Seven Counter-theses on Human Rights

A response to Costas Douzinas' Seven Theses on Human Rights

Street Art – Pablo Herrero and David de la Mano – Winter Haven

In his 2007 book Human Rights and Empire: The Political Philosophy of Cosmopolitanism, Costas Douzinas asks Are human rights a defensive barrier against domination and oppression or the ideological gloss of an emerging empire?” (p.viii) In posts on this blog Douzinas has reprised many of the themes he unpacked in that volume. In the form of Seven Theses, Douzinas set out the heart of his political and philosophical critique of Human Rights as they have come to be practiced in our contemporary world. In the main he is critical of human rights, seeing them as a partner to neoliberal capitalism, and a palliative distraction from the real work of fighting social injustice. Douzinas enjoins us instead to the hope of radical equality, not the individualist moralizing of human rights; but, he adds, his hope is a utopia, a no-place, a cosmopolitanism to come. In the following seven counter-theses, I respond to Douzinas, hoping to extract from his deliberations the heart of his utopia, but in a way which might assist those of us who — recognising the limitations of human rights — still hold out the hope that they can be a tool for liberation and emancipation in our global world: our cosmopolis, today.

1. The changing meaning of the “human” does have a key role in sourcing moral and legal rules.

Douzinas’ first thesis immediately alerts us to the critical sensibility with which he engages the study of human rights. A close reading of his first thesis will also alert us to the challenge that faces Douzinas in his effort to persist with human rights and the political hope they hold out in our time — a hope that surely is at the heart of his wait for “the rights to come”. Douzinas’ first thesis is a cautionary tale on the human in human rights: what does this word “human” mean? What — or who — is “humanity”? How has the term been used by its poets and political operatives in different times and places? And for those alive in these times and places: who made the grade, who was considered worthy of the tag; and who remains in- or sub-human?

The critical point is that because ideas of the human of this change, we are ill-advised to take it as the basis for moral or legal rules. The force of the tale Douzinas tells, though, is not just that meanings change; it is rather that this term is particularly open to forms of abuse: define certain people as in- or sub-human and they are excluded. It is this capacity to exclude which animates Douzinas here, which leads him to reject some accounts of humanity (and of the universalism which goes with them) as false conceptions.

Put changeability and exclusion together and you have a problem, Douzinas tells us. But is this right? He gives us mixed messages here: his first thesis is that we cannot use “humanity” as the basis for moral or legal norms; his response is the speculative suggestion that we use anthropos in place of the human. It is entirely unclear how this new category could possible avoid the same fate as the one it replaces.

A better route might be to explore why it is that Douzinas thinks — as clearly he does — that we can intelligibly talk of false conceptions of humanity. Indeed, the broader story he tells is one in which we are able to use the changing and un-fixed meanings of ideas like humanity and human rights to achieve political and ethical ends which we believe not to be false. The changing usage of terms like “human” must be acknowledged; but Douzinas seems mistaken to believe that such change renders them useless. Many in the human rights movement would argue that on the contrary, it makes them all the more powerful — and that this in turn reinforces the imperative to ensure that the ways in which they do come into use for setting moral and legal rules are indeed not false.

2. Amalgams of power and morality do structure how human rights are seen and used, but they cannot preclude unauthorized desire and re-appropriation.

In his account of the revolutions and declarations of the 18th century that “helped construct modern universalism”, Douzinas further articulates the problem at the heart of human rights: the realization of those rights depends on state support; a human without state citizenship is an alien without rights. Thus, “strictly speaking human rights do not exist.” But this is only half the story — and no doubt its telling is essential to keep us all sober. But exclusions are not the only outcome of rights discourse; and one gives up the fight before it has begun if one concedes the authoritative account of rights — as either institutions or moral ideas — simply to those who drive the institutions of the state at any one time. The false accounts of humanity are identifiable — even by Douzinas, when in full critical flight. Even when these false accounts are instantiated in the exclusionary terms of “division and classification” that make up our global world, it is clear that those who suffer within the divisions and classifications desire something different, and that they are quite prone to taking matters into their own hands and not accepting the categories which they are given, however constrained they might be or become by existing structures. Douzinas is too quick in his claim that the contemporary history of human rights is an always failing struggle; his “rights to come” would have no chance whatsoever if those who claim them were to accept his historical pessimism. Douzinas must look beyond those who use human rights to legitimize Western power dominance, to those who use it in their own way, on behalf of their own fights against a false and exclusionary humanity.

