Human Rights On Trial: A Genealogy Of The Critique Of Human Rights [1st Edition] 1108424392, 9781108424394, 1108438156, 9781108438155, 1108334881, 9781108334884

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Human Rights on Trial

The first systematic analysis of the arguments made against human rights from the French Revolution to the present day. Through the writings of Edmund Burke, Jeremy Bentham, Auguste Comte, Louis de Bonald, Joseph de Maistre, Karl Marx, Carl Schmitt and Hannah Arendt, the authors explore the divergences and convergences between these ‘classical’ arguments against human rights and the contemporary critiques made both in Anglo-American and French political philosophy. Human Rights on Trial is unique in its marriage of the history of ideas with normative theory, and its integration of British–North American and continental debates on human rights. It offers a powerful rebuttal of the dominant belief in a sharp division between human rights today and the Rights of Man proclaimed at the end of the eighteenth century. It also offers a strong framework for a democratic defence of human rights. Justine Lacroix is Professor of Politics at the Université libre de Bruxelles, Belgium. She is Associate Editor of the European Journal of Political Theory. Jean-Yves Pranchère is Professor of Political Theory at the Université libre de Bruxelles, Belgium. He is Associate Editor of the European Journal of Social Sciences.

Human Rights in History Edited by Stefan-Ludwig Hoffmann, University of California, Berkeley Samuel Moyn, Yale University, Connecticut This series showcases new scholarship exploring the backgrounds of human rights today. With an open-ended chronology and international perspective, the series seeks works attentive to the surprises and contingencies in the historical origins and legacies of human rights ideals and interventions. Books in the series will focus not only on the intellectual antecedents and foundations of human rights, but also on the incorporation of the concept by movements, nation-states, international governance, and transnational law. A full list of titles in the series can be found at: www.cambridge.org/human-rights-history

Human Rights on Trial A Genealogy of the Critique of Human Rights Justine Lacroix Université libre de Bruxelles

Jean-Yves Pranchère Université libre de Bruxelles

Translated by Gabrielle Maas

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108424394 DOI: 10.1017/9781108334884 Originally published in 2016 by Editions du Seuill as Le Procès des droits de l’homme: Généalogie du scepticisme démocratique, written in the French language by Justine Lacroix and Jean-Yves Pranchère (ISBN 9782021181005) © Editions du Seuil 2016 First published in English by Cambridge University Press in 2018, translation by Gabrielle Maas. © Justine Lacroix and Jean-Yves Pranchère 2018 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2018 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library. ISBN 978-1-108-42439-4 Hardback ISBN 978-1-108-43815-5 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Acknowledgements Introduction: From the Rights of Man to Human Rights?

page vi 1

1 Critiques of Human Rights in Contemporary Thought

25

2 Human Rights against Inheritance A Conservative Critique: Edmund Burke

59

3 Human Rights versus Social Utility A Progressivist Critique: Jeremy Bentham and Auguste Comte

91

4 Human Rights against the Rights of God A Theologico-Political Critique: Louis de Bonald and Joseph de Maistre

127

5 The Rights of Man against Human Emancipation A Revolutionary Critique: Karl Marx

157

6 Human Rights against Politics A Nationalist Critique: Carl Schmitt

187

7 The ‘right to have rights’ Revisiting Hannah Arendt

206

Conclusion: Towards a Political Understanding of Human Rights

229

Index

247

v

Acknowledgements

We gratefully acknowledge the support of the European Research Council, which funded this book with a Starting Grant entitled ‘RESIST. Human Rights versus Democracy? Towards a Conceptual Genealogy of Skepticism about Human Rights in Contemporary Political Thought (2010–2016). The Centre de théorie politique (CTP) at the Université libre de Bruxelles, our home institution, has provided us with an exceptionally inspiring and collegial working environment. The authors would like to thank all past and current CTP members, and in particular Christopher Hamel and Carlo Invernizzi-Accetti for their commitment to the RESIST project. An earlier version of Chapter 5 was published as Justine Lacroix and Jean-Yves Pranchère, ‘Karl Marx fut-il un opposant aux droits de l’homme?’, Revue française de science politique, 3/2012 (vol. 62), pp. 433– 451. Chapter 7 draws on arguments first explored in Justine Lacroix, ‘The Right to Have Rights and French Political Philosophy. Conceptualising a Cosmopolitan Citizenship with Arendt’, Constellations. An International Journal of Democratic and Critical Theory, 22/1, 2015, pp. 79–90. We would like to thank the editors of both journals for granting permission to develop these ideas further here. Many colleagues have generously shared their ideas and time with us: Julie Allard, Sarah Al Matary, Carolina Armenteros, Isabelle Aubert, Catherine Audard, Serge Audier, Etienne Balibar, Olivier Beaud, Thomas Berns, Samuel Chambers, Bertrand Binoche, Antoon Braeckman, Emmanuelle Bribosia, Frédéric Brahami, Bruno Bernardi, Louis Carré, Manuel Cervera-Marzal, Anne-Sophie Chambost, Véronique Champeil-Desplats, Francis Cheneval, Antoine Chollet, Laurent Clauzade, Jean Cohen, Catherine Colliot-Thélène, Juliette Corsy, Philippe Crignon, Ludivine Damay, Robert Damien, Martin Deleixhe, Florence Delmotte, Isabelle Delpla, Helder De Schutter, Alexandre Escudier, Jean-Marc Ferry, Rainer Forst, Stéphanie Francq, Michael Freeden, Marie Gaille, Antoine Garapon, Raf Geenens, Raphaël Gely, Pierre Glaudes, Florent Guénard, Sophie Guérard de la vi

Acknowledgements

vii

Tour, Axel Gosseries, Ayten Gündogdu, Michel Hastings, Bonnie Honig, James Ingram, Engin Isin, Bruno Karsenti, Jean-François Kervégan, Jan Kleinheisterkamp, Michael Kohlhauer, Cécile Laborde, Pieter Lagrou, Arnaud Leclercq, Annabelle Lever, Alain Loute, Lois McNay, Kalypso Nicolaïdis, Samuel Hayat, Murray Hunt, James Ingram, Léa Ipy, Pierre Manent, John Milbank, Nobutaka Miura, Samuel Moyn, Janie Pélabay, Anne Philipps, Arnd Pollman, Alain Policar, Jean-Claude Poizat, Olivier Rémaud, Isabelle Rorive, Pierre Rosanvallon, Denis Salas, Andrew Schaap, Diogo Sardinha, Réjane Sénac, Céline Spector, Tristan Storme, Etienne Tassin, André Tosel, Bernadette Tulkens, Françoise Tulkens, Yannick Vanderborght, Philippe Van Parijs, Hajime Yamamoto and Patrick Weil, as well as our students at the Université libre de Bruxelles, Université Saint-Louis–Bruxelles, Sciences Po Paris and Sciences Po Lille. Our thanks go to all.

Introduction: From the Rights of Man to Human Rights?

Fragmented social relations, the twin demise of authority and tradition, the breakdown of behavioural norms and constraints: all these are the outcome, according to their critics, of the uses and abuses of human rights in contemporary democratic societies. We are, they say, seeing the perverse effects of a ‘religion of human rights’ to which Europe has rashly devoted its heart and mind, and the supposed burgeoning of rights, which goes hand in hand with an unchecked rise of expectations, is catapulting Western democracies into an age of never-ending demands. This emerged clearly in France in Spring 2013 during the demonstrations against equal marriage (‘mariage pour tous’) whose opponents deplored the excesses of a movement-driven left striving for an unbounded extension of rights – from the right to same-sex marriage to the enfranchisement of non-nationals or the right of same-sex couples to adopt.1 This view is now so widespread that we may well ask: are we witnessing the backlash against a vocabulary of human rights accused of dispensing with the limits essential to the existence of a body politic worthy of the name, and thereby ‘annihilating law’?2 Both in the press and in political discourse, rampant accusations of ‘human rights-ism’ – attacking the fixation with human rights that allegedly blinds their proponents to constraints on political action – suggest that such is the case. While this so-called human-rights-ism masquerades as a misunderstood ‘ethic of conviction’, say its critics, it is in fact the contemporary face of a morally and politically disastrous lack of responsibility.3 The campaign against same-sex marriage in spring 2013, with its scorn for the supposed narcissism of claims to purely individual rights, and its reminders of the 1

2 3

Nicolas Truong, ‘Vers un “printemps” anti-Mai 68?’, Le Monde, Saturday 25 May 2013, p. 20. On this topic, see the contributions of Ludivine Bantigny, François Cusset, JeanPierre Le Goff and Chantal Delsol in the same edition. Alain Finkielkraut, Causeur, 3, June 2013, p. 35. For a summary of some instances of this expression used both on the right and left, see François L’Yvonnet, ‘Du droit-de-l’hommisme’, Human Rights and their Possible Universality, Academy of Latinity, Rio de Janeiro, 2009, pp. 207–219, www.alati.com .br/fra/publicacoes_2009_oslo.html.

1

2

From the Rights of Man to Human Rights?

demands and limitations of community life (whether family, social or political), can be seen as giving broader voice to a rejection of ‘human rights politics’ that has run through various schools of political philosophy for over thirty years. Few political theorists, of course, would endorse rejection of human rights as such – of the normative and legislative corpus, in other words, that forms the basis for the rule of law in democratic states. Likewise, there are few critics who would contest the inclusion of declarations of rights in the legal framework of the republican state. Yet the apparent consensus that has made human rights a dominant discourse of the last forty years has not prevented the development of a parallel critical argument which sets out to expose the ambiguities that consensus may conceal. Such attacks specifically target the use made of human rights in contemporary democracies. Criticisms across the board accuse the new ‘human rights’ of being a kind of purely moral and anti-political utopia that seeks to break down constraints inherent in the nature of historical community. To elevate human rights to the status of self-standing political ideal, say their critics, is to endanger a necessarily specific social and political order that simply cannot be reduced to such an abstract principle. In its most radical versions, this argument suggests that there are two distinct conceptions of democracy: democracy understood as the ‘political form’ of a necessarily limited entity, according to this view, is entirely different from democracy as the ‘form of a society’ without limits.4 Jean-Claude Milner, who lays out this theory, contrasts ‘classical human rights – those of 1789’, which ‘embody a limiting principle’, with ‘the new doctrine of human rights, which has entirely taken the place of its predecessor’ and arises from a ‘register of limitlessness’.5 These grievances add up to a picture that is the more fragmented because historical diagnosis of the problem wavers from the very start: does the story of ‘boundless’ human rights begin with the French Revolution of 1789, as conservative liberals who see Edmund Burke as a forebear might say? Or in the 1830s with the presidency of Andrew Jackson in the United States, as Jean-Claude Milner attempts to show from his reading of Tocqueville? Or is it in fact the outcome, as Marcel Gauchet seems to suggest, of a belated or postmodern individualism that took hold in the 1970s? Before answering these questions, in order to 4 5

Jean-Claude Milner, Les Penchants criminels de l’Europe démocratique, Lagrasse, Verdier, 2003, pp. 41–46 and 92–94. Ibid. As Jacques Rancière observes (La Haine de la démocratie, Paris, La Fabrique, 2005, p. 36), Milner’s argumentation has the advantage of giving ‘a concise résumé of a large body of literature’ on the perils of democratic individualism.

The Decline or Dormancy of Human Rights

3

understand the context around criticisms of human rights, we must start with an overview of the recent history of uses of human rights in political discourse and practice. The Decline or Dormancy of Human Rights: The Nineteenth Century and Interwar Period Before we examine the objections raised against them, it is as well to recall that human rights have not always been the popular idea they are today, or at least since the American and French revolutions. We are undoubtedly living in the ‘Age of Rights’6 in so far as human rights are the only political and moral concept that has enjoyed near-universal endorsement – whether by the adoption of the Universal Declaration of Human Rights in 1948, the ratification of the two International Covenants of 1966 (respectively on civil and political rights, and economic, social and cultural rights) or via the recognition of human rights in the vast majority of national constitutions. This invocation of human rights is of course largely hypocritical; yet the fact they are so widely espoused is no less significant ‘since hypocrisy, we know, is the homage that vice pays to virtue (. . .) human rights is today the single, paramount virtue to which vice pays homage’.7 Over half of the world’s population may be subject to daily violations of their rights, yet (short of a temporary state of emergency) no state can openly admit these violations. The fact remains, however, that this revived reference to human rights is a recent development. According to Jeremy Waldron and Samuel Moyn, after the great Declarations of the eighteenth century, the idea of human rights went into a decline during the nineteenth and first half of the twentieth centuries. The ‘giants’ of social theory in this period (Comte, Marx, Durkheim and even Weber, despite his seminal role in shaping ‘methodological individualism’) no longer saw society as a product of human will but instead as a process existing in complex relation to the intentions of its agents. With this view in mind, the image usually attached to declarations of rights – that of a social contract between independent individuals who settle rationally on rules to govern their association – no longer seemed to cover the new understanding of social life. In an article of 2009, Waldron identifies three overarching reasons for what he calls the ‘decline’ of a discourse of the rights of man in the 6 7

Louis Henkin, The Age of Rights, New York (NY), Columbia University Press, 1990, p. xviii. Ibid., p. xviii.

4

From the Rights of Man to Human Rights?

nineteenth century. The first has to do with the ‘revulsion’ occasioned by the bloody turn taken by the French Revolution.8 Though rejections of human rights rhetoric reached their crisis point in counter-revolutionary thought – which in one fell swoop writes off the entire historical tract running from 1789 to 1815 as a catastrophe attributable to Enlightenment principles – this view also runs through the work of certain liberal thinkers who sought to preserve the constitutional heritage of 1789 while also arguing that immovable demands for the ‘rights of man’ had led to the Terror of 1793. In this view, the politics of the rights of man comes to be identified with the figure of Robespierre – so much so that it would soon serve as a standard, in a deliberate reversal of this stigmatisation, for the Society of the Rights of Man (Société des droits de l’homme), founded in Paris in 1830 to promote a programme of radical, social and European democracy. Waldron’s second suggestion has to do with the about-turn in midnineteenth-century Britain that saw the image of human rights move from contestation to consolidation of the established order. Associated less with Rousseau or Robespierre than with Locke, human rights were now attached to the intangible right to property and rigid defence of the rule of law, and entered the Whig lexicon which constituted ‘almost establishment talk’. In this context, the rights of man hardly seemed like tools of social change.9 Utilitarianism, with its insistence on collective utility, seemed a better bet for progressive aspirations than the tired rhetoric of natural right. Similarly, several progressive thinkers on the Continent preferred to reference the positivism of Auguste Comte, which dismissed the idea of ‘natural right’ as an abstraction with no social power. The third cause of this demise of human rights discourse was the emergence of national self-determination movements. Declarations of rights, of course, already proclaimed the right of groups to selfdetermination. Yet for many nineteenth-century nationalists it was the people as such that came to represent the ‘real’ entity, and the discourse of individual rights was progressively side-lined by calls for collective emancipation.10 An emblematic instance of this was the critique of human rights outlined by Mazzini, an archetypal figure of a strain of political romanticism marrying the radical nature of democratic ideals with the imperative of national unity. Mazzini’s treaty The Duties of Man, 8

9 10

Jeremy Waldron, ‘The Decline of Natural Right’, New York University Public Law and Legal Theory Working Papers. Paper 143, p. 8, referencing Georges H. Sabine, A History of Political Theory, 3rd edn., New York (NY), Holt, Rinehart and Winston, 1961, p. 542. Waldron, ‘The Decline of Natural Right’, p. 11. Waldron, ‘The Decline of Natural Right’, p. 16.

The Decline or Dormancy of Human Rights

5

published in 1860, begins by stressing that any progress made ‘during the last fifty years’ has been made ‘in the name of the Rights of man’; yet he quickly follows this with the qualification that these ‘rights of man’ have failed to solve the social question and to put an end to the widespread selfishness of individuals who, once endowed with rights, seek only their own ‘material well-being’. Indeed, the duties of man to his nation and fellow humans simply cannot be established on the basis of the absolute rights of the individual. The ‘basis’ of society lies not in rights but ‘duty’, which may extend as far as to require ‘self-sacrifice’ in the name of a ‘common faith’.11 During the nineteenth century, then, individual rights were gradually hemmed in between incipient nationalism on the one hand – whose early forms, even when democratic, were apt to subjugate the demands of law to a romantic adulation for the will or ‘soul’ of a people – and on the other a positivism which started (as we shall see with Comte) by reappropriating the anti-liberal heritage of counter-revolutionary thought for its own ends, and negating the very idea of law on the grounds that social totality takes precedence over activities that take place within it: ‘Natural right seemed as irrelevant to the enthusiasm with which positivists, such as Auguste Comte, conceived a new science of society and administration as to the fury and despair with which romantic and idealist literature reacted to the soullessness of modern industry.’12 Moyn gives an even more radical diagnosis of this decline, positing that the political vocabulary of human rights was (barring a few exceptions) generally ‘abandoned’ everywhere during the nineteenth century but especially in France, which had previously been the ‘epicentre’ of the rights of man.13 Moyn relies especially heavily on the thinking of Tony Judt, who argues that from 1831 to 1977 human rights were never at the heart of any debate in French political theory except the Dreyfus Affair.14 The Dreyfus Affair, however, was far more than an ‘exception’: it was a foundational event that determined the orientation of the French left for the entire twentieth century. This explains why (as Waldron himself admits) we must qualify the idea that the lexicon of the rights of man was left for dead in the nineteenth century. The century of social thought it may have been, but 11 12 13

14

Giuseppe Mazzini, Doveri dell’Uomo, London, 1860 – The Duties of Man, London, 1862, pp. 4–8, 10–12, 19, 25–27, 38. Waldron, ‘The Decline of Natural Right’, p. 16. Samuel Moyn, ‘Plural Cosmopolitanisms and the Origins of Human Rights’, in Costas Douzinas and Conor Gearty (eds.), The Meanings of Rights. The Philosophy and Social Theory of Human Rights, Cambridge, Cambridge University Press, 2014, p. 208. Tony Judt, ‘Rights in France. Reflections on the Etiolation of a Political Language’, La Revue Tocqueville, XIV, 1, 1993, pp. 67–108.

6

From the Rights of Man to Human Rights?

it was also in the nineteenth century that the concern with individuality took on new proportions. This is witnessed by the works of Alexis de Tocqueville, who saw rights as the essential condition for liberty in democratic societies. Tocqueville showed that the overlap between the sense of liberty and of the ‘civic spirit’ is ‘inseparable from the exercise of political rights’: ‘after the general idea of virtue, I know no higher principle than that of right; or rather these two ideas are united in one. The idea of right is simply that of virtue introduced into the political world.’15 The rhetoric of rights likewise remains prominent in several social campaigns such as the Chartist movement in Britain, the struggle for women’s rights or the abolition of slavery.16 The scorn of some socialists for formal rights, meanwhile, did not impede the emergence of ‘Guarantist’ socialism, based on a dogged attachment to individual liberties.17 And Marx himself, whatever his distaste for the idea of rights, had to accept that the Statutes he drafted in 1864 for the International Workingmen’s Association opened with the statement ‘that the struggle for the emancipation of the working classes is a struggle [. . .] for the establishment of equal rights and duties’.18 We might even add that the Marxist demand for the fulfilment of freely defined individual potential points the way towards an ‘anthropological basis for the notion of “human rights”’.19 We shall return to this argument in Chapter 5. Waldron uses the examples of Great Britain, the United States and German legal science to back up his theory of a decline of human rights discourse. Discussion of the German liberal jurists – who defended the rule of law in terms overdetermined by the ‘strategic’ constraints imposed on them in the authoritarian context of Prussian monarchy – lies beyond the scope of this study. We must point out, nevertheless, that human 15

16

17 18

19

Alexis de Tocqueville, De la démocratie en Amérique, vol. 1, Paris, Gallimard, 1986, p. 557 (trans. Henry Reeve, 1899). It is therefore simplistic to say, as does Moyn, that Tocqueville thought of rights merely as one amongst many on a long list of means of preserving liberty. See especially Robin Blackburn, The American Crucible. Slavery, Emancipation and Human Rights, London, Verso, 2011 and Jenny S. Martinez, The Slave Trade and the Origins of International Human Rights, New York (NY), Oxford University Press, 2012. See Serge Audier’s many works on this question, especially Le Socialisme libéral, Paris, La Découverte, 2006. In a letter of 4 November 1864 to Engels, Marx said that he had been ‘obliged to insert two phrases about “duty” and “right”’, but ‘placed them in such a way that they can do no harm’. In his Critique of the Erfurt Program, in 1891, Engels suggested replacing the expression ‘for equal rights for all’ with: ‘for equal rights and equal duties of all’, since ‘Equal duties are for us a particularly important addition to the bourgeois-democratic equal rights and do away with their specifically bourgeois meaning.’ Robin Blackburn, ‘Reclaiming Human Rights’, New Left Review, 69, May–June 2011, P. 137.

The Decline or Dormancy of Human Rights

7

rights were the subject of one of the great historiographical debates of the decade after 1900, which pitted the great German liberal jurist Georg Jellinek against the French political scientist Emile Boutmy over the origins of the 1789 Declaration.20 This has often been reduced to the dimensions of a nationalist tussle between a ‘Germanic’ appropriation of the ideals of 1789, brought back to the Protestant kernel of freedom of conscience (Jellinek), and a defence of the irreducible originality of France and Rousseau’s innovations (Boutmy). But the philosophical question was in fact a real one, since the disagreement bore on the question about the nature of human rights: is their core to be found in an intangible freedom of conscience that precedes political law and overrides any principle of sovereignty (Jellinek), or rather in the reciprocity of citizen rights which guarantee equal liberties (à la Rousseau) by subjugating individual wills to the sovereignty of the general will (Boutmy)?21 The very fact that this debate took place demonstrates that human rights had remained part of European consciousness. In his reply to Boutmy, before restating his thesis that the 1789 Declaration had American, English and Calvinist roots (rather than Lutheran – as he stressed to distance himself from nationalist agendas), Jellinek started by recalling that the Declaration was a ‘historical fact of universal significance’, and that in making ‘recognition of individual rights’ a ‘principle of public law’, France had founded the ‘modern State’ in all its contrast with the ancien régime.22 Waldron unfortunately omits from his study the role played by reference to human rights in France, where the fight for or against the republic that was the guiding thread of the French ‘long nineteenth century’ was always a struggle over the memory of human rights, over their interpretation and their perpetuation. Alphonse Aulard, who held the first chair in the history of the French Revolution at the Sorbonne from 1885 to 1922 and 20

21

22

Georg Jellinek, Die Erklärung der Menschen und Bürgerrechte, Leipzig, Duncker & Humblot, 1895; French translation La déclaration des droits de l’homme et du citoyen: contribution à l’étude du droit constitutionnel moderne, trans. Georges Fardis, Paris, A. Fontemoing, 1902; Emile Boutmy, ‘La Déclaration des droits de l’Homme et M. Jellinek’, Annales de l’Ecole libre des Sciences politiques, XVII, 1902, p. 415ff, in Etudes politiques, Paris, A. Colin, 1907, pp. 117–182; Georg Jellinek, ‘La Déclaration des droits de l’homme et du citoyen. Réponse à M. Boutmy’, Revue du droit public et de la science politique, XVIII, 6, 9th year, 1902, pp. 385–400. On this debate, see Marcel Thomann, ‘Origines et sources doctrinales de la Déclaration des droits’, Droits n° 8: La Déclaration de 1789, Paris, PUF, 1988, pp. 55–70; François Saint-Bonnet, ‘Regards critiques sur la méthodologie en histoire constitutionnelle. Les destinations téléologiques des options épistémologiques’, Jus politicum, 2, 2009, www.juspoliticum.com/Regards-critiques-sur-la.html (accessed 25 November 2013). Georg Jellinek, ‘Réponse à Boutmy’, p. 386. ‘The basis for this significant event’, Jellinek wrote, ‘is the official recognition of the rights of man opposite state rights.’

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co-founded the League of Human Rights (Ligue des droits de l’homme), spoke for all French republicans when he said that, The French Revolution consisted of the Declaration of Rights drafted in 1789 and finished in 1793, and of the attempts to make this declaration reality; the counterrevolution consisted in the attempts to turn the French away from acting in accordance with the principles of the Declaration of Rights, in other words in accordance with reason as revealed by history.23

To defend the republic, in Aulard’s view, meant to defend revolutionary heritage, which in turn was first and foremost that of the rights of man. This explains why human rights returned to the forefront of debate each time the republican regime had to confront the threat of counterrevolutionary subversion: Clémenceau’s creation of the Society of the Rights of Man and the Citizen (Société des droits de l’homme et du citoyen) in 1888 during the Boulangist crisis; the foundation of the League of Human Rights (Ligue des droits de l’homme) in February 1898, just as the culmination of the Dreyfus Affair in Emile Zola’s trial was giving rise to appalling anti-Semitic outbursts all over France.24 In his magisterial history of French republicanism, Claude Nicolet goes so far as to conclude that the 1789 Declaration was ‘the republican “symbol” par excellence’ in France,25 a profession of political faith which was to be preserved and nurtured by public education. Waldron’s theory of a supposed ‘decline’ of human rights, then, is an exaggeration. Moreover, Moyn’s claim that the concept had been abandoned (with the exceptions of Benjamin Constant, François Guizot and Alexis de Tocqueville) across the French political spectrum in the nineteenth century does not hold water.26 If human rights had been in the background of political and theoretical debates for a time, they were latent rather than completely absent, and this dormancy can be seen as the assumption of a step forward whose theoretical significance was beyond question. What is more, theoretical discussion of human rights, closely associated with the memory of the revolutionary establishment, continued during this period. It was merely that such discussion happened in historical terms: French political philosophers of all persuasions, from Thiers to Jaurès by way of Lamartine, Louis Blanc, 23

24 25 26

Alphonse Aulard, Histoire politique de la Révolution française, Paris, A. Colin, 1901, new edition 1926, p.782, quoted in Florence Gauthier, Triomphe et mort du droit naturel en Révolution. 1789–1795-1802, Paris, PUF, 1992, p. 113. See Pierre Birnbaum, Le moment antisémite. Un tour de la France en 1898, Paris, Fayard, 1998. Claude Nicolet, L’Idée républicaine en France, Paris, Gallimard, 1982, p. 357. Waldron, ‘The Decline of Natural Right’, art. cit., p. 29; Samuel Moyn, ‘Plural cosmopolitanisms and the origins of human rights’, art. cit., p. 208.

The Decline or Dormancy of Human Rights

9

Tocqueville and Taine,27 wrote histories of the Revolution that also served as imposing theoretical explorations. For these authors, writing revolutionary history meant tackling the institutional meaning of human rights and the problem of their entanglement with the Terror – or, as we see with Edgar Quinet, the problem of their disentanglement from the Terror. Human rights also featured in legal theorising. In France, pre-eminent jurists were debating the question of the constitutional nature of the 1789 Declaration before 1914. Political practice under the Third Republic was undoubtedly recalcitrant towards controls on constitutionality: most republicans insisted on the primacy of national sovereignty over the power of the judiciary, and therefore refused to grant the Declaration of the Rights of Man the status of a higher rule that could trump legislative or even constitutional power. Thus, without consenting to cede exclusive power over law to the legislature, the legal theorist Adhémar Esmein held that individual rights, ‘the heritage definitively won for the French’ since 1789, were adequately guaranteed by the interplay of republican institutions. Raymond Carré de Malberg, who described ‘natural right’ as ‘a contradictio in adjecto’, meanwhile denied any positive legal value to the 1789 Declaration.28 The Catholic liberal Maurice Hauriou directly counters this argument, however, taking the sequence of Declarations from 1789 to 1852 to be the ‘constitutive text of the social constitution’, and advocating judicial review of the constitutionality of laws on the basis of the declarations.29 An even more radical rejection comes from the legal theorist Léon Duguit, a disciple of Durkheim; though he had no connection with the Catholic tradition of natural right, Duguit based law on the objective and prime fact of ‘social solidarity’, and was a determined critic of natural right and the individualist metaphysics which in his view marred the Declaration of 1789. He did, however, recognise in the Declaration a ‘positive legal force’ such that ‘any law running contrary to the terms of the Declaration of Rights of 1789 would be an unconstitutional one.’30 27

28

29 30

Michelet must be added to this list: his Histoire de la Révolution française is also an essay on political philosophy – albeit possibly to a lesser degree than Edgar Quinet’s work La Révolution, whose theoretical importance has been demonstrated by Claude Lefort. (C. Lefort, ‘Edgar Quinet: la Révolution manquée’, in Essais sur le politique, Paris, Seuil, 1986, pp. 140–161). Adhémar Esmein, Eléments de droit constitutionnel, Paris, Larose, 1896, pp. 369–390; Raymond Carré de Malberg, Contribution à la théorie générale de l’Etat (1920–1922), Paris, Dalloz, 2004, I pp. 238–243, II pp. 578–582. Maurice Hauriou, Précis de droit constitutionnel (1923), Paris, Sirey, 2nd edn., 1929 p. 625. Léon Duguit, Manuel de droit constitutionnel, 1st edn., Paris, Fontemoing, 1907, pp. 8ff and 485. For an overview of these debates, see Nicolet, L’Idée républicaine en France, pp. 333–374.

10

From the Rights of Man to Human Rights?

At the same time, Jaurès shows in his analysis of the legislative actions of the French revolution that the meaning of the Declaration had always gone beyond the individualism uppermost in the mind of its authors. The ‘revolutionary idealism’ of human rights had revealed its ‘imperious logic’ in the process that led the revolutionaries – beyond their original aims, and even against their better judgement – to extend political rights, limit property rights by imposing an egalitarian principle on inheritance law, abolish slavery, and finally recognise that ‘every man has the right to subsistence’.31 ‘The human right proclaimed by the Revolution immediately took on a deeper and broader meaning than that ascribed to it by the revolutionary bourgeoisie. [. . .] The riverbed was wider than the river, and a new current would be needed – the great proletarian and human current – in order finally to fulfil the idea of justice. It is socialism alone that will imbue the Declaration of the Rights of Man with its full meaning and make all human law reality.’32 Breaking down the ‘bourgeois’ boundaries of the Declaration, refounding it on the new basis of ‘social property’, imbuing it with its full meaning – all these, for Jaurès, came to one and the same thing. This absorption of human rights into socialism converged with the mirror move of republican thought in attempting to base the idea of social right on individual rights. The combination of socialist ambitions with an insistence on ‘natural right’ which ‘no one can renounce without renouncing the very human condition’ was already present in 1848 in Charles Renouvier’s Manuel républicain de l’homme et du citoyen, which went beyond the liberties declared in 1789 to demand the ‘right to work’ and the ‘right to assistance’. Renouvier, who systematically developed his Kantian philosophy over the second half of the nineteenth century, is now unjustly forgotten; yet his work at the time exerted considerable influence, so much so that his adversary Maurras saw him as the republican philosopher par excellence.33 For another founding father of the Third Republic, the philosopher Alfred Fouillé, the job of democracy was to guarantee at once: ‘1. The liberty and equality of individual rights; and 2. Organic and voluntary solidarity between individuals within the whole’.34 In this 31 32 33

34

Jean Jaurès, Histoire socialiste, vol. I, Paris, Rouff, 1901, pp. 381, 479. Jean Jaurès, Etudes socialistes, Paris, Cahiers de la Quinzaine, 1901, p. 137. ‘Le “spirituel” de la France est dirigé par le cénacle de M. Renouvier’ ( Charles Maurras, article of 1903 reproduced in La démocratie religieuse, Paris, Nouvelle librairie nationale, 1921, p. 310). On Renouvier, see Marie-Claude Blais, Au Principe de la République. Le cas Renouvier, Paris, Gallimard, 2000. Alfred Fouillé, La démocratie politique et sociale en France, Paris, Alcan, 1910, p. 19.

The Decline or Dormancy of Human Rights

11

view, the individual rights won by the Revolution must be extended into new social rights. No surprise then that on the incentive of its second president, the socialist deputy Francis de Pressensé, the Ligue pour la défense des droits de l’homme (League for the Defence of Human Rights) moved beyond the Dreyfus Affair to turn its efforts towards economic and social rights, as well as the rights of colonised peoples and women. We must not therefore simply conflate ‘human rights’ and ‘natural right’. The revival of natural right spurred by the renaissance of Thomism in the Catholic Church during the second half of the nineteenth century went hand in hand with a virulent rejection of the heritage of the French Revolution. The translation of Thomist natural law into the lexicon of human rights would not come until much later, in the work of philosophers such as Etienne Gilson and Jacques Maritain. Vice versa, certain sociological schools which dismissed the idea of natural law as an absurdity were also at this time starting to revive human rights. To fail to distinguish between human rights and natural right, as does Claude Nicolet in his otherwise remarkable study,35 is to miss the originality and power of both Duguit’s and Jaurès’ attempts to found the essential substance of human rights on a base other than natural law, or the primacy of subjective rights. Given this, the peculiar case of France – where neither Bentham nor Burke became ‘classics’, as they had in England – should not lead us to dismiss all truth in the thesis of a ‘hibernation’ of human rights discourse during the nineteenth and early twentieth centuries. The theory is perhaps even truer of the interwar period, when the influence of Leninism and the Russian Revolution side-lined human rights-based socialism – and, vice versa, defence of rights was often associated with freedom of contract and the right to property.36 In the United States, during the so-called Lochner era – named after a 1905 Supreme Court ruling that threw out as unconstitutional a New York state law limiting working hours – invoking individual rights came to serve as a conservative weapon against social regulation in general,37 an attitude that prevailed until the end of the 1930s. When dealing with the issue of national 35

36

37

Claude Nicolet sees in Duguit’s doctrine of social law merely a ‘detour which brings him back to a form of natural law under the guise of a “social norm” – a fact which of course he refuses to recognise’ (L’Idée républicaine en France, p. 352). Yet there is no reason not to take Duguit’s attempt for what it is: the foundation of individual rights on a principle of ‘social solidarity’ that is not jusnaturalist. Once again, this observation must be nuanced. See the excellent review by Eric D. Weitz, ‘Samuel Moyn and the New History of Human Rights’, European Journal of Political Theory, 12 (1), 2013, pp. 84–93. Samuel Moyn, The Last Utopia, Cambridge (MA), Harvard University Press, 2010, p. 30.

12

From the Rights of Man to Human Rights?

minorities as one of human rights, the League of Nations meant nothing more by this than a vague appeal to states for fair treatment of inhabitants under their territorial jurisdiction. As for the unofficial human rights organisations that did exist, Hannah Arendt’s judgement of 1951 on the activists of the 1920s and 1930s is unequivocal: All societies formed for the protection of the Rights of Man, all attempts to arrive at a new bill of human rights were sponsored by marginal figures . . . The groups they formed, the declarations they issued show an uncanny similarity in language and composition to that of societies for the prevention of cruelty to animals. No statesman, no political figure of any importance could possibly take them seriously and none of the liberal or radical parties in Europe thought it necessary to incorporate into their program a new declaration of human rights.38

Yet even here we must put this diagnosis into perspective: recent works by Bruno Cabanes have highlighted the pivotal role of the First World War in discursively displacing the notion of ‘charity’ with that of ‘rights’. At the end of a thorough analysis of transnational work undertaken in the interwar period by veterans’ associations and pioneering jurists such as René Cassin, Cabanes concludes that ‘the transition from war to peace in the course of the 1920s was a key moment in the emergence of a new sense of human rights that would lead in time to the Universal Declaration of Human Rights of 1948’.39 The Revival of Human Rights Discourse However, it is without question only in the last half-century that human rights have become a sort of global lingua franca – our ‘last secular religion’, as Elie Wiesel and many others have thought of them.40 The choice of the term ‘secular religion’, first introduced by Raymond Aron in 1944 to describe totalitarian doctrines – the ‘rationalist, humanist [religion] of the socialists’ as much as the ‘irrationalist, pessimist [religion] of the Hitlerians’41 – is far from coincidental. Behind the use 38 39 40

41

Hannah Arendt, The Origins of Totalitarianism (1951), New York (NY), Meridian Books, 1958, p. 292. Bruno Cabanes, The Great War and the Origins of Humanitarianism 1918–1924, Cambridge, Cambridge University Press, 2014, p. 308. Elie Wiesel, ‘A Tribute to Human Rights’ in Yael Danieli et al. (eds.), The Universal Declaration of Human Rights. Fifty Years and Beyond, Amityville, Baywood, 1999, p. 3. Cited in Michael Ignatieff, Human Rights as Politics and Idolatry, Princeton (NJ), Princeton University Press, 2001. Raymond Aron, ‘L’avenir des religions séculières’ (La France libre, 15 july 1944), in Une histoire du XXe siècle, anthology compiled by C. Bachelier, Paris, Perrin, 2012, pp. 236 and 244. See also Eric Voegelin, Les Religions politiques (1938), trans. J. Schmutz, Paris, Cerf, 1994. For a history of this concept, see M. Angenot, Le Siècle des religions séculières, Discours social, vol. 38, Toronto, McGill University Press, 2014.

The Revival of Human Rights Discourse

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of the word ‘religion’ to describe the current hold of human rights over contemporary society lies condemnation of a dangerous confusion between the political and the spiritual, or even a new ‘opium of the people’: ‘the doctrine of the Rights of Man is the latest in a series of civil religions, the soul of a soulless world, the illusion of a world that has lost its illusions’, as Régis Debray writes in a pastiche of early Marx.42 The equation some authors have suggested, in the vague name of religion, between equal liberties and their denial by a ‘total ideology’ may seem perplexing. Yet there can be little doubt that human rights permeate contemporary political discourse (if not practice). The question then becomes when exactly the concept emerged, and this has given rise to a complex historiographical debate. The question here is less of a philosophical order (are human rights universal? Should all legitimate political action be based on them?) than a historical one: when did the belief that human rights were universal, and that they must be the litmus test for judging the legitimacy of a course of political action, start to hold sway? Without entering into the tortuous genealogical aspect here, we can identify three schools of thought following Devin O. Pendas; they argue, respectively, that this key moment occurred at the end of the eighteenth century, in the aftermath of the Second World War or at the end of the 1970s.43 The most widely accepted opinion has long been that the American Declaration of Independence of 1776 and the French Declaration of 1789 were the first steps in a process that would culminate in the events of the twentieth century. If human rights failed when conscripted to the nation-state it was ‘only to succeed in the long run’ as a result of the domino effect which soon confronted the male, white, Christian and property-owning proponents of the American and French Declarations with demands for equal rights issuing from Jewish and black communities, women and later gay rights activists.44 In this sense, Lynn Hunt argues that the guiding thread of the whole of Western political history since the early eighteenth century lies in the dynamic that places the 1948 Universal Declaration in the direct lineage of principles first laid out in 1789. This history, however, is by no means linear. Hence other authors, while not denying the connections between the late eighteenth-century 42 43 44

Régis Debray, Que vive la République, Paris, Odile Jacob, 1989, p. 173. Devin Pendas, ‘Towards a New Politics? On the Recent Historiography of Human Rights’, Contemporary European History, 21, 1, 2012, pp. 95–111. Lynn Hunt, The French Revolution and Human Rights. A Brief Documentary History, Bedford, St Martin’s, 1996, p. 3 and Lynn Hunt, Inventing Human Rights, New York (NY), Norton, 2007.

14

From the Rights of Man to Human Rights?

Declarations and that of 1948, stress that the contemporary idea of human rights only really came to global awareness with the Second World War and above all in its aftermath, when the discovery of the concentration camps made limiting the omnipotence of nation-states a matter of urgency. The horror of Nazi atrocities was arguably the force that drove international recognition of individual rights: already proclaimed among the aims of Allied warfare in the Atlantic Charter of 1941, this went further with the introduction of the concept of a ‘crime against humanity’ in Nuremberg in 1945 and culminated in the adoption of the 1948 Universal Declaration of Human Rights.45 It is these two theories – which, to borrow Marc Bloch’s phrase, arise from a common ‘idolatry of origins’ – that Samuel Moyn sets out to disqualify in his work The Last Utopia: Human Rights in History (2010), which has been hugely influential. In Moyn’s view, human rights were merely a ‘peripheral’ element of the rhetoric used both during the Second World War and after it. And since Moyn believes that there was no public awareness of the Holocaust immediately after the end of the war, these rights cannot in his view be seen as a direct response to the Jewish genocide. He argues that it was not in the mid-1940s but only thirty years later – in the second half of the 1970s – that they took on the mantle of our ‘last utopia’. Distancing himself from retrospective fêting of the ‘1948 moment’, Moyn thus underlines that the notion of human rights has occupied only a marginal position in the post-war period. Both the Universal Declaration of 1948 and the European Convention on Human Rights of 1950 are only ‘minor byproducts’ of their time, powerless to spark the public’s imagination or inspire any substantial intellectual movement in their support. As soon as they were proclaimed, Moyn posits, human rights were paralysed by their confinement to state diplomacy within the United Nations – and by the fact that they were barely taken up except by Christian personalist movements which were themselves soon associated with anticommunism and narrow defence of the West. Above all, from this angle, human rights revealed themselves incapable of solving the great dilemma of the time: the choice between a communist system and a market economy tempered by the institution of the welfare state. In the same vein, Moyn discredits the interpretation of decolonisation as a struggle for human rights. When anticolonial activists claimed human rights as their due, they understood the concept in its original 45

Danièle Lochak, Les droits de l’homme, Paris, La Découverte, 2005, p. 48. See Louis Henkin, The Age of Rights, and Jack Mahoney, The Challenge of Human Rights. Origins, Development, Significance, Oxford, Blackwell, 2007.

The Revival of Human Rights Discourse

15

sense – as linked to state-building. Their objective, he argues, was national sovereignty, the defence of individual prerogatives; the supremacy of the nation-state, not its subordination to a general law. If the campaign dates neither from the immediate post-war period nor from the era of decolonisation, how are we to explain the global dominance of human rights today? In Moyn’s view, the explanation lies above all in the failure of other utopias. Once the Soviet invasion of Prague and the death of Allende had crushed former hopes for ‘socialism with a human face’, human rights took on the colours of a provisional and minimal morality that sat above and beyond politics – as witnessed by the emblematic trajectory of an organisation such as Amnesty International. The explanation for the rise of human rights, then, is arguably less globalisation and the erosion of the nation-state than the collapse of global political alternatives. Moyn suggests that the neutral nature of human rights – which had caused their marginalisation after the war, when the pressure was on to take one side in the communist–capitalist dilemma – may conversely explain their success at the end of the 1970s, when the ideological climate was ripe for claims to ‘transcend’ politics. It is tempting to compare Moyn’s book with its exact contemporary by the political scientist Andrew Vincent, who gives a more conventional account of the ‘discovery’ of the Holocaust, decolonisation and the Cold War as the main forces behind the gradual emergence of a transnational language of rights.46 Moyn’s theory that the ‘realisation’ of genocide occurred only at the end of the 1970s must unquestionably be qualified in the light of recent works, such as those of François Azouvi on the French case, which demonstrate that contrary to popular belief the extermination of Jews was not simply silenced at the Liberation but very soon after became the subject of intensive intellectual reflection.47 Proving that ‘awakening’ to genocide happened far earlier than Moyn suggests may not discredit his theory that human rights discourse only really took root in the 1970s – especially since it seems clear that even if there had been debate earlier, this ‘was not enough to prevent repression of the crime in the public sphere’.48 Yet the fact remains that the ‘big bang’ idea,49 that human rights supposedly emerged as if from nowhere in 1977, does not stand up to 46 47 48 49

Andrew Vincent, The Politics of Human Rights, Oxford, Oxford University Press, 2010. François Azouvi, Le mythe du grand silence. Auschwitz, les Français, la mémoire, Paris, Fayard, 2012. Enzo Traverso, La fin de la modernité juive, Paris, La Découverte, 2013, p. 155. As per the expression used by Philip Alston to describe Moyn’s thesis. Philip Alston, ‘Does the Past Matter? On the Origins of Human Rights’, Harvard Law Review, 126, 2013, p. 2074.

16

From the Rights of Man to Human Rights?

thoroughgoing analysis. Several authors, both historians and legal theorists, have underlined the ‘short-sightedness’ and the ‘Americacentric’ nature of this argument by detailing examples of appeals to human rights in the 1940s, 1950s and 1960s.50 Without taking up position on this historiographical debate, we endorse Philip Alston’s view that Moyn displays at the very least a ‘reluctance to acknowledge the power of ideas before they reach a high threshold [of recognition]’.51 Rights of Man and Human Rights: Merely a Family Resemblance? Beyond their differences over when the concept of human rights emerged, Andrew Vincent and Samuel Moyn nonetheless join forces in arguing that there is no direct lineage linking the ‘rights of man’ proclaimed at the end of the eighteenth century to ‘human rights’ as established during the second half of the twentieth. There are undoubtedly certain ‘family resemblances’52 between the two concepts, but in these authors’ view we cannot simply see ‘human rights’ as an updated dialect of the old language of the rights of man. Whereas the rights of man were tied to an enclosed space of citizenship, human rights according to these authors advocate an outward-facing politics of compassion; where the rights of man formed a basis for constructing a territorial state, human rights strive to transcend the state. What seems clear enough today – that the chief aim of human rights is to limit the capacity of states – was, in their view, a foreign idea to the rights of man, which sought to define citizenship, not to protect humanity. In other words, the association between the rights of man and the nation-state is no unfortunate coincidence but rather constitutes the very essence of these rights.53 Yet the poker-straight line these authors draw between ‘human rights’ (a term that, tellingly, has never taken root in French) and the ‘rights of man’, seen as two distinct and competing universals,54 gives pause for thought at the very least. It is certainly true that these are not strictly identical concepts, and that the internationalisation of the individual rights proclaimed at the end of the eighteenth century is a recent development, whether we opt for the post-war period or the end of the 1970s as the exact date when this happened. However, they then skip several steps 50

51 52 54

Aside from Philip Alston, see especially Weitz, ‘Samuel Moyn and the New History of Human Rights’. For a critique of Moyn more relevant to the nineteenth century, see Blackburn, ‘Reclaiming Human Rights’, pp. 126–138. Alston, ‘Does the Past Matter?’, p. 2073. Vincent, The Politics of Human Rights, p. 119. 53 Moyn, The Last Utopia, p. 30. Moyn, ‘Plural Cosmopolitanisms and the Origins of Human Rights’, p. 210.

Rights of Man and Human Rights

17

to conclude that the ‘rights of man and the citizen’ and ‘human rights’ are two concepts of an entirely different nature. As Bruce Robbins observes, the legitimate desire to historicise the rights of man – in counterweight to an essentialism that side-lines context – ends up instead producing a paradoxical brand of de-historicisation: in refusing to recognise either that numerous conflicting political strategies all call on them in any given era or the historical dynamic that transcends their institutional incarnations, we essentialise the relationship between the rights of man and their historical context.55 The claim that the rights of man aimed only to build citizenship within states, while human rights apply to humanity beyond national borders, rests on hastily made simplifications. First, the new ‘revolution of human rights’, underway since the end of the 1970s, has not only sought to set an international norm on state action. It has also led to the definition of various social movements – for women’s rights, gay rights, consumer rights and so on – in terms of ‘new rights’ to be won within existing states. By shifting the boundaries between the public and private and the universal and particular, it has also contributed to a sort of reinvention of ‘national’ citizenship, as the works of Claude Lefort, Jacques Rancière or Etienne Balibar among others amply demonstrate. The norms invoked by international movements in support of human rights, moreover, derive from treaties signed by states – which as matters stand remain the chief guardians of respect for rights – and the most visible actors in ‘human rights’ struggles, from Ukraine to China to Egypt, are domestic actors rather than organisations such as Amnesty International or Human Rights Watch.56 Strangely, Moyn seems to see the emergence of human rights exclusively in the colours of a new duty to empathise with the suffering of humanity, and therefore exclusively from the angle of their ramifications for transnational practice. Conversely, can we really limit the scope of the ‘rights of man’ announced at the end of the eighteenth century to the mere goal of establishing a sovereign state? The fact that these rights were conceived and embodied within a finite system – as witnessed by Article 3 of the 1789 Declaration, ‘The principle of all sovereignty resides essentially in the nation’ – takes nothing away from the fact that they also sought to define limits on the power of the state thus established. We must also admit that it is extremely difficult to attribute a unanimous aim to 55 56

Bruce Robbins, ‘Sartre, Rancière, and the Cause of the Other’, in Douzinas and Gearty (eds.), The Meanings of Rights, pp. 254–257. Alston, ‘Does the Past Matter?’ p. 2072. See also Jean Cohen, Globalization and Sovereignty. Rethinking Legality, Legitimacy and Constitutionalism, Cambridge, Cambridge University Press, 2012, p. 217.

18

From the Rights of Man to Human Rights?

a document that grew out of a compromise between political actors of different stripes – carrying within it unresolved tensions that would rear their heads as the revolution unfolded – and occasioned a cascade of unforeseen consequences that far exceeded the revolutionaries’ original aims, taking on a momentum of its own. As Jaurès underlines in his analysis of the runaway consequences of the Article 1 assertion that ‘social distinctions must be founded only upon the general good’: The notion of public utility, introduced in the bourgeois code in order to limit the absolute right to individual property, gradually changed and grew as society itself changed. The bourgeois revolutionaries of the Constituent Assembly would have revolted in 1789 if they had known that the article that they themselves had put in the Declaration of Rights would, three years later, be invoked by the bourgeois revolutionaries of the National Convention to justify the application of the Law of the Maximum and universal taxation on commodities – in other words the generalised expropriation of exchange, which is such an essential part of individual property.57

As Eric Weitz rightly notes, Samuel Moyn superimposes the outline of a logical antithesis – between the rights of man as the model for a political body and human rights as compassionate humanitarianism – on a far more confused, ‘messy’ (not to say contradictory or dialectical) historical reality.58 It is therefore misleading to contrast contemporary ‘human rights’, whose anti-political nature has been exaggerated, with the classic ‘rights of man’, which are apt to be hastily equated with the nation-state project. To make this link too easily is to forget that revolutionaries had inherited the national form from the monarchy, and proclaimed the rights of man in order to democratise that form – a link that was by no means selfevident, since it soon became clear that the republican idea and the national idea were not straightforwardly compatible bedfellows. Burke grasped this fact immediately and steadily developed his polemical thesis that the rights of man were an anti-national idea, incompatible not only with the peaceful co-existence of nations but with their very existence, an argument that he would express most forcefully in his Letters on a Regicide Peace of 1796–1797. From Joseph de Maistre to Maurras or Carl Schmitt, counter-revolutionary thought incessantly embellished this grievance,59 denouncing the rights of man for dissolving national differences into the democratic idea and thus erasing the boundary between international and civil war, based on the claim of the ‘party of the rights of man’ to be the ‘party of the human race’. 57 58 59

Jaurès, Etudes socialistes, pp. 235–236. Weitz, ‘Samuel Moyn and the New History of Human Rights’, p. 88. See Chapters 2, 4 and 6.

Rights of Man and Human Rights

19

It is true that the friction between the ideas of rights of man and nation never became an open contradiction in the nineteenth century – though there were always those, such as Durkheim, who criticised the ‘concept of the nation’ as an ‘obscure mystical idea’, announced the inexorable demise of the national form and demanded that patriotism should in the interim see itself ‘as a small fragment of cosmopolitanism’.60 Durkheim proposed no viable alternative, however, to the political model of the nation he so deplored. At the same time, Jaurès declared himself unable to see how internationalism could move beyond a peaceful relationship between autonomous ‘national organisms’: ‘it is the nation that will for a long time yet to come provide the historical framework for socialism, the mould of unity for the new form of justice’.61 Yet this observation of the nation form as a historically restricting force was not tantamount to a complete lack of awareness of the cosmopolitan meaning of human rights – a meaning that Kant had grasped in 1795 in the first of his works to be translated into French, as the Projet de paix perpétuelle (1796). The cosmopolitanism of the revolutionaries had doubtless taken rather cursory forms, hardly comparable with the complex Kantian relationship between national law, international law and cosmopolitan law.62 Yet the fact that they held these cosmopolitan views at all demonstrates that the ideal of the rights of man aimed eventually to transcend communities of origin. The idea that human rights are timeless and placeless ‘runs like a leitmotiv through the speeches delivered at the National Assembly’.63 It takes virulent shape in the hands of Anacharsis Cloots, who posits the principle that since ‘the rights of man extend to men in their entirety’, ‘we make up a confederation of individuals; no other massed body or corporation than that of the human race can be admitted’.64 We might raise the objection that Cloots was a figure too radical to prove anything. If so, Volney – neither a Terror leader nor an Enragé – is the next port of call. His 1791 book Les Ruines reaches its apogee in the 60

61 62 63

64

Emile Durkheim, Débat sur le nationalisme et le patriotisme (1905), Textes III, Paris, Minuit, 1975, pp. 178–186; Leçons de sociologie (1898–1900, posth.), Paris, PUF, 1950, pp. 100–109. Recall that Proudhon and Comte both believed that the nationstate had had its day. Jaurès, Etudes socialistes, p. 130. This connection has been explored by Jean-Marc Ferry, who illustrates its relevance today. See Jean-Marc Ferry, Europe la voie kantienne, Paris, Cerf, 2005. Danièle Lochak, Les droits de l’homme, p. 21. The same observation applies to the American Revolution. See G. Wood, ‘The Origins of the American Bill of Rights’, La Revue Tocqueville / The Tocqueville Review, XIV, 1, 1993, p. 38. Anacharsis Cloots, Bases constitutionnelles de la république du genre humain (1793), dans Écrits révolutionnaires. 1790–1794, Michèle Duval, (ed.), Paris, Champ libre, 1979, pp. 476 and 500.

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From the Rights of Man to Human Rights?

vision of an ‘immense congress of peoples’, in which the assembled races decree equality and liberty as their sole law. Volney predicted the imminent advent of an age in which an independent international authority would ensure respect for human rights: ‘from people to people, a balance of forces will establish itself which, holding all in the respect of their reciprocal rights, will put an end to their barbarous warring habits, and submit the arbitration of their disagreements to a civil process; and the entire race shall become one society, one single family governed by one mind, by shared laws’.65 We can now see how Moyn’s concern with avoiding anachronism and the ‘distort[ion] of the past to suit the present’66 leads him to dismiss out of hand lineages of ideas that are not merely semantic. Our point is not to deny that the 1970s represented a turning point in uses of human rights discourse, a success for human rights that went hand in hand with the death of the great ideologies, the flourishing of social movements after 1968, the horrors of looking back on Soviet and Maoist totalitarianism or the revulsion towards torture-based regimes in Latin America that were for a time supported by Nixon and Kissinger. But rather than seeing this appeal to human rights as a radically new phenomenon, we may alternatively conclude that it was in the 1970s that human rights ‘rediscovered the rebellious and subversive dimension that had been their preserve in 1789 and that had gradually withered away, either because they seemed to be already a given or because the “march towards a bright future” seemed to have followed different paths’.67 However, it would be unfair to forget that Moyn’s work ploughs a furrow alongside other historians – for instance the Belgian author Pieter Lagrou – who refuse to see their discipline instrumentalised by a sort of ‘duty to remember’. This compulsive memory, such authors point out, all too easily reduces history to a ‘lullaby’ condemning the past as a black book of authoritarianism, Fascism and slavery in order to justify the present as thoroughgoing devotion to the triumph of democracy and human rights. We can only welcome Lagrou’s energetic reminder that history must be a method of critical investigation, not a ‘pedagogical tool that serves to inculcate the superiority of our societal model’.68 And it is hard not to share the irritation of those who fear that memory of the Holocaust, ‘institutionalised and neutralised’, has come to be ‘the moral 65 66 67 68

Volney, Les Ruines, pp. 148, 114–115. Samuel Moyn, ‘On the Genealogy of Morals’, The Nation, 16 April 2007. Lochak, Les droits de l’homme, p. 3. Pieter Lagrou, ‘De l’histoire du temps présent à l’histoire des autres. Comment une discipline critique devint complaisante’, Vingtième siècle. Revue d’histoire, Paris, Presses de Sciences Po, 118, 2013, p. 117.

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21

“deposit” paid by a Western order to offset its perpetuation of oppression and injustice’.69 But we must also observe that these new historians’ desire to extricate themselves from the ‘self-satisfied grammar of human rights’70 echoes some critiques of human rights in political philosophy. As Pieter Lagrou writes, unreservedly approving Moyn’s diagnosis that the ‘rights of man and citizen of the national revolutions’ must be rigorously distinguished from the ‘human rights’ proclaimed by the United Nations in 1948 or outlined in the Helsinki Final Act of 1975: The movement for civic rights carried within it a vision for a new society; an emancipatory story moving towards the goal of political participation. What political project can we associate with human rights discourse (which is in fact exclusively a discourse about violations of human rights)? It must be a backwardslooking project, made of wrongs to right, reparations to be won, a retreat from the political sphere without any commitment made for the present or future beyond the immediate fulfilment of demands issuing from particular interest groups.71

This analysis may well reinforce the idea that the new ‘human rights’ of today are a sort of anti-political and moralising utopia. Albeit unwittingly, this rigid dichotomy between the ‘rights of man’ and ‘human rights’ corroborates the tendency to consider contemporary human rights as the consecration of the individual against the belonging of the citizen, instead of using one to shore up the other as did the original republican version.72 Robin Blackburn thus considers The Last Utopia as ‘reprising, for a post-Iraq era, moves made thirty years ago in Paris’.73 Objectives and Structure of the Book The objective of this book is precisely to investigate the different faces of the critique of human rights since 1789, with a view to deepening understanding of the relevant contemporary debate on the relationship between human rights and democracy. What are the main arguments that have been advanced against human rights? What do the critiques advanced by Burke, De Maistre, Bonald, Bentham, Marx, Comte and Schmitt have in common, and where do they diverge? Above all, is it really possible to establish continuities between these authors’ critiques and those to be 69 70 71 72

73

Traverso, La fin de la modernité juive, p. 167. Lagrou, ‘De l’histoire du temps présent à l’histoire des autres’, p. 117. Ibid., p. 112. Marcel Gauchet, La religion dans la démocratie, Paris, Gallimard, Folio, 1998, p. 111. Robin Blackburn thus considers The Last Utopia as ‘reprising, for a post-Iraq era, of moves made in Paris thirty years ago’. Blackburn, ‘Reclaiming Human Rights’, p. 129.

