Adikia: On Communism and Rights

Beat the Whites with the Red Wedge

1. Back in the Eighties and Nineties, Marxist in­tel­lec­tuals, shaken by the Gulag rev­el­a­tions and the col­lapse of the com­munist states, started wel­coming human rights. Claude Lefort, Jean-​Francois Lyotard, Etienne Balibar and Jacques Rancière1 amongst others par­ti­cip­ated in this move. It co­in­cided with the ‘end of his­tory’ brag­ging of lib­eral cap­it­al­ists and the re­vi­sionist his­tories of the French Revolution, which em­phas­ized its fail­ures, terror and to­tal­it­ari­anism. It was a time of de­feat and de­mor­al­iz­a­tion for the left. All that has been solid in rad­ical thinking started melting in the air.

This period of de­feat, in­tro­spec­tion and pen­ance came to an end with the fin­an­cial and eco­nomic crisis. The re­turn of rad­ical theory and politics re­vived the sus­pi­cion to­wards the fa­cile mor­alism and hu­man­it­ari­anism of lib­eral demo­cracy and post­modern culture’s aban­don­ment of uni­ver­salism. Alain Badiou dis­missed the hu­manism of rights in Ethics,2 Slavoj Zizek ques­tioned the eman­cip­atory po­ten­tial of human rights after some wavering,3 while Michael Hardt and Antonio Negri see human rights as an in­dis­pens­able tool of em­pire.4 The re­jec­tion of the earlier rights re­vi­sionism is al­most complete.

Yet, this re­jec­tion is some­what prob­lem­atic. Universalism is the ral­lying cry of lib­eral hu­man­it­arians. The de­fence of the sans papiers, a major cam­paign of Badiou’s or­gan­iz­a­tion poli­tique, cannot avoid some ver­sion of rights-​talk. Hardt and Negri’s re­cipe for turning the claims of empire’s into rad­ical multitude’s ex­pres­sion takes the form of so­cial rights. Jacques Rancière finds in human rights a good ex­ample of the rad­ical politics he es­pouses. An em­bar­rassed flir­ta­tion between the left and rights has been re­newed in a dir­ec­tion which com­bines the de­fence of uni­ver­salism with the re­jec­tion of human rights ideo­logy.5 This is the time to re-​visit rights his­tory and theory in the con­text of late cap­it­alism. If com­munist prac­tice was a denial of lib­eral rights, can the philo­soph­ical idea of com­munism save (human) rights?

2. The his­tory of human rights has been char­ac­ter­ized by a con­flict between lib­eral cel­eb­ra­tion and re­jec­tion by Marxism and com­munit­ari­anism. Human rights are Janus-​like, they have only para­doxes to offer. They can eman­cipate and dom­inate, pro­tect and con­trol.6 This am­biguous at­ti­tude per­meated the rad­ical theory of rights until re­cently with the neg­ative side more pronounced.

Marx’s writ­ings on rights were part of his wider cri­tique of cap­it­alism. In feud­alism, polit­ical power, eco­nomic wealth and so­cial status co­in­cided. The polit­ical dom­in­ance of the rising bour­geoisie, on the other hand, could be en­sured pre­cisely through the ap­parent loss of direct polit­ical power. The rights of man re­moved politics from so­ciety and ended the iden­ti­fic­a­tion of eco­nomic dom­in­ance with polit­ical lead­er­ship. Politics be­came con­fined into the sep­arate do­main of the state. At the same time, prop­erty and re­li­gion, the main safe­guards of class dom­in­ance, were turned into private in­sti­tu­tions loc­ated in civil so­ciety and pro­tected from state in­ter­ven­tion through the op­er­a­tion of nat­ural rights. This ‘de­mo­tion’ to the private realm made prop­erty more ef­fective and guar­an­teed its con­tinued dom­in­ance. In this dia­lect­ical for­mu­la­tion, the main aim of nat­ural rights was to re­move politics from so­ciety and de-​politicise the eco­nomy. After the sep­ar­a­tion, the state is presented as (polit­ic­ally) dom­inant, while real (eco­nomic) power lies in cap­it­alist so­ciety. The bour­geois aban­don­ment of the direct polit­ical power of feudal lords and kings was the pre­con­di­tion for the as­cend­ancy of bour­geois so­ciety and the tri­umph of its cap­it­alist principles.

In this bour­geois hall of mir­rors, nat­ural rights sup­port selfish­ness and private profit. Politics and the state, on the other hand, re­place re­li­gion and the church and be­come a ter­restrial quasi-​heaven in which so­cial di­vi­sions are tem­por­arily for­gotten as the cit­izens par­ti­cipate in lim­ited formal demo­cracy. The lib­eral sub­ject lives a double life: a daily life of strife in pur­suit of per­sonal eco­nomic in­terest and a second which, like a meta­phor­ical Sabbath, is de­voted to polit­ical activity and the ‘common good’. In reality, a clear hier­archy sub­or­din­ates the polit­ical rights of the eth­ereal cit­izen to the con­crete in­terests of the cap­it­alist, presented in the form of nat­ural rights.

Marx’s at­tack on nat­ural rights in­aug­ur­ated the various strands of ‘ideo­logy cri­tique’. First, equality and liberty are ideo­lo­gical fic­tions em­an­ating from the state and sus­taining a so­ciety of in­equality, op­pres­sion and ex­ploit­a­tion. While nat­ural rights (and today human rights) are hailed as sym­bols of uni­versal hu­manity, they were at the same time powerful weapons in the hands of the par­tic­ular (bour­geoisie). Ideologies, class in­terests and egot­ist­ical con­cerns ap­pear nat­ural, eternal, in the public good when glossed in the rights vocabulary.

Second, rights turn real people into ab­stract ciphers. The ab­stract man of the de­clar­a­tions has no his­tory or tra­di­tion, gender or sexu­ality, colour or eth­ni­city, those ele­ments that make people real. All con­tent is sac­ri­ficed at the altar of ab­stract hu­manity. This ges­ture of uni­ver­sal­isa­tion con­ceals how­ever their real sub­ject: an human-​all-​too-​human, wealthy, white, het­ero­sexual, male bour­geois standing in for uni­versal hu­manity who com­bines the dig­nity of hu­manity with the priv­ileges of the elite. The eman­cip­a­tion of uni­versal man sub­jects real people to a very con­crete rule: ‘the rights of man as dis­tinct from the rights of the cit­izen are nothing but the rights of the member of bour­geois so­ciety, i.e. egot­istic man, man sep­ar­ated from other man and the com­munity.’7

A re­lated ar­gu­ment em­phas­izes the statism of rights. Effective rights follow na­tional be­longing. While pro­claimed on be­half of uni­versal hu­manity beyond local or his­tor­ical factors only na­tional cit­izens get their full pro­tec­tion. The gap between uni­versal man and na­tional cit­izen is pop­u­lated by mil­lions of refugees, mi­grants, state­less, moving and no­madic people, the in­hab­it­ants of camps and in­tern­ment centres, the hom­ines sacri who be­long to ‘hu­manity’ but have few if any rights be­cause they do not enjoy state protection.

