Jean-Luc Nancy – On Human Rights: Two Simple Remarks

On Human Rights: Two Simple Remarks

10 April 2013

By Jean-Luc Nancy

αναδημοσίευση από: http://criticallegalthinking.com

First remark

Today, polit­ical cor­rect­ness demands that we say in French droits humains [human rights] when we used to say droits de l’homme [rights of man].1 This demand, which also occurs in other areas, is made because the French homme, like ‘man’ in Eng­lish, does not dis­tin­guish between the human race and the male gender. Ger­man is bet­ter equipped, dif­fer­en­ti­at­ing between Mensch and Mann. Latin dis­tin­guishes between vir and homo, Greek between anèr and anthro­pos, etc.

We could dis­cuss the reas­ons for this. How­ever, it is also import­ant to note the intro­duc­tion of another ambi­gu­ity. The adject­ive ‘human’ in French has a value that cor­res­ponds to the usual mean­ing we now give to the term ‘human­ist’ and, more gen­er­ally, to the moral qual­it­ies of ‘care’ (a word which has recently been impor­ted unchanged from Eng­lish into French), ‘com­pas­sion’ or ‘char­ity’. The Eng­lish lan­guage attrib­utes this value to the word ‘human’, fur­ther ascrib­ing to it a more spe­cific term, ‘humane’. Ger­man has intro­duced, along with menschlish, the words human, human­itär, and Human­ität as terms of eth­ical eval­u­ation. In other words, human rights can be seen as rights bask­ing in the aura of human­ity, since this term, in its cur­rently impov­er­ished and rather ridicu­lous sense, has taken on the mean­ing of a ‘love of man­kind’ or ‘friend­ship’ (in French, this is the mean­ing fre­quently ascribed to philia). Now phil­an­thropy — which was actu­ally a sec­u­lar dis­place­ment of the ostens­ibly all too Chris­tian char­ity — is based upon a more or less hid­den axiom of con­des­cen­sion: it is the act of the rich, cul­tiv­ated and dom­in­ant, who feel bene­vol­ence, com­pas­sion and pity for the social mis­for­tune of oth­ers. For all that, phil­an­throp­ists have never sought to chal­lenge the social order, except in minor ways.

Phil­an­thropy con­tains an impli­cit neg­a­tion of the respect for the uncon­di­tional dig­nity of all human beings, which appears at the begin­ning of the Uni­ver­sal Declar­a­tion of Human Rights of 1948 (here­after referred to as ‘Declar­a­tion’) and is repeated fur­ther on. It can even be said to rep­res­ent an inter­pret­a­tion of dig­nity that is con­ser­vat­ive, selfish and gush­ing with sentimentality.

Without arguing against the use of the term ‘human rights’, it is neces­sary to draw atten­tion to the extent of its ambi­val­ence. For whatever the term used, human rights are marked by a cer­tain degree of phil­an­thropy mixed with a prom­ise of ‘social pro­gress’, which is always linked to a ‘lar­ger free­dom’. In this sense, free­dom pre­vails over social justice through the res­on­ance, tone and emphasis of the text.

Moreover, the Declar­a­tion affirms that ‘the advent of a world in which human beings shall enjoy free­dom of speech and belief and free­dom from fear and want has been pro­claimed as the highest aspir­a­tion of the com­mon people.’2 But what is pro­claimed here and can­not be chal­lenged should not be con­sidered the ‘highest aspir­a­tion.’ One can and must think that free­dom (of speech and belief) does not limit the aspir­a­tions of the com­mon people [hommes]. It would not be wrong to say that the people can expect and want dif­fer­ent things — engage­ments, col­lab­or­a­tions, rela­tions — things that are lar­ger, infin­itely lar­ger and more, than freedoms. Being ‘free from fear and want’ is not the only real­ity of free­dom; there are other stakes that lie bey­ond any human free­dom. Spinoza, for example, who can hardly be accused of being inhu­man or an enemy of free­dom, con­sidered ‘free­dom’ to only exist as the free­dom of the entire world (which he called ‘nature or god’). The inde­pend­ence and autonomy of per­sons has a long way to go before it reaches its lim­its, if lim­its exist. Autonomy should be con­ceived in rela­tion to the sense of exist­ence, or more exactly, in rela­tion to exist­ence itself — of each, of all and of the world as sense.