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From the Rights of Man to Human Rights?

found in contemporary political thought? Or is there rather a true epistemological break between critiques within the tradition of liberal modernity on one hand, and others that start from a perspective radically hostile to individualism on the other? The key questions are whether a common critical aim can be articulated from different intellectual starting points that are otherwise far apart, and whether or not the structure of the arguments that run through these approaches significantly changes the type of critique advanced. This book does not, of course, aim to examine all critiques of human rights. In particular, the critique of universal rights on grounds of cultural pluralism – which has already given rise to a significant literature – is not within the purview of our ambition. There will also be no discussion of critiques of international humanitarianism,74 and no analysis of the different types of scepticism that arise from the idea that human rights are not universal.75 Our analysis will rather concentrate on contemporary contestation of the primacy of human rights in the name of a certain interpretation of the democratic ideal. Attention will thus be focused on two objections to human rights: that the dominant discourse leads to a form of social ‘atomism’, and that it implies restrictions on the political in favour of the juridical sphere. It is on these two points that historical comparisons prove most fruitful. This approach, which aims to be sensitive to the differences between authors, avoids drawing non-supported comparisons, and draws a more complex portrait of the complexity of critiques of human rights – a portrait that goes further than the simple cliché of ‘abstract rights that cut the individual off from community’. Our working method is determined by an awareness of the temptation – which must be resisted – to consider democratic critiques of human rights a priori as constituting a single tradition or paradigm. A bias towards abstraction and generalisation threatens to obliterate the crucial differences between apparently similar arguments. Striving for philological integrity, we seek to understand the critiques of human rights studied in their own terms. Taking rights seriously presupposes not least understanding the objections raised to them, and the arguments of those who deny their existence or their pertinence.76

74 75 76

See notably David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism, Princeton (NJ), Princeton University Press, 2004. For an overview, see notably Charles Beitz, A Theory of Human Rights, Oxford, Oxford University Press, 2009, pp. 3–7. Jeremy Waldron, Nonsense upon Stilts. Bentham, Burke and Marx on the Rights of Man, London, Methuen, 1987, p. 2.

Objectives and Structure of the Book

23

However, as has been pointed out, we do not aim to write a narrative history of critical thought on human rights since 1789, but rather to tease out the main concepts and types of arguments in order to deepen our understanding of the contemporary debate. Our interest in the historical evolution of the critique of rights is clearly inspired by the desire to arrive at a better understanding of the divided opinion on human rights today. This is why we begin, in Chapter 1, by investigating the contemporary critiques of human rights both in French and in English-speaking political thought. We show that one should be careful to distinguish critiques of human rights per se from attacks on the use made of them in contemporary democracies. Consequently, we identify three strands of thought on this issue – the anti-modern critique, the communitarian critique and the radical critique. From Chapters 2 to 6, we go back to the past. Seven authors – Edmund Burke, Joseph de Maistre, Louis de Bonald, Jeremy Bentham, Karl Marx, Auguste Comte and Carl Schmitt – seem to us to illustrate the five basic paradigms that form the ‘poles’ of a geography of human rights critiques. The choice is justified not only by the considerable influence of each of these authors in the history of ideas – attributable to their skill in giving a substantive, coherent or systematic shape to arguments that appear in fragmentary or scattered form across the output of other authors – but also by the scope of the theoretical field they stake out, from counterrevolution to socialism via liberalism or progressivism. Beyond this, they all thought about and reacted to human rights not merely in a general sense, but as a particular embodiment of this idea in the French Declaration of the Rights of Man and the Citizen in 1789, and the updated versions furnished by the Declarations of 1793 and 1795. Our aim is not to supplement an already vast body of literature by interpreting each of these authors’ overall political philosophy afresh, or to write a new history of ‘anti-democratic’ or ‘anti-liberal’ strains of thought, but instead to focus attention on a clearly defined goal: to draw an intellectual map of critiques of human rights since 1789, with the aim of casting light on current dilemmas. Political theory must always undertake a process of self-examination which cannot be critical without also being historical: without exception, individual political philosophies grow out of the issues that surround them. Correspondingly, it is impossible to understand situations without the context of their historical ‘cartography’. We therefore always interpret political reality – a reality bound up with the theories that have shaped it – according to concepts that contain the political conditions of their generation and the tensions of their own history. Even at the outer limits of its most ‘analytical’ or ‘normative’

24

From the Rights of Man to Human Rights?

ambitions, political theory cannot proceed without concern for this sort of genealogical thinking, that is without a historical eye guided by a ‘present question’77 which strives to gain clarity from the past that has produced it. This genealogical view leads us to see the present not as the necessary outcome of an ‘origin’ that contained its seeds, but – against the backdrop of a far broader body of questions and possibilities – as the ‘path’ that was in fact followed in the historical event, among the many that were possible. If the analysis of political ideas is to transcend the limits of its own historical time, whose legacy influences it in covert and unconscious ways, it must pass by way of a ‘conceptual history’ that will eventually enable it to explore the meaning of its own decisions.78 With this in view, we come full circle at the end of the book to directions taken by contemporary ideas via an exploration of the thought of Hannah Arendt (Chapter 7), who felt more keenly than any other the ambiguity and myriad wealth of possibilities contained in the idea of human rights. This awareness led Arendt towards a unique position at the crossroads of contemporary political theories. Her celebrated formula of the ‘right to have rights’ has given rise to radically opposed critiques of human rights, stretching from the conservative stance, which holds that the only real rights are those of national citizens, to extreme-left criticisms of the hypocrisy and outdatedness of proclamations of rights. Against these interpretations, we shall demonstrate that Arendt in fact opens the way towards a ‘political’ understanding of human rights that can effectively counter several of the criticisms identified in the course of the book.

77 78

Michel Foucault, ‘Le souci de la vérité’, Dits et écrits IV, Paris, Gallimard, 2001, no. 350, p. 674. Here we take up Bruno Bernardi’s notion of conceptual history. Bernardi distinguished his approach from the traditional ‘history of ideas’ as well as Koselleck’s ‘history of concepts’ (Bernardi 2010). Bernardi justifies the cardinal role of conceptual history in political theory as follows: ‘political concepts more than any others are defined by the “field of experience” they structure and the “horizon of expectations” they shape. The concepts we use today can be understood only if we take into account the history that moulded them and the decisions we effect about that history by the new usages we make of it.’ (https://rousseau2.wordpress.com/etudes-dhistoire-conceptuelle/).

1

Critiques of Human Rights in Contemporary Thought

Human rights are ‘not a good subject for political philosophy’, because they do not ‘involve very interesting philosophical problems’. Such was the judgement of Charles Beitz thirty years ago; he himself mentions this in a recent book on the subject – surprisingly enough – of human rights.1 Beitz’s reversal of position mirrors the wider revival of human rights as a key topic of philosophical interest. The publication of John Rawls’s A Theory of Justice in 1971 marked the renaissance of grand political theorising that assesses social imperatives in terms of individual rights rather than general utility, historicity or cohesion of the body politic. With Rawls, fundamental rights became the crux of political justice – so much so, in fact, that they were sometimes treated as a special case of normative value, trumping all other political considerations. Advocates of minimal public intervention such as the libertarian Robert Nozick thus open their works with the claim that individual rights are so far-reaching as to cast doubt on the very legitimacy of the state.2 But social democrats also invoke the idea of rights, arguing they take rights more ‘seriously’ than anyone else,3 on the grounds that citizens can exercise these rights to equal opportunity only if they are guaranteed a measure of independence in the private economic domain.4 However, it is possible to endorse the importance of rights without believing that they necessarily ‘trump’ other political values. As Amartya Sen reminds us, ‘taking rights seriously requires us to recognize that it would be bad – sometimes terrible – if they were violated. This does not imply that the recognition of a claim as a right requires us to assume that it must always overwhelm every other argument in the contrary direction (based, for example, on well-being, or a freedom not included in that right).’ Sen thus makes the quest for human rights into a never-ending 1 2 3 4

Charles Beitz, A Theory of Human Rights, Oxford, Oxford University Press, 2009. Robert Nozick, Anarchy, State, and Utopia, New York (NY), Basic Books, 1974. Ronald Dworkin, Taking Rights Seriously, Cambridge (MA), Harvard University Press, 1977. Jeremy Waldron, Nonsense upon Stilts, London, Methuen, 1987, p. 156.

25

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discursive process, stressing that ‘the viability of ethical claims in the form of a declaration of human rights is ultimately dependent on the presumption of the claims’ survivability in unobstructed discussion’.5 Before him, Jürgen Habermas had also attempted to counter the ‘eclipse of the democratic process’ effected by the liberal paradigm with his wellknown theory of the common origins of private and public autonomy, arising respectively from fundamental liberties and political rights. Seen from this angle, human rights are both the prerequisite and guarantee of collective debate, which in turn is the only means of ensuring the free exercise of fundamental liberties taken as a whole.6 The Rebirth of Human Rights in French Political Thought Since the early 1980s, the corpus of French theoretical works on human rights has also expanded quickly after a long period of marginalisation in dominant discourses – especially, though not only, in Marxist thought.7 This philosophical ‘swing’ towards rights in France is not merely a reproduction of the Anglo-American debate but has a nature of its own, arising from the social ontology underlying discourses of rights,8 and also as such from the tension between the individualist tenets of rights and the demands of collective living. The context for this renewed interest in human rights is well known. The restoration of the individual to pride of place was above all a legacy of May 1968, which ushered in a wealth of social movements ranging from women’s rights to gay rights by way of prisoners’ rights. The new activism and its advocacy for new political subjectivities called for all-encompassing structuralist and poststructuralist attacks on the ‘subject’ to be nuanced ‘. . . during the late 1970s, the “rebirth of the subject” became an omnipresent topos’.9 The career of Michel Foucault is telling in this regard. While his former comrade Gilles Deleuze persisted in denying any relevance to the ‘subject’ and spurning the language of human rights, between 1978 and 1984 5 6 7 8

9

Amartya Sen, The Idea of Justice, Cambridge (MA), Harvard University Press, 2009, p. x. Jürgen Habermas, Droit et démocratie (1992), trans. R. Rochlitz and C. Bouchindhomme, Paris, Gallimard, 1997, p. 120. Witnessed by the output of Michel Villey (culminating in his book Le Droit et les droits de l’homme, Paris, PUF, 1983). Samuel Moyn, ‘The Politics of Individual Rights. Marcel Gauchet and Claude Lefort’, in Raf Geenens and Helena Rosenblatt (eds.), French Liberalism from Montesquieu to the Present Day, Cambridge, Cambridge University Press, 2012, p. 292. Richard Wolin, ‘From the “Death of Man” to Human Rights: The Paradigm Change in Intellectual Life’, in The Frankfurt School Revisited, London, Routledge, 2006, p. 175. Even an opponent of human rights like Alain Badiou stresses that activism forces us to retain the philosophical place of the subject against structuralism (Que faire?, dialogue with Marcel Gauchet, Paris, Philo Éditions, 2014, p. 23).

The Rebirth of Human Rights in French Political Thought

27

the author of Discipline and Punish embraced ever more closely his notion of the ‘practices of self’, through which a subject transforms and empowers herself to escape domination at the heart of power relations. Despite this, Foucault was unrelenting in his critique of humanism and his analysis of the social production of ‘subjects’ by the imposition of ‘disciplines’ or modes of ‘governmentality’. Whilst stressing the limits of the notion of the ‘juridical person’, he maintains that the subject enjoys a measure of liberty in as much as he represents a ‘relationship to the self and the other’ that can take many and varied forms. As an anti-totalitarian thinker, Foucault prefers to speak of the ‘rights of peoples’ – yet he does not reject the vocabulary of ‘human rights’.10 The anti-totalitarian movement had been galvanised by the 1974 translation of Alexander Solzhenitsyn’s Gulag Archipelago, which had an enormous impact in France and made dissidence the key idea of the time. As Michael Christofferson has argued, it was less the (well-known) content of the book itself that called French intellectuals to arms than the French Communist Party’s attacks on its author, and above all the prospect of a communist leadership of the leftist Union assembled by François Mitterrand for the 1978 elections.11 Combined with the shock at the discovery of Cambodia’s killing fields and the exodus of Vietnamese ‘boat people’ (which would be reinforced by the Soviet invasion of Afghanistan and the Solidarnosc protests), these decisive internal political events led a whole generation of activist intellectuals to treat human rights as the ‘alpha and omega’ of any political commitment.12 It was at this time that a cohort of young media-friendly intellectuals such as Bernard-Henri Lévy and André Glucksmann started to appear on television and in popular press columns, and were rapidly christened the ‘new philosophers’. The ‘new philosophy’ represented what Julian Bourg has described as the ‘1970s ethical turn’ or the ‘depoliticizing turn to ethical dissidence’.13 Cultivating the persona of the anti-state rebel, these authors – though very different in many ways – converged on a number of key themes such as the defence of the rights of man, the rehabilitation of the individual and even the ‘reject[ion of] politics as 10

11 12 13

Michel Foucault, ‘Face aux gouvernements, les droits de l’homme’ (1981) in Dits et écrits, vol. 4, Paris, Gallimard, 1994, 355, pp. 707–708. See Pierre Sauvêtre, ‘Foucault et le droit des gouvernés’, Matérialismes, 39, February 2015, pp. 1–8 and Serge Audier’s vast Penser le ‘néolibéralisme’. Le moment néolibéral, Foucault et la crise du socialisme, Lormont, Le Bord de l’eau, 2015. Michael Christofferson, French Intellectuals against the Left. The Antitotalitarian Moment of the 1970s, Oxford, Berghahn Books, 2004, pp. 89–113. Wolin, Frankfurt School, p. 178. Julian Bourg, From Revolution to Ethics: May 1968 and Contemporary French Thought, Montreal, McGill Queen’s University Press, 2007, p. 237.

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such’,14 equating all forms of power with a will to domination whose logical endpoint is the totally administered world of the Gulag. It was precisely this ‘moral’ reading of fundamental rights that Claude Lefort’s seminal article of the late 1970s, ‘Human rights and politics’, set out to dismantle.15 Born in 1924, and the co-founder (with Cornélius Castoriadis) of the journal Socialisme ou Barbarie, Lefort was one of the earliest and clearest-minded exponents of anti-totalitarian thought in France. Un Homme en trop, published in 1975, is a commentary on the Gulag Archipelago. But it is clearly political thought that Lefort sets out to rehabilitate against the temptation of a vulgate that automatically conflates power with oppression. Though he recognised the successes of the new philosophers in giving a wider voice to dissident figures, Lefort refused to follow them into the trap of a bird’s-eye view. He believed that such a view reduced the state to a universally oppressive monolith, thereby also reducing the qualitative difference between democracy and totalitarianism to a difference of degree and proving the new philosophy unfit to conceptualise the political institution of collective life.16 Lefort thus underlines that unconditional defence of human rights in the name of a religion of resistance to all power shares with Marxism ‘a pure and simple refusal to think about politics’. Beyond the case of the new philosophers, a common ‘inability to conceive of human rights other than as individual rights’ prevails both in conservative liberalism (which reduces law and rights either to a ‘rationalisation’ of ‘property relations’ and ‘power relations’ or to a ‘moral sanctuary’) and in Marx’s early attack (in On the Jewish Question) on the ‘selfish’ rights of individuals isolated from their community. Blinded as he was by the liberal reduction of rights to the specific rights of property owners – whose oppressive results he had reason to criticise – Marx failed to see that human rights were not merely a ‘veil’ masking class relations but the arena for a ‘symbolic institution of society’. Seen from Lefort’s angle, freedom of opinion thus makes opinion not an article of private property but a true ‘freedom of relations’, a ‘freedom of communication’ which binds the subject to other subjects in a shared public space.17 14 15 16

17

Ibid., p. 252. Claude Lefort, ‘Droits de l’homme et politique’ in L’Invention démocratique, Paris, Fayard, 1981, pp. 45–84. At the same time, in his 1979 course on neoliberalism, Michel Foucault (originally a supporter of Glucksmann) warned against ‘phobia of the state’ and described the neoliberal theory of totalitarianism as an ‘endogenous extension of state mechanisms’ as a wrong turning (Naissance de la biopolitique, Paris, Seuil/Gallimard, 2004, pp. 78 and 196–197). Lefort, ‘Droits de l’homme et politique’, pp. 51–58 and ‘Droits de l’homme et Etatprovidence’ (1984), Essais sur le politique, Paris, Seuil, 1986, pp. 34, 44–46. On this subject see also Serge Audier, ‘Que reste-t-il de l’antitotalitarisme de gauche? Lefort,

The New Critiques of Human Rights

29

Lefort’s argument is not just that rights conceived as individual attributes may have collective implications; this would hardly be an advance on the classic liberal position.18 His theory is that human rights have led to claims for ‘social rights’ because they have always contained a social meaning – that of the discovery of ‘a transversal dimension of social relations of which individuals are the terms; yet social relations both confer identity on individuals and are produced by them’.19 The emergence of ‘society as such’ and that of individual rights are the two indissociable sides of inventing a ‘political society’ in the full sense of the term – a society which fully accepts and works both with its own lack of certainty and with the irreducible diversity of the subjects that combine to make up its complex whole.20 The ‘disentanglement’ of law, power and knowledge that is essential to sovereignty also makes it inappropriable. The ‘uncontrollable heart’ of human rights is refracted through a plethora of struggles – for women’s rights, gay rights, workers’ rights, migrant support associations and so on – which ‘do not tend to combine’, ‘do not rank themselves under the banner of an historical actor or a unified people (“Peuple-Un”)’,21 yet are none the less decisively political for it. Lefort clearly sees a new relationship with politics in struggles for rights. The real distinction to be drawn is not between political and moral demands (indeed, Lefort believes that there can be no pre-political moral foundation) but rather between individualist and collective interpretations of human rights – and, within collective interpretations, between those that either conceive of a people in terms of an imagined ideal of unification or see society in the full diversity of its subjectivities. It is not the individual as an ‘owner’ of rights (themselves centred on the right to ownership) that Lefort sets up against Marx, but rather a conception of democracy as a regime in which division is ‘constitutive of the very unity of society’.22 The New Critiques of Human Rights However, this insistence on the democratic aspect of human rights has been subject to harsh criticism, representing ‘the shadow that is cast by

18

19 20 21 22

Merleau-Ponty et la question de la “modernité”’ in Nicolas Poirier (ed.), Cornélius Castoriadis et Claude Lefort: l’expérience démocratique, Lormont, Le Bord de l’eau, 2015, pp. 95–108. Moyn, ‘The Politics of Individual Rights’, p. 298. Moyn observes that Lefort’s supposedly ‘liberal’ turn is still premised on ideas that continue to ‘take Marx seriously’ (p. 299). Lefort, ‘Droits de l’homme et politique’, pp. 71–73 and 65–67. Lefort, ‘La logique totalitaire’ in L’Invention démocratique, pp. 90–91. Lefort, ‘Droits de l’homme et politique’, pp. 64, 76. Lefort, ‘Droits de l’homme et Etat-providence’, pp. 28, 44.

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the ascendancy of rights talk in modern political discourse’.23 It is important here to dissociate critiques of human rights in themselves from attacks on the use made of them in contemporary democratic societies. The first strain of thought here, highly varied in itself, takes issue with the declarations of the eighteenth century, and beyond this with the very idea of subjective right, which it alleges is a corruption of the legal concept. We might term this an ‘anti-modern’ stance if we agree with Antoine Compagnon that anti-modern thinkers, rather than defending a tradition close to their origins, are in fact perverse ‘moderns’ who have turned against the modernity that raised them.24 Such critiques, indeed, display many of Compagnon’s ‘anti-modern’ traits: the themes of counterrevolution and counter-Enlightenment, deep pessimism at the predicament of Western societies, a theological pitch and a tone verging on vitriol. Only the art of the sublime, notable by its absence from contemporary political thought, remains to complete the picture. That said, Compagnon too often treats anti-modernity as a mere aesthetic category lacking in real philosophical or political content. Rather than defining this substance in terms of a psychological ambivalence that makes the anti-moderns ‘modern despite themselves’ or ‘driven by self-hatred and hatred of the moderns’,25 we should recall that the notion of anti-modernity designates above all the paradoxical make-up of a given type of thought. It describes a traditionalist nostalgia which does not grow out of a living heritage but is defined instead by its rejection of a notion of modernity against which (starting from which, in other words) it seeks to define a counter-ideal.26 The so-called antimodern strain of thought attempts to deny that social life can viably be based on a universally shared rational autonomy. Its tell-tale characteristics are mistrust in the idea of progress, scorn for the social and cultural ‘levelling’ encouraged by egalitarian democracy and dismay at the death of the sacred that anti-modern thinkers see as the counterpart of rising individualism and utilitarianism. A second and very different strain of thought endorses the principles of liberal modernity but warns against the dangers that human rights may pose in attaching themselves to it. It especially decries the destructive effects of the primacy allegedly accorded them in contemporary 23 24 25

26

Waldron, Nonsense upon Stilts, p. 2. Antoine Compagnon, Les Antimodernes. De Joseph de Maistre à Roland Barthes, Paris, Gallimard, 2005. Antoine Compagnon, ‘Après les antimodernes’, in Marie-Catherine Huet-Brichard and Helmut Meter (eds.), La Polémique contre la modernité. Antimodernes et réactionnaires, Paris, Garnier, 2011, p. 13. See Jean-Yves Pranchère, ‘Antimodernité’ in Didier Masseau (ed.), Dictionnaire des antiLumières et des antiphilosophes, Paris, Honoré Champion, 2017, pp. 87–96.

The New Critiques of Human Rights

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democracies. What we might call the ‘communitarian’ critique by no means rejects the legacy of the American and French revolutions; rather, it stresses that ‘individual rights’ today have lost their earlier collective nature, and that their exponential use and abuse has become one of the causes and worst symptoms of social dissolution and increasing narcissism. For these authors, then, the moot point is not the legitimacy of human rights themselves but the question of their potential effects as a normative concept, and above all as social practice. Finally, a ‘radical’ critique has grown up which claims to speak for the modern project conceived as a ‘striving for autonomy’, which must not stop at the minimum requirement of protecting individual liberties but lead on towards social forms able to create themselves by blending together individual and collective autonomy. These critiques are less concerned with the dangers of social fragmentation than with the ideological and disciplinary function of a discourse of rights which they see as turning their back on the promise of emancipation. According to authors who espouse this idea, ‘human rights’ are an ‘ersatz’ for the abandoned ideal of autonomy – the ‘placebo’, we might say, that anaesthetises our craving for autonomy by satisfying a lesser need. Intersecting in places with feminist grievances, such arguments also draw on analyses of the perverse effects of so-called humanitarian politics and the role of organisations for the defence of human rights, as articulated in the field of international relations, notably by David Kennedy, Stephen Hopgood or Nicolas Guilhot.27 Though several sophisticated critiques of human rights (or their usage) agree or echo across these strains of thought, their motivation and aims are different enough to make it important to resist any conflation. Equally, however, the categories suggested here must not blind us to the slippage that often takes place between them. Certain authors, for instance Pierre Manent, may recast themselves across successive texts as theological Catholic or communitarian thinkers; others, such as the legal theorist Martti Koskenniemi, straddle the ‘communitarian’ and ‘radical’ schools of thought. This overview cannot claim to be exhaustive. Our book does not, for instance, address critiques made in the name of cultural pluralism which see human rights as a form of neo-imperialism; instead, it focuses exclusively on internal challenges to human rights, in other words those which 27

David Kennedy, The Dark Sides of Virtue. Reassessing International Humanitarianism, Princeton (NJ), Princeton University Press, 2004; Stephen Hopgood, The Endtimes of Human Rights, Ithaca (NY), Cornell University Press, 2013; Nicolas Guilhot, The Democracy Makers. Human Rights and the Politics of Global Order, New York (NY), Columbia University Press, 2005.

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arise from the heart of liberal modernity – which is not, we might add, the exclusive preserve of so-called Western culture.28 We shall also only deal in passing with the vast literature that has grown up around attacks on the ‘international human rights regime’ and its evolution since the late 1970s, culminating in the 1990s. Similarly, we shall not be discussing in any detail critiques which argue against extending definitions of rights beyond the fundamental liberties outlined in 1789. Maurice Cranston, for instance, has argued that economic and social rights cannot be subsumed under the broader umbrella of human rights, on the grounds that reducing rights to a ‘mere ideal’ is the surest way of sabotaging any endeavour to protect human rights.29 All rights have attendant duties, and the criterion for identifying them is that of practical viability. Civil and political rights, according to this argument, must be implemented since it is ‘not costly’ to establish them: all they require is a lack of state interference, whereas economic and social rights involve a capacity for action. This is a recurring theme in neoliberal and neo-conservative writing. In a 1978 attack on Jimmy Carter’s presidency, the neo-conservative essayist Irving Kristol warned against ‘the human rights muddle’. While agreeing that human rights ‘properly called’ did exist, as did purely ‘civil’ rights translating into prohibitions on genocide, torture and ‘restrictions on emigration rights’, Kristol refused to accept that the absolute nature of such rights could be carried over to the political and social rights encompassed under the banner of ‘human rights’. Beyond the minimumrequirement basic rights, he explained, the rule of law arises not from an unconditional demand for universal rights but from the ideal of a ‘limited government’, which in turn creates the greater part of individual rights. Because it precludes further extension of the state, this ideal concurrently precludes maximisation of rights.30 Several authors have argued against this distinction between ‘true’ human rights and otherwise, stressing that the gulf between the eighteenth-century declarations and that of 1948 must not be exaggerated. It is true that the radically new idea of the 1948 Declaration compared to its predecessors lies less (as Moyn points out) in the move from texts firmly rooted in the nation-state to a twentieth-century appeal to common 28

29 30

The juridical positivism at the heart of liberal modernity should not be understood as a critique of human rights. This has been demonstrated by Michel Troper, ‘Le positivisme et les droits de l’homme’, in Bertrand Binoche and Jean-Pierre Cléro (eds.), Bentham contre les droits de l’homme, Paris, PUF, 2007, pp. 231–247. Maurice Cranston, ‘Are There Any Human Rights?’, Daedalus, 112 (4), 1983, pp. 1–17. Irving Kristol, ‘The Human Rights Muddle’ (1978), Reflections of a Neoconservative: Looking Back, Looking Ahead, New York (NY): Basic Books, 1983, pp. 266–269.

The New Critiques of Human Rights

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humanity beyond borders, and more in 1948’s introduction of economic and social rights – the rights to work, to education, to fair pay and so on.31 Yet even in the French debates of 1789–1793, questions as to whether the rights of man might not in themselves also contain the rights to work and state assistance32 had foreshadowed the idea of ‘social rights’, in embryonic form at the very least. Above all, we must challenge the idea that respect for fundamental freedoms requires nothing but the absence of constraint: the right to religious freedom or the right to life, for instance, certainly do demand positive action on the part of the state.33 Reserving the status of a ‘human right’ for civil and political (and not economic and social) rights means ‘draw[ing] a line in the sand that is hard to sustain’.34 Even an advocate of the minimal state like Karl Popper had to recognise that the neoliberal antithesis between rights-as-freedoms and rights-as-claims (or social rights) fell down on the fact that rights-as-freedoms are themselves also claims.35 All rights, whether first- or second-generation, come at a ‘cost’36 – and indeed we might interpret ‘rights-as-claims’ as the outcome of the ‘right to life’ proclaimed in the American Declaration of Independence. They are nothing but the right to enjoy the conditions for liberty: in other words, the rights to liberty or to rights-as-liberties. This is why Philippe Van Parijs has demonstrated the logical requirement for social rights premised on libertarian principles.37 This puts the neoliberal critique of human rights in a tight corner: if they take individual rights seriously, its exponents must either extend these into social rights or boil them down to the variable functions of a ‘market order’ that is synonymous with a communitarian system built on the particular merits of its actors (business and competition culture, respect for contracts, meritocracy and so on). In short, when neoliberalism engages in a true critique of human rights, its argument becomes 31 32

33 35

36 37

See Georges Gurvitch, La Déclaration des droits sociaux (1943), Paris, Dalloz, 2009. See Marcel Gauchet, La Révolution des droits de l’homme, Paris, Gallimard, 1989, p. 231 sq. and Robert Castel, Les Métamorphoses de la question sociale, Paris, Fayard, 1995, p. 107 sq. The theory of a ‘right to work’ was ousted, but the ‘right to assistance’ led to the law of 19 March 1793: ‘every man has the right to the means of his existence through work if he is able; or to assistance free of charge if he is unable to labour’. Waldron, Nonsense upon Stilts, p. 157. 34 Sen, The Idea of Justice, p. 456. Karl Popper, ‘Observation sur la théorie et la pratique de l’Etat démocratique’ (1988), La Leçon de ce siècle, trans. J. Henry and C. Orsoni, Paris, Anatolia, 1993, pp. 114–121. For a deconstruction of the opposition of ‘rights-as-freedoms’ and ‘rights-as-claims’, see André Tosel, Démocratie et libéralismes, Part I, Paris, Kimé, 1995, and Jacques Bidet, John Rawls et la théorie de la justice, Paris, PUF, 1995. Stephen Holmes and Cass R. Sunstein, The Cost of Rights. Why Liberty Depends on Taxes, New York (NY), Norton, 1999. Philippe Van Parijs, Qu’est-ce qu’une société juste? Paris, Seuil, 1991.

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indistinguishable from other critiques that decry the damaging effects of rights on social cohesion. There is of course an inflection of this argument that is unique to neoliberalism: that human rights endanger not the power of a collectivity but rather the social structure that permeates an anonymous market order, which demands that its competing actors fully internalise the legitimacy of social inequality and business hierarchies. Yet as we shall see in Chapter 2, this defence of social order – which promotes a paradoxical sort of ‘market civicism’ – easily starts to dovetail with a conservative agenda. The leading critiques of human rights in contemporary political thought moreover make no distinction between the two supposed categories of rights (rights-as-liberties and social rights). What they reject is not the idea of economic and social rights in particular; it is either the idea of ‘human rights’ itself or the consequences of its ascendancy at the expense of social cohesion. These limits on the remit of our investigation aim to focus attention on the critiques that see human rights (or their uses) as a threat to the cohesion of the democratic model. However, we do not intend to add to an already vast body of literature on the relationship between representative democracy and judicial review. As Waldron has shown, it is perfectly possible to champion the primacy of fundamental rights without necessarily assuming that it is the job of the courts to interpret human rights and how they should evolve in response to social developments. Waldron followed up on his response to human rights critiques38 with a series of essays taking a stand against the practice of judicial review. In these, he argues that where citizens or their representatives disagree on the subject of rights, it is an ‘insult’ to hand over the ensuing dispute resolution from a majoritarian process to a small coterie of judges who ‘disagree among themselves along exactly the same lines as the citizens and representatives do’.39 Though these two lines of attack – on the primacy of human rights and the role of the judiciary – often merge together, they remain conceptually distinct. The defining belief of the theorists we discuss here is that the contemporary consecration of human rights above all else – not simply the fact of their interpretation being entrusted to the judiciary – encroaches on the democratic idea. The idea of ‘democracy’ itself, meanwhile, is of course a very different thing for a theorist who espouses the Aristotelian concept of a just society, one who harks back to the American republic of the founding fathers, or a Marxist advocate of radical emancipation. Yet this takes nothing away from the fact that all contemporary critiques of human rights cast themselves as proponents of democracy in one form or another. 38 39

Waldron, Nonsense upon Stilts. Jeremy Waldron, Law and Disagreement, Oxford, Oxford University Press, 1999, p. 15.

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The Anti-modern Critique (1): Human Rights and Destruction of the Just Order We can break the ‘anti-modern’ critique down into two strands, with one more important conceptually than the other. The first and by far the more developed emerges from religious thought, and sees the consecration of individual rights as the necessary outcome of a derailed Christian theology that tramples on the idea of justice. The most powerful statements of this view can be found in the work of the leading representative of the radical orthodoxy, John Milbank, who builds on the arguments previously developed by the French theorist Michel Villey and the Scottish philosopher Alasdair MacIntyre. These authors all see human rights, and beyond them liberalism as a whole, as the offspring of a decadent theology. In their view, the rise of nominalist theology in the fourteenth century and its radical tenets – first articulated by Ockham then explored further by the ‘Christian heresiarchs’ Hobbes and Locke40 – are the source of the liberal destruction of the proper understanding of law. Liberal modernity, according to this argument, means rejecting an original Christian belief that the dignity of the person goes hand in hand with a form of common good founded on the ties between created and creation, to which individual rights must always be subordinate. Modern theology has abandoned this belief to see law not as translating the just order of the world, but instead as the expression of a will or order emanating from a higher authority. This, such authors believe, is why theology has led the way towards absolute rights of the self-possessing individual on the one hand, and tyrannical rights of the sovereign on the other. ‘Subjective right’, based on the sovereignty of will, overturns the very idea of law as a quest for justice in multilateral human relationships. Law for Aristotle meant ‘the just proportion of things distributed across members of a political group’;41 the content of laws, meanwhile, was to be found by observing social realities and setting different stances on legal matters against each other. In Villey’s view, this is tantamount to saying that law cannot proceed exclusively from man’s intrinsic nature: ‘Whether or not one knows it, using the word “law” means talking about a relationship. How are we to draw out a relationship encompassing plural terms from a single term: man?’42 Law comes into being only in objective situations, not through subjective claims. The relationship between parents and children is a prime example here, with their respective rights and duties translating a relational system. In short, there is no 40 41

John Milbank, ‘The Gift of Ruling: Secularization and Political Authority’, New Blackfriars, 85 (996), 2004, p. 222. Villey, Le Droit et les droits de l’homme, p. 54. 42 Ibid., p. 154.

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such thing as subjective rights, and to espouse them according to MacIntyre is akin to ‘belief in witches and unicorns’.43 This twisting of the idea of law by claims to individual rights emerges clearly in the contradictions inherent in human rights, each of which negates another: the right to freedom of contract contradicts the right to work, the right to life opposes the right to abort, parents’ right to work may clash with their children’s right to education and so on.44 The result is that claims to rights dash headlong into a murky terrain that gives rise to illusory ideas and claims that cannot be satisfied. In this sense, the emergence of human rights may be interpreted as the most visible symptom of Enlightenment thinkers’ failure to equip themselves with a rational foundation – what MacIntyre describes as the ‘incommensurability’ of contemporary debates. This is well illustrated by the abortion dilemma, which traces the full circle of attacks made on the insoluble nature of demands to conflicting rights. On the basis that each individual holds the rights over his or her own person and therefore body, we may say that it is the mother’s decision whether or not to abort. Yet since I cannot wish that my own mother had aborted, how can I reasonably deprive others of a right to life that I claim as my own? The worrying aspect of this in MacIntyre’s view is not that such debates arise or even that they remain unsolved, but that the premises of the conflicting positions mean that a conclusion will never be reached. Competing claims for the rights of different individuals – in this case the right to life of a foetus on the one hand, and a woman’s right to exercise control over her own body on the other – leave no room for debate, mediation or rational decision-making. This, in views such as MacIntyre’s, is the source of the vehemence or even violence with which rights are often claimed in contemporary societies.45 Today, Milbank is pursuing this two-stranded interpretation to attack the incoherence of Jacques Maritain’s ‘pseudo-synthesis’, which attempts to reconcile Classical-era ideas of the just society with the rights of the person.46 This does not hold true, because if a subjective right originates in a just order it cannot by definition be driven by a single isolated human will.47 Milbank thus opposes both those who see human rights as the logical endpoint of Christianity and the official position of 43 44 46 47

Alisdair MacIntyre, After Virtue: A Study in Moral Theory, Notre Dame (IN), Notre Dame University Press, 1981, p. 69. Villey, Le Droit et les droits de l’homme, p. 154. 45 MacIntyre, After Virtue, p. 71. Jacques Maritain, Christianisme et démocratie suivi de Les droits de l’homme (1942), Paris, Desclée de Brouwer, 2005. John Milbank, ‘Against Human Rights: Liberty in the Western Tradition’, Oxford Journal of Law and Religion, 2012, pp. 1–32 (advance access published 13 January 2012). Accessed 21 February 2013, p. 28.

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the church – which between the end of the nineteenth century and the mid-1970s gradually moved from determined opposition to the principles of 1789 towards full ‘moral support’ for the 1948 Declaration – and interprets the emergence of human rights as a ‘historical anomaly’ in view of Western principles. Arguing that ‘true democratic liberties’ grow out of long-term sedimentation of organic customs and developments of the sort championed by Edmund Burke, Milbank sets out to demonstrate that the ideology of human rights is no guarantee of respect for human beings and is inseparable from a neoliberal system that he has no hesitation in describing as ‘totalitarian’. Similarly, how is respect for the dignity of the person to be achieved if we see the ‘rights’ that are meant to guarantee it as a subjective possession? Those who claim that the dignity of the person can be protected by sheltering behind the concept of inalienable rights miss the complex dialectic between rights and alienability. William of Ockham founded the paradigm of subjective rights on the free use of one’s own property, a concept that has held ever since. But this right to ‘inalienable’ ownership is paradoxically defined by its absolute alienability. Something that is owned in an ‘inalienable’ sense may be unconditionally transferred or sold, whereas an alienable possession – held in certain conditions on the basis of bonds formed by mutual recognition – cannot be freely yielded or exchanged in any given circumstances. If the prohibition on torture rests on the idea that human beings ‘own’ their own body, the liberal state may always claim exceptions in the name of majority rights, and so strip the person concerned of his or her rights – as in the case of the anti-terror measures in place today. The only certain way of preventing torture, Milbank writes, is in fact to posit that there is a value that is intrinsic to the person by virtue of the fact that he is conceived in the image of God: ‘Torture may be often be carried out by religions, but only a genuine religion, not liberalism, can provide a rationale to stop torture.’48 In the same way, there can be no valid truth without free consent – a concept that according to Milbank is found only in Judaism, Christianity and Islam. Furthermore, in conceiving of ‘one’s’ rights as properties, forgetting that duties towards the other are the ‘intimate reality’ of these rights, we risk transforming what appears to be the conquest of individual dignity into new types of oppression. This is true of the idea that only women have rights over the foetus, which could induce ‘men as men’ to exercise their implied equivalent right to have no role in their children’s education.49 In upholding the necessary connection between rights and 48

Milbank, ‘The Gift of Ruling’, p. 236.

49

Milbank, ‘Against Human Rights’, p. 28.

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duties, the Middle Ages were paradoxically more conducive to the development of children’s rights than the modernity we know today, based as it is on the paradigm of a rational, free and autonomous individual. Beyond the case of women and children, taking the idea of an abstract individual reduced to sheer will too far paradoxically (in this argument) hinders rather than helps in protecting human beings who are each seen as specific and unique, and as integral parts of the network of human relationships they create. Individual rights and absolutism, though commonly believed to stand in opposition, are in fact – as stated by Hobbes – inextricably linked. The politics of human rights also ties in with a form of increasingly arbitrary will which is not the expression of a balanced choice but merely a ‘will to will’.50 As Villey had already observed, endorsing Marx’s early critique on this point, the ideology of human rights is closely bound up with ‘capitalist economics’;51 the only ‘serious’ rights are those of the capitalist entrepreneur. Milbank radicalises this point by linking the success of human rights with the growth of a totalitarian neoliberalism in two directions: open-ended extension of the market beyond political control, and the emergence of a ‘market state’ that re-evaluates politics as a means of meeting the demands of citizens seen as consumers. In this view, failing a return to its original grounding in the Christian conception of limits, the West has little choice between the model of a Chinese-style authoritarianism at one extreme and that of a Latin American mafia at the other – unless, of course, the two were to combine as in the ‘diabolical Russian synthesis’.52 This line of thinking sees the recent recognition of same-sex marriage as confirmation of the expansion of liberal totalitarianism. For Milbank, same-sex marriage has nothing to do with respect for gay people; rather, by breaking the ‘natural’ link between sex and procreation, it paves the way for marketisation and quasi-eugenic control of birth, and debases the parent–child relationship into a narcissistic projection. He sees this as a glaring example of ‘biopolitical tyranny’,53 which exploits the universalisation of rights to destroy the family on the grounds that it is the foremost social institution likely to intervene in the direct relationship between individual and state. The more human rights come to act as 50

51 52 53

Here we see once again a notion outlined by Heidegger in the blanket critique of modernity that followed the disillusionment of his Nazi sympathies: see Martin Heidegger, ‘Overcoming Metaphysics’, in The End of Philosophy, trans. Joan Stambaugh, New York (NY), Harper & Row, 1973. Villey, Le Droit et les droits de l’homme, p. 152. Milbank, ‘Against Human Rights’, pp. 4–5. John Milbank, ‘The Impossibility of Gay Marriage and the Threat of Biopolitical Control’, www.abc.net.au/religion/article/2013. Accessed 12 November 2014.

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the normative basis for all politics, Milbank believes, the more they will drive the transformation of neoliberalism into a kind of totalitarian capitalism which abandons ‘democracy’ in the name of liberty and efficiency. These are the grounds on which Milbank believes that Samuel Moyn’s analysis – which sees the emergence of human rights as a sort of antipolitical utopia – underestimates the truly political dimension of the new international human rights discourse. Human rights are in fact still bound up with the political, but politics are at the same time becoming more and more international, moving towards the creation of a new entity that accepts liberty as far as it responds to political needs, yet erodes democracy understood as a plurality of specific and unique associations. It seems we are to understand this conception of ‘democracy’ (which is not explored in much depth) as a political body founded on the principles of distinction, corporation and cooperation. First, distinction, since majority rule must be balanced by the ‘aristocratic’ face of the concern for truth and virtue as ends in themselves, and by a sense of justice sheltered from mass prejudice, as happened with the ‘legitimate abolition’ of the death penalty. Second, corporation, meaning that a people is not merely an aggregation of abstract, isolated individuals, but a body of human beings integrated in groups larger than themselves: professions, cultures or faiths, for instance. In Milbank’s view, integrating Muslims in European societies would therefore mean governments taking Islam seriously as a political body and not merely a nebulous mass of individual believers – a conception that would be foreign to Islam itself. Finally, cooperation, by promoting a dense fabric of associations of local producers and consumers which would encourage the growth of an alternative market based on the ethical value of any transaction. However, beyond this it is clear that the ultimate justification of democracy must be a theological one: if truth is distributed among the people (even if guided by a virtuous elite), this is because the Holy Spirit speaks through all its members.54 We may be doubtful as to whether the name ‘democracy’ really applies to such a determinedly organic, hierarchical and theological vision of society. Anti-modern thinkers, as Antoine Compagnon observes, ‘carry the cross’ of democracy since they dare not revolt against it.55 We would add that because of this, anti-moderns also tend to avoid thinking about democracy in its own right and in the essence of its demands, the first 54

55

John Milbank, ‘How Democracy Devolves into Tyranny’, www.abc.net.au/religion/arti cles:2010. Accessed 12 December 2014. On this ‘theocratic’ facet of democracy, see Rémi Brague, ‘Are Non-Theocratic Regimes Possible?’ Intercollegiate Review, Spring 2006, 41. Compagnon, Les Antimodernes, p. 37.

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being freedom of conscience. It is telling that John Milbank is not interested in the real history of the idea of human rights: he does not consider that the late eighteenth-century declarations might be irreducible to their remote historical origins, or that their meaning must be sought above all in the novelty of their emergence and in the debates and conflictual appropriations that forged them. Like Villey before him, Milbank takes it as given that the philosophy of Hobbes and Locke – who never use the expression, however – furnishes the idea of human rights with its meaning. He gives no more justification for his omission of the other source of the liberal democratic idea in Spinoza’s thought, which is by no means a philosophy of the all-powerful will or the isolated individual. Milbank’s entire critique is premised on a highly questionable thesis (we shall see why in Chapter 2): that neoliberalism and human rights share a common genealogy. The Anti-modern Critique (2): Human Rights against Politics Another movement that we may describe as ‘anti-modern’ also rejects the very principle of subjective right, following the outlines of Julian Freund’s contentions about the unique nature of the political domain and (going further back) those of Carl Schmitt on the contradiction between a liberal conception of law and the political concept of democracy.56 Schmitt’s ‘official’ editor and commentator in France, the Christian thinker and ex- Resistance member Julien Freund – who pursued doctoral studies under the supervision of Raymond Aron – surely did not believe in all the neo-pagan theories of the ‘Nouvelle Droite’ (New Right) that attracted him in later life. It nevertheless seems misplaced to describe him (as does Pierre-André Taguieff) as a ‘liberal-conservative’, even a ‘dissatisfied’57 one, without badly denaturing the concept of liberalism: Freund’s work evinces the same hostility as Schmitt’s towards the depoliticising logic that he believes is behind individualist liberalism. Freund sees the very idea of subjective right as ‘absurd’ since law can apply only to a plurality; in other words, it can only apply to individuals in so far as they stand in mutual relationships to other individuals within a given society.58 In this sense, the ‘subjectivist delirium’ arguably running through societies today stands witness to a corruption of law that is intrinsically ‘a measure, that is a principle of social regulation, and not the 56 57 58

See Chapter 6. Pierre-André Taguieff, Julien Freund. Au coeur du politique, Paris, La Table Ronde, 2008, p. 128. Julien Freund, Politique et impolitique, Paris, Sirey, 1987, p. 285.

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legitimation of irregularities, excesses and disorder’.59 Freund believes that subjectivism indicates the perversion of a law diverted from its object in order to justify the deregulation of arbitrary desires. The ‘Nouvelle Droite’ ideologue Alain de Benoist, meanwhile, reworked these fragmentary observations into a more systematic attack on human rights. In an incongruous hotch-potch calling on Marx and Gauchet by way of Villey, Manent and of course Freund and (above all) Schmitt, Benoist sets out to decry the loss of what he sees as the European legacy of an objectivity principle. While this principle is always reached from the starting point of something particular, the ideology of human rights in Benoist’s view claims to apply to all regardless of group belonging, tradition and context. Human rights discourse according to this argument is an ideological weapon of globalisation and merely renders the untenable image of a society reduced to a mere mass of individual atoms, each equally driven by the rational betterment of their own interest. So far, this attack on human rights is hardly new. Where the second anti-modern movement departs from the first is with the idea, clearly borrowed from Schmitt, that human rights are a sort of denial of the political, an ‘impolitical’ matter to quote Freund. Freund defined the ‘impolitical’ as a way of doing politics without acknowledging its specificity, its spirit and vocation, flouting its imperatives of organisation or protection of human beings within a given society. The ‘impolitical’ means that which ‘contravenes intelligence and cogency in political action, or which debases the spirit and vocation of politics’.60 In this regard, the impolitical must not be confused with the nonpolitical (that which simply falls outside the political domain), or with the antipolitical (rejection of the political). Rather, it designates a lack of judgement or cogency in implementing political action. Though Freund mentions the ‘impolitical of human rights’ only in a reconstructed interview published after his death,61 the idea that human rights evince a form of degeneracy consisting in ‘mixing up powers’ would seem to tally with his thought. Just as issues of economics, pedagogy or justice cannot be resolved by politicising them, democracy is corrupted when it ceases to be a process of attributing power and becomes a process of democratisation, that is, an open-ended extension of the democratic function into nonpolitical domains of human activity. 59 61

Ibid., p. 316. 60 Freund, Politique et impolitique, p. 1. Conversation with Julien Freund, http://grece-fr.com/?p=3510. Accessed 17 December 2014.

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As a political (not social) regime, democracy is founded on the existence and validity of a given authority which as such restricts the boundaries of the political to dealing exclusively with citizens defined by belonging and specific capacities (those of a given political community). Yet if everything becomes political, there is no politics in the true essence of the term; we lose any sense of direction amidst the ‘deluge’, ‘starting with the meaning of the word politics’.62 Benoist continues this argument, arguing that this is the downfall of human rights theory which recognises only abstract, private individuals (here he joins others in paying tribute to Marx’s foresight), extracted from their historical context and obeying only the laws of morals and economics. Human rights theory is thereby divorced from both politics and democracy, rallying not only against one particular kind of despotism but against democracy itself and ultimately against politics in any form.63 Twenty years earlier, Freund had already argued that what defined the situation of his time was ‘the hostility or even hatred for politics as an concept and organising activity of society’.64 Depoliticising it may be, but the logic of human rights is no less likely to give rise to war. The French Revolution had hardly proclaimed the rights of man before it led towards war and the Terror. Schmitt, too, decried the politicisation of the idea of humanity as an ideological tool of expansion by force, or in its ethical and humanitarian forms as a specific vehicle for economic imperialism.65 Benoist reprises this view verbatim, adding Freund’s prediction that human beings might well one day fight ‘in the name of equally commendable conceptions about human rights’.66 The novelty of this prediction masks a strange paradox: that it disqualifies human rights in the same gesture as a process of depoliticisation (supposedly diluting democracy into non-conflictual areas of economics, culture and morals) and politicisation (human rights allegedly invest nonpolitical spheres such as education with the conflictual practices of political democracy). The idea that ‘nothing is political when everything is political’ does not resolve this paradox. It is one of the principles of Schmitt’s conceptualisation, used by Freund and Benoist, that the political ‘does not designate an exclusive area of activity but only the degree of intensity of an association or dissociation of human beings whose motives may have to do with religion, nationalism (in an ethnic or cultural sense) 62 63 64 65 66

Freund, Politique et impolitique, p. 204. Alain de Benoist, Au-delà des droits de l’homme, Paris, Krisis, 2004, p. 34. Freund, Politique et impolitique, p. 394. Carl Schmitt, The Concept of the Political (1927), trans. George Schwab, Chicago (IL), University of Chicago Press, 2007, pp. 78–79. Freund, Politique et impolitique, p. 198.

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or economics, amongst other things’.67 Defined like this, it is difficult to see how a process of politicisation can as such be depoliticising. The Communitarian Critique (1): The Ascendancy of Rights and the ‘Good Life’ If attacks on human rights in themselves remain relatively marginal, the primacy allegedly accorded to individual rights – over and above bonds of group belonging and loyalty that integrate the citizen into a political community – has been subject to sustained criticism for at least three decades both in Anglophone political thought and French political theory. Compared with the objections to human rights examined in the previous section, the defining feature of these criticisms is that they highlight the alleged domination of human rights in contemporary political cultures with an argument that originates in the heart of modernity itself. For so-called communitarian or civic republican writers, as well as some legal theorists,68 the theory of human rights ascendancy neglects the involvement and contextualisation that define human existence, and takes root in an abstract conception of individuals as mere vessels for rights.69 Pushed to its logical endpoint, this critique comes close to seeing appeals to individual rights as the symptom of our failure to establish virtuous institutions driven by a sense of common good. The argument appears to be that if we shared common goals and were bound together by real affective bonds, we would have no real need for rights. Michael Sandel thus cites the example of the family as the blueprint of an institution based on shared meanings and objectives, rather than only on duties and obligations.70 We should point out in passing that this argument strangely idealises the traditional communitarian family, shaped not by affection so much as the preservation and transmission of a legacy. In fact, the family based on emotive ties rather than on the need for reproduction

67 68

69

70

Schmitt, The Concept of the Political, p. 79. This type of neo-republicanism has little in common with the republican strand which, in the vein of Phillip Pettit, fully acknowledges the moral individualism and ethical pluralism of modern society even while focusing on the concrete conditions for rights to be effective more than the liberal paradigm does. See Cécile Laborde and John Maynor (eds.), Republicanism and Political Theory, Oxford, Blackwell, 2008, pp. 15–17. See especially Amitai Etzioni, The Spirit of Community: Rights, Responsibilities and the Communitarian Agenda, New York (NY), Crown, 1993; Michael Sandel, Liberalism and the Limits of Justice, Cambridge, Cambridge University Press, 1982 and Democracy’s Discontent. America in Search of a Public Philosophy, Cambridge (MA), Harvard University Press, 1996; Theodore Pangle, The Ennobling of Democracy: the Challenges of Post-Modern Ages, Baltimore (MD), Johns Hopkins University Press, 1992. Sandel, Liberalism and the Limits of Justice, p. 33.

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or the brutality of power relations is a result of the rise in awareness of rights and of their extension to the domestic sphere. However, the ‘communitarian’ critique does not for the most part attack the idea of human rights in itself, recognising that it has historically been an emancipating force both at the national and international levels. However, what it does question is the new direction supposedly taken by human rights discourse over the past five or six decades, which it argues has led to a ‘colonisation’ of contemporary political culture by a language exclusively focused on the prerogatives of the individual.71 The attack targets a particular dialect of this language (what it calls ‘rights talk’) that has shifted the centre of gravity, both in legal decisionmaking and political discourses, towards defence of individual liberty at the cost of all else. Michael Sandel places the turning point in legal precedent at the start of the 1940s, when the US Supreme Court radically changed its view of the relationship between civil liberties and community membership from one decision to the next. Sitting in 1940 on the case of two children expelled from school because they had refused to salute the national flag, the Court threw out the plaintiffs’ claims, ruling that demanding allegiance to the flag was ‘a legitimate way of cultivating the communal identity of its citizens’ and fostering ‘that unifying sentiment without which there can ultimately be no liberties, civil or religious’.72 However, in a similar case three years later the Court annulled the principle of compulsory salute, stating that ‘the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy’. In a concurring opinion, Judges Black and Douglas added that (in Sandel’s words) ‘patriotism would be a matter of choice, not of inculcation, a voluntary act by free and independent selves’; the court ruling stipulated that ‘love of country must spring from willing hearts and free minds, inspired by a wise administration of free laws enacted by the people’s elected representatives within the bounds of express constitutional prohibitions’. With this decision, Sandel writes, ‘the procedural republic had arrived’.73 Sandel sees signs of this development in several other areas, including freedom of speech where, following an initial distinction between ‘highvalue’ and ‘low-value’ discourses worthy of protection or not as the case 71 72 73

Martti Koskenniemi, ‘The Effects of Rights on Political Culture’, in Philip Alston (ed.), The EU and Human Rights, Oxford, Oxford University Press, 1999, p. 99. Minersville School District v. Gobitis, 310 US 586 (1940), cited by Sandel, Democracy’s Discontent, p. 53. West Virginia State Board of Education v. Barnette 319 US. 624 638 (1943) cited by Sandel, Democracy’s Discontent, p. 54.

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might be, the Court came round to a different view in the 1970s and 1980s: that while the government might on occasion have legitimate reason to regulate freedom of speech, any valid restriction must be based not on evaluation of a discourse in itself but only on its nature as the result of choices freely and voluntarily made. We might almost call this line of thought ‘teleological’. In fact, it challenges less the importance of rights than the possibility of identifying and justifying them outside the framework of a conception of the good life. The new culture of rights today is thus described as overly legalist and formalist. Exponents of this view maintain that approaching social issues in terms of individual rights obscures the fact that people in real societies must deal with demands and constraints – of religion, ethical behaviour, excellence, national belonging and so on – which are not translatable into a language of rights.74 Escape from the ‘tragedy of incompatible and contested goods’ comes at the price of a bureaucratisation of the political arena which now aims to provide nothing beyond aggregate utility – ‘paradoxically precisely the outcome that rights discourse originally sought to combat’.75 It is important here, of course, not to confuse authors who appear almost to advocate a kind of renewed ‘moral community’, organised around a substantive conception of the good life, with those who define democratic politics precisely as a stand-off between competing visions of equality and liberty.76 The two do hold one grievance in common, however: that the ascendancy of rights today goes hand in hand with impoverishment of the political domain, stripped of its ethical, creative and imaginative dimensions to make way for a purely technical organisation of legal powers. Furthermore, in this view, today’s culture of rights must be seen as absolutist. The formidable power of human rights rhetoric lies in their Janus-faced nature: though purportedly ahistoric and universal, they can in fact find real meaning only once implemented in the context of a domestic constitution. Hence also their ambivalence: the more fundamental rights are presented as a criterion external to the political community, the further we move towards a form of theology that takes us away from the exercise of popular sovereignty. According to Martti Koskenniemi, therefore, we have a dilemma: either we embrace a small kernel of fundamental rights in the guise of ‘taboos’ – at the risk of becoming mired in interminable debates between the ‘right to life’ and 74 76

Koskenniemi, ‘The Effects of Rights’, p. 103. 75 Ibid., p. 114. On this distinction see Chantal Mouffe, The Return of The Political, London, Verso, 1993, 2005, pp. 32–33. We could place Sandel in the first group, while Koskenniemi is more in the second.