Third, formal equality (the legal en­ti­tle­ment to have prop­erty) treats un­equals equally as a matter of right and fair­ness. This turns equality into an ideo­lo­gical con­struct; it also pro­motes ma­terial in­equality, poverty and des­ti­tu­tion and un­der­mines close human re­la­tion­ships. ‘Right by its very nature can con­sist only in the ap­plic­a­tion of an equal standard; but un­equal in­di­viduals (and they would not be dif­ferent in­di­viduals if they were not un­equal) are meas­ur­able only by an equal point of view, are taken from one def­inite side only…One worker is mar­ried, an­other not; one has more chil­dren than an­other and so on and so forth…To avoid all these de­fects, right in­stead of being equal would have to be un­equal.’8

Finally, Marx’s cri­tique of spe­cific rights was scathing. They pro­claim a neg­ative freedom based on a so­ciety of isol­ated monads who see each other as threats. The right to own­er­ship is nothing more than the pro­tec­tion of private prop­erty on the means of pro­duc­tion. Freedom of opinion and ex­pres­sion is the spir­itual equi­valent of private prop­erty, a claim fully val­id­ated in the era of Murdoch, Turner and Gates. Anticipating the re­cent bio-​political turn, Marx ar­gues that the right to se­curity is the only real right. It con­structs ar­ti­fi­cial links between (fearful) in­di­viduals and the state and pro­motes the ul­ti­mate so­cial value, law and order. Policing, the ‘su­preme concept of bour­geois so­ciety, the in­sur­ance for [bour­geois] egoism’,9 un­der­takes to keep so­cial peace and public order in a con­flic­tual society.

Marx how­ever did not dis­miss rights out of hand. Commenting on the 1848 Revolution, he spoke of a dif­ferent right: ‘The right to work is, in the bour­geois sense, non­sense, a wretched, pious wish. But be­hind the right to work stands power over cap­ital. The ap­pro­pri­ation of the means of pro­duc­tion, their sub­jec­tion to the as­so­ci­ated working class. That is the ab­ol­i­tion of wage la­bour, cap­ital and the mu­tual re­la­tion­ship.’10

The com­munist re­volu­tion will realise the uni­versal promise of rights by neg­ating mor­al­istic form and idealist con­tent. Freedom will stop being neg­ative and de­fensive and will be­come a pos­itive power of each in union with others. Equality will no longer mean the ab­stract com­par­ison of un­equal in­di­viduals but cath­olic and full par­ti­cip­a­tion in a strong com­munity. Property will cease being the lim­it­a­tion of each to a por­tion of wealth to the ex­clu­sion of all others and will be­come common. Real freedom and equality look to the con­crete person in com­munity, abandon the formal defin­i­tions of so­cial dis­tri­bu­tion and in­scribe on their ban­ners the prin­ciple ‘from each ac­cording to his ability, to each ac­cording to his needs.’ For this to happen the polit­ical re­volu­tion sym­bol­ized by the rights of man must be su­per­ceded by a so­cial re­volu­tion which will lead to the eman­cip­a­tion of humanity.

3. The Marxist philo­sopher who mostly em­phas­ised the para­dox­ical ac­tion of rights is Ernst Bloch.11 Bloch re­tains the main ele­ments of Marx’s cri­tique of rights but dis­covers in the tra­di­tion of nat­ural law the his­tor­ic­ally vari­able but eternal human trait to resist dom­in­a­tion and op­pres­sion and to ima­gine, fight and achieve a so­ciety in which ‘man will walk up­right’. There can be no real found­a­tion of human rights without an end to ex­ploit­a­tion and no real end to ex­ploit­a­tion without re­spect for rights.

Bloch’s cri­ti­cisms of the il­lu­sions of ‘bour­geois nat­ural law’ are dev­ast­ating. But human rights hail also from the tra­di­tion of cri­tique of power, con­ven­tion and law and have de­veloped in two dir­ec­tions. Initially, rights were as­so­ci­ated with dominium, pos­ses­sion and prop­erty, the legal dom­in­ance over things and people and were in­vented in order to pro­tect cred­itors from debtors.12 Human rights emerged from this early right to prop­erty but were ‘ad­opted in a quite dif­ferent way by the ex­ploited and op­pressed, the hu­mi­li­ated and de­graded. It is pre­cisely this that ap­pears in its in­com­par­able second sense as the sub­jective catch­word of the re­volu­tionary struggle and act­ively as the sub­jective factor of this struggle.’13 Bloch con­cludes that a his­tor­ic­ally en­during sense of res­ist­ance and re­bel­lion shows the human ‘in­ten­tion of freeing them­selves from op­pres­sion and in­stalling human dig­nity, at least since the time of the Greeks. But only this will is im­mut­able, and not…“man” and his so-​called eternal right.’ 14

Bloch’s Natural Law and Human Dignity is the most ad­vanced Marxist reading of the his­tory and philo­sophy of human rights. Influenced by German idealism, Marx’s early writ­ings. Penned at the height of the cold war, it ad­opts an evol­u­tionary philo­sophy of his­tory and proph­es­ises the real­iz­a­tion of the hu­manum in com­munism. Radical human rights con­demn bour­geois leg­ality while at the same time real­izing their kernel, the prin­ciple of hope of (so­cialist) humanism.

This type of Marxist his­tor­icism and hu­manism came under dev­ast­ating at­tack by Althusserian and post­struc­tur­alist philo­sophy. Yet Bloch’s in­sist­ence in the will to resist and rebel, freed from hu­manist idealism, can help re­s­ituate the rad­ical po­ten­tial of norm­ativity. If pro­gress is no longer guar­an­teed by his­tor­ical ne­ces­sity and the re­volu­tionary wager has been firmly placed on the long odds of the (coming) event, how can values and norms pre­pare the epi­phany and the fi­delity ne­ces­sary for its real­isa­tion? If rad­ical change is not the linear un­folding of the human spirit, but a rare and un­pre­dict­able in­stance of eternal re­turn how does the event link with moral im­per­at­ives and psy­cho­lo­gical mo­tiv­a­tions? As Peter Halward puts it, ‘isn’t there a danger that by dis­reg­arding is­sues of mo­tiv­a­tion and re­solve at play in any sub­jective de­cision, the mil­it­ants of truth will preach only to the con­verted?’15 Is there a syn­chronic con­stant beyond his­tor­icism and fi­nitude that moves people to an­swer the call of Badiou’s ‘void’ and change the situation?

Radical philo­sophy tends to neg­lect such ques­tions as sec­ondary or ‘super-​structural’. Yet Antigone’s de­fi­ance, Paul’s con­ver­sion and Lenin’s res­ol­ute­ness did not emerge ex ni­hilo. If ‘the sub­ject is only par­tially the sub­ject in­spired by the event…social agents share, at the lever of a situ­ation, values, ideas, be­liefs, etc. that the truth…does not put en­tirely into ques­tion.’16 The mil­it­ants are partly pre­pared and sup­ported by norms and be­liefs pre-​existing the dra­matic act and leading to their abiding fi­delity. Following Badiou’s ter­min­o­logy, we can call them the norm­ative pull of the void or, with Zizek, the norm­ativity of the real. Where does this pull come from? What pre­pares the mil­itant sub­jects? As rights are be­coming the dom­inant lan­guage of politics, with all the prob­lems this en­tails, we need per­haps a gene­a­logy of rad­ical normativity.

