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The Radical Philosophy of Rights

After 1989 human rights have expanded into a vernacular touching every aspect of social life. They are seen as the key concept in morals and politics and a main tool for forging individual and collective identities. They are the ideology after ‘the end of ideologies’ – the only values left after ‘the end of history’. The response of the left to the rights revolution has been muted and unsure. Classical Marxist critiques of (natural) rights have made the left justly suspicious, and this is still the case today. Elaborating and addressing a series of foundational paradoxes of rights, this book – the third in Costas Douzinas’s human rights trilogy, following The End of Human Rights and Human Rights and Empire – provides a longoverdue re-evaluation of the history and political uses of rights for the left. The book examines the history and philosophy of the (legal) person, the subject, the human and dignity from classical Rome to postmodern Brussels. It traces the gradual abandonment of right, virtue and the common good for individual rights and self-interest. The limited and distorted conception of rights of liberal jurisprudence is contrasted with an alternative that sees rights as a relation involved in the struggle for recognition and an everyday utopia. The right to resistance and revolution, prohibited but regularly returning like the repressed, rescues law from sclerosis and presents a case study of the paradoxical nature of rights. Finally, the book offers a brief examination of law’s encounter with radical politics informed by the author’s strange experience as an ‘accidental’ politician in the first radical left government in Europe. The book’s radical concept of legal philosophy and public law will be of considerable value to legal theorists, political philosophers and anyone with an interest in thinking and acting in ways that go beyond the limits of liberal, and neoliberal, ideology. Costas Douzinas is Professor of Law and Founder of the Birkbeck Institute for the Humanities, Birkbeck University of London. Costas was elected a Member of ­Parliament for Syriza, the radical left Greek party in 2015. His many previous books include Justice Miscarried, Critical Jurisprudence and Philosophy and Resistance in the Crisis.

The Radical Philosophy of Rights Costas Douzinas

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 a GlassHouse book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 Costas Douzinas The right of Costas Douzinas to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Douzinas, Costas, 1951– author. Title: The radical philosophy of rights / Costas Douzinas. Description: Abingdon, Oxon ; New York, NY : Routledge, 2019. | Includes bibliographical references. Identifiers: LCCN 2018057075 (print) | LCCN 2018057791 (ebook) | ISBN 9781315775388 (ebk) | ISBN 9781138025097 (hbk) | ISBN 9781138025103 (pbk) Subjects: LCSH: Human rights—Philosophy. Classification: LCC K3240 (ebook) | LCC K3240 .D68 2019 (print) | DDC 323.01—dc23 LC record available at https://lccn.loc.gov/2018057075 ISBN: 978–1–138–02509–7 (hbk) ISBN: 978–1–138–02510–3 (pbk) ISBN: 978–1–315–77538–8 (ebk) Typeset in Galliard by Apex CoVantage, LLC

Contents

Introduction: life between university and parliamentvii PART I

Law, persons, rights1

Prologue: are women and animals persons?

  1 A brief history of the person

3 11

  2 The story of dignitas22   3 What is the legal person?

32

  4 Subject, individual, human

50

  5 Legality after virtue: from (objective) right to (subjective) rights

68

PART II

The paradoxes of rights87   6 The paradoxes of human rights

89

  7 Rights, identity, desire

106

  8 Marx, the radical left and rights

116

  9 The poverty of (rights) jurisprudence

132

PART III

The right to resistance151 10 Philosophy and resistance

153

vi  Contents

11 The ‘right to the event’: the legality and morality of revolution and resistance

168

12 Prolegomena towards a theory of righting

186



195

Epilogue: critical legal studies goes Greek

Bibliography218 Index228

Introduction Life between university and parliament

I started writing this book in 2014 and finished it in 2018. It was a long time coming, much longer by my previous book writing periods. The reason was not one of the usual rationalizations authors offer to publishers: illness, writer’s block, deeply felt boredom with the subject. Perhaps these were also present. But the main reason was that in September 2015 my life changed radically. I was elected Member of Parliament for my home city of Pireas for the radical left party, Syriza. I had not planned a transfer from the tranquil (until recently) academic world to politics. I had not considered moving from London to Athens after forty years of continuous living in and loving London. The idea had not even crossed my mind as I was putting together the plan for this book. My life until 2015 explains why. I came to London in 1974 for graduate studies soon after the end of the Colonel’s dictatorship, 1967–74. By the time I was appointed to my first lectureship in 1982, I had stopped participating in Greek politics and concentrated on my scholarship and building the Critical Legal Studies movement. In 1992, I was appointed with Peter Goodrich to set up the Birkbeck Law School. The joys and pressures of establishing a Law School in London further distanced me from Greece. I used to visit in the summer and spend three weeks in the village of Dryos on the island of Paros. I signed off a few books in Dryos, as my summer holiday was always of the working variety. With my partner Joanna and daughter Phaedra, I swam and read, swam and wrote. The life of body and mind blended harmoniously. And then came the Greek crisis. I have discussed in Syriza in Power: Reflections of an Accidental Politician1 the road to the abyss, the resistance of the Greek people and the rise of Syriza. I started writing in the Guardian, opendemocracy and other newspapers and websites supporting the Greek resistance, which was growing by the day. Eventually old comrades and friends I had not heard from in thirty years contacted me and I connected with political Greece again. I was one of the few academics based overseas who was describing Greece from the left. And this is how eventually, at the Critical Legal Conference (CLC) in Cracow, Poland in early September 2015, I was asked to stand in the elections, only three

1  Polity, 2017.

viii  Life between university and parliament weeks away. I wanted to help the party but was unsure about the idea. Syriza was the first left party to gain power in Western Europe in January 2015. It hails from the Eurocommunist tradition of the democratic road to socialism and the student resistance against the Greek dictatorship during which I had been radicalized. I asked friends at the conference for advice, spoke to family and friends in Athens. It was the first time at a CLC that an organic member of the conference and the holder of its bank account and cheque-book was thinking about moving to the other side of critique, the power side. Finally, I reluctantly accepted the invitation after I was informed that the chances of getting elected were 20%. The experience of politics proved more and less interesting than I expected. Being under constant attack by the right-wing media – pretty much all the media with a few exceptions – I remembered how in the early days of the Critical Legal Studies movement we were treated as something between radical evil and irrelevance. The head of department in my first job had warned that with my interest in theory and left politics I should not expect to get on in the legal academy. I had accepted and internalized the advice. As a result, when I was promoted to a full professorship in the late 1990s I went into a depression. What was wrong with me – had I betrayed my two loves to be considered worthy of the ultimate prize? Perhaps. In Athens and Parliament, I had a honeymoon period at the beginning. I was elected President of the prestigious Standing Committee on Defense and Foreign Affairs. I was asked to draft the House resolution demanding the recognition of the State of Palestine and was involved in other important tasks, such as the wholesale amendment of the Constitution and the agreement with North Macedonia. Soon, however, things changed. Influential colleagues considered my regular newspaper columns, media interviews and the respect I was receiving from people in the street somewhat problematic. The urge to continue my academic career, to write academic books and to give a theoretical spin to media interventions and politics was unusual, perhaps inappropriate. I was called ‘the Professor’ and ‘the Philosopher’, not suitable monikers for a front-line politician. I accepted the criticism and internalized it again. I concentrated on the international side of the work, which included incessant traveling to various capitals to represent Greece and promote the left agenda. And I concentrated on writing this book and another one in Greek – Syriza in Power was also written and published in 2017 – about the experience of an accidental life in politics. In the chamber, in committee rooms, on trains and planes, I kept writing away. It was a consolation, the work of an obsessive academic and reluctant politician. I am writing this introduction to the book in the chamber during a debate about amendments to the constitution. This perhaps explains some repetitions in the book. But the only reference to Greece in this book is found in the last chapter, an afterthought on how a critical legal scholar views the law of the crisis years and how the Greek experience enlightens the relationship between law and politics. This book concludes my trilogy on human rights: The End of Human Rights, Human Rights and Empire and The Radical Philosophy of Rights. It revisits and takes forward past arguments and theses and the long, intense and creative

Life between university and parliament ix debates they have given rise to. Books on human rights have paid little attention to the subject of rights and the relationship between right, legal and human rights. Redressing this omission, the Radical Philosophy examines the history and practice of the legal person linking it with associated concepts and practices: the subject in philosophy, the individual in sociology and economics, the human and her dignity in theology and morality. The law and its various masks – personas or prosopeia – have conditioned the story of humanity. Turning to the practice of rights, the book examines the steps through which the classical search for what is right according to ratio, God or natural law mutated into a bunch of natural, legal and human rights for individuals. Liberal jurisprudence and moral philosophy justify and supplement the work of law. They have turned rights into the site and stake of politics and into the main resource of ethics. Individualist legal theory is descriptively inaccurate however because the practice of law cannot exclude the inter-subjective, progressive and collective dimensions of rights, which give them their paradoxical nature. By neglecting this aspect of rights and missing or deleting their radical potential, liberal jurisprudence suffers from a certain moral and epistemic poverty. The second part of the book presents the paradoxes of rights theory and practice. Rights have been used both to promote the interests of corporations and neoliberal policies and the struggle for liberation of the excluded, the exploited and the oppressed. The reference to ‘humanity’ in human rights introduces an element of normative universality into the law. But the history of humanity since the adoption of the Universal Declaration indicates that there is no common or accepted conception of what it means to be human. Some people are fully human, others less so, and a large part of humanity has been excluded from the protections of law. The fate of refugees and migrants trying to enter Europe or North America shows this gradation of humanity. The third part of the book examines the right to resistance and revolution. Philosophy and law ban the right to revolution and try to prevent its occurrence. But resistance always returns, like the repressed, and protects the law from sclerosis. The Radical Philosophy presents the philosophical, moral and legal evidence supporting the argument that resistance and revolution have a normative foundation. The right to disobedience, resistance and even revolution recognizes their contribution to the integrity of law. Joanna Bourke has been a companion, inspiration and judge. She followed recent peregrinations and has supported me fully in the difficult transition from London to Athens and from the lecture hall to the Parliamentary chamber. She has continued her world-class research and scholarship while commuting between our two homes. I owe her my successes and I am responsible for any failures. Phaedra Douzina-Bakalaki has developed in the period of writing this book into a mature scholar and academic and the most sharp and incisive critic of my theoretical and political moves. In Athens, Alexandra Bakalaki, Athena Athanassiou, Elena Tzelepi, Christos Lyrintzis, Akis Papataxiarchis, Efi Avdela, Gianna Kandilorou, Nikos Douzinas and Annick Paterneau have been intimate friends and friendly critics. This book would not have happened without their intellectual input and moral solidarity. My close friends in Parliament have felt bemused by my

x  Life between university and parliament obsessive writing but have fully supported me. In London, Conor Gearty, Emilios Christodoulidis, Adam Gearey, Illan Wall, Oscar Guardiola, Michelle Everson and Stewart Motha have provided wisdom, ideas and encouragement. I owe them a lot although their influence is not always mentioned. Paddy McDaid, Dimitris Kivotidis, Julia Chryssostali, Patrick Hanafin, Mat Stone, Moniza Anrisi, Alexis Alvarez, Leticia Paes, Elena Leontidou and Basak Ertur have contributed knowingly or unknowingly to the ideas of this book. My only unmitigated regret about entering politics is that I have not seen many of my London friends for some time. I miss them all and I hope that soon I will be in a position to meet them more often. The ideas of these friends and comrades are disseminated throughout this book. Parts of chapters appeared first in different form in books and journals. Chapter 6 appeared in Constellations, 20/1 (2013); Chapter 8 in Costas Douzinas and Slavoj Zizek (eds), The Idea of Communism (Verso, 2010); Chapter 9 in Costas Douzinas and Connor Gearty (eds), The Cambridge Companion of Human Rights Law eds (Cambridge University Press, 2011); Chapter 10, in Connor Gearty and Costas Douzinas (eds), The Meaning of Rights (Cambridge University Press, 2012) and Chapter 12 in Metodo: International Studies in Phenomenology and Philosophy, 2/1 (2014). The manuscript needed extra attention as it was written interstitially in the most unwelcoming locations. Paddy McDaid, a friend and great thinker did an excellent job in editing it. Elections are a few months away at the time of writing these lines. I don’t know what the unpredictable will of the people and the all too predictable fate have in store. But I have one great consolation. When I joined Parliament a prudent Member told me that I had to forget my University interests because they clash with politics, which is all demanding and devouring. In finishing this book I feel that I fulfilled in part the promise I gave to my intimates and myself: I would persist with my academic vocation, I would not become exclusively a professional politician.

Part I

Law, persons, rights

Prologue Are women and animals persons?

Are women persons? Are animals persons? Are women animals? Such questions have repeatedly occupied the law. Legal personality has not been exclusively bestowed on humans. As Yan Thomas has shown, the natural human being was given legal personality relatively late and only after the creation of corporate personality which acted as a model for the development.1 The discrepancy has survived.  Slaves have been excluded from humanity throughout history. Pigs, rats, leeches and insects were accused of crimes in the Middle Ages, formally summoned to courts of law, tried, convicted and punished.2 Animals arraigned before courts included ‘asses, beetles, bloodsuckers, bulls, caterpillars, chickens, cock chafers, cows, dogs, dolphins, eels, field mice, flies, goats, grasshoppers, horses, locusts, mice, moles, pigeons, pigs, rats, serpents, sheep, slugs, snails, termites, weevils, wolves, worms, and miscellaneous vermin’.3 The punishments varied from execution by burning at the stake, and alive, to strangling and imprisonment for lighter offences. In 1522, rats were acquitted in Autun of the felony of eating and wantonly destroying the barley crops. An idol and a God have been given rights and duties;4 Christopher Stone ignited a major debate arguing that trees, parks and other natural objects too should be given rights.5 Greenbelt zones, it is argued, should become legal subjects with the power to go to court, through representatives, to protect the ecosystem from intrusion.6 Recently a river, a waterfall and the environment have been recognized in some jurisdictions

  1 Yan Thomas, ‘Le sujet de droit, la personne et la nature. Sur la critique contemporaine du sujet de droit’ (1998) 100(3) Le Débat 85.   2 Jean Vartier, Les procès des animaux du Moyen Age à nos jours (Hachette 1970); Luc Ferry, The New Ecological Order (trans. Carol Volk, University of Chicago Press 1992) ix–xvi.   3 Gunther Teubner, ‘Rights of Non-humans? Electronic Agents and Animals as New Actors in Politics and Law’ (2006) 33(4) Journal of Law and Society 497, 498.   4 P.W. Duff, ‘The Personality of an Idol’ (1927) 3(1) Cambridge Law Journal 42.   5 Christopher Stone, ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 450.   6 Marie-Angèle Hermitte, ‘Le concept de diversité biologique et la création d’un status de la nature’ in L’homme, la nature, le droit (Bourgeois 1988).

4  Law, persons, rights as persons with limited rights. Artificial intelligence, automated electronic and vending machines have been given some legal rights.7 The common law discovered that persons have gender as late as 1929. Almost a hundred years later, in April 2015, the Manhattan Supreme Court granted a writ of habeas corpus to two chimpanzees being held at Stony Brook University for medical experimentation.8 Women were given personhood in the early twentieth century, apes are on the way in the early twenty-first. The artificial nature of legal personhood denied to some humans but given to many non-humans has been fully confirmed in the post-modern world. In April 1872, ‘An Earnest Englishwoman’ published a letter in The Times entitled ‘Are Women Animals?’ Addressing British Parliamentarians, it read: Whether women are the equals of men has been endlessly debated; whether they have souls has been a moot point; but can it be too much to ask for a definite acknowledgment that at least they are animals? ... Many hon. members may object to the proposed Bill enacting that, in statutes respecting the suffrage, ‘whenever words occur which import the masculine gender they shall be held to include women’; but could any object to the insertion of a clause in another Act that ‘whenever the word “animal’ occurs it shall be held to include women’?; Suffer me, through your columns, to appeal to our 650 representatives, and ask – IS not one among you then who will introduce such a motion? There could then be at least an equal interdict on wanton barbarity to cat, dog, or woman.9 The ‘Earnest Englishwoman’ was complaining about the status and treatment of women in the late nineteenth century. Women were treated in law as a ‘chattel’ by their fathers, husbands or guardians. Domestic rape and cruelty went unpunished, while the maltreatment of animals was commonly penalized. A similar treatment was meted out to women in the United States. Persons of colour were still slaves and could be treated as things to be bought and sold in many American jurisdictions. The infamous British Contagious Diseases Acts of the 1860s authorized the rounding-up of prostitutes and women judged to be promiscuous for mandatory venereal diseases testing and subsequent imprisonment. As Joanna Bourke drily comments, ‘the legislation treated women as a whole as nothing more than contagious animals, while at the same time they

 7 David J. Calverley, ‘Legal Rights for Machines Some Fundamental Concepts’ in Michael Anderson and Susan Leigh Anderson (eds), Machine Ethics (Cambridge University Press 2011).   8 Although within a day the judge struck the writ of habeas corpus from the order. See Alan Yuhas, ‘Chimpanzees granted petition to hear “legal persons’ status in court’ Guardian (London 22 April 2015) accessed 14 August 2018.   9 Joanna Bourke, What it Means to Be Human (Virago 2012) 1.

Are women and animals persons? 5 identified the real “mute creatures’ in class terms’.10 The legislation outraged women of all classes and led to the creation of a strong proto-feminist movement to which the Earnest Englishwoman probably belonged. In law, the late nineteenth and early twentieth centuries became known as the age of the ‘persons’ cases. Whenever the word ‘person’ appeared in a British statute it was taken to refer exclusively to men. The British Parliament repeatedly denied the franchise to women who could not be elected to public office. The suffrage movement had started but was not having much impact yet. The case of de Souza v. Cobden,11 is instructive. Jane Cobden was elected to the London County Council under a statute, which ruled that a candidate should be ‘a fit person of full age’. Electoral legislation allowed challenges to the result within a year, after which point it was deemed valid. Cobden did not take her seat for a year in order to have her election validated. But once she took it and voted on a resolution she was prosecuted and convicted under a statute that made it a crime for ‘any person’ to act in office without being qualified. The Court of Appeal compared the two statutes and concluded that Cobden was a ‘person’ on some occasions, not on others. She was not a ‘person’ for the purpose of being elected to the Council; but she was a ‘person’ for the purposes of criminal law. By taking her seat and voting illegally she had committed a crime and was convicted. To the contemporary reader this was a perverse decision, and so it was. To be sure, the law will never shirk from a contradiction if it can help to keep the social order. It was not, however, perverse in its approach to legal personality. As we will argue, personhood is a bundle of obligations and rights given by the law and differing substantially from human to human. Refusing women political rights is discriminatory and morally wrong. But a legal person is what the law says, and law’s business has always been to differentiate and discriminate. The legal person and the human being behind it are two separate and distinct entities. Since women could not be equated to men, the Earnest Englishwoman was asking to be treated as an animal. The Society for the Prevention of Cruelty to Animals was founded in 1824 at a point where women were still considered the chattel of their fathers or husbands who could brutally punish them with minimal retribution.12 Utilitarian principles of pleasure and suffering on the other hand had already created strong protections for animals, which should be ‘extended to all who need them in this country’. But does a person have sex and gender? The common law discovered sex in 1929 in the case of Edwards v Canada (AG).13  Before Edwards, the word ‘person’ referred, in all important instances, exclusively to men. The case started when Emily Murphy, a feminist, put her name forward to Robert Boden, the

10 Ibid., 98. 11 1 QB 687 (AC 1891). 12 Bourke, op.cit., Chapter 4. 13 Henrietta Muir Edwards and others v The Attorney General of Canada [1929] UKPC 86, [1930] AC 124 (18 October 1929), PC (on appeal from Canada).

6  Law, persons, rights Canadian Prime Minister, as a candidate for the Senate. Under the British North America Act 1867, s.24, the government could ‘summon qualified Persons to the Senate’. The PM refused to summon Ms Murphy because as a woman she was not a ‘person’. After a 500,000-strong petition backed Murphy, Boden stated that he could not appoint her because, according to a 1876 British common law ruling, ‘women are eligible for pains and penalties, but not rights and privileges’. At that point, the ‘Famous 5’ feminists – Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Emily Murphy and Irene Parlby, asked the Supreme Court of Canada to rule on the matter. The legal question was put succinctly: ‘Does the word “Persons” in section 24 of the British North America Act, 1867, include female persons?’14 The difference between the gendered human being and the abstract (legal) person could not be stated more strikingly. Before the mid-1800s, legal language distinguished between male and female persons and stated clearly the instances when the law applied to one sex only. However, at some point between 1822 and 1878, the law stopped referring to the two sexes expressly. The reference of the term ‘person’ exclusively to males was no longer spelt out. Under a general presumption in interpretation, the law applied to both sexes without the need for a specific mention. This was the reason that Canadian women formulated their question in gendered terms. The Canadian Supreme Court unanimously concluded that women were not persons. Women could not enter the British Parliament in 1876, the year the Constitution Act was passed in Westminster. Therefore, for the drafters of the 1867 Act, persons must have male sex for the purpose of holding political office. The ‘Famous 5’ persisted and appealed to the Privy Council in London. On 18 October 1929, the Council overturned the decision of the Supreme Court by deciding that the word ‘person’ did indeed include persons of the female gender. The term ‘qualified persons’ could be read broadly to include women. For the Council, the reversal was plain logic. To those who ask why the word [‘person’] should include females, the obvious answer is why should it not … [T]heir Lordships have come to the conclusion that the word ‘persons’ in sec. 24 includes members both of the male and female sex and that, therefore, ... women are eligible to be summoned to and become members of the Senate of Canada. In or about 1929, women were admitted to the status of personhood. What about animals? The great apes are biologically close to humans; chimpanzees share with us 98% of their DNA. The animal rights movement has had a number of successes recently. The Spanish Parliament gave limited rights to great apes in 2003. It is illegal to kill, torture, arbitrarily imprison or use apes for medical experimentation. Peter Singer and Paola Cavalieri, the directors of the Great Ape

14 Reference re meaning of the word ‘Persons’’ in s. 24 of British North America Act, [1928] SCR 276, 1928 CanLII 55 (SCC).

Are women and animals persons? 7 Project and main advocates of the law, have argued that apes are a ‘community of equals’ with humans.15 They feel fear and happiness, they use language and tools and remember the past. Spain’s Catholic bishops, on the other hand, attacked the law because it defies God, who placed humans above animals. One did not stop at the biblical story: equating animals with humans would lead to the legalization of ‘abortion, euthanasia and ethnic cleansing’.16 Singer’s utilitarian strategy aims to create sympathy and care by drawing on the similarities between humans and apes. A second legal strategy utilizes the difference between legal personhood and the entity behind it. Steven Wise, an animal rights campaigner and the Director of the Nonhuman Rights Project, has been trying to turn apes into ‘nonhuman persons’ and extend this way basic legal protections. They have been trying to get a court to issue a writ of habeas corpus and examine the lawfulness of an animal’s incarceration in a lab or zoo. Their strategy is not to seek to equate apes with humans, but to obtain direct albeit partial legal personhood. Their hope is that if they succeed, apes will be entitled to legal protection and possible release from captivity. In 2014, Wise applied for habeas corpus  in New York on behalf of Tommy, a privately owned chimpanzee.17 As ‘autonomous and self-determining’ beings, Wise argued, chimpanzees possess legal rights, which preclude Tommy’s captivity. Tommy should be compared to a human child who ‘can understand that he does not want to be imprisoned for his life in a cage’, but, unlike a human adult, cannot be held legally responsible for his actions.18 The judge noted that legal personhood comes with ‘responsibilities’ and it would be unwise ‘to foist any responsibilities on this chimpanzee’. The appeal failed when the New York Court of Appeals ruled unanimously that the owner of Tommy is not obliged to release him. Apes are intelligent but unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions … In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights – such as the fundamental right to liberty protected by the writ of habeas corpus – that have been afforded to human beings.19

15 Paola Cavalieri and Peter Singer, The Great Ape Project: Equality Beyond Humanity (St Martin’s Griffin 1994). 16 Donald G. McNeil Jr, ‘When Human Rights Extend to Nonhumans’ New York Times (New York 13 July 2008) accessed 14 August 2018. 17 Elizabeth Barber, ‘Chimpanzees Are Not Entitled to Human Rights, New York Court Says’ Time (5 December 2014) accessed 14 August 2018. 18 ‘Tommy – Appellate Court Hearing’ (The Nonhuman Rights Project, 8 October 2014) accessed 14 August 2018. 19 People ex rel. Nonhuman Rights Project, Inc. v Lavery, 124 AD3d 148 [3d Dept 2014] accessed on 14 August 2018.

8  Law, persons, rights The courts opted for a definition of moral personality rather than legal personhood. The references to rights, responsibilities and accountability build a Kantian conception inappropriate for non-humans. This will be explored in more depth in Chapters 2 and 5. However legal personhood, a constructed and artificial status, does not need to pass such stringent moral tests. It is not exclusively a question of rights but of provision of protections and security. Legal personhood without the ascription of specific rights can protect an entity from activities or practices that negate or belittle its nature. The first victory for animal personhood came in a Buenos Aires in late 2014. The court accepted that Sandra, an orangutan, should be released from the zoo. She deserved the basic rights of a ‘nonhuman person’ and she had been unlawfully deprived of her freedom.20 At first glance, recognizing Sandra not as an object but a ‘nonhuman person’ with basic rights such as life, liberty and freedom from torture, looks like a striking development. But the legal technique is common and well-understood. The law regulates social relations by endowing entities with a bundle of obligations and rights. The court’s argument in the Tommy case ‘that human beings possess the unique ability to bear legal responsibility’ was wrong.21 Legal responsibility can be borne by companies, gods, churches or nature reserves and apes as much as by humans. The law constructs the bearer of rights; the dividing line has been consistently elastic, sometimes extending at others contracting the status of legal personhood. The American law finally started extending the line in 2015. A Manhattan Supreme Court Justice granted two chimpanzees, Hercules and Leo, the right to seek a writ of habeas against unlawful imprisonment.22 The apes were used for medical experiments at Stony Brook University. Stony Brook was asked to explain why the chimpanzees should continue to be ‘unlawfully detained’ instead of being transferred to a primate sanctuary in Florida. The Nonhuman Rights Project (NhRP) welcomed the decision, arguing that it moves a long way towards recognizing apes as legal persons. ‘Only a “legal person” may have an order to show cause and have a writ of habeas corpus issued in his or her behalf. The court has therefore implicitly determined that Hercules and Leo are “persons” ’. In July 2015, New York County Supreme Court Justice Barbara Jaffe, refused the relief ‘for now’, citing the Tommy precedent. However she added: ‘Legal personhood’ is not necessarily synonymous with being human … Rather, the parameters of legal personhood have been and will continue to

20 Richard Lough, ‘Captive orangutan has human right to freedom, argentine court rules’ Reuters (21 December 2014) accessed 14 August 2018. 21 Patrick Barkham, ‘Sandra the “Nonhuman Person” is Sadly Not the Face of a Welfare Revolution’ Guardian (London 22 December 2014) < https://www.theguardian.com/ commentisfree/2014/dec/22/sandra-nonhuman-orangutan-welfare-revolution-courtruling> accessed 14 August 2018. 22 Yuhas, op.cit.

Are women and animals persons? 9 be discussed and debated by legal theorists, commentators, and courts and will not be focused on semantics or biology, even philosophy, but on the proper allocation of rights under the law, asking, in effect, who counts under our law.23 Steven Wise of the NhRP commented: This is one step in a long, long struggle … The judge does not say explicitly that our non-human plaintiffs were persons but by issuing the order … she’s either saying implicitly that they are or that they certainly can be. So that’s the first time that has happened. Wise argues that chimpanzees are intelligent, emotionally complex and selfaware enough to merit some basic human rights, such as the rights against illegal detainment and cruel treatment. They are ‘autonomous and self-determining’, comparing intelligent mammals to similarly intelligent young children who possess basic rights but are not able to fully exercise them. In the meantime, the chimpanzees were transferred from Stony Brook to the University of Louisiana, which owned them, in an attempt to discontinue the jurisdiction of New York courts. Eventually the University announced, in May 2016, that it would transfer Hercules, Leo and 218 other chimpanzees that remain in captivity at its research centre to a chimpanzee sanctuary. In a similar case taken by Steve Wise on behalf of Tommy and Kiko, two chimpanzees held in captivity, the New York appeals court rejected the application for habeas corpus in September 2017. In a circuitous argument, the court said that the apes are not humans and therefore cannot be granted legal personhood. ‘The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions’, wrote Justice Troy Webber in his summary of the case. He continued: Petitioner argues that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since, for example, infants cannot comprehend that they owe duties or responsibilities and a comatose person lacks sentience, yet both have legal rights.24

23 Michael Mountain ‘New York Justice Denies Habeas Corpus Relief for Hercules and Leo Given Precedent Set in Previous Case, “For Now” ’ (Nonhuman Rights Blog, 30 July 2015) accessed 14 August 2018. 24 George Drovsky, ‘Appeals Court Says Chimps Are Not Legal Persons – Here’s Why They’re Wrong’ (Gizmodo 6 September 2017) accessed 14 August 2018.

10  Law, persons, rights The discussion of the legal personality of women and animals shows two different strategies at work. The extension of legal recognition to great apes is a defensive mechanism. Whether the reasoning for such extension is utilitarian or rights-based, it aims at protecting animals from maltreatment and suffering. By including animals into a social institution it protects them from the evils society and humans visit on them. The extension of personhood to women was different. It extended the definition of personhood to a group of humans excluded from it. In comparing the two cases we realize how political strategies assigning personhood operate. Personality is, first, a border practice, a mechanism of including/excluding entities from recognition, agency and protection. Second, within the recognized and included group, personhood differentiates between those who receive full protection and rights and those with limited and defective privileges. Similar arguments have been put forward for and against the attribution of personality to other non-human entities, such as Bruno Latour’s ‘actants’, that is non-humans to which science has given a voice. Computer programs or other electronic means that initiate or respond interactively without action by humans fall into that category; or ‘hybrids’, which create associations between humans and non-humans.25 It is interesting to note that in the ‘war on terror’, American law justified the use of torture and, in a similar vein, ruled that State authorities are not obliged to administer lethal injections in ways that avoid great pain for the convict. In this context, Adam Coher, repeating unwittingly the argument of the Earnest Englishwoman, argued that ‘if apes are given the right to humane treatment, it just might become harder to deny that same right to their human cousins’.26 The extension of legal personhood to animals could increase the protection for humans. The borderline that determines personhood may extend and expand but also shrink and withdraw. The legal person, this ancient legal technique, has retained its separating and dividing use throughout the ages. The first part of this book examines its historic vacillation and contemporary usage.

25 Bruno Latour, Politics of Nature: How to Bring the Sciences into Democracy (Harvard University Press 2004). 26 Adam Cohen, ‘What’s Next in the Law? The Unalienable Rights of Chimps’ New York Times (New York 14 July 2008) accessed on 14 August 2018.

1 A brief history of the person

The word Person has so many customary and more or less legitimate meanings, not to mention imposing verbal juggles, that it ought never to be used in controversy or exposition without some limiting prefix or affix.1

This is the story of a technical legal term, which emerged in Rome and has expanded, diversified and multiplied over a period of twenty-two centuries to become metaphysical value, ideological weapon and practical tool. The terms legal person, legal subject (sujet du droit) and the human are used today interchangeably. Yet, it is the claim of this chapter that the person, with its complex genealogy, its advances and retreats, turns and digressions, lies opposite the human; the person is the foundation of terms such as the individual or the citizen. The person is separate from the human, it is the human with social, cultural and political meaning. Persona is a chameleon term and practice. Its bizarre political and institutional history helped both individuate and homogenize people. Marcel Mauss has traced in a classical article the early history and anthropology of the category. For Mauss, the idea of the person has evolved from humble beginnings into the selfconscious and omnipotent self of modernity.2 The initial drive for the journey is found in a crucial distinction all civilizations draw: they separate ordinary humans from those who perform certain roles or functions in public or private life – priest, judge, reincarnation of spirits or pater familias, carer or master of slaves. Publicly performed and recognized offices are an anthropological constant. Mauss argues that all societies move from abstraction and selection to concreteness and individuality, from generic roles to persons and selves. Person and personage are key institutions and bridges in the passage from ancient to modern culture. In archaic societies, the persona, the face of the dead ancestor or the death mask of the Roman imago, was kept in the family home in order to preserve and honour the dead in his image.

  1 W.M. Thorburn, ‘What is a Person?’ (1917) 26(103) Mind 291, 307.   2 Marcel Mauss, ‘A Category of the Human Mind: The Notion of Person; The Notion of Self’ in Michael Carrithers, Steven Collins and Steven Lukes (eds) The Category of the Person: Anthropology, Philosophy, History (Cambridge University Press 1985) 1–25.

12  Law, persons, rights The fascinating story of the persona starts with the Greek prosopon or prosopeion, the theatrical mask used to disguise the face of an actor. Women did not appear on the classical Athenian stage. A male actor would wear a female mask and perform the roles of Antigone, Phaedra or Medea. The Greek prosopon was translated into Latin as persona. According to a fertile but contested etymology that works in both languages and was extensively exploited by Hannah Arendt and Simone Weil, persona comes from per-sonare: it is a device – the mask – through which the human voice sounds and is magnified.3 The mask identified the actor with the role and later with the character the actor performed. As Mauss put it, persona meant the mask worn by actors on stage and by extension an ‘artificial “character” (personage), the mask and role of comedy and tragedy, of trickery and hypocrisy – a stranger to the self (moi)’.4 Rome, unlike Greece, passed the function of the mask from ritual and stage to the law. The three legal institutions were personas, res (things) and actiones (legal actions or remedies). The law repeated the function of the theatrical mask. It constructed an artifice and assigned it to a human being. Persona and homo were separate entities, the legal person was the double of the human. The persona describes the subject of a legal relation as well as his abstract function or status. As the jurist Hermann Vultejus put it, persona is a homo habens caput civile, a man with civil status.5 Personhood is invested with functions and roles, privileges and duties such as citizen and senator, father and son, master and slave. A person is a set of social relations with people and things. This imaginative transfer from stage to law created one of the most enduring characteristics of Western culture. It formed law’s fundamental fact, the original legal fiction one could say, the ritual and metaphorical disguise a litigant puts over his natural face in order to be brought before the law. The legal person ‘literally derives from persona – which initially means an actor’s mask – and authorizes me to translate the formula de jure personarum by “of the law of masks”. In all institutional systems the political subject is reproduced through masks’.6 Roman law recognized persons and things not human beings. As the legal historian Yan Thomas has argued, the union of person and human is not physical, bodily or psychological. It is the unity of patrimony and heritage.7 A legal person is someone with a certain status; personality is a garment placed on the body in order to facilitate transactions with other persons and things. No human being,

  3 Hanna Arendt, On Revolution (Viking Press 1965) 106; Simone Weil, ‘On Human Personality’ in Simone Weil, The Simone Weil Reader (ed. George A. Panichas, Moyer Bell Ltd. 1977).   4 Mauss, op.cit.,17.  5 Quotes in Visa Kurki, ‘Animals, Slaves and Corporations: Analyzing Legal Thinghood’ (2017) 18(5) German Law Journal at 1073.   6 Pierre Legendre, Le Desir politique de Dieu: Etudes sure les montages de l’Etat et du Droit (Fayard 1988) 225–6.   7 Yan Thomas, ‘Le sujet de droit, la personne et la nature. Sur la critique contemporaine du sujet de droit’ (1998) 100(3) Le Débat 85–107.

A brief history of the person 13 not even the free citizen, is a legal person by nature. Only some humans have legal personality. Before achieving legal status, people have no public recognition. They live in a world of indistinction, mere homines, similar to that of slaves or things. ‘A human being or homo in the original meaning of the word’, writes Hannah Arendt, is ‘indicating someone outside the range of the law and the body politic of the citizens, as for instance a slave – but certainly a politically irrelevant being’.8 To become a person, the citizen must first acquire an estate or become a father to sons in the ritual of filius in potestate. Conversely, persons could revert to the ­earlier status of non-personality if they lost the persona defining ­relationship – estate or paternity. The degradation could also happen through the ritual of capitis diminutio, which had a number of versions. Its harshest maxima version deprived the person of all legal recognition and turned him into homo sacer. Legal personality was assigned therefore on a combination of family status and property. The persona was the master of an estate and its members – sons, workers and slaves. Not all humans were legal persons; conversely, a legal person could consist of more than one human or have no relation to a human being. Finally, the same human could actually have two or more personalities. A father and son, for example, are a single person when representing the estate. After marriage, a man may acquire two personalities and can be shared or represent both the estates of his father and his father-in-law. On the death of the master, an estate forms a single person for the purposes of succession, an early example of the metonymical extension of legal personification from humans to things. Roberto Esposito has argued compellingly that legal devices limit freedom in form, extent and duration creating a ‘residue [...] of the natural horizon of slavery’.9 Personality is a term of distinction and a strategy of exclusion that separates persons from things, first, and then differentiates the privileged few from the great plebeian mass creating the hierarchies of dignitates. A line divides the world of life, cutting it into two areas defined by their mutual opposition. You either stand of this side of the divide, with the persons, or on the other side with the thing: there is no segment in between to unite them.10 The person is ‘the category of those who enjoy a certain right defined by contrast with those who, not falling within it, are excluded from it’.11 For Esposito, the key juxtaposition is between person and thing, persona and res. The slave existed in a space between the two, as a living thing and an

  8 Arendt, op.cit., 107.   9 Robert Esposito, The Third Person: Politics of Life and Philosophy of the Impersonal (trans. Zakiya Hanafi, Polity 2012) 79. 10 Roberto Esposito, Persons and Things (Polity 2015) 2. 11 Roberto Esposito, ‘The Person and Human Life’ in Jane Elliott and Derek Attridge (eds), Theory after ‘Theory’ (Routledge 2011) 209.

14  Law, persons, rights objectified human. But that space was flexible and its borders porous. A slave, the human thing, could become a person through rituals of emancipation, while a person could fall into slavery. The law used the category of the person in order to separate between humans and others and develop abstract and general concepts and strategies of inclusion and exclusion. What was important was the drawing of lines and the separating action, not the entities separated which could move from one to the other side of the line. As image and simulacrum of the dead, as theatrical mask that plays perceptual tricks or as legally recognized representation, the persona is an element of artifice and masquerade. There was nothing ‘natural’ in the strategy of inclusion/exclusion. But there is more. The mask and the persona are political technologies, mechanisms for the organization and stratification of power and property. Personhood first excludes and then differentiates among the included, distributing roles, positions and privileges. It distributes power and property and allows those endowed with personality to enter into public and political life and to carry out specific economic transactions. The mask signifies that the wearer is invested with a particular sacred or secular status. Similarly, the legal person is a legal creation, an artificial character and abstract function; as a formal vessel, it can contain and give form to all sorts of contents. The persona is a technology of separation and division, the first and still most successful tool for the legal stratification and regulation of social relations. Stoic metaphysics infused the prosopon/persona with moral animus setting it on its journey to metaphysical sacralization. Cicero often used persona instead of homo in his philosophical works and helped displace the use of personality from the Jus Civile into the Jus Naturale. The persona was not just a legal technique; it started partaking the dignity of nature. As a good lawyer and politician, Cicero exploited the dramatic and forensic meanings of the term, indicating the multiple roles an artificial person could perform – what we would today call someone’s many ‘subject positions’: Sustineo unus tres personas, mei, adversarii, et judicis. Hobbes translates and comments: ‘I bear three persons: my own, my adversary’s, and the judge’s; and is called in diverse occasions, diversely: as a “representer” or “representative,” a “lieutenant,” a “vicar,” and “attorney,” a “deputy,” a “procurator,” an “ ‘actor,” and the like’.12 Cicero’s three persons in one – a clear anticipation of the divine trinity – operate in a legal setting. The other personas Hobbes mentions – vicar, lieutenant or deputy – indicate the multiple creative powers of the institutional mask. Without the persona’s public investment, no political recognition or status differentiation exists – no bios, only zoe. The Greek and Roman Stoics lived in a society of dignitates. These were the highly regimented and individualized powers and privileges a public office carried; they were different for magistrate, general or senator. The Stoics countered these plural dignitates, which hierarchized people, with attributes all humans share. Such was the syneidisis or the ‘common notions’ or the Greek orthos logos and

12 Cicero, De Oratore (Loeb 1989) 118b and Thomas Hobbes, Leviathan (ed. J.C.A. Gaskin, Oxford University Press 1998) 107.

A brief history of the person 15 the Roman recta ratio. The Greek syneidisis (joint or shared knowledge) was translated into Latin as conscientia. The conscius, literally someone who knows with others or shares a secret, was initially the accomplice and later the witness of an act. Medieval philosophers distinguished between ‘conscientia’ and ‘synderesis’. ‘Synderesis’ became the foundation of conscience and the basis of moral reasoning, while ‘conscientia’ was restricted to the judgment an individual makes before acting. As the conscience was transformed from shared knowledge to moral conscience it endowed the prosopon, its possessor and carrier, with moral significance. Moral conscience eventually diversified into consciousness and added ‘a sense of being conscious, independent, autonomous, free and responsible’.13 Epictetus used the two meanings of the term when he advised the examination and control of conscience, by quoting Marcus: ‘carve out your mask, role or character’.14 The road towards the double life of the person as (self-)consciousness and (moral) conscience had started.

From legal to moral person The Stoic innovation launched the homo duplex, the person with double life: he is the bearer of a role and the associated dignitates and privileges as well as the embodiment of universally shared physical or spiritual characteristics. Full metaphysical universalism was however reached when Christianity sacralized the person, turning a legal concept into a metaphysical category. It was the early Church Father Tertullian who transferred first the term persona from law to divinity in order to describe the three phases or functions of Trinitarian God. This strange displacement of a legal term into monotheistic deity launched great theological and political controversies. The attempt to explain and defend the idiosyncratic idea of one god with three phases led to heresy, schisms and wars. It breathed an air of spirituality into a legal and secular term preparing its eventual displacement onto the whole humanity. For the Fathers of the Church, the persona gradually became man tout court, initially the male part of the species, later all humans. This move was carried out in the interstices of the intricate and politically sensitive Christological and iconoclastic disputes. The Christian imago dei reaches his true nature by imitating the moral unity of God. Divine unity is complex however. The Christological debates concluded that incarnate Christ was perfect god and perfect man. This unsteady alliance of celestial and terrestrial dimensions prepared their eventual divorce and the radical separation of spirit from flesh. At the same time, the one God was endowed with three personalities, Father, Son and Holy Spirit. The Nicene orthodoxy of ‘unitas in tres personas, una persona in duas naturas’ brought together the three personalities of the Monos Theos with the two equally perfect natures – divine and human – of incarnate Christ. The divine personalities

13 Mauss, op.cit., 18. 14 Ibid., 19.

16  Law, persons, rights turned persona’s Stoic dignity into theological gravitas. They confirmed its metaphysical status, transferred it from man to divinity and then reflected it back onto humanity. It was an instance of ideology’s ‘double mirroring’ strategy. The God of three personalities creates man in his image. Human personality, mirroring the Godhead, has divine provenance. The dignity God gives to humanity returns to divinity creating the perfect ideological circle sustaining both divine creativity and humanity’s metaphysical provenance. But the person is not an individual yet. It does not have the material qualities of the physical human being and cannot be reduced to them. The person differs and is distinct from his own nature. We are made in the image and likeness of God only in our quality as persons, when all the specificities and infirmities of nature that make us unique have been abstracted. In this sense, the theological person becomes the progenitor of the metaphysical human. Something similar happened to the Greek prosopon. The Greeks did not create a term equivalent to the legal persona. The prosopon remained a dramatic device until the sixth century when it was used in Justinian’s Constitutions and Compilations to translate back into Greek the Latin persona in a typical case of linguistic counter-loan. This translation back of the persona, the Latin for the original prosopon, invested the term with metaphysical weight. The legal persona was the foundation of the metaphysical personality. The dignity attributed to the person abstracted, generalized and sacralized the earthly and modest legal personality. The cross-fertilization of law and religion, of matters practical and metaphysical, continued in the Middle Ages. Roman law was rediscovered and after the Gregorian revolution of the eleventh and twelfth centuries it became applicable throughout the Holy Roman Empire. Medieval jurists systematized, simplified and Christianized the person, turning it into a legal and theological hybrid. This complex unity is reflected in the Christian version of the homo duplex of body and soul, flesh and spirit, substance and form. God was mirrored in the moral person who prepared humanity’s task of imitatio Christi. The imago dei became the work of salvation for human beings and the mark of their unity. As Cassidorus put it in Psalm VII, ‘the person is a rational substance, indivisible and individual’.15 Normative universalism, moral equality and spiritual fraternity have deeply religious roots. The spread of monotheistic religions uprooted social and cultural traditions and disseminated the idea of a common humanity. Christianity moved history towards spiritual universalism and secular imperialism. For the early Fathers, all humans are united in Christ and could be saved if they accept his message. These claims reflect the belief in divine unity upon which the one ‘Apostolic and Catholic Church’ is founded. But as an image only of God, we are confronted by a dark underside. The Second Commandment bans the creation of graven images and the Ninth prohibits lust and coveting. They remind humanity of its duty to obey the law and threaten sin and defiance with dire consequences. The precaution is understandable. In both Judaic and Christian creation myths,

15 As cited in ibid., 20.

A brief history of the person 17 humanity is born out of an act of original disobedience inscribed on the body, the depository of sin. The splitting of body and soul created a vulnerable and reversible hierarchy of spirit over flesh. The sharp separation and juxtaposition of celestial and terrestrial worlds and the primacy accorded to the former prepared the grounds for their reversal. Reason, science and bodily experience eventually triumphed over revelation and faith. For Descartes, the I, the thinking thing and fountain of all knowledge, is not contaminated by local or historical factors. As res cogitans, the mind’s contents become targets of meditation and reflection. But its spatial and temporal variations – the persona as mask – endanger the metaphysical stability. Kant’s metaphysics aimed to solve this difficulty by turning the eternal soul into the transcendental ego: the unconditioned, unknown and free self that persists across cultures and forms the ground of thought and action. While outside experience, it conditions all experience remaining identical across time. The business of philosophy is to understand the mind’s universal structure and analyse its component intuitions, ideas and categories of thought. Modern personhood gradually abandoned its theological provenance and turned secular. The juridical persona was united with the metaphysical person. The proud pronouncement of the eighteenth-century revolutions that ‘all men are born free and equal’ announced the merger. Not only are humans free and equal – metaphysical – persons; they also enjoy the material privileges of legal personality. Legal rights turn metaphysical qualities into legal entitlement. As Marcel Mauss put it, ‘each of us has our self (moi), an echo of the Declaration of the Rights of Man which predated both Kant and Fichte’.16 The final unity of legal mask and universal morality was the work of German idealism. The idea of autonomy brings together law, rationality and morality. This strange marriage, perfected by Kant, turned the person into an end in itself, someone with free will whose actions are capable of legal and moral imputation. Kant added autonomy to the attributes of personhood; a person through rational action legislates a universal moral law for himself. This way, consciousness and conscience, reason and morality, were coupled. Their identification ‘began as early as the seventeenth century, when the person was defined epistemologically as a being with consciousness’.17 This was the trajectory that led eventually to human rights. The legal person became first moralized as the philosophical embodiment of universal value; from that beginning emerged the eighteenth-century distinction between man and citizen and the twentieth-century ‘human’ of human rights. A second complementary trajectory runs from Thomas Hobbes to John Locke, Jeremy Bentham and James Mill. It retained the separation and subjected the homo to the persona. Hobbes was key in this development. He exploited the legal distinction between a corporation and its legal representatives and built his

16 Ibid., 22. 17 Warren Breckman, Marx, the Young Hegelians, and the Origins of Radical Social Theory (Cambridge University Press 1999) 11.

18  Law, persons, rights political philosophy around the permutations of legal ‘personation’ and theatrical representation.18 The double meaning of persona as mask and representation allowed Hobbes to distinguish between the natural and the artificial person who can represent others. ‘A person is he whose words or actions are considered either as his own or as representing the words or actions of another man, or of any other thing to whom they are attributes, whether truly or by fiction’.19 The person is a representative not a moral universal. The ‘representer’ acts; his decisions are attributed to the represented. Law’s fiction enables someone to stand in for the Church or a corporation and assigns his acts and liabilities to the institution. The act of representation by an authorized actor or artificial person unites the multitude, for it is ‘the unity of the representer, not the unity of the represented that maketh the person one’.20 For the nominalist Hobbes, social unity cannot result from solidarity, social cooperation or communal belonging but from the fictive unity of representation and delegation. Hobbes’ detailed examination of legal personality lies behind his theory of sovereignty. The Leviathan is an artificial person who performs a legal and theatrical representation. As ‘representer’ or ‘personator’, the sovereign binds the represented turning the tumultuous many into the united oneness of political people. The Leviathan, as mortall God, represents the subjects who have brought him into being contractually and gives them personality. His actions create both individual legal persons and the people as body politic. Without the sovereign, the division and public recognition of self, indispensable preconditions of personhood, are absent. Leviathan decides and acts; his actions are attributed to the subjects who must obey the decisions of their creation as their own. The omnipotent sovereign can deprive his subjects of legal personality and return them to the status of mere humans. The sovereign law-giver is the ultimate corporate person or communitas, a creation of legal protocols. Locke or Rousseau developed more democratic theories of government but the basic function of separation of homo from persona, initially examined by Hobbes, still forms the foundation of political representation. John Locke was the empirical philosopher who gave the person its metaphysical patina in this line of thinking. To be a person is to be self-conscious, an entity that considers itself as itself, the same thinking thing across time and space. Selfconsciousness extends temporally and spatially and enables me to experience my life as a unified whole with past, present and future and a narrative or biologicosociological line running through it. Consciousness must be accompanied by conscience, a sense of moral responsibility and legal liability. The person is therefore a moral being capable of understanding its subjection to law and therefore becoming subject of law. The emphasis on the unity of the mental and moral capacities is pronounced. The continuity of character, of beliefs and desires, of actions and attributions becomes the key characteristic of personality. The older legal part of

18 Hobbes, op.cit., Chapter XVI ‘Of Persons, Authors, and Things Personated’. 19 Ibid., 106. 20 Ibid., 109.

A brief history of the person 19 the person becomes hidden under the verbosity of unity of intellect and morality. But it keeps eating away at the metaphysical artefact. The idea and practice of a united person, the basis of methodological and possessive individualism, crowns the coming of modernity and capitalism but will not last for long. The political technology of personhood, that is the ability to separate inside from outside and differentiate among those included, is too significant and useful to be abandoned in the name of metaphysics. Jeremy Bentham and James Mill followed a different strategy of doubling. They reified the body and placed it at the disposal of the higher faculties – soul, mind or reason. Once the body has been turned into a thing, it became the property of the person. Everyone has property over his own body and over the fruit of his labour. As a result, we can alienate, buy and sell, both our capacity to work and its produce. The rational part is elevated – ‘personalized’ – while the animal or bodily part denigrated. The person, the higher part, engenders the thing out of himself. A long legal tradition protected the body and its parts from commercial exploitation. Roman law distinguished between persons and things; only things could be owned, bought and sold. The body formed a third legal category: a thing beyond ownership and commerce (res extra commercium). This principle has been in retreat for some considerable time, with contemporary courts and legislatures authorizing the growing market in body organs, the availability of wombs for hire and extensive intervention and engineering of genetic material. Yet, this commodification of the body extends and modifies the earlier legal position. Giving the body an air of sacredness and declaring it off commercial limits converted flesh into thing, albeit initially a res extra commercium. The ‘sacred’ objectification of the body would then mutate into commercial and marketable property. As Anna Grear argues, ‘liberal theory renders the body a commodifiable object’. Not only that. This ‘self-ownership’ of the body provides the foundation for the ‘ownership of the external world – which is, like the body, relegated to object status’.21 Separating the I into homo and person, body and spirit, allowed the person to reify and claim ownership over the not-I: body and flesh, its capacities and products and, by extension, the ‘objective’ world. The intimate relationship between legal person and property undermined the marriage of convenience of personality with moral universalism. Hegel rejected the Kantian division between phenomena and things-inthemselves and historicized the ego. The I is a ‘unity which is self-identical, and can abstract from all particular determination in order to concentrate on its self-identity’. But the I is also a particularity, its characteristics are not merely given but belong to a being who is capable to abstracting from them and making them over … while free from these characteristics, the I is not free from having some; it cannot be without affirming some character or other, hence the universal must issue in the particular.22

21 Anna Grear, Redirecting Human Rights (Palgrave Macmillan 2010) 66. 22 Charles Taylor, Hegel (Cambridge University Press 1975) 298–9.

20  Law, persons, rights For the Hegelians, the ‘transposition of the “I” as ground of consciousness from Kant’s transcendental unity of apperception to the embodied individual is the result of historical evolution and the basis of individualism’.23 Laissez-faire capitalism operated and strengthened economic differentiation, exploitation and domination, paying lip service to Christian moral universalism. Legal personality became again a mechanism for hierarchizing and grading moral dignity. The law rejected pre-modern holism and communitarianism as well as socialist solidarity. The social or cultural belonging of people was demoted to the private sphere. Public – legal – personality, identified with property, combined the sovereign god, the sovereign state and the sovereign self. It was against this kind of conservative personalism that the young Hegelians and Marx rebelled. They rejected the grandiose metaphysics of subjectivity and separated subject from person emphasizing the empirical particularity of the individual. ‘While the [eighteenth] century associated individualism with the doctrine of free competition, the [nineteenth] associated it with the division of labour among differently endowed individuals. The earlier was an individualism of equality, the later an individualism of inequality’.24 The young Hegelians accepted self-consciousness as an attribute of the person but ‘attacked the idea of personality as it was used to support a restorationist political theology that they identified with authoritarian monarchy, asocial egoism, political apathy, and atomistic individualism’.25 The Roman distinction between persona and homo and the Christian between body and soul allegedly collapsed after the eighteenth-century revolutions and the positivization of natural rights. The turn towards natural rights as well as the new subjectivism of legal theory crossed out the historical provenance of the person. The French and American revolutionary documents declared that all men are born free and equal, extending the privileges of legal personality to all and turning them into rights. But only some were given citizenship, the modern political version of legal personality. If the link between moral personality and property led to the modern possessive individual, that between legal personality and politics led to the emergence of the citizen. Personality became an integral part of identity bringing together matter and spirit, legal person and universal morality. It was bestowed however only on the privileged citizens, the white, proper and property-owning men. Legal personality added a second nature of social roles, benefits and entitlements to some humans only. The turn from Christian natural law to the natural rights of individuals aligned the person with the functional requirements of emerging capitalism. Treating the self as owner of body and labour was commensurate to seeing it as the possessor of natural rights. The creeping individualism of capitalism was reproduced in the consciousness of the person and the annals of law. The two parts of the homo duplex with their juxtapositions and hierarchy were inserted into the modern

23 Steven Collins, ‘Categories, Concepts of Predicaments? Remarks on Mauss’s Use of Philosophical Terminology’, in Carrithers, Collins and Lukes, op.cit., 59–60. 24 Breckman, op.cit., 13. 25 Ibid., 15.

A brief history of the person 21 legal person. Liberal philosophy inherited the Christian divide between body and soul and adjusted the legal tradition accordingly. For orthodox naturalism, the union of body and soul subjected fallen flesh to the soul’s power for redemption. The Christian reaches his telos, purpose and end, on the deathbed as he surveys his whole life from the perspective of salvation. Legal natural and human rights are similar manifestations of the work of salvation. Nevertheless the ontological centrality of the Fall, the originality and persistence of sin did not evaporate. In the wars against heathen and Moors, against the indigenous in the new lands and in the civil wars of Christianity, the faithful encountered the inescapability and effectiveness of evil. The unity of the divided self under the direction of its spiritual part was one only possibility. The propensity to sin of naked life survived the separation between rational nature and its inferior animal part. The person is not the union between body and spirit but what in the human is in excess and correction of the body. The person separates the living being from itself, creating superior and inferior parts. Those who prioritize body over spirit must be corrected, converted or eliminated. The original exclusions behind the category of the legal person are now generalized and attributed to the whole humanity. There is body and there is soul; those who do not subject flesh to spirit cannot be redeemed. We can conclude that the persona or mask is different from the wearer; its superimposed image places the bearer in a regulated space and gives him a role or character which designates functions and powers, privileges and duties. Someone masked becomes a ritually organized set of practices. Self and self-with-mask differ. The persona both reveals and conceals the masked self; self is not present but represented. This representation operates in limited and well-regulated conditions, in ancestral worship, theatrical performance, later in legal disputation. Eventually the prosopon in a metonymical transference came to signify the face and the general comportment of the body turning the artifice into the original. By further analogical extension, it came to mean the (actor’s) act of re-presentation (anti-prosopeia in Greek). The prosopon, initially an act of trickery or masquerade making someone what he is not on stage or in life, became the mask and innermost secret of self. After the person’s metaphysical transubstantiation two trajectories opened. One continued its utilization as a technology of separation and division. The second associates the person with a metaphysical or scientific conception of human nature; for the metaphysicians, the person’s significance lies in its divine provenance and moral patrimony. The secularists insist on the person’s unity, continuity over time and permanence over space and explore the contents of consciousness and conscience. Both forget the legal provenance and constructed character of the person. Power and wealth have used personhood as a technology of separation and division. After the interval of the united self, these technologies are coming back. They no longer divide persons from things, or free men from slaves. They are redefining what it means to be human, giving personhood to actants and hybrids, androids and replicants, computer programs and animals, and depriving specific categories of humans from its consolations. The epoch of the post-human is that of the revenge of the legal person against its metaphysical mimic.

2 The story of dignitas

In June 2012, I participated in an invitation-only Oxford conference on dignity sponsored by the Catholic Church.1 It was a strange occasion. The theologians, moral philosophers, legal academics and judges present were benignly and absent-mindedly overlooked by senior clerics of the Church. The evangelical theologians stuck to their argument about God’s gift of human life and soon retreated to their beloved topics of abortion, euthanasia, stem cell research, body parts harvesting and the like. We were reminded that dignity is a quaint synonym for the sacredness of life with great ideological significance in the American culture wars. As all solid ideology, the commitment to the sacredness of life has palpable material effects. It has led to the murder and persecution of gynaecologists and family planning clinics, the cancellation of medical research, the banning of contraception. Having a conference in Oxford was perhaps a way of conducting these faux-theological debates in a serene academic environment removed from the heat of vitriolic attacks and criminal actions. The so-called ‘pro-life’ argument has not poisoned to a similar extent the European public sphere, as the referendum on abortion in Ireland clearly showed. Listening to the impassioned arguments against abortion and genetic material research was for many of us as exotic as following disputations about the gender – or indeed sexuality – of angels. The experience was unedifying and informative. It allowed the Europeans academics to exchange knowing looks and smiles. I was bemused by this unexpected emergence of dignity as a concept of central theological and philosophical importance. What did some of the better-known liberal philosophers have to do with these disturbing theological exchanges? Why has dignity become a favourite dish on the philosophical menu? What unites backwoodsmen evangelicals with some of the finer philosophical minds? Were we witnessing a belated reconciliation between religious fanatics and secular liberals or was it just a temporary marriage of convenience against a common enemy? The liberal turn to dignity has been gaining momentum recently, even though its particular Oxford format was bizarre. Over the last few years, a number of

1 Christopher McCrudden (ed.), Understanding Human Dignity (OUP 2014).

The story of dignitas 23 books by liberal luminaries, such as Jürgen Habermas,2 Jeremy Waldron,3 Michael Rosen4 and George Kateb5 have signposted dignity as the liberal flavour of the month. Conferences, workshops, lectures and essays accompanied the emergence of a concept that had scarcely bothered the constitutional, philosophical or legal debates in the past. Yet we now have people giving dignity all types of important tasks. Some are anthropological, others moral or legal. Dignity is the foundation of (human) rights; the content of (human) rights; the purpose of a liberal legal system; or, its moral justification. Grand claims are accompanied by even grander argumentative strategies. The obvious question is why, if dignity has such significance in the justificatory armour of Western law and human rights, it has surfaced only recently and has not accumulated the wealth of commentary and exaggeration that follow concepts such as ‘human’, ‘humanity’ or ‘freedom’. The emergence of dignity as a master concept of Western law was rather belated. The genealogy and argumentative strategies around dignity are similar to those we examined in relation to person. Let me briefly examine the history of the concept. It appeared in Rome but not in Athens. Classical and modern Greek do not have a corresponding term. Dignitas was a Roman juridico-political concept and signified someone’s status or rank. Dignitates – the term appeared usually in the plural – denoted office, role and service, aristocratic provenance as well as the honours and privileged that accompanied each office. The magistrate, the senator or the sacerdos enjoyed different privileges. As Teresa Iglesias put it, the idea of dignitas was central to Roman political and social life and closely related to the meaning of honor. Political offices and as a consequence the persons holding them, like that of a senator, or the emperor, had dignitas.6 Dignitates demanded self-discipline, generosity, a sense of duty and a certain grandeur. Ordinary citizens and the plebs did not have dignity; the res publica did. Indeed dignitas was also the first of four genres of public discourse according to Ad Herrenium, the Roman textbook on rhetoric.7 Dignitas had therefore political, ethical, aesthetic and ceremonial aspects: it identified offices, it differentiated among them, it endowed their holders with powers, duties and privileges, finally, it united the city in honour.

2 Jürgen Habermas, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights’ (2010) 41(4) Metaphilosophy 464. 3 Jeremy Waldron, Dignity, Rank, and Rights (OUP 2012). 4 Michael Rosen, Dignity: Its History and Meaning (Harvard University Press 2012). 5 George Kateb, Human Dignity (Harvard University Press 2011). 6 Teresa Iglesias, ‘Bedrock Truths and the Dignity of the Individual’ (2001) 4(1) Logos: A Journal of Catholic Thought and Culture 114, 120–1. 7 Παναγιώτης Κονδύλης, Περι Αξιοπρέπειας (On Dignity) (Indictos 2000, in Greek). Kondylis’s Dignity (axioprepeia in Greek) examines the history of the concept and has been a useful source for this chapter.

24  Law, persons, rights Cicero started the move towards a conception of dignity that refers to the inner life by contrasting dignitas with voluptas – desire. Man’s position in the polis underwrites his position in the world. It was a development that started with Plato. Man’s purpose is the quest for knowledge through a turn to God; for Aristotle and the Romans, human superiority is the result of bios politikos or vita activa, a concept that could be seen as a first approximation to dignity. Similarly γνωθει σεαυτον or self-knowledge and understanding of man’s purpose could be seen as a precondition of dignity. Stoicism and Neo-Platonism prepared therefore the adoption of dignitas by Christian theology. The original meaning was transformed and started its long journey towards a unitary and ontological conception of the term. Human dignity was seen as a consequence of the omoiosis, the likeness between God and man. As we saw, for the Fathers of the Church humanity has two natures: the spiritual and the material. The body is given to sin, a symptom of the original sin and the fall. As a result, man is the victim and perpetrator of sin. But the incarnation of Christ raised humanity into an agent of its own redemption. Theological and political developments in the late Middle Ages brought the two sides together and moved dignity away from hierarchical status and rank towards a universal human attribute. The complex theology of sacred life was gradually transferred into a celebration of universal reason and morality. A similar move expanded the scope of dignity from the limited group of nobility and property owners towards legal universality, a status that could be extended to all. Ontologically, however, dignity is related to spirit not to flesh. Man is predominantly a spiritual being. Incarnate Christ is perfect God and perfect man, one of the three persons of the Trinity. When Boaventura and Thomas associated dignity with persona, a secular form was given to the divine substance.8 A close link started developing between dignity, rationality and free will. Manetti, Ficino and Pico della Mirandola inherited and developed Christian metaphysics in a humanist direction.9 Pico radicalized Ficino’s idea about the universal character of humanity and argued that man can transform himself using his freedom to become the highest or the basest being. This was also Marx’s idea in the early manuscripts: humanity transcends itself by changing the conditions that determine its existence. Nevertheless the separation between the theological and the political conceptions of dignity survived in the Middle Ages. Theologically dignity tends towards universalism; socially and politically it promotes hierarchies of status and power. Spiritual dignity, the similitude of man with God, justified a politically stratified social structure. A clear distinction was therefore drawn between office and officeholders. It legitimized feudal social hierarchies, since the misbehaviour of the officer did not affect the dignity or the life of the office. The dignity of office does not pass with its bearer; this was especially the case with Pope or Emperor, who are God’s representatives on earth. This distinction between public office and

8 Ibid., 32–3. 9 Ibid., 49–56.

The story of dignitas 25 office-holder survived in modernity, continuing the juxtaposition between two conceptions, a universalizing spiritual and a socio-political differentiating dignity. Eventually the earlier sharp distinction, which had supported God-given value over political divisions and privileges, came to an end. The French Declaration of the Rights of Man and Citizen formally terminated hereditary and privileged access to office. Article 6 stated that all citizens are equal and can be admitted to all dignités, places et emplois publics, according to their capacities and without any other distinction except for that of their virtues and talents. Differentiations and hierarchies remained, as this book amply testifies. But they could no longer be legitimized by the divine provenance of dignity.

Philosophical dignity Petrarch was the first to use the new meaning of dignity, not departing, however, from the Christian position. This started changing with Marsilio Ficino, for whom the metaphysical foundation of dignity is found in Neo-Platonism and hermeticism. Man’s soul at the centre of being links both with animals below and looks above to pure spirit and God. God is the stimulus for man’s higher endeavour and offers a criterion for comparison. Dignity, coming from God, represents active human nature and rejects all servitude. Pico della Mirandola radicalized Ficino’s view about the universality of human nature. Man shapes himself through his freedom, which can lead him to become the highest or the lowest of beings. Here we find the beginnings of humanism as a celebration of freedom and the universality of humanity. The Christian provenance of the metaphysics of dignity and the double anthropology of fall and redemption, matter and spirit, kept the rationalist Enlightenment away from the idea. Only Pufendorf constructed close links between a secularized concept of dignity and the anthropology of reason. His socio-political conception linked dignity with honour or valour. Rationality demands that man follows certain moral rules found in natural law. Natural law and dignity form a unity, as does reason and dignity. In his attempt to socialize natural law, Pufendorf linked humanity with dignity: In ipso quippe hominia vocabulo indi catur inesse aliqua dignatio – the word ‘hominis’ shows that there is dignity in human nature.10 In the process, self-respect becomes respect for others because all are born free and equal. Grotius and Hobbes scarcely mentioned the concept. For the Dutch sage, dignity, natural law and reason are intimately linked but peripherally discussed. The long road towards the redefinition of dignity as reason instead of soul had started in earnest but did not become a major topic of contemplation. The philosophers argued both against claims of man’s proximity with God and against the story of the original and inevitable sin. It was that claim which soon became the basis for a naturalistic explanation of human folly. They were opposed both to man’s likeness with God and the opposite claim that humanity is just natural.

