The End of Human Rights – Critical legal thought at the turn of the Century
By Costas Douzinas
PART ONE THE GENEALOGY OF HUMAN RIGHTS
A new ideal has triumphed on the world stage: human rights. 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. All have glossed their claims in the language of human rights.
They are trumpeted as the noblest creation of our philosophy and proof of the universality of our global aspirations.
The original class connotation is gone.
But, as big as they are, they are not universally followed. This creates doubts.
His critique is not done in the sense of an attack on the premises. It is in the Kantian sense, to explore the conditions of existence of a particular discourse or practice.
Political liberalism was the progenitor of rights. But it has had less success in explaining their nature. The human nature assumed by rights speak is pre-moral. The human is left as sovereign to choose their ends.
There are two ways in which to explore rights.
One is what is the subject they assume.
Secondly we look at their inception in political experience of freedom.
For Anglo American libertarians, freedom is resistance against necessity. For Marx, it is economic.
Have we arrived at the “end of history”? Are myth and prejudice gone? Hegel said that the rational and real coincide and establish a link between philosophy politics and history. Napoleon was “reason on horseback”. Has it congealed?
Myths and prejudices are local. Rights are said to be universal. If myths look to their beginning, reason and rights look to ends.
One reason that normative jurisprudence is so unreal is that it totally neglects the role of law in sustaining relations of power. It descends rather into uninteresting exegisis and apologia for legal technique.
To question human rights though is said to be evil and anti-human.
Contemporary jurisprudence looks at natural law as something that was killed by the enlightenment. The mutation of natural law into natural rights in the 17th century is said to be the first victory of modern reason of medieval witches.
God may have died, but we still have international law.
This is Whig historiography in which all epochs lead towards the progressive moment.
Leo Strauss said “all human thought is historical and hence unable to grasp anything eternal”.
Rights are in conflict with the idea of a strong community. A society based on rights does not recognize duties.
When nature is no longer the standard of right, all individual desires can be turned into rights. To follow your version of your identity. Rights are the legal recognition of individual will.
Vulnerable to accusations of cultural imperialism, the perspective of late modernity allows you neither to be a universalist nor a cultural relativist.
If we cannot criticize this concept and it is not allowed to be historicized then are we condemned to eternal cynicism in the face of universals and murderous particulars?
“All men are created equal and are endowed by their creator with unalienable Rights” is quoted verbatim in Article one of the 1948 Declaration of human rights.
This book will argue that both the ahistorical universalist approach and the historical relativism approach to the study of rights are wrong.
According to humanism, humanity has two unique characteristics: it can determine its own destiny and, secondly, it is fully conscious of itself, transparent to its self.
That puts the individual at the center of our postmodern world.
The convergence of philosophy and constitution making established political and legal modernity, but was short lived. Philosophy, law and science soon diverged. They recombined again after WW II in the form of human righs.
The legal person gets their rights from courts and institutions. The legal person is a creation of theatrical artifice.
Human rights are both creations and creators of modernity.
First, they mark a profound turn in political thought from duty to right. Secondly, they reverse the traditional priority between the individual and society.
While classical and medieval natural law expressed the right order of the cosmos and of human communities within it, an order that gave the citizen his place, time and dignity, modernity emancipates the human person, turns him from citizen to individual.
Unconstrained freedom can destroy itself. Freed will must be restrained by laws and sanctions, the only limits it understands.
Hobbes said freedom needs as its counterpoint public power.
First nature was the basis. Now desire. Both are used against state oppression.
Chapter
two – A brief History of Natural Law:
PART ONE – The Classical Beginnings
There are more than 255 definitions of “natural law”.
Today nature and law, concepts twinned for most of western history, have been radically separated and even assigned to opposing fields.
Classical nature has been replaced by a meaningless natural world.
The modern laws of nature are universal.
Part One #1 Nature and Justice in Classical Greece
The oldest extant text of Western Philosophy is a fragment by Anaximander on justice. It says, in essence, Injustice is constant, justice is a struggle.
Archaic 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 is impossible. The slaves stay in line.
Greek philosophy, the just and nature were born were born together in resistance to traditional authority and injustices.
The idea of natural law appeared fully developed for the first time in Aristotle.
Nature as a critical concept acquired philosophical currencyin the 5th century when it was used by the Sophists against custom and law. Thrasymachus said that laws were an invention of the weak to ward off the stronger.
Plato said no. Nature gives us laws that uphold justice.
And whereas this idea of justice was objective and ahistorical, the radical split between thesubject and object, a mainstay of modernity had not occurred yet. The cosmos, the universe and everything in it has a purpose or an end.
The nature of a thing was its energia, efficient cause or potential for perfection. The purpose of a human was to achieve his potential to pass from the nascent to his fully developed state.
Nature itself, unlike the matter of modern science, represents the principle of motion in a purposeful cosmos.
These teloi are not arbitrary; they are determined by the dispositional characteristic of each being.
In this sense, the good life is according to nature and there is no separation between is and ought. Right according to nature is what contributes to the being’s perfection. Wrong is what rips it from its place. It is objective, but not in the modern sense.
Epicurus was suspicious of power and anticipated the social contract idea. But his suspicions and love of pleasure were totally private. They had no effect on the social organization.
The Sophists had set physis against nomos. The stoics expanded the nomos into the necessary bond of the universe and identified the two. The passion against passions transgressed class divides for the first time. Slaves and emperors shared in this ethic.