4. The Anaximander frag­ment, the oldest ex­tant Greek text reads: ‘but where things have their origin, there too their passing away oc­curs ac­cording to ne­ces­sity; for they are judged and make re­par­a­tion (didonai diken) to one an­other for their adikia (dis­join­ture, dis­lo­ca­tion, in­justice) ac­cording to the or­din­ance of time’.17 Heidegger uses the frag­ment to con­firm his fun­da­mental on­to­logy. The proper pres­ence of be­ings is ‘lingering awhile’. When they present them­selves, they cannot be out of joint (adikia); on the con­trary, they are joined with others (Heidegger’s trans­lates dike as joint or join­ture). But Being with­draws as it re­veals it­self in be­ings, con­ceals it­self and keeps to it­self. In this pro­cess of unconcealment/​concealment, be­ings are cast adrift in er­rancy, and ‘his­tory unfolds…Without er­rancy there would be no con­nec­tion from des­tiny to des­tiny: there would be no his­tory’.18 Adikia is the dis­order of Being, its con­ceal­ment ac­com­pa­nying its un­on­ceal­ment or lingering.

Derrida re­turns to Heidegger’s reading in Spectres for Marx agreeing with the on­to­lo­gical dir­ec­tion. Derrida ob­jects how­ever to the one-​dimensional in­ter­pret­a­tion of dike and adikia, which em­phasise pa­cific join­ture and care. For Derrida, the cent­rality of adikia must be re-​instated. There is dis­join­ture and dis­sen­sion in Being, a dis­lo­ca­tion that an­im­ates the re­la­tion­ship with the other than being, with the other as other and with death.19

Derrida’s re­turn to Being as dis­sen­sion can help us de­velop an on­to­lo­gical thinking of dike as the re­sponse to en­during dis­order and con­flict (adikia). Following this cor­rec­tion, the frag­ment can be para­phrased as fol­lows: ‘An ar­chaic adikia, dis­sen­sion or con­flict, an­im­ates the un­con­ceal­ment of Being. It en­dures in human his­tory which is the un­folding (tisis) of adikia’s over­coming (dike).’ What cre­ates this dis­lo­ca­tion or in­justice? How is the re­par­a­tion cal­cu­lated and paid?20

An early an­swer is given by Sophocles in the Ode on Man, the su­perb choral song from Antigone.

polla ta deina kouden an­thropou dei­noteron pelei (332).
Numberless won­ders (deina), ter­rible won­ders walk the world
but none more won­derful and ter­rible (dei­noteron) than man.

Heidegger’s reading of the song places power, vi­ol­ence and con­flict at the centre of his­tory. Deinon, the key word, has two mean­ings: first, it is man’s vi­olent and cre­ative power, evident in techne know­ledge, art and law. Secondly, dike is an over­powering power, the order and struc­ture hu­manity is thrown in and has to struggle with. Techne con­fronts dike and vi­ol­ently tears asunder the order of Being, using vi­olent poesis against dike’s over­powering dis­pens­a­tion. In this con­front­a­tion, man stops being at home and both home and the alien are dis­closed. Humanity opens paths and sets bound­aries, in­tro­duces laws and in­sti­tu­tions, mas­ters earth and sea.21 Techne and logos make mani­fest the man­i­fold of be­ings and humanity’s own his­tor­ical becoming.

But dike, the over­powering order, can never be fully over­come. It tosses pan­to­poros man (all re­sourceful and everywhere-​going) back to aporos (without pas­sage and re­source). Catastrophe is humanity’s in­es­cap­able con­di­tion caught up as it is in the con­flict between power and over­powering, the vi­ol­ence of know­ledge, art and deed and the order of the world. Abiding dis­aster lurks be­hind every achieve­ment as its pre­con­di­tion. The frag­ment calls it adikia, dis­lo­ca­tion, dis­join­ture or in­justice. Humanity rises on the breach opened by the ex­er­cise of over­whelming force on prim­or­dial dike.22

Adikia is the cause and ef­fect of dike. There is an ‘ab­ori­ginal in­justice in which we share, to which we be­long. Older than time, than measure and law, it owns no measure of justice of equality or in­equality’.23 The sense of in­justice, which pre­pares the mil­it­ants of re­volu­tion against the dom­inant order, is history’s judg­ment and re­par­a­tion for the ori­ginal and en­during adikia. This dis­lo­ca­tion is in ex­cess of any pos­sible resti­tu­tion and opens his­tory ‘ac­cording to the or­din­ance of time’. Adikia is both the un­ending struggle between techne and dike and the limit between them, what keeps freedom and ne­ces­sity apart.

The struggle between techne as thinking and dike as doxa led to the birth of philo­sophy and epi­stemic know­ledge. At the same time, the techne/​dike ant­ag­onism mo­tiv­ates mil­itant sub­jects. Such is the con­flict between Creon’s stub­borness (Hegel greatly re­spected his achieve­ment and pre­dic­a­ment) and Antigone’s de­fi­ance or ate:

Nor did that (Dike), dwelling with the gods
be­neath the earth, or­dain such laws (nomous) for men.
Nor did I think your edicts had such force
that you a mere man, could over­ride
the great un­written and cer­tain laws of the gods
(agrapta kas­phale theon no­mima) (Antigone lines 448 – 453).

Adikia en­dures as the world-​making struggle between techne and dike. It has polit­ical, the­or­et­ical and sub­jective fa­cets. Its polit­ical form is the epochally spe­cific con­front­a­tion of human ac­tion with the order of the world. Its philo­soph­ical, ex­plores the epochal forms of adikia, of order, freedom and their en­tan­gle­ment. Such was Plato’s quest for a theory of justice against the doxa of his time. Similarly, Marx’s iden­ti­fic­a­tion of class struggle and in­ven­tion of com­munism against tri­umphant cap­it­alism were the­or­et­ical re­sponses to the adikia or dis­order of capitalism.

Finally, each type of adikia cre­ates its own sub­jectivity by in­du­cing sub­jects who resist and rad­ic­ally trans­form it. Antigone as the cham­pion of dike, Prometheus of techne give name to re­bel­lious sub­jectivity. This sub­jective re­sponse res­ults from the epochal in­stan­ti­ation of adikia. When the kairos gets out of joint, an af­fective or/​and ra­tional sense of dis­lo­ca­tion in­cites sub­jects of res­ist­ance and re­volu­tion. Resistance and its mil­it­ants take there­fore two in­ter­linked forms: the­or­et­ical ex­plor­a­tion of the ruling dis­lo­ca­tion and polit­ical ac­tion to resist or re­dress it. The dis­sid­ents and re­volu­tion­aries, from Prometheus to Michael Kolhaas and Che Guevara an­swer the sense of dis­order adikia be­gets. History moves in this com­bin­a­tion of politics, theory and rad­ical subjectivity.

We can now un­der­stand why the theory of justice is the oldest failure of human thought. Since Homer, the Bible and Plato, the best minds and fier­iest hearts have tried to define justice or ima­gine the con­di­tions of a just so­ciety. They have failed; in­deed the suc­cessive and end­less ‘the­ories of justice’ are a serial re­cog­ni­tion of this miser­able failure. Justice and in­justice are not norm­ative pre­dic­ates but sub­jective mo­tiv­a­tions. Adikia’s en­dur­ance gen­er­ates the common feeling that we are sur­rounded by in­justice without knowing where justice lies. This is the paradox of justice: while the prin­cipal has been clouded in un­cer­tainty and con­tro­versy, in­justice has al­ways been felt with clarity, con­vic­tion and a sense of ur­gency. We know in­justice when we come across it, its truth is felt. Every time how­ever a theory of justice is put into prac­tice, it soon de­gen­er­ates into an­other in­stance of in­justice. Justice ap­plied leads to (feel­ings of) in­justice. Life starts with in­justice and rebels against it. Thinking follows.