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the ‘right to private life’, or between the ‘right to liberty’ and the ‘right to security’ – or we accept that rights are indissociable from a politics increasingly reduced to mere procedural tussles and competing jurisdictions. Indeed, once any group can table its demands in the form of rights to be satisfied, the conflicts generated by such ‘proliferation’77 can no longer be resolved in a reasoned, balanced way in view of the common interest. This dovetails with Mary Ann Glendon’s diagnosis: that the current tendency to describe any controversy in terms of a struggle over rights precludes compromise and encourages unrealistic expectations with no regard for the social costs these incur.78 Translating every desire into a right is a recipe for a contentious society defined by an imbalance between rights and responsibilities.79 This is also the source of another criticism of a ‘politics of rights’: that it undermines people’s civic sense and makes citizens into passive, selfish consumers of individual rights. According to this argument, the rhetoric of rights forgets that individual autonomy also emerges from the context in which an individual lives, and thus becomes indissociable from a kind of ‘therapeutic sensibility’ as described by Christopher Lasch at the end of the 1970s.80 Lasch holds that this sensibility places individual fulfilment above all else, aiming for short- rather than long-term gratification, managing crises rather than forestalling them, and prioritising particular interests over the common good. The original conception of the American Republic and the proper meaning of the initial declarations has thereby been lost: ‘Rights in the current American dialect are the expression of desires the drafters of the Bill of Rights viewed with suspicion – to be completely free, to possess things totally, to be treated justly without being asked to act justly.’81 The Communitarian Critique (2): Democracy Turning against Itself In a similar way – though without the extensive reference to international debates discussed earlier – certain strands of French thought have voiced increasing criticism of the new pre-eminence granted to human rights over the last three decades. This may seem paradoxical given the competing thesis, advanced by some outside observers, of a conversion to 77 78 79 81

See also Carl Wellman, The Proliferation of Rights, Boulder (CO), Westview Press, 1999. Mary Ann Glendon, Rights Talk. The Impoverishment of Political Culture, New York (NY), The Free Press, 1991. Etzioni, Spirit of Community, p. 6. 80 Glendon, Rights Talk. Glendon, Rights Talk, p. 173.

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liberalism during the 1980s in France after the anti-liberalism of the 1960s. In fact, the ‘zenith’ of human rights claims in France precisely coincided with the moment when some of the intellectuals who had been among the harshest critics of communist ideology distanced themselves from a discourse they had come to see as founded on illusions.82 This turn-around is explained by the fact that the conversion to liberalism itself contained the challenge to what François Furet had called the ‘revolutionary catechism’: the critique of totalitarianism did not leave the legacy of the French Revolution intact. Not only did the Terror of 1793 now appear in the long shadow of the ‘Gulag’ ‘by virtue of similar aims’;83 1789 itself, in its overestimation of the power of political action, already seemed to herald elements of 1793.84 This did not disqualify the progress achieved by human rights, but the critical analysis of the course taken by the Revolution nonetheless painted a picture of the idea as a problem as much as a solution. The 1789 Declaration had served as the banner of a revolutionary process that it had not been able effectively to channel. It followed that legitimate uses of human rights must, on the one hand, be marked out from their non-liberal uses that had turned the revolution towards terror, and, on the other, that we should not demand the impossible of human rights – the basis for a total reorganisation of society, which they are powerless to provide.85 The alleged domination of human rights came more and more under fire with the collapse of the Soviet empire and the first Iraq war. As of 1980, several well-known figures of French public debate challenged Lefort’s political defence of human rights.86 For philosophers such as Marcel Gauchet and Pierre Manent, the vitality of pluralist society described by Lefort risked eventually turning democracy against itself.87 At first glance, these two figures – both members of the Centre Raymond Aron at the Ecole des hautes études en sciences sociales – may appear to 82 83 84 85

86

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Frédéric Worms, La Philosophie en France au XXe siècle, Paris, Gallimard, Folio, 2009, p. 558. François Furet, Penser la Révolution française (1978), Paris, Gallimard, Folio, 1985, p. 29. On this subject as seen in Furet’s writings, see Steven Kaplan, Adieu 89, Paris, Fayard, 1993, p. 708 sq. P. Simon-Nahum (‘François Furet et la double fin de l’idée révolutionnaire’, Esprit, 10, 2009, pp. 149–160) shows that Furet ‘shares’ the ‘critical diagnosis’ of Marcel Gauchet ‘on the predominant position accorded to human rights in contemporary societies’. As early as 1978, Régis Debray was elaborating a neo-republican critique of human rights. Régis Debray, Modeste contribution aux discours et cérémonies du dixième anniversaire, Paris, Maspero, 1978. See notably Marcel Gauchet, L’Avènement de la démocratie, vol. 1, La Révolution moderne, Paris, Gallimard, 2007, pp. 16–20 and La Démocratie contre elle-même, Paris, Gallimard, 2002, as well as Pierre Manent, Cours familier de philosophie politique, Paris, Fayard, 2001 and La Raison des nations, Paris, Gallimard, 2006.

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have little in common. A former student of Claude Lefort, Marcel Gauchet – after a series of flings with a number of post-’68 ultra-leftist journals – made a long transition that led him from anarchism towards a type of republicanism which viewed the decline of social cohesion with anxiety.88 In 1980 he started work as co-editor of the new journal Le Débat, which was to become one of the main arenas of intellectual influence in the following two decades. It was in this journal that he published an article whose title became a sort of mantra for neo-republican French thought89 – ‘Human Rights Are Not Politics’ – and which he would return to and develop further twenty years later in ‘When Human Rights Become Political’. If the arguments in the first article can be seen as an (implicit) response to those put forward in ‘Politics and human rights’, we must also remember that both Gauchet and Lefort rejected a ‘moral’ vision of human rights as situated outside the political domain. Conversely, however, Gauchet is far more alive than his former mentor to their individualist dimension. Lefort’s mistake, he argues, lay in failing to recognise that putting individuals with their interests and rights before all else risks weakening the defining political footholds of the modern democratic process. If the implementation of democratic principles exhausts its energies in a politics of human rights, it will eventually sap democracy itself of its vitality – if not, more radically, lead to the collapse of its institutions and means of exercise (Gauchet 2002 and 2007). In this argument, Gauchet speaks in concert with an article by Pierre Manent, in which he accuses Lefort of underestimating the ‘atomising’ capacity of human rights90 – a recurring theme of many of his later works too. Manent – a Catholic philosopher, former assistant to Raymond Aron and a key figure in launching the journal Commentaire in 1978 – is, however, of very different political and philosophical stock from Gauchet: he can in fact be seen as one of the French disciples of Léo Strauss. Yet beyond their significant differences, these two authors unite in resisting what they call a kind of ‘democratic fundamentalism’ and the 88

89

90

See especially Samuel Moyn, ‘Savage and Modern Liberty: Marcel Gauchet and the Origins of New French Thought’, European Journal of Political Theory, 4 (2), pp. 164–187 and Michael Behrent, ‘Religion, Republicanism and Depoliticization: Two Intellectual Itineraries – Régis Debray and Marcel Gauchet’ in Julian Bourg (ed.), After the Deluge: New Perspectives on the Intellectual and Cultural History of Postwar France, Oxford, Lexington Books, 2004, pp. 325–352. Once again, this neo-republicanism is distant from that which identifies the ideal of nondomination with the rejection of any identity-based definition of the public space. See Cécile Laborde, Français, encore un effort pour être républicains !, Paris, Seuil, 2010. Pierre Manent, ‘Démocratie et totalitarisme. A propos de Claude Lefort’, Commentaire, 16, Winter 1981–1982, pp. 574–583.

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ideology that accompanies it: the elevation of human rights as an overarching regulatory principle of social life. They both interpret the triumph of liberal democracy as a Pyrrhic victory, on the grounds that the democratic principal, corrupted into a sort of radical individualism, will eventually turn against itself. Threats to democracy issue not only from its conventional enemies – those who reject the principle of democratic equality – but also, perhaps above all, from its ‘over-zealous friends’ – those who attempt to impose equality as a formal and abstract concept on the whole of society, spurning any compromise with the requirements of communal life or moral norms inherited from pre-democratic times. In this sense, a democracy of rights is democracy both travestied and truncated, having lost sight of the inherent constraints of the political domain. It is, in Manent’s words, a ‘pure democracy’, a ‘democracy without a people, in other words a form of democratic governance which lacks no respect for human rights but is detached from any collective deliberation’: a ‘kratos with no demos’, because ‘What now possesses kratos is the very idea of democracy’.91 Conventionally, the term ‘democracy’ referred to the capacity of political entities to govern themselves. Today, it has arguably been reduced to the point of designating mere protection of individual rights and masking pathology in the mirror image of totalitarian domination: that of the individual divorced from any sense of collective belonging. All in all, Gauchet argues, we have swung ‘from one extreme to the other: the threat of the total State has now been superseded by that of the total individual – the individual who owes nothing to society yet demands everything of it’.92 This is the source of the unprecedented pairing of ‘profound depoliticisation’ with ‘radical demand-making’, which these authors see as the spectacle played out by contemporary society. It is also why legal norm-making is increasingly eating into the territory of political will. For these authors, the clearest sign of this transformation of democracy is the current consecration of individual rights. And ‘individual’ they truly are, since they refer to a very particular conception of human rights – which now, according to Gauchet, ‘mobilise the inherence of rights in the person against a sense of civic belonging, instead of using one to shore up the other as in the original republican version’.93 This is the most 91

92 93

Manent, La Raison des nations, pp. 15–16. We should note that Schmitt had already criticised liberal democracy as a ‘democracy without a demos, without a people’ (Carl Schmitt, ‘The Liberal Rule of Law’ (1928) in Arthur J. Jacobson and Bernard Schlink (eds.), Weimar. A Jurisprudence of Crisis, Berkeley (CA), University of California Press, 2000, p. 298. Marcel Gauchet, La Condition historique, Paris, Gallimard, 2001, p. 314. Marcel Gauchet, La Religion dans la démocratie, Paris, Gallimard, 1998, p. 111.

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noticeable break with anti-modern thought: though the substance of their claims against human rights is similar, the anti-moderns’ critique (as we saw earlier) rejected the concept of human rights itself, making no distinction between those proclaimed in the eighteenth century and human rights today. Communitarians or neo-republicans, on the other hand, view the meaning now ascribed to human rights as a travesty of their original description. This ‘verbosity’ covered by the discourse of human rights, as Régis Debray writes, ‘has nothing but name in common with 1789’.94 Debray’s diagnosis foreshadows that of Jean-Claude Milner, who as we have seen pits two doctrines of human rights against each other: the ‘classic’ position of 1789, which embodied a principle of boundaries, and the ‘new doctrine’ of today, which operates on the premise of illimitation.95 These authors posit the existence of a human rights utopia, moving towards the gradual absorption of political life into law. Manent goes even further in opposing two bodies ‘increasingly subjected to a single and exclusive principle, the unlimited right of the European individual and the unlimited power of divine Law in Islamic countries’.96 Manent suggests that both of these – the ‘extremism of subjective right’ and the ‘extremism of the objective rule’ – in fact reject the same thing, that is, the ‘production of the common good by the citizen community’.97 He also goes against Lefort in arguing that Marx had clearly seen the internal contradiction in the modern democratic project, somehow based on the negation of a human political condition. Hence Manent’s assessment of Lefort’s critiques of Marx as ‘pertinent’ yet ‘not entirely convincing’. Though Marx may indeed have been blind to the social meaning of human rights in the new society, ‘Lefort is doubtless not sensitive enough to the divisive effects of these rights and especially those which he approvingly calls the new rights.’ Manent sees proof of this divisive function in the fact that women no longer need the ‘conjugal tie’ in order to guarantee them a place in society.98 Similarly, in his argument against same-sex marriage, the Catholic philosopher Thibaud Collin attributes to Lefort the source of the intellectual mutation that has made the subject into a ‘being whose nature is . . . to demand rights’. The ‘circularity of the argument’, he adds, ‘shows that individual liberty has become the benchmark of demands; hence the open-ended proliferation of new rights’.99 94 95 96 97 99

Régis Debray, Que vive la République, Paris, Editions Odile Jacob, 1989, p. 171. Jean-Claude Milner, Les Penchants criminels de l’Europe démocratique, Lagrasse, Verdier, 2004, p. 93. Pierre Manent, Situation de la France, Paris, Desclée de Brouwer, 2015, p. 26. Ibid., pp. 27–28. 98 Manent, Cours familier de philosophie politique, pp. 179–180. Thibaud Collin, ‘Un combat idéologique’, Le Monde, 6 February 2014.

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Other authors also express this critique of Lefort, the more strikingly so since they come supposedly from such radically different political camps and intellectual traditions. The writings of Manent or Collin overlap significantly with those of the ex-communist Jean-Claude Michéa, who claims kinship with an ‘original’ socialism most faithfully perpetuated in the twentieth century by George Orwell. Acknowledging the contemporary relevance of Marx’s critique of the individualising tendency of human rights, Michéa alleges that Lefort’s interpretation has played a ‘decisive role’ in the emergence of a so-called liberal-libertarian left which forgets that indefinite growth of individual rights must eventually lead, ‘through the effects of the old provocation/hardening dialectic’, to a perpetual struggle of all against all.100 Beyond his alleged underestimation of the divisive nature of human rights, then, Lefort is also accused of failing to see that the proliferation of new rights is in fact more of a threat to civil society than to state power. Manent highlights the idea that state power is not only the usual vehicle for reciprocal recognition of liberties but also benefits from this recognition. Once traditional powers within society (that of business owners over employees, men over women and so on) are thrown out in the name of the individual, it is society’s own power to organise independently of the state that tends to suffer. This intersects with Gauchet’s diagnosis that ‘the more humans take on the right to define their own society, the more the organising arm of the bureaucratic state – under pretence of facilitating this process – in fact seizes it from them’.101 Today, it has also become necessary to ‘defend human rights against themselves’ or against the logic of liberal illimitation, the likely outcome of which is the blanket normalisation of any and every kind of behaviour.102 It is strange to see this argument presented as a defence of Marx’s early work against Lefort: what Marx was attacking in his critique of human rights was certainly not their supposed threat to social order, but rather the support given to this order by the image of the property-owning individual that permeated them. In claiming that democracy gets into all areas of social life, Marx radicalised the political demand intrinsic to human rights. Lefort’s critique, attempting to rescue the democratic demand from the ‘totalitarian fantasy’ that leeches off it in some of Marx’s works (whilst also avoiding the alternative of a return to property rights as the central idea) is paradoxically more faithful to Marx’s ideas than is Manent’s explicit reprise of Marxist themes. Marx’s aim was not to 100 101

Jean-Claude Michéa, L’Empire du moindre mal. Essai sur la civilisation libérale, Paris, Champs, 2007, p. 41. Gauchet, La Démocratie contre elle-même, p. 21. 102 Ibid., p. 39.

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warn against the crisis of authority and state surplus that would arguably be produced by a rise in demands issuing from a diverse civil society; rather, his concern was about the separation of the political and the social which limited the power of collective exercise of rights. He set out, in other words, not to ‘defend human rights against themselves’, but rather to push them beyond their own limits. We shall return to this idea in Chapter 5.

* Some see in either communitarian or anti-modern critiques nothing but a veiled continuation of one of the perpetual features of antidemocratic thought. Stephen Holmes, for instance, calls the ‘communitarians’ ‘soft’ anti-liberals, arguing that they never distinguish their critique of the apathy liberal law supposedly produces in its subjects from that of Carl Schmitt or Giovanni Gentile, for instance.103 Though they attack the atomism of contemporary theories and societies in similar terms to several anti-liberal writers, they too often fall back on eleventh-hour concessions which suggest that their critique is no bar to continued enjoyment of the gains of liberal modernity. ‘They exhibit their aversions, impatiently attack, and then pull back’,104 as if it were possible to combine the supposed charms of the social order of pre-individualist societies with the range of choice and the mobility that mark out liberal societies. In French thought, the philosopher Jacques Rancière has maintained that the new critique of rights merely revisits the counter-revolutionary theme of the French Revolution as an instance of terror, not for having trampled on human rights but for having proclaimed them – a belief that has spread beyond its original intellectual circles to the conservative strains of liberalism exemplified by Ernest Renan or Hippolyte Taine. Behind the apparent reverence for Enlightenment thinkers and the democratic idea, neo-republican ideology according to this argument is merely the reprise of a ‘very French denunciation of the individualist revolution breaking social bonds’.105 However, three remarks must be made to stall a hasty conflation. First, in the vast majority of cases, the critique of human rights works today in the name of democracy even while it is used by counter-revolutionary 103

104 105

Stephen Holmes, The Anatomy of Antiliberalism, Cambridge (MA), Harvard University Press, 1996 and ‘The Permanent Structure of Antiliberal Thought’ in Nancy Rosenblum (ed.), Liberalism and the Moral Life, Cambridge (MA), Harvard University Press, 1989, pp. 177–253. Nancy Rosenblum, ‘Pluralism and Self-Defence’ in Nancy Rosenblum (ed.), Liberalism and the Moral Life, Cambridge (MA), Harvard University Press, 1989, p. 216. Jacques Rancière, La Haine de la démocratie, Paris, La Fabrique, 2005, p. 22.

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thought and elitist liberalism to argue against democracy and the advances offered by republican citizenship. Challenging the sincerity of democratic demands of one or the other group is not enough to offset this criticism; neither is piecemeal observation of the (deliberate) confusion between nation and democracy that allows a communitarian form of conservatism to present itself as a defence of self-government, or even as a socialist critique of neoliberal dominance. Even if these slippages are genuine in many cases, philological honesty compels us to take authors at their word when they espouse a democratic and/or republican principle. We can only establish intellectual kinships and similarities in argumentation between different forms of critiques against human rights through close textual study, concerned as much to respect the nuanced differences between authors as to prise out the guiding threads that structure the logic of their ideas. We might also, to continue setting references alongside each other, compare the new critique of human rights to Marx’s early objections in On the Jewish Question to the idea of ‘man . . . separated from the community, from himself and other men’. We have already seen that authors such as Villey or Manent admire Marx’s foresight on this point, even if they use it to support conclusions utterly different from Marx’s own. Yet the fact remains: from a historical point of view, attacks on human rights have by no means always issued from counter-revolutionary quarters. This leads to the third reason why we cannot reduce the new critiques to a conservative stance: there exists a third line of attack on human rights issuing from within the radical left itself. The Radical Critique: Human Rights against Emancipation Once again, the ‘radical’ critique must not be hastily written off as a straightforward rejection of human rights. This is sometimes the case with a few influential authors whose work is informed more by hollow formulas than reasoned argument. However, in its more sophisticated incarnations – especially the works of David Kennedy, Martti Koskenniemi and above all Wendy Brown – the point is less about turning away from human rights or even contesting their historical importance than giving a critical account of the effects of the language of rights today. In many ways, this critique picks up Marx’s early view and complements it with the findings of Foucault, stressing that although political emancipation represents ‘great progress’, it must not be confused with human emancipation.

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The combination of Marx and Foucault here may seem strange given that Foucault saw the attempt to ‘disalienate’ man as a vestige of the illusory belief in human nature. What Foucault shows us is that the struggle against domination is never-ending, since every human relationship is a relationship based on power. Campaigns for freedom cannot be a case apart from this law of power relations; rather, they are a way of dealing with power relations in order to dismantle their underlying oppression. Yet Foucault does overlap with Marx in his analysis of the ambiguities of law. Just as Marx reveals the two faces of human rights (political emancipation and transmission of social alienation), Foucault draws attention to the paradoxical solidarity between the rule of law and the implementation (in prisons, schools, hospitals and so on) of a ‘disciplinary power’ that invents new ways of controlling individuals. These normalisation techniques are foreign to the principles of the rule of law, and perhaps even unjustifiable in accordance with it, yet are necessary to its proper functioning within the state: ‘it was clearly not an option to liberate individuals without first “training” them’,106 Foucault observes. ‘Effect[ing] a suspension of law which is never total, but is never annulled either’, disciplinary power constitutes a ‘counter-law’, in the two senses of an ensemble of techniques that run against the juridical principles of liberal legal codes and a ‘counterpart’ of law which is also its buttress – that is, its material bedrock.107 Foucault’s intention is not to disqualify all recourse to ‘law’ as an ideological veil for normalisation techniques; as already stated (and we shall return to this later), his position on human rights is far more complex than this. However, for the majority of his readers, the key issue remains to avoid getting trapped inside juridical forms that arguably represent yet another normalising stratagem. The radical critique thus sets itself the task of challenging the real contribution of human rights ideology to the progress of individual and collective autonomy. It suspects today’s rights talk of supporting an incomplete view of emancipation, and consolidating the neoliberal paradigm with a veneer of morality. In short, according to this view, human rights are tantamount to a kind of idolatry that hides insidious forms of domination under an ‘antipolitical’ exterior. Human rights discourse according to the radical critique first entails an impoverished version of emancipation, focused exclusively on government infringements of formal liberties. This is one of the paradoxes that 106 107

Michel Foucault, ‘Entretien’ (1978), Dits et écrits IV, 281, p. 92. Michel Foucault, Discipline and Punish: the Birth of the Prison (1975), trans. A. Sheridan, New York (NY), Vintage Books, 1995, pp. 224–225.

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the ‘communitarian’ critique had already brought out: while human rights advocates tirelessly rehearse their distrust of the state, their language implicitly places the state at the heart of the process of liberation, which it depicts as a binary relationship between the state and an individual invested with rights.108 This tactic produces at least two unexpected side effects. On the one hand, it distracts our attention from inequalities or equally crippling forms of domination, whether caused by private groups or socioeconomic context. As the example of Iraq amply demonstrated, merely overthrowing a state power does not necessarily win autonomy; nor does it help people to help themselves.109 In shifting the focus of society and the economy towards the state, the primacy accorded to human rights allows for scant attention to the specific contingencies that necessarily determine the meaning of individual laws. Its effect is to strengthen institutional sovereignty over individuals by masking the concrete dimension of power relations.110 On the other hand, a process that defines justice exclusively as the relationship between an individual invested with rights and the state encourages a strategy of claims to victimhood that hardly favours the emergence of an autonomous subject. Taking this argument to its extreme, Alain Badiou thus posits that an ethics of human rights reduces human beings to the role of mere victims. It identifies man with his naked nature of a ‘suffering animal, a gaunt dying body’111 – which in a perverse twist amounts to something approaching scorn, disguised as pity, for a kind of sub-humanity. The ideological apparatus of human rights in this view implies a victimised, animal definition of humanity, even while it soothes the conscience of those who condescendingly claim to work ‘on behalf of’ others less fortunate than themselves.112 It is in this sense that Wendy Brown sees the appeal to human rights discourse as merely an expression of our ‘fatalism’. Today, she argues, everything points to the idea that the prospect of any real democratisation of power has become so remote that the only remaining hope is that of reducing the overall weight of human suffering. The ethics of human rights confirms that no emancipatory project or politics remain; as Badiou says, it is merely a rallying cry for the ‘niceties of necessity’, an 108 109 110 111 112

Kennedy, The Dark Sides of Virtue, pp. 3–35. Wendy Brown, ‘The Most We Can Hope For . . . Human Rights and the Politics of Fatalism’, The South Atlantic Quarterly, 103, 2/3, 2004, p. 455. Wendy Brown, ‘Rights and Losses’, in States of Injuries. Power and Freedom in Late Modernity, Princeton (NJ), Princeton University Press, 1995, pp. 96–134. Alain Badiou, L’Ethique. Essai sur la conscience du mal, Caen, Nous, 2003, p. 31. Ibid., p. 38 and Kennedy, The Dark Sides of Virtue, p. 29.

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‘extraordinary impoverishment of the active and activist value of principles’.113 Human rights in this argument are a variant on the conservative consensus – a way, in fact, of legitimating the status quo. Today, this status quo takes the form of a dominant neoliberal individualism. The social atomism we now see claims to be open towards the ‘other’, yet in fact respects others only in so far as they are like us – and thus not really other at all. The Muslim headscarf, as Slavoj Žižek observes, is thus seen as acceptable if freely chosen by the woman wearing it and therefore a sign of individual idiosyncrasy rather than a marker of (non-voluntary) affiliation to the Muslim community. For Žižek, this indicates that the purported subject with ‘free choice’ results from a violent process of dislocation from one’s usual environment.114 Indeed, Badiou adds, the proclaimed apostles of the right to difference are in fact ‘horrified’ by anything beyond minor difference. In these authors’ view, respect for difference holds true only where the ‘different’ individual supports parliamentary democracy, market economics and freedom of opinion, or is feminist, ecologist and so on and so forth.115 The ethics of human rights and respect for difference, then, clearly defines an identity forged around liberal individualism. This ideology, in turn, operates without regard to the structural limitations that constrain its actors’ choices, aims first and foremost to outline a space of negative freedom, and does not concern itself with producing actors capable of taking collective action.116 For these radical critics, the liberal emphasis on a supposedly fundamental corpus of civil and political rights arises less from ontological imperatives than from the needs of capitalist expansion. As Marx had already highlighted, human rights are the precondition for a free market, and are intimately connected to a conception that subordinates the political domain to the legal needs of the economy. In this sense, the 2003 invasion of Iraq was not only motivated (according to this argument) by powerful political and economic interests, but also relied on a highly determined idea of the conditions for ‘liberty’ – namely liberaldemocratic capitalism and incorporation in a globalised world economy.117 The most virulent strain of this criticism arguably comes with the work of Gilles Deleuze. In his Abécédaire, he deplores the emptiness of human rights, which he sets against jurisprudence, meaning the invention of law based on the specific cases that arise: ‘those who simply recall and declaim 113 114 115 117

Badiou, L’Ethique, p. 57. Slavoj Žižek, ‘Against Human Rights’, New Left Review 34, July–August 2005. Badiou, L’Ethique, p. 13. 116 Brown, ‘The Most We Can Hope For’, p. 456. Žižek, ‘Against Human Rights’.

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human rights are nothing short of imbecile. The point is not to enforce human rights, but to invent specific legal precedents in which, for each case, this will no longer be possible. These are two very different things.’118 His last book, co-authored with Félix Guattari, continues the attack: ‘human rights will not make us bless capitalism’. Because they ignore the ‘immanent modes of existence of people provided with rights’, human rights have nothing to counter ‘the ignominy of the possibilities of life we are offered’. Their ‘axioms’ can ‘coexist on the market with many other axioms, notably those concerning the security of property, which are unaware of or suspend them even more than they contradict them’. They also easily rub along with the forces that cancel them out, especially the ferocity of a global market mediated by nation-states with their policing apparatus and their ghettos of misery.119 Deleuze’s argument is continued by the radical critique taken as a whole. Perfectly compatible with the ‘smug egotism of cosseted Westerners’120 and conveniently disregarding the fact that justice is constructed in context, for its time and for a particular people, human rights discourse according to this view cuts any local deliberation off at source through a combination of moral condemnation, legal adjudication and textual certainty. In this account, the ascendancy of rights abets the limitation or erasure of collective choices by transcendental demands, appeal to the courts and escape into exaltation of private liberties.121 Above all, however (such authors argue), human rights discourse presents the problem of power as a zero-sum equation: the individual has exactly what institutions do not. This is an obviously naïve vision, disqualified by a fact highlighted by Brown (who aligns with Sandel’s argument on this point) – that Americans have never had so many rights and simultaneously so little power to shape their collective justice and the direction taken by their nation.122 Here, the radical critique follows up on feminist allegations that human rights discourse reifies acquired identities and keeps quiet on oppressive mechanisms such as exploitation, marginalisation or the absence of authority, which (as Foucault illustrated) do 118

119 120 122

Gilles Deleuze, ‘G. comme Gauche’, L’Abécédaire (1988), Paris, Editions Montparnasse, 2004 (DVD). Strangely, this quasi-Burkean emphasis on jurisprudence is ushered in by a eulogy for the ‘becoming-revolutionary’ that neglects the role played in historical revolutions by human rights – which Deleuze hastily equates with certain ideological accounts of them in vogue at the time. This paradox also arises in the work of Badiou, who criticised human rights at the same time as glorifying the Jacobin revolutionaries. Gilles Deleuze and Félix Guattari, What is Philosophy? (1991), trans. G. Burchell and H. Tomlinson, London, Verso, 1994, pp. 107–108. Badiou, L’Ethique, p. 17. 121 Brown, ‘The Most We Can Hope For’, p. 458. Ibid., p. 459.

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not necessarily come from the state but travel through the ‘capillarity’ of power and individuals’ internalisation of the principles of their ‘governmentality’. A good example is freedom of expression, which in an era of mass media controlled by public or private groups can in fact favour the dominance of non-democratic discourses. The radical critique asks us to recognise what human rights discourse seeks to repress in itself: that it is a form of power which neatly converges with the demands of liberal imperialism and global exchange while also legitimating them.123 Proclaimed over and above politics, human rights are little more than the ‘façade’ of a technical administration of things and a struggle for power between various organs, each driven by precise political goals – and especially the universal imposition of a type of laissez-faire that gives free rein to insidious forms of domination.124

* Our overview illustrates that these various critiques, though radically different in their aims – from the anti-modern Catholic position to the Marxist view, by way of the republican critique – nonetheless occupy common ground in a number of the grievances they express against human rights. This holds especially true for the idea, which may at first seem counterintuitive, that market economics and state power are expanding in concert with one another. According to this view, the primacy of human rights, closely linked to the neoliberal paradigm, bolsters administrative power yet empties self-determination and collective emancipation of their meaning. We must also highlight the ubiquitous reference to the ideas of Marx’s early writings, which are called into the service of various different arguments by authors as far removed from each other as Catholic conservatives and advocates of a new communist hypothesis. However, the common rejections and references are not enough to constitute a shared position. Today as previously, we are dealing with not one but many critiques of human rights. Our aim in this book is precisely to examine the different faces of these critiques since 1789 in order to deepen our understanding of the current debate, which unfolds against their backdrop. Taking rights seriously also involves understanding the objections put to them and the arguments of those who deem them irrelevant.125

123 124 125

Brown, ‘The Most We Can Hope For’, p. 456. Koskenniemi, ‘The Effects of Rights’, p. 100. Waldron, Nonsense upon Stilts, p. 2.

2

Human Rights against Inheritance A Conservative Critique: Edmund Burke

Edmund Burke’s Reflections on the Revolution in France, published in November 1790, are in a manner of speaking the primal scene for critiques of human rights. Burke’s argument, quickly deplored by Thomas Paine as a theatrical ‘manufacture’ divorced from real events,1 or as a staged fantasy, nonetheless resonates through subsequent attacks on human rights. These range from the radicalised reprise of Burke’s ideas by counter-revolutionary thinkers from Wilhelm Rehberg to Joseph de Maistre2 to recognitions of Burke’s relevance by republican theorists such as John Pocock.3 Even Marx, who condemns Burke as a ‘sycophant’ patronised by ‘the English oligarchy’, then reconverges with the thrust of the Reflections when he writes that a ‘modest Magna Charta’ in the English tradition advances the cause of liberty further than ‘the pompous catalogue of the “inalienable rights of man”’.4 To speak of a primal scene is to speak of a traumatic event. The many reinterpretations and adaptations of Burke’s critique in new contexts have confused as well as enriched its original meaning; yet its powerful translation of the revolutionary trauma has never failed to make it an effective and influential argument. As Antonio Negri points out,5 the foresight of Burke’s early diagnosis of the situation in France soon became clear: as early as 1790, he predicted the real course of events when he declared that the revolutionary process would end in a coup in which ‘some popular 1 2

3

4 5

Thomas Paine, Rights of Man [1791], New York (NY), Dover, 1999, pp. 15–16. We cannot omit Burke himself from the list of authors who radicalised the tenets of the Reflections on the Revolution in France: his hostility to the Revolution grew ever fiercer before reaching its peak in 1796, in the Letters on a Regicide Peace, which described revolutionary France as a ‘monster-State’. Pocock sees Burke’s Letters on a Regicide Peace as ‘the 1984 of its generation’, the discovery of the ‘theory of totalitarianism’ (Introduction to Edmund Burke, Reflections on the Revolution in France [1987], Indianapolis (IN)/Cambridge, Hackett, 2003, p. xxxvii). Karl Marx, Capital, Book 1, chs XXXI and X, 7, pp. 539, 195. ‘Burke’s œuvre triumphs here standing tall. Its greatness is witnessed by the fact that although Burke was writing in 1790, at the start of the Revolution, he speaks of it as though he had already lived through its entire course’ ( Antonio Negri, Il potere costituente: saggio sulle alternative del moderno, Carnago, SugarCo, 1992).

59

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general, who understands the art of conciliating the soldiery, and who possesses the true spirit of command, shall draw the eyes of all men upon himself’.6 At a time when no one could have anticipated the events of 1793, and when the actors of the revolution demanded only a constitutional monarchy, Burke predicted that the revolutionary bid could end only in the terror of the scaffold as the basis for law: ‘massacre, torture, hanging! These are your rights of men!’7 In 1790, then, Burke saw human rights as one part of an impending terror, and judged this to be their inexorable fate. The visionary power of Burke’s argument, and the acute portrayal of his own terror at the violence of the revolutionary process, cannot fail to strike us. However, this terror remains that of an external spectator judging events at a distance that exaggerates their foreignness. Burke’s virulent counter-revolutionism has none of the strains of empathy found in a French monarchist such as Chateaubriand, who had experienced and directly suffered under the revolution, yet nonetheless (from his exile home in London) defended the desire for liberty that had led to 1789, and argued that the positive effects of the revolution would emerge in the longer term.8 Burke would persist in his refusal to acknowledge the very fact of revolution. As of 1790, his main concern was to deter his own compatriots from any thought of emulating the democratisation of political representation – or even the challenge to monarchy – seen in France. Burke sought less to defend the absolute Catholic monarchy in France than to preserve the English constitutional monarchy and church from revolutionary contagion, a threat he perceived in Richard Price’s speeches demanding the dissolution of the Anglican Church. Burke, moreover, prefaces his critique of human rights in the Reflections not with an analysis of the 1789 Declaration, but instead with a polemic directed against Richard Price’s 1789 sermon on patriotism, preferring to cite and comment on Price’s words than the seminal text of the Declaration. We can explain this relative indifference to the source text by the fact that it is not the content of the idea of human rights, but rather the fact that they are claimed, that imbues them with meaning. In other words, the meaning of human rights lies in the political action that they can justify – in England as in France – to contest the established order, or even any established order, regardless of its nature. Accordingly, for Burke, the mere idea of human rights is a subversive weapon since it takes no account of the context of demands for rights; it represents the 6 8

Burke, Reflections, p. 193. 7 Ibid., p. 195. François-René de Chateaubriand, Essai sur les Révolutions (1797), II, 19, Paris, Champion, 2009, p. 950.

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notion of a universal law which leaves no place for circumstance as a determining factor. In Burke’s view, the radical novelty of the French Revolution lies in this universality which rides roughshod over contingent circumstance; and whereas the American Revolution had been a localised process with no bearing on internal political order elsewhere, the French Revolution according to Burke constitutes a ‘schism with the whole universe’ affecting all nations and compelling each to come out either in favour or against.9 The revolution calls each country to recognise the universality of human rights, which thus takes on the colours of a religious rather than political doctrine. This ‘new fanatical religion’ is the ‘ferment’ of an ‘exterminatory system’ that threatens all existing religions.10 Whereas a purely political revolution would stop at national frontiers, human rights make revolution a universal demand; they provide the recipe for an insurrection arising not from a particular situation (as had been the case in England in 1688 or in the American War of Independence) but rather from a universal idea of rights that may be claimed in any circumstances. Founded on human rights, the ‘revolution in France’ cannot remain a ‘French’ revolution, for it constitutes a denial of the law of local circumstance. Burke seeks to affirm the particular right of the English constitution against the absolute principle of the rights of man; however, this cannot be justified by a purely local argument, which would give it the status of an exception. He sets out to show that the English constitution is a model whose guiding principle – namely a particular configuration of universal and particular values – other nations should also be able, each in its own way, to adopt. Against the ‘abstract’ or ‘metaphysical’ universality of human rights, Burke therefore needs to prove the existence of a superior right of historical circumstance. This in itself holds the value of a universal right: hence why Burke endorses the universal scope of the English example – on the very grounds of its exemplary status. It is by no means clear that this twin universality of the right of history and of its English incarnation is any less ‘abstract’ than that of the rights of man. Burke thus claims that the old constitution of the French monarchy contained all the seeds of an English-style liberty, such that no revolution was actually necessary. This argument explains why Burke, despite his editorial success, has had no true descendants in France: neither liberals nor 9 10

Burke, First Letter on a Regicide Peace (1796), in Reflections, p. 563. Edmund Burke, ‘Letter to Richard Burke on Protestant Ascendancy in Ireland’, 1793, in Works, London, Nimmo, 1887, vol. VI, pp. 398–399. See Patrick Thierry, Burke. Le futur en héritage, Paris, Michalon, 2010, p. 79f.

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conservatives could condone his description of the French monarchy, which they all ‘knew’ was misled. Burke argues against the revolutionary politics of human rights that it is impossible to judge existing political regimes on a disembodied normative principle that ignores the primacy of circumstance; yet associated with this quasi-relativism (which goes hand in hand with the jurisprudential conception illustrated by English common law) in Burke’s thought is the normative theory of a superior type of regime typified by the English constitution: namely, mixed constitutions that marry monarchy with aristocracy and democracy. At this point, it becomes difficult to say whether Burke counters the abstract universalism of human rights with a particularism that negates the existence of the universal, or rather with the notion of a ‘concrete universal’. The latter remains ambiguous as to whether the universal must become particular in order to exist (a thesis that substantiates the difference between universal and particular), or rather that the universal can never be distinguished from the particular circumstance in which it is couched? The Coherence of Burke’s Thought This uncertainty explains why so many and such radically different thinkers have followed in Burke’s footsteps: as Philippe Raynaud observes, Burke’s legacy encompasses both ‘true liberals and reactionaries hostile to modern principles of liberty taken as a whole, and even socialist critics of bourgeois society’.11 Indeed, such are the conflicts of interpretation over Burke’s thought that we might almost be forgiven, reading several works on the subject, for wondering whether they are in fact discussing the same author. We see the author of the Reflections on the Revolution in France presented in turn as a disciple of Locke, a defender of classical natural law over modern natural law, a representative by turns of Scottish Enlightenment liberalism and the counter-Enlightenment, an opponent or advocate of historicism, the champion of liberties or of an authoritarian state.12 In Alfred Cobban’s view, these interpretive clashes arise in the first place from Burke’s unique place in the history of ideas. A public figure of his times who served in the House of Commons from 1765 to1794, and very rarely expounded his political thought outside this role, Burke 11 12

Philippe Raynaud, Trois révolutions de la liberté. Angleterre, Amérique, France, Paris, PUF, 2009, p. 3. Philippe Raynaud, preface to Edmund Burke, Réflexions sur la Révolution en France, Paris, Hachette, 1989, p. xiv.

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appears according to Cobban ‘as an anomaly’.13 But the anomaly is not primarily (as Cobban reminds us) that of a ‘political philosopher who is also a politician’: in the period 1780–1850, political thinkers and political actors were relatively synonymous, as witnessed by the examples of Bonald, Constant and Tocqueville, not to mention Paine, Madison or Jefferson. Burke’s exceptional status lies rather in the fact that his thought lies entirely within his political action. It goes without saying that action and theory also feed into each other in the hands of Guizot, Tocqueville or Jefferson: theory shapes practice, and experience in turn grounds theory. However, for these authors, theory and practice interact but ultimately remain distinct. In Burke’s case, meanwhile, political philosophy becomes a weapon. As a political actor involved in the causes of his time, Burke wrote hastily, passionately and sometimes rashly, in a polemical rather than deliberative style, marrying irony, description, sarcasm and diatribes ad hominem.14 The majority of his writings are circumstantial works whose first concern is practical, whether to refute an opponent or to triumph in political decision-making. All Burke’s thoughts on ‘natural rights’ or ‘human rights’ stand in the context of tactical decisions about the most persuasive rhetoric for a given audience.15 Burke is particularly skilled in the art of appropriation – turning his opponents’ own vocabulary and arguments against them16 – which prompts Michel Villey to write that Burke charges the rights of man with serving as a ‘cover for their own violation’,17 a strange formula that appears in the same breath to endorse and reject the idea of human rights. This is the source of a tension that explains why some have interpreted Burke’s political commitments as inconsistent. A defender both of Irish Catholic and Indian rights, Burke had first come to public notice as a supporter of demands issuing from the American colonies in 1775. During the revolt of the American colonists, he thus found himself in the same camp as Richard Price or Thomas Paine. In 1788, in the course of his campaign against Hastings, he pointed out that the ‘pride of England’ was that it had ‘better institutions for the preservation of the rights of men than any other country in the world’.18 We may therefore 13 14 15 16 17 18

Alfred Cobban, Edmund Burke and the Revolt against the Eighteenth Century [1929], London, George Allen, 1960, p. 38. Jeremy Waldron, Nonsense upon Stilts, London, Methuen, 1987, p. 82. Leo Strauss, Droit naturel et histoire, trans. M. Nathan and E. de Dampierre, Paris, Flammarion, 1986, p. 255. Michel Ganzin, La Pensée politique d’Edmund Burke, Paris, LGDJ, 1972, p. 210. Michel Villey, ‘Philosophie du droit de Burke’, in Critique de la pensée juridique moderne, Paris, Dalloz, 1976, p. 130. Burke, ‘Speeches in the Impeachment of Warren Hastings, Esquire, Late GovernorGeneral of Bengal’, speech of 16 February 1788, inWorks, vol. IX, pp. 448 and 463.

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imagine the surprise of his contemporaries when, faced with a French Revolution which appeared to champion the same causes as the American, Burke became its most vehement and most immediate English adversary, making enemies of Price and then of Paine. This apparent U-turn led Paine, who knew Burke personally, to conclude that he had simply defected to the opposition.19 But the contradiction is perhaps less clear than it would appear. In 1791, Burke responded to the charge of incoherence levelled against him that ‘if the principles of a mixed Constitution be admitted, he [Burke himself, speaking in the third person] wants no more to justify to consistency everything he has said and done during the course of a political life just touching to its close’. Contrary to ‘imaginary rights of men (which at best is a confusion of judicial with civil principles)’, which are the perfect example of those ‘principles [that] always go to the extreme’, the ideal of the mixed constitution ‘gravitate[s]’ around a happy medium granted to ‘political convenience’ and to ‘human nature’ in as much as it is both ‘universal’ and ‘modified by local habits and social aptitudes’. The defender of the British constitution considers ‘a certain portion of liberty to be essential for all good government’; but ‘this liberty is to be blended into the government, to harmonize with its forms and its rules, and to be made subordinate to its end’.20 Accordingly, those who argue that Burke ‘turned tail’ in 1789 fail to grasp that different circumstances and opponents led this champion of mixed constitutions to stress, by turns, one aspect or the other of constitutional ‘mixity’. Faced with advocates of absolute monarchy, he appears as a partisan of the rule of law, or even as a democrat; against democratic unilateralism, he takes on the colours of a reactionary defender of instituted hierarchies. Indeed, a mixed constitution unites into a ‘harmonious body’ different components or ‘parts’ whose founding principles are in fact opposed, each having its own right to existence which must be defended in keeping. The monarchic element, Burke explains, must be defended according to monarchic principle, just as the democratic element can only be defended by an argument based on democratic principle.21 Burke can thus affirm the constancy of his commitments: according to this argument, his enduring membership of the Whig opposition, his support for American claims, his proclamations in favour of Irish and Indian rights and his struggle against the global threat 19 20

21

Waldron, Nonsense, p. 79. Edmund Burke, ‘Appeal from the New to the Old Whigs’, in P. J. Marshall and Donald Bryant (eds.), The Writings and Speeches of Edmund Burke, Oxford, Oxford University Press, 2015, pp. 375–477, 470. Ibid., p. 469.

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represented by the French Revolution all have their roots in a common ideal of political equilibrium which at once recognises the rights of the populace, of the nobility and of the sovereign. The complexity of this political equilibrium, in which opposing principles offset one another, sits uncomfortably with the absolute nature of human rights claimed by French revolutionaries. Burke believed that the coherence of his political career lay in his concern to defend the law of complexity against absolutism that endeavours to reduce political order to a single right, be it that of the populace, the monarch or a prepolitical idea of man in his ‘natural’ state. This is why Burke’s campaign for religious tolerance was never a fight for equal rights between religions; why his calls for mitigation of legislation directed against Irish Catholics never aimed at the dissolution of the Anglican Church. Though Burke believed that all religions had their own value and legitimacy, he remained fiercely opposed to the separation of church and state. To separate ‘religion from the state’, he argued, meant to separate ‘morality from policy’, and to erase the ‘principle of our obligations to government’ which lies in ‘conscience’.22 Burke never commented on the American Bill of Rights of 1791; but nothing, surely, can have been more foreign to him than the first amendment of the American constitution that prohibits the ‘establishment’ of religion by Congress. In 1791, Burke recalled the meaning of his ‘support’ for the American rebels. On the one hand, he recognised the right of Americans to preserve their ‘ancient condition’ and not to be taxed without consent; the original wrongs lay with the British Crown, which had attacked the colonies’ traditional liberties. On the other, he thought that the intention to subordinate the Americans by force was doomed to failure, and also endangered English liberty. In order to avoid independence, Burke had advocated reconciliation. However, since English intransigence had precluded this, he had admitted that the only solution was English resignation to American independence. Yet Burke stressed that he would not have supported the American rebels had they been motivated by a wish to extend their freedoms rather than to preserve their existing liberty.23 Indeed, he never welcomed American independence as a happy development or a ‘revolution of liberty’, but rather discussed it as a regrettable necessity which might, in the future, bear more positive fruit. In his Address to the 22

23

Ibid., p. 467. A substantial part of the Reflections is taken up with a critique of disestablishment and the dispossession of the French Church. The rejection of the rights of man is a defence of church holdings, associating the Church with property as the two central pillars of social order. Ibid., pp. 411–412.

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British Colonists in North America of 1777, even while he claimed to ‘embrace’ Americans as ‘friends’ on the grounds that the ‘true Englishmen’ were those who adhered to the ‘principles of liberty’ of the English constitution, he considered it ‘doubtful’ that American liberty would successfully preserve the ‘perfection’ and ‘native purity’ of its ‘original fountain’. Burke’s proclamation of support was subject to a caveat: only England could ‘communicate . . . the benefits’ of its constitution, and American independence threatened the ‘platform of common liberty’.24 Burke does not, then, set out to discredit the French ‘catechism’ of human rights with different arguments from his previous contentions which had – in the name of the ‘rights of man’ in a different understanding – allowed him to defend the Irish, Americans or Indians. We should recall here that Burke ascribed as much importance to his action against Governor General of Bengal Warren Hastings (whose impeachment hearings lasted from 1787 to 1795) as to his campaign against the French Revolution.25 In May 1794, he appealed against Hastings to ‘the rights of humanity’ and the ‘law of Nations which is the birthright of everyone’. Burke, then, conducted his struggle for the ‘rights of humanity’ in India simultaneously with his struggle against ‘French human rights’.26 This is because in Ireland, America or India, ‘the rights of man’ designated a limit of politics: the bare minimum of rights on which power cannot encroach without becoming despotic. The ‘French rights of man’ are different in nature: they claim to represent not a limit but the first constitutive principle of the political domain. In stating that their ‘preservation’ is ‘the goal of any political association’, the 1789 Declaration elevated them to the status of an absolute norm from which it should be possible to derive the content of any political constitution in its entirety. This is the first object of Burke’s criticism: in his view, the idea of human rights can hold relevance only if it is not a legal norm, but rather one moral idea amongst other moral ideas that impart limits to political order.

24 25

26

Edmund Burke, ‘A Letter to the Marquis of Rockingham, with Addresses to the King and the British Colonists in America’, January 1777, Works, vol. VI, pp. 190–192. In a letter of 28 July 1796 (cited by Thierry, Burke. Le futur en héritage, p. 29), Burke writes that his action to ‘save the Nation from that shame and guilt’ represented by the Hastings administration would be ‘my monument’: ‘Let everything I have done, said, or written be forgotten but this’ (‘Letter to French Laurence’, in H. Furber et al. (eds.), The Correspondence of Edmund Burke, 9 vols, Cambridge, Cambridge University Press, 1958–65, vol. IX, p. 62. Burke, ‘Speeches in the Impeachment of Warren Hastings’, vol. XI, pp. 241, 251; ‘The French Rights of Men’: Thoughts on French Affairs’, Works, vol. IV, p. 323.

Human Rights, a Tyrannical and Hypocritical ‘Digest of Anarchy’ 67

Human Rights, a Tyrannical and Hypocritical ‘Digest of Anarchy’ If human rights, in their legitimate meaning, designate the limit of political order, this implies that political order cannot be created by human rights. Burke constantly reiterates that the French Declaration is a ‘digest of anarchy’ that succeeded in ‘systematically destroy[ing] every hold of authority by opinion, religious or civil, on the minds of the people’.27 ‘Against these there can be no prescription; against these no argument is binding: these admit no temperament and no compromise: anything withheld from their full demand is so much of fraud and injustice.’28 The effect of the idea of human rights is to delegitimate any social order, which necessarily presumes the existence of institutional hierarchies linked to inequalities of power, status and property. In return, this delegitimation vindicates all violence against natural authority, and all destructive acts committed against aristocratic or ecclesiastical property. Anarchy thus spills over into despotism. Human rights are merely the incarnation of that misguided dream of a ‘pure democracy’ which, as Aristotle pointed out, bears striking resemblances to tyranny. Absolute democracy can no more be a legitimate form of government than absolute monarchy because it means the abolition of boundaries and a rejection of necessary compromise between the various powers that order society. Furthermore, since any social order is necessarily hierarchical, human rights are hypocritical: in this argument, they serve merely to veil violent transfers of power and wealth, and as an alibi for use by an oligarchy hostile to established aristocracies. In the Reflections, Burke describes this oligarchy as the offspring of a marriage between an irreligious intelligentsia composed of men of letters, embittered by their political marginalisation during the eighteenth century, and what Burke calls monied interest – by which he means not the capitalist trading or industrial class but rather financial speculators who exploit state public debt to expand their own wealth.29 Burke sees signs of this new domination in the dispossession of the Church and the alarming rise in French public debt, artificially sustained by issuing valueless ‘bank-paper’. However, he also devotes much attention to the argument that the new oligarchic power is taking hold of 27 28 29

Edmund Burke ‘Speech on the Army Estimates’ (1790), in Works, vol. III, p. 221. Burke, Reflections, p. 51. Ibid., p. 96. See the analysis given by Bertrand Binoche, ‘Critiques des droits de l’homme’ (1989), in Bertrand Binoche and Jean-Pierre Cléro (eds.), Bentham contre les droits de l’homme, Paris, PUF, 2007, pp. 140–141.

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principles in the institution of census suffrage by the French National Assembly. ‘This metaphysic principle, to which law, custom, usage, policy, reason, were to yield, is to yield itself to their pleasure . . . What! a qualification on the indefeasible rights of men?’30 To be sure, Burke stresses, the contribution to the public purse required in order to vote, the equivalent of three’ days labour, is ‘not much, I readily admit’. Yet by this ‘very small qualification’, the ‘equalising principle’ is ‘utter[ly] subver[ted]’.31 Of course, Burke was not calling for real equality; he sought merely to draw attention to the hypocrisy inherent in the egalitarian claims of declarations of rights: ‘In all this process, which in its fundamental elements affects to consider only population, upon a principle of natural right, there is a manifest attention to property – which, however just and reasonable on other schemes, is on theirs perfectly unsupportable.’32 Natural Rights, Civil Rights, Political Rights How, then, can we explain why Burke is happy to use the expression ‘the rights of man’ in a more positive sense? Not only does this positive meaning run through his speeches at the impeachment hearing of Warren Hastings until 1794; it also manifests on occasion in Burke’s counter-revolutionary polemics: the first Letter on a Regicide Peace argues that the combat against the ‘armed doctrine’ of revolutionary France is a war for ‘the interest of mankind’ against ‘a system which by its essence is inimical to all other governments’. For England, this war is a duty founded not only on its proximity to France, since as Burke notes, ‘distance of place does not extinguish the duties or the rights of men’, though ‘it often renders their exercise impracticable’.33 In a piece of 1793, Burke advocates severe punishment for revolutionaries who not only rebelled against ‘political and civil laws’ and ‘the state as state’ but transgressed ‘the law of Nature’ and ‘outraged man as man’. Among them are notably those who presided over ‘revolutionary tribunals, where every idea of natural justice and of their own declared rights of man have been trod under foot with the most insolent mockery’.34 30 31

32 33 34

Burke, Reflections, p. 153. Ibid., p. 153. August Wilhelm Rehberg (Recherches sur la Révolution française [1793], trans. Lukas Sosoe, Paris, Vrin, 1998, p. 39) would revive this example of a contribution equal to three days’ labour to accuse the Declaration of having raised futile hopes. Burke, Reflections, p. 154. Burke, First Letter on a Regicide Peace, pp. 520, 524, 564. Edmund Burke, ‘Remarks on the Policy of the Allies with Respect to France’, Works, vol. IV, pp. 413 and 463.

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We must here cite the passage from the Reflections in which Burke recognises the existence of ‘real rights of men’: Far am I from denying in theory, full as far is my heart from withholding in practice, (if I were of power to give or to withhold), the real rights of men. In denying their false claims of right, I do not mean to injure those which are real, and are such as their pretended rights would totally destroy. If civil society be made for the advantage of man, all the advantages for which it is made become his right. It is an institution of beneficence; and law itself is only beneficence acting by a rule. Men have a right to live by that rule; they have a right to justice, as between their fellows, whether their fellows are in politic function or in ordinary occupation. They have a right to the fruits of their industry, and to the means of making their industry fruitful. They have a right to the acquisitions of their parents, to the nourishment and improvement of their offspring, to instruction in life and to consolation in death. Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and he has a right to a fair portion of all which society, with all its combinations of skill and force, can do in his favor. In this partnership all men have equal rights; but not to equal things. He that has but five shillings in the partnership has as good a right to it as he that has five hundred pounds has to his larger proportion; but he has not a right to an equal dividend in the product of the joint stock. And as to the share of power, authority, and direction which each individual ought to have in the management of the state, that I must deny to be amongst the direct original rights of man in civil society; for I have in my contemplation the civil social man, and no other. It is a thing to be settled by convention.35

Two clear points emerge from this passage. The first is that the existence of ‘true rights of men’ must never be interpreted as the right of individuals to an equal measure of liberty. Burke never used the expression ‘Rights of Man’ in a positive sense referring to an individual right. His positive terms are ‘rights of mankind’ – which assumes the existence of a shared human nature – and ‘rights of men’, which suggests various rights rather than a body of equal rights across individuals. Not only does Burke reject what he elsewhere terms ‘the absolute equality of the human race’; on closer examination, he denies the equality of individual rights. The statement that ‘men have equal rights, but not to equal things’ means precisely that all men cannot have identical rights: Burke’s thesis is that each must have a right to draw benefit from society, but not that each must have an equal right to enjoy these advantages. Each must have certain rights, but all will not have the same rights. This thesis is illustrated in the point of view that Burke defended throughout his political career on the question of tolerance. Freedom of conscience, according to Burke, is indeed one of those ‘rights of men’ that 35

Burke, Reflections, pp. 51–52.

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only a despotic power may threaten.36 But the equal right of each to practise a religion of his choice by no means implies that the same civil and political rights must be ascribed, on a principle of equality, to members of each confession. In his defence of tolerance, Burke is an enemy of what we might call secularism: he deems necessary the existence of a ‘state religious establishment’ and an established church,37 which in his view brings about inequality between members of the national church and those of minority denominations. The second point is that men have no right to govern themselves. After the passage cited at N. 35, Burke states that one of the ‘fundamental rules’ of civil society is that ‘no man should be judge in his own cause’. And in abdicating this right, which is ‘the first fundamental right of uncovenanted man’, man also abdicates ‘all right to be his own governor’. The reasons for this abdication of the ‘right of self-defence, first law of Nature’, in favour of justice delivered by third parties, necessarily also mean rejecting the idea that human rights can be claimed by any individual against any state, as if each were the judge of his own cause. In this sense, human rights and the rights of civil society are incompatible with one another. Burke never tires of repeating that civil rights, like political rights, are always the rights of a people. It is therefore impossible to deduce civil rights exclusively from natural rights, which are the rights of isolated individuals who have reached no common agreement and do not constitute a people.38 The relationship between natural rights and the rights of civil society then remains to be defined. Burke does not deny the existence of a primitive state. He acknowledges that in the ‘uncovenanted’ state of nature (before the socialisation stage) men certainly do have natural rights: to ensure justice for themselves, to self-govern and defend themselves. Since entering into society involves abdicating these rights, Alfred Cobban concludes that natural rights are simply abolished and their place taken by civil or covenanted rights; only the positive constitutional rights of political man, in this understanding, are truly rights. Against Cobban, however, Michel Ganzin illustrates that the idea of natural rights as lying outside political order does not mean that they cease to exist entirely with 36

37

38

See Edmund Burke, ‘A Speech on a Bill for the Relief of Protestant Dissenters’ (1773), Works, vol. VII, p. 38, and ‘A Letter to a Peer of Ireland on the Penal Laws Against Irish Catholics’ (1782), Works, vol. IV, pp. 227–228. Burke, Reflections, p. 81. As early as 1772, Burke had stated that the issue of ‘establishment’ is independent of those of ‘tolera[nce]’ and the ‘rights of conscience’: Speech on the Acts of Uniformity, 6 February 1772, Works, vol. VII, p. 15. Burke, Appeal from the New to the Old Whigs, p. 466: ‘the pretended rights of men . . . cannot be the rights of the people. For to be a people, and to have these rights, are things incompatible’.

