Wronging Rights?: Philosophical Challenges for Human Rights 9781136704284, 1136704280

This book brings together two of the most powerful and relevant philosophical critiques of human rights: the post-coloni

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Wronging Rights?: Philosophical Challenges for Human Rights
 9781136704284, 1136704280

Table of contents :
Front Cover
Wronging Rights?
Copyright Page
1. Which Critique of Human Rights? Evaluating the Postcolonial and the Post-Althusserian Alternatives: Alex Cistelecan
Part One: Postcolonial Perspectives
2. Human Rights in the 21st Century: Take a Walk on the Dark Side: Ratna Kapur
3. Critiquing Rights: The Politics of Identity and Difference: Upendra Baxi
4. Righting Wrongs: Gayatri Chakravorty Spivak
Part Two: An American Interlude
5. Human Rights, Rationality and Sentimentality: Richard Rorty
6. ‘The Most We Can Hope For . . .’: Human Rights and the Politics of Fatalism: Wendy Brown
Part Three: Post-Althusserian Perspectives
7. Against Human Rights: Slavoj Žižek
8. Who Is the Subject of the Rights of Man?: Jacques Rancière
9. Wronging Rights? Re-evaluating the Alternatives: Aakash Singh Rathore
About the Editors
Notes on Contributors

Citation preview

Wronging Rights?

ii Wronging Rights?

Ethics, Human Rights and Global Political Thought Series Editors: Sebastiano Maffettone, Luiss University, Rome. Aakash Singh Rathore, Luiss University, Rome. Whereas the interrelation of ethics and political thought has been recognized since the dawn of political reflection, over the last sixty years — roughly since the United Nation’s Universal Declaration of Human Rights — we have witnessed a particularly turbulent process of dilating, indeed globalizing, the coverage and application of that interrelation. At the very instant the decolonized globe consolidated the universality of the sovereign nation-state, that sovereignty — and the political thought that grounded it — was eroded and outstripped, not as in eras past, by imperial conquest and instruments of war, but rather by instruments of peace (charters, declarations, treaties, conventions), and instruments of commerce and communication (multinational enterprises, international media, global aviation and transport, internet technologies). Has political theory kept apace with global political realities? Can ethical reflection illuminate the murky challenges of real global politics? Ethics, Human Rights, and Global Political Thought addresses these crucial questions by bringing together outstanding monographs and anthologies that deal with the intersection of normative theorizing and political realities with a global focus. The volumes in the series discuss key aspects of the contemporary chiasmus of the local and the global, cultural norms and normative demands, social movements and global justice, folkways and human rights, poverty and sustainability, rural realities and the cosmopolitan hyperreal. Treating diverse topics by means of interdisciplinary techniques — including ethics and applied philosophy, political theory, international relations and human rights theories, international political economy, and theories of globalization, including postcolonial studies — all of the books in the series will illuminate the nature of the global impact of local or regional phenomena, and vice versa. The series aims to meet the research needs of all those interested in in-depth, expert research on the most urgent normative dilemmas raised by globalization. Presenting up-to-date research, it is an easily accessible, practical yet scholarly source of information for researchers. It uniquely provides perspectives from all the major social science disciplines and covers all the world regions. The series will prove of great relevance to scholars, educators and students, as well as politicians, policy makers and government officials.

Wronging Rights? Philosophical Challenges for Human Rights

Editors Aakash Singh Rathore Alex Cistelecan


First published 2011 in India by Routledge 912 Tolstoy House, 15–17 Tolstoy Marg, Connaught Place, New Delhi 110 001

Simultaneously published in the UK by Routledge 2 Park Square, Milton Park, Abingdon, OX14 4RN

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2011 Aakash Singh Rathore and Alex Cistelecan

Typeset by Star Compugraphics Private Limited D–156, Second Floor Sector 7, Noida 201 301

Printed and bound in India by Sanat Printers 312, EPIP, Kundli Sonepat 131 028, Haryana

All rights reserved. No part of this book may be 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 and retrieval system without permission in writing from the publishers.

British Library Cataloguing-in-Publication Data A catalogue record of this book is available from the British Library

ISBN: 978-0-415-61529-7

Contents Acknowledgements


INTRODUCTION 1. Which Critique of Human Rights? Evaluating the Postcolonial and the Post-Althusserian Alternatives Alex Cistelecan


PART ONE: POSTCOLONIAL PERSPECTIVES 2. Human Rights in the 21st Century: Take a Walk on the Dark Side Ratna Kapur


3. Critiquing Rights: The Politics of Identity and Difference Upendra Baxi


4. Righting Wrongs Gayatri Chakravorty Spivak


PART TWO: AN AMERICAN INTERLUDE 5. Human Rights, Rationality and Sentimentality Richard Rorty 6. ‘The Most We Can Hope For . . .’: Human Rights and the Politics of Fatalism Wendy Brown





vi Wronging Rights?

8. Who Is the Subject of the Rights of Man? Jacques Rancière


CONCLUSION 9. Wronging Rights? Re-evaluating the Alternatives Aakash Singh Rathore


About the Editors Notes on Contributors Index

207 209 211

Acknowledgements T he

editors are grateful to the following for their kind permission to reprint these articles in the present volume: The Sidney Law Review for Ratna Kapur’s ‘Human Rights in the 21st Century: Take a Walk on the Dark Side’, 2006, 28: 665–88. Oxford University Press, New Delhi, for Upendra Baxi’s ‘Critiquing Rights: Politics of Identity and Difference’, from his The Future of Human Rights, 2002, 115–59. Gayatri Chakravorty Spivak, for the use of a substantially abridged version of her essay ‘Righting Wrongs’. Belgrade Circle Journal, for Richard Rorty’s ‘Human Rights, Rationality, and Sentimentality’, Issue 3, http:// www.usm.maine.edu/bcj/issues/three/rorty.html (accessed 3 August 2010). Duke University Press, for Wendy Brown’s ‘ “The Most We Can Hope For”: Human Rights and the Politics of Fatalism’, and for Jacques Rancière’s ‘Who Is the Subject of the Rights of Man?’ South Atlantic Quarterly, Spring/Summer 2004, 103(2–3): 451–63 and 297–310 respectively. New Left Review and Slavoj Žižek for the use of his ‘Against Human Rights’, July–August 2005, 34: 115–31.


1 Which Critique of Human Rights? Evaluating the Postcolonial and the Post-Althusserian Alternatives Alex Cistelecan

In a short pamphlet written in 1808 bearing the title ‘Who Thinks Abstractly?’ Hegel joined the contemporary debates concerning the importance of the recent French Revolution. His position basically reverts the arguments advanced by the German nationalists and by various conservatives like Joseph de Maistre or Edmund Burke. While these authors accuse the abstraction of the French principles (equality, liberty, etc.) and oppose to it the richness of the local customs, traditions and common sense, Hegel argues that, on the contrary, it is common sense and the common people who think abstractly, while the presumably abstract principles of the French Revolution open up the space in which a concrete understanding of human nature can take place. In today’s world, one could say that the legacy of human rights is in need of a similar Hegelian reversal. Nowadays, the general trend regarding human rights consists of a constant attack on the formal, empty, abstract nature of the declaration of human rights, and an emphasis on the possible alternatives to it, namely, the plural, rich, vivid, authentic particular cultures, narratives, situations. To put it in Hegelian terms, this contemporary trend could be accounted as demanding a necessary passage from ‘abstract right’ to ‘morality’ — where morality is to be understood as the sphere of the particular will, with its centring on identity, intention, demand and the ‘ought-to-be’. If one were to push the structural comparison further, two more similarities between the Hegelian framework and today’s debate on human rights would appear: in Hegel’s Philosophy of Right, the moment of abstract

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right is surpassed through the inherent contradictions of right, manifested in ‘non-malicious wrong, fraud, and crime’. In all cases, the particular will, through its opposition to abstract right, reveals the universality of the latter as being only contingent, unstable, arbitrarily coercive. Not incidentally, most of the contemporary critiques of human rights can be accounted for under these Hegelian categories — to paraphrase Kojève, it is as if all the current approaches to human rights could be exhaustively divided into left Hegelianism or right Hegelianism. Furthermore, in the same way as in Hegel’s Philosophy of Right, it is the moment of fraud and crime (as the inherent failure of abstract right), paradoxically, which triggers the development towards morality and acts as the catalyst of the good. Similarly, in contemporary accounts of human rights, it is the inherent contradiction of rights — which has exploded recently in the phenomena of humanitarian wars and democratic exclusions — which seems to drive the need for a similar urgent supplement of morality. However, not all critique of the abstract nature of rights has to lead in a moralizing direction. In what follows, I will discuss two of the inherent tensions in the sphere of abstract rights that have of late been unmasked or confirmed: the one between the formal object of human rights and their actual bearers, and the one between the position from which the discourse of human rights is enunciated (or criticized) and those in the name of which it is being proffered. I will start by analyzing these critiques in the work of the three postcolonialist thinkers whose works appear as Part I of this volume — Ratna Kapur, Upendra Baxi, Gayatri Chakravorty Spivak — and then I will evaluate them through the lenses provided by the two approaches of Rancière and Žižek that I will call post-Althusserian, covered in Part III of this volume. My thesis is that while the postcolonialist discourse tends to move from this critique of the contradictions of abstract rights to a demand of morality (under any of its guises, which we will see later), the post-Althusserian group seems to point towards a different way out, and reproposes the abstraction of rights with all its contradictions as symbolic efficiency and as the only way of ‘tarrying with the negative’

Evaluating the Postcolonial and Post-Althusserian Alternatives


of politics. So as not to exclude the American interlude (Part II of this volume) from this introduction, some mention will also be made of the critiques of Rorty and Brown, and an attempt will be made to map their work in relation to the postcolonialists and post-Althusserians.

I In Chapter Two, ‘Human Rights in the 21st Century: Take a Walk on the Dark Side’, Ratna Kapur argues that ‘assertions about the universality of human rights simply deny the reality of those whom they claim to represent and speak for, disclaiming their histories and imposing another’s through a hegemonizing move’ (this volume, Chapter Two, p. 36). The abstract universality of human rights is, in fact, a ‘discriminatory universality’, and one can see this in all the attempts of the West to relate to its other. There are three such attempts, and they are all equally discriminatory: ‘The first is through the assumption that the difference can be erased and the “Other” tamed and assimilated through some form of cultural or racial strip. The second is to treat the difference as natural and inevitable. And finally, there is the response that justifies incarceration, internment or even annihilation of the “Other” . . . ’ (this volume, Chapter Two, p. 36). So assimilation, tolerance, or violent rejection — in all its logical possibilities, the proclaimed universality is discriminatory. Hence, one is led to assume that for Kapur the only non-discriminatory universalism would be a non-mediated particularism. According to Kapur, the problematic gap between the assertions of rights and ‘those whom it claims to represent and speak for’ can only be reduced by the ‘centring of excluded subjects, excluded zones and excluded histories’ (this volume, Chapter Two, p. 55). The story of human rights must ‘be told from the perspective of transnational migrants’, for example, because of the ‘urgency of re-reading human rights from alternative locations, the excluded zones or from the perspective of excluded subjects’ (this volume, Chapter Two, p. 51). As Kapur puts it emphatically, they — the excluded ones — are ‘the creditors’ (this volume, Chapter Two, p. 53). Unless the West


Alex Cistelecan

opens the door, repays its debt of ‘cultural erasure’ and allows them to tell the story as it really is, that is, from their own perspective, there is no chance to ‘put some life back into a project in desperate need of resuscitation and to give this body [the legacy of human rights] a soul’ (this volume, Chapter Two, p. 55). With Upendra Baxi (Chapter Three) the case is more complicated. And yet the urgency of the passage from abstract right to morality, or the need to ‘put some life’ into the project of human rights, to ‘give this body a soul’ is also discernible in his writings. The starting point is, for Upendra Baxi, rather similar to Ratna Kapur’s: the modern conception of human rights was based on the ‘discursive devices of Enlightenment’, which were in fact ‘devices of exclusion’ (Baxi 2002: 29). The passage from modern human rights to contemporary human rights is a passage from an exclusionary to an inclusionary approach, which is accomplished by ‘taking suffering seriously’: ‘No phrase except a romantic one — the revolution in human sensibility — marks the passage’ from the first to the second. In a truly dialectical move, Baxi claims that the previous, formal and abstract conception of human rights was in fact ‘essentialist’; while the contemporary one, based on the fetishization of pain and on the direct access to difference, is not (ibid.: 79). The unending task that lies ahead of us is, for Baxi, ‘one of humanizing human rights, going beyond rarefied discourse . . . to histories of individual and collective hurt . . . To give language to pain, to experience the pain of the Other inside you, remains the task, always, of human rights narratology (this volume, Chapter Three, p. 76).’ Following the terminology developed by Baxi in his Human Rights in a Posthuman World, one could say that he is moving here dangerously from a sort of resistance to theory/resistance as theory to a clear cut case of aversion to theory (Baxi 2007: Chapter One). With Gayatri Chakravorty Spivak, the case becomes yet further complicated. As a deconstructionist, Spivak knows very well that there’s no direct and innocent access to alterity, that the subaltern cannot just simply start talking, that there’s no immaculate self-presence of the subject which

Evaluating the Postcolonial and Post-Althusserian Alternatives


could simply replace or refill the abstract discursive frame. But this is precisely why her approach to human rights in Chapter Four, ‘Righting Wrongs’, is even more interesting. Spivak is perfectly aware that there is a certain tension between, on the one hand, the need to give a soul to the body and replace the abstract rights with morality (or, in her own terms, the need to effect the passage from rights to responsibility to the Other) and, on the other hand, her own theoretical deconstructionist background. And yet, Spivak attempts to solve this potential conflict not through the infusion of a sort of theoretical scepticism in the project of responsibility to the Other (after all, ‘il n’y a pas de hors texte’), but rather through the suspension of this theoretical background as such. Witness her repeated confessions that the suffering of the rural poor of the global South is impossible to translate in the language of academic theory and scholarly research: ‘writing this piece has almost convinced me that I was correct in thinking that I should not make it part of my academic discourse’; or, ‘I am not able to give scholarly information. . . . I do not usually write about this activity’; or, ‘I leave this essay with the sense that the material about the rural teaching is not in the acceptable mode of information retrieval. The difficulty is in the discontinuous divide between those who right wrongs and those who are wronged’ (this volume, Chapter Four, p. 102). For Spivak, the discontinuous divide between those who right wrongs and those who are wronged is such that the suffering of the latter cannot be translated into the language of the former. But this radical divide is, according to Spivak, inherent in the very project of human rights, which is why the project of human rights is nothing but a kind of ‘social Darwinism’: ‘“Human rights” is not only about having or claiming a right or a set of rights; it is also about righting wrongs, about being the dispenser of these rights. The idea of human rights [carries within itself the idea that] the fittest must shoulder the burden of righting the wrongs of the unfit’ (this volume, Chapter Four, p. 79). For Spivak, the only chance to correct this structural injustice of human rights is through the appeal to responsibility, which is an ‘antonym of right’ and whose possibility is ‘underived from rights’

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(this volume, Chapter Four, p. 88). The responsibility approach is a miraculous process in which the dispenser of rights learns directly from the subaltern, and in which the educator as educated takes the form of humanities teaching. ‘This is the different way of epistemic access, this the teacher’s apprenticeship as suturer or invisible mender’ (Spivak 2004: 559). Obviously, in the end, this alternative or supple-mentary project remains virtually untranslatable and almost impossible to communicate: it is just a ‘licensed lunacy in the name of the unnamable other’ (this volume, Chapter Four, p. 103). Of course, although we group all these authors together into Part I under the rubric ‘postcolonialist’, the different places and importance that each of them assigns to their analysis of human rights within the framework of their own theoretical practice generates relevant differences between these accounts. For Baxi, for example, the endured research on human rights revealed a complex and multidimensional reality, marked by various irreducible tensions (universalization vs globalization; politics for human rights vs politics of human rights, etc.), which allows for a rich set of possible theoretical point of views. For Kapur, the re-evaluation of human rights is rather an extension of her theoretical critique from the perspective of feminism and postcolonialism. While for Spivak, as we have already seen, the topic of human rights imposes itself more like an exception to her usual academic research. However, what is common in all these three approaches to human rights is the dialectic that takes place between the two tensions that I mentioned in the beginning: the full particular identity of the Western male (the presumed subject of enunciation) is, apparently, fully transposed in the essentialist traits of the subject of the rights of man (the subject of the enunciated), and so the particularity of the former is just barely concealed under the proclaimed universality of the latter; consequently, the fallacious universality of the subject of the enunciated denies and precludes the full particularity of the real referent — the excluded ones. The underlining assumptions to all this narrative seem to be a curious

Evaluating the Postcolonial and Post-Althusserian Alternatives


combination of utmost confidence in language (or representation), and utmost distrust of it. On the one hand, on the Western side of human rights, language has absolute power, or, to put it better, it is a perfectly docile and passive channel of expression; through the declaration of so-called universal rights, the particular identity of the Western male is simply transposed in a different (and deceiving) form. On the other hand, in the non-Western world, language seems to be almost useless: the particular suffering of the excluded is readable only as long as it is not translated into the abstract frame of human rights. But, as Derrida used to claim, the simple reversal of metaphysics remains metaphysics, and the two seemingly opposed views (language as innocent channel of expression or as an obstacle to genuine communication) turn out to share the same premise. This fact is visible in the postcolonialists’ idea according to which as soon as the excluded would occupy simultaneously the positions of the subject of enunciation, subject of the enunciated and referent, and as soon as we would start to listen without pretending to understand and translate, their demands would be audible in what the early Lacan would have called ‘parole pleine’. Except that it is a pre-linguistic ‘parole pleine’. More like a sigh. Paradoxically, the three postcolonialists thus seem to be obliged to suspend language in order to make room for undisturbed communication. Words may lie and deceive, but affects don’t. This dream of nondisturbed self-transparency and self-expression beyond language remains a truly Cartesian utopia. There is no trace of false consciousness in it. Ideology or alienation seem to be operative only in the West, and even here they seem to be more like a deliberate process of camouflage than a political unconscious. As Richard T. Ford has rightly pointed out in a critique of the politics of identity, which can be extended here to also address this postcolonialist discourse, there is a sort of distortion in this approach to culture and difference, which puts all the emphasis on non-recognition versus (self )recognition, but leaves out the whole problem of (self )misrecognition (Ford 2002). Trauma and pain stand here as the infallible index of truth. Language is no longer necessary; its task of expressing and transposing the

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essence of the Other is much better accomplished by the pre-linguistic channel of compassion and empathy. To push this critique even further, one should notice, with Žižek, that ‘colonization was never simply the imposition of Western values, the assimilation of the Oriental and other Others to the European Sameness; it was always also the search for the lost spiritual innocence of our own civilization’ (Žižek 2001: 67–68). From this perspective, Kapur’s suggestion that we should treat the excluded ones as our ‘creditors’, or Baxi’s idea that we should effect a ‘revolution in human sensibility’ by turning our ears to the stories of suffering from the global South are not so much ways to break free from the colonialist legacy, but rather a way to prolong or fulfil it. The postcolonialist particularist resistance in the name of the genuine authenticity of the ‘bon sauvage’ is already inscribed in the colonialist discourse; as we will see later, it is its obverse, the retroactive illusion of a fatal loss of particular substance, an illusion which is spontaneously generated by the imposition of the abstract universal frame.

II But the problem is not just about a misconception of the nature and efficiency of language — it also regards the practical consequences that derive from it. Since any reversal of metaphysics remains metaphysics, there is no coinci-dence in the fact that, as much as the postcolonialists would disagree, their approach to human rights shares an essential trait with the liberal approach of thinkers like Richard Rorty (this volume, Chapter Five, pp. 107–31) or Michael Ignatieff (2001). In their anti-foundational approaches to human rights, both Rorty and Ignatieff argue that universal human rights are not to be based on a belief in a ‘metaphysical’ idea of human rationality, but on a pragmatic idea of sensibility to cruelty. Although they both try to hold on to crucial ingredients from the original project of human rights (the Enlightenment utopia for Rorty, its universalism for Ignatieff), the way to achieve these goals is, for Rorty and Ignatieff, by discarding the maximalist claims to human nature and universally

Evaluating the Postcolonial and Post-Althusserian Alternatives


shared rationality and by replacing them with ‘the most we can hope for’ — a minimalist account of resistance to cruelty. In both cases, this shift towards minimalism and sentimentalism is grounded on a pragmatic basis: as Rorty argues in Chapter Five, ‘the best, and probably the only, argument for putting foundationalism behind us is [that] it would be more efficient to do so, because it would let us concentrate our energies on manipulating sentiments, on sentimental education’ (this volume, Chapter Five, p. 118). At first sight, the sentimental education seems to do the whole job: ‘Producing generations of nice, tolerant, well-off, secure, other-respecting students of this sort in all parts of the world is just what is needed — indeed all that is needed — to achieve an Enlightenment utopia’ (this volume, Chapter Five, p. 123). At a more careful inspection, the shared sensibility to cruelty is not the only necessary ingredient, since it has a condition of possibility of its own: security. ‘Security and sympathy go together, for the same reasons that peace and economic productivity go together’ (this volume, Chapter Five, p. 124). As it turns out, the sentimental education, as vital as it is, is only the moral superstructure that drags along the even more vital base, namely, the shared peace and security of our shared mode of production. From this perspective, the critique that Wendy Brown lays out in Chapter Six against Ignatieff’s account of human rights can easily be extended to also apply to Rorty’s. There are three major critiques that Wendy Brown formulates in her contribution. First, human rights discourse, as imagined by Ignatieff, ‘not only aspires to be beyond politics (notwithstanding his own insistence that it is politics), but carries implicitly antipolitical aspirations for its subjects — that is, casts subjects as yearning to be free of politics and, indeed, of all collective determinations of ends’ (this volume, Chapter Six, p. 138). Second, human rights ‘are not simply rules and defences against power [as Ignatieff claims], but can themselves be tactics and vehicles of governance and domination’ (this volume, Chapter Six, p. 142). In the best case scenario, what they amount to is ‘a form of “empowerment” that fully equates empowerment with liberal individualism’ (this volume, Chapter Six, p. 137). And third, human rights are

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not just an innocent defensive tool attached to a pre-existing subject, but they actually produce the subject to whom they are assigned. ‘In its very promise to protect the individual against suffering and permit choice for individuals, human rights discourse produces a certain kind of subject in need of a certain kind of protection. . . . [T]he point is that there is no such thing as mere reduction of suffering or protection from abuse — the nature of the reduction or protection is itself productive of political subjects and political possibilities’ (this volume, Chapter Six, p. 143). Now, to get back to our starting point, it appears that what the three postcolonialists share with Rorty’s and Ignatieff’s accounts of human rights is a similar moralistic suspension of the political, and a shared confidence in the direct readability and relevance of immediate pain and suffering. But this minimalist suspension of the political generates its own politics. Hence, it is not just that the fetishizing of pain and otherness is inefficient with regards to the ‘discriminatory’ way in which the West, according to Kapur, has been relating to its other — assimilation, toleration, rejection — on the contrary, this fetishizing acts as the very condition of possibility of this discriminatory approach to otherness. Once we accept that the other’s pain is the untranslatable index of truth, there are only three options left: either we all join a spectacular global community of compassion and moral outrage, which, because of its unwillingness to sully itself in the dirty water of actual politics and universal principles, has to remain only a moral and noble supplement of the ‘really existing realism’; or, the West has to assume that it has to speak in the name of the other (humanitarian militarism); or, finally, the West will let its other speak while abandoning in shame any claim to understand it (fundamentalism). The three alternatives do not exclude each other; on the contrary, as the current state of affairs seems to prove, they are perfectly complementary.

III That is why I am tempted to propose here a different approach, which has been articulated lately by theorists such as Jacques Rancière and Slavoj Žižek. For starters, let us say

Evaluating the Postcolonial and Post-Althusserian Alternatives


that their vision of human rights seems to offer a possible way out of each of the three deadlocks that we detected in the postcolonialist framework. First, while the postcolonialists’ rejection of the Western abstraction of human rights gave place to a simple reversal of its presumed metaphysiscal assumptions, and the belief in the innocence of abstract representations was rejected simply to be reinvested in the direct readability of pain and suffering, Žižek and Rancière seem to start from a more dialectical point of view, which conceives of language as being neither passive and innocent, nor simply distorting, but as simultaneously the condition of possibility and impossibility of experience.1 Second, while the postcolonialists argue that the global South is the excluded creditor who could invest a supplement of soul and resuscitate the Western project of human rights — an idea which arguably preserves the very premise of the colonialist approach — Žižek’s and Rancière’s approach offers an alternative that we could dub ‘transgression through explicit immanence’:2 the way to resist the deliberate politics of domination pursued under the banner of universal rights is not by trying to delineate an irreducible outside to this discourse, but by confronting from the inside this politics with its own proclaimed principles. And finally, the ‘practical’ aporia: as long as the West and the rest are conceived, as it happens in the postcolonialist discourse, as two enclosed, self-standing and self-sufficient entities (two substances), their relation can indeed be only one of assimilation, The critique that Costas Douzinas addresses in The End of Human Rights (2000) to what he calls ‘Lacanian’ accounts of human rights is, for what concerns Žižek and Rancière here, perfectly accurate: they do seem to identify, in a very Lacanian manner, law (or, in our case, human rights) with language. However, this point is perhaps to be viewed not as an accusation, as the weakest point in their argumentation, but as their decisive wager: by conceiving the triad subjectivization-politicization-universality in such a tight manner, and by defining human rights as the essential operator of this triad, they do seem to equate the interpellation of human rights with a sort of symbolic castration. Thus being the case, the alternative is only, as Lacan used to say, le père ou pire. 2 I borrow the expression coined by Robert Pfaller (1998). 1

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tolerance, or rejection. The alternative offered by Žižek and Rancière consists here in passing from substance to subject: the reason why the West and its other can relate to each other otherwise than in the manner of swallowing one another, or nervously coexisting with the other, or violently annihilating one another is because these instances are not self-standing positive substances, but political subjects, hence split from the inside, and irremediably non-identical with themselves. From this perspective, as we will see later, human rights are precisely the symbolico-political device whose effect is an internal split inside each of these ‘substances’, and a shared non-identity with itself. Hence, their universality is not based on a positive identity, a presumed human nature shared by all human beings. Their universality is a negative space, which consists in the very non-identity with itself of the particular. Let us now take a closer look at Žižek’s and Rancière’s proposals. Just like the postcolonialists discussed earlier, Slavoj Žižek begins Chapter Seven, his reappraisal of the legacy of human rights, with a ruthless critique. However, instead of criticizing the distorted abstraction that these rights represent, Žižek directs his attacks exactly in the opposite direction, namely, against the ‘morality’ that recent approaches try to infuse in the abstract frame of these rights. This re-naturalization of the subject’s particular condition leads to the consequence that the much praised ‘enlightened’ West begins to assume the traits of its presumed ‘fundamentalist’ Other. ‘What is effectively disappearing here is public life itself, in which one operates as a symbolic agent who cannot be reduced to a private individual, to a bundle of personal attributes, desires, traumas and idiosyncrasies’ (this volume, Chapter Seven, p. 151). The other target of Žižek’s critique is the very conceptual core of the morals of human rights, the notion of free choice, with its underlying belief in the undisturbed spontaneity and authenticity of the subject’s will. According to Žižek, in the consensual universe of naturalized particular beliefs, genuine free choice cannot be the simple and direct expression of the subject’s will and substantial identity: ‘a choice is always a meta-choice, a choice of the modality of the choice itself. . . . The subject of free choice can only emerge as the

Evaluating the Postcolonial and Post-Althusserian Alternatives


result of an extremely violent process of being uprooted from one’s particular life-world’ (this volume, Chapter Seven, p. 152). It is only with this violent gesture by means of which the individual extracts himself from his immediate life context and disrupts the organic unity of the social body that genuine universality, that is ‘universality for itself’, is generated. Inasmuch as the abstract frame of human rights provides precisely such a space for the universality for itself, it designates ‘the precise space of politicization proper. . . . What [human rights] amount to is the right to universality as such — the right of a political agent to assert its radical non-coincidence with itself, to posit itself as the “supernumerary” . . . and thus as an agent of universality of the social itself’ (this volume, Chapter Seven, p. 167). Before moving on to discuss the chapter of Jacques Rancière in this volume (Chapter Eight), we must situate his account of human rights into his broader conceptual framework, which is provided by the opposition between politics and police. While the police means, for Rancière, the imposition of a partition on the social body which assigns to each part its own ‘natural’ place, politics occur precisely when this natural partition is disturbed, when the harmonious consensus of the social body is shattered by the non-coincidence of each part with itself and by the imposition of disagreement [différend] as a community (Rancière 1995: 52–53). Human rights are an open site for both these possibilities: as an abstract inscription of formal equality, they provide the opening of an interval for political subjectivization; however, in their moralistic reappraisal which assigns to each part its right to assess its particularity and its own point of view, contemporary approaches to human rights seem to head in the opposite direction: ‘supposed efforts to make inequality explicit have rigidified it. For one thing, the making explicit of sociocultural difference has tended to turn that difference into destiny’ (Rancière 2007: 54). In Chapter Eight, ‘Who Is the Subject of the Rights of Man?’, Rancière tries to engage with a more sophisticated attempt to re-naturalize difference as irreducible: the tension between the formal universal bearer of human rights and his particular actual bearer, the non-coincidence between man and citizen, between bare life and political frame — a

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distinction which roughly corresponds to the one diagnosed by the postcolonialists, between an abstract frame of rights and the untranslatable suffering of the excluded. This opposition, while being rightly criticized by Hannah Arendt and, lately, Giorgio Agamben, runs nevertheless the risk of being hypostatized in their writings and turned into a new destiny.3 However, for Rancière, this distinction between man and citizen, between the subject of the enunciated and the real referent of human rights, is not the whole story: ‘the very difference between man and citizen is not a sign of disjunction proving that the rights are either void or tautological. It is the opening of an interval for political subjectivization’ (this volume, Chapter Eight, p. 176). Which means that, besides the two equally problematic alternatives delineated by Arendt and Agamben (human rights either as a tautology or as a void), there is a third possibility: ‘the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not’ (this volume, Chapter Eight, p. 174). But this radical non-coincidence with itself of the subject of human rights, which reveals the sphere of human rights as being a possible space of genuine political subjectivization, is not at all blocked by the abstract nature of rights, but, on the contrary, opened precisely by this formal inscription of equality and universality. ‘The strength of those rights lies in the back-and-forth movement between the first inscription of the right and the dissensual stage on which it is put to test’ (this volume, Chapter Eight, p. 178). It is this very abstract inscription of universal equality that discloses the political space in which each part can extract itself from its organic medium, affirm its non-coincidence with itself and claim a direct access to universality. 3 It must be mentioned that Rancière’s critique of Agamben throughout Chapter Eight (in fact, Agamben seems to be his main target here) is a bit odd. Far from being Agamben’s last word, the opposition between zoe and bios, between bare life and political life, is rather his constant object of critique. Witness the numerous grey zones of non-distinction and in-difference that Agamben uncovers all along his texts, and witness his concept of ‘form-of-life’ which is meant precisely to subvert the clear cut opposition between zoe and bios (cf. Agamben 1996).

Evaluating the Postcolonial and Post-Althusserian Alternatives


The first thing to be discerned regarding these two accounts is a curious one. In his Ticklish Subject, Slavoj Žižek noticed how the three major ex-pupils of Althusser (Badiou, Balibar, Rancière), in their respective theories of political subjectivization (the ‘Event’, the ‘egaliberté’, the ‘mèsentente’, respectively), basically inherit and revert in a positive way the structure of what Althusser criticized as ‘ideological interpellation’.4 According to Althusser’s account of the ideological state apparatuses, the subject does not pre-exist to the ideological interpellation but is, in fact, the correlative, or, more exactly, the effect of the ideological interpellation. However, the interpellation of individuals as ideological subjects does not take place simply through the identification of the latter with the ideological content.5 The very failure of the ideological identification is the measure of its success. In Althusser’s terms, this means that ‘the subject-function, which is a characteristic effect of ideological discourse, in turn requires, produces or induces . . . a characteristic effect, the unconscious-effect or the effect subject-of-theunconscious, that is, the peculiar structure which makes the discourse of the unconscious possible. The latter function makes it possible for the subject-function to be guaranteed amidst misrecognition’ (Althusser 2003: 53). In other terms, this splitting of the interpellated subject in ideological subject (which is, according to Althusser, present in person) and unconscious subject (which is present through the signifier’s representation) means that the subject’s resistance to the interpellation and his calling into question of the identity conferred on him by way of interpellation are necessary parts of the very interpellation. The subject’s disidentification with the ideological interpellation and his claim that he is more

Žižek (1999: 234). For Althusser’s theory of ideological interpellation, see Althusser (1976) and Althusser (2003). 5 In fact, there is no positive ideological content, since, for Althusser, the ideological interpellation acts in the manner of the police man shouting ‘hey, you, down there!’ — it asks the individual to identify himself while providing at the same time his identity cards. 4

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than this constitute, in fact, the proper functioning of the ideological interpellation — which is why, from this perspective, the postcolonialist’s claim that the Western interpellation misses the particularity of the global South is nothing but the necessary underside of the colonialist discourse, its ‘effet-sujet’. If we are to turn back now to Žižek’s and Rancière’s accounts of human rights, we should notice how, in spite of his own critical remarks regarding the presence of traces of the Althusserian ideological interpellation in the postAlthusserian’s theories of political subjectivization, Žižek is here joining the party of the post-Althusserians. In both his and Rancière’s theories, human rights can be accounted as a benefic ideological interpellation, as a way — the way — to interpellate natural individuals into political subjects, to uproot individuals from their particular life context and throw them into the open space of proper politics. And, in the same way in which, for Althusser, the ideological interpellation doesn’t carry with it any positive content, in the same way, in Žižek’s and Rancière’s accounts, human rights do not seem to imply any positive demand or entitlement: they are not just abstract, they are devoid of content, standing only as the pure enjoinder to universality. If this is how things stand, then it is imperative not to mistake Žižek’s and Rancière’s reappraisal of the universal principles of human rights for a sort of Habermasian belief in them as a privileged sphere of undisturbed communication. No, the human rights interpellation is profoundly disturbing, and this is precisely what is good about it. To put it in other terms: what is common in Žižek’s and Rancière’s accounts is that they both fully acknowledge the gaps that are present in the discourse on human rights between the subject of enunciation, subject of enunciated and real referent. But, instead of attempting to fill in the gaps and reduce these tensions, they recognize them as the site of the possible emancipatory potential that the human rights project carries within itself. It’s not that the abstract frame of human rights is not to be accused of hypocrisy, of attempting to conceal a particular privileged bearer of these rights (the Western male) under a presumed enunciated universality; it is rather that hypocrisy is, here, not only

Evaluating the Postcolonial and Post-Althusserian Alternatives


better than nothing, but even better than honesty. As the very split between a hidden intention and an open statement, between a particular referent and a universal subject of the enunciated, hypocrisy is not the last bastion of Western patriarchal values, but the first opening of the political universality. Hypocrisy thus falls victim to its own cunning intention: its very split is the proof of the Kantian power of the ‘publicity’ requirement, its very resistance to universality testifies that universality is already instituted. The technical name of this benefic hypocrisy is, of course, ‘symbolic efficiency’. Thus, Žižek’s and Rancière’s reappraisal of human rights as symbolic efficiency reverts the classic Marxian critique of the formal and abstract nature of democracy and human rights: the abstract nature of these principles is not to be simply discarded as an illusory cover up of its dark side of exploitation and class domination; on the contrary, the formal appearance of abstract universality has already an efficacy of its own. The material effect of this abstract inscription is no less than the opening of the political space of subjectivization, or of the subjective space of politicization: it generates the non-identity between an element and itself, which is — much more than the naturalized cultural differences between various parts of the social body which can be always negotiated and rebalanced in a new organic unity — the proper political dimension. Hence, the constant emphasis in both Žižek and Rancière on subjectivization instead of subject, on dynamic noncoincidence instead of respect for identity. Sure, as the postcolonialists rightly point out, there is always a sort of symbolic deficiency, the abstract frame of human rights and, in general, of political representation is always alienating, distorting the substantial identity of the individual, not just for structural reasons, but also for deliberate ones. But by simply trying to replace or supplement this formal frame of human rights with presumably non-vitiated forms of direct access to pain and otherness, by attempting to fill in the negative space of politics with the positive identities of the victims, the three postcolonialists seem to fall prey to what Hegel would have called genuine abstract thinking — even more, the most spontaneous kind of abstract thinking: sense-certainty.


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So, instead of throwing away the formal inscription of universality with the dirty water of the actual politics of exclusion, perhaps we should hold on to the former as the only chance to fight the latter. To paraphrase Lacan, ‘le symbolique sait recouvrir la dette qu’il engendre’, the symbolic knows how to repay the debt that it engenders.

References Agamben, Giorgio. 1996. Mezzi Senza Fine, Bollati Boringhieri, Torino. Althusser, Louis. 1976. ‘Idéologie et Appareils Idéologiques d’état’, in Positions (1964–1975), Editions Sociales, Paris, 67–125. ———. 2003. ‘Three Notes on the Theory of Discourses’, in The Humanist Controversy and Other Writings (1966–1967), translated by G. M. Goshgarian, Verso, London and New York. Baxi, Upendra. 2002. The Future of Human Rights, Oxford University Press, New Delhi. ———. 2007. Human Rights in a Posthuman World, Oxford University Press, New Delhi. Douzinas, Costas. 2000. The End of Human Rights, Hart Publishing, Oxford. Ford, Richard T. 2002. ‘Beyond “Difference”: A Reluctant Critique of Legal Identity Politics’, in Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique, Duke University Press, Durham and London, 38–79. Ignatieff, Michael. 2001. Human Rights as Politics and Idolatry, Princeton University Press. Princeton and Oxford. Pfaller, Robert. 1998. ‘Negation and its Reliabilities: An Empty Subject for Ideology?’, in Slavoj Žižek (ed.), Cogito and the Unconscious, Duke University Press, Durham and London, 225–46. Rancière, Jacques. 1995. La Mèsentente. Politique et Philosophie, Galilée, Paris. ———. 2007. On the Shores of the Political, Verso, London and New York. Spivak, Gayatri Chakravorty. 2004. ‘Righting Wrongs’, South Atlantic Quarterly 103(2–3): 523–81. Žižek, Slavoj. 1999. The Ticklish Subject: The Absent Centre of Political Ontology, Verso, London and New York. ———. 2001. On Belief, Routledge, London and New York.


2 Human Rights in the 21st Century: Take a Walk on the Dark Side Ratna Kapur

We have witnessed an extraordinary proliferation of human rights law in the course of the 20th century and the beginning of this millennium. Contrary to popular belief, business is booming at the United Nations, with its entourage of resolutions, declarations and conventions that now deal with a broad range of abuses across the globe — including racial discrimination, women’s rights to equality, the rights of children, and the rights of indigenous groups — all aided and abetted by non-governmental organizations, including faithbased groups, women’s groups and other social justice initiatives. There is a sense that the international community is dealing with these ‘problems’ seriously and handling them with great speed and efficacy. Yet, the outward sense of progress, of something being done, of a social justice project being pursued in the name of human rights, is emerging as a somewhat disingenuous and illusory endeavour. The record of human rights since their proclamation in the 18th century has been less than stellar. Indeed, the legal interventions that have been pursued in the name of human rights are perhaps the most explicit examples we have to date of how the assumptions that more law equals more equality and freedom, and that human rights is an optimistic and hopeful pursuit, are quite mistaken. In fact, the proliferation of laws in the name of human rights serves at times to remind us how our good intentions, passions and progressive ‘swords may have turned into boomerangs’ (Halley and Brown 2002: 4). The human rights promise of progress, emancipation and universalism, has been exposed

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as myopic, exclusive and informed by a series of global panics; especially a panic over national security, sexual morality, and cultural survival in the contemporary period. What happened to the dissidence and rebellious spirit of human rights? How has a project that held out the promise of a grand spicy fete mutated into an insipid appetizer? In this essay, I unpack three normative claims on which the human rights project is based and expose its dark side.1 In the first section, I set out the larger context within which human rights has taken shape, especially the claim that human rights is part of modernity’s narrative of progress — that is, human rights represents a step forward in the progress of human development and civilizational maturity. In the second part, I interrogate the assumption that human rights are universal, challenging its dehistoricized, neutral and inclusive claims. In the third part, I examine the atomized,

1 My focus on three normative claims is not exhaustive. There are a number of other concerns about the field that are not addressed in this essay: see, for example, Kennedy (2004). Kennedy lists a host of other pragmatic worries regarding the field. Some of these include: a critique of the way in which human rights has come to occupy the space of emancipatory possibilities, and also effectively marginalize any other emancipatory projects; the narrow focus of human rights on the state, leaving the severe harms produced by non-state actors unaddressed; the generalizing vocabulary of human rights which papers over political, ideological and cultural differences; promoting a ‘one size fits all’ politics; centring the relationship between the state and individual, equating the structure of the state, which enforces, grants, recognizes, implements and remedies violations, with freedom; and the false sense of satisfaction that emerges when the building of a human rights movement comes to be equated with the human rights project. He states that signing up to the cause does not bring an end to the practice. Some scholars have argued that human rights are an inherently conservative discourse that enables the violence of development to continue legitimately, failing or lacking the ability to bring about redistributive consequences by challenging the dominant economic and political paradigm of development. Instead, human rights merely controls and orders resistance to that violence. See Rajagopal (2003: 28).

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insular liberal subject on which the human rights project is based and its correlating assumptions about the ‘Other’, who needs to be cabined or contained lest she destabilizes or undermines this subject. In the final part of the essay, I make some tentative proposals as to how we can engage with human rights once their dark side is exposed. As a back drop to this essay, I refer to Philip Noyce’s 2002 feature film, Rabbit-Proof Fence. The film relates the story of three young Aboriginal girls — Molly, Daisy and Gracie — who escape from an internment camp at the Moon River Native Settlement where Auber Neville, the chief protector for the Aborigine populace, detains them as wards of the state. The internment camp represents the panic on the part of the Australian state in the early 20th century over the impending disaster resulting from the proliferation of an ‘unwanted third race’ — the ‘half-caste’ Aboriginal children. The fear results in the promulgation of special laws for the forcible removal of ‘half-caste’ children from their families, and internment in detention centres to keep them from ‘contaminating’ the rest of Australian society. In the celluloid representation of this fear, the children at the camp are to be bred into white Christian families until the ‘native’ is fully assimilated and all traces of ‘colour’ and racial markings erased. But ‘half-casts’ like Molly remained unassimilable — her skin colour too dark to dilute even if it was put through three generations of breeding. The girls undertake an epic journey of 2,000 km across the formidable deserts of Australia to find their way back home to Jigalong by following the rabbit-proof fence that stretches across the outback. Their tortuous journey is intercut with shots of an increasingly desperate, red-faced Neville seeking out ways of recapturing the girls, returning them to Moon River and containing the contaminant. In real life, the process of reconciliation and healing for the ‘Stolen Generation’ has ostensibly been partly brought about by ‘Bringing Them Home’, a report produced by the Australian Human Rights and Equal Opportunity Commission. The report was based on the testimony of victims, documenting the events and human rights violations that resulted from


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the policy of ‘breeding out’ the ‘half-caste’ Aborigine.2 It concluded that the policy of forcible removal, pursued from 1910 to 1970, constituted genocide and recommended the payment of reparations, the provision of services for the affected persons, and the enactment of new laws in the area of child welfare, family law and juvenile justice. The process of recuperating the traumatized, alienated subjects of the past into the liberal democratic state through the discourse of human rights represents the metamorphosis of a racist state into one that is caring and compassionate (Orford 2005). Human rights become a site for reconciling moments of rupture and exclusion, and bringing the past into sync with the norms and values of liberalism, rather than bringing about a deeper interrogation of those norms and values. However, the release of Rabbit-Proof Fence in 2002 disrupts this attempt at tidy closure and a sense of moving on. Screened at a time when the war on terror, the overarching concern with the security of the nation-state and the sovereign subject was (and remains) dominant, celluloid serves to remind the spectator of the new exclusions being produced in the contemporary moment by the liberal democratic state and the beckoning need for a closer scrutiny of the central premises that constitute the human rights project. I take inspiration from Julius Stone’s sociological interpretation of international law to diagnose the dark side of human rights and engage with the assumptions and

Human Rights and Equal Opportunity Commission (1997). The terms of reference directed the Commission to examine the effects of ‘past laws, practices and policies which resulted in the separation of Aboriginal and Torres Strait Islander children from their families by compulsion, duress or undue influence’. It was also directed to look at the adequacy of services and procedures available to people affected by such separation; the principles for determining the compensation for those affected by these laws and policies; and whether existing laws, practices and policies dealing with the placement and care of Aboriginal and Torres Strait Islander children adhered to the principle of self-determination. See also, Orford (2005). 2

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tensions that underscore the project.3 My own location as a postcolonial feminist legal thinker prompts me to impact and subvert the terrain of human rights, while at the same time, as a practitioner, to reformulate, rather than abandon, rights as a tool to bring about transformation in the lives of those who are excluded from their ambit. I explore the possible ways in which both of these desires — though on their face antagonistic — can be reconciled so as to avoid the traps of mainstreaming that can sanitize the discourse, and at the same time ensure that a critique of the discourse does not become irrelevant.

