by Costas Douzinas / Critical Legal Thinking, 21 May 2013
We will explore the strong internal connection between these superficially antagonistic principles, at the point of their emergence in the late 18th century here and in the post-1989 order in the next part.
The religious grounding of humanity was undermined by the liberal political philosophies of early modernity. The foundation of humanity was transferred from God to (human) nature. Human nature has been interpreted as an empirical fact, a normative value, or both. Science has driven the first approach. The mark of humanity has been variously sought in language, reason or evolution. Man as species existence emerged as a result of legal and political innovations. The idea of humanity is the creation of humanism, with legal humanism at the forefront. Indeed the great 18th century revolutions and declarations paradigmatically manifest and helped construct modern universalism. And yet, at the heart of humanism, humanity remained a strategy of division and classification.
We can follow briefly this contradictory process, which both proclaims the universal and excludes the local in the text of the French Declaration of the Rights of Man and Citizen, the manifesto of modernity. Article 1, the progenitor of normative universalism, states that ‘men are born and remain free and equal of right’ a claim repeated in the inaugural article of the 1948 Universal Declaration of Human Rights. Equality and liberty are declared natural entitlements and independent of governments, epochal, and local factors. And yet the Declaration is categorically clear about the real source of universal rights. Article 2 states that ‘the aim of any political association is to preserve the natural and inalienable rights of man’ and Article 3 proceeds to define this association: ‘The principle of all Sovereignty lies essentially with the nation.’
‘Natural’ and eternal rights are declared on behalf of the universal “man.” However these rights do not pre-exist but were created by the Declaration. A new type of political association, the sovereign nation and its state and a new type of ‘man’, the national citizen, came into existence and became the beneficiary of rights. In a paradoxical fashion, the declaration of universal principle established local sovereignty. From that point, statehood and territory follow a national principle and belong to a dual time. If the declaration inaugurated modernity, it also started nationalism and its consequences: genocide, ethnic and civil war, ethnic cleansing, minorities, refugees, the stateless. The spatial principle is clear: every state and territory should have its unique dominant nation and every nation should have its own state – a catastrophic development for peace as its extreme application since 1989 has shown.
The new temporal principle replaced religious eschatology with a historical teleology, which promised the future suturing of humanity and nation. This teleology has two possible variants: either the nation imposes its rule on humanity or universalism undermines parochial divides and identities. Both variants became apparent when the Romans turned Stoic cosmopolitanism into the imperial legal regulation of jus gentium. In France, the first alternative appeared in the Napoleonic war, which allegedly spread the civilizing influence through conquest and occupation (according to Hegel, Napoleon was the world spirit on horseback); while the second was the beginning of a modern cosmopolitanism, in which slavery was abolished and colonial people were given political rights for a limited time after the Revolution. From the imperial deformation of Stoic cosmopolitanism to the current use of human rights to legitimize Western global hegemony, every normative universalism has decayed into imperial globalism. The split between normative and empirical humanity resists its healing, precisely because universal normativity has been invariably defined by a part of humanity.
The universal humanity of liberal constitutions was the normative ground of division and exclusion. A gap was opened between universal “man,” the ontological principle of modernity, and national citizen, its political instantiation and the real beneficiary of rights. The nation-state came into existence through the exclusion of other people and nations. The modern subject reaches her humanity by acquiring political rights of citizenship, which guarantee her admission to the universal human nature by excluding from that status others. The alien as a non-citizen is the modern barbarian. He does not have rights because he is not part of the state and he is a lesser human being because he is not a citizen. One is a man to greater or lesser degree because one is a citizen to a greater or lesser degree. The alien is the gap between man and citizen.
In our globalised world, not to have citizenship, to be stateless or a refugee, is the worst fate. Strictly speaking, human rights do not exist: if they are given to people on account of their humanity and not of some lower level group membership, then refugees, the sans papiers migrants and prisoners in Guantanamo Bay and similar detention centers, who have little if any legal protection, should be their main beneficiaries. They have few, if any, rights. They are legally abandoned, bare life, the homines sacri of the new world order.
The epochal move to the subject is driven and exemplified by legal personality. As species existence, the “man” of the rights of man appears without gender, color, history, or tradition. He has no needs or desires, he is an empty vessel united with all others through three abstract traits: free will, reason, and the soul (now the mind) — the universal elements of human essence. This minimum of humanity allows “man” to claim autonomy, moral responsibility, and legal subjectivity. At the same time, the empirical man who actually enjoys the ‘rights of man’ is a man all too man: a well-off, heterosexual, white, urban male who condenses in his person the abstract dignity of humanity and the real prerogatives of belonging to the community of the powerful. A second exclusion therefore conditions humanism, humanity and its rights. Mankind excludes improper men, that is, men of no property or propriety, humans without rhyme and reason, women, racial, and ethnic sexual minorities. Rights construct humans against a variable inhumanity or anthropology. Indeed these “inhuman conditions of humanity,” as Pheng Cheah has called them, act as quasi-transcendental preconditions of modern life.(1)
The contemporary history of human rights can be seen as the ongoing and always failing struggle to close the gap between the abstract man and the concrete citizen; to add flesh, blood and sex to the pale outline of the ‘human’ and extend the dignities and privileges of the powerful (the characteristics of normative humanity) to empirical humanity. This has not happened however and is unlikely to be achieved through the action of rights.
(1) Pheng Cheah, Inhuman Conditions (Cambridge Mass: Harvard University Press, 2006), Chapter 7.