Some will object, ‘What do you expect from a declar­a­tion of rights? You’re not con­sid­er­ing the extent to which your words go bey­ond the pre­de­ter­mined sphere that con­sti­tutes a kind of min­imum neces­sary to free human­ity from oppres­sion. You’re depart­ing the realm of right for philo­sophy, if not for dreams or speculation.’

My response is that it is indeed neces­sary to enter a philo­soph­ical register since the text of the Declar­a­tion — and the huge body of texts inspired by it and by the defence of ‘human’ rights — carry an impli­cit or lat­ent ideo­logy that should be brought to light. In fact, this is the price to be paid in order to avoid the self-​righteous inan­ity of such ‘rights’. The self-​righteousness here is that of a ‘human­ism’ of European ori­gin, which one must always remem­ber ‘does not think the human­itas of man high enough’, as Heide­g­ger wrote.

Pas­cal, another European, said the same thing much earlier but in a dif­fer­ent way: ‘Man infin­itely sur­passes man’. Pas­cal was a Chris­tian. Heide­g­ger, on the con­trary, believed that he could find the force of re-​foundation in an anti-​Christian dir­ec­tion. Today, all these ref­er­ences are writ­ten off, and human rights float more or less on the sur­face of the ‘icy water of egot­ist­ical cal­cu­la­tion’.3

Second remark

The Declar­a­tion is based — as a declar­a­tion of rights, that is to say, as a jur­idical pro­duc­tion or juris-​dictio — on the fol­low­ing sentence:

Whereas it is essen­tial, if man is not to be com­pelled to have recourse, as a last resort, to rebel­lion against tyranny and oppres­sion, that human rights should be pro­tec­ted by the rule of law.

This is the third of seven ‘con­sidérants’ (‘whereas’) after which the text pro­ceeds with the actual declar­a­tion. The French text reads:

Con­sidérant qu’il est essen­tiel que les droits de l’homme soi­ent protégés par un régime de droit pour que l’homme né soit pas con­traint, en suprême recours, à la révolte contre la tyr­an­nie et l’oppression.

We will pass quickly over the com­plex and fra­gile char­ac­ter of a pro­pos­i­tion that seeks to avoid a resort to rebel­lion. It is clear that this resort is seen as some­thing ‘com­pelled’ and that this com­pul­sion can engender ‘tyranny and oppres­sion.’ In 1948, in a text draf­ted by a com­mit­tee of nine mem­bers whose polit­ical and intel­lec­tual com­pos­i­tion calls for lengthy ana­lysis,4 tyranny and oppres­sion focused on the fas­cisms that had just been defeated. In a sense, the Declar­a­tion is part of the gen­eral move­ment that, some­how neb­u­lously, fosters the con­dem­na­tion of ‘fas­cism’ and what this word would, over a long period, igno­mini­ously sig­nify. How­ever, any ques­tion­ing of the under­ly­ing reas­ons for the rise of fas­cisms is releg­ated to the back­ground, if not even fur­ther. There is no exam­in­a­tion, from the per­spect­ive of demo­cracy and 20th cen­tury cap­it­al­ism, of what could have facil­it­ated or even caused the emer­gence of fas­cisms. There is, there­fore, no oppor­tun­ity to con­sider other pos­sib­il­it­ies of oppres­sion — and con­sequently of rebel­lion — like those rep­res­en­ted by the abom­in­able fig­ure of a Head of State or Leader flanked by party appar­atus, police and mythology.