The stoics were not particularly interested in jurisprudence, and their quietism allowed them to accept both democracy and monarchy, they made a lasting contribution to legal thought.
In conclusion, classical philosophers saw nature as a standard, which must be discovered because it is occluded by a combination of convention and ancestral authority.
Part one #2 – Plato and Justice as Ideal
Aristotle’s animal was zoa politica. A citizen can become excellent only in a just city and a city can become just only if its citizens live a life of virtue. Accordingly, personal morality and political ethics had the same end.
Socrates said the practice of wisdom and knowledge is the best teacher of conscience and the city. For a city to practice justice, it must be constructed by the philosopher. The goal is utopia.
The good itself is not accessible to reason. Neither is justice. The closest he comes to a definite definition is that everyone is “doing ones own and proper task. The right constitution leads to a balanced relationship between the three classes of citizens in the city and three parts of the soul in man.
The Republic is the first attempt to raise justice into a universal ethical idea independent of historical context. What is most remarkable in the text though is its unrelenting attack on conventional and traditional views.
Part 1 # 3 -- Aristotle and Legal Justice
Particular justice exists in cities; when its demands are contested by two parties, it requires the intervention of a third disinterested person, the dikastes or judge. His judgment is the dikaion.
It is a state of affairs in the world, a distribution of things or the just share decided by the jude and , as the object of justice, the aim is the right proportions between things.
The jurist is not concerned with upholding individual entitlements or rights but with observing the cosmic and civic order.
The dikaion should not be confused with morality or general justice and it does not result from the applcation of moral precepts or legal rules. Greek cities had moral rules and Antigone’s unwritten laws fall into that category, but these were clearly distinguished from legal justice.
The idea of law as a commandment or a rule originates in Jewish and later Christian concepts of law. It was not of great importance in classical Greece.
Plato too wrote that the aim of the juridical art (dikastike) is to discover the dikaion and not to study the laws, which are ony supplementary to this task.
For classical philosophy the source of natural law was the natural organization of the cosmos. Natural law is an unwritten law, its content is never fully known, it has nothing to do with the idea of a positive rule or commandment prevalent in modernity.
There must be two parties contesting so so the style of argument is rhetorical and dialectical. The dialectically just solution is not deduced from a general rule. It is discovered in reality through a consideration of arguments, examples and observtion of the relationship amongst the parties. Judges do not get the only truthful opinion, but the best in the circumstances.
Legal judgment, is conducted in the realms of praxis and techne rather than science, episteme, is always accompanied by a degree of uncertainty, which is brought to an end by the decision. The dikaion is, therefore, an act of judicial will.
In roman law it started and ended with the case at hand. They casuists stayed close to the facts of the case. They explored existing opinions relating to the case. But not eternal truths.
Finally Aristotle’s theory of justice cannot be understood outside his theory of practical wisdom. Justice is the geometrical mean between excess.
Unlike the concept of legal rights, Aristotle was interested in legal justice, rather than challenging existing hierarchies. He presupposes a natural and institutional equilibrium.
For Plato, justice regulates the soul as much as the city. It has a disciplining function. Aristotle’s pragmatic politics made him less authoritarian, but the slaves were in the right place. Stoic natural law didn’t either.
Greek justice was both legal AND Political. It explores the overall polis and tries to get the most beautiful and harmonious arrangement of the social bond.
Justice as an ideal is never fully out of this world.
The Greeks got their justice from philosophers, tragedians and dissidents, not from judges.
CHAPTER THREE - A BRIEF HISTORY OF NATURAL LAW: II. FROM NATURAL LAW TO NATURAL RIGHTS
1. THE STOICS AND NATURAL RIGHT
For the Roman jurist, as for the Greek, the jus was not a collection of rules but the just and rightful outcome of a dispute. The Digest says that “our proper civil law is not written but consists solely of the interpretations of the jurists”. The opinion s of the jurisconsultants started being written and eventually acquired a persuasive force for later cases, but the method remained dialectical and casuistical.
The jus designates the just share of each citizen in his relationship with others. The jura are not individual rights but real entities in the world.
Cutting through the contemporary distinction between rights and duties, the jura refer also to citizen’s civic duties and burdens. The duty to serve in the army, for example, is a jus and, the brutal execution of a parracide is also called the murderer’s jus.
The jus refers not to an individual right but to the just share or due determined within an established structure of relationships and varying with each person’s status and role.
Aristotelian concepts of legal justice survived and thrived in Rome.
But it was Cicero, an eclectic Stoic and a pragmatic, who turned the rational universality of Stoicism into the legal ideology of Rome.
Cicero rationalized Roman law and claimed that many of its central tenets could be traced back to universal rational norms. In the process, the Stoic, “common notions”, through which men partook of universal reason and became aware of its dictates were psychologized.
Still, like the Greek it was a matter of relations and there was no concept of the absolute individual rights.
Aristotle made his last great appearance in the wriing of Aquinas and then gradually descended into positivism. The natural rights tradition, on the other hand influenced by stoicism and Christianity, moved towards a command-theory of law and a subject-based interpretation of rights and prepared the modern conception.
In stoicism, nature became the source of a definite set of rules. They were the first pagans to think that natural order expressed divine reason.
Aristotle’s nature included the potential for growth. Stoic nature was more static. Diogenes wrote that “Nature is the force which constrains the world.” Nature commands.