Narrative of Progress The establishment of human rights in the mid-20th century as part of a modern project of international institutions was a critical moment. It brought into being the possibility that states could no longer shelter behind the fig leaf of sovereignty for violations committed against individuals. State sovereignty could be cast aside and a state’s acts subjected to human rights scrutiny. It was a new form of interventionism that emboldened the liberal internationalist and his or her belief in the virtue of law and principle of universality. Human rights marked a point of arrival — a step in the progress of human development. This belief in the transformative and progressive potential of human rights is contingent on an assumption that we have, as a civilized world, moved forward, and that the coming together of nation-states in the recognition of universal human rights is a critical part of the liberal project that seeks to advance individual rights and human desires. It is a

3 See, for example, Stone (1966). Stone describes law as an instrument of social control for achieving justice. He rejected a purely analytical approach to legal positivism and focused on the ways judges arrived at considerations of legal policy and principle, as well as the legal authorities that influenced their decisions. His work was deeply influenced by his own social context, in particular his Jewish identity, the treatment of Jews in Nazi Germany and his Zionist inclinations. See Star (1992).

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narrative that is driven by a persistent belief that history has a purpose and direction coupled with an assumption that the world has emerged from a backward, more uncivilized era. Indeed, it reflects the metamorphosis of civilization from the primitive, into a modern and evolved form, and this progress has emanated from the heart of Europe.4 It has mostly been achieved except in some of the outposts of the empire. This new emboldened project has received a major impetus in the post–Cold War era in the form of liberal internationalism, which no longer faces any ideological resistance. A veneration of these ideals and hubris born of the profound belief in this justice-seeking project have come to characterize the practice in the field. There is a real earnestness on the part of well-intentioned activists, practitioners, judges and even politicians that they are pursuing a progressive, even righteous, goal. Those who do not necessarily regard human rights as such a neat and tidy project — as a project that is progressive let alone transformative — have challenged this narrative of progress. The view that the international recognition of human rights marks an end to an ignorant past and enables the realization of freedom and equality is challenged as empirically and theoretically flawed: in purely factual terms more human rights violations have been committed in the 20th century, which was ostensibly the most human rights focused century, than at any other point in human history (Douzinas 2000: 2). As the late Jacques Derrida stated, ‘[n]o degree of progress allows one to ignore that never before in absolute figures, have so many men, women and children been subjugated, starved or exterminated on earth’ (Derrida 1994: 85 quoted in Douzinas 2000). And it continues. There is a dark side to human rights work, which has been exposed by, amongst others, postcolonial scholars,

Brown (2001: 10). While human rights emerged partly as a response to the ‘barbarism within Europe’ during World War II, the focus here is on the implications of this project when conceived in universal terms for those who remained under, or were emerging from colonial subjugation. 4

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feminists and new scholars in international law (see, for example, Anghie et al. 2004; Berman 1999: 1515; Kennedy 2004: 3–36; Buss and Manji 2005; Nesiah 2003: 30; Otto 1996: 337; Orford 2003). These scholars have examined the costs of this work, revealing some of the resulting, often unanticipated damage done. What has emerged is how it is possible to read the virtuous script of human rights against the grain, to read another narrative into the story line that was, perhaps, never intended by those who inspired the project or to accord a meaning to it that counters or subverts any progressive reading it might have had. Original intent is invariably not knowable. But even if it was, and however well-intentioned it may have been, it does not necessarily continue to inform the constitutive basis of the human rights project — as progressive, emancipatory and liberating. As put by Kennedy, ‘virtue does not always move in the direction of the virtuous’ (Kennedy 2004: xix–xx). Perhaps partly because of these limitations, as well as the powerful hold that sovereignty continues to have on some nation-states, there is another more reactionary critique of human rights that has emerged. In its crude form, this critique views human rights as a corrosive tool that has eroded the legitimacy conferred or exercised through sovereignty, and threatened national and social cohesion. According to this view the era of historical progress and coherence has ceased, and we have entered the age of uncertainty and instability. Today the global flows of human beings across borders, immorality of sex, ‘bogus’ refugees, single-parent families, absence of faith, homosexuality and welfare mothers has in part brought about the demise of history and an end to progress. This position argues that legitimacy, security and social cohesion reside in the glories of the past and its certainties, which must be retrieved and the encroachments of human rights law on sovereignty arrested. We are indeed witnessing such ‘Golden Era’ narratives blossom across the world, most explicitly articulated in the rise of and everincreasing legitimacy of the agendas of the religious and conservative right, examples including the Hindu nationalists in India, the Christian evangelicals in the United States, the British National Party, Austrian Freedom Party, and the farright Danish People’s Party.

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In contrast to this deep opposition to the human rights project, a more sophisticated, nuanced position is emerging, which seeks to engage with human rights discourse to pursue a very reactionary and conservative agenda. For example, in his letter to women released on the eve of the Beijing Women’s Conference, in 1995, Pope John Paul II addressed the world’s women, thanking them and apologizing to them if the Catholic Church had contributed to their historical oppression.5 The Pope recognized that women had and continue to experience historical disadvantage, and called for: real equality in every area: equal pay for equal work, protection of working mothers, fairness in career advancements, equality of spouses with regard to family rights and the recognition of everything that is part of the rights and duties of citizens in a democratic state.6

In a similar vein, the Vatican has opposed violence against women, while at the same time distinguished its position from feminists by casting itself as a preserver of the family. The Pope’s statements have found popular support amongst women around the world, especially poor women in the global South. Similarly, Christian evangelicals have launched a global crusade against trafficking, more specifically sex trafficking, especially in the so-called ‘Third World’, as a critical arena of human rights concern (Shapiro 2004; Katayama 2005). The focus on ‘Third World’ women resonates with the ‘charitable’ instincts of evangelicals and ‘do good’ notions of saving the ‘wretched of the earth’. Although this instinct is not to be derided, it is the deeper political agenda of the evangelicals that is cause for alarm. These include their views on sexual integrity and the role of women in the family.7 See John Paul II, Letter to Women (June 29, 1995): (accessed on June 13, 2006). For a critical analysis of the strategies of the Vatican at the Beijing Women’s Conference, see Buss (1998: 339). 6 John Paul II, ibid. 7 For an insightful work on the role of the Christian Right in the international legal arena and women’s rights see Buss and Herman (2003). 5

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These responses exemplify how human rights are a contested terrain and not one that can simply be read in linear terms. I want to expand on this idea that human rights are an arena where different visions of the world are fought out and how this struggle is obscured in linear accounts of human rights. It is only through what Salman Rushdie has described as the ‘chutnification of history’ that the layered and complex narrative of human rights is revealed. This includes, for example, an excavation of how the discourse is permeated by imperial ambition, assertions about moral and civilizational superiority, as well as religious evangelicalism.8 In the contemporary period, there is an explicit example of this complex narrative in the context of the bombing of Afghanistan in October 2001. The attacks took place amidst a cacophony of claims by Western leaders that this was a ‘crusade’ against the ‘evil doers’, that ‘Western civilisation was superior to Islam’ and part of the war on terror, which according to one United States general was a ‘Christian battle against Satan’.9 These claims were wrapped in a strong, See Anne Orford (2002: 275) (on how feminist engagements with international law are reproducing some of the colonial underpinnings that characterize this field). See also Anghie et al. (2004). 9 Italian prime minister Silvio Berlusconi is reported to have ‘praised Western civilisation . . . as superior to that of the Islamic world and urged Europe to reconstitute itself on the basis of its Christian roots’ Erlanger (2001: A8). And Dick Cheney in his remarks on Meet the Press stated, ‘I think the world increasingly will understand that what we have here are a group of barbarians. . . . So it’s an attack not just upon the United States but upon, you know, civilised society. . . . We also have to work, though, sort of the dark side, if you will. . . . That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically to achieve our objective. And I think we have to recognise we are the strongest, most powerful nation on Earth.’ Meet The Press (NBC television broadcast, September 16, 2001). See also ‘US is Battling Satan Says Army General’ BBC News (UK edition) (October 17, 2003) at http:// news.bbc.co.uk/1/hi/world/ americas/3199212.stm (accessed on June 13, 2006) where US general Boykin remarked that the war on terror was a war against Satan; see also Blumenthal (2004). 8

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bold argument in favour of self-defence, including the right to pre-emptive strikes. Subsequently, as Vasuki Nesiah argues, there has been a subtle mutation of the discourse on the part of those countries which participated in the Afghanistan offensive, from self-defence to human rights, providing the tool for legitimizing the operation that had initially seemed so suspect.10 The muscle flexing and macho talk, the language of evil, darkness and Crusades that permeated the initial representation of the military conquest, came to be superseded by the gentler tones of women’s rights, peace, religious freedom and democracy that ultimately provided legitimacy for the intervention.11 In November 2001, after the bombing campaign was launched on Afghanistan, Laura Bush stated: Only the terrorists and the Taliban threaten to pull out women’s fingernails for wearing nail polish. The plight of women and children in Afghanistan is a matter of deliberate human cruelty, carried out by those who seek to intimidate and control. . . . Because of our recent military gains in much of Afghanistan, women are no longer imprisoned in their homes. They can listen to music and teach their daughters without fear of punishment.12

These words applied the gentle soothing balm of human rights over the pre-emptive attacks and ‘crusade’ against the ‘evil ones’.13 The sense of triumphalism, of human rights bringing the Afghan people into the modern age, was summed up in the utterly banal yet poignant remark of one US State 10 See Nesiah (2004: 75). Nesiah demonstrates how humanitarian intervention has not only constrained violence and militarism, it has also buttressed and complemented it. 11 Ibid.: 95. 12 CNN Saturday Morning News: Laura Bush Delivers Radio Address (CNN television broadcast, November 17, 2001). See also Kapur (2002: 211). 13 The reference to ‘crusade’ is from the remarks made by George Bush shortly after the September 11 attacks, when he stated, ‘This crusade, this war on terrorism is gonna take a while. And the American people must be patient. I’m gonna be patient’ (Perez-Riugs 2006).

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Department spokesman that the Afghans had voted ‘for the first time in five thousand years’ (US State Department 2004). Afghanistan today, much like Africa in an earlier period, was consigned to the ‘waiting room of history’, in a state of ‘nothingness’ until this redemptive moment, when the combined spirit of liberal internationalism, human rights and democracy brought salvation.14 Thereafter, it was but one small step towards Iraq. Once again the initial narrative of conquest and occupation is gradually being overwritten by claims of ‘freedom on the march’, where human rights are being equated with democratization and freedom projects, and the pursuit of ‘infinite justice’. Images of shock and awe were replaced by congregations of Iraqi men and women, struggling in the constituent assembly to bring some form of governance to Iraq and draft a constitution (Nessiah 2004). The language of human rights and democracy has been somewhat muted, if not actually countered, by the daily civilian atrocities committed by the occupying forces and the insurgency, the failure of the newly formed government of national unity to restore law and order, the continuous questioning over the legality of the war, as well as the prison humiliations and abuses at Abu Ghraib and the massacre of Iraqi civilians by US marines in Haditha (Knickmeyer 2006: A01; Henninger 2006: A18). Perhaps the jury is still out on this one — it is too early to say whether Iraq can be successfully rescripted as a noble endeavour by the altruistic West, in particular the United States, to bring democracy and freedom to the Middle East. Yet for some in the United States, this claim appears self-evident. The success of the mission is already evident in the securing of US

Dipesh Chakraborty (2000) used the phrase the ‘waiting room of history’ to describe the ways in which the non-West is doomed never to be quite modern, for modernity has already been authentically produced in Europe. It is a concept that has defined and shackled the non-West in a discriminatory universalism. Also recall Hegel’s (1956: 99) statements that Africa has no history: ‘at this point we leave Africa not to mention it again. For it is no historical part of the world: it has no movement or development to exhibit.’ 14

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military bases bordering two ‘terrorist states’ — Syria and Iran — and the adoption of a democratic constitution by Iraq for the first time in its five-thousand-year-old history (Horowitz 2004). Once again, five thousand years seems to represent the quicksand of history. And universal human rights are cast as impervious to history. These critiques as well as the reactionary possibilities of human rights, constitute some of the theoretical and practical tensions that characterize human rights law and disrupt the idea that human rights is one long and steady march towards progress.

Discriminatory Universality In this section, I unpack the normative assumptions that inform the notion of universality to which human rights claims are tethered. The human rights project is based on the assumption that all humans are entitled to enjoy human rights without regard to distinction. It is a claim that regards human rights as being based on notions of objectivity, neutrality and inclusion. Yet when we examine the Enlightenment project, the precursor to the human rights movement, it exposes a history of how claims to universality and inclusion have coexisted with exclusion and subordination. Recall the moment when Europe was in the midst of a struggle for liberty, equality and freedom, Europe’s ‘Others’ continued to be subjugated under the weight of colonialism and slavery (Kapur 2005). Even within Europe, gender and racial apartheid established a hierarchy of what and who constituted the liberal subject — the white, Christian, propertied male. While there is an assumption that certain political practices are indeed universal, such as liberty, equality and freedom, these ideals seem to stumble and falter at the moment of their encounter with the unfamiliar, the ‘Other’ or difference. These values meet with some of the same difficulties today in their encounters with difference and unfamiliarity. Universality is always accompanied by what Denise da Silva evocatively describes as ‘the other side of universality’ (da Silva 2001: 421).

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While there is some concern over the universalist claims of human rights in light of the harms and exclusions that have characterized its liberal antecedents, there remains a deep commitment to the project and faith in its universal application.15 The exclusions of the past are regarded as moments of profound inconsistency in what liberalism stands for and how it has operated, for example, in relation to women and other socially disadvantaged groups. As some feminist scholars have argued, it is, in fact, a failure of liberal thinkers to follow their own thought through to its progressive end (Nussbaum 1999, 2005). For example, subordination by sex was deemed to be natural and the subject of sex ignored by liberal political philosophers and their theories of justice. It is only through feminism’s role in unmasking inequalities in familial arrangements that the promise of liberalism for women is being brought about, and the liberal internationalist endeavour to promote women’s human rights globally strengthened (Nussbaum 1999: 65). It is the result of manipulation that can be corrected through the gradual process of inclusion of these previously excluded groups. Independence from colonial rule fought and won through the invocation of civil and political rights is used as another example to substantiate this position. Yet this search to restore liberalism to its pristine elegance and original features is an elusive one, for its history belies the possibility of any such origins. International law coupled with its humanitarian zeal was structured by the colonial encounter and its distinction between the civilized and uncivilized (Koskenniemi 2002: Chapter Two; Anghie 1999: 1; 2005). The search for a standard to both explain and justify the exclusion of non-European subjects from international law in the 19th century was based on the prevailing, and uninterrogated assumption that European states were civilized. In order to gain entry into

See Mahoney and Mahoney (1993); Cook (1994). In contrast, Anne-Marie Slaughter (1992: 1907) argues that a distinction should in fact be made between liberal and non-liberal states, with international law applying only to liberal states. 15


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the community of international law and family of civilized nations, outside communities had to strive to resemble the European (Koskenniemi 2002: 135). Revisiting the colonial encounter is critical in order to understand the limitations and possibilities of human rights in the contemporary period. It is essential for human rights advocates to embrace this history. Assertions about the universality of human rights simply deny the reality of those whom they claim to represent and speak for, disclaiming their histories and imposing another’s through a hegemonizing move. Thus, the liberal tradition from which human rights have emerged not only incorporates arguments about freedom and equal worth but — and this is the core of my argument — it also incorporates arguments about civilization, cultural backwardness, racial and religious superiority. Further, human rights remain structured by this history. This dark side is intrinsic to human rights, rather than something that is merely broken and can be glued back together.

Troubling Subjects The liberal subject lies at the heart of the human rights endeavour. This subject is free, unencumbered, self-sufficient and rational, existing prior to history and social context. However, given the arguments already presented about the situatedness of human rights and its liberal underpinnings, it is evident that the sovereign, autonomous subject is unable to survive without the existence of an ‘Other’. A host of subjects continue to be denied inclusion into the project, or entitled access only to the extent that they resemble the familiar subject of human rights discourse. There are at least three different ways in which the ‘Other’ has been addressed in relation to rights discourse. The first is through the assumption that the difference can be erased and the ‘Other’ tamed and assimilated through some form of cultural or racial strip. The second is to treat the difference as natural and inevitable. And finally, there is the response that justifies incarceration, internment or even annihilation of the ‘Other’ because of the threat it poses. These are not rigid and absolute categorizations, but frequently overlap

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and leak into one another. And all of these responses are present in the contemporary moment.16 Assimilation is integral to the liberal tradition. It is accompanied by cultural erasure and plays out on a host of sites. In the context of the colonial encounter in India, assimilation took the form of learning how to imitate the colonial power. The ‘universal’ principles of liberty, equality and freedom were contingent on the native’s ability to conform or be trained into civilization. While he was never entitled to full citizenship, 16 This analysis parallels some of the arguments presented in a large body of recent scholarship on citizenship and nationality. See, generally, Bosniak (2000: 447). Bosniak examines how citizenship has been denationalized across a range of discourses and how and why such a process is taking place. One stream of this literature argues in favour of a global or world citizenship, given that there is evidence that citizenship is no longer (and should no longer be) bounded by the nation-state as well as the emergence of a universal human rights regime. Some scholars argue that the conferment of rights and benefits on human beings, regardless of their citizenship status, constitutes part of our moral obligation. See, for example, Nussbaum (1996) arguing in favour of a notion of ‘citizens of the world, challenging the arbitrariness of patriotism and how it can be dangerous, by producing nationalist chauvinism that can lead to an immoral disregard of other people and other cultures’; Young (1989) (examining the aspirational goal of universal citizenship, which assumes that citizenship is a progressive concept which has included more and more people over the course of time — blacks and women, for example). See also Featherstone (2002: 1); Hernandez-Truyol and Hawk (2005: 97) (Hawk proposes a model of formal global citizenship, one that flows from the concept of dual or multiple nationalities, that exists in tandem with national citizenship, and based on the idea of the universality of human rights); Linklater (1998: 41). Yet it is not at all self-evident that appeals to international human rights law bound to conceptions of a ‘global’ or ‘world’ citizen would inevitably rescue an unlawful non-citizen and accord him/her a recognition that transcends the monopoly power of nation-states to determine who counts and who does not. And as argued in this essay, universalist claims of human rights have been unmasked as operating along the same axis of inclusion and exclusion that has characterized their liberal antecedents.

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citizen-like behaviour nevertheless was encouraged and became part of the lexicon of the ‘politically aware Indian’ (Chandra 2005: 106, 107; Sinha 1995; Viswanathan 1989). The native was entitled to certain rights and benefits to the extent that he could reinvent himself as an Englishman. Yet that standard remained an elusive one, often unattainable, for no matter how hard the native struggled to mimic the ‘master’ at the cost of her own subjectivity, she remained at most, ‘almost white, but not quite’ (Bhabha 1994: 15; Pratt 1992). In the contemporary period, this response is found in the proliferation of new citizenship and nationality laws being enacted throughout Europe and elsewhere. These laws reflect a simultaneous fear of the ‘Other’, while also providing an opportunity to enable these ‘Others’ to be part of the universal project of rights and acquire legitimacy through the process of assimilation and their permanent translation into a familiar medium. One recent explicit example of this response can be found in the Danish family reunification law (Aliens Act 2002, Denmark). According to the Aliens Act, the government has sought to restrict the number of resident permits awarded for the purpose of family reunification ostensibly to reduce the number of unemployed aliens (Danish Immigration Service 2005: 13–16). Under the Aliens Act, the legal right of family reunification has been withdrawn and replaced with a provision regulating the right to a residence permit in Denmark for the purpose of family reunification with a person living in Denmark. It is based on extremely strict age and connection requirements.17 The marriage or registered partnership should be recognizable under Danish law and entered into voluntarily. There is also a requirement that the parties be over the age of 24, even if one of the parties is a Danish citizen, and that their aggregate ties with Denmark be stronger than their aggregate ties with another country, a condition that is lifted in situations where the person residing in Denmark has held Danish citizenship for at least 17 Details of the requirements are set out on the website of the Danish Immigration Service at http://www.udlst.dk/english/ Family+Reunification/Default.htm (accessed on June 13, 2006).

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28 years.18 The aggregate requirements used to evaluate attachment and loyalty to the nation include the presence of family members already living in Denmark, the completion of one or both partners’ education in Denmark, proficiency in Danish and employment in Denmark. Evidence of either or both parties making extended visits to another country, and having children or other family members in another country, are also factors to be taken into consideration. The impact of the aggregate ties requirement was illustrated in the case of Tien Dang, a 26-year-old Vietnamese, whose application to bring his wife to Denmark was rejected. The fact that he was a permanent resident and gainfully employed in Denmark, had his own home there, spoke Danish fluently and had other family members in the country (including his children and parents) was considered insufficient to counter the finding that his attachments with Vietnam were greater than his attachments to Denmark, presumably because he continued to visit his wife there. He remained an impostor, unable to reinvent himself as a true and loyal Dane. While the Council of Europe Human Rights commissioner has concluded that Denmark’s rules governing family reunification are in breach of the Convention, the Aliens Act reflects how the project of assimilation is being aggressively pursued through the proliferation of new nationality and citizenship laws in Europe.19 Following the commissioner’s report, The reasoning behind this provision was based on the idea that young people, especially those of Muslim origin, were being forced into marrying spouses chosen by their parents in their countries of origin and the spouses were subsequently using the marriage to enter into Denmark under its policy of family reunification. For an excellent critical analysis of similar policies in other Northern European countries, see Razack (2004: 129). For the condition regarding Danish citizenship, see the Aliens Act 2002 as amended by Law 1204 of December 27, 2003. 19 See Council of Europe Office of the Commissioner of Human Rights, ‘Report by Alvaro GilRobles, Commissioner for Human Rights on his visit to Denmark 13–16 April 2004’ CommDH (2004)12 (July 2004) at http://www.humanrights.dk/upload/ application/f98a9487/commdh_2004_12_e-1.pdf (accessed on May 18, 2006). 18


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Tien Dang has filed a suit challenging the Danish family reunification law as contravening the European Human Rights Convention, which guarantees all individuals the right to a family life.20 While Tien Dang’s suit can be regarded as a challenge to the liberal project of assimilation, it continues to be framed within the logic of who counts and who does not, of where the line should be drawn. It does not challenge the unstated culturally normative standard being introduced through national immigration criteria to scrutinize those who are trying to enter through legal routes, as Dang appeared to fully comply with this standard and was still denied his right to family life. It is a standard that seeks to protect a mono-racial, uniform Danish identity that tolerates the presence of ‘Others’, but only as long as they sever the sinews of difference.21 The line between belongingness and non-belongingness is being increasingly drawn in an insular, culturally intolerant direction, where only certain recognizable identities can cross into the legal zones. The second response of naturalizing or essentializing the difference has a rich genealogy. The Australian government’s policy against half-caste Aborigines was based on assumptions about their natural inferiority. In the context of the colonial encounter the ‘Other’ was treated as lacking the capacity to reason, incapable of decision-making, culturally and morally inferior. The difference justified not only the denial of a host of legal rights and benefits to the native, but

For an evaluation of the impact of these new laws, see the reports of the European Commission Against Racism and Intolerance (ECRI) available at http://www.coe.int/T/E/human_rights/Ecri (accessed on May 18, 2006). 20 The Copenhagen Post (July 19, 2004) at http://www.cphpost. dk/get/80174.htma, last accessed May 18, 2006. 21 See, for example, Pipes and Hedegaard (2002) (setting out the argument that Muslim immigrants have demonstrated little desire to integrate into their adopted country, are responsible for an upsurge in crime, including the rape of Danish women, and warning that current immigrant flows could result ‘in every third inhabitant of Denmark in 40 years [being a] Muslim’).

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also of sovereignty.22 It was this ‘rule of colonial difference’ that essentialized the difference between the colonizer and the colonized, and served to justify the imperial presence even when espousing a commitment to universal ideas and institutions (Chatterjee 1993). Women have historically been, and in many instances continue to be, regarded as inferior, weaker and in need of protection by a paternalistic state or male guardian. In the colonial relationship, gender essentialism was also conflated with cultural or civilizational backwardness, where the treatment of women was used in part as a justification for colonial intervention and the civilizing mission.23 Katherine Mayo’s work exemplifies this conflation. An American feminist and journalist, Mayo wrote a book in 1927 entitled Mother India — a powerful invective against the Hindu, in particular the Hindu male. Throughout the text, she provides lurid details about how the country was irredeemably and hopelessly ‘poor, sick and dying’ because of its depraved and corrupt practices, sexual recklessness and backward treatment by Hindu men of their women and young girls (Mayo 1927: 32). Women are represented as helpless victims, lacking subjectivity and utterly victimized by a ruthless and barbaric culture. The text served as both an exoneration as well as justification for the continuation of British Imperial rule.24 22 Anthony Anghie (1999) illustrates how the doctrine of sovereignty was a construct of the colonial encounter, and the legal tools developed to deny the sovereignty of nation-states in which the European colonial powers intervened. 23 See Rajan (2003: 3) (arguing that the British Imperial project was partly justified as a measure to improve the condition of Indian women and at the same time to ensure that the interventions left indigenous patriarchy untouched). 24 The impact of the publication of Mother India should not be underestimated. It provoked a highly nationalist response that dismissed Mayo as a foreigner, and her views as a Western feminist inapplicable to the subcontinent. See, for example, Iyer (1928); Mukherji (1928); Rai (1985). The text represented a ‘tipping point’ in the historical transformation of the subcontinent. See Sinha (2006). It also tethered gender essentialism to the cultural identity of the nation that continues to challenge feminist interventions in the postcolonial context.

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The assumptions about difference not only reinforced gender and cultural stereotypes, but also the denial of a host of legal rights and benefits to the native, including sovereignty and self-rule (Anghie 1999). It served to subordinate the native, deny his/her rights to sovereignty and at times to any recognition of humanity. In the contemporary moment, gender essentialism remains present in the anti-trafficking initiatives that have been adopted or enacted at the international and domestic levels at an extraordinary rate over the past three years. In the name of protecting women’s rights, these initiatives are invariably based on assumptions, especially about women from the developing world, as being victims, infantile and incapable of decision-making. These assumptions have invited highly protectionist legislation and at times even justified protective detention and intervention strategies that further reinforce gender and cultural stereotypes. A recent example is the case related by the former National Rapporteur on Trafficking in Nepal. In July of 2003, a bus full of Nepali women who were headed to New Delhi to catch flights out to the United Arab Emirates was intercepted on the Indo-Nepal border by a Nepali anti-trafficking NGO with the help of the border police.25 The NGO contended that the women were predominantly minors and were being trafficked for ‘prostitution’. The women, on the other hand, argued that they chose to migrate abroad because in Nepal there were no jobs. The collapse of the tourism industry, the main source of employment for Nepali men and women, as a result of the Maoist insurgency and the more monarchical coup, left them

The NGO was funded by USAID which requires groups to denounce prostitution in order to receive funding. See United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act, 22 USC § 7631(f) (2003) and the Trafficking Victims Protection Reauthorization Act, 22 USC § 7110(g) (2) (2003). It is also aligned to the feminist position that conflates trafficking with prostitution and hence has used the garb of trafficking to advocate for the abolition of prostitution. See, for example, the Coalition Against the Trafficking of Women at www.catwinternational.org (accessed August 12, 2010). 25

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with few options. These young women sought migration to the Middle East as a way out of a difficult situation. Their flight to some form of work and a better life was intercepted by an NGO well-armed with international anti-trafficking laws and donor funding. Profiled as potential victims of trafficking and intercepted on suspicion in a pre-emptive operation, the busload of women were ‘rescued’ and taken to the shelter of the NGO. Upon inquiry it was discovered that only one of the intercepted women was a minor of 17 years. The rest of the women were consenting migrants, who had labour contracts and air tickets, and were fully aware of the nature of their prospective employment in the Middle East. Although the NGO subsequently acknowledged that this interception was a mistake, the women suffered economic losses, related to being unable to catch the flights that they had fully paid up, as well as a loss of job opportunity for which none were compensated (Centre for Feminist Legal Research 2004: 22). Thus, imperialist responses and victimized representations of women in the ‘Third World’ are also being aided by similar feminist positions found in the postcolonial world (Kapur 2005: 120–25). The perception that women are victims and objects in need of rescue continues to inform contemporary feminist politics both ‘here’ and ‘there’. Finally, there is the response of incarceration, internment or elimination, where the ‘Other’ is cast as completely outside of Western liberal democracy, defined as a threat to the nation-state — as backward, uncivilized and dangerous. These subjects are legitimately denied human rights protections, as they are cast in opposition to such values and protections. In the civilizing mission of Empire, the lack of conformity to the project could result in death and even annihilation.26 In the contemporary period there are countless See Anghie (2005: 13–31), discussing how the denial of sovereignty was rationalized and justified in the work of Francisco de Vitoria. In the context of the Spanish treatment of the Indians, the Indian was regarded as an object against which the powers of sovereignty could be exercised, including the power to wage war. The Indian who failed to comply with universal standards and resisted Spanish intervention, could be subjected to brutal sanctions, including war. 26

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examples of difference being cast as a threat, contaminant or evil to be contained and purged should it prove too threatening. This somewhat bloated subject includes the Islamic, regarded as a threat to the mythical Caucasian, Christian West; the homosexual, who is destroying civilization, family and faith as we know it; the sex worker, with her contaminating agenda; and the migrant subject, intent on disrupting the social cohesion of distinctive Western states.27 All of these responses to the ‘Other’ are not confined to tyrannical dictatorships or oppressive fundamentalisms. They are located in the heartland of the ‘homeland’ — in the epicentre of the liberal democratic state. A spectacular array of legal tools are being crafted in the form of antiterrorism and anti-migration laws to deal with these new ‘Others’. These initiatives are intended to re-establish the moral, cultural and national certainties of the past as well as the security of the sovereign nation-state and sovereign subject. The threat per se justifies the creation of new categories — such as ‘unlawful non-citizens’ and the explicit policy of incarceration of asylum seekers in Australia; or the detention of the newly created ‘enemy combatants’ by the United States in Guantanamo Bay. Through these gestures, the ‘Other’ is being transformed into a manipulative, See a vitriolic attack on Muslim inferiority reflected in the barbaric treatment of their women, and describing Muslims as invading hoards who transform the beautiful Italian cities into ‘filthy kasabahs’, Fallaci (2002: 36). For a discussion of this text and others presenting a similar characterization of Muslims and the reception of these texts, see Razack (2005). Feminists have also tended to conflate the Muslim men with fundamentalism and backward or uncivilized treatment of women, and laud ventures in Iraq and Afghanistan as liberatory endeavours against a force that is so alien and outside of the principles of Western liberal democracy. See Chesler and Hughes (2002: B7). For a discussion of how the anti-trafficking agenda has been conflated with an anti-sex work agenda by the religious right as well as feminists, see Shapiro (2004). See Huntington (2004) which argues that America should remain a Christian, Anglo-Saxon country, in favour of ‘white nativism’ and against the mixing of races and cultures, that can only lead to national degeneration. 27

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dangerous and contaminating force that can justify a ‘shootto-kill’ policy to protect the state and its citizens, even if it involves collateral damage in the form of Jean Charles de Menezes.28 Somewhat ironically, Phillip Ruddock, the Australian attorney-general, has justified such a hard-line security approach as a UN right, citing the government’s obligations under Article 3 of the UN Declaration on Human Rights — to protect human life.29 In all these instances we are declaring new non-humans, or lesser humans, as well as super-humans. These hierarchies and rankings are produced in and through the discourse of rights, which produces the human and social subject. In this essay, I have deliberately conducted an internal scrutiny of the human rights project as envisaged and pursued by liberal democratic states. The commitment to human rights is not necessarily a commitment to a social justice project that is unequivocally liberatory or emancipatory. The ‘dark side’ also constitutes this project. Sometimes, the dark side is obscured, as Western, liberal democratic Jean Charles de Menezes, a Brazilian electrician living in London, was shot and killed on July 22, 2005 at the Stockwell tube station on the London Underground by Metropolitan Police officers. The police issued an apology for the killing, stating they had mistaken him for a suspect of the previous day’s failed bombings in London and acknowledged he was in no way connected. It was the first time the British public were made aware of a policy that gave police the authority to ‘shoot to kill’ a potential suicide bomber. The British public’s reaction to the shooting was mixed. There were those who supported the need for police to make splitsecond decisions and described the De Menezes shooting as a case of ‘collateral damage’, while others condemned the killings as an example of police brutality. See http://news.bbc.co.uk/1/hi/talking point/4711189.stm (accessed on May 18, 2006). 29 See Nason and Walters (2005). In justifying his stance, Ruddock stated, ‘I don’t want to be the Attorney-General who can be the subject of accusations from grieving relatives that it was in my power to do more to protect their loved ones’. For a defence of the ‘shoot-to-kill’ policy on similar grounds in Britain, see ‘Police Defend Shooting Strategy’ BBC News (March 8, 2006) at http://news.bbc.co.uk/1/hi/england/london/4784688.stm (accessed on August 25, 2006). 28


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states project themselves as well-ordered, law abiding, and demonstrably tolerant, and human rights are cast as something that is needed out there — in the less developed, non-democratic, illiberal world. When George Bush walks into a mosque immediately after the September 11 attacks to ensure that there is no backlash in the form of violence inflicted on Muslims within the homeland, or when Tony Blair boldly asserts that the Muslim community will be embraced and diversity defended after the recent London bombings, the selfcontrolled, democratic, liberal values are presented as stable, coherent and intact. These performances are articulated as examples of how ‘civilized’ free states behave. Yet this particular narrative obscures how these very same states are able to export the dark side of the liberal project. Countries such as the United States, with its muscular military arsenal and monetary strength, are able to export the dark side, push it out of the ranch, sending it in the contemporary moment to places like Guantanamo, Iraq or Abu Ghraib. In countries that have less military hardware and economic might, the cost of exporting the dark side is formidable, and so it remains present and visible for the world to see. One instance might be the Gujarat riots that occurred in the western state of India in the spring of 2002, resulting in the death of hundreds of Muslims, and the perpetration of extreme sexual violence against Muslim women as an act of retaliation by mobs of the Hindu Right after an attack on a train carrying Hindu pilgrims.30 The riots played out in a postcolonial democratic context that advocates human rights, and espouses a commitment to the values of tolerance, 30 The Hindu Right has its basis in revivalist and nationalist movements of the 19th century, which sought to revitalize Hindu culture as a strategy for resisting colonialism. As it developed through the 20th century, it began to take on its distinctively right-wing, anti-minority stance, particularly in the 1920s with the publication of Vinayak Damodar Savarkar’s Who is A Hindu? (1928) and the founding of the Rashtriya Swayamsevak Sangh (RSS, Association of Nationalist Volunteers), which is the main ideological component of the Hindu Right. See Pandey (1990: 210). Sarvarkar developed the idea of Hindutva, a communal discourse, which seeks to constitute Hindu subjects to understand their fractured society along the lines of religious identity. As Basu and others have stated:

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freedom of religion and secularism. While it is easy to cast these riots as features of the chaotic, disordered and at times uncivilized non-West, what remains obscured is how such a violent response towards Muslims has been made possible and structured by the Hindu Right’s active, and at times brilliant, ideological engagement with the liberal values of tolerance, freedom of religion and secularism.31 The ability of some powerful democratic nations to export the ‘dark side’ deflects attention from the ways in which the possibilities for disorder and instability are produced in and through the discourse of rights, which sets out the terms for inclusion and exclusion. Four British citizens, born and bred in the United Kingdom, have been identified as the persons who conducted the suicide bombings in the heart of London on July 7, 2005. The interminable claims that the terrorists are ‘evildoers’, jealous of ‘our way of life and values’, ‘hate our freedoms’ forcefully asserted ever since the attacks on September 11, as well as immediately prior to the revelation of the London bombers’ British identities, becomes sophistry in light of this fact.32 It is a moment when the liberal democratic state has to seriously address its role in producing these human bombs. ‘[a]t the heart of Hindutva lies the myth of a continuous thousandyear old struggle of Hindus against Muslims as the structuring principle of Indian History. Both communities are assumed to have been homogenous blocks—of Hindu patriots, heroically resisting invariably tyrannical, “foreign” Muslim rulers’. See Basu et al. (1993: 2) and Bhatt (2001) arguing that, while the Hindutva movement has been of relatively recent origin, the Hindu nationalist political and ideological processes have been in formation since the 19th century and continue to impact on contemporary politics. See also Luden (1996); Jaffrelot (2005). 31 For a discussion on how liberal rights discourse has been used by the Hindu Right to pursue a reactionary agenda, see Kapur (2006). See also Narula (2003). 32 See, for example, Tony Blair’s address to the nation on the eve of the Iraq War, March 20, 2003 stating, ‘But this new world faces a new threat: of disorder and chaos born either of brutal states like Iraq, armed with weapons of mass destruction; or of extreme terrorist groups. Both hate our way of life, our freedom,

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Take a Walk on the ‘Dark Side’: Tentative Proposals This essay is not arguing in favour of an outright rejection of human rights nor serving as an apology for a realist position on human rights. We ‘cannot not want’ human rights. Rights are radical tools for those who have never had them. Human rights seems a preferable, though a flawed ideal, to no rights at all. It is a very useful vocabulary. Yet, it is also important to confront the ‘dark side’ of this project. There is a need to address the complicity of human rights in making the world less stable, less peaceful, more divisive, more polluted and more violent. Who is accountable when human rights interventions actually harm more than they help? The dark side enables everyone to use the vocabulary of human rights, while at the same time advance agendas that may not be emancipatory ones at the end of the day. To use the words of Costas Douzinas, human rights are being reduced to a body without a soul, without a political vision or moral purpose (Douzinas 2000: 4). Despite all that is known about the inadequacies of human rights, there continues to be an appeal to them as so much political hope has been invested in the project. It is an approach that has been characterized as a ‘Yes I know. But . . .’ politics. The critique is suspended, out of concern that it will create anxiety, fear and even nihilism (Brown 2001: 15). Yet after the most atrocious century and nothing encouraging to inspire us at the beginning of this one, it is also difficult to formulate a persuasive argument for returning to the ideals of classical liberalism — progress, universality and free will (Douzinas 2000: 344). The equation of critique with pessimism, and progress with optimism, is quite mistaken. To question human rights is not to side with the inhuman, the anti-human and evil. What is required at this moment is neither an arrogant triumphalism nor hopeless despair, our democracy’. http://www.number10.gov.uk/output/Page3322. asp (accessed on June 13, 2006). In Blair’s speech delivered after the July 7 bombings he categorically stated that ‘[w]hat we are confronting here is an evil ideology’ (http://news.bbc.co.uk/1/hi/ uk/4689363.stm, accessed on June 13, 2006).

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but rather, thoughtful reflection. What happens when the faith in human rights is eroded? Where does that leave us? It is much better to confront these difficult questions than to cling to old tattered frameworks or a project that now exists in its broken form. The diagnostic reflections set out in this essay draw attention to challenges that are not easy to confront for the human rights practitioner or scholar. I nevertheless propose some tentative, though by no means comprehensive thoughts about how we might move in a more creative and constructive direction. First, we need to move beyond debates between the universal character of human rights and their historical particularity. The human rights project will remain circular and non-productive if we linger in the debate about transcendence and immanence. Indeed, a vast literature already exists in many non-Western metaphysical and philosophical traditions, which reconcile the particular with the universal, the self with the transcendent.33 More important as a starting point is to recognize that human rights are a site of power and resort to the vocabulary of human rights is indeed very powerful. It is this power in the hands of those who use it that must be understood — not its ability nor lack of ability to transform peoples’ lives, nor its potential to bring about change. Because it 33 See Raman (1966) discussing the ideas of the 3rd century philosopher who contested the notion of an absolute position or truth, and argued in favour of the awareness of the possibility of different formulations of one and the same truth from different standpoints. It was an argument directed against the exclusive allegiance to any one formulation as absolute. See Ganeri and Tiwari (1998) discussing the works of a leading exponent of Indian philosophy and epistemology from a critical and analytical perspective. Matilal’s central query was whether reality was actually knowable and therefore expressible in language. He also exposed the false assumption that Indian philosophy was either exotic or rooted in religion (see Swami 2002 presenting the views of the 15thcentury female philosopher, who rendered the arguments about the self and transcendence into verse and examines metaphysics in and through the gender discriminatory practices of a community, revealing their contradictions and complexities).


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is powerful, it matters who brandishes this sword. Human rights advocates need to realize that they also wield power once they participate in the terrain, and can be implicated in perpetuating its dark side. Second, there needs to be a reorientation in human rights scholarship and education. Human rights advocates, including feminist scholars, have failed to adequately centre and interrogate the colonial trappings and ‘First World’ hegemonic underpinnings of this project, and frequently ignore or exclude the non-West from the conversation. Analyzing human rights from a postcolonial perspective provides an enriched perspective of how the terrain has operated and the politics of inclusion and exclusion that it has sustained and even justified. The examples in this essay are largely drawn from postcolonial India, where law and the liberal project on which it is based have had a troubled reception from their very introduction during the colonial encounter. Law was a mechanism of power that was used to serve the regulatory interests of the colonial state and constructed the subjectivity of both the ruling power and the native subject.34 Rights have not been received unequivocally as a liberating and emancipating project. Nor has ‘inclusion’ been regarded as the antidote to subordination. The double consciousness that emerges from this understanding can accept the value of human rights without celebrating the colonial processes that justified imperialist intervention, and can also continue to justify similar interventions in the postcolonial world. It is not only useful, but critical, for human rights scholars and advocates to consciously draw on the experience of the postcolonial world. This is obligatory in order to revise

For an excellent discussion of the complex ways in which law was used to advance the interests of the colonial state and construct the subjectivity of the native subject, see Singha (1998) discussing the emergence of colonial criminal law as an ideological and cultural enterprise in the course of the establishment of British colonial rule in India. See also Kolsky (2005: 631); Chatterjee (2002); and Hussain (2003). 34

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both our thinking and understanding of human rights that has been so dominated by Western pontification about the project, tied down to liberal utopian visions, or claims that human rights are something needed only ‘over there’, in the developing, less civilized world. ‘To draw on the experiences’ of the postcolonial world does not mean extracting experiences of perpetual victimization of ‘Third World’ women, or representations of the global South as always already existing in situations of helplessness and despair, interminable natural disasters, civil conflict or religious strife, or invoking the ‘Other’ as a cultural artefact. ‘To draw on the experiences’ requires understanding and learning from the postcolonial engagement with rights that are informed by the legacies of the colonial encounter. It is, after all, in the postcolonial world where the dark side has been most obviously played out. It is an experience that provides insights into how the marshy zones of exclusion were and continue to be produced. They were not simply imposed through brute force, but in and through rights discourse, including the right to equality, free speech or secularism, which are all-important rights that ‘real’ liberals and human rights advocates would endorse. These rights continue to be susceptible to ideologies and visions that are indeed quite distinct from feminist and progressive ones. Finally, a major shift in the location of the project, who is telling the story and how the story is told, can provide a different and critical trajectory from which to view human rights. I illustrate the urgency of re-reading human rights from alternative locations, the excluded zones or from the perspective of excluded subjects through the example of three contemporary issues. The first concerns the current moment of economic globalization and neoliberal governmentality. While the G8 talks of increased aid to Africa it completely ignores the emergence of new market actors in that continent and the relevance of economic globalization and trade. While entrenching the ‘native’ in a victim subject position through a focus on poverty alleviation can be regarded as laudable, it is also non-threatening and sustains the imperial messianic myth. The language of rights and humanitarianism once again


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obscures a counter narrative, based on sustaining unequal trade and market relations, and the fear of competition from cheaper labour markets. It reproduces a colonial anxiety. In the mid-18th century this was played out explicitly when the East India Company subordinated a flourishing international trade in handicrafts and textiles by Indian merchants by cutting off the thumbs of 200 highly skilled, local textile weavers. It ruined the indigenous industry and served the interests of British mercantile community. Concerns about the neoliberal project aside, the demand for free trade from poorer nations and the assertion of their identity as market actors is producing a similar consternation, which cannot be met with responses of charity. What challenges are posed to human rights — to its dark side as well as its relevance — when we read the narrative from the perspective of these new market actors? To what extent are new emancipatory spaces being provided by globalization rather than human rights? To what extent are human rights being aligned with neoliberalism and inclusion into the market?35 A second, related issue concerns the arrival of the nonWest onto the shores of the ‘West’. While this presence takes many forms — on the catwalk, through celluloid and spicy cuisine — it is the specter of cross-border movements that are causing jitters. Today, these movements are being addressed implicitly through more stringent immigration, antitrafficking and anti-terror laws. They are also being addressed through ludicrous schemes such as the one devised by European countries to organize joint charter flights, dubbed ‘Migrant Air’, to pick up and deport illegal migrants back 35 See Brown (2005: 56) in which it is argued that neoliberalism is becoming dominant as governmentality, and may emerge as the dominant ideology, where privatization schemes and a flourishing market economy become the measure of democracy. This formation is global though constructed through local manoeuvres such as ‘corporatised media, schools and prisons’. It is also a formation that is established partly through the production of a neoliberal citizenry, where individuals are entrepreneurial actors across all dimension of their lives.