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socialisation.39 If primitive natural rights cannot be maintained in their pure form in the socialised world, this does not mean that they are cancelled out by civil rights. The proof is that Burke acknowledges the possibility of an ultimate recourse to insurrection in the event of inadmissible despotism. ‘It is the first and supreme necessity only . . . which alone can justify a resort to anarchy’; yet this case can indeed occur: ‘If it could have been made clear to me that the king and queen of France (those, I mean, who were such before the triumph) were inexorable and cruel tyrants’, writes Burke, ‘that they had formed a deliberate scheme for massacring the National Assembly . . . I should think their captivity just.’40 The error of the Declaration was precisely that it made the exception into a rule, and what should have been resignation to necessity a ‘choice’. The scandal of the Revolution, during the days of October 1789 which Burke cannot describe without horror, was that it treated as criminals a king and queen who were in fact the most benign sovereigns (or at any rate, the least tyrannical and those who had shown the greatest respect for public liberty) yet seen in France. Here, we can identify three distinct phases in the argument. First, in no way does Burke question the right to resist: he clearly states that resistance is justified either in order to preserve the rights of the monarchy or to defend the rights of subjects. However, resistance need not take the form of insurrection; rather, it must rely on the constitution to safeguard the constitution. Legitimate resistance usually aims to preserve constitutional rights, not natural rights. The second stage of the argument, which Burke discusses only indirectly in the context of the French revolution, concerns the possibility of extreme tyranny such that would leave subjects no other choice than to take refuge in their primitive rights and to dissolve civil society. Burke discussed this possibility in extremely clear terms before 1789. In 1783, he claimed that ‘the rights of men, that is to say, the natural rights of mankind, are indeed sacred things’ even without a charter according them constitutional status. Any political power, he writes, operates as a trust; and ‘it is of the very essence of every trust to be rendered accountable’. ‘If the abuse is proved’, Burke concludes, ‘the contract is broken; and we re-enter into all our rights: that is, into the exercise of all our duties’.41 This argument is once again taken up in identical terms in 1788: 39 40 41

Ganzin, La pensée politique d’Edmund Burke, p. 120; see also Michael Freeman, Edmund Burke and the Critique of Political Radicalism, Oxford, Blackwell, p. 79. Burke, Reflections, pp. 85, 72–73. Edmund Burke, ‘Speech on Mr. Fox’s East-India Bill’, 1 December 1783, Works, vol. II, pp. 438–441.

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men cannot covenant themselves out of their rights and their duties . . . Those who give and those who receive arbitrary power are alike criminal . . . Nothing but absolute impotence can justify men in not resisting it to the utmost of their ability. Law and arbitrary power are in eternal enmity . . . The moment a sovereign removes the idea of security and protection from his subjects, and declares that he is everything and they nothing, when he declares that no contract he makes with them can or ought to bind him, he then declares war upon them: he is no longer sovereign; they are no longer subjects.42

The third phase of Burke’s argument rests on the idea that natural rights, which are far more than the mere right to self-govern, cannot be set against the civil rights that absorb them by taking over from them. If human rights are ‘metaphysically true’ yet ‘morally and politically false’, this is because ‘these metaphysic rights entering into common life, like rays of light which pierce into a dense medium, are . . . refracted from their straight line’. ‘Indeed, in the gross and complicated mass of human passions and concerns, the primitive rights of men undergo such a variety of refractions and reflections that it becomes absurd to talk of them as if they continued in the simplicity of their original direction.’43 This refraction through a dense social context must not be seen as a loss. It enriches primitive rights by placing them at the heart of a far broader civilisational process. It is even only through this inclusion in a greater order that they become a good, for order is ‘the condition of all good’. ‘The nature of man is intricate; the objects of society are of the greatest possible complexity.’44 In their varied particularity, civil and political rights are far more than a ‘garb’ for the nudity of human rights. They are a fabric weaving the thread of human rights together with many others, which cannot be disentangled without destroying the whole. Civil and political rights are not an application of human rights: they are in fact a ‘particularisation’ of human rights, but one which does not allow a universal definition to subsist outside or above it. ‘The rights of men are in a sort of middle, incapable of definition, but not impossible to be discerned.’45 We cannot see the original rights of man apart from their refraction and particularisation in civil and political rights, which constitute their only means of social existence. In reality, human rights only exist, in the strict interpretation of the verb, within the civil and political rights in which they are ‘chartered’46 42

43 45 46

Burke, ‘Speeches in the Impeachment of Warren Hastings’, pp. 457–459. ‘The rights of the people are everything’, he writes in 1794, ‘as they ought to be in the true and natural order of things (Ibid., May 30, 1794, pp. 241–251). Burke, Reflections on the Revolution in France, op. cit., p. 54. 44 Ibid., p. 64. Ibid., p. 54. The freedoms guaranteed by the English constitutional charters, Burke declared in 1783, are the ‘chartered rights of men’ (‘Speech on Mr. Fox’s East-India Bill’, p. 438).

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and founded. They can therefore never be declared in their own right, or unconditionally claimed against the real rights that give them existence. It would be illogical to claim both the rights granted by society and those that we would hold living in isolation: ‘how can any man claim, under the conventions of civil society, rights which do not so much as suppose its existence?’47 In any constitutional and non-authoritarian regime, human rights have no other reality or authority than that granted by the civil and political rights enshrined in the constitution that brings them to life. The idea of a ‘Declaration of human rights’ challenging an existing constitution is therefore a legal absurdity. Between Prudential Virtue and Theological Grounding: The Right of Prescription There are two sides to Burke’s critique of the rights of man: one sometimes termed ‘empiricist’ but which should properly be called prudential;48 and another that we might term ‘cosmo-theological’, basing natural law on a divine design for the universe. These two aspects meld together into a philosophy of prescription that furnishes Burke’s legal counter-model to human rights. This philosophy itself falls into several different arguments about the necessity of practical reason, the diversity of national societies and the importance of inheritance. The best-known facet of Burke’s critique of human rights is his first argument about the need for practical reason: that what cannot be accepted is the articulation of rights in a universal code that is ‘rational’ only by not being ‘reasonable’. Burke’s diatribe against human rights thus represents a broader trial of Cartesian reason based on pure deduction and disregarding historical experience. Wisdom is not the same thing as deductive reasoning: to function, it needs the habitus of prior knowledge which provides the only valid way of intuiting or seeing the way forward (more often than not involving no action) without having to articulate it consciously. Practical wisdom (prudence) is different from theory in that it willingly adapts to contingent circumstances and change, where theory remains fixated on universals

47 48

Burke, Reflections, p. 52. Burke’s critique of the rights of man is based less in the epistemological primacy of the senses over the intellect than the ascendancy of practical over theoretical reason. The ‘experience’ Burke invokes against ‘metaphysical abstraction’ takes as its model not sensory ‘data’ as opposed to the ‘innate ideas’ or concepts of reason; rather, it calls on the historical wisdom gathered in jurisprudence.

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and unchanging values.49 In this vein, Burke stresses the importance of ‘moral sentiment’ as opposed to calculation in political affairs. Sentiment allows for solid off-the-cuff decisions when they are most needed, which in turn improves foresight and facilitates planning and coordination of future courses of action. Conversely, liberty in the abstract has no meaning: ‘Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing color and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind.’50 Now, the difficulty of human rights is precisely the challenge they represent to any circumstantial evaluation. In search of intellectual clarity, they leave aside the infinite variations in time and circumstance that determine the practical viability of a proposition. As in Rehberg’s later Recherches sur la Révolution française, the primary critique of the French revolutionaries is their alleged aim of deducing ‘political practice starting from theory’.51 In Burke’s view, politics must be moulded not to human reasoning but to human nature, ‘of which reason is a part but certainly not the greatest part’.52 Paradoxically, this attack on theoretical reasoning in itself constitutes a theoretical position. As Benjamin Constant observed, ‘to argue that abstract principles are merely vain and useless theory is in itself to state an abstract principle’.53 Constant concluded from this that Burke’s position was self-contradictory. It would be incontrovertibly so if Burke espoused a pure form of empiricism and denied any metaphysical basis to his ‘particularism’; but this is the very position that he rejects. Some episodes in Burke’s writing do have echoes of utilitarianism, especially his contention that ‘the rights of men in governments are their advantages; and these are often in balances between differences of good; in compromises sometimes between good and evil, and sometimes between evil and evil’.54 However, this evaluation of good derives for Burke from an Aristotelian or Ciceronian principle of moral equity founded on an original justice that constitutes ‘the great standing policy of civil society; and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all’.55 That justice is a ‘standing policy’ does not mean that it is a norm set in stone. Rather, it extends into the Aristotelian notion of equity – the idea of morality, in other words, as a corrective for the generality of law, or of the 49 51 52 53 54

Strauss, Droit naturel et histoire, p. 263. 50 Burke, Reflections, p. 7. Alain Renaut, preface to Rehberg, Recherches, Paris, Vrin, 1998, p. 6. Cobban, Edmund Burke and the Revolt, p. 76. Benjamin Constant, Des réactions politiques (1797), p. 138. Burke, Reflections, p. 54. 55 Ibid., p. 137.

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spirit of law to counter the letter of law. In this definition, equity represents a ‘justice beyond the writ of the law’, beyond the part of law that strives for finality. Burke belongs to the case law tradition of English Common Law, in which the meaning of the law is determined by ‘jurisprudence, the pride of the human intellect’, ‘the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns’.56 The second facet of the prudential critique is the argument that the universal nature of the Declaration of Rights rides roughshod over national differences. If human nature is socially determined and therefore essentially diverse, there can be no rights specific to human beings as such but only ‘rights of men’ that have developed in particular social and historical contexts. Human rights are always the rights of a member of a particular community. This illustrates, once again, why the apparent contradiction between Burke’s support for Irish, American colonists’ or Indian rights on the one hand, and his fierce opposition to the French Revolution on the other, is in fact an illusion. His defence of Indian rights against the abuses committed by the administration of Governor-General Hastings was a defence not of individual rights but rather of the rights of an organised community, its elites and traditions. His defence of Irish Catholic rights, meanwhile, sought to protect the traditional rights of an established group which held Catholicism as a key element of their identity. By the same token, Burke did not see American colonists as revolutionaries in the radical sense. They were defending their way of life, established commercial practice and local administration against the new fiscal and political impositions of the British establishment. In France, it was the monarchy that in Burke’s view represented existing custom, and the populace that attacked it with metaphysical concepts. In America, meanwhile, the reverse was true: George III and his ministers pushed new ideas of sovereignty to their furthest logical conclusion.57 As Leo Strauss emphasises, the political leaders whom Burke opposes in both cases were claiming absolute rights: the rights of sovereignty in the case of the English government, or the rights of man for the French revolutionaries. And in both cases Burke goes about his task in the same way: it is not rights themselves but rather the problem of how to

56 57

Ibid., p. 83. Waldron, Nonsense, p. 79. See the First Letter on a Regicide Peace, in Burke, Reflections, p. 554: The war against the democratic imperialism of the French Revolution responded to the same motives as that of a century before against Louis XIV’s monarchic imperialism.

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implement rights wisely that he debates, advocating a political rather than a legalist approach to rights.58 This ‘political’ approach is nonetheless a ‘juridical’ approach, in the sense of English Common Law jurisprudentialism, in which Burke in turn sees the true sense of jusnaturalism. Natural law becomes reality not through the sovereign decision of a legislative will, but rather through the quasi-natural nature of an unfolding sequence of judicial and political decisions which eventually ‘crystallise’ in the form of law: a law that is all the more authoritative for being the outcome of generational continuity and the accumulation of reason over time. Jurisprudence is at once the vessel for a collective rationality and the natural work of time: for this twofold reason, it is the best approximation available of that ‘law of reason’ represented by ‘natural law’. This jurisprudential character of practical reason is associated with a juridical privilege granted to inheritance in its connection with prescription. Burke articulated his conception of prescription as early as 1782 in a speech that remained unpublished, in which he opposed a voting reform that proposed to democratise parliamentary election by equalising the weight of circumscriptions and electors. Burke forcefully countered the justification offered for this reform: the ‘supposed rights of man as man’. Here already, he countered that the British constitution was immiscible with the claim to ‘natural rights’, which are purely ‘individual rights’ that are incompatible with the notion of a political institution. Because ‘men as men are individuals, and nothing else’, and ‘by nature there is no such thing as politic or corporate personality’, the idea of a right of man as man implies that each individual has the right to govern himself, and that ‘all other government is usurpation’.59 Against this reduction of society to the individual, Burke sets the existence and rights of political bodies whose legislative capacity is founded precisely on the fact of their existence as bodies and moral persons. The fact of a nation as nation is a legal title: this is exactly what constitutes the law of prescription. ‘Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to government.’60 A ‘prescriptive constitution’, ‘whose sole authority is, that it has existed time out of mind’, cannot be the work of a legislator. Burke does not explore the origins of states, casting a veil over the birth of governments. In his view, the only criterion for their validity is their ‘expedience’, which 58 59

60

Strauss, Droit naturel et histoire, p. 304. Edmund Burke, ‘Speech on a Motion for a Committee to Inquire into the State of the Representation of the Commons in Parliament’, 7 May 1782, Works, vol. VII, pp. 92–93. Ibid., p. 95.

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is the ‘touchstone of all theories’.61 Now, this expedient character is established precisely by the prescription that proves the legitimacy of origin. The prescriptive nature of legitimate constitutions means that the original contract that founds states is nothing other than the present state of the constitution that makes it known. It is not the original contract that imparts authority to the existing constitution, but instead the ‘performance’ of the existing constitution that grants its historically inscribed value of an original contract; this contract is presumed to exist in the constitution by virtue of the prescription on which it is based. By virtue of this, Burke’s definition of prescription reveals itself to be mere acceptance of the existing order – as long as it really constitutes an order. As Alfred Cobban writes: ‘Reason and utility both abdicate before the achievements of the past . . . Reason is displaced by utility, and for utility Burke reads history.’62 This challenge to the abstract nature of human rights, then, does not arise from a historicist conception of time marching onwards to a final goal. The relevant idea, rather, is experience understood as a ‘regional and contingent sequence of events’,63 whose authority comes less from an idea of history than of ‘inheritance’. ‘We wished at the period of the Revolution, and do now wish, to derive all we possess as an inheritance from our forefathers . . . [our] most sacred rights and franchises [are] an inheritance . . . Besides, the people of England well know that the idea of inheritance furnishes a sure principle of conservation, and a sure principle of transmission, without at all excluding a principle of improvement.’ Public liberties are also described as an ‘inheritance’, and indeed Burke conceives of politics more broadly as modelled on the structure of the family.64 Inheritance of rights implies a law of inheritance, and vice versa.65 Burke’s thesis is that inherited rights are the only form of rights (inheritance, in other words, is the foundation of law) and that, because of this, law must be conceived as starting from the right of inheritance, in other words the right to property. Inheritance and property, then, go hand in hand. According to a circular reasoning that defines prescription, tradition (that is, transmission) is the basis of property, yet also itself the object of a right to property. The law of tradition and history thus becomes 61 63 64 65

Ibid., pp. 94–98. 62 Cobban, Edmund Burke and the Revolt, p. 85. Binoche, Les critiques des droits de l’homme, p. 12. Burke, Reflections, pp. 27, 28 and 29 (our emphases). As pointed up by J. C. D. Clark (Introduction to Burke, Reflections, p. 87ff.), the celebrated passages of the Reflections setting the ‘rights of Englishmen’ against the ‘rights of men’ describe the rights of Englishmen in a carefully chosen legal and juridical lexicon, that of seventeenth-century English common lawyers.

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intertwined with the law of property, and the patrimonial model entails a right to property that trumps other rights. Conversely, the 1789 Declaration threatens property even while proclaiming it, since in abolishing all notion of inherited rights (or of rights granted by inheritance), it abolishes ipso facto the very principle of the right to inheritance which constitutes the right to property. Without the right to inheritance, in fact, no ownership is stable: ‘If prescription be once shaken, no species of property is secure.’66 We see here that Burke’s critique of human rights sits in stark opposition to what the young Marx would later advance. Marx denounced the ‘man’ of the ‘rights of man’ as a model of the selfish individual, narrowly concerned with his own right to property; his main critique was that the heart of ‘human rights’ was the intangible nature of property rights. Burke too set upon the selfish individualism that drove demands for human rights; however, this individualism was not the possessive egotism of the owner but rather the envious egotism of the nonowner and his bitterness at unequal property rights. Burke’s alarm at the concept of human rights stems from the idea that they destabilise property by advancing the principle of equal rights, and denying the existence of specific rights conferred by birth. For inheritance, which is a crucial facet of property, is a birthright; and ‘[t]he characteristic essence of property, formed out of the combined principles of its acquisition and conservation, is to be unequal’.67 In accusing human rights of sanctifying the right to property, Marx in the same gesture accuses them of blocking the extension of citizen rights by limiting democracy to the political sphere only. Burke, in contrast, accuses human rights of desanctifying the right to property by straining towards an unbounded extension of citizen rights and democracy. Burke holds that there is an essential connection between property, inequality and inheritance – in other words, the establishment of inequalities in the shape of differentiated rights attached to hierarchical positions and corporate institutions, among which pride of place is given to that corporation par excellence: the nation. Inequality of rights starts from the plurality of nations and the diversity of their political constitutions. Indeed, this diversity means inequality of political rights between nationals of different countries. The nation is first among establishments: those who recognise its existence must also recognise the existence and legitimacy of the other establishments that make up the constitution of each country. Thus, speaking of England, Burke writes: ‘We are resolved to keep an established church, an established monarchy, an established 66

Burke, Reflections, p. 133.

67

Ibid., p. 44.

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aristocracy, and an established democracy, each in the degree it exists, and in no greater.’68 The key word here is established: a democracy is legitimate on condition that it is established, whether in the form of a regime, a national body or, as in England, a ‘member’ of a mixed constitution. However, the Declaration of 1789 denies this legitimacy, positing instead that absolute sovereignty of the majority is the ‘only natural government’, and that ‘all others are tyranny and usurpation’. By virtue of the ‘French Rights of Man’, all existing states must be abolished and recreated on the basis of democratic absolutism: ‘equal representation’, ‘totally abolishing hereditary name and office’, ‘levelling all conditions of men (except where money must make a difference)’, elimination of the aristocracy and all established churches, and transformation of priests and magistrates into ‘creatures of election and pensioners at will’.69 The fanaticism of human rights, Burke protests, ‘rejects all establishments’.70 Unbounded democracy in turn is a principle of disestablishment. However, this conception of ‘establishment’ based on prescription extends beyond the confines of the prudential critique. In fact, it assumes a notion of duty which, though it means obeying an established order, is nevertheless an unconditional rather than a relative duty which cannot rely exclusively on criteria of utility and expedience. When Burke writes that the people ‘must respect that property of which they cannot partake’,71 he means this not in the sense of a ‘prudential’ demand but rather of a duty almost religiously founded on respect for the order of things. This explains why Burke’s relativism remains limited. Behind the infinite variety of circumstances lies an immovable and inexorable theological order: ‘Each contract of each particular state is but a clause in the great primeval contract of eternal society, linking the lower with the higher natures, connecting the visible and invisible world, according to a fixed compact sanctioned by the inviolable oath which holds all physical and all moral natures each in their appointed place.’72 We thus see a cosmo-theological order taking shape, with an appointed place for every being. In other words, human rights are an absurdity not only because pragmatically speaking the socialised individual has already forfeited the right to govern himself, but also because he is a component part of the Order of Creation. Human rights are not merely speculative 68 69 70 71

Ibid., p. 80. Edmund Burke, ‘Thoughts on French Affairs’ (1791), Works, vol. IV, p. 323. Edmund Burke, ‘Letter to Richard Burke on Protestant Ascendency in Ireland’ (1793), Works, vol. VI, p. 398. Burke, Reflections, p. 215. 72 Ibid., p. 85.

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sophisms; they are a transgression of divine order and a sign of impiety. This vein of Burke’s thinking paves the way for the providentialism that we shall find again in the work of Joseph de Maistre. Burke is moved by his conviction that a divine plan sculpts the developments of human society, guided not by human will but by an unfathomable wisdom73 which represents the ultimate court of appeal. The moral precepts imposed by divine command are clear, universal and absolute; it is their application in the political sphere that proves a greater challenge. The error of natural law theorists in Burke’s eyes lies in their treatment of principles of political organisation as revealed truths of the same order as divine commandments. The kinship between God’s commandments and political laws is in fact not direct but tortuous. Yet for Burke, ‘God is the very archetype of the universe, source of all perfection and all Right, while human law is valid only in so far as it follows the precepts of divine law.’74 If this is so, then even community as it has evolved over the course of long centuries cannot provide an absolute foundation for Burke’s theory. ‘From rationalism we come to utility, from utility to history, from the history of mankind to the history of community and finally from history to religion.’75 Hence the paradox: Burke condemns metaphysical abstraction, and yet his conception of law clearly has a metaphysical basis. The sources of authority are numerous and composite, yet they still have a religious counterpart which would be inexplicable without the metaphysical reality of a sort of divine law which is pluralised, so to speak, in history and political society. From this, Burke concludes that the members of society must pay a ‘corporate homage’ to God, offering up, so to speak, ‘the oblation of the state’.76 However, this divine right remains ‘diffuse’: to offer up the ‘oblation’ of the state to God does not mean regarding the state as a providential creation; rather, it means treating the state as a human creation which men must in turn devote to God. Unlike Catholic counter-revolutionaries such as Maistre or Bonald who would revive the idea of a divine right to sovereignty to make the monarch its sole vessel, Burke believed that the divine right at the basis of political order is inappropriable. It is the fact of this order itself that is divine – not the specific right of one of the elements that make it up. Burke never writes that the constitution arises from divine law; a rift persists between the idea, advanced by Burke, that social order is sacred because it is born of the law of nature which is part of the divine 73 74 75

Cobban, Edmund Burke and the Revolt, p. 94. Ganzin, La pensée politique d’Edmund Burke, p. 166. Cobban, Edmund Burke and the Revolt, p. 94. 76 Burke, Reflections, p. 86.

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order of the universe, and the strictly traditionalist idea – which he never endorses – that power is the image of God. This is why Burke continues to write in contractualist terms: even if his notion of the social contract bears no relation with those of Hobbes, Locke or Rousseau, the fact that he retains the term indicates the difference between the author of the Reflections and Bonald or Maistre, who would both refuse to recognise any meaning in the concept of the social contract. The two dimensions – prudential and theological – of Burke’s critique of human rights therefore exist in barely resolved tension with each other. The notion that civil society is part of a divine plan implies a belief in providence, reading divine action into the spontaneous development of human communities. But if empirical fact must be considered an instance of providence, the consequence – which Maistre would also take on – is unavoidable: the French revolution must be seen as an act of providence. However, Burke rejects this implication,77 which illustrates that in his view empirical and circumstantial fact are not ipso facto providential. Burke stops short of the step into a political theology: he does not believe that a theological justification of the exact nature of social order can be deduced from its sacred character. Divine sanction applies to social order only ‘en masse’, so to speak. Burke proclaims the necessity of established religion, but he avoids any truly theological perspective that would involve weighing the truth-claims of different religions against each other, placing them in a hierarchy, and eventually deciding in favour of one. Pocock rightly notes that Burke remains aloof from the great theological–political quarrel of the English tradition which opposed a vision of the Anglican Church as an extension of its presiding royal power to one of an apostolic communion forming part of the mystical body of Christ.78 In line with the Whig tradition, Burke leaves this question open – which amounts to leaving the status of divine right in the church, and the political constitution linked to it, completely undetermined. Bonald and Maistre would later espouse a political theology in concert with their claims about the exclusive truth of Catholicism; Burke, on the other hand, speaks only pejoratively in terms of the ‘political theologians and theological politicians’79 represented, to his mind, by 77

78

79

Burke’s analysis of the causes behind revolutionary evil, in Reflections, p. 45ff, is purely sociological. He hints at the possibility that the Revolution was a divine punishment, but does not explore it further. Pocock, ‘Introduction’ to Burke, Reflections, p. xvii. For a true theorist of divine law or a political theologian, this would be the essential question. Burke believes instead that it should be passed over in order to avoid needless dissent. Burke, Reflections, p. 10.

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the French revolutionaries: submitting political legitimacy to the theologians’ judgement is out of the question. Unlike Maistre, who would defend intolerance, Burke praises the ‘true spirit of toleration’ that he sees in the English, who ‘would reverently and affectionately protect all religions, because they love and venerate the great principle upon which they all agree, and the great object to which they are all directed’.80 Burke’s Ambiguities: Between ‘irrationalist utilitarianism’ and ‘conservative liberalism’ The theological-political question reveals the broader conflicts that run through Burke’s thought: the ambiguous shifts in meaning between prudential law and the divine law of the political constitution perpetuate the theoretical slippages between jusnaturalism and jurisprudentialism, or between the theory of an original contract and an immemorial constitution founded on prescription. In a sense, these ambiguities are inherent in the very process of Burke’s thinking: to defend a mixed constitution which draws conflicting principles and needs together into a harmonious body, Burke’s thought must itself be composite and achieve compromise between potentially incompatible principles. This compromise is possible only at the price of a certain ambivalence, or even calculated obscurity. From a Burkean perspective, this is not a theoretical shortcoming: on the contrary, it is in the nature of a successful political system, which strives to achieve a reasonable balance between man’s various social needs, that it cannot be explained by a theory that rationally grasps its structure and composition. As Frédéric Brahami has noted, the assumption behind Burke’s criticism of jusnaturalist abstraction is that ‘a political doctrine’s capacity for harm is a function of its simplicity: it is transparency as such that is flawed in its principles’.81 This deliberate opacity makes it difficult to determine whether Burke’s critique of human rights makes him a utilitarian, an advocate of classical natural law or the forerunner of a new form of irrationalism; and more difficult still to define Burke’s relationship with the liberal tradition. Burke is sometimes cast as a utilitarian;82 and indeed, he takes political reason to be a ‘method of . . . computation’.83 Burke’s phrasing is very close to utilitarianism when he states of the foundations of government 80 81

82

Ibid., p. 132. In this passage Burke again underlines that tolerance may go hand in hand with measures that favour a particular religion. Frédéric Brahami, ‘Déchirure et production politique du temps. Science et volonté – autour de la Révolution française’, in Incidence n° 7 (L’énigme du régicide), Autumn 2011, p. 261. Cobban, Edmund Burke and the Revolt, p. 76. 83 Burke, Reflections, p. 71.

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that ‘power has no other rational end than that of the general advantage’, and that ‘Government is a contrivance of human wisdom to provide for human wants’.84 However, we can counter this with the idea that Burke’s utility principle is ‘in no way the utilitarianism of the utilitarians’.85 On the one hand, Burke’s conception of well-being, inspired by Aristotelian eudaimonia, is alien to Bentham’s hedonism. It assumes the existence of an independent notion of moral virtue and duty anchored in a theological position, and provides a teleological basis for political morality. On the other, Burke does not rely on calculation formulas. He stands closer here to Aristotelian phronesis – an informal and implicit practical judgement – than to Bentham’s formal, elaborate constructions.86 Above all, Burke differs from Bentham in his misgivings about reformism. Where Bentham constantly finds new ideas, Burke remains extremely cautious, driven by the conviction that the polity cannot be explained by a body of a priori knowledge. If Burke must be considered a utilitarian, he can only be an ‘indirect’ utilitarian, believing that the best results are a reward for those who do not seek them consciously.87 His political philosophy is thus based on an antivoluntarist position, even a true ‘horror at voluntary will’.88 Keeping the utilitarian reference in play, we may consider following Elie Halévy that Burke’s political doctrine allows us to grasp the nature of the historical evolution of the utility principle before it came into alignment with the democratic idea. Whereas in Bentham it leads to a resolutely voluntarist and reform-minded doctrine, Burke’s framing of the utility principle moves in the direction of a traditionalist philosophy whose outer reaches verge on mysticism.89 From a common belief in utility – which had become a truly ‘universal philosophy’ in late eighteenth-century England – we thus see two politically opposed critiques of human rights emerging: the first condemns the 1789 Declaration’s disregard of the authority of prescription, and the second rails against the limits it imposes on the freedom of future generations. This also explains why other commentators reject the utilitarian reading that in their view wrongly associates rejection of human rights and rejection of natural law. In appealing to the past and to God, they argue, Burke reinterprets natural law in the light of the classical school. 84 86 88

89

Ibid., p. 52. 85 Ganzin, La Pensée politique d’Edmund Burke, p. 161. Waldron, Nonsense, p. 86. 87 Ibid., p. 87. The wording is that of Stéphane Rials, ‘La droite ou l’horreur de la volonté’, in Révolution et Contre-révolution au XIXe siècle, Paris, DUC/Albatros, 1987. As Rials observes, it is this ‘horror of will’ that aligns Burke with certain contemporary forms of neoliberalism. Elie Halévy, La formation du radicalisme philosophique [1905], Paris, PUF, pp. 10 and 15.

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This concept of natural law thus makes Burke in their reading the chief opponent of modern natural law and the exponent of a Stoical, Ciceronian and medieval natural law. In this line of thinking, Michel Villey, a champion of Aristotelian jusnaturalism, has praised Burke’s doctrine for what he sees as its adaptation (also recognised by a line of English-language authors90) of classical natural law doctrine to the modern world. ‘Burke maintained not the letter but the spirit – a fact that does not pass without personal contradiction – of the doctrine of natural law, enriching it with new content, breathing the life of new form into it, a garb suited to the world in which we live.’91 Against this interpretation we may set the reservations of Leo Strauss. As Philippe Raynaud notes, the classical doctrine had already undergone significant transformation in modern times under the combined influence of Stoicism, Christianism and rationalism. In his hostility towards political rationalism and his vehement critique of human rights, Burke remains at one remove from this development, and is surely less close to the Thomist tradition than Michel Villey would have us believe. On the other hand and most importantly, Burke stands apart from the classical tradition in that he tends to deny the value of theory and rationality, which he associates with modern philosophy.92 Burke’s opposition to modern rationalism blends almost imperceptibly with an opposition to reason as such: prudentialism slips over into irrationalism.93 This depreciation of the value of reason would become even clearer in the work of Rehberg, who mocked the empty efforts of ‘speculative writers’ to formulate an ideal of the perfect constitution – for, Rehberg writes, ‘the ideal serves no useful purpose, not even that of comparing and evaluating existing constitutions’.94 In the Reflections and in his earlier essay on ideas of the sublime and the beautiful, Burke develops an aesthetic theory of politics that associates the sublime with language and imagination.95 The sublime is the feeling awakened by an ineffable, distant and awe-inspiring power. People submit to the idea of God, of the King or of a father because these male incarnations of power provoke terror, inciting us to submit our will to a force that we cannot entirely understand. ‘No passion so effectually robs the mind of all its powers of acting and reasoning as fear . . . Whatever 90 91 92 93 95

See Peter J. Stanlis, Edmund Burke and the Natural Law, Michigan, University of Michigan Press, 1965. Villey, ‘Philosophie du droit de Burke’, p. 137. Raynaud, Preface to Burke, Réflexions, p. lxi. Strauss, Droit naturel et histoire, pp. 269–271. 94 Rehberg, Recherches, p. 104. See the analysis in Costas Douzinas, The End of Human Rights, Oxford, Hart, 2000, p. 150, and Thierry, Burke. Le futur en héritage, pp. 105–116.

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therefore is terrible, with regard to sight, is sublime too.’96 Now, ‘for anything to be very terrible, obscurity seems in general to be necessary’. The sublime is obscure, and cannot be grasped by means of reason. Invisibility and the absence of images are the political signs of the sublime: ‘Those despotic governments, which are founded on the passions of men, and principally upon the passion of fear, keep their chief as much as may be from the public eye. The policy has been the same in many cases of religion. Almost all the heathen temples were dark.’97 Conversely, deliberate drafting of a constitution sweeps away the arcane and the sacred, leaving only brute force as a foundation for the state’s authority. Through these strands of his thought, Philippe Raynaud observes with some justification that in some ways Burke’s thought ‘enters into a relativist train of thought, at once “irrationalist” and “historicist”, which takes us some distance . . . from the classical tradition’.98 Raynaud nonetheless concludes that Burke takes up a place at the heart of a controversy inherent in the liberal tradition.99 This thesis, also endorsed by several other commentators,100 benefits from the authority of two highly significant thinkers in the same area: Carl Schmitt from the angle of proclaimed anti-liberalism, and Friedrich Hayek from the opposite standpoint of offensive liberalism, both painted Burke as a prototypical representative of liberal thought. For Schmitt, Burke is the classic philosopher of parliamentarianism and representation;101 Hayek sees him as the architect of a political translation of the economic theories expounded by Adam Smith and other figures of the ‘Scottish Enlightenment’.102 These two points are indisputable: theoreticians of representative government still today cite Burke’s Bristol speech explaining the meaning of the electoral mandate as a seminal text.103 The intellectual affinity between Smith and Burke is well known. Pocock has showed that Burke diverges from ‘Scottish’ philosophy only 96 97 98 99 100

101 102

103

Edmund Burke, A Philosophical Enquiry into the Origin of Our Ideas of the Sublime and Beautiful [1757], London, J. Dodsley, 1767, p. 96. Ibid., p. 100. Philippe Raynaud, Trois révolutions de la liberté. Angleterre, Amérique, France, Paris, PUF, 2009, p. 40. Ibid., p. 53. See especially Frank Turner, Darrin McMahon and Conor Cruise O’Brien in Burke, Reflections and Sanford Lakoff, ‘Tocqueville, Burke and the Origins of Liberal Conseravtism’, The Review of Politics, 60 (3), 1998, pp. 435–464. Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy, Cambridge (MA), MIT Press, Paris, Seuil, 1988. Friedrich Hayek, Law, Legislation and Liberty. I: Rules and Order, ed. Paul Kelly, London, Routledge, 1913, p. 22. See Ralf Dahrendorf, Reflections on the Revolution in Europe, Transaction Publishers, 1990. Bernard Manin, Principes du gouvernement représentatif, Paris, Flammarion, 2012, pp. 237–238.

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on one point: his belief that commerce had been able to drive the process of civilisation only because it had itself been civilised by the feudal codes of the spirit of ‘chivalry’.104 However, we cannot stop at such a decontextualised and dehistoricised conception of ‘liberalism’. To paint Burke as a representative of liberalism is to use with hindsight a nineteenth-century term that had no place in his own intellectual universe. Burke considered himself a Whig; and it would be highly anachronistic to attribute the same meanings to the term ‘Whig’ and ‘liberal’. Historically, liberalism first designated a very clearly defined political movement:105 when it first arose, at the beginning of the nineteenth century, the word described par excellence the ideas of Madame de Staël and Benjamin Constant. Now Constant’s liberalism was explicitly defined in opposition to Burke’s traditionalism: a liberal, in the original sense of the word, was someone who rejected Burkean traditionalism and joined Constant and Madame de Staël in condemning the Terror of 1793 while endorsing the intentions of 1789. There is certainly no reason not to describe Burke as a liberal if we are also willing to class thinkers such as Hume, Smith or Montesquieu as liberals. Burke says nothing that Montesquieu had not already said;106 he is perhaps even more ‘liberal’ in his explicit rejection (in his speeches against Hastings) of the idea that despotism might be well suited to certain contexts. This argument is not without its strength, and gives the exact measure of what should be understood by Burke’s ‘liberalism’, if we choose to use the word. But we must immediately add that Montesquieu’s eulogy of the English constitution, written in the first half of the eighteenth century in the spirit of opposition to absolute monarchy in France, could hardly carry the same meaning as a eulogy (even formulated in identical terms) of the English constitution written to justify the French monarchy against the revolutionaries. In Zeev Sternhell’s expression, Burke’s liberalism may be seen as a ‘blocked liberalism’;107 but blocked, it must be said, in the scheme of Montesquieu’s thought, the Whig tradition, and seventeenth-century Common Law. Burke was an admirer and passionate advocate of the Whig order, the most liberal order there was in Europe at this time. Yet this admiration had a conservative consequence: the desire to immobilise the Whig order in the exact position it had reached. We have seen that as 104 105

106 107

Pocock, Introduction to Burke, Reflections, p. xxxiii. On the history of the term in France and England, see Bertier de Sauvigny, ‘Liberalism, Nationalism and Socialism: The Birth of Three Words’, The Review of Politics, 32 (2), 1970, pp. 147–166. See Montesquieu’s eulogy in the Appeal from the New to the Old Whigs, p. 449. Zeev Sternhell, Les Anti-Lumières, Paris, Fayard, 2006, p. 46.

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of 1782 Burke regarded the English constitution as the summit of perfection, and consequently opposed any democratisation of its institutions. The critique of ‘revolutionary despotism’, affirmation of the intangibility of property rights, rejection of any form of absolutism in the name of constitutional pluralism: these constitute what we may call liberalism in Burke’s thought. However, they do not suffice to define Burke as a liberal in the sense of a figure whose political meaning and aims were defined by liberalism. We need only read the Reflections to see that the essential nature of Burke’s diatribe against the French revolution is a campaign for order, for maintenance of a state religion and a nobility fully in control of its land holdings. Burke refuses to conceive of liberty ‘without order and virtue’: liberty is in his view only one of the assets that should be protected by a political system, and this asset was itself understood as plural. The liberties that Burke defends are those of defined groups (including religious or national minorities) and corporations. They are not liberties of the individual understood as an entity equivalent to others, but the liberties of establishments embedded in customs and institutions. The property rights that he sets against the revolutionary ‘tabula rasa’ are those of corporate property, in the mould of ecclesiastical and aristocratic corporations. Burke associates the right to property less with individual than patrimonial rights, understood so to speak as a right of the patrimony itself which can trump individual free will (an inheritance imposed on its heirs). In a word, Burke saw himself more as a defender of the civilisation of custom than a defender of liberty. It is true that this defence of a civilisation of custom bears striking resemblances to the neo-liberalism of Friedrich Hayek, that great admirer of English Common Law as opposed to the continental notion of democratic sovereignty.108 To be sure, civil society – a concept that Burke inherited from the Scottish Enlightenment thinkers – is by no means the same thing as Hayek’s theory of the order of the market, which refers not to a divine design but to an immanent process of natural selection in a Darwinian vein. In contrast to the immanence of the market, civil society as envisaged by Burke is founded on the transcendence of a divine law. A certain number of rights and duties lie outside the commercialist order – since ‘We had not a right to make a market of our duties’109 – and individual liberties are limited by corporative rights (not excluding the syndicate). However, the fact remains that Hayek, like Burke, refuses to accept that human will can intervene in a selfregulating market order (in the social order), and posits a first thesis 108 109

Hayek, Law, Legislation and Liberty I, p. 86ff. Burke, Speech on Mr. Fox’s East-India Bill, p. 440.

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following Ferguson that civil societies are ‘the result of human action but not of human design’.110 The argument of liberalism – understood as the antithesis of social engineering – lies, in Hayek’s view, in the fact that the market provides the equivalent of a body of knowledge about society’s needs which no human perspective, whether individual or state-based, can access. ‘Each member of society can have only a small fraction of the knowledge possessed by all, and . . . each is therefore ignorant of most of the facts on which the working of society rests. Yet it is the utilization of much more knowledge than anyone can possess, and therefore the fact that each moves within a coherent structure most of whose determinants are unknown to him, that constitutes the distinctive feature of all advanced civilizations.’111 Now, as Hayek explicitly recognises, this argument supports a traditionalist vision. On the one hand, the order of society supposes inheritance of inequalities. On the other, ‘Since we owe the order of our society to a tradition of rules which we only imperfectly understand, all progress must be based on tradition.’ What justifies market freedom is less a human right to liberty than the fact that this market liberty has proved its worth during the process of civilisation. More prosperous, efficient and powerful than societies based on social solidarity, market societies have been validated by the process of cultural selection that has made them outlast other social systems, a process of cultural selection guided not by reason but by success.112 We should not, then, be surprised to find that Hayek has only misgivings about declarations of human rights, which he accuses of attempting to catalogue rights that cannot be defined in principle.113 Hayek’s liberalism can be translated into Burkean terms: it is the performance of its constitution that validates the liberty of the market. Conversely, Hayek’s rejection of any social planning – on the grounds that laws can only be ‘equipment’ for certain unknown contingencies, able to serve several purposes even while ensuring ‘the abstract overall order’114 – finds a precursor in Burke’s eulogies of mixed constitutions by virtue of this same reason: the polyvalence of law.115 Yet it would be hasty to conclude that Burke espouse ‘liberalism’ on the basis of these echoes between his thought and certain contemporary 110 111 112 113 114 115

Hayek constantly cites this formula from Ferguson: see for example Law, Legislation and Liberty, p. 21. Ibid., p. 14. Friedrich Hayek, Law, Legislation and Liberty. III: The Political Order of a Free People, ed. Paul Kelly, London, Routledge, 2013, p. 489ff. Ibid., p. 264. Friedrich Hayek, Law, Legislation and Liberty. II, ed. Paul Kelly, London, Routledge, 2013, p. 274. See Burke, Second Letter on a Regicide Peace, in Reflections, pp. 596–597.

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visions of conservative liberalism; we might conclude instead that some forms of ‘neo-liberalism’ or market fundamentalism in fact arise from a traditionalism that dares not speak its name. This traditionalism, to be sure, is not radical. An indefatigable advocate throughout his political career of rights grounded in concrete institutions tempered by experience, Burke must not be confused with figures such as Maistre or Bonald. From a factual point of view, first of all, these authors offer no possible justification for the Anglican schism, the Glorious Revolution of 1688 or the American Revolution of 1776 – all events that Burke, on the other hand, admits as legitimate. Burke’s traditionalism, then, does not disqualify all acts of revolt. In this respect, though it is perspicacious in certain ways, Sternhell’s attack on the author of the Reflections underestimates the internal divergences of counterEnlightenment thinkers by lumping together authors who aim to stabilise modernity in the sense of a technical-economic development with no emancipatory effects – Burke, Taine, Gehlen, Hayek – and theorists who envisage a radical rupture with modernity in a reactionary or revolutionary vein – Maistre, Bonald, Schmitt, Heidegger. However, it remains true that Burke’s thought takes the individualist core out of liberty. For Burke, as for Rehberg after him, human beings are only truly human when they are embedded in the inequalities of history. In denying history, human rights bring man onto a level with animals instead of integrating him into human society116 – which means in turn that humanisation passes by way of unequal rights. Herein lies Burke’s common ground with a true liberal such as Alexis de Tocqueville, to whom some have compared him,117 but who believed that liberty must be desired ‘for itself’ and forcefully emphasised, in an antithesis of the Reflections: ‘According to the modern notion, the democratic notion, and I dare say the correct notion of freedom, it is assumed that each man has received from nature the gifts necessary to conduct his affairs and carries at birth an equal and indefeasible right to live independently from his peers in everything that relates only to himself and to regulate his own destiny as he sees fit.’118 Tocqueville had drawn a close connection between equality of rights and the exercise of public virtue: for him, it is only because the Americans – by virtue of their exceptionally egalitarian circumstances – can see the 116 117 118

Lukas Sosoe, ‘August Wilhelm Rehberg : l’homme et l’œuvre’, in Rehberg, Recherches, p. 63. See Sanford Lakoff and Bruce Frohnen, Virtue and Promise of Conservatism. The Legacy of Burke and Tocqueville, Lawrence (KS), University Press of Kansas, 1993. Alexis de Tocqueville, L’Ancien Régime et la Révolution, Œuvres complètes, vol. II, Paris, Gallimard, 1952, p. 62.

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concrete link between civic-mindedness and individual liberties that they tend to display public virtue. In a ‘virtuous circle’, only the spectacle of equal rights can act as motivation for virtue; and only the exercise of public virtue can guarantee the maintenance of individual liberties: ‘rights are real only if citizens are virtuous, but conversely, citizens are virtuous only if rights are real’.119

* To round off this exploration of Burke, we can outline two ways in which his work lives on in contemporary thought. On the one hand, the contrast between virtues and rights continues to feed into the so-called ‘communitarian’ opposition to liberalism today, based on the idea that ends precede rights and trump consent. The rejection of the boundlessness Burke saw in the rights of man can also be seen today in the distinction drawn by some theorists between the rights of man as a form of community self-limitation and human rights as a type of democratic absolutism. Burke’s critique of pure democracy in the name of an ‘embedded democracy’ thus still persists, in updated form. On the other hand, Burke’s early juxtaposition of market liberalism and conservative defence of a sort of piety towards nation, family, religion and established traditions remains very striking. This combination appears again in the convergence today between neoliberalism and neoconservatism. As Wendy Brown has highlighted, this convergence between two schools of thought that both strive to limit or even depose the democratic system nonetheless remains highly paradoxical. Neoconservatism grows from a ‘moral rationality’ founded on an ideal of devotion to collectivity, whereas neoliberalism forms part of a ‘market rationality’ that has little interest in moral duties.120 Burke offers us one of the keys to this paradox in his suggestion that a non-egalitarian market order assumes general acceptance of the subordination of individuals to a hierarchical order. This Burkean scheme hints at the fact that claims to human rights in a neoconservative vein can hardly ever be more than a pretext.

119 120

Jean-Fabien Spitz, La Liberté politique, Paris, PUF, 1995, p. 473. Wendy Brown, ‘American Nightmare : Neoliberalism, Neoconservatism, and De-Democratization’, Political Theory, 34 (6), 2006, pp. 690–714.

3

Human Rights versus Social Utility A Progressivist Critique: Jeremy Bentham and Auguste Comte

In answer to the revolutionary dynamics of human rights, Burke developed a form of conservatism that would eventually lose its liberal overtones among his later followers. However, many of the arguments he makes can be dissociated from the traditionalism in which he often cloaks them. For instance, Burke’s denunciation of the intractable contradiction between the principle of egalitarianism and the tacit acceptance of inequality entailed by the right to private property could just as well feature in a radical liberal project advocating the maximisation of collective wellbeing, or even in a Saint-Simonian type of socialism planning to return their share of the collective wealth to the disenfranchised. What makes such a progressivist ‘reconversion’ of Burke’s analysis possible is that when he rejects abstract universalism, he touches on many utilitarian themes. These utilitarian undertones can even be found in Maistre’s work, where the ‘best government’ is defined by its ability to ‘provide the greatest possible sum of happiness and power, to the greatest possible number of men, during the longest possible time’.1 The rejection of what Étienne Balibar calls ‘the proposition of equaliberty’ – the 1789 Declaration’s radical ‘identification’ of liberty and equality2 – leads to the emergence of a competing ideal which emphasises the optimal balance of liberty and equality. Liberty and equality are perceived as separate entities, which can only increase up to a specific point, and not by handing out rights according to a purely arithmetic notion of equality. However, when utilitarianism rejects the Burkean conflation between tradition and usefulness, it loses its connection to conservatism. Instead, it embarks on a critique of human rights unhampered by respect for the aristocracies unseated by the revolution, and guided by the maximisation 1

2

Joseph de Maistre, Against Rousseau: ‘On the State of Nature’ and ‘On the Sovereignty of the People’, trans. and ed. Richard A. Lebrun, London, McGill-Queen’s University Press, 1996, p. 159. Etienne Balibar, ‘Droits de l’homme et droits du citoyen’, in Les frontières de la démocratie, Paris, La Découverte, 1992, p. 134.

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of collective happiness, or even the pursuit of equality understood not as enjoyment of identical rights, but rather as the possibility for all citizens to develop their unequal abilities, and thereby to profit from the material and intellectual wealth created by the interaction of unequal positions. Jeremy Bentham positions himself halfway between Paine and Burke.3 He ‘filters’ Paine’s progressivist intuition about the importance of safeguarding the freedom of choice of future generations through Burke’s denunciation of the democratic absolutism of human rights. Similarly, the Saint-Simonians, and later Auguste Comte, also qualified Condorcet’s philosophy of progress by borrowing Maistre’s thesis about the law’s inability to organise social life. The ‘metaphysics’ of human rights came to be seen as the obsolete legacy of a transitional period of crisis, of no relevance in an age of industrial and scientific progress. The differences between Bentham’s and Comte’s thought are too significant for the two of them to be considered as a unit, just as it would be wrong, in spite of their many similarities, to equate Comte with the Saint-Simonians (who wanted to abolish inheritance and to grant equal rights to women, two ideas staunchly rejected by Comte). Nevertheless, Bentham and Comte represent the two main advocates of a utilitarian and progressivist critique of human rights. In Bentham it finds its ‘liberal’ incarnation, since he stresses the pre-eminence of collective utility, understood as the aggregation of individual utilities. Comte represents its ‘social’ incarnation, since he considers social utility as the utility of the whole social body, understood as an indivisible organism greater than the sum of its parts. Collective Utility versus Human Rights: Jeremy Bentham At first glance, it is difficult to imagine two more antagonistic approaches than Burke’s and Bentham’s. Burke considered it essential to foster due reverence for authority by shrouding it in mystery, and by relying on rituals and other types of ‘pleasing fiction’ designed to encourage obedience. Bentham constantly sought to expose the raw workings of power in order to free the minds of his readers from the false beliefs that are the source of insidious domination. Burke guided jusnaturalism towards the idea of a natural order of social hierarchies, safeguarded by tradition and independent from such things as personal will or individual reason. Bentham denied the existence of natural rights and considered 3

Jeremy Bentham, unpublished manuscript cited by Philip Schofield, ‘Jeremy Bentham and the British Intellectual Response to the French Revolution’, Journal of Bentham Studies, 13, 2011, pp. 1–27, p. 1.

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legislation an instrument which could be changed in accordance with the needs of collective utility. He criticised declarations of rights for robbing future generations of the possibility to determine their own needs in their own times. Nevertheless, in spite of these very different premises and their implications, Bentham’s attacks on human rights were no less abrasive than Burke’s. Like the latter, he considered human rights a threat to private property and an attempt to subject all other nations to specifically French injunctions. With the same virulence as Burke, Bentham attacked the Declaration line by line, denouncing its internal contradictions as well as its ‘terrorist’ consequences.4 As early as 1776, in a pamphlet entitled An Answer to the Declaration of the American Congress, Bentham denounced natural rights as dangerous, as ‘vague generalities, sentiments, and rhetoric’, and he excoriated the theories of Richard Price – the future target of Burke’s own Reflections – who claimed that only direct or indirect democracies were in conformity with natural law. ‘Dr. Price with his selfgovernment made me an anti-American’, Bentham later declared.5 Bentham became increasingly vocal in his support of representative democracy with the years. During the first decades of the nineteenth century, he was in favour of universal male suffrage, secret voting, annual elections and the freedom of the press, arguing that elections were the best way to force governments to truly work for the common good. In spite of this, he never relented on his criticism of declarations of rights, which he denounced as ‘a hodge-podge of confusion and absurdity, in which the thing to be proved is all along taken for granted’.6 During the stormy debates of the summer of 1789, Bentham wrote to his friend Brissot: ‘I am sorry you have undertaken to publish a Declaration of Rights. It is a metaphysical work – the nec plus ultra of metaphysics. It may have been a necessary evil – but it is nevertheless an evil.’7 His reservations about human rights (including Sieyès’s project), which he began to formulate during this period, eventually led him to write the 1795 Nonsense upon Stilts, a merciless critique of the Declaration not published until 1816 in French, before its first English edition in 1838. 4 5 6

7

Jeremy Bentham, Anarchical Fallacies, in John Bowring (ed.), The Works of Jeremy Bentham, Edinburgh, William Tait, 1843, vol. 2, pp. 491–534, p. 501. Herbert Hart, Essays on Bentham. Studies in Jurisprudence and Political Theory, Oxford, Clarendon Press, 1982, p. 61. Jeremy Bentham, letter to John Bowring (30 January 1827), in Luke O’Sullivan and Catherine Fuller (eds.), The Correspondence of Jeremy Bentham, Oxford, Clarendon, 2006, vol. 12 (July 1824–June 1828), p. 308. Jeremy Bentham, letter to Jacques Pierre Brissot, mid-August 1789, Bentham’s Correspondence, in John Bowring (ed.) The Works of Jeremy Bentham, Edinburgh, William Tait, 1843, vol. 10, p. 214.

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Human Rights: A Theoretical Non-Sense Bentham dismissed the notion of man’s natural rights because he did not believe in the myth of a pre-social ‘state of nature’; instead he held that ‘all men . . . are born in subjection, and the most absolute subjection – the subjection of a helpless child to the parents on whom he depends every moment for his existence’.8 Having decided to interpret the Declaration through the prism of ‘social contract’ theory (in spite of the fact that such a contract is never mentioned in the text), Bentham goes to great lengths to underscore that such a contract is ‘pure fiction’: ‘all governments that we have any account of have been gradually established by habit, after having been formed by force; unless in the instance of government formed by individuals who have been emancipated . . . a rare case, and from which nothing follows with regard to the rest’.9 If it is ‘nonsense on stilts’ to claim that a society’s laws are based on a contract, then it follows that there is no such thing as a ‘natural law’, not even in the sense recognised by Burke, that of a ‘metaphysically true’ abstraction. We obey laws because they are useful (since they increase our overall individual happiness) and not because of some theoretical contract which we entered into on the basis of primitive rights. It is not their origin, but rather their aims and benefits which give legitimacy to a society’s laws. It is a burden to obey them (since it entails effort and limits personal freedom), so they therefore need to be counter-balanced by a positive gain. As an important scholar of his works points out, Bentham was afraid of ghosts, and so he had to confront the difference between the real and the imaginary at a very early age. Furthermore his legal studies left him with a deep-seated hatred of legal jargon.10 His first published work, A Fragment on Government (1776), is a model of close linguistic analysis, in which he criticises the ‘fictions’ used by legislators, magistrates and lawyers in order to confuse their opponents. What Bentham expects of the critical analysis of language is that it should expose the sophistry and confusion that help perpetuate social and political subjugation. In this sense, as Herbert Hart suggests, his work can be seen as an attempt to demystify legal language, and therefore as partially similar to Marx’s own writing, in spite of the latter’s sarcastic dismissal of ‘Sir Bentham’ as a ‘genius of bourgeois stupidity’ who based his generalisations about human nature on the native prejudices of English 8 10

9 Bentham, Anarchical Fallacies, p. 497. Ibid., p. 55. Catherine Audard, Anthologie historique et critique de l’utilitarisme, Paris, PUF, 1999, p. 185.

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shopkeepers.11 From the very different vantage point of his measured and gradualist reformism, Bentham had an equally sharp perception of the way abstract concepts can insidiously impose the idea that injustice and exploitation are facts of nature that human beings cannot change.12 Bentham writes of the law that ‘it shews itself in a mask’.13 The role of political writers is to open their compatriots’ eyes to the fact that legal imperatives are nothing but the expression of a few determined men’s personal will: ‘Law is something men add to the world, not find within it.’14 In a sense, Bentham’s analysis anticipates Bourdieu’s later description of ‘the juridical field’, as well as the ‘hermeneutics of suspicion’ which deconstructs the linguistic and symbolical systems that make legal mystifications possible.15 Bentham criticises the linguistic process whereby individuals or groups are referred to as abstract, fictional entities, such as ‘the Throne’ or ‘the Crown’ instead of ‘the King’, or ‘the Church’ instead of ‘the churchman’, ‘the Court’ instead of ‘a Judge’.16 How, then, are concepts to be defined? In Bentham’s earlier writings, definitions are understood as the resolution of complex thoughts into simple elements that conform to the experience of the senses. Gradually, however, Bentham developed his own personal approach to conceptual definitions, which he called ‘paraphrasis’, and which aimed to elucidate the meaning of terms by analysing the context in which they were used rather than considering them in isolation. It was no longer necessary for each word to refer to some element of the sensory experience; for a word to mean something, it was enough if the sentence in which it appeared retained some direct empirical reference.17 Conversely, if paraphrasis cannot elucidate meaning, then the noun designating a fictional entity is merely a sound, and the proposition it is part of meaningless.18

11 12 13 14 15 16 17 18

Karl Marx, Capital: A Critique of Political Economy, ed. Friedrich Engels, New York, Cosimo Classics, 2007, p. 668. See Hart, Essays on Bentham, p. 2 and ‘ Bentham and the Demystification of the Law’, Modern Law Review, 36 (1), 1978, pp. 6–7. Jeremy Bentham, Comment on the Commentaries and A Fragment on Government, ed. James Henderson Burns and Herbert Hart, Oxford, Clarendon, 1977, p. 124. Hart, Essays on Bentham, p. 2 and ‘Bentham and the Demystification of the Law’, p. 7. Emanuelle de Champs, La Déontologie politique ou la pensée constitutionnelle de Jeremy Bentham, Paris, Droz, 2008, p. 52. Jeremy Bentham, The Constitutional Code, in John Bowring (ed.) The Works of Jeremy Bentham, Edinburgh, William Tait, 1843, vol. 9, p. 76. Jeremy Waldron, Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (1987), London, Routledge, 2014, p. 35. Schofield, Utility and Democracy, p. 25.

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As many scholars have pointed out, one of Bentham’s most innovative contributions is his idea that our relationship to the world and to language would be unintelligible if we considered that the words in a sentence directly referred to elements of the real world and had meanings independently from the sentences in which they were used. Jeremy Waldron argues that the way Bentham defines terms in positive law such as ‘right’ or ‘duty’ using paraphrasis represents the ‘triumph of Benthamite jurisprudence’.19 Using this approach, it becomes clear that terms like ‘right’ or ‘duty’ are fictional, whereas ‘law’, ‘sanction’ or ‘sovereign’ are not. The first of these do not refer to anything tangible, whereas the second two express easily identifiable things that we can hear, see and sense – things like orders designed to deliberately inflict pain. However, even if we cannot know what words like ‘rights’ or ‘duties’ mean in themselves, we can determine the meaning of the sentences in which they appear. Talking about duties means talking about behaviours required by the sovereign under the threat of punishment. If the meaning of sentences about ‘rights’ and ‘duties’ depends on the meaning of other sentences about ‘sovereigns’ or ‘orders’, then it follows that there is no way of talking about ‘natural duties’ or ‘natural rights’ except if one refers to the commandments of some natural law issued by a divine sovereign.20 Using a similar logic but with very different intentions, Maistre (who had not read Bentham), concluded that there could be no such thing as eternal rights and duties without an explicit reference to a Legislator God.21 However, the revolutionaries rejected this conclusion, as Bentham underscores: ‘in no mouths are (natural rights) so frequent nor so insisted upon as in the mouths of those by whom the existence of a divine law and a divine lawgiver are equally denied’. Doing away with the divine legislator entails doing away with the law, which robs the notion of natural rights of all meaning: ‘Right and law are correlative terms: as much so as son and father. . . . A natural right is a son that never had a father.’22 For Bentham, ‘right is the child of law’, and ‘poets, rhetoricians, and dealers in moral and intellectual poisons’ are the ones to be blamed for giving this child a ‘false parentage’ by leaving it on the doorstep of Nature.23 19 21

22 23

Waldron, Nonsense, p. 35. 20 Ibid., p. 35. Joseph de Maistre, Soirées de Saint-Pétersbourg, 8th entretien, Œuvres, Paris, Laffont, 2007, p. 699. ‘Any concept of Right is divine’, Charles Maurras would later write, referring to Comte; ‘let us not talk about right, lest we agree that it entails a theological guarantee’ (Enquête sur la monarchie, Paris, Nouvelle Librairie Nationale, 1924, p. ciii–cvii). Jeremy Bentham, Supply Without Burden or Escheat Vice Taxation in Waldron, Nonsense, p. 73. Bentham, Anarchical Fallacies, p. 69.

