The Martinican poet and philosopher Édouard Glissant called for a “right to opacity” throughout his work. Speaking about small countries in the Caribbean in his 1981 Caribbean Discourse, he said, “We demand the right to opacity.” He would reiterate this claim in his 1990 Poetics of Relation, writing again, in the “For Opacity” chapter of that book, “We demand the right to opacity.” In his 1997 Treatise on the Whole-World,he tapped back into the “new interest” in his demand: “I reclaim for all the right to opacity, which is not confinement.” And he added there about opacity: “Let it be a celebration.” Lastly, and suggesting continuity across his theoretical work, in his final single-authored book, Philosophy of Relation, Glissant returned to the concept of “the right to opacity.”

What do these selections about the right to opacity have to do with legal theory and critical theory? And in what contexts would such a strange and abstract rights claim make sense? 

One way for lawyers, activists, historians, and practitioners to think with Glissant’s “right to opacity” is to read it back into history as a summary term for claims to cultural rights. Read this way, “the right to opacity” helps legal thinkers to understand how Indigenous nations have leveraged rights claims in language legible to nation-states while simultaneously asking those nation-states to protect and respect diverse minority cultural traditions that remain illegible, or opaque, to most people in the nation. 

By looking at some examples of how Indigenous peoples in the Americas have used rights claims, I will also suggest that one contribution of Glissant’s “right to opacity” is that it reminds us that some legal traditions have always theorized politics and ethics together. In using such a perplexing rights claim, Glissant suggests a connection between legible rights claims (politics) and the refusal to comprehend and control others (ethics). If rights always contain corresponding duties, then the right to opacity implies a duty for majority citizens to respect and defend minority rights not only in law (politics) but also through how they live (ethics). 

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In a 2016 op-ed in the Guardian, Lakota elder and historian LaDonna Brave Bull Allard argued that “the water protectors at Standing Rock… are fighting for our children’s rights to clean drinking water.” In a 2020 op-ed also in the Guardian, Waorani leader Nemonte Nenquimo said to the Western world, “Your civilization is killing life on earth.” 

Some understandings of human rights would see these two claims as separate: the former legal and the latter ethical; the former making a claim on the US state of North Dakota and the latter making a claim on everyone in the West. But I suggest that we can read these claims together. In other words, sometimes rights claims also ask us to rethink ethics, and other times responding to ethical demands requires establishing and protecting rights. 

By placing opinion pieces in the Guardian, Allard and Nenquimo—who have defended Indigenous land rights in the so-called United States and Ecuador, respectively—are making claims on publics much wider than merely those in countries who have jurisdiction over their people’s treaty-bound land. Their wide-reaching claims teach us that advancing human rights can include legal struggles within states as well as ethical invitations across states. 

In this way, human rights claims can be understood not only as calling for new laws, but also as requests asking ordinary people to change how they live. 

To read rights claims thus, as ethical invitations, matters for three reasons. 

First, it means that when our rights claims do not win legal victories, we need not consider those losses as total “failures.” Yes, legal changes matter—we do want to stop the pipeline or to convince our country to join the climate treaty. At the same time, along the way we are trying to start from a shared political vocabulary (of rights) and then to use that shared vocabulary to transition to a broader set of practices that are receptive both to the land on which we stand and to the others with whom we share that land. 

For instance, although the Xukuru nation won a case at the Inter-American Court of Human Rights in 2018, Brazil under Jair Bolsonaro did not fully implement this victory with regard to stopping the harassment of Xukuru leaders or repatriating ancestral land to the nation. Nevertheless, the Xukuru have continued making claims to human rights. That they have done so suggests that they never viewed human rights claims as only about changing the laws of the state. It implies that they also used rights claims to offer a broadly legible political/ethical vocabulary that has linked the Xukuru struggle to other life-affirming efforts, including Occupy Wall Street and Standing Rock. 

Second, to read rights claims as ethical demands shows that the critique that rights claims reflect a colonial imaginary is misguided. One version of this critique suggests that when Indigenous or other dispossessed people leverage rights claims, they have succumbed to the (colonial) legal tools of the European Enlightenment and thus have lost the anti-colonial or non-Western potential that might have been contained in their societies. 

But using rights claims does not mean that a people suddenly stops practicing their distinct cultural practices. Rights claims and distinct cultural practices can go together; again, this is precisely what Glissant suggested in the abstract phrase “the right to opacity.”

Thinking through the lens of Glissant’s “right to opacity” in my book Choose Your Bearing: Édouard Glissant, Human Rights and Decolonial Ethics, I suggest that when a people uses human rights claims, this use does not necessarily reflect their full political imaginary, nor does it demonstrate the ideal form of society that the community has passed down through generations. Rather, a dispossessed people often takes up rights claims to make a request on those who are implicated in their dispossession. 

In making these requests, many Indigenous or dispossessed peoples strategically start from the language that is the most broadly legible to their audience. Most people in London or New York do not know the Waorani or Lakota language, much less their metaphysics. Consequently, Waorani and Lakota leaders make claims in terms that should resonate with their audience, including in the language of rights. These claims are part of a longer decolonial tradition of rights claims, which, as Steven L. B. Jensen has argued, has driven the global human rights movement.

Third and finally, the reading of rights claims as requests for some to change how they live reminds us that the law is not the principal end of political life. A victory in an international court or a reformed constitution is itself significant. But time and time again, as Derrick A. Bell Jr. stressed, court decisions struggle to effect changes in how people relate to one another. 

