed to the other: a specific request in relation to one aspect of the claimant’s personality or status (to be left alone, not to suffer in one’s bodily integrity, to be treated equally), but, secondly, a much wider demand to have one’s whole identity recognised in its specific characteristics. In demanding recognition and love from the other person, we also ask the Big Other, the symbolic order represented by the law, to recognise us in our identity through the Other. When a person of colour 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: that the rejection amounts both to an unfair denial of the applicant’s need for a job but also to the denigration of her wider identity with its integral racial component. Every right therefore links a need of a part of the body or personality with what exceeds need, the desire that the claimant be recognised and loved as a whole and complete person.
But the attainment of identity through the desire and recognition of the other fails in different ways, even in those cases in which human rights are successful on the surface and succeed in legalising desire. The subject of rights tries incessantly to find in the desire of the other — the missing object that will fill her lack and turn her into a whole being. But this object does not exist and cannot be possessed. The impossibility of fulfilling desire leads into ever-increasing demands for recognition and every acknowledgement of right leads to a spiralling escalation of further claims. In this sense, the promise of self-realisation becomes the impossible demand to be recognised by others as non-lacking, and so too all human rights become expressions of the unattainable ‘right to be loved’. Right-claims proliferate because legalised desire is insatiable. It looks as though the more rights and recognition we get, the more ‘in the deepest recesses of one’s egocentric fortress a voice softly but tirelessly repeats “our walls are made of plastic, our acropolis of papier-mâché.”’
But the progressive legalisation of existence, in which many aspects of life become rights, keeps undermining the unity of self. Human rights break down the body into functions and parts and replace its unity with rights, which symbolically compensate for the denied and barred bodily wholeness. Encountering rights nihilates and dismembers the body: the right to privacy isolates the genital area and creates a ‘zone of privacy’ around it; the mouth is severed and reappears ‘metonymised’ as free speech which protects its communicative, but not its eating, function. Free movement does the same with legs and feet, which are allowed to move in public spaces while the whole person is not given a right of abode. Similarly, the debate over abortion places the woman’s body in the hands and imaginings of others who deny her coherence by separating her womb from her self. In the process of constructing legal subjects and of making humans, rights split and rebind body and self in a way analogous to the technological — whether biological, genetic or cybernetic — manipulation of bodies and selves.
But each new and specialised right, the right to same-sex marriage, for example, exposes the artificiality of the ego by increasingly colonising its intimate parts. New rights remove activities and relations from their communal habitat and make them calculable, exchangeable, cheap. While rights are a compensation for the lack of wholeness, the more rights I get, the more I need to claim, and, paradoxically, the greater the sense of disjointedness of self. Rights are self-devouring; the ‘rights culture’ turns everything into a legal claim and leaves nothing to its ‘natural’ integrity. Desire and fear increasingly dominate all relationships and the action of community changes from being-in-common into beings attacking others and defending themselves. There is a great paradox at the heart of rights culture. The more rights I have, the smaller my protection from harms; the more rights I have, the greater my desire for even more but the weaker the pleasure they offer.
In our global world of rights, subjects — following their desire — fight for more and more effective rights, and political power comes under increasing pressure to acknowledge and codify them, and their protection has become the mark of civility of a society. But the success will always be limited, since no right can earn me the full recognition and love of the other and no bill of rights can complete the struggle for a just society. Indeed the more rights we introduce, the greater the pressure to legislate for more, to enforce them better, to turn the person into an infinite collector of rights and humanity into an endlessly proliferating mosaic of laws.
We can conclude that the positivisation and globalisation of human rights marks the end of political modernity in the same way that a globalised economy marks the end of Leviathan. Their triumph is the recognition of the lack that constitutes human identity. Desire is moved by lack, by the desire and fear of the other. The sovereign and human rights are the twin causes and objects of legalised desire. The sovereign, built on the principle of unlimited individual desire, but assuming the mantle of the party, the class or the nation, can turn its desire into murderous rage and the denial of all right.
The globalisation of the principle of sovereignty and the aggressive legitimation of state power by reference to morality and human rights leaves no-one and nothing untouched. Human rights have become the raison d’être of the state system as its main constituents are challenged by economic, social and cultural trends. It is no coincidence that human rights ‘triumphed’ at a point of maximum angst about life chances and malaise about the collapse of moral certitudes and political blueprints. The enormous potential for diversity released by the demise of communism was accompanied by an unprecedented desire for unity and order. If modernity created the moral panic, in postmodernity it is moral to panic. Its signs are apparent all over the Western world: as despair about the loss of state authority, national virility and parental — specifically paternal and male — power; as grave concern about the increase of broken and non-standard families, of ‘scroungers’ and ‘welfare mothers’; as hatred of ‘bogus’ refugees and criminal children, muggers and corrupt policemen; as fear about nationalist warlords, ex-communist mafias and juvenile thugs; or, as millenarian angst, identity crisis and fin-de-siècle blues.