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to their home countries at less cost and greater speed.36 Such initiatives will not curtail cross-border movements. The transnational migrant will continue to move clandestinely if legal routes are not available, as demand and the free flow of labour are necessary corollaries to the free flow of capital. These cross-border movements are in fact producing a paradox where the security of the transnational migrant is perhaps less threatened by people-smugglers and traffickers, than by the current international system of human rights protection offered to people who move as migrants, refugees, or asylum-seekers. How can the story of human rights be told from the perspective of transnational migrants? What then are the obligations states have towards the economic migrant in the context of economic globalization? That is not to say that cross-border movements are simply taking place because of economic need and the search for a better life. As one young second-generation immigrant woman recounted, an Englishman once asked her grandfather, who emigrated from India to England, ‘Why are you here?’ Her grandfather responded, ‘We are the creditors’ (Mehta 2005). The seeds sown in the colonial past are being harvested in the global present. Finally, religion is another example of a contemporary issue that needs to be addressed from a different perch. God is out of the closet and on the loose everywhere. The assumed opposition between religion and human rights that is presented as hallowed truth is neither helpful nor indeed accurate. It seems impossible for human rights to retain its secular credentials in a world where religion has seeped into the public domain, into conversations about security, HIV/AIDS, the family, homosexuality, gender equality and the ‘war on terror’. The liberal democratic states of the West are increasingly revealing themselves to be deeply faithbased. The French state has invoked the rights to secularism, liberty and equality to justify a ban against the wearing of See Travis (2005); see also ‘Cinq pays européens mettent en place des vols groupés pour expulser les sans-papiers’ Le Monde (July 6, 2005). 36


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headscarves by Muslim girls studying in French state-run schools. Yet such interventions are exposed as exclusive and majoritarian, where acceptance is based on the performance of a cultural disrobing, forcing a choice on the part of the liberal (Christian) democratic state between the right to education and the right to expression and freedom of religion, while the girls themselves want both.37 Can human rights be articulated in ways that do not perpetuate these polarizations and false dichotomies? The answer to this question lies in learning from contexts that have engaged with these tensions. Freedom of religion and gender equality has operated with commitments to secularism in postcolonial, democratic countries such as India. It is a country where vast multitudes of deities coexist with vast multitudes of people. You bump into them (gods and people) on the street, trip over them on the sidewalk, they sit with you in taxis and attend street parades where they are the constant cause of traffic jams (Rushdie 1991). No matter where you go, there they are! Women in religious minority communities are constantly renegotiating the boundaries and contesting the meaning of equality, understandings of secularism and the right to religious freedom, attempting to delink their meanings from their majoritarian moorings or capture by Hindu nationalists. These engagements attest to the importance of challenging the unhelpful dichotomies between religion and rights, the complex and contradictory nature of the human rights terrain, and why the meanings of rights need to be constantly monitored, revisited and interrogated. 37 See Gunn (2004) exposing the neutrality myth that ostensibly underscores the principle of Laïcité. See also The Headmaster and the Headscarves (2005) a BBC documentary directed and filmed by Elizabeth Jones, that exposes the tensions produced by the ban, through interviews with Muslim school girls at a specific state school, who were forced to choose between their right to education and the right to religious identity, and their headmaster, who supervises the cultural strip to ensure compliance with the law, while also exposing the majoritarian position underscoring the ban.

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My critique of human rights is intended to be productive and to articulate a different cosmology within which to understand the place of human rights in our contemporary world. The story of human rights cannot be told primarily through the dichotomies of good versus evil, heroes versus villains, winners and losers. Indeed, human rights can be an inhospitable terrain, much like the desertscapes of the outback that Molly and her sisters struggled to cross, following a bisected fence that at times led them straight back into the arms of the ‘Great White Saviour’. Molly herself makes it back home to Jigalong only to be forcibly removed once again, and then to escape again. In a similar vein, the battle to recapture the progressive and transformative terrain of human rights cannot be simply ‘won’, but the centring of excluded subjects, excluded zones and excluded histories can bring the project back to a space of greater optimism and lesser despair. Ultimately, it is an effort to put some life back into a project in desperate need of resuscitation and to give this body a soul.

References Anghie, Anthony. 1999. ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law’, Harvard International Law Journal 40(1): 1–71. ———. 2005. Imperialism, Sovereignty and the Making of International Law, Cambridge University Press, Cambridge. Anghie, Anthony, Bhupinder Chimni, Karin Mickelson and Obiora Okafor (eds). 2004. The Third World and International Order: Law, Politics and Globalization, Brill Academic Publishers, Martinus Nijhoff, Leiden. Basu, Tapan, Pradip Datta, Sumit Sarkar, Tanika Sarcar and Sambuddha Sen. 1993. Khaki Shorts, Saffron Flags: A Critique of the Hindu Right, Orient Longman, Delhi. Berman, Nathaniel. 1999. ‘In the Wake of Empire’, American University International Law Review 14: 1521–524. Bhabha, Homi. 1994. The Location of Culture, Routledge, London. Bhatt, Chetan. 2001. Hindu Nationalism: Origins, Ideologies and Modern Myths, Berg Publishers, Oxford. Blumenthal, Sydney. 2004. ‘The Religious Warrior of Abu Ghraib’, The Guardian, May 20.


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Bosniak, Linda. 2000. ‘Citizenship Denationalized’, Indiana Journal of Global Legal Studies 7: 447–510. Brown, Wendy. 2001. Politics Out of History, Princeton University Press, Princeton. ———. 2005. Edgework: Critical Essays on Knowledge and Politics, Princeton University Press, Princeton. Buss, Doris. 1998. ‘Robes, Relics, and Rights: The Vatican and the Beijing Conference on Women’, Social and Legal Studies International Law Journal 3(7): 339–63. Buss, Doris and Didi Herman. 2003. Globalizing Family Values: The Christian Right in International Politics, University of Minnesota Press, Minneapolis and London. Buss, Doris and Ambreena Manji. 2005. International Law: Modern Feminist Approaches, Hart Publishing, Oxford and Portland. Centre for Feminist Legal Research. 2004. ‘Report of the International Seminar on Cross Border Movements and Human Rights’, (January 9–10), International Seminar Proceedings, New Delhi, India. Chakraborty, Dipesh. 2000. Provincialising Europe: Postcolonial Thought and Historical Difference, Princeton University Press, Princeton. Chandra, Sudhir. 2005. ‘Subjects’ Citizenship Dream: Notes on the Nineteenth Century’ in Rajeev Bhargava and Helmut Reifeld (eds), Civil Society, Public Sphere and Citizenship: Dialogue and Perceptions, Sage Publications, New Delhi. Chatterjee, Indrani. 2002. Gender, Slavery and Law in Colonial India, Oxford University Press, New York. Chatterjee, Partha. 1993. The Nation and Its Fragments: Colonial and Postcolonial Histories, Oxford University Press, Delhi. Chesler, Phyllis and Donna Hughes. 2002. ‘Feminism in the 21st Century’, The Washington Post, February 22. Cook, Rebecca. 1994. ‘Women’s International Human Rights Law: The Way Forward’, in Rebecca Cook (ed.), Human Rights of Women: National and International Perspectives, University of Pennsylvania Press, Philadelphia, 3–36. da Silva, Denise. 2001. ‘Toward a Critique of the Socio-Logos of Justice: The Analytics of Raciality and the Production of Universality’, Social Identities 7(3): 421–54. Danish Immigration Service. 2005. Statistical Overview, Ministry of Refugee, Immigration and Integration Affairs, Copenhagen. Derrida, Jacques. 1994. Spectres of Marx: The State of the Debt, the Work of Mourning, and the New International (translated by Peggy Kamuf), Chicago University Press, Chicago.

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Douzinas, Costas. 2000. The End of Human Rights: Critical Legal Thought at the Turn of the Century, Hart Publishing, Oxford. Erlanger, Steven. 2001. ‘Italy’s Premier Calls West Superior to Islamic World’, The New York Times, September 27. Fallaci, Orianna. 2002. The Rage and the Pride, Rizzoli, New York. Featherstone, Mike. 2002. ‘Cosmopolis: An Introduction’, Theory, Culture & Society 19(1–2): 1–16. Ganeri, Jonardan and Heeraman Tiwari (eds). 1998. The Character of Logic in India: Bimal Krishna Matilal, Oxford University Press, Delhi. Gunn, Jeremy. 2004. ‘Religious Freedom and Laïcité: A Comparison of the United States and France’, Brigham Young University Law Review 2: 419–506. Halley, Janet and Wendy Brown (eds). 2002. Left Legalism/Left Critique, Duke University Press, Durham and London. Hegel, George. 1956. The Philosophy of History (translated by J. Sibree), Dover, New York. Henninger, Daniel. 2006. ‘The Indictment of US Troops was Inevitable’, The Wall Street Journal, June 2. Hernandez-Truyol, Berta Esperanza and Mattew Hawk. 2005. ‘Travelling the Boundaries of Statelessness: Global Passports and Citizenship’, Cleveland St Law Rev, 52: 97–119. Horowitz, David. 2004. Unholy Alliance Against America: Radical Islam and the American Left, Regnary Press, Washington, D. C. Human Rights and Equal Opportunity Commission. 1997. ‘Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families’, available at http://www.humanrights.gov.au/social_ justice/bth_report/index.html, accessed on June 13, 2006. Huntington, Samuel. 2004. Who Are We? The Challenge to America’s National Identity, Simon and Schuster, New York. Hussain, Nasser. 2003. The Jurisprudence of Emergency: Colonialism and the Rule of Law, University of Michigan Press, Ann Arbor. Iyer, C. S. Ranga. 1928. Father India: A Reply to Mother India, Selwyn and Blount Ltd, London. Jaffrelot, Christophe (ed.). 2005. The Sangh Parivar, Oxford University Press, Delhi. Kapur, Ratna. 2002. ‘Un-Veiling Women’s Rights in the “War on Terrorism”’, Duke Journal of Gender Law & Policy 9: 211–36. ———. 2005. Erotic Justice: Law and the New Politics of Postcolonialism, The Glasshouse Press, London. ———. 2006. ‘Normalizing Violence: Transitional Justice and the Gujarat Riots’, Columbia Journal of Gender and Law 15: 885–927.

58 Ratna Kapur Katayama, Lisa. 2005. ‘Sex Trafficking: Zero Tolerance’, Mother Jones, May 21. Available at http://motherjones.com/ politics/ 2005/05/sex-trafficking-zero-tolerance, accessed on August 12, 2010. Kennedy, David. 2004. The Dark Side of Virtue: Reassessing International Humanitarianism, Princeton University Press, Princeton. Knickmeyer, Ellen. 2006. ‘In Haditha: Memories of a Massacre’, The Washington Post, May 27. Kolsky, Elizabeth. 2005. ‘Codification and the Rule of Colonial Difference: Criminal Procedure in British India’, Law and History Review 23(3): 631–83. Koskenniemi, Martti. 2002. The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960, Cambridge University Press, Cambridge. Linklater, Andrew. 1998. ‘Cosmopolitan Citizen’, Citizenship Studies 2(1): 23–41. Luden, David (ed.). 1996. Contesting the Nation: Religion, Community and the Politics of Democracy in India, University of Pennsylvania Press, Philadelphia. Mahoney, Kathleen and Paul Mahoney (eds). 1993. Human Rights in the Twenty-First Century: A Global Challenge, Martinus Nijhoff Publishers, Dordrecht. Mayo, Katherine. 1927. Mother India, University of Michigan Press, Ann Arbor. Mehta, Suketu. 2005. ‘A Passage from India’, International Herald Tribune, July 13. Mukherji, Dhan Gopal. 1928. A Son of Mother India Answers, E. P. Dutton, New York. Narula, Smita. 2003. ‘Overlooked Danger: The Security and Rights Implications of Hindu Nationalism in India’, Harvard Human Rights Journal 16: 41–68. Nason, David and Patrick Walters. 2005. ‘Hardline Security a UN Right’, The Australian, July 26. Nesiah, Vasuki. 2003. ‘The Ground Beneath Her Feet: Third World Feminisms’, Journal of International Women’s Studies 4(3): 30–38. ———. 2004. ‘From Berlin to Bonn to Baghdad: A Space for Infinite Justice’, Harvard Human Rights Journal 17: 75–98. Nussbaum, Martha. 1996. ‘Patriotism and Cosmopolitanism’ in Martha Nussbaum, For Love of Country: Debating the Limits of Patriotism, Beacon Press, Boston, 3–20. ———. 1999. Sex and Social Justice, Oxford University Press, Oxford.

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Nussbaum, Martha. 2005. Hiding from Humanity: Disgust, Shame and the Law, Princeton University Press, Princeton. Orford, Anne. 2002. ‘Feminism, Imperialism and the Mission of International Law’, Nordic Journal of International Law 71(2): 275–96. Orford, Anne. 2003. Reading Humanitarian Intervention, Human Rights and the Use of Force in International Law, Cambridge University Press, Cambridge. ———. 2005. ‘Commissioning the Truth’ paper presented at the International Conference on Transitional Justice, Bellagio, Italy, March 2–7. Otto, Dianne. 1996. ‘Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference’, Social & Legal Studies 5(3): 337–64. Pandey, Gyanendra. 1990. The Construction of Communalism in Colonial North India, Oxford University Press, New York. Perez-Riugs, Manuel. 2006. ‘Bush Vows to Rid the World of Evil Doers’ at http://archives.cnn.com/2001/US/09/16/gen.bush. terrorism (accessed on June 13, 2006). Pipes, Daniel and Lars Hedegaard. 2002. ‘Something Rotten in Denmark?’ New York Post, August 27. Pratt, Mary Louise. 1992. Imperial Eyes: Travel Writing and Transculturation, Routledge, New York. Rai, Lala Lajpat. 1985 reprint. Unhappy India, AMS Press, New York. Rajagopal, Balakrishnan. 2003. International Law from Below: Development, Social Movements and the Third World, Cambridge University Press, Cambridge. Rajan, Rajeswari Sunder. 2003. The Scandal of the State: Women, Law and Citizenship in Postcolonial India, Duke University Press, Durham. Raman, Venkata K. 1966. Nagarjuna’s Philosophy, Motilal Banarsidass, Varanasi. Razack, Sherene. 2004. ‘Imperiled Muslim Women, Dangerous Muslim Men, and Civilised Europeans: Legal and Social Responses to Forced Marriages’, Feminist Legal Studies 12(2): 129–74. ———. 2005. ‘Geopolitics, Culture Clash and Gender after September 11’, Social Justice 32(4): 11–31. Rushdie, Salman. 1991. Imaginary Homelands: Essays and Criticism, 1981–1991, Penguin Books, New York and London. Savarkar, Vinayak Damodar. 1928. Who is A Hindu? Nagpur. Shapiro, Nina. 2004. ‘The New Abolitionists’, The Seattle Weekly, August 24.


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Singha, Radhika. 1998. A Despotism of Law: Crime and Justice in Early Colonial India, Oxford University Press, Delhi. Sinha, Mrinalini. 1995. Colonial Masculinity: The ‘Manly’ Englishman and the ‘Effeminate Bengali’ in the Late Nineteenth Century, Manchester University Press, Manchester. ———. 2006. Spectres of Mother India: The Global Restructuring of Empire, Duke University Press, Durham. Slaughter, Anne-Marie. 1992. ‘Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine’, Columbia Law Review 92(8). Star, Leonie. 1992. Julius Stone: An Intellectual Life, Oxford University Press, Melbourne. Stone, Julius. 1966. Social Dimensions of Law and Justice, Stevens, London. Swami, Nityananda Giri (ed.). 2002. Cenkottai Sri Avudai Akkal, Swami Nityananda Giri, Tapovanam. Travis, Alan. 2005. ‘“Migrant Air” to Speed Deportations’, The Guardian, July 6. US State Department. October 18, 2004. ‘The Afghan Vote’ at http://www.globalsecurity.org/military/library/news/ 2004/10/wwwh41019.htm (accessed on March 31, 2005). Viswanathan, Gauri. 1989. Masks of Conquest: Literary Studies and British Rule in India, Columbia University Press, New York. Young, Iris Marion. 1989. ‘Polity and Group Difference: A Critique of the Ideal of Universal Citizenship’, Ethics 99(2): 250–74.

3 Critiquing Rights: The Politics of Identity and Difference Upendra Baxi Approaches to a Critique of Contemporary Human Rights

D eriving from the postmodernist mood, method and messages, critiques of ‘contemporary’ human rights remain anxious about the re-emergence of the idea of Universal Reason, a legacy of the Age of Enlightenment, which helped perfect justifications for classical colonialism, racism and universal patriarchy.1 The notion of universality is said to enact not merely new versions of essentialism about human nature but also to invoke the notion of metanarratives: global stories about power and struggle against power. This not merely denies difference but also monopolizes the ‘authentic’ narrative voice. Instead of being empowering, human rights discursivity is then seen, in one way or another, to be disempowering its ostensible beneficiaries. In both these tropes, do we return to modes of totalization of thought and practice? Critics of human rights essentialism remind us that the notion ‘human’ is not pre-given (if indeed, anything is) but constructed. This social construction of that ‘human’ is not necessarily human rights friendly. It often occurs with profound rights-denying impacts, as was clearly the case in the formative practices of the ‘modern’ human rights paradigm. Even as regards the ‘contemporary’ human rights 1 As regards patriarchy, see Sedgwick (1997). See also, Meehan (1995).


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discursive practices, postmodernist critiques now guide us to the idea that the idiom of the universality of human rights may also have a similar impact. For example, the motto ‘women’s rights are human rights’ often masks, with grave costs, the heterogeneity of women in their civilizational and class positions.2 So does the appellation ‘indigenous’ in the quest for a commonly agreed declaration of indigenous people’s rights (Marqaurdt 1995: A7; Barsh 1994: 33). Similarly, the human rights protection instruments on child rights ignore the diversity of children’s subject positions. In many societies the passage between the first and second childhood or the distinction between ‘child’ and ‘adult’ is brutally cut short. The hegemons of human rights allow little or no play for radical plurality. Indeed, it has been recently suggested that the ‘monoculture’ of human rights ‘continues the cultural imperialism of colonialism’, perpetuating the belief that the ‘underdeveloped’ cultures are too poor or primitive to promote the good of their people, while imposing the dominant cultures’ notions of human well-being (Esteva and Prakash 1998: 119, 124). In this view, grassroots groups and initiatives that ‘do not fall victims to this Trojan Horse of recolonization’ deserve celebration, for, through their liberation from the ‘Global Project’ of universal human rights these open our eyes and ‘gaze’, open our hearts and minds to the diverse cultural ways of thinking about the ‘good life’, to the radical pluralism with which the well-being of women, men and animals is understood and promoted in different local spaces of this world. Cultural diversity means not giving one culture’s moral concept — that of human/women’s rights — pre-eminence over others; bringing human rights down from its pedestal, placing it amidst other significant cultural concepts which define the ‘good life’ in a pluriverse (ibid.: 118, 119). De-pedestalizing human rights is a nice polemical motif; and the contrast between ‘monocultures’ and ‘pluriverse’ is See Spelman (1988: x) who maintains that the endeavours at defining ‘women as women’ or ‘sisterhood across boundaries’ is the ‘Trojan-horse of western feminist ethnocentrism’. See also, for a sustained problematization, Butler (1990). 2

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indeed striking. Beyond this, the rhetoric of diversity of conceptions of good life is persuasive only for those pre-committed to the notion that attributes the exclusive authorship of human rights only to the communities of the North and its clones elsewhere. Be that as it may, these important criticisms do not guide us to any serious construction of the notion of ‘essentialism’ in contemporary human rights theory and practice. I know of no contemporary subject-specific human rights instrument that by, and in itself, normatively denies radical diversity or plurality. A minimal human rights literacy will educate us about the obvious: when, for example, human rights declarations and treaties enunciate the rights of ‘women’, ‘minorities’, ‘indigenous peoples’, ‘labour’, ‘migrant workers’, and ‘children’, these do not enact any abstract, ahistorical universal categories with an unchanging and unchangeable ‘essence’. Rather, they direct attention to a variety of subject positions of individuals and groups for whom rights have been enunciated. One may contest the adequacy, even poverty, of these designations or the actual forms and contents of rights thus enshrined. One may also contest the politics of the universality of human rights. Important as such criticisms may be, it is simply unwarranted to ascribe to contemporary human rights any sort of ‘essentialism’ that reduces the conception of being human to any predetermined attributes, properties, or essences. Indeed, the radical difference between the ‘modern’ and ‘contemporary’ human rights discursivity lies precisely in the fact that the latter is not founded upon any predetermined conception of what constitutes a human ‘essence’. A deeper aspect of such criticism may, however, have to do not so much with the texts of international or constitutional affirmation of human rights but with the presuppositions that animate such normativity: presuppositions that reduce all humanity to the EuroAmerican images of what it means to be human. It is often said that these basic presuppositions emanate from the ‘Western’ notions of Enlightenment that constituted the word ‘human’, essentially in the image of a male white individual bourgeois colonizer. While this is certainly true of the paradigm of ‘modern’ human rights, is it correct to extend


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the same indictment to the animating presuppositions of contemporary human rights? There of course remain open several ways of reading contemporary human rights. But it appears to me that the ‘contemporary’ paradigm of rights postulates, and progressively recognizes, that the notion ‘human’ being, and being human, is itself a process of continual redefinition. In maintaining that slavery, racism, colonization, genocide, patriarchy, and violent social exclusion are per se illegitimate, the ‘contemporary’ paradigm not merely delegitimates the old ways of dehumanization but also enables articulation of new forms of human identity through critical engagement with structures of social, political and economic domination. It is true that rights languages and logics complicate the construction of identities. Insofar as the contemporary human rights paradigm accentuates the individual as a ‘sovereign individual’, it promotes visions of a ‘good society’, and of global justice, at the unconscionable expense of genuinely communitarian values.3 Insofar as this paradigm promotes a culture of justice indifferent to an ethic of caring, it does, rightly appear, from a feminist point of view ‘as frightening . . . in its potential justification of indifference and unconcern’ (Gilligan 1982: 22). Also insofar as it raises the sceptre of denial of group rights, the contemporary rights discourse may seem to re-enact the old logics of exclusion (Kukathas 1995). To this extent it might be said with some justification that this essentialization of rights emerges in turn as an essentialist construction of human being, and of being human. However, just as the logics and languages of human rights complicate identity, constructions of logics and languages of identity complicate human rights. It is to this interesting intersection that we now turn.

3 See Davidson and Ress-Mogg (1997). In somewhat instructively irritating ways these messiahs of globalization predict the transformation of citizens into customers, where only those customers (sovereign individuals contrasted with other rational individuals) will be winners in a ‘winners take all’ world. See also Taylor (1985).

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The Politics of Identity Do identities then get universalized all over again in positing a universal bearer of human rights, obscuring the fact that identities may themselves be vehicles of power, all too often inscribed or imposed? Also, do the benign intentions underlying such performative acts of power advance the cause of human rights as well as they serve the ends of power? Students of international law need no immersion into the pools of postmodernisms. They are well aware of the problematic of identity as a vehicle of power, from the Kelsenite ‘constitutive’ theory of recognition of states (under which new states may not be said to exist under international law unless ‘recognized’ by the community of pre-existing states) to the travails of the right to self-determination. They know how that ‘self is constructed, deconstructed, and reconstructed by the play of global power’, with the attendant legitimation of enormous amounts of human misery.4 The evolution of the right to self-determination of states and peoples signifies no more than the power of hegemonic or dominant states to determine the self, which has then the right to self-determination. In sum, that right is only a right to an access to a ‘self’ already predetermined by the play of hegemonic global powers. Is it any longer true that outside the contexts of ‘selfdetermination’, the shackles of state sovereignty determine, See Hannum (1993: 1). He effectively contrasts the reservation by India confining the right to self-determination in Article 1 of the International Covenant on Civil and Political Rights ‘only to peoples under foreign rule’ with the German objection to it insisting on the availability of this right to ‘all peoples’. The zeal with which the developed countries have sought to expand the range of self-determination rights arises from their unique capacity to organize collective amnesia and ruthless prowess in supressing (not too long ago) even the softest voice urging freedom from the colonial yoke. This having been said, it must be added that India’s reservation based on ‘national integrity’, creatively mimes the very same order of enclosure of the politics of identity and difference in vastly different postcolonial conditions. 4


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even when they do condition, bounds of identity? Increasingly, de-territorialization of identity, at the end of the century, is said to be global social fact or human condition.5 Identities tend to become fluid, multiple, contingent, perhaps even to a point when an individual or the subject is viewed as ‘the articulation of an ensemble of subject positions, constructed within specific discourses and always precariously sutured at the intersection of subject positions’ (Mouffe 1992a: 237). Also, the community appears as ‘a discursive surface of inscriptions’ (Mouffe 1992b: 14). There is a great appeal in Chantal Mouffe’s notion of a ‘non-individualistic conception of the individual’. The notion rejects, as concerns human rights, the idea of the individual in terms of ‘possessive individualism’, but it implies more. The individual is conceived by Mouffe as ‘the intersection of a multiplicity of identifications and collective identities that constantly subvert each other’ (Mouffe 1992c: 97, 100). This way of thinking does enable us to revisit the problematic of conflict of rights. In the famous Shah Bano case, for example, the Supreme Court of India constructed the Quranic texts to provide a right of maintenance to divorced Muslim wives; the Indian Parliament restored what was thought to be the orthodox reading of the Quran.6 Progressive women’s organizations and movements, across the religious divide, sought a judicial review of the Act, still

5 For a vivid account of the processes, see Appadurai (1997: 27–65). 6 Mohd Ahmed Khan v. Shah Bano Begum AIR 1985 SC 946. See also Pathak and Rajan (1989). Indeed, the Muslim Women’s Protection of Rights Act innovates the shari’a. In providing that any relative who has the prospect (spec successionis) of inheriting from her has a duty to maintain the divorced woman and that pious trusts (wakfs) have a duty to provide maintenance to divorced women, the Indian Parliament exercises legislative power to amend the shari’a in ways that even the most progressive reformers of Muslim law could never have anticipated! However, the politics of the situation on all sides prevented any acknowledgement (and it still does!) of this daring assertion of legislative power.

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pending before the Supreme Court of India.7 When some of us gained access to Shah Bano (a woman in her sixties, who had been married for over three decades) she reminded us, at the height of impassioned national controversy, that she was not just a woman but that she was a Muslim woman. She was not a na-pak; as a woman she belonged, and stood constituted by the lived tradition of the shari’a. In other words, she claimed gender equality within her tradition and was loathe to surrender it to the power of secularized interpretive communities. Shah Bano’s response provides a striking example of a ‘multiplicity of identifications and collective identities’ that ‘constantly subvert each other’. Her identification as an Indian citizen led her to activate judicial power for vindication of her rights; but the rights she sought were within the shari’a, not dwelling in the much vaunted secularity of high judicial discourse. The recourse to judicial power was creatively communitarian, not a subscription to the ‘Global Project’ of universal human rights. Many similar examples abound. Algerian women living in France claiming the right to veil their face in schools are claiming a right to be different or a right to difference; their deployment of the logic and paralogics of human rights seeks to subvert the ‘monological’ view of human rights through a pluri-universalistic praxis. Here we are confronted by some of the most intractable problems of conflict of rights where selfchosen sedimentation of identity within a religious tradition is at odds with universalistic mode of de-traditionalization of the politics of difference demanding gender equality and justice.

The petition was filed in 1985 by Tara Ali Baig, Madhu Mehta, Lotika Sarkar and myself. The first two petitioners have since demised, and the last two are at the edge of mortality! Obviously, the Court in its administrative powers has silenced the petition. The only good reason for this judicial abdication is provided by the considerations of the institutional integrity of the Court as well as political accommodation between the supreme executive and supreme judicial power in the face of a coup against the Constitution. See Baxi (1994); Agnes (1999: 94–126). 7


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What is crucial, in my view, is the fact that this conflict of human rights (right to free choice of religious belief and practice and right to gender equality and justice) becomes socially visible when a paradigm of universal human rights is securely in place. It is this happening that makes legible the play of subaltern power in a constant subversion of identities.

Questions Raised by the Diaspora of Identity: Thesis for the Politics of, and for, Human Rights To move the discourse from a situation of agency and deliberative rationality to the assertion that the bearer of human rights, individual or collective, does not exist as a ‘unified’ discursive or semiotic object, raises a different order of interlocution altogether. In a post-structuralist, postmodern world, we are all ‘contingent persons’ (Heller 1990). Contingent persons may claim, if at all and with great difficulty, ‘universal’ human rights. The dissipation of the ‘human’ into an ensemble of ‘subject positions’, raises the question as to how these are to be constructed from standpoints of power (politics of human rights) and of resistance (politics for human rights). In other words, how may we construct a variety of subject-positions (human agency within social structures) in ways that theorize repression which in turn enable deployment of the regime of human rights phrases to perform labours of liberation (Young 1990: 39–66)? This kind of analysis raises several questions from the point of view of those engaged in actual human rights struggles. First, are all identities ‘fluid’, ‘multiple’, and ‘contingent’? If, however, you can place yourself in the (non-Rawlsian) original position of a person belonging to an untouchable community (say, in a remote area of Bihar, India) would you find it possible to agree that caste and patriarchal identity has become fluid, multiple, contingent? As an untouchable, no matter how you perceive your identity (as a mother, wife, and daughter) you are still liable to be raped. You will be denied access to water from a high-caste village well and

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subjected to all kinds of forced and obnoxious labour; your huts set ablaze; your adult franchise regularly confiscated at elections by caste-Hindu militia.8 Human rights logic and rhetoric, fashioned by historic struggles, simply and starkly assert that such imposition of primordial identities is morally wrong and legally prohibited. Discrimination on the grounds of birth, sex, domicile, ethnicity, disability, sexual orientation, for example, counts as a violation of internationally proclaimed human rights. It is the mission of human rights logics and paralogics to dislodge primordial identities that legitimate orders imposing suffering. This mission is fraught with grave difficulties. When enforcement of primordial identities by forces occurs in civil society, human rights cast responsibilities upon the state to combat it, raising liberal anxiety levels concerning augmenting the New Leviathan. In addition, the state and the law can oppose such enforcement only by a reconstruction of that collective identity. The ‘untouchables’ in India, constitutionally christened the ‘scheduled castes’, will have to be burdened by this reconstitution: in law and society they would be either untouchables or ex-untouchables. Justifications of affirmative action programmes worldwide, for example, depend on the maintenance of the narrative integrity of the millennial histories of collective hurt. It is true that these essentialize historic identities as new sites of injury, but is there a way out of embattled histories undoubtedly shaped by the dialectics of human rights? Second, what is there to subvert if identities are multiple, contingent, and fluid; if the individual or collective self may no longer exist as a ‘unified’ discursive or semiotic object that can be said to be a bearer of human rights? If the subject is no more and only subject positions exist, how may we construct or pursue the politics for human rights? Put in another way, how may one theorize repression and violation? We need

See the devastatingly accurate account in Rohinton Mistry’s novel, A Fine Balance (1995). 8


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to sharpen these questions, attend to their genealogy, and salvage the possibility of conversation about human rights from the debris of post-identity discourse.9 Third, how does this diaspora of identities narratives empower those haunted by practices of flagrant, massive, and ongoing violations of human rights? For the gurus of postmodern ethics this is not a seriously engaged concern as is the preoccupation with defining and contesting all that is wrong with liberalism and socialism.10 These difficult and complex questions require exhaustive analysis which is beyond the scope of the present work. These entail: First, ways of telling stories (not laboured analytic morphologies) of what constitutes concrete history of human suffering both as discursive and non-discursive order of lived reality, i.e., a ‘history’ of human misery/immiseration in ways that the grand social theory (whether in its originary narrative modes or postmodern revivals) obscures. Second, ways of narrating the histories of structures of torture and terror aimed at destroying, or subjugating, human agency in resistance to the worst forms of inhuman domination. Third, recovery of the senses of human history in which the practices of human resistance to domination were constructed in the pre-human rights and post–human rights experience. 10 Jacques Derrida rightly assails the heady optimism of Fukuyama, asking, rightly, whether it is credible to think that, ‘all these cataclysms (terror, oppression, repression, extermination, genocide and so on)’ constitute ‘contingent or insignificant limitations’ for the messianic and triumphant post–cold war moment of liberalism. Note the gesture of exhaustion in the words italicized here! At the same time he asserts, ‘Our aporia here stem from the fact that there is no longer any name or teleology for determining the Marxist coup and its subject.’ What follows? Derrida, after a fascinating detour on the work of mourning and narcissism, enjoins us as follows: 9

One must constantly remember that the impossible . . . is, alas, always possible. One must constantly remember that this absolute evil . . . can take place. One must constantly remember that even on the basis of this terrible possibility of impossible that justice is desirable . . . though beyond what he calls ‘right and law’. See Derrida (1994: 57, 98, 175, emphasis added).

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Fourth, is this human rights path (entailing the necessity to internalize a primordial identity) counter-productive, specially when it casts state and law ‘as neutral arbiters of injury rather than themselves invested with the power to injure?’ (Brown 1995: 27). Emancipatory in origin, human rights, in the course of enunciation and administration, may become ‘regulatory discourse, a means of obstructing or co-opting more radical political demands, or simply the most hollow of empty promises’. It is ironic that ‘rights sought by a politically’ defined group are conferred upon depoliticized individuals; at the moment a particular ‘we’ succeeds in obtaining rights, it loses ‘we-ness’ and dissolves into ‘individuals’ (ibid.: 98). Indeed, in certain moments, human rights development yields itself to tricks of governance; the ‘pillar of emancipation’ turns out to be the ‘pillar of regulation’ as we see in some striking detail in the next section.11 Were this the only moment of human rights, every triumphal attainment would also be its funerary oration. But does not a regulatory discourse at one moment also become at times an arena of struggle? If international human rights lawyers and the people involved in the movement need to attend to the type of interrogation thus raised, postmodernist ethical thinkers need to wrestle with the recent history of the politics of cruelty, which has constructed, as it were, new primordial communities. These are communities of the tortured and tormented, and the prisoners of conscience across the world, espoused with poignancy and unequalled moral heroism by Amnesty International. Would it be true to say that their identity as victims is random, contingent, multiple, rather than caused by the play of global politics? Until this interrogation is seriously pursued, can it be said that human rights enunciations and movements commit the mortal sin of essentialism or foundationalism in insisting on a universal norm that de-legitimates this invention? Who is this ‘one’ addressed by Derrida? The avant-garde theorist or the being of those subjected continually to the absolute order of evil? No doubt, to sensitize theoretical fellow travellers to the dangers of amnesia is important, but what does it, or should it, mean to the victims of orders of absolute evil? 11 I adapt here Santos’s analysis of the dialectic of regulation and emancipation. See Santos (1995: 7–55).


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Nor, despite this welter of constructivism, does postessentialism, that achieves many a rhetorical tour de force for a Derrida, respond to the problematic posed by archetypal Aung San Su Kyi. She embodies human rights essentialism; so do the Afghan women, under dire straits, who protest the Taliban regime. So also do the UNICEF and the Save the Children movements, which (thanks to the globalized media) seek at times to achieve the impossible. That impossible feat is moving the atrophied conscience of the globalized middle classes to an occasional act of charity, and even of genuine compassion, through excruciating CNN depictions of cruelly starved children in Sudan in the midst of their well-earned aperitif or the first course of their dinner.12 No matter how flawed to the Parisian and neo-Parisian cognitive fashions, human rights discourse furnishes potential for struggle which postmodernist discourse on the politics of identity as yet does not. These cognitive fashion parades may not be allowed to drain emergent solidarities in struggle unless the postmodernist anti-essentialist critique demonstrates that human rights are a mistake. Indeed, engaged human rights discourse makes possible a deeper understanding of the politics of difference insofar as it is in acts of sufferings rather than sanitized thought. It insists that the Other is not dispensable. It sensitizes us to the fact that the politics of Otherhood is not ethically sensible outside the urgency of the maxim: ‘Ask not for whom the bell tolls; it tolls for thee.’ It insists with Rabbi Israeli Salanter that the ‘the material needs of my neighbour are my

However, perhaps, suffering as a spectacle can do no more, for the very act of mass media production of the spectacle of suffering needs to divest it of any structural understanding of the production of suffering itself. In a way, the community of gaze can only be instantly constructed by the erasure of the slightest awareness of complicity. Thus, the mass media must obscure the fact that ‘all those weapons used to make far-away homelands into killing fields have been supplied by our own arms factories, jealous of their orderbooks and proud of their productivity and competitiveness — the life-blood of our own cherished prosperity’ (Bauman 1998: 75). 12

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spiritual needs’.13 Critically engaged human rights discourse obdurately refuses the need to de-essentialize human suffering even under the banner of the diaspora of identities.

The Summons for the Destruction of Narrative Monopolies The critique of human rights may further maintain that relating large global stories (‘metanarratives’) is not so much a function of any emancipative project as of the politics of intergovernmental desire that ingests the politics of resistance. Put another way, these only serve to co-opt into processes and mechanisms of governance the languages of human rights such that bills of rights may adorn with impunity many a military constitutionalism and the so-called human rights commissions that thrive upon state/regime sponsored violation. Unsurprisingly, the more severe the violation of human rights, the more the orders of power declare their loyalty to the regime of human rights. The near-universality of ratification of the CEDAW, for example, betokens no human liberation of women; it only endows the state with the power to tell more Nietzschean lies.14 All too often, human rights languages become stratagems of imperialistic foreign policy through military invasions as well as global economic diplomacy (Chomsky 1996; Muzaffar 1993). Superpower diplomacy at the United Nations is not averse to causing untold suffering to human beings through sanctions whose manifest aim is to serve the future of human rights.15 The solitary superpower, at the end of the

Cited in Levinas (1990: 99), emphasis added. ‘State is the name of the coldest of all cold monsters. Coldly, it tells lies, too; and this lie grows out of its mouth. “I, the state, am the people”’ (Kaufmann 1954: 160–61). 15 See American Association for World Health, Denial of Food and Medicine: The Impact of the US Embargo on Health and Nutrition in Cuba, available at http://www.usaengage.org/studies/cuba.html accessed on March 1, 2010. 13 14


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millennium, has made the regime of sanctions for the promotion of human rights abroad a gourmet cuisine at the White House and Capitol Hill. What is more, the critique may, rightly, insist that the paradigm of universal human rights contains contradictory elements. The UDHR provides for protection of the right to property, making possible its conversion, in these halcyon days of globalization, into a paradigm of trade-related, marketfriendly human rights (beginning its career with the WTO, maturing in an obscene progression in the draft OECD Multilateral Agreement on Investment).16 Global trade relations now stand invested with the resonance of the rhetoric of the moral language of human rights (witness, for example, the discourse on the ‘social clauses’ in WTO as well as sundry bilateral/regional economic/trade arrangements). More to the point, many Southern NGOs who had inaugurated a critique of globalization now look upon international financial institutions as the instrumentalities of deliverance from the pathologies of the ‘nation-state’. The range and depth of many strands in the postmodernist critique of human rights is not dissimilar to Karl Marx’s critique, On the Jewish Question, though the unique idiom of postmodernism was not as abundantly available to him!17 The summons for the destruction of ‘narrative monopolies’ in human rights theory and practice is of enormous importance, as it urges us to recognize that the authorship of human rights rests with communities in the struggle against illegitimate power formations and the politics of cruelty.18 The local, not the global, it needs to be emphasized, remains the crucial site of struggle for the enunciation, implementation, enjoyment, and exercise of human rights. The prehistory of Article 17 protects individual as well as associational rights to property, a provision which for all practical purposes negates the radical-looking assurances in Articles 23–6. Not surprisingly, intellectual property rights are fully recognized in Article 27(2). 17 For a postmodernist revisitation, see Brown (1995: 97–114). 18 Lyotard insists: ‘Destroy all narrative monopolies. . . . Take away the privileges the narrator has granted himself. See Benjamin (1989: 153). 16

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each and every global institutionalization of human rights is furnished everywhere by the local.19 From this perspective, the originary claims of ‘Western’ authorship of human rights become sensible only within a metanarrative tradition which in the past served the dominance ends of colonial/imperial power formations and now serve these ends for the Euro-Atlantic community or the Triadic states (USA, EU, and Japan). In this dominant discourse, both ‘modern’ and ‘contemporary’ notions of human rights emerge, though in different modes, as a ‘vision of a novus ordo seclorum in the world as a whole’ (Jacobson 1996: 1). This discourse prevents recognition that communities in struggle against human violation are the primary authors of human rights. No task is more important, as the golden dust of Universal Declaration festivities settles, than to trace the history of human rights from the point of view of communities united in their struggle amidst unconscionable human suffering. Various feminists have rightly contested the thematic of destruction of metanarratives as inimical to the politics of difference (Di Stefano 1990: 76). At the same time, they also maintain that telling of stories of everyday violation and resistance which recognizes the role of women as authors To quote myself immodestly: After all it was a man called Lokmanya Tilak who in the second decade of this century gave a call to India — swaraj (independence) is my birthright and I shall have it — long before international human rights law proclaimed a right to self-determination. It was a man called Gandhi who early in this century challenged racial discrimination in South Africa, which several decades later laid the foundations for international treaties and declarations on the elimination of all forms of racial discrimination and apartheid. Compared with these male figures, generations of legendary women martyred themselves in prolonged struggles against patriarchy and for gender equality. The current campaigns based on the motto ‘Women’s Rights Are Human Rights’ are inspired by a massive history of local struggles all around. The historic birthplaces of all human rights struggles are the hearth and the home, the church and the castle, the prison and the police precinct, the factory and the farm (Baxi 1996). 19


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of human rights is more empowering in terms of creating solidarity than weaving narratives of universal patriarchy or theorizing repression only as a discursive relation (Laclau and Mouffe 1985: 87–88, 115–16). Feminization of human rights cultures begins only when one negotiates this conflict between meta- and micronarratives of women in struggle. One may even term the task or the mission as one of humanizing human rights, going beyond rarefied discourse on the variety of postmodernists and post-structuralisms to histories of individual and collective hurt. Narratives of concrete ways in which women’s bodies are held in terroram do not pre-eminently feature or figure in human rights theory.20 Theorizing repression does not, to my mind, best happen by contesting Lacan, Derrida, or Foucault; it happens when the theorist shares both the nightmares and dreams of the oppressed. To give language to pain, to experience the pain of the Other inside you, remains the task, always, of human rights narratology. If the varieties of postmodernisms help us to accomplish this, they herald a better future for human rights; if not, they constitute a dance of death for all human rights.

References Agnes, Flavia. 1999. Law and Gender Inequality: The Politics of Women’s Rights in India, Oxford University Press, Delhi. Appadurai, Arjun. 1997. Modernity at Large: Cultural Dimensions of Modernity, University of Minnesota Press, Minneapolis. Baier, Annette. 1987. ‘The Need for More than Justice’, in Science, Morality and Feminist Theory 13: 41–56. Barsh, Russel. 1994. ‘Indigenous Peoples in 1990s: From Object to Subject of International Law?’ Harvard Human Rights Journal 7: 33–86. Bauman, Zygmunt. 1998. Globalization: The Human Consequences, Columbia University Press, New York. Baxi, Upendra. 1994. ‘The Shah Bano Reversal: Coup Against Constitution’, in Upendra Baxi, Inhuman Wrongs and Human Rights: Unconventional Essays, Har-Anand Publications, Delhi, 88–94. ———. 1996. ‘The Reason for Human Rights and the Unreason of Globalization: The First A. R. Desai Memorial Lecture’ (mimeo).

The Politics of Identity and Difference 77 Baxi, Upendra. 1999. ‘From Human Rights to the Rights to be a Woman’, in Amita Dhanda and Archana Parashar (eds), Engendering Law: Essays in Honour of Lotika Sarkar, Eastern Book Company, Lucknow, 275–90. Benjamin, Andrew. 1989. The Lyotard Reader, Blackwell, London. Brown, Wendy. 1995. States of Injury: Power and Freedom in Late Modernity, Princeton University Press, Princeton. Butler, Judith. 1990. Gender Trouble: Feminism and the Subversion of Identity, Routledge, New York and London. Chomsky, Noam. 1996. ‘Great Powers and Human Rights: The Case of East Timor’, in Noam Chomsky, Powers and Prospects: Reflections on Human Nature and the Social Order, South End Press, Boston, 169–93. Davidson, James Dale and William Ress-Mogg. 1997. The Sovereign Individual, Simon and Schuster, New York. Derrida, Jacques. 1994. Spectres of Marx: The State of Debt, the Work of Mourning and the New International, Routledge, London and New York. Di Stefano, Christine. 1990. ‘Dilemmas of Difference’, in Linda Nicholson (ed.), Feminism/Postmodernism: Thinking Gender, Routledge, New York and London. Frug, Mary Jo. 1995. ‘A Postmodern Feminist Legal Manifesto’, in Dan Danielsen and Karen Engle (eds), After Identity: A Render in Law and Culture, Routledge, New York. Esteva, Gustavo and Madhu Suri Prakash. 1998. Grassroots Postmodernism: Remaking the Soil Cultures, Zed Books, London. Gilligan, Carol. 1982. In a Different Voice, Harvard University Press, Cambridge, Massachussets. Hannum, Hurst. 1993. ‘Rethinking Self-Determination’, Virginia Journal of International Law, 34(1): 1–69. Heller, Agnes. 1990. ‘The Contingent Person and Existential Choice’, in Michael Kelly (ed.), Hermeneutics: Critical Theory in Ethics and Politics, MIT Press, Cambridge, Massachussets, 52–69. Jacobson, David. 1996. Rights Without Borders: Immigration and the Decline of American Citizenship, Johns Hopkins University Press, Baltimore. Kaufmann, Walter. 1954. The Portable Nietzsche, Viking Press, New York. Kukathas, Chandran. 1995. ‘Are There any Cultural Rights?’ in Will Kymlicka (ed.), The Rights of Minority Cultures, Oxford University Press, New York, 228–55. Laclau, Ernesto and Chantal Mouffe. 1985. Hegemony and Socialist Strategy: Towards a Radical Democratic Politics, Verso, London.