10 Quoted in ibid., 59.

26  Law, persons, rights They attacked both asceticism and Puritanism and the claim that man is fully immersed in natural determination. Such a belief would undermine free will. Enlightenment reason attacked therefore those who exaggerate the extent of human mastery and those who forget the animal side of human nature. As David Hume put it, some exalt our species to the skies, and represent man as a kind of human demigod, who derives his origin from heaven, and retains evident marks of his lineage and descent. Others insist upon the blind sides of human nature, and can discover nothing, except vanity, in which man surpasses the other animals.11 Scepticism and relativism followed the demotion by some and elevation by others of man’s status. It was this view that Kant attacked with his sharp distinction between perfect reason and pathological nature and its corollary a purely formal moral imperative. A new philosophical and practical prescription had to recognize and uphold the sensual nature of humanity without losing its mastery. For secular metaphysics, man is immersed in nature but he is also its master. Dignity was given the task of resolving, or rather mediating, the paradox. The transformation in the idea of dignity helped elevate the person from legal construct into metaphysical value. Dignity turned from the highly individualized privileges of pre-modern dignitates into the highest and highly indeterminate modern value. Kant’s succinct and rather vacuous definition of dignity remains the best we have after three centuries of trying. [E]verything has either a price or a dignity. Whatever has a price can be replaced by something else as its equivalent; on the other hand, whatever is above all price, and therefore admits no equivalent, has a dignity … that which constitutes the condition under which alone something can be an end in itself has not merely a relative worth, i.e., a price, but has an intrinsic worth, i.e., dignity.12 For Fichte too ‘the rational being posits itself as a rational individual – from now on we shall refer to this as the person – by exclusively ascribing to itself a sphere for its freedom’.13 This is why the moral commandment is categorical and formal; only formal imperatives can avoid personal motives and individual inclinations and pathologies. Morality calls for an absolute value or purpose and declares this

11 David Hume, ‘Of the Dignity or Meanness of Human Nature’ in David Hume, Selected Essays (ed. Stephen Copley and Andrew Edgar, OUP 1998) 43. 12 Immanuel Kant, Grounding for the Metaphysics of Moral (3rd edn, trans. James Ellington, Hackett Publishing 1993) 40. 13 J.G. Fichte, Foundations of Natural Right (ed. Frederick Neuhouser, trans. Michael Baur, CUP 2000) 53.

The story of dignitas 27 to be rational man as a replacement of God. Dignity becomes both the motivation for a morality moved by the legislating reason and the aim of moral action. Kant’s definition of person and dignity is circular. To be a person is to have dignity, to be an end and not means; dignity is what a person and only a person has. The rest have a price. To be a person and to have dignity is not to be someone’s property, but your own, Locke would add. This was the high point of idealism. As Jeremy Waldron puts it today, dignity is a status that follows all irrespective of our standing in society. Yet Kant did not forget the association of the term with nobility. He described the distribution of dignities as a ding that makes its possessors members of a higher estate even without any special services.14 Only the dignity of the citizen is universally shared, although of course citizens were a minority of the population. Kant’s distinction between value and price has been consistently challenged. His idea that what has value but not price is dignified forgets that we give a price for all kinds of dignified things like limb, life or reputation and status in cases of libel and defamation. The law firmly and comprehensively denies the claim that there is value beyond price.15 But the deceit was even greater. These grandiose claims were made at the point when humans and their labour became commodities to be sold and bought. Kant’s distinction was opposed by the operation of capitalism economy. Working man, whatever his dignity, has value because he and his products have a price. ‘In capitalism, freedom means viewing others as mere means’, writes Axel Honneth.16 Human labour marries subject and object, the I with the not-I, infusing matter with spirit. The product of labour has use value, it meets a human need; as a commodity with a price, the human’s power to work can be bought and sold. Power asymmetries and social relations place some in the position of buyer and others of seller. Yet, this social relationship is forgotten. The pricing, sale and control of peoples’ ability to work facilitated the spreading and eventual domination of capitalism. Kant’s elevation of dignity – the ‘pricelessness’ of the person – into the human differentia specifica was a great ideological trick. Schopenhauer attacked it in the starkest of terms as the slogan of the ‘clueless and ignorant’ moralist who uses it to conceal the depressing but liberating view that there is no foundation of morality. The expression of dignity once used by Kant, became the slogan of clueless and ignorant moralists who hide behind this imposing expression ‘human dignity’; the fact that they have no foundation for morality, estimating that their readers would love to be immersed in such an exalted idea.17

14 Meir Dan-Cohen, ‘Introduction: Dignity and its (Dis)content’ in Waldron op.cit., 4. 15 Don Herzog, ‘Aristocratic Dignity’ in ibid., 99–118. 16 Axel Honneth, The Idea of Socialism (Polity 2017) 18. 17 Arthur Schopenhauer, On the Basis of Morality (Hackett 1965) 100, as quoted in Rosen, op.cit., 1.

28  Law, persons, rights The psychologist Steven Pinker repeated the attack in more measured terms in the early twenty-first century: ‘“dignity” is a squishy, subjective notion, hardly up to the heavyweight moral demands assigned to it’.18 Titling his article The Stupidity of Dignity, Pinker shares the anger of leading bioethicist Ruth Macklin, who, fed up with loose talk about dignity intended to stop research and therapy, entitled a 2003 editorial ‘Dignity is a Useless Concept’.19 It is certainly an empty signifier that has been attached to various opposed signifieds. Dignity, spawns outright contradictions at every turn. We read that slavery and degradation are morally wrong because they take someone’s diginity away. But we also read that nothing you can do to a person, including enslaving or degrading him, can take his dignity away.20 Lack of physical and juridical knowledge, scoffs W.M. Thorburn at the turn of the twentieth century, are the causes of the ‘vague and vacuous irrationality generally shown in the use of the words Person and Personality by modern Moral Philosophy’. The Kantians ‘are obsessed with an unholy craving to make out personality as something uniquely and mysteriously magnificent: bracketing every man with God and impiously degrading the rest of his mundane children’.21 Emile Durkheim agreed. The new ideology of individualism sacralizes the mortal pathetic individual, creating a new ‘religion of which man is, at the same time, believer and God’.22 The religion of individualism is that of ‘Kant and Rousseau, that of the spiritualists, of the Declaration of the Rights of Man’.23 The attack was taken up with gusto by Arthur Schopenhauer and Friedrich Nietzsche. For the former, as we saw, dignity is a shibboleth of the clueless and empty-headed moralists. For Nietzsche, such conceptual delusions, unknown to the Greeks, offer consolation to slaves and tears of sympathy to masters. War as dignified work, which aims to annihilate dead men, shows how empty of meaning and contradictory are such slogans. Such phantoms as the dignity of man, the dignity of labour, are the needy products of slavedom hiding itself from itself. Woeful time, in which the slave requires such conceptions, in which he is incited to think about and beyond himself…now the slave must vainly scrape from one day to another with transparent lies recognizable to every one of deeper insight, such as the

18 Steven Pinker, ‘The Stupidity of Dignity’, The New Republic (28 May 2008) accessed 29 August 2018. 19 Ruth Macklin, ‘Dignity is a Useless Concept’ (2003) 327(7429) British Medical Journal 1419. 20 Pinker, op.cit. 21 W.M. Thorburn, ‘What is a Person?’ (1917) 26(103) Mind 291, 294. 22 Ibid. 23 Emile Durkheim, ‘Individualism and the Intellectuals’ (trans. Steven Lukes) (1969) 17(1) Political Studies 14, 20.

The story of dignitas 29 alleged ‘equal rights of law’ or the so-called ‘fundamental rights of man’, or ‘the dignity of labour’.24 Moral values are the result of the decline of virtue; dignity a creation of the ressentiment of unequals, who, having abandoned God, proclaim fake loyalty to moral values. Nietzsche’s ferocious attack on dignity indicates that the concept had become an amalgam of everything he hated: ‘humanist, liberal, Christian, socialist and Kantian ideas’.25 The emergence of human rights downgraded the importance of dignity. The person, a combination of law, theology and secular metaphysics, was turned into the citizen in the nineteenth century and the human in the twentieth. Dignity became humanity. It appears in the United Nations Charter, the Universal Declaration and the German Federal Constitution; its normative contribution remained limited. For Jeremy Waldron, dignity is an autonomous legal concept, a matter of legal rank and status that modernity ‘universalized’. Dignity denies the existence of difference between black and white, man and woman. We are all now chiefs, there are no Indians.26 While we don’t always keep faith with this high principle we are committed to its application.27 Yet as this book argues, status in law amounts to personhood. Law ascribes status by distributing and enforcing rights and privileges, powers and duties. Dignity is not therefore the foundation or content but the outcome of legal ascription; as such it is a highly differentiated status. Law’s job is to separate and divide: public from private, employer from worker, landlord from tenant, citizen from alien. The differentiated rights and duties hierarchize personality and qualify dignity. To be a person is to have rights and duties and to enjoy dignity; one has more or less dignity according to the legal rights law has assigned to her. The Christian provenance and the double anthropology dignity carries nevertheless survived. As individuals, we are unique but also similar to others; as subjects, we are free and sovereign (the metaphysical subjectus), as well as subjected to legalities and natural determinations (the metaphysical subjectum); as persons, we are both spirit and matter. Secularization did not destroy but multiplied the anthropological split. The three characters of humanity, with their double value, create what we have called the paradoxes of rights.28 All dualisms and juxtapositions soon acquire axiological significance with one term privileged over the other. This double anthropology finds its best expression in the dualisms of rights. They prioritize formal against material entitlements; they propagate universal ideological concepts against real needs; they promote a socio-economic system, which degrades large groups of people while proclaiming universal equality.

24 Nietzsche, ‘The Greek State’ quoted in Rosen op.cit., 43. 25 Ibid., 46. 26 Waldron, op.cit., 47–78. 27 Ibid., 30–6. 28 See Chapter 7.

30  Law, persons, rights Similarly, dignity remains ambiguous and neutral, a ‘floating signifier’, like many other grand values (autonomy, freedom, personhood) promoted as foundations or contents of morality. The concept started as dignitates in the plural indicating rank and office with their associated powers and privileges. When Christianity and the Enlightenment moved it towards moral universalism the idea of rank was hidden but survived. Hierarchy and symbolic power passed from official rank to the material circumstances of people; spiritual life, renamed reason, subjugates the animal bodily part of existence legitimizang status differentiations. Differentiation according to rank became differentiation according to wealth; hierarchy according to office became priority according to material privilege. Dignity remains a combination of rank and status, equality and inequality, only that the ground of distinction has passed from office to material wealth, and from service to celebrity. As Simone Weil put it, we can claim that dignity has returned to a pre-modern conception of differentiated dignitates.29 They are no longer what is differentially due to political office and honour; they follow the material entitlements of wealth and the cultural value of celebrity without observable merit or contribution to the common good. But why did dignity return? I can only speculate. Globalization, neoliberalism and cosmopolitanism rose together after 1989 as the sociological, economic and political aspect of the ‘new world order’.30 The person as subject, the individual as profit-maximizer and the transnational citizen are crucial contributors to the operation and hegemony of the new world dispensation. However, after the Iraq debacle and the 2008 financial crisis liberal cosmopolitanism retreated, so-called ‘humanitarian wars’ were discredited, neoliberal economics failed. ‘Humanity’ can no longer act with clear conscience as the normative source of the new world order. The great wave of protests in 2011–13 did not appeal to human rights but to social justice. The protesters’ slogans – ‘We are the 99%’, ‘End austerity and neoliberalism’ – indicated a distancing from the methodological and political individualism of human rights. At the same time, the emergence of ‘post-secular’ societies and the challenges of new religious fundamentalisms posed a crucial challenge to the marriage of convenience between Western rationalism, Christianity and technology. The truce between science and religion has to be reasserted, as fanatics on both sides try to impose the primacy of one over the other. There is more. The concept of personhood has splintered and candidates for legal recognition have proliferated. The human individual and the corporation are no longer the sole possessors of personality. Animals, trees, the unborn and the dead, more importantly, AI machines, robots and computer programs are successfully claiming legal privileges and rights. As a result, the metaphysical uses and returns of personality have diminished. This is evident in the embarrassment felt by theorists of personality. The idea that personality is the result of temporally and spatially extended self-consciousness and conscience can no longer hold. Entities

29 Simone Weil, ‘Human Personality’ in Simone Weil, Selected Essays (OUP 1963). 30 Costas Douzinas, Philosophy and Resistance in the Crisis (Polity 2013).

The story of dignitas 31 that cannot qualify under such a strict definition are increasingly introduced into the personality club. The shift from sovereign power to bio-power involves a radically different conception of the subject of action or agent; it is endowed with fundamental interests, which cannot be limited, however, to the simple legal category of person. The new subject of bio-politics requires new political technologies more robust than the thin person of law and rights. If, according to Michel Foucault, the person was a living animal with the additional capacity of legal existence, now it becomes an entity with legal existence that defines what is life. The legal person is returning to Rome, its emblematic birthplace: the person is a technology of separation between included and excluded and division and hierarchization among those given the status. No clear normative theory or value determines the process, which follows pragmatic choices, bio-political technologies and economic prerogatives. The idea of dignity replaces that of the person, as the contemporary heir to claims about the sacredness of life. It offers something more abstract, vague and less soiled by wars that kill humans in order to save humanity. Dignity offers a reassertion of the close link between secular law and reason on the one hand and metaphysical value on the other. The ‘sacredness’ of life inscribed in the modern history of dignity is of great value to religious leaders and cultural warriors and, with some appropriate adjustments, to liberal philosophers. Its provenance, conceptual structure and historical trajectory bring the two major sources of Western modernity together. The ‘dignity’ of sovereignty and security has been gradually replacing the dignity of persons. However, as we will necessarily move away from the neoliberal order, I suspect that dignity will soon return to its obscure legitimatory position as a vague and malleable foundation of law and metaphysics. The ‘dignified’ alternative adds material well-being to the spiritual core and redefines dignity as the value and honour of the integrated human. Dignity should return to its Marxian position: the ability of humanity to transcend itself by changing the conditions determining its nature. This is the uncomfortable conclusion to what has been a weird and wonderful journey. Like time or justice, I know when my dignity is trampled on but I have no idea where its kingdom lies.

3 What is the legal person?

The person: natural or artificial? The early parts of this book examined the complex genealogy of the person. The person brings together law and performance, philosophy and religion, metaphysics and ritual. Contemporary jurisprudence however, with a few exceptions, is unaware of or uninterested in the history and philosophical provenance of the legal person. The two versions of the person as a legal construct, the external manifestation of a specific role and status or, as the morally endowed seat of will, reason and freedom, are either assumed or repeated unexamined. The law uses personhood extensively to specify its object but ‘no coherent body of doctrine or jurisprudential theory exists’.1 One author asks rhetorically whether the concept of the person is necessary for human rights. His answer is both categorical and fashionably contemporary. ’Human rights arguments are obscured by their reliance on the concept of the person ... one set of questions about persons and personhood [must be replaced] with questions about biological human beings, consciousness, and rational agency’.2 The distinct genealogies, the theological and philosophical disputations do not trouble legal philosophy much. This confusion has been noted by a commentator for whom ‘judges not only fail to invoke philosophical support for their ideas of personality, but also inconsistently apply jurisprudential theory in resolving problems of legal personhood’.3 The idea of the person is the building block of legal practice. Plaintiffs and defendants, corporations and contractors are legal persons. Rights are entitlements and duties are burdens assigned to persons. Legal theory has mainly examined the potential exclusions the institution of the person introduces, concerned either to help expand or to police and restrain its proliferation. Case law and scholarship are in a state of flux and have a casuistic flavour full of ideological assumptions and logical contradictions. Are foetuses, the mentally disabled and

  1 Dave Fagundes, ‘Note, What We Talk About When We Talk About Persons: The Language of a Legal Fiction’ (2001) 114(6) Harvard Law Review 1745, 1746.   2 Jens David Ohlin, ‘Is the Concept of the Person Necessary for Human Rights?’ (2005) 105 Columbia Law Review 209, 249.   3 Fagundes, op.cit., 1747.

What is the legal person? 33 the comatose persons? Do animals, trees or natural enclaves have rights? Can human organs and limbs become objects of property and sale or are they integral parts of personhood? Does the implanted foetus belong to the surrogate or the genetic mother? Should personhood be extended to primates, artificial intelligence machines, robots and blade runners? Recent discussions concern the commercial side of embodied personality. Personhood has entered jurisprudence through its deconstruction by artificial intelligence, genetic technologies and bio-ethics and its co-optation by big business. Has the old separation of homo from persona disappeared? Is the legal person identical with the empirical human being? How does the person relate to those other classifications of humanity, the subject and the individual? Before the recent turn towards human rights and normative jurisprudence, legal theory was clear. Personality is a technical legal construct. John Austin stated the position succinctly in his Lectures on Jurisprudence. ’Mere legal persons (Personae Juris) are persons by a figment, and for the sake of brevity in discourse. All rights reside in, and all duties are incumbent upon, physical or natural Persons’.4 The term ‘figment’ or, the more common ‘legal fiction’, is an implicit recognition of the birth of the person as mask. The legal person is a creation of law denoting a rights-holding and duties-bearing entity. Like its Roman ancestor, contemporary personhood is a point of condensation of legal relations and imputations, something that comes to life socially not naturally. Collective, artificial and non-existent entities, those not yet born or not still alive, can acquire legal personality if the law chooses to give them rights and duties. ‘There are no logical of formal limits to who or even what might be considered a suitable subject for the bearing of rights and duties’.5 If the human comes to life at birth, the legal person emerges in a second birth or legal baptism, which endows an entity, any entity, with the mask and roles of legal recognition. ‘It is not the natural Ego’, writes Hannah Arendt, ‘which enters a court of law. It is a right-and-duty-bearing person, created by the law, which appears before the law’.6 Hans Kelsen, the greatest legal theorist of the twentieth century, was the most consistent and persuasive expositor of this view. He sharply distinguished between humans and persons: that the human being is legal subject (subject of rights and obligations) means nothing else … but that human behaviour is the content of legal obligations and rights … the so-called physical person, then, is not a human being, but the personified unity of the legal norms that obligate or authorise one and the same human being. It is not a natural reality but a social construction

 4 John Austin, Lectures on Jurisprudence (ed. Robert Campbell, The Lawbook Exchange 2005) XII, Vol. I, 364.   5 Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart 2009) 7.   6 Hannah Arendt, On Revolution (Viking Press 1965) 107.

34  Law, persons, rights created by the science of law – an auxiliary concept in the presentation of legally relevant facts. In this sense a physical person is a juristic person.7 Or, as Richard Tur puts it, the legal person is an ‘empty slot that can be filled by anything that can have rights or duties’.8 The law gives powers and duties to a human in the same way it does to a company, association or state. In this sense, the natural legal person is more artificial than the corporation, because its status as human obscures what is perfectly visible in the company: they are both artificial legal constructs. Kelsen again: the natural person is not a human being, but the personalised combination of legal rules which impose obligations and give entitlements to one and the same person. It is not a natural entity but a legal construct created by the science of law, an ancillary concept for the description and creation of the elements of law.9 The person, instead of being the centre of law, is a logical space or quilting point. It brings together and combines a patchwork of norms, rules, relations and remedies, which create a unique group of rights and duties. A legal person is a trope, the personification of a bunch of publicly recognized social relations. It forms the canvas upon which different legal states and statuses will be painted. In this sense, legal rules do not address real people, but juridical personalities. As Tim Murphy put it, ‘the legal subject presents “itself” to the law as a face, or a surface, which is to say a screen on to which various projections will be effected’.10 A human without personality – before its acquisition or after its loss – is a legally bare life. This analysis of personhood fits perfectly Giorgio Agamben’s distinction between bios and zoe. Humans with legal personality have public recognition and enjoy the privileges of life as bios, as they did in Athens and Rome. Those without belong to zoe and are often reduced to the status of homines sacri. Refugees, sans papiers migrants or the prisoners in Guatanamo Bay, with limited legal rights and protections, are juridical semi-persons or non-persons. Normative jurisprudence rejects this view. To be a person is to share certain characteristics which exist prior to and independently of legal intervention. Persons are rational agents. The liberal personality possesses will, reason and freedom. A person desires, deliberates, decides and acts. Will first. The Argentinian legal philosopher Carlos Nino analysed the legal person from a neo-Kantian perspective.11 For Nino, will is what brings persons together without being

  7 Hans Kelsen, General Theory of Law and State (Harvard University Press 1949) 33.   8 Richard Tur, ‘The “Person” in Law’ in Arthur Peacocke and Grant Gillet (eds), Persons and Personality: A Contemporary Inquiry (Basil Blackwell 1987) 121.   9 Kelsen, op.cit., 93. 10 W.T. Murphy, The Oldest Social Science? Configurations of Law and Modernity (OUP 1997) 196. 11 Carlos Nino, The Ethics of Human Rights (Clarendon Press 1993).

What is the legal person? 35 ‘tied to any end, they are an originating source of valid claims, and they are responsible for their ends’.12 The will is freed to ‘choose ends, adopt interests, form desires’, it is the ultimate value is a valueless world. The person ‘originates’ his interests, desires and decides God-like. The exercise of free choice makes him morally responsible and legally liable. The ability to choose is generative, the person is constituted by it, is prior to any end, interest and desire. This implies, that when we refer to an interest or desire, we presuppose a subject, and that the identity of that subject, the moral person, does not change with its ends, interests, or desires.13 Free will, Heidegger’s ‘will to will’, is the underlying force. It constitutes the person, gives him unity and identity over time. In classical metaphysics, the moral person is the hypokeimonon or substratum both presupposed and created by the exercise of freedom. In the psychoanalytical idiom, we could say that a combination of the Big Other and law-induced desire construct the I. Will is led by reason. The reasoned exercise of will creates the autonomous person of Locke, Kant, Hegel and liberal legalism. As John Locke put it in his classical definition, the person is a ‘thinking, intelligent being, that has reason and reflection, and can consider itself, the same thinking thing, in different times and places’.14 This is perhaps one of the more restrained definitions. Contemporary liberal philosophers cannot avoid linguistic inflation and philosophical exaggeration. Personality gives ‘absolute inner worth’, offers ‘respect and self-respect’, makes us ‘normatively equal’ with all others. A person has the capacity to ‘be that which he wills’.15 For Jeremy Waldron and Roger Scruton the person is a ‘being that can settle disputes, exert sovereignty over his life and respect that of others, and can respond to the call of duty’.16 Following these hyperbolic eulogies, legal personality appears to give recognition and support to always-already existing moral qualities. It ensures that the ‘normative agent’ or moral person is publicly acknowledged as the font of actions, the bearer of moral responsibility and the subject of legal liability. This conflation of moral worth and legal personality permeates liberal jurisprudence. For Alan Gewirth, humans are agents capable of voluntary and purposive action.17 Their rights support their agency and protect the ‘goods’ every person must possess in order to act successfully. The syllogism is circular. Rights belong to all humans. Rational morality is the only normative universality. It follows that the person is the moral foundation of rights. Conversely, the characteristics of personality unite human action and explain the

12 Ibid., 110. 13 Ibid. 14 John Locke, Essay Concerning Human Understanding (Oxford University Press 1998) 63. 15 James Griffin, On Human Rights (Oxford University Press 2008) 31. 16 Naffine, op.cit., 59–60. 17 Alan Gewirth, ‘The Basis and Content of Human Rights’ (1978) 13 Georgia Law Review 1143, 1166.

36  Law, persons, rights rights we have. Rights exist for the person; to be a person is to enjoy these rights. We (should) acquire those rights which promote our pre-existing personality. A person is someone with rights, duties and (increasingly rarely) a human face. It is this attitude that calls for policing the proliferations of personhood-bearing entities, setting strict criteria for the admission of new applicants into the magic circle. But the needs of capital and the interest of science move in a different direction. The discussion on personality has only paradoxes to offer.

Realists and metaphysicians Ngaire Naffine’s extensive review of recent legal theory identifies four approaches to legal personality: legalism, rationalism, religionism and naturalism.18 First, the ‘legalists’: they consider the legal person artificial, a creation of the law wholly separate from the natural or moral person. Persons are created by legal authority, an attribution not linked with the nature of the recipients; every animate or inanimate being, apes, mice, foetuses, trees or national parks can be endowed with rightsholding capacities. No single or identifiable property should be possessed by the potential legal person before the law extends its grace. This absence of metaphysics or ontology makes legalism historically and technically the most accurate description of legal personality. The ‘rationalists’, a sub-category of secular idealism, claim that the legal person is a gloss on the moral human; only rational humans can become persons. The ‘religionists’, next, believe that the person is endowed with spiritual sacredness, which determines the extent and scope of what it means to be human and who can count as person. Religionists and rationalists are the progeny of the marriage of theology and humanism. Finally, the ‘naturalist’ followers of Darwin and social Darwinism claim that humans are ‘essentially animals’ and that the law should reflect this fact by extending rights beyond the human species.19 Despite differences, all ‘metaphysical’ sides attribute God-given or natural properties to humans, which legal personhood ought to protect. Agency, rationality, sentience, the ability to make claims or to feel pain and suffering are some of the properties of the ‘proper’ legal person. The pre-social or natural constitution of the human is a liberal article of faith and an insurance policy against juridical megalomania. ‘Without the incubus of [this type of] theory’, Naffine worries, lawyers will be free to define the person any way they wish and to abandon law’s moral commitments. If no moral constraints demarcate the contours of the legal person, the ‘limitless’ freedom of lawyers would lead to ‘arid’ jurisprudence without a trace of ‘humanity or metaphysical speculation’. Legal analysis without a ‘working concept of humanity amputates the human being from law’ and loses the ‘moral dimension’. If we were to lose the sense of the legal person as an inherently valuable type of natural being … we might lose that sense of a minimum threshold of

18 Naffine, op.cit., 19 Ibid., 168 and throughout.

What is the legal person? 37 what can be done in law to human beings. There might be a dissipation or dissolution of the person.20 In such a case, the person becomes a ‘number, a pure abstraction, a technical device … a set of mathematical equations simplifying legal calculation’, a vista that both mis-describes reality and is morally problematic.21 This litany of looming disasters is almost entirely unencumbered by historical evidence or philosophical argument. The greatest metaphysical illusion is the fear that the artificial person could become a solipsistic entity removed from social normativity. If the legal person is interpreted as a mask, a number or pure abstraction, a technical device upon which all kinds of social and economic priorities can be projected, serious problems would arise. This fear is based on a belief in the putative and fake ‘natural’ characteristics of the individual. In the absence of a normative foundation, unworthy claims would be recognized. But can lawyers use their ‘free’ initiative to extend rights to undeserving entities? Could juridical freedom lead to the parthenogenesis of a deviant or revolutionary personhood? It is unlikely, this side of radical socio-economic change. The law does not operate in a vacuum, nor is it free to extend arbitrarily the scope and content of personality. Law is anchored in the socio-economic system it represents, supports and reproduces. Liberal jurisprudence insists on the systemic, coherent and rationally developing nature of law. As the felicitously exaggerated apophthegm puts it ‘the law wishes to be one’. The law cannot ‘dissipate’ a concept and practice so central to its systemic reproduction. The ‘moral’ part of personality is the outcome of a long and convoluted genealogy as well as of the marriage of convenience between republican and Christian Rome. Genealogy and metaphysics legitimize and keep the legal person together. The realism of law, clearly expressed by Hans Kelsen and the early positivists, guarantees that the law is grounded upon and protects dominant social relations while retaining a degree of relative operational independence. The metaphysics of Christianity and Kantianism ensure that this independence is exercised ‘within the limits of reason alone’. Realist and metaphysical views, underwritten by the lawyer’s hyperactive superego, are both opposed and intrinsically linked. Contemporary liberal personality repeats the history of the Roman persona and its Christian moralization. The religious and humanist view forms the dominant rhyme and reason of abstract legal personality and of a legal system that supports capitalism and individualism. The contemporary legal person is a secular heir to the Christian division of matter and spirit, body and soul, universal and particular. The persona is both a legal creation and a metaphysical abstraction. In capitalism, the separation has become an integral requirement of the socio-economic order. First, the abstraction of law and personality frees the concrete self to pursue the insatiable desire of possessive individualism. Second, it prioritizes reason and will over

20 Ibid., 179. 21 Ibid., 31–2.

38  Law, persons, rights body and material needs. This allows the law to support and justify economic and social inequality while protesting its commitment to formal equality and fairness. The artificiality of personhood facilitates and justifies the exclusion or marginalization of those considered not fully human according to the epochally dominant definition of humanity. The legal person and its variations are grounded on a permanent, univocal and stable identity in the service of the dominant socio-economic order. But it is too flexible an instrument to be abandoned to its metaphysical alter ego. When economic and technological advances find the moralistic personhood too restrictive, legal doctrine abandons the constraints of free will and reason and populates the practice with animate, inanimate and machinic entities. At times the link between legal and moral personality is loosened, at others strengthened. This flexibility makes it indispensable both for the moving sands of identity politics and for the stricter and more permanent requirements of late capitalism. The merger of moral and legal conceptions, of dignity and juridical mask, is most evident in the ‘human’ of human rights; their separation in the ever-diversifying character of entities accorded legal personality, from foetuses and Gods, to computers and chimpanzees.

Psychoanalytical naturalism Let me summarize the argument so far. Scientific advances, economic needs and political campaigns have led to the proliferation of entities, other than humans and corporations, which have some attributes of legal personality. Great apes, artificial intelligence machines, robots and advanced computers dealing with the public have been given various bundles of legal rights and duties acquiring this way a limited legal personality for specified tasks. The arguments used to extend personhood are sometimes analogical – apes are similar to human beings; alternatively they are functionalist – vending machines or computer programs issuing travel tickets must bind both parties in order to operate effectively. But there is no better theoretical argument than the obvious: personhood is a legal construct and, despite metaphysical objections, social and legal developments alter the criteria for its attribution. If anything the proliferation of partial legal persons follows an expanded naturalism: the functions and actions of certain entities are given legal effects; it follows that they should be accorded some, and eventually full, legal recognition. Expanded or limited naturalism is the only credible explanation for changes in legal personality. In this sense, Alain Supiot’s Homo Juridicus is perhaps its most advanced jurisprudential examination.22 Supiot returns to a naturalism of the human but his human is a complex and demanding entity. He argues that legal personhood should follow and protect the natural needs and desires of the human which, unlike ‘metaphysical’ naturalism, he discovers in the architecture and needs of the psyche. This naturalistic re-orientation of functionalism, combined

22 Alain Supiot, Homo Juridicus: On the Anthropological Function of the Law (trans. Saskia Brown, Verso 2007).

What is the legal person? 39 with Supiot’s deep understanding of legal history – something missing in AngloAmerican jurisprudence – makes his work a starting line for the understanding of the complexitities of identity and legal personality. Supiot argues that the unique Western conception of the human as free, rational and equal with others is the outcome of a long historical journey from Jerusalem to Athens, Rome and the contemporary declarations of rights. Man is a linguistic being, the cause and effect of signs, symbols and meanings. The human self, like the Trinitarian God, has three aspects: individual, subject and person. All three are internally split. The individual is unique like God and similar with all others; the subject is sovereign like King and subjected to law; the person, the culmination and perfection of the first two, is a Christian combination of spirit and flesh. These juxtapositions are both categories of thought and unremarkable ideological tropes helping make sense of our selves and the world. They are not scientific first principles or deductions; they are unproven axioms, self-evident truths and ‘dogmatic constructions’ of religion and law.23 Individuals are unique, incomparable and unrepeatable and at the same time similar and formally equal with others. The uniqueness is the external manifestation of divine provenance, of the human made in God’s image and likeness. But we are also units of comparison, counting and accountancy, objects of quantification and statistical calculation. The subject follows a similar logic. It is the sovereign agent of choice, the causa sui or uncreated cause of will, decision and action. Its divine patrimony endows consciousness with reflection and freedom. At the same time, however, the subject is subjected to natural and social laws. Finally, the person takes up and consolidates the dualisms of individuality and subjectivity. Individual will combined with reason begets freedom, making us autonomous in the Kantian sense of the term. All three positions emerged out of the encounter between enduring psychological needs and Christianity. The person is a Christian inheritance subjecting body and flesh to soul and spirit. Christianity turned the person from a highly differentiated legal construct into a moral concept and made it part of the nervous system of the West. It was the child of many parents: Jewish prophecy, Greek philosophy, Roman law, Enlightenment universalism and capitalism all converged to create this unique figure. For Christianity, the body is the seat of personality, the temple or prison of the soul.24 Personality’s spirituality made the body sacred and its trade illegal. The archaic prohibition on the commodification of the body acknowledges humanity’s perpetual desire to escape and transgress its anthropological foundation; the ban on the ownership and exchange of the body and its parts was similar in function to the incest taboo.

23 ‘Dogma’ and ‘dogmatic truth’ refer to statements humanity accepts on trust and without debate. Religious and legal declamations (man is the imago dei, we are all born free and equal) are such dogmas posited and displayed socially as self-evident truths applying to all. 24 This is the position Michel Foucault reversed, arguing that the soul, a relatively late addition to anthropology, is the prison of the body.

40  Law, persons, rights This indispensable function has taken different historical forms under the general title of natural law. Belief in a law that derives from and protects nature goes back to the early Babylonian, Macedonian and Roman empires. The Roman jus gentium dressed imperial law with the dignity of nature helping override local practices. The Stoics raised natural law to a philosophical idea.25 Natural law emanates from the nature of things, it animates and regulates the cosmos. Animate beings and inanimate things follow the law which gives them the telos (purpose) of their physis. For Aristotle, stones released at a height fall because their natural purpose is to move to the centre of the earth. The first article of Ulpian’s Digest states that nature has taught animals their law. It applies equally to humans, animals and birds. Natural law is logos, ratio; its dictates discipline nature and can be understood by human reason. Supiot’s approach breaks with the rationalism of neo-Kantianism. He follows the psychoanalytical theory of Jacques Lacan and its legal reformulation by Pierre Legendre: ‘There is no “I” possible without an authority that guarantees this “I”, or to put it in legal terms, without an authority that guarantees personal status’.26 The human as a speaking being comes to existence through its subjection to the laws supporting humanity. For Lacan, language and the interdictions on incest and parricide make the human. For Supiot, even before entry to a functioning language, the infant is born to the legal lineage of family and kinship. This placement is obligatory and inescapable. To accept his subjection, the subject attributes it to a point outside humanity, an arbitrary organizational principle or law that transcends empirical existence and places the newly born in a wider order and cosmos. The imago Dei, man as an image of God, serves this function. A similar principle applies to communities. They must assume that an external lawmaker or foreign law sets the order and hierarchy necessary for survival. Moses, Solo, Lycourgos arrive from another place to give the law. Form rules over matter, the whole determines its parts. For Supiot, the foreign legislator serves a constant anthropological need. He offers a ‘third’ instance or ‘reference’, an external point of authority and command that mediates between humanity and its representations. Initially this fantastic and indispensable intervention was the business of the Church; later, of state and law. These fundamental legal proscriptions and prescriptions operate like a natural law serving the needs of the psyche. Their anthropological function is synchronic, permanent, ahistorical. Law guarantees human identity by imposing interdictions, creating obligations and placing language, meaning and value between people and the world. Representations mediate presence and mitigate the dangers of narcissism. Similarly, prohibitions and commandments introduce humans to finitude and subject them to reason’s demands. The roles of individual

25 Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Routledge-Cavendish 2007) Chapter 10. 26 Supiot, op.cit., 21.

What is the legal person? 41 and person are central to this task. The individual, undivided self, sustains the uniqueness of life. I must be recognized as the same entity from birth to death so that actions and their consequences are attributed to my agency and assign liability. This is the task of legal personality, a ‘dogmatic’ legal construction serving unchanging psychological needs. The heteronomy of language and law support the autonomy of personality and the uniqueness of an individual life. Its artificiality makes it unsteady and vulnerable and calls for an insurance policy, for an instance that undergirds both the constructed nature and the persistence of individual identity. For philosophy, the law is natural because inscribed in human or cosmic nature. In psychoanalytical naturalism, the subject cannot come to life without law. Law’s operation is mandatory and (primarily) negative; it separates the infant from the maternal body and from delusions of omnipotence. It proscribes desires and drives that left unchecked would destroy humanity. Law’s interdictions, according to Supiot, mimic the Freudian prohibitions: they conduct a second legal baptism. But at the same time, the law must be seen as posited, legislated by an instance beyond humanity. God’s withdrawal from public life does not mean that this ‘dogmatic’ function came to an end. After religion, these dogmatic beliefs must be created and sustained by other institutions. The state and law replaced the church and took on this role; the Sovereign is the heir of Christ, the King’s two bodies mimic the incarnation’s dual nature. Sovereignty combines spirituality and materiality, guarantees the anthropologically indispensable dogmatic ‘truths’ and introduces the subjects to their double essence. Secular states, Supiot claims, still promote unprovable beliefs presented either as natural facts or free individual choices. The idea that we are born free and equal, for example, that sovereignty belongs to the people or that rights to life, liberty and the pursuit of happiness are self-evident truths are such dogmas. They are similar to religious faith; they cannot be evaluated or proven but they must be propagated as universal truths. They are the ‘noble lies’ of an enlightened era. Supiot fears, however, that the law has abandoned its crucial anthropological mission in late capitalism. It does no longer impose the necessary limitations and divisions on the individual who has been turned into the mainstay of social life. The law is no longer the manifestation of democratic choices nor does it generalize social morality; it has become a tool for utility maximization and risk calculation. Law and morality promote rights for individuals; personal virtue and public good have been deserted. Justice, instead of offering a transcendent legal critique, has been identified with the law. When the law relinquished its anthropological vocation, this crucial role passed to scientists, technocrats and the markets. Legal personality lost its restraining influence and has been dissipated in multiple ‘subject positions’. Legal rights metamorphosed from markers and supports of rational autonomy into instruments of insatiable individual desire. The postmodern elevation of the individual, his emancipation from ritual and dogmatic constraints endanger social life. Legendre laments the ‘imbecility’ of lawyers who have abandoned

42  Law, persons, rights their crucial anthropological role.27 For Supiot, this neglect is evident in legal theory’s lack of interest or understanding of the history and significance of the legal technology of the person.

The pitfalls of psychological naturalism Supiot’s classification of the human into subject, individual and person is a major advance on the philosophically and historically impoverished jurisprudence. His emphasis on the Christian contribution is accurate and facilitates a deeper understanding of the political theology of modern law. However, the social and cultural conservatism of personalism, a combination of religious humanism and psychoanalytical naturalism, undermines the contemporary uses of this outstanding demystification of the uses of personhood.28 In Supiot’s legal naturalism, social life depends on the mythological theatricality of religion and law. The person, while a creation of law, is at the same time an answer to the psychological needs of the concrete individual; the normative realm is a function for the psychological needs of the solitary self. Law-supported normativity serves (psychological) nature. Individual psychology needs the religious, social and legal bond. The claim that the legal person is separate from the empirical individual is pure ideology, however. If legal personality serves the psychic needs of individuals, it subjugates the social to the individual, underestimates the role of social and political power and turns individualism into the matrix of legal relations. In form, if not content, this claim derives from the liberal contractarian tradition. Against Supiot’s political preferences, the claims of individualism are vindicated. Theological nominalism, methodological individualism and the economic analysis of law approach humanity as the sum total of competing individuals. Individual rights are the arms of competition, a legal version of the war of all against all. Conversely, the law is nothing more than the sum total of rights. The apotheosis of the individual with her rights is the completion of a long historical process from Roman to European law. The first station came when the highly differentiated and hierarchical personae of law became the unified moral personality. At the same time, the law continued its mission of differentiating people and prioritizing property as it has always done. Supiot’s despair about the errors of late modernity is based on his extravagant claim that the law serves a unique and united anthropological function. The broadly accurate diagnosis of late capitalist law loses its persuasiveness in the melodramatic jeremiads about the disasters of contemporary life. Its sociologically accurate description is undermined by a dogmatic ideology, which finds in Catholic personalism the model for all legality. Alain Supiot and Pierre Legendre trace the demise of law in its abandonment of support for the role of social mirror or the ‘third’ that

27 Pierre Legendre, ‘The Other Side of Law’ (1995) 16(3/4) Cardozo Law Review 943. 28 Samuel Moyn, Christian Human Rights (University of Pennsylvania Press 2015).

What is the legal person? 43 reconciles the human to finitude. This ‘neglect’ becomes evident, they believe, in the legal recognition of sex-change identities or the weakening of the paternal role evident in the legalization of adoption by gays and lesbians. These are the grievances of a neoconservative Christian fundamentalism. Human identity is an issue of faith, confidence and belief, they argue. When the subject took its marching orders from religion and law, it was reconciled to finitude. When the state and law neglect this task, fundamentalist religion, irrational spiritualism or xenophobic nationalism return. Supiot’s religious view of history conflates the legal with the moral person, forgetting that legal masks have been through many versions. When individuals lived under the sway of a sacralized law, society worked, he believes. When this was lost, individual desire destroyed the autonomy of law and the individual devoured the abstract legal person. Legal personality is a mask superimposed on the face, however, a way through which every society invests political power and cultural value in certain people. Public officials and dignitaries are created through the law of masks. Law’s differentiating power reflects concrete social relations and is constrained by existing social hierarchies. Both ethereal legal persons and embodied human beings are embedded in power relations and social roles with normative repercussions. Since Athens and Rome, law has differentiated people; it separates landlords from tenants, employers from workers, citizens from immigrants. The universalism and spiritual equality of Christian personality did not stop the differentiating function of legal personhood. Universal moral personality and variable legal personas travel on parallel tracks. Supiot’s correct diagnosis is followed by untenable prescriptions. The legal person, the subject and the individual are forms of social life instead of eternal psychic functions. They are inscribed in linguistic and cultural codes and power asymmetries and become the way we perceive the world. In this way, they are the most forceful form of ideology as practice, a way of interpreting and being in the world. Legal personality is necessary for the imputation of intention and liability in criminal law, it supports property and contract law and buttresses the economic activities of corporations. The subject, the autonomous and sovereign foundation of modern metaphysics, is the person’s heir and mirror image. Person and subject are reflections of each other. The individual and the ideology of individualism is the progeny of their close relationship. Contemporary personality operates both as a major ideological trope and as a practice animating law, selves and rights. The next chapter explores further the incestuous relations between person, subject and individual.

The two lives of the legal person People live in a chaotic world of emotions and passion, conscious desires and unconscious urges, voluntary actions and unknown motives, planned and unintended consequences. The person, on the other hand, belongs to the law; personhood is constructed and regulated by legal rules. Legal person and human being have always been and remain separate. Legal personality in the twenty-first century, as much as in Rome, is a creation of law, a social construct, distinct from

44  Law, persons, rights and superimposed on the empirical self. The legal person has no biological or psychological characteristics, no bodily needs or desires. It is a point of imputation of privileges and obligations, rights and duties, entitlements and liabilities. In this sense, the person is a figment or legal fiction, the outcome of legal performance. But this fictitious creation is all too real and has effects on social relations and the human itself. When the mask is placed on the face it alters its contours. For the law to operate, human beings must become abstract entities. Rules (are supposed to) comply with logic and reason and the protocols of legal recognition and validity. Legal judgements (are supposed to) follow the methods of fact-finding, rule-deduction and legal argumentation. As a result, austerity and rigour characterize the creation of personhood and its performance in court. An often invisible gap separates the human from the legal person representing her. The person is a cipher, a two-dimensional drawing or caricature placed on the three-dimensional fullness of face and body. It is not dissimilar to that between a richly coloured and finely detailed portrait and an outline drawing of the same person. The person is a cartoon-like figure, which, through abstraction and generalization, exaggerates certain features and misses others. Concrete humans have distinct desires, varying needs, incomparable histories. To judge conflicting claims and contrasting expectations, the law must make them formally comparable. It must remove them from their diverse contexts and place on a common space and time.29 For this to be done the individual characteristics that make us unique must be abstracted and suspended; facts and encounters, events and actions must be generalized so they can be ‘subsumed’ under the norm. The distance between legal person and individual takes the form of excess and lack. Excess: the law ascribes to the person a surplus of reason, self-control and calculation. The legal person like the ‘economic’ or ‘rational’ man of rational choice theory is an ‘abstraction from real people emphasising one side of human life – the ability to reason and calculate – at the expense of every social circumstance that actually brings individuals to reason and calculate in particular ways’.30 The ‘reasonable man’ is such a key figure in law because reason – excessive hyperbolic reason – has been turned into the ultimate mark of humanity. The trope of the ‘reasonable man’ on the ‘Clapham omnibus’ is a symbol for the person. This ‘man’ cannot go cruising on Clapham Common because body, senses and emotions do not belong to the realm of reason and must be bracketed or excluded. At the same time, this ‘man’ has a hypertrophied brain and access to a large set of data to make his perfect choices. The legal person is not just thin but anorexically skinny; real people are always ‘fat’, full of weaknesses, insecurities and flaws. Second, lack. The person lacks characteristics that make us human. The subject of legal and contractual rights stands at the centre of the universe and asks the law to enforce his entitlements without concern for ethics, sympathy, care for the other. If the legal person is an isolated and narcissistic subject that perceives the world as a hostile place to be either used or fended against through rights and contracts,

29 Costas Douzinas and Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics and Law (Harvester Wheatsheaf 1994) Chapter 6. 30 Alan Norrie, Crime, Reason and History (Weidenfeld and Nicolson 1993) 23.

What is the legal person? 45 (s)he is also disembodied, genderless, a strangely mutilated person. As Pierre Schlag puts it, ‘this emancipation of the self from its contexts ... is what enables it to be emancipated from all forces and influences other than law itself’.31 The abstract juridical legal person is a ‘metaphysical or calculating, self-interested being, conceived in an asocial way ... the law knew no real individuals, only their mystical abstractions’.32 Between lack and excess, the legal subject becomes a malleable vehicle. The legal system creates an intricate matrix of rights and duties, a grid for the combinations of norms and decisions. Legal persons are slotted into these preexisting places and as knots combining powers, entitlements and encumbrances. The gap facilitates the alliance between the technical legal person and the Christian-Kantian moralized personality. The legal person remains a fiction created by the law. The metaphysical person, after shedding its Christian sack-cloths, assumed the secular garments of Kantian dignity. In its new guise, it gradually breathed reason, will and morality into the persona endowing it with the characteristics of humanist personality. Like Dr Jekyll and Mr Hyde or Frankestein’s creature, the persona has two overlapping lives. Its everyday existence is lived in the annals of law, in courts, pleadings and case reports. Its more exalted part inhabits Church sermons, academic conferences, books and articles of liberal philosophers and the vernacular of dignity. The (legal) person is both a creation of law and a metaphysical guarantee of law’s respect for human dignity. As the next chapter argues, human rights consummated the marriage of the two. The gap between human self and legal person is evident everywhere. The person may be the legal mask for a single being, for a group, a corporation or for none, when foetuses, the dead or robots are given legal status. The central economic and moral function of legal personality makes the distinction between humans and non-humans ambiguous and changeable. However, the conferral of personhood to non-humans has obscured and diminished the protection of humans. Justice Black argued that the Fourteenth Amendment sought to protect discrimination by the states against classes or races … yet less than one-half of one per cent [of Fourteenth Amendment cases] invokes in it the protection of the negro race, and more than fifty per cent asked that its benefits be extended to corporations.33 Humans have to compete with corporations over their respective protections. Too frequently the extension of corporate constitutional rights is a zero sum game that diminishes the rights and powers of real individuals … Equality of constitutional rights plus an inequality of legislated and de facto powers leads inexorably to the supremacy of artificial over real persons.34

31 Pierre Schlag, The Enchantment of Reason (Duke University Press 1998) 127. 32 Ibid., 31. 33 Connecticut General Insurance Co. v. Johnson, 303 US 77 (1938) at 89–90 (Black dissenting). 34 Carl J. Mayer, ’Personalizing the Impersonal: Corporations and the Bill of Rights’ (1990) 41(3) Hastings Law Journal 577, 658.

46  Law, persons, rights Corporations have repeatedly used human rights law against the claims of humans.35 When the interests of legal and moral persons clash, the artifice often wins over his flesh-and-blood competitor.

Legal norms/legal masks Materially parsimonious but ideally profligate, liberal jurisprudence equates humanity with personality. James Griffin has recently argued that human rights support the functional needs of personhood. ‘Human rights have to do with a certain minimum – the minimum necessary for human agency [or personality]’.36 Persons deliberate, calculate, decide and act; human rights are ‘protections of this standing’. They promote not ‘human good or flourishing, but merely what personality needs to achieve “human status”’.37 To be a person is to be an agent, responsible for your choices and actions and accountable for their consequences. Those unable to choose are not morally or legally active and therefore not fully persons. These rights to personal flourishing are not accompanied however by the necessary material supports. Liberty ‘can be infringed only by another agent. If our options are narrowed by acts of nature or large-scale economic or social events not under human control, no one’s liberty is infringed’.38 Systemic hierarchies and class asymmetries, the main causes of poverty, inequality and injustice, are immune from the protections of personality. Agentic dignity is agnostic about the causes of real inequality. Based on this parsimonious conception of a life worth living – a life of Kantian dignity – most social and economic rights are deleted from the list. The rights to an ‘adequate standard of living’, to ‘distributive justice’, to ‘equal pay for equal work’, to ‘just and favourable remuneration’ or the ‘right to work’ do not meet the criteria of personality; they are confused and dubious. This scroogelike definition of personhood excludes those who do not belong to the ranks of the well-off. For the millions for whom the struggle for survival is the main expression of ‘normative agency’, the exalted principles of personhood offer basic subsistence and nothing more. The jurisprudential attacks on socialist principles are relentless. ‘Group rights’ do not exist because ‘moral persons are separate from each other ... collectivities are not moral persons’.39 They are, of course, legal persons and existed well before moral persons entered the canon. Rights should not refer to ‘unfounded desires but to truly grounded requirements of agency, the indispensable conditions that all agents must accept as necessary for action’.40

35 Anna Grear, Redirecting Human Rights: Facing the Challenge of Corporate Legal Humanity (Palgrave Macmillan 2010); ‘ “Framing the project” of international human rights law’ in Conor Gearty and Costas Douzinas (eds), Cambridge Companion to Human Rights Law (Cambridge University Press 2012) 17–35. 36 Griffin, op.cit., 187. 37 Ibid., 33. 38 Ibid., 161. 39 Nino, op.cit., 112. 40 Alan Gewirth, The Community of Rights (OUP 1996) 48.

What is the legal person? 47 This is a statement of the problem masquerading as its answer. Socio-political orders develop their own interpretation of the ‘truly grounded requirements of agency’ and use them to exclude those lacking. Slaves, colonials, women, ethnic, sexual and other minorities have been consistently treated as subhuman because assumed to be irrational, uncivilized or inferior. Today immigrants, refugees, the unemployed and the poor are outside the pale of humanity because they are economically redundant. ‘Humanity’ is a virtual category, being ‘human’ an abstract predication of the real self. The ‘I want’ of the subject of rights becomes ‘I can’ only if a series of empirical preconditions external to legal speech act are met. The distance between normative capacity and real-life achievement is the same as that between the recognition of the right to property and the ability of a nurse to buy a flat in London. Liberalism places the legal person in a logical space of norms, rules and commandments. Legal rules populate a parallel world, a normative realm floating above the empirical universe. General and abstract norms define, categorize and regulate types of action and groups of people. For liberal jurisprudence, the normative world is internally coherent, logically consistent, systemically closed. Each new decision or norm emerges harmoniously from the extant legal materials through reasoned argumentation or analogical extension. Universal ideals, norms and principles endow the law with systemic closure. Natural law discovers its organizing ideals in the cosmic order, the divine word or the rationally diagnosed needs of life. For positivism, the law is a hermetically sealed, pyramid-like system of norms. At its basis, a grundnorm or rule of recognition, animates the edifice; decisions are reached through the subsumption of inferior to superior norms. Finally, normative jurisprudence seeks the coherence and closure of the system in a small number of principles and values, such as ‘equal respect and concern’, the ‘integrity’ of a legal system or of the rule of recognition. Its ideological bias is evident in the claim that these principles should present the community in its ‘best possible light’, ensuring that the morally informed interpretation will arrives at the one right answer even in the hardest of court cases. The law floats above the world. Its internal consistency and rational closure puts it at a considerable distance from messy, antagonistic and contradictory everydayness. The normative realm enjoys inner calm; the argumentative skills of its officers and the interpretative acumen of its scholars ensure its smooth almost organic development. But people do not live in a monastic order nor do they organize their lives according to the expectations of an alien, unknown and unknowable universe. The law needs therefore a point of contact with concrete human activity. The legal person is precisely this point of contact: a creation of the legal order and the indispensable companion and facilitator of normative abstraction. It mediates between the empire of norms and real people. As a personification, it thins the abstraction of the rule and creates the double of the empirical human allowing the law to capture the world. If the law is a function for humanity, the indispensable companion of man as a relational being, the legal person is a function for the law, the meeting point of entities and norms.

48  Law, persons, rights Legal masks sanctify the law and reify humans. Judicial practice has always been a dramatic performance. It invokes higher authority, channels facts into fixed styles of reasoning and brackets bodies and emotions. These styles may be aesthetically pleasing and persuasive but have limited corroborative value. The translation from concrete to abstract and the theatricality of performance give a facade of objectivity to the law and protect the legitimacy of the administration of justice and the integrity of judges. Norms not facts, persons not humans dominate legal education, legal practice and litigation. Judges often answer criticisms about the justice of a decision by claiming that ‘the law decided and they just followed’ or that ‘we have a government of laws and not of men’. This is an implicit recognition that the ruling may have been wrong. The judicial mask, Justitia’s blindfold turns the judge into the mouthpiece of law deflecting personal responsibility. Masks of all types help legitimize the law, its officers and their decisions. As Walter Wayrauch concludes, ‘the conceptual masks of the present legal system reflect the values of the powerful, while the factual approach does not’.41 This insight into the artificial character of the legal process cannot be widely shared without undermining the legitimizing function of law. These are law’s ‘noble lies’.42 Placing masks on people, turning them into legal persons, works in a similar way. Masks dehumanize, set aside the individual characteristics. They disguise implicit or explicit value judgements by assigning general and comparable characteristics and statuses. By reducing people to comparable legal categories they set aside concrete needs, desires and history, treating people as ciphers.43 The body disappears, emotions become irrelevant if not otiose. Appellate processes deal only with legal questions and neglect the limited factual and human considerations of the first instance court. The abstraction of legal argumentation acts as subtraction: it negates and removes the human aspects of the litigants and the dispute. John Noonan in a classic work has shown how law masks the humanity of participants.44 Examining cases involving slavery, he concludes that the concept of property masked the humanity of slaves by excluding information about their personal circumstances; had it been introduced it would have been found ‘irrelevant’. For judges ‘any effort to look behind the scheme of relevance provided by legal masks could involve a challenge to their conception of law, importing politics into legal processes and threatening society as he perceives it’.45 A more recent illustration comes from two cases in the Greek Conseil d’Etat during the economic crisis of the 2000s brought about by austerity policies.46 It concerned the constitutionality of the two sets of austerity programmes imposed

41 Walter Otto Weyrauch, ‘Law as Mask – Legal Ritual and Relevance’ (1978) 66(4) California Law Review 699, 720. 42 Ibid.,725. 43 Douzinas and Warrington, op.cit., Chapters 3 and 4. 44 John Noonan, Persons and Masks of the Law – Cardozo, Holmes, Jefferson and Wythe as Makers of the Masks (University of California Press 1976). 45 Weyrauch, op.cit., 710. 46 Cases 668/2012 and 2307/2014 Greek Conseil d’Etat.

What is the legal person? 49 by the Troika of IMF, EU and ECB on the Greek government. They led to large reductions in the salaries and pensions of civil servants and a violation of most social and economic rights guaranteed by the Constitution, the European Social Charter and a host of international treaties. We will examine these and other cases in greater detail in the Epilogue. It suffices to say here that the court ruled that, despite the extensive violations, austerity was constitutionally permitted because of the ‘superior necessity’ of fiscal adjustment and reduction of the deficit. Instead of discussing the serious plight of the plaintiffs and thousands like them, many of whom lost half of their income or their jobs, the court turned them into members of wide groups of people and compared them with the equally abstract ideas of public interest and necessity. The litigants were dealt with not as suffering humans but as avatars, a bundle of legal relations. The outcome of such an asymmetrical contest was given. In a documentary about the plight of undocumented or sans papiers immigrants living an underground life in London, Jami, who sleeps rough in parks, addresses people like us, in our comfortable homes who keep proclaiming Human rights, human rights. What’s the difference between me and them (the people with papers?). They are human like me. People like me have two hands, two eyes and two legs. What’s the difference between me and them? Human rights, human rights, but where are the human rights for the asylum seekers?47 If, as liberal philosophy claims, human rights belong to humans on account of their bare humanity and not of membership of smaller categories such as nation, state or class, Jami and his friends should have at least the minimum consolations of humanity. They have no ‘human’ rights. Jami’s accusation shows that human rights do not ‘belong’ to humans; they construct humans on a spectrum between full humanity, lesser humanity and the inhuman.

47 John Domokos and Diane Taylor, ‘Asylum Seekers: Britain’s Shadow People’, Guardian (London 16 March 2009) accessed 24 August 2018.

4 Subject, individual, human

The subjected subject The subject is the philosophical companion of the person. These two aspects of the human have different genealogies but similar form. The subject developed out of the paradoxical combination of subjectum and subjectus, two etymologically related but semantically opposed terms. The Latin subjectum translated the Greek hypokeimenon, what lies under an entity, the substratum or foundation, and by extension the essence of a thing. The subject is endowed with reason, freedom and morality. The essence of the subject is to be autonomous, to make rational choices, to act morally and accept responsibility for its actions. The subjectus lies at the other end of the spectrum. It signifies subjection, subjugation, submission. It exists in a relationship of command and obedience, of inferiority to superiors. The term ‘subject’ is the modern foundation of being; it combines freedom with subordination and voluntary with unwilling submission. This strange paradox is intimately linked with the law of persons and its Christian transformation. The subjecti appeared first in Rome. They were the nonRoman members of the Empire ruled by the jus gentium. The medieval subjecti were a development from the subditi. The sub-ditus was ‘spoken under’, submitted to the ditio or command of the King, ‘an authority expressed in his orders and itself legitimated by the Word of another Sovereign (the Lord God)’.1 In a parallel development, the object of a debate or legal disputation was called subjectus juris, a term that eventually came to mean the enunciator of (legal) speech. These developments coincided broadly with the transformation of the Roman legal persona into the Christian religious-moral person. Homo and persona merged with the theology of body and soul giving birth to the subject of metaphysics. As Peter Goodrich put it, ‘the unity of the divinity – the uniqueness of the one God, and the correlative singularity of the sovereign – was mirrored by the unitary identity of the subjects of law’.2 This pyramidal submission to God

  1 Etienne Balibar, ‘Citizen Subject’ in E. Cadava, P. Connor and J.L. Nancy (eds), Who Comes after the Subject? (Routledge 1991) 36.   2 Peter Goodrich, ‘Social Science and the Displacement of Law’ (1998) 32(2) Law and Society Review 473, 476.

Subject, individual, human 51 and feudal inter-dependence turned the subditi into a hierarchically structured body politic. The subject, this centre of reason, will and freedom, started its career as subjectus, created by and subjected to the power of law, brought to life and shaped by legal protocols. It became subjectum, the ground of metaphysics later in the work of Kant who projected his transcendental subject back onto the Cartesian text. The wider meaning appeared in the seventeenth century and was initially a synonym for persona. Kant’s Critiques raised the subject into the ground of consciousness and conscience and turned it into the foundation and measure of philosophy. Emerging out of the legal womb, the subject confirmed the mastery of humanity over the world, turning theology into anthropology, eschatology into philosophy of history, the imago into Deus. The double determination of creator and created, free and subjected, permeates the life of the subject. It indicates that the (philosophical) subject comes after the (legal) person historically and follows its structure ontologically. The political history of the subjectus precedes the philosophical trajectory of subjectum.3 The subject is the persona writ large, the legal person plus. It is a creation of law but no longer just of state or ecclesiastical law. Diverse familial, ethical and religious legalities organize the moral economy of subjectivity. At the basis of the metaphysical subjectivization lies Descartes’s subjectus, a loan from theology and law. Louis Althusser agrees: ‘The category of the subject appears above all with the rise of legal ideology which borrowed the category of the “subject in law” to make an ideological notion: man is by nature subject’.4

The deconstruction of subjectivity Modern philosophy understands that the subject’s freedom is a gift of the law. Yet jurisprudence neglects law’s contribution to the constitution of subjectivity and celebrates human reason and will as the undisputed sources of self. Social and critical theory has challenged the belief in a fully conscious, autonomous and selftransparent subjectivity. If the self is socially embedded and materially embodied, its presentation as an isle or a ship on a tranquil voyage is problematic. Indeed, most philosophy since Hegel and social theory since Durkheim, Marx and Weber have qualified the ideal of the free and free-floating subject. Freedom flourishes in the interstices of physical, social and psychological conditioning. Epistemically, freedom is the realization of necessity, of those structures and factors that determine our choices and actions. We can identify four such relevant areas of conditioning: 1 2

The subject is inter-subjective, it emerges out of thick social relations. The subject is embodied, its rational part is inscribed in bodily and emotional investments.

  3 Balibar, op.cit., 33–57; and Etienne Balibar, ‘Subjection and Subjectivation’ in Joan Copjec (ed.), Supposing the Subject (Verso 1994) 1–14; ‘ “The Rights of Man” and the “Rights of the Citizen” ’ in Masses, Classes, Ideas (Routledge 1994) 39–59.   4 Louis Althusser, ‘Ideology and Ideological State Apparatuses’, in Lenin and Philosophy and Other Essays (trans. B. Brewster, Verso 1971) 160.

52  Law, persons, rights 3 4

The subject has no knowledge or control over powerful unconscious forces which drive behaviour. The subject is shaped by and reacts to relations of power.

 1. Inter-subjectivity A first dialectical approach, inaugurated by Hegel and developed by psychoanalysis and relational social theory, argues that self and identity develop in thick, often invisible, relations with others and the Big Other of social institutions and law. Personality, subjectivity and individuality are particular aspects of the relational constitution of self. Selves are not stable and isolated entities, which act according to freely arranged motives and intentions. On the contrary, self is created in relations with others, the subject is always inter-subjective. Identities are constructed in an ongoing dialogue and struggle for recognition, in which others (people and institutions) acknowledge characteristics, attributes and traits helping create our sense of self. Identity emerges out of this conversation and struggle, which follows the dialectic of desire. Hegel’s phenomenology was crucial in this development. Hegel’s basic idea is simple. The self is both separate from and dependent upon the external world. Dependence on the not-I, the object world and others makes the self realize that she is not complete but lacking, driven by desire. Life is a continuous struggle to overcome the foreignness of the other subject or of the object. A first type of recognition treats the other as inferior. The master does not recognize the slave whose recognition is forced. This one-way recognition is deficient for the master, since the slave is not considered a worthy partner. Only mutual recognition works. I must be recognized by someone I consider intelligent, successful or good to acquire these characteristics reflected back onto me in her desire. I cannot change myself therefore without changing the other and changes in the other who recognizes me change me too. The self-conscious subject, created through the other’s desire is an amalgam of self and otherness, of sameness and difference. Identity is therefore dynamic, always on the move, and in a permanent dialogue with others. Significant others are the primary interlocutors. The lover identifies himself through the characteristics and idiosyncrasies of the loved one and finds the other in himself and himself in the lover. I recognize the loved one in her concrete specificity, for who she is, warts and all. This continuous negotiation with other people is mediated by objects and by social institutions. Law offers recognition for what we share with others, the minimum similarity of humanity beneath the myriad differentiations that make us unique. When I say to a policeman or an employer ‘You cannot do this, it is against my rights’, I make three related points. First, in a rule of law system, the law creates and protects equal rights for all and does not allow discrimination. Second, my rights make me worthy of respect; they confirm that, like others, I have free will, moral autonomy and responsibility. Finally, legal recognition leads to selfrespect, when I realize that I too am capable of moral action and that, like others, I am an end in myself. Human dignity, respect for others and self-respect are linked with the ability to make moral judgements and to raise legal claims. Legal rights recognize the universality of humanity. Social and economic rights, on the

Subject, individual, human 53 other hand, acknowledge the differences, which add concrete characteristics to self and make it a rich, complicated, ‘thick’ personality. The differentiating characteristics of class, gender, ethnicity or sexuality contribute towards the material self. The distance between abstract human nature and the concrete characteristics of subaltern groups justifies the demand for differential treatment.5 The struggle for recognition continues throughout life. Our identity is always negotiated in encounters with others – from intimates, friends and colleagues to strangers in the street. The individual struggle for recognition is not over even after law’s acceptance of group rights and claims to difference. The main elements of identity refer to a huge variety of positions, beliefs and traits which have very little relationship with the shared dignity of legal rights and cannot be captured by the difference-promoting extensions of human rights. The self is like a world: a unique mixture of past events, encounters with others, beliefs, feelings and commitments, conscious and unconscious desires and drives. My identity is the shifting articulation of these disparate elements which combine in various ways sometimes without any particular hierarchy at others under the direction of a dominant element. Concrete identities are constructed in psychological, social and political contexts; in psychoanalytical terms, they are the outcome of a situated desire of the other. In this sense, claims to differentiation are initially constructed outside of the equalizing legal logic. Identity does not exist before its involvement with others. The subject is constantly (re)created in response to the desire and recognition of others. Often these conversations fail. As Charles Taylor puts it, ‘what has come about with the modern age is not the need for recognition but the conditions in which the attempt to be recognized can fail’.6 This failure may be the result of the withholding of recognition by others or the outcome of inevitable and avoidable misrecognitions by legal and social institutions. The law may recognize aspects of gender, sexuality or ethnicity through socio-economic rights; it may ban discrimination on these grounds. But it necessarily fails to recognize a full and concrete identity since it can only deal with universalities and generalities. The politics of difference and multiculturalism remain wedded to general categories. As a result, anti-discrimination law is both necessary and inadequate. The law cannot confer what others deny. The idea that the subject is the centre of the world and the person is in full control of himself turns out to be a case of delusion de grandeur, a sad and deluded megalomania.

 2. Embodiment Critical theory and the ‘hermeneutics of suspicion’7 undermined the belief in human omnipotence. Against the claims that humanity is the master of the disenchanted world with access to absolute knowledge, attention has moved to

  5 Costas Douzinas, The End of Human Rights (Hart 2000) Chapters 10 and 11.  6 Charles Taylor, ‘The Politics of Recognition’ in Charles Taylor et al., Multiculturalism: Examining the Politics of Recognition (ed. Amy Gutmann, Princeton University Press) 35.   7 Alison Scott-Bauman, Ricoeur and the Hermeneutics of Suspicion (Continuum 2011).