As institutional practice, human rights often express the imagination of the one and homogeneous world society, in which the extension of formal equality and negative freedom and the globalisation of Western capitalism and consumerism will equate society with its ‘ideal’ picture drawn by governments and international law experts. Individually, they are the mechanism for shaping identity and life according to the dictates of the desire of the other and the trauma of a lacking self. Human rights are fissured; they both offer limited protection against the society of desire, against the threatening state and the fearsome other, but they also express the way in which identity is arranged in shifting relations of fear and affection and care towards the other. There is no guarantee that affection will win over fear. Experience tells us, however, that when the fear of the other — the foreigner, the Jew, the refugee — wins out, human rights lose all protective value against the state. An alternative, already visible in the politically liberal part of our globalised world, is that the devouring potential of fearsome desire in its legal form will go on colonising the social world. The final outcome will be the fracturing of community and of the social bond into a monadology, in which some people will be able to assert their final and absolute sovereignty, while others will be reduced to the status of the perpetually oppressed underclass. But a fully sovereign individual is a delusional and rather farcical simulacrum of Leviathan. In both instances, positivised human rights and legalised desire — based on the fear of the other — coincide, and their world and self-creating potential are extinguished. Human rights, rather than being the ideology of the end, are the postmodern pharmakon, the disease of an all-devouring desire (of the sovereign or the individual) and its partial cure when the old sovereign or the new order become delirious.
Rights exist only in relation to other rights; right-claims involve the acknowledgment of others and their rights and of trans-social networks of mutual recognition and arrangement. There can be no freestanding, absolute right, because such a right would violate the freedom of everyone except its bearer. There can be no positive right, because rights are always relational and involve their subjects in relations of dependence on others and responsibility to the law. Rights are a formal recognition of the fact that before my (legal) subjectivity always and already has come another. Linked with that is the recognition that human rights have the ability to create new worlds by continuously pushing and expanding the boundaries of society, identity and law. They continually transfer their claims to new domains, fields of activity and types of (legal) subjectivity; they ceaselessly construct new meanings and values; and they bestow dignity and protection to novel subjects, situations and people. Human rights come to institutional existence in their performative declaration, which declares what it creates and creates the ground upon which it stands. A human rights society turns this experience into a main principle of organisation and legitimation. Human rights are the recognition of the world-making power of groundlessness which turns the experience of ontological freedom into a principle of law and politics.
Human rights do not ‘belong’ only to the citizens of states which explicitly, even if ineffectively, recognise them. After their ideological and rhetorical triumph, postmodern human rights define the fluid relation between power blocs and the contested identities of individuals and groups. In a strange, almost metaphysical way, human rights ‘exist’, even when they have not been legislated. When the American civil rights activists asserted the right to equality, when torture victims all over the world claim the right to be free in their bodily integrity, when gays and lesbians in homophobic cultures proclaim the dignity of their identity, or when an abandoned lover demands his ‘right to love’, they acted, or are acting, strictly within the human rights tradition, even though no such legal rights existed, or currently exist, or would have been or are likely to be accepted. The protester, the rebel, the melancholic lover or the new age traveller belong to a long and honourable lineage; the 18th century revolutionaries, the 19th century political reformers and the 20th century economic, social and cultural protesters share the common determination to proclaim and thus to bring into being new types of entitlements against received wisdom and the law. The absence of legislative approval, often the legislator’s opposition to the new claims, is their structural characteristic. In this sense, human rights have a certain independence from the context of their appearance. Legal procedures, political traditions and historical contingencies may be part of their constitution, but human rights retain a critical distance from law and stretch its boundaries and limits. Indeed, their rhetorical nature, declaratory enunciation and regular defiance of state law are aspects of their ability to transcend and redefine their contextual boundaries. Legal and social contexts are part of the definition of concrete rights, but it is also in the ‘essence’ of right to suspend any reference to the vagaries of time and the exigencies of place.