78 Upendra Baxi Levinas, Emmanuel. 1990. Nine Talmudic Readings, Indiana University Press, Bloomington. Marqaurdt, Stephen. 1995. ‘International Law and Indigenous Peoples’, International Journal of Group Rights 3(1): 47–76. Meehan, Johanna M. 1995. Feminists Read Habermas: Gendering the Subject of Discourse, Routledge, New York. Mistry, Rohinton. 1995. A Fine Balance, Allen and Unwin, Sydney. Mouffe, Chantal. 1992a. ‘Democratic Citizenship and the Political Community’, in Chantal Mouffe, Dimensions of Radical Democracy, Verso Press, London. ———. 1992b. ‘Democratic Politics Today’, in Chantal Mouffe, Dimensions of Radical Democracy, Verso Press, London. ———. 1992c. The Return of the Political, Verso Press, London. Muzaffar, Chandra. 1993. Human Rights and the World Order, Just World Trust, Penang. Pathak, Zia and Rajeswari Sunder Rajan. 1989. ‘Shah Bano’, Signs 14(Spring): 558–88. Santos, Bouvaventura de Sousa. 1995. Towards a New Commonsense: Law, Science and Politics in the Paradigmatic Transition, Routledge, New York. Sedgwick, Sally. 1997. ‘Can Kant’s Ethics Survive the Feminist Critique?’ in Robin May Schott (ed.), Feminist Interpretations of Immanuel Kant, Routledge, New York and London, 77–110. Spelman, Elizabeth V. 1988. Inessential Woman: Problems of Exclusion in Feminist Thought, Beacon Press, Boston. Taylor, Charles. 1985. ‘Atomism’ in Charles Taylor, Philosophical Papers, Cambridge, Cambridge University Press, 2 vol. Young, Iris Marion. 1990. Justice and the Politics of Difference, Princeton University Press, Princeton.

4 Righting Wrongs Gayatri Chakravorty Spivak

The primary nominative sense of rights cited by the Oxford English Dictionary is ‘justifiable claim, on legal or moral grounds, to have or obtain something, or to act in a certain way’. There is no parallel usage of wrongs, connected to an agent in the possessive case — ‘my wrongs’ — or given to it as an object of the verb to have — ‘she has wrongs’. Rights entail an individual or collective. Wrongs, however, cannot be used as a noun, except insofar as an other, as agent of injustice, is involved. The verb to wrong is more common than the noun, and indeed the noun probably gets its enclitic meaning by back-formation from the verb. The word rights in ‘Human Rights, Human Wrongs’, the title of the 2001 Oxford Amnesty Lectures series in which this essay was first presented, acquires verbal meaning by its contiguity with the word wrongs.1 The verb to right cannot be used intransitively on this level of abstraction. It can only be used with the unusual noun wrong: ‘to right a wrong’, or ‘to right wrongs’. Thus ‘human rights’ is not only about having or claiming a right or a set of rights; it is also about righting wrongs, about being the dispenser of these rights. The idea of human rights, in other words, may carry within itself the agenda of a kind of social Darwinism — the fittest must shoulder the burden of righting the wrongs of the

1 This essay was originally presented in the Oxford Amnesty Lectures series ‘Human Rights, Human Wrongs’, Spring 2001. Published as Human Rights, Human Wrongs: The Oxford Amnesty Lectures 2001, Oxford University Press, Oxford, 2003.

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unfit — and the possibility of an alibi.2 Only a ‘kind of’ social Darwinism, of course. Just as ‘the white man’s burden’, undertaking to civilize and develop, was only ‘a kind of’ oppression. It would be silly to footnote the scholarship that has been written to show that the latter may have been an alibi for economic, military and political intervention. It is on that model that I am using the concept-metaphor of the alibi in these introductory paragraphs. Having arrived here, the usual thing is to complain about the Eurocentrism of human rights. I have no such intention. I am of course troubled by the use of human rights as an alibi for interventions of various sorts. But its so-called European provenance is for me in the same category as the ‘enabling violation’ of the production of the colonial subject.3 One cannot write off the righting of wrongs. The enablement must be used even as the violation is renegotiated. Colonialism was committed to the education of a certain class. It was interested in the seemingly permanent operation of an altered normality. Paradoxically, human rights and ‘development’ work today cannot claim this self-empowerment that high colonialism could. Yet, some of the best products of high colonialism, descendants of the colonial middle class, become human rights advocates in the countries of the South. The end of World War II inaugurated the postcolonial dispensation. For the 18th-century Declaration of the Rights of Man and of the Citizen by the National Assembly of France, the ‘nation is essentially the source of sovereignty; nor can any individual, or any body of men, be entitled to any 2 George Shelton (1992: 128–29) incidentally provides a gloss on the native English-speaker’s take on the word wrong. See also Raphael (1988: 164–65). Callinicos (1999) gives other examples of social Darwinism. 3 See Spivak (1999a: 217, n. 33). This is a much-revised version of earlier work. The initial thinking and writing of the piece took place in 1982–83. In other words, I have been thinking of the access to the European Enlightenment through colonization as an enablement for twenty odd years. I am so often stereotyped as a rejecter of the Enlightenment that I feel obliged to make this clear at the outset.

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authority which is not expressly derived from it’.4 A hundred and fifty years later, for better or for worse, the human rights aspect of postcoloniality has turned out to be the breaking of the new nations, in the name of their breaking-in into the international community of nations.5 This is the narrative of international maneuvering. Thomas Risse, Stephen Ropp and Kathryn Sikkink’s book, The Power of Human Rights (1999), takes the narrative further. In addition to the dominant states, they argue, since 1993 it is the transnational agencies, plus NGOs, that subdue the state. Nevertheless, it is still disingenuous to call human rights Eurocentric, not only because, in the global South, the domestic human rights workers are, by and large, the descendants of the colonial subject, often culturally positioned against Eurocentrism, but also because, internationally, the role of the new diasporic is strong, and the diasporic in the metropolis stands for ‘diversity’, ‘against Eurocentrism’. Thus the work of righting wrongs is shared above a class line that to some extent and unevenly cuts across race and the North– South divide. I say ‘to some extent and unevenly’ because, to be located in the Euro-U.S. still makes a difference. In the UN itself, ‘the main human rights monitoring function [has been] allocated to the OSCE’. The presuppositions of Risse, Ropp and Sikkink’s book also make this clear. The subtitle — International Norms and Domestic Change — is telling. The authors’ idea of the motor of human rights is ‘pressure’ on the state ‘from above’ — international — and ‘from below’ — domestic. (It is useful for this locationist privilege that most NGOs of the global South survive on Northern aid.) This is pressure ‘from below’, of course. Behind these ‘societal actors’ and the state is ‘international normative pressure’. I will go on to suggest that, unless ‘education’ is thought differently from ‘consciousness-raising’ about ‘the Cited in Paine (1992: 79). The identity of the nation and the state is generally associated with the Peace of Westphalia (1648), often thought of as one of the inaugurations of the Enlightenment. See, for example, Churchill (1988: 17). 4 5

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human rights norm’ and ‘rising literacy expand[ing] the individual’s media exposure’, ‘sufficient habitualization or institutionalization’ will never arrive, and this will continue to provide justification for international control (Risse et al. 1999: 167). Thinking about education and the diaspora, Edward Said has recently written that ‘the American University generally [is] for its academic staff and many of its students the last remaining utopia’ (Said 2000: xi). The philosopher Richard Rorty as well as Lee Kuan Yew, the former prime minister of Singapore — who supported ‘detention without trial . . . [as] Confucianist’ — share Professor Said’s view of the utopianism of the Euro-U.S. university. I quote Rorty, but I invite you to read Premier Lee’s From Third World to First: The Singapore Story: 1965–2000 to savour their accord: ‘Producing generations of nice, tolerant, well-off, secure, other-respecting students of [the American] sort in all parts of the world is just what is needed — indeed all that is needed — to achieve an Enlightenment utopia. The more youngsters like that we can raise, the stronger and more global our human rights culture will become.’6 If one wishes to make this restricted utopianism, which extends to great universities everywhere, available for global social justice, one must unmoor it from its elite safe harbours, supported by the power of the dominant nation’s civil polity, and be interested in a kind of education for the largest sector of the future electorate in the global South — the children of the rural poor — that would go beyond literacy and numeracy and find a home in an expanded definition of a ‘Humanities to come’. Education in the Humanities attempts to be an uncoercive rearrangement of desires. If you are not persuaded by this simple description, nothing I say about the Humanities will move you. This is the burden of the second section of 6 See this volume, Chapter Five, p. 123. See also, Lee (2000); the sentiment about detention is to be found on p. 488. Meanwhile, general pieces like Eide’s ‘Historical Significance of the Universal Declaration’ (1998) share neither Rorty’s wit nor the realism of the rest.

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this essay. This simple but difficult practice is outlined there. It is only when we interest ourselves in this new kind of education for the children of the rural poor in the global South that the inevitability of unremitting pressure as the primum mobile of human rights will be questioned. If one engages in such empowerment at the lowest level, it is in the hope that the need for international/domesticelite pressure on the state will not remain primary forever. We cannot necessarily expect the old colonial subject transformed into the new domestic middle-class urban radical, defined as ‘below’ by Risse, Ropp and Sikkink and by metropolitan human rights in general, to engage in the attempt I will go on to describe. Although physically based in the South, and therefore presumably far from the utopian university, this class is generally also out of touch with the mindset — a combination of episteme and ethical discourse — of the rural poor below the NGO level. To be able to present a project that will draw aid from the North, for example, to understand and state a problem intelligibly and persuasively for the taste of the North, is itself proof of a sort of epistemic discontinuity with the ill-educated rural poor. (And the sort of education we are thinking of is not to make the rural poor capable of drafting NGO grant proposals!) This discontinuity, not skin colour or national identity crudely understood, undergirds the question of who always rights and who is perennially wronged. I have been suggesting, then, that ‘human rights culture’ runs on unremitting Northern-ideological pressure, even when it is from the South; that there is a real epistemic discontinuity between the Southern human rights advocates and those whom they protect.7 In order to shift this layered discontinuity, however slightly, we must focus on the quality and end of education, at both ends; the Southern elite is Anthony de Reuck (1988: 59–63) comments on the discontinuity between subaltern and elite (using a ‘periphery/center’ vocabulary) as ‘styles of perceptual incoherence . . . on the threshold of a cultural anthropology of philosophical controversy’ and veers away from it: ‘That, as they say, is another story!’ My essay lays out the practical politics of that other story, if you like. 7

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often educated in Western or Western-style institutions. So we must work at both ends — both in Said/Rorty’s utopia and in the schools of the rural poor in the global South. I will argue this by way of a historical and theoretical digression. As long as the claim to natural or inalienable human rights was reactive to the historical alienation in ‘Europe’ as such — the French ancien régime or the German Third Reich — the problem of relating ‘natural’ to ‘civil’ rights was on the agenda. Since its use by the Commission on Decolonization in the 1960s, its thorough politicization in the 1990s, when the nation-states of the South, and perhaps the nation-state form itself, needed to be broken in the face of the restructuring demands of globalization, and its final inclusion of the postcolonial subject in the form of the metropolitan diasporic, that particular problem — of relating ‘natural’ to ‘civil’ rights — was quietly forgotten. In other words, that the question of nature must be begged (assumed when it needs to be demonstrated), in order to use it historically, has been forgotten. I have not the expertise to summarize the long history of the European debate surrounding natural/civil rights. With some hesitation I would point at the separation/imbrication of nature and liberty in Machiavelli, at the necessary slippage in Hobbes between social contract as natural fiction and social contract as civil reality, at Hobbes’s debate on liberty and necessity with Bishop Bramhill. Hobbes himself places his discussions within debates in Roman law and I think we should respect this chain of displacements — rather than a linear intellectual history — that leads to the rupture of the first European Declaration of Human Rights.8 I am arguing that such speculative lines are not allowed to flourish within today’s global human rights activities where a crude notion of cultural difference is about as far as grounds talk will go. In his reading of Rousseau in Of Grammatology Derrida (1976: 95–316) has indicated Rousseau’s place on this chain. Locke’s view of natural rights is another well-known concatenation on this chain (see Locke [1990] for how Locke taught the issue; for a scholarly account, see Simmons (1992). 8

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Academic research may contest this trend by tracking rational critique and/or individualism within non-European high cultures. This is valuable work. But the usually silent victims of pervasive rather than singular and spectacular human rights violations are generally the rural poor. These academic efforts do not touch their general cultures, unless it is through broad generalizations, positive and negative. Accessing those long-delegitimized epistemes requires a different engagement. The pedagogic effort that may bring about lasting epistemic change in the oppressed is never accurate, and must be forever renewed. Otherwise there does not seem much point in considering the Humanities worth teaching. And, as I have already signaled, the red thread of a defense of the Humanities as an attempt at uncoercive re-arrangement of desires runs through this essay. Attempts at such pedagogic change need not necessarily involve confronting the task of undoing the legacy of a specifically colonial education. Other political upheavals have also divided the postcolonial or global polity into an effective class apartheid. The redressing work of Human Rights must be supplemented by an education that can continue to make unstable the presupposition that the reasonable righting of wrongs is inevitably the manifest destiny of groups — unevenly class-divided, embracing North and South — that remain poised to right them; and that, among the receiving groups, wrongs will inevitably proliferate with unsurprising regularity. Consequently, the groups that are the dispensers of human rights must realize that, just as the natural Rights of Man were contingent upon the historical French Revolution, and the Universal Declaration upon the historical events that led to World War II, so also is the current emergence, of the human rights model as the global dominant, contingent upon the turbulence in the wake of the dissolution of imperial formations and global economic restructuring. The task of making visible the begged question grounding the political manipulation of a civil society forged on globally defined natural rights is just as urgent; and not simply by way of cultural relativism. What we are describing is a simplified version of the aporia between ethics and politics. An aporia is disclosed only in its


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one-way crossing. This essay attempts to make the reader recognize that human rights is such an interested crossing, a containment of the aporia in binary oppositions.9 A few words, then, about supplementing metropolitan education before I elaborate on the pedagogy of the subaltern. By subaltern I mean those removed from lines of social mobility.10 I will continue to insist that the problem with U.S. education is that it teaches (corporatist) benevolence while trivializing the teaching of the Humanities. The result is, at best, cultural relativism as cultural absolutism (‘Americanstyle education will do the trick’). Its undoing is best produced by way of the training of reflexes that kick in at the time of urgency, of decision and policy. However unrealistic it may seem to you, I would not remain a teacher of the Humanities if I did not believe that at the New York end — standing metonymically for the dispensing end as such — the teacher can try to rearrange desires noncoercively, as I mentioned earlier, through an attempt to develop in the student a habit of literary reading, even just ‘reading’, suspending oneself into the text of the other — for which the first condition and effect is a suspension of the conviction that I am necessarily better, I am necessarily indispensable, I am necessarily the one to right wrongs, I am necessarily the end product for which history happened, and that New York is necessarily the capital of the world. A training in literary reading is a training to learn from the singular and the unverifiable. Although literature cannot speak, this species of patient reading, miming an effort to make the text respond, as it were, is a training not only in poiesis, accessing the other so well that probable action can be prefigured, but teleo-poiesis, striving for a response from the distant other, without guarantees. 9 I use aporia to name a situation where there are two right ways that cancel each other and that we, by being agents, have already marked in one way, with a decision that makes us rather than we it. There are other, more philosophically complex ways of formalizing aporia. 10 For a more extensive definition, see Spivak (1999a: 269–74).

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I have no moral position against grading, or writing recommendation letters. But if you are attempting to train in specifically literary reading, the results are not directly ascertainable by the teaching subject, and perhaps not the taught subject either. In my experience, the ‘proof’ comes in unexpected ways, from the other side. But the absence of such proof does not necessarily ‘mean’ nothing has been learned. This is why I say ‘no guarantees’. And that is also why the work of an epistemic undoing of cultural relativism as cultural absolutism can only work as a supplement to the more institutional practice, filling a responsibility-shaped gap but also adding something discontinuous. As far as human rights goes, this is the only prior and patient training that can leaven the quick-fix training institutes that prepare international civil society workers, including human rights advocates, with uncomplicated standards for success. This is not a suggestion that all human rights workers should have institutional Humanities training. As it stands, Humanities teaching in the United States is what I am describing only in the very rare instance. And the mode is ‘to come’. It is in the interest of supplementing metropolitan Humanities pedagogy, rather than from the perspective of some fantasmatic cultural difference, that we can say that the ‘developed postcapitalist structure’ of today’s world must ‘be filled with the more robust imperative to responsibility that capitalist social productivity was obliged to destroy. We must learn to redefine that lost imperative as defective for the emergence of capitalism, rather than necessarily precapitalist on an interested sequential evolutionary model’ (Spivak 1999b: 68). In the simplest terms, being defined by the call of the other — which may be a defining feature of such societies — is not conducive to the extraction and appropriation of surplus. Making room for otium and living in the rhythm of the eco-biome does not lead to exploration and conquest of nature. And so on. The method of a specifically literary training, a slow mind-changing process, can be used to open the imagination to such mindsets.11 As I will mention later in connection with Anthony Giddens’s Beyond Left and Right (1994), I am not extolling the virtues of poverty, not even the Christian virtues of poverty, as does Sahlins 11

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One of the reasons international communism failed was because Marx, an organic intellectual of the industrial revolution, could only think of the claiming of rights to freedom from exploitation by way of the public use of reason recommended by the European Enlightenment. The ethical part, to want to exercise the freedom to redistribute, after the revolution, comes by way of the sort of education I am speaking of. A desire to redistribute is not the unproblematic consequence of a well-fed society. In order to get that desire moving by the cultural imperative of education, you have to fix the possibility of putting not just wrong over against right, with all the genealogical lines compressed within it, but also to suggest that another antonym of right is responsibility, and further, that the possibility of such responsibility is underived from rights. The responsibility I speak of is not necessarily the one that comes from the consciousness of superiority lodged in the self, but one that is, to begin with, sensed before sense as a call of the other. Instead, varieties of the Churchillian sense of ‘responsibility’ — ‘The price of greatness is responsibility’ — nearly synonymous with duty, have always also been used from within the rights camp. Machiavelli and Hobbes both wrote on duty. The 1793 version of the Declaration of the Rights of Man already contained a section on the duties of man and of the citizen. The UN issued a Declaration of Responsibilities — little more than a reinscription of the rights as duties for their establishment — in 1997. There is a scientists’ Declaration of Duties. And so on. This is the trajectory of the idea of ‘responsibility’ as assumed, by choice, by the group that can right wrongs. However, even a liberal (1972: 32–33) by association. I am only interested in bringing those virtues above, and concurrently instilling the principles of a public sphere below; teaching at both ends of the spectrum. For, from the point of view of the asymmetry of what I am calling class apartheid in the global South, a responsibility-based disenfranchised stagnating culture left to itself can only be described, in its current status within the modern nation-state, as ‘a reversal of “possessive individualism”’, ‘the tragedy “of negative individuality” or individualism’ (Balibar n.d.).

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vision (like that of Amnesty International) is obliged to admit that there is no continuous line from rights to responsibilities. This notion of responsibility as the ‘duty of the fitter self’ towards less fortunate others (rather than the predication of being-human as being called by the other, before will) is not my meaning, of course. I remain concerned, however, by one of its corollaries in global social movements. The leaders from the domestic ‘below’ — for the subaltern an ‘above’ — not realizing the historically established discontinuity between themselves and the subaltern, counsel self-help with great supervisory benevolence. This is important to remember because the subalterns’ obvious inability to do so without sustained supervision is seen as proof of the need for continued intervention. It is necessary to be involved in the everyday working (the ‘textuality’) of global social movements to recognize that the seeming production of ‘declarations’ from these supervised groups is written to dictation and no strike against class apartheid. ‘To claim rights is your duty’ is the banal lesson that the above — whether Northern or Southern — then imparts to the below. The organization of international conferences with exceptionalist tokenization to represent collective subaltern will is a last-ditch solution, for both sides, if at all. And, sometimes, the unwitting native informant is rather far from the subaltern. It can seem at first glance that if the Euro-U.S. mindset modifies itself by way of what used to be called, just yesterday, Third Way politics, providing a cover for social democracy’s rightward swing, perhaps the dispensers of human rights would at least modify their arrogance. As George W. Bush claims Tony Blair as his chum on Bush’s visit to Britain in July 2001, I believe it is still worth examining this impulse, however briefly, so that it is not offered as a panacea. Let us look at a few crucial suggestions from Beyond Left and Right by Anthony Giddens, the academic spokesperson of the Third Way.12 See Giddens (1994: 165, 184, 185, 190, 194, 247). ‘Third Way’ was, I believe, coined in a Fabian Society pamphlet (Blair 1998) confined to policies of a European Britain. I am grateful to Susan M. Brook for getting me this pamphlet. It was used by Bill Clinton in a round-table discussion sponsored by the Democratic Leadership Council in Washington, D.C., on April 25, 1999. 12

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Giddens mentions the virtues of Third World poverty and therefore may seem at first glance to be recommending learning from the subaltern. Criticizing the welfare state, he quotes Charles Murray with approval: ‘Murray, whose work has been influenced by experiences in rural Thailand, asks the question, what’s wrong with being poor (once people are above the level of subsistence poverty)? Why should there be such a general concern to combat poverty?’ I hope it is clear that I have no interest in keeping the subaltern poor. To repeat, it is in view of Marx’s hope to transform the subaltern — whom he understood only as the worker in his conjuncture — into an agent of the undoing of class apartheid rather than its victim that this effort at educating the educator is undertaken. How is Professor Giddens going to persuade global finance and world trade to jettison the culture of economic growth? He is, of course, speaking of state policy in Europe, but his book tries to go beyond into other spaces: ‘The question remains whether a lifestyle pact as suggested here for the wealthy countries could also work when applied to the divisions between North and South. Empirically, one certainly could not answer this question positively with any degree of assurance. Analytically speaking, however, one could ask, what other possibility is there?’13 However utopian it might seem, it now appears to me that the only way to make these sweeping changes — there is nothing inherently wrong with them, and, of course, I give Professor Giddens the benefit of the doubt — is for those who teach in the Humanities to take seriously the necessary but impossible task to construct a collectivity among the dispensers of bounty as well as the victims of oppression. I have discussed the role of teaching in the formation of collectivities (Spivak 2000: 1723–37). Necessary but impossible tasks—like taking care of health although it is impossible to be immortal; or continuing to listen, read, write, talk, and teach although it is impossible that everything be communicated — lead to renewed and persistent effort. I use this formula because this is the only justification for Humanities pedagogy. This is distinct from the ‘utopian mode’, which allows us to figure the impossible. 13

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Learning from the subaltern is, paradoxically, through teaching. In practical terms, working across the classculture difference, trying to learn from children, and from the behaviour of class-‘inferiors’, the teacher learns to recognize, not just a benevolently coerced assent, but also an unexpected response. For such an education speed, quantity of information, and number of students reached are not exclusive virtues. Those ‘virtues’ are inefficient for education in the responsibilities in the Humanities, not so much a sense of being responsible for, but of being responsible to, before will. Institutionally, the Humanities, like all disciplines, must be subject to a calculus. It is how we earn our living. But where ‘living’ has a larger meaning, the Humanities are without guarantees. Speaking with reference to the Rights of Man and the Universal Declaration, I am insisting that in the European context, it used to be recognized that the question of nature as the ground of rights must be begged in order to use it historically. The assumption that it is natural to be angled toward the other, before will, the question of responsibility in subordinate cultures, is also a begged question. Neither can survive without the other, if it is a just world that we seem to be obliged to want. Indeed, any interest in human rights for others, in human rights and human wrongs, would do better if grounded in this second begged question, to redress historical balance, as it were, than in the apparent forgetting of the other one. In the beginning are two begged questions. In the ‘real world’, there is, in general, a tremendously uneven contradiction between those who beg the question of nature as rights for the self and those who beg the question of responsibility as being called by the other, before will. If we mean to place the latter — perennial victims — on the way to the social productivity of capital, we need to acknowledge the need for supplementation there as well, rather than transform them willy-nilly, consolidating already existing hierarchies, exporting gender struggle, by way of the greed for economic growth. (I have argued earlier in this essay that these cultures started stagnating because their cultural axiomatics were defective for capitalism. I have also

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argued that the socialist project can receive its ethical push not from within itself but by supplementation from such axiomatics. I have argued that in their current decrepitude the subaltern cultures need to be known in such a way that we can suture their reactivated cultural axiomatics into the principles of the Enlightenment. I have argued that socialism belongs to those axiomatics. That socialism turns capital formation into redistribution is a truism. It is by this logic that supplementation into the Enlightenment is as much the possibility of being the agent of the social productivity of capital as it is of the subjectship of human rights.) The general culture of Euro-U.S. capitalism in globalization and economic restructuring has conspicuously destroyed the possibility of capital being redistributive and socially productive in a broad-based way. As I have mentioned here, ‘the burden of the fittest’ — a reterritorializing of ‘the white man’s burden’ — does also touch the economic sphere. Meanwhile, the seriousness of training into the general culture is reflected by the fact that Morgan Stanley Dean Witter, Merrill Lynch, and other big investment companies are accessing preschoolers; children are training parents to manage portfolios. There is a growing library of books making it ‘fun’ for kids to invest and giving them detailed instructions how to do so. The unquestioned assumption that to be rich is to be happy and good is developed by way of many ‘educational’ excuses. Such a training of children builds itself on the loss of the cultural habit of assuming the agency of responsibility in radical alterity. It is followed through by the relentless education into business culture in academic and on-the-job training, in management, consumer behaviour, marketing, prepared for by the thousands and thousands of business schools all over the global South as well as the North, training undergraduates into business culture, making the supplementation of the responsibility-based subaltern layer by the ethics of class-culture difference altogether impossible, consolidating class apartheid. The Declaration of the Right to Development is part of such acculturation into the movements of finance capital. Third Way talk floats on this base. Culturalist support is provided on the internet —

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in book digests on ‘market Taoism’ and ‘Aristotle for capitalism’.14 It is provided in the sales presentations of countless telecommunication marketing conferences. It connects to the laughing and frequent exhortations to ‘follow the money’ at women’s rights meetings at the UN. We should keep all this in mind when we give Professor Giddens the benefit of the doubt. Such a training of children is also a legitimation by reversal of our own insistence on elementary pedagogy of the rural poor. Supplementation by the sort of education I am trying to describe becomes necessary here, so that the relationship between child investors and child labourers is not simply one of righting wrongs from above. How does such supplementation work? If in New York, the subterranean task is to supplement the radical responsibility-shaped hole in the education of the dispenser of rights through literary reading, and making use of the Humanities, what about the education of those whose wrongs are righted? Some assumptions must first be laid aside. The permeability of global culture must be seen as restricted. There is a lack of communication between and among the immense heterogeneity of the subaltern cultures of the world. Cultural borders are easily crossed from the superficial cultural relativism of metropolitan countries, whereas, going the other way, the so-called peripheral countries encounter bureaucratic and policed frontiers. The frontiers of subaltern cultures, which developed no generative public role, have no channels of interpenetration. Here, too, the problem is not solved in a lasting way by the inclusion of exceptional subalterns in South-based global movements with leadership drawn from the descendants of colonial subjects, even as these networks network. These figures are no longer representative of the subaltern stratum in general. We must question the assumption that, if the sense of doing for the other is not produced on call from a sense of the self as sovereign, packaged with the sense of being fittest, the alternative assumption, romantic or expedient, of an See Clark (n.d.) and Morris (1997). Examples can be multiplied. 14

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essence of subalternity as the source of such a sense, denies the depradations of history. We must be on guard against subalternist essentialism, both positive and negative. If the self-permission for continuing to right wrongs is pre-mised implicitly on the former — they will never be able to help themselves — the latter nourishes false hopes that will as surely be dashed and lead to the same result: an unwilling conclusion that they must always be propped up. Indeed, in the present state of the world, or perhaps always and everywhere, simply harnessing responsibility for accountability in the South, checking up on other directedness, as it were, without the persistent training, of ‘no guarantees’, we reproduce and consolidate what can only be called ‘feudalism’, where a benevolent despot like Lee Kuan Yew can claim collectivity rather than individualism when expedient. Declarations like the Bangkok NGO Declaration, entitled ‘Our Voice’, and cataloging what ‘their right to selfdetermination’ would be for ‘Indigenous People in general’, may, like many UN Declarations, be an excellent tool for political manoeuvring, but it will not touch the entire spectrum of Asian aboriginals, each group as culturally absolutist as the rural audience at the biodiversity festival.15 In order to make the political manoeuvrings open to the ethical, we must think the supplementation towards which we are now moving. Subordinate cultures of responsibility — a heuristic generalization as precarious as generalizations about the dominant culture — base the agency of responsibility in that outside of the self that is also in the self, half-archived and therefore not directly accessible. I use the word subordinate here because, as I have been arguing throughout this essay, they are the recipients of human rights bounty, which I see as ‘the burden of the fittest’, and which, as I insist from the first page on down, has the ambivalent structure of enabling violation that anyone of goodwill associates with the white ‘Our Voice’, Bangkok NGO Declaration, available online at www.nativenet.uthsca.edu/archive/nl/9307. Accessed on August 12, 2010. 15

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man’s burden. I will rely on this argument for this second part of my essay, which concerns itself with the different way in to the damaged episteme. I am asking readers to shift their perception from the anthropological to the historico-political and see the same knit textile as a torn cultural fabric in terms of its removal from the dominant loom in a historical moment. That is what it means to be a subaltern. My point so far has been that, for a long time now, these cultural scripts have not been allowed to work except as a delegitimized form forcibly out of touch with the dominant through a history that has taken capital and empire as telos. My generalization is therefore precarious, though demonstrable if the effort I go on to describe is shared. These concept-metaphors, of suturing a torn fabric, of recoding a delegitimized cultural formation, are crucial to the entire second half of my argument. Subordinate cultures of responsibility, then, base the agency of responsibility in that outside of the self that is also in the self, half-archived and therefore not directly accessible. Such a sentence may seem opaque to (Christianized) secularists who imagine ethics as internalized imperatives; they may seem silly to the ordinary language tradition that must resolutely ignore the parts of the mind not accessible to reason in order to theorize. It may be useful to think of the archived exteriority, in terms of your unmediated knowledge, of the inside of your body. The general premise of the Oxford Amnesty series, the Genetic Revolution and Human Rights, for example, was that genes are digitalized words that are driving our bodies, our selves (Burley 1999). Yet they are inaccessible to us as objects and instruments of knowledge, insofar as we are sentient beings. Think also of our creative invention in the languages that we know well. The languages have histories before us, and futures after us. They are outside us, in grammar books and dictionaries. Yet the languages that we know and make in are also us, and in us. These are analogies for agency that is out of us but in us — and, like all analogies, imperfect, but I hope they will suffice for now. In responsibility-based subordinate cultures the volatile space of responsibility can be grasped through these analogies, perhaps.


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These analogies work in the following way: if we can grasp that all human beings are genetically written before will; and if we can grasp that all human children access a language that is ‘outside’, as mother-tongue; then, on these structural models, we might grasp the assumption that the human being is human in answer to an ‘outside call’. We can grasp the structure of the role of alterity at work in subordinate cultures, by way of these analogies. The word before in ‘before the will’ is here used to mean logical and chronological priority as well as ‘in front of’. The difference is historical, not essential. It is because I believe that right/ responsibility can be shared by everyone in the persistent mode of ‘to come’ that I keep insisting on supplemental pedagogy, on both sides. In its structure, the definitive predication of being-human by alterity is not with reference to an empirical outside world. Just as I cannot play with my own genes or access the entire linguisticity of my mother tongue, so ‘is’ the presumed alterity radical in the general sense. Of course it bleeds into the narrow sense of ‘accountability to the outside world’ but its anchor is in that imagined alterity that is inaccessible, often transcendentalized and formalized (as indeed is natural freedom in the rights camp). I need not be more specific here. The subordinate subaltern is as diversified as the recipients of human rights activity. I need not make too many distinctions. For they are tied by a Universal Declaration. I am suggesting that human rights activism should be supplemented by an education that should suture the habits of democracy onto the earlier cultural formation. I think that the real effort should be to access and activate the tribals’ indigenous ‘democratic’ structures to parliamentary democracy by patient and sustained efforts to learn to learn from below. Activate is the key word here. There is no tight cultural fabric (as opposed to group solidarity) among these disenfranchised groups after centuries of oppression and neglect. Anthropological excavation for description is not the goal here. (I remain suspicious of academic golden-agism from the colonial subject.) I am not able to give scholarly information. Working hands-on with teachers and students

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over long periods of time on their own terms without thinking of producing information for my academic peers is like learning a language ‘to be able to produce in it freely . . . [and therefore] to move in it without remembering back to the language rooted and planted in [me, indeed] forgetting it’ (Marx 1973: 147, translation modified). Even if the immense labour of follow-up investigation on a case-by-case basis is streamlined in our era of telecommunication, it will not change the epistemic structure of the dysfunctional responsibility-based community, upon whom rights have been thrust from above. It will neither alleviate the reign of terror nor undo the pattern of dependency. The recipient of human rights bounty, an agent of counterterrorism and litigious blackmail at the grassroots, will continue not to resemble the ego ideal implied by the Enlightenment and the Universal Declaration of Human Rights (UDHR). As long as real equalization through recovering and training the long-ignored ethical imagination of the rural poor and indeed, all species of subproletarians on their own terms — is not part of the agenda to come, she or he has no chance of becoming the subject of human rights as part of a collectivity, but must remain, forever, its object of benevolence. We will forever hear in the news, local to global, how these people cannot manage when they are left to manage on their own, and the new imperialism, with an at best embarrassed social Darwinist base, will get its permanent sanction. The seventh article of the Declaration of the Rights of Man and of the Citizen, following 18th-century European radical thought, says that ‘the law is an expression of the will of the community’ (Paine 1992: 79). Among the rural poor of the global South, one may attempt, through that species of education without guarantees, to bring about a situation where the law can be imagined as the expression of a community, always to come. Otherwise the spirit of human rights law is completely out of their unmediated reach. The training in ‘literary reading’ in the metropolis is here practised, if you like, in order to produce a situation, in the mode of ‘to come’, where it can be acknowledged that ‘reciprocally recognized rating [to acknowledge a corresponding integrity

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in the other] is a condition without which no civil undertaking is possible’ (Sacksteder 1988: 103). The supplementary method that I will go on to outline does not suggest that human rights interventions should stop. It does not even offer the impractical suggestion that the human rights activists themselves should take time to learn this method. Given the number of wrongs all the world over, those who right them must be impatient. I am making the practical suggestion for certain kinds of Humanities teachers, here and there, diasporics wishing to undo the delinking with the global South represented by impatient benevolence, second-generation colonial subjects dissatisfied by the divided postcolonial polity. Only, whoever it is must have the patience and perseverance to learn well one of the languages of the rural poor of the South. This, I hope, will set them apart from the implicit connection between world governance and the self-styled international civil society. One of the languages. For the purposes of the essential and possible work of righting wrongs — the political calculus — the great European languages are sufficient. But for access to the subaltern episteme to devise a suturing pedagogy, you must take into account the multiplicity of subaltern languages. This is because the task of the educator is to learn to learn from below, the lines of conflict resolution undoubtedly available, however dormant, within the disenfranchised cultural system; giving up convictions of triumphalist superiority. It is because of the linguistic restriction that one is obliged to speak of just the groups one works for; but, in the hope that these words will be read by some who are interested in comparable work elsewhere, I am always pushing for generalization. The trainer of teachers will find the system dysfunctional and corrupted, mired in ritual, like a clear pond choked with scum. For their cultural axiomatics as well as their already subordinated position did not translate into the emergence of nascent capitalism. We are now teaching our children in the North, and no doubt in the North of the South, that to learn the movement of finance capital is to learn social responsibility. It is in the remote origins of this conviction — that capitalism is responsibility — that we might locate the beginning of the failure of the Aboriginal groups of

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the kind I am describing: their entry into (a distancing from) modernity as a gradual slipping into atrophy.16 This history breeds the need for activating an ethical imperative atrophied by gradual distancing from the narrative of progress — colonialism/capitalism. This is the argument about cultural suturing, learning from below to supplement with the possibility of the subjectship of rights.17 Now I go back to my broader argument — a new pedagogy. The national education systems are pretty hopeless at this level because they are the detritus of the postcolonial state, the colonial system turned to rote, unproductive of felicitous colonial subjects like ourselves, at home or abroad. This is part of what started the rotting of the cultural fabric of which I speak. Therefore, I am not just asking that they should have ‘the kind of education we have had’. The need for supplementing metropolitan education — ‘the kind of education we have had’ — is something I am involved in every day in my salaried work. And when I say ‘rote’, I am not speaking of the fact that a student might swot as a quick way to do well in an exam. I am speaking of the scandal that, in the global South, in the schools for middle-class children and above, the felicitous primary use of a page of language is to understand it; but in the schools for the poor, it is to spell and memorize. The teachers on this ground level at which we work tend to be the least successful products of a bad system. Our educator must learn to train teachers by attending to the children. It is through learning how to take children’s response to teaching as our teaching text that we can hope to put ourselves in the way of ‘activating’ democratic structures. For an uncritical summary of this cultural formation as universal history, see Reagan (1979). 17 We should not forget that Kant (1996: 60–61) fixed the subject of the Enlightenment as one who could write for posterity and the whole world as a scholar. As the reader will see, our effort is to suture a cultural inscription rather unlike Kant’s into the thinking and practice of the public sphere and an education that will not preserve class apartheid. An unintended posterity, a world not imagined by him as participant in the cosmopolitical. 16

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The effort at education that I am describing hopes against hope that a permanent sanction of the social Darwinism — ‘the burden of the fittest’ — implicit in the human rights agenda will, perhaps, be halted if the threads of the torn cultural fabric are teased out by the uncanny patience of which the Humanities are capable at their best, for the ‘activation’ of dormant structures. Indeed, this is the ‘Humanities component’, attending upon the object of investigation as other, in all labour. Here is the definitive moment of a Humanities ‘to come’, in the service of a human rights, that persistently undoes the asymmetry in our title ‘Human Rights, Human Wrongs’ by the uncoercive rearrangement of desires in terms of the teaching text described earlier in this essay. To suture thus the torn and weak responsibility-based system into a conception of human dignity as the enjoyment of rights one enters ritual practice transgressively, alas, as a hacker enters software. The description of ritual-hacking may seem silly, perhaps. But put yourself on the long road where you can try it, and you will respect us — you will not dismiss as ‘nothing but’ this or that approach on paper. Insofar as this hacking is like a weaving, this, too, is an exercise in texere, textility, texting, textuality. I must continue to repeat that my emphasis is on the difficulties of this texting, the practical pedagogy of it, not in devising the most foolproof theory of it for you, my peers. Without the iterative text of doing and devising in silence, the description seems either murky or banal. Subordinate cultural systems are creative in the invention of ritual in order to keep a certain hierarchical order functioning. With the help of the children and the community, the trainer must imagine the task of recoding the ritual-to-order habits of the earlier system with the ritual-to-order habits of parliamentary democracy, with a teaching corps whose idea of education is unfortunately produced by a terrible system. One learns active ritual as one learns manners. The best example for the readership of this anthology might be the ‘wild anthropology’ of the adult metropolitan migrant, learn ing a dominant culture on the run, giving as little away as possible. The difference here is that we learn from the vulnerable archaic

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(Raymond Williams’s word captures the predicament better than the anthropological primitive), but also without giving much away. The point is to realize that democracy also has its rituals, exaggerated or made visible, for example, when in our metropolitan life we seek to make politically correct manners ‘natural’, a matter of reflex. I will not be able to produce anthropologically satisfying general descriptions here because no trainer can provide satisfactory descriptions of the grammar of a language that s/he is learning painfully. This is the distinction I want to convey. What follows must remain hortatory — an appeal to your imagination until we meet in the field of specific practice, here or there. Of course we all know, with appropriate cynicism, that this probably will not be. But a ceremonial lecture allows you to tilt at windmills, to insist that such practice is the only way that one can hope to supplement the work of human rights litigation in order to produce cultural entry into modernity. Fine, you will say, maybe human rights interventions do not have the time to engage in this kind of patient education, but there are state-sponsored systems, NGOs, and activists engaging in educational initiatives, surely? The NGO drives count school buildings and teacher bodies. The national attempts also do so, but only at best. Activists, who care about education in the abstract and are critical of the system, talk rights, talk resistance, even talk nationalism. But instilling habits in very young minds is like writing on soft cement. Repeating slogans, even good slogans, is not the way to go, alas. It breeds fascists just as easily. UNESCO’s teaching guides for human rights are not helpful as guides. Some activists attempt to instill pride, in these longdisenfranchised groups, in a pseudohistorical narrative. This type of ‘civilizationism’ is good for gesture politics and breeding leaders, but does little for the development of democratic reflexes.18 These pseudohistories are assimilated into the aetiological mythologies of the Aboriginals without epistemic change. Given subaltern ethnic divisions, our teaching also 18 I am grateful to Henry Staten for the felicitous word ‘civilizationism’.

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proceeds in the conviction that, if identitarianism is generally bad news here, it is also generally bad news there. My project seems to have defined itself as the most ground-level task for the breaking of the production and continuation of class apartheid. I now understand why, in Marx’s world, Marx had come down to something as simple as the shortening of the working day as ‘the grounding condition [die Grundbedingung]’ when he was speaking of such grand topics as the Realm of Freedom and the Realm of Necessity (Marx 1981: 959, translation modified). I am often reprimanded for writing incomprehensibly. There is no one to complain about the jargon-ridden incomprehensibility of children’s textbooks in this subaltern world. If I want you to understand the complete opacity of that absurd history lesson about ‘National Liberation Struggles in Many Countries’, devised by some state functionary at the Ministry of Education, for example, I would have to take most of you through an intensive Bengali lesson so that you are able to assess different levels of the language. Without venturing up to that perilous necessity, I will simply recapitulate: first, the culture of responsibility is corrupted. The effort is to learn it with patience from below and to keep trying to suture it to the imagined felicitous subject of universal human rights. Second, the education system is a corrupt ruin of the colonial model. The effort is persistently to undo it, to teach the habit of democratic civility. Third, to teach these habits, with responsibility to the corrupted culture, is different from children’s indoctrination into nationalism, resistance-talk, identitarianism. I leave this essay with the sense that the material about the rural teaching is not in the acceptable mode of information retrieval. The difficulty is in the discontinuous divide between those who right wrongs and those who are wronged. I am so irreligious that atheism seems a religion to me. But I now understand why fundamentalists of all kinds have succeeded best in the teaching of the poor — for the greater glory of God. One needs some sort of ‘licensed lunacy’ (Orlando Patterson’s phrase) from some transcendental other to develop the sort of ruthless commitment that can undermine the sense that one is better than those who are being helped, that the ability to manage a complicated life

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support system is the same as being civilized. But I am influenced by deconstruction and for me, radical alterity cannot be named ‘God’, in any language. Indeed, the name of ‘man’ in ‘human’ rights (or the name of ‘woman’ in ‘women’s rights are human rights’) will continue to trouble me. ‘Licensed lunacy in the name of the unnamable other’, then. It took me this long to explain this incomprehensible phrase. Yet the efforts I have described may be the only recourse for a future to come when the reasonable righting of wrongs will not inevitably be the manifest destiny of groups that remain poised to right them; when wrongs will not proliferate with unsurprising regularity.

References Balibar, E. n.d. ‘Possessive Individualism Revisited: An Issue in Political Individualism’, unpublished manuscript. Blair, A. 1998. New Politics for the New Century, College Hill Press, London. Burley, Justine (ed.). 1999. The Genetic Revolution and Human Rights, Oxford University Press, Oxford. Callinicos, Alex. 1999. Social Theory: A Historical Introduction, Blackwell, Oxford. Churchill, R. P. 1988. ‘Hobbes and the Assumption of Power’, in Peter Caws (ed.), The Causes of Quarrel: Essays on Peace, War, and Thomas Hobbes, Beacon Press, Boston. Clark, John P. n.d. Going with the Cash Flow: Taoism and the New Managerial Wisdom, available online at www.britanica.com (viewed May 2000). de Reuck, Anthony. 1988. ‘Culture in Conflict’, in Peter Caws (ed.), The Causes of Quarrel: Essays on Peace, War, and Thomas Hobbes, Beacon Press, Boston 59–63. Derrida, Jacques. 1976. Of Grammatology, trans. Gayatri Chakravorty Spivak, The Johns Hopkins University Press, Baltimore. Eide, Asbjørn. 1998. ‘Historical Significance of the Universal Declaration’, International Social Science Journal, December 50(4): 475–96. Giddens, Anthony. 1994. Beyond Left and Right: The Future of Radical Politics, Stanford University Press, Stanford. Kant, Immanuel. 1996. ‘An Answer to the Question: What is Enlightenment?’ in James Schmidt (ed.), What Is Enlightenment? Eighteenth-Century Answers and Twentieth-Century Questions, University of California Press, Berkeley, 58–64.