54  Law, persons, rights our cognitive, perceptual and moral finitude. Radical and insuperable limits to our knowledge and control over reality are encountered everywhere. Against the Cartesian project, against Hegel’s claim of access to absolute knowledge, against possessive individualism, human knowledge and power encounter radical limits. If humanism is the ability of man to be sovereign over himself and the world, the reminders of finitude have seriously undermined these claims. Linguistics, structuralism, anthropology, phenomenology and psychoanalysis have argued convincingly that social reality is indifferent to claims of the subject’s mastery. Psychoanalysis explains that a level of mental life outside consciousness affects us. Feminism, critical race theory, post-colonialist and queer theory attack the belief in the power of reason and emphasize the centrality of body, affect, gender and sexuality.8 According to Heidegger, recognition of finitude is the starting point of philosophy and of a thinking that abandons the metaphysics of subjective mastery. This ‘hermeneutics of suspicion’ attacks the common-sense view according to which social relations are natural, normal or transparent. Surface encounters and traits are linked to deeper structures. The linguistic turn came first. Statements, propositions, everyday speech depend on the deep encoding of grammar and syntax. The twentieth century celebrated the aesthetic virtuosity of modernism, the linguistic experimentation of literature, the sexual tensions of a Picasso or the fertile virtuosity of a Joyce. But those groundbreaking moves were facilitated and conditioned by the limited combinatory of the underlying linguistic grammar. The discovery of the constrained character of freedom soon passed from language to systems of kinship, to politics, ideas and the dialectics of desire undermining the common-sense view of the world. Beliefs, desires and ideologies are conditioned by powers and forces outside our control. As a result, critical theory approaches the subject as fragmented rather than whole, vulnerable rather than masterful, its unity dissolved. These theoretical and practical developments qualified the dominant Marxist view of ideology as ‘false consciousness’. It was replaced by a more complex and sophisticated approach. Ideology is the imaginary way we relate to our real conditions of existence. The imaginary order helps us develop a positive sense of self and community, which protects from the chaos and failures of existence. But if there is no ideological ‘truth’ but only diverse perspectives, the point is not to replace ideology with ‘scientific objectivity’ but to uncover the foundational moves that associate each perspective with a particular set of class, gender or race interests. We make sense of life through the lens of ideology, which can be illuminated but not eliminated. There is no way out of ideology; legal ideology forms a central component. One of the great tricks of dominant ideology is to become invisible by being associated with ‘truth’. Its demystification does not and cannot abandon ideology but can re-orientate its direction. The theoretical deconstruction of dominant ideologies was complemented by the emergence of social movements and struggles. Feminist, critical race,

  8 Michael Hardt and Antonio Negri, Multitude (Hamish Hamilton 2004).

Subject, individual, human 55 post- and de-colonial, and anti-globalization campaigns attacked the orders of class, gender, race and sexuality. These orders distribute bodies and people into positions of subordination and subjection. They present the asymmetries of force and power as natural and apolitical; power and wealth follow, we are told, talent and effort rather than the handicaps of birth, class and social status. The new politics of identity attacked the belief in the power of reason to rule the world and emphasized the centrality of emotions and passions, the body, gender and sexuality which help develop practices of individual and collective resistance.9 Beliefs and material practices, they argue, are over-determined by forces outside our control. Hannah Arendt and the Frankfurt School’s ‘dialectics of the enlightenment’ argued persuasively that the reign of individualism may lead to totalitarianism. Reason has emancipatory aspects but can also be used for domination. If the world becomes an object of mastery, control and exploitation, if reason is dedicated to manipulation, the possibility of human-made disaster enters history. The objectification and exploitation of the natural world leads to the ecological catastrophe; of the social world, to social engineering and genocide; of the mind, to the control of the psyche through the mass media, propaganda and the society of the spectacle. Individualism unleashes the inhuman: the dream of a totally enlightened society of individuals can be realized only in a totally administered society.

 3. The unconscious Jurisprudence celebrates the achievements of personality and agency and links them to the powers of reason. Psychoanalytical theory on the other hand emphasizes the non-intentional and non-conscious grounds of human activity. The pressures of drive, desire and the commandments of the superego do not pass through the filter of a reflecting commanding mind. The pre-moderns called the external determinants of life fate or providence; the moderns, socioeconomic conditions. The psychoanalytical theme of the unconscious adds a level of mental life outside our control, which affects action and is manifested in symptoms and slips, dreams and nightmares, repressed traumas and screened memories. An unwelcome stranger inhabits the midst of self. In this sense, we are strangers to ourselves.10 Dimensions of reality irreducibly antithetical to the subject’s mastery and not open to her control make the idea of a subject transparent to itself naïve at best and sinister at worst. John Gray latches on to this contradiction: A person is someone who believes that she authors her own life through her choices. But that is not the way most humans have lived ... we are not

  9 Costas Douzinas, Philosophy and Resistance in the Crisis (Polity 2013). 10 Julia Kristeva, Strangers to Ourselves (Columbia University Press 1994).

56  Law, persons, rights authors of our lives, we are not even part-authors of the events that mark us deeply, nearly everything that is most important in our lives is unchosen.11 Legal philosopher Joseph Vining agrees: Legal Individualism, has nothing to do with the concern for the dignity, happiness or importance of the individual. It defines rather a particular way of populating our thought with living units of reference, no more universal or basic than the various personifications of wind or water which have lost their vivid meaning.12 Psychoanalysis opens a vista for re-examining agency and subjectivity from a less arrogant perspective. We will discuss further the import of psychoanalysis on law and rights in Chapter 8.

 4. Biopower The emergence of psychoanalytically informed theory coincided with a wider interest in embodiment. The phenomenology of perception and critical social theory focuses on bodily encounters and lived experience, on the lives of concrete material selves. Bodily positioning, comportment and behaviour is involved in constitutive relations with the other both in perception and language. A similar intuition was followed by Michel Foucault and the post-Foucaultians. Power constitutes subjects by investing on bodies. Bio-politics, the exercise of power on life processes, uses the body as a main conduit for its operations. Subjects are made through the disciplining and control of bodies. But subjects resist, bodily contours retort, reply and redirect the demands of power.13 Corporeal resistance produces subjectivity not in isolated ways but in dynamic of resistances with other bodies. Subjectivity is created in resistance and struggle.14 The subject is now approached as fragmented rather than whole, vulnerable rather than masterful, its unity dissolved in multiple and different identities, gender, ethnic, religious, sexual etc. Cultural theory revels in a conception of self as a collection of subject positions, of different and even conflicting attitudes to the world and others. The demonic ‘my name is legion’ is now celebrated as the achievement of a life of rootlessness, continuous retraining and the acquisition of serial multiple identities. This multiplication, fragility and transformation, the loss of a strong and permanent sense of self is the collateral damage of late modernity. Self has been emancipated fully from social bonds and hierarchies and the superstitions of religion and ideology. Our identity has become a narrative construction that precariously only keeps the subject together. At the same time,

11 John Gray, Straw Dogs: Thoughts on Humans and Other Animals (Granta 2002) 58, 109. 12 Joseph Vining, Legal Identity (Yale University Press 1978) 2. 13 Douzinas, Philosophy and Resistance, op.cit. 14 Michael Hardt and Antonio Negri, Commonwealth (Harvard University Press 2011).

Subject, individual, human 57 this freed and multiple self is interpreted as a serious psychological malfunction, exemplified in multiple personality disorder. It is precisely the attempt to destroy comprehensively the supports of self, his connections, relations and bonds with the past as well as the hopes and dreams for the future that make Nazi concentration camps such an inhuman nightmare. We can conclude that an excess or remainder resides and always did in subjectivity making it impossible to be fully transparent or under rational control. The claim of jurisprudence that the person is the rational master of her life; the collapse of the variable legal personas into the moral person of metaphysics; the abandonment of bodily needs for the consolations of the soul; finally, the gap between material life and the parallel ethereal world of norms, rules and legal relations are shown for what they are: imaginary constructions of identity, of life and relations with others; in other words, they are the highly effective operation of ideology.

The individual between independence and autonomy Few societies in history and none before capitalism considered the individual as the main building block of the social bond. For most societies still today, collective organization and the values of being together determine the way individuals perceive their place in the world. The move from the classical polis to the social contract and the ideology of human rights took a long time. As Louis Dumont argued in a classical work, individualism came first and the individual followed as a creation of ideology.15 The individual is double: first, the speaking desiring and thinking subject, an empirical specimen of the human species and, second, an independent, autonomous, non-social moral being, the bearer of the ultimate values of contemporary humanism. Dumont considers individual independence and autonomy central elements of the ideology of individualism. In this sense, Dumont’s analysis of individualism matches our genealogy of person and subject. The individual brings together the two trajectories, subjecting both person and subject to the functional and ideological needs of capitalism. How did the West move from the glory that was Greece, an organic and hierarchical community, to the current domination of individual (will)? The Athenian or Roman citizen was a political animal, someone who lives in the polis and flourishes in its collective ethos. He accepts his position in the strict social hierarchy and obeys the laws and customs which emerge out of the history and ethos of the place. The initial push that led from holism to individualism was given by religious dissidents who, in ritual practice or philosophical contemplation, denied the world around them. The dissident is someone who looked for ultimate truth in himself, and stands at a distance from society seen as something without reality. The discovery of self freed the dissident from bonds of life with others. The renouncers left the world to become exiles, saints or heretics. This exodus

15 Louis Dumont, Essays on Individualism: Modern Ideology in Anthropological Perspective (University of Chicago Press 1992).

58  Law, persons, rights allowed them to discover truth in an inward turn accompanied by an intimate and unmediated link with God. As the Protestant theologian Ernst Troelsch put it, ‘man is an individual-in-relation-to-God’ therefore someone outside the world.16 This attitude united Cynics and Stoics with heretics and outsiders and was revived by Rousseau, Calvin and the Russian anarchists. The Stylites, devout Christian monks and hermits, were a key link. They renounced and condemned the world living on the top of a stylus or pillar, thus helping the historical move from the discipline of community to the anarchy of the individual. The Christian becomes individualized in his intimate relationship to God. This inner link founds both absolute individualism and absolute universalism; the soul acquires its value in its double relation to God and to human society. Calvin’s theocratic rule of Geneva brought this trend to its rational completion. The secular element disappeared and God-driven individualism became the ultimate value and telos of community and humanity. The Christian in direct contact with his God is in the world but not of the world. They are God’s elect who become his representatives and disciples on earth. Their grace and dedication transferred the King’s double body onto ordinary subjects bringing together flesh and spirit in their humble body. They are both subjected to God’s will and elevated to the status of divine companions. Subjection and elevation helped transfer individualism from religious devotion to secular matters. The transcendent became incarnate, the beyond embodied in the here and now, the will of God embedded onto human will. When eventually God retired from the world and left it to the whims of Caesar, the two cycles came together. Individualism helped give birth to the individual. The dissident and renouncer of the communal and relational world became the free individual, the foundation and support of capitalism. The natural man of Hobbes or Locke represents this modern individual who exists in a social void. Man develops his aptitudes, desires and projects before entry into society, which is the outcome of the free contractual agreement of these noble savages. The holder of ultimate power that emerges from the collective compact posits the laws, which are transformed from organic emanations of collective normativity into acts of positive will. The legislator, monarch or assembly of people, is the modern heir to God. All politically significant decisions, including class hierarchy, must be clothed in the real or putative consent of the people. This is why social contract theory often refers to two compacts. The first initiates social co-habitation; the second is a compact of subjection giving nominal consent to existing concentrations of power and wealth. The ideology of individualism finally triumphed with human rights, which turned the individual into the reigning principle of social organization. But the contract is not there in order to baptise the legitimacy of government in the consent of the people. It is a heuristic device asserting that existing governments are legitimate because they are based on those notional agreements. ‘The aim of the exercise is rather

16 Quoted in ibid. at 27.

Subject, individual, human 59 to undercut the reasons for rebellion being all too irresponsibly urged by confessional zealots’.17 The modern individual is both a unique and unrepeatable monad and similar with others, someone singular and a unit of measurement. Absolute uniqueness and similarity with others are the foundation of the sense of self. Individualism is the liberal ideology of modernity par excellence. It claims that the individual can be fully freed only if a radical break with tradition and religious truths is carried out. ‘The fundamental assumption of modernity’, writes Daniel Bell, ‘the thread that has run through Western civilisation since the sixteenth century, is that the social unit of society is not the group, the guild, the tribe but the person’.18 The liberal individual is autarchic, self-sufficient. He adopts a utilitarian and instrumental position towards the world and uses rights to assert his interests, dignity and equality. Rights are the legal form of individualism, in the same way that the market is its economic and perspectivism its artistic form. Professional vocations and personal roles accompanied this strong conception of self. Important lifelong commitments provided the backbone of a decent life and professionalism. They were based on the values of honesty, service, knowledge, commitment, pride and perfection. These were accompanied by personal commitments exemplified by the strict loving parent, the committed husband, the faithful lover, the idealist campaigner or the committed revolutionary. These lifelong roles and characters helped ameliorate the consequences of capitalist exploitation, alienation and inequality. As Cornelius Castoriadis argued, capitalism adopted from previous periods the anthropological types of the incorruptible judge, the honest Weberian civil servant, the dedicated teacher, the honest professional or the skilled and proud worker. Capitalism created only one new role, that of the entrepreneur. In late capitalism, the financial speculator has eclipsed entrepreneurship, a role characterized by the lack of anchoring in any spatial or temporal location and experience.19 Having a permanent job and planning life has become almost impossible. Youth unemployment, flexible, alternating jobs, zero hours contracts and precarious work have become the order of the day. Work has been detached from the vocations, values and commitments that sustained it in the past. Liberalism rebels against tradition, against social impediments or personal prejudices that restrict or limit endeavour. It promises individual emancipation from social determinations and impositions. It is both impossible and destructive. Impossible because we are all born in a family, neighbourhood, city and nation and receive our initial values, beliefs and understandings from our intimate environment. These pre-judgements or prejudices, the initial turning to the world, as Hans-Georg Gadamer calls them, accompany us throughout life.20 Destructive because if it were to be enforced it would destroy the foundations

17 Charles Taylor, A Secular Age (Harvard University Press 2007) 160. 18 Daniel Bell, The Cultural Contradictions of Capitalism (Basic Books Inc. 1978) 16. 19 Cornelius Castoriadis, La montée de l’Insignificance (Seuil 1996) 68. 20 Hans-Georg Gadamer, Truth and Method (Bloomsbury 2013).

60  Law, persons, rights of the social bond. A self comes to existence and survives in relations with others. All subjects are inter-subjective. The lifelong struggle for recognition that creates identity makes the other part of self and self integral in the identity of the other. Membership of family, professional or other social groups is accompanied by moral and epistemic commitments and belongings. Our sense of self is the outcome of both contingency and necessity. No one chooses to be born in the family, time or place they find themselves. As Sophocles’ Oedipus exclaims in desperation, ‘I would prefer not to have been born’. Modernity has turned the classical tragic despair into a legal farce. An Indian recently sued his parents for bringing him to life without his consent. Yet our contingent thrownness in a place and time leads to conditioning and commitments, which are both unchosen and indispensable for the creation of self. Belonging to place and time, the result of natality, is not an optional add-on to a pre-existing self. The encumbrances of birth and education are integral parts of identity, they form our symbolical limbs and organs. They can be altered to a certain extent through conscious action but cannot be stripped away to reveal a naked self. To be human is to occupy a specific place in a set of social relations, to be literally a cosmos. Self-as-cosmos means that we are both unique and part of a web of relations with others. Each one is a point of link and condensation of past events, encounters, people, desires, dreams, hopes and disappointments. Each one is unique because no one else has the same combination of past experiences and future aspirations. At the same time, my cosmos exists and continuously changes through the interpenetration and twining with the world of others, whose own uniqueness has contributed towards my singular cosmos. Nazi concentration camps were such an inhuman nightmare because, before killing people, they tried to destroy comprehensively connections, relations and bonds with the past and hopes for the future. To lose your unique space in the web of social relations is to lose self and become an outcast. In the pre-modern world, this place was not static but it was a certain point on a journey with set goals; to move through life is to make progress [...] towards a given end. Thus a completed and fulfilled life is an achievement and death is the point at which someone can be judged.21 Poststructuralist theory revels in a conception of self as a collection of subject positions, of different and even conflicting attitudes to the world and others. A life of nomadic rootlessness, lack of professional security and continuous retraining leads to the acquisition of multiple identities. This multiplication, fragility and transformation, the loss of a strong sense of self is seen as a great achievement. Self has been allegedly emancipated from social bonds and hierarchies and the superstitions of religion and ideology. At the same time, this freed and multiple self is still seen by an older tradition as a serious psychological

21 Alasdair MacIntyre, After Virtue (Bloomsbury 2013) 39.

Subject, individual, human 61 malfunction, exemplified in multiple personality disorders. The liberal prejudice against prejudice leads to the gradual but inexorable weakening and rejection of remaining communal belongings, morals or values and their replacement by freedoms, rights and law, their nastier chaperon. Virtue, value and morality are individual attributes better kept at home and exercised with discretion on the Sabbath. Freedom is liberation from external fetters or impediments, whether political or moral – hierarchical organization of political power, radical religious, ideological or moral rules. Freedom as independence means that man devotes himself to his own projects, progress and destiny. The seeds of a society based on the promotion of individual desire are thus sown. In close collaboration with laissez-faire capitalism, liberalism rejects and gradually weakens the remaining communal morals and values and replaces them with rights and law. Religion, family, village and communal life, sexuality, parenthood is removed from their habitus and is replaced by individual rights and strict criminal laws. Once we are free of moral prejudices, we see crimes everywhere. At the same time, the devaluation of ethics and the good led to the privatization of morality. Aligned with Christian moralism, private morality became identified with questions of sexual and familial propriety and promise-keeping, the two preoccupations of Protestant capitalism. Morality moved from the market place to the bedroom and the trading floor and lost any claim to offer a wider perspective on the world. A distinction must be made, however. Modernity sees the emergence of two types of freedom: first, freedom as independence from external fetters, the unfettered freedom of individualism; second, freedom as autonomy: the self (autos) giving itself the law (nomos), the individual as foundation of laws, values and norms. Modern societies are riven with conflicts between individualism and autonomy. Independence as natural freedom or freedom without rules is the opposite of autonomy. Autonomy is self-rule, following rules individuals set themselves privately or collectively; and it is contrasted not with dependence but with heteronomy. Autonomy is the value of democracy. For the classics, freedom was collective participation in public affairs and direct ruling; it was public and collective. Using the term sovereignty anachronistically, it is not wrong to say that in Greece or Rome it belonged to the citizens, who exercised it through their presence and not through representatives or mandated agents. In modernity, political sovereignty has been bifurcated. On the one hand, popular sovereignty is exercised notionally in periodic elections. The political input of the individual is restricted largely to the few seconds one gets into the polling booth and places the cross on the ballot paper. Political self-rule is exercised at fixed and rare intervals but people consider themselves free because they are independent of others, but not of socioeconomic conditions, in their private life. Political sovereignty, however, belongs to the executive, which holds the important powers and privileges and, according to Carl Schmitt’s felicitous definition, can impose the state of exception as its highest manifestation. From Thomas Hobbes to Benjamin Constant, liberal ideology insisted that the freedom of the moderns is about independence rather than autonomy, private rather than public. The freedom of the classical was compatible with the subjection of the individual

62  Law, persons, rights to the authority of community and the strict social hierarchy that excluded the larger part of humanity from citizenship. In modernity, popular sovereignty is exercised rarely but the individual thinks himself as free because he is independent in his private life. As Benjamin Constant put it, the freedom of the moderns means private independence, the peaceful enjoyment of wealth. These differing conceptions lead to disagreements as to the content and the agent of rights. For some, rights promote political autonomy and democracy. For others, rights lead to the satisfaction of individual desire. Finally, some approach rights as tools of resistance. Similarly, classical civil and political rights were a freedom or faculty of the individual, a way of acting and changing the world. In the twenty-first century, rights have become defences and protections for victims. The natural rights movement resisted dominant culture; its human rights heirs end up often as its supporting pillar.

The ‘human’ of human rights The latest mutation of the homo duplex took place in the eighteenth-century revolutionary documents. They distinguished between the universal ‘man’ of natural and, later, human rights and the national citizen. Citizenship connotes the political relationship between an individual and organized state power; in this sense it is a modern sub-category of the legal person. As Emile Durkheim accurately predicted a century later, the rights of man have become the modern religion. They co-opt its affective power and retain the theological metaphysics of ‘sacred’ life while claiming at the same time to be the most secular of institutions. Rights both acknowledge and conceal the distance between universal equality and empirical inequality domination and oppression, between an ideal humanity and material existence. An imaginary humanity, embodiment of universal values, replaces transcendence and strives to achieve its essence in history against its fallen, unreconstructed, uncivilized part. Rights act like sacraments, rites of passage from fallen existence to the heaven of full humanity, a promise already and always deferred. The person reaches her humanity by acquiring political rights of citizenship, which guarantee her admission to the universal human nature by excluding from that status others. The alien is the gap between man and citizen. As Hannah Arendt put it, it seems that ‘a man who is nothing but a man has lost the very qualities which make it possible for other people to treat him as a fellow man’.22 He is bare life. For Arendt, the ‘right to have rights’ is a right to public recognition and significance. It is an entitlement to participate in public life and political action, to express your opinions and have them counted.23 Only citizenship, being a member of the community, can guarantee this right. Legal personality, the outward manifestation and performance of belonging, organizes what counts as a worthy life. Recalling the classical distinction between demosios (of

22 Hannah Arendt, The Origins of Totalitarianism (Harcourt Brace & Co. 1973) 300. 23 Ibid., 296–7.

Subject, individual, human 63 the demos) and idiotikos (private), Arendt argues that the loss of citizenship and rights leads to the ‘idiocy’ of private life. The human being who has lost his place in a community, his political status in the struggle of his time, and the legal personality which makes his actions and part of his destiny a consistent whole, is left without those qualities which usually can become articulate only in the sphere of private life and must remain unqualified, mere existence in all matters of public concern.24 As Ayten Gundogdu puts it, Arendt develops ‘a hermeneutic phenomenology of the person’ that ties together ‘how the person appears in language, action, narrative and ethical life’.25 The ‘man’ of the rights of man appears without gender, colour, history or tradition as an empty vessel with three abstract traits, free will, reason and soul – the universal elements of human essence. This is the subject with autonomy and moral responsibility. But the empirical man who actually enjoys the ‘rights of man’ is a man all too man: a well-off, heterosexual, white, urban male. Humankind excludes improper men, that is men of no property or propriety, humans without rhyme and reason, women, racial, ethnic sexual minorities. Rights construct humans against a variable inhumanity. These ‘inhuman conditions of humanity’, act as quasi-transcendental preconditions of modern life.26 In late modernity, the old categories of exclusion have been joined by the economically redundant, the permanently unemployed and unemployable, those living below the poverty line, the ‘one-use humans’, the bottom billions. Human rights attempt to close the two gaps. The citizen, a version of legal personality with all its exclusions albeit arranged in a different way, has been upgraded into the human. The human has become the legal person or citizen writ large. The question of rights has been detached from citizenship and has been extended to all humans. The age-old question ‘What does it mean to be human?’ has received an authoritative answer: the human is the sum total of the compendium of human rights conventions, treaties and bills. New rights are continuously invented, lists proliferate and divert into new areas changing the meaning and entitlements of humanity. These manifestations of a manic legislative creativity are accompanied by the counter-factual claim that rights belong to humans precisely because of their humanity. The scope and the rights of the human keep changing but its putative essence remains the same: a rational, desiring, moral being. Legal persons are entities with rights and duties. Humans are people with rights and duties. As the person started approximating the human, the human became a person plus: someone with rights and duties, a human face and metaphysical

24 Ibid., 301. 25 Ayten Gudongdu, Hannah Arendt and the Contemporary Struggles of Migrants (Oxford University Press 2015) 105. 26 Pheng Cheah, Inhuman Conditions: On Cosmopolitanism and Human Rights (Harvard University Press 2006) 10.

64  Law, persons, rights significance. While new and more rights are given to humans, the legal person is abandoning its – always fragile – legitimatory link with humanity. Human rights bring together the socially constructed outline of the legal person and the universal personality of imaginary humanity. In this sense, there is an evident link between the human of human rights and Christian theology. Human rights co-opt the affective power of religion and retain theological metaphysics while claiming to be the most secular of institutions. Rights raise the individual to an exalted position; the anxiety of finitude is addressed through a split between internal ideal states and external law. Rights give access to transcendence. The human is double, split between the ideal universality of humanity and empirical existence, you and me. Humanity as species appears without differentiation or distinction, in a nature deprived of substantive characteristics, except for free will and reason - the universal elements of human essence. This minimum of humanity endows ‘man’ with autonomy, moral responsibility and legal subjectivity. On the other hand, the empirical ‘man’ of the rights of man is literally male, white, wealthy urban, heterosexual. On one side, the independent autonomous, nonsocial moral being, bearer of the ultimate values of contemporary ideology; on the other, the excluded and exploited of this world. Aliens, refugees, immigrants, the poor have little legal recognition and no political participation. International human rights law re-inscribes that gap between man and citizen in many respects and often leaves migrants without effective guarantees. The legal and metaphysical person endows certain people with rights and excludes others. Hegel wrote that the absolutely poor still enjoy the universal recognition of law but, lacking the means of existence that property gives, live a split life. Something similar happened when rights were declared to belong to all humans. The original ‘inhuman preconditions’ of humanity persist. They have been joined by the disasters of precarious existence; a life dependent on the alms, discretions and gifts of compassionate others. The lack of clarity about the normative source and universal character of human rights undermines their effectiveness. In what sense are they ‘universal’? Do they have an independent foundation that connects them in some way to the needs, desires or dignity of human nature, are they in this sense universal? Is humanity a universal attribute or is it constructed in local, national social contexts? Or are they just positive legal creations, the result of conventions, treaties and agreements among governments? Is universality the expression of global agreements among governments and nothing else? In such a case, rights as governmental creations contradict their basic function as weapons of resistance against power. The obvious material and political imbalance between states and governments means that they can be used for expressing the priorities of the powerful raised to universal status. Human rights are caught in an inescapable paradox: their language proclaims universalism but is accompanied shadow-like by deep scepticism about the possibility of universalism. There is more. The subject of rights has been turned from an active agent into a victim. Natural, legal and early human rights were ways for the subject to exercise its freedom in the world or expressions of the urge to resist and rebel

Subject, individual, human 65 against injustice. As the legal historian Michel Villey put it, right is a quality of the subject, one of his faculties, more precisely a licence, a freedom a capacity to act – une possibilité d’agir.27 The contemporary subject of rights, however, is seen as a vulnerable and passive person, a potential victim that needs protection. Human rights have become defences against cruelty, brutality and the atrocities of public and private power. They are defences against evil not mechanisms for the promotion of individual interest or the public good.28 The change from rights as tools of individual freedom and collective transformation to rights as protections is a post-Holocaust development that came to prominence after 1989. Hannah Arendt’s ‘it is quite conceivable that one fine day a highly organized and mechanized humanity will decide democratically – namely by majority d ­ ecision that for humanity as a whole it would be better to liquidate certain parts thereof’ has become the raison d’être of rights.29 It indicates a radical displacement of their transformative value towards a moralistic view about suffering. The earlier belief in the protective powers of political participation and democracy has been weakened if not abandoned. But no right or law can save us from ourselves. Rights are ancillary to this task. Only politics and collective resistance can redeem humanity’s destiny. The various Band Aid, Live Aid, telethons and other celebrity campaigns in support of global victims show that rights have become the contemporary version of philanthropy. Three conceptions of subjectivity characterize these campaigns: the victim, the evildoer and the rescuer.30 The suffering other is the passive victim, someone without agency or will who needs to be rescued from the indigenous barbaric tormentors and his own sloth and lack of initiative. The victim is victimized by his own, the absolute and radical evil that populates the exotic and dangerous parts of the world. Nothing can be done about inhuman perpetrators, those extreme and exotic brutes are beyond redemption. The criticism therefore targets third parties, governments or NGOs, who have done nothing in the past to alleviate suffering out of indifference, cynicism or moral relativism. They should repent and consider humanitarian aid and intervention morally mandatory.31 Finally, the rescuers: We, the Westerners. Because we have too many rights, because we understand their universal importance, we send them overseas like the second-hand clothes we give to Oxfam. And if they don’t want them, if they return them, then we send our troops to impose them on these ungrateful unfortunates. The victims are the infants of humanity, ourselves in a state of nascency. If they accept our gift of rights and democracy, they will mature and join full civilization. In this sense, contemporary humans reject the early conceptions of

27 Michel Villey, Le droit et les droits de l’ homme (PUF 1973). 28 Robert Meister, After Evil (Columbia University Press 2012). 29 Arendt, op.cit., 299. 30 Costas Douzinas, Human Rights and Empire (Routledge 2007) 31 See Meister op.cit. Quoted in Mary Ann Glendon, A World Made New (Random House 2001) 77.

66  Law, persons, rights the rights of man, which were battle-cries of resistance and uprising against monarchies, aristocracies and autocratic rulers. Human rights discourse and practice is replacing the idea of justice as struggle. Let us conclude. The legal person, the subject and the human are necessary supports of contemporary life. Mass democracy could not come into existence without political subjects, citizens who choose among competing parties, policies and platforms and who, through the exercise of rights, link individual interest, class position and their conception of the public good. This process underwrites democracy and stitches the political subject together. The subject is the necessary prerequisite for the operation of market economy. Capitalism needs individuals, whose labour power becomes a commodity to be sold in the labour market for a wage. Neoliberal capitalism needs fearful atomized humans who approach life as endless competition. Psychoanalysis again, a theory and practice obsessed with the subject, attributes the subject’s genesis to the infant’s introduction to the symbolic order and its subjection to language and law. We think of the subject as the exclusive vehicle of freedom perhaps because the split is no longer fully apparent as in the past. The subjectum/subjectus dyad has been internalized and the law, self-given and externally imposed, inhabits and conceals itself in the recesses of self. In the composite term ‘human rights’, humanity represents the groundlessness of freedom and the call of the future. But the legal element of rights returns to external determination and constraint. Behind all personas or masks of the subject, law’s operation remains central. Human rights fanatics claim that the legal person stopped being a category to which people could be transferred in and out of. Human rights turn personality into a quality of all humans. Yet the doubling of person and homo, soul and flesh, survives. Personality is the attribute of the moral or rational part of the divided human. A person is what in the body is in excess of the body. The difference between those with dignitas and those without was internalized into higher and lower parts of humanity. The philosophy of personalism and the jurisprudence of human rights reasserted the gap between body and spirit.32 The bio-political operation of power reduces the human into bare life.33 Human rights cannot answer this modern ­duplication; they are predicates of soul and mind, of the higher part of a divided self. The ‘rational agent’ of liberal philosophy is someone who wills, decides and acts but whose material needs are external to the powers of reflection and action. The body is the object of intervention and disciplining; its needs, desires and social conditioning are set aside. To have rights is to be subjected to one’s own objectification, to turn one’s body into object and one’s personhood into moral abstraction. The human as much as the person is fragile. If Arendt argued that citizenship overwhelmed the humanity of refugees and migrants in the inter-war period, today the opposite

32 Samuel Moyn, Christian Human Rights (University of Pennsylvania Press 2015). 33 Giorgio Agamben, Homo Sacer (Stanford University Press 1998).

Subject, individual, human 67 happens: an abstract humanity often forgets the situated significance of community and belonging. Human rights depoliticize politics, the human overwhelms the socially embedded needs of the citizen. Marcel Mauss concluded that the person has moved, from a simple masquerade to a mask, from a ‘role’ (personage) to a person (personne), to a name, to an individual; from the latter to a being possessing metaphysical and moral value; from a moral consciousness to a sacred being; from the latter to a fundamental form of thought and action – the course is accomplished.34 I disagree. The promise has not been performed. The idea of person is still open to the masks, roles and tricks that the ubiquitous and duplicitous persona has assumed and performed throughout its long history. The subject was born to the law and still belongs to law and (religious) morality. We live in law’s epoch, the age of polynomy, a frenetic and often meaningless legalization of life. The centrality of the subject in philosophy, morality and aesthetics and the nomocentric organization of modern society are not unrelated. Nothing escapes the empire of law, which keeps proliferating persons and subjects in order to endow them with entitlements and duties, privileges and liabilities. To be a human means to come before the law. Without law’s mask we are humans but not persons. The person is law’s indispensable partner and history’s agent. Its institutional permanence indicates that the law is the creation of popular sovereignty, the carrier of the dictates of social reproduction, the begetter of subjects and the vehicle of violence. Subjects and subjected, exalted and humbled, free and conditioned, we take our marching orders under the banners of the law.

34 Marcel Mauss, ‘A Category of the Human Mind: The Notion of Person; The Notion of Self’ in Michael Carrithers, Steven Collins and Steven Lukes (eds) The Category of the Person: Anthropology, Philosophy, History (Cambridge University Press 1985) 25.

5 Legality after virtue From (objective) right to (subjective) rights

Introduction ‘Metaphysics is the most intensive and the clearest expression of an epoch’, wrote Carl Schmitt.1 The metaphysical image, the foundation and meaning people attribute to their world, is reflected in the structure and form of its ethics and politics. But it is law, the recorded expression of the balance of power and the moral beliefs of an era, that gives the most accurate record of metaphysics, the way a people lives in the world. The law helps decide the right course of action. ‘Being right’ is about making the correct judgement or call. ‘Acting right’ is about behaving correctly towards others. Individual rights, on the other hand, refer to the ways others should treat us because of entitlements or claims we have against them. Religion, law and morality have asked and answered such questions for centuries. We can map the passage from the pre-modern to the modern and late-modern eras in their conceptions of justice and ethics manifested in law. In a simple but succinct way, epochal change is evident in the move from right – dikaion or jus – the ancient building block of ethics and law, to subjective rights in modernity and to human rights in late modernity. The history of right and justice indicates a society’s deepest convictions, the way it builds the relationship among people and between people and power. The pre-modern citizen and judge discovered the (morally and legally) right answer to a social or political dispute in the cosmos. It was an ethics of virtue and the good (arête and agathon) based on organic social relations, which created strong responsibilities and duties towards each other. This conception is often wrongly called ‘objective’ right; it is a curious anachronism since the separation between subject and object developed much later. Next came individual rights, what the French accurately call droits subjectives. They are a late entry in world history. No word for such rights existed in many languages, including Japanese and Chinese, until recently.2 Modern philosophers invented individual rights and

  1 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (trans. George Schwab, MIT Press 1985) 46.   2 Alasdair MacIntyre, After Virtue (Bloomsbury 2013) 81–3.

Legality after virtue 69 revolutionary politicians gave them to select groups as tools promoting their conception of good life. Finally, in late modernity, campaigners, politicians and jurists copy, repeat and publicize the demands of identity groups and lifestyle choices prioritizing difference over sameness and legalizing proliferating desires. The history of right charts the gradual decline of the ethics of virtue and the good and the rise of a morality of individual preferences and rights. Ethics after virtue has been turned into legal commands, law-like interdictions and injunctions the other side of the pursuit of individual desires. Before rights we had right and duty, before historicism the good, before possessive individualism belonging and community. We have abandoned duty, care and sympathy and have moved towards a thin conception of morality; egotism forms its legally supported core. Equity has turned into strict law, the imaginary identification with the other into the symbolic bar of the Other, duties and virtue to rights and imperatives. After virtue, we live in the era of the morality of exit from morality. How did we get here?

Classics and right Right, dikaion or jus, is the object of justice, that to which justice aims. This was the case both in the classical world and in Christianity. The Greco-Roman world had a teleological view of the cosmos, a harmonic arrangement of all beings animate and inanimate. The Christian synthesis of classical philosophy and theology, of an intelligible nature and omnipotent God, retained this strong sense of the ethics of virtue and the good, which can offer answers to personal and social conflict. The classical world understood right (dikaion, jus) as the right relation, the right way of being or acting towards others. Athens and Rome were hierarchical polities, founded on social status and class inequality. A minority of men only were full citizens. Women, slaves, metoiks and foreigners had no public recognition or standing. The social status of free men determined their duties. The premodern self acquired identity and recognition within a dense set of relationships. Membership of family, clan, craft, profession or city created the sense of self. The polites inhabited a set of roles and functions: family member, citizen, soldier, cobbler, merchant or philosopher. These were the constituent elements of self, not additions to a pre-existing empty nature. They determined the physis and the telos of the citizen, charting a clear itinerary for a virtuous life. No independent self could be reached if these characteristics, aptitudes and relations were removed. No distinction existed therefore between man as the member of the human species and his various roles, functions and relations. In this sense, the pre-modern self was ‘encumbered’, a term that would have sounded absurd to Athenian ears. In Aristotle’s natural philosophy, every animate and inanimate being has its own unique nature which determines its purpose in life. Life’s trajectory is the ongoing journey towards the species’ telos, its aim to become a perfect specimen of its kind. The purpose of the philosopher is to reach truth, of the general to win in battle, of the sculptor to create the most beautiful statue, of the cobbler the most comfortable and beautiful pair of sandals. To be a good man meant to strive to

70  Law, persons, rights be the best of his kind. The end of perfection was a daily matter, the good life an on-going task. But this place was not static, one is at a certain point on a journey with set goals, and to move in life was to make progress towards the end given by man’s nature and purpose.3 Aristotle’s ‘political animal’ lives in the polis and can only achieve perfection in right relationships with his fellow citizens, which make the city just. Conversely only a just city can create the conditions necessary for citizens to achieve their natural purpose. The same teleology applied to inanimate entities: the vine aims to produce the sweetest wine, the stone aims to go to the centre of the earth; this is why it falls when released. As Alasdair MacIntyre puts it, the relationship of man to the good life or eu zein was like that of ‘harpist to playing the harp well’.4 The cosmos was the harmonious combination of all existing beings and things, a living body in which each forms an organic limb contributing to the perfection of the whole. The Greek cosmos had no morality of commandments. Its ethics derived from the ethos of man or place. A man’s ethos was a set of dispositions, what we call ‘character’ today. It placed him in a network of relations. Life’s journey moved from the state someone was in to where he ought to go if he realized his nature. Ethics is the knowledge that helps man move from here to there, from potentiality to actuality, from unfinished self to its finished and perfect state. Duty was the building block of classical ethics. A man’s status determined his duties towards his dependants: wife, children, relatives, workers and slaves. Hannah Arendt controversially stated that Greek slaves had a better life than the wandering refugees and the stateless of the inter-war period despite the various Minorities treaties. The master had the duty to offer accommodation and food, not to exhaust the slaves, to allow them to develop their talents. The sense of life as journey to perfection led to the conflicts of classical tragedy. Antigone is equally bound by the law of Gods, family and love as well as the law of Creon and the city. They both form part of the self not open to choice. The potential conflict between them is not therefore a temporary inconvenience. Following one part of nature leads to a fundamental breach of another. Whatever Antigone chooses, she will have broken the law, an impasse that the classical protagonists realize, though belatedly; that was the case of Oedipus. Unlike modern civil disobedience, the violated law is not external but part of the self’s make-up. One part of the ethos is in conflict with another; every exercise of freedom leads inescapably to catastrophe. The distinction between ethics and law was not pronounced in the teleological cosmos. The morally right was not radically different from the legally correct. In case of dispute, citizens and judges could surmise the dikaion (the lawful and the ethical) from an examination of dike and physis, the rightful order of the cosmos. Justice combined all virtues and offered the right resolution in a conflict. Classical laws described and reinforced what the rightful citizen should (not) do irrespective of legal diktat. Law was a teacher helping develop and train the natural

  3 Ibid., 30–4.   4 Ibid., 69.

Legality after virtue 71 propensities of the good man. Judging involved therefore an observation of the wronged relationship, then a comparison with the right ordering of the world, finally, the dialectical confrontation of the litigants. These elements meant that the prudent and just judge was normally an older man; his long experience and wisdom allowed him to apply epieikeia (equity) to the case in hand. He listened the arguments, used the orthos logos (right reason) and aimed to return the disturbed social relationship to its rightful state, to give to each litigant what they deserved. This way the judgement was in conformity with the order of the world. Suum cuique tribuere (give everyone his due) was the classical principle of justice. People deserve the right answer because there is a right disposition in the cosmos. Desert is determined by chreos (duty and debt), what each owes and is owed by others. Chrein and chreos combine ethical duty and economic debt. The idea of a justice that inheres in people, relationships and duties offers a clear alternative to modern conceptions of justice as fairness. The grossly unequal social status, however, meant that the dominant conception of justice would support the powerful.

Right in Christianity The term ‘law’ means both a natural regularity – the ‘law of gravity’ or the ‘second law of thermodynamics’ – and a moral or legal commandment or norm. This baffling co-existence of different conceptions conceals a deeper divide: the law is either discovered or made, either immanent or imposed. Immanent laws are part of a pre-existing reality that humanity inescapably follows; we can only hope to discover their content. Here, freedom is the understanding of necessity. Imposed law is not given but is introduced by some authority. Such laws have been attributed to the ancestors, gods, humanity and, in modernity, the state. These entities were either the depository of eternal regularities or powerful lawmakers. Classical natural law, whether rational or divine, consisted of patterns of repetition, normativity and regularity, which introduce an inescapable discipline in the animate and inanimate world. The Jewish and Christian legality of divine commandments opened the possibility of a created or posited – positive – law. The move from a normatively neutral regularity to a law of norms explains why the term is still used to describe dissimilar realities. Initially all law was a natural regularity that created strong duties; its exclusively normative conception emerged out of that amalgam. The dispute therefore is not between real and ideal or between is and ought; it is about the place where the ‘ought’ can be discovered. For the naturalists, commands, prescriptions and norms exist in morally neutral but existentially inescapable regularities of the first and second – social – nature. For voluntarists and nominalists, on the other hand, the law is external to its field of application; it is legislated and amended by its author, God or man. The move from the ancient belief that ideas have an objective basis in nature, God or reason to the modern idea of human law placed a premium on history. Historicism promoted the belief that values and principles depend on place and time. The conservative philosopher Leo Strauss mourned the passing of natural law and complained that the historical sense destroys all known ideals. ‘If the ultimate criterion of

72  Law, persons, rights justice becomes the general will, i.e. the will of a free society, cannibalism is as just as its opposite’.5 The passing of the belief in natural law destroys the ability to criticize positive law. When rights become historical, they become ‘unable to grasp anything eternal’.6 Naturalism can be used to legitimize the banal and selfevident; when arguments run out, the claim ‘it is natural’ masks their absence. But naturalism can also suggest a transcendent law found in immanence. Without recourse to nature, to a real or imagined transcendence, critique suffers and radicalism could descend into voluntarism or arbitrariness. Let us return to the historical sequence. For the classics, right existed in the cosmos and was revealed by logos or ratio (reason). The revealed nature of the ethically right survived in Christianity, a religion of revelation. God becomes the author of natural law; duty remains its main building block. Duties and responsibilities arise from a person’s status and net of relations as family member, faithful or learned person, craftsman or friend. The teaching of ethics by classical philosopher and medieval theologian alike aimed at helping people to move from their contingent state to their essential nature, how to become what one ought to be. As Alasdair MacIntyre put it, that one ought to do something is at one and the same time to say what course of action in these circumstances as a matter of fact lead toward a man’s true end and to say what the law, ordained by God and comprehended by reason, enjoins. Moral sentences are thus used within this framework to make claims which are true or false.7 The discovery of the right answer to a legal conflict or moral dilemma, however, is no longer the result of prudence assisted by dialectical confrontation. The teleology of natural ends was replaced by the eschatology of salvation. The right answer was sought in holy books and religious commentaries. The Ten Commandments became the pillar of religious natural law and were launched in the soul as the voice of conscience. Ancient religions believed in a united cosmos, the visible and invisible parts of which overlap and interpenetrate. Christianity broke the unity creating a sharp dualism between visible and invisible, terrestrial and celestial and prioritizing the supernatural over the natural.8 The separation, expressed sharply in the Christological disputes, was carried out at every level. For Christian theology, God is infinite, the world limited, humanity fallen and in need of salvation. Time becomes a linear forward movement leading to the eschaton, the Last Judgment. The time between Christ’s incarnation and his second coming is called saeculum, a temporary interval in religious time. This is the time of human history.

  5 Leo Strauss, What is Political Philosophy (University of Chicago Press 1959) 51.   6 Leo Strauss, Natural Law and History (Chicago University Press 1965) 12.   7 MacIntyre, op.cit., 63–4.  8 Marcel Gauchet, The Disenchantment of the World: A Political History of Religion (trans. Oscar Burge, Princeton University Press 1999).

Legality after virtue 73 The consequences of the change were momentous. The cosmos becomes ens creatum, an object created by an omnipotent God. Humanity, God’s image and likeness, is therefore separate from the rest of the creation, which gradually turns from a meaningful cosmos to a disenchanted globe. The human is divided into an empirical finite and suffering part (the body with its needs and passions) and its infinite potential for salvation (the spiritual soul). Unlike the Olympian decatheon of human-like gods, the Christian God is radically absent. But unlike the Hebrew Jehovah, Christ’s incarnation and suffering acknowledged human history, making God’s absence historically present. Deus is absconditus but his son’s incarnation and revelation have left indelible marks. God’s will is arbitrary; it cannot be deciphered by man and can be known only through revelation. But the world retains a certain Aristotelian intelligibility, evident in natural law. Thomas Aquinas merged the classical rational cosmos with the transcendent God of Christianity in a crucial but precarious conflation. Divine reason dictates divine will, Aquinas argued, turning the conflict between reason and will into a matter of divine psychology. It is God who inscribes eternal law onto the natural order, but he does so in a rationally intelligible way. We can rationally divine what is right and wrong. The reconciliation was undermined by the Franciscan nominalists. Duns Scotus and William of Ockham ushered in the age of the individual.9 The supreme expression of creation is individuality. Abstract concepts such as law, justice or the city owe their existence to linguistic practices without ontological weight. God’s will has priority over his reason; the good exists because the omnipotent ordained it and not on account of some independent quality. Law is no longer the right relation; it is given by the divine legislator, whose will is absolute and obligatory per se. The source and method of the law started changing. The vertical and hierarchical relationship between celestial and terrestrial spheres led to an eschatological view of history. Early Christianity renounced this world and accepted suffering as the wages of sin and fall. Only the hope of heaven makes life tolerable. Augustine’s city of God is not of this world; its citizens are peregrini, pilgrims and sojourners on earth. It is because the philosophers will not believe in this beatitude which they cannot see that they go on trying to fabricate here below an utterly fraudulent felicity built on virtue filled with pride and bound to fail them in the end.10 The failures of secular life are compensated by the faithful’s belief in redemption. A forward movement is detected in history, a progress towards a promised and certain end. The eschaton, the full parousia or Last Judgment at the end of days, will bring together the radically split domains of heaven and

  9 Michel Villey, Histoire de la Philosophie du Droit (PUF 1975). 10 Augustine of Hippo, City of God (Penguin 2002) Bk XIX, Ch. 4.

74  Law, persons, rights earth. The civitas dei, the eternal Kingdom of God, will replace the civitas diaboli, the transient sovereignty of Caesar. The work of grace moves history towards its consummation. The faithful know it will happen – indeed this is the foundation of belief – but they don’t know when. They must prepare for its arrival but can do little to accelerate its epiphany. The separation and promise of future unification is replicated in self and law: the faithful are asked to withdraw into inward contemplation, listening the word of God.11 At the same time, they live in the world and accept Caesar’s law. The Christian self is double: the outward heteronomous shell of bodily needs, desires and passion follows the law of the state. The subject, the sub-jectum or sub-ditum, takes his commands, literally hears them: he is ‘spoken “under” ’ by God’s representatives, Pope, Lord, King. But the inner self, freed from external impediments and passions, becomes autonomous by obeying love, God’s law. State law confronts the faithful’s inner freedom illuminated by a higher law. Obedience creates community: obedience to secular law according to natural reason creates the civitas; obedience to God’s law according to grace creates the church, the ecclesia of the flock. The Christian self emerges between obedience to authority and inner freedom created by following the law of the infinitely other. In the interstices of the confessional and the assizes, the body was attached to the soul. The new mechanism of subjection takes the form of the inner voice ... that of a transcendent authority which everyone is bound to obey, to which always already compels everyone to obey because the foundation of authority is not located outside the individual, in some natural inequality or dependency, but within him, in his very being as creature of the verb, and as faithful to it.12 This split is replicated in the various bifurcations of the modern self: subject and subjected, free and determined, legal personality of rights and moral person of universal dignity. Nominalism’s victory is still with us today mirrored in the coupling of an omnipotent sovereign lawmaker with a free individual. The Christian cosmos refers to a future time and place of perfection, the Christian polis to the fallen empirical life. These splits were too radical with one pole ontologically or axiologically dominating the other. Initially, the transcendent pole was hierarchically superior and determined or conditioned the secular. Modernity’s task was to separate the two realms, institutions and orders and reverse the religious and ecclesiastical primacy. The gradual reversal of priorities, the secularization of politics, the eventual re-articulation of saeculum from religious to human-made history prepared

11 Costas Douzinas, Human Rights and Empire (Routledge 2007) Chs 2 and 4. 12 Etienne Balibar, ‘Subjection and Subjectivation’ in Joan Copjec (ed.), Supposing the Subject (Verso 1994) 4.

Legality after virtue 75 the exit from religion, the effects of which we experience today.13 This was the metaphysical structure early modernity inherited.

Modernity and individual rights The separation of God from nature and the celebration of an omnipotent and unquestionable will prepared the eventual removal of God from earthly matters and the foundation of secular sovereignty. The mutation of objective natural law into subjective individual rights was a ‘Copernican moment’, a cognitive, philosophical and eventually political revolution. The pre-modern world discovered what is right, the right thing to do, in the natural order of things. Modern jurists under pressure from emerging capitalism replaced the knowledge of right and the good with individual rights. The idea of rights as individual entitlements emerged out of the pre-modern matrix of what was ‘objectively’ right. Rights form historically, legally and logically central components of an emerging private law system. The early history of individual right coincides with the emergence of legally protected property. The institution of subjective right was sculpted in the interstices of property and contract law in the late Middle Ages. Property is the first right and became the model for all rights presented as the property of individuals.14 Medieval public law, on the other hand, was separate from private and was influenced by theology. But after the great eighteenthcentury revolutions, private law became the model for a new system of public law. Civil and political rights extended the scope of private rights. The move from private law protecting and enforcing property rights to the public law of civil and political rights was the major legal and political change of early modernity. From that point on, legal and political thought placed at the centre of attention the sovereign and the individual, its mirror-image and foil, with their respective rights and powers. The newly created rights were presented as eternal above and beyond political and ideological conflicts. Individual rights soon became the main building blocks of morality and law replacing older notions of duty and virtue. Early modernity is the age of the rise of capitalism, of ‘equality, liberty and Bentham’, as Marx memorably put it. Modern man does no longer obey a law set by ‘natural’ hierarchy or God. On the contrary, modern rights are creations of philosophers, revolutionaries and jurists. Instead of expressing the natural order of things, legal rights are historical, transient, highly artificial inventions that helped to destroy the earlier order. From right to rights, from ethics to morality, from nature and God to legislator and from status to contract: this is the movement that characterizes the coming of modernity.

13 Gauchet, op.cit. 14 Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (CUP 2003).

76  Law, persons, rights Christian spiritual equality and the promise of redemption paved the way for the subjectivation of the world.15 Immanuel Kant, Georg Hegel and his followers, Karl Marx, Friedrich Nietzsche, Max Weber and Martin Heidegger, despite their profound differences, agree. Since Descartes, philosophy has moved from theology to anthropology. Man is the foundation and ground of the world, its meaning and truth. The change has theoretical and practical aspects. At the theoretical level, the break is total. Pre-modern reason allowed man to partake in the divine plan. Natural law was the chord uniting eternal and human law.16 Reason was therefore both divine and human, it suggested ends and prescribed means. Enlightenment thought opposed convention and authority in all fields of knowledge. For nominalism, reason cannot understand nor prescribe the ends of man. For some, this marked a totally new beginning; others saw it as the removal of ‘the detritus of the ages in order to make visible the solid foundations of knowledge’.17 The statement by Leibniz nihil est sine ratione became the manifesto of modernity. A new type of reason, exemplified by mathematics, was transferred to nature and found immanent in the world. Reality now follows the laws and regularities of the human mind. The meaningful ends of the cosmos became the efficient causes of a mechanical world. Ends attract purposeful action, causes lead to effects. This anthropomorphic and logocentric reduction of the world to human characteristics culminated in Hegel’s identification of reality and rationality. If the real is rational, if history is the unravelling of the spirit in the world, man is the ground of all that exists, the master of himself, society and the natural world. Nothing is beyond human intervention, control and use. The world stands at the behest of humanity. This ontological sea change needed the complement of a practical anthropology. As Blaise Pascal argued, reason is limited in scope. It cannot understand the essence of things or the passage from potentiality to actuality. Reason can only calculate, explain relations between facts, arrange means to achieve pre-given ends. Humans on the other hand are desiring, willing and acting. Will is the essence of subjectivity; it is the absolute power of choice, a freedom to decide and act. Free will encounters empirical constraints only because of man’s limited but expandable powers. Indeed the power of decision is the perfect expression of will. Will, decision and action imitate God’s powers; they become the essence of the modern sovereign, Hobbes’s ‘mortall God’. The non-human entities that populated the pre-modern cosmos have now become things, the ‘objective’ world, humanity can manipulate to achieve its ends. But once human nature was defined as an uneasy combination of will and

15 Chapters 2 and 4 in this volume. 16 Medieval iconography shows the link and influence of divine over natural and positive law by uniting them with a chord known as the chord of concord. A typical instance is found in Ambrozio Lorenzetti’s fresco Allegory of Good Government in the Palazzo Pubblico in Siena. 17 Ernst Cassirer, The Philosophy of the Enlightenment (Princeton University Press 2009) 6.

Legality after virtue 77 reason, restraints on action became hard. Is there objective truth in moral and legal matters or are they arbitrary constructs? Thomas Hobbes and Immanuel Kant give the exemplary liberal answers. They followed three steps. The first was a break with antiquity and its ideas on knowledge, virtue and law. Enlightenment targeted religion, the belief in a purposeful cosmos and the arrangement of politics according to social status. Kant attacked the idea that the good and virtue are determined by the natural purposes of man and community. Hobbes attacked the belief that a natural order defined the place of man. They helped declare the classical tradition bankrupt, empty of useful matter. Humanity could start from the beginning. This emptying of the record was best represented by the ‘state of nature’ hypothesis, a degree zero of community and politics that challenges the legitimacy of traditional power. No moral or political order is legitimate because of its longevity or metaphysical pretensions. The vacated world of knowledge and law was reconstructed in a second step around a new building block: the individual. Descartes’s cogito ergo sum gave a quotable maxim to modern epistemology and ontology. At the political level, the invention of the individual was repeated in the creation of the ‘people’ as a unified mirror image of the individual. This mute and polymorphous entity was presented as a collective individual or body politic. It soon became the embodiment of republican sovereignty. Finally, a new system of knowledge and law was built on the evidence of the subject’s own experience, understanding and desire. Kant typically turned his critical enterprise into an examination of the ‘transcendental’ pre-conditions of understanding and knowledge. In politics and law too, the individual – and its counterpart the ‘people’ – became the foundation of the political edifice. The state of nature hypothesis presented individuals with their natural rights coming together to create civil society and government. Society and government are creations of will; they are outcomes of individual consent. Emptied tradition, the subject’s seizure by himself and, finally, radical constructivism are the three steps, which defined philosophical modernity.18 The ‘Hobbesian problem of order’ cannot be wished away, however. How can political obligation and obedience be built after the mainsprings of value and virtue have departed the stage? Free will and reason became the only sources for the creation of acceptable values and commitments. Two trajectories answered the conundrum. An empirical one based on desire and fear and a rationalist one based on reason, Hobbes and Kant again. Hobbes represents the most extreme instance of liberal pessimism. He did not trust the moral capabilities of human nature. His solution was liberalism at its purest: enforceable legal rights combined with a strong state and law. Legal rights to property, security and movement free people from previous constraints. A strong state with a strict legal system, a draconian criminal law and police apparatus imposes external limits on deviant behaviour and replaces internal constraints with the fear of the prison,

18 Luc Ferry and Alain Renault, Philosophie Politique: Vol. 1 Le droit, la nouvelle querelle des Anciens et des Modernes (PUF 1986).

78  Law, persons, rights the poorhouse and the executioner. When moral virtues, natural teleology and objective justice decay, peace can be kept by a strong state that guarantees property and security. Hobbes placed emphasis on pure desire; Kant on reason-led will by re-interpreting the Cartesian I think into I want. Kant, formalizing what Alasdair McIntyre has termed the ‘moral catastrophe’ of modernity, famously reversed the order between good and right: the ancient priority of the good from which moral (and legal) commands followed was an example of the heteronomy from which the Enlightenment emancipated man. From now on, the right, what is right according to the (moral and by extension state) law, takes precedence and determines the good. Before Kant, human will willed the natural ends it was supposed to pursue. With Kant, will wills itself as freedom. Kant’s practical project was simple: if rules of morality are rational they must be the same for all humans like the rules of arithmetic. If they are binding on all, the contingent ability to follow them is not important; what matters is their will to obey. Morality cannot be based on material desires and bodily passions, on punishments and rewards. It must be chosen freely by rational citizens. Kant’s rationalist version comes to the same conclusions as Hobbes from different premises. Reason and freedom, the attributes of the modern man, must be combined in harmony. Moral constraints must be freely accepted by the subject acting in accordance with the dictates of reason, in the same way that the Christian followed willingly the whispering voice of conscience. Kant’s categorical imperative brings together reason and free will in an act of self-legislation. Man is free to the extent that he makes his own law and he is responsible for the law he has made. Freedom now becomes autonomy: man obeys a law (nomos) he gives to himself (autos). ‘Act in such a way that the maxim of your will can always be valid as a principle of universal legislation’, or, act ‘in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never simply as a means’.19 Rights recognize man as an autonomous moral person, a free dignified agent worthy of respect. This self-legislation makes the subject moral and free and solves modernity’s moral problem formalized by Kant in his third antinomy: how is it possible to reconcile necessity (or causality) with freedom. The categorical imperative combines man’s reason and freedom – indeed morality becomes the name of freedom. The logic of this position, recently imitated on the plane of political philosophy by John Rawls, appears initially compelling. I freely determine myself by legislating the law. But to act this way, the law I give myself must not be concerned with my own instincts, desires and needs as this would be to surrender to the pressures of causality and turn freedom into the handmaiden of necessity. Kant rejects what he calls heteronomy, all types of law imposed by others. Heteronomy includes both subjugation to nature in the form of individual instincts and needs and subjection to the ‘second nature’ of

19 Immanuel Kant, Grounding for the Metaphysics of Morals (3rd edn, trans. James Ellington, Hackett Publishing 1993) 36.

Legality after virtue 79 social customs and norms. Morality commands that we resist the call of nature and names this resistance freedom. Reason’s counsel therefore concerns only law’s form: it must a universal norm that does not violate the equal freedom and autonomy of others. On the high plane of Kantian morality, people act towards others disinterestedly and conflicts of interests are downplayed. Civil and political rights give institutional expression to morality and freedom, citizenship rights are the local instantiations of the universal attributes of humanity. State law, on the other hand, is legislated by the political class renamed representatives of the people. Kantian republicanism claims that general state law, irrespective of who legislates it, must be obeyed, as if the citizens themselves made it. Indeed Kant argued forcefully against democracy. This is the hypothetical process that Rawls revived with his idea of an ‘original position’ from which principles of justice and rights can be deduced. For liberalism, modern individuals are not capable of following a moral calling without being fanatically oppressive or slavishly subjugated. Left to their own devices or guided by fundamentalist religion or ideology, they end up in a global civil war. The search for a universal ethical ideal is futile and can lead to atrocities. A morality of duties and the common good is outdated and dangerous. Moral ideals should be removed therefore from politics, which should become thoroughly ‘scientific’ and pragmatic. People should be directed towards individual gratification and away from ideology. They should be concerned with the promotion of their interests and pleasures and forget the good or the true. Morality is a private issue, between God, man and his conscience. For French liberal Benjamin Constant, ‘the aim of the moderns is security in private pleasures; and they call freedom the guarantees that institutions grant to such pleasures’. Or as the Scottish moralist Francis Hutcheson put it ‘freedom is the name of a quiet and pleasurable life, the calm desire of wealth’.20 It is a definition that excludes the majority of people without wealth, for whom life has few pleasures beyond daily survival. In early modernity, morality was identified with religion, in the twentieth century with political ideology, in the twenty-first with fundamentalism. Moral progress therefore depends on the elimination of the ‘moral temptation’ and its gradual replacement by neutral procedures of conflict resolution and tolerance. But the antinomy between freedom and necessity remains. The rift modernity opened between right and rights is too deep to be mediated by reasoned selflegislation; universal form is too weak or vague an adhesive. The only realistic bridge is positive law; it remains, however, an instance of heteronomy. From Rousseau’s ‘general will’ to Habermas’s ‘deliberative democracy’ many attempts have been made to answer this objection and present lawmaking as self-legislation. They do not convince altogether. And this is where rights come in. Rights promise to reconcile heteronomy and autonomy. But as creations of society or law, they are examples of other-derived normativity. On the other hand, they

20 Quoted in Jean-Claude Michea, The Realm of Lesser Evil (Polity 2009) 14.

80  Law, persons, rights entitle their bearer to exercise them in pursuit of his interests; their exercise is private by enfranchising the individual to initiate their public enforcement; they organize their content in accordance with the desires, needs or interests of their holders. These characteristics endow rights with a modicum of autonomy, of a law given by the self to itself for itself. But this ‘for itself’ deviates from the Kantian sense of autonomy. The dominance of rights is the result of modernity’s individualist nomophilia (love of law): if to become free I must be subjected to a law that promotes my interests, having and exercising rights is the closest substitute of real autonomy. The democratic and socialist traditions move the ground of legal authority from the obscure tergiversations of reason to the collective expression of political will; from the Kantian ‘as if’ to real political processes. Rights and legislation are no longer the outcome of rational operations but the concrete result of popular deliberations and decisions. The lawmaking power belongs to the people. Birth into humanity creates strong entitlements under the principle of autonomy but it is the privilege of citizenship that makes them real. A gap opens between the universal attributes of humanity and its local instantiation. Slaves, colonials, foreigners, immigrants do not enjoy citizen rights. Rights are also denied to those who do not possess the attributes of the ‘fully’ human. Women, slaves, the propertyless and racial minorities are not fully rational; they cannot become morally autonomous and are not part of the body exercising popular sovereignty. Christian missionaries and secular imperialists, the beneficiaries of grace or reason, have the duty to take it to them. People may not be forced to be free, but at least they should be forced to be modern. Liberals fought democracy and the extension of the franchise until the beginning of the twentieth century. Locke, Bentham, Mill and Dicey feared that if the propertyless classes, women and the uneducated were to acquire the right to vote, they would use their power to abolish private property and the ‘inherent’ right of the middle class to rule. Immanuel Kant, the philosopher of liberal modernity, believed that the ideal constitution of a society based on extreme suspicion towards the moral capabilities of man should be organized in such a way as to be able to rule a race of devils. In other words, no values or virtues nor any version of the good should be smuggled onto the constitutional text. What was needed was neutral non-ideological mechanisms of social cooperation, ways of bringing people together without making them commit to any particular ideology or morality and without endangering the balance of power. Two such were fit for the task: law and the market. Legal rights free people of previous constraints. They are given to all and are accompanied by a strong state with a strict criminal law that replaced internal moral constraints with external limits. Second, the market: if human nature is egotistic and cannot be changed, some mechanism should make private vices work for the common good. The market brings together millions of people daily without having to meet or know each other. The invisible hand, the trickle-down effect, the religious aspect of development aid or, of market

Legality after virtue 81 privatization and de-regulation are precisely claims that give the market a moral gloss without imposing any particularly strong moral value. Private vices become public virtues. A strong state, strict law and the market bring about the legal and commercial union of mankind, of a uniform world where the other is seen not as a partner in unique encounters but as an object to be used or fenced against. This tendency accelerated in late modernity. The ‘neutral’ mechanisms of law and the market went into overdrive and determine every aspect of social and individual life. Modernity is nomophiliac. Its motto: ‘I become free – a subject – by being subjected to a law legislated by me, or in my name’. The philosophy of the seventeenth and eighteenth centuries was in reality a philosophy of law. Liberal theories are legal doctrines about the state of nature, its savage but all too real inhabitants, the effects of their contracts, sovereign and individuals with rights. Political order no longer imitates nature nor does it reproduce ancient and hallowed hierarchies. On the contrary, it is based notionally on the will of individuals and their putative contracts. Immanuel Kant was quite categorical about the centrality of law: Many say a republic would have to be a nation of angels, because men with their selfish inclinations are not capable of a constitution of such sublime form. Thus it is only a question of a good organization of the state (which does lie in man’s power), whereby the powers of each selfish inclination are so arranged in opposition that one moderates or destroys the ruinous effect of the other. The consequence for reason is the same as if none of them existed, and man is forced to be a good citizen even if not a morally good person. The problem of organizing a state, however hard it may seem, can be solved even for a race of devils.21 The conclusion is obvious: following our worst egotistical desires is the best way to serve the interests of community and the common good.