Here, again, some will protest. The pre­ced­ing sen­tences will be cri­ti­cised for being unac­cept­ably sus­pi­cious of the vir­tu­ous words of the Declar­a­tion. I was care­ful above to write, ‘in a sense’, and to limit myself to point­ing out the absence of exam­in­a­tion, noth­ing more. In all sin­cer­ity, I am not try­ing to con­struct a machinery of denun­ci­ation. Yet it is dif­fi­cult to dis­pute that the ques­tion of ‘human­ism’ has been con­tinu­ally refined or deepened, accord­ing to dif­fer­ent views. This has occurred along the road from the defeat of fas­cism to the unbridled expan­sion of cap­it­al­ism, which is under­min­ing human rights in an increas­ingly obvi­ous way. It is a road that passes through the other col­lapse of so-​called ‘social­isms’ and, today, through the vari­ous ten­sions in reli­gious and/​or com­munit­arian move­ments. ‘Human­ism’ is strictly coeval with mer­cant­ile civil­iz­a­tion, techno-​scientific devel­op­ment and demo­cracy. ‘Human rights’ are not abso­lutely pristine, as their pre­his­tory in Roman law [droit] after a cer­tain period already shows. They derive from Roman legal cul­ture, trans­por­ted first out of Roman civil reli­gion and then out of Chris­tian­ity to fer­til­ise the spirit of mod­ern law [droit] and espe­cially so-​called ‘nat­ural’ law [droit].

Now, it is here that we must con­sider the other clause of this ‘whereas’. The French ver­sion provides a strik­ing state­ment: Human rights must be pro­tec­ted by the rule of law [régime de droit]. The Eng­lish dis­tin­guishes rights and law, the Italian dis­tin­guishes diritti and norme giur­idi­che, whereas other lan­guages (e.g. Greek or Ger­man) repeat, like the French, the same term. Per­haps the Latin trans­la­tion best cla­ri­fies the dis­tinc­tion in stat­ing that: hom­inum jura civ­i­tatis forma quae justa est tegi (human rights must be covered by a just civil form).

This is much more than a lin­guistic curi­os­ity. Repeat­ing a single term (droit) or dis­tin­guish­ing two terms (rights and law), indic­ates the same dif­fi­culty: do rights [droits] exist that have not been estab­lished by law [droit]? Here the Declar­a­tion declares its own neces­sity: it is not just a for­mu­la­tion, words sol­emnly declared. The Declar­a­tion is the legal insti­tu­tion of the rights it declares. If we leave aside the well-​known Amer­ican and French ante­cedents that paved the way, prior to the Declar­a­tiononly fac­tual rights and not legal rights [droits de droit] exis­ted. At most, some of these rights pre-​existed as rights of cer­tain States, the United King­dom, the USA and France in par­tic­u­lar. But what are ‘fac­tual’ rights or national rights with regard to inter­na­tional law? These two dis­tinct ques­tions are in part intertwined.

These ques­tions share a con­cern about the found­a­tion of a right in gen­eral. The idea of ‘human rights’ brings to light the extraordin­ary dif­fi­culty of found­ing right, if not the impossib­il­ity of such a found­a­tion. We have sought to dis­miss the idea of ‘nat­ural rights’, which rep­res­ents an internal con­tra­dic­tion because their non-​positive (in the legal sense) char­ac­ter pre­vents legal enforce­ment and sanc­tion. Yet we have invoked a ‘min­imum norm’ (Rawls) which is neces­sary for the con­sti­tu­tion of a just State or of the State under the rule of ‘law’ [Etat de ‘droit’] as it is pop­ularly called today.5 This is no less lack­ing in found­a­tions, in the fullest sense of the word, than ‘nat­ural’ rights. Han­nah Arendt also showed how the national appro­pri­ation of ‘human rights’ gave rise to cat­egor­ies of per­sons without rights (refugees, dis­placed and state­less per­sons). It fol­lows from these ana­lyses that forms of non-​right have not stopped impos­ing their iron law within pos­it­ive rights, with the help of eco­nomic, tech­nical, and polit­ical chaos.

Undoubtedly, the ‘right to have rights’, as Arendt for­mu­lated it, is plain to see: we can recog­nise neither the qual­ity of the human being, nor, per­haps, that of the exist­ent in gen­eral, without the involve­ment of this right. How­ever, this again says noth­ing about the nature of this sin­gu­lar ‘right’ or about the pos­sib­il­ity of its recog­ni­tion, which should be uni­ver­sal and prior — if not super­ior — to any determ­ined legal institution.