The dia­lectic between justice and in­justice does not lead to their syn­thesis. Injustice is not the op­posite of justice; the un­just is not the con­trary of the just; suf­fering in­justice is not the lo­gical op­posite of doing in­justice.24 Adikia is both the gap between justice and in­justice and the end­less but im­possible at­tempt to bridge it. It is what the sym­bolic order tries to sup­press and the pro­lific the­ories of justice (the ima­ginary) to le­git­imize, failing each time. In this sense, the Real is a name for adikia, the con­sti­tuting dis­lo­ca­tion of the so­cial bond. As Jean-​Francois Lyotard put it, a residue, a ‘non­linked thing’25 or fault­line beyond con­trol founds every com­munity and law. It is ana­logous to an ‘un­con­scious af­fect’, en­countered in the ‘sharp and vague feeling that the ci­vil­ians are not civ­il­ised and that some­thing is ill-​disposed to­wards ci­vility’ which ‘be­trays the re­cur­rence of the shameful sick­ness within what passes for health and be­trays the “pres­ence” of the un­man­age­able’.26

This un­man­age­able adikia has been called suc­cess­ively the un­bridge­able gap between God and world, class struggle, self-​other di­vi­sion, friend/​enemy ant­ag­onism or the death drive. In all these nom­in­a­tions, ‘the kernel of the real en­circled by failed at­tempts to symbolize-​totalise it is rad­ic­ally non-​historical: his­tory it­self is nothing but a suc­ces­sion of failed at­tempts to grasp, con­ceive, spe­cify this strange kernel.’27 Its earliest gen­eric name was adikia.

5. The idea of com­munism is a re­sponse to cap­it­alism, the modern form of adikia. Do norms and maxims play a role in pre­paring rad­ical change and its mil­itant sub­jects? Let us pursue this ques­tion in re­la­tion to the greatest per­haps modern norm­ative maxim: ‘All men are born and re­main free and equal in rights’ pro­nounces the French Declaration of the Rights and Man and Citizen rad­ic­ally trans­forming the polit­ical and legal universe.

The juridico-​political maxim of the clas­sical world was suum cuique tribuere, give everyone his due. It was both a moral and a legal prin­ciple. The Greek dikaion or the Roman jus was the mor­ally cor­rect and leg­ally right an­swer to a so­cial dis­pute. In the pre-​modern hier­arch­ical order, so­cial status de­term­ined what is due to each, what du­ties mas­ters had to­wards slaves, hus­bands to wives, Greeks to bar­bar­ians. Right and wrong re­volved around the suum, the proper to each ac­cording to his given place. Backed by a tele­ology of nat­ural ends, so­cial standing as­signed roles, tasks and duties.

The clas­sical dike was trans­formed by Christianity. The first chal­lenge was the idea of uni­versal spir­itual equality ex­em­pli­fied in St Paul’s state­ment that ‘there is no longer Jew or Greek, there is no longer slave or free, there is no longer male or fe­male; for all of you are one in Jesus Christ’ (Galatians 3:28). The Franciscan nom­in­al­ists Duns Scotus and William of Ockham pre­pared the second at­tack in the four­teenth cen­tury when they ar­gued that the his­tor­ical in­carn­a­tion of Christ made in­di­vidu­ality the su­preme ex­pres­sion of cre­ation. Its know­ledge takes pre­ced­ence over that of uni­versal forms. Abstract con­cepts owe their ex­ist­ence to lin­guistic prac­tices and have no on­to­lo­gical weight or em­pir­ical value. For William, God has given in­di­viduals con­trol over their lives and bodies sim­ilar to that of dominium or prop­erty.28 For Duns, God’s will has pri­ority over his reason; the good ex­ists be­cause the om­ni­po­tent or­dained it and not on ac­count of some other in­de­pendent quality.

The norm­ative in­nov­a­tion of the French Declaration was to bring to­gether the clas­sical maxim of due deserts and the Christian com­mand of uni­versal equality. It dis­en­gaged the suum from so­cial status and gave it, rhet­or­ic­ally at least, to ‘all men’. The pre-​modern (moral and legal) jus/​right, de­term­ined by nat­ural reason in a fixed on­to­lo­gical uni­verse, turned into a bunch of in­di­vidual rights be­longing to all.

The con­front­a­tion between hier­arch­ical tele­ology and in­di­vidu­alist on­to­logy was re­solved through re­volu­tion. Revolution was not just a rad­ical socio-​political change. It be­came a norm­ative prin­ciple, the modern ex­pres­sion of techne. The ‘right to res­ist­ance to op­pres­sion’, a key polit­ical maxim of the French Declaration, be­came the highest form of freedom. The rights of man emerged through re­volu­tion; res­ist­ance sus­tains their vi­tality. The de­clar­a­tion, ‘an act of war against tyr­ants’, pro­claimed re­volu­tion as modernity’s techne and the right to re­volu­tion as freedom’s due.29 The con­sti­tu­tion­al­isa­tion of the right to re­volu­tion was as rad­ical a norm­ative in­nov­a­tion as was the pro­clam­a­tion of uni­versal equality.

German idealism com­mended the re­volu­tion for in­carn­ating freedom into his­tory but re­jected the Declaration’s re­volu­tionary right. Once con­stituent power had been con­sti­tuted, the right to re­volu­tion re­tired. Immanuel Kant typ­ic­ally went to great lengths to dis­miss a right to re­volu­tion as a con­tra­dic­tion in terms. The law cannot tol­erate its own over­throw: ‘Revolution under an already ex­isting con­sti­tu­tion means the de­struc­tion of all re­la­tion­ships gov­erned by civil right, and thus of right al­to­gether. And this is not a change but a dis­sol­u­tion of the civil con­sti­tu­tion; and a pal­in­gen­esis, for it would re­quire a new so­cial con­tract on which the pre­vious one (which is now dis­solved) could have no in­flu­ence.’30

Kant’s ethico-​plitical dis­like of the right to re­volu­tion was ad­opted by the vic­torious re­volu­tion­aries and later by the human rights move­ment. The 1793 Declaration started weak­ening the re­volu­tionary right by making it sup­ple­mentary to the guar­an­teed rights. Only their vi­ol­a­tion (and no other in­justice) could jus­tify res­ist­ance, in­dic­ating that rights had started their long muta­tion from re­volu­tionary maxims into le­git­im­a­tion myths.

The first epi­gram­matic art­icle of the Universal Declaration of Human Rights (1948) re­peats the French state­ment of equal freedom. Yet no right to res­ist­ance is found in the much longer epi­gonal re­cit­a­tion. On the con­trary, the pre­amble states that these rights are given in order to pre­vent re­volu­tion and art­icle 30 pro­hibits rad­ical chal­lenges to the polit­ical and legal system. Articles 15, 16 and 17 of European Convention of Human Rights re­peat and aug­ment this self-​serving con­ser­vatism, by al­lowing states to de­clare a state of emer­gency and derogate rights, out­lawing at­tacks on the juridico-​political es­tab­lished order and pro­hib­iting polit­ical activ­ities by for­eigners. These pro­vi­sions of human rights treaties and the as­so­ci­ated crim­inal laws had dire con­sequences. Despite the lib­eral rhet­oric, com­munist and rad­ical parties and groups were banned Germany, Greece, Britain and the United States amongst others, their mem­bers sent to exile, prison or camps. The re­versal of pri­or­ities between the right to re­volu­tion and sub­stantive rights was complete.