Late modernity, morality, rights In late modernity, rights are the main language of morality but also the site, tool and reward of politics. Rights were initially an attempt to bridge the divide between freedom and necessity. Their triumph in moral philosophy – although not in reality yet, liberal philosophy is running well ahead of the world in a blatant attempt at a self-fulfilling prophecy – is the clearest example of a freedom which, under the name of ‘free choice’, has morphed into its opposite. Choice has been turned into the handmaiden of necessity: you are free when you choose what is already in your nature. The enormous and increasing inequalities of market capitalism are organized around the appearance of freedom and equality. We are

21 Immanuel Kant, Kant on History (ed. Lewis White Beck, Bobbs-Merrill 1963) 111–12.

82  Law, persons, rights free to the extent that we can shop in the same shops everywhere in the world; we are equal to the extent that all the brands are equally available, even though not equally affordable. We are free and equal if we are able to buy as a matter of right anything being sold. Free man is shopping man. Free will or ‘agency’ means to be treated as a customer. But this type of choice designates the deterioration, decline, if not total abolition, of freedom as understood by modernity. For the larger part of modern philosophy (suffice to mention Rousseau, Kant, Freud, Levinas), morality and therefore humanity is the freedom to choose against nature, the freedom to opt out of pre-determined, riddled choices. What is now presented as free choice is accompanied with a strong dose of compulsion. Man has become ‘free’ to choose to follow nature or the ‘second nature’ of social conformity, free to choose between different types of fake happiness. Humanity has been re-defined as the freedom to follow slavishly the limited set of choices offered to us. Post-modern rights promote ‘choice’ contra freedom, conformism versus imagination. Children are given rights against their parents, patients, students and welfare recipients are termed ‘customers’ and are offered consumer rights. In western capitalist societies it is forbidden to forbid, and rights, freedom and choice have become the mantras of politics. It should be added that late modernity does not abandon the earlier traditions of right altogether. It keeps creating new legal and human rights and extending their scope and rights-holders. This proliferation of claims and claimants follows pre-existing social positions and identities. Post-modern rights copy, repeat and legalize the claims of an expanding collection of identity groups and lifestyle choices. In advanced capitalism, human rights have become tools for identity recognition and the publicization of the desires of a fractured self with multiple subject positions. Rights have moved outwards to culture and inwards to the psyche: be yourself, be cool, be authentic, greed is good are the contemporary moral maxims. Legal and moral norms find support in wider economic and social processes. Today the globalization of trade and communications, the de-regulation of finance and professional activities and the penetration of neoliberal capitalism have created the soil on which post-modern rights flourish. Political and economic liberalism have moved hand in hand. Late-capitalist emphasis on freedom of choice, privatization and finance have turned private and moral life into commercial activities. Competition has been elevated into an ontological characteristic; artificial ‘markets’ are created everywhere. As the state withdraws from social services, people are asked to plan their own and their families’ health care, education, social security and old age. The sense of personal and work security, of a job for life of the previous period have been eroded. We are asked to become flexible, to keep learning new skills and aptitudes, to turn ourselves into malleable avatars or businessmen of our own selves. As the state withdraws, life offers no security, no long-term planning or loyalty is allowed. Collective existence and the moral resources of communal life are undermined, eroded, eventually removed. The commodification of life has undermined communal morality and is gradually destroying the remaining communities of virtue and value. The only new morality in an age of atomistic hedonism can

Legality after virtue 83 be found in the normative implications of scientific advances. Alleged scientific knowledge sustains new types of universal morality, which immediately come into conflict, however, with the corresponding identity groups (‘don’t eat fattening foods’ but the rights of fat people must be respected; ‘don’t smoke cigarettes’ but legalize cannabis and so on). Family and parenthood remain the last bastion of communal thinking for conservatives and liberals alike. Family life, however, is gradually removed from its natural habitus. Love and care, a morality of responsibility and duty based on solid and secure identities and strong social relations was family’s natural milieu. This has changed dramatically. Children’s rights against parents, increased state regulation of parenting and family life, disciplining and surveillance of parent– child relations, pre-nuptial legal agreements and other contractual tools are replacing familial love. They both recognize the artificiality of family’s ethical grounding and contribute further towards its erosion. As the morality of love and duty departs, it is replaced by individual rights, legal arrangements and strict criminal laws. Once we are free of morality and approach all values as prejudices, we see crimes and criminals everywhere. The question of child sexuality offers an illustration. Children are increasingly sexualized from a young age through advertisements, magazines, electronic games and the internet. As late capitalism tries to open and develop new markets children are a prime target. Child sexuality is being overtly and aggressively commodified; the advertising industry has abandoned previous moral constraints. As a result, underage pregnancies have increased. But since underage sex is illegal and may lead to criminal prosecutions, no proper assistance can be given to the young women. When a senior Scottish police chief suggested that the age of consent should be lowered to prevent teenagers from being criminalized for acting on ‘youthful natural instinct’, his suggestion was called a ‘paedophile’s charter’. Professor John Ashton, the president of the Faculty of Public Health, worried about the trend, tried to start a debate about the age of consent in 2013. With the age of consent at 16, ‘the 15-year-olds don’t have clear routes to getting some support’. Britain should seriously consider lowering the age of consent to 15 so that ‘services to meet the need’ could be legitimately organized and the fear of prosecution removed.22 But all political parties rejected the call, fearing the backlash of the moral brigade. The paradox of child sex remains. Commodified teenage sexuality sells and contributes to the increase in underage sex. The answer is to keep it criminalized while promoting at the same time a huge criminal and media campaign against paedophilia. Or, consider the criminalization of young people for hanging around in public places and carrying out behaviour that a generation ago would

22 Emily Dugan, ‘ “Confused” Messages: An Emotive Debate Reignites about the UK’s Age of Consent’ Independent (London 17 November 2013) accessed 26 August 2018.

84  Law, persons, rights have been called ‘growing up’. Anti-social behaviour laws gives the courts the power to issue injunctions to children from 10 years for ‘causing nuisance’; older children can be imprisoned for doing things that children do, like playing in the street, kicking a ball around in a public place or hanging around with friends and annoying adults. Commenting on a proposed anti-social behaviour bill, the Chief Constable of Cleveland Jacqui Cheer said that: when you are in a crowd of three or four it can get a bit noisy, is that antisocial? When you are walking down the street and might be having a bit of a laugh and a joke, is that antisocial?23 Political liberalism and economic neoliberalism have turned rights into the main building block of a rather anaemic sense of moral value. This is an artificial and fragile way of understanding our selves and others, always likely to slide into indifference and aggression. In late capitalism, the statement ‘I want X’, it is ‘right to do X’ and ‘I have a right to X’, are used interchangeably in vernacular language and eventually become identical. This attitude promotes difference as the main characteristic of humanity. It draws on the symbolic capital of the great civil rights and feminist campaigns of the 1960s, which turned the demand of anti-discrimination laws into the battering ram of equality and social justice. But as the groups claiming recognition and rights splinter and proliferate and the idea of difference becomes the defining characteristic of rights expansion, rights become associated with an increasing number of identity groups, lifestyle choices and their claims. As Wendy Brown put it, rights not only ‘mask by depoliticising the social power of institutions such as private property or the family, they organize mass populations for exploitation and regulation’.24 The dark side of rights is the inexorable rise of surveillance, classification and control of individuals and populations. Rights act both as a defensive wall and a modality of bio-power. Two types of substitution and generalization help this process. First, every individual desire may be transferred into a public and legally recognized entitlement of right if a political campaign around the new right is launched. Second, every statement of desire/right allegedly represents the wider social good. Statements of right are presented as generalizations of what is usually right to do in a particular case. Individual rights and doing the right thing therefore coincide. In this sense, the morality or rights replaces the ethics of community and is identified with individual preferences and demands. When the individual becomes enthroned into the centre of the world and individualism determines meaning and value, it is forbidden to forbid but it is imperative to criminalize and punish.

23 Alan Travis, ‘ “Growing Up” Behaviour Too Often Labelled Antisocial, Says Police Chief’ Guardian (London 11 November 2013) accessed 26 August 2018. 24 Wendy Brown, States of Injury (Princeton University Press 1995) 99. See also Costas Douzinas, op.cit., Chs 2 and 5.

Legality after virtue 85 This identification of rights with morality completes the cycle opened by the modern revolution in ethics: right, in the sense of doing the right thing is to recognize and enforce individual rights. Ours is a non-caring morality; moral responsibility shrinks to the narrowest circle of intimate relations. To act morally means to respect the rights of the other person rather than the person herself. In this sense, rights do not belong to the human but construct the human that others recognize. Rights derive from norms. Individuals acquire rights because rules give them such entitlements. Right on the other hand, an ethically correct act or behaviour, may derive partly from rules, including legal and moral norms, but is also linked with normative sources such as care, love, duty, empathy, sympathy, patriotism, familial and friendly status and social customs. These moral resources contend with the daily calculations of the consequences of our actions, the harms and benefits they may lead to. As Alasdair MacIntyre argued, utility and rights are two ways modern philosophy uses to develop a justification for a morality based on calculation, rules and principles rather than on the common good and virtue. In this sense, the ‘conflict’ between deontological rights-based approaches and utilitarianism becomes peripheral; the two approaches are reconciled daily both in the action of governments and the routine practices of people. When rights become the main normative tool and resource, human relations change radically. Responsibilities and duties create strong moral commitments when they derive from dense social relationships. Legal and individual rights on the other hand turn duties into ancillary moral tools. Rights depend for their enjoyment on the action of others. The concept of duty in a society of individual rights refers to obligations people must perform in order to have the rights of others enforced. The right to property depends on the exclusion of everyone from the owner’s property. The right to free speech is exercised if those who can impose censorship (initially the state, increasingly today powerful private institutions and media) perform the corresponding duty by refraining from stopping the expression. It is therefore quite quixotic for politicians and commentators to bemoan the fact that ours is a society of rights and not responsibilities. Rights undermine the sociological base of a morality of duty: they erode the social relations and anthropological status, the differentiation and entanglement of people that answers the question ‘what is the right thing to do?’ before it has been posed. When the question of right is asked, when the ethical turning to the other becomes a moral dilemma, already the move from an ethics of duty and love to a morality of individual rights has started. In this sense, the (deficient) morality of rights is the outcome of social, economic and political processes while morality and law express much deeper changes.

Part II

The paradoxes of rights

6 The paradoxes of human rights

A new ideal has triumphed on the world stage: human rights. It unites traditional enemies, left and right, the pulpit and the state, the minister and the rebel, the developing world and the liberals of the West. The new world order, we are told, is genuinely liberal democratic. Ideological controversies of the past have given way to general agreement about the universality of western values and have placed human rights at the core of international law. After the collapse of communism, human rights have become the ideology after the end of ideologies, at the end of history, the morality of international relations, a way of conducting politics according to ethical norms. And yet many doubts persist. The record of human rights violations since their ringing declarations at the end of the eighteenth century, after the Second World War and again since 1989 is quite appalling. If the twentieth century is the epoch of human rights, their triumph is, to say the least, something of a paradox. Our era has witnessed more violations of their principles than any previous, less ‘enlightened‘ one. Ours is the epoch of massacre, genocide, and ethnic cleansing. At no point in human history has there been a greater gap between the north and the south, between the poor and the rich in the developed world, or between the seduced and the excluded globally. Life expectancy at birth is around 45 years in sub-Saharan Africa but over 80 years in Northern Europe. No belief of progress allows us to ignore that never before in ‘peacetime’ and in absolute figures, have so many men, women, and children been subjugated, starved, or exterminated. There is a second paradox: if the world has accepted a common humanitarian vision, have conflicts of ideology, religion, and ethnicity ceased? Obviously not. This means that human rights have no common meaning or that the term describes radically different phenomena. There is something more: human rights are perhaps the most important liberal institution. Liberal legal and political philosophy, however, has failed rather badly in its understanding of rights, as this book shows. Two hundred years of social theory and the three major ‘continents’ of thought, according to Louis Althusser, do not enter the annals of liberal jurisprudence: Hegel, Marx, the post-Marxists, and the dialectic of struggle; Nietzsche, Foucault, and the analytics of power; Freud, the post-Freudians, psychoanalysis and subjectivity. As a result, jurisprudence and political philosophy return to the eighteenth century and update the social contract with ‘original

90  The paradoxes of rights positions‘ and ‘veils of ignorance‘, the categorical imperative with ‘ideal speech‘ situations and fundamental discourse principles all referring to individuals fully in control of themselves. The mainstreaming of human rights and the rise of cosmopolitanism coincided with the emergence of what sociologists have called ‘globalization‘, economists ‘neoliberalism‘, and political philosophers ‘post-democratic governance’. Is there a link between recent moralistic ideology, greedy capitalism and bio-political governmentality? My answer is a clear yes. Nationally, the bio-political form of power has increased the surveillance, disciplining, and control of life. Morality (and rights as morality’s main building block in late capitalism) was always part of the dominant order, in close contact with each epoch’s forms of power. Recently, however, rights have mutated from a relative defence against power to a modality of its operations. If rights express, promote and legalize individual desire, they have been contaminated by desire’s nihilism. Internationally, the modernist edifice is undermined at the point when the completion of the decolonization process and the relative rise of the developing world create the prospect of a successful defence of its interests. The imposition of ‘cosmopolitan’ economic, cultural, legal, and military policies is an attempt to reassert Western hegemony. This chapter follows the insight that the term ‘human rights’, with its immense symbolic capital, has been co-opted to a large number of relatively independent discourses, practices, institutions and campaigns. As a result no global ‘theory’ of rights exists or can be created. Different theoretical perspectives and disciplinary approaches are therefore necessary. It includes a short history of the idea of humanity and its political, legal and philosophical parts. To indicate this multilayered approach, it puts forward an axiom and six theses that re-write the standard liberal approach to rights.

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

Thesis 1 The idea of ‘humanity’ has no fixed meaning and cannot act as the source of moral or legal rules. Historically, the idea has been used to classify people into the fully human, the lesser human and the inhuman. If ‘humanity’ is the normative source of moral and legal rules, do we know what ‘humanity’ is? Important philosophical and ontological questions are involved here. Let me have a brief look at its history. Pre-modern societies did not develop a comprehensive idea of the human species. Free men were Athenians or Spartans, Romans or Carthaginians, but not members of humanity; they were Greeks or barbarians, but not humans. According to classical philosophy, a teleologically determined human nature distributes people across social hierarchies and

The paradoxes of human rights 91 roles and endows them with differentiated characteristics. The word humanitas appeared for the first time in the Roman Republic as a translation of the Greek word paideia. It was defined as eruditio et institutio in bonas artes (the closest modern equivalent is the German word Bildung). The Romans inherited the concept from Stoicism and used it to distinguish between the homo humanus, the educated Roman who was conversant with Greek culture and philosophy and was subjected to the jus civile, and the homines barbari, who included the majority of the uneducated non-Roman inhabitants of the Empire. Humanity enters the western lexicon as an attribute and predicate of homo, a term of separation and distinction. As Hannah Arendt puts it sarcastically: ‘a human being or homo in the original meaning of the word indicates someone outside the range of law and the body politic of the citizens, as for instance a slave – but certainly a politically irrelevant being.’1 For Cicero as well as the younger Scipio, humanitas implies generosity, politeness, civilization and culture, and is opposed to barbarism and animality.2 ‘Only those who conform to certain standards are really men in the full sense, and fully merit the adjective “human” or the attribute “humanity” ’.3 If we turn to the political and legal uses of humanitas a similar history emerges. The concept ‘humanity’ has been consistently used to separate, distribute and classify people into rulers, ruled and excluded. ‘Humanity’ acts as a normative source for politics and law against a background of variable inhumanity. This strategy of political separation curiously entered the historical stage at the precise point when the first proper universalist conception of humanitas emerged in Christian theology, captured in the St Paul’s statement, that there is no Greek or Jew, man or woman, free man or slave (Epistle to the Galatians 3:28). All people are equally part of humanity because, first, they can be saved in God’s plan of salvation and, second, because they share the attributes of humanity now sharply differentiated from a transcended divinity and a sub-human animality. For classical humanism, reason determines the human: man is a zoon logon echon or animale rationale. For Christian metaphysics, on the other hand, the immortal soul, both carried and imprisoned by the body, is the mark of humanity. The new idea of universal equality, unknown to the Greeks, entered the western world as a combination of classical and Christian metaphysics. The divisive action of ‘humanity’ survived the invention of its spiritual equality. Pope, Emperor, Prince and King, these representatives and disciples of God on earth were absolute rulers. Their subjects, the sub-jecti or sub-diti, take the law and their commands from their political superiors.4 More importantly, people will be saved in Christ only if they accept the faith, since non-Christians have no place

  1 Hannah Arendt, On Revolution (Viking Press 1965) 107.   2 H.C. Baldry, The Unity of Mankind in Greek Thought (Cambridge University Press 1965) 201–2.   3 B.L. Ullman, ‘What are the Humanities?’ (1946) 17(6) Journal of Higher Education 301, 302.   4 See Chapters 2 and 5 in this volume.

92  The paradoxes of rights in the providential plan. This radical divide and exclusion founded the ecumenical mission and proselytizing drive of Church and Empire. Christ’s spiritual law of love turned into a battle cry: let us bring the pagans to the grace of God, let us make the singular event of Christ universal, let us impose the message of truth and love upon the whole world. The classical separation between Greek (or human) and barbarian was based on clearly demarcated territorial and linguistic frontiers. In the Christian empire, the frontier was internalized and split the known globe diagonally between the faithful and the heathen. The barbarians were no longer beyond the city as the city expanded to include the known world. They became ‘enemies within’ to be appropriately corrected or eliminated if they stubbornly refused spiritual or secular salvation. The meaning of humanity after the conquest of the ‘New World’ was vigorously contested in one of the most important public debates in history. In April 1550, Charles V of Spain called a council of state in Valladolid to discuss the Spanish attitude towards the vanquished Indians of Mexico. The philosopher Ginés de Sepulveda and the Bishop Bartholomé de las Casas, two major figures of the Spanish Enlightenment, debated on opposite sides. Sepulveda, who had just translated Aristotle’s Politics into Spanish, argued that the Spaniards rule with perfect right over the barbarians who, in prudence, talent, virtue, humanity are as inferior to the Spaniards as children to adults, women to men, the savage and cruel to the mild and gentle, I might say as monkey to men.5 The Spanish crown should feel no qualms in dealing with Indian evil. The Indians could be enslaved and treated as barbarian and savage slaves in order to be civilized and proselytized. Las Casas disagreed. The Indians have well-established customs and settled ways of life, he argued, they value prudence and have the ability to govern and organize families and cities. They have the Christian virtues of gentleness, peacefulness, simplicity, humility, generosity and patience, and are waiting to be converted. They look like our father Adam before the Fall, wrote las Casas in his Apologia, they are ‘unwitting’ Christians. In an early definition of humanism, las Casas argued that ‘all the people of the world are humans and the only one definition of all humans and of each one, that is that they are rational … Thus all races of humankind are one’.6 His arguments combined Christian theology and political utility. Respecting local customs is good morality but also good politics: the Indians would convert to Christianity (las Casas’ main concern) but also accept the authority of the Crown and replenish its coffers if they were made to feel that their traditions,

  5 Gines de Sepulveda, Democrates Segundo of De las Justas Causa de la Guerra contra los Indios (Instituto Francisco de Vitoria 1951) 33 quoted in Tzvetan Todorov, The Conquest of America (trans. Richard Howard, University of Oklahoma Press 1999) 153.   6 Bartholomé de las Casas, Obras Completas, Vol. 7 (Alianza Editorial 1922) 536–7.

The paradoxes of human rights 93 laws, and cultures are respected. But las Casas’ Christian universalism was, like all universalisms, exclusive. He repeatedly condemned ‘Turks and Moors, the veritable barbarian outcasts of the nations’ since they cannot be seen as ‘unwitting’ Christians. An ‘empirical’ universalism of superiority and hierarchy (Sepulveda) and a normative one of truth and love (las Casas) end up being not very different. As Tzvetan Todorov pithily remarks, there is ‘violence in the conviction that one possesses the truth oneself, whereas this is not the case for others, and that one must furthermore impose that truth on those others’.7 The conflicting interpretations of humanity by Sepulveda and las Casas capture the dominant ideologies of Western empires, imperialisms, and colonialisms. At one end, the (racial) other is inhuman or subhuman. This justifies enslavement, atrocities, and even annihilation as strategies of the civilizing mission. At the other end, conquest, occupation, and forceful conversion are strategies of spiritual or material development, of progress and integration of the innocent, naïve, undeveloped others into the main body of humanity. These two definitions and strategies towards otherness act as supports of western subjectivity. The helplessness, passivity, and inferiority of the undeveloped others turns them into our narcissistic mirror-image and potential double. These unfortunates are the infants of humanity. They are victimized and sacrificed by their own radical evildoers; the West rescues them and helps them grow, develop and become our likeness. Because the victim is our mirror image, we know what his interest is and impose it ‘for his own good’. At the other end, the irrational, cruel, victimizing others are projections of the Other of our unconscious. As Slavoj Žižek puts it, there is a kind of passive exposure to an overwhelming Otherness, which is the very basis of being human … [the inhuman] is marked by a terrifying excess which, although it negates what we understand as ‘humanity’ is inherent to being human.8 We have called this abysmal other lurking in the psyche and unsettling the ego various names: God or Satan, barbarian or foreigner, in psychoanalysis the death drive or the real. Today they have become the ‘axis of evil‘, the ‘rogue state‘, the ‘bogus refugee‘, or the ‘illegal’ migrant. They are contemporary heirs to Sepulveda’s ‘monkeys’, epochal representatives of inhumanity. A comparison of the cognitive strategies associated with the Latinate humanitas and the Greek anthropos is instructive. The humanity of humanism (and of the academic Humanities) unites knowing subject and known object following the protocols of self-reflection.9 The anthropos of physical and social anthropology,

  7 Todorov, op.cit., 166, 168.   8 Slavoj Žižek, ‘Against Human Rights’ (2005) 56(July/August) New Left Review 34.  9 Costas Douzinas, ‘For a Humanities of Resistance’ (Critical Legal Thinking 7 December 2010) accessed 26 August 2018.

94  The paradoxes of rights on the other hand, is the object only of cognition. Physical anthropology examines bodies, senses and emotions, the material supports of life. Social anthropology studies diverse non-western peoples, societies and cultures, but does not study the human species in its essence or totality. These peoples emerged out of and became the object of observation and study through discovery, conquest and colonization in the new world, Africa, Asia, or in the peripheries of Europe. As Nishitani Osamu puts it, humanity and anthropos signify two asymmetrical regimes of knowledge.10 Humanity is civilization, anthropos is outside or before civilization. In our globalized world, the minor literatures of anthropos are examined by comparative literature, which compares civilization with lesser cultures. The gradual decline of Western dominance is changing these hierarchies. Similarly, the disquiet with a normative universalism, based on a false conception of humanity, indicates the rise of local, concrete and context-bound normativities. In conclusion, because ‘humanity’ has no fixed meaning, because it excludes some people deemed less than human, it cannot act as the main source of normativity. Its meaning and scope keeps changing according to political and ideological priorities. The continuously changing conceptions of humanity are the best manifestations of the metaphysics of an age. Perhaps the time has come for anthropos to replace the human. Perhaps the rights to come will be anthropic (to coin a term) rather than human, expressing and promoting singularities and differences instead of the sameness and equivalences of hitherto dominant identities.

Thesis 2 Power and morality, empire and cosmopolitanism, sovereignty and rights, law and desire are not fatal enemies. Instead, a historically specific amalgam of power and morality forms the structuring order of each epoch and society. We will explore the strong internal connection between these superficially antagonistic principles, at the point of their emergence in the late eighteenth century and post-1989 in the next part. The religious grounding of humanity was undermined by the liberal political philosophies of early modernity. The foundation of humanity was transferred from God to (human) nature. Human nature has been interpreted as an empirical fact, a normative value, or both. Science has driven the first approach. The mark of humanity has been variously sought in language, reason or evolution. Man as species existence emerged as a result of legal and political innovations. The idea of humanity is the creation of humanism, with legal humanism at the forefront. Indeed, the great eighteenth-century revolutions and declarations paradigmatically manifested and helped construct modern universalism. And yet, at the heart of humanism, humanity remained a strategy of division and classification.

10 Nishitani Otamu, ‘Anthropos and Humanity: Two Western Concepts of “Human Being” ’ in Naoki Sakai and Jon Solomon (eds) Translation, Biopolitics, Colonial Difference (Hong Kong University Press 2006) 259–74.

The paradoxes of human rights 95 We can follow briefly this contradictory process, which both proclaims the universal and excludes the local in the text of the French Declaration of the Rights of Man and Citizen, the manifesto of modernity. Article 1, the progenitor of normative universalism, states that ‘men are born and remain free and equal of right’ a claim repeated in the inaugural article of the 1948 Universal Declaration of Human Rights. Equality and liberty are declared natural entitlements and independent of governments, epochal and local factors. And yet the Declaration is categorically clear about the real source of universal rights. Article 2 states that ‘the aim of any political association is to preserve the natural and inalienable rights of man‘ and Article 3 proceeds to define this association: ‘The principle of all Sovereignty lies essentially with the nation‘. ‘Natural’ and eternal rights are declared on behalf of the universal ‘man’. However, these rights did not pre-exist, they were created by the Declaration. A new type of political association, the sovereign nation and its state, and a new type of ‘man’, the national citizen, came into existence and became the beneficiary of rights. In a paradoxical fashion, the declaration of a universal principle established local sovereignty. From that point, statehood and territory follow a national principle and belong to a dual time. If the declaration inaugurated modernity, it also started nationalism and its consequences: genocides, ethnic and civil wars, ethnic cleansing, minorities, refugees, and the stateless. The spatial principle is clear: every state and territory should have its unique dominant nation and every nation should have its own state – a catastrophic development for peace as its extreme application since 1989 has shown. The new temporal principle replaced religious eschatology with a historical teleology, which promised the future suturing of humanity and nation. This teleology has two possible variants: either the nation imposes its rule on humanity or universalism undermines parochial divides and identities. Both variants became apparent when the Romans turned Stoic cosmopolitanism into the imperial legal regulation of jus gentium. In France, the first alternative appeared in the Napoleonic wars, which allegedly spread the civilizing influence through conquest and occupation (according to Hegel, Napoleon was the world spirit on horseback); while the second was the beginning of a modern cosmopolitanism, in which slavery was abolished and colonial people were given political rights for a limited time after the Revolution. From the imperial deformation of Stoic cosmopolitanism to the current use of human rights to legitimize Western global hegemony, every normative universalism has decayed into imperial globalism. The split between normative and empirical humanity resists healing, precisely because universal normativity has been invariably defined by a part of humanity. The universal humanity of liberal constitutions was the normative ground of division and exclusion. A gap was opened between universal ‘man’, the ontological principle of modernity, and national citizen, its political instantiation and the real beneficiary of rights. The nation-state came into existence through the exclusion of other people and nations. The modern subject reaches her humanity by acquiring political rights of citizenship, which guarantee her admission to the universal human nature by excluding that status from others. The alien as a

96  The paradoxes of rights non-citizen is the modern barbarian. He does not have rights because he is not part of the state and he is a lesser human being because he is not a citizen. One is a man to greater or lesser degree because one is a citizen to a greater or lesser degree. The alien is the gap between man and citizen. In our globalized world, not to have citizenship, to be stateless or a refugee, is the worst fate. Strictly speaking, human rights do not exist: if they are given to people on account of their humanity and not of some lower-level group membership, then refugees, the sans papiers migrants and prisoners in Guantanamo Bay and similar detention centres, who have little if any legal protection, should be their main beneficiaries. They have few, if any, rights. They are legally abandoned, bare life, the homines sacri of the new world order. The epochal move to the subject, as metaphysical centre of the world, is driven and exemplified by legal personality. The ‘man’ of the rights of man appears without gender, colour, history or tradition. He has no needs or desires, he is an empty vessel united with all others through three abstract traits: free will, reason and the soul (now the mind) – the universal elements of human essence. This minimum of humanity allows ‘man’ to claim autonomy, moral responsibility and legal subjectivity. At the same time, the empirical man who actually enjoys the ‘rights of man’ is a man all-too-man: a well-off, heterosexual, white, urban male who condenses in his person the abstract dignity of humanity and the real prerogatives of belonging to the community of the powerful. A second exclusion therefore conditions humanism, humanity and its rights. Humanity excludes improper men, that is, men of no property or propriety, humans without rhyme and reason, women, racial and ethnic sexual minorities. Rights construct humans against the ‘inhuman conditions of humanity’, as Pheng Cheah has called them, these invariable preconditions of modern life.11 The contemporary history of human rights can be seen as the ongoing and always failing struggle to close the gap between the abstract man and the concrete citizen; to add flesh, blood and sex to the pale outline of the ‘human’ and extend the dignities and privileges of the powerful (the characteristics of normative humanity) to empirical humanity. This has not happened, however, and is unlikely to be achieved through the action of rights.

Thesis 3 The post-1989 order combines an economic system that generates huge structural inequalities and oppression with a juridico-political ideology promising dignity and equality. This major instability is leading to its demise. Why and how did this combination of neoliberal capitalism and humanitarianism emerge? Capitalism has always moralized the economy and applied a gloss of righteousness to profit-making and unregulated competition precisely because

11 Pheng Cheah, Inhuman Conditions (Harvard University Press 2006) ch. 7.

The paradoxes of human rights 97 it is so hard to believe. From Adam Smith’s ‘hidden hand’ to the assertion that unrestrained egotism promotes the common good or that beneficial effects ‘trickle down’ if the rich get even bigger tax breaks, capitalism has consistently tried to claim the moral high ground.12 Similarly, human rights and their dissemination are not simply the result of the liberal or charitable disposition of the West. The predominantly negative meaning of freedom as the absence of external constraints – a euphemism for keeping state regulation of the economy at a minimum – has dominated the Western conception of human rights and potentially turning them into the perfect companion of neoliberalism. Global moral and civic rules are the necessary supplement of the globalization of economic production and consumption, of the completion of world capitalism that follows neoliberal dogmas. Over the last thirty years, we have witnessed, without much comment, the creation of global legal rules regulating the world capitalist economy, including rules on investment, trade, aid and intellectual property. Robert Cooper has called it the voluntary imperialism of the global economy. It is operated by an international consortium of financial institutions such as the IMF and the World Bank … These institutions … make demands, which increasingly emphasise good governance. If states wish to benefit, they must open themselves up to the interference of international organisations and foreign states.13 Cooper concludes that ‘what is needed then is a new kind of imperialism, one acceptable to a world of human rights and cosmopolitan values’.14 The (implicit) promise to the developing world is that the violent or voluntary adoption of the market-led, neoliberal model, of good governance and limited rights will inexorably lead to Western economic standards. This is fraudulent. Historically, the Western ability to turn the protection of formal rights into a limited guarantee of material, economic and social rights was based on huge transfers from the colonies to the metropolis. While universal morality militates in favour of reverse flows, Western policies on development aid and Third World debt indicate that this is not politically feasible. Indeed, the successive crises and re-arrangements of neoliberal capitalism lead to dispossession and displacement of family farming by agribusiness, to forced migration and urbanization. These processes expand the number of people without skills, status or the basics for existence. They become human debris, the waste-life, the bottom billions. This neocolonial attitude has now been extended from the periphery to the European core. Greece, Portugal, Ireland and Spain have been subjected to the rigours of

12 Jean-Claude Michéa, The Realm of Lesser Evils (trans. David Fernbach, Polity Press 2009) ch. 3. 13 Robert Cooper, ‘The New Liberal Imperialism’ Observer (London 1 April 2002) 3. 14 Ibid.

98  The paradoxes of rights the neoliberal ‘Washington Consensus‘ of austerity and destruction of the welfare state, despite its failure in the developing world. More than half of the young people of Spain and Greece became permanently unemployed and a whole generation was destroyed. But this gene-cide, to coin a term, has not generated a human rights campaign. As Immanuel Wallerstein put it, ‘if all humans have equal rights, and all the peoples have equal rights, then we cannot maintain the kind of inegalitarian system that the capitalist world economy has always been and always will be’.15 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, (Napoleon was Hegel’s ‘spirit on horseback’) shouting ‘Down with freedom!’ Today people meet the ‘peacekeepers’ of the new world order with cries of ‘Down with human rights!’ Social and political systems become hegemonic by turning their ideological priorities into universal principles and values. In the new world order, human rights are the perfect candidate for this role. Their core principles, interpreted negatively and economically, promote neoliberal capitalist penetration. Under a different construction, their abstract provisions could subject the inequalities and indignities of late capitalism to withering attack. But this cannot happen as long as they are used by the dominant powers to spread the ‘values’ of an ideology based on the nihilism and insatiability of absolute desire. Despite differences in content, colonialism and the human rights movement form a continuum, episodes in the same drama, which started with the great discoveries of the ‘New World’ and is now carried out in the streets of Iraq and Afghanistan: bringing civilization to the barbarians. The claim to spread reason and Christianity gave western empires their sense of superiority and their universalizing impetus. The urge is still there; the ideas have been redefined but the belief in the universality of our world-view remains as strong as that of the colonialists. There is little difference between imposing reason and good governance and proselytizing for Christianity and human rights. They are both part of the cultural package of the West, aggressive and redemptive at the same time.

Thesis 4 Universalism and communitarianism rather than being opponents are two types of humanism dependent on each other. They are confronted by the ontology of singular equality The debate about the meaning of humanity as the ground normative source of rights is conducted between universalists and communitarians. The

15 Immanuel Wallerstein, ‘The Insurmountable Contradictions of Liberalism’ (1995) 46 South Atlantic Quarterly 1161, 1176–77.

The paradoxes of human rights 99 universalist claims that cultural values and moral norms should pass a test of universal applicability and logical consistency and often concludes that, if there is one moral truth but many errors, it is incumbent upon its agents to impose it on others. Communitarians start from the obvious observation that values are contextbound and try to impose them on those who disagree with the oppressiveness of tradition. Both principles, when they become absolute essences and define the meaning and value of humanity without remainder, can find everything that resists them expendable. Kosovo is a good example. The proud Serbians killed and ‘cleansed’ ethnic Albanians in order to protect the integrity of the ‘cradle’ of their nation (interestingly, like most wild nationalisms, celebrating a historic defeat). NATO bombers killed people in Belgrade and Kosovo from 35,000 feet in order to defend the rights of humanity. Both positions exemplify, perhaps in different ways, the contemporary metaphysical urge: they have made an axiomatic decision as to what constitutes the essence of humanity and follow it with a stubborn disregard for alternatives. They are the contemporary expressions of a humanism that defines the ‘essence’ of humanity all the way to its end, as telos and finish. To paraphrase Emanuel Levinas, to save the human, we have to defeat this type of humanism. The individualism of universal principles forgets that every person is a world and comes into existence in common with others, that we are all in community. Every human is a singular being, unique in his existence as an unrepeatable concatenation of past encounters, desires and dreams with future projections, expectations and plans. Every single person forms a phenomenological cosmos of meaning and intentionality, in relations of desire conversation and recognition with others. Being in common is an integral part of being self: self is exposed to the other, it is posed in exteriority, the other is part of the intimacy of self. My face is ‘always exposed to others, always turned toward an other and faced by him or her never facing myself’.16 Indeed, being in community with others is the opposite of common being or of belonging to an essential community. Communitarians, on the other hand, define community through the commonality of tradition, history and culture, the various past crystallizations whose inescapable weight determines present possibilities. The essence of the communitarian community is often to compel or ‘allow’ people to find their ‘essence’, common ‘humanity’ now defined as the spirit of the nation or of the people or the leader. We have to follow traditional values and exclude what is alien and other. Community as communion accepts human rights only to the extent that they help submerge the I into the We, all the way till death, the point of ‘absolute communion’ with dead tradition.17

16 Jean-Luc Nancy, The Inoperative Community (University of Minnesota Press 1991) xxxviii. 17 Ibid.

100  The paradoxes of rights Both universal morality and cultural identity express different aspects of human experience. Their comparison in the abstract is futile and their differences are not pronounced. When a state adopts ‘universal’ human rights, it will interpret and apply them, if at all, according to local legal procedures and moral principles, making the universal the handmaiden of the particular. The reverse is also true: even those legal systems that jealously guard traditional rights and cultural practices against the encroachment of the universal are already contaminated by it. All rights and principles, even if parochial in their content, share the universalizing impetus of their form. In this sense, rights carry the seed of the dissolution of a community; the only defence is to resist the idea of rights altogether, something impossible in global neoliberalism. The claims of universality and tradition, rather than standing opposed in mortal combat, have become uneasy allies, whose fragile liaison has been sanctioned by the World Bank. From our perspective, humanity cannot act as a normative principle. Humanity is not a property shared. It is discernible in the incessant surprising of the human condition and its exposure to an undecided open future. Its function lies not in a philosophical essence but in its non-essence in the endless process of re-definition and the necessary but impossible attempt to escape external determination. Humanity has no foundation and no end; it is the definition of existential groundlessness. In this sense, normative universalism moves from a principle of pacification towards a battle cry. Societies proclaiming equality of opportunities and equality before the law while excluding large parts of the population must be held accountable for their utter failure of implementation. Universalism then becomes a militant principle of diagonal division instead of unification of the social space. The militant and universal principle determines the struggle for the equality of the excluded. In his article What is Critique? Foucault suggested that critique means developing l’art de n’être pas tellement gouverné.18 The dissident critic represents militant universalism. The role of the one who speaks [the intellectual in our context] is not that of legislator or the philosopher between camps, the figure of peace and armistice … To establish oneself between adversaries at the centre and above them, to impose a general law on each and to found an order that reconciles: this is not what is at issue. At issue is the positing of a right marked by dissymetry, the founding of a truth linked to a relation of force, a weapon truth and a singular right. The subject that speaks is a warring – I won’t even say a polemical – subject.19 Truths related to force, singular rights, this is how the universality of rights moves to the reality of political struggle.

18 Michel Foucault, ‘Qu’est ce que la critique? Critique et Aufklärung’. Conférence donnée à la Société française de Philosophie le 27 mai 1978 et publiée en français dans le Bulletin de la société française de philosophie, t. LXXXIV (1990), 84, 2. 19 Michel Foucault, Society Must be Defended (Penguin 2004) 328–9.

The paradoxes of human rights 101

Thesis 5 In advanced capitalist societies, human rights de-politicize politics. Rights form the terrain on which people are distributed into rulers, the ruled and the excluded. Power’s mode of operation is revealed, if we observe which people are given or deprived of which rights at which particular place or point in time. In this sense, human rights both conceal and affirm the dominant structure of a period and help combat it. Marx was the first to realize the paradoxical nature of rights, as Chapter 8 discusses. Natural rights emerged as a symbol of universal emancipation, but they were at the same time a powerful weapon in the hands of the rising capitalist class, securing and naturalizing emerging dominant economic and social relations. They were used to take out of political challenge the central institutions of capitalism such as religion, property, contractual relations and the family, thus providing the best protection possible. Ideologies, private interests and egotistical concerns appear natural, normal and for the public good when they are glossed over by the rights vocabulary. As Marx inimitably put it, ‘freedom, equality, property and Bentham’.20 Early human rights were historical victories of groups and individuals against state power while at the same time promoting a new type of domination. As Giorgio Agamben argues, they ‘simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves’.21 In late capitalism, with its proliferating bio-political regulation, the endlessly multiplying rights paradoxically increase power’s investment on bodies. If classical natural rights protected property and religion by making them ‘apolitical’, the main effect of rights today is to depoliticize politics itself. Let us introduce a key distinction in recent political philosophy between politics (la politique) and the political (le politique). According to Chantal Mouffe, politics is the terrain of routine political life, the activity of debating, lobbying and horse-trading that takes place around Westminster and Capitol Hill.22 I experienced the weight and boredom of political life as an accidental politician and member of Hellenic Parliament. Syntagma Square in Athens, like the other political toponymies, has certain characteristics.23 Politicians, journalists and lobbyists are closeted in an airless space of few square metres and live a life unrelated to the ordinary people they represent. When a controversial topic emerges, the inhabitants of the political institution go into frenzy, a kind of political panic. All other conversations and human interactions cease; all everyone discusses is the latest ‘problem’. The world beyond the Syntagma bubble usually has no knowledge or interest in the problem.

20 Karl Marx, Capital: Vol. 1 (Penguin 1976) 280. 21 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press 1998) 121. 22 Chantal Mouffe, On the Political (Routledge 2005) 8–9. 23 Costas Douzinas, Syriza in Power: Reflections of an Accidental Politician (Polity 2017).

102  The paradoxes of rights But the institutionalized inhabitants make it their business to involve the public. For a couple of days no other issue is debated on TV or radio, no other story dominates the front page of newspapers. The whole world seems to depend on the evolution of the ‘problem’. Until a couple of days later when in the same abrupt way, the issue disappears from public view and is quickly forgotten. Transience and the significance of insignificance are the signs of politics. The ‘political’, on the other hand, refers to the way in which the social bond is instituted and concerns deep rifts in society. It is the expression and articulation of the irreducibility of social conflict. Politics organizes the practices and institutions through which order is created, normalizing social co-existence in the context of conflict provided by the political. This deep antagonism is the result of the tension between the structured social body, where every group has its role, function and place, and what Jacques Rancière calls ‘the part of no part‘. Groups that have been radically excluded from the social order; they are invisible, outside the established sense of what exists and is acceptable. Politics proper erupts only when an excluded part demands to be included and must change the rules of inclusion to achieve that. When they succeed, a new political subject is constituted, in excess to the hierarchized and visible group of groups and a division is put in the pre-existing common sense.24 What is the role of human rights in this division between politics and the political? Right claims reinforce rather than challenge established arrangements. The claimant accepts the established power and distribution orders and transforms the political claim into a demand for admission to the law. The role of law is to transform social and political tensions into a set of solvable problems regulated by rules and hand them over to rule experts. The rights claimant is the opposite of the revolutionaries of the early declarations, whose task was to change the overall design of the law. To this extent, his actions abandon the original commitment of rights to resist and oppose oppression and domination. The ‘excessive’ subjects, who stand for the universal from a position of exclusion, have been replaced by social and identity groups seeking recognition and limited re-distribution. In the new world order, the rights claims of the excluded are foreclosed by political, legal and military means. Economic migrants, refugees, prisoners of the war on terror, the sans papiers, inhabitants of African camps – these ‘one-use humans’ are the indispensable pre-condition of human rights but, at the same time, the living, or rather dying, proof of their impossibility. Successful human rights struggles have undoubtedly improved the lives of people by marginal re-arrangements of social hierarchies and non-threatening re-distributions of the social product. But their effect is to de-politicize conflict and remove the possibility of radical change.

24 Jacques Rancière, Disagreement (trans. Julie Rose, University of Minnesota Press 1998); Jacques Rancière, ‘Who is the Subject of the Rights of Man?’ in Ian Balfour and Eduardo Cadava (eds), ‘Special Issue: And Justice for All?’ (2004) 103(2–3) South Atlantic Quarterly 297.

The paradoxes of human rights 103 We can conclude that human rights claims and struggles bring to the surface the exclusion, domination and exploitation, and inescapable strife that permeates social and political life. But, at the same time, they conceal the deep roots of strife and domination by framing struggle and resistance in the terms of legal and individual remedies which, if successful, lead to small individual improvements and a marginal re-arrangement of the social edifice. Can human rights re-activate a politics of resistance? The intrinsic link between early natural rights, (religious) transcendence and political radicalism opened the possibility. It is still active in parts of the world not fully incorporated in the bio-political operations of power. But only just. The metaphysics of the age is that of the deconstruction of essence and meaning, the closing of the divide between ideal and real, the subjection of the universal to the dominant particular. Economic globalization and semiotic monolingualism are carrying this task out in practice; its intellectual apologists do it in theory. The political and moral duty of the critic is to keep the rift open and to discover and fight for transcendence in immanence.

Thesis 6 For a cosmopolitanism to come (or the idea of communism). Against imperial arrogance and cosmopolitan naivety, we must insist that global neoliberal capitalism and human-rights-for-export are part of the same project. The two must be uncoupled; human rights can contribute little to the struggle against capitalist exploitation and political domination. Their promotion by western states and humanitarians turns them into a palliative: it is useful for a limited protection of individuals but it can blunt political resistance. Human rights can re-claim their redemptive role in the hands and imagination of those who return them to the tradition of resistance and struggle against the advice of the preachers of moralism, suffering humanity, and humanitarian philanthropy. Liberal equality as a regulative principle has failed to close the gap between rich and poor. Equality must become an axiomatic pre-supposition: people are free and equal; equality is not the effect but the premise of action. Whatever denies this simple truth creates a right and duty of resistance. The equality of legal rights has consistently supported inequality; axiomatic equality (each counts as one in all relevant groups) is the impossible boundary of rights culture. It means that health care is due to everyone who needs it, irrespective of means; that rights to residence and work belong to all who find themselves in a part of the world irrespective of nationality; that political activities can be freely engaged by all irrespective of citizenship and against the explicit prohibitions of human rights law. The combination of the right resistance and axiomatic equality projects a humanity opposed both to universal individualism and communitarian closure. In the age of globalization, of mondialization we suffer from a poverty of world. Each one is a cosmos but we no longer have a world, only a series of disconnected

104  The paradoxes of rights situations. Everyone is a world: a knot of past events and stories, people and encounters, desires and dreams. This is also the point of ekstasis, of opening up and moving away, immortals in our mortality, symbolically finite but imaginatively infinite. The cosmopolitan capitalists promise to make us citizens of the world under a global sovereign and a well-defined and terminal humanity. This is the universalization of the lack of world, the imperialism and empiricism to which every cosmopolitanism falls. But we should not give up the universalizing impetus of the imaginary, the cosmos that uproots every polis, disturbs every filiation, contests all sovereignty and hegemony. Resistance and radical equality map out an imaginary domain of rights which is uncannily close to utopia. According to Ernst Bloch, the present foreshadows a future not yet and, one should add, not ever, possible. The future projection of an order in which man is no longer a ‘degraded, enslaved, abandoned or, despised being’ links the best traditions of the past with a powerful ‘reminiscence of the future’.25 It disturbs the linear concept of time and, like psychoanalysis, it imagines the present in the image of a prefigured beautiful future, which, however, will never come to be. In this sense, the imaginary domain is necessarily utopian, non-existing. And yet, this non-place or nothingness grounds our sense of identity, in the same way that utopia helps create a sense of social identity. We have re-discovered in Tunisia and Tahrir Square, in Madrid’s Puerta del Sol and Athens’ Syntagma Square what goes beyond and against liberal cosmopolitanism, the principle of its excess. This is the promise of the cosmopolitanism to come – or the idea of communism.26 The cosmopolitanism to come is neither the terrain of nations nor an alliance of classes, although it draws from the treasure of solidarity. Dissatisfaction with the nation, state and the inter-national comes from a bond between singularities, which cannot be turned into essential humanity, nation or state. The cosmos to come is the world of each unique one, of whoever or anyone; the polis, the infinite encounters of singularities. What binds me to a Palestinian, a sans papiers migrant, or an unemployed youth is not membership of humanity, nation, state or community, but a bond that cannot be contained in the dominant interpretations of humanity and cosmos or of polis and state. Law, the principle of the polis, prescribes what constitutes a reasonable order by accepting and validating some parts of collective life, while banning, excluding others, making them invisible. Law and rights link language with things or beings; they nominate what exists and condemn the rest to invisibility and marginality. As the formal and dominant decision about existence, law carries huge ontological power. Radical desire, on the other hand, is the longing for what has

25 Ernst Bloch, Natural Law and Human Dignity (trans. Dennis J. Schmidt, MIT Press 1988) xxviii. 26 Costas Douzinas, Philosophy and Resistance in the Crisis (Polity 2013) chs 9, 10 and 11.

The paradoxes of human rights 105 been banned and declared impossible by the law; what confronts past catastrophes and incorporates the promise of the future. The axiom of equality and the right to resistance prepare militant subjects in the ongoing struggle between justice and injustice. This being together of singularities in resistance is constructed here and now with friends and strangers in acts of hospitality, in cities of resistance.

7 Rights, identity, desire

Psychoanalysis and identity Liberal theories of rights from Immanuel Kant to John Rawls present the self as a solitary and rational entity, in full control of himself, endowed with natural characteristics and rights. These rights (life, liberty, property, happiness) are part of the human patrimony. The social contract (or Rawls’s heuristic restatement as the ‘veil of ignorance’) creates society and government but preserves these rights and makes them binding on government. Rights are pre-social, they belong to humans precisely because they are humans. We use rights as tools or instruments to confront the outside world, defend our interests and pursue our life plans. This position is sharply contrasted by dialectics, hermeneutics and psychoanalysis. The human self is not a stable and isolated entity that, once formed, goes into the world and acts according to pre-arranged motives and intentions. Self is created in constant relations with others, the subject is always inter-subjective. My identity is constructed in an ongoing dialogue and struggle for recognition, in which others (both people and institutions) acknowledge certain characteristics, attributes and traits as mine, helping create my own sense of self. Identity emerges out of this conversation and struggle with others which follows the dialectic of desire. Law is a tool and effect of this dialectic; (human) rights acknowledge the constitutive role of desire. Psychoanalytical theory can help develop a sophisticated diagnosis of late capitalism and the psychological contribution of rights and rules. Using the Lacanian classification into the symbolic, the imaginary and the real, the symbolic of rights differentiates and allocates selves into a matrix of specific positions, roles, entitlements and duties. The imaginary idealizes self and society. It offers the comforts of a successful identity, community or humanity, of what is the same beyond our differences. But there is also the real, neither the ideal of the imaginary sameness of a common humanity nor the symbolic of regular differentiations of legal rights. The right to resistance and revolution emerges against both same and different as the singularity of absolute existence. Let us start with Hegel. The basic idea can be put simply. The self is both separate from and dependent upon the external world. Dependence of the I on the not-I, both the object and the other person, makes the self realize that he is not

Rights, identity, desire 107 complete but lacking, constantly driven by desire. Life is a continuous struggle to overcome the foreignness of the other person or object. Survival depends on overcoming this radical split between I and not-I, while maintaining the sense of uniqueness of self. Identity is therefore dynamic, on the move. I am in ongoing dialogue with others, a conversation that keeps changing others and re-drawing my own self-image. Intersubjectivity is mediated by objectivity, the reciprocal recognition with the other passes through the third: things, institutions, the world. Human rights are such a mediator, facilitating or hindering recognition. They do not belong therefore to humans nor do they follow the dictates of humanity; they construct humans. A human being is someone who can successfully claim human rights; the group of rights we have determines how ‘human’ we are; our identity depends on the bunch of rights we can successfully mobilize in relations with others. Rights must be linked therefore with deep-seated psychological functions and needs. From the heights of Hegelian dialectics we now move to the much darker territory of Freudian psychoanalysis. Human rights acknowledge the radical inter-subjectivity of human identity. They involve the other, as other self, as object world and as law, in the construction of self. The Hegelian tradition explains how rights are key tools in the struggle for recognition. Psychoanalysis adds that such recognition passes through the desire of the Other, as big Other, the symbolic order of language, law and institutions, and as the other person. For psychoanalysis, humanity as a speaking species is created through division and separation: from the maternal body, through the Oedipal law of the Father, from one’s one body through the narcissistic identification with its image, from the other through its negation in the sign, image or word.1 I must identify with my image in the mirror and with my name, those disembodied and meaningless signs, those instances of otherness to become an ego. I must accept division and negativity, I must accept that I am what I am not, in Rimbaud’s felicitous phrase that ‘Je est un autre’. The ego from the start is alter, an other; it is born in its encounter with the Big Other, the linguistic–legal universe symbolized by a sign which Lacan calls the master signifier or the Name of the Father. Entry into the symbolic order is, like the original sin, a happy fall. It is both necessary and catastrophic. It moves the child from the primordial union with the mother and the narcissistic identity of the mirror stage to the play of differences. Every place in the symbolic – father, sister, boss, secretary – is constituted in relations of differentiation from others. The face-to-face of the mother–infant dyad gives way to laws and introduces the subject to the differential structure of language, sexuality and kinship. There is a price to be paid for becoming a subject. We will never be complete, whole, fulfilled; lack, uncertainty, anxiety is the fate of the subject. This deprivation is paralleled to a symbolic castration: I was once complete but the Big Other maimed me, split off my most precious part – what is most myself is now cut off.

  1 Costas Douzinas, The End of Human Rights (Hart Publishing 2000) ch, 11.

108  The paradoxes of rights Jacques Lacan has named ‘real’ or the ‘phallus’ the union with the maternal body made impossible and banned by the symbolic order. The real is the inner secret or ‘kernel’ of the subject. It lurks taking various forms but we don’t recognize it often: a dislocation or breakdown in the process of signification, inconsistencies in language and actions over which we have no control or understanding, slips of the tongue, dreams, awkward symptoms and unexplained malfunctions. The real creates a ceaseless, destructive and creative pressure to return to the primal union (the death drive). It gives rise to an awesome, obscene enjoyment or jouissance. This extreme enjoyment circles around our unique trauma; it is energized by our failures. Enjoyment is symptom (displeasure) and fantasy (pleasure), a pleasure in displeasure, satisfaction in dissatisfaction. The symptoms are trouble, anomaly, deviation; they are also symptomatic solutions to deeper problems created by our constitutive lack. We enjoy the conditions we complain about. The Oedipal interdictions on parricide and incest attempt to shield the subject from this abysmal desire. It is preferable to identify symbolically with the social other, who bars enjoyment, than to be handed over to the abyss of the real. Desire has a deferred object, it is the desire of the other: we keep asking the other person and the Big Other: what do you want from me? What should I do to make you desire me? The desire for integrity makes me project the other as whole, non-lacking. But this gesture misfires. The other is as lacking as I am; no resolution of the impasse is forthcoming. Desire therefore can never be fulfilled; it keeps moving protecting us from the abyss. In this sense, the subject is essentially hysterical; the boy a failed girl, masculine subjectivity a case of failed feminine subjectivity, since the boy confuses the phallus with the penis and believes he is not castrated. A remnant or residue of the primal union with the maternal body survives however. It symbolizes the desired integrity or wholeness, which is both impossible (since the self created only after the separation has no access to the primal union) and prohibited (through the action of language and law). This remnant, the banned desire for nothingness or objet petit a, displaces and projects itself into objects, which act as cause, object and effect of desire. This remainder and reminder of the primal union which was not experienced, takes different forms that trigger the awe of jouissance: the (lost) breast, a gaze, a particular voice can distress us in ways the conscious self can neither understand nor accommodate. To protect itself from this disturbance of the real, the subject builds imaginary scripts, which displace jouissance towards ordinary objects and set off ordinary desires. We attach ourselves to various fetishes such as a sports car, a better job, more money, glory or success. But the attainment of the fantasy does not satiate desire, which immediately attaches itself to a new object, an even faster car or further promotion ad infinitum. The cause of desire is always deferred because return to the Real is impossible and barred. Desire is the excess of demand over need, something in every demand that cannot be reduced to a need alternatively what remains from a demand when we subtract need. The little object ‘fills the lack, the split that traverses the subject after castration, but, on the other hand, the objet a prevents any object from

Rights, identity, desire 109 really filling the lack’.2 Because the real object of desire cannot be present, it is displaced in inadequate identifications and imaginary constructions raised on the ground of repressed desire. The imaginary identifications with objects and ideals are failing attempts to deny death. They both mis-recognize desire and defend the self from the spectre of its morbidity. The little object is always deferred because it does not refer to a specific need or request but to the wish to become again complete, to be fully loved by the other in a way that would fill the lack. It is an impossible request and hope; the little object, the remainder of the real, makes all substitute objects inadequate, deferring and differing pleasure, always in search of something else or more or elsewhere.

Rights, desire, identity The French legal historian Pierre Legendre has argued that the law is the bond that links the biological, social and unconscious parts of life.3 According to a Roman maxim jus vitam institutet, the law constitutes life. This remains true today. For psychoanalysis, we must enter the symbolic order of language and law to become independent speaking subjects. But this first symbolic castration must be supplemented by a second that makes us legal persons and citizens. It introduces us into the social contract leaving behind the family intimacy of protection, love and care. The symbolic order of state law, morality and political power impose on us the demands of social life. God, King or Sovereign play the role of the universal father, an allegedly omnipotent social power that terminates the protected life of childhood and places us in the social division of labour. If entry to language and the law creates the speaking subject, the encounter with state law, becoming a bearer of rights, creates the legal person. This second socio-legal birth offers to the citizen the recognition given by rights. First, it confirms the person as a free and morally responsible agent with dignity and self-respect, formally equal with others. Second, it introduces the subject into adulthood, places him in the order of social division and hierarchy and connects him with the representatives of social and political power. The name of the father in the Freudian family drama is replaced by God or Sovereign, the supposed source of law and social power. If the name of the father makes us speaking subjects, the name of the Sovereign makes us by analogy acting citizens. In this sense, the Sovereign, as powerful, caring or threatening as the father or God, is a function for the subject. The Sovereign always has two bodies, one the mortal body of the office holder, the other a symbolic immortal figure that guarantees for the subject his entry into adult sociality. This second entry to the law or symbolic castration, denies the perceived wholeness of family intimacy and

  2 Renata Salecl, The Spoils of Freedom (Routledge 1994) 126.  3 Pierre Legendre, De la Société comme Texte : Linéaments d’une anthropologie dogmatique (Fayard 2001); Peter Goodrich (ed.), Law and the Unconscious: A Legendre Reader (Palgrave MacMillan 1997).

110  The paradoxes of rights replaces it with legal signs and marks, partial recognitions and incomplete entitlements. Rights by their nature cannot treat the whole person. The person is never a complete being but a persona, a mask placed over face and body in a combination of partial and often conflicting rights.4 Rights play an important role in the emergence of the adult person/citizen by serving symbolic, imaginary and real functions. Law and rights are the perfect tools of the symbolic order. They organize the relationship between citizen and state acting as a major pathway to the conflict-ridden realm of inter-subjectivity. Rights introduce us to social differentiation, functional specialization and independence. Entry to the public realm of differentiating rights is a fortunate escape from the imaginary identification with familial care and protection. Both indispensable and traumatic, it places us into a cold world of individuation, competition and conflict. The relational theory of rights explains how law emerges out of and shapes the social. Rights construct a system of relations and juxtapositions, a matrix-like structure in which the different positions are given in advance of our admission. We become persons by being admitted into this pre-existing universe of differentiated positions, of interlocking, overlapping and conflicting rights. We become persons by learning how to slot into the system of rights, which allocates us to our place, employer or employee, landlord or tenant, citizen or alien. Every position is the outcome of a complex network relationships and a meeting point with others. There can be no secretary without the boss, no servant without a master. The family warmth of imaginary identifications is now dislodged by the arbitrariness of the place in the interlocking chain of legal signifiers. This contest and alliance between imaginary misrecognitions and symbolic differentiations follows us throughout life. A legal person is a creation of law; we are born, live and die in a series of injunctions and possibilities, entitlements and burdens created by the law. The law is launched in the heart of the psyche. The law that prohibits, bans and punishes is the same law that contributes to our identity, freedom and well-being, it both creates and destroys.5 Moral inner law (the superego) and external social and state laws give us our marching orders and assign the masks, uniforms and colours that identify our existence. The letter of the law tickles and incites: enjoy the injunction and its breaking, be happy but not too much. Blessing and cursing, punishment and pleasure, happiness and restraint are the marks of legal operations. It is a perfect paradox: we are free, we become subjects only to the extent that we are subjected to codes and laws over which we have no control. The delusion of unity and mastery, propagated by liberal jurisprudence, is shattered: the most intimate part of self is constituted by what is totally other. Human rights make us human. To become myself I must be captured by legal codes, rules and signifiers. Rights offer the minimum recognition of abstract humanity, based on the minimum similarity of all. As tools of language and law,

  4 See Chapter 2 in this volume.   5 This is the ‘obscene’ superego that Slavoj Žižek has popularized.

Rights, identity, desire 111 as symbolic constructions, rights place me in a system of differentiated roles, desires and functions. My intimate identity is conditioned by the order of law launched inside me. My most personal feelings, my sense of being, of dignity and self-respect, are both mine and alien. They are intimately ‘mine’; but they are also external and alien as legal creations. The legal form is inscribed in me both attaching and detaching from the not-I. Rights attach me to what is ideally due to me, the ‘ought’ of the normative universe; they also detach me from my substance by subjecting it to an alien form. Rights are separate from my capabilities, the legal ‘ought’ from capabilities, the ‘ought’ from the ‘can’ of the material pre-conditions for its exercise. The law tells me what I can be and do, the most intimate part of self is created by what I am not. Like the prisoner in Kafka’s Penal Colony, the legal person learns what the law has ordained when it is stamped on the body. The law was written before my introduction and will take its course unconcerned by my needs and desires. The symbolic order creates and splits the subject of rights; the ego emerges through the rights it possesses but these rights exist in a system of linguistic and legal signifiers, over which we have no control and little knowledge. The failures of the symbolic are partially addressed by the imaginary order, a necessary support of subjectivity and personhood. Legal rights offer agency and well-being, they promise to fill the gap at the centre of existence. They offer an idealized vision of someone for whom society and the law care. Human rights offer the best strategy of imaginary identifications. They offer an image of self that differs from who I feel I am, making life palatable. A society of human rights is an ideal place, the perfect stage for the ideal ego. When asserting or fighting for my rights, I see myself as a person with dignity, respect and self-respect, potentially at peace with the world. A society that guarantees rights is a good place, peaceful and affluent, a social order made for and fitting the individual who stands at its centre. A legal system that protects human rights is rationally coherent and closed – Ronald Dworkin called it a ‘seamless web’ – morally good and pragmatically efficient.6 In a human rights place, I find myself in a world made for my sake. The world is on friendly terms with me, the law meets – or ought to and will meet – my desires. Jurisprudence offers a perfect reconstruction of this imaginary law and fantasy of rights consciousness: reality is internally coherent and follows the principles and values of liberal philosophy. The legal world is itself a coherent and consistent order that potentially gives all the necessary and right answers to sociopolitical conflicts. The judge is a mouthpiece, his interpretations strict and literal or creative and responsive are given by the inner resources of law. But this happy identification with the social and legal systems is false. The world is indifferent to me and my happiness or predicament, the law is not coherent or just, morality is not its business, peace is always temporary and precarious. The state of bliss is

  6 See, for example, Ronald Dworkin, ‘Hard Cases’ (1975) 88(6) Harvard Law Review 1057, 1093.

112  The paradoxes of rights always deferred, it is an empty pledge, an unachievable promise. It operates at the point of promise not of its impossible delivery. Law acts as an underground or parallel world to the real world. In the matrix of rights, real flesh-and-blood selves are represented by persons or avatars. These avatars are both false and real. They are false since their disembedded and disembodied existence moves at an ethereal level populated by reasons, arguments, statutes, court decisions and jurisprudential treatises. But they are also real since these abstractions control the life of real people. This double effect of rights leads to their fetishistic disavowal: we know that the promise of rights is false but still we believe in it. We need the allocation to the differentiated places that rights achieve, where an element stands for another; what matters is not the substance of self or ego but its location in a system of relations. Still we believe that the world is made for us, cares for our existence, some cosmic deprivation will follow our demise. We believe without much reflection that rights are bonded to the capacity to exercise them, that the right to work leads seamlessly to a job. The infant delights in the mirror image of a falsely unified body in the place of her disobedient and disconnected limbs. Similarly, the needy and desirous self sees in the promise of rights, agency and well-being, a future perfection of a present discontented self. At the collective level, the imaginary of human rights promise an end to conflict, social peace and prosperity. The pursuit of happiness was an early promise in the American Declaration of Independence. In late modernity, well-being and happiness have become the main purpose of the human rights project. This is the perfect fantasy. Happiness in most cases is neither the result of willed activity nor a calculated end but a lucky side-effect of active life. Happiness happens when doing something else. Our hope to develop a right to happiness betrays desire for frustration and unhappiness. Our imaginary scripts and fantasies help sustain reality’s consistency. If we remove fantasy from reality it loses its moorings and disintegrates. Psychoanalysis offers a tragic vision: identity and recognition, my most human and social part is the part conditioned by social institutions and law and therefore the most alien. We become human through rights, these creatures of the alienating institution of law. The fantasy is false and real, it acts and changes reality. In this sense, the question is not how to abolish rights but how to replace their atomizing effect with a different emancipatory imaginary. The imaginary order of human rights updates the classical ideas of utopia as the previous chapter explained. Reviving the utopian imaginary and linking it with human rights is a difficult task. Their early modern connection with resistance and revolutions has been severed. But the problems go deeper than the recent hijacking of human rights by governments and international institutions. The imaginary creates an immediate visual bond between the subject and the ideal ego, projects a beautiful self that fits in a good world, in a society made for the subject. Our imaginary identification with a happy self and a good society, a human rights society, accepts easily, too easily, that the language, signs and images of human rights are, or are about to become, our reality. The right to work, we claim, exists in the Universal

Rights, identity, desire 113 Declaration of Human Rights, the International Covenants, the Constitution, the law. Rights live in books and a parallel world of laws, texts and case law. The billions of people with no food, employment, education or health care do not discomfort unduly the normative universe. The necessary replacement of material life by signs makes us believe that the mere existence of clauses and procedures, of treaties and constitutions, without performance or action, affects bodies and completes identities. Finally, the symbolic and imaginary functions of rights find their limit in the real. They allow us to express our needs in language by formulating them as a demand. When we make a demand, we not only ask the other to fulfil a need but also to offer us unreserved love. An infant, who cries for his mother’s breast, needs food but also asks for the mother’s attention and love. Desire is always the desire of the other and signifies precisely the excess of demand over need. Each time my need for an object enters language and addresses the other, it is the request for recognition and love. But this demand for wholeness and unqualified recognition cannot be met by the other, either the Big Other of the symbolic order (language, law, the state) or the other person. The Big Other is the cause and symbol of lack. Similarly, the other person, whose love we crave, is subjected to the same separation (the symbolic castration) and lack as ourselves. The other cannot offer what the subject lacks, because he is also lacking. In our appeal to the other, we confront lack, a lack that can neither be filled nor fully symbolized, because law and language are the cause of the lack and cannot offer its cure. A human rights claim involves two demands addressed to the other: first, 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, second, a much wider demand to have one’s whole identity recognized 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 recognize us in our identity. When a lesbian argues, for example, that the rejection of a job application amounted to a denial of her human right to non-discrimination, she makes two related but relatively independent claims: the rejection 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 sexual preference 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 recognized and loved as a whole and complete person. The attainment of identity through the desire and recognition of the other fails even in those cases in which human rights are successful on the surface and succeed in legalizing desire. The subject of rights tries incessantly to find in the desire of the other the missing object that will fill lack and turn him into a complete integral 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 pursuit of happiness becomes the impossible demand to be recognized by others as non-lacking. Human rights become expressions of the unattainable ‘right to be loved’. Rights are the substitute given to the subject, the

114  The paradoxes of rights little pleasure or reward offered for his socio-legal subjection. As a remainder of desired social integrity and as substitutes for lack, they are the cause and object of desire. At the same time, rights signify lack and prevent it from being filled. Rights give the impression that the subject and society can become whole: If only my attributes and characteristics were given legal recognition, I would be happy; if only the demands of human dignity and equality were fully enforced by the law, society would be just. But like the little object, rights both displace and fill the lack and make the desired wholeness impossible. The other’s desire escapes the subject, always seeking something else. Rights become a phantasmatic supplement that arouses but never satiates the subject’s desire. Rights agitate for more rights: they create new areas of claim and entitlement which time and again prove insufficient. We keep demanding and inventing new rights in an endless attempt to fill the lack but desire is endlessly deferred. Rights may meet real or imaginary needs and may extend recognition to people. But their main task is to keep the legal subject in the position of desiring, in other words, to help maintain it as subject. Following our desire, we keep fighting for ever more effective rights, but the progressive legalization of existence, in which many aspects of life become rights, keeps undermining the unity of self. Each new and specialized right, the right to same-sex marriage, for example, exposes the artificiality of the ego by increasingly colonizing its intimate parts. 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 disjointure of self. As endless desire and escalating fears increasingly dominate relationships, communities start fragmenting. 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. The ideological triumph of human rights is paradoxically consistent with the empirical observation that our age has witnessed their greatest violations. Political power acknowledges and codifies the insight that rights make us human. In the western world, their protection has become the mark of civility of a society. But their success is limited. 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. Fully positivized rights and legalized desire extinguish the self-creating potential of human rights. They become the symptom of all-devouring desire – a sign of the sovereign or the individual – and at the same time its partial cure. In a strange and paradoxical twist, late-capitalist societies follow what one could call ‘Foucault’s law’: the more rights we have, the more insecure and unfree we feel. There is, however, one right associated with the real of radical desire: the right to resistance and revolution, the most alien in the body of law and at the same time what is mostly of our essence. The real is a foreign body, a stranger in me, who is, however, closer to my being than identity and ego. The act of resistance traverses the fantasy and falsification of sameness and the allocation of place or alienation of rights that sustain our desire. This is the place where eros comes

Rights, identity, desire 115 into conflict with the ethos of sameness and the morality of rights goes beyond pleasure and the reality principle. Resistance means to see through imaginary identifications and symbolic differentiations. Radical desire confronts the idealizations of sameness and the classifications and assignments of the law. The real is close to the death drive, to this unstoppable call to transcend the genteel pleasures of the symbolic order for something closer to our destructive and creative inner essence or kernel. Taking risks, not giving up on your desire is the ethical call of psychoanalysis. Resistance and revolution is their social equivalent. The impossible and disavowed real returns and keeps the subject and society afloat. The symbolic of rights exorcize revolution but it is the right to revolution that keeps the legal system and human rights live in the world and our psyche.