Two resultants. One of Human dignity and social equality. The second and dominant, equated natural with positive law and the real with the rational (anticipating Hegel). It privileged the passive and private morality of the happy soul and the sanctioned existing institutions.
The stoic conception had more in common with Christianity than with Aristotle and led to the modern notion of human nature.
The law no longer derives frm external, but from human nature, man’s reason.
Not everyone has rationality, so the judge is it’s mouthpiece.
This also produces a fraternity of all of mankind.
But the main force moving the law towards a theory of natural rights was it’s gradual christianization. Nature was the creation of an all powerful-rational god.
Paul said that god placed a natural law in our hearts. And the codification
went forward, Jewishly.
St. Augustine put the idea of soul and body subjection to the lord in. Also unjust law is no law and an unjust state, no state.
Yet, we are sinners and he is the first to legitimize the state as the arbiter for salvation.
2) The relative natural law of Aquinas.
He is very similar to Aristotle. But here law has none of the uncertainties and hesitations associated with Aristotle and the classics. Natural law is definite, certain and simple And state law is an indispensable remedy for sin.
Thomis fully justified the medieval order after the rulers accepted the dominance of the church.
But his greatest conflict with natural law is that he says justice is a category of natural law that expresses the advantage of the church and feudal hierarchy.
This involves courts and thus abandons the rational freedom and human dignity that the stoics saw.
There is, instead, a non-negotiating god. Natural law abandons the ideal moral and political order and just legal solutions, it is in confirming god’s law.
3) The invention of the individual.
Duns Scotus and William of Ockham were the rist to argue, in the 14th century, against the dominant neo-platonic views, that the individual form is not a sign of contingency nor is the human person the concrete instantiation of the universal. One the contrary, the supreme expression of the creation is individuality, as evidenced in the historical incarnation of Christ.
Society and “law” have no empirical referent. Only individuals do. Concepts owe their existence to linguistic conventions.
Thus comes the legal absolute power of the individual over his capacities. Individual as god, in his image.
Gods will has priority over his reason. God wils good. He doesn’t reason it out.
This is a Copernican moment.
Grotius , by asking the law to accord with the rational nature of man, abandoned both the classical and Christian traditions of natural law. Nature is only physical and separated from humanity.
The right, no longer objectively given in nature or the commandments of God’s will, follows human reason and becomes subjective and rational. The naturally right becomes individual rights.
A laicised deism replaced Christ with the God of Reason and eventually with man become god.
The modern natural rights tradition was a reaction to the co-optation of natural law by religion and the accompanying loss of juridical flexibility, political latitude and imaginative utopianisms, which characterized the classical tradition.
Rousseau, Hobbes and Lock attempt to discover the common elements of humanity, the lowest common denominator.
But man qua man was a fiction. A naked human only endowed with logic, strong survival skills and a sense of morality.
The fiction drew its power from the importance contract had aquired in early capitalism.
But man wasn’t so transparent. People fought over his basic characteristics. So we came up with the purely negative logical which allowed us to overthrow government if it didn’t live up to its contractual obligation.
This parallels science’s disregarding of the irregularities. The law was like the homogeneity of math. Newton against feudalism. Rational natural law versus natural rights.
The change we’ve chronicled is discovered in the double meaning of the word justice, as the transcendent ideal of law and as the administration of the judicial system.
From Plato’s Republic to early modernity, philosophy placed the search for the best polity at its center.
Hobbes is the founder of the modern tradition of individual rights, the first philosopher to replace fully the concept of justice with the idea of rights.
He wrote of a right of nature that gives him the right to self preservation.
Rights derive from the nature of “each man”. Don’t observe natural relations, “best polity” or divine commandments. Look to human nature.
The hobbsian state has no organized community or law except for the law of self-preservation.
He identified right with freedomfrom law and from all external and social imposition.
Tus he separated the individual from the social order. He is the subject of modernity and the source of the law. Aristotle used relations, Aquinas, natural order. Hobbes, the individual. Freed from Christianity and stoicism , it no longer is a spirit.
“But whatsoever is the object of any mans Appetite or Desire; that is it, which for his part calleth Good. And the object of his hate and aversion evil.”
Desire is stronger than reason. The end is not virtue and justice, but pleasure.
Right is a power that belongs to the individual, a subjective quality which logically excludes all duty . This is precisely the basis of the distinction between law and right.
Sidestepping Cartesian dualism, man is not conceived as a mirror of some superior reality, but as a lamp. Art too no longer resembles forms, he is the inventor.
The power of will finds its manifestation in decision.
Rather than justice being a persons due in community. It is my desire despite community. Also, morality doesn’t distinguish between goods and evils (all measured by pain and pleasure) so no scheme of values is possible.
We give up some freedoms for self-preservation in society. But few.
Natural was turned into state-given individual rights and justice became obedience to the law.
The primacy of desire leads inexorably to the social contract. Not reason, but the freedom and desires of man are the source of law.
Rights are natural while duties are conventional.
Best polity becomes replaced with efficiency and the design of the best institutions. This destroys the rights of the progenitor, the subject. But the preconditions of individual property rights is the absence of political and human rights. Individual and human rights are often at odds.
Natural rights hang around in the form of the sovereign subject and the state power.
The sovereign should be a king, a person, not an abstraction.
Locke did not vary drastically from his predecessor.
Nature put into man a desire of happiness. To pursue it is the only innate right. H
Happiness depends on life so self-preservation is key. The only way to preserve life in a dangerous world is the establishment of a civil society. Self-preservation requires property. As a result, the legislative body should be elected by the wealthy classes, to ensure property rights.
