Liberal theories from Immanuel Kant to John Rawls present the self as a solitary and rational entity endowed with natural characteristics and rights and in full control of himself. Rights to life, liberty, and property are presented as integral to humanity’s well-being. The social contract (or its heuristic restatement through the “original position”) creates society and government but preserves these rights and makes them binding on government. Rights and today human rights are pre-social, they belong to humans precisely because they are humans. We use this natural patrimony as tools or instruments to confront the outside world, to defend our interests, and to pursue our life plans.
This position is sharply contrasted by Hegelian and Marxist dialectics, hermeneutics and psychoanalysis. The human self is not a stable and isolated entity that, once formed, goes into the world and acts according to pre-arranged motives and intentions. Self is created through constant interactions with others, the subject is always inter-subjective. My identity is constructed in an ongoing dialogue and struggle for recognition, in which others (both people and institutions) acknowledge certain characteristics, attributes, and traits as mine, helping create my own sense of self. Identity emerges out of this conversation and struggle with others which follows the dialectic of desire. Law is a tool and effect of this dialectic; human rights acknowledge the constitutive role of desire.
Hegel’s basic idea can be put simply. The self is both separate from and dependent upon the external world. Dependence on the not-I, both the object and the other person, makes the self realize that he is not complete but lacking and that he is constantly driven by desire. Life is a continuous struggle to overcome the foreignness of the other person or object. Survival depends on overcoming this radical split from the not-I, while maintaining the sense of uniqueness of self.1Costas Douzinas, “Identity, Recognition, Rights or What Can Hegel Teach Us About Human Rights?” Journal of Law and Society 29 (2002), 379–405.
Identity is therefore dynamic, always on the move. I am in ongoing dialogue with others, a conversation that keeps changing others and re-drawing my own self-image. Human rights do not belong to humans and do not follow the dictates of humanity; they construct humans. A human being is someone who can successfully claim human rights and the group of rights we have determines how “human” we are; our identity depends on the bunch of rights we can successfully mobilize in relations with others. If this is the case, rights must be linked with deep-seated psychological functions and needs. From the heights of Hegelian dialectics, we now move to the much darker territory of Freudian psychoanalysis.
Jus vitam institutare, the law constitutes life, states a Roman maxim. For psychoanalysis it remains true. We become independent, speaking subjects by entering the symbolic order of language and law. But this first ‘symbolic castration’ must be supplemented by a second that makes us legal subjects. It introduces us into the social contract leaving behind the family life of protection, love, and care. The symbolic order imposes upon us the demands of social life. God, King, or the Sovereign act as universal fathers, representing an omnipotent and unitary social power, which places us in the social division of labor. If, according to Jacques Lacan, the name of the father makes us speaking subjects, the name of the Sovereign turns us into legal subjects and citizens.
This second entry into the law denies, like symbolic castration, the perceived wholeness of family intimacy and replaces it with partial recognitions and incomplete entitlements. Rights by their nature cannot treat the whole person. In law, a person is never a complete being but a persona, ritual or theatrical mask, that hides his or her face under a combination of partial rights. The legal subject is a combination of overlapping and conflicting rights and duties; they are law’s blessing and curse. Rights are manifestations of individual desire as well as tools of societal bonding. Following the standard Lacanian division, rights have ‘symbolic’, ‘imaginary’, and ‘real’ aspects. Their symbolic function places us in the social division of labour, hierarchy, and exclusion, the imaginary gives us a (false) sense of wholeness while the real disrupts the pleasures of the symbolic and the falsifications of the imaginary. Psychoanalysis offers the most advanced explanation of the constitutive and contradictory work of rights.