8 Marx, the radical left and rights

Rights in dispute There was a period in the late 1980s and 1990s when Marxist intellectuals, shaken by the Gulag revelations and stricken by the collapse of the communist states, started welcoming human rights. Claude Lefort, Jean-François Lyotard, Etienne Balibar and Jacques Rancière, among others, participated in this move. It coincided with the ‘end of history’ bragging of liberal capitalists and the revisionist historians of the French Revolution which emphasized its failures, terror and totalitarianism. It was a time of defeat and demoralization for the left, including its anti-Stalinist varieties. All that had been solid in radical thinking started melting into the air. The move was welcomed by the liberal establishment as further evidence that no major change in the socio-political world was possible. To be sure, for the post-Marxists, a decorous courting of universalism, cosmopolitanism and human rights was a way of rejecting right-wing triumphalism and the claims of the nascent empire while retaining some of their respectable liberal credentials. In time, Claude Lefort went furthest and has become something of a liberal hero,1 while Etienne Balibar has consistently pursued his quest for universalism and left social democracy, turning, according to Slavoj Žižek, into an ‘anti-Habermas Habermasian’.2 By the end of the second decade of the new century, however, the economic and political crisis and the return of right-wing nationalism that engulfed the world as a direct result of neoliberal policies undermined post-Cold War complacency. If 1989 was the inaugural year on the new world order, 2001 started its decline and 2009 was the beginning of its end and the return to full-blown

  1 Claude Lefort, The Political Forms of Modern Society (ed. John B. Thompson, MIT Press 1986); Etienne Balibar, ‘Citizen Subject’ in E. Cadava, P. Connor and J.L. Nancy (eds), Who Comes after the Subject? (Routledge 1991); Etienne Balibar, ‘Subjection and Subjectivation’ in Joan Copjec (ed.), Supposing the Subject (Verso 1994); Jean-François Lyotard, ‘The Other’s Rights’ in Stephen Shute and Susan Hurley (eds), On Human Rights (Basic Books 1993); Jacques Rancière, ‘Who is the Subject of the Rights of Man?’ (2004) 103(2/3) South Atlantic Quarterly 297.   2 Slavoj Žižek, The Ticklish Subject (Verso 2000) 172.

Marx, the radical left and rights 117 history. If this is our ‘new world order’, it is the shortest the world has even seen. The predicted end of the cosmopolitan hopes confirmed by Brexit, the election of President Trump and the multiple crises of the European Union have led to a renewed interest in radical ideas and politics. Communism and its philosophical idea have returned to the intellectual and political agenda. The left of the twenty-first century can leave behind the period of introspection that started with the fall of the Berlin Wall. Those who historically aligned themselves with ‘actually existing socialism’, have disappeared or turned into a historical curiosity. The radical left is now represented by parties and intellectuals associated with Eurocommunism, left-wing social democracy, ecology and anarchism, political trends which constantly and consistently criticized Stalinism even at the height of the Cold War. The historiography and theory of the left was always linked with political practice. Thinking in action has been the left’s main weapon. The return of theory to radical politics after a period of penance and meditation is doubly welcome. It means that the philosophical, political and institutional themes of the age are up for a non-dogmatic re-evaluation. Turning specifically to human rights, the turn led to a revision of leftist revisionism. Alain Badiou has dismissed the humanism and moralism of rights in Ethics,3 Slavoj Žižek has questioned the emancipatory potential of human rights after some wavering,4 while Michael Hardt and Antonio Negri consider international law and institutions as key aspects of a new imperial constitution.5 The writer of this volume has charted the link between human rights and the rise of imperial cosmopolitanism.6 The hypocrisy of rights fanatics has come under close scrutiny. These criticisms have not led to a total rejection. What has emerged is the paradoxical nature of rights discourse and the contradictions of its practice.7 The defence of refugees and the sans papiers, a major campaign of Badiou’s ‘organization politique’, cannot avoid rights-talk. Badiou and Žižek are the most consistent champions of universalism. Hardt and Negri’s recipe for turning empire’s claims into radical multitude’s expression takes the form of social rights. Jacques Rancière finds in human rights a good example of the radical politics he espouses. The Syriza radical left government in Greece has promoted human rights laws. They include offering citizenship to immigrants, introducing civil union and adoption rights for LGBTQ people, giving access to the national health system to

  3 Alain Badiou, Ethics: An Essay on the Understanding of Evil (Verso 2013).   4 Žižek, op.cit., and Slavoj Žižek, ‘Against Human Rights’ (2005) 56(July/August) New Left Review 56; Slavoj Žižek, The Fragile Absolute (Verso 2009).   5 Michael Hardt and Antonio Negri, Empire (Harvard University Press 2001); Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (Penguin 2005).   6 Costas Douzinas, Human Rights and Empire (Routledge 2007).   7 Wendy Brown, ‘Suffering the Paradoxes of Rights’ in Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique (Duke University Press 2002) 420–34; Anthony Langlois, ‘Human Rights in Crisis? A Critical Polemic against Polemical Critics’ (2012) 11(4) Journal of Human Rights 558.

118  The paradoxes of rights 2.5 million uninsured and offering basic economic and social rights to the poorest. The embarrassed sotto voce flirting between left and rights has been renewed, albeit in a radical new direction that combines a rigorous defence of universalism with a resolute rejection of liberal human rights ideology. After decades of ready-made dismissal or uncritical acceptance of rights, this is the time to re-visit left critique in the context of late capitalism. Let me start with the founding myth of the endless struggle of justice and injustice, an expression of which is the paradox of rights.

The Anaximander myth Based on the oldest extant Greek text, a fragment by Anaximander, I have written elsewhere about the relationship between dike, the order of the world or the socio-economic system and, adikia, injustice.8 The fragment reads: ‘but where things have their origin, there too their passing away occurs according to necessity; for they are judged and make reparation (didonai diken) to one another for their adika (disjointure, dislocation, injustice) according to the ordinance of time’. In a philosohical interpretation that builds on the translations of the fragment by Friedrich Nietzsche, Martin Heidegger and Jacques Derrida, I have argued that the possibility of catastrophe is the inescapable companion of human existence. History is a continuous struggle; human activity (techne) intervenes in the order of the world and keeps unsettling and rebuilding it. But adikia, dislocation, disjointure or injustice, lurks behind every achievement. The sense of injustice prepares militants who resist the dominant order; this permanent rebellion is history’s reparation for the original adikia. Adikia is the unending struggle between techne, violent human endeavour, and dike, the overpowering order of the world as well as the limit in between that keeps freedom and necessity apart. Each epoch’s form of adikia creates the subjects who resist and transform it. History moves in a combination of theory, politics and radical subjectivity. The theory of justice has been the oldest endeavour and failure of human thought. Since Homer, the Bible and Plato, the best minds and fieriest hearts have tried to define justice or imagine the conditions of a just society. They have failed. Justice and injustice succeed not as normative predicates but as subjective motivations. Adikia’s endurance creates the common feeling that we are surrounded by injustice without knowing where justice lies. This is the paradox of justice: while the principle has been clouded in uncertainty and controversy, injustice has always been felt with clarity, conviction and a sense of urgency. We know injustice when we come across it, its truth is felt. Every time, however, a theory of justice was put into practice, it soon turned into another instance of injustice. Dissidents and revolutionaries, from Antigone to Michael Kolhaas and Che Guevara, answer the sense of injustice that adikia begets. Injustice has always preceded and exceeded theories of justice. Life starts with injustice and rebels against it. Thinking follows; it contemplates justice and often ends up as another case of injustice.

  8 Costas Douzinas, The End of Human Rights (Hart Publishing 2000) 24–5.

Marx, the radical left and rights 119 The dialectic between justice and injustice does not lead to their synthesis. Injustice is not the opposite of justice; the unjust is not the contrary of the just. Suffering injustice is not the logical opposite of doing injustice.9 Adikia is both the gap between justice and injustice and the endless but impossible attempt to bridge it. It is what the symbolic order tries to suppress and the prolific theories of justice (the imaginary) to legitimize, failing each time. Adikia is the real of the world. It has been called the unbridgeable gap between God and creation, the self–other ontological division, the friend/enemy political condition, the class struggle or the death drive. In all these nominations, ‘[T]his kernel of the Real encircled by failed attempts to symbolize-totalize it is radically non-historical: history itself is nothing but a succession of failed attempts to grasp, conceive, specify this strange kernel’.10 Its earliest generic name was adikia.

Marx on natural rights Kant argued that the French revolution led to a palin-genesis, a re-birth of the nation. As Chapter 12 of this volume argues, however, constitutions and law morally reject and formally negate the right to resistance and revolution. Once the revolution succeeds the revolutionaries, aware of the power of resistance to change the world, repudiate its normative foundation. The dialectic between the new form of dike and the adikia it begets is repeated each time. This is precisely the point of entry of Marx’s critique of the French revolution and its rights. It placed the normative claims of the rights of man in the context of emerging capitalism. Marx’s specific critique of natural rights was part of his wider theory. In feudalism, political power, economic wealth and social status coincided. The political dominance of the rising bourgeoisie, on the other hand, could be ensured precisely through the apparent loss of direct political power. The rights of man removed politics from society and ended the formal identification of economic dominance and political power. Politics became confined into the separate domain of the state. At the same time, property and religion, the main safeguards of class dominance, were turned into private institutions located in civil society and protected from state intervention through the operation of natural rights. This ‘demotion’ to the private realm made property more effective and guaranteed its continued dominance. In this dialectical formulation, the main aim of natural rights was to remove politics from society and de-politicize the economy. After the separation, the state is presented as (politically) dominant, while real (economic) power lies in capitalist

  9 ‘That is what is unjust. Not the opposite of the just, but that which prohibits that the question of the just and the unjust be, and remain, raised’, Jean-François Lyotard, Just Gaming (trans. W. Godzich, Manchester University Press 1985) 66–7. Derrida’s ‘indeconstuctibility’, ‘incalculability’ and unconditionality of justice leads to the same conclusion. Justice is always to come; we do not know its nature and cannot theorize it besides proclaiming its radical otherness. 10 Slavoj Žižek, For They Know Not What They Do (Verso 2008) 101.

120  The paradoxes of rights society. The bourgeois abandonment of the direct political power of feudal lords and kings was the pre-condition for the ascendancy of bourgeois society and the triumph of its capitalist principles. In this bourgeois hall of mirrors, natural rights support selfishness and private profit. Politics and the state, on the other hand, replace religion and the church and become a terrestrial quasi-heaven in which social divisions are temporarily forgotten as the citizens participate in limited formal democracy. The liberal subject lives a double life: a daily life of strife in pursuit of personal economic interest and a second which, like a metaphorical Sabbath, is devoted to political activity and the ‘common good’. In reality, a clear hierarchy subordinates the political rights of the ethereal citizen to the concrete interests of the capitalist, masquerading in the form of natural rights. Marx’s attack on natural rights inaugurated ‘ideology critique’. He used a number of strategies finessed by later critics, as the next part shows. First, equality and liberty are ideological fictions emanating from the state and sustaining a society of inequality, oppression and exploitation. While natural rights (and today human rights) are hailed as symbols of universal humanity, they were powerful weapons in the hands of the particular (bourgeoisie). Ideologies, class interests and egotistical concerns appear natural, eternal, in the public good when glossed in the rights vocabulary. Second, rights turn real people into abstract ciphers. The abstract man of the declarations has no history or tradition, gender or sexuality, colour or ethnicity, those elements that make people real. All content is sacrificed at the altar of abstract humanity. This gesture of universalization conceals, however, their real subject: a human-all-too-human, wealthy, white, heterosexual, male bourgeois standing in for universal humanity, who combines the dignity of humanity with the privileges of the elite. The emancipation of universal man subjects real people to a very concrete rule: ‘the rights of man as different from the rights of the citizen are nothing but the rights of the member of civil society, i.e. egotistic man, man separated from other men and the community’.11 A related argument emphasizes the statism of rights. Effective rights follow national belonging. While proclaimed on behalf of universal humanity, beyond local or historical factors, only national citizens get their full protection. The gap between universal man and national citizen is populated by millions of refugees, migrants, stateless, wandering and nomadic people, the inhabitants of camps and internment centres, the homines sacri who belong to ‘humanity’ but have few if any rights because they do not enjoy state protection. Third, formal equality (the legal entitlement to have property) treats unequals equally as a matter of right and fairness. This turns equality into an ideological construct; it also promotes material inequality, poverty and destitution and undermines close human relationships. Right by its very nature can consist only in the application of an equal standard; but unequal individuals (and they would not be different individuals if they

11 Karl Marx, ‘On the Jewish Question’ in David McLellan ed., Karl Marx: Selected Writings (OUP 2000) 60.

Marx, the radical left and rights 121 were not unequal) are measurable only by an equal standard in so far as they are brought under an equal point of view, are taken from one definite side only [...] one worker is married, another not; one has more children than another, and so on. To avoid all these defects, right instead of being equal would have to be unequal.12 Finally, Marx’s critique of specific rights was scathing. They proclaim a negative freedom based on a society of isolated monads who see each other as threats. The right to ownership is nothing more than the protection of private property on the means of production. Freedom of opinion and expression is the spiritual equivalent of private property, a claim fully validated in the era of Murdoch, Zuckerberg and Gates. Anticipating the recent bio-political turn, Marx argued that the right to security is the only real right. It constructs artificial links between (fearful) individuals and the state and promotes the ultimate social value, law and order. Policing, the ‘highest social concept of civil [bourgeois] society [...] the assurance of [bourgeois] egoism’,13 undertakes to keep social peace and public order in a conflictual society. Marx however did not dismiss rights out of hand. Commenting on the 1848 Revolution, he spoke of a different right: The right to work is, in the bourgeois sense, nonsense, a wretched, pious wish. But behind the right to work stands power over capital. The appropriation of the means of production, their subjection to the associated working class. That is the abolition of wage labour, capital and the mutual relationship.14 The communist revolution will realize the universal promise of rights by negating moralistic form and idealist content. Freedom will stop being negative and defensive and will become a positive power of each in union with others. Equality will no longer mean the abstract comparison of unequal individuals but catholic and full participation in a strong community. Property will cease being the limitation of each to a portion of wealth to the exclusion of all others and will become common. Real freedom and equality look to the concrete person in community, abandon the formal definitions of social distribution and inscribe on their banners the principle ‘from each according to his ability, to each according to his needs’. For this to happen, the political revolution symbolized by the rights of man must be superseded by a social revolution which will lead to the emancipation of the human species. As revolution is the only way to radical change, Marx defends

12 Karl Marx, ‘Critique of the Gotha Programme’ in ibid., 615. 13 Ibid., 61. See also Walter Benjamin, ‘Critique of Violence’ in Reflections (ed. P. Demetz, Schocken Books 1978). 14 Karl Marx, ‘The Class Struggle in France: 1848 to 1850’ quoted in Luc Ferry and Alain Renaut, From the Rights of Man to the Republican Idea (University of Chicago Press 1992) 88.

122  The paradoxes of rights the right to revolution, the defamed and abandoned part of the Declaration, against its hasty philosophical and legal dismissal and its repeated and brutal political suppression. The right to resistance and revolution and the demand for real equality, the building blocks of the eighteenth-century legacy, have survived and endure on the banners of the left.

Marxism, rights and capitalism As the first part of this book explains, the philosophical form of the person is the subject, the economic form the individual, the political the citizen. The subject is the metaphysical ground of modernity, the individual is central to the operation of the economy, the citizen for politics. The subject, the child of a marriage of convenience between law and Christianity, forms the moral ground of autonomy and freedom as Immanuel Kant, Jean-Paul Sartre and positivist jurisprudence argue. But the subject is also subjected to the law, as Franz Kafka, Louis Althusser and Jacques Lacan have insisted. The individual pursuing her interests is a functional requirement of capitalism. Finally, liberal democracy needs citizens, who choose among competing parties, policies and platforms. Citizens link individual interests, class positions and the public good. The person, with its various masks and permutations, lies behind all important institutions and practices. The historical provenance of the subjected and free subject is legal and moral-religious. The person belongs to law as the most prominent characteristic of modernity’s nomophilia. We live in an epoch of legality and subjectivity. Indeed the subject comes to prominence because of the metaphysical significance of legality, which cannot function without an active centre and addressee, without a subject. It was this link of positivism and idealism that Marx brilliantly demystified by explaining the dynamic of the form of legal person with its rights. Individual claims to freedom are the result of socio-economic determination. Persons and rights are necessary for the operation of capitalism both at the level of production of goods and at the level of circulation and exchange. Useful things are produced in factories, farms and workshops and are then sold and bought as commodities. Capitalist production needs atomized subjects whose ability to work is a commodity ‘freely’ sold and bought for wages. Things, including the labour power of workers, are sold for a price, which represents their exchange value. For this to happen, people must be recognized as owners of the things they sell and as agents who go to the market and negotiate deals. Finally, the circulation and acquisition of commodities takes the form of an exchange between things or of a sale for consideration according to the law of formal equivalence. Law facilitates the circulation of commodities by providing the forms of the legal person and individual rights. The worker, owner of his body and labour, is the model legal person. Personhood abstracts from the specific characteristics of the human being, brackets its history, needs, desires, treating humans as calculable and comparable units. In the same way that the worker sells his labour power for a wage, the legal person ‘owns’ his rights. In this sense, rights become a universal exchange system like money turning everyone into owners

Marx, the radical left and rights 123 of comparable value. Property and contract law, private law more generally, is central to the operation of the market. Law’s main business is to bring together individuals and their property and facilitate economic transactions by legally validating their activities and bargains. Ownership, the right to possess, own and alienate things, is the foundation of capitalism. People must be recognized as owners of things, as broadly free and equal and as relating to each other through property transactions. The modern conception of property is justified by the Lockean claim that man possesses his body, labour and the things produced or appropriated by him. But things must be brought to the market, someone must take them to the bazaar. The legal person, as owner of things and rights, is the little pedlar who brings his wares to the huge car-boot sale of the world. Persons are said to have or ‘own’ rights: property is placed at the basis of law and beyond all challenge. The law serves property and creates rights. Hegel explained that the person and the owner of rights are synonymous.15 The law designates humans as persons with rights and relates them to each other by means of these rights. Despite the exalted and dignified claims of constitutional lawyers and the Carl Schmitt/Giorgio Agamben brigade, the nervous system of capitalism is private law, property and contract. The state, the police and criminal law do not ground capitalism. Their job is to protect the socio-economic system from individual or collective challenges. Legal ontology separates and atomizes people in order to bring them together. Evgeny Pashukanis, the bestknown expositor of Marxist legal theory, argued that the legal person is the most advanced form of the legal relationship, the necessary manifestation of a system based on buying and selling. Law proper emerged with capitalism, which created the commodity and, its companion, the legal form.16 Capital needs abstractions such as the legal person, the reasonable man and equality before the law in order to have products go to the marketplace and become commodities. The market and capitalism would not operate if individuals were not turned from concrete beings with varying desires and needs into equivalent units that buy and sell commodities, including their labour power. The fetishism of commodities is replicated in the fetishism of the legal form. The concept of commodity fetishism derives from a reversal of Ludwig Feuerbach’s religious fetishism. Man projects his essence onto God and at the same inverts the causal relationship believing that God is the only true subject and the source of humanity’s essence. Commodity exchange in civil society between commodity owners gives rise to the law of value, which transforms concrete into abstract human labour and concrete individuals – commodity owners – to abstract legal subjects. But people misperceive the practice; the outcome of unequal social relations is presented as the fair result of equal legal exchanges. Capitalist social relations’ exploitation of workers at the point of production is accompanied by

15 Costas Douzinas, ‘Identity, Recognition, Rights or What Can Hegel Teach Us About Human Rights?’ (2002) 29(3) Journal of Law and Society 379. 16 Evgeny Pashukanis, Law and Marxism: A General Theory (Pluto Press 1987).

124  The paradoxes of rights the circulation of commodities, which calls for and creates, its pre-condition: the forms of person, rights and equivalent exchange. Exploitative class relations become hidden by the superficial equality of exchange. As Pashukanis put it, ‘the legal subject [...] assumes the significance of a mathematical point, a centre in which a certain sum of rights is concentrated.’17 The same happens with equality. The idea of value equivalence of unequal commodities, necessary for their circulation and translation into a monetary price, becomes a cardinal legal principle, concealing the fact that its operation contributes to the consolidation and increase of real inequality. Individuals are independent; they are linked to each other contractually. They are also inter-dependent because their survival depends on buying and selling goods. The main business of law is to regulate relations among individuals as regards their possession and property and to arbitrate disputes about contested things and rights. In this sense, property and legal personhood are strictly equivalent. The person is the legal mask that facilitates commodity exchange. For law, subjectivity is always inter-subjectivity mediated by objectivity, by property and rights. People are turned into atomized individuals who relate to each other externally and contractually. The exchange of commodities, a job for wages or a car for a price, follows the form of equivalence or equal value on both sides of the bargain. The value equivalence of commodities is then extended and mirrored in the equivalence among legal persons, typically presented as equality before the law. Legal persons are free and equal when they realize a fair price for their wares. The law formalizes and regulates the circulation of commodities; it helps designate it as the realization of freedom and equality. The legal person bridges the abstract existence in the marketplace with the concrete life in the workplace.

Person and legal ideology The free and equal persons of the Declarations and the Bills of Rights are an effect of legal ideology. We are all free, equal and permanently involved in contractual buying and selling. The legal person is ‘free’ when he goes to the market. But the working individual behind the mask, the wage labourer and the clerk, are anything but free at the place of work. Legal personality and the equivalence of exchange conceal the social inequality in work and life. Once atomized and unequal people don the mask of personhood, they become legally equal persons, politically active citizens and socially unique individuals. Abstract and ethereal as well as concrete and material, the person moves between metaphysical ideal nature and concrete legal entitlements. The declaration that legal persons are free and equal is the historically specific outcome of the operation of private law and the market. But legal ideology goes further to claim that all men are free and equal ‘by nature’. The formal equality

17 Ibid., 39.

Marx, the radical left and rights 125 of legal persons turns into a claim of real equality of humans; a condition that preceded logically and/or historically the legal order. Law’s job therefore is to guarantee the demands of nature. But the legal person is a creation of the law it supports, it does not exist outside legality. Duties and obligations were the primary resource of pre-modern morality and law. The theoretical priority of rights and persons over law is an effect of legal ideology. The turn to natural, legal and human rights reversed the ethics/law nexus and privileged the asocial individual. ‘What is the ideological function of the originally free individual?’ asks Warren Montag in an essay that compares Hans Kelsen and Louis Athusser.18 The paradox of a legal subject that exists before the law, which however gives it its legal status, places the subject both outside and inside the law, like Schmitt’s or Agamben’s sovereign. The legal person and her rights come before and outside of law, which created them. Human rights follow a similar pattern. The human is a natural entity outside and before the law. But it is the law’s job to protect the rights of natural existence. The human, both outside and inside the law, is a liminal entity. The endless postponement of human rights, the fact that economic and social rights can never be achieved is not an effect of the frustration of the ideal by empirical hurdles. The paradox exists in the ideal itself. Its non-realization is inscribed in the form and not the content of human rights. The human with rights prior to but creations of the law ensures the failure. The gap between theory and practice is not some annoying detail to be overcome. The secret of human rights is their constitutive inoperativity. Their failure engenders an endless promise of future fulfilment and animates their defenders. If the gap were to close, the very idea of human rights would come to an end. The effects of legal ideology go further. Ownership of the means of productive economic activity, such as factories, machines or land, is equated with personal property such as a home, a car, personal and intimate belongings. A factory, a TV station, or a large ferry are different from a small flat, a car or a fishing boat. Yet they are all treated as instances of the same property form. A room of one’s own is formally identified with the ownership of major assets used to command, control and exploit people. The general and indistinct right to property conflates the personal possessions necessary for survival with property as capital. This way, property externalizes self, as Hegel put it; having a room of one’s own legitimizes the ownership of Google or Daimler-Benz. The ideological work of property and its intimate link with personality and rights contributes to the acceptance of highly objectionable legal and social practices. The domination and exploitation of working people and the exclusion of those who do not conform with social norms is presented as morally right and naturally or socially inevitable. The nineteenthcentury idea of the ‘deserving poor’ and the recent ideas of ‘one-use humans’ or ‘human detritus’ objectifies the social construction of exclusion and justifies oppression as a result of inferiority or character defects.

18 Warren Montag, ‘The Threat from the Outside: Althusser’s Reflections on Law’ in Laurent de Sutter, Althusser and Law (Routledge 2014).

126  The paradoxes of rights Capitalism is therefore both the cause and effect of the free, equal and ethereal legal persons. As the state of nature myth insists, people have unlimited property and rights in a pre-social and pre-legal world. This temporal and narrative priority turns the property of things and ownership of rights into the most important institution, something before and beyond society and the law. Property existed, we are told, before civil law; as the foundation of the legal system, it stands beyond its reach. The first priority of the legal order is therefore to protect the right to property. Property turns into an institution the law cannot violate. The law creates the right to property; at the same time since property forms the origin and foundation of the legal order it cannot be breached. Possession and the right to property are the prototype and model of all rights; the property institution is protected by a barrier that the law cannot surmount. This way property, the original right, has become the model for all rights. The presentation of property as right and of rights as property operates as a double mirroring strategy. Property and rights are owned, one ‘has’ rights. Property gives the right to use, enjoy its object and exclude others. Similarly, ‘having’ a right to X means that I ‘can do’ or ‘have’ X. But this is false. The gap between rights and their enjoyment or between civil and political as against economic and social rights is not incidental or secondary. It is based on the constitutive nature of property and its conceptual identification with rights. The right to property supports all rights; they are presented and experienced as entitlements akin to property mirroring the dignity of rights back onto the institution of ownership. Legal personality is created by law and in the name of law. The person’s patrimony includes religious and moral elements. The power and prestige that law gives to the legal person returns to the law, as it projects and reflects itself in the dignity of the person. The circle operates by occluding its operation. The law says that the person has rights protecting his dignity; he has free will and protects his interests. The tautology of the short-circuit law-person-law secures legal ideology and invests law and personality with an autopoietic and self-reproducing prestige.

The radical reassessment of rights Human rights theory has been characterized by a conflict between their liberal celebration as the greatest achievement of the human spirit and their rejection by strands of Marxism and communitarianism. Human rights are Janus-like, they can both emancipate and dominate, protect and control. The Marxist philosopher who greatly emphasized their paradoxical action is Ernst Bloch.19 Bloch

19 Bloch’s combination of utopianism, interest in natural law and qualified support for the communist states meant that he did not feature in the pantheon of Western Marxists, despite his affinity with Walter Benjamin and the Frankfurt School. See Vincent Geoghegan, Ernst Bloch (Routledge 1996) and J.O. Daniel and T. Moylan (eds), Not Yet: Reconsidering Ernst Bloch (Verso 1997).

Marx, the radical left and rights 127 retains the main elements of Marx’s critique of rights but discovers in the tradition of natural law the historically variable but eternal human trait to resist domination and oppression and to imagine, fight and achieve a society in which ‘man will walk upright’. There can be no real foundation of human rights without an end to exploitation and no real end to exploitation without respect for rights. Bloch’s criticisms of the illusions of ‘bourgeois natural law’ are devastating. But human rights hail also from the tradition of critique of power, convention and law and have developed in two directions. Initially, rights were associated with dominium, possession and property, the legal dominance over things and people and were invented in order to protect creditors from debtors.20 Human rights emerged from this early right to property but were, adopted in a quite different way by the exploited and oppressed, the humiliated and degraded. It is precisely this that appears in its incomparable second sense as the subjective catchword of the revolutionary struggle and actively as the subjective factor of this struggle.21 Bloch concludes that a historically enduring sense of resistance and rebellion shows the human ‘intention of freeing themselves from oppression and installing human dignity, at least since the time of the Greeks. But only this will is immutable, and not [...] “man” and his so-called eternal right’.22 Bloch’s Natural Law and Human Dignity is the most advanced Marxist reading of the history and philosophy of human rights influenced by German idealism and Marx’s early writings. Penned at the height of the Cold War, it adopts an evolutionary philosophy of history and prophesies the realization of humanism in communism. Radical human rights condemn bourgeois legality while at the same time realizing their kernel, the principle of hope of (socialist) humanism. Bloch’s insistence on the will to resist and rebel, freed from humanist idealism, can help resituate normativity. If progress is no longer guaranteed by historical necessity and the revolutionary wager has been firmly placed on the long odds of the coming event, as Alain Badioy argues, how can values and norms prepare the epiphany and the fidelity necessary for its realization? If radical change is not the linear unfolding of the human spirit, but a rare and unpredictable instance of eternal return how does the event link with moral imperatives and psychological motivations? As Peter Hallward puts it, ‘isn’t there a danger that by disregarding issues of motivation and resolve at play in any subjective decision, the militants of truth will preach only to the converted?’23 Is there a synchronic constant beyond

20 Richard Tuck, Natural Rights Theories (Cambridge University Press 1979) ch. 1. 21 Ernst Bloch, Natural Law and Human Dignity (trans. Dennis J. Schmidt, MIT Press 1988) 217. 22 Ibid., 191. 23 Peter Hallward, ‘Introduction’ in Peter Hallward (ed.), Think Again: Alain Badiou and the Future of Philosophy (Continuum 2004) 17.

128  The paradoxes of rights historicism and finitude that moves people to answer the call of Badiou’s ‘void’ and change the situation? This type of question led a number of post-Marxists including Claude Lefort, Etienne Balibar and Jacques Rancière to take up again the subject of rights. According to Lefort, the main achievement of the revolution was its political character. The revolution was an episode in the history of state and politics rather than an effect of economic development. The essence of the democratic state is to subject the state to law and open power to public debate and challenge. When human rights become the ultimate reference of politics, established right, justice and knowledge are open to question and challenge. In his zeal to attack the French Declaration, Marx presented its freedoms as negative and individualistic. He refused to think ‘in political terms’ and could not recognize this new type of democratic politics.24 Etienne Balibar, has similarly argued that the French revolution turned the premodern subject into the modern citizen, replaced monarchical with popular sovereignty and opened a political space for argument and critique based on citizen equality as pre-requisite of freedom. Balibar criticizes Marx for placing too much emphasis on the separation between public and private. The French Declaration identified man and citizen and brought together for the first time freedom and equality under a universal right to political participation. Their indissoluble link means that all rights-claims are politicized: they express a demand for extension of citizenship or ‘equaliberty’ and inscribe indeterminacy or ‘negative universality’ at the heart of the polity. The critiques of Lefort and Balibar have radicalized political philosophy. Lefort has insisted on the democratic character of modern politics. Balibar turns the normativity of legal freedom and formal equality into the regulative principle of ‘equaliberty’. First, it means that neither freedom nor equality can exist without the other. The suppression or the limitation of one necessarily leads to the suppression or limitation of the other. Second, equaliberty implies universality, a historical process of extension of rights to the whole of humanity. Finally, equaliberty creates a universal right to politics, the right of every man and woman to become a citizen, an active ‘subject’ who pursues her interest and values.25 Each instance of domination and oppression should be judged therefore from the perspective of universal equaliberty. This celebration of social democracy underestimates, however, the often counter-productive role of law and legalism. Power and right may have been partly separated, as Lefort insists, and the citizens may have been declared sovereign, according to Balibar. But law remains a state language and power can shape it in its own image. Human rights introduce indeterminacy into law. They are caught in an endless aporia between legality and morality, which turns then into a highly paradoxical institution: both a defensive mechanism for the people and a means for empowering capitalist domination.

24 Lefort op. cit., 254. 25 Etienne Balibar, ‘What is a Politics of the Rights of Man?’ in Etienne Balibar, Masses, Classes and Ideas (Routledge 1994) 211–13.

Marx, the radical left and rights 129 In the post-1989 world, rights have expanded and touch almost every part of daily existence. Democracy is presented as the exercise of a bunch of rights; policy priorities and decisions take the form of extensions or expansions of rights; criminal law protects the rights of victims, commercial the rights of customers, public law upholds the rights of citizens. Rights become negative protections against state power of all kinds – from taxation and the provision of health care to immigration policy and slum clearance; and positive projections of individual will – we all have a human right to properly functioning kitchen gadgets, a British minister recently intoned. Every individual desire and want can be dressed in the language of rights: for the affluent middle class, rights are the public and legal recognition of an unlimited and insatiable desire. In a society of free choice, it is forbidden to forbid. These developments mean that rights have become both the site and the stake of politics. Marx argued in the nineteenth century that the rights to property and religious freedom removed them from state intervention, de-politicizing and offering them the strongest protection possible. What is the effect of the contemporary proliferation of rights-talk and its colonization of major aspects of life? Rights legalize social struggle: they individualize political claims, turn them into technical disputes and remove the possibility of radical change, in other words, rights de-politicize politics. In this sense, human rights operate on a dual register: they conceal and affirm the dominant structure but they can also highlight inequality and oppression. Can they help challenge oppression? This double operation recalls the distinction between politics (la politique) and the political (le politique) and its influential recent use by Jacques Rancière.26 Rancière defines normal politics (or ‘policing’) as the process of argumentation and negotiation among the various parts of the social whole.27 It aims at (re-) distributing benefits, rewards and positions without challenging the overall balance. Against this routine policing, politics proper is a form of disruption of the established social order. Badiou similarly defines politics as ‘collective action, organized by certain principles, that aims to unfold the consequences of a new possibility which is currently repressed by the dominant order’.28 Politics proper erupts only when an excluded group or class, the ‘part of no part’, demands to be included and must change the rules of inclusion and the established equilibrium. This kind of antagonism or ‘dissensus’ ‘is not a conflict of interests, opinions or, values; it is a division put in the “common sense”: a dispute about what is given, about the frame within which sees something as given’.29 A new political subject is constituted, in excess of the hierarchized and visible group of groups, places

26 Chantal Mouffe, On the Political (Routledge 2005) 8–9. 27 Jacques Rancière, Disagreement (trans. Julie Rose, University of Minnesota Press 1998); On the Shores of Politics (trans. Liz Heron, Verso 1995); ‘Who is the Subject of the Rights of Man?’ in Ian Balfour and Eduardo Cadava, ‘And Justice for All?’ (2004) 103(2/3) South Atlantic Quarterly 297. 28 Alain Badiou, ‘The Communist Hypothesis’ (2008) 49 New Left Review 29. 29 Rancière, ‘Who is the Subject of the Rights of Man?’, op.cit., 304.

130  The paradoxes of rights and functions in society.30 The inclusion of the invisible part overthrows the rules of the game and interrupts the natural order of domination. This is the way the political operates. Based on this analysis, Rancière argues, contra Arendt and Agamben, that rights do not belong exclusively to subjects or citizens. Those without rights can equally invoke them. Human rights move back and forth between abstract statements of principle and their denial in practice. This dissonance allows the excluded to put the statements of principle to the test. Freedom and equality are not qualities people have; they are political predicates, the meaning and scope of which is the object of political struggles. Rancière’s ingenious attempt to save human rights for radical politics is however problematic. Rights have become the main stake and tool in the routine ‘politics of consensus’ Rancière’s denounces. The evolution of rights from inscriptions of constituent power to central expressions of the established juridico-political order has all but removed their radical edge. Rights stabilize inter-subjective relations by giving minimum recognition to multiple identities; they codify the liberal ideology of limited freedom and formal equality; they express and promote individual desire turning them into the litmus test of freedom (of choice). A late-modern rights-claim reinforces, contra Rancière, the social order. First, it accepts the established balance and aims to admit peripherally the new claimant. Second, it turns law into the gatekeeper and protector of the social order transforming the political claim into a demand for admission to the law. Law transforms social and political conflict into a set of technical problems regulated by rules and hands them over to rule experts. In this sense, rights express and promote established political arrangements and socio-economic distributions and belong to domain of police. The rights claimant is the opposite of Rancière’s political subject whose task is to transform radically the overall balance. Successful human rights struggles have marginally re-arranged social hierarchies and mildly re-distributed the social product. Right-claims bring to the surface the exclusion, domination and exploitation and the inescapable strife that permeates social life. But at the same time, they conceal the deep roots of strife and domination by framing struggle and resistance in the terms of legal and individual remedies which, if successful, lead to small improvements and marginal re-arrangements of the social edifice. Rancière seems to agree that ‘these liberties each person has are the liberties, that is the domination, of those who possess the immanent powers of society. It is the empire of the law of the accumulation of wealth’.31 Human rights promote ‘choice’ contra freedom, conformism versus imagination. Children are given rights against their parents, patients and students become ‘customers’ with consumer rights and fake ‘choices’. In western capitalist societies, freedom and choice have become the mantra of politics. Rights have

30 For the obvious links and some differences between Badiou’s and Rancière’s theory of politics, see Alain Badiou, Metapolitics (Verso 2005) chs 7 and 8. 31 Jacques Rancière, Hatred of Democracy (Verso 2006) 57.

Marx, the radical left and rights 131 become rewards for accepting the dominant order but they are of little use to those who challenges it. Rancière’s ‘excessive’ subjects, who stand for the universal from a position of exclusion, have been replaced by identity and social groups seeking recognition and limited re-distribution. The excluded have no access to rights and little is possible. Access is foreclosed by political, legal and military means. Economic migrants, refugees, prisoners in the war on terror, torture victims, inhabitants of African camps, these ‘one-use humans’ attest to the ‘inhuman’ in the midst of humanity. They are both indispensable pre-condition and proof of the impossibility of human rights. The law not only cannot understand the ‘surplus subject’, its operation prevents its emergence. At that point we send them abroad ‘along with medicines and clothes, to people deprived of medicine, clothes and rights’.32 As Wendy Brown put it, rights not only ‘mask by depoliticising the social power of institutions such as private property or the family, they organize mass populations for exploitation and regulation’.33 The dark side of rights leads to the inexorable rise in surveillance, classification and control of individuals and populations. But there is also the right to resistance.

32 Rancière, ‘Who is the Subject of the Rights of Man?’, op.cit., 307. 33 Wendy Brown, States of Injury (Princeton University Press 1995) 99.

9 The poverty of (rights) jurisprudence

When in 1983, I ran the first-ever Human Rights course in my Law School only four brave and idealistic students registered, making me almost abandon the exercise. I told the four pioneers that human rights are the conscience of law, practised by a few idealistic lawyers and invoked by dissidents and rebels. How different things look today. If only thirty years ago rights were the repressed conscience of the profession, now they have become its dominant rhetoric. Human rights have crept up everywhere in the curriculum. No law student graduates without having taken a specialist course in human rights. Textbooks on human rights and contract, tort, company, crime, trade, the environment and every other part of law’s empire appear with an alarming regularity. Hard core legal academics complain that all teaching today seems to be about human rights. The dissident pioneers have become the established majority, the repressed idealism dominant consciousness, the protest ruling ideology. ‘Sooner or later, every discussion of law in contemporary society seems to turn to the subject of rights’ opens an influential collection on rights.1 Liberal jurisprudence has set itself the task to explain and celebrate this amazing turnaround. ‘The discourse of rights is pervasive and popular in politics, law and morality’, declares a textbook boldly. There is scarcely any position, opinion, claim, criticism or aspiration relating to social or political life that is not asserted and affirmed using the term ‘rights’ […] It is not enough to hold that a proposal will lead to an improvement in wellbeing or a reduction in suffering, unless it can also be presented as a recognition of someone’s rights, preferably their human rights.2 According to Robert Nozick’s ode to extreme liberalism: ‘Individuals have rights and there are things no person or group may do to them (without

  1 Austin Sarat and Thomas Kearns (eds), ‘Editorial Introduction’ in Austin Sarat and Thomas Kearns (eds), Legal Rights: Historical and Philosophical Perspectives (University of Michigan Press 2000) 1.   2 Tom Campbell, Rights: A Critical Introduction (Routledge 2006) 3.

The poverty of (rights) jurisprudence 133 violating their rights)’.3 Rights are ‘side constraints’, stops on the pursuit of the common good, a sentiment echoed in Ronald Dworkin’s bravura statement that rights ‘trump’ governmental policies.4 Finally, according to John Rawls’s rather exaggerated claims, rights are the main tool and target of justice (and therefore of politics) and human rights trigger humanitarian interventions.5 Politics, morality, the law, the world order: all revolve around rights. This is quite an impressive achievement in our cynical, ‘non-ideological’ age. Rights are the ideology after the death of ideologies, the only ideology or ‘idolatry’, according to Michael Ignatieff, its apologist-in-chief.6 Left and right, state and church, globalizing imperialists and anti-globalization protesters use the language of rights. In our era of ‘posts’, where the ‘end of history’ alongside modernity, class and ‘the human’ has been proclaimed – rather hastily; Francis Fukuyama, its celebrated proposer, has recently admitted that reports of the death of history have been premature;7 rights are the only remaining universal vocation, the last utopia.8 Has the victory and ubiquity of rights ended domination and exploitation, repression and violence? Has law and politics changed so radically in such a short period? Does the invocation of ‘rights’ mean that the world possesses a common horizon which, when reached, will usher in Kant’s promised perpetual peace? This is a comforting idea, daily denied in news bulletins. What is perpetual about our world is the increasing wealth gap between the metropolitan lands and the rest everywhere, the yawning chasm in income and chances between the rich and the poor, the mushrooming and strictly policed walls dividing the North from the South, the comfortable middle classes from the ‘underclass’ of immigrants, refugees and undesirables, those pockets of the ‘third world’ in the midst of the first. If anything, our world looks increasingly more hostile and dangerous. If human rights have triumphed in the world, their victory is drowned in disaster.9 This chapter examines the ways in which liberal jurisprudence has dealt with the ascendancy of human rights. Its main exponents have developed justifications for the discourse of rights with scant reference to their actual practice. We don’t

  3 Robert Nozick, Anarchy, State, Utopia (Blackwell 1974) 1.   4 Ronald Dworkin, Taking Rights Seriously (Duckworth 1977) xi, 90–4.   5 John Rawls, A Theory of Justice (OUP 1972); John Rawls, The Law of Peoples (Harvard University Press, 1999).   6 Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press 2001).   7 Francis Fukuyama, ‘After Neoconservatism’ New York Times (New York 19 February 2006)

accessed 3 September 2018; Francis Fukuyama, ‘Why Shouldn’t I Change My Mind?’ Los Angeles Times (Los Angeles 9 April 2006) accessed 3 September 2018.   8 Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press 2010).   9 Costas Douzinas, The End of Human Rights (Hart Publishing 2000) ch. 1.

134  The paradoxes of rights learn much about actual rights by reading liberal jurisprudence, but we learn a lot about its ideological and epistemological preferences. Jurisprudential treatises often use the terms ‘rights’ and ‘human rights’ interchangeably without worrying unduly about their different histories. Samuel Moyn and other historians have recently argued that human rights emerged in the late twentieth century as a response to developments of the period, from the Cold War and decolonization to the counter-cultural rebellion of the 1960s and its domestication.10 This revisionist historiography has showed that human rights as a set of legal principles and practices was born alongside the United Nations and was initially promoted reluctantly by international legal agreements. Human rights started acquiring their current caché as late as the mid-1970s. Already at that point, John Rawls, Ronald Dworkin and Robert Nozick, among others, had started developing a jurisprudence of legal rights which had no place for human rights. In a 1978 political theory bibliography of rights ‘next to no authors treated “human rights” as such’.11 Without missing a beat, however, this fledgling enterprise was transferred from rights to human rights in the 1980s, albeit without much discussion of the process out of which human rights had emerged.12 The historical, theoretical and political differences between the two were either overlooked or confined to footnotes. This ‘inflationary’ approach was further exaggerated by the growing tendency of philosophers to present rights as the main component of morality tout court. Unlike lawyers who struggle with the contradictions and inconsistencies of the legal archive, moral philosophy seems obsessed with the idea of purifying (human) rights of its logical ‘flaws’ and legalistic subterfuge. A close reading of Alan Gewirth and James Griffin, two major analytical philosophers, will exemplify this approach.13 ‘There are scarcely any accepted criteria, even among philosophers, for when the term [human rights] is used correctly and when incorrectly. The language of human rights has become seriously debased’, Griffin concludes in Human Rights.14 For Gewirth too, philosophers agree ‘in part on the scope and content’

10 Moyn op.cit.; Stefan-Ludwig Hoffman (ed.), Human Rights in the Twentieth Century (Cambridge University Press 2011); Mark Mazower, No Enchanted Place (Princeton University Press 2009). 11 Moyn, op.cit., 215. 12 Moyn reports that Dworkin introduced the phrase ‘‘human rights’’ in 1977 ‘‘as if he had always been talking about them. When invited by the Colombia University … to address the topic … Dworkin gave a lecture entitled ‘Human Rights’ but simply rehearsed his analysis of rights as so-called moral trumps’’, Moyn, ibid., 216. Rawls does not mention human rights in his Theory of Justice but uses them extensively in the Law of the Peoples. Gewirth uses the same arguments for rights in his Reason and Morality in 1978 and for human rights in his 1982 book discussed below. 13 Alan Gewirth, Human Rights: Essays in Justification and Application (University of Chicago Press 1982); James Griffin, On Human Rights (OUP 2008). 14 Griffin, ibid., 199.

The poverty of (rights) jurisprudence 135 of rights but attempts to establish their existence or justification have failed.15 Admitting the failure of liberal philosophy to develop a satisfactory theory, Gewirth and Griffin set out to discover a rational foundation for human rights. Unless the philosopher can show that they have ‘sound reasons’, rights claims become ‘vocal ejaculations’ or ‘propagandistic manipulations’.16 For Griffin, moral philosophers have devoted little attention, to substantive arguments that try to prove or justify that persons have rights other than those grounded in positive law. Such arguments would indicate the criteria for there being human rights, including their scope and or content, and would undertake to show why these criteria are correct or justified.17 Despite their central role in moral and political life, human rights have far too little morally argued content. These are apparently serious problems. Whether they have any significance for campaigners, dissidents and lawyers using the rights language in political and legal struggles is an altogether different matter. Whatever the philosophical doubts, human rights exist in institutions and treaties, in bills of rights and courts and, more importantly, in popular struggles and campaigns. The term ‘human rights’ is routinely invoked by people from all sections of the ideological and political spectrum. As the Catholic theologian and key draftsman of the Universal Declaration of Human Rights Jacques Maritain put it, ‘we can all agree about rights on condition no one asks why’.18 Normative jurisprudence cannot accept this admission of defeat; it concedes too much to its great enemies, pragmatism, realism and deconstruction.19 Critical legal studies have shown in great detail how moral justifications often disguise power asymmetries and hierarchies.20 Richard Rorty too has written scathingly about rational justifications and prefers instead a ‘sentimental education’ of rights.21

Rights inflation Alan Gewirth and John Griffin hope to save rights from critics and pragmatists and from the mistakes of their peers. Both ground rights on similar conceptions of personhood; both come up with similar lists of rights although their methods

15 Gewirth, op.cit., 43. Gewirth dismisses Nozick, Marx, Dworkin and Rawls peremptorily because they all fail to develop a internally consistent moral justification for rights, see Gewirth, ibid., 43–5. Griffin attacks the same philosophers for slightly different reasons, Griffin, op.cit., 20–8. 16 Griffin, ibid., 45. 17 Ibid., 41. 18 Quoted in Mary Ann Glendon, A World Made New (Random House 2001) 77. 19 Griffin, op.cit., 283 n.36. 20 Costas Douzinas and Adam Gearey, Critical Jurisprudence (Hart 2005). 21 Richard Rorty, ‘Human Rights, Rationality and Sentimentality’ in Stephen Shute and Susan Hurley (eds), On Human Rights (Basic Books 1993) 122.

136  The paradoxes of rights differ. Their human rights treatises are a good example of the strengths and weaknesses of normative jurisprudence. Gewirth starts from two widely shared axioms. He accepts the rhetorical claim that human rights belong equally to all irrespective of place or time simply because we are human. ‘If a particular right exists (i.e. of which a morally valid justification can be given), then it must always have existed’.22 Second, human rights are moral rights, indeed the core case of morality. They belong to all humans because they are justified by a universally valid moral principle. Moral philosophy must discover or construct this principle. This is a good instance of the ‘inflationary’ theory of human rights. Gewirth identifies universal morality with human rights and equates human rights with rights tout court. ‘For human rights to exist there must be valid moral criteria or principles that justify that all humans, qua humans, have the rights and hence also the correlative duties. Human rights … are universal moral rights’.23 This assertion is historically problematic. Natural or human rights did not ‘exist’ in any meaningful sense of the term ‘exist’ before the eighteenth-century revolutions. The rhetorical mention of the ‘rights of man’ in the revolutionary declarations was closely connected with French and American historical conditions and ideological priorities. If there is, however, a valid moral principle behind natural/human rights, their contingent emergence does not vitiate their universal applicability. The business of the philosopher is to unearth or construct a moral foundation, which determines the scope and content of rights. Gewirth adopts the standard Hohfeldian classification of rights. Human rights are ‘entirely or mainly’ claim-rights, realized through the correlative duties of others. A right exists when someone can make morally justified and effective demands on others. It gives the power to its holder by binding the corresponding duty-bearer(s). The right to free speech, for example, imposes duties on those who could restrict its operation. ‘Congress’, in the iconic statement of the First Amendment, ‘shall pass no law abridging’ the freedom of expression of individuals. For Gewirth, universal human rights are distinct from the more specific ‘legal, prudential and intellectual’ rights. ‘If the existence or having of human rights depended on [legal] recognition, it would follow that prior to, or independent of, these positive enactments no human rights existed’.24 What kind of moral principle could justify rights in such an ahistorical way? Effective demands on others are created by rules and commandments; they are enforced by laws and institutions. Positive law, whether domestic or international, is historically specific; its legislation and implementation are conditioned by the political balance of forces and ideological priorities. Legal rights cannot pass the muster of moral universality. The argument turns therefore on the distinction between moral, legal and human rights. Can universal moral (or human) rights exist ‘prior’ to or independently of their enforcement? The answer confuses

22 Duncan Ivison, Rights (Acumen 2008) 30. 23 Gewirth, op.cit., 42. 24 Ibid.

The poverty of (rights) jurisprudence 137 somewhat moral justification and institutional setting, universal morality and particular legalities. Claim-rights depend on the simultaneous creation of rightholders and duty-bearers; individual powers intimately rely on the duties of others created, as Gewirth has to admit, by ‘institutional, especially governmental, rules’. Governmental rules are laws. The argument that moral/human rights are different from legal rights was introduced a couple of paragraphs before this admission of their intimate reliance on law. Accepting that human rights depend, indeed are created by rules, including their legal variety, undermines the claim that a valid moral principle underlies the universal applicability of rights. All rights depend on enforceable rules. Rules come into existence in particular historical and institutional contexts. Many cultures and languages did not develop a term for rights until relatively recently. Greek and Roman law did not have legal rights. ‘[T]he concept lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400, let alone in Old English, or in Japanese even as late as the mid-nineteenth century’25 and Chinese well into the twentieth. In Europe, legal rights initially protected property.26 Gewirth accepts that the term ‘right’ arose towards the end of the Middle Ages but claims that the absence of the term does not mean that the behaviour it covers does not exist. As Alasdair MacIntyre puts it, however, when rules are absent, making a claim of right is like offering a cheque in a society that does not recognize money.27 If such rules don’t exist, legal or human rights (in Gewirth’s or any other sense) do not exist either. This is then Gewirth’s paradox: human rights are both universal and dependent on (legal) rules. If they are universal they cannot vary according to historical circumstances; if they are created by legal rules, they cannot be universal. All this is well known to lawyers. When they use rights, lawyers do not claim universal status for their demands nor do they attempt to universalize the particular. Rights are tools to advance the interests of a particular person or group. Lawyers are not interested in universality, they use rights instrumentally, as a means to achieve or to defend something external to the right invoked. This is why the liberal attempt to create a universal moral justification sounds almost absurd to practical ears. Let us examine, however, these attempts from a position of interpretative generosity. Human rights promote ‘normative agency’, a.k.a. personhood, by protecting the ‘goods’ of freedom and well-being. The steps of the syllogism look compelling. I desire the purposes of my actions, which are therefore ‘good’ for me. Similarly, the pre-conditions of successful action are necessary ‘goods’ for me. These pre-conditions are freedom and well-being; I must ‘logically hold’ therefore that I have a right to them. At this point, Kantianism kicks in. I must equally accept that all purposive agents have rights to freedom and well-being.

25 Alasdair MacIntyre, After Virtue (Bloomsbury 2013) 83. 26 See Chapter 2 and 6 in this volume. 27 MacIntyre, op.cit., 81.

138  The paradoxes of rights Ergo human rights and the corresponding duties exist and are mandatory because they are logically the necessary conditions of self-interested action. This moral principle determines which rights can enter the canon. They are defined negatively and belong to three types: basic, ‘non-subtractive’ and ‘additive’. Basic goods/rights are violated when someone is killed, starved or terrorized. Non-subtractive are violated when someone is lied to, cheated, defamed or suffers broken promises. Finally, additive goods suffer when a person’s self-esteem is attacked or, is denied education, is discriminated against or, her development of virtues is hindered.28 When someone violates these rights, he is morally wrong and contradicts himself since all morally wrong actions are rationally unjustifiable.29 James Griffin warns that ‘we have constantly to remind ourselves of the destructive modern tendency to turn all important matters into matters of rights, especially human rights’.30 Gewirth’s rights inflation is typical of the tendency. His ‘human rights’ are a compilation of standard moral norms. Rational morality and human rights are identical in a cyclical way: (human) rights are universal; morality is universal; therefore (human) rights equal morality. And yet every step in the syllogism is problematic. ‘I desire x’ is quite distinct from the conclusion ‘x is good’ and ‘I have a right to x’. A right may be universalizable, a desire or need is not. Eliding desire with rights or the ‘good’ with my ‘goods’ is the royal road to relativism. Gewirth could retort that his objects of desire address the most general goods, freedom and well-being. But because they are so general they can authorize all kinds of inflationary individuation and implementation. The problem is not so much with the nature of desires that are to be turned into goods/rights but with the process itself. Desire is insatiable, it never stops once its immediate object is achieved. This is the reason why turning ‘I desire x’ into ‘I have a right to x’ has been the dominant ideology of neoliberalism and consumer culture.31 The same happens when the good, doing the right thing, becomes ‘goods’. Goods are objects of individual desire, possessions and triggers of imaginary identifications. Acting the right way has been replaced by a bunch of goods and the associated rights. This is the culmination of what Alasdair MacIntyre has called the ‘moral catastrophe’ of modernity.32 The deepening tear in the social fabric is being filled by proliferating individual rights. The sliding of the moral good into individual rights empties the self of moral resources. When the organic bonds of community, civility and religion retreat, only external constraints are able to limit insatiable egotism. A society where rights have become the main moral source can survive only with the help of criminal law, the police force, and extensive surveillance.

28 Gewirth, op.cit., 56. 29 Ibid., 57. 30 Griffin, op.cit., 95. 31 See Chapter 8 in this volume. 32 MacIntyre, op.cit., chs 5 and 6.

The poverty of (rights) jurisprudence 139 The philosophical restraints are harder to pin down. Gewirth realizes that his universalism can easily slide into its opposite. Not all desires can become rights, he warns, nor can all goods be good. Rights cannot refer to ‘unfounded desires but to truly grounded requirements of agency, the indispensable conditions that all agents must accept as necessary for action’.33 What desires are unfounded, which conditions indispensable? Gewirth sets the bar of admissible desires low by arguing that a Florida vacation, for example, is not such a necessity. But when desire or private ‘goods’ have become the ground of rights, only the self can decide if they are indispensable or not. If a Florida vacation is necessary to get over some deeply traumatic association, it is indispensable. Conscious and unconscious desires are the opposite of universal goods. Their translation into rights does not lead to a common morality but to social fragmentation. The same opt-out clause appears in the context of the empirical pre-conditions of normative action. A ‘right to x’ means that one can ‘have or do x’. For Gewirth, the ‘ought’ includes the ‘can’, ‘only if the capability in question is correctly interpreted’. The right to property, for example, ‘correctly interpreted’ does not include the capacity to have property. Let us conclude on this point. For liberal philosophy, human rights belong to ‘normal’ people. The few problem cases, such as children or the mentally ill, will be decided in such a way that their ‘generic rights must be proportionate to their ability to exercise them’. But this is a statement of, not an answer to the problem of ‘normality’. The ‘correct interpretation’ of the capacity for rational action has been and still is a strategy used to exclude people.34 As Joanna Bourke details, women, blacks, slaves and ethnic minorities have been consistently treated as sub-human because irrational, unintelligent or uncivilized.35 A long contemplation on the centrality of personhood ends where it began: persons have rights and rights make persons. It is a ‘pure’ theory of rights that stays well clear of any empirical matter that could disrupt the perfect and problematic philosophical closure.

Rights deflation For Gewirth, a rational agent accepts, on pain of self-contradiction, that the preconditions of his action are good for him and that these goods are universally applicable human rights. Rights support the actions of self-interested egotists. His achievement is to turn the most common critique of rights for individualism and selfishness into their moral foundation. Griffin too bases human rights on personhood and reaches similar conclusions. His methodology, however, differs. He concentrates on human rights instead of rights in general. His approach

33 Gewirth, op.cit., 48. 34 Costas Douzinas, Human Rights and Empire (Routledge 2007). 35 Joanna Bourke, What it Means to be Human (Virago 2011). For the race politics of rights, see Eve Darian-Smith, Religion, Race, Rights (Haet 2010).

140  The paradoxes of rights combines institutions and philosophy, ‘bottom up’ and ‘top down’ parts. Starting from the routine usage of human rights, the philosopher ‘resorts’ or ascends to ‘higher principles ... to explain their moral weight … and to resolve conflicts between them’.36 The demotic approach uses international treaties, legal documents and the ordinary speech of ‘actually existing’ human rights while the philosophical starts from the metaphysics of personhood; the two meet half-way producing a kind of dialectical synthesis. While for Gewirth, morality must find a rational justification in the teleology of prudential egotism, Griffin believes, in semi-Hegelian fashion, that reason unravels in world history, including the history of human rights. He concludes that the list of rights endorsed by the West, suitably corrected, promotes the principles of personhood. This is a well-known philosophy of history. Humanity is moving inexorably towards its Western destiny. The final stage has not been reached yet by ‘some of the tribal societies of the Middle East [which] are not yet ripe for freedom’ (tell that to the rebels of Tunis, Cairo, Syria or Bahrain in 2011 and 2012). On the other hand, it would be wrong ‘to give up the [Western] moral point of view, as we understand it, in which our idea of human rights’ is founded (tell that to the occupiers of Wall Street or the City of London in 2011).37 Again the unearthed principle determines the content of rights. ‘Human rights have to do with a certain minimum – the minimum necessary for human agency’.38 Minimum ‘normative agency’ includes deliberation, assessment, choice and action. A level of information and education and a bare ‘minimum provision of resources and capabilities […] something more than physical survival’ are part of the minimum but not much more.39 ‘We value our human existence, more than happiness’ Griffin concludes; human rights are ‘protections of this standing’. This rather stringent principle is as abstract as anything Griffin criticizes in Hume, Kant or Rawls. A mitigating clause, inelegantly called ‘practicalities’, is therefore immediately added: practicalities allow features of human nature and of social ‘second nature’ to be added to the personhood principle helping determine the exact content of rights. They introduce ‘empirical information’ (therefore historical variability) about the limits of ‘understanding and motivation’; improbably however they are universal, ‘not tied to a particular time and place’. These ‘practicalities’ are sufficiently specific to turn free speech or property into human rights but not free press or equality.40 It follows that rights promote not ‘human good or flourishing, but merely what is needed for human status’.41 They protect that ‘somewhat austere state, a characteristically human life’. This is indeed an austere definition of self, almost

36 Griffin, op.cit., 29. 37 Ibid., 25–7. 38 Ibid., 187. 39 Ibid., 33. 40 Ibid., 37–9. 41 Ibid., 33.

The poverty of (rights) jurisprudence 141 scrooge-like for anyone who does not belong to the ranks of the well-off middle classes. For the many millions for whom the struggle for survival is the only opportunity for exercising ‘normative agency’, the exalted principles of personhood offer basic subsistence only. Rights allow us to pursue ‘our conception of worthwhile life’ or to pursue happiness.42 But we have no right to a worthwhile life, no right to happiness. The reason for this is clear. Liberty ‘can be infringed only by another agent. If our options are narrowed by acts of nature or large-scale economic or social events not under human control, no one’s liberty is infringed’.43 The ‘logical’ consequences of this axiomatic position are clear. Liberty is clearly understood and, correctly interpreted, must be protected. The ‘many’ principles of equality (equal respect, fairness, egalitarianism) on the other hand can be ‘easily confused’. Poor confused equality should be excluded therefore from the list of rights.44 Not even an obligation to ‘ensure equal opportunity in the realization of one’s conception’ exists.45 The opposite is true. The essence of equality is simple and easily understood. Everyone counts as one and none as more than one. What Griffin thinks of as its ‘confused’ applications are the result of the age-long attempt to dilute this simple principle. Freedom on the other hand has always been a much more ambiguous and contested concept. Take Griffin’s example of unacceptable restriction on autonomy: a family removing its offspring to the bible-belt to stop them from pursuing the vocation and consolations of philosophy.46 One does not need to follow the news closely to know that the current economic and political orthodoxy, which has imposed radical austerity all over the world and is destroying the welfare state, is a much more radical deprivation of agency and life chances than anything stroppy parents can do. The problems faced by thousands of single parents, for example, unable to provide life’s necessities to their children is of little concern. We don’t have to search for the reasons for this omission. Sociology, economics, psychology and the rest of social sciences have consistently argued that domination (lack of freedom) and oppression (deprivation of well-being) result from the operation of structure and system and not from the actions of ‘evil’ people. The gravest deprivations and constraints on liberty are a consequence of the obscene inequalities created by these ‘large-scale economic or social structures’, which Griffin excludes from human rights consideration. One could imagine a social system in which most ‘agentic’ deprivations of liberty have been removed but still people are subjected to radical domination and exploitation. The catastrophic

42 Ibid., 34. 43 Ibid., 161 (author’s emphasis). 44 Ibid., 39. 45 Ibid., 162. 46 The Greek Stoics withdrew from public life precisely in order to practice philosophy. Only this way they reached ataraxia or imperturbability, the pre-condition of the philosophical vocation. Perhaps being prevented from studying certain types of philosophy might contribute to the business of thinking.

142  The paradoxes of rights effect of aggressive neoliberalism on both liberty and equality are clear to most people but are not evident to the philosophical high table (where many examples are located). If we now move to the Griffin’s list of rights, the claims of reason provide a severe filter for ‘actually existing’ rights. Only the most basic and formal preconditions of agency pass the muster of moral reason and become worthy rights. For Griffin, the ‘confused’ status of equality has led to the inclusion of various dubious items in the Universal Declaration and other legal documents. As was to be expected, these ‘confused’ rights are social and economic. The list is long. Article 25 of the Universal Declaration protects a person’s ‘standard of living adequate for his and his family’s well-being’ instead of ‘a certain minimum level of well being’;47 similarly, ‘well-being’ is an overgenerous term covering from the ‘lowest to the highest’ and must be rationed. It is confused to include the right to ‘paid holidays’, to ‘distributive justice’ to ‘equal pay for equal work’48 or to ‘just and favorable remuneration’.49 The ‘right to work’ is unacceptable because advanced societies ‘are nearing conditions in which a job will not be, even for a large proportion of the population, the necessary means to the end [of material survival]’ (sic).50 Perhaps this is true in cloistered colleges, but not in Oxford High Street. Finally, ‘group rights’ do not exist because no good moral argument can be found for them. Or, perhaps because those who exercise them challenge oppressions and exploitation on which ‘normative agency’ thrives. An extension of ‘practicalities’ to the lives of ordinary people would perhaps undermine the claim to rational universality. Here we reach the limits of the dialectical ‘bottom up-top down’ approach. Freedom and normative agency trump equality and well-being.

Liberal jurisprudence as ideology Gewirth and Griffin criticize the ‘debased’ philosophical coinage of rights and set out to save jurisprudence. We have examined in the previous chapters the main pillars of the liberal argument on the person, dignity and rights. Let us review them briefly and conclude. First, rights have been elevated into the main building block of liberal morality and legality because they act as trumps. They must be enforced in all circumstances overriding potentially conflicting social policies. Their companion legal remedies have an all or nothing quality. This gives them security of entitlement

47 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art. 25. 48 Ibid., art. 23(2). 49 Ibid., art. 23(3). 50 Griffin, op.cit., 207. This does not undermine the wider point that a legal right to work is an unattainable ideal in a market society. Griffin attacks the moral argument for introducing a right to work. He is uninterested in its legal or empirical non-existence and the ideological role it plays in human rights lists.

The poverty of (rights) jurisprudence 143 and a clear and concise answer to moral and political conflict. What about the empirical preconditions of successful normative action? A right to x means that I ought to have or do x. The ‘ought’ must include the ‘can’, the right must include the empirical preconditions, the capacity and resources necessary for its exercise. Liberal jurisprudence however qualifies the relationship. It applies ‘only if the capability in question is correctly interpreted’. The liberal ‘correct’ interpretation is based on a flawed anthropology. For Alan Gewirth, ‘normal’ humans can act voluntarily and purposively because they are active rational agents. Only the children or the mentally ill have reduced ‘generic rights [which] must be proportionate to their ability to exercise them’.51 This is a statement of the problem masquerading as an answer. The ‘correct interpretation’ of the capacity for rational action is one of the ways used to exclude people from humanity. The dominant, orthodox or ‘correct’ interpretations of capacity to reason have determined who ought to be given rights. Today immigrants, refugees and the poor are outside the pale of humanity. It is not that rights belong to humans but they construct humans in variable degrees of the relevant capacities and resource. Let us examine next Gewirth and Griffin’s philosophical quest. Philosophical disputations and theoretical debates acquire importance beyond their immediate constituency when they enter public consciousness and condition the zeitgeist of an age. Ideas must be publicized, discussed, adjusted to the interests and ideologies of dominant groups before they become dominant ideology. Theoretical concepts become ideologically hegemonic when embedded in ‘unreflective social practices’.52 This means that the philosophical discussion of morality and rights must be accompanied by an examination of their practical applications. Philosophy needs the insights of sociology and the practices of law to act of the world. To this extent, Griffin’s methodology is sociologically and historically more propitious than Gewirth’s. A dose of positivism is necessary when discussing rights. However, this positivism-lite ends with the same list of human rights as Gewirth, who does not bother with legal niceties. First, if morality and rights are rational, they are, like the rules of arithmetic, universally valid. Second, if moral rules and rights are universally valid they are mandatory. Both claims are extravagant. The morality of modernity inherited the bulk of its rules from Christianity and adjusted them to accommodate the primacy of the individual. Released from Christian teleology and social hierarchy, the individual has been proclaimed sovereign over his moral universe. But these largely inherited moral rules, deprived of sociological grounding, must be glossed in new shiny colours. Reason was called in to provide the missing link between moral rules and the limited sources of modern normativity. The attempt to prove the rational foundation of morality and the accompanying belief that such a proof would create an

51 Costas Douzinas, ‘The Poverty of (Rights) Jurisprudence’ in Conor Gearty and Costas Douzinas (eds), The Cambridge Companion to Human Rights Law (Cambridge University Press 2012) 65. 52 Ian Shapiro, The Evolution of Rights in Liberal Theory (Cambridge University Press 1986) 5.