Capitalism is right because man is the “absolute lord of his own person and possessions”.
He creates and owns value through his own efforts, and is thus emancipated from nature and all social bonds which predated the contract.
The greatest happiness turns out to be the greatest power to shape and acquire things.
Nature, including human nature, which started as the measure of all things, ends up being just matter, to be controlled, exploited and shaped.
Chapter 5 – Revolutions and Declarations: The rights of Men, citizens and a few others.
Modernity goes from the Declaration of independence to the fall of the Berlin Wall .
All the rights documents are copies.
The aim of the American documents was to legitimize political independence from Britain. The French wanted to overthrow the social order of the ancien regime.
Magna Crta, and the Bill of rights of 1689 didn’t constitute general declarations about the relation between subjects and political power.
The weight of history was made to support the self-evident nature of the laws of free market and the potential conflict beween historicism and naturalism was resolved.
The French declaration was an act of war against tyrants. Unlike the Amercan, there is nothing obvious or commonsensical about the act.
It has the enlightenment project of abandoning myth.
Kant’s critiques launched philosophical modernity. The belief that individuals are able to develop their innate imaginative and creative powers through economic improvement and participation in scientific, literary and cultural life. Emancipation enters the world stage as a negative principle or defense weapon against oppression.
Legality lost morality but gained the police, the prison and the gallows.
Human rights belong to man. Therefore, there is a such thing as “man”. But the only ontological or methodological precondition of modern philosophy is the equally shared freedom of the will. Which need no action.
Man as free is the ground. SO man should have signed the declaration of independence.
The National Assembly ushered “man” onto the world stage.
The French text has a tension between ”man” and “citizen” and “alien” and “woman , slave, black colonial and other’s excluded from political rights. This tension later anchors the claims of all these excluded.
The rights are created by proclamation there needs be no further contextual clarification or justification. The rights are always to specific actions. These courts decided they were the arbiters and creators of such.
III. THE EMANCIPATION OF ABSTRACT “MAN”
People are born totally unequal. The infant to parent is the first example. One is dependent.
Race class age gender all make human nature and its equality and dignity retreat.
The abstract human nature was the white property owners ontology. Women had fleeting feelings and sensibilities that kept them from it. Male freedom and individuality. Female tradition and fixed immobile opposition.
Women got the right to vote in France in 1944!
The superiority over the savage. This emptiness was at the heart of early critiques from right and left, Burke and Marx.
I have met Englishmen, Italians, and Russians, but never man.
Marx; what is the use discussing the abstract right to medicine when economics are wrong. I go to the farmer for food, not the metaphysician.
Marx rightly saw “man” as the possessive man.
PART 4 – RIGHTS CAN BE GUARANTEED ONLY BY NATIONAL LAW
All struggle against oppression, when successful, divides into the excitement of the newly-found freedom and the urge for order.
The metonymical relationship and the mirroring effect between “sovereign” man and “sovereign” state are apparent in international law and politics. States are unitary, free willing actors.
Human rights and national sovereignty , the two antithetical principles of international law, were born together.
The universal community said reason was the legislator. But nationalism protects some and excludes others. Citizenship shifted exclusion from class to nation.
Immediately after the French Revolution the foreigners living in France were naturalized. But the victory of the Jacobins in 1794 meant they all had to leave Paris. Tom Paine was arrested in December of 1793: he was lucky to avoid the guillotine.
The citizen hasrights and duties to the extent that he belongs to the common will and to the state.
We become human through citizenship and subjectivity is based on the gap, the difference, between universal man and state citizen.
Chapter 6 The Triumph of Humanity: From 1789 to 1989 and from Natural to Human Rights
PART ONE – THE DECLINE OF NATURAL RIGHTS
Victorious rebels become as oppressive as their rulers. After the declarations were published the idea of natural rights went down.
Bentham said they were illusions on stilts.
This was the era of state and empire building, of utilitarianism and social engineering, the time of emergence of nationalism.
The most important intellectual legal force was positivism.
The power of free will ws reflected in the legislative and administrative ability of the state to interfrere with and regulate all aspects of social life.
Dicey removed naturalistic fallacies and proclaimed the absolute primacy of state law.
Those jurists and philoanthropists who tried to use human rights to protect minorities ran up against legal positivism overrunning rights talk.
This down play of rights was also facilitated by the evolution of grand social theory. Hegel, comte, durkheim, marx weber and freud .
The idea of society was invented at this time. It was given priority and became the main object of scientific inquiry.
BY the end of the 19th century, the individual was defined by social theorists not in opposition to the social or society, but as its product.
An important effect of this theoretical turn, wsa the creation of the concept of Ideology. Ideology was defined wither as false consciousness, which could be corrected by science, or as a set of ideas that were narrow issues claiming the dignity of the universal.
Natural rights became an example of ideological illusion.
Natural rights were seen as a local invention.
The new morality was a morality of groups, classes, parties and nations, of social intervention, legal reform and utilitarian calculations.
The real became the rational in scientific thinking.
PART TWO – THE IRRESISTIBLE RISE AND RESISTIBLE WEAKNESS OF INTERNATIONAL HUMAN RIGHTS.
Human rights entered the world scene after WW II.
Human rights diversified from “first generation” civil and political or “negative” rights, associated with liberalism, into second generation, economic, social and cultural or “positive” rights, associated with the decolonization process.