104 Gayatri Chakravorty Spivak Lee, Kuan Yew. 2000. From Third World to First: The Singapore Story, 1965–2000, Harper, New York. Locke, John. 1990. Questions Concerning the Law of Nature, trans. Diskin Clay, Cornell University Press, Ithaca. Marx, Karl. 1973. ‘The Eighteenth Brumaire of Louis Bonaparte’, in Surveys From Exile, trans. David Fernbach, Vintage, New York. ———. 1981. Capital: A Critique of Political Economy, vol. 3, trans. David Fernbach, Vintage, New York. Morris, Thomas V. 1997. If Aristotle Ran General Motors: The New Soul of Business, Henry Holt, New York. Paine, Thomas. 1992. Rights of Man, Hackett, Indianapolis. Raphael, D. D. 1988. ‘Hobbes on Justice’, in G. A. J. Rodgers and Alan Ryan (eds), Perspectives on Thomas Hobbes, Clarendon, Oxford. Reagan, Ronald. 1979. ‘Free Enterprise’, Radio Essay, www. newyorktimes.com. Accessed on August 3, 2010. Risse, Thomas, Stephen C. Ropp and Kathryn Sikkink (eds). 1999. The Power of Human Rights: International Norms and Domestic Change, Cambridge University Press, New York. Sacksteder, William. 1988. ‘Mutually Acceptable Glory’, in Peter Caws (ed.), The Causes of Quarrel: Essays on Peace, War, and Thomas Hobbes, Beacon Press, Boston. Sahlins, Marshall. 1972. Stone Age Economics, de Gruyter, New York. Said, Edward W. 2000. Reflections on Exile and Other Essays, Harvard University Press, Cambridge. Shelton, G. 1992. Morality and Sovereignty in the Philosophy of Hobbes, St. Martin’s, New York. Simmons, A. J. 1992. The Lockean Theory of Rights, Princeton University Press, Princeton. Spivak, G. C. 1999a. A Critique of Postcolonial Reason: Toward a History of the Vanishing Present, Harvard University Press, Cambridge. ———. 1999b. Imperatives to Reimagine the Planet, Passagen, Vienna. ———. 2000. ‘Schmitt and Post Stucturalism: A Response’, Cardozo Law Review, May, 21(5–6).(Footnotes)


5 Human Rights, Rationality and Sentimentality Richard Rorty

In a report from Bosnia some months ago, David Rieff (1992) said, ‘To the Serbs, the Muslims are no longer human. . . . Muslim prisoners, lying on the ground in rows, awaiting interrogation, were driven over by a Serb guard in a small delivery van.’ This theme of dehumanization recurs when Rieff says, A Muslim man in Bosanski Petrovac . . . [was] forced to bite off the penis of a fellow-Muslim . . . If you say that a man is not human, but the man looks like you and the only way to identify this devil is to make him drop his trousers — Muslim men are circumcised and Serb men are not — it is probably only a short step, psychologically, to cutting off his prick. . . . There has never been a campaign of ethnic cleansing from which sexual sadism has gone missing.

The moral to be drawn from Rieff’s stories is that Serbian murderers and rapists do not think of themselves as violating human rights. For they are not doing these things to fellow human beings, but to Muslims. They are not being inhuman, but rather are discriminating between the true humans and the pseudohumans. They are making the same sort of distinction as the Crusaders made between humans and infidel dogs, and the Black Muslims make between humans and blue-eyed devils. The founder of my university was able both to own slaves and to think it self-evident that all men were endowed by their creator with certain inalienable rights. He had convinced himself that the consciousness of Blacks, like that of animals, ‘participate[s] more of sensation

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than reflection’.1 Like the Serbs, Mr. Jefferson did not think of himself as violating human rights. The Serbs take themselves to be acting in the interests of true humanity by purifying the world of pseudohumanity. In this respect, their self-image resembles that of moral philosophers who hope to cleanse the world of prejudice and superstition. This cleansing will permit us to rise above our animality by becoming, for the first time, wholly rational and thus wholly human. The Serbs, the moralists, Jefferson, and the Black Muslims all use the term ‘men’ to mean ‘people like us’. They think the line between humans and animals is not simply the line between featherless bipeds and all others. They think the line divides some featherless bipeds from others: There are animals walking about in humanoid form. We and those like us are paradigm cases of humanity, but those too different from us in behaviour or custom are, at best, borderline cases. As Clifford Geertz (1973: 22) puts it, ‘Men’s most importunate claims to humanity are cast in the accents of group pride’. We in the safe, rich democracies feel about the Serbian torturers and rapists as they feel about their Muslim victims: They are more like animals than like us. But we are not doing anything to help the Muslim women who are being gang raped or the Muslim men who are being castrated, any more than we did anything in the 1930s when the Nazis were amusing themselves by torturing Jews. Here in the safe countries we find ourselves saying things like ‘That’s how things have always been in the Balkans’, suggesting that, unlike us, those people are used to being raped and castrated. The contempt we always feel for losers — Jews in the 1930s, Muslims now — combines with our disgust at the ‘Their griefs are transient. Those numberless afflictions, which render it doubtful whether heaven has given life to us in mercy or in wrath, are less felt, and sooner forgotten with them. In general, their existence appears to participate more of sensation than reflection. To this must be ascribed their disposition to sleep when abstracted from their diversions, and unemployed in labor. An animal whose body is at rest, and who does not reflect must be disposed to sleep of course’ (Jefferson 1905: 194). 1

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winners’ behaviour to produce the semiconscious attitude: ‘a plague on both your houses.’ We think of the Serbs or the Nazis as animals, because ravenous beasts of prey are animals. We think of the Muslims or the Jews being herded into concentration camps as animals, because cattle are animals. Neither sort of animal is very much like us, and there seems no point in human beings getting involved in quarrels between animals. The human–animal distinction, however, is only one of the three main ways in which we paradigmatic humans distinguish ourselves from borderline cases. A second is by invoking the distinction between adults and children. Ignorant and superstitious people, we say, are like children; they will attain true humanity only if raised by proper education. If they seem incapable of absorbing such education, that shows they are not really the same kind of being as we educable people are. Blacks, the whites in the United States and in South Africa used to say, are like children. That is why it is appropriate to address Black males, of whatever age, as ‘boy’. Women, men used to say, are permanently childlike; it is therefore appropriate to spend no money on their education, and to refuse them access to power. When it comes to women, however, there are simpler ways of excluding them from true humanity: for example, using ‘man’ as a synonym of ‘human being’. As feminists have pointed out, such usages reinforce the average male’s thankfulness that he was not born a woman, as well as his fear of the ultimate degradation: feminization. The extent of the latter fear is evidenced by the particular sort of sexual sadism Rieff describes. His point that such sadism is never absent from attempts to purify the species or cleanse the territory confirms Catharine MacKinnon’s claim that, for most men, being a woman does not count as a way of being human. Being a non-male is the third main way of being non-human. There are several ways of being non-male. One is to be born without a penis; another is to have one’s penis cut or bitten off; a third is to have been penetrated by a penis. Many men who have been raped are convinced that their manhood, and thus their humanity, has been taken away. Like racists who discover they have Jewish or Black

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ancestry, they may commit suicide out of sheer shame, shame at no longer being the kind of featherless biped that counts as human. Philosophers have tried to clear this mess up by spelling out what all and only the featherless bipeds have in common, thereby explaining what is essential to being human. Plato argued that there is a big difference between us and the animals, a difference worthy of respect and cultivation. He thought that human beings have a special added ingredient which puts them in a different ontological category than the brutes. Respect for this ingredient provides a reason for people to be nice to each other. Anti-Platonists like Nietzsche reply that attempts to get people to stop murdering, raping and castrating each other are, in the long run, doomed to fail — for the real truth about human nature is that we are a uniquely nasty and dangerous kind of animal. When contemporary admirers of Plato claim that all featherless bipeds — even the stupid and childlike, even the women, even the sodomized — have the same inalienable rights, admirers of Nietzsche reply that the very idea of ‘inalienable human rights’ is, like the idea of a special added ingredient, a laughably feeble attempt by the weaker members of the species to fend off the stronger. As I see it, one important intellectual advance made in our century is the steady decline in interest in the quarrel between Plato and Nietzsche. There is a growing willingness to neglect the question ‘What is our nature?’ and to substitute the question ‘What can we make of ourselves?’ We are much less inclined than our ancestors were to take ‘theories of human nature’ seriously, much less inclined to take ontology or history as a guide to life. We have come to see that the only lesson of either history or anthropology is our extraordinary malleability. We are coming to think of ourselves as the flexible, protean, self-shaping animal rather than as the rational animal or the cruel animal. One of the shapes we have recently assumed is that of a human rights culture. I borrow the term ‘human rights culture’ from the Argentinian jurist and philosopher Eduardo Rabossi. In an article called ‘Human Rights Naturalized’, Rabossi (1990) argues that philosophers should think of this

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culture as a new, welcome fact of the post-Holocaust world. They should stop trying to get behind or beneath this fact, stop trying to detect and defend its so-called ‘philosophical presuppositions’. In Rabossi’s view, philosophers like Alan Gewirth are wrong to argue that human rights cannot depend on historical facts. ‘My basic point’, Rabossi says, is that ‘the world has changed, that the human rights phenomenon renders human rights foundationalism outmoded and irrelevant’.2 Rabossi’s claim that human rights foundationalism is outmoded seems to me both true and important; it will be my principal topic in this essay. I shall be enlarging on, and defending, Rabossi’s claim that the question whether human beings really have the rights enumerated in the Helsinki Declaration is not worth raising. In particular, I shall be defending the claim that nothing relevant to moral choice separates human beings from animals except historically contingent facts of the world, cultural facts. This claim is sometimes called ‘cultural relativism’ by those who indignantly reject it. One reason they reject it is that such relativism seems to them incompatible with the fact that our human rights culture, the culture with which we in this democracy identify ourselves, is morally superior to other cultures. I quite agree that ours is morally superior, but I do not think this superiority counts in favour of the existence of a universal human nature. It would only do so if we assumed that a moral claim is ill-founded if not backed up by knowledge of a distinctively human attribute. But it is not 2 Rabossi also says that he does not wish to question ‘the idea of a rational foundation of morality’. I am not sure why he does not. Rabossi may perhaps mean that in the past — for example, at the time of Kant — this idea still made a kind of sense, but it makes sense no longer. That, at any rate, is my own view. Kant wrote in a period when the only alternative to religion seemed to be something like science. In such a period, inventing a pseudoscience called ‘the system of transcendental philosophy’ — setting the stage for the show-stopping climax in which one pulls moral obligation out of a transcendental hat — might plausibly seem the only way of saving morality from the hedonists on one side and the priests on the other.

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clear why ‘respect for human dignity’ — our sense that the differences between Serb and Muslim, Christian and infidel, gay and straight, male and female should not matter — must presuppose the existence of any such attribute. Traditionally, the name of the shared human attribute which supposedly ‘grounds’ morality is ‘rationality’. Cultural relativism is associated with irrationalism because it denies the existence of morally relevant transcultural facts. To agree with Rabossi one must, indeed, be irrationalist in that sense. But one need not be irrationalist in the sense of ceasing to make one’s web of belief as coherent, and as perspicuously structured, as possible. Philosophers like myself, who think of rationality as simply the attempt at such coherence, agree with Rabossi that foundationalist projects are outmoded. We see our task as a matter of making our own culture — the human rights culture — more self-conscious and more powerful, rather than of demonstrating its superiority to other cultures by an appeal to something transcultural. We think that the most philosophy can hope to do is summarize our culturally influenced intuitions about the right thing to do in various situations. The summary is effected by formulating a generalization from which these intuitions can be deduced, with the help of noncontroversial lemmas. That generalization is not supposed to ground our intuitions, but rather to summarize them. John Rawls’s ‘Difference Principle’ and the U.S. Supreme Court’s construction, in recent decades, of a constitutional ‘right to privacy’ are examples of this kind of summary. We see the formulation of such summarizing generalizations as increasing the predictability, and thus the power and efficiency, of our institutions, thereby heightening the sense of shared moral identity which brings us together in a moral community. Foundationalist philosophers, such as Plato, Aquinas and Kant, have hoped to provide independent support for such summarizing generalizations. They would like to infer these generalizations from further premises, premises capable of being known to be true independently of the truth of the moral intuitions which have been summarized. Such premises are supposed to justify our intuitions, by providing premises from which the content of those intuitions can

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be deduced. I shall lump all such premises together under the label ‘claims to knowledge about the nature of human beings’. In this broad sense, claims to know that our moral intuitions are recollections of the Form of the Good, or that we are the disobedient children of a loving God, or that human beings differ from other kinds of animals by having dignity rather than mere value, are all claims about human nature. So are such counterclaims as that human beings are merely vehicles for selfish genes, or merely eruptions of the will to power. To claim such knowledge is to claim to know something which, though not itself a moral intuition, can correct moral intuitions. It is essential to this idea of moral knowledge that a whole community might come to know that most of their most salient intuitions about the right thing to do were wrong. But now suppose we ask: Is there this sort of knowledge? What kind of question is that? On the traditional view, it is a philosophical question, belonging to a branch of epistemology known as ‘metaethics’. But on the pragmatist view which I favour, it is a question of efficiency, of how best to grab hold of history — how best to bring about the utopia sketched by the Enlightenment. If the activities of those who attempt to achieve this sort of knowledge seem of little use in actualizing this utopia, that is a reason to think there is no such knowledge. If it seems that most of the work of changing moral intuitions is being done by manipulating our feelings rather than increasing our knowledge, that will be a reason to think that there is no knowledge of the sort which philosophers like Plato, Aquinas and Kant hoped to acquire. This pragmatist argument against the Platonist has the same form as an argument for cutting off payment to the priests who are performing purportedly war-winning sacrifices — an argument which says that all the real work of winning the war seems to be getting done by the generals and admirals, not to mention the foot soldiers. The argument does not say: Since there seem to be no gods, there is probably no need to support the priests. It says instead: Since there is apparently no need to support the priests, there probably are no gods. We pragmatists argue from the fact that the

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emergence of the human rights culture seems to owe nothing to increased moral knowledge, and everything to hearing sad and sentimental stories, to the conclusion that there is probably no knowledge of the sort Plato envisaged. We go on to argue: Since no useful work seems to be done by insisting on a purportedly ahistorical human nature, there probably is no such nature, or at least nothing in that nature that is relevant to our moral choices. In short, my doubts about the effectiveness of appeals to moral knowledge are doubts about causal efficacy, not about epistemic status. My doubts have nothing to do with any of the theoretical questions discussed under the heading of ‘metaethics’, questions about the relation between facts and values, or between reason and passion, or between the cognitive and the noncognitive, or between descriptive statements and action-guiding statements. Nor do they have anything to do with questions about realism and antirealism. The difference between the moral realist and the moral antirealist seems to pragmatists to be a difference which makes no practical difference. Further, such metaethical questions presuppose the Platonic distinction between inquiry which aims at efficient problem-solving and inquiry which aims at a goal called ‘truth for its own sake’. That distinction collapses if one follows Dewey in thinking of all inquiry — in physics as well as in ethics — as practical problem-solving, or if one follows Peirce in seeing every belief as action-guiding.3

The present state of metaethical discussion is admirably summarized in Darwall et al. (1992). This comprehensive and judicious article takes for granted that there is a problem about ‘vindicating the objectivity of morality’ (ibid.: 127), that there is an interesting question as to whether morals is ‘cognitive’ or ‘non-cognitive’, that we need to figure out whether we have a ‘cognitive capacity’ to detect moral properties (ibid.: 148), and that these matters can be dealt with ahistorically. When these authors consider historicist writers such as Alasdair MacIntyre and Bernard Williams, they conclude that they are ‘[meta]théoriciens malgré eux’ who share the authors’ own ‘desire to understand morality, its preconditions and its prospects’ (ibid.: 183). They make little effort to come to terms with suggestions 3

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Even after the priests have been pensioned off, however, the memories of certain priests may still be cherished by the community — especially the memories of their prophecies. We remain profoundly grateful to philosophers like Plato and Kant, not because they discovered truths but because they prophesied cosmopolitan utopias — utopias most of whose details they may have got wrong, but utopias we might never have struggled to reach had we not heard their prophecies. As long as our ability to know, and in particular to discuss the question ‘What is man?’ seemed the most important thing about us human beings, people like Plato and Kant accompanied utopian prophecies with claims to know something deep and important — something about the parts of the soul, or the transcendental status of the common moral consciousness. But this ability, and those questions, have, in the course of the last two hundred years, come to seem much less important. Rabossi summarizes this cultural sea change in his claim that human rights foundationalism

that there may be no ahistorical entity called ‘morality’ to be understood. The final paragraph of the article does suggest that it might be helpful if moral philosophers knew more anthropology, or psychology, or history. But the penultimate paragraph makes clear that, with or without such assists, ‘contemporary metaethics moves ahead, and positions gain in complexity and sophistication’. It is instructive, I think, to compare this article with Baier’s ‘Some Thoughts On How We Moral Philosophers Live Now’ (1984: 490). Baier suggests that moral philosophers should ‘at least occasionally, like Socrates, consider why the rest of society should not merely tolerate but subsidize our activity’. She goes on to ask, ‘Is the large proportional increase of professional philosophers and moral philosophers a good thing, morally speaking? Even if it scarcely amounts to a plague of gadflies, it may amount to a nuisance of owls.’ The kind of metaphilosophical and historical self-consciousness and self-doubt displayed by Baier seems to me badly needed, but it is conspicuously absent in Philosophy in Review (the centennial issue of The Philosophical Review in which ‘Toward Fin de Siècle Ethics’ appears). The contributors to this issue are convinced that the increasing sophistication of a philosophical subdiscipline is enough to demonstrate its social utility, and are entirely unimpressed by murmurs of ‘decadent scholasticism’.

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is outmoded. In the remainder of this essay, I shall take up the questions: Why has knowledge become much less important to our self-image than it was two hundred years ago? Why does the attempt to found culture on nature, and moral obligation on knowledge of transcultural universals, seem so much less important to us than it seemed in the Enlightenment? Why is there so little resonance, and so little point, in asking whether human beings in fact have the rights listed in the Helsinki Declaration? Why, in short, has moral philosophy become such an inconspicuous part of our culture? A simple answer is that between Kant’s time and ours Darwin argued most of the intellectuals out of the view that human beings contain a special added ingredient. He convinced most of us that we were exceptionally talented animals, animals clever enough to take charge of our own future evolution. I think this answer is right as far as it goes, but it leads to a further question: Why did Darwin succeed, relatively speaking, so very easily? Why did he not cause the creative philosophical ferment caused by Galileo and Newton? The revival by the New Science of the 17th century of a Democritean-Lucretian corpuscularian picture of nature scared Kant into inventing transcendental philosophy, inventing a brand new kind of knowledge, which could demote the corpuscularian world picture to the status of ‘appearance’. Kant’s example encouraged the idea that the philosopher, as an expert on the nature and limits of knowledge, can serve as supreme cultural arbiter.4 By the Fichte’s Vocation of Man is a useful reminder of the need that was felt, circa 1800, for a cognitive discipline called philosophy that would rescue utopian hope from natural science. It is hard to think of an analogous book written in reaction to Darwin. Those who couldn’t stand what Darwin was saying tended to go straight back past the Enlightenment to traditional religious faith. The unsubtle, unphilosophical opposition, in 19th-century Britain and France, between science and faith suggests that most intellectuals had become unable to believe that philosophy might produce some sort of superknowledge, knowledge that might trump the results of physical and biological inquiry. 4

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time of Darwin, however, this idea was already beginning to seem quaint. The historicism which dominated the intellectual world of the early 19th century had created an antiessentialist mood. So when Darwin came along, he fitted into the evolutionary niche which Herder and Hegel had begun to colonize. Intellectuals who populate this niche look to the future rather than to eternity. They prefer new ideas about how change can be effected to stable criteria for determining the desirability of change. They are the ones who think both Plato and Nietzsche outmoded. The best explanation of both Darwin’s relatively easy triumph, and our own increasing willingness to substitute hope for knowledge, is that the 19th and 20th centuries saw, among the Europeans and Americans, an extraordinary increase in wealth, literacy and leisure. This increase made possible an unprecedented acceleration in the rate of moral progress. Such events as the French Revolution and the ending of the trans-Atlantic slave trade prompted 19th-century intellectuals in the rich democracies to say: It is enough for us to know that we live in an age in which human beings can make things much better for ourselves.5 We do not need to dig behind this historical fact to nonhistorical facts about what we really are. In the two centuries since the French Revolution, we have learned that human beings are far more malleable than Plato or Kant had dreamed. The more we are impressed by this malleability, the less interested we become in questions about our ahistorical nature. The more we see a chance to recreate ourselves, the more we read Darwin not as offering one more 5 Some contemporary intellectuals, especially in France and Germany, take it as obvious that the Holocaust made it clear that the hopes for human freedom which arose in the 19th century are obsolete — that at the end of the 20th century we postmodernists know that the Enlightenment project is doomed. But even these intellectuals, in their less preachy and sententious moments, do their best to further that project. So they should, for nobody has come up with a better one. It does not diminish the memory of the Holocaust to say that our response to it should not be a claim to have gained a new understanding of human nature or of human history, but rather a willingness to pick ourselves up and try again.

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theory about what we really are but as providing reasons why we need not ask what we really are. Nowadays, to say that we are clever animals is not to say something philosophical and pessimistic but something political and hopeful, namely: If we can work together, we can make ourselves into whatever we are clever and courageous enough to imagine ourselves becoming. This sets aside Kant’s question ‘What is Man?’ and substitutes the question ‘What sort of world can we prepare for our great-grandchildren?’ The question ‘What is Man?’ in the sense of ‘What is the deep ahistorical nature of human beings?’ owed its popularity to the standard answer to that question: We are the rational animal, the one which can know as well as merely feel. The residual popularity of this answer accounts for the residual popularity of Kant’s astonishing claim that sentimentality has nothing to do with morality, that there is something distinctively and transculturally human called ‘the sense of moral obligation’ which has nothing to do with love, friendship, trust or social solidarity. As long as we believe that, people like Rabossi are going to have a tough time convincing us that human rights foundationalism is an outmoded project. To overcome this idea of a sui generis sense of moral obligation, it would help to stop answering the question ‘What makes us different from the other animals?’ by saying ‘We can know, and they can merely feel’. We should substitute ‘We can feel for each other to a much greater extent than they can’. This substitution would let us disentangle Christ’s suggestion that love matters more than knowledge from the neo-Platonic suggestion that knowledge of the truth will make us free. For as long as we think that there is an ahistorical power which makes for righteousness — a power called truth, or rationality — we shall not be able to put foundationalism behind us. The best, and probably the only, argument for putting foundationalism behind us is the one I have already suggested: It would be more efficient to do so, because it would let us concentrate our energies on manipulating sentiments, on sentimental education. That sort of education sufficiently

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acquaints people of different kinds with one another so that they are less tempted to think of those different from themselves as only quasi-human. The goal of this manipulation of sentiment is to expand the reference of the terms ‘our kind of people’ and ‘people like us’. All I can do to supplement this argument from increased efficiency is to offer a suggestion about how Plato managed to convince us that knowledge of universal truths mattered as much as he thought it did. Plato thought that the philosopher’s task was to answer questions like ‘Why should I be moral? Why is it rational to be moral? Why is it in my interest to be moral? Why is it in the interest of human beings as such to be moral?’ He thought this because he believed the best way to deal with people like Thrasymachus and Callicles was to demonstrate to them that they had an interest of which they were unaware, an interest in being rational, in acquiring selfknowledge. Plato thereby saddled us with a distinction between the true and the false self. That distinction was, by the time of Kant, transmuted into a distinction between categorical, rigid, moral obligation and flexible, empirically determinable, self-interest. Contemporary moral philosophy is still lumbered with this opposition between self-interest and morality, an opposition which makes it hard to realize that my pride in being a part of the human rights culture is no more external to myself than my desire for financial success. It would have been better if Plato had decided, as Aristotle was to decide, that there was nothing much to be done with people like Thrasymachus and Callicles, and that the problem was how to avoid having children who would be like Thrasymachus and Callicles. By insisting that he could reeducate people who had matured without acquiring appropriate moral sentiments by invoking a higher power than sentiment, the power of reason, Plato got moral philosophy off on the wrong foot. He led moral philosophers to concentrate on the rather rare figure of the psychopath, the person who has no concern for any human being other than himself. Moral philosophy has systematically neglected the much more common case: the person whose treatment of a rather

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narrow range of featherless bipeds is morally impeccable, but who remains indifferent to the suffering of those outside this range, the ones he or she thinks of as pseudohumans.6 Plato set things up so that moral philosophers think they have failed unless they convince the rational egotist that he should not be an egotist — convince him by telling him about his true, unfortunately neglected, self. But the rational egotist is not the problem. The problem is the gallant and honourable Serb who sees Muslims as circumcised dogs. It is the brave soldier and good comrade who loves and is loved by his mates, but who thinks of women as dangerous, malevolent whores and bitches. Plato thought that the way to get people to be nicer to each other was to point out what they all had in common — rationality. But it does little good to point out, to the people I have just described, that many Muslims and women are good at mathematics or engineering or jurisprudence. Resentful young Nazi thugs were quite aware that many Jews were clever and learned, but this only added to the pleasure they took in beating them up. Nor does it do much good to get such people to read Kant, and agree that one should not treat rational agents simply as means. For everything turns on who counts as a fellow human being, as a rational agent in the only relevant sense — the sense in which rational agency is synonymous with membership in our moral community. For most white people, until very recently, most Black people did not so count. For most Christians, up until the 17th century or so, most heathen did not so count. For the Nazis, Jews did not so count. For most males in countries in which the average annual income is under four thousand dollars, most females still do not so count. Whenever tribal and national rivalries become important, members of rival tribes and nations will not so count. Kant’s account Nietzsche (1956: 174) was right to remind us that ‘these same men who, amongst themselves, are so strictly constrained by custom, worship, ritual gratitude and by mutual surveillance and jealousy, who are so resourceful in consideration, tenderness, loyalty, pride and friendship, when once they step outside their circle become little better than uncaged beasts of prey’. 6

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of the respect due to rational agents tells you that you should extend the respect you feel for people like yourself to all featherless bipeds. This is an excellent suggestion, a good formula for secularizing the Christian doctrine of the brotherhood of man. But it has never been backed up by an argument based on neutral premises, and it never will be. Outside the circle of post-Enlightenment European culture, the circle of relatively safe and secure people who have been manipulating each others’ sentiments for two hundred years, most people are simply unable to understand why membership in a biological species is supposed to suffice for membership in a moral community. This is not because they are insufficiently rational. It is, typically, because they live in a world in which it would be just too risky — indeed, would often be insanely dangerous — to let one’s sense of moral community stretch beyond one’s family, clan or tribe. To get whites to be nicer to Blacks, males to females, Serbs to Muslims, or straights to gays, to help our species link up into what Rabossi calls a ‘planetary community’ dominated by a culture of human rights, it is of no use whatever to say, with Kant: Notice that what you have in common, your humanity, is more important than these trivial differences. For the people we are trying to convince will rejoin that they notice nothing of the sort. Such people are morally offended by the suggestion that they should treat someone who is not kin as if he were a brother, or a nigger as if he were white, or a queer as if he were normal, or an infidel as if she were a believer. They are offended by the suggestion that they treat people whom they do not think of as human as if they were human. When utilitarians tell them that all pleasures and pains felt by members of our biological species are equally relevant to moral deliberation, or when Kantians tell them that the ability to engage in such deliberation is sufficient for membership in the moral community, they are incredulous. They rejoin that these philosophers seem oblivious to blatantly obvious moral distinctions, distinctions any decent person will draw. This rejoinder is not just a rhetorical device, nor is it in any way irrational. It is heartfelt. The identity of these people, the people whom we should like to convince to join our

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Eurocentric human rights culture, is bound up with their sense of who they are not. Most people — especially people relatively untouched by the European Enlightenment — simply do not think of themselves as, first and foremost, a human being. Instead, they think of themselves as being a certain good sort of human being — a sort defined by explicit opposition to a particularly bad sort. It is crucial for their sense of who they are that they are not an infidel, not a queer, not a woman, not an untouchable. Just insofar as they are impoverished, and as their lives are perpetually at risk, they have little else than pride in not being what they are not to sustain their self-respect. Starting with the days when the term ‘human being’ was synonymous with ‘member of our tribe’, we have always thought of human beings in terms of paradigm members of the species. We have contrasted us, the real humans, with rudimentary, or perverted, or deformed examples of humanity. We Eurocentric intellectuals like to suggest that we, the paradigm humans, have overcome this primitive parochialism by using that paradigmatic human faculty, reason. So we say that failure to concur with us is due to ‘prejudice’. Our use of these terms in this way may make us nod in agreement when Colin McGinn tells us, in the introduction to his recent book, that learning to tell right from wrong is not as hard as learning French (McGinn 1992: 16). The only obstacles to agreeing with his moral views, McGinn explains, are ‘prejudice, vested interest and laziness’. One can see what McGinn means: If, like many of us, you teach students who have been brought up in the shadow of the Holocaust, brought up believing that prejudice against racial or religious groups is a terrible thing, it is not very hard to convert them to standard liberal views about abortion, gay rights, and the like. You may even get them to stop eating animals. All you have to do is convince them that all the arguments on the other side appeal to ‘morally irrelevant’ considerations. You do this by manipulating their sentiments in such a way that they imagine themselves in the shoes of the despised and oppressed. Such students are already so nice that they are eager to define their identity in nonexclusionary terms. The only people they have trouble being

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nice to are the ones they consider irrational — the religious fundamentalist, the smirking rapist, or the swaggering skinhead. Producing generations of nice, tolerant, well-off, secure, other-respecting students of this sort in all parts of the world is just what is needed — indeed all that is needed — to achieve an Enlightenment utopia. The more youngsters like this we can raise, the stronger and more global our human rights culture will become. But it is not a good idea to encourage these students to label ‘irrational’ the intolerant people they have trouble tolerating. For that Platonic-Kantian epithet suggests that, with only a little more effort, the good and rational part of these other people’s souls could have triumphed over the bad and irrational part. It suggests that we good people know something these bad people do not know, and that it is probably their own silly fault that they do not know it. All they have to do, after all, is to think a little harder, be a little more self-conscious, a little more rational. But the bad people’s beliefs are not more or less ‘irrational’ than the belief that race, religion, gender and sexual preference are all morally irrelevant — that these are all trumped by membership in the biological species. As used by moral philosophers like McGinn, the term ‘irrational behavior’ means no more than ‘behavior of which we disapprove so strongly that our spade is turned when asked why we disapprove of it’. It would be better to teach our students that these bad people are no less rational, no less clearheaded, no more prejudiced, than we good people who respect otherness. The bad people’s problem is that they were not so lucky in the circumstances of their upbringing as we were. Instead of treating as irrational all those people out there who are trying to find and kill Salman Rushdie, we should treat them as deprived. Foundationalists think of these people as deprived of truth, of moral knowledge. But it would be better — more specific, more suggestive of possible remedies — to think of them as deprived of two more concrete things: security and sympathy. By ‘security’ I mean conditions of life sufficiently risk-free as to make one’s difference from others inessential to one’s self-respect, one’s sense of worth. These conditions have been

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enjoyed by Americans and Europeans — the people who dreamed up the human rights culture — much more than they have been enjoyed by anyone else. By ‘sympathy’ I mean the sort of reaction that the Athenians had more of after seeing Aeschylus’ The Persians than before, the sort that white Americans had more of after reading Uncle Tom’s Cabin than before, the sort that we have more of after watching T V programmes about the genocide in Bosnia. Security and sympathy go together, for the same reasons that peace and economic productivity go together. The tougher things are, the more you have to be afraid of, the more dangerous your situation, the less you can afford the time or effort to think about what things might be like for people with whom you do not immediately identify. Sentimental education only works on people who can relax long enough to listen. If Rabossi and I are right in thinking human rights foundationalism outmoded, then Hume is a better advisor than Kant about how we intellectuals can hasten the coming of the Enlightenment utopia for which both men yearned. Among contemporary philosophers, the best advisor seems to me to be Annette Baier. Baier describes Hume as ‘the woman’s moral philosopher’ because Hume held that ‘corrected (sometimes rule-corrected) sympathy, not law-discerning reason, is the fundamental moral capacity’ (Baier 1987: 40). Baier would like us to get rid of both the Platonic idea that we have a true self, and the Kantian idea that it is rational to be moral. In aid of this project, she suggests that we think of ‘trust’ rather than ‘obligation’ as the fundamental moral notion. This substitution would mean thinking of the spread of the human rights culture not as a matter of our becoming more aware of the requirements of the moral law, but rather as what Baier calls ‘a progress of sentiments’.7 Baier’s book on Hume is entitled A Progress of Sentiments: Reflections on Hume’s Treatise (1991). Baier’s view of the inadequacy of most attempts by contemporary moral philosophers to break with Kant comes out most clearly when she characterizes Allan Gibbard (in his book Wise Choices, Apt Feelings [1990]) as focusing ‘on the feelings that a patriarchal religion has bequeathed to us’, and says that ‘Hume would judge Gibbard to be, as a moral philosopher, basically a divine disguised as a fellow expressivist’ (Baier 1991: 312). 7

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This progress consists in an increasing ability to see the similarities between ourselves and people very unlike us as outweighing the differences. It is the result of what I have been calling ‘sentimental education’. The relevant similarities are not a matter of sharing a deep true self which instantiates true humanity, but are such little, superficial similarities as cherishing our parents and our children — similarities that do not interestingly distinguish us from many non-human animals. To accept Baier’s suggestions, however, we should have to overcome our sense that sentiment is too weak a force, and that something stronger is required. This idea that reason is ‘stronger’ than sentiment, that only an insistence on the unconditionality of moral obligation has the power to change human beings for the better, is very persistent. I think that this persistence is due mainly to a semiconscious realization that, if we hand our hopes for moral progress over to sentiment, we are in effect handing them over to condescension. For we shall be relying on those who have the power to change things — people like the rich New England abolitionists, or rich bleeding hearts like Robert Owen and Friedrich Engels — rather than on something that has power over them. We shall have to accept the fact that the fate of the women of Bosnia depends on whether TV journalists manage to do for them what Harriet Beecher Stowe did for Black slaves, whether these journalists can make us, the audience back in the safe countries, feel that these women are more like us, more like real human beings, than we had realized. To rely on the suggestions of sentiment rather than on the commands of reason is to think of powerful people gradually ceasing to oppress others, or ceasing to countenance the oppression of others, out of mere niceness, rather than out of obedience to the moral law. But it is revolting to think that our only hope for a decent society consists in softening the self-satisfied hearts of a leisure class. We want moral progress to burst up from below, rather than waiting patiently upon condescension from the top. The residual popularity of Kantian ideas of ‘unconditional moral obligation’ — obligation imposed by deep ahistorical noncontingent forces — seems

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to me almost entirely due to our abhorrence for the idea that the people on top hold the future in their hands, that everything depends on them, that there is nothing more powerful to which we can appeal against them. Like everyone else, I too should prefer a bottom-up way of achieving utopia, a quick reversal of fortune which will make the last first. But I do not think this is how utopia will in fact come into being. Nor do I think that our preference for this way lends any support to the idea that the Enlightenment project lies in the depths of every human soul. So why does this preference make us resist the thought that sentimentality may be the best weapon we have? I think Nietzsche gave the right answer to this question: We resist out of resentment. We resent the idea that we shall have to wait for the strong to turn their piggy little eyes to the suffering of the weak. We desperately hope that there is something stronger and more powerful that will hurt the strong if they do not — if not a vengeful God, then a vengeful aroused proletariat, or, at least, a vengeful superego, or, at the very least, the offended majesty of Kant’s tribunal of pure practical reason. The desperate hope for a noncontingent and powerful ally is, according to Nietzsche, the common core of Platonism, of religious insistence on divine omnipotence, and of Kantian moral philosophy.8 Nietzsche was, I think, right on the button when he offered this diagnosis. What Santayana called ‘supernaturalism’, the confusion of ideals and power, is all that lies behind the Kantian claim that it is not only nicer, but more rational, to include strangers within our moral community than to exclude them from it. If we agree with Nietzsche and Santayana on this point, however, we do not thereby acquire any reason to turn our backs on the Enlightenment project, as Nietzsche did. Nor do we acquire any reason to be sardonically pessimistic about the chances of this project, in the manner of admirers of Nietzsche like Santayana, Ortega, Heidegger, Strauss and Foucault. 8 Nietzsche’s diagnosis is reinforced by Elizabeth Anscombe’s famous argument that atheists are not entitled to the term ‘moral obligation’.

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For even though Nietzsche was absolutely right to see Kant’s insistence on unconditionality as an expression of resentment, he was absolutely wrong to treat Christianity, and the age of the democratic revolutions, as signs of human degeneration. He and Kant, alas, shared something with each other which neither shared with Harriet Beecher Stowe — something which Iris Murdoch has called ‘dryness’ and which Jacques Derrida has called ‘phallogocentrism’. The common element in the thought of both men was a desire for purity. This sort of purity consists in being not only autonomous, in command of oneself, but also in having the kind of self-conscious self-sufficiency which Sartre describes as the perfect synthesis of the in-itself and the for-itself. This synthesis could only be attained, Sartre pointed out, if one could rid oneself of everything sticky, slimy, wet, sentimental and womanish. Although this desire for virile purity links Plato to Kant, the desire to bring as many different kinds of people as possible into a cosmopolis links Kant to Stowe. Kant is, in the history of moral thinking, a transitional stage between the hopeless attempt to convict Thrasymachus of irrationality and the hopeful attempt to see every new featherless biped who comes along as one of us. Kant’s mistake was to think that the only way to have a modest, damped-down, non-fanatical version of Christian brotherhood after letting go of the Christian faith was to revive the themes of pre-Christian philosophical thought. He wanted to make knowledge of a core self do what can be done only by the continual refreshment and re-creation of the self, through interaction with selves as unlike itself as possible. Kant performed the sort of awkward balancing act required in transitional periods. His project mediated between a dying rationalist tradition and a vision of a new, democratic world, the world of what Rabossi calls ‘the human rights phenomenon’. With the advent of this phenomenon, Kant’s balancing act has become outmoded and irrelevant. We are now in a good position to put aside the last vestiges of the ideas that human beings are distinguished by the capacity to know rather than by the capacities for friendship and intermarriage, distinguished by rigorous rationality rather

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than by flexible sentimentality. If we do so, we shall have dropped the idea that assured knowledge of a truth about what we have in common is a prerequisite for moral education, as well as the idea of a specifically moral motivation. If we do all these things, we shall see Kant’s Foundations of the Metaphysics of Morals as a placeholder for Uncle Tom’s Cabin — a concession to the expectations of an intellectual epoch in which the quest for quasi-scientific knowledge seemed the only possible response to religious exclusionism.9 Unfortunately, many philosophers, especially in the English-speaking world, are still trying to hold on to the Platonic insistence that the principal duty of human beings is to know. That insistence was the lifeline to which Kant and Hegel thought we had to cling.10 Just as German

9 See Tompkins (1985), for a treatment of the sentimental novel that chimes with the point I am trying to make here. In her chapter on Stowe, Tompkins says that she is asking the reader ‘to set aside some familiar categories for evaluating fiction — stylistic intricacy, psychological subtlety, epistemological complexity — and to see the sentimental novel not as an artifice of eternity answerable to certain formal criteria and to certain psychological and philosophical concerns, but as a political enterprise, halfway between sermon and social theory, that both codifies and attempts to mold the values of its time’ (ibid.: 126). The contrast that Tompkins draws between authors like Stowe and ‘male authors such as Thoreau, Whitman and Melville, who are celebrated as models of intellectual daring and honesty’ (ibid.: 124), parallels the contrast I tried to draw between public utility and private perfection in my Contingency, Irony and Solidarity (1989). I see Uncle Tom’s Cabin and Moby Dick as equally brilliant achievements, achievements that we should not attempt to rank hierarchically, because they serve such different purposes. Arguing about which is the better novel is like arguing about which is the superior philosophical treatise: Mill’s On Liberty or Kierkegaard’s Philosophical Fragments. 10 Technically, of course, Kant denied knowledge in order to make room for moral faith. But what is transcendental moral philosophy if not the assurance that the noncognitive imperative delivered via the common moral consciousness shows the existence of a ‘fact of reason’ — a fact about what it is to be a human being, a rational

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philosophers in the period between Kant and Hegel saw themselves as saving ‘reason’ from Hume, many Englishspeaking philosophers now see themselves saving reason from Derrida. But with the wisdom of hindsight, and with Baier’s help, we have learned to read Hume not as a dangerously frivolous iconoclast but as the wettest, most flexible, least phallogocentric thinker of the Enlightenment. Someday, I suspect, our descendants may wish that Derrida’s contemporaries had been able to read him not as a frivolous iconoclast, but rather as a sentimental educator, another of ‘the women’s moral philosophers’.11 If one follows Baier’s advice one will not see it as the moral educator’s task to answer the rational egotist’s question ‘Why should I be moral?’ but rather to answer the much more frequently posed question ‘Why should I care about a stranger, a person who is no kin to me, a person whose habits I find disgusting?’ The traditional answer to the latter question is ‘Because kinship and custom are morally irrelevant, irrelevant to the obligations imposed by the recognition of membership in the same species’. This has never been very convincing, since it begs the question at issue: whether mere species membership is, in fact, a sufficient surrogate for closer kinship. Furthermore, that answer leaves one wide open to Nietzsche’s discomfiting rejoinder: That universalistic notion, Nietzsche will sneer, would only have crossed the mind of a slave — or, perhaps, the mind of an intellectual, a priest whose self-esteem and livelihood both depend on getting the rest of us to accept a sacred, unarguable, unchallengeable paradox. agent, a being that is something more than a bundle of spatiotemporal determinations? Kant was never able to explain how transcendental knowledge could be knowledge, but he was never able to give up the attempt to claim such knowledge. On the German project of defending reason against Hume, see Beiser (1987). 11 I have discussed the relation between Derrida and feminism in Rorty (1993), and also in my reply to Alexander Nehamas in Cometti (1992). Richard Bernstein is, I think, basically right in reading Derrida as a moralist, even though Thomas McCarthy is also right in saying that ‘deconstruction’ is of no political use.

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A better sort of answer is the sort of long, sad, sentimental story which begins ‘Because this is what it is like to be in her situation — to be far from home, among strangers’, or ‘Because she might become your daughter-in-law’, or ‘Because her mother would grieve for her’. Such stories, repeated and varied over the centuries, have induced us, the rich, safe, powerful people, to tolerate, and even to cherish, powerless people — people whose appearance or habits or beliefs at first seemed an insult to our own moral identity, our sense of the limits of permissible human variation. To people who, like Plato and Kant, believe in a philosophically ascertainable truth about what it is to be a human being, the good work remains incomplete as long as we have not answered the question ‘Yes, but am I under a moral obligation to her?’ To people like Hume and Baier, it is a mark of intellectual immaturity to raise that question. But we shall go on asking that question as long as we agree with Plato that it is our ability to know that makes us human. Plato wrote quite a long time ago, in a time when we intellectuals had to pretend to be successors to the priests, had to pretend to know something rather esoteric. Hume did his best to josh us out of that pretence. Baier, who seems to me both the most original and the most useful of contemporary moral philosophers, is still trying to josh us out of it. I think Baier may eventually succeed, for she has the history of the last two hundred years of moral progress on her side. These two centuries are most easily understood not as a period of deepening understanding of the nature of rationality or of morality, but rather as one in which there occurred an astonishingly rapid progress of sentiments, in which it has become much easier for us to be moved to action by sad and sentimental stories. This progress has brought us to a moment in human history in which it is plausible for Rabossi to say that the human rights phenomenon is a ‘fact of the world’. This phenomenon may be just a blip. But it may mark the beginning of a time in which gang rape brings forth as strong a response when it happens to women as when it happens to men, or when it happens to foreigners as when it happens to people like us.

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References Baier, Annette. 1984. ‘Some Thoughts on How We Moral Philosophers Live Now’, The Monist 67(4): 490. ———. 1987. ‘Hume, the Women’s Moral Theorist?’ in Eva Kittay and Diana Meyers (eds), Women and Moral Theory, Rowman and Littlefield, Totowa, N.J., 37–55. ———. 1991. A Progress of Sentiments: Reflections on Hume’s Treatise, Harvard University Press, Cambridge, Mass. Beiser, Fred. 1987. The Fate of Reason: German Philosophy from Kant to Fichte, Harvard University Press, Cambridge, Mass. Cometti, Jean-Pierre. 1992. Lire Rorty, Éclat, Paris. Darwall, Stephen, Allan Gibbard and Peter Railton. 1992. ‘Toward Fin de Siècle Ethics: Some Trends’, The Philosophical Review 101(1): 115–89. Geertz, Clifford. 1973. ‘Thick Description’, in Clifford Geertz, The Interpretation of Cultures, Basic Books, New York, 3–30. Gibbard, Allan. 1990. Wise Choices, Apt Feelings, Oxford University Press, Oxford. Jefferson, Thomas. 1905. ‘Notes on Virginia’, Writings, vol. 1, edited by Andrew A. Lipscomb and Albert Ellery Bergh, Washington, D.C. McGinn, Colin. 1992. Moral Literacy: or, How to Do the Right Thing, Duckworth, London. Nietzsche, Friedrich. 1956. The Genealogy of Morals, trans. Francis Golffing, Doubleday, Garden City, N.Y. Rabossi, Edwardo. 1990. ‘La teoria de los derechos humanos naturalizada’, Rivista del Centro de Estudios Constitucionales (Madrid), 5, January–March: 159–79. Rieff, David. 1992. ‘Letter from Bosnia’, The New Yorker, November 23, 82–95. Rorty, Richard. 1989. Contingency, Irony and Solidarity, Cambridge University Press, Cambridge, England. ———. 1992. ‘Réponse à Alexander Nehamas’, in Jean-Pierre Cometti (ed.), Lire Rorty, Éclat, Paris: 213–22. ———. 1993. ‘Deconstruction; Ideology and Feminism: A Pragmatist View’, Hypatia, 8(2), Spring: 96–103. Tompkins, Jane. 1985. Sensational Designs: The Cultural Work of American Fiction, 1790–1860, Oxford University Press, New York.