144  The paradoxes of rights obligation to obey its rules has become an obsession for liberal jurisprudence and seriously undermined its utility. Even if some really clever philosopher were to come up with a generally acceptable rational foundation for rights, it would still not generate moral obligations. Akedeia is a basic philosophical recognition and embarrassment from Socrates and Phaedra to Hegel and Kierkegaard. Philosophy has taken fully on board Ovid’s tragic admission video meliora proboque: deteriora sequor (I know the good and approve it; but I follow evil).53 No rational justification of morality and no moral foundation of rights can account for the way in which rights proliferate at the same rate as their violation. The second jurisprudential argument is that the universality of human rights promises global justice. Yet human rights have replaced social justice as the ‘last utopia’ after the ‘end of history’.54 When genuine issues of justice and injustice are framed in terms of individual rights, they are ‘distorted and trivialised’.55 Rights are concerned with a system of entitlements not with justice. As Arundhati Roy wrote, ‘even among the well-intentioned, the expansive, magnificent concept of justice is gradually being substituted with the reduced, far more fragile discourse of “human rights” – a minimalist request, basically, not to be killed, tortured or unjustly imprisoned’.56 During the world wave of resistance between 2010 and 2013, the dissidents chanted ‘We are the 99%’ and attacked austerity; they did not mention human rights.57 Human rights and social justice are not always compatible. Rules and rights protect existing interests and distributions; the inequalities of wealth and the imbalances of power are fully protected if not promoted by negative rights. The central role of lawyers and judges in the interpretation of rules places additional capacity in the hands of elite groups and removes them from political struggles where ordinary people can be involved and get results. Gewirth and Griffin’s main encounter with the reality of inequality appears in their ideal list of rights. Philosophical analysis is used to exclude the little legal and political practice has already accepted. Gewirth’s inflationary tendency becomes Griffin’s rights deflation. In both cases, when the real (actually existing human rights) clashes with the rational (the normative claims of personhood) the real loses out. Moral philosophy examines human conduct. It cannot claim to be a second-order meta-ethics indifferent to the legal rules and rights that populate life. The use of a limited conception of personhood to exclude the demands of equality legal practice has messily developed and moral conduct accepts is

53 Ovid, VII, 20. 54 Moyn, op.cit. 55 Cora Diamond, ‘The Difficulty of Reality and the Difficulty of Philosophy’ in Stanley Cavell et al., Philosophy and Animal Life (Columbia University Press 2008) 74. 56 Arundhati Roy, ‘Peace and the New Corporate Liberation Theology’ (2004) 2004 City of Sydney Peace Prize Lecture, CPACS Occasional Paper No. 04/2, 2 accessed 3 September 2018. 57 Costas Douzinas, Philosophy and Resistance in the Crisis (Polity 2013); Paul Mason, Why it’s Kicking off Everywhere (Verso 2012).

The poverty of (rights) jurisprudence 145 highly problematic. Human rights are placed on a spectrum between the whole of morality and liberal freedoms; it is a highly ideological position. We can trace the ideology in the most neutral sounding part, the philosophers’ methodology. Gewirth calls his methodology ‘prudential’ and ‘dialectical’. I can only accept human rights if grounded on my own interests (my desires are my ‘goods’) and on the universality of reason (everyone else desires what I do). ‘Normative necessity’ is based on the self-interest and rationality of personhood. Or, as Gewirth puts it, his theory is ‘deontological’ and ‘teleological’. Its mandatory aspect is based on the power of reason and the fear of inconsistency. The rational is not real, as in Hegel, but morally obligatory. The very emergence of human rights shows the shortcomings of this approach. Their creation was an admission that moral rules, legal rights and reason are not adequate normative or practical resources for protecting people. The ‘teleological’ part, on the other hand, is based on the claim that rights are good for the self because they help realize his desires. Self-interest and reason should tell me that rights are necessary and universal. In this sense, the teleology of selfinterest becomes the deontology of rights. This identification of deontology and teleology shows that liberal jurisprudence’s sharp distinction between principles and utilitarianism is largely superficial. When rights and utility clash, reasoned morality cannot decide the dispute. Rights and utility are two ways of promoting self-interest. Their strong separation may belong to jurisprudence seminars but it does not belong to real life. We do not need long philosophical treatises on the meaning of personhood to know that economic and social rights are not particularly welcome to liberals. Nor do we need sophisticated analyses to learn that subjectivity (or individualism) is the metaphysical foundation of liberalism. The subject of rights is a being whose rationality, motivation and (self-)reflection follow the protocols and procedures of normative philosophy (she is fully aware of her purposes or ‘goods’ and consciously refrains from self-contradiction). She plans her action and acts with clear purposes and intentions (the teleology of individualism) following consistent normative commitments and aspirations (its deontology). A typical Cartesian subject, she has power over her will because she has privileged access to the contents of her mind.58 Transferred to morality, this conception of personhood becomes the basis of methodological and moral individualism: society exists for the promotion of individual purposes; individuals are the primary unit of moral concern; morality is rights-based and duties derive from rights. The most important argument, however, is that rights promote individualism and affirm the equality of human worth. Individual autonomy is a modern achievement. Individualism, the dominant ideology of capitalist modernity, unites various social political and intellectual trends. As methodological individualism, it brings nominalism to its culmination. It gives a false view of the human by abstracting social relations and presenting and promoting an asocial

58 Douzinas, The End of Human Rights, op.cit., chs 6 and 7.

146  The paradoxes of rights man by arguing that society is the sum total of individuals. Their relationships are external, contingent and artificial, no deeper bonds or links exist except for those ordained by the randomness of natality and free contractual undertakings. Institutions protect from the unwanted attentions of others and give then sufficient tools to pursue their privately determined plans. If the market is the best mechanism for the distribution of social benefits and goods and if individuals must fend for themselves in competition with others, it follows that the state should not provide any services directly. On the contrary, its function is to create the conditions necessary for individuals to pursue their life projects in the same way that a capitalist manages his business. The individual can be fully freed, only if a radical break with tradition, with its past truths and values, is carried out. Our life and abilities are our capital, which we must use prudently in order to get the right returns and rewards. The Enlightenment model of the individual was a fully conscious, self-reflecting subject. But the late modern world has deconstructed this understanding: the Cartesian subject that rules the world is a mirage. This demystification has followed a number of theoretical developments and social and political campaigns and movements. Phenomenology, hermeneutics, structuralism, anthropology and psychoanalysis have convincingly showed the many dimensions of reality irreducibly antithetical to the subject’s mastery. As was argued in Chapters 2 and 4 in this volume, the ‘person’ of rights is a mask only, a cipher for the empirical individual. The ‘I want’ of the subject of jurisprudence becomes ‘I can’ only if a series of empirical preconditions external to the legal speech act are met. The distance between normative capacity and real life achievement is the same as that between the recognition of the right to property and the ability of a nurse to buy a flat in London. The same chasm divides liberal philosophers with their justification of what exists and the campaigners who use rights in order to imagine and bring about what does not and cannot exist in neoliberal capitalism. The dual promise of the Enlightenment and the early natural rights tradition was social and individual emancipation from the fetters of feudal economy and religious superstition and, second, self-fulfilment, freedom and happiness. Advanced western societies claim to have reached a superior form of freedom. As a result, the emphasis has moved from negative to positive freedom, the promise of becoming fully masters of our own destiny with sufficient material and cultural resources to achieve happiness. But as rights proliferate, the security state and bio-power’s regulation of life go hand in hand. Indeed the extensive regulation of daily activities is the end point of the enlightenment project of emancipation and the right to happiness the terminal point of the enthronement of the individual. The state and law dismantled pre-modern cultural and institutional obstacles to emancipation. Similarly, the right to be you, be the one, be happy led inevitably to a duty of the state to promote it, by controlling, disciplining and regulating the social and individual body. Individual interest is prioritized over the common good and egotism over community belonging. Rights are compatible with extensive inequality. But the human self is both embodied and malleable. She is embedded, she acquires her identity and life meaning in social relations from the

The poverty of (rights) jurisprudence 147 early private life of family to the social encounters and interactions with the intimate, loved ones and friends but also with co-workers, indifferent bystanders and strangers. This dialectic between individual freedom and social determination, agency and structure, subject and subjection permeates the history of morality from early modern natural rights to postmodern human rights.

The poverty of jurisprudence Let me conclude by linking the critical appreciation of rights with the more specific critique of the work of Gewirth and Griffin. Legal rights were creations of early modernity; they are the basic building blocks of Western law. Rights are individual entitlements but their action is relational, they are realized through the acts or omissions of others. A property right, the first and still the model right, gives exclusive use and enjoyment of an object to its owner by excluding all others. But property offers more; it is only when we depart neo-Kantian jurisprudence in the direction of Hegel that the full contribution of rights emerges. When I take possession of an object, I externalize myself by placing my will onto that object and through it into the world. Property brings me into contact with others and becomes a necessary moment in the dialectics of identity. Desiring the object and taking hold of it is a way of negotiating my desire for (the recognition of) others. Here the law comes in. The simple possession of an object is always under threat. Property becomes safe only through the operation of law. Property rights give legal recognition to the fact of possession. Others now acknowledge my ownership on condition that I acknowledge theirs. Property rights lead to a form of interpersonal recognition in which others respect me through the incarnation of my will in the object protected by law. Property and legal rights more generally give the self recognition for qualities he shares with others. When I say to a policeman or an employer ‘you cannot do this, it is against my rights’, I implicitly make three related claims. First, in a rule of law system, the law creates and protects equal rights for all and does not allow discrimination against some. Second, legal rights make me worthy of respect; they confirm that, like all others, I have free will, moral autonomy and responsibility. Finally, legal recognition gives me self-respect, when I realize that I too am capable of moral action and that, like others, I am an end in myself. Human dignity, respect for others and self-respect are linked with the ability to make moral decisions and to raise legal claims. Legal rights are the way through which I acquire the recognition given to everyone and anyone, irrespective of individual characteristics. This minimum recognition of abstract humanity is the great achievement of legal civilization. But it remains rudimentary and defective. Property and poverty offer a good example of the problem. The recognition offered by the abstract right to property, by the ability to hold property, is clearly inadequate. The poor have equal formal rights and the dignity legal recognition potentially offers; but they cannot realize them. Caught between law’s recognition of abstract equality and its indifference towards material inequality and concrete needs, the poor are

148  The paradoxes of rights the best examples of the failings of legal rights as a tool of social justice, something that Hegel fully acknowledged in his theory of Notrecht – unlike Kant and his followers.59 The law tries to remedy the failings of legal rights through the creation of citizenship rights. Legal rights give recognition to the sameness of humanity, to the attributes that make us all similar. Civil and political rights extend this recognition to bodily integrity and movement and political participation. Finally, social and economic rights acknowledge material and cultural characteristics, those differences that make selves concrete and unique. Economic rights promise a minimum level of resource in order to turn formal rights into material entitlements. But these pre-requisites of social justice remain rhetorical statements of aspiration rather than justiciable claims. The ‘ought’ of the right does not include the ‘can’ of its realization. The dominant socio-economic system is largely indifferent to poverty or wealth and income inequalities. Extreme material differentiation (which has now reached epic proportions) and poverty are the driving forces of capitalism as the sweatshops of China, the slums and favelas in major cities attest. A similar analysis applies to the politics identity rights promote. Gender, race or sexuality, the differentiating characteristics that socio-economic rights add to the abstract profile of the legal person, bring her closer to reality. The distance between abstract human nature and concrete characteristics justifies the demand for differential treatment, which respects the specific aspects of identity. But even when group claims are accepted, the individual struggle for recognition is not over. In the continuous conversation with other people and institutions which constructs our identity, rights fall short. They may recognize aspects of my gender, sexuality or ethnicity; they may ban discrimination on these grounds. These are major achievements but their scope is necessarily limited. The law classifies people according to general categories and concepts. Generic recognition often becomes misrecognition. Discrimination law propagates a monolithic image of race for example that all people of colour are expected to possess. As Tim Murphy puts it, a paradox operates here: Anti-discrimination regimes (an end to distinctions!) proliferate the use/ visibility of distinctions including in the area of ‘forbidden’ categories – race, sexual orientation, age etc – ‘celebrations of difference’ (of course). The thematisation and valorization of diversity – what quickly becomes identity politics – amounts to a construction of identity which resides in difference.60 Concrete identities, on the other hand, are constructed through the contingent and highly mutable combination of many positions, only some of which are generalizable and shared with others. Human rights attempt to stop

59 See Chapter 12 in this volume. 60 Tim Murphy, ‘Thoughts on Race Equality and Human Rights’ in Michael King and Chris Thornhill, Luhmann on Law and Politics (Hart 2006) 73.

The poverty of (rights) jurisprudence 149 discrimination against women or gays, but they do not give full recognition to this unique woman or gay unless it takes full account of the long history of material and cultural deprivation that being ‘different’, ‘abnormal’, ‘not fully human’ has inflicted on its victims. This is the reason why anti-discrimination legislation has been so limited in reducing inequality. Power and enforceable rights appear closely linked. Let us move briefly to morals. As Tom Campbell concludes his ‘democratic positivist’ theory of rights, the statement ‘I have a right to x’ and ‘it is right to do x’ have become virtually synonymous. The identification is explained by something called the ‘generalization thesis’: rights are created by rules which are, in turn, moral generalizations of what is usually right to do. Such rules are predominantly legal but they include the ‘non-legal societal’ variety.61 But rights and right do not coincide. On the contrary, as it was argued above, a social morality of individual rights is the morality of exit from ethics. Pre-modern secular and Christian ethics had a strong sense of the good grounded on a thick set of interpersonal relations. Similarly, Hegelian philosophy built its concept of right out of social relations, reciprocal respect and esteem and the struggle for recognition besides the more formal legal protocols and rights. The contemporary proliferation of rights, however, has swallowed moral entities associated with ethics, such as duty, responsibility and care. It was Kant who famously reversed the order between good and right: the ancient priority of the good from which moral (and legal) commands flowed was an example of ‘heteronomy’ from which the Enlightenment emancipated man. In modernity, the right, what is right according to the law, takes precedence and determines the good. Right was separated from rights; legal rights become the main way through which state law operates while morality is demoted to the status of the private, religious or sexual. For a social and legal system based on rights, responsibilities are either a support of rights or a perpetual embarrassment. Kantian moral philosophy attempted to re-link freedom and morality through the operation of reason. Reason’s counsel dictates law’s form: it must be universal without violating the freedom and autonomy of others. The quest for a rational justification of rights starts here. But the rift modernity opened between right and rights is too deep to be mediated by reasoned self-legislation, form too weak an adhesive. This great modern achievement is beset with many practical and theoretical problems. But Kant’s third antinomy between freedom and necessity survives. Normative jurisprudence returning to the Kantian reconciliation assumes that force can be pacified by form, that law is a non-violent and rationally integrated discourse, that domination (the question of power) has been displaced into technical disputes about law and rights which can be safely entrusted to rules technicians (lawyers and judges). Finally, it assumes that social responses to power

61 Campbell, op.cit., 24–5.

150  The paradoxes of rights asymmetries and domination (the question of social conflict) can be exported to politics in practice and political philosophy in theory. The philosophy of rights insulated itself from political conflict and concentrated its formidable intellectual powers in the business of elaborating the most rationally persuasive and aesthetically pleasing rationalizations of law and rights. Conflict and struggle was simply deposited outside law. This is a counter-intuitive image of social and individual life and an impoverished version of rights and law. A society that has moved from a conception of the good to multiple competing ‘goods’ recognizes the existence of all-pervasive conflict. The protection of my perceived goods will necessarily clash with that of others. The moral and legal experience of a society of rights is paradoxical. We are taught to see ourselves as autonomous agents. But the enthronement of individual desire as the motor of the socio-economic and legal world needs strong external, heteronomous limits on insatiable desire. A strong state, a ruthless criminal law and invasive regulation, control of behaviour, discipline and surveillance are not the evil agglomerations of authoritarianism. Rights are not ‘trumps’ or ‘side-constraints’ against these unnatural or delinquent extensions of power. Rights both manifest a socio-economic system in which power uses individuals and offer defences against abuses of power. As the autonomous persons of normative jurisprudence we don’t want to be controlled by others and rights protect this wish. As empirical people we cannot avoid controlling and being subjected to others. Power and morality, sovereignty and rights are not involved in a zerosum game; they are intertwined. Thomas Hobbes who derived his all-powerful sovereign from the most exacting examination of individual rights remains more accurate in his depiction of market society than any of his more faint-hearted liberal epigones. We must reject therefore the premises of liberal jurisprudence in order to develop a more realistic understanding of rights and the person. The real self is constructed in social relations, in family settings, community belongings and country loyalties; she is Arendtian not Lockean. Her identity develops in a struggle for recognition with others, both intimate and proximate as well as the distanced and strangers; she is Hegelian not Kantian. Finally, the real individual is always involved in relations of domination and conflict with dominant institutions and powerful others. Despite the philosophical aspirations, no single theory of morality can give a full account of human rights. This is perhaps the reason for their success. The abstract statements of rights can authorize all kinds of contradictory applications in concreto, theories promote many and even conflicting perspectives. The attraction of human rights is that they can be all things to all people; whatever your politics, ideology or beliefs some type of rights theory can be found to accommodate even antagonistic interests, predilections and preferences. If human rights are to deliver their moral promise, we must abandon their inaccurate conception of the person. A sense of right and the good beyond individual rights and ‘goods’ must be re-introduced into our ethics. Such a move would re-introduce the lost sense of radicalism the early promoters of human rights felt.

Part III

The right to resistance

10 Philosophy and resistance

Enlightenment is ‘man’s emergence from his self-incurred immaturity’, an immaturity caused by ‘lack of resolution and courage’, wrote Immanuel Kant. Revolution is modernity’s answer to akedeia and lack of courage.1 Political revolutions have determined modernity’s history; science and technology are in permanent upheaval; the artistic avant-garde keeps redefining the zeitgeist. Philosophy has dealt extensively but separately with revolution and with right. But the relationship between the two has been superficially examined if at all. This chapter examines philosophy’s hesitant exploration of the link between revolution and right. Can philosophy explain the eternal return of resistance despite law’s persistent attempt to ban it? Revolution was all the rage in the twentieth century and dominated philosophical debates. Recently, legal philosophers and judges have extensively debated acts of civil disobedience.2 Resistance precedes revolution; but normative considerations rarely distinguish between the two. Generally speaking, the duty to obey the law is absolute only when accompanied by a free judgement that the law is morally right and democratically legitimate. The autonomous citizen does not just obey the law; she also judges the ‘legality’, the correctness, of the law and its relationship with justice. If that were not the case Hannah Arendt sarcastically comments, Kant’s categorical imperative would read: ‘Act as if the principle of your actions were the same as that of the legislator or of the law of the land’. It would be the perfect maxim ‘for the household use of the little man’ and for the likes of Eichmann.3 Legal positivists and unpopular governments would welcome such a norm. The right to revolution is a strange right and a cause of philosophical embarrassment. John Locke supported a limited right to revolution based on the right to property. Private property rests on the natural possession of our body and labour. ‘The reason why men enter into society is the preservation of their property’, he claims.4 Property acts as the ‘transcendental precondition’, the

  1 Immanuel Kant, ‘What is Enlightenment?’, in Immanuel Kant, Political Writings (ed. H.S. Reiss, Cambridge University Press 1991) 54.   2 Costas Douzinas, Philosophy and Resistance in the Crisis (Polity 2013) chs 5 and 6.   3 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 1994) 136.   4 John Locke, Two Treatises on Government (Cambridge University Press 1988) Vol. II, para. 222.

154  The right to resistance foundation of the socio-political order. It supplies the conceptual and material backbone of constitution and law. Property was the first legal right and forms the model for all rights. As Michael Hardt and Antonio Negri argue ‘property, which is taken to be intrinsic to human thought and action, serves as the regulative idea for the constitutional state and the rule of law. This is not really a historical foundation but rather an ethical obligation, a constitutive form of the moral order’.5 Locke was instrumental in this process. Attacks on property endanger not just individual rights but the order of the world; they justify revolution. This ‘appeal to Heaven’, as Locke calls the revolution, becomes active, for example, when the legislature plans ‘to invade the property of the subject, and to make themselves, or any part of the community, masters, or arbitrary disposers of the lives, liberties of fortunes of people’.6 The people have the right to create ‘a new legislative, when their legislators have acted contrary to their trust, by invading their property’.7 But only the propertied possess this right. As C.B. Macpherson puts it, ‘it does not seem to cross [Locke’s] mind here that the labouring class might have the right to make revolution … The labouring class was an object of administration … incapable of rational political action’.8 The poor have no right to rebel in order to reduce their poverty or institute a society of equal or common property. As long as property is protected, Locke suspects and suspends the drive to revolt against the injustices of the world. In Illan Wall’s superb analysis of the ‘withdrawal of the radical’ from the tradition of human rights, Locke is pivotal. ‘Locke’s conception of the right to revolt is fundamentally prefigured by the question of property. This precondition sets property beyond the revolution’.9 Locke’s right to revolution was a tool, therefore, for protecting property. According to Domenico Losurdo, the right to resistance is so little a recognition of a bottom-up initiative that, as far as the relationship between the people and the legislature, Locke not only denies the people any right to resistance, but even the right to abolish or modify, in structure or function, the Parliament.10 The philosophical justification of resistance is reactive and defensive, a limitation placed by law on attempts by the majority to restrict, regulate or tax property. The right to resistance turns out to be an insurance policy for the social order. If for Locke, revolution was invented in order to protect property, today

  5 Michael Hardt and Antonio Negri, Commonwealth (Harvard University Press 2009) 7.   6 Locke, op. cit., paras 220 and 221.   7 Ibid., para. 226.   8 C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford University Press 1962) 224.   9 Illan Wall, Human Rights and Constituent Power (Routledge 2012) 30. See also Illan Wall, ‘On a Radical Politics for Human Rights’ in Costas Douzinas and Conor Gearty (eds), The Meanings of Rights: The Philosophy and Social Theory of Human Rights (Cambridge University Press 2014). 10 Domenico Losurdo, Hegel and the Freedom of the Moderns (trans. Marella and Jon Morris, Duke University Press 2004) 89.

Philosophy and resistance 155 revolution has been banned in order to keep it intact. This is why the right to resistance returns whenever wealth inequality and capitalist injustice come to the fore. Edmund Burke answered Locke’s theories in his Reflections on the Revolution in France.11 The 1688 English revolution, Burke’s model, unlike the French, was not an attempt to change the polity. The glorious revolution was conservative; it preserved the organic nature and gradual evolution of the state. The revolutionaries did not abolish the monarchy; they altered minimally the royal succession by settling for the Protestant line and upholding the pre-existing rights represented in Parliament. The acceptance of William ‘was not properly a choice; … it was an act of necessity, in the strictest moral sense in which necessity can be taken’.12 If for Locke, revolution is a right and a power of the propertied against the dangers of oppressive government, Burke’s revolution is not a popular right. It was a matter of ‘grave and overruling necessity’ to correct the King’s breach of the ‘original contract’ with his subjects.13 The revolutionary leaders realized historical necessity and acted as its representatives. Locke and Burke seem philosophically opposed. For Locke, revolution expresses popular will against rulers who do not respect property rights. For Burke, revolution has little to do with individual or collective will as it realizes historical necessity. For both, however, the purpose of revolution is to protect the established order of property or monarchy. We must turn to Germany for a more radical version of (the right to) revolution.

Kant’s paradox Aristocrats and feudal lords had, and regularly exercised, the medieval jus resistentiae, the right to resist and even rebel against the King in the Middle Ages.14 Rebellions were justified if the King had violated a covenant or agreement with his nobles and kings or had breached legal limitations voluntarily accepted. Rebellions removed usurpers or tyrants from the throne and re-established legitimate rulers. The broad equality of power between Kingly and peripheral powers meant that feudal lords were able to enforce royal undertakings. The jus resistentiae was the legal gloss of a multi-polar world. Unlike the classical Greek stasis, however, medieval rebellions did not promote democratic rule. As Hannah Arendt put it, while the people might be admitted to have the right to decide who should not rule them, they certainly were not supposed to determine who should, and even less do we ever hear of a right of people to be their own rulers or to appoint persons from their own rank for the business of government.15

11 Edmund Burke, Reflections on the Revolution in France (J. Dodsley 1791). 12 Ibid., 24. 13 Ibid., 38–9. 14 Ernst Bloch, Natural Law and Human Dignity (trans. Dennis J. Schmidt, MIT Press 1988) ch. 13. 15 Hanna Arendt, On Revolution (Viking Press 1965) 40.

156  The right to resistance The great revolutions changed that. German idealism welcomed the revolution. For Kant, Fichte, Schelling and Hegel, the French revolution was a sign of humanity’s progress. It incarnated freedom into history and moved humanity to a higher level. The third estate or the ‘common man’ entered politics by revolting against the established social order of aristocratic and royal elites. The modern willing, acting subject and his rights could emerge only through revolution. The French and American declarations, the manifestos of modernity, brought together, unsteadily and provisionally, the double source of right: equality and resistance: ‘Men are born and remain free and equal in rights’ states the first article of the French declaration and adds that ‘these rights are liberty, property, security and resistance to oppression’. Kant welcomed the French and American revolutions as well as the Irish resistance against the British. His revolutionary enthusiasm ‘earned him the unenviable epithet “the old Jacobin” ’. It was even reputed that he was about to go to Paris to advise Abbé Seyes.16 But while Kant retained his enthusiasm for the revolution, he went to great lengths to dismiss disobedience and the idea of a ‘right to revolution’. A combination of philosophical idealism and legal positivism led to a rejection of the right to revolution. It would be a contradiction in terms, since no law or constitution can allow its own overthrow. All resistance against the supreme legislative power, all incitement of the subjects to violent expressions of discontent, all defiance which breaks out in rebellion, is the greatest and most punishable crime in a commonwealth, for it destroys its foundations. This prohibition is absolute.17 It would be an ‘obvious contradiction if the constitution included a law … entitling the people to overthrow the existing constitution, form which all particular laws are derived’.18 Respect should be extended to constitutions ‘affected by injustice … for any legal constitution, even it is only in small measure lawful, is better than none at all’.19 Even evil constitutions create a duty of obedience and those who rebel against them would ‘rightly be subjected to the penalties of rebellion during the revolution itself’.20 The right to revolution is an affront to legal positivism. The law is the highest expression of the ‘general will’; no higher source exists to authorize its overthrow. The reason why it is a duty of the people to tolerate even what is apparently the most intolerable misuse of supreme power is that it is impossible

16 Lewis Beck, ‘Kant and the Right to Revolution’ (1971) 32(3) Journal of the History of Ideas 411 (411). 17 Immanuel Kant, ‘On the Relationship of Theory and Practice in Political Right’, in Kant, op.cit., 81. 18 Ibid., 84. 19 Immanuel Kant, ‘Perpetual Peace: A Philosophical Sketch’ in ibid., 118 (see footnote). 20 Ibid., 118.

Philosophy and resistance 157 to conceive of their resistance to the supreme legislation as being anything other than unlawful and liable to nullify the entire legal constitution.21 A right to revolution would imply that the head of state is not the supreme power; people could appeal to a higher authority. In such a case, a second sovereign exists and, absurdly, a third to decide conflicts between the first two. Furthermore, law’s formalism cannot allow revolutionary lawlessness to destroy the ‘sacred’ constitution and revert to the state of nature. Revolution under an already existing constitution means the destruction of all relationships governed by civil right, and thus of right altogether. And this is not a change but a dissolution of the civil constitution; and a palingenesis [new birth], for it would require a new social contract on which the previous one (which is now dissolved) could have no influence.22 As Illan Wall puts it, ‘there is no “the people” in the state of nature. For the people to oppose the general will, it must be constituted through the general will … It cannot be right to revolt because there is no people who can embody such a right’.23 The final argument uses Kant’s republican emphasis that the law should be public and general. But a norm authorizing revolution cannot be announced in advance since revolution is a crime.24 A rebellion is therefore unjust because ‘if the maxim upon which it would act were publicly acknowledged, it would defeat its own purpose. This maxim would therefore have to remain secret’.25 For Kant, the revolution is both impossible and barred by legal and political arrangements. Law’s job is to foreclose, ban and prevent revolution. But revolution has a crucial role in Kant’s philosophy of history. The late political essays on cosmopolitanism, perpetual peace and the contest of faculties, written at the time of the French revolution, accepted its inevitability and significance. It is a teleological philosophy of history which moves towards the universal emancipation of mankind.26 ‘The history of the human race can be regarded as the realization of a hidden plan of nature’s to bring about … a perfect political constitution’.27 Kant adopted from Augustine the idea of pax aeterna and turned secular perpetual peace into the aim of history. He substituted reason for providence and detected an inexorable forward movement behind random historical events. Humanity is progressing towards perpetual peace and cosmopolitan union exploiting

21 Immanuel Kant, ‘The Metaphysics of Morals’ in ibid., 145. 22 Ibid. 23 Wall, Human Rights and Constituent Power, op.cit., 54, 55. 24 Beck, op. cit., 412–14. 25 Immanuel Kant, ‘Perpetual Peace: A Philosophical Sketch’ in Kant, op.cit., 127. 26 Costas Douzinas, ‘The Metaphysics of Cosmopolitanism’ in Rosi Braidotti, Patric Hanafin and Bolette Blaagaard (eds), After Cosmopolitanism (Routledge 2012) 57–76. 27 Immanuel Kant, ‘Idea for a Universal History with a Cosmopolitan Purpose’ in Kant, op.cit., 50.

158  The right to resistance its inherent ‘unsocial sociability’. The ‘unsocial’ part refers to man’s egotistical drives, motivated by the pursuit of gain, the fear of others and conflict. While ‘man’ wills ‘concord, contentment and affection’, nature, the Kantian providence, instils ‘vainglory, lust for power and avarice’ for possessions and rule. This ‘natural’ propensity to conflict drives humanity to develop its talents, taste and culture.28 Competition results from man’s ‘unsocial’ nature which becomes coordinated, however, at a higher unplanned level. The market, for example, makes unsocial behaviour serve a secret plan and reveals a deeper sociability. Nature’s plan to bring forth a perfect civil union of humanity unravels in history. This orientation of ‘Nature – or, better of Providence’ leads the philosopher to adopt the standpoint of a ‘world history’ that inexorably leads to cosmopolitanism.29 Conflicts, wars and revolutions are full of criminal and evil acts; but they are also ‘the means nature uses in realizing her “secret plan” for mankind’.30 The French revolution is a clear example of historical teleology. Revolutionaries committed terrible acts. But they contributed to the realization of history’s purpose offering evidence to the moral progress of mankind. The revolution is a historical sign, which reminds, declares and forecasts that humanity has a tendency to moral progress.31 This moral aspect was evident in the enthusiasm it created around the world. The neutral observers who welcomed the revolution proved that it ‘is not to be forgotten, for it revealed a tendency and faculty in human nature for improvement’ which brings nature and freedom together in conformity with the ‘inner principles of right’.32 For Kant, therefore, despite his dislike of revolutionaries, the revolution finds in the hearts of all the spectators (who are not themselves implicated in the play) a sympathy of aspirations that border on an enthusiasm and the expression of which is itself a danger; consequently this sympathy cannot have any other cause than a moral disposition of the human race.33 The revolution as a ‘spectacle, and not a gesture’ reveals the primordial moral disposition of humanity, its contemporary moral commitment and its future realization. Kant’s response to the revolution appears complex and paradoxical. His belief in historical teleology helps explain the contradiction between the enthusiasm for the revolution and his attacks on the right to revolution. If cosmopolitanism is the destiny of humanity, sub species historiae (history or saeculum replacing aeternitas)

28 Ibid., Theses 4 and 5, 45–6. 29 Ibid., Thesis 9, 51–3. 30 Ibid., Thesis 4, 45. 31 Kant, ‘The Contest of Faculties’ in Kant, op.cit., 181. 32 Ibid., 182. 33 Ibid.

Philosophy and resistance 159 the illegal revolution is a key moment in the promotion of Nature’s plan. But Kant’s ambivalence goes further. He did not condemn always the dreaded right to revolution. In unpublished notes, Kant argued that resistance could be justified if a constitutional norm had been violated and a clear legal determination to this effect could be made.34 This incidental note helps us unravel the paradox: the historical incarnation of the (moral) law is humanity’s purpose. If a basic legal norm has been violated, revolution could be justified. For the mature Kant, however, this hypothetical case is impossible: the republican state introduces general laws; law’s form makes it morally legitimate and disallows disobedience. The subject has a duty to obey the law even when the law commits an ‘unbearable abuse of supreme authority’ or the ruler ‘exercises the oppressive power of a tyrant’.35 Yet Kant’s position is partially rescued by his philosophy of history. Resistance and revolution violate current law and right but contribute to their eventual victory. In this sense, history and jurisprudence are both enemies and allies. As Lewis Beck puts it, the moral aspirations of mankind are not satisfied by punctilious obedience to the powers that be; they demand that the powers that be should earn our respectful obedience, and they sometimes justify disobedience to the positive law out of obedience to a ‘higher law’.36 Even for Kant, a spectral logic, a law beyond state law, authorizes the event of revolution and contributes to moral law’s eventual triumph. For Illan Wall, Kant ‘in a rather complex manner asserts that the very “will to revolution” is the sign of progress’.37 This will to revolution is a second source of right, separate from the will legal rights enforce.

Hegel’s radical right Hegel too rejects the legal right to disobedience and revolution. A right is justified and enforceable will; it can be asserted and enjoyed without risk. Disobedience and rebellion, on the other hand, are risky enterprises. The virtual force of the rebel is posited against the overwhelming force of the state. This does not mean, however, that resistance and revolution are illegitimate without else. In the Hegelian philosophy of history, revolution does not result exclusively from subjective activity. Its necessity emerges in reality. The opposition between subject and object or between will and the world, assisted by contradictions in the social order, prepares radical change. The operation of the dialectic brings the

34 Beck, op.cit., 412. 35 Sven Arntzen, ‘Kant on Duty to Oneself and Resistance to Political Authority’ (1996) 34(3) Journal of the History of Philosophy 410 (410). 36 Beck, op.cit., 420. 37 Wall, Human Rights and Constituent Power, op.cit., 57.

160  The right to resistance old system to the edge of the precipice. Human will gives the final push. In the French Revolution, for example, the negative drive of the Enlightenment against feudal social structure and monarchical principle destroyed a socio-political system, which had already come to an end. The ancien régime had lost all raison d’être and had become obsolete. The revolution simply completed the task. Hegel explores in several places the circumstances leading to a separation between legal right and historical necessity. In the ethical state (sittlichkeit), the highest stage of human development, morality is aligned with humanity’s conscience and its principles are incorporated in institutions, law and customs. In other periods, however, moral subjectivity and institutional ethics diverge. When this happens, the self-reflecting moral individual finds that, what is recognized as right and good in contemporary manners cannot satisfy the better will. When the existing world of freedom has become faithless to the will of better men, that will fails to find itself in the duties there recognized and must try to find in the ideal world of the inner life alone the harmony which the actuality has lost.38 The moral subject finds itself in deep conflict with the state of the world (the ‘actuality’). At these points, ethics turns into ‘alien essence’ and invites its overthrow. The dissident moral subjectivity may either withdraw into the aloofness of the beautiful soul or ‘end up acting, directly or objectively, in a “Revolutionary” direction’.39 For Hegel, therefore, the right to resistance is part of the concrete historical process but not a legal right. His world spirit which unravels in history stands higher than state law. ‘A right to resistance can be found not in the legal order, but only in the “World Spirit”, in history’.40 History dictates the necessity of the revolution, which explodes illegally and becomes legitimate after the event. In this sense, history has a quasi-natural character, which justifies what the law prohibits. The legitimacy of the rebel derives not from a legal norm but from concrete historical and social conditions. Such rebels are world historical individuals; their crimes against public morality and law become catalysts for moral progress. The world spirit and the cunning of reason give rise to men who pull the chestnuts out of the fire for the world spirit and are judged immoral by ‘schoolmasters and valets’, those exquisite discerners of spirits. Their effectiveness will judge their righteousness post factum. The rejection of the right to resistance doesn’t deter history’s right to overthrow the whole legal order. Hegel celebrated every revolution, including the English, American, Dutch and French. Slave rebellions represented the slaves’

38 Georg W.F. Hegel, Hegel’s Philosophy of Right (trans. T.M. Knox, Oxford University Press 1967) para. 138A, 92. 39 Losurdo, op.cit., 243. 40 Ibid., 84.

Philosophy and resistance 161 desire to become free and offered Hegel a model for the famous ‘master and slave’ dialectic in the Phenomenology which eventually leads to the slaves’ emancipation and modernity. Hegel knew about the Haitian revolution and provided an ‘astonishingly progressive and sympathetic analysis’ of its success.41 As Nick Nesbitt puts it, for Hegel, freedom as a concrete and actual universal Idea is only to be attained through the institution of a (potentially universal) state, that is to say, through the total overthrow and destruction of the social system (colonialism) that instituted the slave’s debasement to a mere natural, animalistic being.42 The established social order holds no attraction if it has outlived its purpose; it will be swept aside in a combination of historical necessity and voluntary action. Such was the state of the Roman Empire before the advent of Christianity, of the French ancien regime before the revolution or, of Czarist Russia before the Bolshevik revolution, we could add. This is the state of the world today as people rise up against the injustice of neoliberal capitalism. The Hegelian position is even more complex. Hegel considers the right to property as the important first step in the struggle for recognition. But he rejects the existence of an absolute right, subordinating property to the needs of political community. Locke had privileged property over life and considered theft and damage to property the vilest of crimes. The property owner has therefore the right to kill the burglar. Hegel argues exactly the opposite. Limited freedoms, such as property, can be violated to prevent the total loss of rights. Life has a higher value than property and takes precedence during war as well as in cases of extreme need. A starving man has the right to steal in order to survive; theft is unlawful but not wrong. While the abstract thought of Kantianism condemns all violations of the law, a starving man who steals does not violate the concept of right (something sacrosanct for Hegel) but its particular instantiation. Theft for survival affirms the superiority of (the right to) life over property. As Anatole France sarcastically put it, the law punishes equally the rich and the poor for stealing bread and sleeping under bridges. Hegel had said so a century earlier. The discussion of starvation and theft is carried out in the context of the concept of Notrecht, the right of distress or extreme need. Notrecht, a German legal concept, is the exceptional power to suspend legal rights in order to save lives. Hegel argued, against the dominant view, that Notrecht does not apply only in cases of emergency such as an earthquake or flood. It extends to the right of starving people to survive and, by analogy, to the poor to have an acceptable level of material life. The explanation brings together historical necessity and

41 Nick Nesbitt, ‘Troping Toussaint, Reading Revolution’ (2004) 35(2) Research in African Literature 18. Susan Buck-Morss, Hegel, Haiti and Universal History (University of Pittsburgh Press 2009). 42 Ibid,. 27.

162  The right to resistance moral disposition. The poor have a formal right to property. They are conscious of themselves as free and demand that their material existence matches this consciousness. But their lack of the basics destroys both their chances of a dignified life and their (self-)respect. It splits their identity between the abstract dignity of right and the concrete degradation of a life of dependency.43 An ‘inner rebellion’ develops when the poor feel excluded and mocked but this does not turn them into revolutionaries. The various palliatives and disciplines offered by society (charity, harsh policing, removal to the colonies) stop the inner determination from becoming political action. These mitigating measures are not available, however, to the starving man; he has an absolute right to steal and violate another’s property, in order to survive. ‘When motivated by hunger, by the necessity to preserve life, the violation of the right to property does not stand for arbitrariness and violence but for the affirmation of a superior right’.44 In this context, Hegel goes close to accepting the right to revolution. ‘This feeling, this rebellion, is inherent in extreme need. This right must be attributed to man in the rebellion caused by extreme need’.45 There is more: crime, the negation of law, causes the law to move forward from its formal and abstract state of full protection of property to its more nuanced and concrete stage of political and economic rights. Revolution and crime are the motors of history and law. One of Hegel’s provocations was to uncover an ethical aspect in warfare. It shakes men up, removes them from their routine insignificant life and introduces them to the universality of death, their ‘master’.46 The same argument applies by analogy to resistance and revolution. The arbitrariness and contingency confronting the poor deprive them of self-respect and freedom. People who do not enjoy the basic recognition of rights have a right to rebel. The ‘rabble’ is precisely the people excluded from a society of alleged freedom and equality; they are therefore the representatives of the universal. As Slavoj Žižek puts it, ‘if a class of people is systematically deprived of their rights, of their very dignity as person, they are eo ipso also released from their duties towards the social order, because this order is no longer their ethical substance’.47 For Hegel, history’s arrow can only be understood retrospectively, with the ‘flight of Athena’s owl at dusk’ once a historical epoch has ran its course. History itself becomes the tribunal of the world. For Kant, nature was the backroom artiste or puppeteer manipulating the strings of history’s puppet; Hegel’s ‘cunning of reason’ does the same job. It brings together individual action, historical pattern and divine plan working behind the actions of passionate men as their invisible agent.

43 Costas Douzinas, ‘Identity, Recognition, Rights or What Can Hegel Teach Us about Human Rights?’ (2002) 29(3) Journal of Law and Society 379. 44 Losurdo, op.cit., 155. 45 Hegel quoted in ibid., 164. 46 Tarik Kochi, The Other’s War: Recognition and the Violence of Ethics (Birkbeck Law Press 2009). 47 Slavoj Žižek, Less than Nothing: Hegel and the Shadow of Dialectical Materialism (Verso 2012) 433.

Philosophy and resistance 163 Only Marx argued that revolution is the way for overcoming the limitations of capitalism and of the rights of man.48 Commenting on the 1848 Revolution, he spoke of a different right, the right to work, a nonsense for the capitalists. But this right which gives power to the workers over capital leads to the abolition of wage labour, capital and capitalism.49 The communist revolution will realize universal rights by negating legal form and capitalist content. Freedom will stop being negative and defensive and will become a positive power of each in union with others. Equality will no longer mean the formal equation of unequal individuals but recognition of the ­uniqueness of each person. Property will cease being the limitation of each to a portion of wealth to the exclusion of all others and will become common. Real freedom and equality look to the concrete person in community, abandon the formal definitions of social distribution and inscribe on their banners the principle ‘from each according to his ability, to each according to his needs’.50 As revolution is the only way to radical change, Marx defends the right to revolution, the defamed and abandoned part of the Declaration, against its hasty philosophical and legal dismissal and its repeated and brutal political suppression.

Is there a right to revolution? Let us go back to the tension between the philosophy of law and history. Kant’s jurisprudence rejects revolution. But he welcomes and celebrates the French and other revolutions as indications of humanity’s moral progress. The obvious contradiction is partly resolved by the argument that while legal and moral philosophy prohibits rebellion, a non-participant observer judges its wider effects sub species aeternitatis. Can these positions be reconciled? An obvious answer is that the philosopher prescribes while the observer describes. The legal position is clear. Once the revolution has overthrown the ancien régime and instituted its own, the new constitution deserves the same obedience and protection as the order it defeated. ‘If the people were to rebel successfully, the head of state would revert to the position of a subject; but he would not be justified in starting a new rebellion to restore his former position’.51 Even if the new constitution has been attained by ‘unlawful means, i.e. by violent revolution, resulting from a previous bad constitution, it would then no longer be permissible to lead the people back to the original one’.

48 See Chapter 9 in this volume. 49 Karl Marx, ‘Class Struggles in France’ in Karl Marx, Surveys from Exile, Political Writings Vol 2 (Penguin 1973) 69–70. 50 Karl Marx, ‘The Critique of the Gotha Programme’ in David McLellan (ed.), Karl Marx: Selected Writings (Oxford University Press 2000) 615. 51 Kant, ‘On the Relationship of Theory and Practice in Political Right’, op.cit., 127.

164  The right to resistance Kant goes further. The leaders of the great revolutions ‘have done the greatest degree of wrong in seeking their rights [by means of rebellion]’.52 But once the new regime and its law succeed, the legal position and moral standing of the rebels changes dramatically. If the revolutions whereby Switzerland, the United Netherlands or even Great Britain won their much admired constitutions had failed, the readers of their history would regard the execution of their celebrated founders as no more than the deserved punishment of great political criminals. For the result usually affects our judgement of the rightfulness of an action.53 Success, a question of fact, changes the legal position retrospectively. Whether one is a great criminal or a hero is decided by the outcome of the rebellion. The is reverses the ought. The rebels are heroes not only after victory; they have been heroes all along, even when they were treated as criminals. The criminality at the time of the revolution is expunged and its effects are deleted. The terrorist/freedom fighter conundrum depends therefore on the status of two relationships: between present and past and between law and fact. For positivist jurisprudence, norms precede temporally the facts they are called to regulate; facts on the other hand have (or ought to have) ontological solidity which, correctly interpreted through evidentiary rules, allows their subsumption to the relevant norm. But the presumed temporal primacy and ontological consistency do not go unchallenged. An obvious ‘anomaly’ appears in the legal distinction between void and voidable legal acts. A contract is void if it is null from the beginning and cannot be enforced. A voidable contract, on the other hand, suffers from a smaller defect and can be avoided through the legal action of the injured party. A marriage is void if one spouse is already married; it may be voidable if the spouse has misrepresented an important characteristic, for example, the fact that she is a transsexual. Contracts with an illegal object (to kill someone or to sell drugs) are void; they are voidable if they have been obtained by fraud. The legal defect flows from the classification of the act. Once the nullity of the contract has been declared, it is as if it never entered the legal universe, as if it never happened. Legal effects are retrospectively eliminated even though reality may have changed: the assassination has taken place, the drugs have been snorted. The contract is a performative act that changes the world; the declaration of nullity is a world-unmaking legal fiction. Like a time machine, it goes back and deletes what legally happened. The law deletes the origins of the legal performance acting like a ‘negative’ performative.

52 Ibid., 82. 53 Ibid.

Philosophy and resistance 165 A successful revolution is the mirror image of this operation. For Kant and Hegel, success makes the rebellion a necessary station of historical progress. At the same time, the revolution deletes the legal record changing criminality into lawfulness, crime into right, the criminal into hero. When an act is void, the law negates what happened in actuality; in the revolution, actuality negates what the law has ordained. The revolution does not redress the effects of the law as is the case in mercy or amnesty which forgive committed crimes; the revolution negates and reverses the law itself. We can call this amazing effect, the ‘normative force of the real’: it retrospectively obliterates the earlier legal position as well as the conditions that led to it. The force of law is negated ab initio, linear temporality is unravelled and reversed. Legal synchrony takes over and sets aside historical diachrony. Because the law wishes to be complete, coherent and closed, because it must appear a ‘seamless web’ in Ronald Dworkin’s terms, what happened at a later time is presented as being always and already there. Past evil becomes honourable from the start, crime the exercise of a right, which determined later events. The right to revolution will have been a foundational right even when it was rejected. Indeed the idea of creating ex nihilo, legalizing the illegal, unravelling time and legitimizing the criminal was always an operation of law, initially held by the Pope and then passed on to Emperor, King and law. The Pope is ‘someone who makes something out of nothing’ states a papal decretal of 1220. The Pope could give dispensation against the law, turning justice to injustice: The pope can make an illegitimate legitimate, and can make a monk a canon, states a typical gloss. Law’s mark is the ability to unsettle temporality and turn fact into law and the opposite. At the moment of the revolution two alternatives exist: success or failure. The failure of rebellion confirms the existent; actuality endures and confirms itself. The possibility of success, on the other hand, is pure potentiality: both negation and an alternative to the existent. Two possibilities appear when revolution breaks: the first continues actuality; a second virtual possibility radically changes it. If the revolution succeeds, the virtual replaces the actual and the potential becomes real. The new regime will have been both normatively authorized and historically necessary right from the start. The rebel operates at both levels: he acts now as if the new law he wants to inaugurate were already applicable, his actions at the service of history’s plan. He exercises his right to rebel, as if the rebellion has been already successful and has changed what appears as crime and sedition into right and duty. The rebel’s time is therefore the future perfect; the revolution will have been an exercise of legal entitlement even when resistance was a crime. The contingent beginnings will have turned into historical inevitability. The revolution does not just delete the past. It retrospectively creates the conditions of its own success. Revolutionary victory was not the felicitous outcome of political action but the inevitable endpoint of historical necessity. This unravelling of temporality and ontology is perfectly described by ­philosopher Jean-Pierre Dupuy: An object possesses a property x until the time t; after t, it is not only that the object no longer has property x; it is that it is not true that it possessed x at

166  The right to resistance any time. The truth value of the proposition ‘the object o has the property x at the moment t’ therefore depends on the moment when the proposition is enunciated.54 In law, it becomes more striking: Act c is a crime until time t. At time t+n, act c is no longer a crime but the exercise of a right. Moreover c was a right and not a crime at all times. The statement ‘act c is a crime’ becomes ‘act c is a right’ at all times. Fact and law, revolution and right are closely intertwined; the time arrow reversed. It is not that the past teaches lessons to the present but that the past is the continuation of the present. In this sense, every rebellion is (and will have been) the exercise of the right to revolution. Right and revolution instead of being opposed are coeval, supporting each other. The cases of resistance Hegel considered rightful were instances of subject creation. When the universal spirit is incarnated into someone who rebels against the particularity of a world become obsolete, he becomes a world hero; such were Robespierre, Lenin or Mao Zedong. The second type of resistance creates ‘ordinary’ resisting subjects. The universal will of formal and abstract law stands against the particular will. An ‘inner rebellion’ follows and unsettles people who are promised but do not enjoy the recognition of rights. For Hegel this was the ‘rabble’: people excluded from a society of alleged freedom and equality. They commit crimes and help the law move forwards but they don’t become political subjects. Similarly, the post-1989 order promised to transcend the split between universal will and individual particularity. Cosmopolitanism, globalization and neoliberalism would turn us into citizens of the world. Neoliberal economics, human rights, and international organizations have created a normative and institutional realm, which transcends earlier conflicts and tensions. In Hegelian terms, cosmopolitan law reconciles abstract individuality and concrete subjectivity, transcending the heteronomous ethics of the polis and the inhuman generalization of Kantian morality. As Jürgen Habermas keeps arguing, cosmopolitan law is no longer an alien substance but our own creation, subject become substance. Yet, the contradictions and conflicts Hegel diagnosed in the nineteenth century are still fully active in different form. The structural contradiction between social being, a socio-economic system that creates huge inequalities, and social consciousness, a juridico-political order that promises equality and freedom, leads late capitalism to the edge. It is experienced as a gap between the promise of universal equality and freedom and the reality of unemployment, poverty, repression and exclusion. The old dialectic of subject and substance awakens and leads to the politics of rebellion. Hegel’s rabble becomes political subject. Hegel’s dialectic

54 Quoted in Slavoj Žižek, ‘Legal Luck’ (2000) 4(1) Unbound 5.

Philosophy and resistance 167 showed the necessity of ‘a rebellion, which shakes the power edifice from its ­complacency, making it aware of both its dependence on popular support and of its a priori tendency to “alienate” itself from its roots’.55 Or as Jefferson put it, ‘a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical’.56 History has proven both right.

55 Žižek, Less Than Nothing, op.cit., 450. 56 Letter from Thomas Jefferson to James Madison quoted in Howard Zinn, A People’s History of the United States (Harper Collins 2001) 95.

11 The ‘right to the event’ The legality and morality of revolution and resistance

Revolution is dead but … The previous chapter examined the philosophical arguments about the right to resistance and revolution. We now move to their legal companion. The modern subject with his rights emerged after the revolutions of the eighteenth century. They were illegal and perpetrated criminal acts when they occurred but were retrospectively legitimized by the Déclaration des droits de l’homme and the American Declaration of Independence and Bill of Rights, the manifestos of modernity. The two Declarations proclaim, unsteadily and provisionally, the normative sources of right equality and resistance: ‘Men are born and remain free and equal in rights’ states the first article of the French Declaration and adds that ‘these rights are liberty, property, security and resistance to oppression’. Between 1789 and 1989, however, the nature of resistance as an independent right and with priority over substantive rights was reversed. Kant was the first to dismiss it as a contradiction in terms and most liberal philosophers followed suit. Politicians and lawyers eagerly adopted the philosophical objections against the right to revolution. The 1793 version of the French Declaration removed the right to resistance from the list of foundational rights. Resistance was demoted to Article 33 becoming ­ancillary. It was no longer available against oppression; it was turned into a last resort against the violation of substantive rights. The 1795 version, introduced after the fall of Robespierre, goes further. The right to resistance disappeared, a number of duties were introduced and property was declared the foundation of the ‘whole social order’. Finally, the gender ambiguities of the term ‘man’, in the ‘rights of man’ were brutally clarified: ‘no one is a good citizen unless he is a good son, good father, good brother, good friend, good husband’.1 Constitutional documents in the aftermath of a revolution mark the move from the original constituent act to its textual representations and formalizations. But they still carry buried in the text the violence of foundations. In the United States, the revolutionary birth led to a healthy respect for resistance and revolution. The violence of the militias, so important in the War of Independence, is

  1 Articles 4 and 8 of the list of duties.

The ‘right to the event’ 169 perpetuated in the Second Amendment’s protection of the right to bear arms, which, two centuries after the revolution, still keeps the United States in a state of war. The idea that government is based on the consent of the people, the basic claim to legitimacy of the American polity, supported further the revolutionary right. The American Declaration of Independence recognizes the revolution both as historical necessity and as a right: ‘When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another’, it is their ‘right, it is their duty, to throw off’ an abusing, usurping despotic government. Governments secure the rights of man and derive their power from ‘the consent of the governed’. It follows that ‘it is the Right of the People to abolish’ a government that ‘becomes destructive of these ends’.2 Similar statements appear in a number of state constitutions.3 Abraham Lincoln famously stated that ‘whenever they [the people] shall grow weary of the existing government, they can exercise their revolutionary right of amending, or their revolutionary right to dismember or overthrow it’.4 After the revolutionary wave had subsided, the right to revolution became dangerous for the young republic and many attempts were made to restrict or abolish it. You do not need to be radical to realize that the law formalizes a dominant will, that the constitution eternalizes a temporary balance of power. Liberal jurisprudence, adopting wholeheartedly the philosophical objections, has repeated monotonously that law cannot tolerate its own overthrow. As Harvey Mansfield put it, ‘ “the right to revolution” appears embarrassingly naïve and rhetorical, an awkward enthusiasm of youth best wrapped in quotation marks and put away in an attic trunk’.5 A similar trajectory from rebellion to conformism can be detected in the human rights tradition. The Universal Declaration of Human Rights (1948) repeats the French statement of equal freedom but has no place for the right to resistance. On the contrary, the preamble states that these rights are essential ‘if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression’. This reference means for some that the right to revolution has been sanctified by the Declaration. But the theory and history of human rights in the aftermath of the Second World War as well as Article 30, which prohibits radical challenges to the political and legal system, shows that their main task was to prevent revolution. As the ‘revisionist’ historians of human rights have argued, the human rights tradition was invented by right wing ideologues and meant that rights and revolution are engaged in a zero-sum game. The relationship between anti-colonialism and human rights is ‘one of displacement, rather than one of

  2 The American Declaration of Independence, paras 3, 4.   3 They include the constitutions of Arkansas, Ohio, Oregon, Tennessee, Texas, California and Utah. New Hampshire retains a ‘right of revolution’ in its constitution to match the ‘live free or die’ of the registration number plates.  4 First Inaugural Address quoted in J. Paust, ‘The Human Rights to Participate in Armed Revolution and Related Forms of Social Violence’ (1983) 32 Emory Law Journal 545 (545).   5 Harvey Mansfield, ‘The Right of Revolution’ (1976) 105(4) Daedalus 151 (151).

170  The right to resistance succession and fulfillment’.6 The leaders and intellectuals of the decolonization struggles in the 1950s and 1960s, Gandhi, Fanon, Césaire, Nkrumah as well as the Bandung conference of non-aligned nations did not make use of the human rights language. Aimé Césaire writes in his Discourse on Colonialism that what he holds against ‘pseudo-humanism’ is that ‘for far too long it has diminished the rights of man, that its concept of those rights has been – and still is – narrow, fragmentary, incomplete and biased and, all things considered, sordidly racist’.7 The newly independent former colonies saw human rights as the neo-colonialist version of the Western mission civilisatrice, trying to constrain their newly acquired independence. As Samuel Moyn argues, right-wing politicians and ‘personalist’ Catholic theologians invented the European human rights tradition as a response to the post-war discrediting of conservative ideology.8 In Germany, Kant’s ambivalent rejection of the morality of resistance and the legality of revolution has led to vigorous debate among neo-Kantians. For some, the master’s rejection refers solely to positive law. When state law violates higher natural law, however, the right returns. For others, the absolute negation applies only when the state is perfectly moral and legitimate. Passive resistance may be permitted, if a corrupt or despotic ruler negates the duty to act morally.9 Again for others, the duty to obey retires when obedience leads to certain death or when there is no possibility of challenging governmental policies.10 Finally, disobedience can be justified if the law denies the fundaments of personality. It follows that slaves or Jews ‘must be permitted’ to violate the law enslaving them or allowed to ‘immigrate’ if the law orders them to identify themselves in order to be transported to the camps.11 As the last example indicates, the rather scholastic neo-Kantian debate on the right to revolution had great practical importance in Germany. After the war and despite the Nazi experience, Karl Jaspers, one of the great Kantians of the twentieth century, was more dismissive than the master of the right to resistance. He drew a sharp distinction between the Kantian conceptions of right and revolution: The right of resistance and revolution by force cannot be proved for the people out of any right … Kant understands that with rebellion and tyranny as with war … action takes place no longer out of principle of right. The

  6 Samuel Moyn, ‘Why Anticolonialism Wasn’t a Human Rights Movement’ in Samuel Moyn, The Last Utopia (Harvard University Press 2010) 116.   7 Quoted in ibid., 92.  8 Samuel Moyn, ‘Plural Cosmopolitanisms and the Origins of Human Rights’ in Costas Douzinas and Conor Gearty (eds), The Meanings of Rights (Cambridge University Press 2014).  9 Kenneth Westphal, ‘Kant on the State, Law and Obedience to Authority in the Alleged “Anti-Revolutionary” Writings’ (1992) 17 Journal of Philosophical Research 401. 10 Ibid., 410–11. 11 Ibid., 422.

The ‘right to the event’ 171 causality of nature, and in it perhaps providence, makes the decisions, which are never fully transparent to man. The principle of right is suspended.12 Right derives from the state and belongs to law, even in their most odious versions. Resistance cannot be part of law. Revolution can only be justified if it acts as a tool of natural progress or a bolt of divine intervention in history and has nothing to do with law or rights. Wolfgang Schwarz, another prominent Kantian, objects that Jaspers misunderstands Kant. In a liberal universe, the principle of right is the only spring for action, choice and freedom. Right and its fruit, freedom and property, are gifts of the ‘generality of rules’; it is not suspended even in the most despotic of states. For Schwarz, Kant would approve in rare cases the passive resistance of non-compliance with the law. If the content of laws, despite their generality, undermines the duty to act morally, non-compliance with the law may be justified. Active resistance and revolution on the other hand are prohibited even in extreme cases by the principle of right. As Schwarz puts it, the ‘great burden’ of the plotters against Hitler was that they were, attacking, by illegal means, a however corrupted order that still upheld the state … To maintain that the right was all along on their side belittles the gravity of their decisions. Legal reasoning cannot save them from the pronouncement ‘guilty’ even though this makes them even more heroic.13 Neo-Kantian positivism prioritizes the generality of form over (often) atrocious content and captures the poverty at the heart of liberal jurisprudence.14 Resistance and martyrdom cannot be accepted by liberal positivism. But is a moral and legal philosophy that cannot justify active resistance against slavery or Nazism worthy of the name? Kant (although not many neo-Kantians) is rescued partly by his philosophy of history. Resistance and revolution may violate current law and right but they often contribute to their eventual victory in actuality. In this sense, history and jurisprudence are both enemies and allies. As Lewis Beck puts it, the moral aspirations of mankind are not satisfied by punctilious obedience to the powers that be; they demand that the powers that be should earn our respectful obedience, and they sometimes justify disobedience to the positive law out of obedience to a ‘higher law’.15 The rights of man started as normative marks of revolutionary will. Positive rights, their descendants, often turn into defence mechanisms for state power.

12 Karl Jaspers quoted in Wolfgang Schwarz, ‘The Right of Resistance’ (1964) 74(2) Ethics 126 (126). 13 Ibid., fn. 17, 133–4. 14 See Chapter 10 in this volume. 15 Lewis Beck, ‘Kant and the Right to Revolution’ (1971) 32(3) Journal of the History of Ideas 411, 420.

172  The right to resistance Revolution created rights. The removal of the right to revolution was an attempt to foreclose radical change by making a particular conception of rights the insurance policy for the established order. The attempt was doomed to fail. The new emerges each time through a confrontation with dike, the order of the world.16

The legitimacy of resistance Can there ever be a legal right to revolution and resistance? Let me start with a clarification of the relationship between resistance and revolution. Most revolutions start with acts of individual disobedience, followed by collective resistance and insurrectional activities. A multitude with common political purpose takes to the streets and persists despite attacks by the forces of ‘law and order’. We define resistance as the mass popular action that rejects and confronts ideologies and structures of power that support domination or oppression.17 Whether it results in radical socio-political change – the formal definition of a successful revolution – depends on the balance of forces, the existence of a political subject prepared to take power and on contingent events. Individual disobedience, collective resistance and revolution form an uneven continuum. Irrespective of outcome, however, the emotional, physical and normative – moral and legal – pressures people feel when they stand up to power are similar even though the forms and outcome of action may differ. The Russian and Chinese revolutions defined the meaning of radicalism in the twentieth century. But in the second part of the century, the Cold War determined the direction of domestic and international politics and delegitimized revolution. McCarthyism and the anti-communist witch-hunts dampened the revolutionary memories and turned resistance to state policies into sedition. After China and Cuba, revolution was equated with communism and law’s task became to eradicate radicalism. There were exceptions. Some American judges, such as Learned Hand, Black and Douglas, kept recalling the home-grown revolutionary tradition. Rare judicial statements supporting the right to revolution can be found in the case law, mainly in dissenting opinions. Justice Douglas, in his dissent from the Supreme Court’s decision upholding the Smith Act under which the Communist Party was outlawed, stated that the right to revolution, ‘has been and is a part of the fabric of our institutions’.18 Justice Black, supporting a persecuted communist, went further: Thomas Jefferson was not disclaiming a belief in the ‘right to revolution’ when he wrote the Declaration of Independence. And Patrick Henry was certainly not disclaiming such a belief when he declared in impassioned

16 Costas Douzinas, ‘Adikia: On Communism and Rights’ in Costas Douzinas and Slavoj Žižek (eds), The Idea of Communism (Verso 2010) 81–100. 17 Jocelyn Hollander and Rachel Einhwohner, ‘Conceptualizing Resistance’ (2004) 19(4) Sociological Forum 533. 18 Scales v. United States, 367 US 203, 262 (1961).

The ‘right to the event’ 173 words that have come on down through the years: ‘Give me liberty or give me death … ’ Since the beginning of history there have been governments that have engaged in practices against the people so bad, so cruel, so unjust and so destructive of the individual dignity of men and women that the ‘right to revolution’ was all the people had left to give themselves.19 In the German tradition too, exceptions to the general dismissal can be found. Hermann Weinkauff, a former President of the West German Federal Court of Justice, defended a positive right to resistance including tyrannicide, which turns from murder into the lawful execution of the despot. If the state abandons the principles and limitations of ‘natural law’, its violent overthrow is permissible. When the citizen judges that ‘the state’s leadership against which [he] proceed[s] offends right and duty so much that resistance by force against it is required and indispensable, and also a judgement on the degree to which resistance is necessary’.20 Despite attacks by the legal establishment the memory of revolutionary right did not disappear. It became a ghostly presence discussed in history classes and radical philosophy seminars. As Marjorie Kornhauser puts it, ‘the right to revolution survived the twentieth century and persists in the twenty-first, largely domesticated, but not entirely tame’.21 International law is different. Based on the priorities of realpolitik instead of Kantian moralism, it recognizes a victorious revolution after it has overthrown the previous constitutional order. The right to self-determination in both UN Covenants accepts that people are entitled to resist their government and overthrow the ruling order. Hans Kelsen, the dean of normative positivism, insisted that a revolution becomes lawful if successful. The revolutionary legal order deserves international recognition; if the people comply with the new laws, they must be enforced.22 As Ali Khan puts it, ‘Kelsen does not preclude the right of revolution from the domain of law’.23 The argument that a successful revolution creates a valid duty of obedience internationally has met with unease by those committed to its eradication domestically. In a court case arising out of detention without trial of a black nationalist in state of emergency Rhodesia (now Zimbabwe) the court held that ‘nothing can encourage instability more than for any revolutionary movement to know that if it succeeds in snatching power it will be entitled to complete support of the pre-existing judiciary’.24 But one can also find more realistic statements: ‘Today the right of revolution is an important international precept and a part of available strategies for the assurance of both the authority of

19 In re Anastaplo, 366 US 82, 113 (1961). 20 Weinkauff quoted in Schwarz, op.cit., fn. 13, 128–9. 21 Marjorie Kornhauser, ‘Legitimacy and the Right to Revolution: The Role of Tax Protests and Anti-Tax Rhetoric in America’ (2002) 50 Buffalo Law Review 819, 859. 22 Hans Kelsen, The Pure Theory of Law (2nd edn, trans. Max Knight, The Lawbook Exchange 2005) 117. 23 Ali Khan, ‘A Legal Theory of Revolutions’ (1987) 5(1) Boston University International Law Journal 1, 12. 24 Madzimabuto v Lardner Burke [1968] 2 S.A. 284, 430.

174  The right to resistance the people … and of the process of national self-determination’.25 The pragmatism of international law, particularly in periods of broad equivalence of the great powers, meant that revolutions were treated with a degree of toleration. Let us turn to domestic law and politics.