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Severing the tie between rights and the law is not only contradictory, but it also strips the notion of rights of all criteria that can govern their identification and their concrete applications. This leads either to endless controversies or to a theoretical vacuum allowing people to claim any political whim as a natural right. However, such abstract debates are nothing more than a form of ‘verbal bludgeoning’.24 For Bentham, it makes sense to say that specific types of people should have specific rights, but not to claim that they should have legal rights by virtue of some preexisting, natural right: ‘a reason for wishing that a certain right were established, is not that right – want is not supply – hunger is not bread’.25 The very abstraction with which these rights are enunciated betrays their ‘impertinence’ in the sense of ‘lack of pertinence’.26 The overall strategy of the Declaration is to articulate very general demands in an absolute, abstract way – including demands about freedom, equality and private property. However, as Bentham points out, no single form of government can be successfully established if such rights are regarded as absolute. There must be some restrictions on personal freedom (for freedom to mean anything at all) and some restrictions on equality (for rights to actually be effective). From this perspective, the very declaration of a right to freedom is devoid of meaning, insofar as the function of the law is to safeguard the safety and the security of citizens by imposing obligations. Any kind of obligation is, by definition, an infringement on personal freedom, and to claim the contrary is to pervert the very meaning of the word – as if the freedom to do evil was not also a form of freedom. Bentham’s conclusion is that ‘freedom is not the point of the law’,27 or, more specifically, that ‘the law puts a limit on personal freedom in order to make action possible’.28 The same is true of the principle of equal rights, which according to Bentham would give lunatics an equal right to imprison their jailers. This example, already used by Burke, shows that the real purpose of the law is to create differential situations by ascribing rights to some people and imposing obligations on others. What point is there to claim a right in the absolute, without taking specific circumstances into account? This is especially true since the actual manner in which the right is applied will always depend on the specific needs of a nation’s citizens, and on the restrictions they choose to put on it. For Bentham, it is absurd to combine 24 26 27 28

Waldron, Nonsense Upon Stilts, p. 36. 25 Bentham, Anarchical Fallacies, p. 501. Ibid., p. 497. Mohammed El Shahankiri, ‘Jeremy Bentham : Critique des droits de l’homme’, Archives de philosophie du droit, 9, 1964, p. 150. Guillaume Tusseau, ‘Jeremy Bentham et les droits de l’homme. Un réexamen’, Revue trimestrielle des droits de l’homme, 2002, p. 424.

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the claim that there exists such a thing as inalienable rights with the claim that some form of government is necessary to safeguard these rights, and that a government loses its legitimacy if it fails to do so. It is absurd because by exercising its powers, all but the most utopian of governments will automatically infringe on their citizens’ rights. As Hart points out, the relevance of this criticism is paradoxically confirmed by a contemporary advocate of the intangibility of rights. When Robert Nozick, in Anarchy, State and Utopia (1974), asks ‘how much room do individual rights leave for the state?’ it is striking that his conclusion should be very similar to Bentham’s: he concludes that they do not leave the state much leeway, except in an imaginary world.29 Bentham ascribed what we would call a libertarian meaning to the Declaration of Rights, far removed from its authors’ concerns about equal freedom. Bentham was, arguably, well aware that those who defended the notion of human rights did not adhere to a rigid interpretation of them, but considered that they had limitations; He thought they were, in the words of Herbert Hart, ‘on the horns of a dilemma between the impossible and the nugatory’.30 When they did evoke the need to introduce certain limitations, the authors of the Declaration expressed themselves in the vaguest of ways in order not to undermine the thrust of their initial claim – which did not, according to Bentham, prevent the very vagueness of their formulations from nullifying the rights they had just declared.31 As he saw it, the Declaration oscillated between the ‘futility’ of formulas devoid of direct application, and the ‘nuisance’ of slogans which could be used to justify any form of violence.32 However, the real contradiction may lie in Bentham’s own position, since he interpreted the Declaration’s assertion of the irreducibility of human rights as a claim that they were unlimited, which would make them mutually exclusive. The Declaration itself never posits a right in isolation from all others; on the contrary, it presents the equality of freedom as the organising principle determining the boundaries of each person’s individual freedom. By reducing the idea of human rights to an absurd belief in a pre-contractual state of nature absent from the actual Declaration, Bentham takes the Declaration’s rhetoric, with its mentions of ‘natural’ rights, at face value, without realising that what it expresses is 29 30 31

32

Robert Nozick, Anarchy, State and Utopia, New York (NY), Basic Books, 1974, p. ix. Hart, Essays on Bentham, p. 152. Commenting on Article 10 of the Declaration of 1789, which stipulates that the freedom of expression should not disturb the public order established by law, Bentham ironically remarks: ‘Disturb the public order? – what does that mean? Louis XIV need not have hesitated about receiving an article thus worded into his code’ (Bentham, Anarchical Fallacies, p. 513). Ibid., p. 525, p. 414.

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the crisis (rather than the consecration) of the idea of natural law. There is no mention in the Declaration of any human ‘nature’ pre-existing the social and political order. Bentham misunderstands both the meaning of ‘equaliberty’ and the extent to which this ‘extraordinary event of a declaration that really was an autodeclaration’ must be understood as a break with idealised notions of a ‘state of nature’.33 As Claude Lefort and Étienne Balibar have both pointed out, the Declaration, in spite of its phraseology, breaks with legal naturalism insofar as it never posits any form of human nature independent from life in society.34 In spite of being very detailed, Bentham’s critique of the Declaration comes across as crude in that he remains blind to its performative dimension. Amartya Sen effectively highlights the flaws in Bentham’s approach when he points out that Bentham assessed the Declaration using the wrong yardstick: instead of comparing an ethic based on human rights to an ethic based on utility, the author of Anarchical Fallacies stubbornly insisted on comparing the rights proclaimed by the Declarations to those effectively guaranteed by the law. ‘Armed powerfully with the wrong question and the wrong comparison, Bentham dismissed human rights with admirable swiftness and breathtaking simplicity.’35 He never considered that declarations of rights could be used as a basis for the later development of actual rights, and that sometimes right was not ‘the child of law’, but rather its parent. With a certain degree of bad faith, Bentham assumed that the Declaration’s use of the indicative mode betrayed its authors’ confusion between ‘pouvoir’ (to be able to) and ‘devoir’ (to have to), between actual circumstances and abstract rights, without realising that this gap between the affirmation of certain rights and the effective enjoyment of them was precisely the space wherein political demands could be voiced. He constantly denounced the lack of specificity with which the Declaration’s rights are expressed, when it is precisely their indeterminate nature – the fact that these rights ‘go beyond any particular formulation that has been given of them’36 – that makes them so relevant for disenfranchised social groups fighting for the concrete advantages bestowed by the enjoyment of these rights; and Bentham himself would 33 34

35 36

Claude Lefort, Essais sur le politique, Paris, Seuil, 1986, p. 51. Balibar, ‘Droits de l’homme et droits du citoyen’, p. 137. Lefort, Essais sur le politique, pp. 51–52. For a detailed analysis of the Declaration’s break with the idea of a pre-social human nature, see Marcel Gauchet, La Révolution des droits de l’homme, Paris, Gallimard, 1989, pp. 75–87 and 220–226. Amartya Sen, The Idea of Justice, Cambridge (MA), Harvard University Press, 2009, p. 361. Claude Lefort, The Political Forms of Modern Society, ed. John B. Thomson, Cambridge (MA), MIT Press, 1986, p. 258.

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later become heavily involved precisely in this type of struggle, when he campaigned for the extension of voting rights. Anarchy, Tyranny and Selfishness: Burke and Bentham For Bentham, the language of natural rights was not only theoretically indefensible; it also opened the door to criminal consequences. In this sense, his practical conclusions are very close to Burke’s. Like Burke, Bentham identified three main evils born of the Declaration: anarchy, despotism and violence. Burke had already denounced human rights as a ‘digest of anarchy’ threatening the entire social order.37 Bentham shared the same concerns. By introducing a ‘right’ to resistance, he considered that the Declaration ‘arm(ed) all fanatics against all governments’, since ‘among the immense variety of ideas upon the natural law (. . .) each one will find some reason for resisting human law’.38 That is why Bentham considered one of the Declaration’s most corrupting fallacies to be the way it specifies what governments ‘can’ or ‘can not’ do rather than what they ‘ought’ or ‘ought not’ to do, irrespective of circumstances. Can and can not, when thus applied – can and can not, when used instead of ought and ought not – can and can not, when applied to the binding force and effect of laws (. . .) are the disguised cant of the assassin: after them there is nothing but do him, betwixt the preparation for murder and the attempt. (. . .) These are the words that speak daggers(.)39

This leads to a second charge levelled at the rights of man, which also echoes Burke’s earlier criticism: that the unlimited nature of these rights risks transforming them into an instrument of despotism. Since all the claims derived from these rights are equally absolute and yet mutually exclusive, they are bound to lead to violence: since they are neither true nor false, they can only impose themselves or be suppressed. The equality of rights, which entails universal sharing, contradicts the sacred right to private property; to give precedence to either one becomes equally arbitrary.40 For Bentham, every article of the Declaration suffers from 37 38 39 40

Edmund Burke, cited by R. R. Fennessy, in Burke, Paine and the Rights of Man: A Difference of Political Opinion, The Hague, Springer, 1963, p. 6. Étienne Dumont, Principles of Legislation: from the ms. of Jeremy Bentham, ed. John Neal, Boston (MA), Wells and Lilly, 1830, p. 308. Bentham, Anarchical Fallacies, p. 500. In Nonsense upon Stilts Bentham adds: ‘this declaration of rights may be allowed to have made property sacred, even as Jephthah conceived himself bound to make his daughter sacred by cutting her throat’ (The Collected Works of Jeremy Bentham: Rights, Representation and Reform; Nonsense Upon Stilts and Other Writings on the French

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this over-generalisation: ideals like equality, liberty and democracy are affirmed without taking into account their actual consequences for public wellbeing, when the only valid reason to pass a law in the first place is the beneficial consequences expected from it. As Bentham sees it, the Declaration’s anti-consequentialism turns human rights into a basis for misfortune and tyranny. Finally, like Burke before him, Bentham violently denounced the selfish individualism underlying the Declaration of Rights, which he saw as a threat to social cohesion: The great enemies of public peace are the selfish and dissocial passions – necessary as they are – the one to the very existence of each individual, the other to his security. (. . .) What has been the object, the perpetual and palpable object, of this declaration of pretended rights? To add as much force as possible to these passions, already but too strong, – to burst the cords that hold them in, – to say to the selfish passions, there – everywhere – is your prey! – to the angry passions, there – everywhere – is your enemy.41

Nevertheless, in spite of their shared concerns about the rights of man, Burke’s and Bentham’s perspectives remained radically different. For Burke, order followed from tradition: once order had been established it automatically became a social good which must be preserved. Bentham’s position, on the other hand, was that of the tireless reformer. He spent his life developing the right criteria to assess and improve existing laws. However, as he saw it, no claim about the need for a specific law could ever be considered as a legal judgement, only as the expression of a subjective sense of dissatisfaction. In spite of being subjective, this feeling could still be justified using rational arguments about the law’s utility. Utilitarian arguments could therefore establish the validity of moral arguments about laws and legal rights. Bentham established a distinction between ‘the anarchist’ and ‘the rational censor of the laws’.42 Nothing prevents the latter from being a good citizen: though he campaigns for the suppression of a law he does not approve of, he does so without questioning its status as law. However, this does not entail any form of blind adherence to the laws already in place. The anarchist, on the other hand, denies the law’s very existence and makes of his own will a universal law: ‘What is, is not, such is the dangerous maxim of the anarchist every time he comes across something that resembles a law he does not like.’43 Interestingly, on this

41 43

Revolution, ed. Philip Schofield, Catherine Pease-Watkin and Cyprian Blamires, Oxford, Clarendon, 2002, p. 374). Bentham, Anarchical Fallacies, p. 497. 42 Bentham, Anarchical Fallacies, p. 498. Elie Halévy, La Formation du radicalisme philosophique, 1901, Paris, PUF, 1995, p. 35.

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point Bentham is equally dismissive of conservatism and anarchy. As he sees it, conservatives justify positive laws by stressing their accordance with the laws of nature, whereas anarchists dismiss positive laws because of their supposed incompatibility with the laws of nature: ‘since both appeal to an inexistent criterion in order to justify their arguments, both are saying nonsense’.44 In Burke’s critique of human rights, an important argument is the respect due to previous generations. The opposite is true for Bentham: he criticises declarations of rights for robbing future generations of the possibility to choose according to their own needs. Whereas Burke sees each generation as one link in a long chain of solidarity uniting past and future generations, Bentham considers it utterly absurd for any man to ‘love posterity better than the present generation; to prefer the man who is not, to him who is; to torment the living, under pretence of promoting the happiness of those who are not born, and who may never be born’.45 This is a major difference between Burke and Bentham: the latter was motivated just as much by his dislike of the established order as by his dislike of anarchy. The past had no intrinsic value for Bentham. As he saw it, the wisest and best informed of his ancestors were nevertheless completely ignorant on many subjects compared with the least educated citizens of his own generation, and this discrepancy indicated another, more epistemological way in which human rights could become a source of tyranny: through their pretence of infallibility. For Bentham, absolutism always entailed a form of intellectual arrogance: What, then, was their object in declaring the existence of imprescriptible rights (. . .)? In us is the perfection of virtue and wisdom: in all mankind besides, the extremity of wickedness and folly. Our will shall consequently reign without control, and for ever: reign now we are living – reign after we are dead. All nations – all future ages – shall be, for they are predestined to be, our slaves.46

As Bertrand Binoche points out, this passage is central to Bentham’s thinking about human rights. His ‘negative take on the Burkean metaphor of the chain’ means that Bentham finds himself, somewhat paradoxically, closely aligned with Paine, who used a similar argument in his polemical wrangles with Burke. In his Rights of Man, Paine wrote: ‘The vanity and presumption of governing beyond the grave, is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations that 44 45 46

Schofield, Utility and Democracy, p. 75. Jeremy Bentham, ‘Principles of the Civil Code’, in John Bowring (ed.), The Works of Jeremy Bentham, Edinburgh, William Tait, 1838, vol. II, p. 321. Bentham, Anarchical Fallacies, p. 501.

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follow.’47 Bentham is similarly vocal about the constant need to free the present from the ‘morbid weight of tradition’. The difference is that he articulates this argument in opposition to the project of establishing a body of fundamental laws, ‘that is, in opposition to the notion of human rights evoked by Paine, who considered these rights to be “natural” and therefore to deserve to be enshrined into a declaration which would be binding for all generations’.48 In an interesting article devoted to Bentham’s take on temporality, François Ost points out that Bentham disqualifies three different kinds of time commonly used in legal thought: the mythical time of origins – the primal, sacred time of foundational events, be it a divine mandate, a social contract or a revolution; the backward-looking time of custom with its focus on steadily accrued precedent; and the type of ‘instantaneous time’ which sees the genesis of a legal norm as a ‘pure moment of reason’.49 Bentham’s take on time, by contrast, is resolutely gradualist and reformist. From his perspective, the first step in determining what legal rights citizens should enjoy should be to investigate the time, place and circumstances in which the law is meant to operate. Like Burke before him, Bentham ridicules the notion that philosophers should be able to determine universal rules governing all types of societies, based only on abstract and timeless principles. However, this type of pragmatism does not mean that Bentham places value on prejudice or some vague wisdom passed down through history. On the contrary, he stresses the importance of constantly anticipating future developments, and of tirelessly looking for rational ways to guarantee the greatest happiness of the greatest number of people. Burke believed public action could never be truly transparent; the legitimacy of a political system depended on its retaining a degree of mystery and opacity. Bentham’s method, on the other hand, consists in developing clear and intelligible formulae designed to assess the impact of public actions on the happiness of all people concerned, with all individuals being considered equally important. All of which brings up the question of the value ascribed to the individual in Bentham’s thought. Burke considered that one of the major errors of the proponents of human rights was to consider society as no more than 47 48 49

Thomas Paine, ‘Rights of Man’, Part I (1791) in Bruce Kuklick (ed.), Political Writings, Cambridge, Cambridge University Press, 2007, p. 63. Binoche, Bentham contre les droits de l’homme, p. 44. François Ost, ‘Codification et temporalité dans la pensée de Jeremy Bentham’, in Philippe Gérard, François Ost and Michel Van de Kerchove (eds.), Actualité de la pensée juridique de Jeremy Bentham, Brussels, Presses des Facultés Universitaires SaintLouis, 1987, p. 212 ff.

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a collection of individuals. For Bentham, on the other hand, the only basis for determining collective happiness is the happiness of every single individual: the interest of the individual is ‘the only real interest’.50 The question is whether this belief is sufficient to claim Bentham as a ‘methodical defender of the prerogatives of the individual’.51 Utilitarian thought has, undeniably, proved to be sensitive to the demands of individuals – be they women, homosexuals, Jews or colonial populations. It is also true that the so-called sacrificial argument (according to which collective interest outweighs the respect due to the individual) does not take into account the fact that the calculation of utility can in fact ‘represent an obstacle to (individual) sacrifice since it takes into account secondary disadvantages such as the fear and insecurity felt by anyone at the thought that they could be sacrificed’.52 However, this obstacle to sacrifice remains a very fragile one insofar as it relies on complex calculations that may be revised according to circumstances at any given time. The defensive argument that Bentham’s utilitarianism safeguards the essential content of the rights of man, meanwhile, is flawed in that it seems to consider this mandatory, as if the utility principle must be inflected by ethical intuitions independent of it. What Bentham never considers is the possibility, well-illustrated around the same period by the writings of Sade, that individuals may derive a degree of pleasure from seeing the suffering of others, a pleasure that proves far superior to any concerns about their own physical safety; many reactionary writers, on the other hand, were acutely aware of this attraction to evil, which they saw evidence of in the popular violence unleashed by revolutionary terrorism. Let us assume, following Benjamin Constant, that Bentham’s utilitarianism really does lead to ‘the same consequences as those that derive from natural law’, and that the only real difference between utilitarianism and natural law is one of ‘terminology’. Even then, as Constant points out, it is undeniable that that the notion of utility – which is no less flexible than that of natural law – endangers respect for the law far more since it depends on ‘our daily interests’ and not on ‘our sense of duty’.53 Furthermore, by stipulating that disobedience to the law is only warranted if the nefarious effects of the law are greater than those entailed by obedience, utilitarianism can also be said to encourage submission to regimes of terror (where disobedience is severely punished) and disobedience to liberal regimes, where the risks entailed by civil disobedience are 50 51 53

Halévy, La Formation du radicalisme philosophique, p. 82. Tusseau, ‘Jeremy Bentham et les droits de l’homme’, p. 411. 52 Ibid., p. 430. Benjamin Constant, ‘Des droits individuels’, in Marcel Gauchet (ed.), De la liberté chez les modernes, Paris, Hachette, ‘Pluriel’, 1988, p. 432.

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much smaller. This leads to a rather paradoxical conclusion: that individuals can only behave in accordance with their real utility if they base their actions not on a felicific calculus, but on a non-utilitarian sense of their rights and duties – or even of their own personal dignity.54 It is therefore difficult to contest Rawls’ conclusion that utilitarianism is not fundamentally a form of individualism, since by treating all systems of desire as equally valid, it also undermines any sense of the plurality – and therefore of the uniqueness – of different individuals.55 That an intelligent calculation of social utility can lead to a level of protection of personal freedom essentially similar to that guaranteed by the Declaration of Rights does not change the fact that this is the accidental outcome of a collective felicific calculus that does not even take into account notions like respect for an individual’s personal dignity or integrity. As Catherine Audard remarks, even if Bentham’s utilitarianism is a ‘methodological’ form of individualism (since it ascribes equal value to each individual), it cannot be considered an ‘ethical’ form of individualism, since it ‘does not take into account that each person is a unique individual endowed with inalienable rights’; instead, it considers their needs to be essentially similar and therefore comparable.56 One can even argue that the opposition established by Bentham between collective utility and human rights goes as far as to endanger the methodological individualism that underpins his democratic engagement. As Larry Siedentop points out, utilitarianism does not provide any ‘satisfying answer’ to the question of why, when it comes to determining collective utility, each individual should be counted as one person and one only.57 This is by no means self-evident: there are plenty of historical examples of aristocratic societies taking it for granted that some individuals count more than others. In the late nineteenth century, Nietzsche articulated an influential defence of the aristocratic principle, arguing that individuals, in the original sense of the word, were always few in number, and that in every great civilisation the masses were always sacrificed for the good of a small elite. As he wrote in his glowing endorsement of caste systems: ‘The inequality of rights is the very condition of there being rights at all.’58

54 55 56 57 58

Ibid., pp. 433–435: ‘Rights are a principle, utility only a result (. . .) You effectively destroy utility by giving it first place.’ John Rawls A Theory of Justice, Cambridge (MA), Harvard University Press, 2009, p. 24. Catherine Audard, Qu’est ce que le libéralisme?, Paris, Gallimard, 2009, p. 151. Larry Siedentop, Democracy in Europe, London, Penguin Books, 2001, p. 192. Friedrich Nietzsche, ‘The Antichrist’, in Twilight of the Idols and The Antichrist, trans. Tomas Common, New York (NY), Dover Publications, 2012, p. 128.

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Bentham for his part writes: ‘Difference in rights is precisely that which constitutes social subordination. Establish equal rights for all, there will be no more obedience, there will be no more society (. . .) ‘If all men are equal in rights, there will not exist any rights.’59 Why does Bentham, unlike Nietzsche, not intend this maxim as an endorsement of the sacrifice of the masses for the good of an aristocracy of superior individuals? Why does he consider that each individual counts as one – if not for the fact that he tacitly presupposes every individual to have the same fundamental human right, the right to count as ‘one’ like all others?60 It would not be impossible to claim that Bentham’s utilitarianism really rests on an incoherent form of egalitarianism, which simultaneously asserts and denies the equality of rights between all individuals.

* In his 1978–1979 lectures at the Collège de France, Michel Foucault made a distinction between two different ways of limiting the exercise of political power, the ‘revolutionary’ or ‘juridico-deductive’ approach which was – ‘up to a point’ – that of the French Revolution, and the ‘inductive’ or ‘residual’ approach of ‘English radicalism’.61 Whereas the ‘juridico-deductive’ approach starts with human rights in order to establish the desirable limits of governmentality, the second aims to curb governmental action by questioning its utility. Hence the ‘absolutely heterogeneous’ conceptions of freedom associated with these two approaches, ‘one based on the rights of man, and the other starting from the independence of the governed’.62 When it comes to Bentham’s own thought, this clear-cut distinction needs nuancing. For one, Foucault’s antithesis between the law as ‘the expression of a will’ (with securitised rights which effectively limit each other) and the law as ‘the effect of a transaction’ (between the government and the sphere of personal freedom) does not account for the importance ascribed to personal will in Bentham’s approach to the law. Furthermore, by doing away with the constraints associated both with natural law and with tradition, Bentham’s aim is to give more freedom to the sovereign in his quest to determine the greatest good for the greatest number. It is also worth noting that, as Foucault’s editors point out, his was a very ‘free’ approach to Bentham’s thought, based on the somewhat hasty assumption that Bentham was a partisan of laissez-faire economics.63 For 59 61 62 63

Bentham, Anarchical Fallacies, p. 533. 60 Siedentop, Democracy in Europe, p. 192. Michel Foucault, The Birth of Biopolitics : lectures at the Collège de France 1978–79, ed. Michel Senellart, trans. Graham Burchell, Palgrave Macmillan, 2008, pp. 39–40. Ibid. See footnote 27 of the lecture dated 24 January 1979 in Michel Foucault, Naissance de la biopolitique. Cours au collège de France 1978–1979, Paris, Gallimard-Seuil, 2004, p. 75.

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Bentham, the point of the law is its utility rather than its protection of personal freedom, though it is true that Bentham gradually came to see the defence of personal freedom as one of the best ways of maximising public utility. That said, Foucault’s analysis does highlight a dimension of liberal thought which also finds its expression in the theories of writers like Vilfredo Pareto or Friedrich Hayek, whose defences of personal freedom are motivated by their belief in the superior utility of the free market and not by their adherence to the imprescriptibility of human rights – which is also why Pareto and Hayek recognise that free markets are not incompatible with authoritarian regimes. Foucault notes that there are different dangers associated with each of these two ways of safeguarding personal freedom. Since it does not leave any room for ‘the art of governance’, the human rights approach always risks absorbing the protection of individual rights into the overall exercise of sovereign power, and so producing a system where ‘the juridical constitution of the sovereign is so strong that the exercise of basic rights are reduced to pure ideality’.64 The liberal approach, on the other hand, means that the rights of the governed are determined from the point of view of ‘governmental utility’, which always risks emphasising ‘general utility over individual utility and (so to) infinitely reduce the independence of the governed as a consequence’.65 Though it may seem paradoxical, there is no contradiction, from this perspective, between taking into account the rights of those who are governed, and prioritising ‘governmentality’ over respect for fundamental rights. Laissez-faire is based not on legal principles but on utilitarian calculations, which means that the independence of the governed is merely the optimal result of a form of governmentality that entrusts the regulation of human behaviour to non-governmental mechanisms. The free market represents one such mechanism, since its reliance on open and fair competition forces everyone to internalise these constraints as rules governing individual behaviour. From this perspective, astonishing and hasty though it may seem at first, Foucault’s suggestion that Bentham’s Panopticon (an architectural form designed to ensure total surveillance66) represents ‘the very formula of liberal government’ makes a lot more sense.67 What it suggests is that in 64 66 67

Foucault, The Birth of Biopolitics, p. 43. 65 Ibid., p. 43. Foucault famously analysed the implications of this design in Discipline and Punish. Foucault, The Birth of Biopolitics, p. 67. This was not Foucault’s last word on liberal utilitarianism. Without reneging on the ideas about the normalising underside of modern liberties presented in Discipline and Punish, Foucault shrank them to size somewhat from 1978 onwards, stressing the anti-disciplinarian aspects of liberal governmentality. See ‘Revue d’études benthamiennes’, 8, 2011 (Foucault et l’utilitarisme); José Luis Moreno Pestaña, Foucault, la gauche et la politique, Paris, Textuel, 2010; Serge Audier, Penser le

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the utilitarian model, ‘the independence of the governed’ merely means that society is entrusted with monitoring itself. Seen like this, the Panopticon can indeed be described as a model of the relationship between a liberal government and the mercantile society that it oversees: its primary role is to observe from a distance in order to assess whether the ‘natural mechanics’ of economic activity are running smoothly, and to intervene only if they come into disarray. This explains why, in a model not predicated on human rights, economic freedom can be so closely associated with ‘disciplinary techniques’ or ‘the considerable extension of procedures of control, constraint and coercion’.68 It is useful here to recall that the Panopticon is not Bentham’s only relevant work: in Outline of a Work Entitled Pauper Management Improved, he argued in favour of committing the poor to labour houses run by a private monopoly.69 As Robert Castel points out, ‘the imposition of the total institution appears as the dark shadow cast by the liberation of work’.70 Social Utility versus Human Rights: Auguste Comte It may seem surprising to pair Comte with Bentham. The seductive influence Comte’s positivism had for a time on John Stuart Mill as evidence could certainly be seen as proof of an affinity between the English tradition stretching from Bentham to Mill and the French tradition from Saint-Simon to Comte.71 However, quite aside from the fact that the differences between Mill and Bentham (on such issues as the death penalty or plural voting) are just as marked as those between Comte and Saint-Simon (on inheritance and women’s rights), the short-lived agreement between Mill and Comte72 is not enough to cancel out the antagonisms between Comte’s positivism and Bentham’s utilitarianism. Although they share a similar premise – the decision to reject metaphysics and to limit their field of enquiry to facts and the laws governing them

68 69

70 71

72

‘néolibéralisme’. Le moment néolibéral, Foucault et la crise du socialisme, Lormont, Le Bord de l’eau, 2015. Foucault, The Birth of Biopolitics, p. 67. Jeremy Bentham, ‘Tracts on Poor Laws and Pauper Management: Outline of a Work Entitled Pauper Management Improved’, in John Bowring (ed.), The Works of Jeremy Bentham, Edinburgh, William Tait, 1843, vol. VIII. Robert Castel, Les Métamorphoses de la question sociale, Paris, Fayard, 1995, pp. 157–158. For more on Mill’s enthusiastic but short-lived interest in Comte’s positivism, see The Correspondence of John Stuart Mill and Auguste Comte, ed. and trans. Oscar A. Haac, New Brunswick (NJ) and London, Transaction Publishers, 1995. Comte suggested to Mill that Bentham’s philosophy might be seen as a transition towards positivism. See John Stuart Mill, Auguste Comte and Positivism, London, N. Trübner & Co, 1865. Mill largely agrees with the first phase of Comte’s philosophy, but dismisses the second phase (which intends to found a new religion).

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(which can be considered as general facts) – nothing seems further from Bentham’s utilitarianism than the sociology of Comte, whose guiding principle was to ‘make our sympathetic instincts preponderate as far as possible over our selfish instincts’.73 Christian Laval writes that ‘Comte’s fundamental thesis’ about ‘the need for spiritual and moral unity of society’ ‘entails a radical criticism of the very foundations of utilitarianism’.74 The opposition between Comte’s holism and Bentham’s individualist methodology is accentuated by a political incompatibility. While Bentham believed democracy to be the most reliable system to ensure the triumph of the common good, Comte denounced universal suffrage and the parliamentary system as errors, advocating instead a spontaneous regulation of society by two distinct forms of power – temporal and spiritual – which arise from the interplay of material and moral forces. What is more, Bentham would no doubt have considered Comte’s later attempts to transform the spiritual impulse into a positivist religion based on the sociological systematisation of scientific knowledge absolutely absurd. ‘Just as theocracy and theolatry rest on theology’, Comte wrote at this time, ‘sociology clearly constitutes the systematic basis of sociocracy and sociolatry’.75 The dry calculations of utilitarian politics are poles apart from the Comtian project of a positivist Church, whose priests would lead the faithful in their worship of ‘Humanity’, including in the veneration of the Virgin Mother and of the ‘Great Fetish’, the earth itself. However, in spite of all these differences there is a deep kinship between Bentham’s and Comte’s approaches to human rights. Comte’s motto, ‘Order and Progress’, could just as well have been coined by Bentham to express his dual ambition. Bentham combines Paine’s love of progress with a critique of human rights not unlike Burke’s. Comte, meanwhile, combines the rationalist progressivism of Condorcet with a theory of social order borrowed from Maistre and Bonald but ‘detheologised’.76 He sanctions the destruction of the ancien régime even 73 74 75 76

Auguste Comte, ‘Appel aux conservateurs’ (1855), in Pierre Arnaud (ed.), Du pouvoir spirituel, Paris, Pluriel, 1979, p. 395. Christian Laval, L’Ambition sociologique, Paris, Gallimard, 2012, p. 213. Auguste Comte, Système de politique positive (1851–1854), Paris, Société Positiviste, 1929, vol. 1, p. 403. There is a recurrent desire in Comte’s writing to enrich Condorcet’s philosophy of history by incorporating elements from ‘the retrograde school’ of Bonald and Maistre. For more detail see Frédéric Brahami, ‘Sortir du cercle. Auguste Comte, la critique et les rétrogrades’, Archives de Philosophie, 2007, 1, pp. 41–55, and ‘Déchirure et production politique du temps. Science et volonté autour de la Révolution française’, Incidence, 7 : L’Enigme du régicide, Paris, 2011, pp. 249–290, as well as Pierre Macherey, Etudes de philosophie « française ». De Sieyès à Barni, Paris, Publications de la Sorbonne, 2013, pp. 233–256.

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as he denounces the anarchical impulse behind the ‘revolutionary metaphysics’ of rights, which ignores the true ‘utility’ of social organisation. Crucially, Comte considers usefulness to be a key component of the ‘positive spirit’, which he defines as a scientific spirit having renounced the ‘empty satisfaction of a barren curiosity’ in order to ascertain ‘the degree of precision compatible with the nature of phenomena and in accordance with our real needs’.77 In the positivist order, utility, understood as the index of humanity’s ‘real needs’, becomes the ultimate norm of science. Science, which ‘always considers the relative rather than the absolute’, must ‘correspond to our situation and to our organisation’. Science must be understood as a kind of social service. And although it does not have to guarantee immediate returns, science must nevertheless be guided by a ‘final intention of utility’, with the ‘demands of its application’ determining what type of research ought to be carried out.78 The project of systematising science based on its social function (the aim being to better serve sociability by better understanding it) is what most clearly opposes Comte’s positivism to Bentham’s utilitarianism. Comte reformulates the principle of utility from ‘a social perspective’, that of ‘sociology’, a term he coined in 1839 in order to endow ‘social physics’ with the prestige of a system of logics or morality.79 Bentham thought of collective utility as the sum of all individual utilities, whereas Comte equates social utility with that of the social body as a whole; though the wellbeing of individuals is tied up with it, they do not decide the rules of its evolution. The only way to determine social utility with ‘the same certainty’ as in a geometric conclusion is to rely on the scientific

77 78

79

Auguste Comte, Discours sur l’esprit positif (1844), Paris, Vrin, 1983, pp. 63–69. Appel aux conservateurs, p. 391. Ibid., pp. 20, 46, 68–70. Although Christian Laval admits that the principle of utility informs Comte’s work on the ‘macroscopic’ level (L’Ambition sociologique, pp. 166–170), he underestimates its importance based on the fact that Comte posits the absence of utilitarian motivations as one of the conditions of scientific progress. He forgets that the advent of sociology, by unifying all the branches of knowledge, also makes social utility the new guiding principle of science. From that point onwards, ‘one should think of science as essentially one, human science or more exactly social science’ (Discours sur l’esprit positif, pp. 38–39), whose only lasting function is to ‘serve sociability’ (Auguste Comte, Discours sur l’ensemble du positivisme (1848), Paris, GF-Flammarion, 1998, p. 55). In his last work, Comte goes so far as to deliberately omit any mention of the word ‘truth’ in his definition of ‘logic’: ‘the normal interplay of feelings, images and signs, designed to instill in us the notions which correspond to our moral, intellectual and physical needs’ (Synthèse subjective, Paris, chez l’auteur, 1856, p. 27). Auguste Comte, Cours de philosophie positive (Physique sociale), 47th lesson, Paris, Hermann, 1975, p. 88. The term ‘sociology’ had already been used by Sieyès in a manuscript unknown to Comte (Jacques Guilhaumou, ‘Sieyès et le non-dit de la sociologie’, Revue d’histoire des sciences humaines, 15, pp. 117–134).

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knowledge of living conditions and of the evolutionary laws governing social entities, from which ‘individual happiness’ derives.80 There is no need to enter here into the complex architectonics of Comte’s ‘politics of the spirit’, which eventually acquires the status of a ‘positive religion’ in the second part of his work. Of greatest interest to our own argument is Comte’s reliance on the guiding principle of social utility, which makes his thought one of the two main ‘types’ of progressivist criticism of human rights.81 Comte is especially virulent in his social critique of human rights. His position on this topic remains remarkably consistent throughout his oeuvre; it rests on the notion that the idea of individual rights cannot be the organising principle of social life. The abstract metaphysics of human rights must be replaced by a set of rules based on the needs of the social body – and more generally on the needs of that larger organism made up of many social organisms known as Humanity. In emphasising that society must be founded on altruistic feelings rather than rational calculations of self-interest, what Comte rejects is not so much the rule of utility as such, but rather the ‘metaphysical’ notion that individuals are capable of knowing what is best for them and that such knowledge can be attained independently of a close examination of social context. Such a notion is not so far removed from the fiction of an original state of nature, with its conception of human beings as separate, intrinsically asocial entities. Comte’s answer to this is that individuals are ‘an intellectual abstraction’, and that society is the only thing that really exists: ‘man does not exist as such, Humanity alone is real, since our entire development is due to society’. Having established this, it is pointless to try to determine collective wellbeing on the basis of individual wellbeing. The correct approach is the opposite: since the individual exists only by virtue of ‘the bond of each to all’ and ‘social solidarity’, individual wellbeing must be understood as deriving from collective happiness. This is why empirical observation confirms that happiness derives primarily from the ‘sympathetic instincts’ and that individuals find the greatest degree of private happiness in ‘the active pursuit of the public good’.82 It is therefore essential to move beyond the 80 81

82

Comte, Discours sur l’esprit positif, pp. 110–111. Comte’s critique of the legal system is heavily indebted to Saint-Simon (for whom Comte worked as a secretary). However, the question of Comte’s relationship to SaintSimonianism (the subject of Henri Gouhier’s three-volume work entitled La Jeunesse d’Auguste Comte, Paris, Vrin, 1964) is too vast a topic to be properly addressed here. For a broader perspective on Comte’s thought within nineteenth-century social philosophy, see Bruno Karsenti, D’une philosophie à l’autre. Les sciences sociales et la politique des modernes, Paris, Gallimard, 2013 and Frédéric Brahami, La Raison du peuple, Paris, Les Belles Lettres, 2016. Comte, Discours sur l’esprit positif, p. 118.

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idea of individual rights, not by adding together selfish or subjective utilities, but rather by objectively determining the utility of Humanity itself, of which all individuals are but the organs. From a Metaphysics of Rights to a Social System of Duties Since one of the main tenets of positivism is to consider nothing but verifiable facts, it has little time for ‘strange metaphysical notions’ such as the state of nature, social contracts or natural rights.83 Society is no longer seen as a free choice made by naturally independent individuals, but as a mode of organisation outside which the notions of human existence and individuality lose all their meaning. Human beings are not born adult. They only become human beings through a long process of socialisation that begins within the family sphere. That is why ‘the scientific mind’ does not consider society as ‘really made up of individuals’; the ‘real social unit’ is the family.84 Comte’s first methodological principle is almost tautological: society needs to be studied from a sociological perspective that can grasp the conditions for existence and evolutionary laws of society qua society. What these laws outline are the necessary conditions governing the evolution of collective life, depending on its level of development, and subject to the same kind of prior constraints studied by physics and chemistry (the inorganic sciences) and biology (organic science, whose remit matches that of sociology). From its beginnings, the history of humanity is really the history of human societies, and its dynamics are the outcome of the theoretical and practical relationship between organised groups and the natural environment with which they interact. Comte believed he had identified the formula behind social evolution in his famous ‘law of three stages’. It holds that the human mind necessarily passes through three successive stages, but in different rhythms depending on the area (which accounts for many of the discrepancies noticeable in the historical evolution of mankind). First, it goes through a theological (or fictional) stage, in which everything that happens is explained by supernatural causes, resulting in a society organised along military and feudal lines; following which comes a metaphysical (or abstract) stage, in which theology is submitted to rational criticism, and deities are replaced by abstract entities like nature, leading to the institutional supremacy of ‘jurists’ and of literary intellectuals. Finally, the human mind reaches the positive stage, and humanity

83

Comte, Cours de philosophie positive, 46th lesson, pp. 34–35.

84

Ibid., pp. 34–35.

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adopts its last, definitive form of social order, in which industrialists and the spiritual authority of scientific thought reign supreme.85 This historically oriented form of sociology shares the progressivist and anti-anarchist aims of Bentham’s utilitarianism, but without adopting individual self-interest as its guiding principle. In Comte’s thought, individual utilities do not coalesce into a harmonious whole, and do not offer clear guidelines for resolving the conflicts that such an association necessarily brings about. A society cannot reach agreement based on individuals’ representations of their own needs and wellbeing. Instead, its organisation is determined by the (theoretical and practical) demands associated with the division of labour that is necessary for society to achieve order and progress. Its aim cannot be an amorphous notion of wellbeing, which may be different for every individual concerned. Beyond the organisational constraints entailed by a society’s level of knowledge and technological progress, its aim should be nothing other than the progress of reason and the improvement of the human condition and of human nature. Collective utility should not be understood as a purely quantitative measure indicating the satisfaction of desire, without taking the human quality of these desires into account. To determine collective utility, it is necessary to scientifically establish the organisational principles of an industrial society whose structuring principle is not ‘individual self-interest’, but rather the optimal development of human activities depending on their means and ends, and on the abilities of each citizen. Individualism is not only a sociological mistake but also a normative one. Human society exceeds the sum of its parts and cannot be understood as merely an aggregation of individuals; its structure requires all individuals to abandon their own self-interest in favour of ‘altruism’, a term invented by Comte. Social solidarity is not only a given (since individuals rely on society for their own personal development), but it must also be understood as a basic duty, insofar as every individual owes a debt to society that can never fully be paid back; furthermore, society itself is also the only possible source of immortality available to individuals, who are called to identify with humanity as a whole. The aim of social education is to weaken all ‘selfish impulses’, not by destroying them altogether, but rather by subordinating them to the ‘sympathetic instincts’, allowing individuals to realise that the best path to happiness is to carry out their social duties. For positivism, all of human morality can

85

Comte briefly outlines this law in his Discours sur l’esprit positif, pp. 2–29. He also devotes lessons 52 to 57 of his Cours de philosophie positif to it. See Michel Bourdeau, Les Trois états. Science, théologie et métaphysique chez Auguste Comte, Paris, Éditions du Cerf, 2006.

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be reduced to one imperative: ‘Living for others’, which is also the ‘common source both of happiness and duty’.86 This fundamentally social dimension of human life disqualifies the ‘very notion of right, which is based on an absolutist notion of individuality’.87 In the same way that positivist science no longer tries to discover the first causes behind the world’s existence, replacing ‘the impossible determination of the actual causes’ with ‘the simple search for laws, that is, for the permanent relationships between the different phenomena under observation’, so positivist politics dismisses the notion of ‘rights’ as a typically ‘theologico-metaphysical’ construct.88 ‘The idea of rights must disappear from politics, just as the notion of cause must disappear from philosophy.’89 Inherent to the very notion of ‘rights’, as it has been developed by modern jusnaturalism, is the ‘ontological’ conception of an indelible connection between a series of sacred and eternal attributes (rights) and an abstract subject (the individual) considered in isolation, without reference to any specific conditions of existence. The absolute nature of these rights derives from the absolute status of the individual, through a process of creation ex nihilo whereby the human will determines itself. This means that the basis for human rights is theological: they can be considered absolute because they presuppose ‘a supernatural source, which alone can shield them from being subjected to human debate’.90 In response to this absolutist metaphysics, positivism argues that every institution is relative, adapted to the knowledge, techniques and needs that exist around it. The very idea of absolute individual rights is replaced by the notion of duties associated with specific social functions. Comte is no less scathing than Bentham about the ‘antisocial’ metaphysics of the ‘so-called human rights’.91 Since the idea of individual rights is both absolute and purely ‘critical’ or ‘negative’, it represents an ‘aberration’, expressing an ‘anarchist tendency’ which goes against ‘any regular institution, since it perpetually condemns all superiors to an arbitrary dependence on the multitude of their dependents, by

86 87 88 89 90

91

Auguste Comte, Catéchisme positiviste (1852), 9th interview (Paris, Garnier-Flammarion, 1966), pp. 221–224. Comte, Discours sur l’ensemble du positivisme, p. 387. Comte, Discours sur l’esprit positif, pp. 25–26. Comte, Catéchisme positiviste, 10th interview, p. 237. Ibid. Cours de philosophie positive, 46th lesson, p. 36: ‘the set of absolute rights which underwrite revolutionary doctrine are guaranteed, in the last instance, by a sort of religious consecration, as real as it is vague, without which these metaphysical dogmas would necessarily be subjected to constant debate, which would dent their efficacy’. Comte, Discours sur l’ensemble du positivisme, p. 385.

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transferring onto the people the divine right for which monarchs had been so criticised’.92 However, Comte’s unique strength lies in the fact that his historicosociological angle allows him to move beyond mere criticism. Seen in the perspective of the logical social development of modern times, the idea of ‘human rights’ is a ‘necessary’ aberration, an illusion justified by its role in the progress of rationality. Comte points out, first of all, that ‘the major political advances’ of recent times must be ascribed to ‘the metaphysical politics of rights’. These advances must be considered as ‘essentially negative’ since what they entailed was the breakdown of the feudal system. However, without this important transition there could have been no move towards the positive spirit. Claiming human freedom as an absolute right was the only way to strip feudal hierarchies of the prestige associated with their divine right. The theocratic absolute could only be overcome by the equal power of a ‘metaphysical, and thereby absolute mind’. In spite of being transitory and dependent on the very ideas they oppose, ‘critical dogmas’ needed to be above criticism and held to be ahistorical in order to acquire the ‘energy’ needed to overthrow ‘the power, overwhelming at the time, still wielded by the old political system’.93 However, because this paradox is inseparable from the paroxysmal moment of ‘the great crisis of modern societies’, it is not meant to last. Having accomplished its task by destroying feudal society, the metaphysics of rights must be replaced by a true ‘social doctrine’, which alone can enable a society entering adulthood to assume its ‘normal state’. The revolutionary Terror translated into practice the utter incapacity of a metaphysics of rights (which then had unlimited political power at its disposal) to organise social life. The ‘stationary politics’ that followed (that of non-revolutionary liberalism) only perpetuated the social crisis begun by the Revolution. It posited the impassable nature of ‘intellectual anarchism’ even as it enshrined a purely formal principle (‘the equal eligibility of all individuals for any public service role’) as ‘the final destination of the general evolution of all modern societies’. Consequently, it made the language of human rights ‘a hypocritical system’ designed to conceal the rampant corruption that invariably characterises any society devoid of moral unity and thereby forced to allot political power according to the crude principle of ‘simple possession of wealth’. For ‘in the absence of moral authority, the material order necessarily requires either the use of terror or reliance on corruption’.94 92 94

Comte, Cours de philosophie positive, 46th lesson, pp. 32–35. 93 Ibid., pp. 24–26. Ibid., pp. 62–63, 34, 60 and 54–57. For Comte, ‘political corruption’ refers to all circumstances where ‘selfish motives’ predominate in questions of public interest (p. 54).

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Liberty, Equality and Sovereignty The useful transitional role played by the revolutionary metaphysics of rights can be seen as the expression of a type of rationality blind to its own meaning. The truths it carries are not ahistorical, but must be understood as the growth pangs of humanity as it moves away from its feudal childhood and towards the maturity of the industrial era. It would be absurd to endow ‘critical dogmas’ with the value of ‘organic principles’ when this is not what they are.95 But it is possible, beyond their historical function, to discern residual truths that an organic doctrine could usefully take from them. The aim, Comte declared, is to ‘substitute the peaceful determination of duties’ to ‘the stormy debate about rights’.96 Part of what this substitution entails is a translation or conversion of the language of individual rights into a language of social duties, their ‘moral equivalent’: In the positive state, where no heavenly claims are admissible, the idea of right must irrevocably disappear. Each person has duties, to everyone else; but no one has any rights as such. The individual guarantees which justice calls for are nothing but the direct result of this universal reciprocity of obligations, which represents the moral equivalent of the earlier system of rights, without entailing the same grave political dangers. In other words, no one has any other right but that of always doing their duty.97

The fundamental principle of this ‘critical doctrine’ of rights is, according to Comte, ‘the absolute right to free and critical examination, that is, the dogma of freedom of conscience’.98 It is obvious that such a right is, by definition, incapable of providing the intellectual and moral consensus necessary for the organisation of social life. In his Cours de philosophie positive, Comte reasserted what he had written as early as 1822: There is no freedom of conscience in astronomy, in physics, in chemistry, in physiology even, insofar as anyone would consider it absurd not to put their confidence in the principles established by competent men for each of these sciences. If things are different in politics, it is only because the old principles have been abandoned and the new ones not yet formed, to the effect that there are not yet any truly established principles.99

The fact that ‘unlimited freedom to think’ is not established as an ‘absolute right’ does not entail any justification of censorship or of 95

96 98

As early as 1825 Comte wrote: ‘each of the dogmas of the critical doctrine, when taken in an organic sense, amounts precisely to laying down the principle (again, from the organic point of view) that society must not be organized’. (‘Considerations on Spiritual Power’, in H. S. Jones (ed. and trans.), Early Political Writings, Cambridge, Cambridge University Press, 1998.) Comte, Discours sur l’ensemble du positivisme, p. 185. 97 Ibid., pp. 385–386. Comte, Cours de philosophie positive, 46th lesson, p. 27. 99 Ibid., p. 28.

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persecution: Comte emphasises that positive philosophy could not have emerged in the absence of such a freedom. However, this freedom is only useful or functional in the absence of the type of consensus that normally forms the basis of a science. No one would be taken seriously if they claimed they had an ‘absolute right’ to believe that the moon was made of cheese or that gravity did not exist: scientific practice is not organised around such rights but around a shared rationality, both in terms of doctrine and of methodology. There is nothing despotic about this rationality; scholars do not persecute the ignorant or the incompetent, they simply keep them away from their laboratories and sideline them from their discussions. Scientific ‘dogmatism’ (Comte opposes ‘dogmatism’ to the type of sceptical indecision that holds all opinions to be equally valid) is a form of knowledge that knows itself to be relative, which is why its normal mode of functioning is progress or, in other words, constant selfcorrection. Since social life is organised around scientific knowledge, it relies on an intellectual consensus underpinned by the ‘dogmatic’ authority of scholars. The invention of social science marks the culmination of this tendency which is at the heart of industrial civilisation. Comte expects scientific sociology to put an end to the pluralism of moral and political opinions, not through despotic state intervention (which he vigorously opposes), but through the natural emergence following a free debate, of the type of intellectual consensus that is the normal operating mode of science; this, he believes, will persuade the masses to submit willingly to the authority of this new intellectual power, which is thus constituted independently of temporal power.100 Freedom of conscience, which is useful in ignorant times, does not work as an arbitrary rejection of knowledge: no society can be organised around what would amount to a ‘fundamental right’ not to know what is known, and not to draw social consequences from scientific discoveries. Freedom to doubt in a vacuum cannot form the basis of social order, which presupposes shared knowledge and some form of ‘public morals’; as Saint-Simon had already put it, ‘people do not associate in order to be free’, and freedom cannot be ‘the goal of activity’.101 The second article of the 1789 Declaration, which states that ‘the conservation of natural rights’ is ‘the goal of any political association’ is therefore nonsensical. The function of society is not to protect asocial or antisocial freedoms; its 100 101

Comte, Cours de philosophie positive, 46th lesson, pp. 27–31 and p. 41. Claude Henri de Saint-Simon, ‘Du système industriel’, in Œuvres completes, Paris, PUF, 2012, vol. IV, p. 2348. This section owes a lot to Frédéric Brahami’s analysis (‘On ne s’associe point pour être libres’, colloquium presentation at Université libre de Bruxelles study day La pensée sociale française face au droit, 17 October 2013).

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aim is to establish a social order in which the interplay of freedoms aids collective progress. The same is true of the two other ‘critical dogmas’ that naturally follow from freedom of conscience: equality and the sovereignty of the people. These are not foundational rights or organising principles, but only ‘the political consecration of some of the main obligations imposed by universal morality’, ‘which any real attempt at social reorganisation must fulfil in order not to be invalid’.102 Again, it would be absurd to endow these two principles with constitutive value, given that they technically forbid the unequal distribution of political power according to skill, and even the very possibility of forming a government. Claiming equality as an absolute right was necessary in order to bring down ‘the old forms of inequality which, after long furthering the development of modern society, had finally in their unavoidable degradation become truly oppressive’. However, the endpoint of this destruction of feudal inequalities should not be anarchy, or what Saint-Simon referred to as ‘Turkish equality’.103 Rather, it should lead to the establishment of a ‘new social classification’ demanded by the division of labour in industrial society, a society in which ‘the importance of material distinctions’ diminishes, even as the weight of ‘moral and intellectual inequalities’ drastically increases.104 Since the organisation of society must necessarily reflect the distinction between those who plan and those who execute, the equality of political rights appears as yet another illusion, as vain as the utopian notion of a self-governing people. Since in the normal course of things the people cannot directly participate in ‘political government’, popular sovereignty can only mean one thing: a guarantee of last resort against possible abuses of temporal power. What positivism retains from the ‘metaphysical dogma of popular sovereignty’ (which can be summarised as ‘the fundamental obligation to direct the entirety of social existence towards the common good’) is ‘everything it contains which is truly salutary’, that is the recognition in ‘extreme cases’ of a ‘right to insurrection’. Under a positivist regime, characterised by shared moral consensus on the need to prioritise ‘sociability over individual personality’, any actual recourse to this right should remain exceptional since it presupposes a failure on the part of the governing classes to heed the demands of public opinion and the counsel of spiritual power.105 Nevertheless, the right to insurrection remains the best defence against tyranny, and its 102 103 104 105

Comte, Cours de philosophie positive, 46th lesson, op. cit., p. 41. de Saint-Simon, ‘Du système industriel’, in Œuvres complètes, vol. III, p. 2464. Comte, Cours de philosophie positive, 46th lesson, pp. 31–32. Comte, Discours sur l’ensemble du positivisme, pp. 169–171.

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natural extension in the context of ‘industrial relations’ lies in the right to form professional unions and the right to strike, the only recourse available when conflicts between the propertied classes and the working class cannot be spontaneously resolved. It is not universal suffrage and parliamentary democracy (which Comte dismisses as deceptions) that form the rational core of the idea of ‘popular sovereignty’ but rather labour unions, which under the arbitration of spiritual authorities are destined to give up on ‘political debate’ in favour of ‘social transactions’ with the governing classes whose power and ownership they would no longer seek to challenge.106 It is interesting to note that the concept of ‘rights’, which Comte had wanted to ban altogether from political language, makes a reappearance in his discussion of strikes and the right to insurrection. Comte cannot in fact dispense entirely with the idea of rights or, for that matter, that of ‘human dignity’. Beyond the fact that he cannot explain the alchemical transformation of social utility into personal duty, his substitution of rights with duties is valid only on condition of recognition of an equal right to personal development: There is no question that unless they indulge in extremely antisocial behaviour, even the most inferior of individuals have a natural right to expect others to show them the consideration they deserve as human beings, a consideration which will gradually become the basic and most commonly relied on principle of universal morality. However, in spite of this weighty moral obligation, which has not been directly contradicted since the abolition of slavery, it is nevertheless obvious that all men are neither equal nor even equivalent, and thus cannot be expected to enjoy the same rights when they associate – except of course for the fundamental right necessarily shared by all to freely develop their personal activities under appropriate guidance.107

Here, Comtian positivism exposes itself to the same type of criticism as Benthamite utilitarianism, insofar as both systems seem to rely on ideas borrowed from the very language of rights they claim in theory to reject. When Comte stresses ‘the universal reciprocity of obligations’, arguing that it represents ‘the moral equivalent of the earlier system of rights’, he does not refute the idea of human rights but rather denies it outright, in the psychoanalytical sense of the word. It is true that Comte’s denial does not function in quite the same way as Bentham’s, since he goes as far as to reject the notion of universal political rights. Nevertheless, their approaches bear a fundamental similarity and lead to the same internal contradictions. Both reject the notion that the law is there to guarantee 106 107

Ibid., pp. 180, 185, 198–201, 239. Comte, Cours de philosophie positive, 46th lesson, p. 32.

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liberty and equality, and both stress that deep-rooted inequalities of social status mean by extension that there can be no equality of rights.108 What is more, neither system makes it clear why the inequality of rights depending on status constitutes an objection to the idea of human rights, which does not per se reject the notion of individuals of different social status enjoying different rights, but merely holds that every individual should enjoy an equal right to compete for privileged positions. Bentham and Comte make no distinction between inequality of status and the inequality of rights of the people who hold these statuses; this confusion often undermines the logic of their thought. The right of every individual to count as one in Bentham’s thought, or to fully develop their own abilities in Comte’s, both presuppose a fundamental equality of rights which cannot easily be circumscribed within the (different) narrow limits posited by either thinker. When Comte tries to replace the equality of rights with a form of ‘social solidarity’ or ‘fraternity’109 consisting in mutual recognition through reciprocal services, he strangely forgets that this type of reciprocity assumes that each individual will consider all others as holding fundamentally equal rights in spite of the gulf between their social positions. Furthermore, the sense that every person ought to have of his own dignity (without which true wellbeing is impossible) is inseparable from the awareness of equality of rights with others. Without this sense of personal dignity, the positivist ambition to foster ‘a necessary harmony between patricians and plebeians’ by encouraging ‘the devotion of the strong to the weak and the veneration of the weak towards the strong’ appears almost indistinguishable from the feudal ideals of Bonald or Maistre, which Comte had so wished to leave behind. Choosing between Social Solidarity and Political Rights For Comte, there is no other answer to the pressing question of equality and redistribution than the moral ‘regeneration’ supposed to result from the free and unanimous rallying of public opinion of positivist sociology, or as he begins to call it from 1848 onwards ‘positivist religion’, in which the worship of God is replaced by the worship of Humanity. From this perspective, the reform of political institutions becomes a secondary concern. It is more important for public opinion to unite around a universal 108

109

As Guillaume Tusseau points out, equality is never a goal for Bentham, even if the maximisation of collective happiness entails a certain degree of social equality (‘J. Bentham et les droits de l’homme’, p. 423). In his Appel aux conservateurs (p. 455) Comte vehemently denounces the confusion between ‘noble fraternity’ and ‘a false and degrading idea of equality’.

