The end(s) of human rights.

• Jurisdiction: Australia
• Author: Douzinas, Costas
• Date: 01 August 2002

[The history of human rights has made resistance to domination and oppression their main end. However from early modernity onwards, natural rights underpinned the sovereignty of the modern state. This trend has been strengthened in postmodernity and human rights have become the moral order of a new empire under construction. From a philosophical perspective, it is argued that humanity is an indeterminate concept which cannot become the source of normative values. Universalism and cultural relativism, the intertwined strands of humanism, are unable to understand human rights as the legalisation of individual desire. In postmodernity, the action of human rights expands the boundaries of the social, but it also dismembers the subjected subject. Only if we conceive of human rights as dependent on the other can they return to their original end and become the postmodern principle of justice.]

I INTRODUCTION

A new ideal has trumped on the global world stage: human rights. It unites left and right, the pulpit and the state, the Minister and the rebel, the developing world and the liberals of Hampstead and Manhattan. Human rights started their life as the principle of liberation from oppression and domination, the rallying cry of the homeless and the dispossessed, the political program of revolutionaries and dissidents. But their appeal is not confined to the wretched of the earth. Alternative lifestyles, greedy consumers of goods and culture, the pleasure-seekers and playboys of the Western world, the owner of Harrods, a former managing director of Guinness plc, as well as a former king of Greece, have all glossed their claims in the language of human rights. (1)

Human rights were initially linked with specific class interests and were the ideological and political weapons in the fight of the rising bourgeoisie against despotic political power and static social organisation. But their ontological presuppositions--the principles of human equality and freedom--and their political corollary--the claim that political power must be subjected to the demands of reason and law--have now become part of the staple ideology of most contemporary regimes and their partiality has been transcended.

Internationally, the New Times after the collapse of communism have elevated human rights as the central principle. Humanitarian interventions, war crimes tribunals and domestic prosecutions of heads of states for violations of human rights are all part of the new order. Human rights are the fate of postmodernity, the energy of our societies, the fulfilment of the Enlightenment promise of emancipation and self-realisation. Human rights are the ideology after the end, the defeat of ideologies, or, to adopt a voguish term, the ideology of globalisation at the `end of history'. (2)

And yet many doubts persist. (3) The record of human rights violations since their ringing declarations at the end of the 18th century is quite appalling. `[I]t is an undeniable fact', writes Gabriel Marcel, `that human life has never been so universally treated as a vile and perishable commodity than during our own era.' (4) If the 20th century was the epoch of human rights, their triumph is, to say the least, something of a paradox. Our era has witnessed more violations of their principles than any of the previous and less `enlightened' epochs. The 20th century was the century of massacre, genocide, ethnic cleansing--the age of the Holocaust. At no point in human history has there been a greater gap between the poor and the rich in the Western world or between the North and the South globally. No degree of progress allows one to ignore the fact that never before, in absolute figures, have so many men, women and children been subjugated, starved or exterminated. It is this paradox of triumph and disaster that I want to explore.

A second paradox characterises the theory of human rights. While rights are one of the noblest liberal institutions, liberal political and legal philosophy appears unable to grasp fully their operation. Part of the problem must be attributed to the woefully inadequate historical sense and philosophical awareness of the liberals. The world they inhabit is an atomocentric place that is constituted by social contracts, motivated by blindness and veils of ignorance, attributed to ideal speech situations and harking back to the pre-modern certainty of single right answers to moral and legal conflicts. Similarly, the model of the person populating this world is that of the self-certain individual, knowledgable and reflective--a Kantian autonomous subject, who does not belong to class or gender, has no unconscious or traumatic experiences and who stands towards the world in a position of perfect control. Indeed, it is striking that our most acclaimed theorists of rights forget 200 years of social theory and philosophy and act as if they have never heard the names of Marx, Freud, Nietzsche or Weber.

Let me offer, in seven inevitably condensed epigrammatic theses, an alternative genealogy and philosophy of rights.

1 Nature and natural right were the creations of revolutionary thought, acts of Promethean rebellion.

2 Natural rights and sovereignty, the two opposing principles which permeate the law of human rights, are two sides of the same coin. Ethnic cleansing is the descendent of the great declarations of the 18th century.

3 Ideals start their careers in conflict with the police. They end when they call in the police and the air force for their protection. An angel protected by the police: that's how ideals die.

4 To defend human beings, we must attack humanism--a banal combination of classical and Christian metaphysics. Human rights do not belong to humans but they construct humans.

5 Universalism and cultural relativism, rather that being fatal enemies, are totally dependent on one another.

6 Human rights are the public proclamation or legalisation of individual desire. Their action expands the boundaries of the social and introduces undecidability, but it also dismembers the subjected subject.

7 The human rights of the other could become the postmodern principle of justice.

II NATURE AND NATURAL RIGHTS

Ancient Greece did not distinguish between law and convention or right and custom. Custom is a strong cement: it binds families and communities firmly, but it can also numb. Without external standards, the development of a critical approach towards traditional authority is impossible: the given goes unchallenged and the slaves stay in line. Originally, the root of all authority is the ancestral.

But the discovery, or rather the invention, of the concept of nature challenged the claim of the ancestral. Philosophy could now appeal from the ancestral to the good--to that which is good intrinsically, by nature. Nature as a critical concept acquired philosophical currency in the fifth century BCE when it was used by the sophists against custom and law, and by Socrates and Plato in order to combat moral relativism of the sophists and to restore the authority of reason. (5) Turning nature into norm or into the standard of right was the greatest early step of civilisation, but it was also a cunning trick against priests and rulers. To this day, when knowledge and reason are subjected to authority, they are called `theology' or `legal learning' but they cannot be the philosophy practised by the Greeks. (6) Nature (the most cultured of concepts), the idea of the good and political philosophy, were all born together in an act of rebellion.

This critical function of nature was in evidence in the appeal to natural rights by the great revolutions of the 18th century and again in the popular rebellions in Eastern Europe in the 1980s. Indeed, the symbolic foundation and starting point of modernity can be located at the passing of the great revolutionary documents of the 18th century. They returned to the critical function of classical natural law, which had been concealed by successive layers of Christian theology. But victorious revolutionaries turned rulers can become as oppressive as their predecessors. The popularity of natural rights declined dramatically after the great declarations and the revolutions of the 1980s ended up in the mafia governments of the 1990s and the destruction of whole cultures and populations through the discipline of the market.

III SOVEREIGNTY AND HUMAN RIGHTS

Let me now turn to the relationship between power and morality or between sovereignty and human rights. We can explore the strong internal connection between these two superficially antagonistic principles in three key periods of national and international construction: the late 18th century, the post-WWII international system and, finally, the New Times emerging after the collapse of communism.

The great 18th century declarations pronounced natural rights inalienable because they were independent of both governments and temporal and local factors and they expressed, in legal form, the eternal rights of man. Rights were declared on behalf of the universal `man'. Yet, the French Declaration is quite categorical as to the real source of universal rights. (7) Let us follow briefly its strict logic. Article 1 states that `men are born and remain free and equal in their rights'; art 2 that `the final end of every political institution is the preservation of the natural and imprescriptible rights of man' and art 3 proceeds to define this association: `The source of all sovereignty lies essentially in the Nation. No corporation or individual may exercise any authority not expressly derived therefrom.' (8)

It was the act of enunciation which established the power of a particular type of political association, the nation-state, to become the sovereign law-maker and secondly, of a particular `man', the national citizen, to become the beneficiary of rights. First, let us consider national sovereignty. The declarations set out the universality of rights but their...