6 ‘The Most We Can Hope For . . .’: Human Rights and the Politics of Fatalism Wendy Brown

In his 2001 Tanner Lecture series entitled ‘Human Rights as Politics and Idolatry’, Michael Ignatieff parries almost every known progressive political and philosophical quarrel with international human rights work: human rights are vague and unenforceable; their content is infinitely malleable; they are more symbolic than substantive; they cannot be grounded in any ontological truth or philosophical principle; in their primordial individualism, they conflict with cultural integrity and are a form of liberal imperialism; they are a guise in which superpower global domination drapes itself; they are a guise in which the globalization of capital drapes itself; they entail secular idolatry of the human and are thus as much a religious creed as any other.1 Ignatieff is thoughtful and non-dismissive with each of these challenges, at times persuasively refuting them, at times accommodating and adjusting the aspiration or reach of human rights in terms of them. Working through them also allows him to develop and rest his own case for human rights: human rights activism is valuable not because it is founded on some transcendent truth, advances some ultimate principle, is a comprehensive politics, or is clean of the danger of political manipulation or compromise, but rather, simply because it is effective in limiting political violence and reducing misery. If, in the last fifty years, human rights have become the international moral currency by which some human suffering can be stemmed, then they are a good thing. ‘All that can be said about human See Ignatieff (2001). Subsequent citations are given in the text. 1

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rights is that they are necessary to protect individuals from violence and abuse, and if it is asked why, the only possible answer is historical’ (Ignatieff 2001: 149). Responding to the commentaries published along with his lectures, these are Ignatieff ’s final words: What should our goals as believers in human rights be? Here my slogan would be the title of the justly famous essay by my old teacher, Judith Shklar, ‘Putting Cruelty First’. We may not be able to create democracies or constitutions. Liberal freedom [in some societies] may be some way off. But we could do more than we do to stop unmerited suffering and gross physical cruelty. That I take to be the elemental priority of all human rights activism: to stop torture, beatings, killings, rape, and assault and to improve, as best we can, the security of ordinary people. My minimalism is not strategic at all. It is the most we can hope for. (2001: 173)

An instrument for abating the grievous suffering of targeted individuals and groups, stanching the flow of human blood, diminishing cries of human pain, unbending the crouch of human fear — who could argue with this, especially when the historical present features so much politically let blood, politically inflicted pain, and politically induced fear? Indeed one cannot argue with it, nor will I. If human rights achieve this, and nothing more, there is no quarrel to be had. My question, of course, is whether this is all the international human rights project does, that is, whether Ignatieff holds himself to the minimalism and pragmatism of these sentences and whether, apart from Ignatieff ’s own formulations, this minimalism and pragmatism can be made to hold in the discursive operation of human rights. It will turn out that Ignatieff himself does not actually stay within the bounds of this minimalist defence, and that the ‘more’ he claims for human rights is an important part of his brief for them and an important aspect of their discursive operation. But in addition to Ignatieff ’s own transgressions of the boundaries he sets, there is this: it is in the nature of every significant political project to ripple beyond the project’s avowed target and action, for the simple reason that all such projects are situated in political, historical, social and economic contexts

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with which they dynamically engage.2 No effective project produces only the consequences it aims to produce. Whatever their avowed purpose, then, do human rights only reduce suffering? Do they (promise to) reduce it in a particular way that precludes or negates other possible ways? And if they reduce suffering, what kinds of subjects and political (or antipolitical) cultures do they bring into being as they do so, what kinds do they transform or erode, and what kinds do they aver? What are the implications of human rights assuming centre stage as an international justice project, or as the progressive international justice project? Human rights activism is a moral-political project and if it displaces, competes with, refuses, or rejects other political projects, including those also aimed at producing justice, then it is not merely a tactic but a particular form of political power carrying a particular image of justice, and it will behoove us to inspect, evaluate, and judge it as such. Such considerations require us to depart both the terms of pragmatist minimalism and the terms of morality for a more complex encounter with the powers of political context and political discourse than either set of terms can accommodate. For the most part, human rights activism refuses the political mantle on which I am insisting. Rather, it generally presents itself as something of an antipolitics — a pure defence of the innocent and the powerless against power, a pure defence of the individual against immense and potentially cruel or despotic machineries of culture, state, war, ethnic conflict, tribalism, patriarchy and other mobilizations or instantiations of collective power against individuals. More precisely, human rights take their shape as a moral discourse centred on pain and suffering rather than political discourse of comprehensive justice. Even as Ignatieff titles

2 Talal Asad (n.d.: paragraph 113) makes this point for an altogether different kind of inquiry into human rights: ‘Human rights depend . . . on national rights. States are essential to the protection they offer. This means that states can and do use human rights discourse against their citizens — as colonial empires used it against their subjects — to realize their civilizing project.’

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his first lecture ‘Human Rights as Politics’ and recognizes that ‘human rights must accept that it is a fighting creed and that its universal claims will be resisted’ by whatever authority is its particular target, the politics he identifies are in the pragmatic effects of what he forthrightly identifies as a moral order of things: ‘Human rights is the language that systematically embodies [the] intuition [that each individual is entitled to equal moral consideration], and to the degree that this intuition gains influence over the conduct of individuals and states, we can say that we are making moral progress’ (2001: 4). In addition to the explicit claim about moral equality, international human rights are also premised on the immorality of politically induced suffering. Unlike constitutionally derived and nationally enforced highly specified rights in liberal democratic orders, international human rights are cast in terms of the moral inviolability of ‘human dignity’ and the deprivation or degradation of this dignity that they are understood to protect against. Human rights, in Ignatieff ’s understanding, do not prescribe what is good or right but rather depend on agreement ‘about what is insufferably, inarguably wrong’ (2001: 56): The universal commitments implied by human rights can be compatible with a wide variety of ways of living only if the universalism implied is self-consciously minimalist. Human rights can command universal assent only as a decidedly ‘thin’ theory of what is right, a definition of the minimum conditions for any kind of life at all. Human rights is only a systematic agenda of ‘negative liberty’, a tool kit against oppression, a tool kit that individual agents must be free to use as they see fit within the broader frame of cultural and religious beliefs that they live by. (2001: 56–57)

But if human rights are tendered as an antipolitical and expressly moral antidote to abusive political power, a defence against power and a protection against pain, deprivation or suffering, we may still ask what kind of politicization they set in motion against the powers they oppose. Do they stand for a different formulation of justice or do they stand in opposition to collective justice projects? Whether they aim either to weaken national political sovereignty as they strengthen the moral standing of the individual or, to the contrary, as

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Ignatieff argues, they underline the ‘necessity of state order as a guarantee of rights’, and hence ought actually to strengthen ‘overburdened states’, what kind of justice project is this? Put another way, if human rights are proffered as a defence against political power’s ability to inflict pain, indignity, cruelty and death, if they stand for political power’s moral limit regardless of its internal organization or legitimacy, what is their political positioning and effect in this work? As it turns out, Ignatieff does not, indeed cannot, limit his brief for human rights to their attenuation of suffering. Rather, he understands them as opening up a progressive political possibility that exceeds their purview. He claims, first, that ‘human rights matter because they help people to help themselves’ and thus instantiate or develop agency where it did not exist before (2001: 57). He claims, second, that rights as ‘civil and political freedoms are the necessary condition for the eventual attainment of social and economic security’ (ibid.: 90). Third, he claims that rights language creates the basis for ‘conflict, deliberation, argument and contention’, as it provides a ‘shared vocabulary from which our arguments can begin, and the bare human minimum from which differing ideas of human flourishing can take root’ (ibid.: 95). The first claim concerns the ontological logic of human rights; the second claim concerns the historical logic of human rights; and the third claim concerns the political logic of human rights. Let us consider each briefly. ‘Human rights is a language of individual empowerment,’ Ignatieff argues, and ‘when individuals have agency, they can protect themselves against injustice. Equally, when individuals have agency, they can define themselves what they wish to live and die for’ (2001: 57). In other words, human rights configure subjects as either able or entitled (it’s not clear which for Ignatieff ) to protect themselves from what they consider unjust and define for themselves what their individual aims and ends are. As Ignatieff argues elsewhere, ‘Rights language has been central not simply to the protection, but also to the production of modern individuals’, a production that he specifies as the process of becoming an individual — ‘the most universal aspiration behind all the forms of modernity on offer’ (Ignatieff 1999: 323).

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But it is not at all clear that human rights discourse actually secures the autonomy and agency Ignatieff promises; rather, this discourse offers a form of protection for individuals that may trade one form of subjection for another, an intervention by an external agent or set of institutions that promises to protect individuals from abusive state power in part by replacing that power. (A recent and very literal case of such an exchange was, of course, the intervention in Iraq by the United States and Britain, commencing in spring 2003 and continuing through the present, which carried the flag of human rights and which Ignatieff, in several major press venues, has at times defended as a human rights effort.3) While the replacement may or may not be a positive one from the standpoint of reducing suffering, it does not follow that it necessarily produces agency or ‘helps people to help themselves’. Moreover, to the extent that human rights are understood as the ability to protect oneself against injustice and define one’s own ends in life, this is a form of ‘empowerment’ that fully equates empowerment with liberal individualism.4 As such, the promise of rights to enable the individual’s capacity to choose what one wishes to live and die for does not address the historical, political and economic constraints in which this choice occurs — agency is defined as choice within these constraints and thus largely codifies these constraints. Finally, if rights promise a shield around individuals, the ‘right to choose the life they see fit to lead’ (Ignatieff 2001: 57), See, for example, Ignatieff ’s many appearances in the New York Times in the past two years, including ‘Threats and Responses: Liberals for War; Some of the Intellectual Left’s Longtime Doves Taking on Role of Hawks’, by Kate Zernike, March 14, 2003, A16; ‘The Way We Live Now, 3–23–03; I Am Iraq’, March 23, 2003, sect. 6: 13; ‘The American Empire: The Burden’, January 5, 2003, sect. 6: 22; and most recently, ‘Why Are We in Iraq (And Liberia and Afghanistan?)’, September 21, 2003, sect. 6: 38. 4 Rather disingenuously given his own brief for what should and should not come under the umbrella of human rights, Ignatieff denies this equation: ‘How people use their freedom is up to them and there is no reason to suppose that if they adopt the Western value of freedom, they will give it Western content’ (2001: 73). 3

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this shield constitutes a juridical limit on regimes without empowering individuals as political actors; rather, it is an instance of what Isaiah Berlin called and Ignatieff endorses as ‘negative liberty’, the right to be let alone to do as one wishes (ibid.: 57). As human rights discourse draws a line between the space of the individual to choose how she or he wants to live and the space of politics, what Ignatieff calls ‘empowerment’ is located in the former. In his framing, human rights discourse thus not only aspires to be beyond politics (notwithstanding his own insistence that it is a politics), but carries implicitly antipolitical aspirations for its subjects — that is, casts subjects as yearning to be free of politics and, indeed, of all collective determinations of ends.5 Thus, the moral valence of human rights, as well as its positioning of morality outside of and above politics, inflects and positions in its image the individual human that rights would empower and thereby produce. Ignatieff ’s second claim about the economic and political possibilities that human rights set into motion would appear to address these concerns. While he insists that human rights must be limited to securing the capacity of the individual to act (rather than extended, as some have wished, to rights to goods such as food, shelter and medicine), he also insists that this very capacity itself constitutes the necessary precondition for political engagement that in turn can produce economic improvement and even ‘security’. Here is how Ignatieff stages this claim: ‘Without the freedom to articulate and express political opinions, without freedom of speech and assembly, together with freedom of property, 5 By a politics, Ignatieff means ‘taking sides, mobilizing constituencies powerful enough to force abusers to stop’ (2001: 9) and does not mean a comprehensive political project or formation. Rather, even as he recognizes the impossibility of treating human rights campaigns as ‘above politics’, he grounds human rights themselves in the recognition that human beings ought to be protected from cruelty and pain, which amounts to an abstract moral claim against particular forms of political power and aims to position itself as neutral vis-à-vis culture and particular modalities of political power.

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agents cannot organize themselves to struggle for social and economic security’ (2001: 90). He goes on to quote Amartya Sen: ‘No substantial famine has ever occurred . . . in any country with a democratic form of government and a relatively free press’ (ibid.: 90). It is hard to know precisely what causal connection is being asserted between famine and a state-controlled press, especially in colonial and Third World settings, but for Ignatieff, the implications are clear: ‘Civil and political rights are both an essential motor of economic development in themselves and also a critical guarantee against coercive government schemes and projects’ (ibid.: 90). This would seem to be as much a brief for capitalism as for human rights, but it is also a strange history of modernity, especially in its suggestion that national wealth is produced by rather than productive of civil liberties and constitutionalism and in its elision of the deformations of colonialism and a global economy in which the wealth of core states is predicated in part on the poverty of the periphery. The oddness of this narrative is explained in part by an appreciation of what Ignatieff is seeking to stave off, namely, a left tilt to human rights projects that would either insist on the primacy of rights to food, shelter and healthcare or that would argue, more modestly, that civil and political rights must be supplemented by such social or economic rights. Ignatieff objects to such a tilt not only because it makes human rights campaigns more politically ambitious and thus less immediately efficacious or realizable, which would be a reasonable objection from a pragmatist, but because he fears what he tellingly calls ‘collective rights’. (There is, of course, no inherent reason for regarding a right to shelter or food as more of a collective right than the right to free speech or freedom of assembly. Presumably Ignatieff designates such rights as collective, not because they are awarded collectively, but because of their cost to the collective or perhaps even because they figure us as collectively responsible for one another.) Collective rights, he insists, threaten the individual and erode the legitimacy of rights. With regard to the former, Ignatieff argues, ‘individual rights without collective rights may be difficult to exercise, but collective rights without individual ones end up in tyranny’ (2001: 90). While the formulation

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of collective rights in the absence of individual ones in the post-communist world seems something of a straw man, it is clear what the metonymic slide is for Ignatieff: the right to food and shelter means the state will organize or provide them, and if the state is in this business, we are in the land of state socialism, and if we are in the land of state socialism, individual rights — especially those basic to free enterprise and free trade — are presumed to be limited. With regard to the latter, Ignatieff claims that ‘rights inflation — the tendency to define anything desirable as a right — ends up eroding the legitimacy of a defensible core of rights’ (ibid.: 90). This ‘defensible core’ is defined as those rights ‘that are strictly necessary to the enjoyment of any life whatever’ (ibid.: 90). Although it is hard to see what could be more necessary than food and shelter to such enjoyment, Ignatieff goes in the other direction, insisting that ‘civil and political freedoms are the necessary condition for the eventual attainment of social and economic security’ (ibid.: 90). What Ignatieff is rehearsing, of course, is not an ontological account of what human beings need to enjoy life, but rather a political-economic account of what markets need to thrive. The giveaway is in the final sentence of the passage we have been considering: ‘Without the freedom to articulate and express political opinions, without freedom of speech and assembly, together with freedom of property, agents cannot organize themselves to struggle for social and economic security.’ In sum, through a tortured historiography and a terribly vulnerable set of ontological claims, Ignatieff argues for human rights as the essential precondition for a freemarket order and for the market itself as the vehicle of individual social and economic security. Ignatieff ’s third claim about what rights incite beyond protection against suffering pertains to their creation of ‘a world of genuine moral equality among human beings’ (ibid.: 95). For democrats of any stripe, such a world is another one of those incontestable goods, but Ignatieff takes this point further than it may go: ‘A world of moral equality is a world of conflict, deliberation, argument, and contention’ (ibid.: 95). While this appears to link his argument that rights empower

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individuals to prospects for democratic determination of governing values, we must ask what makes rights — those markers of the desire not to suffer, to live as and for what one individually chooses, and to insist that one’s choices be tolerated — a vehicle for bringing us together to debate about values and ends? If rights constitute something of a shield against power, including incursions and coercions by other individuals, if rights give us the capacity to be left to our own devices, what makes them into a conduit for gathering us into argument and contention about governing norms or ends? Indeed, the historical tension between a premium placed on individual liberty and a premium placed on governance has been lived as the conflict between centrifugal and centripetal impulses in democratic thought and practice for most of its history. It took shape in an older language as the battle between republican values and more libertarian ones, in the mid-19th through mid-20th centuries as a debate between socialist and liberal aspirations for democracy, and more recently in arguments between liberal individualists and liberal communitarians. Rights, especially those as dependent on a universal moral vocabulary as human rights are, hardly guarantee local political deliberation about how we should live together; indeed, they may function precisely to limit or cancel such deliberation with transcendental moral claims, refer it to the courts, submit it to creeds of tolerance, or secure an escape from it into private lives. Taken together, Ignatieff ’s three claims about the political possibilities set in motion by human rights — far from representing the minimalism with which we began — are building blocks for an argument that this discourse can inaugurate a different distribution of power and order of justice in non-liberal societies. If this were so, it would constitute a new historical formation, a new chronology in history, in which rights would constitute the engine rather than the outcome of a form of popular political power, the basis for democratic participation rather than the containment of it, the place from which democracy starts rather than ends. Not only is this untried, this insistence also conflicts with Ignatieff ’s own notion of rights as a form of protection from power and

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conflict as well as with his corollary claim for tolerance as the ability to ‘live and let live’ (Ignatieff 2000: 85). It collides with the rejection of politics — the retreat from the problem of collective power — that the right to live as one wishes promises. Moreover, it introduces an unresolved interval between the expressly moral and antipolitical discourse of human rights and a politicization that this discourse is claimed to promise. Perhaps most importantly, it formulates political and social power as a zero-sum game: rights against culture or the state become a measure of power taken away from them — what the individual has, the institutions don’t get. Few modern thinkers still subscribe to this formulation of power. Even apart from the Foucauldian insight into the regulatory dimension of rights that challenges it — an insight into the production of subjects and subjectification by juridical discourse — there is the patent empirical fact that Americans have never had so many rights (even the lawyers can’t keep track of them) and so little power to shape collective justice and national aims. What we have learned in the last century: if rights secure the possibility of living without fear of express state coercion, they do not thereby decrease the overall power and reach of the state nor do they enhance the collective power of the citizenry to determine the contours and content of social, economic and political justice. This is above all because power does not only come in sovereign or juridical form and because rights are not just defences against social and political power but are, as an aspect of governmentality, a crucial aspect of power’s aperture. As such, they are not simply rules and defences against power, but can themselves be tactics and vehicles of governance and domination. Even free speech, or perhaps, especially free speech, in an age of corporately owned and governmentally beholden media, can deepen the subjection of the populace to undemocratic discourses of power, at the same time that it permits lots of talking. To appreciate further how rights can simultaneously shield subjects from certain abuses and become tactics in their disempowerment, we might return to a point mentioned in passing earlier, namely that rights are not simply attached to Kantian subjects, but rather produce and regulate the

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subjects to whom they are assigned.6 Thus, in its very promise to protect the individual against suffering and permit choice for individuals, human rights discourse produces a certain kind of subject in need of a certain kind of protection. Of course, suffering and abuse also produce subjects, often traumatically so and I am by no means suggesting that leaving individuals vulnerable to such things is amorally or politically superior production to that of human rights discourse. Nor, again, am I contesting the extent to which human rights campaigns may actually limit certain kinds of abuse and alter certain policies. Rather, the point is that there is no such thing as mere reduction of suffering or protection from abuse — the nature of the reduction or protection is itself productive of political subjects and political possibilities. Just as abuse itself is never generic but always has particular social and subjective content, so the matter of how it is relieved is consequential. Yes, the abuse must be stopped but by whom, with what techniques, with what unintended effects, and above all, unfolding what possible futures? The pragmatist, moral and antipolitical mantle of human rights discourse tends to eschew, even repel, rather than invite or address these questions. We return to the question with which we began: If human rights activism is an antipolitical politics of suffering reduction that configures a particular kind of subject and limns a particular political future, is the yield of this international justice project the ‘most we can hope for’? Especially given the extent to which a recently renewed vigour in American imperialism has been the agent of such suffering (from its Guantanamo Bay gulag to its invasions of Iraq and Afghanistan to its continued support for increasingly brutal Israeli practices of occupation) while draping itself in the mantle of human rights, one wonders whether the project of more directly challenging such imperialism and supporting 6 This point has been developed at length by many. Most of the essays in Brown and Halley (2002), make a contribution to this argument. My own other efforts to think through the problem can be found in my essay in that volume (‘Suffering Rights as Paradoxes’) as well as in chapter 5 of Brown (1995) and Brown (2000).

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indigenous efforts to transform authoritarian, despotic and corrupt postcolonial regimes might be at least as critical. When Donald Rumsfeld declares that ‘the War on Terrorism is a war for human rights’, as he did in spring 2002, preparing Americans for war on Iraq while turning their attention away from both the postwar chaos in Afghanistan and the steady dismantling of their own civil liberties, we are reminded of the difficulty of trying to engage in both kinds of projects simultaneously.7 It is not only that Rumsfeld has co-opted the language of human rights for imperialist aims abroad and antidemocratic ones at home, but that insofar as the ‘liberation’ of Afghanistan and Iraq promised to deliver human rights to those oppressed populations it is hard both to parse cynical from sincere deployments of human rights discourse and to separate human rights campaigns from legitimating liberal imperialism.8 Here, the disingenuousness of Ignatieff ’s insistence, that human rights campaigns are not equivalent to installing liberalism and the conditions of free trade for the regimes they aim at, materializes as more than a problem of intellectual dishonesty. Moreover, since international human rights are not designed as a form of collective power or vehicle of popular governance, but rather as individual shields against power, it is hard to see how one can move simultaneously toward individualism and withdrawal on the one hand, and efforts at collaborative self-governance and power sharing on the other. There is no keener evidence for this difficulty than the current scheme of governance for postwar Iraq in which long-term occupation, including foreign political rule, and economic development engineered by the United States and dominated by foreign investment, is implemented alongside plans for the development of civil liberties for Iraqis. It is an old ruse of liberal reformers, in pursuing agendas that have significant effects in excess of the explicit reform, to insist that all they are doing is a bit of good or holding Donald Rumsfeld, June 12, 2002. Little wonder, then, that Ignatieff supported both wars as ‘humanitarian interventions’ and initially, at least, downplayed their imperialist aims. 7 8

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back the dark. In this view, rights simply set people free to make the world as they see fit — they do not have normative or subject-producing dimensions; they do not carry cultural assumptions or aims; they do not prescribe or proscribe anything; they do not configure the political in a particular way or compete with other political possibilities or discourses. They simply expand autonomy and choice. I have suggested otherwise and in deciding whether the reduction of suffering promised by human rights is the ‘most we can hope for’, I have argued that we must take account of that which rights discourse does not avow about itself. It is a politics and it organizes political space, often with the aim of monopolizing it. It also stands as a critique of dissonant political projects, converges neatly with the requisites of liberal imperialism and global free trade, and legitimates both as well. If the global problem today is defined as terrible human suffering consequent to limited individual rights against abusive state powers, then human rights may be the best tactic against this problem. But if it is diagnosed as the relatively unchecked globalization of capital, postcolonial political deformations, and superpower imperialism combining to disenfranchise peoples in many parts of the first, second and third worlds from the prospects of self-governance to a degree historically unparalleled in modernity, other kinds of political projects, including other international justice projects, may offer a more appropriate and far-reaching remedy for injustice defined as suffering and as systematic disenfranchisement from collaborative self-governance. In addition to the question of how one diagnoses the present ills of the world, there is another question here, a genuine question, about the nature of our times. Is the prevention or mitigation of suffering promised by human rights the most that can be hoped for at this point in history? Is this where we are, namely, at a historical juncture in which all more ambitious justice projects seem remote if not utopian by comparison with the task of limiting abuses of individuals? Is the prospect of a more substantive democratization of power so dim that the relief and reduction of human suffering is really all that progressives can hope for? If so, then human rights politics probably deserves the support of everyone

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who cares about such suffering. But if there are still other historical possibilities, if progressives have not yet arrived at this degree of fatalism, then we would do well to take the measure of whether and how the centrality of human rights discourse might render those other political possibilities more faint.

References Asad, Talal. n.d. ‘What Do Human Rights Do? An Anthropological Enquiry’, Theory and Event, online at http://muse.jhu.edu/ journals/theory and event/v004/4.4asad.html. Accessed on April 4, 2004. Brown, Wendy. 1995. States of Injury: Power and Freedom in Late Modernity, Princeton University Press, Princeton. ———. 2000. ‘Revaluing Critique: A Response to Kenneth Baynes,’ Political Theory 28(4) (August): 469–79. ———. 2002. ‘Suffering Rights as Paradoxes’, in Wendy Brown and Janet Halley, eds, Left Legalism/Left Critique, Duke University Press, Durham, 420–34. Brown, Wendy and Janet Halley (eds). 2002. Left Legalism/Left Critique, Duke University Press, Durham. Ignatieff, Michael. 1999. ‘Human Rights’, in Carla Hesse and Robert Post (eds), Human Rights in Political Transitions: Gettysburg to Bosnia, Zone Books, New York, 313–24. ———. 2000. ‘Nationalism and Toleration’, in Susan Mendus (ed.), The Politics of Toleration in Modern Life, Duke University Press, Durham, 77–106. ———. 2001. Human Rights as Politics and Idolatry, Princeton University Press, Princeton.


7 Against Human Rights Slavoj Žižek

Contemporary appeals to human rights within our liberal-

capitalist societies generally rest upon three assumptions. First, that such appeals function in opposition to modes of fundamentalism that would naturalize or essentialize contingent, historically conditioned traits. Second, that the two most basic rights are freedom of choice, and the right to dedicate one’s life to the pursuit of pleasure (rather than to sacrifice it for some higher ideological cause). And third, that an appeal to human rights may form the basis for a defence against the ‘excess of power’. Let us begin with fundamentalism. Here, the evil (to paraphrase Hegel) often dwells in the gaze that perceives it. Take the Balkans during the 1990s, the site of widespread human rights violations. At what point did the Balkans — a geographical region of South-Eastern Europe — become ‘Balkan’, with all that designates for the European ideological imaginary today? The answer is: the mid-19th century, just as the Balkans were being fully exposed to the effects of European modernization. The gap between earlier Western European perceptions and the ‘modern’ image is striking. Already in the 16th century the French naturalist Pierre Belon could note that ‘the Turks force no one to live like a Turk’. Small surprise, then, that so many Jews found asylum and religious freedom in Turkey and other Muslim countries after Ferdinand and Isabella had expelled them from Spain in 1492 — with the result that, in a supreme twist of irony, Western travellers were disturbed by the public presence of Jews in big Turkish cities. Here, from a long series of examples, is a report from N. Bisani, an Italian who visited Istanbul in 1788:


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A stranger, who has beheld the intolerance of London and Paris, must be much surprised to see a church here between a mosque and a synagogue, and a dervish by the side of a Capuchin friar. I know not how this government can have admitted into its bosom religions so opposite to its own. It must be from degeneracy of Mahommedanism, that this happy contrast can be produced. What is still more astonishing is to find that this spirit of toleration is generally prevalent among the people; for here you see Turks, Jews, Catholics, Armenians, Greeks and Protestants conversing together on subjects of business or pleasure with as much harmony and goodwill as if they were of the same country and religion. (Quoted in Jezernik 2004: 233)

The very feature that the West today celebrates as the sign of its cultural superiority — the spirit and practice of multicultural tolerance — is thus dismissed as an effect of Islamic ‘degeneracy’. The strange fate of the Trappist monks of Etoile Marie is equally telling. Expelled from France by the Napoleonic regime, they settled in Germany, but were driven out in 1868. Since no other Christian state would take them, they asked the Sultan’s permission to buy land near Banja Luka, in the Serb part of today’s Bosnia, where they lived happily ever after — until they got caught in the Balkan conflicts between Christians. Where, then, did the fundamentalist features — religious intolerance, ethnic violence, fixation upon historical trauma — which the West now associates with ‘the Balkan’, originate? Clearly, from the West itself. In a neat instance of Hegel’s ‘reflexive determination’, what Western Europeans observe and deplore in the Balkans is what they themselves introduced there; what they combat is their own historical legacy run amok. Let us not forget that the two great ethnic crimes imputed to the Turks in the 20th century — the Armenian genocide and the persecution of the Kurds — were not committed by traditionalist Muslim political forces, but by the military modernizers who sought to cut Turkey loose from its old-world ballast and turn it into a European nationstate. Mladen Dolar’s old quip, based on a detailed reading of Freud’s references to the region, that the European unconscious is structured like the Balkans, is thus literally true: in the guise of the Otherness of ‘Balkan’, Europe takes cognizance of the ‘stranger in itself’, of its own repressed.

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But we might also examine the ways in which the ‘fundamentalist’ essentialization of contingent traits is itself a feature of liberal-capitalist democracy. It is fashionable to complain that private life is threatened, or even disappearing, in face of the media’s ability to expose one’s most intimate personal details to the public. True, on condition that we turn things around: what is effectively disappearing here is public life itself, the public sphere proper, in which one operates as a symbolic agent who cannot be reduced to a private individual, to a bundle of personal attributes, desires, traumas and idiosyncrasies. The ‘risk society’ commonplace — according to which the contemporary individual experiences himself as thoroughly ‘denaturalized’, regarding even his most ‘natural’ traits, from ethnic identity to sexual preference, as being chosen, historically contingent, learned — is thus profoundly deceiving. What we are witnessing today is the opposite process: an unprecedented re-naturalization. All big ‘public issues’ are now translated into attitudes towards the regulation of ‘natural’ or ‘personal’ idiosyncrasies. This explains why, at a more general level, pseudonaturalized ethno-religious conflicts are the form of struggle which best suits global capitalism. In the age of ‘post-politics’, when politics proper is progressively replaced by expert social administration, the sole remaining legitimate sources of conflict are cultural (religious) or natural (ethnic) tensions. And ‘evaluation’ is precisely the regulation of social promotion that fits with this re-naturalization. Perhaps the time has come to reassert, as the truth of evaluation, the perverted logic to which Marx refers ironically in his description of commodity fetishism, quoting Dogberry’s advice to Seacoal at the end of Capital’s Chapter 1: ‘To be a well-favoured man is the gift of fortune; but to write and read comes by nature.’ To be a computer expert or a successful manager is a gift of nature today, but lovely lips or eyes are a fact of culture.

Unfreedom of Choice As to freedom of choice: I have written elsewhere (Žižek 2005) of the pseudo-choice offered to the adolescents of Amish communities who, after the strictest of upbringings, are invited

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at the age of seventeen to plunge themselves into every excess of contemporary capitalist culture — a whirl of fast cars, wild sex, drugs, drink and so forth. After a couple of years, they are allowed to choose whether they want to return to the Amish way. Since they have been brought up in virtual ignorance of American society, the youngsters are quite unprepared to cope with such permissiveness, which in most cases generates a backlash of unbearable anxiety. The vast majority vote to return to the seclusion of their communities. This is a perfect case of the difficulties that invariably accompany ‘freedom of choice’: while Amish children are formally given a free choice, the conditions in which they must make it render the choice unfree. The problem of pseudo-choice also demonstrates the limitations of the standard liberal attitude towards Muslim women who wear the veil: acceptable if it is their own free choice rather than imposed on them by husbands or family. However, the moment a woman dons the veil as the result of personal choice, its meaning changes completely: it is no longer a sign of belonging to the Muslim community, but an expression of idiosyncratic individuality. In other words, a choice is always a meta-choice, a choice of the modality of the choice itself: it is only the woman who does not choose to wear a veil that effectively chooses a choice. This is why, in our secular liberal democracies, people who maintain a substantial religious allegiance are in a subordinate position: their faith is ‘tolerated’ as their own personal choice, but the moment they present it publicly as what it is for them — a matter of substantial belonging — they stand accused of ‘fundamentalism’. Plainly, the ‘subject of free choice’, in the ‘tolerant’, multicultural sense, can only emerge as the result of an extremely violent process of being uprooted from one’s particular life-world. The material force of the ideological notion of ‘free choice’ within capitalist democracy was well-illustrated by the fate of the Clinton administration’s ultra-modest health reform programme. The medical lobby (twice as strong as the infamous defence lobby) succeeded in imposing on the public the idea that universal healthcare would somehow threaten freedom of choice in that domain. Against this conviction,

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all enumeration of ‘hard facts’ proved ineffective. We are here at the very nerve-centre of liberal ideology: freedom of choice, grounded in the notion of the ‘psychological’ subject, endowed with propensities which he or she strives to realize. And this especially holds today, in the era of a ‘risk society’ in which the ruling ideology endeavours to sell us the very insecurities caused by the dismantling of the welfare state as the opportunity for new freedoms. If labour flexibilization means you have to change jobs every year, why not see it as a liberation from the constraints of a permanent career, a chance to reinvent yourself and realize the hidden potential of your personality? If there is a shortfall on your standard health insurance and retirement plan, meaning you have to opt for extra coverage, why not perceive it as an additional opportunity to choose: either a better lifestyle now or longterm security? Should this predicament cause you anxiety, the ‘second modernity’ ideologist will diagnose you as desiring to ‘escape from freedom’, of an immature sticking to old stable forms. Even better, when this is inscribed into the ideology of the subject as the ‘psychological’ individual, pregnant with natural abilities, you will automatically tend to interpret all these changes as the outcome of your personality, not as the result of being thrown around by market forces.

Politics of Jouissance What of the basic right to the pursuit of pleasure? Today’s politics is ever more concerned with ways of soliciting or controlling jouissance. The opposition between the liberaltolerant West and fundamentalist Islam is most often condensed as that between, on the one side, a woman’s right to free sexuality, including the freedom to display or expose herself and to provoke or disturb men; and, on the other side, desperate male attempts to suppress or control this threat. (The Taliban forbade metal-tipped heels for women, as the tapping sounds coming from beneath an all-concealing burka might have an overpowering erotic appeal.) Both sides, of course, mystify their position ideologically and morally. For the West, women’s right to expose themselves

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provocatively to male desire is legitimized as their right to enjoy their bodies as they please. For Islam, the control of female sexuality is legitimized as the defence of women’s dignity against their being reduced to objects of male exploitation. So when the French state prohibits Muslim girls from wearing the veil in school, one can claim that they are thus enabled to dispose of their bodies as they wish. But one can also argue that the true traumatic point for critics of Muslim ‘fundamentalism’ was that there were women who did not participate in the game of making their bodies available for sexual seduction, or for the social exchange and circulation involved in this. In one way or another, all the other issues — gay marriage and adoption, abortion, divorce — relate to this. What the two poles share is a strict disciplinary approach, differently directed: ‘fundamentalists’ regulate female self-presentation to forestall sexual provocation; PC feminist liberals impose a no-less-severe regulation of behaviour aimed at containing forms of harassment. Liberal attitudes towards the other are characterized both by respect for otherness, openness to it, and an obsessive fear of harassment. In short, the other is welcomed insofar as its presence is not intrusive, insofar as it is not really the other. Tolerance thus coincides with its opposite. My duty to be tolerant towards the other effectively means that I should not get too close to him or her, not intrude into his space — in short, that I should respect his intolerance towards my over-proximity. This is increasingly emerging as the central human right of advanced capitalist society: the right not to be ‘harassed’, that is, to be kept at a safe distance from others. The same goes for the emergent logic of humanitarian or pacifist militarism. War is acceptable insofar as it seeks to bring about peace, or democracy, or the conditions for distributing humanitarian aid. And does the same not hold even more for democracy and human rights themselves? Human rights are okay if they are ‘rethought’ to include torture and a permanent emergency state. Democracy is okay if it is cleansed of its populist excesses and limited to those mature enough to practise it. Caught in the vicious cycle of the imperative of jouissance, the temptation is to opt for what appears its ‘natural’ opposite,

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the violent renunciation of jouissance. This is perhaps the underlying motif of all so-called fundamentalisms — the endeavour to contain (what they perceive as) the excessive ‘narcissistic hedonism’ of contemporary secular culture with a call to reintroduce the spirit of sacrifice. A psychoanalytic perspective immediately enables us to see why such an endeavour goes wrong. The very gesture of casting away enjoyment — ‘Enough of decadent self-indulgence! Renounce and purify!’ — produces a surplus-enjoyment of its own. Do not all ‘totalitarian’ universes which demand of their subjects a violent (self-)sacrifice to the cause exude the bad smell of a fascination with a lethal-obscene jouissance? Conversely, a life oriented towards the pursuit of pleasure will entail the harsh discipline of a ‘healthy lifestyle’ — jogging, dieting, mental relaxation — if it is to be enjoyed to the maximum. The superego injunction to enjoy oneself is immanently intertwined with the logic of sacrifice. The two form a vicious cycle, each extreme supporting the other. The choice is never simply between doing one’s duty or striving for pleasure and satisfaction. This elementary choice is always redoubled by a further one, between elevating one’s striving for pleasure into one’s supreme duty, and doing one’s duty not for duty’s sake but for the gratification it brings. In the first case, pleasures are my duty, and the ‘pathological’ striving for pleasure is located in the formal space of duty. In the second case, duty is my pleasure, and doing my duty is located in the formal space of ‘pathological’ satisfactions.

Defence against Power? But if human rights as opposition to fundamentalism and as pursuit of happiness lead us into intractable contradictions, are they not after all a defence against the excess of power? Marx formulated the strange logic of power as ‘in excess’ by its very nature in his analyses of 1848. In The Eighteenth Brumaire and The Class Struggles in France, he ‘complicated’ in a properly dialectical way the logic of social representation (political agents representing economic classes and forces). In doing so, he went much further than the usual notion of these ‘complications’, according to which political representation


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never directly mirrors social structure — a single political agent can represent different social groups, for instance; or a class can renounce its direct representation and leave to another the job of securing the politico-juridical conditions of its rule, as the English capitalist class did by leaving to the aristocracy the exercise of political power. Marx’s analyses pointed towards what Lacan would articulate, more than a century later, as the ‘logic of the signifier’. Apropos the Party of Order, formed after the defeat of the June insurrection, Marx wrote that only after Louis-Napoleon’s December 10 election victory allowed it to ‘cast off’ its coterie of bourgeois republicans was the secret of its existence, the coalition of Orléanists and Legitimists into one party, disclosed. The bourgeois class fell apart into two big factions which alternately — the big landed proprietors under the restored monarchy and the finance aristocracy and the industrial bourgeoisie under the July Monarchy — had maintained a monopoly of power. Bourbon was the royal name for the predominant influence of the interests of the one faction, Orléans the royal name for the predominant influence of the interests of the other faction — the nameless realm of the republic was the only one in which both factions could maintain with equal power the common class interest without giving up their mutual rivalry. (Marx and Engels 1969: 83)

This, then, is the first complication. When we are dealing with two or more socio-economic groups, their common interest can only be represented in the guise of the negation of their shared premise: the common denominator of the two royalist factions is not royalism, but republicanism. (Just as today, the only political agent that consistently represents the interests of capital as such, in its universality, above particular factions, is the ‘social liberal’ Third Way.) Then, in The Eighteenth Brumaire, Marx dissected the makeup of the Society of December 10, Louis-Napoleon’s private army of thugs: Alongside decayed roués with dubious means of subsistence and of dubious origin, alongside ruined and adventurous offshoots of the bourgeoisie, were vagabonds, discharged

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soldiers, discharged jailbirds, escaped galley slaves, swindlers, mountebanks, lazzaroni, pickpockets, tricksters, gamblers, maquereaux [pimps], brothel-keepers, porters, literati, organgrinders, rag-pickers, knife-grinders, tinkers, beggars — in short, the whole indefinite, disintegrated mass, thrown hither and thither, which the French call la bohème; from this kindred element Bonaparte formed the core of the Society of December 10. . . . This Bonaparte, who constitutes himself chief of the lumpen proletariat, who here alone rediscovers in mass form the interests which he personally pursues, who recognizes in this scum, offal, refuse of all classes the only class upon which he can base himself unconditionally, is the real Bonaparte, the Bonaparte sans phrases. (Marx and Engels 1975: 149)

The logic of the Party of Order is here brought to its radical conclusion. In the same way that the only common denominator of all royalist factions is republicanism, the only common denominator of all classes is the excremental excess, the refuse, the remainder, of all classes. That is to say, insofar as the leader perceives himself as standing above class interests, his immediate class base can only be the excremental remainder of all classes, the rejected non-class of each class. And, as Marx develops in another passage, it is this support from the ‘social abject’ which enables Bonaparte to shift his position as required, representing in turn each class against the others. As the executive authority which has made itself independent, Bonaparte feels it to be his task to safeguard ‘bourgeois order’. But the strength of this bourgeois order lies in the middle class. He poses, therefore, as the representative of the middle class and issues decrees in this sense. Nevertheless, he is somebody solely because he has broken the power of that middle class, and keeps on breaking it daily. He poses, therefore, as the opponent of the political and literary power of the middle class (Marx and Engels 1975: 194). But there is more. In order for this system to function — that is, for the leader to stand above classes and not to act as a direct representative of any one class — he also has to act as the representative of one particular class: of the class which, precisely, is not sufficiently constituted to act as a

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united agent demanding active representation. This class of people who cannot represent themselves and can thus only be represented is, of course, the class of small-holding peasants, who form a vast mass, the members of which live in similar conditions but without entering into manifold relations with one other. Their mode of production isolates them from one another instead of bringing them into mutual intercourse . . . They are consequently incapable of enforcing their class interests in their own name, whether through a parliament or through a convention. They cannot represent themselves, they must be represented. Their representative must at the same time appear as their master, as an authority over them, as an unlimited governmental power that protects them against the other classes and sends them rain and sunshine from above. The political influence of the small-holding peasants, therefore, finds its final expression in the executive power subordinating society to itself (ibid.: 187–88). These three features together form the paradoxical structure of populist Bonapartist representation: standing above all classes, shifting among them, involves a direct reliance on the abject/remainder of all classes, plus the ultimate reference to the class of those who are unable to act as a collective agent demanding political representation. This paradox is grounded in the constitutive excess of representation over the represented. At the level of the law, the state power merely represents the interests of its subjects; it serves them, is responsible to them, and is itself subject to their control. However, at the level of the superego underside, the public message of responsibility is supplemented by the obscene message of the unconditional exercise of power: ‘Laws do not really bind me, I can do to you whatever I want, I can treat you as guilty if I decide to do so, I can destroy you on a whim.’ This obscene excess is a necessary constituent of the notion of sovereignty. The asymmetry here is structural: the law can only sustain its authority if subjects hear in it the echo of the obscene, unconditional self-assertion of power. This excess of power brings us to the ultimate argument against ‘big’ political interventions which aim at global transformation: the terrifying experiences of the 20th

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century, a series of catastrophes which precipitated disastrous violence on an unprecedented scale. There are three main theorizations of these catastrophes. First, the view epitomized by the name of Habermas: Enlightenment is in itself a positive, emancipator process with no inherent ‘totalitarian’ potential; the catastrophes that have occurred merely indicate that it remains an unfinished project, and our task should be to bring this project to completion. Second, the view associated with Adorno and Horkheimer’s Dialectic of Enlightenment and, today, with Agamben. The ‘totalitarian’ bent of Enlightenment is inherent and definitive, the ‘administered world’ is its true consequence, and concentration camps and genocides are a kind of negativeteleological endpoint of the entire history of the West. Third, the view developed in the works of Etienne Balibar, among others: modernity opens up a field of new freedoms, but at the same time of new dangers, and there is no ultimate teleological guarantee of the outcome. The contest remains open and undecided. The starting point of Balibar’s text on violence is the insufficiency of the standard Hegelian-Marxist notion of ‘converting’ violence into an instrument of historical Reason, a force which begets a new social formation (Balibar 2002). The ‘irrational’ brutality of violence is thus aufgehoben, ‘sublated’ in the strict Hegelian sense, reduced to a particular ‘stain’ that contributes to the overall harmony of historical progress. The 20th century confronted us with catastrophes — some directed against Marxist political forces, others generated by Marxist engagement itself — which cannot be ‘rationalized’ in this way. Their instrumentalization into the tools of the Cunning of Reason is not only ethically unacceptable but also theoretically wrong, ideological in the strongest sense of the term. In his close reading of Marx, Balibar nonetheless discerns an oscillation between this teleological ‘conversion-theory’ of violence, and a much more interesting notion of history as an open-ended process of antagonistic struggles, whose final ‘positive’ outcome is not guaranteed by any encompassing historical necessity. Balibar argues that, for necessary structural reasons, Marxism is unable to think the excess of violence that


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cannot be integrated into the narrative of historical Progress. More specifically, it cannot provide an adequate theory of fascism and Stalinism and their ‘extreme’ outcomes, Shoah and Gulag. Our task is therefore twofold: to deploy a theory of historical violence as something which cannot be instrumentalized by any political agent, which threatens to engulf this agent itself in a self-destructive vicious cycle; and also to pose the question of how to turn the revolutionary process itself into a civilizing force. As a counter-example, take the process that led to the St Bartholomew’s Day Massacre. Catherine de Medici’s goal was limited and precise: hers was a Machiavellian plot to assassinate Admiral de Coligny — a powerful Protestant pushing for war with Spain in the Netherlands — and let the blame fall on the over-mighty Catholic family of de Guise. Thus Catherine sought to engineer the fall of both the houses that posed a menace to the unity of the French state. But the bid to play her enemies off against each other degenerated into an uncontrolled frenzy of blood. In her ruthless pragmatism, Catherine was blind to the passion with which men clung to their beliefs. Hannah Arendt’s insights are crucial here, emphasizing the distinction between political power and the mere exercise of violence. Organizations run by direct non-political authority — army, Church, school — represent examples of violence (Gewalt), not of political power in the strict sense of the term (Arendt 1970). At this point, however, we need to recall the distinction between the public, symbolic law and its obscene supplement. The notion of the obscene doublesupplement of power implies that there is no power without violence. Political space is never ‘pure’ but always involves some kind of reliance on pre-political violence. Of course, the relationship between political power and pre-political violence is one of mutual implication. Not only is violence the necessary supplement of power, but power itself is alwaysalready at the root of every apparently ‘non-political’ relationship of violence. The accepted violence and direct relationship of subordination within the army, Church, family and other ‘non-political’ social forms is in itself the reification of a certain ethico-political struggle. The task of critical analysis is

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to discern the hidden political process that sustains all these ‘non-’ or ‘pre’-political relationships. In human society, the political is the encompassing structuring principle, so that every neutralization of some partial content as ‘non-political’ is a political gesture par excellence.