It is well known that the power­less­ness of inter­na­tional law [droit] — of what passes under this name — or per­haps the basic impossib­il­ity of such a law [droit] (yet called for, desired and pro­claimed by philo­soph­ical human­ism for more than two cen­tur­ies and form­ally declared in the 20th Cen­tury) impedes its effect­ive imple­ment­a­tion. But as Hegel says, what is well known is not known at all. What remains here unknown is noth­ing other than the absence of found­a­tion of right in gen­eral. This absence is not tem­por­ary or con­tin­gent: it is con­stitutive, I would even say that it is ‘con­stitu­ent’ of right.

Indeed, right can only exist or be guar­an­teed by a divine author­ity, whatever that may be. In such a case, it is not a ques­tion of right, if some­thing worthy of this name requires the con­tinu­ing pos­sib­il­ity of recov­ery, trans­form­a­tion and re-​creation in the vari­ous prac­tical cir­cum­stances — tech­nical, polit­ical, cul­tural and spir­itual — to which it must respond. Both the his­tory of legis­lated rights of the Roman type as well as the cus­tom­ary rights of the Anglo-​Saxon type clearly show that an essen­tial plas­ti­city of right exists within the fix­ity that the law, no less essen­tially, requires.

Both the inter­min­able ascent to the ‘basic norm’ in a pyr­amid of norms (Kelsen) and the recourse to an ulti­mate power to decide the excep­tion (Schmitt), the right to exceed right, con­verge towards a pas­sage to the limit. Right can only be exposed to such a pas­sage; it is by nature the insti­tu­tion of what can­not be insti­tuted, in other words of justice in the non-​legal sense of the word. And it is not by seek­ing a cat­egor­ical legal imper­at­ive that we can hope to found such a justice since the uni­ver­sal can be found neither here nor in a Kan­tian imper­at­ive, where it is reduced to the rep­res­ent­a­tion of ‘nature’ as a ‘type’ or non­determin­istic model of morality.

In a sense, which itself passes on to the limit of sense, justice con­sists in ren­der­ing justice. This is not ‘to render the justice’, which assumes a determ­ined or insti­tuted justice. This is ren­der­ing to someone or some­thing the justice that this per­son or thing — event, work, any form of exist­ent — deserves.6 But what does each X deserve? Each X deserves an infin­ite recog­ni­tion of its sin­gu­lar­ity. In other words, the justice that must be rendered to X is a justice whose nature and extent or non-​naturalness and incom­men­sur­ab­il­ity only X can determine.

This justice must be effect­ively rendered, given back, returned to any X. This justice must be recog­nised for every X. Justice must be done to X and yet it is not it — whatever it is, tree or man [homme]  — that can pro­duce its due and present it as ‘justice’ or as ‘right’. This justice rests on the unfound-​able cer­tainty that it is just that that exists. On the cer­tainty, there­fore, that it is just that the world exists even though noth­ing can jus­tify its existence.

Unjus­ti­fi­able justice,7 far from found­ing any kind of rights — as extens­ive as these may be — opens up instead an infin­ite per­spect­ive that exceeds all pos­sib­il­ity of right. From this infin­ity and to this infin­ity, all things and every sin­gu­lar­ity pro­ceed and return. This per­spect­ive must remain present bey­ond the hori­zon of right; for without an appeal or a sign towards it, right can only fall back into its inev­it­able fra­gil­ity, whether of impot­ence, arbit­rar­i­ness, relativ­ity or rigid­ity. The greatest merit of ‘human rights’ is to bring out all these dif­fi­culties and all of these exi­gen­cies. The aim of these two simple remarks was, within their nar­row lim­its, to draw atten­tion to this.

Jean-​Luc Nancy

Trans­lated by Gil­bert Leung

This essay will also be pub­lished in: Cos­tas Douz­i­nas and Conor Gearty eds, The Mean­ings of Human Rights: The Philo­sophy and Social The­ory of Rights, Cam­bridge Uni­ver­sity Press, 2013, forthcoming.

 

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