Too often, citizens in Western countries act as if once the gavel strikes the sound block or the ink dries on a bill, justice has been achieved. Reading rights claims as ethical requests does not let us off the hook so easily. It means that while we readers of the Guardian or Critical Legal Thinking certainly can (and do) celebrate court and policy victories, we ultimately need to be more reflexive about how we live our lives in a very ordinary, everyday sense. 

In making such reflections, we might find that justice looks not only like a new law passed in the halls of power, but also like taking it upon ourselves to divest from our university- or NGO-provided “green” portfolios, whose environmental, social, and governance (ESG) stocks still have holdings in oil and gas. We might have to abandon “respectability” and “professionalism” at work because our presentable suits and ties are often made by enslaved children. We might advocate for public transit instead of buying an electric car, whose battery requires lithium mined on Indigenous land. 

And we might have to say no to our friends who invite us to vacation in Vanuatu because we have started to see that the International Court of Justice’s clarification regarding states’ obligations to protect the climate is not just a legal question. It also has to do with how Pacific Islanders are asking the world to understand and respond to its land and water. 

Beyond the above more direct political or legal readings, I also suggest that it is precisely in remaining abstract, relatively undefined, and indeed vague that Glissant’s right to opacity asks his reader to think of other possible meanings of the term, and thus invites his reader into the creative and collective performance of the right. 

For rights claims are not just about making legal changes; they are also about listening to others and changing our lives accordingly. One group that has explained some of the ethical implications of rights claims is the Al-Haq Center for Applied International Law. It is not a coincidence that in Arabic “Haq” suggests not just “right” or “law” but also “truth” or “reality.” 

In Arabic, then, a rights claim already carries ethical connotations that are often lost in Anglophone and Francophone contexts. As Wael Hallaq has stressed, the tradition of Islamic law already links law and ethics, which often remain separate in European legal traditions, giving rise to the need for movements such as Critical Legal Studies in the first place.

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To conclude, we might reflect on the original reason why Glissant needed to articulate the right to opacity, namely, how Western companies, militaries, universities, and countries have sought and continue to seek to “comprehend” others, meaning not just to understand them but in turn to grasp and control them. This orientation to difference has severe implications for law today, especially for immigration laws. As the jazz musician and philosopher Jacques Coursil noted in a working paper about cultural differences, “[I]f European nations, in the collapse of their colonial empires, had not swallowed up their histories, they would take a different view of the migrations and creolizing phenomenon they are going through.” 

By situating opacity again and again in a rights claim—by reiterating that opacity is something we need to take a stand “for”—Glissant reminds his readers that cultural difference alone rarely impedes imperial “comprehension,” so what is needed is for us to mobilize for opacity in the face of ongoing legal and educational attempts to seize and dismantle difference. 

And legal discourse already contains within it a rights claim for protecting against unjust seizure: the right to asylum. Perhaps in addition to protecting minority and cultural rights, Glissant’s right to opacity could be read as a right to asylum—not just from nation-states, but from the companies and devices that try to seize our attention and leisure, two fundamental requirements for developing a culture. 

In Treatise of the Whole-World, Glissant talks about the importance of how we read and write. He somewhat predicts the internet and artificial intelligence, outlining a future in which “books would… be abandoned in libraries, which would become deconsecrated cathedrals and where those who continued to consult these strange works would be considered weird people, or ill in some way.” 

In talking about how digital technologies have compressed space and time, Glissant then raises a critical question: “But could it not be that this very speed, which is so invaluable, constitutes a lack?”  

He offers an initial answer to his own question: 

“In our increasingly accelerated dealings with the diversity of the world, we need pauses, times for meditation, where we step aside from the flood of information that is provided for us so that we can start putting some order into our accidental encounters. The book is one of these moments. After the first period of excitement, of limitless appetite for the new means of acquiring knowledge that computer technology affords us, it is good to find a balance, and for reading to regain its function of stabilizing and regulating our desires, our aspirations, our dreams.”

Here Glissant is not prescribing a withdrawal from the world, or at least he is not suggesting that we withdraw too far (see his opening to Poetics of Relation). But he is asking us to pause, meditate, step aside, and begin to bring some order to our diverse and unexpected encounters, much like an anthropologist might begin to give coherence to their field notes. 

It is noteworthy that Glissant writes again here in terms of a “we.” For he is not just describing a lone individual’s relationship to finding stability and orienting their dreams. Rather, Glissant is talking about the tasks of a community, some “we,” just as how in Caribbean Discourse he said, “We demand a right to opacity” (emphasis mine).  

And so the right to opacity has drifted far from only making a claim on a government. More resonant with Indigenous or Islamic legal traditions than with British, French, or American individualized rights claims, Glissant’s “right to opacity” also frames an ethical task: not only, in our increasingly nationalistic times, that we work to defend minority traditions, but also, in our heightened neoliberal moment, that we work to defend the free time so needed to read, write, think, struggle, and celebrate together. In these ways, practicing the right to opacity might look like what the contemporary poet Christopher Kondrich gives voice to in writing “I choose to love / as asylum from that which presses me to hate.”

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Benjamin P. Davis is a Postdoctoral Fellow in African American Studies at Saint Louis University. He is the author of two books; Simone Weill’s Political Philosophy: Field Notes from the Margins; and Choose Your Bearing: Édouard Glissant, Human Rights and Decolonial Ethics. With Kris F. Sealey, he is the co-editor of the volume Creolizing Critical Theory: New Voices in Caribbean Philosophy.