For Kant and the legal men­tality, the re­volu­tionary event leads to a palin-​genesis, a re-​birth of na­tion, com­munity or class. This is the even­tu­ality con­sti­tu­tions and treaties mor­ally re­ject and form­ally negate. As a result, the order ini­ti­ated by re­volu­tion leads each time to the re­pu­di­ation of its founding prin­ciple. The rights of man started as norm­ative marks of re­volu­tionary change. Positive human rights, their des­cend­ents, have be­come de­fence mech­an­isms against the pos­sib­ility of res­ist­ance and re­volu­tion. The re­moval of the right to re­volu­tion was an at­tempt to fore­close rad­ical change by making rights an in­sur­ance policy for the es­tab­lished order. In this sense, the order of the world is but a spe­cies of its dis­lo­ca­tion. This un­ending con­front­a­tion brings back res­ist­ance and re­volu­tion through the sense of in­justice adikia be­gets. The con­sec­rated right to re­volu­tion, the found­a­tion and guar­antor of the on­going struggle between techne and dike, cannot be wished away. Permanent re­volu­tion is the modern con­di­tion in sci­ence and art. In politics, it has turned into a ghostly norm­ativity, the ‘right to the event’ one could call it, which etern­ally re­turns as per­haps the most im­portant moral com­mand of modernity.

6. In the post-​1989 world, rights have ex­panded and touch al­most every part of daily ex­ist­ence. Democracy is presented as the ex­er­cise of a bunch of rights; policy pri­or­ities and de­cisions take the form of ex­ten­sions or ex­pan­sions of rights; crim­inal law pro­tects the rights of vic­tims, com­mer­cial the rights of cus­tomers, public law up­holds the rights of cit­izens. Rights be­come neg­ative pro­tec­tions against state power of all kinds – from tax­a­tion and the pro­vi­sion of health care to im­mig­ra­tion policy and slum clear­ance; and pos­itive pro­jec­tions of in­di­vidual will – we all have a human right to prop­erly func­tioning kit­chen gad­gets, a British min­ister re­cently in­toned. Every in­di­vidual de­sire and want can be dressed in the lan­guage of rights: for the af­fluent middle class, rights are the public and legal re­cog­ni­tion of an un­lim­ited and in­sa­ti­able de­sire. In a so­ciety of free choice, it is for­bidden to forbid.31

These de­vel­op­ments mean that rights have be­come both the site and the stake of politics. Marx ar­gued in the nine­teenth cen­tury that the rights to prop­erty and re­li­gious freedom re­moved them from state in­ter­ven­tion, de-​politicising and of­fering them the strongest pro­tec­tion pos­sible. What is the ef­fect of the con­tem­porary pro­lif­er­a­tion of rights-​talk and its col­on­iz­a­tion of major as­pects of life? Adjusting Marx’s pi­on­eering work, one could claim that rights at­tempt to leg­alise so­cial struggle: they in­di­vidu­alise polit­ical claims, turn them into tech­nical dis­putes and re­move the pos­sib­ility of rad­ical change, in other words, rights de-​politicise politics. In this sense, human rights op­erate on a dual re­gister: they con­ceal and af­firm the dom­inant struc­ture but they can also high­light in­equality and op­pres­sion. Can they help chal­lenge oppression?

This double op­er­a­tion re­calls the dis­tinc­tion between politics (la poli­tique) and the polit­ical (le poli­tique) and its in­flu­en­tial re­cent use by Jacques Rancière.32 Rancière defines normal politics (or ‘poli­cing’) as the pro­cess of ar­gu­ment­a­tion and ne­go­ti­ation amongst the various parts of the so­cial whole.33 It aims at (re)distributing be­ne­fits, re­wards and po­s­i­tions without chal­len­ging the overall bal­ance. Against this routine poli­cing, politics proper is a form of dis­rup­tion of the es­tab­lished so­cial order. Badiou sim­il­arly defines politics as ‘col­lective ac­tion, or­gan­ized by cer­tain prin­ciples, that aims to un­fold the con­sequences of a new pos­sib­ility which is cur­rently repressed by the dom­inant order.’34 Politics proper erupts only when an ex­cluded group or class, the ‘part of no part’, de­mands to be in­cluded and must change the rules of in­clu­sion and the es­tab­lished equi­lib­rium. This kind of ant­ag­onism or ‘dis­sensus’ ‘is not a con­flict of in­terests, opin­ions or, values; it is a di­vi­sion put in the “common sense”: a dis­pute about what is given, about the frame within which se see some­thing as given.’35 A new polit­ical sub­ject is con­sti­tuted, in ex­cess of the hier­arch­ised and vis­ible group of groups, places and func­tions in so­ciety.36 The in­clu­sion of the in­vis­ible part over­throws the rules of the game and in­ter­rupts the nat­ural order of dom­in­a­tion. This is the political’s op­er­a­tion par ex­cel­lence and re­minds Alain Badiou’s event.

Based on this ana­lysis, Rancière ar­gues, contra Arendt and Agamben, that rights do not be­long ex­clus­ively to sub­jects or cit­izens. Those without rights can equally in­voke them. Human rights move back and forth between ab­stract state­ments of prin­ciple and denial in prac­tice. This dis­son­ance al­lows the ex­cluded to put the state­ments of prin­ciple to the test. Freedom and equality are not qual­ities people have; they are polit­ical pre­dic­ates, the meaning and scope of which is the ob­ject of polit­ical struggles.

Rancière’s at­tempt to save human rights for rad­ical politics is in­genious but prob­lem­atic. Rights have be­come the main stake and tool in the routine ‘politics of con­sensus’ Rancière de­nounces. The evol­u­tion of rights from in­scrip­tions of con­stituent power to central ex­pres­sions of the es­tab­lished juridico-​political order has all but re­moved their rad­ical edge. They sta­bilise inter-​subjective re­la­tions by giving min­imum re­cog­ni­tion to mul­tiple iden­tities; they co­dify the lib­eral ideo­logy of lim­ited freedom and formal equality; they ex­press and pro­mote in­di­vidual de­sire turning them into the litmus test of freedom (of choice). Most right claims re­in­force the es­tab­lished so­cial order. First, they ac­cept the es­tab­lished bal­ance and aim to admit peri­pher­ally new claims or claimants. Secondly, they turn law into the gate­keeper and pro­tector of the so­cial order trans­forming the polit­ical claim into a de­mand for ad­mis­sion to the law. Law trans­forms so­cial and polit­ical con­flict into a set of tech­nical prob­lems reg­u­lated by rules and hands them over to rule ex­perts. In this sense, rights ex­press and pro­mote es­tab­lished polit­ical ar­range­ments and socio-​economic dis­tri­bu­tions and be­long to do­main of po­lice. The rights claimant is the op­posite of Rancière’s polit­ical sub­ject whose task is to trans­form rad­ic­ally the overall balance.