But people still vote for regimes and parties determined to violate human rights (Serbia to French revolution). In response to Hitler human rights were set up.
Civilization and “humanity” were substituted for the social contract model. It was civilization that was at stake. Law would protect people from sovereignty.
But “human rights” do not exist empirically. It is a normative principle. It is a new type of positive law.
From individual freedom to claims of equality and guarantees of a decent living standard to the right of self-determination and the environment.
But what lies behind this unstoppable proliferation of human rights? The change from natural to human rights?
The hope that human nature and popular sovereignty would lead to them have proven unrealistic. Human rights documents have little value as descriptors of societies or their bonds.
We the people has gone universal. So, the idea is, peoples and states have merged and the governments or the international organizations speak for both as this is the only way the “people of the world” can express themselves.
International law rules the world.
The variable universalism of classical natural law or the Kantian universalism were regulatory principles: they gave a perspective by which to judge an action.
The empirical universality of human rights, on the other hand, is not a normative principle.
But, human rights re either violated or protected at the local level. Human rights codes are a new type of positive law.
Codification, from Justinian to the code of Napoleon, has always been the ultimate exercise of legislative sovereignty and state power.
Universal laws, are antagonistic to nationalism and show the emerging new order.
The powerful states used human rights discourse to justify the attacking of other states.
PART THREE – HUMAN RIGHTS AND STATE HYPOCRISY
The UN’s Declaration of Human Rights is an English document. Only one of the the seven principal drafters was not Christian. Saudia Arabia abstained from the final vote in the General Assembly. South Africa voted against it.
Human rights became an ideological weapon during the cold war.
The US is the oly country (with somolia) that hasn’t ratified the Convention on the rights of children. convention banning discrimination against women neither.
Often ideological point scoring is a Trojan horse for trade and market-penetration.
From time to time, China gets diplomatic credit by releasing a big name prisoner.
To paraphrase Richard Rorty, moral foreign policy could wash the world clean of prejudice and oppression!
PART 4 – HUMAN RIGHTS AND THE USE OF FORCE
Kosovo.
People went to war for protecting human rights. Not the historically normal nation, religion empire or class.
In Rawanda we were too worried about public opinion in a small forum to act.
In Serbia we really tried to eliminate any NATO casualty. Others died for human rights.
The serbs massacred in the name of a community. But violated universal human rights.
The counter intuitive nature of universalism can lead to a moral agent who is extrememly individual. It can also turn into imperialism. There is one truth and many wrongs.
The Quebecans will get sovereignty from their English rulers.
The difference between a universalism premised on the essense of man and a relativism premised on the essence of community is small.
These are different aspect categories of the human experience. TO compare the abstract is futile. But everyone has a community that can resist. Rights carry the seed of the disollution of commuity. The only possible defense is to ditch rights.
Refugees have replaced foreigners as the main category of otherness in our postmodern and globalized world. When the roving foreigner gets to the border of the state. The assumptions of national and personal integrity come under extreme pressure. He threatens national jurisdiction. He also threatens national identity.
The refugee represents the state of nature in all its stark nakedness and the world finds notheing sacred in the abstract nakedness of being human.
Human rights have become the cry of the oppressed, an imaginary or exceptional law for those with nothing else to fall back on. They are, in this sense, not the product of legislators, but the exact opposite.
PART TWO OF THE WHOLE BOOK
THE PHILOSOPHY OF HUMAN RIGHTS
Chapter 7 – The Classical Critiques of Rights: Burke and Marx
PART ONE. BURK AND THE HISTORICISM OF RIGHTS
People believe that rights are as natural as light refracting in water. Reason can dictate without reference to tradition or history.
But mystique is also necessary to give a constitution legitimacy. Burke developed an aesthetic of politics which associates the sublime with language and verbal expression and the beautiful with vision and imagery.
In Burke’s hierarchy of the sublime, language comes before imagery and , unwritten law convention and custom before written positive law. Saxon customs “operate better than laws”.
A visible , written constitution is “criminal”. The real constitution is an “organism, something like a human body, constituted as a community of senses with distinct powers and privileges, a mixed being of natural and conventional behavior, a creature of biology and habit, pleasure and pain.”
The conscious planning of the rationalist consitution makers eliminates the sacred part of the constitution and leaves only force to underpin the power of the state.
“On the schme of this barbarous philosophy…laws are to be supported only by their own terrors, and by the concern, which each individual may find in them, from his own private speculations, or can spare to them from his own private interests.” BURKE
What is the use of proclaimed right to health care to a Haitian in an overcrowded hospital. The only effective rights are created by a particular history, tradition and culture. Real humanity consist of “as it were, so many species of animals.”
Against this fact, abstractions are useless. Burke advertised the rights of freeborn Englishmen.
Mostly you need to be protect local traditions from custodians of legality. Though rights people believe rights are needed to protect you from local tradition.
In France, rights led to the murder of judges and aristocrats. The end of tradition.
The Aristotilian themes of virtue, the middle or the organic community are remnants of antiquity, fighting a rear guard against individualism.
Burke’s jurisprudence is only the local and accidental. History is like a local secularized providence. How can English culture find it’s superiority. Butke almost invokes universal human rights on this account.
PART TWO – MARX ON THE RIGHTS OF MAN
Marx said the French Rev released the individual from the ancien regime. But the difference between man and citizen was still blurry.