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doctrine, whose spread and evolution will be managed by philosophers (who find themselves imbued with a new form of spiritual authority) and by women and the proletariat, the two social groups with whom they share a natural affinity. What philosophers, women and the proletariat have in common (for Comte) is that they have no influence over industrial and political life, which frees them up for more speculative pursuits. Furthermore, they share a frugal or domestic mode of existence, which in turn guarantees a higher degree of morality. They are called to determine the ethics of the day because they will always be in a position of lesser economic and political power, except for the brief period during which the proletariat will be given dictatorial powers in order to effect the revolutionary transition towards society’s final and positivist stage. In the normal state of humanity, society will be overseen by two distinct powers: temporal power, controlled by capitalists with the necessary wealth to manage society’s needs in terms of investments and entrepreneurship, and spiritual power entrusted to philosophers, women and the proletariat, whose responsibility it will be to ensure that capitalist activity serves the needs of society as a whole. This is how Comte envisions the organisation of his ‘universal republic’, which will supersede nation-states and reorganise all of society under the aegis of a universal ‘social feeling’, with no allegiance ‘to either king or God’.110 It is hardly necessary to draw attention to the naivety and disappointments of Comte’s ‘moral solution’ at any great length, let alone to engage with the bizarre detail of his ‘religious positivism’. Comte seems to consider that the moralisation of social relationships alone, without any real changes in the distribution of property, wealth or power or putting any means of institutional pressure at the disposal of the people, would be enough to replace the class struggles of liberal society with a harmonious reciprocity of services. Comte’s thought takes an increasingly conservative turn in his last works, in which he argues that positivism represents, for the propertied classes, ‘the only systematic defence of order against communist and socialist subversions’.111 By turning the improvement of the proletariat’s living conditions into a purely moral issue, Comte effectively sidesteps the question of the distribution of property, the social

110 111

This is a summary of Comte’s Discours sur l’ensemble du positivisme, which outlines his political thought at the time when he first developed the notion of a ‘positivist religion’. Auguste Comte, letter to Pierre Laffitte, 8 Gutenberg 65 (18 August 1853), in Correspondance inédite, 2nd series, Paris, Société Positiviste, 1903, p. 167. On the same page, Comte declares that ‘the conservative and retrograde class’ represents ‘the real seedbed for positivism’; hence his 1855 Appel aux conservateurs and his attempts to reach out to the General of the Jesuits.

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domination of entrepreneurs and the confinement of the working class to the status of day-labourers fulfilling purely menial tasks. Tempting as it may be to deride parts of Comte’s thought, it would be a mistake to dismiss his ideas out of hand. There is more to Comte’s rejection of communism than mere conservative fear of the ‘enormous danger’ represented by a ‘utopia’ which negates individualism instead of subordinating it to the common good, and which ‘sacrifices freedom in the name of an illusory equality’. Comte sees the working classes’ embrace of communism in the positive terms of an expression of legitimate demands; these are given flawed expression by communist theories (and incoherent – since no communist would advocate the abolition of intellectual property), with the virtue, however, of effectively countering the shortcomings of the liberal order. What can be glimpsed behind the ideology of communism, and even more behind the ‘apt term socialism’, is an acute insight about ‘the social nature of property’. The mistake of communists and socialists is to believe that this ‘social nature’ of property necessarily means that private property should be abolished (or at least the inheritance system, as advocated by more moderate proponents), whereas what it really entails is that private property should be regulated and used in accordance with ‘social needs’. Liberal economists demonstrate that private property, contrary to communist claims, is a necessary precondition for the growth of capital. Communists, on the other hand, convincingly highlight the flaws in the liberal model of property as an absolutely individualistic right to ‘use and abuse’. Comte believes that whether through a system of taxation or of regulation, private property should always be treated as a ‘social service’ that needs to be controlled by society as a whole. Thanks to the ‘moral equivalence between private property and public service’, it should be possible for free enterprise and the unequal distribution of wealth to function together for ‘the common good’ and ‘collective utility’.112

* It is well known that Comte was a major inspiration for French republicans at the turn of the century. Solidarism, which developed alongside Durkheimian sociology, drew on his work to develop its concept of ‘social property’. This contribution is probably more significant than the fact that Comte did not move beyond the idea of a strictly moral regulation of the social use of private property. Although he himself rejected the term ‘socialism’, Comte nevertheless contributed to the development of an 112

Auguste Comte, Discours sur l’ensemble du positivisme, pp. 185–198. His discussion of ‘socialism’, which he added in 1851, is missing from the 1848 edition; it can be found in the edition of the Discours included in the Système de politique positive, I, pp. 153–170.

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alternative form of socialism, separate from the Marxist tradition. During the 1840s, his thought evolved in parallel with Marx’s; like Marx, he considered the proletariat to be a universal class, the only one that could give concrete application to philosophical ideas. However, unlike Marx, he did not believe in the possibility of a classless society. Not only does Comte consider the proletariat’s subjugated status as an essential precondition for its moral superiority and philosophical mission, he also holds that the thrust of industrialisation, which necessarily entails an ever more complex division of labour, naturally accentuates social differences and makes social hierarchies more pronounced. This means that social issues cannot be solved through mere collectivisation of the means of production. This utopian measure does not take into account the fact that the levels of expertise required to regulate modern economies make democratic self-government (that is, arbitrary power of the unskilled) de facto impossible. The imperatives of industrial life do not allow for any other solution than a form of social solidarity able to incorporate existing social inequalities into a reciprocal system of a collective cooperation. This notion of social solidarity retains an ambiguous dimension. Its purely moral character means that it can be interpreted, along strictly conservative lines, as evidence of the fact that ‘progressive tendencies (are) increasingly overshadowed by the need to safeguard social order’.113 This would assimilate social positivism to doctrines of social order centred on the necessary subordination of the ruled to their rulers, and limiting the notion of progress to adaptation without emancipation. This explains how Maurras was able to claim Comte’s work as a source of inspiration, reading it as a secular version of Bonaldian politics.114 However, the majority of Comte’s readers rejected this regressive interpretation, and preferred to give his notion of ‘social property’ a legal framework and to turn his idea of social solidarity into an effective social right. This is the path taken by writers such as Émile Durkheim, Léon Duguit or Léon Bourgeois.115 However, this ‘social solidarity’ approach – which reclaimed the term socialism by giving it a new meaning drawn from Saint-Simon and Comte instead of Marx – necessarily meant reconsidering Comte’s critique of rights. The idea of democracy, in this 113 114 115

Comte, Système de politique positive, vol. III, p. xxiv. Charles Maurras, ‘Auguste Comte’, in Romantisme et révolution, Paris, Nouvelle Librairie Nationale, 1922, pp. 91–127. Jacques Donzelot has shown that in spite of the verbal dominance enjoyed by the republican rhetoric of sovereignty and rights, it was the theory of social utility which proved most popular both in France and England: ‘at the end of the nineteenth century, the solidarist doctrine inspired by the work of Émile Durkheim gave its legitimacy to the French adoption of utilitarian thought’. Jacques Donzelot, ‘Michel Foucault et l’intelligence du libéralisme’, Esprit, November 2005, pp. 73–74.

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view, also had to be rehabilitated by redefining social thought as being first and foremost society’s perception of its own practices and institutions, rather than the expert knowledge of independent sociologists. This makes it possible for the Comtian criticism of popular sovereignty to find its logical conclusion not in the rejection of democracy but instead in its redefinition, as a permanent ‘communication’ between diffuse collective thought and a set of governmental institutions which clarify this using ‘social utility’116 as a guideline; or as an ‘organised social right’, and the ‘sovereignty of social right’.117 The concept of ‘social right’ requires precisely that the idea of individual rights should not be conflated with a notion of absolute individualism, as it is in Comte’s writing. Social rights are not opposed to human rights, but rather reinterpret them by cutting away ‘exaggerated’ expressions of a misunderstood individualism.118 ‘Social rights’ now appear in their true colours as an integral part of the dynamic of human rights, an interpretation that in a different version cuts across works on social liberalism or the social democratic tradition stretching from Jean Jaurès to Georges Gurvitch. The pieces of the theoretical jigsaw that Comte had attempted to put together – rejection of human rights, emphasis on social solidarity, the vision of an international republic and the need for a ‘religion of humanity’ – are thus broken up again. Human rights are no longer incompatible with social solidarity, and their reliance on a nation-state no longer necessary. What does hold is Comte’s assertion that the rights of man, which involved no organised worship, cannot form the basis for a ‘religion of humanity’. Linked in with social rights, they become the shifting reflection of the collective practices that run through the social transactions translating the democratic reality of law. This overlap between social right and the rights of man is not without its problems. Both Bentham and Comte show that the utility principle, whether individual or ‘collective’, usually puts more weight on equal opportunities than equal rights. The maximisation of collective happiness guarantees a basic right not to be sacrificed, but beyond that it tolerates a certain amount of inequality, including inequality of rights if this is necessary to optimise broader collective opportunities for personal development. This tendency is manifest today in the growing preference for legal practices allowing individuals to negotiate their own rights through settlements. In these cases, the individual is no longer a subject endowed with inalienable rights calling for defence, but rather holds 116 117 118

Émile Durkheim, Leçons de sociologie, Paris, PUF, 1950, pp. 113–129. Georges Gurvitch, ‘Le principe démocratique et la démocratie future’, Revue de métaphysique et de morale, July–September 1929, p. 429. Durkheim, Leçons de sociologie, p. 95.

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a number of rights which can be used as bargaining chips to guarantee the most profitable outcome in a negotiation: as a result, freedom is redefined as ‘the freedom to negotiate one’s rights’.119 Even when it combines social solidarity with the defence of personal autonomy, the principle of democratic utility is not quite the same thing as the ‘proposition of equaliberty’. The principle of democratic utility entails ‘an equality of freedoms’, but not the co-extensivity of equality and freedom. How best to articulate these two values remains a problem, and the solution in theory precludes neither social inequalities that optimise the overall amount of freedom nor restrictions on personal freedom which happen to improve social integration. Equality of liberties can thus take the form of an ‘equal inequality’.120 This expression can mean two different things: either it refers to the ‘optimisation of systems of difference’ which allows minority lifestyles (or even, for that matter, secessionist lifestyles rejecting all outside controls and norms introduced in the name of ‘social security’121) to develop with minimal interference; or it refers to the social rights instituted by social security to compensate for uneven living conditions in an attempt to transform this inequality into a form of solidarity through a reciprocity of services.122 As Etienne Balibar has pointed out, there remains an important difference between the defence of ‘equaliberty’, which focuses on the institution of a ‘transindividual’ order, and a ‘sociological conception’ like that of Robert Castel, heir to the solidarist movement. In Balibar’s words, Castel’s ‘irreplaceable analysis’ remains bound up in a vision of society as ‘an organism constantly fighting against a process of disintegration and a state of anomie engendered by unbridled capitalism’.123 Arguing that society is based on intersubjectivity is not the same as arguing it exists as a sui generis collective reality, as Comte and the sociological tradition had. In spite of their strong similarities, the definition of human rights as social rights (plural) remains distinct from a (re)definition of these rights based on a social right (singular) which exceeds the mere ‘extension’ of individual rights. Both of these definitions also differ in their turn from 119 120

121

122 123

Antoine Garapon, ‘Michel Foucault visionnaire du droit contemporain’, Raisons politiques, 2013, 4, 52, pp. 39–49. This is an expression coined by Jacques Donzelot in a commentary on Foucault’s writing, ‘Michel Foucault et l’intelligence du libéralisme’, p. 70. For Foucault, it only refers to neoliberalism (The Birth of Biopolitics, p. 148). This possible interpretation of Foucault’s thought (see The Birth of Biopolitics, p. 265) is defended by Serge Audier in Penser le ‘néolibéralisme’; see especially pp. 417–433 and pp. 509–512. See Robert Castel, Les Métamorphoses de la question sociale, Paris, Fayard, 1995, p. 279, pp. 295–301. Étiene Balibar, La Proposition de l’égaliberté, Paris, PUF, 2010, pp. 131 and 33.

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a more ‘Foucaldian’ approach – described by Serge Audier as a libertarian ‘metabolisation’ of liberal utilitarianism – which interprets human rights as a clumsy reformulation of the ‘demand for independence’ by governed peoples and calls them into the service of creating arenas for plural liberties, freed from disciplinary mechanisms.124 The fact that their ideas have been harnessed for such different ends suggests that there is something fundamentally unstable in both Comte’s and Bentham’s systems of thought. Their criticisms of human rights hold true only at the price of their progressivist ambitions, retreating to the conservative positions of thinkers such as Burke or Bonald. This explains why the beating heart of their work has in fact been adopted by philosophers who embrace the language of human rights.

124

Audier, Penser le ‘néolibéralisme’, p. 84, p. 316, pp. 411–412, pp. 417–419, p. 446, pp. 455–456.

4

Human Rights against the Rights of God A Theologico-Political Critique: Louis de Bonald and Joseph de Maistre

The conceptual arsenal established by Burke fast became the source of a counter-revolutionary doxa that would far outlive the events of 1789. Burke’s arguments were the more effective for their ambiguities, which left them open to many and varied uses and adaptations. We might be forgiven for thinking that various counter-revolutionary critiques of human rights merely reproduce Burke’s thesis, without adding new arguments of their own. Think of the famous passage of the Considerations on France in which Joseph de Maistre, mocking the 1795 constitution ‘made for man’, writes that ‘there is no man in the world’: ‘In the course of my life, I have seen Frenchmen, Italians, Russians . . . I know too, thanks to Montesquieu, that one can be a Persian. But as for man, I declare that I have never met him in my life; if he exists, he is unknown to me.’1 Does this not merely reproduce in epigrammatic form Burke’s opposition between the rights of men and the rights of Englishmen? Zeev Sternhell argues in this sense that there is no real difference between Burke and Maistre, who both rely on the ‘immutable’ pillars of counter-Enlightenment thought: ‘antirationalism, relativism and nationalism’.2 However, to stop at this superficial observation ignores the fact that the same arguments can also form part of very different theoretical frameworks. A common anti-revolutionary feeling is not the same thing as an identical conceptual structure. We cannot lump together the political philosophies of two authors, one of whom – a devout Anglican – sees English liberty as the summit of political perfection, while the other, who considers Anglicanism the most illogical form of 1 2

Joseph de Maistre, Considerations on France, trans. Richard Lebrun, Cambridge, Cambridge University Press, 1994, p. 74. Zeev Sternhell, The Anti-Enlightenment Tradition, trans. David Maisel, New Haven (CT), Yale University Press, pp. 16–17, 65. However, we should point out that Bonald, a leading figure of counter-Enlightenment thought and traditionalism, was determinedly antirelativist: he accused Montesquieu of looking for ‘the spirit of what is’ rather than inquiring into ‘the reason of what should be’ (Louis de Bonald, ‘Législation primitive’ [1802], discours préliminaire, in Œuvres complètes, Paris, Migne, 1859–1864, vol. I, p. 1133).

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Protestantism, sees in the English constitution nothing but ‘a phenomenon altogether local, and perhaps transient’.3 Burke’s parliamentarianism, associated with a defence of religious tolerance, is far distanced from the thesis of sovereign infallibility that lies at the heart of Maistre’s thought up to The Pope; and far, too, from Bonald’s denunciations (in common cause with Maistre) of the ways of commerce and industrial development.4 Faced with Burke’s ambiguous inheritance of the Scottish Enlightenment, Maistre and Bonald, the theorists of a monarchist and Catholic counter-revolution, pursued a critique of human rights couched in a radical rejection of liberalism in any form. The Theologico-Political Radicalisation of Burke’s Critique of Human Rights We have already discussed the basic ambiguity behind Burke’s ‘particularism’ and his endorsement of the English tradition of liberty, which leaves the question open as to whether the English constitution is exemplary because of its traditional nature or the universal value of liberty it incorporates. But the balance between traditionalism and liberalism that undergirds Burke’s argument comes undone as soon as it is taken out of the English context. Burke had been able to defend the French monarchy only by attributing ‘liberal’ traits to it; and as Paine was easily able to demonstrate in his response to Burke, continentals would have been well aware that these falsified reality. This forced an answer to the question skirted by Burke: was the point of his argument to justify conservatism with the ideal of liberty (with the conditions for its realisation)? Or rather to suggest that English liberty draws all its purely local value from the tradition to which it belongs? If the former, not only can the critique of human rights not be total; it also becomes possible to counter Burke’s argument with the suggestion that an ideal must have a normative dimension and can act as the motive for revolt. If the latter, human rights can no longer be seen as ‘metaphysically true’, and must be written off as metaphysically false. This is the position espoused by Bonald, who criticises the metaphysical weakness of the 3

4

Joseph de Maistre, ‘Lettres sur l’inquisition espagnole’, 5, Œuvres complètes, Lyon, Vitte, 1884–1886, vol. III, p. 364; The Pope, Considered in his Relations with the Church [1819–1821], book II, chs 2, 4 and conclusion, trans. Aeneas McDonell Dawson, London, C. Dolman, 1850, p. 127. On the diversity of counter-revolutionary schools, see Gérard Gengembre, La ContreRévolution ou l’histoire désespérante, Paris, Imago, 1989; Jean-Yves Pranchère, L’Autorité contre les Lumières, Genève, Droz, 2004, p. 22ff; Henning Ottmann, Geschichte des politischen Denkens, 3/3 : Die Neuzeivol. – Die politischen Strömungen im 19. Jahrhundert, Stuttgart, J. B. Metzler, 2008.

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1789 Declaration,5 and by Maistre, who counters it by setting against it a ‘metapolitics’ (or a ‘metaphysical theor[y]’ of politics).6 Burke’s reduction of the Glorious Revolution of 1688 to a defensive measure devoid of any democratic aim appears plain wrong to Maistre, even while he claims to ‘applaud a sophism which omits to support the right of a people to depose its sovereign’.7 Burke’s key argument was that any political order is based on prescription. But religion, which stands at the heart of social order, cannot be motivated by prescription: as an institution of truth and salvation, a religion cannot be judged on its social performance. A state cannot be accused of being ‘false’; a religion can. Though he adopts Burke’s prescriptive justification of the balance of powers that had made England so influential, Maistre pours cold water on any enthusiasm for the English constitution in declaring ‘that it has not only cost England torrents of blood to arrive where she is, but it has cost her her very faith, which is to say everything’.8 Burke would have seen sheer fanaticism in the idea that only true religion brought rights with it. Maistre might have retorted that a defence of religion founded only on moral standards is not enough: if no religion can claim to represent exclusive truth, by what right can the state establish a religion whose truth is not established? Burke founded the principle of the imprescriptible nature of constitutional rights on prescription; but it is hard to grasp how the absolute intangibility of law can rest on a utility that stands in relative connection to variable circumstances and needs. It is easy enough to accept that an established law must not be annulled without reason or procedure, and that the length of establishment of an institution constitutes grounds for endorsing it; but how to move from a mere favourable view of an institution to affirmation of an intangible law precluding any reform project? Paine had seen the impasse clearly: ‘If governments, as Mr. Burke asserts, are not founded on the Rights of MAN, and are founded on any rights at all, they consequently must be founded on the right of something that is not man. What then is that something?’9 Paine saw only one answer to this 5

6

7 8 9

Bonald, Législation primitive, Discours préliminaire, p. 1110: ‘the authors of the Declaration have been accused of dealing in metaphysics. If this is a reproach, there has never been a less fairly deserved one.’ Joseph de Maistre, The Generative Principle of Political Constitutions [1814], ed. and trans. Jack Lively, preface, New Brunswick (NJ) and London, Transaction Publishers, 2012, p. 95. Maistre, letter of 1808, Œuvres complètes, vol. IX, p. 94. It is Burke he is accusing here: see Réflexions sur le protestantisme (1798, posthumous edition), in Œuvres, p. 315. Maistre, Lettres sur l’Inquisition espagnole, V, p. 364. Thomas Paine, ‘Rights of Man’ [1791–1792], in Works of Thomas Paine, London, 1796, p. 208.

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question: whatever the necessities or constraints of social order, the only rights properly understood are rights not of objects or institutions but of men. However, there is another possible response: that the rights of that ‘something that is not man’ are the rights of God, and that the imprescriptible nature of constitutions arises from a divine right. This ‘theocratic’ response finds an unexpected outlet in an underlying difficulty of Paine’s view that the right to change constitutions is a human right: does this mean that human beings also have the right to strip themselves of their own rights at the whim of constitutions that they have bestowed upon themselves? Do human rights therefore cancel themselves out with the idea that men have only the rights that they grant themselves, and no law other than their own will?10 And otherwise, if human rights are intangible, should a basis for them other than human will not be sought? Here Maistre cites the Catholic theologian Bergier, who argued against the concept of social contract that those who pass conventions ‘have not relinquished the power to revoke them’ and ‘their descendants, who played no part in the process, are all the less obliged to observe them’. This argument is identical in form to Paine’s yet upends the meaning he had ascribed to it: it leads to a metaphysical radicalisation of Burke’s rejection of the rights of man, on the grounds that law cannot proceed from arbitrary will. If an agreement ‘obliges no one, unless there is a superior authority guaranteeing it’, what must be sought is ‘the sanction of laws in a power above man’.11 Similarly, Bonald credits Bentham with showing that human rights collapse under the attack of the utilitarian critique. But this does not establish the truth of utilitarianism: the only merit of Bentham’s system, incompatible with any moral framework, is that it brings out in sharper relief the need for a metaphysical foundation behind social obligations.12 Unintentionally, Bentham proved by contradiction that the basis of social and political cohesion cannot but be found in God, and that the only way is to ‘fully absorb this philosophical truth, the most philosophical of truths 10

11 12

Bonald and Maistre object to the idea in Rousseau’s thesis that the people has the right to ‘harm itself’ (Du contrat social, book II, ch. 12): Maistre, Œuvres complètes, vol. VIII, pp. 217 and 348; Bonald, Théorie du pouvoir (1796), Part I, book VI, ch. I, Œuvres complètes, vol. I, pp. 370–371. Maistre, Generative Principle, II, pp. 368–369. ‘Mr Bentham . . . rejects the principle of the immutable, eternal nature of law; first among the public law theorists since Hobbes, he rails against the multitude of professors, legal theorists, magistrates, philosophers, who proclaim loud and clear the law of nature, . . . natural law, natural equity, rights of man, and he sets out to find the reason for all laws in the sentiments of pleasure and pain. This is not the place to contest this system; but the author proves the need for a more solid foundation than those on which the edifice of society has previously been built’ (Bonald, Législation primitive, p. 1115).

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indeed, that the Revolution started with the Declaration of the Rights of Man, and can end only with the declaration of the Rights of God’.13 Bonald and Maistre represent the purest incarnation of radical rejection of human rights in the name of a political theology. Admitting the consequence from which Burke had shrunk – the condemnation of religious pluralism – both argue against freedom of the press and Jewish emancipation.14 Maistre had no hesitation in speaking highly of the Spanish Inquisition, invoking the principle of the ‘infallibility of leaders’ and the need to subordinate individual reasoning to ‘the absolute and general reign of national dogmas’.15 Without going to such extremes, Bonald agrees with Maistre on the subject of the indissoluble unity between the Catholic Church and the state. The two authors were certainly not, as Maistre believed, in ‘perfectly thorough union’:16 not only is the slowly unfolding demonstration of Bonald’s systematic treatises a far cry from the vehement tone of Maistre’s essays, but the common cause of the two authors in defending a Catholic monarchy is no barrier to real doctrinal divergences.17 For instance, Maistre understands constitutions as such profoundly variable and circumstantial realities that their true essence can never be adequately captured in writing. This relativism is alien to Bonald, who holds that the ‘natural laws of social order’ are universal and must be fixed in writing.18 Yet though these differences are significant, the fact remains that the theoretical divergences between the two authors constitute variations on a shared principle which Bonald describes to Maistre as the fact ‘of considering the religion in politics, and the politics in religion’.19 A common blanket 13 14

15

16 17

18 19

Ibid., p. 1133. Bonald, ‘Sur les juifs’ [1806], Œuvres complètes, vol. II, p. 933ff; Maistre, Quatre chapitres sur la Russie (1809, posthumous edition), Œuvres complètes, vol. VIII, pp. 335–345. For Bonald’s views on the theory and practice of censorship, see Jean-Yves Pranchère, ‘Comment composer l’ordre avec la liberté ? Chateaubriand, Bonald et la question de la censure’, Bulletin de la Société Chateaubriand, 55, 2012, pp. 133–154. Maistre, Réflexions sur le protestantisme, p. 318; On the Sovereignty of the People [1794–1795, posth.], book I, chs 10 and 12, in Against Rousseau: ‘On the State of Nature’ and ‘On the Sovereignty of the People’, trans. Richard Lebrun, Montreal, McGillQueen’s University Press, 1996, p. 87. Maistre, Letters to Bonald from 1818 and 1817, in Œuvres complètes, XIV, pp. 137 and 113. See Bonald’s reservations in his Démonstration philosophique . . . (ch. XVII, pp. 93–94). See W. Jay Reedy, ‘Maistre’s Twin? Louis de Bonald and the Counter-Enlightenment’, in Richard Lebrun (ed.), Joseph de Maistre’s Life, Thought and Influence, Montreal, McGill University Press, 2001; Pranchère, L’Autorité contre les Lumières, pp. 26–31, 329–334; Pierre Glaudes, ‘Joseph de Maistre et Louis de Bonald : la pensée contre-révolutionnaire entre unisson et dissonance’, Cahiers de la Nouvelle Société des études sur la Restauration, VI, 2007. Bonald, Législation primitive, Part I, Book II, ch. 4, op. cit., p. 1231ff. Bonald, letter to Maistre of 1819, in Joseph de Maistre, Œuvres complètes, XIV, p. 336. According to the Théorie du pouvoir, Part I, Book IV, ch. V, p. 327, it is best to deal with ‘politics as a theologian and religion as a politician’.

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refusal of democracy and liberalism is based, in the works of both, on a philosophy of authority that affirms the ‘perfect identity of principles and constitution between religious monarchy and political monarchy’.20 The fact that this principle gives rise to sometimes incongruous developments in the work of both authors bears witness to tensions and dialectics immanent in the theologico-political critique of human rights. For this critique conforms to the same basic patterns. Both shaped in the school of the physiocratic theory of ‘legal despotism’ (treating the absolute monarch as the mouthpiece of the laws of social order), both determined defenders of the rationalism of Malebranche (who had drawn a philosophy of order and authority from Cartesian thought), both paradoxical heirs to Rousseau’s concept of the general will (which they turned against the notion of the social contract on the grounds that the general will cannot be the will of all), Maistre and Bonald set against human rights the necessary fact that the social body, by virtue of the principle of equal submission to superior authority and divine reason, is organised around the norms of an ordered hierarchy. Against the revolutionary ideal of equal liberties, they argue that the inequality of rights and duties is the condition for the ordination of social relations in the name of public good. Hierarchy in this sense cannot be dissociated from the meaning of the sacred (hieros). If the Revolution is revealed as the ultimate instance of an ‘insurrection against God’, as Maistre writes,21 this is because the unequal distribution of power goes hand in hand with its sacred nature. Democratic equality and the liberal reduction of social ties to a relationship of exchange, or to a contract issuing from individual interest only, are conversely indissociable from a deconsecration of all authority which, taken to its logical conclusion, would make social life impossible. For social ties demand acceptance of inequalities and the ‘sanctification’, in the two senses of the word (moralisation and inaccessibility), of the asymmetry of political relations. The underlying truth of human rights is therefore the secularisation of social ties, which Maistre and Bonald interpret as the effect of a perverse desire for the profanation of the sacred – and in particular of the sacred nature of sovereign power and the institution of law which goes with it. The natural outcome of the 1789 Declaration was juridical chaos: permanent instability of laws, rapid succession of constitutions and the catastrophe of regicide. In their view, the condemnation to death of Louis 20 21

Louis de Bonald, Démonstration philosophique du principe constitutif de la société (1830), Œuvres complètes, op. cit., vol. I, p. 106. The ‘religious monarchy’ is the Catholic church. Joseph de Maistre, The Generative Principle of Political Constitutions, ch. LXI, op. cit., p. 9.

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XVI – a murder committed in the name of rights, yet in violation of the law and articles 7 and 8 of the 1789 Declaration, since the king’s immunity had been proclaimed by the Constitution of 1791 – was a crime incomparably more heinous than the massacres of the Terror, because it attacked the keystone of the rule of law, namely sovereign power. Maistre’s extreme assertion that the Revolution is ‘Satanic’22 merely expresses in ‘dogmatic’ or directly theological tones an idea that we also find in conditional form in the contemporary writings of Kant, who writes that the regicide of 1793 evokes the ‘idea of the most extreme evil’ (in other words diabolical evil) because it assumes ‘a complete overturning of the principles of the relationship between a sovereign and his people’, and that through this ‘violence is elevated above the most sacred rights brazenly and in accordance with principle’.23 But unlike Kant, who links the sacred status of the monarch to the sacred nature of ‘the rights of men’ that the sovereign must guarantee,24 Bonald and Maistre believe that the transcendence of the sovereign and the law precludes all juridical, social and political equality. Louis de Bonald: The Sociological Imperative of Unequal Rights In Bonald’s writings, the theological critique of human rights takes the form of a sociological critique.25 Since men are social beings, divine transcendence in relation to them is reduced to the ‘natural laws of social order’ that it has established. For society – which Bonald defines as the ‘union of similar beings for their mutual production and preservation’26 – has no other end than ‘the preservation of social being’, and hence its own preservation and reproduction; ‘moral laws’, which are first among ‘natural’ laws, are merely the expression of ‘relations of all intelligent men between themselves, as members of a social body’, the ‘necessary relations

22 23 24 25

26

Maistre, Considérations sur la France, ch. V, p. 226; Du pape, Discours préliminaire, p. 23. Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor, Cambridge, Cambridge University Press, 1996, p. 97n. Immanuel Kant, To Perpetual Peace, trans. Ted Humphrey, Indianapolis (IN), Hackett, 2003, p. 28. See Pierre Macherey, ‘Bonald et la philosophie’, in Revue de synthèse, Jan–March 1987, and ‘Aux sources des rapports sociaux (Bonald, Saint-Simon, Guizot)’, in Genèses 9, Paris, 1991; Bruno Karsenti, ‘Autorité, société, pouvoir. La science sociale selon Bonald’, in L’Invention de la société, Paris, EHESS 2003; Frédéric Brahami, ‘La mutation des sentiments’, in Les Affections sociales, Presses Universitaires de Franche-Comté, 2008; Jean-Yves Pranchère, ‘Totalité sociale et hiérarchie. La sociologie théologique de Louis de Bonald’, Revue européenne des sciences sociales, XLIX (148), 2011. Bonald, Démonstration philosophique . . ., Preface, p. 31.

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derived from the nature of beings’.27 The divine will that orders social relationships may thus legitimately be described as the ‘general will’ of society to preserve itself. Bonald is then able to identify the will of God solely with the necessity of social relations and the dynamics of their reproduction: The general will of society, the nature of human beings in society, the will of God – all these desire the same thing or are of the same nature; they are therefore one and the same will . . . Thus the general will of society, of the social body, of social man, the nature of social beings or of society, social will, the will of God Himself – all these are synonymous.28

The Rights of Society against the Rights of Man God is society by another name: it is the coincidence of religion with the laws of social reproduction that invests it with authenticity. What the revolutionaries had sought to create in the Declaration of the Rights of Man – an enumeration of the ‘true principles of all legislation’, as they must figure at the head of any ‘constitutional code’ – they should instead have found in the Ten Commandments, which Bonald understands as a definitive exposition of basic social laws.29 Bonald’s thesis is first and foremost that social duties require a transcendent basis: ‘Remove God from this world; man then owes nothing to his fellow man, society is no longer possible, and all duties cease when power no longer exists.’30 But the divine origin of social powers has no independent content: it is only, so to speak, a coefficient of transcendence which works as an indicator of the intangible character of social obligations. This coefficient of transcendence is paradoxically immanent to the social meaning of these duties, and this is how Bonald can affirm that ‘there is no being superior to society, since there is no being outside society’ without seeing the selfcontradiction.31 If ‘society is a being’ which must as such constitute the object of a ‘science’,32 this is because ‘society itself is nothing but an ensemble of relations and relationships’.33 The laws governing it express only the structural conditions for this body to cohere and self-reproduce. 27 28 29 30 31 32 33

Bonald, Théorie du pouvoir [1796], Part I, Book I, chs II–IV, Œuvres complètes, vol. I, pp. 146–164. Bonald, Théorie du pouvoir, Part I, book I, ch. II, p. 147. Bonald, Législation primitive, Discours préliminaire, p. 1116. Bonald, Législation primitive, Part III, ch. 3, pp. 1363–1364. Bonald, Théorie du pouvoir, Part I, book I, ch. II, p. 146. Bonald, Théorie du pouvoir, Part I, book I, ch. II, p. 145; Essai analytique sur les lois naturelles de l’ordre social, Œuvres complètes, vol. I, pp. 957, 1004, 1015. Bonald, Du divorce (1801), Discours préliminaire, Œuvres complètes, vol. II, p. 9.

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The ensemble of social life cannot be an outcome of individual initiatives, but must be analysed as a system of relationships in which individuals are always already entwined, and in which they take on the roles that make them into persons properly understood: society is made up not of individuals but of persons, that is, representatives of unequal social functions. ‘“Person” comes from per se sonat, which in itself expresses a social relationship. Paul is a word that designates an individual and does not describe any particular quality. Power, minister, subject, these are persons; that is to say, they express, per se sonant, relationships, and do not describe individuals.’34 Individuals never exist as pure ‘individuals’: they exist in the social form of their relationships, such that their very individuality is a social form – that of the person they become through the social relations that shape them. The rights of God therefore overlap with the rights of society for which religion, ‘reason of every society’,35 provides the explanation, since it merely exposes the hierarchy of duties implied in the structure of every social relationship. The theocratic principle is open to conversion, to use Auguste Comte’s word, into a ‘sociocratic’ principle: the idea that it is not ‘up to man to make society’, but ‘up to society to make man’.36 The alternative of the ‘rights of men’ and ‘rights of God’ comes back to the compulsory choice between two opposed views: the revolutionary fiction that ‘man makes himself and makes society’, and the truth established by history and reason that ‘society makes itself and makes man’37 – from which it follows that individuals hold rights which they cannot bestow on themselves, but instead receive from social order and their place within it. The desire to found society on ‘human rights’ at once ignores the primacy of obligations (and power) over rights and forgets that law merely reflects the necessities of social relationships. The Essential Inequality of Social Relationships The use of the plural ‘rights’, Bonald insists, obscures the meaning of the word. ‘Right’ means imposition of a rule: ‘right, in the singular, means a rule, [with the French droit coming] from dirigere, directum’, and therefore ‘civil law and ruling over the citizen are one and the same thing’. Using the word in the plural gives rise to the illusion that rights emanate from those who hold them, whereas in fact they merely express positions 34 35 36 37

Bonald, Du divorce, ch. II, pp. 47–48. Bonald, Législation primitive, Part I, Book II, ch. 14, p. 1210. Bonald, Démonstration philosophique . . ., Preface, p. 35. Bonald, Observations sur un ouvrage posthume de Condorcet (1796), Œuvres complètes, vol. I, p. 742.

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or relationships which may be ‘entirely opposed’: ‘thus we say both the rights of the father and the rights of the son, the rights of the husband and of his wife, the rights of the master and of his servant, the rights of man and the rights of God’.38 The family is a paradigmatic example here, as the ‘first element of any society’, since marriage is the ‘truly social contract (. . .) whose laws are the basis of all political legislation’.39 Now, ‘society’ in the family is governed by natural inequalities. There is no parity of position or function between father, mother and child: the mere fact that the child has no ‘will to be born’ is proof that the familial contract rests not on equal liberty between its parties, but instead on a social commitment which, once taken, cannot be at the beck and call of individual will. The institution of the family is by this token incompatible with the idea of human rights, which forces the reduction of marriage to a ‘civil contract’: this was demonstrated by the law of 20 September 1792 legalising divorce by virtue of ‘individual liberty which would be compromised by an indissoluble commitment’. Bonald (whose efforts largely brought about the abolition of divorce in 1816 by vote in the Chamber of Deputies) tirelessly repeated that marriage must be indissoluble: the parents have no right to break the contract that binds them to the third person (present or future) in their child, who even when adult can never consent to harm done to him. ‘The father and mother who divorce’, he writes, are ‘in reality two strong persons who reach an agreement to dispossess a weak one; and the state that condones this is complicit in their theft’.40 The model of the voidable contract cannot apply to fundamental social relationships, which are conditioned not by the will of individuals but by the need for society to produce and reproduce – in this case, by the ‘social necessities’ of a hierarchical structure in which the child’s subordination to his mother, and that of the mother to the father, are in the service of the child’s development: ‘I see no rights in this society, but power and obligations.’41 Vehemently opposed to the will to ‘bring the republic into the family’ which he sees in Condorcet’s pleas against the imbalance in gender rights, Bonald exclaims: ‘what the philosopher calls inequality of rights, between the two sexes, is nothing but the inequality of their obligations in the family’; for ‘in society, there are no rights, but only duties’.42 38 39 41

42

Bonald, Législation primitive, Discours préliminaire, p. 1109. Bonald, Du Divorce, ch. I, p. 38. 40 Bonald, Du Divorce, ch. IV, p. 63. Bonald, ‘Quelques notions de droit’, pp. 212–213. Bonald concludes from this that the establishment of power was neither ‘voluntary’ nor ‘forced’, but ‘necessary’ – a formula he would repeat in his last published work (Démonstration philosophique, ch. VI, p. 47). Bonald, Observations sur Condorcet, p. 725.

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The idea of human rights, that is to say of the individual, thus founders on the inevitably non-egalitarian structure of social ties, always based on uneven status and ‘hierarchy of functions’.43 The diversity within families also implies that inheritance should be unevenly distributed; education, which makes a person of the individual, presumes inequality between the child and the master; the division of labour results in unequal wealth and skills; finally, the composition of society as a whole, unified by the concern for its common good, demands that the social division of labour be reproduced by a strictly political division of power, which requires asymmetry between governors and governed. This last point is key: the unequal distribution of political power is at once a particular case of the division of labour (of which politics is one branch) and a means of reconstituting the social unity which this division has broken. For the division of labour does not in itself produce social unity: the particular interests it elicits do not naturally fuse as a whole or intrinsically take second place to the general interest. Bonald, who vehemently critiques Rousseau’s republicanism, nonetheless claims to follow his judgement that the will of particular interests must be subordinated to the general will, which the law must express. But this truth requires that Rousseau’s distinction between the general will, which ‘considers only the common interest’, and the will of all, which ‘takes private interest into account, and is no more than a sum of particular wills’, be turned against Rousseau himself. Bonald posits instead that the primacy of the general will over the will of all can be translated into political action only through ‘general power exercised by a king, who acts as an agent of the general will’.44 We know that in Rousseau’s view the general will can only triumph over the particular in each individual on condition ‘that there should be no partial society within the state, and that each citizen should think only his own thoughts’. This, for Bonald, is an impossible fantasy: a society is made up not of general individuals (having no concern aside from their general interest as an individual without ties), but of particular families and social entities. The general will cannot therefore be the outcome of an impossible concord between purely individual wills, but must express the principle of incorporation of the diversity of social subgroups into a higher 43

44

Bonald, Méditations politiques tirées de l’Evangile (1830), Œuvres complètes, vol. III, p. 640: ‘seen in terms of functional relationships, children are not their fathers’ equals, neither wives of their husbands, priests of their congregations, officers of their subordinates, because there is no order possible in domestic or public society – not even in a mechanical arts workshop – without distinction and hierarchy of functions’. Bonald, Théorie du pouvoir, Part I, book VI, ch. I, pp. 370–371. See Jean-Jacques Rousseau, The Social Contract [1762], book I, ch. 7 and book II, chs 3–4, trans. G. D. H. Cole, New York (NY), Cosimo, 2008, pp. 34–35.

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law of unity that translates the will of the generality of the social body as such. This ‘general will of civil society’, which corresponds with the will of society to preserve itself and the ‘generality of beings’ that make it up,45 can be known and recognised only by a state power that remains discrete from the particular interests of society. The natural form for this state power is that of monarchic power, standing at the head of an estates-based society which Bonald sees as the organisation of a truly public service, with the nobility and clergy representing ‘public ministries’ whose privileges are indissociable from the functions of general interest that they must ensure for ‘civil society’. Recognising the prime importance of public interest means simultaneously giving up democratic ideals (as incompatible with the uneven distribution of political power) and liberal ideals (as running counter to the ascendancy of the general will over individual wills). A monarchy is the only coherent way of institutionalising unified public interest. Any state presumes the existence of a state nobility, as well as a unified power that by definition takes the shape of a monarchy, even in the absence of a king. ‘The inequality of power’, as Raymond Aron would write a hundred and fifty years after Bonald, ‘is bound up with the essence of social life’; ‘there is no form of power that can dispense with a human being at its head’.46 And if the management of public interest by an institutional power inherently implies a hierarchical inequality without which society cannot be constituted, the idea of human rights as the dream of an apolitical society knowing no norms outside private law, exchange and contract must on the other hand be dismissed. This dream of an apolitical society even appears in the supposedly political content of the Declaration of the Rights of Man, namely in the affirmation of popular sovereignty. ‘To call the people, and the entire people, to the very exercise of power’ is in fact to call massed private interests to wield public power: ‘then the private state encroaches upon the public’. The democratic equality demanded by human rights comes down to a demand that the private and public should be one and the same thing, in other words a demand for the abolition of state power: democracy, which ‘annihilates’ power ‘in the family by way of divorce’, destroys it ‘in the state, by making the state a commission revocable by popular will, and thereby divesting it of all unity, continuity, and regularity of succession’.47 For the ‘sovereign people’ is not the name 45 46 47

Bonald, Théorie du pouvoir, Part I, book I, ch. II, p. 151. Raymond Aron, Introduction à la philosophie politique (course delivered in 1952), Paris, Librairie Générale Française/Editions de Fallois, 1997, pp. 80 and 230. Bonald, ‘Quelques notions de droit’, pp. 217–218.

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of a body that fulfils a public function; it boils down to a confused amalgam of private interests. Here we come up against a serious difficulty: the sovereignty of the people is the power of all over each. Yet all men are by nature entirely independent of each other, and it is in this mutual and absolute independence that mankind finds the dignity and equality we so fiercely protect. No man therefore naturally has either power or authority over his fellow human beings . . . But if no man has power over others, then neither can any group – be they two, ten, a thousand, or an entire people – have any more power than this, for the people is a being invested with reason, and when I seek the people I see nothing but individuals isolated from each other, without bonds or cohesion as a body. Assembling individuals in order to exercise popular sovereignty means merely assembling men with no power over their fellows; in other words, assembling so many nullities or non-entities in terms of power, and all these nulls put together – be they many as they may – cannot add up to real power, any more than several million zeros set in sequence would add up to a positive number. What then becomes of popular sovereignty, over whom and what can it then be exercised? What can it be, this colossus of sovereignty that dissolves into its assemblies and is reduced to the all-powerful majority of a few voices, or of a single voice? Sovereignty is a matter of quantity, I hear you say: you mean of the strength of numbers; but power, which has no principle but strength, is tyranny, and obedience, which has no principle but constraint, is slavery.48

What transpires here is the inconsistency in the idea of the rights of man: the principle of equal rights between individuals at once implies and precludes popular sovereignty, since it proclaims the right of all to be sovereign yet denies the right of state power over anybody. This paradox demonstrates the impossibility of deducing the institution of sovereign power from the individual. In as much as it is the regime of human rights, the republic in Bonald’s interpretation is defined – contrary to Rousseau’s belief – by the absence of general will: In the republic, society is no longer a general body but a juxtaposition of individuals: since the general will is now a mere aggregation of particular wills, general preservation, which is its aim, now means nothing greater than individual happiness; and indeed in republics we often see physical well-being growing in direct counterpart to moral degradation, and the sacrifice of social liberty; everything in this set-up moves towards individualisation, everything shrinks down and is concentrated in the life of the present moment; the present is everything to republican regimes; they have no future.49

Transposing Bonald’s reasoning into terms that are not his own but remain faithful to his intention, we might say that the idea of human rights reveals individualism as the intersection between liberalism and democracy, but also the point at which they break down. The idea of 48

Ibid., pp. 216–217.

49

Bonald, Théorie du pouvoir, Part I, book I, ch. X, p. 200.

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human rights shows that liberalism and democracy exist in symbiosis, like two shapes of the same individual right to autonomy. But it also reveals the antagonism between liberalism and democracy (since the power of all over each, which defines democracy, is a violation of the right of each against all, which defines liberalism). In the same gesture, it also suggests that this contradiction is inherent in the individualist conception of law, which makes the primacy of unitary state power over diverse societal interests unthinkable. The events of the French Revolution brought this contradiction to crisis point over the right to property: The new order of things had its leaders and followers just like the old one, like any order; for order between men is nothing but the art of arranging for some to take their turn before others, so that all may arrive on time. The most diligent or fortunate among them, showered with honours and assets, passed up no chance to trumpet the protection of their privileges, or even to write on walls the final article of the rights of man: ‘Property is an inviolable and sacred right’; yet the last to the communal table responded with the first article: ‘Men are born and remain free and equal in rights’. If property was a right, as per the last article, then the equal rights consecrated in the first must carry out the equality of property.50

Human rights, Bonald observes, are ‘oracles of double prophesy’: the equality of individual rights can just as well be interpreted as the statement of free right to individual property, in which case human rights are made material in the free market, or as the demand for effective equality of access to the resources of liberty – in which case human rights must be seen in the terrorist democracy of the Jacobins, or even in the communism of their Babouvist successors. The French Revolution was an experiment with this ambiguity: ‘there was not a single political principle posited in 1789 from which rigorous dialectics could not have deduced the revolution in its entirety’.51 The meaning of human rights thus manifested in their political ramifications, ‘and if this Declaration was compromised for having stood at the head of the 1789 constitution, when it acted as a preliminary to the constitution of 1793, it was now forever dishonoured’: At last, after long-drawn-out and bloodstained errors, it became clear that mankind must hear a little less about his rights and more about his duties. The rights of man fell into disuse, and were left to the provincial demagogues: only here and there, on the eve of the revolutionary crises, were those terrifying words of the rights of man heard to echo in the legislative chambers, a portent of destruction and death, like spaced out cannon shots from a ship in distress.52

50 51 52

Bonald, Législation primitive, Discours préliminaire, p. 1111. Bonald, Observations sur Madame de Staël [1818], Œuvres complètes, vol. II, p. 657. Bonald, Législation primitive, Discours préliminaire, p. 1111.

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Instituted and Disinstituted Equality In Bonald’s view, the idea of human rights travesties the primacy of societal laws (or the duty of social solidarity) over individual rights: it is discredited by the uneven capacities that constitute social order (through the division of labour and unequal inheritance) and political order (through the asymmetry of leadership and subordinacy). These two critiques converge in a third: given that social and political inequality are inevitable, the idea of human rights compounds that inequality with the symbolic weight of an egalitarian fantasy which disqualifies inequality and aggravates its violence. This is illustrated first by a psychological point: ‘one of the greatest evils done by the revolution to the state and the family’, writes Bonald, ‘was to inspire a mass of individuals with an ambition to status and reward, or rather, a burning desire to escape their present condition, individuals who had until this point been content in their private life and are today tormented by desires which the law of general admissibility grants them neither the means nor the opportunity of satisfying; and thereby to have saddled all careers with discontented mediocrity’.53 The evil is greater still: the ascendancy of rights leaves no room for the only possible remedy for the inequality of power, which lies in the inequality of duties. The broadest-ranging sociological truth is that ‘society is merely the relationship of strength to weakness’.54 Now, to be a social relationship, this ‘relationship of strength to weakness’ must never be a power struggle. The meaning of politically instituted hierarchy is precisely to prevent disparities in strength from descending into violence, and to weight social superiority with excess duties. The function of hierarchy is to take inequality away from domination and towards service, following the lesson of Jesus who ‘went much further than the most fervent partisans of equality: far from preaching equality between great and small, he gave the latter superiority, when after teaching the world that all power is nothing but service, he asks “which is the greater between the one who serves and is served?”’55 Since all societies are unequal, it would be wrong to contrast monarchy and democracy as a regime of inequality versus one of equality. In fact, the contrast is between two regimes of inequality, which we might respectively call instituted inequality and disinstituted inequality.56 53 54 55 56

Bonald, Démonstration philosophique . . ., ch. IX, p. 62. Bonald, Législation primitive, Part I, Book I, ch. 8, p. 1192. Bonald, Méditations politiques tirées de l’Evangile, p. 640. Bonald distinguishes between ‘constituted and non-constituted societies, that is to say societies which conserve human beings and those which do not, or do not conserve themselves, since they have no conservative power’ (Théorie du pouvoir, Part. I, Book I, ch. II, p. 151). He describes the French Revolution as a ‘political and religious deconstitution’ (Ibid., Part. II, Book VI, ch. XI, p. 715).

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In a hereditary monarchy, inequality is organised by and based on the law, according to a hierarchy of services in which privileged members ‘are raised above others by rank and fortune only in order to serve them’. Nobility, then, corresponds to a political role: Bonald refuses to treat it as an equivalent of the patriarchy or aristocracy, since he emphasises ‘nobility serves power’ whilst not wielding power itself.57 This regime is essentially peaceful, since the choice of sovereign by law (rather than by election) exempts the position from competition and allows political life to strive for the common good rather than the conquest of power. The nobility, meanwhile, requires heredity only for functional reasons: it is inherent in the definition of the role that it should be open to merit, such that individuals and families may work towards their own social betterment. The demand for equal liberties is thus satisfied as far as is possible in the conditions of division of political labour. There is in reality no more equality with the proclamation of equal rights than in an estates-based society open to social mobility. Inheritance, as much as family and property, remain intact, and equal rights cannot change inequality of birth; their only consequence is that the inequality of power is no longer counterbalanced by a hierarchy of duties. The disinstitution of inequality does not institute equality: it merely imparts the shape of a pure power relationship in which superiority will be all the more unyielding for being purely economic. The truth of equal rights lies in a return to the bellum omnium contra omnes that defines the sphere of commercial relations. Left by their legal equality to an unfettered confrontation of economic capabilities, humans will wage the merciless war of individual interests in the framework of ‘human rights’. As of 1796, Bonald expresses concern about the rise of a social regime that would drive inequality beyond the pale by generating a mass urban proletariat, without of the virtues of agricultural societies, dehumanised by their work conditions in manufacturing industries and left prey to ‘hunger and despair’.58 Yet there is something paradoxical in this critique of the violence of a society of individual rights, starting from a fictional vision of the ancienrégime estates-based society: the denunciation of the egotism of rights in the name of a moral framework of duties comes with no demand for legal or political penalty against those who fail to fulfil these obligations. For it is in the very nature of privilege that no legal constraint obliges it to act on duties: in his impassioned argument against divorce, which he decries as 57 58

Bonald, Démonstration philosophique . . ., ch. XIII, p. 75. Bonald, Théorie du pouvoir, Part. II, Book VI, ch. IX, pp. 702–703 and Part. III, Book II, ch. I, p. 927.

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a form of ‘oppression’, Bonald leaves no course open to wives subjected to marital violence except life in a convent59 – as though critiquing the forms of violence behind democratic equality were enough to legitimate the lack of legal recourse against the violence of hierarchical order. This paradox is exacerbated by the fluid nature of the opposition between rights and duties. For the contrast between a purely immanent conception of law, founded on a contract between free individuals, and a theological position which holds that men have duties towards others only by virtue of their duties towards God, does not adequately explain why the duties of each towards others should not be reinterpreted as rights of others to each. Praising Christianity, Bonald writes that it has ‘restored to human nature its just rights’:60 could this reinterpretation of the duty to God as rights inherent in human nature not be extended to a reevaluation of human rights? This, indeed, was one of the arguments of a strand of Thomist Catholic thought during the twentieth century: to reject critiques of human rights by nineteenth-century Catholic traditionalists, and to undermine them with the idea that recognising a natural law of divine origin forces recognition of the natural rights of its subjects.61 Joseph de Maistre: The Providentialist Historicisation of Law Though Maistre’s critique of the rights of man deals in the same main themes, his political thought does not have the same consistency as that of Bonald, who devoted his entire output to refining one description of the natural order of societies. Though he agrees with Bonald that monarchy is the natural political regime for any society, Maistre does not conclude that there is a unique form of monarchy that is the goal of all historical development. What is identical from one society to another, and by that token constitutes a ‘natural law’, is the need for a unitary sovereign power whose decisions are incontestable: this makes monarchy the best possible regime. But it does not determine the constitutional form of monarchy; neither does it make monarchy the only legitimate regime. If the unity of sovereign power is universally inscribed in the very essence of political relations, forms of sovereignty exist in relation to circumstances and 59 60

61

Bonald, Du divorce, ch. XI, p. 108. Bonald, Recherches philosophiques sur les premiers objets des connaissances morales [1818] conclusion, Œuvres complètes, op. cit., vol. III, p. 414: similarly, in his Réflexions sur l’accord, p. 87, Bonald describes the social order of ancient societies, based on slavery and the ‘barbarous law of war’, as a crime of ‘treason against divinity and humanity’. See Etienne Gilson, Pour un ordre catholique, Paris, Desclée de Brouwer, 1934; Jacques Maritain, Les droits de l’homme (1942), Paris, Desclée de Brouwer, 1989, and L’Homme et l’Etat (1953), Paris, Desclée de Brouwer, 2009.

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history: ‘as a thousand events may alter the relations of a people, different governments may be right not only for different peoples, but also for the same people at different times’.62 The divine law that Maistre sets against human rights is clearly (as it is for Bonald) the law of monarchy, in which Maistre sees the most complete or authentic form of sovereignty. But Maistre, who is closer here to Burke than Bonald, conceives of this law as a historical one, bound up with the cultural identity of the nation ruled over by the sovereign. The critique of human rights is thus levelled at once in the name of the inexorable nature of the divine right to sovereignty and the irreducible nature of national identities. In Maistre’s writings between 1794 and 1797, these two facets of the critique simply appear to converge. However, it transpires that there is a dormant tension within this. The thesis of the identical meanings of monarchy and Catholicism, on which Maistre endorses Bonald, leads in his 1819 treatise The Pope to an argument for papal infallibility in the spiritual order reflected by the compelling nature of sovereign authority in the political order. The laws of God are thus incarnated in three types of divine right: those respectively of the sovereign, national spirit and of the Church and its head. These different rights clash head on with human rights; yet this does not guarantee their mutual compatibility. The Rights of Sovereignty against Human Rights In Maistre’s view, the horror of the French Revolution was less the intensity of its violence than the destruction of what we might call the ‘symbolic order’ of society: ‘there are no more customs, there are no more masters, each man’s mind is now his own. Philosophy having corroded the cement that united men, there are no longer any moral bonds’.63 The gravity of the event lay in the triumph of what Maistre was probably the first to call ‘individualism’.64 If Maistre could judge in 1818 that ‘the Revolution is far more terrible than in Robespierre’s times’,65 it was because the bourgeois society of the Restoration, devoted to the egotism of industry and trade, only deepened the sense of social breakdown whose watchwords had first appeared in the 1789 Declaration. The first stage of the critique of human rights is justification of a sacred right of sovereignty, against the revolutionary idea of a right of ‘resistance 62 63 64 65

Maistre, On Popular Sovereignty, book I, ch. 4, p. 109. Maistre, Considerations on France, ch. V, p. 47. Maistre, Œuvres complètes, vol. XIV, p. 286. See on this point Alain Renaut, L’ère de l’individu, Paris, Gallimard, 1989, p. 70. Maistre, letter of 1818, Œuvres complètes, vol. XIV, p. 148.

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to oppression’. The manuscript that Maistre drafted on sovereignty in 1794–1795 and the first pages of The Pope start from a common definition of sovereignty: Every kind of sovereignty is absolute by its nature; whether it is placed on one or several heads, whether it is divided, however the powers are organized, in the last analysis there will always be an absolute power that will be able to commit evil with impunity, which will therefore, from this point of view, be despotic in the full sense of the term.66 Infallibility in the spiritual order of things, and sovereignty in the temporal order, are two words perfectly synonymous. The one and the other denote that high power which rules over all other powers – from which they derive their authority – which governs, and is not governed – which judges, and is not judged. When we say that the Church is infallible, we do not ask for her, it is quite essential to be observed, any particular privilege; we only require that she possess the right common to all possible sovereignties, which all necessarily act as if infallible. For every government is absolute; and from the moment it can be resisted, under pretext of error or injustice, it no longer exists.67

Though these definitions apply to all regimes, they imply that in practice sovereignty ‘can only be exercised by one organ: to divide it is to destroy it’.68 Only monarchy gives sovereignty its complete form by conferring on it the clear personality of a sovereign whose power, while legitimated by the fundamental laws that identify the sovereign, is at the same time the legitimate fount of law. For the absolute power of the sovereign is not arbitrary power: sovereign power is the power of law, in all senses of the expression. The sovereign, who holds his power by virtue of the law that has instituted him sovereign, is the power that issues the law; because of this, he is the power given to law, including the law that legitimates his own authority. To deny the rights of the sovereign is at this point tantamount to negating the sovereignty of law. This does not mean that sovereign power is always just, but that the injustice of law cannot constitute grounds for the ‘right of resistance’, which could in principle bring about a permanent state of civil war. Anyone claiming to base resistance on a ‘natural right’ or a ‘natural law’ freely interpreted by all sacrifices the order of law to a vague image that offers neither a ‘stable idea’ nor ‘determined rule’.69 Even supposing that the concept of a ‘natural right’ has any meaning, it would still be absurd to give it the value of a positive 66 67 69

Maistre, On the Sovereignty of the People, book II, ch. 1, p. 115. Maistre, The Pope, book I, ch. 1, pp. 1–2. 68 Ibid., book I, ch. 19, p. 108. Maistre, Cinquième Lettre d’un Royaliste savoisien, pp. 51–54. On Maistre’s persistent rejection of natural law, see Richard Lebrun, ‘Joseph de Maistre et la loi naturelle’, Revue des Etudes Maistriennes, 8, Paris, Les Belles Lettres, 1983.