The symbolic function of rights bestows legal personality and introduces people to independence away from the intimacy of family. Law and rights construct a formal structure, which allocates us to a place in a matrix of relations strictly indifferent to the needs or desires of flesh and blood people. Legal rights offer the minimum recognition of abstract humanity, formal equivalence and moral responsibility, irrespective of individual characteristics. At the same time, they place people on a grid of distinct and hierarchical roles and functions, of prohibitions, entitlements and exclusions. Social and economic rights add a layer of difference to abstract similarity; they recognize gender, race, religion, and sexuality, in part moving recognition from the abstract equality of humanity to differentiated qualities, characteristics, and predications. Human rights may promise universal happiness but their empirical existence and enforcement depends on genealogies, hierarchies of power and contingencies that allocate the necessary resources ignoring and dismissing expectations or needs. The legal person that rights and duties construct resembles a caricature of the actual human self. The face has been replaced by an image in the cubist style; the nose comes out of the mouth, eyes protrude on the sides, forehead and chin are reversed. It projects a three-dimensional object onto a flat canvas.
The integrity of self denied by the symbolic order of rights returns in the imaginary. Human rights promise an end to conflict, social peace and well-being (the pursuit of happiness was an early promise in the American Declaration of Independence). A society of rights offers an ideal place, a stage and supplement for the ideal ego. As a man of rights, I see myself as someone with dignity, respect, and self-respect, at peace with the world. A society that guarantees rights is a good place, peaceful and affluent, a social order made for and fitting the individual who stands at its centre. A legal system that protects rights is rationally coherent and closed (Ronald Dworkin calls it a “seamless web”), morally good (it has principles and the consequent “right” answers to all “hard” problems), pragmatically efficient.
The imaginary domain of rights creates an immediate, imaged and imagined bond, between the subject, her ideal ego, and the world. Human rights project a fantasy of wholeness, which unites body and soul into an integrated self. It is a beautiful self that fits in a good world, a society made for the subject. The anticipated completeness, the projected future integrity that underpins present identity is non-existent and impossible however and, moreover, differs from person to person and from community to community. Our imaginary identification with a good society accepts too easily that the language, signs and images of human rights are (or can become) our reality. The right to work, people assert, exists since it is written in the Universal Declaration, the international Covenants, the Constitution, the law, the statements of politicians. Billions of people have no food, no employment, no education, or health care — but this brutal fact does not weaken the assertion of the ideal. The necessary replacement of materiality by signs, of needs and desires by words and images makes people believe that the mere existence of legal texts and institutions, with little performance or action, affects and completes bodies.
The imaginary promoted by human rights enthusiasts presents a world made for my sake, in which the law meets (or ought to and will meet) my desires. This happy identification with the social and legal system is based on misrecognition. The world is indifferent to my being, happiness or travails. The law is not coherent or just. Morality is not law’s business and peace is always temporary and precarious, never perpetual. The state of eu zein or well-being, the terminal point of human rights, is always deferred, its promise postponed its performance impossible. For the middle classes, to be sure, human rights are birth-right and patrimony. For the unfortunates of the world, on the other hand, they are only vague promises, fake supports for offering obedience, with their delivery permanently frustrated. Like the heaven of Christianity, human rights form a receding horizon that allows people to endure daily humiliations and subjugations.
The imaginary of rights is gradually replacing social justice. The decolonization struggles, the civil rights and counter-cultural movements fought for an ideal society based on justice and equality. In the human rights age, the pursuit of collective material welfare has given way to individual gratification and the avoidance of evil. The rights imaginary goes into overdrive when it turns images into “reality,” when legal clauses and terms replace food and shelter, when weasel words become the garb and grab of power. Rights emphasize the individual, his autonomy, and his place in the world. Like all imaginary identifications, they repress the recognition that the subject is inter-subjective and that the economic and social order is strictly indifferent to the fate of any particular individual. According to Louis Althusser, ideology is not “false consciousness” but is made up of ways of living, practices, and experiences that misrecognize our place in the world. It is “the imaginary relationship of individuals to their real conditions of existence.” In this sense, human rights are ideology at its strongest but one very different from that of Michael Ignatieff.2Michael Ignatieff, Human Rights as Politics and Ideology (Princeton and Oxford: Princeton University Press, 2001).