The universal and particular were still opposed to each other. The state needed to get the universal good. But it promoted narrow class interests.
Rights can idealize and support an inhuman social order, underpinned by abstract rights.
Human rights loses her concrete identity with class, gender and ethnic characteristics. The rights of man as distinct from the rights of the citizen or of the bourgeois society, or other men separated from “the community”.
Formal equality can promote inequality and undermines the relations amongst people.
Freedom should not be negative and defensive. The right to property.
PART THREE- WESTERN MARXISM AND THE POLITICS OF HUMAN RIGHTS
In the West unemployment is okay, but violating free press isn’t. What does that say to a starving African? 1989, the end of history, what does an African do?
With Serbia the end of history was continued with the local, universal debate superseding the economics rights debate. Modern isn’t always better. What ever reproduces, says Darwin.
Human rights in the west has become an identity protest against the political hegemony of community.
Jesus is now evoked as the protector of freedom, not a king.
The king issued the will of the people and was limited by community. The law has no such limits.
The corporeal metaphor, which symbolized united law and justice, sovereignty and nation, secular concerns and spiritual forces, now represents declarations of soviereignty of myriads of groups.
In such democratic places the place of power becomes empty. All fight for power and recognition in the law.
The psychoanalyst says that this represents the desire of people for unity and security and the principle of the one.
Rights claims on gender and sexuality prioritize different identity, rather than equality.
PART FOUR – HUMAN RIGHTS AND UTOPIA
Marx’s grand utopians were steeped in central European Jewish culture and German romantic values.
Freedom cannot be defined in advance, it happens in the face of objective real possibilities. The limitations are always there. The openness of the concept of freedom has allowed its cooptation by ideologies hostile to its essence.
There can be no freedom without economic equality! (for example)
Loyalty to economic equality replaced state and god.
Owen, Bacon and Fourier had utopias that cast an eye towards natural law ideas. Modern utopian imagination used narratives and allegories of future society grounded in equality day dreams.
Chapter eight Subjectum and Subjectus: The Free and Subjected Subject
The modern subject started his journey in the operation of law as the legal subject of rights.
Both Athens and Rome had citizens, but not men (in the sense of members of the human species). Free men were Athenians or Spartans or 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 the Greek paideia, the Greek word for education and cultivation.
A different concept of humanitas emerged in Christian theology from Paul’s assertion that there is no Christian or Jew. Man is just a vessel of the soul. Is your soul Mexican?
Humanity was transferred from God to human nature and equality was re-defined as political recently.
By the end of the eighteenth century “man” had become an inalienable value.
It was a peculiar combination of classical and Christian metaphysics.
Humanism believes that there is a universal essence of man. And that this attribute belongs to each subject. Man enters the historical scene by philosophically severing his ties with family, community, kinship and nature.
By mid 19th century we had gotten the modern definition of man as opposed to animals and objects. As metaphysical.
B> KANT AND THE AUTONOMOUS MODERN SUBJECT
We will follow the birth of the subject starting with Kant’s assertian of the faculty of theoretical reason. In the premodern world, truth was given in divine revelation or the equivalence of a thing and its man-made image.
Descartes was the first to argue that the phenomenological world was not an analogy.
Thinking was your ground and the world, its object. In Heiddeger’s phrase, a “world picture”.
The thinking I organizes the otherwise chaotic perceptions. The subject has language and conscience.
Post-Kant, the real follows the laws of rationality. Truth has certainty by examining the contents of human minds and knowledge.
Hegel used to should excitedly at his students that modern philosophy arrived only when man was conceived as subject.
Classical thought made nature a critical principle independent of , and superior to man’s will and customs. Now nature was inert and chaotic.
Man can now treat nature, including social and human nature, as mere artifacts and impose order and change on them.
But the subject also has will. Modern will is always directed towards an outside; action projects the sovereign self on nature. The power of will is unique; it is no longer slotted in the natural world, it springs neither from emotions nor from pure intelligence but follows the subject’s desires and interests. Descartes described it as the same in us as it is in God.
Without free will there can be no self or subject.
In the Classical period, the good and justice coincided as did moral judgment and political action. The modern subject becomes free to decide what is good for himself and norms and rules cannot restrict him. Modern conscience and will become legislative: subjects can now examine the rules themselves and can reject and replace them.
Kant found a free will that had limits. His “Critique of Practical Reason” is the foundation of modern jurisprudence.
The a priori moral law unites the subject and the world.
This pure reason was unconcerned with the people it was about to guide. A strong sense of duty and respect for the law were inherent in it.
The categorical imperative assumes desires are compatible.
Before modernity, will was subordinated to the ends it was supposed to pursue within the teleological scheme of the world. In Kant, practical reason wills itself as freedom.
C THE NOTHINGNESS OF HUMAN NATURE
The philosophical invention of nature in Greece was an act of rebellion against religion , customs and the tradition of ancestors.
Human nature was teleological too. Each human had his place and job defined by thtat place.
Early modern, influenced by Christian and stoic spiritual universalism developed the idea of a common human nature that unites all.
Rousseau thought that after the withdrawal of classical teleology our desire to learn and become perfected and freedom from nature. Freedom was then enthroned as our master and tormentor. Moral anti-naturalism was there and is strong in Kant. The moral is disinterested.
Good is a struggle against natural inclinations and sexual desires and sensual interests. Freud too said civilization is based on repressing these things. Lacan found the denial of the flesh to be sadistic.