Humanitarian Purity It is within this context that we can situate the most salient human rights issue: the rights of those who are starving or exposed to murderous violence. Rony Brauman, who coordinated aid to Sarajevo, has demonstrated how the very presentation of the crisis there as ‘humanitarian’, the very recasting of a political-military conflict into humanitarian terms, was sustained by an eminently political choice — basically, to take the Serb side in the conflict. The celebration of ‘humanitarian intervention’ in Yugoslavia took the place of a political discourse, Brauman argues, thus disqualifying in advance all conflicting debate (Brauman 2004: 398–99, 416). From this particular insight we may problematize, at a general level, the ostensibly depoliticized politics of human rights as the ideology of military interventionism serving specific economico-political ends. As Wendy Brown has suggested apropos Michael Ignatieff, such humanitarianism presents itself as something of an anti-politics, a pure defence of the innocent and the powerless against power, a pure defence of the individual against immense and potentially cruel or despotic machineries of culture, state, war, ethnic conflict, tribalism, patriarchy, and other mobilizations or instantiations of collective power against individuals. (This volume, Chapter 6, p. 134)

However, the question is: what kind of politicization do those who intervene on behalf of human rights set in motion against the powers they oppose? Do they stand for a different formulation of justice, or do they stand in opposition to collective justice projects? For example, it is clear that the U.S.-led overthrow of Saddam Hussein, legitimized in terms

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of ending the suffering of the Iraqi people, was not only motivated by hard-headed politico-economic interests but also relied on a determinate idea of the political and economic conditions under which ‘freedom’ was to be delivered to the Iraqi people: liberal-democratic capitalism, insertion into the global market economy, etc. The purely humanitarian, anti-political politics of merely preventing suffering thus amounts to an implicit prohibition on elaborating a positive collective project of socio-political transformation. At an even more general level, we might problematize the opposition between the universal (pre-political) human rights possessed by every human being ‘as such’ and the specific political rights of a citizen, or member of a particular political community. In this sense, Balibar (2004: 320–21) argues for the ‘reversal of the historical and theoretical relationship between “man” and “citizen”’ that proceeds by ‘explaining how man is made by citizenship and not citizenship by man’. Balibar alludes here to Arendt’s insight on the condition of refugees: The conception of human rights based upon the assumed existence of a human being as such broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships except that they were still human. (Arendt 1958: 297)

This line, of course, leads straight to Agamben’s notion of homo sacer as a human being reduced to ‘bare life’. In a properly Hegelian dialectics of universal and particular, it is precisely when a human being is deprived of the particular socio-political identity that accounts for his determinate citizenship that — in one and the same move — he ceases to be recognized or treated as human (Agamben 1998). Paradoxically, I am deprived of human rights at the very moment at which I am reduced to a human being ‘in general’, and thus become the ideal bearer of those ‘universal human rights’ which belong to me independently of my profession, sex, citizenship, religion, ethnic identity, etc. What, then, happens to human rights when they are the rights of homo sacer, of those excluded from the political

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community; that is, when they are of no use, since they are the rights of those who, precisely, have no rights, and are treated as inhuman? Jacques Rancière proposes a salient dialectical reversal: ‘When they are of no use, one does the same as charitable persons do with their old clothes. One gives them to the poor. Those rights that appear to be useless in their place are sent abroad, along with medicine and clothes, to people deprived of medicine, clothes and rights.’ Nevertheless, they do not become void, for ‘political names and political places never become merely void’. Instead the void is filled by somebody or something else: if those who suffer inhuman repression are unable to enact the human rights that are their last recourse, then somebody else has to inherit their rights in order to enact them in their place. This is what is called the ‘right to humanitarian interference’ — a right that some nations assume to the supposed benefit of victimized populations, and very often against the advice of the humanitarian organizations themselves. The ‘right to humanitarian interference’ might be described as a sort of ‘return to sender’: the disused rights that had been sent to the rightless are sent back to the senders. (This volume, Chapter Eight, p. 181)

So, to put it in the Leninist way: what the ‘human rights of Third World suffering victims’ effectively means today, in the predominant discourse, is the right of Western powers themselves to intervene politically, economically, culturally and militarily in the Third World countries of their choice, in the name of defending human rights. The reference to Lacan’s formula of communication (in which the sender gets his own message back from the receiver-addressee in its inverted, that is, true form) is very much to the point here. In the reigning discourse of humanitarian interventionism, the developed West is effectively getting back from the victimized Third World its own message in its true form. The moment human rights are thus depoliticized, the discourse dealing with them has to change: the pre-political opposition of Good and Evil must be mobilized anew. Today’s ‘new reign of ethics’, clearly invoked in, say, Ignatieff’s work, thus relies on a violent gesture of depoliticization, depriving the victimized other of any political subjectivization. And, as

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Rancière points out, liberal humanitarianism à la Ignatieff unexpectedly meets the ‘radical’ position of Foucault or Agamben with regard to this depoliticization: their notion of ‘biopolitics’ as the culmination of Western thought ends up getting caught in a kind of ‘ontological trap’, in which concentration camps appear as ontological destiny: ‘each of us would be in the situation of the refugee in a camp. Any difference grows faint between democracy and totalitarianism and any political practice proves to be already ensnared in the biopolitical trap’ (this volume, Chapter Eight, p. 173). We thus arrive at a standard ‘anti-essentialist’ position, a kind of political version of Foucault’s notion of sex as generated by the multitude of the practices of sexuality. ‘Man’, the bearer of human rights, is generated by a set of political practices which materialize citizenship; ‘human rights’ are, as such, a false ideological universality, which masks and legitimizes a concrete politics of Western imperialism, military interventions and neo-colonialism. Is this, however, enough?

Universality’s Return The Marxist symptomal reading can convincingly demonstrate the content that gives the notion of human rights its specific bourgeois ideological spin: universal human rights are effectively the right of white, male property owners to exchange freely on the market, exploit workers and women, and exert political domination. This identification of the particular content that hegemonizes the universal form is, however, only half the story. Its crucial other half consists in asking a more difficult, supplementary question: that of the emergence of the form of universality itself. How — in what specific historical conditions — does abstract universality become a ‘fact of (social) life’? In what conditions do individuals experience themselves as subjects of universal human rights? Therein resides the point of Marx’s analysis of ‘commodity fetishism’: in a society in which commodity exchange predominates, individuals in their daily lives relate to themselves, and to the objects they encounter, as to contingent embodiments of abstract-universal notions.

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What I am, in terms of my concrete social or cultural background, is experienced as contingent, since what ultimately defines me is the ‘abstract’ universal capacity to think or to work. Likewise, any object that can satisfy my desire is experienced as contingent, since my desire is conceived as an ‘abstract’ formal capacity, indifferent to the multitude of particular objects that may, but never fully do, satisfy it. Or take the example of ‘profession’: the modern notion of profession implies that I experience myself as an individual who is not directly ‘born into’ his social role. What I will become depends on the interplay between contingent social circumstances and my free choice. In this sense, today’s individual has a profession, as electrician, waiter or lecturer, while it is meaningless to claim that the medieval serf was a peasant by profession. In the specific social conditions of commodity exchange and the global market economy, ‘abstraction’ becomes a direct feature of actual social life, the way concrete individuals behave and relate to their fate and to their social surroundings. In this regard Marx shares Hegel’s insight, that universality becomes ‘for itself’ only when individuals no longer fully identify the kernel of their being with their particular social situation; only insofar as they experience themselves as forever ‘out of joint’ with it. The concrete existence of universality is, therefore, the individual without a proper place in the social edifice. The mode of appearance of universality, its entering into actual existence, is thus an extremely violent act of disrupting the preceding organic poise. It is not enough to make the well-worn Marxist point about the gap between the ideological appearance of the universal legal form and the particular interests that effectively sustain it. At this level the counter-argument (made, among others, by Lefort and Rancière), that the form is never ‘mere’ form but involves a dynamics of its own, which leaves traces in the materiality of social life, is fully valid. It was bourgeois ‘formal freedom’ that set in motion the very ‘material’ political demands and practices of feminism or trade unionism. Rancière’s basic emphasis is on the radical ambiguity of the Marxist notion of the ‘gap’ between formal democracy — the Rights of Man, political freedoms — and the economic


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reality of exploitation and domination. This gap can be read in the standard ‘symptomatic’ way: formal democracy is a necessary but illusory expression of a concrete social reality of exploitation and class domination. But it can also be read in the more subversive sense of a tension in which the ‘appearance’ of égaliberté is not a ‘mere appearance’ but contains an efficacy of its own, which allows it to set in motion the rearticulation of actual socio-economic relations by way of their progressive ‘politicization’. Why shouldn’t women also be allowed to vote? Why shouldn’t workplace conditions be a matter of public concern as well? We might perhaps apply here the old Lévi-Straussian term of ‘symbolic efficiency’: the appearance of égaliberté is a symbolic fiction which, as such, possesses actual efficiency of its own; the properly cynical temptation of reducing it to a mere illusion that conceals a different actuality should be resisted. It is not enough merely to posit an authentic articulation of a life-world experience which is then reappropriated by those in power to serve their particular interests or to render their subjects docile cogs in the social machine. Much more interesting is the opposite process, in which something that was originally an ideological edifice imposed by colonizers is all of a sudden taken over by their subjects as a means to articulate their ‘authentic’ grievances. A classic case would be the Virgin of Guadalupe in newly colonized Mexico: with her appearance to a humble Indian, Christianity — which until then served as the imposed ideology of the Spanish colonizers — was appropriated by the indigenous population as a means to symbolize their terrible plight. Rancière has proposed a very elegant solution to the antinomy between human rights, belonging to ‘man as such’, and the politicization of citizens. While human rights cannot be posited as an unhistorical ‘essentialist’ Beyond with regard to the contingent sphere of political struggles, as universal ‘natural rights of man’ exempted from history, neither should they be dismissed as a reified fetish, the product of concrete historical processes of the politicization of citizens. The gap between the universality of human rights and the political rights of citizens is thus not a gap between the universality

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of man and a specific political sphere. Rather, it ‘separates the whole of the community from itself’ (this volume, Chapter Eight, p. 177). Far from being pre-political, ‘universal human rights’ designate the precise space of politicization proper; what they amount to is the right to universality as such — the right of a political agent to assert its radical noncoincidence with itself (in its particular identity), to posit itself as the ‘supernumerary’, the one with no proper place in the social edifice; and thus as an agent of universality of the social itself. The paradox is therefore a very precise one, and symmetrical to the paradox of universal human rights as the rights of those reduced to inhumanity. At the very moment when we try to conceive the political rights of citizens without reference to a universal ‘meta-political’ human rights, we lose politics itself; that is to say, we reduce politics to a ‘post-political’ play of negotiation of particular interests.

References Agamben, Giorgio. 1998. Homo Sacer, Stanford University Press, Stanford. Arendt, Hannah. 1958. The Origins of Totalitarianism, Harcourt, Brace & Co., New York. ———. 1970. On Violence, Harcourt, Brace & World, New York. Balibar, Etienne. 2002. ‘Gewalt’: Entry for Historisch-Kritisches Wörterbuch des Marxismus, vol. 5, ed. Wolfgang Fritz Haug, Hamburg. ———. 2004. ‘Is a Philosophy of Human Civic Rights Possible?’ South Atlantic Quarterly 103(2–3): 311–22. Brauman, Rony. 2004. ‘From Philanthropy to Humanitarianism’, South Atlantic Quarterly 103(2–3), Spring–Summer: 397–417. Jezernik, Bozidar. 2004. Wild Europe: The Balkans in the Gaze of Western Travellers, Saqi Books, London. Marx, Karl and Freidrich Engels. 1969. Selected Works, vol. 1, Progress Publishers, Moscow. ———. 1975. Collected Works, vol. 11, Progress Publishers, Moscow. Žižek, Slavoj. 2005. ‘The Constitution is Dead. Long Live Proper Politics’, Guardian, June 4.

8 Who Is the Subject of the Rights of Man? Jacques Rancière

As we know, the question raised by my title took on a new

cogency during the last ten years of the 20th century. The Rights of Man or Human Rights had just been rejuvenated in the 1970s and 1980s by the dissident movements in the Soviet Union and Eastern Europe — a rejuvenation that was all the more significant as the ‘formalism’ of those rights had been one of the first targets of the young Marx, so that the collapse of the Soviet Empire could appear as their revenge. After this collapse, they would appear as the charter of the irresistible movement leading to a peaceful posthistorical world where global democracy would match the global market of liberal economy. As is well-known, things did not exactly go that way. In the following years, the new landscape of humanity, freed from utopian totalitarianism, became the stage of new outbursts of ethnic conflicts and slaughters, religious fundamentalisms, or racial and xenophobic movements. The territory of ‘posthistorical’ and peaceful humanity proved to be the territory of new figures of the Inhuman. And the Rights of Man turned out to be the rights of the rightless, of the populations hunted out of their homes and land and threatened by ethnic slaughter. They appeared more and more as the rights of the victims, the rights of those who were unable to enact any rights or even any claim in their name, so that eventually their rights had to be upheld by others, at the cost of shattering the edifice of International Rights, in the name of a new right to ‘humanitarian interference’ — which ultimately boiled down to the right to invasion. A new suspicion thus arose: What lies behind this strange shift from Man to Humanity and from Humanity to the Humanitarian? The actual subject of these Rights of Man

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became Human Rights. Is there not a bias in the statement of such rights? It was obviously impossible to revive the Marxist critique. But another form of suspicion could be revived: the suspicion that the ‘man’ of the Rights of Man was a mere abstraction because the only real rights were the rights of citizens, the rights attached to a national community as such. That polemical statement had first been made by Edmund Burke against the French Revolution (Burke 1987). And it had been revived in a significant way by Hannah Arendt. The Origins of Totalitarianism included a chapter devoted to the ‘Perplexities of the Rights of Man’. In that chapter, Arendt equated the ‘abstractedness’ of ‘Men’s Rights’ with the concrete situation of those populations of refugees that had flown all over Europe after World War I. These populations have been deprived of their rights by the very fact that they were only ‘men’, that they had no national community to ensure those rights. Arendt found there the ‘body’ fitting the abstractedness of the rights and she stated the paradox as follows: the Rights of Man are the rights of those who are only human beings, who have no more property left than the property of being human. Put another way, they are the rights of those who have no rights, the mere derision of right (Arendt 1951: 297–98). The equation itself was made possible by Arendt’s view of the political sphere as a specific sphere, separated from the realm of necessity. Abstract life meant ‘deprived life’. It meant ‘private life’, a life entrapped in its ‘idiocy’, as opposed to the life of public action, speech and appearance. This critique of ‘abstract’ rights actually was a critique of democracy. It rested on the assumption that modern democracy had been wasted from the very beginning by the ‘pity’ of the revolutionaries for the poor people, by the confusion of two freedoms: political freedom, opposed to domination, and social freedom, opposed to necessity. In her view, the Rights of Man were not an ideal fantasy of revolutionary dreamers, as Burke had put it. They were the paradoxical rights of the private, poor, unpoliticized individual. This analysis, articulated more than fifty years ago, seems tailor-made, fifty years later, to fit the new ‘perplexities’ of the Rights of Man on the ‘humanitarian’ stage. Now we


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must pay close attention to what allows it to fit. It is the conceptualization by Hannah Arendt of a certain state of exception. In a striking passage from the chapter on the perplexities of the Rights of Man, she writes the following about the rightless: ‘Their plight is not that they are not equal before the law, but that no law exists for them; not that they are oppressed, but that nobody wants to oppress them’ (Arendt 1951: 293) There is something extraordinary in the statement ‘nobody wants to oppress them’ and in its plainly contemptuous tone. It is as if these people were guilty of not even being able to be oppressed, not even worthy of being oppressed. I think that we must be aware of what is at stake in this statement of a situation and status that would be ‘beyond oppression’, beyond any account in terms of conflict and repression, or law and violence. As a matter of fact, there were people who wanted to oppress them and laws to do this. The conceptualization of a ‘state beyond oppression’ is much more a consequence of Arendt’s rigid opposition between the realm of the political and the realm of private life — what she calls in the same chapter ‘the dark background of mere givenness’ (ibid.: 297). It is in keeping with her archipolitical position. But paradoxically this position did provide a frame of description and a line of argumentation that later would prove quite effective for depoliticizing matters of power and repression and setting them in a sphere of exceptionality that is no longer political, in an anthropological sphere of sacrality situated beyond the reach of political dissensus. This overturning of an archipolitical statement into a depoliticizing approach is, in my view, one of the most significant features of thought that was brought to the fore in the contemporary discussion about the Rights of Man, the In human, and the crimes against humanity. The overturn is most clearly illustrated by Giorgio Agamben’s theorization of biopolitics, notably in Homo Sacer (Agamben 1998). Agamben transforms Arendt’s equation — or paradox — through a series of substitutions that equate it, first, with Foucault’s theory of biopower, and, second, with Carl Schmitt’s theory of the state of exception.

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In a first step, his argument relies on the Arendtian opposition of two lives, an opposition predicated on the distinction between two Greek words: zoe, which means ‘bare physiological life’, and bios, which means ‘form of life’, and notably the bios politikos: ‘the life of great actions and noble words.’ In her view, the Rights of Man and modern democracy rested on the confusion of those two lives — which ultimately meant the reduction of bios to sheer zoe. Agamben equated her critique with Foucault’s polemics on ‘sexual liberation’. In The Will to Know and Society Must Be Defended, Foucault argues that the so-called sexual liberation and free speech about sex are in fact effects of a power machine that urges people to speak about sex. They are effects of a new form of power that is no longer the old sovereign power of Life and Death over the subjects, but a positive power of control over biological life. According to Foucault, even ethnic cleansing and the Holocaust are part of a ‘positive’ biopolitical programme more than revivals of the sovereign right to kill (Foucault 1978, 2003). Through the biopolitical conceptualization, what, in Arendt, was the flaw of modern democracy becomes in Agamben the positivity of a form of power. It becomes the complicity of democracy, viewed as the mass-individualistic concern with individual life, with technologies of power holding sway over biological life as such. From this point on, Agamben takes things a step further. While Foucault opposed modern biopower to old sovereignty, Agamben matches them by equating Foucault’s ‘control over life’ with Carl Schmitt’s (1922) state of exception. Schmitt had posited the state of exception as the principle of political authority. The sovereign power is the power that decides on the state of exception in which normal legality is suspended. This ultimately means that law hinges on a power of decision that is itself out of law. Agamben identifies the state of exception with the power of decision over life. What is correlated with the exceptionality of sovereign power is the exception of life. It is life as bare or naked life, which, according to Agamben, means life captured in a zone of indiscernibility, of indistinction between zoe and bios, between natural and human life.

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In such a way, there is no more opposition between sovereign power and biopower. Sovereign power is the same as biopower. Nor is there any opposition between absolute state power and the Rights of Man. The Rights of Man make natural life appear as the source and the bearer of rights. They make birth appear as the principle of sovereignty. The equation would still have been hidden at that time by the identification of birth — or nativity — with nationality, that is, with the figure of the citizen. The flow of refugees in the 20th century would have split up that identity and made the nakedness of bare life, stripped of the veil of nationality, appear as the secret of the Rights of Man. The programmes of ethnic cleansing and extermination would then appear as a radical attempt to draw the full consequences of this splitting. This means that the secret of democracy — the secret of modern power — can now show up at the foreground. Now state power has concretely to do with bare life. Bare life is no longer the life of the subject that it would repress. Nor is it the life of the enemy that it would have to kill. It is, Agamben says, a ‘sacred’ life — a life taken within a state of exception, a life ‘beyond oppression’ (Agamben 1998). It is a life between life and death that can be identified with the life of the condemned man or the life of a person in a state of coma. In his analysis of the Holocaust, Agamben emphasizes the continuity between two things: scientific experimentation on life ‘unworthy to being lived’, that is, on abnormal, mentally handicapped, or condemned persons, and the planned extermination of the Jews, posited as a population experimentally reduced to the condition of bare life (ibid.). Therefore the Nazi laws suspending the constitutional articles guaranteeing freedom of association and expression can be thought as the plain manifestation of the state of exception, which is the hidden secret of modern power. Correspondingly, the Holocaust appears as the hidden truth of the Rights of Man — that is, the status of bare, undifferentiated life, which is the correlate of biopower. The camp can be put as the ‘nomos’ of modernity and subsumes under one and the same notion the camps of refugees, the zones where illegal migrants are parked by national authorities, or the Nazi death camps.

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In such a way, the correlation of sovereign power and bare life takes place where political conflicts can be located. The camp is the space of the ‘absolute impossibility of deciding between fact and law, rule and application, exception and rule’ (ibid.). In this space, the executioner and the victim, the German body and the Jewish body, appear as two parts of the same ‘biopolitical’ body. Any kind of claim to rights or any struggle enacting rights is thus trapped from the very outset in the mere polarity of bare life and state of exception. That polarity appears as a sort of ontological destiny: each of us would be in the situation of the refugee in a camp. Any difference grows faint between democracy and totalitarianism and any political practice proves to be already ensnared in the biopolitical trap. Agamben’s view of the camp as the ‘nomos of modernity’ may seem very far from Arendt’s view of political action. Nevertheless, I would assume that the radical suspension of politics in the exception of bare life is the ultimate consequence of Arendt’s archipolitical position, of her attempt to preserve the political from the contamination of private, social, apolitical life. This attempt depopulates the political stage by sweeping aside its always-ambiguous actors. As a result, the political exception is ultimately incorporated in state power, standing in front of bare life — an opposition that the next step forward turns into a complementarity. The will to preserve the realm of pure politics ultimately makes it vanish in the sheer relation of state power and individual life. Politics thus is equated with power, a power that is increasingly taken as an overwhelming historico-ontological destiny from which only a God is likely to save us. If we want to get out of this ontological trap, we have to reset the question of the Rights of Man — more precisely, the question of their subject — which is the subject of politics as well. This means setting the question of what politics is on a different footing. In order to do this, let us have a closer look at the Arendtian argument about the Rights of Man and of the Citizen, an argument that Agamben basically endorses. She makes them a quandary, which can be put as follows: either the rights of the citizen are the rights of man — but the rights of man are the rights of the unpoliticized person;

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they are the rights of those who have no rights, which amounts to nothing — or the rights of man are the rights of the citizen, the rights attached to the fact of being a citizen of such or such constitutional state. This means that they are the rights of those who have rights, which amounts to a tautology (Arendt 1951: 294). Either the rights of those who have no rights or the rights of those who have rights. Either a void or a tautology, and, in both cases, a deceptive trick, such is the lock that she builds. It works out only at the cost of sweeping aside the third assumption that would escape the quandary. There is indeed a third assumption, which I would put as follows: the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not. Let us to try to make sense of the sentence — or develop the equation. It is clear that the equation cannot be resolved by the identification of a single x. The Rights of Man are not the rights of a single subject that would be at once the source and the bearer of the rights and would only use the rights that she or he possesses. If this was the case, indeed, it would be easy to prove, as Arendt does, that such a subject does not exist. But the relation of the subject to his or her rights is a little more complicated and entangled. It is enacted through a double negation. The subject of rights is the subject, or more accurately the process of subjectivization, that bridges the interval between two forms of the existence of those rights. Two forms of existence. First, they are written rights. They are inscriptions of the community as free and equal. As such, they are not only the predicates of a non-existing being. Even though actual situations of rightlessness may give them the lie, they are not only an abstract ideal, situated far from the givens of the situation. They are also part of the configuration of the given. What is given is not only a situation of inequality. It is also an inscription, a form of visibility of equality. Second, the Rights of Man are the rights of those who make something of that inscription, who decide not only to ‘use’ their rights but also to build such and such a case for the verification of the power of the inscription. It is not only a matter of checking whether the reality confirms or denies the rights. The point is about what confirmation or denial means.

Who Is the Subject of the Rights of Man?


Man and citizen do not designate collections of individuals. Man and citizen are political subjects. Political subjects are not definite collectivities. They are surplus names, names that set out a question or a dispute (litige) about who is included in their count. Correspondingly, freedom and equality are not predicates belonging to definite subjects. Political predicates are open predicates: they open up a dispute about what they exactly entail and whom they concern in which cases. The Declaration of Rights states that all men are born free and equal. Now the question arises: What is the sphere of implementation of these predicates? If you answer, as Arendt does, that it is the sphere of citizenship, the sphere of political life, separated from the sphere of private life, you sort out the problem in advance. The point is, precisely, where do you draw the line separating one life from the other? Politics is about that border. It is the activity that brings it back into question. This point was clearly made during the French Revolution by a revolutionary woman, Olympe de Gouges, in her famous statement that if women are entitled to go to the scaffold, they are entitled to go to the assembly. The point was precisely that equal-born women were not equal citizens. They could neither vote nor be elected. The reason for the prescription was, as usual, that they could not fit the purity of political life. They allegedly belonged to private, domestic life. And the common good of the community had to be kept apart from the activities, feelings and interests of private life. Olympe de Gouge’s argumentation precisely showed that the border separating bare life and political life could not be so clearly drawn. There was at least one point where ‘bare life’ proved to be ‘political’: there were women sentenced to death, as enemies of the revolution. If they could lose their ‘bare life’ out of a public judgement based on political reasons, this meant that even their bare life — their life doomed to death — was political. If, under the guillotine, they were as equal, so to speak, ‘as men’, they had the right to the whole of equality, including equal participation in political life. Of course the deduction could not be endorsed — it could not even be heard — by the lawmakers. Nevertheless, it could be enacted in the process of a wrong, in the construction


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of a dissensus. A 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 we see something as given. Women could make a twofold demonstration. They could demonstrate that they were deprived of the rights that they had, thanks to the Declaration of Rights. And they could demonstrate, through their public action, that they had the rights that the constitution denied to them, that they could enact those rights. So they could act as subjects of the Rights of Man in the precise sense that I have mentioned. They acted as subjects that did not have the rights that they had and had the rights that they had not. This is what I call a dissensus: putting two worlds in one and the same world. A political subject, as I understand it, is a capacity for staging such scenes of dissensus. It appears thus that man is not the void term opposed to the actual rights of the citizen. It has a positive content that is the dismissal of any difference between those who ‘live’ in such or such sphere of existence, between those who are or are not qualified for political life. The very difference between man and citizen is not a sign of disjunction proving that the rights are either void or tautological. It is the opening of an interval for political subjectivization. Political names are litigious names, names whose extension and comprehension are uncertain and which open for that reason the space of a test or verification. Political subjects build such cases of verification. They put to test the power of political names, their extension and comprehension. They not only confront the inscriptions of rights to situations of denial; they put together the world where those rights are valid and the world where they are not. They put together a relation of inclusion and a relation of exclusion. The generic name of the subjects who stage such cases of verification is the name of the demos, the name of the people. At the end of Homo Sacer, Agamben (1998) emphasizes what he calls the ‘constant ambiguity’ of the people that is at once the name of the political body and the name of the lower classes. He sees in this ambiguity the mark of the correlation between bare life and sovereignty. But the demos —

Who Is the Subject of the Rights of Man?


or the people — does not mean the lower classes. Nor does it mean bare life. Democracy is not the power of the poor. It is the power of those who have no qualification for exercising power. In the third book of Laws, Plato lists all the qualifications that are or claim to be sources of legitimate authority (Plato 1970: 137–39). Such are the powers of the masters over the slaves, of the old over the young, of the learned people over the ignorant people, and so on. But, at the end of the list, there is an anomaly, a ‘qualification’ for power that he calls ironically God’s choice, meaning by that mere chance: the power gained by drawing lots, the name of which is democracy. Democracy is the power of those who have no specific qualification for ruling, except the fact of having no qualification. As I interpret it, the demos — the political subject as such — has to be identified with the totality made by those who have no ‘qualification’. I called it the count of the uncounted — or the part of those who have no part. It does not mean the population of the poor; it means a supplementary part, an empty part that separates the political community from the count of the parts of the population. Agamben’ s argument is in line with the classical opposition between the illusion of sovereignty and its real content. As a result, he misses the logic of political subjectivization. Political subjects are surplus subjects. They inscribe the count of the uncounted as a supplement. Politics does not separate a specific sphere of political life from the other spheres. It separates the whole of the community from itself. It opposes two counts of counting it. You can count the community as the sum of its parts — of its groups and of the qualifications that each of them bears. I call this a way of counting police. You can count a supplement to the sum, a part of those who have no part, which separates the community from its parts, places, functions and qualifications. This is politics, which is not a sphere but a process. The Rights of Man are the rights of the demos, conceived as the generic name of the political subjects who enact — in specific scenes of dissensus — the paradoxical qualification of this supplement. This process disappears when you assign those rights to one and the same subject. There is

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no man of the Rights of Man, but there is no need for such a man. The strength of those rights lies in the back-andforth movement between the first inscription of the right and the dissensual stage on which it is put to test. This is why the subjects of the Soviet constitution could make reference to the Rights of Man against the laws that denied their effectivity. This is also why today the citizens of states ruled by a religious law or by the mere arbitrariness of their governments, and even the clandestine immigrants in the zones of transit of our countries or the populations in the camps of refugees, can invoke them. These rights are theirs when they can do something with them to construct a dissensus against the denial of rights they suffer. And there are always people among them who do it. It is only if you presuppose that the rights belong to definite or permanent subjects that you must state, as Arendt did, that the only real rights are the rights given to the citizens of a nation by their belonging to that nation, and guaranteed by the protection of their state. If you do this, of course, you must deny the reality of the struggles led outside of the frame of the national constitutional state and assume that the situation of the ‘merely’ human person deprived of national rights is the implementation of the abstractedness of those rights. The conclusion is in fact a vicious circle. It merely reasserts the division between those who are worthy or not worthy of doing politics that was presupposed at the very beginning. But the identification of the subject of the Rights of Man with the subject deprived of any right is not only the vicious circle of a theory, it is also the result of an effective reconfiguration of the political field, of an actual process of depoliticization. This process is what is known by the name of consensus. Consensus means much more than the reasonable idea and practice of settling political conflicts by forms of negotiation and agreement, and by allotting to each party the best share compatible with the interests of other parties. It means the attempt to get rid of politics by ousting the surplus subjects and replacing them with real partners, social groups, identity groups, and so on. Correspondingly, conflicts are turned into problems that have to be sorted out by learned expertise and a negotiated adjustment of

Who Is the Subject of the Rights of Man?


interests. Consensus means closing the spaces of dissensus by plugging the intervals and patching over the possible gaps between appearance and reality or law and fact. In this way, the ‘abstract’ and litigious Rights of Man and of the citizen are tentatively turned into real rights, belonging to real groups, attached to their identity and to the recognition of their place in the global population. Therefore the political dissensus about the part-taking in the common of the community is boiled down to a distribution within which each part of the social body would obtain the best share that it can obtain. In this logic, positive laws and rights must cling increasingly to the diversity of social groups and to the speed of the changes in social life and individual ways of being. The aim of consensual practice is the identity of law and fact. The law has to become identical to the natural life of society. To put it in other terms, consensus is the reduction of democracy to the way of life of a society, to its ethos — meaning by this word both the abode of a group and its lifestyle. As a consequence, the political space, which was shaped in the very gap between the abstract literalness of the rights and the polemic about their verification, turns out to diminish more and more every day. Ultimately, those rights appear actually empty. They seem to be of no use. And when they are of no use, you do the same as charitable persons do with their old clothes. You give them to the poor. Those rights that appear to be useless in their place are sent abroad, along with medicine and clothes, to people deprived of medicine, clothes and rights. It is in this way, as the result of this process, that the Rights of Man become the rights of those who have no rights, the rights of bare human beings subjected to inhuman repression and inhuman conditions of existence. They become humanitarian rights, the rights of those who cannot enact them, the victims of the absolute denial of right. For all this, they are not void. Political names and political places never become merely void. The void is filled by somebody or something else. The Rights of Man do not become void by becoming the rights of those who cannot actualize them. If they are not truly ‘their’ rights, they can become the rights of others.

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‘The Rights of the Other’ is the title of an essay written by Jean-François Lyotard, originally a paper given within the auspices of the Oxford Lectures on the Rights of Man, organized in 1993 by Amnesty International.1 The theme of the rights of the other has to be understood as an answer to the question, ‘What do Human Rights mean in the context of the humanitarian situation?’ It is part of an attempt to rethink rights by first rethinking Wrong. The issue of rethinking Wrong increasingly took the floor after the collapse of the Soviet Empire and the disappointing outcomes of what was supposed to be the last step to universal democracy. In the context of the new outbursts of racial or religious hatred and violence, it was no longer possible to assign crimes against humanity to specific ideologies. The crimes of dead totalitarian regimes had to be rethought: they were said to be not so much the specific effects of perverse ideologies and outlaw regimes as the manifestations of an infinite wrong — a wrong that could no longer be conceptualized within the opposition of democracy and anti-democracy, of legitimate state or lawless state, but which appeared as an absolute evil, an unthinkable and unredeemable evil. Lyotard’s conceptualization of the Inhuman is one of the most significant examples of that absolutization. Lyotard did in fact split the idea of the inhuman. In his view, the forms of repression and cruelty, or the situations of distress that we call ‘inhuman’, are the consequences of our betrayal of another Inhuman, what we could call a ‘good’ Inhuman. That Inhuman is Otherness as such. It is the part in us that we do not control. It may be birth and infancy. It may be the Unconscious. It may be the Law. It may be God. The Inhuman is the irreducible otherness, the part of the Untamable of which the human being is, as Lyotard says, the hostage or the slave. Absolute evil begins with the attempt to tame the Untamable, to deny the situation of the hostage, to dismiss our dependency on the power of the Inhuman, in order to build a world that we could master entirely (Lyotard 1994: 136). Lyotard (1994). This essay was originally presented as a paper within the auspices of the Oxford Lectures on the Rights of Man, organized in 1993 by Amnesty International. 1

Who Is the Subject of the Rights of Man?


Such a dream of absolute freedom would have been the dream of the Enlightenment and of Revolutionary emancipation. It would still be at work in contemporary dreams of perfect communication and transparency. But only the Nazi Holocaust would have fully revealed and achieved the core of the dream: exterminating the people whose very mission is to bear witness to the situation of hostage, to obey the law of Otherness, the law of an invisible and unnamable God. ‘Crimes against humanity’ appear then as crimes of humanity, the crimes resulting from the affirmation of a human freedom denying its dependency upon the Untamable. The rights that must be held as a response to the ‘humanitarian’ lack of rights are the rights of the Other, the rights of the Inhuman. For instance, in Lyotard’s view, the right to speak must be identified with the duty of ‘announcing something new’ (ibid.). But the ‘new’ that must be announced is nothing but the immemorial power of the Other and our own incapacity to fulfil the duty of announcing it. The obedience to the rights of the Other sweeps aside the heterogeneity of political dissensus to the benefit of a more radical heterogeneity. As in Agamben, this means infinitizing the wrong, substituting for the processing of a political wrong a sort of ontological destiny that allows only ‘resistance’. Now this resistance is no manifestation of freedom. On the contrary, resistance means faithfulness to the law of Otherness, which rules out any dream of ‘human emancipation’. This is the philosophical way of understanding the rights of the Other. But there is a less sophisticated and more trivial understanding of them: if those who suffer inhuman repression are unable to enact the Human Rights that are their last recourse, then somebody else has to inherit their rights in order to enact them in their place. This is what is called the ‘right to humanitarian interference’ — a right that some nations assume to the supposed benefit of victimized populations, and very often against the advice of the humanitarian organizations themselves. The ‘right to humanitarian interference’ might be described as a sort of ‘return to sender’: the disused rights that had been sent to the rightless are sent back to the senders. But this back and forth movement is not a null transaction. It gives a new

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use to the ‘disused’ rights — a new use that achieves on the world stage what consensus achieves on national stages: the erasure of the boundary between law and fact, law and lawlessness. The human rights that are sent back are now the rights of the absolute victim. The absolute victim is the victim of an absolute evil. Therefore the rights that come back to the sender — who is now the avenger — are akin to a power of infinite justice against the Axis of Evil. The expression ‘infinite justice’ was dismissed by the U.S. government a few days after having been put forward as an inappropriate term. But I think that it was fairly appropriate. An infinite justice is not only a justice that dismisses the principles of International Law, prohibiting interference in the ‘internal affairs’ of another state; it is a justice which erases all the distinctions that used to define the field of justice in general: the distinctions between law and fact, legal punishment and private retaliation, justice, police and war. All those distinctions are boiled down to a sheer ethical conflict between Good and Evil. Ethics is indeed on our agendas. Some people see it as a return to some founding spirit of the community, sustaining positive laws and political agency. I take a fairly different view of this new reign of ethics. It means to me the erasure of all legal distinctions and the closure of all political intervals of dissensus. Both are erased in the infinite conflict of Good and Evil. The ‘ethical’ trend is in fact the ‘state of exception’. But this state of exception is no completion of any essence of the political, as it is in Agamben. Instead it is the result of the erasure of the political in the couple of consensual policy and humanitarian police. The theory of the state of exception, just as the theory of the ‘rights of the other’, turns this result into an anthropological or ontological destiny. They trace it back to the inescapable prematuration of the human animal. I think that we had rather leave the ontological destiny of the human animal aside if we want to understand who is the subject of the Rights of Man and to rethink politics today, even if out of its very lack.

Who Is the Subject of the Rights of Man?


References Agamben, Giorgio. 1998. Homo Sacer, Stanford University Press, Stanford. Arendt, Hannah. 1951. The Origins of Totalitarianism, Harcourt Brace & Co., New York. Burke, Edmund. 1987. Reflections on the Revolution in France, (ed.), J. G. A. Pocock, Hacket, Indianapolis. Foucault, Michel. 1978. The History of Sexuality, Volume 1: An Introduction [The Will to Know], translated by Robert Hurley, Pantheon, New York. ———. 2003. Society Must Be Defended, translated by David Macey, Picador, New York. Lyotard, Jean-François. 1994. ‘The Other’s Rights’, in S. Shute and S. Hurley (eds), On Human Rights, Basic Books, New York, 135–49. Plato. 1970. Laws, translated by Trevor J. Saunders, Penguin, Middlesex, bk. 3. Schmitt, Carl. 1922. Politische Theologie, Duncker and Humblot, Berlin.


9 Wronging Rights? Re-evaluating the Alternatives Aakash Singh Rathore

In Chapter Seven, Slavoj Žižek seemingly sets out with more force than any other critic in this book the essential distillation of all of their various critiques of human rights: universal human rights are effectively the right of white, male property owners to exchange freely on the market, exploit workers and women, and exert political domination. (This volume, Chapter Seven, p. 164)

But then he continues: This identification of the particular content that hegemonizes the universal form is, however, only half the story. (ibid.)

The other ‘half’ of ‘the story’ is that which is laid out with great astuteness by the co-editor of this volume, Alex Cistelecan, in the introductory chapter: ‘Which Critique of Human Rights? Evaluating the Postcolonial and Post-Althusserian Alternatives.’ Here, in the concluding chapter, my aim will be to take issue with Cistelecan’s evaluation of these two alternatives, first by re-evaluating them through a process of revaluating the alleged two halves of the story, and then, subsequently, by devaluating the ‘story’ itself. In this respect, whereas Cistelecan tends to side with the post-Althusserians presented in Part Three of this book, I attempt to justify herein a preference for the positions represented by the postcolonialists in Part One. In the course of this rereading of the alternatives, I will also be led to invert Cistelecan’s assessment of the positions of the authors in Part Two; whereas he identifies

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certain currents of the thought of Richard Rorty (Chapter Five) with the postcolonialists, I provide several reasons for the exact opposite judgement.

I Cistelecan’s thesis is that the postcolonialist discourse attempts to close the gaps between the abstractions of rights, their real content, and their hapless pseudo-bearers with appeals to morality, sympathy and a demand for identity; that is, for the concept (universal right) to fully correspond to the referent (particularity, subjectivity). He contrasts this naïve approach, mired in sense-certainty, with the post-Althusserian alternative, which ‘reproposes the abstraction of rights with all its contradictions as symbolic efficiency and as the only way of “tarrying with the negative” of politics’ (this volume, Chapter One, p. 4). While Cistelecan calls these positions ‘alternatives’, strictly speaking, this is not the case, because even if the post-Althusserian position favouring symbolic efficiency were disproved, it would not automatically follow that the postcolonial position allegedly favouring morality were then proved correct (in other words, here modus tollendo ponens does not hold). Moreover, for Cistelecan, the postcolonialist position suffers from two disqualifying defects, not one: first, its naïve sense-certainty, with its attendant simultaneous faith in and scepticism about language; and as if that were not already enough, second, its quest to resolve the contradictions of right and collapse the universal into the particular. In this respect, Cistelecan’s critique of the postcolonialists is even further reaching than Žižek’s (and Rancière’s) account of the other ‘half’ of ‘the story’, which only explicitly targets the latter defect of the postcolonial position. For this reason, we see that it would not be sufficient merely to challenge the post-Althusserian (and from this point we include Cistelecan along with Žižek and Rancière under that heading) account of symbolic efficiency, or the other ‘half’ of ‘the story’ in Žižek’s terms. Rather, if we are to rescue the postcolonialists from the double defect, we are going to have to challenge the story itself.

Re-evaluating the Alternatives


But let’s take one thing at a time. First, the other ‘half’ of ‘the story’, according to Žižek: It is not enough to make the well-worn Marxist point about the gap between the ideological appearance of the universal legal form and the particular interests that effectively sustain it . . .

that is, the first half of the story, for Žižek, or the second defect of the postcolonial position, for Cistelecan — At this level the counter-argument (made, among others, by Lefort and Rancière), that the form is never ‘mere’ form but involves a dynamics of its own, which leaves traces in the materiality of social life, is fully valid. It was bourgeois ‘formal freedom’ that set in motion the very ‘material’ political demands and practices of feminism or trade unionism. (This volume, Chapter Seven, p. 165)

This setting into motion of political demands illustrates the efficiency aspect of symbolic efficiency, while the gap affords the background for the symbolic aspect: This gap can be read in the standard [here read postcolonial, says Cistelecan] ‘symptomatic’ way: formal democracy is a necessary but illusory expression of a concrete social reality of exploitation and class domination. But it can also be read in the more subversive sense of a tension in which the ‘appearance’ of égaliberté is not a ‘mere appearance’ but contains an efficacy of its own, which allows it to set in motion the rearticulation of actual socio-economic relations by way of their progressive ‘politicization’. Why shouldn’t women also be allowed to vote? Why shouldn’t workplace conditions be a matter of public concern as well? (ibid.)

It is indeed a rich suggestion, and we can think of actual examples: how could Barack Obama have ever won the presidency in the United States without President George W. Bush’s prior effort to cover up his proven racism (during his time as governor of Texas) by appointing Blacks in positions of unprecedented power, like Secretary of State? There is, thus, something to this symbolic efficiency. But it is, I’m afraid, only half of that story; for, as Alexandre Kojève argued in his provocative essay, ‘Karl Marx is God and Henry Ford is his

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Prophet’, acquiescing to the demands of labour is precisely what has permitted capital to thrive.1 First World feminism and trade-unionism, to take Žižek’s own examples, may be regarded as internal victories; but from Kojève’s point of view (shared, I think, by both Kapur and Spivak), they are also decisively catalytic toward the triumph of global capital.2 In brief: retail emancipation, wholesale bondage. As a gambit towards an emancipatory end — a role explicitly ascribed by Cistelecan, when he refers to formal universality as ‘the only chance to fight’ the actual politics of exclusion — symbolic efficiency is arguably as inefficient as it is efficient.3 If symbolic efficiency as ‘benefic hypocrisy’ 1 Kojève (1980). For full discussion of this dimension of Kojève’s thought, see Singh (2005: 99ff). 2 Cf. Žižek’s article, ‘Why Cynics are Wrong’ (at http://www. lacan.com/article/?page_id=3, accessed August 1, 2010), wherein he himself briefly entertains the idea that the election victory of Obama will be decisively bad for leftism and good for the total entrenchment of rightist exploitative global politics; he opts, in the end, however, for ‘hope’—more symbolic efficiency, or in line with what I shall show in Section III, a mechanism that serves to rationalize submission to the status quo. In the current context, of course, the so-called ‘financial crisis’, and Obama’s solution, establishes more clearly how the left is bringing about through soft power what the right has tried to bring about through hard power: the ultimate consolidation of global capital, at the expense of the public. It is also significant to note Žižek’s obiter dicta on the subject of progress in history. 3 See this volume, Chapter One, p. 20. Of course, this usage appears in the closing lines of Cistelecan’s essay, a location where one generally finds the most grandiose of rhetorical claims. (Indeed, I have already penned a zinger.) Moreover, I am convinced from broad reading of Žižek’s writings that his commitments are rather more aesthetic than emancipatory, Gnostic than activist. But I have neither the liberty (there is not enough time) nor the license (this is a volume on human rights, not on Žižek and his political ontology) to attempt to prove this here. However, Cistelecan attributes the emancipatory motive to both Žižek and Rancière, when he writes: ‘instead of attempting to fill in the gaps and reduce these tensions, they recognize them as the site of the possible emancipatory potential that the human rights project carries within itself’ (this volume, Chapter One, p. 18).