Successful human rights struggles mar­gin­ally re-​arrange so­cial hier­archies and mildly re-​distribute the so­cial product. Right-​claims bring to the sur­face the ex­clu­sion, dom­in­a­tion and ex­ploit­a­tion and the in­es­cap­able strife that per­meates so­cial life. But at the same time, they con­ceal the deep roots of strife and dom­in­a­tion by framing struggle and res­ist­ance in the terms of legal and in­di­vidual rem­edies which, if suc­cessful, lead to small im­prove­ments and mar­ginal re-​arrangements of the so­cial edi­fice. Rancière seems to agree that ‘these liber­ties each person has are the liber­ties, that is the dom­in­a­tion, of those who pos­sess the im­manent powers of so­ciety. It is the em­pire of the law of the ac­cu­mu­la­tion of wealth.’37 Human rights pro­mote ‘choice’ contra freedom, con­formism versus ima­gin­a­tion. Children are given rights against their par­ents, pa­tients, stu­dents and wel­fare re­cip­i­ents are termed ‘cus­tomers’ and are offered con­sumer rights and fake ‘choices.’ In western cap­it­alist so­ci­eties, freedom and choice have be­come the mantra of politics. Rights have be­come re­wards for ac­cepting the dom­inant order but they are of little use to those who chal­lenges it.

Rancière’s ‘ex­cessive’ sub­jects, who stand for the uni­versal from a po­s­i­tion of ex­clu­sion, have been re­placed by iden­tity and so­cial groups seeking re­cog­ni­tion and lim­ited re-​distribution. The ex­cluded have no ac­cess to rights which is fore­closed by polit­ical, legal and mil­itary means. Economic mi­grants, refugees, pris­oners in the war on terror, tor­ture vic­tims, in­hab­it­ants of African camps, these ‘one use hu­mans’ at­test to the ‘in­human’ in the midst of hu­manity. They are the in­dis­pens­able pre­con­di­tion and proof of the im­possib­ility of human rights. The law not only cannot un­der­stand the ‘sur­plus sub­ject’, its op­er­a­tion pre­vents its emer­gence. At that point we send them abroad ‘along medi­cines and clothes, to people de­prived of medi­cine, clothes and rights.’38 As Wendy Brown put it, rights not only ‘mask by de­pol­it­i­cising the so­cial power of in­sti­tu­tions such as private prop­erty or the family, they or­ganise mass pop­u­la­tions for ex­ploit­a­tion and reg­u­la­tion’.39 The dark side of rights leads to the in­ex­or­able rise in sur­veil­lance, clas­si­fic­a­tion and con­trol of in­di­viduals and populations.

7. The French Declaration cre­ated a dual norm­ative legacy. First, ‘people are born free and equal’; second, there is a (moral and legal) right to res­ist­ance and re­volu­tion. The equality maxim can be in­ter­preted in three ways. Jeremy Bentham, fol­lowing Edmund Burke, in­sisted that read as con­stative the Declaration is hope­lessly mis­leading, a false and il­le­git­imate pas­sage from a false is to an in­valid ought. The human child is not born free but weak, vul­ner­able, ut­terly de­pendent for sur­vival. Similarly, the in­fant is not born equal but in­ferior, pathetic, sub­jected to others. Natality throws us in a world not of our choosing. The ac­ci­dents of class, race, gender etc be­fall and in­scribe us into hier­archies, con­di­tions and de­term­in­a­tions. Dike de­term­ines being.

Liberal legal philo­sophy in­ter­prets the state­ment as a reg­u­lative prin­ciple with lim­ited il­loc­u­tionary force. Men are not born but ought to be­come free and equal. The state of un-​freedom and in­equality ne­ces­sit­ates the in­ter­ven­tion of polit­ical and legal in­sti­tu­tions. Yet ‘even where it is re­cog­nized, the equality of ‘men’ and of ‘cit­izens’ only con­cerns their re­la­tion to the con­sti­tuted juridico-​political sphere.’40 Liberal or­tho­doxy uses in­sti­tu­tional (legal, polit­ical, mil­itary) means to spread lim­ited freedom and formal equality. This is the basis of ‘equality’ le­gis­la­tion with its mar­ginal ef­fects as well as of the war on Iraq. The cri­tique of ideo­logy com­pel­lingly shows why the norm­ative reading was doomed to fail. Techne acts as dike’s pal­li­ative.

Communism reads equality in con­junc­tion with the right to res­ist­ance and re­volu­tion. The French and the Russians placed the idea of equality on the world stage through their self-​authorising re­volu­tions. The techne of re­volu­tion con­fronted the pre-​modern dike of world. But legal equality has re­pro­duced the gap between rich and poor. Equality of op­por­tun­ities means that out­comes on the output side will closely follow the dif­fer­en­tial in­puts. Inequality cre­ated in the name of equality is an ex­treme symptom of con­tem­porary adikia; it fuels the sense of in­justice, re­vives the dormant right to res­ist­ance and fer­ments the techne of re­bel­lion. Communism’s norm­ative call, which edu­cates mil­it­ants, res­ults from the failure of the promise of equality. It turns equality from a con­di­tioned norm into Badiou’s un­con­di­tional axiom: People are free and equal; equality is not an ob­jective or ef­fect but the premise of ac­tion.41 Whatever denies this simple truth cre­ates a right and duty of res­ist­ance. Late modern adikia pits the per­form­ative of ax­io­matic equality against its pale reg­u­lative ver­sion. ‘The sub­ject is only par­tially the sub­ject in­spired by the event…social agents share, at the lever of a situ­ation, values, ideas, be­liefs, etc. that the truth…does not put en­tirely into ques­tion.’42 Axiomatic equality mo­tiv­ates mil­itant sub­jects in late modernity.

The law re­jects and de­letes the right to res­ist­ance and re­volu­tion. Yet, it keeps coming back like the repressed. Most modern states were founded against the pro­to­cols of con­sti­tu­tional leg­ality. They are the result of re­volu­tion, vic­tory or de­feat in war, co­lo­nial oc­cu­pa­tion or lib­er­a­tion. Revolutionary vi­ol­ence sus­pends law and con­sti­tu­tion and jus­ti­fies it­self by claiming to be founding a new state, a better con­sti­tu­tion and a just law to re­place a cor­rupt or im­moral system. It ap­peals to a right to re­volu­tion which, while un­co­di­fied, ac­com­panies like a ghostly shadow every es­tab­lished order. At the point of its oc­cur­rence, the up­rising is con­demned as il­legal, brutal, evil. But when it suc­ceeds, it is ret­ro­spect­ively le­git­im­ized as a so­cial pal­in­gen­esis and as ex­pres­sion of the etern­ally re­turning right to rebel against injustice.

The founding vi­ol­ence is re-​enacted in dis­torted forms in the great pa­geants cel­eb­rating na­tion, state or re­gime; or, is repressed in acts of en­force­ment of the new law and in­ter­pret­a­tion of the new con­sti­tu­tion. The French re­volu­tion was ret­ro­spect­ively le­git­im­ized by its Declaration des droits de l’homme, the American by the Declaration of Independence and the Bill of Rights. These doc­u­ments carry the con­stituent vi­ol­ence of their found­a­tions, even though they have con­cealed them under the con­sti­tuted rep­res­ent­a­tions and in­ter­pret­a­tions. Behind every le­gis­lative and ex­ec­utive act of the state lies a ‘right to law’ based on the con­stituent force that in­aug­ur­ated the legal system. Similarly, law’s re­luctant ac­cept­ance of a lim­ited right to protest and strike ac­know­ledges that the right to re­volu­tion cannot be elim­in­ated even if it is written out of the constitution.