From a different perspective, Nietzsche declared the superior man is his own creator, he finds in himself the source of all meaning , truth and responsibility. Authentic creativity is achieved by leaving the conventional.
Sartre said the main characteristic of human nature is not its historical, cultural or social determinations. Man is condemned to be free. No moral rule can guide our choice.
When being racist you are prioritizing a false idol over existence and natural freedom.
Existentialism seems to capture an aspect of the human rights declaration forgotten by liberal philosophy. It retains the critical uses of human nature against authority, but totally empties it of any essence of determination.
PART TWO THE HOMELESS SUBJECT: HEIDEGGER”S ONTOLOGICAL CRITIQUE
Heid accepted the accuracy of the Kantian description. Ours is the epoch of the autonomous subject. Modernity is marked by ceaseless and even aimless self-assertion, its project is to increase infinitely the power of the subject.
But do not celebrate. Because the will to will of modern man is not authentic. It conceals a deep existential insecurity, a desire to master Beign as a whole and make it permanently and definitely present.
Behind metaphysics is the desire to make order out of chaos.
Kant abandoned the idea of getting right from some datum, like the need for security (Hobbes), the urge to sociability (Grotius) or individual freedom (Rousseau).
According to Heid, the main metaphysical urge is to ask “what” questions. What is an entity, what is its essence, what does it mean for it to be such and such. Truths are set up and falseness is measured by distance from it.
There is supposed to be something real behind the language. The unity is privileged over the plurality.
This final essence of Being has been given many names: essence, substance, the good, God, belatedly Man, reason , truth. Metaphysics has developed by inventing and systematizing these metaphors for presence and order.
From Cogito ergo sum to subject.
Nietzsche's “will to power” succeeded in revealing the self-seeking action of modern will, but Nietzsche’s will too is self-perpetuating. It is a will that aims at nothing beyond itself, a will to will which glorified will’s mastery. But we no longer have an unproblematic solid will. Nietzsche’s desire for his will to control his will .
For Heid, the determination of humanity as subject, cogito, spirit, transcendental ego or Man, is the culmination of the closure of metaphysics and its forgetfulness of Being.
Being is ecstatic: man is “thrown out of a past and “projects” himself towards a future by way of the present”. The being of humanity is therefore its historical existence or Dasein (being there). Metaphysical humanity, on the other hand, posits its essence as a perpetual presence.
Eksists, has ekstatic in existence.
Man is the Shepard of being.
Man’s forgetfulness, aggravated in modernity, makes him cling to things and think only of being and not of Being and leads humanity to objectification and homelessness.
The Greeks has physics, the medievals, creation the moderns have a picture. The withdrawal of the world is a precondition for it’s becoming a picture. The world is emptied of meaning. Subject takes over. Subjectivism is then a kind of forgetfulness. All is a representation for the subject.
This happens when you have a value system . This means that you subjectively override the world. IT is then your object.
Arguing against values shows that other things have values too. Culture , art, dignity or god. And they are not just valuable as object to you. Thinking in values is the greatest blasphemy against Being. By rejecting such thinking beings are not devalued , but see Being as before thinking.
Man is mistakenly put at a center in modernity. Technology is the culmination of the modern “will to power” which, once it turns upon itself becomes an aimless will to will.
Meanwhile man exults himself to lord of the earth.
Humanity and the world are now objects to be ordered. All of humanity is now “techno-nihilistic” Making man fit for technological treatment was an effect of the total “technological revolution”.
Metaphysical humanism has lead to colonization of nature. But shouldn’t human rights shield you against the horrors of metaphysical arrogance?
A NON-METAPHYSICAL HUMANISM?
The only values left are technology’s inexorable process and aggrandizement and man’s desires. Humanity’s highly disciplined an dordered desires become the latest transient defining characteristic of human nature and inescapably push to be recognized as legal rights.
The danger is that the “end of history” ends possibilities. Metaphysical humanism presumes that existence must be redeemed by essence; that the world has value only in relation to this essence;
Heid famously refused to develop an ethics from his ontology. Ethics has nothing todo with codes and commands. It should go back to the Greek meaning of ethos, “the abode of man”.
By dealing with “beings as a whole”, humanism forgets. For multi culturists and freedom rights lovers, man’s determination of what it means to be human is defined in advance. He hates this.
Universalism v. localism both claim to have the “answer to what it means to have human value. Both are extensions of the metaphysics of subjectivity.
We are in common with others, but not a common being.
The solid or unforgiving essence of nations, classes or communities turns the subjectification of man into totality. The I must go into the we. To the point of “absolute communion” with dead tradition. We need a community of non-metaphysical humanity.
In an over-legalized world, we do not thing independently and discover our own relation to ourselves, others, language and history.
Human rights treaties seek to relieve the burden of ethical life and anxiety or existential homelessness of postmoderness.
People think rights put people in high esteem. But it objectifies them. Satisfaction of endless proliferating desire is the only morality left in a disenchanted world, rights become the last value. The individual is an extremely vulnerable piece of vanity. We should replace human rights with the protection of becoming human with others.
PART THREE THE SUBJECTED SUBJECT: POWER, LAW AND THE SUBJECT
Subject as not an object and subject as not subjected to.
The subject of law or subjectum is the holder of rights and the bearer of duties and responsibilities. But at the same time, the subject as subjectus is subjected to law. The paradoxical double determination of creator and created, free and compelled, active and passive, animates and permeates the life of the legal subject.