Re-evaluating the Alternatives


is arguably not benefic — which is the same thing as to say not efficient with respect to bringing about its end — then we are left simply with hypocrisy (this volume, Chapter One, p. 18). However, it is not altogether clear whether in the post-Althuserian framework hypocrisy is as such benefic, or whether benefic hypocrisy is to be contrasted with other types of hypocrisy, such as detrimental hypocrisy. Cistelecan seems at first to maintain the latter, with the important intrusion of the adverb ‘here’: It’s not that the abstract frame of human rights is not to be accused of hypocrisy, of attempting to conceal a particular privileged bearer of these rights (the Western male) under a presumed enunciated universality; it is rather that hypocrisy is, here, not only better than nothing, but even better than honesty. (This volume, Chapter One, p. 18–19, my emphasis)

But immediately after, he seems to maintain the former: As the very split between a hidden intention and an open statement, between a particular referent and a universal subject of the enunciated, hypocrisy is not the last bastion of Western patriarchal values, but the first opening of the political universality. Hypocrisy thus falls victim to its own cunning intention: its very split is the proof of the Kantian power of the ‘publicity’ requirement, its very resistance to universality testifies that universality is already instituted. The technical name of this benefic hypocrisy is, of course, ‘symbolic efficiency’.4

See this volume, Chapter One, p. 19. With the emancipatory capacity contained within the universality as such, it would seem as though the gap that is the constituent element of hypocrisy, or hypocrisy as such, is benefic, or potentially efficient to emancipation. This is not to accuse the post-Althusserians of circular reasoning, that would be jejune. We are too immersed here in the post-Hegelian condition to give any mind to analytic, positivist preoccupations. Quite the contrary: the tautological structure is key — the Schellingesque exhortation to ‘become what you are’ seems to me to have been adopted/adapted by Rancière to ‘become what you are (not)’. 4

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Let’s assume with less cynicism that Cistelecan and the post-Althusserians actually hold the latter, that hypocrisy is not as such better than honesty, but may be when it more efficiently leads to an emancipatory end.5 Then we see a shallow similarity (a deeper will follow) between Rorty’s pragmatic approach to human rights, where truth is bracketed for the sake of effect, and the post-Althusserian one. This is neither an interesting nor an important point, at least not within the present context. It carries the potential to become one, however, when transplanted into the horizon of epistemic considerations, such as Cistelecan’s exposé of the first defect of the postcolonial alternative, its regression to sense-certainty. More on that later. What I wanted to draw attention to, rather, was that irrespective of different interpretative techniques, the basic hypothesis of symbolic efficiency is fraught with practical deficiencies that make it not exactly false, but far worse, unfalsifiable. This other half of the story is inadequate to the first half of the story — it is what we might call a Hollywood ending.

5 This passage from Žižek (1994: 8) is revealing: ‘. . . the starting point of the critique of ideology has to be full acknowledgement of the fact that it is easily possible to lie in the guise of truth. When, for example, some Western power intervenes in a Third World country on account of violations of human rights, it may well be “true” that in this country the most elementary human rights were not respected, and that the Western intervention will effectively improve the human rights record, yet such a legitimization none the less remains “ideological” in so far as it fails to mention the true motives of the intervention (economic interests, etc.). The outstanding mode of this “lying in the guise of truth” today is cynicism: with a disarming frankness one “admits everything”, yet this full acknowledgement of our power interests does not in any way prevent us from pursuing these interests — the formula of cynicism is no longer the classic Marxian “they do not know it, but they are doing it”; it is “they know very well what they are doing, yet they are doing it”.’

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II From the very beginning, we have passed over the most significant hints and the most suggestive leads in silence. Look again at Žižek’s first account of the other ‘half’ of ‘the story’: This gap can be read in the standard ‘symptomatic’ way. . . . But it can also be read in the more subversive sense of a tension in which the ‘appearance’ of égaliberté is not a ‘mere appearance’ but contains an efficacy of its own, which allows it to set in motion the rearticulation of actual socio-economic relations by way of their progressive ‘politicization’. Why shouldn’t women also be allowed to vote? Why shouldn’t workplace conditions be a matter of public concern as well? (This volume, Chapter Seven, p. 166, my emphases)

What I called a Hollywood ending, Žižek calls ‘more subversive’. Why does he call it more subversive? It is more subversive because it is less radical. Rather than to change things, it seeks to reinterpret them. Having abandoned Marx’s pivotal conception of the proletariat as concrete universal — as the class that suffers not a particular injustice, but injustice as such — and opting instead for a symbolics that ‘are not just abstract’, but ‘devoid of content, standing only as the pure enjoinder to universality’, subversive is about as radical as we can hope to get anymore.6 6 ‘A class with radical chains, a class of civil society which is not a class of civil society, an estate which is the dissolution of all estates, a sphere which has a universal character by its universal suffering and claims no particular right because no particular wrong, but wrong generally, is perpetuated against it . . .’ (Marx 1994: 68–69). For the quote from Žižek, see this volume, Chapter Seven, p. 166. For the last part of my sentence, see Žižek (1994: 1), ‘Up to a decade or two ago . . . everybody was busy imagining different forms of the social organization of production and commerce (Fascism or Communism as alternatives to liberal capitalism); today, as Fredric Jameson perspicaciously remarked, nobody seriously considers possible alternatives to capitalism any longer’.

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And to understand why, we only need to look towards the end of the same sentence, at the deeply ambiguous use of the word ‘progressive’. At first reading, it seems that ‘progressive’ simply means ‘more and more’. This is problematic, though, given that politicization is symmetrical to subjectivization, and both rely on the very glaringness of the gap to be ‘set in motion’.7 Emancipatory progress is normally understood as the narrowing of the gap between the ‘actual socio-economic’ conditions and the rights-ideal. And this is precisely Žižek’s point in the next sentences on feminism and labour protection. But progressive politicization, as ‘more and more’, would mean an ever-more glaring gap — and thus, ironically, an ever-more potentially efficient symbol. This is a mess, conceptually. More likely, then, ‘progressive’ gains its real sense from the success stories recounted just afterwards: in the ostensibly universal march of progress visible in the advances of feminism and trade unions.8 It is precisely this background narrative of progress (or exemplarity) that constitutes the spine and binding for the two halves of Žižek’s story. The first half: universal human rights are effectively the right of white, male property owners to exchange freely on the market, exploit workers and women, and exert political domination. This identification of the particular content that hegemonizes the universal form is, however, only half the story. (This volume, Chapter Seven, p. 164, my emphasis) 7 As Žižek writes in this volume, Chapter Seven, p.167: ‘Far from being pre-political, “universal human rights” designate the precise space of politicization proper; what they amount to is the right to universality as such—the right of a political agent to assert its radical non-coincidence with itself (in its particular identity), to posit itself as the “supernumerary”, the one with no proper place in the social edifice; and thus as an agent of universality of the social itself.’ 8 And if the progress is not universal(ist), then what is it, a particularist success, without exemplarity? It cannot be, since it is used to exemplify the potency of symbolic efficiency in relation to a problem of global dimensions, within the hegemonic-West-versusexploited-global-South complex. Either the particular Western experience is exemplary, and the others should follow it, or else it is simply universal, and the others shall follow it.

Re-evaluating the Alternatives


And the second half: As the very split between a hidden intention and an open statement, between a particular referent and a universal subject of the enunciated, hypocrisy is not the last bastion of Western patriarchal values, but the first opening of the political universality. Hypocrisy thus falls victim to its own cunning intention: its very split is the proof of the Kantian power of the ‘publicity’ requirement, its very resistance to universality testifies that universality is already instituted. The technical name of this benefic hypocrisy is, of course, ‘symbolic efficiency’. (This volume, Chapter Seven, p. 166, my emphasis)

This background narrative of progress — which for Hegel was nothing other than the identity of the history of philosophy and the philosophy of history — constitutes the post-Althusserian’s tacit and implicit onto-epistemological horizon within which all particular struggles, ideals and aspirations are willy-nilly reflected and subsumed, but, moreover, it is a narrative that at the level of the explicit is not just rejected; rather, far more contemptuously, it is altogether ignored. For example, when speaking of ideology in the 20th century, Žižek writes: This excess of power brings us to the ultimate argument against ‘big’ political interventions which aim at global transformation: the terrifying experiences of the 20th century, a series of catastrophes which precipitated disastrous violence on an unprecedented scale. There are three main theorizations of these catastrophes. First, the view epitomized by the name of Habermas: Enlightenment is in itself a positive, emancipatory process with no inherent ‘totalitarian’ potential; the catastrophes that have occurred merely indicate that it remains an unfinished project, and our task should be to bring this project to completion. Second, the view associated with Adorno and Horkheimer’s Dialectic of Enlightenment and, today, with Agamben. The ‘totalitarian’ bent of Enlightenment is inherent and definitive, the ‘administered world’ is its true consequence, and concentration camps and genocides are a kind of negative-teleological endpoint of the entire history of the West. Third, the view developed in the works of Etienne Balibar, among others: modernity opens up a field of new freedoms, but at the same time of new dangers, and there is

196 Aakash Singh Rathore no ultimate teleological guarantee of the outcome. The contest remains open and undecided. (This volume, Chapter Seven, p. 159, my emphasis)

The ‘three main theorizations’ sketched by Žižek simply ignore the Fukuyamian alternative. Why? Arguably because all three of the ones sketched, and I assume the third most closely presents his own, in some way or another either recapitulate it or else rely upon it. Unfortunately, it would take us too far afield to systematically support the audacity of this suggestion. For the time being, we can provide indicators. But even then, we must immediately drop the second main theorization from this discussion, insofar as it would be the most cumbersome to discuss and at the same time the least relevant to the current topic. However, by way of indication, it merits simple mention that the Adornian theorization, like the absent Fukuyamian one it would seem to invert, performs both its own key gestures: first, it centres the Europeanness of the Enlightenment and the enlightenment of Europeans; and second, it attracts all global phenomena, and of course all the concomitant dust, in and through the lift generated by its dialectical progression. Furthermore, though perverse to say so, the European progressive history only gains in strength and totality by the ‘horrors’ of the 20th century: the European is universalizible precisely because of his ability to represent the most possibly base, sinister and evil (the European Shoah) just as well as the most perfectly just (the aspiration to prevent a Shoah through fundamental human dignity and rights). This is the cunning of this history: the disqualification turns out to be the qualification. Turning to the ‘view epitomized by Habermas’, it is illustrative to see how Habermas himself describes it. Recently (in an interview from 2009), Habermas speaks of colonization in terms of an interruption of the ‘linear development’ of egalitarian universalism which constitutes the basis of the ‘normative self-understanding’ of European peoples. But also pay particular notice to the last sentence: egalitarian universalism becomes more pointed in law and morality; and there is a progressive individualization. In any

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case, we still draw our normative self-understanding from this. Of course, we should not view this as a linear development, despite certain evolutionary thresholds. The postcolonial encounter with other cultures in the 20th century brought to our attention the wounds of colonization and the devastating consequences of decolonization, and thus also the shocking dialectic of higher-level reflexivity. Today we find ourselves in the transition to a multicultural world society and are wrestling with its future political constitution. The outcome is entirely open-ended. (Habermas 2010)

There is scant difference between Habermas’s position and that which Žižek had attributed to Balibar — and indeed, even the words Habermas uses (‘The outcome is entirely open-ended’) and the words Žižek uses to describe Balibar’s position (‘The contest remains open and undecided’) are the same. The reason? Because the first main theorization and the third main theorization share fundamental similarities: both share the same basic onto-epistemic horizon as the Fukuyamian position that they seemingly reject or rebuff. In short, they are both just the ‘end of history’ story sans denouement. The open-endedness does nothing to disturb, again, the two fundamental gestures pre-programmed into all of these discourses: (1) centring Europe, and (2) regulating progress. To be sure, it should be somewhat visible now that these are the folio upon which the two halves of Žižek’s ‘story’ are inscribed: the first half of the story centres Europe (starkly, ‘the right of white, male property owners’), while the second half of the story narrates progress (‘hypocrisy is not the last bastion of Western patriarchal values, but the first opening of the political universality’). Thus do we find it less important to throw up challenges to the idea of symbolic efficiency and, rather, more imperative to throw out the entire story within which it finds itself contextualized. As long as we maintain the abstract universality of the rights paradigm as the weapon with which to fight towards its progressive fulfilment, the background onto-epistemic horizon within which all this plays out will serve to restrict the cycle of symbolic efficiency forever to an immanent gain.

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III Ratna Kapur’s chapter concerns itself with interrogating the assumption that human rights are universal, challenging its dehistoricized, neutral and inclusive claims. In the third part, I examine the atomized, insular liberal subject on which the human rights project is based and its correlating assumptions about the ‘Other’, who needs to be cabined or contained lest she destabilizes or undermines this subject. (This volume, Chapter Two, p. 25)

These are the areas which Cistelecan targets, insightfully disclosing their weaknesses and offering the post-Althusserian alternative instead. However, these areas present only twothirds of Kapur’s project. To cite her again: In this essay, I unpack three normative claims on which the human rights project is based and expose its dark side. In the first section, I set out the larger context within which human rights has taken shape, especially the claim that human rights is part of modernity’s narrative of progress — that is, human rights represents a step forward in the progress of human development and civilizational maturity.

Strangely, Cistelecan was completely silent on this tertium quid, this third thing which Kapur treats in her first section, as are the other post-Althusserians generally. I am uneasy with this silence not only because it risks locking one unwittingly into a horizon where globally variegated events, chronicles, struggles all mould into a programatic (universal, European) History wherein the master narrative is one of progress (albeit fitful) and whose hero turns out to be the selfsame particular who had already appeared on the scene as the universal(izable) of human rights. Symbolic efficiency within this horizon offers us nothing more than to be that white male propery owner. Or rather, what more it offers us is to be it without being white and male. And here, then, we find the deep concordance between the position of Rorty and that of the post-Althusserians. On the one hand, like Rorty, a universal bourgeoisie — ‘nice, tolerant, well-off’ — would be quite sufficient to address the defecits in the human rights

Re-evaluating the Alternatives


regime; and on the other hand, what at first site appeared a question of attitude turns out to be a question of economy.9 Only in this case, one might glean that it is more cynical. For, the seemingly critical component of subversion now turns out to rely on the far more central substructure of essential submission. The tendency towards submission arises from what Žižek had refered to in the passage cited earlier as ‘the ultimate argument against “big” political interventions which aim at global transformation: the terrifying experiences of the 20th century, a series of catastrophes which precipitated disastrous violence on an unprecedented scale’ (this volume, Chapter Seven, p. 159). This is tantamount to the corollary judgement of Žižek in another place, ‘as Fredric Jameson perspicaciously remarked, nobody seriously considers possible alternatives to capitalism any longer’.10 The ‘big’, revolution, was therefore more feasibly supplanted by the small, subversion — but it remains to be seen whether the small is not in fact symbiotic towards the very vibrancy and success of that leviathan it claims to subvert; in other words, the second half of the story which is envisioned as the means by which to subvert the first half, in Žižek’s terminology, basically submits all to the undergirding hegemonic Eurocentric conception of history, modernity, progress. This, again, is why the postcolonial alternative rejects the story simpliciter, and not this or that half of it.

IV Those who have been written out from the story, have also not necessarily been ushered through the epistemic-existential hemorrhages that it has plotted, the history of philosophy as philosophy of history, the trajectory of what has — in one elemental moment — been banally labeled the ‘linguistic turn’, from Aristotle to Kant to Heidegger to Lacan, which within Rorty, this volume, Chapter Five, p. 123. I refer to the self-same critique of Cistelecan against Rorty. See Chapter One, pp. 10–12 of this volume. 10 See Note 6. 9


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the purview of the post-Althusserians hubristically applies universally to mankind.11 Or perhaps not hubristically, but utterly benignly, as evident from the casual approach of Douzinas (2002): If we accept the psychoanalytic insight that people have no essential identities outside of those constructed in symbolic discourses and practices,12 a key aim of politics and of law is to fix meanings and to close identities by making the contingent, historical links between signifiers and signifieds permanent and necessary.

That psychoanalytic insight — ‘if we accept’ it — canvasses humanity universally and homogenously. Every human person (who matters) is presumed to have passed through the Lacanian mirror-stage, and its univocal ego-generative effects are not delimited culturally, any more than capital is, to those who have and will be constituted by and exposed to the background narrative of history, modernity, progress, with all its attendant values, virtues, taboos, fetishes. That Žižek (2007) casts his net too far becomes abundantly clear in essays such as ‘Do We Still Live in a World?’; this is a question that makes perfect sense as long as the ‘we’ is understood to capture only that population of the planet who have been constituted by or identify with its history — to use an oldfashioned word, the global bourgeoisie (within which we are now fortunate enough to be able to include feminists, trade unionists . . . and Post-Althusserians). But this post-Althusserian subversion towards emancipation qua Eurocentrism brings them dangerously close to the positions of Rorty and Ignatieff. As Rorty argued, In his book devoted to aspects of this subject, Postmetaphysical Thinking (1994: 6), Habermas enumerates ‘four themes’ or ‘four movements of thought’ which characterize the break with the tradition of enlightenment modernity/metaphysics: ‘postmetaphysical thinking, the linguistic turn, situating reason, and reversing the primacy of theory over practice — or the overcoming of logocentrism’. 12 [Original note of the author in the cited text.] The seminal text is Lacan (2001: 1). This text is indeed seminal, insofar as even Althusser’s own thought was shaped by it. 11

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We see our task as a matter of making our own culture — the human rights culture — more self-conscious and more powerful, rather than of demonstrating its superiority to other cultures by an appeal to something transcultural. (This volume, Chapter Five, p. 112)

Rorty touches here on an issue of great relevance to Žižek: on what basis does he esteem Europe as worthy of salvaging, rescuing from decline? Why fight the scourge of Buddhism, as he demands in so many places, and resuscitate Christianity and — symmetrically with his position on human rights — preserve the endangered universal it offers?13 The answer is clear, and the upshot is that the emancipatory drive of the post-Althusserians is not merely Eurocentric, but, at See, for example, Žižek’s ‘Self-Deceptions: On Being Tolerant and Smug’ (2001), where he brilliantly uncovers how Western or pop-Buddhism can function as the perfect ideological supplement to capitalism, providing inner tranquility in the midst of outer exploitation. The problem, of course, is that the perfect supplement to contemporary global capitalism is not Western Buddhism, but Žižek’s own gnostic pop cultural analysis, which supplements capitalism with a wry, witty, immanent critique allowing the participants to throw hands and laugh off the mundane — as oppossed to divine — comedy, about which nothing can be done (except subvert/submit). The arbitrary Eurocentrism is preeminently visible in Žižek’s equation of European or pop-Buddhism with the plurality of authentic lived Buddhist traditions. As he so crudely writes: ‘One should add that it is no longer possible to oppose this Western Buddhism to its “authentic” Oriental version; the case of Japan delivers here the conclusive evidence’ (ibid.). Also see, for example, Žižek’s The Fragile Absolute, or Why the Christian Legacy is Worth Fighting For (2000). The answer to why, however, turns out again to be a sort of contentless universal, ‘the right to universality as such’, or in other words Platonic form (eidos). The problem, then, is the same as Parmenides had indicated with that of the eidos, the so-called ‘third man’ argument: some third thing is required to be imported from somewhere in order to make sense of the forms. Ultimately, what the postcolonialists show, is that the mysterious third thing is nothing other than what post-Hegelians (and post-Althusserians) would call pre-dialectical sense-certainty. 13


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ground, just as with the liberal position, Eurocentrism is emancipation. This, again, is Žižek’s story in its two sides: the first, Eurocentrism; the second, emancipation (= subversion = submission).14 The wider world is locked into Europe’s self-projection — its history of philosophy and philosophy of history, its history, its modernity, the history of its modernity — just as its real persons howsoever far flung and absent from the centre are locked into a structure of consciousness (namely, false-consciousness, or more precisely, consciousness of false-consciousness) whose archetype is a product and agent of its specific history. Though the post-Althusserians are too brilliant and profound to condescend to bestow attention upon the Fukuyamian orientation of the Hegelian philosophy of history, their fundamental reliance upon Hegel’s Phenomenology of Spirit effects the same manoeuvre, though leftist, of Fukuyamian or neo-con rightism (or, neoliberal centrism) — they are all episodes written into the same master narrative, the same story. Now, the post-Althusserian reduction of all possible epistemological and ontological plurality to the post-Heideggerianpost-Lacanian (deracinated) white (ungendered) male (who has experienced the mirror-stage) necessitates not only the cynicism of submission but also the highly reflexive and sophisticated mistrust of the sensuous. Kant’s Copernican revolution which morphs after Hegel into Heidegger’s projection of Dasein has degenerated in Žižek (both cause and result of his obsessive interest with cinema, adverts and pop culture) into hardly more than ‘garbage in–garbage out’. But we may maintain that the horizon of the validity of this assumed structure and operation of consciousness stretches out no farther than the reach of the ads, films and glossy magazines that serve as illustrations of its objectivity. The debate between Protestants and Buddhists on contemplation versus meditation thus takes a new avatar as the parallel between the (Western) Buddhism that Žižek condemns (meditative) and his own gnostic or noetic comprehension of the whole (contemplation) — both permit global capital to be entrenched objectively while the subject experiences tranquility or bliss. See Abe and Ives (1995). 14

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The narrowness of the population captured within this horizon is apparent from Rancière’s prima facie poignant imagery (taken from Althusser) of the policeman calling out ‘hey, you, down there!’, meant to convey almost intuitively how the citizen is constituted by the authority.15 But, on the other hand, the postcolonial world is all too familiar with the situation wherein persons do not identify (with) a state or even the components of the state; where, that is, one can just as readily imagine the person called out to replying with prosaic (naïve) simplicity: ‘Yes?’ That Rancière’s thought is anchored in the (presumably universal[izible]) population sample of the (European) centre and all those who participate in or are constituted by its projection (cognitively, historically) is clear from the feeble metonym of ‘hey, you, down there!’ But that is predictable, to be expected. What is more troubling is the manner in which he allows reason to take such flight, pushing off from its already tenuous footing on this particular sample (the mirror-staged, if you will), aloft into such a preciously assembled realm of forms, that the so-called empirical to which it subsequently returns for concretion appears but as bodies distorted in a house of fun-mirrors. It is not, coincidentally, entirely dissimilar to the tenacious elitism built into liberal political theory, such as, for example, when scholars debating Rawls and Habermas speak of the public use of reason, reasoning about constitutional essentials, without noticing that the public never does so reason, never has any recourse or opportunity to reason on constitutional essentials in representative democracies — perhaps judges of constitutional courts do, but these are of course the antidemocratic component of democracies.16 Hear Rancière:

Cistelecan discusses this in his introductory chapter to this volume. The illustration is that of Rancière in his explanation of Louis Althusser’s notion of interpellation from Ideology and Ideological State Apparatuses (1971). 16 The idea takes off with John Rawls’ Political Liberalism (1993), and has proliferated in elite American political philosophy. For a vomitorium on public reason, see Finnis (2006). 15

204 Aakash Singh Rathore Democracy is the power of those who have no specific qualification for ruling, except the fact of having no qualification. As I interpret it, the demos — the political subject as such — has to be identified with the totality made by those who have no ‘qualification’. I called it the count of the uncounted — or the part of those who have no part. It does not mean the population of the poor; it means a supplementary part, an empty part that separates the political community from the count of the parts of the population. (This volume, Chapter Eight, p. 177)

What rot. Democracies are representative democracies and the representatives are (s)elected on certain qualifications, among which are their powers of oratory, memory and/or other appeals such as wealth, family, etc. Unfortunately, Rancière links his account of political subjectivization to this absurd, bookish notion of democracy, and thus one of the central features of the post-Althusserian strength which Cistelecan indicates is undermined by the deep empirical anomoly in Rancière.17

V What is the upshot of all this? Just the truism that selfcertainty is naïve only within the context of a story of progressive moments that sublate it. Outside of that story, beyond and otherwise to its widely cast and universalized plot, pain and sensuousness are not necessarily abstractions open to infinite interpretative play. Thus the first defect which Cistelecan had found within the postcolonial position can only be consistently maintained as defective provided that the

As Rancière continues: ‘Agamben’ s argument is in line with the classical opposition between the illusion of sovereignty and its real content. As a result, he misses the logic of political subjectivization. Political subjects are surplus subjects. They inscribe the count of the uncounted as a supplement. Politics does not separate a specific sphere of political life from the other spheres’ (this volume, Chapter Eight, p. 177). 17

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first topic which Ratna Kapur had addressed in her chapter (viz., European modernity’s narrative of progress) remained uncommented, passed over in silence. We must, ultimately, re-evaluate the alternatives by revaluating the story through which we first heard them. Progress is pegged to an axiological metric. Its ‘universal’ march has been the Cherokee’s ‘trail of tears’.

References Abe, Masao and Christopher Ives. 1995. Divine Emptiness and Historical Fullness: A Buddhist-Jewish-Christian Conversation with Masao Abe, Trinity Press International, Philadephia, Pennsylvania. Althusser, Louis. 1971. ‘Ideology and Ideological State Apparatuses: (Notes Towards an Investigation)’, in Lenin and Philosophy and Other Essays, translated by Ben Brewster, Monthly Review Press, New York, 127–86. Douzinas, Costas. 2002. ‘The End(s) of Human Rights’, Melbourne University Law Review, 26(2): 445–65. Finnis, John M. 2006. On ‘Public Reason’ (April). Notre Dame Legal Studies Paper No. 06-37; Oxford Legal Studies Research Paper No. 1/2007. Available at SSRN: http://ssrn.com/ abstract=955815, accessed August 1, 2010. Habermas, J. 1994. Postmetaphysical Thinking, Cambridge, MA: MIT Press. ———. 2010. ‘A Postsecular World Society? On the Philosophical Significance of Postsecular Consciousness and the Multicultural World Society’. An Interview with Jürgen Habermas by Eduardo Mendieta. Source: http://blogs.ssrc.org/tif/wp-content/ uploads/2010/02/A-Postsecular-World-Society-TIF.pdf, accessed on August 1, 2010. Kojève, Alexandre. 1980. ‘Capitalisme et socialisme: Marx est Dieu; Ford est son prophète’, Commentaire 9, Spring: 135–37. Lacan, Jaques. 2001. ‘The Mirror Stage as Formative of the Function of the I as Revealed in Psychoanalytic Experience’ in Jaques Lacan, Écrits: A Selection, translated by Bruce Fink, W. W. Norton & Co., New York, 2002, or translated by Alan Sheridan, Routledge, New York, 1990. Marx, Karl. 1994. ‘A Contribution to the Critique of Hegel’s Philosophy of Right’, in Joseph O’Malley (ed.), Marx: Early Political Writings, Cambridge University Press, Cambridge.


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Rawls, John. 1993. Political Liberalism, Columbia University Press, New York. Singh, Aakash. 2005. Eros Turannos: Leo Strauss and Alexandre Kojève Debate on Tyranny, University Press of America, Lanham, Maryland. Žižek, Slavoj. 1994. Mapping Ideology, Verso, London. ———. 2000. The Fragile Absolute, or Why the Christian Legacy is Worth Fighting For, Verso, New York. ———. 2001. ‘Self-Deceptions: On Being Tolerant and Smug’ from the Israeli Die Gazette (August 27). ———. 2007. ‘Do We Still Live in a World?’ http://www.lacan.com/ zizrattlesnakeshake.html, accessed August 1, 2010.

About the Editors Aakash Singh Rathore is Research Professor at the Center for Ethics & Global Politics, Luiss University, Rome. His scholarly interests range from comparative political philosophy to liberation theology. He is author/editor of several books, including a French edition/translation of Maulana Azad’s India Wins Freedom (2006); Reading Hegel: The Introductions (2008, co-edited) and Indian Political Thought (2010, co-edited). His B. R. Ambedkar’s The Buddha and His Dhamma: A Critical Edition is forthcoming. Alex Cistelecan is a doctoral researcher at the Center for Ethics & Global Politics, Luiss University, Rome. Foundermember of Protokoll, an avant-guard activist political association in eastern Europe, he is also on the editorial board of the Romanian monthly cultural journal Vatra. His research interests include neo-Marxism, Lacanian psychoanalytic studies, and critical theory. He has been Associate Fellow at the Faculty of Literature at Transylvania University, Brasov. He is currently completing a doctoral dissertation on a Lacanian theory of bureaucracy.

Notes on Contributors Upendra Baxi is professor of law at the University of Warwick. He has been vice-chancellor of the University of Delhi and of South Gujarat University, research director of the Indian Law Institute, president of the Indian Society of International Law, and founder-member of the International Commission on Folk Law and Legal Pluralism. He has published extensively. Among his more recent works are Human Rights in a Posthuman World: Critical Essays (2007), and The Future of Human Rights (2002). Wendy Brown is professor of political science at the University of California, Berkeley. Her books include States of Injury: Power and Freedom in Late Modernity (1995), Politics Out of History (2001), Left Legalism/Left Critique (2002, co-edited with Janet Halley), Edgework: Critical Essays in Knowledge and Politics (2005), Regulating Aversion: Tolerance in the Age of Identity and Empire (2006). Ratna Kapur is director, Centre for Feminist Legal Research, New Delhi, and also teaches at the Geneva School of Diplomacy and International Relations. A practising lawyer in India, she has also served as a visiting scholar at Cambridge and Harvard Universities, among others. She is author of The Fear Factor: The Politics of Migration and the Power of Law (2010), Erotic Justice: Law and the New Politics of Postcolonialism (2005), co-author of Subversive Sites: Feminist Engagements with Law (1996), Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law (2001), and editor of Feminist Terrains in Legal Domains: Interdisciplinary Essays on Women and Law (1996). Jacques Rancière is emeritus professor of philosophy at the University of Paris VIII (St. Denis). Among his works are: The Ignorant Schoolmaster: Five Lessons in Intellectual

210 Wronging Rights?

Emancipation (1987), On the Shores of the Political (1990), Disagreement: Politics and Philosophy (1997), The Politics of Aesthetics: The Distribution of the Sensible (2000), Hatred of Democracy (2005), and The Emancipated Spectator (2008). Richard Rorty (1931–2007) was Stuart Professor of Philosophy at Princeton, Kenan Professor of Humanities at the University of Virginia, and Professor of Comparative Literature at Stanford University. Among his most famous works are: Philosophy and the Mirror of Nature (1979); Contingency, Irony and Solidarity (1989); Achieving Our Country: Leftist Thought in Twentieth Century America (1998); Philosophy and Social Hope (2000); and, with Gianni Vattimo, The Future of Religion (2005). Gayatri Chakravorty Spivak is university professor and the director of the Institute for Comparative Literature and Society at Columbia University. Her books include In Other Worlds: Essays in Cultural Politics (1987), Selected Subaltern Studies (ed., 1988), The Post-Colonial Critic: Interviews, Strategies, Dialogues (1990), Thinking Academic Freedom in Gendered Post-Coloniality (1993). Her translator’s introduction to Derrida’s Of Grammatology has been described as ‘setting a new standard for self-reflexivity’. Slavoj Žižek is a senior researcher at the Institute of Sociology, University of Ljubljana, Slovenia, and international director of the Birkbeck Institute for the Humanities, University of London, and professor at the European Graduate School. His books include The Sublime Object of Ideology (1989), Tarrying With the Negative (1993), The Indivisible Remainder: Essays on Schelling and Related Matters (1996), The Ticklish Subject (1999), Contingency, Hegemony and Universality: Contemporary Dialogues on the Left (2000, with Judith Butler and Ernesto Laclau), The Parallax View (2006), In Defense of Lost Causes (2008), First As Tragedy, Then As Farce (2009).

Index 211

Index abortion, issue of, 122, 154 absolute evil, 70, 71, 180, 182 abstract rights, 3–4, 6–7, 169 Abu Ghraib prison, 33, 46 Afghanistan: bombing campaign on, 31, 32; human rights violation in, 32–33, 143; liberation of, 144; plight of women and children in, 32, 44; postwar chaos in, 144; voting rights, 33 Agamben, Giorgio, 16, 159, 164, 177, 182, 195, 204; Holocaust, 172; modern democracy, views on, 171; notion of homo sacer, 162, 170, 176; radical heterogeneity, 181; radical suspension of politics, 173; sexual liberation, issue of, 171; theorization of biopolitics, 170 Age of Enlightenment, 61 Aliens Act (2002), 38, 39 America: education system, 86; human rights culture, 63, 124; imperialism in, 143; rate of moral progress in, 117; rights against culture or state, 142; seclusion in, 152; war on Iraq, 144 Amnesty International, 71, 89, 180 anti-migration laws, 44 anti-terrorism laws, 44, 52 anti-trafficking, 52; initiatives, 42 Arendt, Hannah, 16, 160, 162, 169–71, 173–75, 178

Armenia, genocide in, 150 asylum seekers, 44, 53 Austrian Freedom Party, 29 bad people, beliefs of, 123 Baier, Annette, 115, 124–25, 129–30 Baxi, Upendra, 4, 6, 8, 10, 61 Beijing Women’s Conference, 30 Beyond Left and Right (Giddens), 87, 89 biopolitics, Agamben notion of, 164 Black Muslims, 107, 108 Blair, Tony, 46–48, 89 bombing campaign, on Afghanistan, 31, 32 Bosniak, Linda, 37 British National Party, 29 Brown, Wendy, 5, 11, 23, 48, 71, 132, 161 Burke, Edmund, 3, 169 Bush, George, 32, 46, 89 Bush, Laura, 32 CEDAW, ratification of, 73 Chakraborty, Dipesh, 33 children, rights of, 23, 62 child welfare, 26 Christian doctrine, of brotherhood of man, 121 Christian Right, 30 Citizen by the National Assembly of France, 80 citizenship: moral obligation, 37; universal, 37

212 Wronging Rights? civilizational maturity, 24, 198 civil rights, 84; importance of, 139 coercive government schemes and projects, 139 collective rights, 139–40 colonialism: and slavery, 34; and subjugation of human rights, 28, 80 commodity fetishism, 151, 164 crimes against humanity, 170, 180–81 cross-border movements, 52, 53 ‘crusade’ against ‘evil ones’, 32 cultural: relativism, 85–87, 111– 12; superiority, 150; survival, 24 da Silva, Denise, 34 Danish family reunification law. See Aliens Act (2002) Danish People’s Party, 29 Declaration of Rights, 175, 176 Declaration of the Rights of Man, 80, 88, 97 defensible core of rights, 140 dehumanization, concept of, 64, 107 democracy, 177, 179, 204; ‘abstract’ rights, 169; biopolitical conceptualization of, 164, 171, 173; crimes against humanity, 180; ethnic cleansing and extermination, 172; exploitation and class domination, 166, 189; global market of liberal economy, 168; human rights, 19, 33, 96, 111, 141, 154; and ideological notion of ‘free choice’, 152; liberalcapitalist, 151; market economy, 52; Marxist notion

of, 165; opposition of, 180; parliamentary, 96, 100; principles of, 44; religious freedom, 32; Rights of Man and, 171; rituals, 101; social, 89; socialist and liberal aspirations for, 141; as threat to nation-state, 43; war and, 154 Denmark: Aliens Act (2002), 38, 39; rules governing family reunification, 38–39 Derrida, Jacques, 9, 28, 70–72, 76, 127, 129 Difference Principle (Rawls), 112 Douzinas, Costas, 13, 28, 48, 200 dual/multiple nationalities, concept of, 37 East India Company, 52 The End of Human Rights (Douzinas), 13 Enlightenment project, 34, 82, 117, 126 ethnic cleansing, 107, 171; and extermination, 172 ethnic conflicts, 168 European Enlightenment, 80, 88, 122 European Human Rights: Convention, 40; Council of, 39 Euro-U.S. capitalism, in globalization, 92 family law, 26 family reunification, legal right of, 38 female sexuality, and legitimacy in Islam, 154 feminization of human rights, 76 Ford, Richard T., 9

Index 213 free choice, material force of, 152 freedom of religion, 47, 54 French Revolution, 3, 85, 117, 169, 175 From Third World to First: The Singapore Story: 1965–2000 (Lee), 82 gay rights, 122 gender apartheid, 34, 75 gender equality, 53–54, 67– 68, 75 Genetic Revolution and Human Rights (Oxford Amnesty series), 95 genocide, 26, 64, 70, 124, 150, 159, 195 Giddens, Anthony, 87, 89, 90, 93 global capitalism, 151, 201 global citizenship, model of, 37 ‘Global Project’ of universal human rights, 62 Gujarat riots, 46 Haditha massacre, 33 The Headmaster and the Headscarves (documentary), 54 health reform programme, 152 Hegel’s Philosophy of Right, 3–4 Helsinki Declaration, 111, 116 Hindu Right, 46, 47 Hindutva movement, 46–47 Holocaust analysis, 111, 117, 122, 171, 172, 181 homo sacer, 176; Agamben’s notion of, 162 human: bombs, 47; cruelty, 32; development, 24, 27, 198 humanitarian: interference, 163, 168, 181; purity, 161–64

human rights: activism, 132; Balkans, 108, 149–50; moral–political project, 134; presentation of antipolitics, 134; refusing of political mantle, 134; antifoundational approaches to, 10; command over universal assent, 135; commissions, 73; concept of, 3–7; contemporary appeals to, 149; critiques of, 61– 64, 73, 187; culture, 110; dark side of, 26–28, 36, 47, 48–55; establishment of, 27; feminization of, 76; foundationalism, 111, 115, 118, 124; Ignatieff views on, 136; as instrument of social control, 27; international recognition of, 28; language of individual empowerment, 136; limitations and possibilities of, 36; politics, 68–73; re-evaluation of, 8; right of rightless, 168; scholarship and education, 50; universal commitments implied by, 135; universal pre-political, 162 Human Rights and Equal Opportunity Commission, Australia, 25, 26 Human Rights in a Posthuman World (Baxi), 6 human rights law, proliferation of, 23 Human Rights Naturalized, 110 human rights project: discriminatory universality and, 34–36; opposition to, 30; struggle against, 75

214 Wronging Rights? human rights violations, 25, 73; in Iran, 34; in Iraq, 33; in Serbia, 107; in Syria, 34 identity, politics of, 65–68 Ignatieff, Michael, 10–12, 132– 42, 144, 161, 163, 164, 200 immigration, 40, 52 indigenous groups, rights of, 23 International Covenant on Civil and Political Rights, 65 International Norms and Domestic Change, 81 international recognition, of human rights, 28 interrogation, 26, 71, 107 Iran, human rights issues in, 34 Iraq: adoption of democratic constitution in, 34; Haditha massacre, 33; human rights violations in, 33, 34; weapons of mass destruction, 47 Islamic degeneracy, effect of, 150 Islamic fundamentalism, and opposition to liberal tolerant West, 153 jouissance, politics of, 153–55 juvenile justice, 26 Kapur, Ratna, 4–6, 23, 198, 205 Kelsenite ‘constitutive’ theory, of recognition of states, 65 Kennedy, David, 24, 29 Kurds persecution, 150 Kyi, Aung San Su, 72 labour flexibilization, meaning of, 153 liberal-capitalist democracy, 151

liberal-democratic capitalism, 162 liberal imperialism, 132, 144, 145 liberal individualism, 11, 137, 141 liberation: of Afghanistan, 144; of Iraq, 144 liberty, equality and freedom, principles of, 37 Linklater, Andrew, 37 Maistre, Joseph de, 3 Marx, Karl, 74, 88, 90, 102, 151, 156, 157, 164–65, 168, 189 Mayo, Katherine, 41 Menezes, Jean Charles de, 45 Merrill Lynch, 92 Middle East, 33; women trafficking, 43 Migrant Air, 52 migration, 43, 44 modernity: Agamben’s view of, 173; nomos of, 172, 173 morality, 3, 4, 6–7, 14, 24, 111– 12, 114–15, 118, 119, 130, 134, 138, 188, 196 moral obligation, 37, 111, 116, 118–19, 125, 130 moral realist vs moral antirealist, 114 moral valence, of human rights, 138 Morgan Stanley Dean Witter, 92 Mother India (Mayo), 41 multicultural tolerance, 150 Murray, Charles, 90 Muslim fundamentalism, 154 Muslim girls, and prohibition on wearing veil, 154 Muslim Women’s Protection of Rights Act, 66

Index 215 narcissistic hedonism, 155 national citizenship, 37 national security, 24 negative liberty, 135, 138 Nesiah, Vasuki, 29, 32 New Science (17th century), 116 Nietzsche, Friedrich, 117, 120, 129; Enlightenment project, 126; human nature, concept of, 110; human rights, idea of, 110; and Kantian moral philosophy, 126–27; and Platonism, 126; preference, concept of, 126; reply to Plato’s views, 110 non-governmental organizations (NGOs), 23 Noyce, Philip, 25 On the Jewish Question (Marx), 74 Our Voice (Bangkok NGO Declaration), 94 Oxford Amnesty Lectures (2001) series, 79 Paul II, Pope John, 30 peaceful humanity, 168 phallogocentrism, concept of, 127 planetary community, 121 Plato, 110, 112–15, 117, 119–20, 127, 130, 177 political rights, importance of, 139 postcolonialists, Cistelecan’s critique of, 188 post-Enlightenment European culture, 121 poverty: alleviation, 51; Christian virtues of, 87; colonialism and global economy, 139; level of, 90; Third World, 90; and universality of human rights, 63

The Power of Human Rights (Risse, Ropp, and Sikkink), 81 primordial: communities, 71; individualism, 132 Rabbit-Proof Fence (film), 25, 26 Rabossi, Eduardo, 110–12, 115, 118, 121, 124, 127, 130 racial: apartheid, 34; discrimination, 23, 75; and xenophobic movements, 168 Raman, K. Venkata, 49 Rancière, Jacques, 12, 15 Rashtriya Swayamsevak Sangh (RSS), 46 reflexive determination, 150 religious: fundamentalisms, 123, 168; minority, 54 Rieff, David, 107, 109 rights inflation, 140 rights of man, 8, 15, 16, 80, 85, 88, 91, 97, 165, 166, 168– 82. See also human rights rights of the other, 180–82 right to food, 140 right to humanitarian interference, 163, 181 right to shelter, 139 risk society, 151, 153 Risse, Thomas, 81–83 Ropp, Stephen, 81, 83 Rorty, Richard, 5, 10–12, 82, 84, 107, 188, 192, 198, 200, 201 Ruddock, Phillip, 45 Rumsfeld, Donald, 144 Rushdie, Salman, 31, 54, 123 Said, Edward, 82, 84 Savarkar, Vinayak Damodar, 46 Save the Children movements, 72

216 Wronging Rights? scheduled castes, 69 security, concept of, 123 self-determination, 26, 65, 75 Sen, Amartya, 139 sentimental education, 11, 118, 124, 125, 129 Serbia: crime against Muslim women in, 108; Muslim prisoners in, 107; violation of human rights in, 107–8 sex trafficking, 30 sexual: liberation, 171; morality, 24 Shah Bano case, 66–67 shari’a, 66, 67 Shelton, George, 80 ‘shoot-to-kill’ policy, 45 Sikkink, Kathryn, 81, 83 slavery, 34, 64 slave trade, 117 social justice initiatives, 23, 45 sovereignty, doctrine of, 41 Spivak, Gayatri Chakravorty, 4, 6–8, 79, 87, 190 state beyond oppression, concept of, 170 state socialism, 140 Stone, Julius, 26, 27 suicide bombings, in London, 47 supernaturalism, Santayana views on, 126 symbolic efficiency, 4, 19, 166, 188–92, 194–95, 197, 198 sympathy, foundationalists’ views on, 123 Syria, human rights issues in, 34

Ticklish Subject (Žižek), 17 Tilak, Lokmanya, 75 transcendental philosophy system, 111 transnational migrants, 5, 53 unfreedom, of choice, 151–53 UNICEF, 72 United Nations, 23; Declaration of Duties, 88; Declaration of Responsibilities, 88; Declaration on Human Rights, 45, 85 universal citizenship, 37 Universal Declaration of Human Rights (UDHR), 74, 97 universality of human rights, 10, 27, 34, 37, 62, 67, 68, 74, 102, 162, 187, 194; forms of, 164–67; idea of, 61 unlawful non-citizens, 37, 44 untouchables, 68, 69, 122 utopian totalitarianism, 168 violence against women, 30 Vocation of Man (Fichte), 116 wakfs, 66 war on terror, 26, 31, 32, 53 Who is A Hindu? (Savarkar), 46 Williams, Raymond, 101 women: human rights, 35; rights to equality, 23; violence against, 30 WTO, 74 Young, Iris Marion, 37

Taliban, 32, 72, 153 terrorist states, 34 Third World countries, 139, 163, 192

Žižek, Slavoj, 4, 10, 12–14, 17–19, 149, 151, 187–90, 192–97, 199–202