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right that could be set against existing positive law: revolt remains an act of violence, however well-founded its motives; it can never be the exercise of a right. ‘Legal revolt’, instituted as a right in the Declaration of 1789, is a contradiction in terms: law cannot give authorisation for its own violation. So-called human rights are therefore not ‘rights’: the 1789 Declaration is merely an ‘absurd mosaic’ of demands with no legally determined, or determinable, content, hence why it was the object of ‘interminable’ Assembly debates between men each declaring his divergent standpoint – to the point that it was merely ‘by virtue of weariness, and physical incapacity to debate any longer, that this collective labour was passed down to us’.70 According to the vague conceptions that underpin this composite text, any law could be condemned as a violation of human rights. Maistre counters the idea of rights without authorisation with the idea that there are no other rights than those whose exercise is regulated by law: Thus when the gloomy scholars calling themselves the Constituent Assembly inscribed at the head of their absurd constitution a declaration of the RIGHTS of man, they were in fact merely writing down a hypothesis that remained entirely to be verified. They took Rights to be first Principles, whereas a Right can in fact only be a consequence; in other words, the Corollary of a previous Law; such that in the margins of each of these memorable articles, any philosopher could justifiably write ‘Proof needed’.71

However, this proposition does not preclude the existence of conditional rights that sovereign power is bound to respect. The fact that sovereignty is irresistible in matters of law does not mean that it can do everything; it means that ‘in its legitimate circle, traced by the fundamental laws of each country, it is always and everywhere absolute, insomuch that no person is entitled to say to it that it is unjust or mistaken’.72 But this hypothesis assumes precisely that sovereign power is regulated by fundamental laws whose divine nature arises from the fact that they are not the work of human beings – who, as ‘successive instruments of the establishment, cannot know its destiny’73 – but the outcome of historical circumstances that confer on them the authority of time.74 70

71 72 73 74

Joseph de Maistre, Trois Fragments sur la France (1794), in Jean-Louis Darcel (ed.), Ecrits sur la révolution, Paris, PUF, 1989, p. 88. According to the Lettres d’un Royaliste Savoisien (1, p. 89), the ‘rights of man’ are merely ‘general maxims’ with no utility, ‘convenient formulas for ignorance and sloth’. Maistre, Cinquième Lettre d’un Royaliste savoisien, p. 28. Maistre, The Pope, book II, ch. 3, p. 123. ‘Nature, time, circumstances – that is to say, God’ (Joseph de Maistre, On the Sovereignty of the People, book I, ch. 7, p. 73). Maistre, On the Generative Principle of Constitutions, XXIII, p. 379. Ibid., I, p. 368: ‘a constitution is a divine work, and the most fundamentally and essentially constitutional

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The decisive point here is that a constitution is not a declaration of moral principles, but the reciprocal adjustment to a situation (geographical, economic or otherwise), a set of needs, a body of (religious or moral) traditions and national qualities that form a political community.75 A constitution is first of all the ‘mode of political existence’ of a nation, and only secondarily the body of written laws that follow this mode of existence, without ever being able fully to explain it, even less create it.76 The turnabout in Maistre’s argumentation here might take us by surprise: the initial argument, that a right is merely the corollary of a law desired by the sovereign, merges into the opposite idea: that a law can only be the declaration of a previous right, inscribed in the ‘natural constitution’ of the nation.77 We can easily understand that the rights of this natural – that is to say historical – constitution are merely the corollary of a law desired by the divine legislator, the sovereign of sovereigns. However, the fact remains that the idea of a natural constitution brings with it the idea of natural rights that the sovereign must respect: are these not valid grounds to demand the right of resistance? Does the thesis that no human power can hold a self-instituted right, and that any right is ultimately founded on the moral obligation to obey God, not imply the right of subjects to demand that a sovereign should respect his own obligations? Maistre writes that in Europe, ‘the divine right of sovereignty’ goes hand in hand with ‘the divine right of the people’.78 But as he explains in a letter: ‘peoples have rights, but not that of forcing respect for those rights, or of punishing their violation by force; just as the son certainly has the right not to be unjustly treated by his father, without it following that if his father gives him a smack just for his own amusement the son has the right to return it’.79 In Maistre’s view there is an asymmetry between the moral right of the subject and the legal right of the sovereign: while the right of the subject is moral only and has no legal reach, the right of the sovereign is at once legal (since sovereign will is the criterion of legality) and moral (since obedience to the sovereign arises from the duty to obey God, who instigated a legal order outside which – however imperfect the order – there can be no justice). A right of resistance to the illegitimate exercise of sovereignty cannot therefore be recognised as a symmetrical mirror to the absolute right of the legitimate exercise of

75 76 77 78 79

elements of the laws of a nation are precisely what cannot be adequately rendered in writing’. Maistre, Considerations on France, ch. VI, p. 235. Maistre, On the Sovereignty of the People, book I, ch. 9, p. 84. ‘The natural constitution of a nation is always prior to its written constitution’ (ibid., p. 86). Maistre, The Pope, book III, ch. 4, pp. 122 and 275. Maistre, letter of 1814, Œuvres complètes, vol. XII, p. 481.

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sovereignty: ‘against our legitimate sovereign, though he may be Nero or worse, we have no other right than that of allowing our head to be cut off, while respectfully speaking the truth’.80 It must be stressed that the rule ‘of passive compliance or non-resistance’ does not compel subjects to fulfil all of the sovereign’s wishes, but rather to refrain from contesting them through violence. The rule prohibiting action against the sovereign does not compel action with him when he acts in violation of the law: the subject retains the possibility of opposing the sovereign with inaction (for example in not executing an order).81 Maistre also emphasises that in positing that ‘for no imaginable reason is it permitted to resist authority’, ‘I must be clearly understood to exclude the case of a sovereign committing crimes’.82 Furthermore, he is aware of the possible nuances in the notion of resistance: one of his manuscripts expounds the difference between resistance (active but non-violent disobedience), revolt (violent disobedience), overthrow of the sovereign (without constitutional change) and revolution (overthrow of the constitution).83 However, his published texts disqualify these distinctions as negligible. Unlike Burke, who had recognised valid forms of legal resistance, Maistre posits a radical alternative: ‘there is no middle way: one must either deny the government, or submit to it’.84 Moderate forms of resistance are a sham: any active resistance must be pursued in the context of a right to revolution, which it must implicitly admit as its legitimating principle. ‘The ready reply is “Have fundamental laws – a constitution.” But who will establish these fundamental laws, and who will put them in execution? The body or the individual who should have this power will be sovereign, since he would be stronger than the sovereign; so that, by the very act of establishing the constitution, he would dethrone the sovereign.’85 Rights of the Nation against the Rights of Man It follows from the fact that the ‘natural constitution’ of a state ultimately fuses with the ‘character of the nation’86 that the particular character of 80 81 82 83

84 85 86

Maistre, letter of 1815, Œuvres complètes, vol. XIII, p. 164. This idea has a precedent: see Bishop George Berkeley, Passive Obedience [1712], Ann Arbor (MI), University of Michigan Press, 2007. Maistre, The Pope, book II, ch. 4, p. 125. Maistre, Cinquième Lettre d’un Royaliste savoisien, p. 55; these distinctions are further explored by Johann Benjamin Erhard, Über das Recht des Volks zur einer Revolution (1795) and Johann Adam Bergk, Über den Unterschied zwischen Aufruhr, Aufstand und Revolution (1796). Maistre, De l’Eglise gallicane (1821), book II, ch. 9, Œuvres complètes, vol. III, p. 190. Maistre, The Pope, book III, ch. 4, p. 118. Maistre, Cinquième lettre d’un Royaliste savoisien, p. 67.

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each nation is a design of God. Sovereign power is indissociable from the national identity that gives it its shape, historical legitimacy and ‘mission’.87 With this, Maistre reaffirms the unreality of human rights, which had been exacerbated by Article 3 of the 1789 Declaration stating that ‘the principle of all sovereignty resides essentially in the nation’. Whatever it is, the ‘nation’ as referred to in the Declaration is not a nation – in the sense of a national character incomparable with any other – but a conglomeration of individuals with no national identity, and whose rights exist only as those of human beings in an abstract sense. In calling an association of mere individuals a ‘nation’, the 1789 Declaration in the same breath recognises and denies the real basis of social cohesion: the fact that a community of individuals invested with human rights is (in this context) called a ‘nation’ shows that its true nature is not on the ‘rights of men’, but rather on a national history which has preceded and shaped it. The ‘men’ referenced in the 1789 and 1793 Declarations are in fact merely the members of a nation, which is the only place where their rights can exist: At the head of their prolific works stands a Declaration of the Rights of MAN and the Citizen. If they had said The rights of the Citizen, or of Man as Citizen I could follow them; but I must admit that MAN, as distinguished from the Citizen, is a being of whom I have no knowledge. I have in my life seen Frenchmen, Englishmen, Italians, Germans, Russians, and so on; I have even learned from a celebrated book that one may be Persian. But I have never seen Man, and if he holds Rights yet I hold them in no regard; we shall never live together: let him go and enjoy his rights in the realms of the imagination.88

Burke had retorted to the revolutionaries that human rights, if they were not to remain merely ‘metaphysical’, must be fully subsumed into political and historical rights. Maistre refuses even the ‘metaphysical’ distinction between man and citizen. The ‘rights of the citizen’ are not the ‘refraction’ of the ‘rights of men’; they are the only reality, while human rights are no more than a mirage, no more than the ghostly image of a featureless ‘human being’ separated from the ‘citizen’ that is his real body. To counter this unreality, the point must be made that the ‘rights of peoples’ can only be the rights of nations, understood each in its unique identity, since a nation is a ‘character . . . [a] common soul that must, through the centuries and an infinite number of generations, subsist in a sensible way and distinguish one nation from all others’.89 87

88 89

This word recurs tirelessly in Maistre’s writings: ‘Each member of these great families that we call nations has received a character, faculties, and a particular mission’ (Maistre, On the Sovereignty of the People, book II, ch. 7, p. 189); ‘each nation, as each individual, has received a mission that it must fulfil’ (Considerations on France, ch. II, p. 202). Maistre, Cinquième Lettre d’un Royaliste savoisien, p. 69. Maistre, On the Sovereignty of the People, book I, ch. 7, p. 66.

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This ‘general spirit’ cannot be born of voluntary association: a contract between individuals with no attachment can account neither for the spiritual unity nor the historical continuity of a nation. The nation always precedes its individual members: it is not the result of their contract but rather the tradition that carries them. This is why its essence lies not in the ‘people’ at large but in the ‘higher classes’ who ensure the transmission of cultural heritage and ‘conservative principles’.90 In light of this, the sovereign nation invoked by the 1789 Declaration is a duplicitous fantasy, destined to provide the pretext for a politics of imperialist power, and disregarding the plurality, independence and rights of nations. For Maistre, truly ‘national ideas’ were represented by the struggles against French imperialism, typified by the Spanish insurrection, that existed to defend the religious identity of a nation.91 The fact that the French Revolution led directly into imperial wars was no coincidence in Maistre’s view: human rights could only come into being through a merciless war between their proponents and the ‘enemies of the human race’ – in Maistre’s language, a ‘civil war of the human race’.92 But this universal civil war would be waged by a nation claiming as its exclusive property the universal rights which it had declared in its own name. The real purview of the rights of man was thus an imperialist project of ‘universal monarchy’.93 Maistre, who had sarcastically responded to the bloodshed and savagery of the Parisian crowds in 1793 that ‘Here were the rights of man’,94 gave vent to the same sentiment in 1807 in his description of the horrors of the Battle of Eylau: ‘Here were the rights of man, so meticulously outlined by Parisian lawyers in 1790 and joyously sanctioned in Prussian Poland and elsewhere.’95 In his view, the rights of man negate the ‘law of nations’ (jus gentium), in other words the European ‘public law’ that had in pre-revolutionary times been based on the balance of powers.96 They are essentially incompatible with peaceable 90

91

92 93 94 95 96

Maistre, letter of 1816, Œuvres complètes, vol. XIV, p. 8. Maistre’s answer to the question ‘what is a nation?’ is as follows: ‘it is the Sovereign and the aristocracy. Voices must be weighed, not counted’. Renan would restate much the same idea in 1871, in La Réforme intellectuelle et morale. Maistre, Lettres sur l’Inquisition espagnole, IV, p. 352ff. This paean to Spanish religious identity goes hand in hand with an apology for the anti-Semitic persecutions of the Spanish Inquisition in the name of ‘purity of blood’; for their purpose was to determine ‘whether the Spanish nation would endure’ (ibid., I, p. 290ff). Maistre, letter of 1814, Œuvres complètes, vol. XII, p. 424. Schmitt would later systematise this argument (see Chapter 6). Maistre, letter of 1813, Œuvres complètes, vol. XII, p. 407. Maistre, Lettres d’un Royaliste Savoisien, I, p. 107. Maistre, letter of 1807, Œuvres complètes, vol. X, p. 325. Maistre constantly invokes the ‘principles of public law’ (Œuvres complètes, vol. XI p. 260) and those of the ‘right of peoples’ (ibid., vol. XIII, p. 111).

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recognition of foreign sovereignty, also explicitly denied legitimacy by the 1789 Declaration when it states that ‘any Society that does not guarantee the protection of Rights [. . .] has no Constitution’ (article 16). We must recall here that Maistre’s rejection of the rights of man was rooted in the two experiences that had led him towards counterrevolutionism: the French army’s invasion of Savoy and the nationalisation of the church in France after the 1790 Civil Constitution of the Clergy. As a subject of the kingdom of Piedmont-Sardinia, which ruled over Chambéry (where he served as a magistrate), Maistre gained direct experience of the French Revolution only with the arrival of French troops in September 1792. After this he travelled to Turin, home to the royal court of the kingdom; a brief return to Savoy in early 1793 persuaded him to go into permanent exile. As he put it, ‘it was enough to see the churches closing their doors, the priests ousted, the portrait of the King paraded and attacked in public; to hear the tune of the Marseillaise sung during the Holy Maas (I myself heard it); my heartstrings were not solid enough to withstand all this’.97 The violence of secularisation was compounded by a policy of territorial annexation that violated the principles of rights: the law of 25 Brumaire Year III (15 November 1794) stating that any Savoyard who had left the kingdom after 1 August 1792 and not returned by 27 January 1793 was to be treated as an émigré. Confirmed under the empire, this law visited ex post facto naturalisation on non-French nationals who had fled from a foreign army and followed their king. Maistre protested that punishing as ‘émigrés’ those who had ‘left Savoy fifty-two days before the conquest and four months before it was reunited to France’ amounted to a violation of one of the first legal premises: that ‘no one shall be held guilty if he has flouted no law, and that no law shall have retroactive effect’.98 The rights of man thus served as a pretext for a twin denial of rights – first of those who wished to remain Roman Catholics and did not recognise the Civil Constitution of the Clergy, and second of those who wished to remain the subjects of their sovereign rather than become French citizens. The principle of an unbounded right had been used to justify disregard for existing rights. Yet on the other hand, what could respect for the effective rights of nations mean in light of the maxim that ‘a sovereign shall never be held to account by his subjects, on pain of the disappearance of all 97 98

Joseph de Maistre, letter of 1814, in Correspondance diplomatique 1811–1817, ed. A. Blanc, Paris, Lévy, 1860, vol. II, p. 34. Joseph de Maistre, Mémoire sur les prétendus émigrés savoisiens, s. l., 1796, p. 17. In 1817, Maistre again refers to his Mémoire of 1796, in which ‘the question of public law is exhaustively examined’ (Œuvres complètes, vol. XIV p. 73).

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society’?99 The application of this principle by sovereigns themselves could only lead to disaster once ‘subjects’ no longer meant isolated individuals but nations understood in their collective identity. Maistre was dismayed by the Congress of Vienna, where he saw the divorce of the monarchist and national causes endorsed: he argued that ‘nations have never been more disregarded and trampled underfoot in such a harmful way to them’ and that ‘sovereigns attended the Congress, or rather constituted it (. . .) Sadly nations were not invited’.100 Yet for Maistre, the very definition of the divine right of sovereigns was bound up with the principle of national independence, and he never tired of repeating that ‘it is not in the natural order of things for any nation to be the subject of another’ and that ‘the greatest misfortune to befall a nation is to be held to obey another of its kind’.101 But a paradox arises here: the right of national identities forces us to recognise that the sovereignty of the people is indeed a truth ‘in a certain sense’,102 insofar as it means the right of each nation not to be subordinate to another and to find in its sovereign the image of its unique character. ‘The greatest of flaws’ for a sovereign, writes Maistre, is to ‘lack respect for his own nation’; ‘is not a king who imparts only despair to his nation and displeases all inherently at fault?’103 Ecclesiastical Rights against the Rights of Man The twin defence of sovereign rights and national identity converges in ‘the union of politics and religion’. The fusion of politics and religion into a single ‘political creed’, which destroys individual opinions under the weight of ‘national dogmas’, is the principle of spiritual uniformity which makes of the nation a ‘general spirit’ that grows from a unique ‘germ’.104 This uniform character is in turn what guarantees that subjects will obey the sovereign, and that the sovereign will observe fundamental laws. The existence of a shared religion, uniting the sovereign and his subjects and ensuring the sacred nature of fundamental political law, is the real guarantee of the sovereign’s respect for such laws – which human rights and the right to resistance alone cannot guarantee, since they desacralise 99 100 101

102 103 104

Maistre, Lettre à une Dame russe (1810, posthumous), Œuvres complètes, vol. VIII, p. 145. Maistre, letters of 1815, Œuvres complètes, vol. XIII, pp. 51 and 97. Maistre, Œuvres complètes, vol. XII, pp. 411–412, XIV, p. 257. We should remember that this is also based on Maistre’s unhappy experience of Piedmontese rule of Savoy before 1789. Maistre, letter of 1813, Œuvres complètes, vol. XII, p. 412. de Maistre, lettre de 1815, Œuvres complètes, vol. XIII p. 171; letter of 1811 in Joseph de Maistre et Blacas, leur correspondance inédite, ed. E. Daudet, Paris, Plon, 1908, p. 141. de Maistre, On the Sovereignty of the People, book I, chs 7 and 10, pp. 79, 87 and 144.

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laws and subordinate them to the whims of that most changeable and capricious of sovereigns, the people. Religious uniformity across a nation demands an authoritative religion which suppresses ‘discussion’ and the ‘particular judgment of the individual’ in favour of the intangible nature of dogma and papal infallibility.105 Only Catholicism, in Maistre’s view, can fulfil this role since it ‘is a monarchy’ whose ‘capital dogma’ is ‘the supremacy of the Pope’.106 Whereas Protestantism – which Maistre unflinchingly describes as politically inferior to Islam107 – is nothing but the individualist dissolution of Christianity, Catholicism is the only religion that complements the coherence of dogma with the coherence of hierarchy by incarnating the unity of the Church in the oneness of its leader. Maistre thus maintains that even from an atheist point of view, Catholicism is the best of all possible state religions: If I were atheist and sovereign, Monseigneur, I should declare the Pope infallible by public edict, in order to establish and safeguard peace in my States. Indeed, there may exist valid reasons to fight, even to kill, for the sake of truth; to do so for fables, however, would be the greatest of errors.108

However, in the strength of this paradox lies also its weakness: it holds true only for the atheist who accords little importance to religion and truth. But the intensity of faith, which alone allows the marriage of patriotism with religion, precludes this sort of indifference. This is witnessed by the fact that when he advances theological (rather than political) arguments for Catholicism, Maistre posits the maxim that ‘an honest man must change religions as soon as he observes that his own is false and another is true’, and as a result demands tolerance of the Catholic Church in Russia.109 The laws of religion then become those of conscience, which requires the elimination of ‘national prejudices’.110 The theologico-political critique of the individualism of the rights of man thus takes rather a contradictory turn at this point. Individual rights are recused in the name of the laws of the spiritual monarchy of the Church, justified by its likeness to political monarchy. Yet the laws of spiritual monarchy may also be dissociated from those of national unity 105 106 107 108 109 110

Maistre, Réflexions sur le protestantisme, p. 318. Maistre, letter of 1816, Œuvres complètes, vol. XIII, p. 474; The Pope, Book IV, ch. 5, p. 320. Maistre, Réflexions sur le protestantisme, p. 329. Maistre, letter of 1815 to the Archbishop of Ragusa, Œuvres complètes, vol. XIII, p. 185. The same argument is taken up almost word for word in The Pope, Book I, ch. 17. Maistre, Lettre sur l’état du christianisme en Europe (1819, posthumous), Œuvres complètes, vol. VIII, pp. 502–503. Maistre, The Pope, Preliminary Discussion and Book III, chs 1 and 3, p. 227.

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and be opposed to the rights of temporal sovereignty. In the process of elaborating his argument for papal infallibility during the last phase of his career, Maistre thus develops a critique of absolutism. In Book II of The Pope, it transpires that the consecration of the State at the heart of a ‘political religion’ and its ‘national dogmas’ is incompatible with Catholic subordination of the temporal domain to the spiritual. The possibility of a right to resistance thus re-emerges: in The Pope, Maistre declares his willingness to admit a right to resistance authorised by a sovereign pontiff. This proposal for a form of papal constitutional control is in fact introduced rather reluctantly: Maistre presents indirect papal power as an eminently viable possibility, yet stops short of actually advancing the proposal himself.111 In fact, recognising a papal political power over other sovereignties, even if indirect, is arguably tantamount to conceding that national sovereignty contradicts Catholicism. Maistre attempts to defuse this tension with the argument that national and spiritual sovereignty have different aims and spheres of exercise: civil peace for one, eternal salvation of individuals for the other. Yet this cannot mean that the two types of sovereignty exist alongside one another without ever merging, which would constitute a kind of secularism. Spiritual uniformity across a nation assumes not only that two orders run parallel to each other, but also that they converge and infiltrate each other. It seems impossible to avoid the choice: either the law of temporal sovereignty imposes nationalisation of religion – which precludes Catholicism; or the law of the universal church trumps that of national identities – but in this case a law transcending the order of political sovereignty must be admitted. Maistre rejects this alternative, but it nonetheless emerges in the rift running through his argument. When he follows the logic of monarchical absolutism, he tirelessly restates the sacred imperative of respect for national religion112 – ‘Woe to the people’, warns The Pope, ‘whose nobles abandon national dogmas’.113 But when he takes up the defence of Catholic institutions, he demands instead that national dogmas should be sacrificed to Catholic dogmas, denounces the Gallicanism of Louis XIV as ‘unbridled tyranny’114 and expresses the 111 112

113 114

Ibid., Book II, chs 3 and 4, pp. 121–127. Maistre recognises that from a political point of view, no national religion can be legitimately attacked by the sovereign, no matter what its nature (Œuvres complètes, vol. XIII, pp. 288–289 and 473); and he draws from this the following consequence for Russia: ‘were angels to be made flesh and come to earth to reign over our Church in Jesuit garb, since they would have divine influence over minds they would be immediately banished as enemies of the national religion, and the government would in political terms be in the right’ (Œuvres complètes, vol. XIV, p. 9). Maistre, The Pope, Book III, conclusion, p. 296. See Maistre, De l’Eglise gallicane, Book II, chs 12 and 16, vol. III pp. 95, 226, 271.

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hope that a ‘divine revolution’ will achieve a ‘fusion of the human species’ into a communion of faith that will put an end to the rifts between nations.115 The rights of the Church are certainly not the rights of man: they are the divine rights of a spiritual sovereignty whose dogmatic decisions cannot be legitimately challenged by those under its aegis. Likewise, the authorisation of resistance to temporal power by papal pronouncement is not the same thing as a natural right that can be freely interpreted by all. Nonetheless, in spite of his eulogies of intolerance, Maistre never manages to dissociate the rights of the Church from a universal right to freedom of conscience. The victory of Catholicism, just one religion among many at a global level, would be impossible were the right to individual religious conversion not recognised. It is hard not to see the kernel of a human right in this. For both Maistre and Bonald, a radical rejection of the rights of man ultimately founders on the very premise that drives it: affirmation of the primacy of moral duties over individual interests.

* Today, the reactionary Catholicism of Bonald and Maistre may look like a case apart. Yet the arguments behind their critique of individualism have nonetheless lived on in the work of successors, albeit often unacknowledged. We have already seen how Auguste Comte developed the sociological strand of their work, and we shall explore in Chapter 6 how Carl Schmitt passed down the nationalist and theologico-political themes of Maistre’s and Bonald’s output to modern philosophers. The paradox is this: in the same gesture with which they reject democratic ideals in the name of the division of labour and its imperatives, Bonald and Maistre persistently refuse to acknowledge that in the context of modern technical progress, the consequence of this division must be the destruction of hierarchies based on birth right. Their idealised vision of the ancien régime as a pyramid of duties, where privilege came saddled with weighty obligations, hides the fact that the meaning of privilege in their understanding is to preclude any legal recourse against the violence implicit in hierarchical order. Durkheim demonstrated that the most compelling thesis of traditionalist thinkers – their reminder of the constraints of the division of labour – is also their undoing. This is because in modern economic conditions, it is precisely the social division of labour that forces realisation of individualist and egalitarian values, without which the market will 115

Maistre, letter of 1808, Œuvres complètes, vol. XI, p. 33; Soirées, II and XI, pp. 517 and 767.

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not have the adaptive individuals it needs in order to thrive. The individualism of human rights may thus be based on the principles of a ‘holistic’ sociology which (much like Bonald) recognises that society and the state precede the individual.116 To follow Durkheim, individualism is the very value system that lines up with the ‘organic solidarity’ of modern division of labour, in which individuals must specialise and differentiate themselves to a point unknown in the ‘mechanical solidarity’ of traditional societies. But Durkheim complemented his ‘holistic’ basis for individualism with a critique of the institution of inheritance, on the grounds that it ‘attacks the contract system at its roots’ by implying that individuals are inherently ‘rich or poor by birth’.117 He saw the abolition of inheritance as a necessary condition for contractualism to have valid meaning. Because it constitutes an important defence of the principle of inheritance, traditionalism conversely forces the issue of identifying the right social, economic and political conditions for equal liberties to translate effectively (in Amartya Sen’s terms) into equal capabilities.118 Hence why Bonald and Maistre bring us face to face with the difficulty that liberalism cannot avoid: beyond the formal equality of rights, what can equal liberties possibly mean in the twin context of an inevitable social and political division of labour and the inheritance gap?

116 117 118

Emile Durkheim, Leçons de sociologie, Paris, PUF, 1950, p. 90ff. Ibid., pp. 236–237. Amartya Sen, Rethinking Inequality, Cambridge (MA), Harvard University Press, 1992.

5

The Rights of Man against Human Emancipation A Revolutionary Critique: Karl Marx

As Marxism became an ideological vulgate over the course of the late nineteenth and twentieth centuries, attacks on human rights – normal in counter-revolutionary philosophy since Burke – also came to be a mainstay of revolutionary thought. Steven Lukes made this observation just over thirty years ago in his article ‘Can a Marxist Believe in Human Rights?’, concluding that ‘the Marxist canon provides no reasons for protecting human rights’.1 Lukes does not deny that Marx advocated certain human rights, nor does he discount the possibility that Marxistleaning individuals may ‘believe’ in these rights. However, he does argue that they cannot do so consistently: in his view, ‘to take human rights seriously’ – that is, to prioritise the interests and obligations they assume – means ‘not to take Marxism seriously’.2 Marx’s early diatribe against human rights as ‘the rights of the member of civil society ie. of egoistic man . . . of the man who is separated from other men and from the community . . . enclosed within himself . . . withdrawn into his private interests and private will’ is well known.3 Proclaimed as universal rights pertaining to the abstract individual, Marx suspected that human rights in fact promoted the interests of a highly specific social category: the property-owning individual of the capitalist system. Moreover, he argued, not only the context in which they emerged but their very form was inextricable from bourgeois ideology,4 which Marx described in a famous passage from the Communist Manifesto as having submerged all feeling in the ‘ice-cold water of egotistical calculation’ and dissolved all feudal ties leaving ‘no other nexus between two people than

1 2 3 4

Steven Lukes, ‘Can a Marxist Believe in Human Rights?’, Praxis International, 1, 4, January 1982, pp. 334–345, here p. 344. Steven Lukes, Marxism and Morality, Oxford, Clarendon Press, 1985, p. 70. Karl Marx, Early Political Writings, ed. Joseph O’Malley, Cambridge, Cambridge University Press, 2007, pp. 44–46. Jeremy Waldron, Nonsense upon Stilts. Bentham, Burke and Marx on the Rights of Man, London, Methuen, 1987, p. 126.

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naked self-interest’.5 Selfish calculation is in this account built into the very form of rights,6 which translate the ethos of what the young Marx identified as the ‘atomism’ of ‘civil society’, or the individualist principle taken to extremes7 – an ethos blind to the social conditions for its own existence, those of class war, in which Marx rapidly saw the truth of a ‘war among themselves of all those individuals no longer isolated from the others by anything else but their individuality’.8 At first glance, then, it seems difficult to deny that Marxist thought and claims for human rights are radically opposed. However, David Leopold’s The Young Karl Marx, published in 2007, challenged the certainties of this interpretation. In this study devoted to Marx’s early writings, Leopold argues that there is ‘little sign of this purported hostility to moral rights’ in Marx’s writings:9 the conventional interpretation rests on a misunderstanding of the context for On the Jewish Question, whose argument can only be properly understood alongside that of Bruno Bauer, to which it responds. Foregrounding context does not necessarily neutralise Marx’s early critiques of human rights, never to be revisited yet radicalised in his later works. Without claiming that Marx actually embraced the idea of rights – which would mean twisting his words considerably – it is useful to point out a logical weakness in this area of his work. Though his rejection of a normative conception of justice is coherent enough, it is hard to see how individual emancipation, which Marx saw as the ultimate goal of communism, can be achieved without claims to rights. This argument may furnish a basis to reunite the emancipatory project of Marx’s philosophy with the tradition of the rights of man – perhaps against the better judgement of Marx himself. Although Leopold’s thesis is not entirely convincing as an intellectual history argument, it does help to clarify contemporary normative debates on the relationship between rights and social emancipation. These two traditionally separate realms – historical and analytical – may be married by asking not only what Marx really thought about human rights, but also what he should have thought about them. Here, we follow Jon Elster’s suggestion of adopting a sort of ‘deliberate anachronism’ as a methodological necessity, thus basing arguments in part on facts and 5 6 7 8 9

Karl Marx and Friedrich Engels, The Communist Manifesto, ed. and trans. L. M. Findlay, Toronto, Broadview, 2004, p. 64. Jeremy Waldron, Nonsense, p. 126. Karl Marx, Contribution to the Critique of Hegel’s Philosophy of Right (1843), trans. Joseph O’Malley, Oxford, Oxford University Press, 1970, pp. 79–81. Karl Marx and Friedrich Engels, The Holy Family (1845), trans. R. Dixon, Moscow, Foreign Languages Publishing House, p. 157. David Leopold, The Young Karl Marx. German Philosophy, Modern Politics and Human Flourishing, Cambridge, Cambridge University Press, 2009, p. 150.

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concepts that Marx could not have known about.10 However, our aim is not to contribute to the prolific debates that have defined the evolution of analytical Marxism since the beginning of the 1980s,11 devoted in large part to drawing up a Marxist theory of justice that is nowhere to be found in Marx’s thought itself. Our question is about fundamental rights: we set out to demonstrate that Marx’s critique of the ideology of justice goes hand in hand with an understanding of individual liberty which appeals to the concept of human rights. The Human Rights Question in Marx’s Early Work Marx’s critique of the rights of man in On the Jewish Question has often been accorded the canonical status of a definitive dogma, advancing three main propositions: the rights of man are an ideology that supports the egotism characteristic of civil society, whilst also exposing this society’s alienation through the quasi-schizophrenic division it sets up between ‘men’ and ‘citizens’. The term ‘ideology’ never appears in On the Jewish Question. Marx would develop his definition only later, in The German Ideology, and it continued to be dogged by several doubts which led Engels to redefine the notion in his later works and gave rise to one of the richest debates occasioned by the Marxist tradition, stretching from Gramsci to Althusser by way of Lukacs. Despite this, it seems eminently possible to apply the concept of ideology (understood as an illusion produced by the material conditions of existence) to the rights of man as described in On the Jewish Question. The underlying structure of the Marxist critique of ideology lies in the critique of religion: Marx interprets the religious alienation decried by Feuerbach as the expression of a social alienation for which religion provides imagined compensation. In his Contribution to the Critique of Hegel’s Philosophy of Right, published in the same volume as On the Jewish Question, Marx argues that it is because society and the state ‘are an inverted world’ that they produce ‘religion, which is an inverted consciousness of the world’ and represents both an ‘expression of real suffering’ and ‘protest against real suffering’. The critique of religious 10 11

Jon Elster, An Introduction to Karl Marx, Cambridge, Cambridge University Press, 1986, pp. 2–3. See especially Gerald Cohen, Self Ownership, Freedom and Equality, Cambridge, Cambridge University Press, 1995; Jon Elster, Making Sense of Marx, Cambridge, Cambridge University Press, 1999; John Roemer, Theories of Distributive Justice, Cambridge (MA), Harvard University Press, 1996; Philippe Van Parijs, Real Freedom for All. What (if anything) Can Justify Capitalism?, Oxford, Oxford University Press, 1995.

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illusion – which sublimates earthly suffering into the belief in an afterlife – needs an accompanying critique of the social conditions that make it necessary: ‘the criticism of religion [must be turned] into the criticism of right’.12 This, indeed, is exactly what happens in On the Jewish Question, which introduces the critique of the rights of man as a consequence of the guiding thread of the article – the critique of religion.13 Bertrand Binoche writes that ‘the issue is not therefore to reformulate the rights of man for Marx’s time, but to supersede right just as religion had been superseded’.14 Echoing the Contribution to the Critique of Hegel’s Philosophy of Right, which described religion as merely the ‘spiritual point d’honneur’ of a ‘heartless world’, On the Jewish Question stresses that the ‘consummation of the idealism of the state’ which found expression in the rights of man was at the same time ‘the consummation of the materialism of civil society’.15 Like religion, then, Marx sees the rights of man as an ideology in that they feed into an idealist alibi for the materialism of homo œconomicus. The ‘man’ in the rights of man, as The Holy Family takes up the argument of On the Jewish Question, is merely the ‘man of civil society,16 i.e., the independent man connected with other men only by the ties of private interest and unconscious natural necessity, the slave of labour for gain and of his own as well as other men’s selfish need’.17 By turning bourgeois interests into natural principles of humanity, the rights of man in Marx’s view merely express entrepreneurs’ desire to be freed from social

12 13

14 15 16

17

Marx, Contribution to the Critique of Hegel’s Philosophy of Right. Capital, Book I (1867), chs 1, 4. The first part of the article includes the critique of the rights of man in the observation that religious freedom, ensured by church–state separation, does not guarantee freedom from religious alienation. Its second section extends the critique of Christianity (as a spiritual illusion of bourgeois society) into a critique of Judaism as the material truth of bourgeois society and the Christianity it professes. In line with anti-Semitic stereotypes, Marx associates Judaism with financial egotism and the cult of money. But we must read his argument as a strategic polemical response: ‘Judaism’ as seen by Christian anti-Semitism represents the Christian truth that provides bourgeois society with its ideology – which in turn means that Christian anti-Semitism works against itself. The fact remains that this retaliation tactic maintains the anti-Semitic definition of Judaism, and leads to what must properly be called a failure of the Marxist critique of religion. Bertrand Binoche, Critiques des droits de l’homme, Paris, PUF, 1989, p. 112. Karl Marx, On the Jewish Question, in Robert Tucker (ed.), The Marx-Engels Reader, New York (NY), Norton & Co., 1978, pp. 26–46, p. 45. Bürgerliche Gesellschaft: this concept, which plays a key role in Hegel’s Philosophy of Right, is often translated as ‘civil society’. We follow the choice of translators who render the double meaning of the word bürgerlich in Marx’s use of it: both ‘civil’ and ‘bourgeois’. Marx and Engels, The Holy Family, chapter VI, translation modified.

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constraints and responsibilities,18 whilst also perpetuating a legalistic short-sightedness towards the types of servitude that result from real inequalities between those who control the means of production and the rest. Marx’s challenge does not stop at the context for the genesis of human rights. His thesis is more radical, suggesting that the interests expressed in such rights are in fact constitutive of a mentality among the actors of civilbourgeois society, and therefore reflect the structure of the capitalist market. The egotism of competition is inscribed in the very form of these rights, which appeal to a coercive authority to protect individual interests against their own potential for conflict.19 In On the Jewish Question, Marx observes that in defining liberty as the right to do ‘anything that does not harm others’, the 1789 Declaration induces human beings to see others of their kind not as a ‘realisation’ but a ‘limitation’ of their individual liberty. This so-called liberty is therefore that of a withdrawn, isolated ‘monad’. Similarly, the right to property is simply (in Marx’s view) the right to enjoy one’s private wealth and use it as one sees fit without concern for others: it is, in fact, the ‘right to egotism’. The enclosures (or ‘barriers’, in Marx’s language) that are supposed to protect property are not only guarantees for individuals, but also positive obstacles to individual responsibility for others. Finally, only the right to security builds connections, albeit purely exterior, between individuals and society. This is why the ultimate social value is not the public good but the policing principle, ‘the supreme social concept of civil society’, ‘the assurance of its egoism’.20 The rights of man thus herald the destruction of what the Critique of Hegel’s Philosophy of Right had called ‘community, the communist essence within which the single individual exists’ prior to society–state separation.21 Now, in the destruction of a community split into two spheres – the private sphere of civil-bourgeois society and the public sphere of the state – it is precisely the need for collective rather than selfish ties between individuals that is represented by the state. This is the origin of a third facet of Marx’s critique: the schizophrenia enshrined by the Declaration of Rights between ‘man’ and the ‘citizen’. On the Jewish Question takes the distinction between the ‘rights of man’ and the ‘rights of the citizen’ very seriously: Marx stresses that only human beings acting ‘in community 18

19 21

See especially Allen Wood, Karl Marx (1981), London, Routledge, 2004, p. 130, and Dominique Dembour, Who Believes in Human Rights?, Cambridge, Cambridge University Press, 2009, p. 117ff. Waldron, Nonsense, pp. 126–127. 20 Marx, On the Jewish Question, p. 43. Marx, Contribution to the Critique of Hegel’s Philosophy of Right, p. 134.

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with other men may exercise the rights of the citizen’. The heart of ‘political rights’ is ‘participation in the community life’: they make reality of what Marx, following Feuerbach, calls the ‘generic essence’ of man – a ‘common essence’ or a ‘common being’ (the literal meaning of Gemeinwesen or ‘community’) which is also a ‘being-together’, a way of communal life. Hence why, though political emancipation is not the ‘final and absolute form of human emancipation’, it nonetheless constitutes ‘great progress’, ‘the final form of human emancipation within the framework of the prevailing social order’.22 However, the limits of political emancipation lie in the fact that it is only political, and that the political community it claims to institute is merely set alongside civil-bourgeois society – in other words the ‘sphere of egoism’ and the generalised struggle of the ‘bellum omnium contra omnes’, which remain outside it. Political emancipation therefore preserves social alienation, just as religious freedom – typically seen as a ‘universal right of man’ – in fact gives free rein to religious alienation instead of liberating people from it. In the religious sphere, political emancipation takes the form of church–state separation: yet as the example of the United States amply demonstrates, this may well co-exist with a profoundly religious society. Similarly, democratic emancipation, which ‘politically’ abolishes private property by ending census suffrage and enfranchising those who are not property owners, abolishes neither private property nor its power in social terms. On the contrary, it guarantees private property as the first among human rights, which values political institutions only in so far as they protect it.23 Marx thus highlights the paradox inherent in the fact of a people abolishing all legal hierarchies in order to form a democratic political community while in the same gesture negating the political rights it demands by subordinating them to ‘human rights’, which are those of an ‘isolated monad, withdrawn into himself’. Human beings thus lead two lives at once: the first dominated by private interest, and a second, ‘political’ life dedicated ‘like a metaphorical Sabbath’ to pursuit of the common good.24 However, the so-called citizen is merely ‘an imaginary member of an imaginary sovereignty’, since his political rights are completely subordinated to bourgeois interests treated as ‘natural rights’. In so far as the Declaration posits that the ‘end’ of any political association is to preserve the natural rights of man, political life – in which human beings act as generic beings – is reduced to the status of a ‘mere means’ in 22 23 24

Marx, On the Jewish Question, pp. 35, 41, 32. Marx and Engels, The Holy Family, ch. VI. Costas Douzinas, The End of Human Rights, Oxford, Hart, 2000, p. 160.

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the service of life within civil society, where they act as isolated beings: the ‘end appears as the means and the means as the end’.25 The logical conclusion of this argument seems to be that human rights give the illusion of a political liberty which in fact they render impossible, stripping political rights of their meaning and setting against them as an absolute limit the security of property and the ‘freedom of selfish man’. Claims to human rights, according to this view, hold no promise of emancipation. Conversely, once a communist society has successfully abolished class conflict, it would have no use for human rights as legal guarantees.26 Is this the end of the story? David Leopold’s arguments suggest perhaps not. Leopold’s first question is about the moral status of individuals in Marx’s work. In the broadest sense, to say that an individual has ‘rights’ amounts to saying that she enjoys an independent moral status and is considered as an end in herself. Now, it seems clear that in his early work Marx believed in rights in this broad definition. In deploring conditions that reduce the worker to a machine, Marx is in fact condemning the mishandling of a being with independent moral status as a mere ‘object’.27 Since he rails against their ‘reification’, we can safely say that Marx sees an intrinsic moral meaning in individuals. It may not be much of a surprise, continues Leopold, to find that in his early works Marx believed in rights in this broad sense; according to the same definition, practically all normative theories might be interpreted as subscribing to rights. Commentators who see Marx as hostile towards rights are working on the assumption of a more restricted conception, which defines rights as prohibiting certain actions even where they might lead to a better overall result. In this definition, rights are an ethical paradigm that emphasises the moral value of factors outside the expected results of an action, and invests these with an importance over and above the outcome. In Leopold’s view, the concept of ‘reification’ in Marx’s work seems to correspond to this more restricted notion of rights. When he decries the fact that the work and life of the poor count only as a guarantee against loan, ‘Marx is not simply saying that humans have a “moral standing” which dollar bills lack; he is claiming that humans have a moral standing which we have a duty to respect, and which we fail to respect if we treat them . . . as if they were objects.’28 In his early writings, Marx believes that 25 26 27

Marx, On the Jewish Question, pp. 34, 44. Allen Buchanan, Marx and Justice: The Radical Critique of Liberalism, London, Methuen, 1982. Leopold, The Young Karl Marx, p. 151. 28 Ibid., p. 153.

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individuals do indeed have a moral right not to be treated as objects, and that if we treat them as such we violate that right. This injunction not to treat human beings as objects expresses a deontological position. A recurring theme in On the Jewish Question is the warning against treating others ‘as means’ among members of civil society. Though Marx had only limited use for Kantian ethics,29 Leopold argues that it is highly unlikely that his semantic choice was mere coincidence. The reference to Kant is implicit in Marx’s criticism of treating oneself as a means, as well as his description of civil society’s ethos as showing disregard for ‘man as an end in himself’.30 For Kant, to treat individuals as an end is to respect their dignity and unique worth, which is not dependent on contingent events and trumps all other values. The implications raised by Marx’s choice of words seem clear: ‘I can see no obvious reason for Marx’s use of this language – language which would certainly be familiar to his intended audience – other than to encourage us to think of the individual as having a value which others have a duty to respect, and which is independent of the goodness of outcomes.’31 We might respond to this that Marx’s theory of rights should be reconstructed not from his thoughts on the moral status of individuals but rather from his explicit statements about (and scorn for) rights. However, for Leopold, Marx’s early writings show little evidence of this opposition to rights. Interpreting On the Jewish Question as an attack on rights themselves neglects the fact that the piece’s main purpose was to counter Bruno Bauer’s argument that particularism or profession of a specific faith are valid reasons for excluding individuals from the benefits of human rights. Marx certainly does not deny that freedom of conscience, expression or association are goods in themselves; even less so that individuals have a right to them. However, he does criticise the ways in which contemporary states institute and in fact constrain these benefits. Countering Bauer’s refusal to grant Jews equal rights, Marx thus asks: ‘Does the standpoint of political emancipation have the right to demand

29

30

31

To wit, his cursory critiques of Kant’s moral philosophy in The German Ideology, ed. C. J. Arthur, New York (NY), International Publishers, 2004, p. 90ff. Yet the fact remains that, in an early-period letter of 1837 (in The First Writings of Karl Marx, ed. Paul M. Schafer, New York (NY), IG Publishing), Marx said that his thought had been ‘nourished on the Kantian and Fichtean’. A clear reference to Kant also appears at the same point in the Contribution to the Critique of Hegel’s Philosophy of Right (p. 205), where Marx invokes the ‘categorical imperative to overthrow all relations in which man is a debased, enslaved, forsaken, despicable being’. Leopold, The Young Karl Marx, p. 155.

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from the Jew the abolition of Judaism and from man the abolition of religion?’32 Marx’s response is that the modern State does not have the right to discriminate against Jews in favour of Christians, nor to demand abandonment of their religion as a prerequisite for citizenship. Here, Marx uses the concept of ‘right’ without comment or restrictions. Leopold concludes from this that ‘Marx’s own argumentative strategy in this discussion is not to attack the very concept of rights, but rather to reject this contemporary justification for excluding Jews from the possession of human rights.’33 Marx’s critique is directed not at human rights as such, but at a model of political life that renders citizenship meaningless by making the partial individual of civil society an absolute value. Leopold’s new reading of the rights of man in Marx’s early oeuvre must nevertheless be qualified. His focus on the context for On the Jewish Question certainly serves to remind us that Marx’s first objective was a practical one: to win equal rights for the Jewish population. But it would be easy to object that this contextualisation applies only to Marx’s early works, and that it obscures the radicality of his later rejections of human rights. From The Holy Family, which steps up the argument of On the Jewish Question in its suggestion that human rights paint a veneer of liberty on ‘the perfection of [man’s] slavery and his inhumanity’,34 to the Critique of the Gotha Program, which appears to condemn the very idea of rights declaring that any right is a ‘right of inequality’,35 Marx’s denunciation of human rights would appear to be ‘total, constant and definitive’.36 Does this mean that we should see Lukes’s argument as more convincing than Leopold’s? This would be a premature conclusion, because Leopold does clarify one important point that counters the accepted reading of Marx: Marx’s critique of rights is not the same thing as his critique of religious alienation from which it follows. Whereas the imagined solace of religion in Marx’s view only reflects social alienation, and consequently produces no real emancipation, such a thing as ‘political emancipation’ does in fact exist. The limitation of exclusively legal and 32

33 34 35 36

Marx, On the Jewish Question, translation modified, p. 30 (our emphasis). The original French translation by Jean-Michel Palmier for Éditions Sociales (1971) has this phrase as ‘does the standpoint of political emancipation have the right to demand the abolition of Judaism . . . ?’ ; in the most recent French translation by Jean-François Poirier for La Fabrique (2006), this is replaced by ‘does it allow . . . ’ [permet-il]. Yet the word in the original German is indeed ‘Recht’. Leopold, The Young Karl Marx, p. 161. Marx and Engels, The Holy Family, p. 157. Karl Marx, ‘Critique of the Gotha Program’ (1875), in Marx and Engels Selected Works, vol. 3, Moscow, Progress Publishers, 1970, pp. 13–30. Bertrand Bourgeois, Philosophie et droits de l’homme, de Kant à Marx, Paris, PUF, 1997, p. 101.

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political freedom is that it does not eliminate social alienation; but this does not make political emancipation a form of alienation. Citizen rights are not in themselves a form of alienation: they mean exercising an incomplete yet real freedom. This is how Marx’s critique of religion leads towards the assertion that church–state separation is not enough to move past the causes of religious alienation. But even if religious freedom does not liberate mankind from religion, it is nevertheless a real freedom which must not be challenged or curtailed by authoritarian measures. Countering Bauer, Marx asserts that this freedom ‘is a general righ[t] of man’.37 It thus follows that the principle behind human rights is different from that which feeds religious illusion: human rights are equivalent to freedom of religious practice, or to what we might term ‘secularism’, which does not erase religious illusions but nonetheless represents real progress and lasting benefit. Social emancipation, then, does not contradict political emancipation: it fulfils or completes it by extending political freedom into the social sphere, in other words by placing social relations as a whole under the democratic control of collective freedom. It may be tempting to see this project of total, undivided democracy as does Claude Lefort – as a mere ‘totalitarian fantasy’ that cancels out the notion of ‘free association’ on which it is allegedly founded, and substitutes for it the dream of a transparent and self-referential society.38 In condemning the rights of man as an expression of the atomism of capitalist imagination, Lefort argues, Marx missed the political and democratic dimension properly understood of ‘human rights’;39 paradoxically, he succumbed to the liberal idea of the Declaration as instituting a separation between the social and the political. As Etienne Balibar has written, this is ‘a complete misunderstanding with the respect to the letter, the materiality of the texts’. The ‘man’ of the Declaration ‘is not the “private individual” set up in opposition to the citizen who is supposedly a part of the state. He is precisely the citizen’.40 Among the ‘natural and imprescriptible rights of man’ proclaimed by the 1789 Declaration, resistance to oppression or free communication of thoughts and opinion – described as one of the ‘most precious rights of man’ – necessarily bind the subject to other subjects. 37 38 39 40

Marx, On the Jewish Question, p. 40. Claude Lefort, ‘Les Droits de l’homme et l’État providence’ and ‘Relecture du Manifeste communiste’, in Essais sur le politique, Paris, Seuil, 1986, pp. 46 and 188. Claude Lefort, ‘Droits de l’homme et politique’, in L’Invention démocratique, Paris, Fayard, 1981. Etienne Balibar, ‘“Droits de l’homme et droits du citoyen”. La dialectique moderne de l’égalité et de la liberté’, in Les Frontières de la démocratie, Paris, La Découverte, 1992, pp. 133–134.

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But this reasonable critique – which reminds us that the rights of man cannot be separated from the rights of the citizen – should not obscure the fact that this very separation is what Marx decries under the umbrella term of the ‘rights of man’. His critique is not directed against an unspecified ensemble of human rights, and among those proclaimed in the 1789 and 1793 Declarations he certainly does not challenge the specific rights of freedom of association, freedom of the press and political freedom: these he had always seen as the first demands of the revolutionary movement. Instead, Marx targets the rights of man as opposed to citizen rights – or what On the Jewish Question calls ‘the sophistry of the political state’,41 which overlaps with the liberal version of human rights and consists in invoking them in order to limit the scope of political rights. From this angle, ‘human rights’ are defined by the distinction between the ‘rights of man’ and the ‘rights of the citizen’, which strips political rights of any social impact in the same breath as it strips human rights of any political effects. On the Jewish Question is categorical on the issue: ‘Who is this man distinct from the citizen? No one but the member of civil society . . . the so-called rights of man, as distinct from the rights of the citizen, are simply the rights . . . of egoistic man, of man separated from other men and from the community.’42 Defined by their difference from citizen rights, the rights of man inevitably become the rights of an isolated monad, as opposed to political rights which are those of man in his existence as part of a ‘species’ and community, but ultimately of an existence so narrowly defined that it loses all semblance of reality. It is unlikely, then, that Marx intended to deny the social or political nature of rights such as freedom of the press or freedom of association; rather, the point of his argument is that human rights must not be used as a pretext to limit citizen rights by interpreting them as a mere means, subordinated to the guarantees of apolitical rights. We should add a historical observation at this juncture, that the same National Assembly that had promulgated the Declaration of the Rights of Man also enacted the Le Chapelier law prohibiting workers’ associations: the ‘rights of man’ as differentiated from the ‘rights of the citizen’ clearly stood alongside a restriction on freedom of association.43 Which is not to suggest that Lefort was wrong in his view that freedom of the press and freedom of association are rights of intersubjectivity, of social relations and not of the selfish monad; but it was these very rights that Marx’s 41 43

Marx, On the Jewish Question, p. 35. 42 Ibid., pp. 41–42. ‘During the very first storms of the revolution, the French bourgeoisie dared to take away from the workers the right of association but just acquired. By a decree of June 14, 1791, they declared all coalitions of the workers as “an attempt against liberty and the declaration of the rights of man”’ (Marx, Capital, Book I [1867], ch. XXVIII, 3).

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critique left intact. Instead, the object of his scorn was the way in which the 1789 and 1793 Declarations had subordinated the rights of political relations to the rights of the isolated individual. Simply put, Marx’s critique targets the fact that the rights of man have at their very core the intangible right to private property. Even in the 1793 Constitution, ‘the practical application of the right of liberty is the right of private property’.44 The subordination of the rights of the citizen to the rights of man (distinguished from the citizen) translates in concrete terms as a privileged status granted to the right of private ownership. Liberty as the relationship of ‘man with other men’ is thus buried by freedom as the selfish enjoyment of the property owner, ‘without regard for other men and independently of society’. The right to property as a ‘right to egoism’ cancels out the ‘relational’ rights which give form to the ‘rights of the citizen’: as soon as political rights cannot constrain the right to private property, they lose all social meaning. Doomed to preserve the existing system of wealth distribution, these rights are now merely a secondary dimension of the security required by possessive individualism, and attest to what The Jewish Question describes as the impotence of ‘political power’ when separated from ‘social power’. This impotence furthermore explains the descent into Terror of which Marx gives an account in On the Jewish Question, later completed in The Holy Family. It is a commonplace of counter-revolutionary thought to dismiss the rights of man with the contention that the Terror of 1793 was their only possible outcome.45 Marx takes on the problem of this relationship between Terror and human rights from the angle of the French revolutionaries’ inconsistence in proclaiming the subordination of citizen rights to the rights of man at the very same time that their politics required the opposite: subordination of the rights of man to the duties of the citizen, and the requirement for individuals to sacrifice their private interests to the imperative for public safety. Yet this contradiction demonstrates that Terror did not grow from the affirmation of individual rights: it arose from the dissociation of the political state and civilbourgeois society, which took society outside the aegis of political power and made it an autonomous sphere of competition between unchecked interests, which were in turn to be kept ‘free’ as a ‘human right’. The real 44 45

Marx, On the Jewish Question, p. 42. Some authors have turned this anti-Jacobin critique of human rights into a pro-Jacobin argument. Luciano Canfora (La Démocratie, trans. A. Caola and P. Itoli, Paris, Seuil, 2006, p. 76ff.) recalls that the very French revolutionaries who promoted Terror abolished slavery in 1794 in the name of the rights of man. Engels strangely forgets this fact when he attempts in Anti-Dühring to prove the ‘bourgeois nature’ of the rights of man by the maintenance of slavery through the American Revolution.

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individual was thus fractured into two different figures: the ‘member of civil society’ on the one hand, who represents ‘authentic man’ and leads his empirical life in the sphere of market competition; and on the other the citizen, or ‘political man’, who has no power over this empirical existence and is thus no more than an ‘abstract, artificial man’ or an ‘allegorical, moral person’.46 It is this ‘allegorical’ face of citizenship that led to the Terror in concrete terms. The radical separation of the political and social domains means that political power can be exerted over society only through terrorist measures, denying society’s rights in the name of the state as an ‘end in itself’.47 Violence is the sign of the social powerlessness of the political sphere: Terror constitutes an involuntary admission that the political community proclaimed in the name of the ‘rights of the citizen’ is an imagined community. Hence why human rights would, after Robespierre’s downfall, once again get muddled up with the ‘fever of the numerous new owners’ and the ‘powerful streams of [capitalist] life’ of the Directorate society.48 Going beyond the rights of man, in this scenario, means reversing their dissociation from citizen rights, ‘absorbing’ them into political rights, while extending political rights to the entirety of the social sphere. This is the goal of Communism: to render ‘political power’ indistinguishable from ‘social power’. The vocabulary of the rights of man and the citizen seems inadequate for such a task, as the point is precisely to resolve the disconnect between man and citizen and to redefine ‘political rights’ such that they are no longer ‘political’ rights – that is to say, only political – but a veritable social force. Marx never defined Communism as a right to collective property, but rather as the process of collective appropriation of the means of production:49 communism, in this view, means the conscious and deliberate organization of production and society itself by ‘freely associated individuals’. Its substance, then, lies not in demands for or protection of human or citizen rights, but in the actual exercise of the collective power of individuals. Unlike legal constructs, which merely 46 47

48 49

Marx, On the Jewish Question, p. 46. Remarkably, The Holy Family describes Napoleonic power as ‘the last act in revolutionary terror’s struggle against bourgeois society’ (p. 166): Yet at the same time he still regarded the state as an end in itself and civil life only as a treasurer and his subordinate which must have no will of its own. He perfected the Terror by substituting permanent war for permanent revolution. Marx and Engels, The Holy Family, p. 165. On the difference between collective property and the appropriation of production, see Louis Althusser, Sur la reproduction, Paris, PUF, 2011, p. 91, and Antonio Labriola, Essais sur la conception matérialiste de l’histoire [1895–1899], trans. A. Bonnet, Paris, Gordon & Breach, 1970, p. 12.