Public dis­order and in­sur­rec­tions are sub­jective re­sponses to the adikia of law and symp­toms of its repressed found­a­tions. They are routinely con­demned by the ruling order as un­demo­cratic. This happened re­cently during the miners strike, the anti-​globalization demon­stra­tions, the Greek cam­paigns against the neo-​liberal re­forms. Yet, his­tory is full of in­sur­rec­tions and riots which, con­demned as they were at the time, changed con­sti­tu­tions, laws and gov­ern­ments. Protests mostly chal­lenge Benjamin’s con­serving vi­ol­ence of law, breaking public order reg­u­la­tions in order to high­light greater in­justices. As long as the pro­testers ask for this or that re­form, this or that con­ces­sion how­ever im­portant, the state can ac­com­modate it. What the state fears is the fun­da­mental chal­lenge to its power by a force that can trans­form the re­la­tions of law and present it­self as having a right to law. This ‘right to law’, based on the ret­ro­spective le­git­im­a­tion of ori­gins, sup­ports state ac­tion; by the same token, it re­mains vul­ner­able and sub­ject to chal­lenge since it ex­poses the vi­olent found­a­tions of the state and the repressed and ghostly right to re­volu­tion. This right is the im­possible and for­bidden kernel of law, the real that sus­tains normal leg­ality and rights. It al­ways re­turns like the repressed.

The same ap­plies to the axiom of equality. The formal equality of rights has con­sist­ently sup­ported in­equality; ax­io­matic or arith­metic equality (each counts as one in all rel­evant groups) is the im­possible boundary of rights cul­ture.43 As Badiou put it, ‘anyone who lives and works here, be­longs here.’44 It means that health­care is due to everyone who needs it, ir­re­spective of means; that rights to res­id­ence and work be­long to all who find them­selves in a part of the world ir­re­spective of na­tion­ality; that polit­ical activ­ities can be freely en­gaged by all ir­re­spective of cit­izen­ship and against the ex­plicit pro­hib­i­tions of human rights law.45

Paraphrasing Badiou, we can con­clude that rights are about re­cog­ni­tion and dis­tri­bu­tion amongst in­di­viduals and com­munities; ex­cept that there is a right to re­volu­tion. The right to resistance/​revolution against what denies the axiom of equality forms the norm­ative maxim of the com­munist idea. The com­bin­a­tion of equality and res­ist­ance pro­jects a gen­eric hu­manity op­posed both to uni­versal in­di­vidu­alism and com­munit­arian closure. The uni­ver­salist claims that cul­tural values and moral norms should pass a test of uni­versal ap­plic­ab­ility and lo­gical con­sist­ency and often con­cludes that if there is one moral truth but many er­rors, it is in­cum­bent upon its agents to im­pose it on others. Communitarians start from the ob­vious ob­ser­va­tion that values are context-​bound and try to im­pose them on those who dis­agree with the op­press­ive­ness of tra­di­tion. Both are ver­sions of hu­manism which, having de­cided what counts as human, follow it with a stub­born dis­regard and find everything that res­ists them expendable.

The in­di­vidu­alism of uni­versal prin­ciples for­gets that every person is a world and comes into ex­ist­ence in common with others, that we are all in com­munity. Being in common is an in­tegral part of being self: self is ex­posed to the other, it is posed in ex­ter­i­ority, the other is part of the in­timacy of self. Being in com­munity with others is the op­posite of common being or of be­longing to an es­sen­tial com­munity. Most com­munit­arians, on the other hand, define com­munity through the com­mon­ality of tra­di­tion, his­tory and cul­ture, the various past crys­tal­lisa­tions whose in­es­cap­able weight de­term­ines present pos­sib­il­ities. The es­sence of the com­munit­arian com­munity is often to compel or ‘allow’ people to find their ‘es­sence’, common ‘hu­manity’ now defined as the spirit of the na­tion or of the people or the leader. We have to follow tra­di­tional values and ex­clude what is alien and other.

From the com­munist per­spective, hu­manity has no found­a­tion and no ends, it is the defin­i­tion of ground­less­ness. Its meta­phys­ical func­tion lies not in a philo­soph­ical es­sence but in its non-​essence, the in­cessant sur­prising of the human con­di­tion and its ex­posure to the event that rad­ic­ally changes the world. Revolution and equality are brought to­gether by the eternal dia­lectic of adikia, the con­front­a­tion of techne and dike. Alain Badiou ar­gues that the idea of com­munism helps pre­pare ourselves, our family and friends for the sur­prise of the event, for new pos­sib­il­ities out of the im­possible.46 Yet no idea of com­munism and no theory of justice can achieve this without the warm grip of in­justice. Outrage at in­justice and the de­cision to con­front it can only de­velop against the claims to order (dike), which today in­clude rights and (formal) equality. Revolutionary equality is both the re­jec­tion and the sub­la­tion of rights culture.

The neo-​liberal state com­bines the func­tions of cap­it­alist en­ter­prise and muscleman for the market. The adikia hy­po­thesis and the com­munist re­sponse with its cent­rality of the en­during struggle between techne and dike, cannot wait for the with­ering away of state and law. Communism cannot sur­vive if it aban­dons its op­pos­i­tion to the cap­it­alist state. But gen­eric com­munism ex­ists also in the here and now, when mil­it­ants resist in Latin favellas, French ban­lieus or the Athens streets pro­claiming the equal sin­gu­larity of all against the un­equal dif­fer­ences sanc­tioned by the state. Its ac­tion re­vives the right to dis­sent and re­bel­lion as the highest form of freedom. In the pro­cess, rights change from in­di­vidual en­ti­tle­ments and pos­ses­sions to a new con­cep­tion of ‘being in the right’ or ‘right-​ing being’:47 giving equally to each what is due to all. It may be that only the idea of com­munism can save rights.

Costas Douzinas is Professor of Law and Director of the Birkbeck Institute for the Humanities, University of London