3. Reducing all to colonialism: the ultimate triumph of colonialism?

Is it possible to see something more than colonialism in human rights? Is the failure to do so itself to continue the colonial gaze — the inability to see beyond oneself? There is a strong risk of this in the way that Douzinas’ account of human rights never seems able to step outside of that space in which human rights is co-opted by the hegemonies of Western power, neoliberalism and so on, to the spaces (intellectual, political, social and cultural) where it is not. Douzinas’ third thesis is a good example of this: he critiques the way in which human rights have been imbricated with neoliberal capitalism, and claims that any other potential within human rights cannot be released so long as the dominant powers are utilizing human rights. He concludes that “despite differences in content, colonialism and the human rights movement form a continuum…”.

But this would seem to be a move too far. In this very thesis he argues that it is the interpretation of human rights upon which much depends: a negative, economistic interpretation may well support neo-liberalism for example, but differently interpreted, human rights “could subject the inequalities and indignities of late capitalism to withering attack”. Only “could”? I’m not sure why it is that Douzinas cannot hear the veritable chorus of voices doing precisely this, a great many of whom are not from the West, and do not find human rights to be “abstract provisions” which can legitimately be interpreted by neoliberal capitalists for their purposes. Instead they find them concrete supports for their claims to political voice and material welfare. (See here for some recent discussions on this). On this view, human rights are not in fact the perfect candidate to legitimate neoliberal capitalist penetration, because on any straightforward reading, the consequences of neoliberal capitalism are in stark contrast to the outcomes demanded by human rights — housing and education for all, for example. The concern here is that Douzinas’ focus on the extent of the West’s colonial grasp on human rights subsumes any space for that part of the story where something different is taking place. Here, getting beyond colonialism might require getting beyond colonialism, so to speak.

4. Those who dispute humanity know the human.

As we have seen, Douzinas cares little for those who speak for humanity, including those using the language of human rights. In his fourth thesis he shows us how it is that universalism and communitarianism, when made absolute, “can find everything that resists them expendable” — and all in the name of humanity. This is grist to Douzinas’ mill: ”humanity cannot act as a normative principle”. But in the next breath humanity is something which has a normative claim upon us: Humanity “…is discernable in the incessant surprising of the human condition and its exposure to an undecided open future. Its function lies… in the endless process of redefinition and the necessary but impossible attempt to escape external determination.” And the individual human? “Every single person forms a phenomenological cosmos of meaning and intentionality, in relations of desire [,] conversation and recognition with others.”

I have no dispute with these claims, but as I have argued elsewhere:

the apparent inability of aspects of the intellectual tradition within which he works to offer something which stays in this world, in which the hurt, need, and injustice is experienced (rather than pointing us to a utopia “to come”) relates to what its intellectual foundations assume about the human experience and enterprise. The capacity to affirm a “cosmopolitanism for today” is going to require a philosophy which allows one to make claims and judgements, however nuanced, about the way things should be. Not everything can be subject to flux, contestation, and agonistic difference if one is serious about claiming that certain ways of being are better than others…. (Langlois, A.J., 2012. Human Rights in Crisis? A Critical Polemic Against Polemical Critics. Journal of Human Rights, 11(4))

5. “Our [rights] claims both reference and reiterate social conventions and norms, and yet have forces and effects that exceed them.” (K.Zivi, 2011 p. 19)

There is much with which I agree in Douzinas’ concerns about the way in which rights can be linked to the depoliticization of politics, but the simple statement that the “main effect of human rights today is to depoliticize politics” is, I think, misleading — far better is his formulation that “human rights both conceal and affirm the dominant structure of the period and help combat it”. Douzinas argues that “rights claims reinforce rather than challenge established arrangements”, and he enlists as evidence, on the one hand, the continually failing claims of aliens and others like them, and on the other hand, the social and identity groups who do not press beyond “recognition and limited redistribution” (as if these people and those results themselves count for nothing in human rights terms!!).