Kant and Descartes’ subject is by definition autonomous. By following the moral law. The non-moral person, on the other hand, is heteronomous, not fully a subject: he submits to instincts, passions and inclinations, to the brute facts of nature and of state law rather than to freely legislated morality.
Subjectus is a political and legal term signifying that someone is subjected to the power or command of a superior, ruler or sovereign. It implies hierarchy and domination.
Balibar says from a political perspective the question of the subject was always involved with the conditions of subjection . Greeks had no concept or word for the subject or for rights. The term subjectus appeared first in Rome. It was Christianity that redefined the subject and gave it substance.
The subjectus willed his obedience, partly as a secular loyalty to the ind and partly as a religious faith to god.
This willed subjection was a new Christian category. Body subjected to soul.
There was that inner voice to whom you were subjected.
There were advantages. The subject who obeys cannot become a slave or an object of the king’s whims. The obedient soul was in the divine order that created responsibilities for the king. But the rights and liberties of the subject did not precede or override the power of the sovereign.
You were a part of the king and he of you. The unity of the divinity, god and the sovereign was mirrored in the unitary identity of the subject and law. In this sense the original concept of the subject was as much theological s political and legal.
After the revolution the concept of right was deprived of its fixed oint of reference in God or king. Power was separated from right. Indeed power became the object of a juridical discourse.
Psychoanalysis is obsessed with the subject, and sees it in the infant’s creating a symbolic order. In other words sees its genesis in its subjection to language and law.
Kant, Kafka and Lacan saw the subject is born to the law and belongs to law.
The subject may have come into such prominence because of the metaphysical significance of legality.
Chapter 9 – Law’s Subjects: Rights and Legal
Humanism
The claim that the common law is radically different from civil law is an old rhetorical trope. One of the common explanations is that English judges did not adopt the conceptual logic of rights of Roman law and the Code Napoleon They concentrated on solid remedies.
All that changed with the EEU’s adoption of the 1998 European Convention of Human Rights. Once particular glaring omission in the document is the absence of the role of the subject. The legal subject, associated with French metaphysics , has not entered legal scholarship.
PART ONE _ RULES, RIGHTS AND SUBJECTS
For positivist jurisprudence, in its various guises, the law presupposes and promotes individual rights; conversely , legal rights presuppose and depend on an objective system of rules.
Within this framework rights have been attributed to a number of theories. Under the contract theory; a right exists when a duty-bearer owes an obligation to the right holder due to a promise. Under power theories, the right holder has a right if the rules make his rule dominant over others. If the law says do it. In interest theory a right is an interest protected by a rule of law. All of these serve policy objectives. Rights are a way of pursuing social choices by recognizing individual wants and assigning them to people.
Rights are analytically tied to rule-governed behavior; rules create rights and rights belong to people; they exist only with support of a subject.
This internal link has a number of implications. First the relationship between law and the subject is circular. Rights and subject come into being together. More precisely it is triangular. Rule, subject and rights come together.
The legal person is not a natural entity buy a legal construct created by the science of law.
The subjects first substrate was a body of religious and legal texts. Within the text the legal fiction of the person had its being. Early on this assumed duties and obedience. Modern law makes rights its building block. Human desire and will rule.
A 1999 law sought to make the fetus legally separate from its mother. This shows the main argument of this book: that the legal subject is an elastic category.
PART TWO – THE SUBJECT OF HUMAN RIGHTS
In legal subjectivity the legal subject is the product of the destruction of the teleological view of the world. Pre-modern virtue and the duties accompanying it have been replaced by unencumbered people and free choices. The idea of the naturally right is replaced by many rights.
Freedom as a right to choose ends is the ultimate value in an valueless world. Values and laws not freely adopted by the subject have no validity. This separates people into isolated monads.
As Vinning argues, legal individualism “has nothing to do with the concern for the dignity, happiness or importance of the individual”. We are individual units of reference, no more universal or basic than the various personifications of wind or water.
The law ascribes to the subject a surplus of reason. The legal subject man of neo-liberalism is the ability to reason and calculate.
Indeed the relationship between subject and person is mainly defined by what the former lacks, the absence of those characteristics that create human identity. In existential terms the subject of legal and contractual rights stands at the center of the universe and asks the law to enforce entitlements without great concern for ethical considerations or empathy for others. Isolated and narcissistic. The world is seen as hostile and to be protected against via rights and contracts. She is also disembodied , genderless and a strangely mutilated person.
The law knows no real individuals, only their mystical abstractions.
One instructive instance is the division between intention and motive in criminal law. Motive refers to need, desire, purpose. Our moral universe has been built upon the subject’s being morally responsible for his freedom and legally liable for his actions. The law must disregard motives and circumstances.
PART THREE – LEGAL HUMANISM AND HUMAN RIGHTS
Man has been expelled from nature which becomes estranged and alien, and the subject as an isolated monad turns on himself to create programs of legislation and life-plans.
Its moral and social principles are the outcome of acts of will, its judgments of calculations aided by legal reason. Legal rights are his legal validation of whatever choices he makes.
Classical right or jus was a limitation on individual excess. Now excess is protected. At the limit, all desires will be legalized. This will dissolve the social bond.
Every minority and tribe will demand its own state. But this defiance of history by desire has inevitably led to greater conflict and misery. A world map in the form of a mosaic of statelets will be a natural extension of the aggressive logic of rights.
Every institution hallowed by a folk-mind has to be regarded as sacred.