The right to resistance returns The attack on the right to revolution and its rejection by legal positivism led to its deletion from the legal archive in the relative prosperity after the Second World War. Protest returned to the streets and the law courts in the 1960s and 1970s in the great campaigns against race discrimination and the Vietnam War. The American courts treated dissent under two headings, free speech and civil disobedience. The courts had accepted before the 1960s that demonstrations, marches and rallies are protected exercises in free speech. Similarly, trade unions strikes had been legalized by the law. Direct or indirect disobedience, however, involves law-breaking. Direct disobedience violates a morally odious law in an attempt to make it unworkable and lead to its abolition. Such cases include Henry David Thoreau’s non-payment of taxes as a protest against slavery or Rosa Parks sitting in a seat reserved for whites in a segregated bus. Indirect disobedience, on the other hand, such as the occupation of government buildings, sit-ins or the blocking of roads, violate public order regulations in order to publicize a grievance, show solidarity with others and attract media interest. The law broken is unrelated to the complaint aired. The terminological slide from resistance to disobedience indicates a lowering of sights. The right to resistance presumes that a law or ideal exists higher than state law demanding its total or partial repeal. Disobedience, on the other hand, with its emphasis on civility, seeks its justification in extant law. There is a change of perspective, a parallax view that places emphasis on the individual dissident, her moral conscience and the specifics of the act. Disobedience can offer at most a technical defence against conviction. The revolutionary and resister fight to abolish and replace current law; they appeal to a different higher legality. The disobedient asks that legality be observed. The protests of the 1960s and 1970s sparked a major debate in the United States. At its conclusion in 1985 Ronald Dworkin claimed that ‘we can say something now we could not have said three decades ago: that Americans accept that civil disobedience has a legitimate if informal place in the political culture of their community’.26 Liberal assumptions, however, seriously restrict justified disobedience. John Locke and the social contract tradition accepted a limited right to revolution, activated if the government violates the terms of the contract, mainly the guarantee of private property. This remains the liberal position today suitably adjusted to contemporary conditions. Acceptable disobedience provides a mechanism ensuring that the political and social order remains true to the values of the free market and individual freedom. It expresses, alongside the judicial review

25 Paust, op.cit., 562. 26 Ronald Dworkin, A Matter of Principle (Harvard University Press 1985) 105.

The ‘right to the event’ 175 of legislation, an enduring fear of democracy. Disobedience is not interpreted as an expression of democracy; on the contrary, it is a limitation on democratic decision-making and a constraint on the ‘tyranny of the majority’. Disobedience is a necessary evil; it aims to keep the rulers, including democratic bodies, within the parameters of liberal legitimacy. For contemporary liberals, the state’s most important duty is to protect individual rights. Mild-mannered disobedience is justified only if policies and laws violate the principles of equal liberty (Rawls) or fundamental rights (Dworkin). For John Rawls, ‘there is a presumption in favour of restricting civil disobedience to serious infringements of ... the principle of equal liberty, and to blatant violations of ... the principle of fair equality of opportunity’.27 Rawls constructs an elaborate set of conditions for justified disobedience. The breaking of laws must be motivated by respect for the rule of law; it must be undertaken as a last resort and, it must appeal to society’s sense of justice as incorporated in the legal system. In such cases, disobedience to the letter of the law is a way of obeying its spirit.28 Ronald Dworkin’s conditions for valid disobedience are equally stringent and derive from his wider jurisprudence. The dissidents must accept the morality and integrity of constitution and law; they can only protest against specific governmental acts. The aims of the act classify disobedience into three categories: conscientious objection; proper disobedience that defends the spirit of the constitution; finally, acts which challenge policies adopted by the government.29 This last category is mostly ‘illegitimate’, because policies are based on a cost–benefit analysis, which invites disagreement but does not justify law-breaking. The most advanced mainstream argument combines liberal and democratic approaches to disobedience. Citizens have given their implicit consent to the constitution in a real or virtual social contract and have pledged their obedience to laws enacted by their representatives after public deliberation and a democratic ‘will formation’. In return, laws must respect fundamental freedoms (the Kantian component) and promote the public interest and social justice (the socialdemocratic component). For neo-Kantians like Jürgen Habermas, democracy and morality, legitimacy and legality form an inseparable union. When one is lost, the other atrophies. When both retreat, the duty of obedience weakens. But the pre-conditions Habermas sets for justified disobedience are more onerous than those of Rawls: A democratic constitution can tolerate resistance from dissidents who, after exhausting all legal avenues, nonetheless oppose legitimately reached decisions. It only imposes the condition that this rule-breaking resistance be

27 John Rawls, A Theory of Justice (Harvard University Press 1971) 372. Disobedience confronts ‘especially the infringement of the fundamental equal liberties’, 366. See also John Rawls,’ The Justification of Civil Disobedience’ in Edward Kent (ed.), Revolution and the Rule of Law (Prentice Hall 1972) 29–45. 28 Ibid., 360 ff. 29 Ronald Dworkin, Taking Rights Seriously (Duckworth 1977) 186 ff.; Dworkin, A Matter of Principle, op.cit., 104 ff.

176  The right to resistance plausibly justified in the spirit and the wording of the constitutions and conducted by symbolic means that lend the fight the character of a nonviolent appeal to the majority.30 This was in broad terms the position adopted by Martin Luther King, the iconic figure of American civil disobedience. For King, disobedience was a matter of mediation between democracy and the rule of law. Citizens could break the law ‘lovingly’ and accept the punishment for disobedience. By doing so, they show the ‘highest respect for the law’ and democracy. Disobedience rejects immoral governmental policies but it upholds the majesty of law and the wisdom of the constitution.31 We can conclude that liberal philosophy reluctantly accepts that non-violent civil disobedience to defend fundamental rights against government acts is justified, if the disobedient is prepared to accept punishment. Attacks on laws and policies on the other hand are disapproved. The civil disobedience debate rests on a fragile compromise between constitutionalism and popular sovereignty. Democratic theory has a more refined approach than liberalism. According to Jean-Jacques Rousseau, the people are legislators and subjects, masters and servants of the law.32 Democrats emphasize therefore the way popular will controls state institutions. Ultimate sovereignty belongs to the people, both as the constituent power, which institutes the law and, as a virtual interpretative power standing above constituted institutions. It can be argued therefore that if democracy becomes a mechanism for vote aggregation and active citizen participation is discouraged, the legitimacy of law and policy withdraws and disobedience becomes a democratic right. This is Sheldon Wolin’s ‘fugitive’ eruption of democracy or Larry Kramer’s ‘popular constitutionalism’: people have ultimate interpretive authority ensuring that the law expresses and materializes its only legitimate source.33 Both parts of the constitutionalism-democracy couple have diverged, however, from their standard theoretical presentation. Constitutionalism pays lip service to popular will which is allegedly split into its supreme manifestation enshrined in the constitution and inferior expressions in legislative or executive acts. When a court declares a law unconstitutional, it enforces the ultimate sovereignty entombed in the constitutional text and not the preferences of the interpreters. Similarly, popular sovereignty has become the legitimation myth of liberal democracy; it belongs notionally only to the people. In late capitalism, the decline of interest in politics and the passivity of citizens have been hailed as necessary for a well-functioning

30 Giovanna Borradori, Philosopy in a Time of Terror: Dialogues with Jurgen Habermas and Jacques Derrida (Chicago University Press 2003) 41. 31 Martin Luther King, Why We Can’t Wait (Signet Books 1964) 84. 32 Jean-Jacques Rousseau, On the Social Contract (St Martin’s Press 1978) 53. 33 Sheldon Wolin, ‘Fugitive Democracy’ in Seyla Benhabib (ed.), Democracy and Difference (Princeton University Press 1996); Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press 2004).

The ‘right to the event’ 177 democracy.34 According to this argument, the c­ omplexity of economic and social problems means that they should be removed from the uncertainty of ­democratic consultation and entrusted into experts and markets. Real sovereignty – the ­ultimate power to turn policy proposals into binding and enforceable l­egislation – rests with the executive. Its control of parliamentary majorities through party loyalty legitimizes policy decisions and guarantees their enactment. Constitutional adjudication on the other hand places a stamp of approval and legitimacy on legislation and executive action. In this long line of substitutions and replacements, the people have changed from a ­material gathering and decision-making of citizens in a constitutional assembly to an abstract principle of legitimacy with little political relevance or material manifestation beyond elections. Conservatives and radicals, starting from opposing premises, do not accept the liberal arguments in favour of a well-policed mild disobedience. At one end, Robert Bork is typical of the ‘law and order’ lobby. Disobedience is anarchy and criminality and ‘there is no reason for courts to protect any advocacy of law violation since that is merely advocacy of a piecemeal overthrow of the democratic system’.35 A review of jurisprudence concludes that ‘scholars have grounded an obligation to obey unjust laws in six different legal theories’ and assumes that such a plethora of theoretical argumentation must rule out disobedience.36 A review of the case law agrees: ‘The US Constitution does not protect civil disobedients from imposition of punishment for their crimes (sic), and to do otherwise would “subvert the rule of law upon which the United States constitutional democracy is based” ’, quoting the liberal Justice Abe Fortas.37 At the other end of the spectrum, dissidents have not accepted the nice distinctions and qualifications of legal and moral philosophy. The rebelling students of 1968, the feminists, the Campaign for Nuclear Disarmament and the mass protests against the communist states, attacked both the fundaments of the social order and more transient state policies. A new type of ‘democratic disobedience’ emerged in response to the decay of liberal democracy. Its animating principle states that laws do not deserve automatic or unhesitating loyalty. If state policies conflict with basic constitutional values, the supposed highest expression of popular sovereignty, legality and legitimacy diverge. Opposition parties try to repeal the law; ordinary citizens take their campaign to the streets because the obligation to obey disappears; dissent supports the constitution. The same happens when a government enacts policies and laws that reverse basic promises and manifesto commitments or are in clear

34 A. Crozier, S.P. Huntington and J. Watanuki, The Crisis of Democracy – Trilateral Commission Task Force Report no 8 (New York University Press 1975). For critiques of our democratic malaise, see Jacques Rancière, The Hatred of Democracy (Verso 2009); Colin Crouch, Post-Democracy (Polity 2004). 35 Robert Bork, The Tempting of America: The Political Seduction of Law (Free Press 1990) 334. 36 Susan Tiefenbrun, ‘Civil Disobedience and the US Constitution’ (2003) 32 Southwestern University Law Review 677, 693. 37 Ibid., 697.

178  The right to resistance conflict with popular will. In such cases, the mandate to rule has been falsely obtained or has been annulled by governmental action. Democratic disobedience combats the atrophy of democracy and the decay of ‘post-democracy’.38 Following republican theory, it prioritizes the democratic will of the people ahead of fundamental rights. Justified disobedience erupts when a large number of citizens realize that the democratic process malfunctions and major policy decisions seriously affecting their lives have no democratic or moral legitimacy. Daniel Markovits has tried to operationalize democratic disobedience in a more technical direction. He starts by identifying the weaknesses of civil disobedience. Disobedience challenges the lack of participation in decision-making but cannot attack the policies agreed. Its justification ‘expires if the disobedience successfully triggers a political reengagement with the policy it protests against, including one in which the sovereign [people] reaffirms this policy’.39 In periods of great crisis, however, the democratic deficit cannot be easily redressed. Citizen passivity and indifference, control of the media by economic power, endemic corruption and lack of party democracy hinder ‘political reengagement’. The republican belief that people are ‘sovereign’ is routinely refuted. Markovits rightly argues that the liberal justification for civil disobedience did not apply to the anti-globalization protests, the most massive movement at the time he was writing, ‘because the policies of international co-ordination and exchange that the anti-globalization movement protests cannot plausibly be cast as violating basic liberal principles of equality or individual freedom’.40 Similarly, this type of democratic disobedience did not extend to the acts of resistance and insurrection in the 2010s. Tunis, Cairo, Athens and Istanbul did not ask that the debate be re-opened. The dramatic democratic deficit, the disenfranchisement of large parts of the population and the turning away from politics makes the re-opening of wrong decisions useless. Democratic disobedience challenges social hierarchies and the flawed democracy that reproduces them; its motto is that ‘action does not mean a failure of politics. Action is the very nature of politics’.41 Politics happens when the people who have no claim or stake in the political game suddenly demand to be seen and heard. Democratic disobedience does not prioritize the defence of fundamental rights nor does it exclusively attack problematic policies – even though both malfunctions are present when protesters take to the streets. Disobedience interprets the law and policies; the essence of democratic disobedience is to change politics and law. Etienne Balibar has argued that democracy survives because it has an integral ‘insurrectionary’ moment. ‘Any effective democratic constitution remains dependent on the idea of insurrection’, Balibar insists.42 Citizenship becomes

38 Crouch, op.cit. 39 Daniel Markovits, ‘Democratic Disobedience’ (2005) 114 Yale Law Journal 1897, 1941. 40 Ibid., 1950. 41 Todd May, The Political Thought of Jacques Rancière (Edinburgh University Press 2008) 52. 42 Etienne Balibar, Masses, Classes, Ideas (trans. James Swenson, Routledge 1994) xiii.

The ‘right to the event’ 179 active only when opposition and dissent create a ‘counter power’. Power’s legitimacy depends on the ability of citizens occasionally to reject laws and policies. Established powers condemn such acts as illegal and criminal; but their effective exercise is the necessary pre-requisite of the political system’s survival. Citizenship is paradoxical: it is ‘conflictual or nothing’. The post-democratic decline of politics into governance and expert rule has made disobedience even more important. Supposed remedies to democratic sclerosis such as referenda, minority rights and judicial remedies are palliatives only. Conflict, division and active citizenship are the only hope of democracy. The right to insubordination, turning the city against itself, is the ‘true right to rights, a kind of right to law’.43 Balibar’s argument reminds us the beginning of Athenian democracy. Solon, the legislator, laid down a law according to which ‘whoever when civic strife prevailed did not join forces with either party was to be disenfranchised and not to be a member of the city’.44 Conflict, resistance, insurrection is an enduring reality; it responds to the sense of injustice and keeps democratic rule alive. Despite its ban, the right to resistance survived in a ghostly, persecuted form.

The legality of disobedience Disobedience is a form of resistance. As I have argued elsewhere resistances are always locally situated and concrete.45 They arise in specific historical conditions and social situations reacting, responding and re-arranging the extant relations of power. It is therefore difficult to develop universal principles beyond the specific circumstances of resistance. The forms, subjects and strategies of resistance reply, resort and react to the specific operations of power. The breaking of machines and sabotage, for example, responded to early capitalism’s enclosures and destruction of traditional skills and crafts. The mass movement of refugees and economic immigrants towards safe and prosperous states gives rise to claims for free travel and establishment and for a minimum income. Excessive indebtedness leads to repayment strikes. Intensification of work and unemployment give rise to demands for a right to leisure. Was Ronald Dworkin right when he claimed that disobedience has acquired a legitimate place in American political culture? The case law offers a mixed image. In the United States, most challenges of disobedience convictions rely on the First Amendment’s protection of free speech. The cases offer a panorama of ideological strategies, legal techniques and fears mobilized by resisters and by the forces of law and order against dissent. Let me mention a few exemplary court cases. In the 1960s, the period of great unrest, judicial responses move from total repudiation of disobedience to partial protection when the act came close to the

43 Ibid., 347. 44 Aristotle, The Constitution of Athens (trans. H. Rackha, Harvard University Press 1996) viii, 5, 30–1. 45 Costas Douzinas, Philosophy and Resistance in the Crisis (Polity 2013).

180  The right to resistance definition of protected speech under First Amendment doctrine. In Walker v City of Birmingham, Alabama, the Southern Christian Leadership and Martin Luther King called for mass rallies on Good Friday and Easter Day 1963, to protest the break-up of previous rallies and the arrest of protesters under a local law that required advance local authority permit for public protests. As these local laws were often found wanting under constitutional challenge, the City authorities obtained a temporary injunction the day before the rally enjoining the group from participating or encouraging it. King and eight others went ahead with the rally, were arrested and cited for contempt of court. The Supreme Court upheld the convictions, despite the fact that the local law demanding prior permit for marches was found to be unconstitutionally vague. The court’s reasoning fully justified the tactics of the Alabama authorities: The rule of law that Alabama followed reflects a belief that … no man can be judge in his case, however exalted is his station, however righteous his motives and irrespective of his race, color, politics, or religion … One may sympathize with the petitioners’ impatient commitment to their cause. But respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.46 The court’s judgement was an elegant essay on the rule of law. The conflict was between the law tout court and the institutional racism the protesters attacked. This way, law’s acceptance of appalling racism becomes a secondary matter to its civilizing influence; those protesting this grave legal injustice are presented as ordinary criminals disrespecting the law. Brown v Louisiana is another typical case. Five black people were convicted for sitting-in at a segregated public library in 1963. Justice Black, the most liberal judge in the New Deal and Cold War cases, dissenting reversed his earlier position totally: It is high time to challenge the assumption, that groups that think they have been mistreated have a constitution right to use the public’s street, building and property to protest whatever, wherever, whenever they want, without regard to whom such conduct may disturb. The peaceful songs of love can become as stirring as provocative as the Marsellaise did in the days when a noble revolution gave way to rule my successive mobs.47 If we turn to Britain, the last thirty years have been characterized by the criminalization of protest.48 A number of Public Order and Terrorism Acts increased

46 388 US 307 (1967), at 320–1. 47 383 US 131 (1966), at 162,168. 48 Jeffrey Shantz (ed.), Protest and Punishment: The Repression of Resistance in the Era of Neoliberal Globalisation (Carolina Academic Press 2012).

The ‘right to the event’ 181 the police powers to restrict protest, ‘kettle’, arrest and remove protesters and attack alternative lifestyles.49 This has been accompanied with increasing police violence against protesters, particularly green activists and students.50 In 2008, a jury in Maidstone acquitted six Greenpeace activists of criminal damage for occupying the Kingsnorth coalfield power station.51 But in 2011, twenty environmentalists were convicted in Nottingham for aggravated trespassing for planning to occupy the similar Radcliffe power station. Both sets of defendants argued that they had a lawful excuse or that their acts were necessary in order prevent the greater harm of death and serious injury resulting from carbon dioxide emissions caused climate change. Why the difference? The defence of necessity or lawful excuse is legally controversial. Indeed in the Radcliffe case, the prosecution tried unsuccessfully to prevent it from being put to the jury. In the first case, the judge asked the jury to consider the line between legitimate protest and damage to property. The overwhelming evidence of climate change and the damage it causes was found more important than minor damage to the power station’s chimney. In the second, the prosecution argued that the defendants instead of taking direct action, they should have used their money to pay a celebrity to ‘front their action’; or, that they should have installed a bio-degradable toilet in their homes as the prosecutor had.52 It has been some time coming but we have moved from Antigone to Bono, from Rosa Parks to Bob Geldof and from the agora or the forum to the shopping mall.53 In general terms, law’s reaction to disobedience moves on a relatively short spectrum. At one end, dissent is seen as somewhat justified; legitimate disobedience becomes a defence against conviction or is offered in mitigation

49 The controversial tactic of ‘kettling’ involves the police surrounding protesters in a small area and not allowing them to leave for long periods of time. In Austin and Others v UK [2012] ECHR 459, the European Court of Human Rights found that the practice does not violate the protesters’ liberty. 50 Brian Martin, ‘Protest in a Liberal Democracy’ in Shantz, op.cit., 17; Nina Power, ‘Dangerous Subjects: UK Students and Criminalization of Protest’ (2012) 111(2) South Atlantic Quarterly 412. 51 John Vidal, ‘Not Guilty: The Green Peace Activists Who Used Climate Change as a Legal Defence’ Guardian (London 11 September 2008) accessed 3 September 2018. 52 Mike Schwarz, ‘Why Did Radcliffe Defence Fail Where the Kingnorth Six Succeeded?’ Guardian (London 16 December 2010) accessed 3 September 2018. 53 In a 2013 case, the court convicted but gave no custodial sentences to twenty-one activists who occupied a West Burton power plant in Nottinghamshire. Several protesters remained strapped to a cooling tower at the site for more than a week. The power company tried to bring a civil suit against them demanding £5 million in compensation. It was withdrawn after 64,000 people signed a petition against the power company. Damian Carrington, ‘Climate Activists Receive Sentence for Gas-Fired Power Station Occupation’ Guardian (London 6 June 2013) accessed 3 September 2018.

182  The right to resistance in sentencing. Second and most often, the law treats disobedience as a normal criminal offence bypassing the protesting motives. Finally and regularly, disobedience is seen as a threat to the social order. The dissidents are demonized by courts and media and receive harsh sentences for deterrence. In this sense, disobedience case law tells us more about the state of the nation than about law’s consistency. The cases reflect the fears of dominant powers that their hegemony is threatened. Law’s arsenal is mobilized not so much for punishing law-breaking but for indicating the threat perceived by the dominant forces and the limits of official tolerance. Disobedience cases are primarily ideological: they depoliticize dissent and disarticulate the collective nature of resistance. Prosecutions freeze a particular event in an ongoing sequence, focus on the individuals involved in the incident and neglect the action’s collective character. They disregard the dissidents’ motives focusing exclusively on their intention. This way, ideological and political struggles turn into technical legal disputes and lose their campaigning character and political import. More generally, the debate about the legitimacy of disobedience, a debate that had died down after the 1970s and returned recently, is part of a wider ideological conflict. Attitudes are influenced by what people believe about the justice of the cause. Those who support state policies tend to emphasize the illegality or violence of acts of resistance. This allows the debate to be diverted from the content of the grievance, from race discrimination, war, deregulated capitalism or austerity, into an argument about the majesty of the law or the acceptability of violence.54 Let me conclude this part with a controversial point: Resistance is first and foremost a fact not an obligation. It is not the idea or of justice, equality or communism that leads to resistance but the sense of injustice, the bodily and affective reaction to hurt, hunger and despair. The idea of justice and equality are maintained or lost as a direct result of the existence and extent of acts of resistance. Indeed resistance is a law of being. It is internal to its object. From the moment being takes form or a power asymmetry is established, it encounters resistances, which irreversibly fissure and twist it. In this sense, whatever the legal impediments and punishments, resistance emerges every time that people say ‘enough is enough’, ‘we cannot take it any more’.

The morality of disobedience Let me finally turn to the phenomenology of disobedience and resistance. For the ordinary person, disobedience is the deeply moral decision to break the law. It is the strongest mark that the morality of citizens has not atrophied. It happens when someone reaches breaking point: ‘Enough is enough – I can’t take it any more’ is the cry of the dissident who is prepared to risk punishment. It may follow an extreme injustice, like the police killing of Alexis Grigoropoulos in

54 Douzinas, Philosophy and Resistance, op.cit.

The ‘right to the event’ 183 December 2008 in Athens or of Mark Duggan in London in August 2012.55 Alternatively, it may result after a series of humiliations that eventually exhaust moral tolerance, as was the case with the civil rights or anti-austerity movements. In normal circumstances, morality and legality represent two different types of overlapping but not identical duty: the external duty to obey the law (formally a heteronomous duty) and the internal moral responsibility that binds the self to a conception of the good (autonomy). Conflicts are usually solved in favour of law. In disobedience, the duties collide and morality wins. If both morality and legality become simple obedience to external codes autonomy dies. The duty to obey the law is absolute only when accompanied by a free judgement that the law is morally right and democratically legitimate. If that were not the case all law, irrespective of evil intent or effect, must be obeyed. As Hannah Arendt put it a propos of Eichmann’s defence, this would be a perfect solution ‘for the household use of the little man’.56 In acts of disobedience, autonomy and existential freedom temporarily coincide. The decision to break the law is hard, unavoidable and traumatic at the same time. Resistance, on the other hand, is collective; it is addressed at everyone and aims to reconstruct the hurt community, writes Etienne Balibar. But ‘at the moment of decision, of the risk of making a mistake’ that will be paid by all, ‘the subject is facing just himself ’.57 At such moments, the self is wrestling in solitude. What makes an ordinary person take such a decision? Radical philosophy must give an account of the motivational force to follow morality and break the law. Without such an account and without a conception of the ethical and political self, moral reflection becomes cynical theorizing. Simon Critchley, following Alain Badiou, has argued that the disobedient subject ‘commits itself ethically in terms of a demand that is received from a situation, for example a situation of political injustice’.58 The ‘demand’ arises in specific circumstances (the killing of a young man, a deeply unjust policy) but is addressed in principle to everyone and anyone. The moral force of positive law derives from its universal form, which allows its application to a myriad future cases. The moral demand, on the contrary, draws its force from the content of the situation, which acquires universal form. Law operates deductively, from norm to fact, situational morality inductively. The moral demand’s universality makes it formally equivalent to the law but, unlike law, this is a ‘situated universality’. It emanates from a unique instance or event that requires a response engaging potentially everyone (the rejection of police brutality or the claim to equality). To put it differently, the moral act responds

55 Ibid., ch. 9. 56 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 1994) 136. 57 Balibar, op.cit., 354. 58 Simon Critchley, Infinitely Demanding: Ethics of Commitments Politics of Resistance (Verso 2007) 42

184  The right to resistance to a wrong that takes the form of a concrete universal. ‘Wrong institutes the singular universal, a polemical universal, by tying the presentation of equality, as the part of those who have no part, to the conflict between parts of society’.59 Those who remain true to the demand become moral subjects. The wrong, its demand and the moral subject emerge together, Critchley claims. It is not previous edification or ideology that creates the radical subject but his answer to a unique event and its moral ‘call’. Critchley’s argument emphasizes the moral significance of the situation. Philosophy knows, since the Platonic dialogues, that the rational acceptance of morality’s demands does not lead necessarily to moral action. ‘I may know the good’, says Racine’s Phaedre, ‘but I keep following evil’. The same applies to radical action. The link between radical ideology and militant action is fragile. The decision to disobey the law rises rarely on some radical road to Damascus. The militant does not emerge by parthenogenesis. Antigone’s defiance, Paul’s conversion and Lenin’s resoluteness did not emerge ex nihilo. Disobedient subjects cultivate, according to late Foucault, l’art de n’être pas tellement gouverné. Unlike Badiou’s ‘subjects of truth’, they are prepared by values, beliefs and actions preceding the dramatic event. As Ernesto Laclau puts it, ‘the subject is only partially the subject inspired by the event … social agents share, at the level of a situation, values, ideas, beliefs, etc. that the truth … does not put entirely into question’.60 Reasons and unreason, emotions and intuition, memories and testament give rise to acts of insubordination. Disobedience negates, resistance creates. The importance of disobedience lies precisely in starting the process of production of new subjectivities. It raises people from takers of orders and commands into self-legislating citizens. If power operates as control of conduct, counter-power attacks the channelling of conduct. Puerta del Sol, Syntagma or Taksim become places where people state ‘We don’t want to be ruled like that’. Cynicism and nihilism is the common pathology of rulers for whom punishment is unknown and the common good is often a euphemism for personal interests. The moral quality control of disobedience, on the other hand, is strict. The first test is the willing acceptance of the risk and possibility (nowadays probability) of punishment. The second brings the specific grievance or demand under the control of an ethico-political principle. The moral litmus test of disobedience is simple: can the good or principle, the disobedient obeys, be addressed to everyone and anyone? Can it be universalized? The answer takes account of normative and empirical considerations, the legitimacy of democracy and the moral validity of the rule of law. It is a tough anxiety-producing moral test; if absent, it is replaced by empty moralizing, which turns private vice into public virtue.

59 Jacques Rancière, Disagreement (University of Minnesota Press 2004) 39. 60 Ernesto Laclau, ‘An Ethics of Militant Engagement’ in Peter Hallward (ed.), Think Again: Alain Badiou and the Future of Philosophy (Continuum 2004) 134, 135.

The ‘right to the event’ 185 There is nothing wrong in principle in a campaign of disobedience that starts from particular interests. Finite demands can become ‘infinite’ and transcend their immediate concerns, ‘Infinite’ here does not consist in the demands that I make, but in finding something in the situation that exceeds its limits … the finite demand around which a struggle organizes itself extends itself beyond the limits of the identity of the concerned group and becomes something more radical and far-reaching.61 In this sense, the specific campaign opens to demands that leave behind local interests and specific identities. Disobedience is transformed from a personal moral act to collective political resistance. It disarticulates actions, behaviours and comportment from the political economy of consumption and debt and, the moral economy of personal responsibility and freedom of choice. This is what power fears most. After a long period of low-key activity, syncopated by acts of civil disobedience, the right to resistance, Balibar’s ‘right to rights’, has returned. Resistance challenges current policies but goes beyond them to the institutional arrangements that allowed their dominance. Resistance is both a fact and a right. This right does not derive from positive law, domestic state or international. The ‘higher’ law justifying resistance is both immanent and transcendent. Resistance emerges in the historical conditions of crisis and the response of people all over the world. Its normative force and form as ‘right’ draws from a conception of the good that lies on the horizon of our current state. Two conflicting conceptions of the universal characterize our age, as the previous chapter argued. The first accepts the order of things and identifies ought and is or, according to Hegel, the rational and the real, dressing the dominant particular with the mantle of the universal. The dissident will rests on a diagonal scission that divides the rulers from the ruled and the excluded. As a negation of the existing order, it forms an agonistic universality. It does not emerge from neo-Kantian philosophy but from the struggle of people excluded from social distribution and invisible to political representation. The right to resistance, like all proper rights, is both real and ideal.62 It ‘sublates’ civil and democratic disobedience both taking up and transcending them. Its appearance in authoritarian as well as democratic regimes turns ours into the age of resistance.

61 Simon Critchley, The Faith of the Faithless (Verso 2012) 244. 62 Costas Douzinas, The End of Human Rights (Hart Publishing 2000) ch. 13.

12 Prolegomena towards a theory of righting

The dual legacy of rights If Marx was partly wrong in his attack on natural rights, it was not because he underestimated democracy and citizenship. The French Declaration created a dual normative legacy. It claimed, first, that ‘people are born free and equal’ and, second, it created a moral and legal right to resistance and revolution. Marx’s mistake was not to foresee that once rights became ideological supports of the capitalist order their paradoxical language could be used to legitimize the epoch’s adikia, fostering the modern sense of injustice. The equality maxim can be interpreted in three ways. Jeremy Bentham, following Edmund Burke, insisted that read as a constative statement of fact, the Declaration is hopelessly misleading, a false and illegitimate passage from a false is to an invalid ought. The human child is not born free but weak, vulnerable, utterly dependent for survival. Similarly, the infant is not born equal but inferior, pathetic, subjected to others. Natality throws us in a world not of our choosing. The accidents of class, race, gender etc. inscribe us into hierarchies, determinations and dominations. Liberal legal philosophy interprets the statement as a regulative principle with limited illocutionary force. Men are not born, but ought to become, free and equal. The state of un-freedom and inequality necessitates the intervention of political and legal institutions. Yet ‘even where it is recognized, the equality of “men” and of “citizens” only concerns their relation to the constituted juridico-political sphere’.1 Liberal orthodoxy uses institutional (legal, political, military) means to spread limited freedom and formal equality. This is the basis of ‘equality’ legislation with its marginal effects. The critique of ideology compellingly shows why the normative reading was doomed to fail. The radical left reads equality in conjunction with the right to resistance and revolution. The French and the Russians placed the idea of equality on the world stage through their self-authorizing revolutions. But legal equality has reproduced the gap between rich and poor. Equality of opportunity means that outcomes on the output side will closely follow the differential inputs. Inequality

  1 Jacques Rancière, The Hatred of Democracy (Verso 2009) 57.

A theory of righting 187 created in the name of equality is an extreme symptom of the contemporary socio-­political order; it fuels the sense of injustice, revives the dormant right to resistance and ferments the art of rebellion. Communism’s normative call, which educates militants, results from the failure of the promise of equality. It turns equality from a conditioned norm into Alain Badiou’s unconditional axiom: People are free and equal; equality is not an objective or effect but the premise of action.2 Whatever denies this simple truth creates a right and duty of resistance. Late modern injustice pits the performance of axiomatic equality against its pale regulative version. ‘The subject is only partially the subject inspired by the event … social agents share, at the level of a situation, values, ideas, beliefs, etc. that the truth … does not put entirely into question’.3 Axiomatic equality motivates militant subjects in late modernity. The law rejects and deletes the right to resistance. Yet it keeps coming back like the repressed. The right to resistance is the impossible and forbidden kernel of law, the real that sustains legality and rights. Similarly, with the axiom of equality. The equality of legal rights has consistently supported inequality; Badiou’s axiomatic or arithmetic equality (each counts as one in all relevant groups) is the impossible boundary of rights culture. As Badiou put it, ‘anyone who lives and works here, belongs here’.4 It means that health care is due to everyone who needs it, irrespective of means; that rights to residence and work belong to all who find themselves in a part of the world irrespective of nationality; that political activities can be freely engaged by all irrespective of citizenship and against the explicit prohibitions of human rights law.5 The combination of equality and resistance projects a generic humanity opposed both to universal individualism and communitarian closure. As argued in chapter 6, the universalist claims that cultural values and moral norms should pass a test of universal applicability and logical consistency. Communitarians start from the obvious observation that values are context-bound. The individualism of universal principles forgets that every person is a cosmos and comes into existence in common with others, that the other comes first. Self is exposed to the other, it is posed in exteriority, the other is part of the intimacy of self. 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 tradition, history and culture, the various past crystallizations whose inescapable weight determines present possibilities. The essence of the communitarian community is often to compel or ‘allow’ people to find their ‘essence’ defined as the spirit of the nation or of the people or the leader. We have to follow traditional values and exclude what is alien and other.

  2 Alain Badiou, Metapolitics (Verso 2005) chs 6, 7 and 8.   3 Ernesto Laclau, ‘An Ethics of Militant Engagement’ in Peter Hallward (ed.), Think Again: Alain Badiou and the Future of Philosophy (Continuum 2004) 134, 135.   4 Quoted in Jason Barker, ‘Translator’s Introduction’ in Alain Badiou, op.cit., xv.   5 Art 19 of ECHR bans foreigners from exercising political rights.

188  The right to resistance For the radical left, humanity has no foundation and no ends, it is the definition of groundlessness. Its metaphysical function lies not in a philosophical essence but in its non-essence, the incessant surprising of the human condition and its exposure to the event that radically changes the world. Revolution and equality are brought together by the eternal dialectic of adikia, the confrontation of radical political action and the order of the world. Alain Badiou argues that the idea of communism helps prepare militants for the surprise of the event, for new possibilities emerging out of the impossible.6 Yet no idea of communism and no theory of justice can achieve this without the feeling of injustice. Radical philosophy tends to neglect such questions as secondary or ‘super-structural’. Yet Antigone’s defiance, Paul’s conversion and Lenin’s resoluteness did not emerge ex nihilo. If ‘the subject is only partially the subject inspired by the event … social agents share, at the lever of a situation, values, ideas, beliefs, etc. that the truth … does not put entirely into question’.7 The militants are partly prepared and supported by norms and beliefs pre-existing the dramatic act. Outrage at injustice and the decision to confront it can only develop against the claims to order (dike), which today include rights and (formal) equality. Revolutionary equality is both the rejection and the transcendence of rights culture.

From rights to righting The apparent contradiction and deeper link between law and history encountered in the philosophy of Kant and Hegel points perhaps to the existence of two different sources of right and will. German idealism resolved the tension by distinguishing right and revolution ontologically. Right belongs to law, revolution to the grand historical trajectory. The English approach was more modest but perhaps more perceptive. The conditions activating the right to revolution vary according to ideological and political priorities. But such a right exists, law and politics are not divorced. Is it, however, a right in the strict sense of the term? A last look at the history of right may help. The peregrinations of right offer an insight into Western metaphysics. As was argued in the first part, the pre-moderns discover what is the right thing to do, in the cosmos, the natural order of things. The moderns invent individual rights and give them to select categories of people who become subjects, armed with rights. Finally, late modern rights repeat, copy and legalize pre-existing desires, socially accepted demands, the claims of a proliferating collection of identity groups and lifestyle choices. In pre-modern ethics and law, the will (a concept non-thematized at the time) followed the norma

  6 Alain Badiou, ‘The Idea of Communism’ in Costas Douzinas and Slavoj Žižek (eds), The Idea of Communism (Verso 2010) 1–14.   7 Ernesto Laclau, ‘An Ethics of Militant Engagement’ in Hallward op.cit., 134, 135.

A theory of righting 189 agendi, a mandatory norm of action, prescribed variably by divine, natural or ecclesiastical law. A modern legal right on the other hand is a facultas agendi, a possibilité d’agir as Michel Villey put it, a recognized and effective capacity to will and act on the world. A right is a normatively justified and publicly enforced individual will. It is will raised to the level of general will or law, a will given objective existence. In this sense, rights belong to subjects and interpellate the subject as metaphysical ground. If modernity is the period of the ‘subjectivization’ of the world, rights are manifestations of man occupying the centre, individual will becoming sovereign. The law dresses the subjective will with value and validity and enforces its object. Pre-modern law prescribed duties and authorized a limited number of acts, modern law prescribes rights and allows limited constrains on action. For this to happen, the law had to abandon the teleology of reason and the eschatology of redemption; it had to discard the moral temptation and make practical reason morally celibate. This raising of subjective will into law freed the moderns from ethics, the morality of duty and the pathos of tragic conflicts. The strict distinction between private good and public right allows the subject to rule over his property, his body and private life. Historically, as this book has shown, the first claim to right was that of the property owner, specifically of the creditor against the debtor. Rights were formed in a long legal process to protect the creditor and enshrine property into law. It was this model of right that migrated from private to public law in the eighteenth century and from debates about dominium, apostolic poverty and credit protection to the relationship between citizen and state.8 Property right was the first right and the rights of man, civil and political rights, were modelled on the right property. Legal right, whether private or public, the right to property or to vote, appears as one, in-dividual, un-divided and indivisible. It claims a single source, the subject’s will, a single justification, law’s recognition, a single effect, the will’s ability to act and shape the world. The modelling of political rights on property, however, contaminated their operation. A yawning gap separates the will from its effects, the ideal from the actual, the normative weight from empirical operation. Formal right, the legal subject’s capacity to will, is theoretically limitless. But real people are embedded in the world; class, gender or colour inequalities condition them and prevent formal rights from becoming effective. We are all legally free and nominally equal, unless of course we are improper men, in other words men of no property, women, colonials, of the wrong colour, religion or belonging. This was partly the reason why will, the first source of right soon diversified into a second, adopted by the dominated and the oppressed. For the wretched of the earth right is not about law and judges, a game they can scarcely play. It is a

  8 John Milbank, ‘Against Human Rights: Liberty in the Western Tradition’ in Costas Douzinas and Conor Gearty (eds), The Meanings of Rights (Cambridge University Press 2014).

190  The right to resistance battle cry, the subjective factor in a struggle, which asks to be raised to the level of the universal. Right is the demand not to be treated as an object or as nobody. It is the claim of the dissident against the abuses of power or the revolutionary against the existing order. As Ernst Bloch, the messianic Marxist, argued, individual rights were initially created for the protection of the creditor and, adopted in a quite different way by the exploited and oppressed, the humiliated and degraded. It is precisely this that appears in its incomparable second sense as the subjective catchword of the revolutionary struggle and actively as the subjective factor in the struggle.9 The legally created rights call for obedience, the right to insubordination, as Maurice Blanchot put it, expresses the exercise of freedom. Where there is a duty, we merely have to close the eyes and blindly accomplish it; then everything is simple. A right, on the contrary refers only to itself and to the exercise of freedom of which it is the expression; a right is a free power for which everyone is responsible, by himself, in relation to himself, and which completely and freely engages him: nothing is stronger nothing is more serious.10 This second right is the exercise of free will, a justified free power which draws its force from morality instead of legality. This type of will matures into the collective resistance of ‘we, the people’. Right has therefore two metaphysical sources. As a claim accepted or seeking admission to the law, right is a publicly recognized will, which finds itself at peace with the world, a world made in its image and for its service. But second, right is a will that wills what does not exist, a will that finds its force in itself and its effect in a world not yet determined all the way to the end. This second right is founded contra fatum, in the perspective of an open cosmos, and the belief that it cannot be fully determined by (financial, political or military) might. It eventually confronts domination and oppression, including those instituted and tolerated by the first legalized will. The second origin of the facultas agendi enters here in a thoroughly decisive way, as an origin conforming more than ever before to the hegemony in men (according to a Stoic expression) that lets men walk with their head held high.11

  9 Ernst Bloch, Natural Law and Human Dignity (trans. Dennis J. Schmidt, MIT Press 1988) 217. 10 Maurice Blanchot, ‘Declaration of the Right to Insubordination in the Algerian War (Manifesto of the 121)’ in Maurice Blanchot, Political Writings (trans. Zakir Paul, Fordham University Press 2010) 33–4. 11 Bloch, op.cit., 219.

A theory of righting 191 The two conceptions of right are potentially in conflict. On one side, an acceptance of the order of things raised to the dignity of general will. It dresses the dominant particular with the mantle of the universal. The second universality is founded on a will created by a diagonal division of the social world that separates rulers from the ruled and the excluded. This dimension of truth does not rest on the existing order but on its negation. It forms an agonistic universality; it does not emerge from neo-Kantian philosophical texts but from the struggle of the excluded from social distribution and political representation. The excluded, Hegel’s contemporary ‘rabble’, are the only universal today in a legal and social system that proclaims incessantly its egalitarian credentials. Legal right enforces individual will. The second type of will starts as individual disobedience and matures into collective resistance and perhaps revolution. It confronts the formalism of law and has motivated the struggles for group economic and social rights. The will to change the world and create a society of equality freedom and justice has taken various historical forms. It appeared as the republican idea in the great eighteenth-century revolutions, as the socialist idea in the nineteenth century, it became linked with the Communist Party and state in the twentieth and suffered as a result of the betrayal of the revolution. Today this will brings together the ideas of radical equality, resistance and democracy. Democracy not just as a system of parliamentary representation and elections but as a form of life that extends into all aspects of the social fabric, from home to work to social and cultural life. The resistances, insurrections and revolts of the last few years resulted precisely from the combination of popular will with ideas of social justice and democracy, which initiated autonomous collective political action and direct, unmediated democratic forms. Radical change results from the dialectical relationship between ideal and necessity accelerated by will. Will and idea come together in a dialectical voluntarism, as Peter Hallward puts it.12 When this happens, will no longer gives passive consent to power; it becomes an active force that changes the world. History is full of such confrontations, eternally condemned and eternally returning. Disobedience is the first step. It manifests a rift between the normatively guided will and the existing political and legal reality. Dissident will does not disobey the law. The obligation to obey the law is absolute only when accompanied by the judgement that the law is morally just and democratically legitimate. Disobedience is the beginning. Protests mostly challenge law’s conserving violence, breaking public order regulations in order to highlight greater injustices.13 As long as the protesters ask for this or that reform, this or that concession, the state can accommodate them. When will no longer recognizes itself in existing social relations and their legal codification, disobedience becomes a collective emancipatory will.

12 Peter Hallward, ‘Communism of the Intellect, Communism of the Will’ in Douzinas and Žižek, op.cit., 117. 13 Walter Benjamin, ‘Critique of Violence’ in Reflections (trans. Edmund Jephcott, Schocken Books 1978) 277–300.

192  The right to resistance What the state fears is the fundamental challenge by a force that can transform the relations of power and present itself as having a ‘right to law’. Despite the reservations of the liberal philosophers, revolution has become a normative principle, the modern expression of free action when the order of the world decays and suffocates.14 ‘The ultimate subjective right would be the license to produce according to one’s capabilities, to consume according to one’s needs; this license is guaranteed by means of the ultimate norm of subjective right: solidarity’.15 The normative weight of this right is felt every time a Bastille or a Winter Palace is taken; nowadays when a radical left party is elected into government. In the same way that the psychoanalytical real, a void in human existence, is both impossible and banned but sustains subjectivity, the right to revolution is the void that sustains the legal system. Without it, the law becomes sclerotic, moribund. Can we imagine a set of entitlements and obligations, of rights and duties that answer the many critiques of liberal jurisprudence? In the process of r­ adical change, rights change from individual entitlements and possessions to a new conception of ‘being in the right’ or ‘right-ing being’:16 giving equally to each what is due to all. As the gerund ‘righting’ indicates, it is a temporal process, a project of becoming right. It changes all aspects of the practice of rights and life by gradually removing the hurdles stopping an autonomous life in community. Let us examine its main characteristics, starting with the communist horizon, its imaginary domain. The universalism of revolutionary equality will be realized only when the gap between man and citizen is closed and, the actual individual man must take the abstract citizen back into himself and, as an individual man in his empirical life, in his individual work and individual relationships become a species-being; man must recognize his own forces as social forces, organize them, and thus no longer separate social forces from in the form of political forces.17 In generic communism, human qualities, aptitudes and interests are not rights; they are attributes of individual existence, accepted and celebrated as integral elements of unique personhood. Communism reconciles universality and particularity in the singularity of each. The classical norm of suum cuique tribuere and Christian equality come together in the secular equality of uniqueness. Axiomatic equality and the right to resistance prepare the event by disclosing each local and epochal form of injustice. The radical left cannot wait, however, for the

14 Costas Douzinas, ‘Adikia’ in Douzinas and Žižek, op.cit. 15 Bloch, op.cit., 221 (italics in original). 16 Costas Douzinas, The End of Human Rights (Hart Publishing 2000). 17 Karl Marx, ‘The Critique of the Gotha Programme’ in David McLellan (ed.), Karl Marx: Selected Writings (Oxford University Press 2000) 64.

A theory of righting 193 communist withering away of state and law. It cannot survive if it abandons its opposition to the capitalist state. But generic communism exists also in the here and now, when militants resist in Latin favellas, French banlieus or the Athens streets, proclaiming the equal singularity of all against the unequal differences sanctioned by the state. Second, to right wrongs means that rights are primarily a practice of continuous private and public resistance against domination and exploitation. As a process over time, it acts like a horizon, as we get close it withdraws and calls for further moves, the next radical break. The righting of communism does not have a terminal point, we will never say ‘here we are’, ‘we have reached communism’, our struggle is over. The idea of the ‘good’ must be reconfigured next. Starting from its current conception of ‘goods’, the utilitarian object of individual desire, we move towards the good as the well-being and freedom of all, a pre-condition for the prosperity of each. The other is part of self and I am part of the other. It follows that the ‘good’ of each is not fixed or static. On the contrary, it evolves in time and place as it strives to coordinate and direct a conception of the common that encompasses the larger number possible of personal goods. Righting revitalizes both good and virtue. But this is no longer an inescapable good given by religion, social order or tradition nor the ‘goods’ of individual desire. It is created in the collective projects of people who create their unique cosmos in the singular encounters with others. The good emerges out of being together with others; virtue turns the individual into unique person: a cosmos of meaning and value, of unrepeatable stories and encounters, needs and desires, histories and dreams. Each person as a cosmos is constructed through its encounters with the world of others, each one singular and plural. Persons and rights become radically transformed. Persons are no longer individual markers of an impossible union between ideal morality and changeable interests pursuing their competitive projects against others. As socio-legal constructs, persons are not solid essences formed before their social inscription. They are experimental processes, always under construction, always on the move, never given or complete. Persons are not; they are becoming. They converge in the creation of a humanity of care for the other. Individual rights refer to essential entitlements, to property, speech or political participation, things or activities persons has or does. By replacing the object right by the verb to right or ‘righting’, the person changes from something to do into a process of becoming. Persons change as they act, entitlements morph from individual privileges towards communal events. In this process of becoming, the split between body and soul, spirit and matter is transcended. The person with his singular and highly specific desires and needs remains central. But she is part of a process of coordination of individual and collective under a conception of the common good as a central component of individual well-being. Liberation means for humanity to transcend itself; this involves transcending both material poverty and spiritual impoverishment. ‘Righting’ is a project of integration between matter and spirit and between individual and collective. It is the contemporary expression of the idea of communism.

194  The right to resistance It has been argued throughout that rights are about individuals and ­communities, except that there is a right to resistance that aims at bringing the two together. The right to resistance/revolution against what denies the axiom of equality forms the dual maxim of the radical left. In the same way, that the psychoanalytical real, a void in human existence, is both impossible and banned but sustains subjectivity, the right to resistance is the void that sustains and transforms the legal system. It is the paradoxical ‘right to the event’ or the ‘pull of the real’, which eternally returns. Without it, the law becomes ossified, sclerotic, moribund. Paraphrasing Alain Badiou, we can say that rights are about recognition and distribution among individuals and communities; except that additionally there is an indelible right to resistance which helps the move from rights to right. It may be that only the idea of communism can save rights.18 Becoming right or righting is the normative horizon of emancipation.

18 Douzinas and Žižek, op.cit.

Epilogue Critical legal studies goes Greek

I argued in a recent book that ministers of the Syriza government, the first-ever radical left European government, report that they often feel like a ‘government in exile’. Senior civil servants opposed to the government’s existing or feared policies hold them hostage.1 Ministers have been thwarted by public officials who plan the downfall of the government and the return to perennial rightwing dominance. It should not be surprising. Marxism and critical theory have examined closely the role of the capitalist state. State and law are antagonistic to the left. A fundamental function of the state is to ensure that the class struggle is contained and the small victories of the working class do not jeopardize capitalist domination. The state both organizes the unity of the dominant bloc and serves the overall legitimacy of the social order by managing popular consent. State institutions, typically the law and the civil service, solidify the balance of social forces and help provide the overall legitimacy of the system. When a radical left party takes charge of the state, it encounters a hostile institution organized to prevent its ascendancy and frustrate its plans. For critical jurisprudence, legal personality, rights and property are the forms necessary for the operation of capitalism.2 The Greek state’s long history of repression and persecution of the left has made the hostility even stronger. From the end of the civil war in 1949 until the end of the Colonel’s dictatorship in 1974, state employment and various benefits depended on the existence of a ‘certificate of correct social beliefs’ issued by the police and denied to left-wingers and their families. Syriza inherited a public sector, which combines traditional anti-left bias with a distorted view of strategic selectivity. Civil servants resisting institutional reforms or progressive policies express both their class position and deeply embedded vested interests. What about the law? I have been repeatedly asked, when lecturing outside Greece, about the attitude of the courts towards the government and its reforms. Writing this book gave me the opportunity to review from close quarters the relationship between a left government and the law. The liberal rule of law theory claims that the law can translate social conflict into technical arguments about the interpretation of rules and assign them for resolution to legal experts, lawyers and

  1 Costas Douzinas, Syriza in Power (Polity 2017) chs 5 and 6.    2 See Chapters 6, 10 and 11 in this volume.

196  The right to resistance judges. Law’s job is to help bring conflict to a temporary end and facilitate the return to social peace. But this is an illusion. When radicals challenge capitalist domination and ideological hegemony the law comes to the rescue. In periods of crisis, this operation becomes evident as the hidden fundamentals of the legal system come to the surface. In the Greek case, a series of decisions of the Council of State (CoS, modelled on the French Conseil d’Etat) have ruled important government policies unconstitutional and have provoked an often vituperative debate about the relationship between law and politics among politicians, commentators and academics. The CoS decisions have turned the court into the only effective opposition to the government. Constitutional adjudication, instead of solving disagreement, has become the site and stake of political conflict. Yet the debate about the role of judges in democracy has been conducted at a rudimentary level. The dominance of liberal jurisprudence in the law schools and the profession has not initiated lawyers and scholars into the intricacies of legal ideology. Legal studies do not deal with such issues. The methodology of legal argumentation is exhausted in outdated debates about the literal or purposive rules of interpretation with the occasional mention of Dworkinian ideas about correct or ‘objective’ interpretations. Critical legal studies have not entered the curriculum. Even worse, the idea of legal critique is dismissed as either communist or post-modern; its practitioners are either too sophisticated to the point of incomprehension or ignorant of the law. As a law professor put it, ‘we will not allow “Douzinism” to come to Greece’. The interdiction gave this author the bizarre accolade of pioneering a school of thought or a new ‘ism’. Such comments indicate an ignorance whose main purpose is to give legitimacy to power. Unless critical theory enters the citadel of the law school, as it has done in most universities of the world, the political role of law and justice will not be properly understood. The jurists of the future will continue serving their vocation happily unaware of their role in the power structure. As a critical legal scholar in the Hellenic Parliament, with its long repetitive debates and its occasional short sharp exchanges, I was offered a panorama of ruling ideology. Participation in various committees dealing with legal issues finessed the general experience. We will examine legal ideology through the lens of some recent court cases and legal debates.

Constitution and memoranda The remarkable rise of Syriza, a small radical left party, initially hovering around the 3% entry to Parliament threshold, is a story combining historic necessity, good fortune and a large dose of popular wisdom. In a 2011 Guardian article entitled the ‘Greek spring’, I argued that the resignation of the socialist government, hot on the heels of the Arab spring, should remind western governments that they too can fall ‘if they abandon basic principles of democracy, social justice and independence’.3

  3 Costas Douzinas, ‘European Elites Should be Wary of the Greek Spring’ Guardian (London 6 November 2011) accessed 29 January 2019.

Critical legal studies goes Greek 197 The ‘Socialist’ Pasok party, like Blair’s New Labour, Schröder’s SPD and Hollande’s Socialists, had introduced the catastrophic neoliberal policies to Europe. They all fell victim to the virus of ‘pasokification’, the reduction of an erstwhile dominant party to a rump – except for Corbyn’s Labour that learned from the Syriza experience. Just before the May 2012 general elections, which Syriza lost to the right-wing New Democracy by the smallest of margins, I suggested that the election was the ‘start of the European spring’.4 The Syriza victory followed in January 2015. It was the natural outcome of a strong popular resistance movement that started in the 2011 hard winter of discontent. It continued until the centre-right and centre-left parties that had brought the country to its knees were comprehensively defeated by Syriza. The 2010 first bailout loan and its accompanying Memorandum of Understanding (MoU) imposed tough recessionary policies and regressive public and private sector reforms. They were enforced on two fronts: fiscal austerity and internal devaluation. The shrinking of the public sector, aimed at reducing the deficit and servicing the debt, was pursued through the reduction of public spending, the privatization of key state assets, and the increase of tax revenues. The creditors hoped that their policies would generate primary budget surpluses to be used for repayment of the escalating debt. The internal devaluation was carried out through the repeated reduction of private sector salaries, including the minimum wage as well as the abolition of the bulk of labour protections. The impoverishment of working people, the IMF argument goes, would improve competitiveness and help economic growth. Greece was turned into a guinea pig for testing the limits of a population to the most stringent austerity in Europe. The result was abject economic failure. The IMF admitted in 2013 that it had miscalculated the adverse effect of austerity on the economy – the so-called fiscal ­multiplier – by a factor of three. Despite the IMF’s view that the programme could only work if the country’s debt was substantially reduced, no serious attempt was made to evaluate the viability or to insist on the easing of the debt. The Europeans had decided to rescue Greece from bankruptcy but were virulently opposed to a haircut or restructuring of the debt, the largest part of which was held by German and French banks. They feared that the Greek crisis would be exported and contaminate the Eurozone. As Ambrose Evans-Pritchard commented, the harsh truth is that the bail-out sacrificed Greece in a ‘holding action’ to save the euro and north European banks. Greece endured the traditional IMF shock of austerity, without the offsetting IMF cure of debt relief and devaluation to restore viability.5

  4 Costas Douzinas, ‘The Greek Election Could be the Start of a European Spring’ Guardian (London 1 May 2012) accessed 29 January 2019.   5 Ambrose Evans-Pritchard, ‘IMF admits disastrous love affair with the euro and apologises for the immolation of Greece’ Telegraph (London 29 July 2016) accessed 29 January 2019.

198  The right to resistance The political rationale was different. The nominal size of the debt was small, Greek GDP is only 2% of the European. Yet the political rulers of Europe were not prepared to allow a small country and a radical left party to succeed in its promise to stop austerity and reverse neoliberal reforms. They feared political more than financial contamination. The three bail-out loans and the accompanying MoUs signed by governments of different political persuasions (socialist, right-wing and radical left) introduced comprehensive reform programmes which changed the economic, political and social landscape of the country. These programmes were pre-conditions for the loans given to bail out the country after it was bankrupted in 2009 by excessive debt and huge annual deficits. The reforms amounted to the introduction of a shadow constitution or ‘para-constitution’ with immense implications for domestic and European law. In exchange for the loans, the lenders imposed, on a take or leave it basis, a fiscal, social and public administration framework that affected all aspects of life. The laws implementing the programme were dictated by the lenders and legislated by the Greek Parliament within strict time limits. Draconian guillotine procedures came into operation reducing parliamentary scrutiny and debate to the minimum. The cumulative effect of this imposed and manic legislative activity was the reduction of salaries, pensions and allowances of up to 50% in the public sector and a slashing of wages and labour protections in the private. Large numbers of civil servants were sacked, social services were slashed with health and education, in particular, unable to meet basic needs. Repeated tax increases, including a regressive tax on real estate, took the bleeding of the economy to unprecedented levels. The humanitarian crisis that followed is well documented. The successive governments and Parliaments, which signed and legislated the arrangements, were reduced to executors of the lenders’ wishes. The democratic process was marginalized, the wishes of the electorate sidestepped, the country was turned into a quasi-protectorate. The democratic deficit of the European Union is well known. In the bail-out programme countries, the deficit became an immense gap. The measures were imposed and their implementation supervised by the informal Eurogroup of Finance Ministers that has no legal basis and does not keep minutes of its sessions. An unholy alliance of European and International Monetary Fund managers imposed the unprecedented catastrophic reforms without the slightest concern for political or popular sensitivities. Democratic legitimacy and budgetary decisions notionally rest with domestic politicians. This basic democratic principle was comprehensively violated. The ruling political elites, which had brought Greece to the edge of the abyss, were initially numbed by the measures. Eventually they accepted them and turned neoliberalism into their official ideology. They accepted the measures as a kind of deus ex machina, which would guarantee their survival after the comprehensive failure of their rule. The reform measures had constitutional significance. They surreptitiously amended the Constitution by obscure and regularly erroneous decisions. The Greek political elite stood by observing and formally approving the measures rolling in. It was the same story in all the dismissively named PIIGS, the formal

Critical legal studies goes Greek 199 or informal programme countries: Portugal, Italy, Ireland, Greece, Spain and Cyprus. No government in a programme survived the following elections, except Syriza. The party won again the September 2015 elections after it had lost its majority as a result of the exit of thirty MPs who objected to the signing of the third programme. Only the people resisted effectively the austerity measures. They occupied squares, organized solidarity networks, challenged the endless outpouring of new and burdensome measures.6 The right to resistance and the insurrectionary component of democracy came to the fore and saved the honour of polity and law. The severity of the measures and the wholesale violation of constitutional procedural and substantive provisions meant that the programme would be eventually challenged in the Greek courts. Under the Greek constitution, courts cannot challenge the constitutionality of laws in abstracto, as is the case in the German Court Constitutional. All courts, however, from the lowest to the highest are entitled to examine the constitutionality of executive measures affecting the litigants, if an objection of constitutionality is raised in any penal, civil or administrative case. This type of ‘diffuse and incidental’ examination of constitutionality meant that only specific measures applying the programme could be questioned in court. The first and most comprehensive challenge to the programme’s measures was brought by a number of individuals and trade unions before the Council of State, the highest administrative court. The court was asked to examine the constitutionality of executive measures implementing the first Memorandum. The plaintiffs claimed that the radical reduction in salaries and pensions violated the property rights and equality provisions of the Constitution and the European Convention on Human Rights.7 The case turned overnight the judges into celebrities. The breathless journalists and commentators created an expectation that the heroic judiciary would stand up for the dignity of the country and the rights of its citizens where the politicians had fallen short. It was a forlorn expectation based on a limited understanding of the relationship between law and politics and of the role and function of judges in the power structure. The court rejected the challenge arguing that the ‘measures are not inappropriate, and certainly not manifestly inappropriate, for the achievement of the identified objects; furthermore, they cannot be considered unnecessary’.8 Similarly, decision 2307/2014, which examined the constitutionality of the second Memorandum, concluded that reasons of ‘overriding public interest’ necessitated the agreement and that the principles of proportionality and necessity were complied with. ‘The measures were neither inappropriate nor can it be argued that they were not necessary’. They ‘serve the public interest and the immediate need

  6 Costas Douzinas, Philosophy and Resistance in the Crisis (Polity, 2013).   7 Koufaki and ADEDY v. Greece 57665/12 and 57657/12; Ioanna Pervou, ‘Human Rights in Times of Crisis: The Greek Cases Before the ECtHR or the Polarization of a Democratic Society’ (2016) 5(1) Cambridge Journal of International and Comparative Law 113–38.   8 Decision 668/2012, para. 35.

200  The right to resistance to address the economic needs of the country’.9 The rather basic and elliptical ­reasoning of the court turned on the concept of necessity. The country faced a particularly difficult fiscal problem; the measures were the last resort for preventing its bankruptcy. The inescapable necessity of the measures, a matter of fact for the court, grounded their normative validity. This was also the reason why there was no need for Parliament to approve the measures by the three-fifths majority necessary when the state transfers important sovereign powers to international institutions. Having disposed of the arguments from sovereignty and ­parliamentary procedure, the court turned to the effect of the measures on the economic rights and well-being of citizens. The court would not interfere with the serious violations of social and economic rights and the huge income reduction unless salary or pension cuts ‘endangered dignified life’. A rudimentary examination of social conditions at the time would have established that millions of people were on or below the poverty line, hundreds of thousands were lacking the basics for survival and relied on soup kitchens, church hand-outs and the comforts of philanthropy. It was widely acknowledged in Greece and overseas that an unprecedented ‘humanitarian crisis’ had hit the country with huge increases in homelessness, preventable diseases and deaths as well as suicides. For the court, however, extensive dispossession and deprivation did not amount to a violation of dignity. The thought processes of the judges seemed to associate the concept of dignity with the metaphysical speculations of neo-Kantianism instead of the acute necessities of survival. The open-endedness of philosophical dignity, discussed in Chapter 3 in this volume, covers a wide range of aspects of the human condition: from not being the means to someone’s ends to being at the threshold of starvation. In the Greek and similar cases elsewhere, courts of debt-stricken countries re-signified the concept of dignity: from an abstract notion of metaphysical honour into a term justifying the abandonment of the state’s obligation to provide the basic necessities for life. If the soul retains its philosophical valuation, the body could be forgotten. Hegel criticized the way in which the abstract system of law and rights offers recognition and respect to the pauper while the lack of means necessary for their enjoyment negates them.10 As a result, the pauper’s subjectivity is split between the normative entitlement and its material denial. The ambiguous dignity of the poor invites a similar criticism. People still hold, according to the court, some notional dignity as a matter of fact. The fragile integrity of the soul compensates for the loss of the body, the soul’s vessel. In this reading, dignity legitimizes the lack of means for survival; the long journey of the concept has come full circle. Dignity has become again plural dignitates, a differentiated set of privileges and powers that no longer accompany status or rank, as in classical Rome, but economic ability. Some have the full dignitates of wealth and power,

 9 Ibid. 10 Costas Douzinas, ‘Philosophy and the Right to Resistance’ in Costas Douzinas and Connor Gearty, The Meanings of Human Rights (Cambridge University Press, 2014), 85–105.

Critical legal studies goes Greek 201 the rest are ranked according to their diminishing economic standing. They may have dignity but it cannot be put on the table. In more prosaic terms, the court held that since the measures were necessary, their effects on the rights of citizens were proportional to the end sought. In this equation, the political decision (necessity) determines the normative validity (constitutionality) and the scope of the acceptable violations of economic and social rights (proportionality). Proportionality becomes an elastic concept, like the American balancing of rights and interests, that can stretch all the way to the total deprivation of citizens’ rights. In the Memoranda cases, the court was asked to invalidate those parts of the programme that evidently violated citizens’ rights. Its decisions and arguments acted instead as a justification for the programme. Case 668/2012 brought into relief the logic and limits of the relationship between law and politics. The fiscal predicament of Greece justified its adoption by the governing elite. However, the measures amounted to a detailed series of constitutional-type amendments imported without discussion of their long-term implications. The Memoranda were a case of constitutional amendment first by diktat, then by stealth. The implementing legislation was perfunctorily discussed in Parliament; its legislation was the direct effect of a political blackmail. The governing parties’ control of the parliamentary majority meant that the passing of the legislation was assured even though all governing parties suffered defections. The extreme conflict between decisionist politics and, supposedly, rational adjudication was placed centre stage. Legal and political commentators discussed the programme in terms of the imposition of a ‘state of exception’, which allegedly overwhelms the ‘normality’ of law.11 Many rehearsed the Agambenian position according to which we live in a perpetual state of exception. Arguments from international and constitutional law about the existence of a state of emergency or serious threats to the survival of the state were canvassed in order to place the measures on the grey zone between legality and lawless force. As Article 15 of the European Convention of Human Rights puts it, ‘in case of war or other public emergency threatening the life of the nation’ the state may suspend its obligations under the Convention. Liberals consider the law as the foundation and limitation of power; politics and power are subjected to rational considerations open to judicial evaluation and judgement. The obvious shortcomings of this theory are usually glossed over by the theory of the ‘state of exception’. Its application is exceptional in both senses of the term: it happens rarely when exceptionally serious threats to the security of the state demand it. The ‘state of exception’ argument, despite its surface radicalism, is routinely used to justify the liberal rule of law position. Jurisprudence is programmatically unable to accommodate the specificity and force of decision despite its centrality in politics. This obvious lacuna is allegedly rescued by the recognition that in exceptional cases the law withdraws, according to its own lights, allowing

11 For a comprehensive presentation and criticism of this debate, see George Karavokyris, To Σύνταγμα και η κρίση. Από το δίκαιο της ανάγκης στην αναγκαιότητα του δικαίου (Κριτική, 2014) [The Constitution and the Crisis: From the Law of Necessity to the Necessity of Law].

202  The right to resistance decision and force to take over. The exceptional recognition of the role of force, something generally refuted by liberals, allows liberalism to continue obscuring the normal operation of politics. The exception sanctions legal normality by suspending it whenever its institutional limits restrict the force of politics too much. In this sense, the state of exception acts like a Derridean ‘supplement’ to normal legality. The law cannot exist without the state of exception, which protects its survival; the state of exception finds its reality in normal law when procedural and substantive rules limiting its exceptional application apply even within the exceptional state. There is no doubt that the political decision to seek the loan and accept the accompanying reform programme was a case of the operation of raison d’état. The adoption of the programme preceded, established and limited legality. A political decision establishes the law and sets the parameters and limits of its operation. Once the decision was taken and was implemented through the emergency legislative process, regular legal operations returned and gave a false sense of normality. But the whole legal field was changed radically. The Constitution was amended, its guarantees of economic and social rights seriously restricted and the ‘normal’ operation was but an application of the logic of force the decision introduced. The great expectations that judicial resistance would save the country were comprehensively frustrated. A judicial rejection of the programme would place the relationship between the political and legal system under great strain. While courts occasionally uphold citizens’ rights against executive action, the wholesale challenge of a major reform accepted by the political class, except the left, could have led to a major legitimation crisis.12 The judges and their leadership are appointed by the government and share the ideology, prejudices and privileges of the elite. To the extent that both right and centre-left parties had accepted the programme the possibility of a judicial stand-off was unlikely. Yet the portents of the change were there. The clear alignment of the senior judges with the ideology of the dominant parties was an indication that their position would be transformed if there were a change in the political direction of the country. It didn’t take long after the victory of the left. The courts abandoned the ‘necessity’ argument, redefined ‘proportionality’ and have consistently defied the government both in cases related to the Memoranda and those involving left legislative reforms. The judiciary under the leadership of the Council of State became a permanent and effective opposition to the left government.

The curious incident of the missing TV licences On 10 November 2016, after five failed attempts, the conference of Parliamentary Presidents elected the nine Commissioners of the National Radio and

12 Akritas Kaithatzis, ‘Grand Politics and Weak Constitutional Control’ Constitutionalist (in Greek) accessed 29 January 2019.