Finally, the symbolic and imaginary operation of rights finds its limit in the real. We hover around the vortex of the real: the lack at the core of subjectivity both causes our projects to fail and creates the drive to continue the effort. When we make a demand, we not only ask the other to fulfill a need but also to offer us unreserved love. An infant, who asks for his mother’s breast, needs food but also asks for his mother’s attention and love. Desire is always the desire of the other and signifies precisely the excess of demand over need. Each time my need for an object enters language and addresses the other, it is the request for recognition and love. But this demand for wholeness and unqualified recognition cannot be met by the big Other (language, law, the state) or the other person. The big Other is the cause and symbol of lack. The other person cannot offer what the subject lacks because he is also lacking. In our appeal to the other, we confront lack, a lack that can neither be filled nor fully symbolized.
Rights allow us to express our needs in language by formulating them as a demand. A human rights claim involves two demands addressed to the other: a specific request in relation to one aspect of the claimant’s personality or status (such as to be left alone, not to suffer in one’s bodily integrity, and to be treated equally), but, in addition, a much wider demand to have one’s whole identity recognized in its specific characteristics. When a person of colour claims, for example, that the rejection of a job application amounted to a denial of her human right to non-discrimination, she makes two related but relatively independent claims. The rejection is both to an unfair denial of the applicant’s need for a job but also it denigrates her wider identity. Every right therefore links a need of a part of the body or personality with what exceeds need, the desire that the claimant be recognized and loved as a whole and complete person.
The subject of rights tries to find the missing object that will fill lack and turn him into a complete integral being in the desire of the other. But this object does not exist and cannot be possessed. Rights offer the hope that subject and society can become whole: ‘if only my attributes and characteristics were given legal recognition, I would be happy’; ‘if only the demands of human dignity and equality were fully enforced, society would be just.’ But desire cannot be fulfilled. Rights become a fantastic supplement that arouses but never satiates the subject’s desire. Rights always agitate for more rights. They lead to new areas of claim and entitlement that again and again prove insufficient.
Today human rights have become the mark of civility. But their success is limited. No right can earn me the full recognition and love of the other. No bill of rights can complete the struggle for a just society. Indeed the more rights we introduce, the greater the pressure is to legislate for more, to enforce them better, to turn the person into an infinite collector of rights, and to turn humanity into an endlessly proliferating mosaic of laws. The law keeps colonizing life and the social world, while the endless spiral of more rights, acquisitions, and possessions fuels the subject’s imagination and dominates the symbolic world. Rights become the reward for psychological lack and political impotence. Fully positivized rights and legalized desire extinguish the self-creating potential of human rights. They become the symptom of all-devouring desire—a sign of the Sovereign or the individual—and at the same time its partial cure. In a strange and paradoxical twist, the more rights we have the more insecure we feel.
But there is one right that is closely linked with the real of radical desire: the right to resistance and revolt. This right is close to the death drive, to the repressed call to transcend the distributions of the symbolic order and the genteel pleasures of the imaginary for something closer to our destructive and creative inner kernel. Taking risks and not giving up on your desire is the ethical call of psychoanalysis. Resistance and revolution is their social equivalent. In the same way that the impossible and disavowed real organizes the psyche, the right to resistance forms the void at the heart of the system of law, which protects it from sclerosis and ossification.3Costas Douzinas, “Adikia: On Communism and Rights,” in The Idea of Communism Costas Douzinas and Slavoj Žižek eds (London: Verso, 2010), 81–100. Also available on Critical Legal Thinking: https://criticallegalthinking.com/2010/11/30/adikia-on-communism-and-rights/
We can conclude that rights are about recognition (symbolic) and distribution (imaginary); except that there is a right to resistance/revolt.
Costas Douzinas is Professor of Law and Director of the Birkbeck Institute for the Humanities, University of London.
- 1Costas Douzinas, “Identity, Recognition, Rights or What Can Hegel Teach Us About Human Rights?” Journal of Law and Society 29 (2002), 379–405.
- 2Michael Ignatieff, Human Rights as Politics and Ideology (Princeton and Oxford: Princeton University Press, 2001).
- 3Costas Douzinas, “Adikia: On Communism and Rights,” in The Idea of Communism Costas Douzinas and Slavoj Žižek eds (London: Verso, 2010), 81–100. Also available on Critical Legal Thinking: https://criticallegalthinking.com/2010/11/30/adikia-on-communism-and-rights/