The persistence of the gap between humanity and (legal) rights or between the utopian moment in human rights and law indicates that their force and rebelliousness may be related to a metaphysical or redemptive urge which lay dormant, but which has acquired renewed significance in postmodernity. Following the end of the most atrocious century, it is too late in history to return to the concepts of human nature and free will of classical liberalism. The universalism of rights and the historicism of cultural relativism share with Western philosophy and ethics a common characteristic: they reduce the distance between self and other and return the different to the same. As Heidegger argued, philosophy has put the meaning of Being at the centre of its concerns since classical Greece and has claimed that the question of Being is governed by the protocols of reason. Universal logos reflects and reveals the structure of reality since the ontological realm follows the demands of theoretical necessity. The traces of this ontological totalitarianism litter the body of philosophy. In its modern version, individual consciousness has become the starting point of all knowledge and, as a result, what differs from the self-same has been turned into a cognitive question, into the exploration of the conditions under which the other’s existence can be known; this way, the other becomes my knowledge of the other. The Cartesian and Kantian subject constituted the other and the world, according to the subject’s own schemata and categories without which, they claimed, the other cannot be reached. Hegel’s struggle for recognition assumed that a symmetrical reciprocity exists between the two parties, and posited the end of dialectics as the moment when the same becomes the synthesis of the same and the different. But the unique other cannot be sublated; otherness is not just a moment in the dialectic of the same and the different, but the moment of transcendence of the system. For phenomenology, again, the ego acquires knowledge through the intentionality of consciousness and its adequation with the phenomenal world. Husserl asserted the primacy of self-perception and claimed that the world discloses itself fully to consciousness. As Manfred Frank put it, ‘[the] Being that stands across from me in the circle of reflection is my Being’ which has been mistaken for Being as such.
In the universal community of reason, which acts as the horizon for the realisation of the law, the other — the alien, the third and unrepresentable — is turned into the same, the critical distance between self and other is reduced and the experience of value of moral conscience is grounded solely on the representation of the other by the knowing and willing ego. The alternative is the other’s exclusion, banning or forgetting. But the other who approaches me is singular and unique; she cannot be reduced to being solely an instance of the universal concept of the ego, nor can she be subsumed as a case or example under a general rule or norm. The law of modernity based on the self’s right and the subject’s empire is strangely immoral as it tries to assimilate and exclude the other. The other side of the universal legal subject, of equality and autonomy, of law’s formalism and its imperative, is the necessary inequality and the lack of autonomy of the alien and the enemy of nation. The discourse of universality is necessarily a white mythology: the enthronement of free will as the principle of universal legislation is achieved only through the exclusion, disfranchisement and subjection, without free subjectivity, of the other. Communitarianism and cultural relativism, on the other hand, can often become ‘mythologies of colour’, local — and usually much more aggressive — reflections of the exclusions of universalism. The essentialism of individualism, universal rights and the power of ‘reason’ are not far removed from the essentialism of community, the localism of duties and the power of tradition and the past.
And yet it is arguable that a metaphysical residue can be detected in the long history of natural law and can still be traced in popular attitudes to human rights. The continuous flight of meaning, which creates ever-new rights, could perhaps be anchored on an ethics: the groundlessness and world-making power of freedom on a moral foundation. If my right has meaning only in relation to another, whose action or entitlement are presupposed in the recognition or exercise of my right, the right of the other always and already precedes mine. The (right of the) other comes first; before my right and before my identity as organised by rights, comes my obligation, my radical turn towards the claim to respect the dignity of the other. The non-essential essence of human rights, the fleeting universal involved in all particular right-claims, could be the recognition of the priority of the other person whose existence before mine makes me ethically bound and opens to me the domain of language, inter-subjectivity and right. This other cannot be the universal ‘man’ of liberalism nor the abstract and formalistic ‘subject’ of law. The other is always a unique, singular person who has place and time, gender and history, needs and desires. If there is something truly ‘universal’ in the discourse of human rights, if a metaphysical trait survives their deconstruction, this could perhaps be the recognition of the absolute uniqueness of the other person and of my moral duty to save and protect her. This unique other, this transcendence in historical immanence opens the prospect of a postmodern principle of justice.
[*] Professor of Law, School of Law, Birkbeck College, University of London. This piece is based upon a public lecture, ‘The End(s) of Human Rights’, given earlier this year for the University of Melbourne’s Centre for Comparative Constitutional Studies.
 Fayed v United Kingdom (1994) 294 Eur Court HR (ser A) 23; Saunders v United Kingdom (1996) VI Eur Court HR 2044; The Former King of Greece v Greece (2000) 33 EHRR 516.
 See generally Francis Fukuyama, The End of History and the Last Man (1992).