Critical legal studies goes Greek 203 Television Commission (ESR), the Greek Ofcom.13 The ESR saga dominated the news for many months with meetings of the conference broadcast live on TV. The story offers a microcosm of what is wrong with modern Greece: the strong link between political elites, banks and electronic media; the judiciary’s political role and malfunction; the electronic media’s consistent violation of the law; sex scandal and corruption; finally, the opposition’s attempt to use its own and its patrons’ anomie in order to overthrow the government. If the record of Syriza’s government was lost but the TV licences saga survived, future historians would be able to reconstruct the structural problems of Greek political life. They would also be able to reconstruct the lengths to which the elites go to prevent Syriza from carrying out its promises. Under Article 15 of the Constitution, ‘Radio and television shall be under the immediate control of the state and shall aim at the objective transmission, on equal terms, of information and news reports.’ The ESR was established to exercise control on behalf of the state. The Commission has legislative executive and disciplinary powers. A key power of media regulators is to license private radio and TV stations for a fee. This licensing power had never been exercised by the ESR. No procedure for issuing licences was established and no fees were paid for the use of the publicly owned frequencies. Since 1986, a number of private radio stations and television channels had been established, however, by print-media corporations without permission. They were given temporary licences renewed annually by means of government decisions. TV licensing was a characteristic instance of the principle that (unlawful) possession is the best road to (legal) ownership. There is nothing more permanent than the temporary, states a Greek maxim; the licensing regime fully confirms it. Electronic media remained unlicensed for twenty-seven years. Over this period, eight national TV channels operated, with two going bankrupt as the advertising revenues collapsed during the crisis. The rest survived through bank loans, most of which are not serviced. TV stations had over €1bn debt in 2016. When the CEO of the largest but seriously indebted media empire asked what security he offered for receiving further loans, he replied ‘air’. Hot air, political support for friends and blackmailing opponents is the capital of the media. Their huge and growing debt forms the bridge linking politicians, banks and outsourced public contracts. Establishment politicians put pressure on banks to give loans to the media, which reciprocate by promoting their policies. It is a deep and strong bond that could only be broken by people outside the magic circle of the ‘three hundred families’ ­r unning the country.

13 Members of the Conference are the Speaker and Deputy Speakers of Parliament, former Speakers, the Presidents of the six Standing Committees and one Parliamentary party representative. The main work of the Conference is to set Parliament’s agenda and carry out various housekeeping tasks. There are ten Syriza MPs in the Conference out of a total membership of twenty-four. I am a member of the Conference in my capacity as President of the House Standing Committee on National Defence and Foreign Relations.

204  The right to resistance Syriza’s destiny was to break this circle. The party had promised to i­ntroduce legislation for the licensing and regulation of the media. Soon after the S ­ eptember 2015 election, a law was passed providing that national free-to-air high-definition TV channels should be licensed through a public tender and auction to be organized by the regulator. To ensure that the successful channels would not depend on loans and politicians’ services, the law limited their number to four – B ­ ritain has three private channels of this kind. Finally, the law created a Europeantype regulatory framework, which provides for a minimum number of properly employed staff and sets strict technical and administrative conditions for their operation. For the first time, television would be licensed properly, operate lawfully and contribute a fair fee to the depleted public coffers. The reaction of the tight knot of politicians, media and industrialists was vitriolic. The media barons hated the law; opposition politicians resolved to frustrate its operation. A strange coincidence came in handy. The ESR stopped being operational in 2015, when the term of its commissioners came to an end. Under the law establishing the regulator, later repeated in the Constitution, the ESR commissioners are elected by a four-fifths majority of Parliament’s Conference of Presidents. To reach this increased majority at least four parties must consent. The right-wing opposition, whose participation was necessary, indicated that they would not help elect the ESR commissioners until the government repealed its media law. It was clear that the lack of licensing and the illegal operation of television and radio would continue indefinitely. At that point, the minister in charge of media policy amended the law, giving the power to organize the first public auction to the government’s General Secretariat for Communications. The TV channels reacted with indignation. They turned up their anti-government propaganda to the maximum while participating at the same time in the ensuing auction. Two existing channels and two new companies secured licenses for an unexpectedly high total fee of €240 million. While the auction was going on, a number of channels petitioned the Council of State to review the constitutionality of the tender and the law authorizing it. The Council had repeatedly ruled in the past that the constitutional obligation to license TV stations is pressing and should be fulfilled without delay. The channels argued however that licensing could only be carried out by the ESR, forgetting that for twenty-seven years, the Commission had failed to commence the process. It was a typical case of conflict between two equally valid constitutional provisions. In the past, the Council had avoided involvement in hard political disputes by invoking the principle of ‘necessity’. Necessity is a doctrine of judicial abstinence and modesty for some, timidity for others. Like the so-called ‘political questions’ doctrine in the USA and the royal prerogative in Britain, it ensures that courts avoid politically controversial decisions. It was the doctrine used in the cases challenging the constitutionality of crisis reform legislation, as we saw above. A febrile atmosphere accompanied the Council of State hearings. Newspapers and TV channels kept threatening the judges if they decided for the government. An opposition politician revealed that a Council judge, who had an affair with a

Critical legal studies goes Greek 205 young lawyer applying to become a junior judge, gave her the entry exam papers. The government had been informed about the illegally obtained communications between the two protagonists but had not taken any action, as the evidential material was the fruit of unlawful breach of privacy. After the publication of the revelations, however, it ordered the investigation of the serious allegations. The judge was reputed to be on the anti-government side, giving the opposition and media the chance to attack the government for its ‘threatening’ action. Rumour, gossip, leaks and counter-leaks dominated public life as if all other pressing problems had been frozen in the wait for the CoS decision. The denouement was farcical. The most anti-Syriza TV channel announced that the CoS judges had decided with a 14–11 majority that the law was unconstitutional. It was a targeted leak; no official statement was issued by the court and the scope or reasoning of the ruling was unknown. The decision and its leaking confirmed the pro-establishment proclivities of the court. The government immediately admitted defeat, revoked the licences issued after the auction, repealed parts of the law and transferred the power to organize a new auction back to the ESR. It accepted that the number of licensed channels could be more than four with the exact number to be agreed by the regulator. It was the first occasion that an important policy was reversed on the basis of journalistic information about an unknown judicial decision. It showed the government’s respect for the judgement (or its desire to cut its losses) against the repeated failure of the former rulers to comply with their constitutional obligations. The opposition had won and the regulator was back in business. Only that no regulator existed. Over the course of five meetings of the Conference of Presidents, lists of nominees for the nine ESR members were circulated and were found generally acceptable. But the opposition continued denying cooperation, using the coincidence of the absence of a properly constituted regulator and the absurd requirement of a four-fifths majority required for its appointment. The two matters were unrelated; their link became a new type of ‘creative’ resistance. It could be used to block or amend any government bill before agreeing to participate in the appointment of the media regulator. The right wing was indicating that they would veto the constitution of the ESR and thus prevent the licensing of TV channels until the government fell and they returned to power. The impasse was broken after an opposition mistake. While insisting on the repeal of the law, they also put forward a former President of the Supreme Court as a potential President of the ESR. The Syriza members, keen to bring the lawlessness to an end, adopted the nomination. The opposition was caught by surprise, tried to wiggle out but eventually had to accept the final list of nominees, with their man at the top. After a long period of political shenanigans, the ESR was constituted and a new process of licensing TV channels commenced. The saga represents the ills of Greek life. The golden knot of politicians, media, finance and judges acted in concert. Television and radio news and current affairs are so one-sidedly against the government that most people were fully behind the attempt to regulate the field. Eventually, the newly established regulator carried out the second auction and ended up issuing licenses to the four channels

206  The right to resistance that had won the initial competition plus one more. The government won the war although it lost some battles on the way giving a false impression of incompetence. The main lesson from the TV licensing story was that forces beyond parliament and government continue to dominate public life. The Greek elites were determined to overthrow Syriza and stop its attempt to clean the corruption that had dominated public life. The judiciary seems to be a key part of this group.

Religious education The next court case is a good example of the wider ideology of superior judges. It concerns religious education (RE) in schools. The Council of State annulled by majority vote a Ministry of Education curriculum because it does not promote the Greek Orthodox religion and gives some information about other religions and Christian denominations. The case was brought by an ultra-conservative Bishop and an Association for the Study of the Fathers of the Church. The government had redesigned the curriculum for the mandatory school lesson of religious education and re-written the textbooks to assist the teaching. The new curriculum was part of the left reform agenda, which includes the updating of school curricula and textbooks in an attempt to align them with the current state of education theory. The religious education reform is also part of a wider plan to separate State from Church thus bringing to an end the long and often negative influence of reactionary clerics on state policy and popular ideology. Such a change would be welcomed by a majority of citizens irrespective of political affiliations. However, the Church holds great power, which permeates every part of the elite structure. The widespread popular religiosity, often coupled with a strong distrust of church hierarchy, has been mobilized repeatedly in the past to frustrate change. All past efforts to start the process of Church disestablishment have failed. The Syriza government was warned not to attempt a weakening of its economic and popular standing. The leader of the Independent Greeks party, the small right-wing Syriza coalition partner, had repeatedly stated that he would bring the government down if it attacked the privileged position of the Church. It appears that any attempt to align Greece with European secularism is doomed to fail, if the left is not prepared to take serious political risks. The Syriza government decided to take such risks in the human rights field. It legislated the homosexual civil union and fostering, the recognition of gender identities and a number of laws normalizing the status of immigrants. Its human rights agenda is complemented with the gradual disestablishment of the Church. The reform of religious education was the first step. The Ministry of Education planned the reform carefully under guidance by the august Institute for Education Policy and its panel of experts in pedagogy and theology. The new curriculum gives priority to the Orthodox doctrine but not as a version of religious catechism. It includes a few lessons about other religions and Christian denominations and adopts contemporary standards for the teaching of religious studies. The main change is to stop the school from acting like a Sunday school. The Church hierarchy was furious. The mandatory RE lesson is a main tool for

Critical legal studies goes Greek 207 the consolidation and reproduction of its social influence. Coupled with the ­mandatory school prayer, church-going and a reference to the pupils’ religion in their graduation certificate, it guarantees that the Greeks are told from an early age that they must follow religious ritual and doctrine. Blaise Pascal famously argued that it is not faith but piety that leads to salvation. If people are made to fast, go to communion, kneel and pray, then faith follows. The control of behaviour through repetition, mimicking and routine is the royal road to mind and heart. The Greek Church repudiates the ‘schismatic’ Pascal but has adopted his advice and implemented it from the start of life in a typical case of religious indoctrination. This attitude has been repeatedly criticized by the European Court of Human Rights.14 The Council of State case was an opening salvo in the rear-guard action of the Church against the government’s reforms. The CoS could have repudiated the chalice, if it considered it poisoned. The dubious locus standi of the Bishop in a case of major public policy significance could have helped stop the case early. But the court chose to tackle the issue and adopted a position that would not have disappointed the Grand Inquisitor. The reformed RE curriculum, the majority argued, sows doubts about the doctrine of the Church, violates religious freedom and equality by asking the pupils to reflect on religious matters and, finally, undermines the disciplinary integrity of religious education by introducing a comparative approach that belongs to sociology or politics. The legal argument, allegedly based on a ‘literal’ interpretation of the constitutional text, offers an interesting example of legal ideology. The judges quoted the constitution selectively giving the impression that Greece is or should not be dissimilar from a theocratic state. The court started with the Constitution’s preamble, which invokes the ‘Holy, Co-substantial and Indivisible Trinity’. Article 3 establishes the importance of the Church stating that ‘the prevailing religion in Greece is that of the Eastern Orthodox church of Christ’. Article 13, which protects ‘all known religions’ and proclaims a standard freedom of religious conscience right sits somewhat problematically with the rest of the articles on religion and did not bother the court much. Finally, according to Article 16 state education aims at ‘the development of national and religious consciousness [of Greeks] and at their formation as free and responsible citizens’. Interestingly, the text’s English translation refers to ‘consciousness’ instead of ‘conscience’, as does Article 9 of ECHR, and omits the definitive article ‘the’ before ‘national and religious’ consciousness that education must instil. The ‘the’ of the Greek original decided the case. The court argued that the reference to the development of ‘national and religious’ conscience introduces a hierarchical ranking. National consciousness is paramount; religious consciousness is a key component of nationhood. The state’s obligation is to instil and foster nationalism; since orthodoxy is the prevailing state religion, education must conform with the national creed. Yet it was

14 Hasan and Eylem Zengin v. Turkey, 2007; Folgero and Others v. Norway, 2007.

208  The right to resistance the little ‘the’ in the clause that was decisive. The use of ‘a definitive article ... does not concern any religion ... the development [of religious feeling] refers to the consolidation and strengthening of the Orthodox religious consciousness’. It follows that the job of schools and universities is to promote the Orthodox catechism and to propagate exclusively the doctrine of the established Church. This strange line of reasoning was supported by equally bizarre arguments. The new curriculum undermines the Orthodox conscience pupils receive at home. The judges give the example of the Year 3 textbook, which presents Jesus as a ‘stranger’, not as the ‘Saviour’. Furthermore, the course’s basic information about other doctrines and religions ‘cultivates doubts ... causes confusion ... and with the confusion that is caused and the intended reflection of the students ... it shakes the Orthodox Christian consciousness’. Pupils who reflect on their religious beliefs are moved to uncertainty and confusion. The new curriculum amounts therefore to ‘mass and particularly offensive proselytizing’, although it is not clear what it is proselytizing for. The claim that reflection on central existential questions leads to confusion violates both liberalism and education theory. More interesting for our purposes is the court’s highly questionable legal argumentation. The majority claims that teaching the basic facts about other religions violates the parental freedom to have their children taught according to their beliefs. They add that pluralistic education breaches the equality principle because it deprives pupils of their ‘right’ to be taught exclusively their ‘own’ Orthodox doctrine. The judgement clearly diverges from basic principles of civil liberty and from the case-law of the Strasbourg court on religious freedom and pluralism.15 As the five-member minority put it, the ruling cancels the ‘pupils’ right to choose and form critically an essential element of their personality and understanding of the world and humanity. The ‘believe and do not investigate’ attitude and the catechistic character of religious education ‘would be tantamount not to the development, but to the imposition of a “religious consciousness” of a very specific content, something contrary to the principles of religious neutrality and pluralism that govern public education’. The judges treated a rather simple policy case as characteristically ‘hard’. They thought that two interpretations of the same provisions were possible leading to opposed results. Nine judges chose the first, eight the other. This split is not unique; a similar ambiguity exists in most important cases. The text of the Constitution consists in a set of general principles and open-ended provisions. It could not be otherwise. The legislator cannot and should not anticipate the many cases, which will be decided under the constitutional clauses. What appears as constitutional interpretation is in reality a construction of the relevant provisions. It is presented, however, as an interpretation, as if the correct answer to the case is hidden in the text and awaits to be discovered. But this is only a surface understanding of the process of constitutional adjudication; it serves to legitimize it. Most disagreements over the constitutionality of a law include at least

15 Campbell and Cosans v. UK, 1982; Kjeldsen, Busk Madsen and Pedersen v. Denmark, 1976.

Critical legal studies goes Greek 209 two conflicting but equally tenable legal and political interpretations. There is, therefore, no ‘true meaning’ of the provisions, since in most cases both constructions are plausible. In our case, however, the majority had to strangle the words in order to reach the preferred meaning. John Griffith has examined in great detail the politics of the British judiciary.16 Greek academic life was not blessed with its own Griffith; the class, ideological and political preferences of judges have not been examined with the forensic attention of the British academy. Once we depart, however, from the formal explication of the process of judging, it becomes clear that the absurd ‘interpretations’ of the constitutional provisions are a smoke-screen. They hide away under unconvincing semantic gymnastics the judges’ wider political and social ideology. The dogmatism of the religious education judgement hails from a previous era. It becomes clear in reading the many cases in which the courts frustrated government policy that judges are determined not to allow the left to reform the state or to undermine the elites’ hereditary power.

The perfect crime In March 2018, I was appointed to a Parliamentary Committee of Inquiry set up to investigate allegations of serious crimes involving eight former Ministers and two former Prime Ministers. The file, some 6,000 pages long, alleges that the politicians received bribes from the Novartis pharmaceutical company in order to introduce favourable laws and decisions on the pricing of the company’s products. It further alleges that the politicians laundered the proceeds of the bribes by siphoning them into overseas bank accounts. I prepared for the hearings by studying the constitutional, legal provisions and case law as well as the extensive academic commentary on the penal liability of politicians. I soon concluded that the case revolves around what could be called ‘the perfect crime’, a crime almost impossible to investigate, solve and prosecute. This is the dream of every criminal, filmmaker or author of detective stories. But in our case it is not the perpetrator who divines the perfect criminal plot. On the contrary, the legal system has created the perfect conditions for extensive immunity from prosecution. The ‘perfect crime’ is the almost non-prosecutable criminal offence. Let me first outline briefly the constellation of provisions that create this incredible situation. The Constitution lies at the basis of the problem. Article 86 states that if in the course of an investigation evidence of crimes committed by politicians appears, the judges should forward it to Parliament without delay. Parliament then decides either to form a Committee to conduct a preliminary examination of the allegations or rejects them as ‘manifestly unfounded’. This special procedure applies only to present and past Ministers. Its latest iteration was introduced in 2002 by one of the politicians mentioned in the Novartis case file. The law implementing the constitutional provisions and the Standing Orders

16 The Politics of the Judiciary, 5th edition (Fontana Press, 2010).

210  The right to resistance of Parliament form the next part of the puzzle. When a crime has been allegedly committed, the House can exercise its investigating and prosecuting powers until the end of the second year of the following Parliament. This deadline is short and tight, a minimum of only two years if the parliamentary session is cut short by early elections – a rule in Greek politics. When the deadline passes, the crime can no longer be investigated or prosecuted. In the past, this special procedure was initiated only when elections after the commission of the offence brought an opposition party to power. Exceptionally, and only in cases of great popular outcry, would the party of the alleged offender initiate this special procedure. British constitutional history and theory indicates that the political and legal responsibility of ministers is engaged by their own party only if the non investigation would cause greater political damage than the ministerial resignation of prosecution. In Greece, political expediency has meant that out of the hundreds of cases sent to Parliament, fewer than five led to the establishment of the special procedure and resulted in a hearing by the special court provided in the Constitution. The case law completes the picture. Abuse of office, the most common ministerial offence, is carried out in the performance of ministerial duties and therefore the short deadline for prosecution kicks in. Similarly, the courts have ruled that the acceptance of bribes is carried out in the politicians’ performance of duties, as if passive bribery is part of a Minister’s duties. Only money laundering, according to the courts, is not practised in the performance of duties and is not subjected to the short prosecution deadline but to the ordinary statute of limitations of fifteen years. It takes profound judicial creativity to distinguish between bribery, the cause of corruption that escapes prosecution and its fruit, laundering the corrupt money, which is not time-barred. It must be one of the few instances in which the courts responded to public outcry and allowed the possible but difficult prosecution of the suspects. The overall picture is of a law without justice, which, like a body without soul, becomes a dead letter. In the Novartis investigation, this dead letter of a law that regularly led to non-investigation or the exculpation of the accused came to our Committee. The majority of European legal systems disconnect Ministers’ prosecution from national Parliaments. In Great Britain, Ireland or Germany no special procedural or substantive protections exist. In Italy and Spain, parliamentary authorization is necessary for the initiation of the standard prosecution. In Spain, special authorization is needed in order to start the prosecution for crimes against national security only. In Belgium, parliamentary approval is required only after regular courts have convicted the politician. Finally, in France a ‘Court of Democracy’ carries out the prosecution. Parliament’s permission is not required but deputies participate in the proceedings. The Greek legal peculiarity was legislated by the two parties that ruled the country since 1974 (right-wing New Democracy and social democratic Pasok), members of which were liable to face corruption allegations. And it is former Ministers and Prime Ministers of those two parties who are persons of interest in the Novartis case. According to parliamentary procedure, the investigating Committee had a majority of Syriza MPs with a minority coming from opposition parties.

Critical legal studies goes Greek 211 It became clear from the start that the opposition MPs would do everything to derail and ridicule the investigation in order to discredit it and prevent the potential prosecution of their leading current and former members. The main opposition argument appeared ingenious. Since Parliament decided to initiate the special procedure, the Committee should carry out all available pre-trial actions, such as taking evidence from the named politicians, calling witnesses, reading documents etc. The Standing Orders state that the Committee ‘can’ perform these actions; it therefore had no choice, the opposition argued, but carry them out. If we did that, however, we would be accepting that the alleged crimes fall within the categories of offence carried out in the performance of ministerial duties and covered by the short prosecution time limits. If that route was chosen, at the end and after a long and tortuous investigatory procedure, the Committee would have to conclude what we already knew at the beginning: the offences had taken place well before the end of the time bar but had not been sent to Parliament in time; if they were designated as political, the short limitation period would apply and the prosecution would have to be abandoned after the end of the parliamentary investigation and irrespective of its conclusions. The mainstream press, which had a full report of our daily proceedings despite their confidentiality, reported that our main question was how many investigatory powers we should exercise and whether we should invite the named politicians to explain their actions. Our remit was much wider: it was a question of jurisdiction. Jurisprudence and critical legal theory could help resolve the issue. A body’s jurisdiction is created by the instituting body and is not something natural. We should make an analytical distinction therefore between the constative and normative meanings of ‘can’: between what one ‘can do’ in the sense of being able to, and what one ought to do, what is normatively allowed to do. This distinction allows us to understand that the Committee is able to do certain acts but should not do so. What is the Committee allowed to do? The opposition argument was every action mentioned in the relevant provisions of the Standing Orders. But this was false. The jurisdiction of a body is not determined simply by its instituting law but by the total legal and normative constellation that led to its establishment. They include provisions of the Constitution, the executive law, parliamentary Standing Orders and the case law mentioned above. Their interconnections and inner logic led to the introduction of the special procedure and its application in the establishment of the Committee. The normative conditions of the jurisdiction and the limitations on our investigations had to be grounded on the totality of these provisions. The question of what we ought to do, what is normatively allowed, is determined by the combination of these provisions, which put beyond our powers certain acts that the Committee is nominally able to carry out. When I taught the principle of British parliamentary sovereignty, I used to say that its unlimited nature meant that Parliament could ban smoking in Paris; this would not prevent Parisians from enjoying their untipped Gauloises. There are many things we can do that would be invalid, groundless, if there is no jurisdiction to carry them out. We can perform various actions but we must not; the Committee’s jurisdiction is made up not by the single provision in the Standing

212  The right to resistance Orders but by several elements of this constellation of provisions setting it up. It follows that not only we cannot investigate offences that fall within the statute of limitations, we are not entitled to do so. It is beyond the Committee’s constitutional status. It would be like passing a law against smoking in Paris. The second opposition argument was quite paradoxical. They claimed that the Committee should first investigate evidence of possibly committed crimes and then decide what its legal position is. In other words, the crucial question of jurisdiction should be discussed and decided at the end of the investigation process. We would do exactly what we can but we must not, depriving the whole procedure of its legitimacy. It would take at least six months to conclude a process that would turn the Parliament into a lawcourt and bring the Committee MPs into the awkward position of admitting in the end what they knew from the start: there is no jurisdiction to proceed with the case. But why did the Syriza majority set up the Committee, the opposition asked. Was it an attempt to accuse falsely and defame its political opponents? According to the applicable legal provisions, Parliament can choose one of two options: either set up a Committee or acknowledge that the alleged offences are manifestly unfounded. Well, the offences were not manifestly unfounded. The case file of several thousand pages included reports from the FBI detailing the company’s illegal practices. It contained the depositions of three protected witnesses who had given detailed evidence about the bribery of politicians. Once the case file was forwarded to Parliament, setting up the Committee was the only measure consistent with the current legal framework. The Committee should confirm certain factual elements, we concluded, and then forward the case to the investigating judges who are qualified and experienced to get to the heart of the matter. The laundering of money is not protected by the substantive and procedural provisions and can be investigated. However, the Committee’s report returning the case to the investigators also instructed them to examine the offence of passive bribery. The problem was that existing case law was not allowing this. The main element of the Novartis scandal would thus remain hidden; this was the key pursuit of the Opposition.

How philosophy teaches the law The bi-partisan alliance of the ancien régime had created the conditions for the almost ‘perfect crime’ by creating an intricate group of legal provisions protecting politicians. The alleged offences in the Novartis case were time-barred since they had occurred well before the deadline stopping prosecution. Faced with this predicament, the majority of the parliamentary Committee concluded that we did not have jurisdiction and passed the case to the ordinary judges to investigate those offences that were not time-barred falling within the standard fifteen-year provision, as well as accepting bribes. Academic work overwhelmingly supports this view but it had not been accepted by the case law. The question of jurisdiction dominated the Committee’s report. In drafting it, the majority had to answer conceptual and procedural difficulties. What does the constitutional expression ministerial ‘acts in the performance of duties’ mean?

Critical legal studies goes Greek 213 Which authority is competent to examine the offences, the ordinary prosecutors and courts or Parliament under the special procedure? If Parliament investigated the alleged offences, they would be designated ‘political’ and prosecution prevented because of the statute of limitations. If they were deemed non-‘political’, they would not be time-barred and the cases would ‘return’ to the ordinary courts for further investigation. The opposition’s cynical attitude was to try and discredit the procedure. They demanded that the Committee exercise full investigative powers thus forestalling legal investigation and possible prosecution of their leading members. When the majority refused to comply with this absurd demand, the opposition left the Committee. We were confronted with two opposing interpretations of the legal provisions. On the one hand, the general provisions of criminal law and procedure on abuse of office and bribery. The fifteen-year time bar for such acts reflects society’s disapproval, which becomes stricter when they are committed by civil servants and politicians. On the other hand, the special procedure provides for parliamentary involvement and short periods for the prosecution of Ministers. The general provisions on the prosecution of serious offences in the performance of duties seriously differed from the special provisions concerning their commission by Ministers. Applying one or other set of provisions would lead to opposite results. Both routes were supported by scholarly argument and judicial precedents. It was a genuine hard case involving two opposing solutions each with convincing arguments. I argued that as long as the disagreement revolves around whether corruption is committed ‘in the performance of’ or ‘on the occasion of’ ministerial duties, which was the majority’s position, the impasse will continue. The courts had accepted that bribery is carried in the performance of duties and therefore benefits from the protections. We had to make them overturn that decision. The report should therefore abandon the dubious interpretation of the constitutional phrasing, which allows the two sides to continue claiming that theirs is the ‘right’ answer. Jurisprudence helped resolve the disagreement. The first step is to identify the values ​​protected by the opposing interpretations by transferring the disagreement from the particular case onto an abstract level. This allows us to formulate the values and principles behind the legal provisions. The next step is to compare them; the theory of democracy and of the rule of law helps the comparison. Once the principles are lined up at the value level, the right balance can be reached. This will in turn allow the interpreter to solve the original opposition. Let’s see how this procedure applies to the Novartis case. The offences of abuse of office and bribery protect the integrity and moral behaviour of politicians. The prevention and punishment of corruption and racketeering are essential pre-conditions for the functioning of democracy and the trust of citizens. The special provisions, on the other hand, aim to protect politicians from two types of harms: first, malicious, defamatory, absurd and unsubstantiated allegations, which undermine the effective performance of their duties. Second, the criminalization of politics, that is the use of criminal law by a later government to prosecute political opponents for policies they implemented during their tenure. The short time bar seeks therefore to protect the integrity of

214  The right to resistance politicians and the political system. The special procedure protects the former Greek Prime Minister George Papandreou from criminal prosecution by his opponents for signing the first Memorandum, or Yanis Varoufakis, the former Minister of Finance, for failing in his negotiations with the lenders. The penalty for failed policies is political, not legal: resignation or dismissal from office. More commonly, defeat at the next general election. The integrity of the political system is therefore the good protected by both the general and the special criminal provisions. This understanding helps us compare and rank them. The Novartis case allows the alignment of the existing case law with democratic values. The protection of the integrity of politics demands that we distinguish between, (a) prosecutions of political opponents for policies later considered unsuccessful or harmful, (b) prosecutions for unsubstantiated and malicious allegations and, finally, (c) prosecutions for the offences of abuse of office and active or passive corruption and such like. The protection of popular sovereignty and of the effectiveness of political decision-making justifies the non-prosecution or the short time bar for the first two categories of offences. On the contrary, the protection of the third category violates the principle of integrity of the political system by shielding corruption. The strong statement of the parliamentary Committee in this direction marked the beginning of the process of amending the constitutional and legal framework. Jurisprudence and critical legal theory helped emphasize the centrality of democratic values in ​​ criminal law and to avoid unnecessary disagreements and judicial deadlocks. The Syriza proposals for the amendment of the Constitution include the repeal of the offending Article 86. It remains to be seen if the opposition agrees.

The myth of judicial independence Let me return to the religious education case. The CoS judgement does not revolve around the meaning of words, as the majority claims. It is absurd to argue that the ‘of’ in the phrase ‘of religious consciousness’ or the ‘the’ in ‘the religious consciousness’ determine what should be included in a school curriculum. The ruling is a choice between two radically opposing views about ideology and politics masquerading as a literal interpretation of constitutional words. The judges decided that religious instruction should be catechistic in nature for reasons that cannot be discovered in the constitutional text. When the judicial choice expresses generally accepted values ​​or interests, the decision can be presented as the right interpretation of words. But most cases ending up in the highest administrative court involve intense political and ideological conflicts and incompatible social interests. The nine judges in the majority are not necessarily better jurists than the dissenting eight, nor is their view an ‘authentic’ interpretation of the Constitution. The nine appear to be more ideologically dogmatic than the dissenting eight; the rule of law theory claims that judging should be free of ideology. The majority prevailed but this was neither the right nor the better judgement. It was just the conclusion chosen by one more judge making it the court’s judgement. When we remove a power from politicians and give it

Critical legal studies goes Greek 215 to judges, with their homogeneous outlook, judgements will reflect in part their ideological, political or ethical views; these views are hermetically hidden in their vote and appear only timidly in explicit form. A court ruling includes legal arguments, preferences that go unmentioned – the ideological or religious choices of judges – as well as unconscious motives. The legal argumentation is the decision’s surface. In every interpretation, whether of the Bible, Shakespeare or the instructions of use of a laptop, conscious and unconscious desires, political preferences and ideological choices as well as the effort to persuade by argument play their role. In politically disputed cases, the court does not interpret the law. The ruling creates law. The decision does not follow a pre-existing rule, even though it claims to do so. It creates its own rule and changes the balance of power. Not only is the separation of powers not respected – a theory applied by means of its exceptions; furthermore, the political and ideological role of case law is indirectly recognized. Methods of judicial interpretation are ways of producing interpretative ‘subtexts’ for the enforcement of power, rather than ways of accessing the meaning of the text. Cases with high political stakes show that the supposed neutrality of judges is impossible. The claim of neutrality however is neither a lie nor a deception; it is a legitimating myth. Myths are the sacred stories of the present: they reveal self-evident truths to their believers. They allow them to discover in the world a consistency that meets their interests; second, they confirm their belief that the views of opponents are obvious mistakes and wrongs. Believers invest a lot in their myth. They cannot recognize it as myth, sweeping under the carpet evidence that undermines its veracity. Myths do not promote a false understanding of the world, but a description from a partial perspective that claims universality. The myth’s main work is not to lead its believer to error but to direct her legal work, to give the necessary security to construct an argument and conceive it as ‘correct’ or ‘true’. It is not particularly hard to show that a text, any text – the Bible, Aristotle or the latest decision of a court – is full of contradictions and inconsistencies leading to different interpretations. It is much harder to work out, first, what practices, procedures and ruses make texts authoritative and coherent despite their inner inconsistencies and, second, which myth gives their interpreters the security of their opinion. In this sense, the idea of a myth alerts us to the context of adjudication and the associated relations of power. Duncan Kennedy has argued in an important article that the rise of the ‘hermeneutic of suspicion’ follows transformations in the relationship between law and politics and between elite jurists and political, economic and social elites.17 The ‘hermeneutics of suspicion’ was inaugurated by the three continents of thought, as Louis Althusser called them: Hegel, Marx, post-Marxism and the dialectics of struggle; Nietzsche, Foucault and the disjunctive synthesis of will and power; finally, Freud, Lacan and dialectics of desire. The suspicious ‘hermeneut’ deconstructs

17 Duncan Kennedy, ‘The Hermeneutics of Suspicion in Contemporary American Legal Thought’ (2014) 25(2) Law and Critique 91–139.

216  The right to resistance the common-sense view of the world according to which legal texts are ­natural, neutral or objective. But this understanding remains on the surface of the deeper structures conditioning people relations of domination and exploitation. Everyday discourse, statements and arguments are constructed and constrained by deep grammatical and syntactical encoding. This insight was first applied to the structure of language and then passed to systems of kinship, politics and the dialectics of desire; the ordinary view of the world came unstuck. The Marxist view of ideology as false consciousness was replaced by a more complex approach. We all make sense of life through ideology, the way through we are related in our imagination to our real conditions of existence. But if there is no ideological ‘truth’ but only diverse perspectives, the point is not to replace ideology with ‘science’ but to uncover the foundational moves that associate each perspective with a particular set of interests and positions in class, gender, race or identity. Ideology does no longer need or can be eliminated but illuminated. Dominant ideology becomes invisible by associating itself with ‘truth’. To this extent, the deconstruction of ideology is not an abandonment of meaning and practices but their reorientation. Finally, the psychoanalytical perspective links surface arguments and perspectives with deep urges, motives and traumas of which we are not fully conscious. The bad interpreter displaces their inner conflict and uncertainty onto their putative opponents, in what Kennedy calls ‘projective identification’. The suspicious interpreter seeks those mythical – both false and true – elements which make the interpretation persuasive while being at the same time one-sided. To return to the religious education case, both majority and dissenting opinions have ideological elements on the input side and political effects on the output. When the relevant law and the available evidence are contested, neutrality and lack of ideological considerations are impossible. This becomes apparent in high-stakes cases but exists in all cases that reach the superior courts. It is therefore wrong to criticize the judges for bias; the mythic or ideological element is both inevitable and welcome if there is a clear and honest acknowledgement of the wider judicial considerations the judges take into account. The suspicious interpreter criticizes the content of judicial ideology: not that the judges are biased, but they are biased the wrong way. This is an argument and a polemics that has to be conducted only partly in legal terms. In the religious education and similar cases, the judges sided with the reactionary and regressive elements. Such decisions turn society back towards its dark past of religious dogmatism, persecution of the left and extensive violations of citizens’ freedoms. Furthermore, such decisions remove the Enlightenment values from the educational system and public debate and distance Greece from Europe. The immediate defence of the court by commentators and politicians avoided the specifics of the case and emphasized the constitutional principles of the rule of law and division of powers. The cliché that judges are the mouthpiece only of the law was repeated time and again; it is ‘the law and not men’ who decided the case. The strategy is clear. The judicial decision was so biased that its defence had to be procedural and institutional. This is why so much emphasis was placed on the claims about judicial neutrality and independence. When judges decide on the constitutionality

Critical legal studies goes Greek 217 of important reforms they become lawmakers. The argument about the division of powers, according to which the judges interpret rather than legislate was so much in evidence precisely because this was a case in which it evidently did not apply. The claims about the ideological neutrality of court rulings become deafening precisely when the bias of the judgements becomes obvious. A solution is not, therefore, some kind of formalism that hides its name, but an honest public discussion about the political stakes and results of politically significant rulings. Political decisions should be left to politicians; when judges rule such cases they should be open about their preferences both in the ruling and later commentary. This would strengthen both democracy and the rule of law.

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Index

abortion 7, 22 adoption 43, 117 Afghanistan 98 Agamben, G. 34, 101, 123, 125, 130 akedeia 144, 153 Althusser, L. 51, 89, 122, 125, 215 analogy 38, 47 anarchism 58, 117 Anaximander myth 118 – 19 animals 36; personhood 3, 4, 6 – 10, 21, 30, 38; Ulpian’s Digest 40; women 3, 4 – 5 anthropos 93 – 4 anti-discrimination laws 45, 52, 53, 84, 113, 148 – 9 anti-social behaviour laws 82 – 4 Antigone 12, 70, 118, 181, 184, 188 apes 4, 6 – 10, 38 appellate processes 48 Aquinas, T. 24, 73 Arendt, H. 12, 13, 33, 55, 62 – 3, 65, 66, 70, 91, 130, 153, 155, 183 Argentina 8 Aristotle 24, 40, 69 – 70, 179, 215 artificial intelligence 4, 30, 38 Augustine 73, 157 austerity 30, 48 – 9, 98, 141, 144, 182, 183, 197 – 202 Austin, J. 33 automated electronic and vending machines 4, 38 autonomy 15, 41, 63, 64, 74, 96, 145, 147, 149, 150; chimpanzees 7, 9; Griffin 141; individual between independence and 57 – 62; Kant 17, 39, 78 – 9, 122; obedience to law 153, 183; reasoned exercise of will 35; righting 192; rights: heteronomy and 79 – 80; subject 50, 51, 52, 122

Badiou, A. 117, 128, 129, 183, 184, 187, 188, 192, 194 Bahrain 140 Balibar, E. 74, 116, 128, 178 – 9, 183, 185 Bandung conference of non-aligned nations 170 Beck, L. 159, 171 Belgium 210 Bell, D. 59 Bentham, J. 17, 19, 75, 80, 101, 186 bio-politics 31, 56, 66, 90, 101, 103, 121 biopower 56 – 7, 84, 146 Blair, Tony 197 Blanchot, M. 190 Bloch, E. 104, 126 – 7, 190 Boaventura 24 body organs 19 Bork, R. 177 Bourke, J. 139 Brexit 117 bribes 209, 210, 212, 213 Brown v Louisiana 180 Brown, W. 84, 131 Burke, E. 155, 186 Calvin, J. 58 Campbell, T. 149 capitalism 19, 126, 146, 161, 166, 179, 182, 195; in advanced capitalist societies human rights de-politicize politics 101 – 3; dignity 27; extreme material differentiation and poverty 148; free and equal 81 – 2, 124 – 6; human rights 90, 96 – 8, 101 – 3, 130; human rights axiom 90; individual 57, 58, 59, 66; individual rights 75; laissez-faire 20, 61; late modernity

Index  229 81 – 2, 83, 84; legal person 37 – 8, 39, 41, 42; Marx, revolution and 163; Marxism, rights and 101, 119 – 20, 122 – 4; passivity of citizens 176 – 7; psychoanalytical theory 106 Cassidorus 16 Castoriadis, C. 59 categorical imperative 78, 90, 153 Cavalieri, P. 6 – 7 censorship 85 Césaire, A. 170 Cheah, P. 96 children 82, 83 – 4, 130, 139, 141, 143, 186 chimpanzees 4, 7 – 9 China 148, 172 Christianity 15 – 17, 20, 21, 61, 76, 143, 149, 192; dignity 16, 22, 24, 25, 29, 30; dissidents/renouncers 57 – 8; human of human rights 64; humanity 91 – 3; legal person 37, 39, 42, 43, 45; Paul’s conversion 184, 188; Pope 165; religious education in schools 206 – 9, 214 – 15, 216 – 17; right in 69, 71 – 5; Stylites 58; subject 50 – 1; western empires 98 Cicero 14, 24, 91 citizen/citizenship 29, 79, 80, 103, 109, 110, 122, 130, 153, 192; active 124, 178 – 9; Augustine’s city of God 73, 103; classical world 57, 61, 62, 69, 70; disobedience 184; equaliberty 128; failings of legal rights 148; French revolution 128, 168; human of human rights 17, 62 – 3, 64, 66 – 7; immigrants 43, 80, 117; national 95 – 6; natural rights 120; paradoxical 179; passivity 176 – 7, 178; person 11, 17, 20; political activities 187; proportionality 201; public law 129; Syriza government in Greece 117 civil disobedience see resistance climate change 181 Cold War 172 colonialism 47, 80, 92 – 3, 95, 97, 98, 161, 189; human rights and anti169 – 70 commercial law 129 commodification of body 19, 39 commodities, law and circulation of 122 – 4 commodity fetishism 123 communism 89, 104, 117, 121, 127, 163, 172, 187, 188, 192 – 3, 194

communitarianism 20, 103, 126, 187 – 8; universalism and 98 – 100 competition 20, 82, 96 – 7, 158 computer programs 10, 21, 30, 38 conscience 15, 17, 18, 21, 30 – 1, 51, 72, 78, 79, 160, 174, 207, 208 Constant, B. 61, 62, 79 constitutionalism 176 consumer culture 138 consumer rights 82, 130 contract law 43, 75, 83, 123, 164 contractarianism 42 Cooper, R. 97 Corbyn, Jeremy 197 corporations 17 – 18, 43, 45 – 6 corruption 178, 203, 206, 210, 213, 214; bribes 209, 210, 212, 213 cosmopolitanism 30, 90, 95, 103 – 4, 116, 117, 157 – 8, 166 courts see judges criminal law 43, 61, 77 – 8, 80, 83, 84, 123, 129, 138, 150; politics 213 – 14; protests and 180 – 2; revolution 164 – 6, 168 Critchley, S. 183 – 4, 185 critical theory/studies 51, 53, 54, 195, 196; legal 135, 195 – 217; race 54 – 5; social 56 Cuba 172 cultural theory 56 Cynics 58 Cyprus 199 de Souza v Cobden 5 de-regulation 81, 82, 182 death penalty: lethal injections 10 debt, Third World 97 decolonization 169 – 70 defamation 27, 213 democracy 61, 62, 65, 66, 80, 120, 128, 129, 191, 213, 214; disobedience 175, 176 – 9; Greece (modern) 198, 199; Kant 79; left social 116, 117; liberal 122, 176, 177; passivity of citizens and complexity of economic and social problems 176 – 7; social 128, 175; tyranny of the majority 175 democratic deficit 178, 198 deontological rights-based approaches 85 Derrida, J. 118, 119n9 Descartes, R. 17, 51, 76, 77

230 Index desire 52, 53, 78, 84, 90, 107, 108 – 9, 129, 138, 139, 150; dignitas contrasted with voluptas 24; rights, identity 109 – 15 development aid 97 Dicey, A.V. 80 dignitas 22 – 31, 45, 52, 66, 127, 147; Christian theology 16, 22, 24, 25, 29, 30; philosophical dignity 25 – 31, 200 – 1; Rome 23 – 4 discrimination: anti-discrimination law 45, 52, 53, 84, 113, 148 – 9; race 45, 148 – 9, 170, 174, 180, 182 disobedience see resistance dogma 39, 41 dual legacy of rights 186 – 8 Duggan, Mark 183 Dumont, L. 57 Duns Scotus 73 Dupuy, J.-P. 165 – 6 Durkheim, E. 28, 51, 62 Dworkin, R. 111, 133, 134, 165, 174, 175, 179 ecology 117; ecological catastrophe 55 economic and social rights 46, 49, 52 – 3, 97, 118, 125, 126, 142, 145, 148, 191, 200, 201, 202 education in schools, religious 206 – 9, 214 – 15, 216 – 17 Edwards v Canada (AG) 5 – 6 Egypt 140, 178 Eichmann, A. 153, 183 embodiment 53 – 5 English Revolution (1688) 155, 160 entrepreneurship 59 environment: climate change 181; personhood 3 – 4 Epictetus 15 equaliberty 128 equality 16, 38, 39, 46, 62, 75, 81 – 2, 84, 103, 144 – 5, 186 – 7, 192; acts of resistance 182; anti-discrimination legislation and inequality 149; before the law 100, 123, 124; Christianity 43, 76, 91, 192; classical world 69, 71, 91; communist revolution 121, 163; economic system 96 – 8; of exchange 123 – 4; freedom and see free and equal; Griffin 141 – 2; Marx on natural rights 120 – 1; material inequality and abstract 147 – 8; Rawls 175

Esposito, R. 13 – 14 Eurocommunism 117 European Central Bank (ECB) 49 European Convention on Human Rights 199; Art 9: religion 207 – 8; Art 15: public emergency 201 European Court of Human Rights 207, 208 European Social Charter 49 European Union 49, 117, 197 – 8 Evans-Pritchard, A. 197 expression, freedom of opinion and 85, 121, 136, 174, 179 family life 83 Fanon, F. 170 feminism 54, 54 – 5, 84, 177 feudalism 24, 51, 119, 146, 155, 160 Feuerbach, L. 123 Fichte, J.G. 26, 156 Ficino, M. 24, 25 financial crisis 30 financial speculator 59 Foucault, M. 31, 56, 89, 100, 114, 184, 215 France 197, 210; French Revolution see separate entry France, A. 161 Frankfurt School 55 free and equal 17, 20, 25, 39n23, 41, 82, 95, 103, 123, 124 – 6, 128, 130, 156, 162, 163, 166, 168, 178, 186 – 7, 189, 191 free will 17, 24, 26, 35, 38, 52, 63, 64, 76, 77, 78, 82, 96, 126, 147, 190 freedom 13, 34, 39, 101, 110, 137, 138, 147, 171, 175; as autonomy 61; capitalism 27; and choice 130; Christianity 74; classical world 35, 70; dignity 24, 25, 26, 27; disobedience, acts of 183, 185; equality and see free and equal; French revolution 128, 156, 158; Hegel 161; as independence 61 – 2; Middle East 140; modernity 78 – 9, 81 – 2; necessity 71, 78, 79, 81, 118, 149; negative 97, 121, 128, 146, 163; of opinion and expression 85, 121, 136, 174, 179; poor 162; positive 121, 146, 163; religious 129, 207, 208; rights to righting 190, 191, 193; rights as tools of individual 64 – 5; structure

Index  231 and system: lack of 141 – 2; subject 50, 51, 54, 66, 122; see also slavery freedom fighter/terrorist 164 French Revolution 116, 119, 128, 156, 157, 158, 160, 161, 186; Declaration of the Rights of Man and of the Citizen 20, 25, 28, 95, 128, 136, 156, 168, 186 Freud, S. 82, 89, 215 Fukuyama, F. 133 functionalism 38 – 9 Gadamer, H.-G. 59 Gandhi, M. 170 Gates, B. 121 genetic engineering/material research 19 genocide 55, 95 Germany 170 – 1, 197, 199, 210; Federal Constitution 29; judges and right to resistance 173 Gewirth, A. 35, 134 – 9, 140, 142, 143 – 5, 147 globalization 30, 82, 90, 97, 103, 133, 166; anti- 55, 133, 178 Goodrich, P. 50 Gray, J. 55 – 6 Grear, A. 19 Greece (classical) 39, 57, 61, 90 – 1, 92, 118, 137; democracy 179; dignity 23, 24; prosopon (theatrical mask) 12, 16, 21; right 69 – 71 Greece (modern) 97 – 8, 101 – 2, 178, 182 – 3, 193; Conseil d’Etat 48 – 9, 196, 204 – 5, 207 – 9, 214 – 15, 216 – 17; Constitution and memoranda 196 – 202; how philosophy teaches law 212 – 14; internal devaluation 197; missing TV licences 202 – 6; money laundering 210, 212; perfect crime 209 – 12; religious education 206 – 9, 214 – 15, 216 – 17; Syriza government 117 – 18, 195, 199, 203 – 9 greenbelt zones 3 Greenpeace 181 Griffin, J. 46, 134, 135 – 6, 138, 139 – 42, 143 – 4, 147 Griffith, J. 209 Grigoropoulos, Alexis 182 – 3 Grotius, H. 25 group rights 46, 53, 142, 191 grundnorm 47

Guevara, Che 118 Gundogdu, A. 63 habeas corpus: chimpanzees 4, 7 – 9 Habermas, J. 23, 79, 166, 175 – 6 Haitian Revolution 161 Hallward, P. 127, 191 happiness, pursuit of 41, 112, 113, 141 Hardt, M. 117, 154 health care 82, 103, 113, 129, 187 Hegel, G.W.F. 19, 35, 51, 54, 64, 89, 95, 98, 144, 147, 185, 188, 191, 200, 215; French Revolution 156; I and not-I 52, 106 – 7; legal rights and social justice 148; person and owner of rights 123; property externalizes self 125; reality and rationality 76, 145; revolution 159 – 63, 165, 166 – 7; warfare 162 Heidegger, M. 35, 54, 76, 118 hermeneutics of suspicion 53, 54, 215 – 16 hermeticism 25 heteronomy 61, 78 – 9, 149, 183 historicism 69, 71 – 2, 128 history of the person 11 – 21; etymology 12; from legal to moral person 15 – 21; Greek prosopon (theatrical mask) 12, 16, 21; Roman law: personas, res (things) and actiones (legal actions and remedies) 12 Hobbes, T. 14, 17 – 18, 25, 58, 61, 76, 77 – 8, 150 Hollande, François 197 Holy Roman Empire 16 Honneth, A. 27 human rights 17, 32, 33, 38, 45, 46, 58, 82, 120, 134; anti-colonialism and 169 – 70; claim-rights 136 – 7; constitutive inoperativity 125; corporations 46; de-politicize politics 101 – 3, 129; dignity 29; in dispute 116 – 18; European Convention on 199, 201, 207 – 8; ‘human’ of 17, 62 – 7; International Covenants 113, 173; paradoxes of see separate entry; as protections 64 – 5, 129; protests in 2011 – 2013 30; undocumented immigrants 49; Universal Declaration of 29, 95, 112 – 13, 142, 169 humanitarian aid and intervention 65 humanity: no fixed meaning 90 – 4

232 Index Hume, D. 26, 140 Hutcheson, F. 79 hybrids 10, 16, 21 idealism 17, 27, 36, 122, 127, 156, 188 identity 52, 53, 60, 131, 146 – 7, 150; politics 38, 55, 148; psychoanalysis and 106 – 9; rights 82, 83, 84; rights, desire 109 – 15 ideology 54, 133, 170, 202; critique 120 – 1, 186; double mirroring 16; judges 214 – 15, 216, 217; liberal jurisprudence as 142 – 7; person and legal 124 – 6 Iglesias, T. 23 Ignatieff, M. 133 immigrants see migrants imperial cosmopolitanism 117 imperialism 16, 92 – 3, 95, 97, 98, 104 individual 39, 40 – 1, 42, 43, 73, 77, 122, 143, 145, 146; between independence and autonomy 57 – 62; post-modern elevation of 41 individual rights and modernity 75 – 81, 138, 188 – 9 individualism 19, 20, 28, 30, 37, 42, 43, 54, 57, 58, 59, 61, 84, 99, 103, 128, 139, 145 – 6, 187; totalitarianism 55 inter-subjectivity 52 – 3, 60, 107 international law 117, 173 – 4, 201 International Monetary Fund (IMF) 49, 97, 197, 198 Iraq 30, 98 Ireland 22, 97 – 8, 156, 198 – 9, 210 Italy 198 – 9, 210 Jaspers, K. 170 – 1 Jefferson, Thomas 167, 172 Joyce, J. 54 Judaism 16 – 17, 39, 71 judges 32, 48, 59, 111, 144, 149; civil disobedience 177, 179 – 82; classical world 70 – 1; Greece (modern) 48 – 9, 196, 199 – 202, 203, 204 – 5, 206, 207 – 9, 214 – 17; myth of judicial independence 214 – 17; right to revolution 172 – 3 jus gentium 40, 50, 95 justice 41, 48, 73, 144, 188, 210; acts of resistance 182; Anaximander myth: injustice and 118 – 19; classical world

70 – 1; distributive 46, 142; as fairness 71; Rawls 79, 133, 175; social 30, 84, 144, 148, 175, 191, 196; as struggle 66; suum cuique tribuere (give everyone his due) 71, 192 Kafka, F. 111, 122 Kant, I. 17, 20, 35, 76, 77, 78, 82, 106, 140, 148, 149, 153, 188; categorical imperative 78, 90, 153; constitution 80, 81; dignity 26, 27, 28; French Revolution 119, 156, 157, 158, 163; heteronomy 78 – 9, 149; perpetual peace 157; revolution 119, 155 – 9, 162, 163 – 4, 165, 168, 170 – 1; subject 51, 122 Kateb, G. 23 Kelsen, H. 33 – 4, 37, 125, 173 Kennedy, D. 215, 216 Khan, A. 173 Kierkegaard, S. 144 King, Martin Luther 176, 180 Kolhaas, Michael 118 Kornhauser, M. 173 Kosovo 99 Kramer, L. 176 Lacan, J. 40, 107, 108, 122, 215 Laclau, E. 184 Las Casas, Bartholomé de 92 – 3 Latour, B. 10 Lefort, C. 116, 128 legal person 11, 12 – 13, 14, 32 – 49, 64, 66, 122 – 3; legal norms/legal masks 46 – 9; person: natural or artificial 32 – 6; person and legal ideology 124 – 6; pitfalls of psychological naturalism 42 – 3; psychoanalytical naturalism 38 – 42; realists and metaphysicians 36 – 8; social construct 33 – 4, 43 – 4; two lives of 43 – 6 legalism 35, 36, 128 legality after virtue: from (objective) right to (subjective) rights 68 – 85; classics and right 69 – 71; late modernity, morality, rights 81 – 5; modernity and individual rights 75 – 81; right in Christianity 69, 71 – 5 legality and morality of revolution and resistance 168 – 72; definition of resistance 172; legality of disobedience 179 – 82; legitimacy

Index  233 of resistance 172 – 4; morality of disobedience 182 – 5; right to resistance returns 174 – 9 Legendre, P. 40, 41 – 3, 109 Leibniz, G.W. 76 Lenin, V. 166, 184, 188 Levinas, E. 82, 99 libel 27 liberal jurisprudence 132 – 5, 169, 171, 196; as ideology 142 – 7; poverty of 147 – 50; rights deflation 139 – 42; rights inflation 135 – 9 liberalism 47, 59, 61, 77, 79, 82, 84, 132, 145, 202, 208 life expectancy 89 life, right to 161 Lincoln, Abraham 169 linguistics 54, 73 Locke, J. 17, 18 – 19, 27, 35, 58, 80, 153 – 5, 161, 174 Losurdo, D. 154 Lyotard, J.-F. 116, 119n9 MacIntyre, A. 70, 72, 78, 85, 137, 138 Macklin, R. 28 Macpherson, C.B. 154 Manetti, A. 24 Mansfield, H. 169 Mao Zedong 166 Maritain, J. 135 market 80 – 1, 82, 83, 123, 146, 158, 177; in body organs 19; see also capitalism Markovits, D. 178 marriage 164; same-sex 114 Marx, K. 20, 24, 51, 75, 76, 89, 128, 163, 215; natural rights 101, 119 – 22, 186; rights to property and religious freedom 129 Marxism, rights and capitalism 101, 119 – 20, 122 – 4 Mauss, M. 11, 12, 17, 67 media 55, 178, 182, 202 – 6, 211 mental illness 139, 143 Middle East 140 migrants/immigrants 34, 43, 47, 49, 64, 66, 80, 93, 96, 102, 104, 117, 120, 129, 131, 133, 143, 179, 206 Mill, James 17, 19 Mill, J.S. 80 minorities 47, 63, 80, 95, 96, 139 modernism 54

modernity 149, 156; individual rights and 75 – 81, 138, 188 – 9; late modernity, morality, rights 81 – 5 money laundering 210, 212 Montag, W. 125 morality of disobedience 182 – 5 Mouffe, C. 101 Moyn, S. 134, 170 multiculturalism 53 Murdoch, R. 121 Murphy, T. 34, 148 Naffine, N. 36 – 7 nationalism 43, 95, 99, 116, 207 NATO (North Atlantic Treaty Organization) 99 natural law 20, 25, 40, 47, 71 – 2, 73, 75, 76, 127, 170, 173 natural objects: personhood 3 – 4, 30 natural rights 20, 62, 77, 101, 103, 136, 146 – 7; Marx on 101, 119 – 22, 186 naturalism 36, 71, 72; pitfalls of psychological 42 – 3; psychoanalytical 38 – 42 Nazi concentration camps 57, 60 Negri, A. 117, 154 neo-colonialism 97, 170 Neo-Platonism 24, 25 neoliberalism 30, 66, 84, 90, 97 – 8, 100, 116, 138, 142, 161, 197, 198 Nesbitt, N. 161 Netherlands 160 Nietzsche, F. 28 – 9, 76, 89, 118, 215 Nino, C. 34 – 5 Nkrumah, K. 170 nominalism 18, 42, 71, 73, 74, 76, 145 non-aligned nations 170 Noonan, J. 48 normative jurisprudence 33, 34, 47, 135, 136, 149 – 50 Nozick, R. 132 – 3, 134 nuclear disarmament 177 Occupy movement 140 Oedipus 60, 70 ‘one-use humans’ 63, 102, 125, 131 Osamu, N. 94 Ovid 144 paedophilia 83 paradox of justice 118 – 19 paradoxes of human rights 29, 89 – 105, 114, 117, 126 – 7, 128, 137; axiom

234 Index 90; thesis 1: idea of ‘humanity’ no fixed meaning 90 – 4; thesis 2: structuring order of each epoch and society 94 – 6; thesis 3: post-1989 order 96 – 8; thesis 4: universalism and communitarianism 98 – 100; thesis 5: human rights de-politicize politics 101 – 3; thesis 6: for cosmopolitanism to come (or idea of communism) 103 – 4 Parks, Rosa 174 Pascal, B. 76, 207 Pashukanis, E. 123, 124 person 30 – 1, 45, 67; animals 3, 4, 6 – 10, 21, 30, 38; becoming 193; history of 11 – 21; and legal ideology 124 – 6; legal see separate entry; natural objects 3 – 4, 30; women 3, 4 – 6, 10 personalism 20, 42, 66, 170 Petrarch 25 Phaedra 12, 144 Picasso, P. 54 Pico della Mirandola, G. 24, 25 Pinker, S. 28 Plato 24, 184 politics of difference 53 politics and the political 101 – 2, 129 – 30 poor/poverty 46, 47, 63, 64, 89, 103, 118, 120, 125, 133, 143, 147 – 8, 154, 161 – 2, 166, 186, 193, 200 Portugal 97 – 8, 198 – 9 positivism 37, 47, 122, 143, 153, 156, 164, 171, 173, 174 post-colonialism 54, 55 post-modern 4, 41, 82, 147, 196 poststructuralist theory 60 poverty of (rights) jurisprudence 132 – 5, 147 – 50; liberal jurisprudence as ideology 142 – 7; rights deflation 139 – 42; rights inflation 135 – 9 precarious work 59 privatization 81, 82, 197; of morality 61 propaganda 55 property law 43, 75, 123 property, right to 47, 75, 85, 125, 126, 127, 129, 139, 146, 147, 153 – 4, 161 – 2, 189 proportionality 199, 201, 202 prostitution 4 – 5 psychoanalysis 52, 53, 54, 66, 89, 93, 146, 192, 216; identity and 106 – 9; rights, desire, identity 109 – 15; unconscious 55 – 6

psychoanalytical naturalism 38 – 42 public law 75, 129 Pufendorf, S. von 25 queer theory 54 race 139, 148, 186, 189; discrimination 45, 148 – 9, 170, 174, 180, 182 radical reassessment of rights 126 – 31 radicalism 72, 103, 150, 172, 201; see also resistance Rancière, J. 102, 116, 117, 128, 129 – 31 rationalism 36 Rawls, J. 78, 79, 106, 133, 134, 140, 175 reason 17, 34, 47, 63, 64, 80, 94, 96, 149, 157, 189; Christianity 73, 74; classical humanism 91; classical world: right revealed by 71, 72; cultural package of the West 98; cunning of 160, 162; dignity 24, 25, 26 – 7, 30, 31; domination 55; legal person 44; liberal jurisprudence 143 – 4, 145; modernity 76 – 7, 78 – 9; natural law 40, 76; orthos logos (right reason) 71; subject 50, 51, 54, 55; will 35, 37 – 8, 39, 45, 76 – 7, 78 reasonable man 123; on Clapham omnibus 44 refugees 34, 47, 66, 70, 93, 95, 96, 102, 117, 120, 131, 133, 143, 179 relational social theory 52 relativism 26, 65, 138 religion 119, 129, 138; Christianity see separate entry; fundamentalism 30, 43, 79; religious education in schools 206 – 9, 214 – 15, 216 – 17 religionism 36 resistance 55, 56, 64 – 5, 66, 140, 144, 191 – 2; collective 65; legality and morality of revolution and resistance see separate entry; right to resistance and revolution see separate entry Rhodesia (now Zimbabwe) 173 right to resistance and revolution 105, 106, 114 – 15, 119, 153, 163 – 7, 186 – 7, 192 – 4, 199; Burke 155; Hegel’s radical right 159 – 63, 165, 166 – 7; Kant’s paradox 119, 155 – 9, 162, 163 – 4, 165, 168, 170 – 1; Locke: property rights 153 – 5, 161, 174;

Index  235 Marx 121 – 2, 163; normative force of the real 165 right to rights see legality after virtue: from (objective) right to (subjective) rights rights deflation 139 – 42 rights, desire, identity 109 – 15 rights, dual legacy of 186 – 8 rights inflation 135 – 9 rights to righting 188 – 94 Rimbaud, A. 107 Robespierre, M. 166, 168 Roman law 16, 19, 39, 109, 137; jus gentium 40, 50, 95; personas, res (things) and actiones (legal actions and remedies) 12; Ulpian’s Digest 40 Rome 11, 12, 13, 14 – 15, 20, 57, 61, 90 – 1, 161; dignitas/dignitates 23 – 4, 200 – 1; right 69; subjecti 50 Rorty, R. 135 Rosen, M. 23 Rousseau, J.-J. 18, 28, 58, 79, 82, 176 Roy, A. 144 rule of law 52, 147, 154, 175, 176, 177, 180, 184, 195 – 6, 201, 213, 214 rule of recognition 47 Russia 161, 172, 186 same-sex: civil union 206; marriage 114 Sartre, J.-P. 122 Schelling, F.W.J. 156 Schlag, P. 45 Schmitt, C. 61, 68, 123, 125 Schopenhauer, A. 27, 28 Schröder, Gerhard 197 Schwarz, W. 171 Scipio the Younger 91 Scruton, R. 35 secularization 29, 74 – 5 security, right to 121 self-consciousness 15, 18, 20, 30 – 1 self-determination, right to 173 – 4 self-knowledge 24 self-respect 25, 35, 52, 109, 111, 147, 162 separation of powers 215, 216 – 17 Sepulveda, Ginés de 92, 93 sex-change identities 43 sexual orientation 117; adoption 43, 117; discrimination 113, 148 – 9 sexuality 83, 148 Singer, P. 6 – 7

slavery 3, 4, 13 – 14, 28, 47, 48, 52, 69, 70, 80, 91, 92, 93, 95, 139, 160 – 1, 170, 171, 174 Smith, A. 97 social construction 33 – 4, 43 – 4, 64, 125 social contract 57, 58 – 9, 89 – 90, 106, 109, 157, 174, 175 social and economic rights 46, 49, 52 – 3, 97, 118, 125, 126, 142, 145, 148, 191, 200, 201, 202 social engineering 55 social justice 30, 84, 144, 148, 175, 191, 196 socialism 80, 117, 191, 196 Socrates 144 solidarity 18, 20, 104, 174, 192, 199 Solon 179 Sophocles 60 sovereignty 18, 41, 61, 95, 150, 177; executive 177; parliamentary 211; popular 61, 62, 67, 80, 128, 176 – 8, 214; republican 77 Spain 6, 7, 97 – 8, 198 – 9, 210; vanquished Indians of Mexico 92 – 3 spectacle 55 spiritualism 28, 43 standard of living, adequate 46, 142 Stoics 14 – 15, 24, 40, 58, 91, 95, 141n46, 190 Stone, C. 3 Strauss, L. 71 – 2 structuralism 54, 146 subject 20, 39, 42, 43, 66, 67, 122, 130; biopower 56 – 7; deconstruction of subjectivity 51 – 7; embodiment 53 – 5; inter-subjectivity 52 – 3, 60, 107; subjected 50 – 1; unconscious 55 – 6 Supiot, A. 38 – 9, 40, 41, 42 – 3 surveillance 83, 84, 90, 131, 138, 150 suum cuique tribuere (give everyone his due) 71, 192 Syria 140 taxation 174, 197, 198 Taylor, C. 53 terrorist/freedom fighter 164 Tertullian 15 theft 161 – 2 Thomas, Y. 12 Thorburn, W.M. 28 Thoreau, H.D. 174

236 Index Todorov, T. 93 torture 6, 8, 10, 131, 144 totalitarianism 116; individualism 55 transnational citizen 30 Troelsch, E. 58 Trump, Donald 117 Tunisia 140, 178 Tur, R. 34 Turkey 178 tyrannicide 173 Ulpian 40 unconscious 55 – 6 unemployment 47, 59, 63, 98, 104, 166, 179 United Kingdom 156, 183, 197, 204, 209, 210, 211; 1688 English Revolution 155, 160; Brexit 117; criminalization of protest 180 – 1; personhood of women 4 – 6; undocumented immigrants 49 United Nations Charter 29 United States 22, 117, 160, 204; civil disobedience 174, 176, 177, 179 – 80; Declaration of Independence 20, 112, 136, 156, 168, 169; First Amendment 136, 179 – 80; Fourteenth Amendment 45; free speech 174, 179 – 80; habeas corpus and chimpanzees 4, 7 – 9; judges and right to revolution 172 – 3; McCarthyism 172; militias and right to bear arms 168 – 9; prisoners in Guantanamo Bay 34, 96; public order 174; Second Amendment 169; war on terror 10, 102 Universal Declaration of Human Rights 29, 95, 112 – 13, 142, 169 universalism 19, 35, 39, 41, 47, 52, 62, 64, 79, 80, 103, 117, 118, 187; Christianity 15, 16, 20, 43, 58, 91, 93, 98; communitarianism and 98 – 100; developing world 97; dignity 24 – 5, 27, 29, 30, 74; equaliberty 128; French Declaration of the Rights of Man and Citizen 95, 136; hegemony 98; humanity 91, 93,

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94; liberal jurisprudence as ideology 143 – 4, 145; Marx on natural rights 120; post-Marxists 116; rights inflation 136 – 9; rights to righting 191, 192; science 83 utilitarianism 85, 145 veil of ignorance 106 vending machines 4, 38 Villey, M. 65, 189 Vining, J. 56 virtue see legality after virtue: from (objective) right to (subjective) rights voluntarism 71, 72, 191 Vultejus, H. 12 Waldron, J. 23, 27, 29, 35 Walker v City of Birmingham, Alabama 180 Wall, I. 154, 157, 159 Wallerstein, I. 98 war on terror 10, 102 Washington Consensus 98 Wayrauch, W. 48 Weber, M. 51, 76 Weil, S. 12, 30 will 34 – 5, 37 – 8, 51, 76 – 7, 78, 189, 191; free see separate entry; general 72, 79, 156, 157, 189, 191; will to will 35 William of Ockham 73 Wise, S. 7, 9 Wolin, S. 176 women 47, 63, 80, 83, 96, 139, 168, 189; anti-discrimination legislation 148 – 9; classical world 69; personhood 3, 4 – 6, 10 work, right to 46, 112 – 13, 121, 142, 163 World Bank 97, 100 zero hours contracts 59 Zimbabwe (formerly Rhodesia) 173 Žižek, S. 93, 116, 117, 162 Zuckerberg, M. 121

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