Douzinas asks “can human rights reactivate a politics of resistance?” Karen Zivi, who I have quoted above, has a rather different and altogether more optimistic take on the potential of human rights at this point. In her recent book she has argued that human rights can play this role.  A key part of her intention is to bring out how features of the process of making rights claims extend democratic politics. To this end, her cases focus on people who are performing rights claims in order to achieve emancipation and political participation. Zivi’s basic claim is that the practices associated with rights claiming draw us into a politics which has a democratic character. Most fundamentally, rights claiming is “a practice of and an invitation to political judgment.” (Zivi 2011, 117)

This idea of “political judgment” points to the fact that a politics of resistance — such as Douzinas wishes to see renewed — is going to depend on a lot more than what human rights alone can bring to the table; in this sense, Douzinas’ claim that human rights depoliticize politics, and his question as to whether or not human rights can reactivate a politics of resistance, are both misplaced: in neither case should human rights be looked to as the sole factor in play.

6. The human rights imaginary, like any other, can be bent in many directions; nonetheless, resistance to injustice is at its core and is what maintains the hope placed in it.

Thesis six, “Desire”, is rich and multilayered in its exploration of the symbolic function of human rights. I would also submit that it encapsulates the profound tensions in Douzinas’ stance towards human rights. On the one hand human rights embodies something he supports, as comes through in the passion with which he rails against the perversions of human rights (for example, with his commentary on their use in the Iraq War). On the other hand, human rights are deeply ambivalent — they lead people on a pointless chase (the real world will not respect your rights, only your wealth or power), or they themselves function by a logic which undermines the goals which they ostensibly serve (Douzinas’ concern that as the imaginary of rights replaces older social justice movements, it drives a culture of individual desire satisfaction and simple moralism which displaces and forces out broader principles of justice and equality).

Human rights is criticized here by Douzinas for the way in which it engenders or panders to a range of insatiable desires, where the gap between desire and availability generates false expectations and denies integrity. The world is indifferent to our happiness or our travails, and by suggesting otherwise the human rights imaginary somehow sells us out.

This cannot be the end of the matter however — those who foster belief in human rights are part of the world; those who have changed the world for the better are part of the world; those who are fortunate enough to have a good life are also a part of the world, and demonstrate that it can be real. And then, Douzinas himself seems to want to push for social realities to which, on his account, the world should be equally indifferent: radical equality and justice, and in their name (presumably) resistance and revolt. For all his insightful interrogation of the human rights imaginary and its symbolic operation, Douzinas fails here to draw out how the “self creating potential of human rights” should be set apart from rights as fantastic agitators for desires that can never be fulfilled. This must be seen as crucial, because his sixth thesis closes with the claim that the right to resistance and revolution are our ethical call in the social domain — but resistance against what? — revolution to what end? What is it about the imaginary and symbolism of this right that exempts it from the impossibility of all other rights, that grants it ethical passage, and that displaces the world’s continued indifference?

7. “Yes” to cosmopolitanism, equality and a human rights for the people.

It is with great difficulty that Douzinas affirms human rights. He often comes a hair’s breadth away from identifying human rights with neoliberal capitalism and empire — the “human-rights-for-export” version of human rights (Iraq, etc) clearly being front and centre here. And yet, “human rights can claim their redemptive role…”. They must be returned to the tradition of resistance and struggle; they must not be left as an individualist and moralizing palliative that blunts the desire for radical equality. It is this — radical equality — which feeds what little hope Douzinas has for the redemption of human rights. “Resistance and radical equality map out an imaginary domain of rights which is uncannily close to utopia.” But, as I have written elsewhere:

This invocation of utopia is a very odd place for Douzinas to end up. He has spent the preceding pages railing against the way in which the key instruments we have at our disposal for the pursuit of global justice have been depoliticized or otherwise railroaded in the interests of powerful elites. He urges a renewal of struggle and resistance and his methodology is for us to lose ourselves in raptures over a utopia—a no-place… . The other as a singular and unique being, the infinite otherness with which we should be put in touch, Douzinas does little to show us how to relate these ethical formulations to the day-to-day emergencies of injustice which are highlighted in other parts of his work.