 Despite the enormous number of books on human rights, the jurisprudence of rights is dominated by neo-Kantian liberals. There are a few notable exceptions. For a powerful expression of the doubts about human rights demagoguery and the limitations of reason’s emancipatory ability, see Rolando Gaete, Human Rights and the Limits of Critical Reason (1993). See also Michel Villey, Le droit et les droits de l’homme (1983), which is a small classic and, from a legal and historical perspective, the most far-going criticism of human rights; Bernard Bourgeois, Philosophie et droits de l’homme: De Kant à Marx (1990), which is the best critical introduction to the classical philosophy of human rights. In a more political vein, see generally the recent collection, Tony Evans (ed), Human Rights: Fifty Years On (1998), which explores some of the most widespread concerns about the state of international human rights law. See also Costas Douzinas, The End of Human Rights (2000).
 Gabriel Marcel, Creative Fidelity (1964) 94.
 For a background discussion on this point, see generally Costas Douzinas and Ronnie Warrington, Justice Miscarried (1994) 133–7.
 Leo Strauss, Natural Law and History (1965) 92.
 Declaration of the Rights of Man and of the Citizen (1789) [trans of: Déclaration des droits de l’homme et du citoyen].
 Jean-Francois Lyotard, The Differend (Georges Van Den Abbeele trans, 1998 ed) 147 [trans of: Le différend].
 The United States has declined to become a party to the International Criminal Court and has continued to proclaim its opposition to the new court: see, eg, Marc Grossman, American Foreign Policy and the International Criminal Court (2002) US Department of State <http://www.state.gov/p/9949pf.htm> at 23 July 2002.
 That pressure has seen the introduction of the Human Rights Act 1998 (UK) c 42 which came into force on 2 October 2000. That Act essentially incorporates into UK law the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
 Hannah Arendt, The Origins of Totalitarianism (1958) 299.
 Douzinas and Warrington, above n 5, 132–85.
 This includes amongst others the extradition and trial of Slobodan Milosevic and the attempted prosecutions of Augusto Pinochet in Spain and Ariel Sharon in Belgium.
 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 37 ILM 999 (entered into force 1 July 2002).
 ‘Bush Says No to POW Status for Detainees’ (2002) CNN.com <http://www.cnn.com/2002/US/
01/28/ret.wh.detainees/> at 23 July 2002.
 See generally Martin Heidegger, ‘Letter on “Humanism”’ in William McNeill (ed), Pathmarks (1998) 239 [trans of: Brief über den ‘Humanismus’].
 Scholarship and training in good conduct.
 See Louis Althusser, For Marx (Ben Brewster trans, 1969 ed) 228 [trans of: Pour Marx] (emphasis in original):
If the essence of man is to be a universal attribute, it is essential that concrete subjects exist as absolute givens; this implies an empiricism of the subject. If these empirical individuals are to be men, it is essential that each carries in himself the whole human essence, if not in fact, at least in principle; this implies an idealism of the essence. So empiricism of the subject implies idealism of the essence and vice versa.
 For a use of the psychoanalytic concept of ‘overdetermination’ in political theory, see Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (Winston Moore and Paul Cammack trans, 1985 ed) 97−105.
 The seminal text is Jaques Lacan, ‘The Mirror Stage As Formative of the Function of the I as Revealed in Psychoanalytic Experience’ in Jaques Lacan, écrits: A Selection (Alan Sheridan trans, 2001 ed) 1.
 Jean-Luc Nancy, The Inoperative Community (Peter Connor et al trans, Peter Connor ed, 1991 ed) xxxvii–xxxviii [trans of: La communauté désœuvrée].
 Ibid xxxviii (emphasis in original).
 See generally Jaques Lacan, écrits: A Selection (Alan Sheridan trans, 2001 ed).
 See generally Douzinas, above n 3, 297−318.
 Cornelius Castoriadis, ‘Reflections on Racism’ (1992) 32 Thesis Eleven 1, 9.
 William MacNeil, ‘Law’s Corpus Delicti: The Fantasmatic Body of Rights Discourse’ (1998) 9 Law & Critique 37, 45−6. ‘While freedom of movement and security of the person are treated as crucial civil liberties, no major human rights convention, including the European, creates a general right of residence. Some include no such right at all. Others restrict it to state nationals’: Douzinas, above n 3, 322.
 See generally Douzinas, above n 3, 263−96.
 Douzinas and Warrington, above n 5, 161.
 Manfred Frank, What Is Neostructuralism? (Sabine Wilke and Richard Gray trans, 1989 ed) 297 [trans of: Was ist Neostrukturalismus?] (emphasis in original).
 See generally Emmanuel Levinas, ‘The Rights of Man and the Rights of the Other’ in Emmanuel Levinas, Outside the Subject (1993) 116; Costas Douzinas, ‘Human Rights and Postmodern Utopia’ (2000) 11 Law & Critique 219.