Show 47 foot­notes

  1. Claude Lefort, The Political Forms of Modern Society, Cambridge: Polity, 1986; Etienne Balibar, ‘Citizen Subject’, in E. Cadava, P. Connor and J. L. Nancy (eds.) Who Comes after the Subject (New York, Routledge, 1991); ‘The Rights of the Man and the Rights of the Citizen’, in Masses, Classes, Ideas: Studies on Politics and Philosophy be­fore and after Marx (J. Swanson trans.) (New York Routledge, 1994); Jean-​Francois Lyotard, ‘The Other’s rights’, in On Human Rights Stephen Shute and Susan Hurley (eds.) (New York, Basic Books, 1993); Jacques Rancière ‘Who is the Subject of the Rights of Man?’ in Ian Balfour and Eduardo Cadava, And Justice for All?, 103: 2/​3 South Atlantic Quarterly (2004) 297.
  2. Alain Badiou, Ethics (Peter Halward trans.) (London, Verso, 2001)
  3. Slavoj Zizek, The Ticklish Subject (London, Verso, 1999), 215 – 228; The Fragile Absolute (London, Verso, 1990) 54 – 69, 107 – 1.
  4. Michael Hardt and Antonio Negri, Empire (Harvard University press, 2000) 393 – 414.
  5. Costas Douzinas, Human Rights and Empire (Routledge, 2007), Chapters 1 and 12.
  6. Costas Douzinas, The End of Human Rights (Oxford, Hart, 2000).
  7. Karl Marx, On the Jewish Question’, in Early Texts (Oxford Blackwell, 1971) 102.
  8. Karl Marx, ‘Critique of the Gotha Programme’ in Selected Writings (David McLellan ed,), (Oxford: Oxford University Press, 1977) 569.
  9. Jewish Question, 104.
  10. Karl Marx , ‘The Class Struggle in France: 1848 to 1850’, 88.
  11. Bloch’s com­bin­a­tion of uto­pi­anism, in­terest in nat­ural law and qual­i­fied sup­port for the com­munist states meant that he did not fea­ture in the pan­theon of western Marxists, des­pite his af­finity with Walter Benjamin and the Frankfurt School. See Vincent Geoghegan, Enrst Bloch, London: Routledge, 1996 and J. O. Daniel and T. Moylan eds, Not Yet: re­con­sid­ering Ernst Bloch, London: Verso, 1997.
  12. Richard Tuck, Natural Rights the­ories, Cambridge: Cambridge University Press, 1979, Chapter 1.
  13. Ernst Bloch, Natural Law and Human Dignity (Dennis Schmidt trans) (Cambridge Mass., MIT Press, 1987), 217.
  14. ibid., 191.
  15. Peter Halward, ‘Introduction’ in Halward ed., Think Again: Alain Badiou and the Future of Philosophy (London, Continuum, 2004), 17.
  16. Ernesto Laclau, ‘An Ethics of Militant Engagement’ in Peter Halward op.cit., 134, 135.
  17. This trans­la­tion com­bines ele­ments from a number of trans­la­tions em­phas­ising both the on­to­lo­gical and norm­ative char­acter of the frag­ment with its abund­ance of terms such as dike, adikia and tisis (re­par­a­tion). Nietzsche in his early Philosophy in the Tragic Age of the Greeks trans­lates: ‘Whence things have their origin, they must also pass away ac­cording to ne­ces­sity; for they much pay the pen­alty and be judged for their in­justice ac­cording to the or­din­ance of time. Hermann Diels trans­lates ‘but where things have their origin, there too their passing away oc­curs ac­cording to ne­ces­sity; for they pay re­com­pense and pen­alty to one an­other for their reck­less­ness, ac­cording to firmly es­tab­lished time’ (Fragment of Presocratics quoted in Heidegger op.cit. at 41). Finally J. M. Robinson, trans­lates as ‘Into those things from which ex­isting things have their coming into being, their passing away too, takes place ac­cording to what must be; for they make re­par­a­tion to one an­other for their in­justice ac­cording to the or­din­ance of time’, An Introduction to Early Greek Philosophy (Boston: Houghton Mifflin, 1968), 34. Martin Heidegger, ‘The Anaximander Fragment’ in Early Greek Thinking ( D F Crell and F Capuzzi transl.) (New York: Harper and Row, 1975) ex­am­ines the various (mis)translations of the frag­ment.
  18. Ibid. 41.
  19. Jacques Derrida, Spectres for Marx: The State of Debt, the Work of Mourning and the New International (New York, Routledge, 1994), 23 – 9.
  20. Jean-​Francois Lyotard in Heidegger and the ‘jews’ (A. Michel and A. Roberts trans.) (Minneapolis, University of Minnesota Press, 1990); S. Ross, Injustice and Restitution: The Ordinance of Time (New York: State University of New York Press, 1993), 4. See also a su­perb ex­egesis of Heidegger’s text in Jacques de Ville, ‘Rethinking of the no­tion of a “higher law”: Heidegger and Derrida on the Anaximander frag­ment’, 20 Law and Critique 59 – 78 (2009).
  21. Heidegger dis­cusses the Ode on Man in Introduction to Metaphysics (R. Mannheim trans.) (New York, Doubleday Anchor, 1961), 155 ff.
  22. ibid. 163.
  23. Stephen Ross, Injustice and Restitution (SUNY Press, 1993) 10.
  24. ‘That is what is un­just. Not the op­posite of the just, but that which pro­hibits that the ques­tion of the just and the un­just be, and re­main, raised’, Jean-​Francois Lyotard, Just Gaming (W. Godzich trans. Manchester, Manchester University Press, 1985), 66 – 7. Derrida’s ‘in­decon­stuct­ib­ility’, ‘in­cal­cul­ab­ility’ and un­con­di­tion­ality of justice leads to the same con­clu­sion. Justice is al­ways to come, but we do not know its nature and cannot the­orise it be­sides pro­claiming its rad­ical oth­er­ness.
  25. J.-F. Lyotard, ‘A l’ Insy (Unbeknownst) in Miami Theory Collective ed. Community at Loose Ends, Minnesota University Press, 42 – 8, 46.
  26. ibid., 44,43.
  27. Slavoj Zizek, For they know not what they do (Verso, 2008) 101.
  28. Michel Villey, Le droit et les droits de l’homme (Paris, PUF, 1983), 118 – 25.
  29. Norberto Bobbio, The Age of Rights (Cambridge, Polity, 1996), 88 quoting Mirabeau.
  30. Immanuel Kant, The Metaphysics of Morals (Cambridge University Press; 2nd edi­tion, 1996) 162. See also Stathis Kouvelakis, Philosophy and Revolution (Verso, 2008).
  31. Douzinas, The end of human rights (Oxford, Hart, 2000), Chapters 10 and 11.
  32. Chantal Mouffe, On the Political (London, Routledge, 2005), 8 – 9
  33. Jacques Rancière, Disagreement (Julie Rose trans.) (Minneapolis, University of Minnesota Press, 1998); On the Shores of Politics (Liz Heron trans.) (London, Verso, 1995); ‘Who is the Subject of the Rights of Man?’ in Ian Balfour and Eduardo Cadava, And Justice for All?, 103: 2/​3 South Atlantic Quarterly (2004) 297.
  34. Alain Badiou, ‘The Communist Hypothesis, 49 New Left Review (2008).
  35. Rancière, ‘Who is the Subject of Human Rights’ op. cit., 304.
  36. For the ob­vious links and some dif­fer­ences between Badiou’s and Rancière’s theory of politics, see Badiou, Metapolitics (London, Verso, 2005), Chapters 7 and 8 and Rancière in present volume.
  37. Jacques Rancière, Hatred of Democracy (London, Verso, 2006) 57.
  38. Rancière, Subject, op. cit., 307.
  39. Wendy Brown, States of Injury (Princeton, Princeton University Press, 1995), 99.
  40. Rancière, Hatred, 57.
  41. Alain Badiou, Metapolitics (Verso, 2005) Chapters 6,7 and 8.
  42. Ernesto Laclau, ‘An Ethics of Militant Engagement’ in Peter Halward op.cit., 134, 135.
  43. Badiou, ‘Truths and Justice’ in Metapolitics, 96 – 106.
  44. Quoted in Jason Barker, ‘Translator’s Introduction’ in Alain Badiou, Metapolitics, xv.
  45. Art 19 of ECHR bans for­eigners from ex­er­cising polit­ical rights.
  46. In this book
  47. Costas Douzinas, The end of human rights, 209 – 216.

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