What Douzinas does do is link his Utopia with recent events in Tunisia, Tahrir Square, Puerta del Sol, Syntagma Square and the like. He sees these as expressions of the social bond of the utopia, the principle of its excess, the bond between singularities “which cannot be turned into essential humanity, nation, or state.”

But, as we have also seen, the moment when radical desire for equality (if that is what it indeed is) manifests itself in these and other locations, the moment when they become “cities of resistance” — is only a moment, if that. Here Douzinas seems to identify certain cities and squares with his “cities of resistance.” But they are not, actually the same. Life in Tahrir Square goes on; radical desire for equality must meet the next day and the one after that, it must meet the demand for political and institutional reform, and as it does so it must inhabit not a utopian no-place, but a lot of very mundane every day places where “the law, the principle of the polis” is at issue. Radical desire may well be for something that is “banned and declared impossible by the law”, but in the actual cities and places that Douzinas references, this is the (impossible?) task that citizens are taking on. It is my hope that they will realize some measure of radical equality, some emancipation and liberation. For Douzinas, they are militants in the ongoing fight between justice and injustice.

The outstanding questions for Douzinas’ account of these and all such fights, it seems to me, is how participants should think of themselves as “cosmopolitans-to-come” once they are in the position to materially effect relations of justice and injustice. Whether wearing the label of human rights activist, -jurist, -commissioner, -legislator or various assorted “normal” human rights policy and practice roles (as opposed to street protestor for radical equality), how then does Douzinas guide us as we seek justice? It is not clear to me that Douzinas provides, in his utopian cosmopolitanism to come — which will never come — the philosophical or political resources which might aid those who are prepared to respond to his call that we match the injustice of this world with an efficacious desire for radical equality.

Anthony J. Langlois is an Associate Professor in the School of International Studies at Flinders University, Adelaide, Australia.

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  1 comment for “Seven Counter-theses on Human Rights

  1. 30 July 2013 at 10:29 am

    Anthony,

    Thanks for this thoughtful critique, which throws into relief the differences in theoretical approaches to human rights. I don’t think Douzinas’ approach involves any intention to, as you put put it, “guide us as we seek justice”. If we read his work on human rights together with his analysis of the notion of critique (see “Oubliez Critique” 2005 Law & Critique 47–69), it becomes clear that the idea of replacing one law (human rights) with another law (normative guidance) towards some teleological vision of justice is anathema. I’m fairly sure he wouldn’t claim to have any privileged knowledge of what justice “is”.

    Interestingly, the materiality of his approach can be seen in his focus instead on the “sense of injustice” or adikia that seizes us, overwhelms us and literally constitutes us (see: http://criticallegalthinking.com/2010/11/30/adikia-on-communism-and-rights/). We may have (always inadequate) theories of justice, but injustice is something we sense in the bowels of our being. For Douzinas, the right to resistance is the only right that corresponds to this primordial sense of injustice. The cosmopolitanism to come (where the ‘to come’ is clearly a Derridean trope that can be read parallel to the idea of the democracy to come [see: http://criticallegalthinking.com/2013/04/16/the-democracy-to-come-notes-on-the-thought-of-jacques-derrida/%5D) and his idea of utopia (which is strongly influenced by Ernst Bloch) can be understood as the promise of change in exercising the right of resistance in the here and now, a promise that is never foreclosed by a teleological view of justice, as if justice could in some way be perfected. Cosmopolitanism to come and utopia are therefore, paradoxically, both not-yet and here and now, existing as the ongoing tension between cosmos and polis. I would be tempted to think this parallel to the relation of the nomad to the ideological state apparatus in Deleuze & Guattari.

    You are certainly right in pointing out that decisions need to be made, institutions built, the day after considered. Judging from his relatively recent public conversation with Žižek (see: http://criticallegalthinking.com/2012/03/14/rights-politics-and-paradise-notes-on-zizek/), I think Douzinas would agree with you. But I think he might insist that “we” first claim (from ourselves) and put into effect (by and for ourselves) our right of resistance. In other words, we must first “create a world”, then think about building institutions.

    Best wishes,

    Gilbert

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