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provide a framework for isolated individuals to interact, communism is the practice of a collective freedom which is not divorced from its own substance by the objectivised legal mould, but instead preserves its autonomy by recognising no constraint but the immanence of its own decision-making. The concept of communism inherent in the arguments put forward in Marx’s early works remains identical throughout his œuvre: communism is not a system of rights, but rather, as Antonio Labriola writes, ‘the democratic socialisation of the means of production’.50 Should we therefore take the arguments in On the Jewish Question as the definitive version of Marx’s views on the rights of man? This raises two questions rolled into one. From an intellectual history standpoint, we must first ask why throughout his life Marx maintained a rather unnuanced opposition in principle to an extremely nebulous ‘juridical ideology’, without ever reassessing the conceptual articulations of his early critique of human rights. From a normative standpoint, the challenge is to determine whether Marx’s understanding of freedom does not in fact presuppose a theory of human rights, which it otherwise omits to mention. The Historicist Recasting of Marx’s Critique of Human Rights From 1845 onwards, Marx’s œuvre as a whole reframes the project of social emancipation as part of an exploration into the historical dynamics of capitalist accumulation. Countering Proudhon, who founded a theory of ‘distributive justice’ and failed to see that property relations must be analysed in their ‘real form’ as the ‘relations of production’ rather than through ‘their legal aspect as relations of volition’, Marx rejects any normative perspective except a ‘critical knowledge of the historical movement, a movement which itself produces the material conditions of emancipation’.51 He sets out to demonstrate that the ‘stage of development’ founded on capital must be surpassed – the state in which man is ‘cultured to a high degree’ and a ‘social human being . . . as rich as possible in needs, because rich in qualities and relations’ – to be replaced with a higher form of socialisation which must also be a superior sort of individualisation.52

50 51 52

Ibid. Karl Marx, ‘Letter to J.-B. Schweitzer’ [1865], in Marx and Engels Selected Works, vol. 3, Moscow, Progress Publishers, 1970, pp. 24–30. Karl Marx, Grundrisse [1857], trans. Martin Nicolaus, London, Penguin Books (in association with New Left Review), 1973, p. 762.

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The emancipation sought by ‘a critical knowledge of the historical movement’ is not formulated in terms of a theory of justice: Marx clearly states that justice is no more than compliance with the law as it necessarily arises from the means of production.53 No injustice exists in legal relations, as long as these relations adequately correspond to the needs of the relations of production. This reduction of legal relations to economic relations explains why Marx had only contempt for human rights phraseology, in which he saw merely an ideological translation of the legal constructs of mercantile relations. Under the guise of an ahistorical law, the rights of man are the illusory projection of the ‘deceptive semblance’ that exchange is a ‘free and equal’ relation.54 To counter this ‘deceptive semblance’, Marx traced the ideology of the eternal rights of man to the historical conditions of legal relations which human rights distort; he sought to prove that capitalist mercantile relations, whose corresponding legal fantasy is the existence of human rights, are exploitative relations, even though they are relations entered into between ‘formally’ equal individuals, and are thus unimpeachable from the point of view of fair transaction. The German Ideology thus marks a key turning point in Marx’s philosophy: the materialist historicism that links human thought and activity to the material conditions for their social production cannot be reconciled with the notion of a human essence arguably lost to religion or the state, and that mankind should recapture. On the Jewish Question had critiqued human rights in the name of unity of an essential ‘species-being’; The German Ideology disqualifies the idea of man’s eternal essence as an ideological illusion, to be countered by the fact that only ‘real individuals’ exist, glimpsed in the ‘material conditions’ of their history55 – in other words, in the social relations that give rise to their individuality in its specific form. Marx repeatedly argued that man is a social being who ‘can only constitute himself as an independent individual in society’.56 It follows that there is no such thing as human nature: ‘all history is nothing but a continuous transformation of human nature’,57 as it is the succession of social formations that produce each category of humanity in correlation with given social relations. This historical perspective could not bring about the rehabilitation of human rights: if man does not exist, he cannot have rights. Marx maintains the definition of communism presented in On the Jewish Question, 53 54 55 56 57

See for example Marx, Capital Book III, ch. XXI and Critique of the Gotha Program. Marx, Grundrisse, pp. 892 and 1000. Marx and Engels, The German Ideology, pp. 42 and 48ff. Marx, ‘1857 Introduction’, in Grundrisse I, op. cit., p. 18. Karl Marx, The Poverty of Philosophy [1847], Progress Publishers, 1955, p. 67.

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which challenged the right to property as well as the separation between the political and the social spheres; but now he adds to this rejection a twofold argument for the historicity and radically secondary nature of law. The rights of man are false in the sense that they must, by definition, be presented as natural, eternal or innate rights. Yet all rights are historical, since they depend on what is possible given the state of productive powers and relations of production. It is not that the law is reduced to reinforcing existing power relations (whatever their nature); rather, erasing the historical limits of productive powers and the mode of production they impose is simply beyond its power. The societies of classical antiquity, which could not have abolished the institution of slavery which underpinned their technical and spiritual progress, could not have conceived of ‘human rights’ as such being incompatible with slavery.58 The concept of ahistorical ‘human rights’, liable to be unconditionally demanded in any context, is thus in Marx’s view an absurd notion that should logically lead us to deplore the entire course of human history. Has it not always taken the ‘bad side’,59 and succeeded in developing ‘civilisation’ only through the social forms of slavery and feudalism, untenable from a human rights perspective? A serious belief in eternal rights can only produce a truly religious sense of frustration at the irrationality of history, in which the rights of man are constantly violated and reality never matches up to the ideal. Marx repeatedly decries this ‘sentimental’ point of view, which he sees at play in the legal versions of socialism that condemn the wrongs of capitalism without understanding the historical necessity of these so-called injustices. Nevertheless, throughout his later works Marx maintained that ‘the development of the richness of human nature’, or the integral development of individuals, is ‘an end in itself’.60 But this means that the goal is less preservation of individual rights than the development of their power. Now, this development – which would be made reality under communism in the form of ‘free individuality, based on the universal development of individuals and on their subordination of their communal, social productivity as their social wealth’ – means first living through the capitalist era, which breaks down the close ‘relations . . . of personal dependence’ and substitutes for them the progress of ‘personal independence founded on objective dependency’ (dependence on the market transformed into an autonomous force).61 Hence the resulting paradox, 58 59 60 61

Engels emphasises this point in Anti-Dühring, Paris, Éditions Sociales, 1977, pp. 208–209: ‘Without the slavery of Antiquity, no modern socialism.’ Marx, The Poverty of Philosophy, p. 130. Karl Marx, Theories of Surplus Value, vol. II, Moscow, Progress Publishers, 1963, p. 117. Marx, Grundrisse, vol. I, p. 189 and p. 180.

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that ‘the higher development of individuality is thus only achieved by a historical process during which individuals are sacrificed’:62 the expansion of the powers of individual freedom dialectically passes by way of the cruelty of a division of labour which violates ‘human rights’ by first restricting freedom to a small minority of individuals. The notion of human rights is not only blind to the necessity of violence (including the emancipatory violence of all revolutionary action); it is equally blind to its own violence, the violence of the relations of enslavement for which it provides the framework. Human rights appear at first glance as the realisation of a system for the equality of individual rights; however, this configuration overlooks the fact that real ‘social relations’ are ‘based on class antagonism’, and that ‘individuals in such a society, although their relations appear to be more personal, enter into connection with each other only as individuals imprisoned within a certain definition, as feudal lord and vassal, landlord and serf’ and so on.63 It would be futile to pit human rights against the power relations that inevitably establish themselves in a mercantile relation between those who own the means of production and those who own only their own labour. For the mercantile relation in fact aligns with the concept of human rights: it is a relation of equality between proprietors who ‘recognize one another reciprocally’ as free persons. ‘The exchange of exchange values is the productive, real basis of all equality and freedom. As pure ideas they are merely the idealized expressions of this basis; as developed in juridical, political, social relations, they are merely this basis to a higher power.’64 Consequently, it was ‘foolishness’ to think, as had the French socialists, that socialism would be the ‘realization’ of the ‘ideals . . . articulated by the French Revolution’. These ideals were those of bourgeois ‘civil society’ and are truly realised in the market relations that furnish the capitalist mode of exploitation. Setting human rights against this means opposing ‘the real and the ideal form of civil society’ and wanting to restore ‘the ideal expression again, which is in fact only the inverted projection of this reality’. Capitalist exploitation and the domination of money do not ‘deform’ the ‘system of equality and freedom’ for all; they are the immanent development of this system. ‘Exchange value or, more precisely, the money system is in fact the system of equality and freedom, and . . . the disturbances which they encounter in the further development of the system are disturbances inherent in it, are merely the realization of equality and freedom, which prove to be inequality and unfreedom.’65 62 63 64 65

Marx, Theories of Surplus Value, vol. II, p. 118. Marx, The Poverty of Philosophy, vol. I, 3, p. 109; and Grundrisse, vol. II, p. 188. Marx, Grundrisse, vol. I, II, 8–12, pp. 243 and 245–246. Ibid., II, pp. 248–249, trans. modified.

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Market relations are described in Capital as the implementation of ‘the despotism of capital’ and the ‘concealed enslavement of workers’.66 Between capitalist owners, who are themselves no more than submissive agents of their capital, and workers who have only their own manpower and time to sell, the production relations of capitalist competition enforce a division of labour: the worker is in the position of ‘one who is bringing his own hide to market and has nothing to expect but – a hiding’, while the capitalist inevitably assumes the role of the ‘vampire’ who ‘suck[s] living labour’.67 And yet this relation of exploitation, which enacts its violence via inequality of social positions and the destruction of individual freedom, develops into ‘a very Eden of the innate rights of man’. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to himself. The only force that brings them together and puts them in relation with each other, is the selfishness, the gain and the private interests of each. Each looks to himself only, and no one troubles himself about the rest, and just because they do so, do they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all.68

There is a catch or twist in the story of this association drawn between the rights of man and Bentham – one of their foremost opponents – which runs through Marx’s output as a whole. However, Marx’s essential argument is that in limiting ourselves to the notion of equal liberties, which defines the rights of man, we cannot then express any objection to the market relation as a free contract between free property-owners who are equal before the law. Yet this contractual relation sits all too easily alongside exploitation: ‘apart from extremely elastic bounds, the nature of the exchange of commodities itself imposes no limit to the working-day, no limit to surplus labor’.69 Competition can thus force the individual who freely owns only his own body to consent to his own exploitation. Since buyer and seller have equal rights, it is not a legal principle but the reality of competition and power relations that sets limits of working time and exploitation.

66 67 69

Marx, Capital, Book I, ch. XV, 3, XXIV, 6, pp. 276, 435, trans. modified. Ibid., ch. VI, 6 and 7, pp. 123, 163. 68 Ibid., ch. IV, 3, p. 123. Ibid., ch. X, 1, p. 163.

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Between equal rights force decides. Hence is it that in the history of capitalist production, the determination of what is a working day, presents itself as the result of a struggle, a struggle between collective capital, i.e., the class of capitalists, and collective labour, i.e., the working-class.70

It is not invoking the rights of man that will counter exploitation – including in the context of capitalist production, where it can only be somewhat contained – but a deliberated communal decision that derives authority only from itself, the assertion of a collective will and power which in the shape of a legal limitation erect a ‘social barrier’ to the contract principle. For ‘protection’ against ‘the serpent of their agonies’, the labourers must put their heads together, and, as a class, compel the passing of a law, an all-powerful social barrier that shall prevent the very workers from selling, by voluntary contract with capital, themselves and their families into slavery and death. In place of the pompous catalogue of the ‘inalienable rights of man’ comes the modest Magna Charta of a legally limited working-day, which shall make clear ‘when the time which the worker sells is ended, and when his own begins’.71

This contrast between an English Magna Carta establishing real albeit limited liberty, and the human rights touted by the French and American revolutions, advocating boundless but illusory freedoms, rings out as a strange echo of Burke’s opposition between the concrete ‘rights of Englishmen’ and the imaginary ‘rights of men’. And yet, as we have seen, Marx considered Burke as a mere ‘sycophant’ employed by the ‘English oligarchy’,72 and his own critique of the rights of man was diametrically opposed to Burke’s defence of privileges and heritage. Marx saw the destruction of inequality based on birth or tradition as the great merit of the development of a capitalist market and its corresponding legal system. From this angle, he was able to flaunt ‘the commodity’ as a ‘a born leveller’.73 In the Grundrisse, Marx decries the way in which the equality of the market relation ‘tricks democracy’.74 But this expression suggests that the ‘system of equality and freedom’ represented by human rights is criticised in the name of a democracy that will not tolerate abuse – in other words, in the name of another ‘system of equality and freedom’, 70 73

74

Ibid., ch. X, 1, p. 164. 71 Ibid., ch. X, 7, p. 195. 72 Ibid., ch. XXXI, p. 539. Ibid., ch. II and XV, pp. 60, 273. It is worth citing the second text: ‘But since capital is by nature a leveller, since it exacts in every sphere of production equality in the conditions of the exploitation of labour, the limitation by law of children’s labour, in one branch of industry, becomes the cause of its limitation in others.’ Here, Marx unwittingly recognises a truly emancipatory dimension of legal equality that he denounces as purely formal: the formal logic inherent in legal equality implies extension of limitations on working hours. Marx, Grundrisse, I, I, 24, pp. 248–249.

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one that is expressed in the very democratic equality which imposes a limit on the working day to counter the laws of the market. Marx does not elaborate further on the conceptual framework for this other ‘system of equality and freedom’ that provides the content of the communist idea. He only explains what communism rejects, as though a series of denials were enough to define it. A Hegelian bias is at work here: the teleological (and truly idealist) belief that the contradictions of reality, by and of themselves, produce their sublation into a superior form, such that if the contradictions of the capitalist mode of production were successfully proved, this would in itself produce a satisfactory definition of the communist concept. At the same time, under the banner of a ‘system of equality and liberty’, Marx critiques both the free market and rights liberalism, implicitly suggesting that Bentham (the utility principle) and Rousseau (democratic autonomy) can be seen as equivalent expressions of a common contractual logic. However, in reality, neither liberalism nor the idea of human rights are as uniform as Marx would have us believe; both fragment into divergent versions that carry different political and social consequences, and are incompatible with each other. In the detail of his analysis, Marx never succeeds in reducing this divergence. Though he claims to associate the rights of man only with the form of the laws of commerce, he cannot avoid recognising (even if through a verbal slip) the aspect of human rights that cannot be boiled down to market logic, and which in practice – though Marx strenuously denies it – runs through his critique of capitalist exploitation. Justice, Individual Liberty and Human Rights For some critics,75 the correlation thus suggested between the conflictladen egotism of capitalist society and individual rights would render the latter superfluous in a communist society. The argument runs as follows: legal guarantees on individual rights are necessary only where these rights are at risk of infringement. Since such infringements are the product of selfishness as engendered by class struggle, the advent of a truly communist society would render all legal protection of liberties useless. Bourgeois law would no longer exist in such a scenario, of course, but neither would any law at all or any legal or moral rules. But the argument stumbles on the fact that there is no good reason to believe that the elimination of class conflict in Marx’s view would in fact lead to the end 75

In particular, see Allen E. Buchanan, Marx and Justice. The Radical Critique of Liberalism, Totowa (NJ), Rowman & Littlefield, 1982, and Lukes, Marxism and Morality, p. 57.

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of all forms of conflict.76 As Will Kymlicka has summarised this point: ‘The “harmony of ends” solution to the circumstances of justice is, in fact, more of a communitarian ideal than a Marxian one.’77 We endorse Allen Wood’s demonstration that a misunderstanding of what ‘justice’ means for Marx undergirds this hypothesis of rights ‘evaporating’ in a communist society.78 When Marx slays the slogans of distributive justice – calling them ‘obsolete verbal rubbish’79 – his critique is not aimed primarily at the liberal idea of the impartial distribution of rights as John Stuart Mill might have conceived of it.80 His target is rather the early socialists’ unshakeable faith in ‘just remuneration’ for work and the ‘just distribution’ or ‘fair exchange’ of goods. Marx believes that there is no transactional justice by virtue of which the injustice of real exchanges could be criticised: the justice of any exchange or wage stems from its relationship to the existing mode of production. The capitalist wage system is ‘just’, since capitalists purchase labour in the context of a free contract, without dishonesty, and at the price that it is worth in real terms on the market.81 However, this justice does not prevent the exploitation of workers through excess working hours. Difficult as it may be for a reader of Rawls to comprehend, Marx does not conceive of exploitation as an injustice, and sees communism not as instituting ‘justice’ but rather as abolishing the enslaving effects of capitalist production through the collective organisation of labour. However, if we concede that a critique of the illusions of distributive justice (understood as the ‘fair sharing’ of the fruits of labour, for which criteria are incidentally lacking) is not the same thing as a rejection of equal distribution of rights, we may ask, as Wood explicitly suggests, whether ‘Marx might very well see a significant place for what liberal theorists choose to call “individual rights”, though of course Marx himself scorned that name’.82 Unfortunately, Wood does not expand on this hunch, which he mentions in passing in a book review and does not feature in his magnum opus on Marx; it rather seems to contradict his 76

77 78 79 80 81 82

Allen W. Wood, ‘Review of Marx and Justice. The Radical Critique of Liberalism by A. E. Buchanan’, Law and Philosophy, 3, 1, 1984, pp. 147–152, here p. 151, and Waldron, Nonsense, p. 134. Will Kymlicka, Contemporary Political Philosophy: An Introduction, Oxford, Oxford University Press, 2002, p. 171. Wood, ‘Review of Marx and Justice’, p. 150ff. Marx, Critique of the Gotha Program, p. 16. John Stuart Mill, Utilitarianism [1861], ed. George Sher, Indianapolis (IN), Hackett, 2001. Karl Marx, ‘Notes on Adolph Wagner’, in Terrell Carver (ed.), Later Political Writings, Cambridge, Cambridge University Press, 1996, p. 242. Wood, ‘Review of Marx and Justice’, p. 151.

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earlier writings, in fact.83 However, it is an avenue well worth exploring: looking at the two key stages of the critique of the rights of man in Marx’s œuvre – the historicity of rights, and the concept of an abstract legal form likely to contain an unequal social relation – we argue that these two positions do not add up to an intractable opposition to human rights. First, the argument about the historicity of rights constitutes an objection to belief in their eternal truth, but not to the legitimacy of their demands. Marx never intended his historicism as nihilist relativism: in his view, historicity carries its own necessity and rationality. The fact that a political project is historically conditioned, as is the communist project, does not invalidate it. The fact that human rights presuppose the historical circumstances of individual emancipation arising from technological development is not enough to invalidate the entire politics of human rights. Marx repeatedly described communism as the possibility open to each and every individual to pursue the ‘integral development’ of his individuality: why then should it be impossible to see in this the implementation of a ‘right of man’ consisting in the right of the individual to his or her own free personal development? Here, Marx’s opposition to human rights seems more rhetorical than genuine: much like Althusser’s condemnation of the ‘humanist’ concept of alienation, which he counters with the idea of ‘the new form of individual development for a new period of history . . . in which from now on each man will objectively have the choice, that is, the difficult task of becoming by himself what he is’.84 What is alienation, then, if not being prevented from ‘becoming what one is’, or to put it in less ‘idealist’ terms being separated from one’s own possibilities? Marx again takes up his argument against the abstraction of human rights in the Critique of the Gotha Program, where he explains that even the ‘equal right’ of a socialist state, which ‘recognizes no class distinctions’, is ‘an unequal right for unequal labor’, and therefore remains ‘a right of inequality, like every right’. Indeed, ‘right, by its very nature, can consist only in the application of an equal standard’; yet this equal standard is then applied to individuals whose capacity for work and ‘individual endowment’ is not equal; in order to treat unevenly skilled individuals equally, ‘right, instead of being equal, would have to be unequal’. This inherent defect of rights, Marx continues, can be overcome only in the 83

84

In an article published twelve years earlier than the review of Buchanan’s book, Wood had written: ‘And in the long run, of course, Marx believes that the end of class society will mean the end of the social need for the state mechanism and the juridical institutions within which concepts like “rights” and “justice” have their place’ (Allen W. Wood, ‘The Marxian Critique of Justice’, Philosophy and Public Affairs, 1, 3, 1972, pp. 244–282). Louis Althusser, Pour Marx [1965], Paris, Maspéro, 1980, p. 245.

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‘higher phase of communist society, after the enslaving subordination of the individual to the division of labour . . . has vanished’, ‘after the productive forces have also increased with the all-round (allseitig) development of the individual, and all the springs of co-operative wealth flow more abundantly – only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs!’85 This argument remains extremely allusive. Althusser sees in it confirmation that ‘the only Right is market-related and therefore bourgeois’ and that ‘the socialist mode of production will eliminate all right’.86 However, the original text is more ambiguous than this, leaving the question open as to whether the ‘horizon of bourgeois right’ is the same thing as the horizon of rights in their entirety. As for surpassing rights, it appears in this text less as an ‘elimination’ than the projected disappearance of rights through disuse: in the land of plenty of a society of abundance inhabited by men free of any alienation, there is no use for rights. However, this certainly does not mean that the principle of rights, of equal liberty, would be ‘superseded’ in the sense of being replaced or bettered by a different principle. Marx sets no other higher principle against the rights of man: he stops at the utopian vision of a state of abundance that would eliminate the need for rights. But a utopia of this sort is certainly not a counter to the real need for rights in a society that has not yet attained the conditions of abundance and the all-round development of individuals. Utopia provides no valid reason to reject human rights understood as a translation of individuals’ need for protection against political oppression and the denial of the basic conditions for their individual existence. Marx’s critique of the abstraction of human rights brings us to the conclusion that ‘political emancipation’ must ‘go forward’ to ‘social emancipation’.87 But this social emancipation as an extension of political emancipation must not eliminate its precedent. The social inadequacy of the rights of man does not make them politically null and void. In his political practice, Marx always believed that acquisition of a certain number of rights that counted as rights of man was a necessary condition for progress towards socialism. From his 1847 articles all the way to his Critique of the Gotha Program, the same political watchwords are constantly repeated: universal suffrage, the right to peaceful assembly and association, freedom of the press and public education uncensored by the state are all championed as rights which must be won in order for the 85 86 87

Marx, Critique of the Gotha Program, p. 19. Althusser, Sur la reproduction (1969), p. 91. Karl Marx, The Class Struggles in France, 1848–1850, in Selected Works, vol. I, p. 236.

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communist project to have any practical meaning.88 ‘As long as democracy has not been achieved’, wrote Engels in 1847, ‘thus long do Communists and democrats fight side by side, thus long are the interests of the democrats at the same time those of the Communists’.89 Marx’s ironic take on parliamentary illusions and the naive belief that universal suffrage is enough to transform all social relations should not blind us to the fact that democratic rights are still a necessary, if insufficient, condition for all social transformation in his view. Here we may cite the sarcastic remarks in The Critique of the Gotha Program regarding ‘freedom of conscience’. Marx laments that, by repeating this ‘old catchword’ of liberalism, one ‘chooses not to transgress the “bourgeois” level’ of ‘the toleration of all possible kinds of religious freedom of conscience’, while the Workers’ party ought to have declared that it was striving to free the conscience from the ‘witchery of religion’. But this does not challenge the right to freedom of conscience, since Marx also adds that ‘everyone should be able to attend his religious as well as his bodily needs without the police sticking their noses in’.90 This may seem overly aggressive,91 but the heart of the matter is that Marx seeks to keep the police away from free intellectual activity, and alongside this offers a virulent critique of statism. If this is the case, though, why does Marx obstinately refuse to grant any positive value to human rights? The answer to this question is no doubt that they include the right to property, that ‘terrible and perhaps unnecessary right’, as Beccaria called it, against which the Communist Manifesto called for ‘despotic inroads’.92 The rights of man as understood by Marx have the right to property at their very core. Their ‘formalism’ does not mean that they are indifferent to substance but rather that their abstraction is that of a determined substance – that of the capitalist ownership of the means of production – which remains present, like a palimpsest, in the shape taken by the abstraction. In this sense, there is an intimate symbiosis between the rights of man and market law: ‘the ground on which the law grows’ is that of ‘bourgeois property’.93 88

89

90 91 92 93

See Hermann Klenner, ‘Über Marxens Religions- und Rechtskritik’, Utopie Kreativ, 84, October 1997, pp. 5–10 and Andrea Maihofer, Das Recht bei Marx. Zur dialektischen Struktur von Gerechtigkeit, Menschenrechten und Recht, Baden-Baden, Nomos Verlag, 1992. Cited by Jacques Texier, Révolution et démocratie chez Marx et Engels, Paris, PUF, 1998, p. 38. As Texier remarks, Engels’ signature on the article does not prevent it from expressing Marx’s position as well. Marx, Critique of the Gotha Program. In the 1857 introduction (Grundrisse I, p. 104), Marx described in less virulent terms the ‘artistic, religious, practical and mental appropriation of this world’. Marx and Engels, Communist Manifesto, p. 81. Marx, The Class Struggles in France, Part IV.

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‘Bourgeois property’ can therefore not be fought against in the name of a justice system or a human right said to endorse it: the only bulwark against it is the democratic self-organisation of society, or ‘free exchange among individuals who are associated on the basis of common appropriation and control of the means of production’.94 Moreover, the goal is not blanket elimination of ‘all social and political inequality’ but only the inequalities arising from ‘class distinctions’.95 As André Tosel argues, the terms ‘freedom and slavery are more relevant’ to Marx’s critique of exploitation ‘than justice or injustice’.96 The famous passage in Capital describing the Communist transition from ‘the realm of necessity’ to the ‘realm of freedom’ should be read in this light. Marx sees this transition, which defines ‘the shortening of the working-day’ as a ‘basic prerequisite’, not as the implementation of an indeterminate theory of justice but rather the growing power of collective freedom. This would first manifest in the socialisation of labour that gives it rational structure, so that associated individuals would expend a minimum of energy ‘under conditions most favourable to, and worthy of, their human nature’. It would then unfold as the ‘development of human energy . . . [as] an end in itself’.97 Justice here is neither means nor end: the most important thing is the maximisation of individual and collective freedom through the democratic organisation of production designed to free up the time and capacities of all. The argument that violence is necessary thus takes on its true meaning: less a validation of oppression in societies past and present than an affirmation of the ‘right to revolution’ as the ‘only real “historical right”’.98 The rejection of human rights thus arises from a wish not to subordinate revolutionary action to a predefined idea of the rights that would constrain it. The limits of the ‘dictatorship of the proletariat’ must remain vague. However, this does not mean that the dictatorship must itself be boundless: Marx stresses that it requires the ‘really democratic institutions’ of the communal or federal republic, with local selfadministration and the destruction of state bureaucracy and civil service.99 The totalitarian project that may have informed twentiethcentury Marxism had to draw on other sources than Marx’s writings 94 96 97

98 99

95 Marx, Grundrisse I, I, 21, p. 181. Marx, Critique of the Gotha Program, p. 19. André Tosel, ‘Marx, la justice et sa production’, in Études sur Marx (et Engels). Vers un communisme de la finitude, Paris, Kimé, 1996, pp. 95–97. Marx, Capital, Book III, ch. XLVIII (our emphasis). It is striking that Marx’s refusal to believe in an eternal human nature does not prevent him from recognising the idea of human dignity – i.e. the idea of freedom which is at the heart of human rights. Engels, 1895 Introduction to Marx, The Class Struggles in France. Karl Marx, The Civil War in France, 1871, ch. V.

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themselves, even if it managed to find fodder in their contradictions, shortcomings or overinflated utopias.100 The fact remains that affirming the right to revolution, without or against human rights, revives the threat born of the right to revolution based on human rights: that of Terror led in the name of emancipation, or what Robespierre – yielding to the headiness of an impossible paradox – had called the ‘despotism of liberty’.101 Just as the ‘dialectical’ exaltation of rationality on the ‘wrong side’ of history comes close to spilling over into brutal cynicism in some texts, the insistence on the dictatorial powers with which democracy must be endowed is sometimes perilously close to a blank cheque for the exercise of terror. Lenin only had to take a few passages out of context to use quotes from Marx and Engels to justify the suppression of democracy. It is certainly now possible to refute Lenin’s use of these texts by bringing out the ‘fundamentally democratic’ nature of Marx’s thought, which Jacques Texier neatly sums up with the phrase ‘there can be no socialisation of production without socialisation of politics’.102 In Marx’s view, communism extends democracy to all spheres of social existence, including the organisation of a workplace: it is democratic deliberation that must determine the social distribution of labour, its organisation, its goals and its length. This total democracy, which subordinates production to the deliberate control of associated individuals, is one without legal guarantees: neither individual liberties nor the power exercised collectively by individuals qualify as rights. Marx’s reference points are not those of what Jürgen Habermas calls the ‘co-originality of popular sovereignty and human rights’;103 rather, they start from the primacy of popular sovereignty over the rights of man, such that democracy must not be formulated in terms of rights that would constrain its implementation. The fact remains that Marx mounts his attack on the rights of man in the name of the collective power of free individuals. The break with the humanism of ‘species’ and community advocated in On the Jewish Question led Marx to associate communist society with the ideal of ‘integral development’ of individuals. The program in the Communist 100

101 102 103

It is useful here to refer to Claude Lefort, La Complication. Retour sur le communisme, Paris, Fayard, 1999. The question of the relationship between Marx’s thought and totalitarianism is beyond the scope of this chapter: suffice to say that if Marx’s writings contain traces of a totalitarian explosive, the detonator was put in place only by Lenin. See on this Lefort, ‘La Terreur révolutionnaire’, in Essais sur le politique. Texier, Révolution et démocratie chez Marx et Engels, pp. 13, 23, 56, 92. Jürgen Habermas, ‘Constitutional democracy: a paradoxical union of contradictory principles?’, Political Theory, 29, 6, 2001, pp. 766–781. Also Habermas L’Intégration républicaine (1996), trans. R. Rochlitz, Paris, Fayard, 1998, pp. 279–286. See also the analyses of Jean-Marc Ferry, La République crépusculaire, Paris, Cerf, 2010, p. 263ff.

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Manifesto is for a ‘conquest of democracy’ that will supplant class antagonism with an ‘association, in which the free development of each is the condition for the free development of all’. The German Ideology had already stressed that only the abolition of class and of the division of labour would leave room for the ‘development of individuals into full individuals’, in other words the existence of ‘individuals as individuals’: It follows from all we have been saying up till now that the communal relationship into which the individuals of a class entered (. . .) was always (. . .) a relationship in which they participated not as individuals but as members of a class. With the community of revolutionary proletarians, on the other hand, who take their conditions of existence and those of all members of society under their control, it is just the reverse; it is as individuals that the individuals participate in it.104

Contrary to Wood’s theory,105 Marx is clearly an ‘individualist in the normative sense’.106 If his ‘communist individualism’107 does not coalesce into a theory of rights, this is because his goal is not equity of exchange but the effectiveness of individual and collective freedom, to be achieved through a new ‘organisation of production’ intended to liberate the ‘power of all’.108 In light of this ideal of liberty, exploitation becomes an inadmissible servitude as soon as technological and social development remove the need for it that had been warranted by earlier conditions of precarity. It is not the falsely eternal norm of a social justice emptied of its substance that motivates the fight against exploitation, but the historical possibility of a ‘higher’ – that is to say freer – ‘form of life’.109 Yet we may justifiably ask whether Marx’s rejection of a theory of social justice, though it certainly has its own coherence and strength, necessarily implies rejection of a theory of rights, and human rights in particular. For human rights are not a theory of distributive justice: They are rather, if only in the form of their Declaration, an affirmation of liberty. By definition, liberty cannot be ‘granted’ as a blessing, but can only be expressed in its full dignity by affirming itself as a right. It is in the form of rights that liberty affirms itself and claims its dues. According to several of Marx’s works, this form is ‘illusory’. The German Ideology categorically maintains that political and legal 104 105

106 107 108 109

Marx and Engels, The German Ideology, p. 85. Wood writes: ‘It still seems to me almost as mistaken to say that Marx’s critique of capitalism is founded on a “principle of freedom” as it is to say that it is founded on a “principle of justice”’ (‘The Marxian Critique of Justice’, p. 281). This would be to forget that Marx explicitly takes the free development of individuality as an ‘end in itself’. Elster, An Introduction to Karl Marx, p. 25. Voir Ingo Pies and Martin Leschke (eds.), Karl Marx’ kommunistischer Individualismus, Tübingen, Mohr Siebeck, 2005. Tosel, ‘Marx, la justice et sa production’, pp. 95–97. Marx, The Civil War in France.

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campaigns ‘are merely the illusory forms in which the real struggles of the different classes are fought’.110 Yet it remains difficult to see why these forms should be called ‘ideological’ or ‘imaginary’. If they are the solution or environment in which social conflicts must play out, they are less an ‘ideological conception’ than an arena or ground in which opposing ideologies of unequal value confront each other: and if, as Marx suggests, they are an ‘expression’ of economic and social relations, they are then likely to hold truth in the vein of this ‘expression’. As Engels would recognise in his late work on Feuerbach, ‘if, therefore, bourgeois legal rules merely express the economic life conditions of society in legal form, then they can do so well or ill according to circumstances’.111 This amounts to a recognition, against the original spirit of the doctrine, that forms of rights are not merely a form of ideology, but may be the legitimate expression of an objective content of which they are the necessary incarnation. If the socialist movement ‘must formulate its claims in the form of claims to rights’,112 this is clearly because claims to rights are the only possible way of affirming liberty, or indeed the individual emancipation that is the goal of communism in Marx’s view. In all of his critiques of human rights, Marx passes over Article 2 of the 1789 Declaration which states four ‘natural and imprescriptible rights of man’: ‘liberty, property, security and resistance to oppression’. Since Marx does not take a theory of social justice as his foundation – and neither does the Declaration – does his critique not in fact amount to an argument against property and security in the name of liberty and resistance to oppression? If exploitation cannot in Marx’s view be defined by injustice, it must be defined above all by oppression, understood stricto sensu as a ‘crushing’ (or ‘flattening under a weight’) of individuals’ life and liberty. But if this is so, the struggle against exploitation – which Marx maintains does not fall under the banner of ‘justice’ – can only take root in the right to ‘resist oppression’, by which life and liberty safeguard their rights. Is the campaign for reduced working hours not the best example of a form of resistance to oppression which, with no recourse to social justice, overlaps with the affirmation of the right to life and liberty?

* Marx’s refusal to embrace any theory of justice may have served as a pretext for Leninist and later Stalinist cynicism; it could just as well 110 111 112

Marx and Engels, The German Ideology, p. 54. Friedrich Engels, Ludwig Feuerbach and the End of Classical German Philosophy [1886], Progress Publishers, 1946, ch. 4. Friedrich Engels and Karl Kautsky, ‘Socialisme de juristes’, Neue Zeit, 1887, 2, pp. 49–51.

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furnish an argument for neoliberal cynicism following the defeat of ‘real socialism’. Steering a course between these dangers, we argue that the emancipatory intent behind Marx’s communism can only be maintained without utopianism if reformulated in terms of a theory of rights, and one that gives proper consideration to the legal conditions for the extension of democracy. Democratic rights must necessarily be understood as those human rights that make up the conditions for authentically democratic institutions and practices. Likewise, Marx’s reasonable hopes – for recognition of a shared democratic asset in the form of public goods, or mitigation of the class gap through social redistribution policies – can only be realised by implementing rights. If these rights do not in themselves put an end to domination, they put limits on it at the very least. Though they call for a social practice of democracy that they cannot produce by themselves, they are nonetheless the conditions for the authentically democratic nature of this practice, which in turn gives meaning to their institution. Despite Marx’s own protestations, then, we argue that the emancipatory project underlying his thought can be realigned with the tradition of human rights, of which his oeuvre is in part a dialectical development. As Lefort demonstrated, Marx remained in thrall to an ideological version of human rights: he did not see that their ultimate un-foundedness – their indeterminacy and undecidability – could throw social norms into question and feed into the struggle for emancipation. If the terms of the Declaration of 1789 soon went beyond the intentions of their authors and were called into service by campaigns for women’s rights, workers’ rights or the rights of colonised peoples, this is because a politics of human rights touches on the ‘limits of democracy’, and cannot therefore stop at mere protection of the legal guarantees of civil and political rights.113 In this sense, Lukes’s argument that ‘Marxism inherited an overly narrow conception of rights and an overly narrow understanding of the circumstances which make them necessary’114 remains valid. But we suggest that Marx’s theory, though it does not present itself as a theory of the rights of man, carries at its core the material for appeals against any infringement of human rights.115 The scenario that is playing out today in claims for human rights – especially in transnational defence of the liberty of real individuals – is thus able to draw on the Marxist critique of capitalist domination. And this critique in turn claims as its basis the

113 114

Balibar, ‘Droits de l’homme et droits du citoyen’, p. 129 and ‘Qu’est ce qu’une politique des droits de l’homme ?’, in Les Frontières de la démocratie, p. 244. Lukes, Marxism and Morality, p. 66. 115 Ibid., p. 66.

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real affirmation of the right of human beings, as individuals, to extend their liberty as an absolute end in itself. Several current champions of a ‘politics of human rights’ are also now heavily influenced by Marx’s legacy. Etienne Balibar’s work, which extends rather than deconstructs Marxist thought, is emblematic here: ‘Marx is fully in the lineage of a politics of human rights when . . . he defines the “expropriation of the expropriators” as the reestablishment of individual property on the basis of the “socialisation” historically achieved by the capitalist mode of production.’116 This brings us back to Steven Lukes’s question: ‘Can a Marxist Believe in Human Rights?’ If a ‘Marxist’ is someone who follows Marx’s writings with literalist fervour, the answer undoubtedly remains ‘no’. If on the other hand a Marxist means someone who – while recognising that Marxist theories are ‘shot through with errors of detail, even have basic conceptual flaws, yet remain immensely fertile in [their] overall conception’117 – can ‘trace the ancestry of his most important beliefs back to Marx’,118 the answer then becomes: Yes, he can. And indeed he should. Hence the paradox that Marx’s influence is ubiquitous in contemporary critiques of human rights. On the Jewish Question is frequently credited, by right- and left-wing theorists alike, with giving the first hints of ideas that would emerge fully later. We have already demonstrated the deceptive nature of this reference in conservative hands: removed from the critical aims that give them their true meaning, Marx’s formulas are reduced to a denunciation of individualism. Marx’s real aim was to expose the enslaving effects of the inegalitarian dynamics of capital, against which he set the ‘all-round’ development of the individual. For the champions of radical democracy, on the other hand, a politics of emancipation must not stop at the least convincing articulations of the Marxist critique of human rights: it is no coincidence that Marx’s foremost heirs today fully embrace the language of rights.

116

117

Balibar, Les Frontières de la démocratie, p. 257. For a notion of human rights that explores their political value from a Marxist-inspired angle, see also Jean Robelin, La Petite fabrique du droit, Paris, Kimé, 1994, pp. 185–203. Elster, An Introduction to Karl Marx, p. 3. 118 Ibid., p. 4.

6

Human Rights against Politics A Nationalist Critique: Carl Schmitt

Our overview of critiques of human rights might appear to be complete with the four areas covered so far: – The conservative concern for jurisprudentialist historicism (Burke) gives considerable weight to liberal ideas about division of powers and the spontaneous order of civil society, but rejects the democratic absolutism of rights. It is not the moral or natural limitations of power that give rise to societal inequality. No state can be founded on absolute rights on which any person may call at any moment to declare himself in revolt. – The progressivist impetus of utilitarianism, whether liberal (Bentham) or social (Comte), aligns with the traditionalist argument in interpreting the absolutism of human rights as a threat to social order. Demands for equality and liberty are self-destructive if they are not defined within a relationship determined by law. The right to property is incompatible with the idea of equal rights taken in its absolute sense. Yet unlike jurisprudentialism, which sees the rights of the establishment and history as natural rights, utilitarianism sees ‘natural rights’ as meaningless, and denies that any valid source for rights can be found in the past. In the utilitarian view, a right is merely the consequence of a law, and collective utility is the only norm worthy of recognition by the legislator. To reject the absolute nature of rights means refusing to legislate for the future, thus opening up the potential for improvements from adjusting laws to changes in society and the state of knowledge. Bentham founds his idea of democracy as the regime offering the greatest happiness to the greatest number on this collective utility, understood as the sum of individual utilities. The tradition inspired by Comte redefines equality according to a principle of social integration. – The reactionary, or rather anti-modern, stance of radical counterrevolutionary thinkers (Bonald and Maistre) denounces the disjuncture of theology from politics. Such authors oppose both liberalism and democracy, advocating rule by a figurehead who enjoys absolute authority 187

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and incarnates divine transcendence. The divine law of hierarchy stands in opposition not only to equal liberties but also to the very idea of any right pertaining to the individual as such. – The revolutionary project of communist emancipation (Marx) breaks with the three previous critiques in its accusation that human rights enshrine the right to property; it is in this regard the direct antithesis of the argument found in Bonald, Burke and Bentham that property must be defended against the rights of man which threaten its foundations. Marx rejects human rights not because democracy is impossible or limited, but rather in view of a ‘total democracy’ utopia: the distinction between man and the citizen at their core, which also undergirds the separation of civil society from the state, means that society cannot as an integral whole be based on democratic self-organisation. The critique of human rights here does not attack the limitations of liberty and equality, or the tensions between the two which prevent their harmonious coexistence. Rather, it arises from a drive to achieve equal liberties in a radical sense, and a refusal to curb their exercise by legal conditions that would determine their meaning a priori. The maze of critiques of human rights might appear to be exhaustively waymarked along these four main paths, which give rise to the transformations and shifting permutations of the arguments covered more or less extensively (without necessarily coinciding) by various authors. The full range of nuances inherent in the subject thus emerge according to the author’s position in different fields of philosophy and politics: theology or atheism, political religion or secularism, jusnaturalism or historicism, hierarchy or equality, authoritarianism or liberalism, the principle of sovereignty or constitutionalism, market liberalism or rights liberalism, ‘happiness liberalism’ or the liberalism of freedom,1 antidemocratic or democratic liberalism, libertarianism or social rights, liberal or radical democracy and social justice or collective selforganisation. This wealth of perspectives gives rise to some complex amalgams. For example, Comte’s critique of human rights marries a blanket rejection of theology (since God is an empty idea and the concept of rights merely its superfluous residue) with the proposal for a ‘religion of Humanity’, based on the necessarily religious structure of society. Jusnaturalism may be organicist and merge with a type of historicism, as it does in Burke, or it may refer to the rights of the individual understood outside historical circumstance. Liberal thought may veer between universalism and 1

A distinction drawn by Catherine Audard, Qu’est ce que le libéralisme?, Paris, Gallimard, 2009, p. 150.

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historicism, fluctuate between simple pluralism and real individualism and serve up a range of different blends of order and liberty, constitution and utility, market and democracy and corporation and individual rights. Though he affirms the principle of rights against utilitarianism, Benjamin Constant does not take this to the heights of a republicanism based on the rights of man, which he sees as a potential source of terror. Republicanism, meanwhile, may see human rights as the condition for the social contract and citizen rights – or instead subordinate the universal rights of man to the absolute and particular law of the ‘general will’ in the name of the principle of sovereignty. There is no need to examine the detail of every shade on this spectrum that recasts a number of common arguments (unevenly distributed, since not all are acceptable to different positions) in contrasting meanings and aims. These recurring arguments include the danger of disconnecting rights from duties – a warning we find even in Engels;2 the concern (not shared by Marx) that a dynamic of boundless rights makes social authority impossible; the internal contradictions of human rights, since liberty and equality cannot be adequately reconciled; and their incompatibility with concerns for the common good or even with the conditions for producing a political community. The meaning behind some of these arguments, then, completes a full 360-degree turn. We saw that in Bentham’s work an originally conservative critique of the ‘absolutism’ of human rights is drawn into the service of human beings’ freedom to implement self-government and therefore to overturn rules they have previously adopted. In fact, this circulation of arguments between radically different philosophical surroundings also includes defences of human rights. Marcel Gauchet has demonstrated that most of the ‘classical’ critiques of human rights declarations issued initially from the very revolutionaries who had in part written them in the first place, and were therefore sensitive to the internal tensions and interpretive ambiguities of the principles they advocated.3 It is without a doubt this man/citizen distinction that gives rise to the widest divergences in meaning ascribed to what looks at first glance like a single, unified critical argument. The target depends on whether the idea of human rights is being attacked for excessive association or dissociation of human rights from citizen rights, and whether it conceives of 2 3

Friedrich Engels, Critique du programme d’Erfurt (1891), trans. E. Bottigelli (1949), Paris, Editions Sociales, 1972, p. 99. Marcel Gauchet, La Révolution des droits de l’homme, Paris, Gallimard, 1989, especially pp. 43–51, 60–64, 73–74, 90–95, 111–113, 119–121, 194–196. For a wider angle on these tensions, see Jean-François Kervégan, ‘Les droits de l’homme’ in Denis Kambouchner (ed.), Notions de philosophie, II, Paris, Gallimard, ‘Folio’, 1995, pp. 637–696.

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citizen rights as necessarily particular (national) rights or as universal rights. The most reactionary vein of thought refuses to recognise any rights other than those of the citizen, understood (following Bodin) as a ‘free subject’, in other words endowed with limited rights and dependent on a sovereign power. Liberal conservatism, meanwhile, seeks to depoliticise the universal rights of man reduced to pure moral limits, while also refusing to grant universal scope to citizen rights, which it sees as being always shaped in an irreducibly specific way by their context. Hence why some liberals posit a dichotomy between the rights of man and democratic sovereignty.4 When radical democracy theorists attack human rights, indeed, it is in the name of the inseparability of ‘man’ and the ‘citizen’, whose rights are equally universal. Their thesis is that the divorce of man from the citizen must not tempt us to curb democratic autonomy or to compromise the universality of citizen rights on the pretext of their subordination to the intangible rights of the private individual. However, an ambiguity does arise here: popular sovereignty may be interpreted as national sovereignty, as endorsed by Article 3 of the Declaration of the Rights of Man. The people-nation then subsumes the man-citizen and it becomes possible to invoke a nationalist idea of democracy against human rights, allowing democracy to be reconceived within traditionalist arguments. The ideal of collective autonomy is identified with that of a national community following the law of its general will and founded on a ‘republican’ concept that finds support in the works of Rousseau. Carl Schmitt is the theorist who brought the greatest coherence and radicalism to this line of enquiry. He did so above all in a series of works from 1923 to 1928 which, in forcing the issue of the choice between democracy and liberalism as opposing ideas, provided the outlines of a political project that should not be reduced to the Nazi sympathies Schmitt drew from it.5 The glorification in these texts of an identitybased version of democratic sovereignty, opposed to the ‘bourgeois 4

5

See Emile Faguet, ‘Une déclaration des Droits de l’homme ne doit pas contenir une déclaration de la souveraineté du peuple’, La Politique comparée de Montesquieu, Rousseau et Voltaire, Paris, Société française d’imprimerie et de librairie, 1902, p. 287. Aside from a number of articles, the main works here are Die geistesgeschichtliche Lage des heutigen Parlementarismus (1923, expanded in 1926), translated by Ellen Kennedy as The Crisis of Parliamentary Democracy, Cambridge (MA) and London, 1985 and Constitutional Theory (1928), trans. Jeffrey Seitzer, Durham (NC), Duke University Press, 2008. We leave aside later texts, including the important Legality and Legitimacy of 1932 (trans. Jeffrey Seitzer, Durham [NC], Duke University Press, 2004) on the grounds that they evince a new phase in Schmitt’s thought, now marked by his diagnosis of a ‘turn towards the total state’ and overdetermined by the strategic considerations of the Weimar Republic crisis.

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Rechtsstaat’, is certainly not the ‘key’ to Schmitt’s thought: it represents only an ambiguous expression and passing phase of his philosophy, that of a ‘strategic occupation’ of democratic positions by a political project shaped around a political theology of hostility.6 But this ‘phase’ nonetheless warrants consideration for its undeniable theoretical efficacy, as witnessed by Schmitt’s widespread readership today. Its strength lies in the capacity for exploitation of its own ambiguity, blurring the differences between the broad types of human rights critique seen over the course of the nineteenth century. Schmitt rejects human rights in the name of a counterrevolutionary concept of the political domain that adopts the democratic idea. His advocacy of the dignity of the political against its dilution in law, economics and culture makes antimodern ideas look like a defence of democracy, opposing the communitarian conditions of self-government to the ‘liberal’ proliferation of rights. Our aim in this chapter is modest: we do not set out to add a new interpretation of Schmitt’s thought as a whole or its different ‘eras’ (pre1933, 1933–45, post-1945) to the existing literature, or to address the question of acceptable ‘uses of Schmitt’ despite the close link between his thought and his Nazi politics.7 We merely draw attention to the two faces of Schmitt’s Nazism, which arose in tandem from the coherence of an ongoing struggle against the liberalism of the ‘bourgeois rule of law’ and an opportunist rallying to the victor. Once the Nazis had taken power and become the only viable agents of a struggle for national homogeneity, 6

7

See Carl Schmitt, Political Theology (1922), trans. George Schwab, Chicago (IL), University of Chicago Press, 1985; Roman Catholicism and Political Form (1923) trans. G. L. Ulmen, Westport (CT) and London, Greenwood Press, 1996; The Concept of the Political (1927–1932), trans. George Schwab, Chicago (IL), University of Chicago Press, 2007. See also Leo Strauss, ‘Notes on Carl Schmitt, The Concept of the Political (1932)’, translated in the seminal work of Heinrich Meier, Carl Schmitt and Léo Strauss: The Hidden Dialogue (1988), trans. J. Harvey Lomax, foreword by Joseph Cropsey, Chicago (IL), University of Chicago Press, 1995. Since the bibliography on Schmitt is vast, we refer for a chronological overview of his thought to Tristan Storme, Carl Schmitt et le marcionisme, Paris, Cerf, 2008, and Reinhard Mehring, Carl Schmitt: A Biography, trans. Daniel Steuer, Cambridge, Polity Press, 2014. On Schmitt’s Nazi connections, an initial summary can be found in the journals Cités (2003/2 and 2004/1) and Le Débat (2004/4) or in the English editions of Schmitt’s two Nazi legal essays of 1933 and 1934: State, Movement, People (trans. Simona Draghici, Washington, DC, Plutarch Press, 2001) and On the Three Types of Juristic Thought (trans. Joseph Bendersky, Westport (CT), Praeger, 2004). On the question of potential uses of Schmitt’s thought, see Jacob Taubes, En divergent accord. A propos de Carl Schmitt (1987), trans. Philippe Ivernel, Paris, Rivages, 2003; Etienne Balibar’s preface to Carl Schmitt, Le Léviathan dans la doctrine de l’Etat de Thomas Hobbes (1938), trans. Denis Trierweiler, Paris, Seuil, 2002; Jean-François Kervégan, Que faire de Carl Schmitt?, Paris, Gallimard, 2011. For a rejection of any use of Schmitt at all, see Olivier Jouanjan, ‘Justifier l’injustifiable’, Astérion 4/2006, http://asterion.revues.org/643, ‘Et si l’on ne faisait rien de Carl Schmitt?’, Philosophiques, 2, 2012, pp. 475–482.

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Schmitt marshalled all his intellectual powers in the service of this ‘German revolution’, which he hoped would solidify into a ‘concrete’ legal order. While he did not wish the ‘total state’ to turn into permanent revolution – earning him the hostility of a wing of the Nazi apparatus which found him too statist and conservative – he endorsed Nazi violence against external and internal enemies (communist and Jewish) that it had vowed to confront. Schmitt, moreover, never repented of his antiSemitism.8 At the turn of the 1940s, Schmitt’s thought underwent a transformation which, departing from a defence of the principle of sovereignty, dismissed the state in favor of a vision of the world carved up into neoimperial ‘great spaces’ – a vision Schmitt would explore further after 1945. We do not discuss these changes here, since they left intact both Schmitt’s earlier rejection of the imperialism of human rights9 and the theologico-political undergirding of a philosophy defining the ‘political mission’ by the notion of the katechon (that which – or he who – delays the advent of the Antichrist): each era, in other words, must identify a political framework to slow the inexorable march of time.10 From first to last, Schmitt’s output is run through with the conviction that the logic of liberal modernity is to accelerate a headlong rush towards apocalypse, signalled by loss of the sense of hostility as a metaphysical condition for the gravity of human existence, the correlative dissolution of authority and decisional power, the death of awareness of transcendence amid the illusory utopia of a society pacified only by the effects of technical progress, normative organisation of law and the invisible hand of the market.11 Facing the threat of a descent into the futility of 8

9

10

11

Schmitt’s postwar notebooks (Glossarium. Aufzeichnungen der Jahre 1947-1951, Berlin, Duncker & Humblot, 1991) are rife with anti-Semitic statements. In an interview published in 1983, he unflinchingly declares that the proceedings of the colloquium he had organised in 1936 against ‘Jewish influence in legal science’ – and which he had himself closed with a particularly abject and grotesque speech – still held their ‘own validity’ (quoted by Dominique Séglard, Les Trois types de pensée juridique, See note 18 p. 203. In a late work of 1978, ‘ The Legal World Revolution’ (English version in Telos, 72, 1987, pp. 73–89), Schmitt restates his analyses already given in The Concept of the Political, pp. 98–99. Schmitt lays out this notion borrowed from St Paul (2 Thess. 2, 6–7) in The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (1950), trans. G. L. Ulmen, New York (NY), Telos Press, 2003, and in ‘Three Possibilities for a Christian Conception of History’ (1950), trans. Mario Wenning, Telos, 147, 2009, pp. 167–170. Schmitt writes in 1948: ‘my theory of the katechon [. . .] dates from 1932. In each century, I believe, there is a concrete vehicle for this force, and the challenge is to find it’ (Glossarium, p. 80, our translation from the French passage in the original). See Tristan Storme, Carl Schmitt et le marcionisme, pp. 194–229. As observed by Heinrich Meier (Carl Schmitt and Léo Strauss: The Hidden Dialogue, p. 75), Schmitt’s horror at the self-immanence of the modern world as a form of triumph for the

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a depoliticised humanity, the texts of the 1920s we exclusively deal with here wielded the idea of democracy as a sort of totem that might reawaken a sense, if not of the sacred, then at least of political authenticity.12 The fact that Schmitt thus merely adopted the mask of democracy is more or less undeniable; yet this mask took on a life of its own, which has not yet been explored to its logical conclusion. The Democratic Totem Recast in Counter-Revolutionary Colours Schmitt is first and foremost an heir to the radical vein of Catholic counter-revolutionism. This is amply borne out by his early works, which present the thought of Maistre and Bonald – the only coherent and clear-minded philosophy available in Schmitt’s view – as infinitely superior to the sham traditionalism of ‘political Romanticism’ and the parliamentary ‘liberalism’ of Burke, for instance.13 Schmitt deliberately places himself in the theologico-political tradition founded by Maistre and radicalised by Donoso Cortès, who identifies all political stances by their position in an eventual choice between dictatorship and anarchy. This is a virtual prospect: immediate historical reality admits all sorts of compromises, and does not always look like a stark choice between anarchy and autocracy. However, the choice remains a constitutive element of the political domain, since any action assumes the possibility of circumstances being reduced to this ultimate alternative, in the event of which it must be prepared to decide between the options. In 1927 Schmitt expounded further this idea that politics always unfolds amidst the future prospect of a possibility of war, and that this possibility determines the political domain as such, including in peacetime. In practice, the only meaningful compromises are those made in full awareness of the opposite poles that ultimately structure political existence: above all the compromise between, on the one hand, recognition of the transcendence of decision and political authority over legal formalism,

12

13

Antichrist is expressed as much as in the 1916 pamphlet Theodor Daüblers ‘Nordlicht’ as in Schmitt’s Political Theology II of 1970. The idea that popular sovereignty is tantamount to a ‘totemic mask’ is not Schmitt’s but that of his chief theoretical sparring partner Hans Kelsen, The Essence and Value of Democracy (1929), trans. Brian Graf, ed. Nadia Urbinati and Carlo Invernizzi Accetti, Lanham (MD), Rowman & Littlefield, 2013, p. 92; see Catherine Colliot-Thélène, ‘Les masques de la souveraineté’, Jus Politicum 8/2012, http://juspoliticum.com/Les-masquesde-la-souverainete.html. Diverted from the meaning given it by Kelsen, the expression may also describe Schmitt’s argument. Carl Schmitt, Political Romanticism (1919, 1925), trans. Guy Oakes, New Brunswick (NJ), Transaction Publishers, 2011, pp. 118–128; 49–157; Political Theology, p. 53ff; The Crisis of Parliamentary Democracy, pp. 86 and 88.

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and on the other the liberal illusion that the exceptional power of the sovereign can be dissolved into legal calculability and the economic selfregulation of social life. Even though Schmitt’s political theology adopts most of Maistre and Bonald’s arguments, starting with the thesis that sovereignty dominates the social domain and that politics is irreducible to law, his adoption of a definition of the political domain unknown to Catholic counterrevolutionism constitutes a major rupture. Legitimism based on the ideal of civil peace gives way in his thought to decisionism based on the fact of hostility.14 Ordination of the polity around the common good, through which monarchist traditionalism had remained bound to Thomism, is now replaced by the distinction between friend and foe, the ‘criterion’ of politics which dissolves the common good in the need for validation of existence through willingness to self-sacrifice and the gravity of the power to kill.15 In this argument, the opposition between monarchy and democracy loses the structuring capacity it had held for Maistre and Bonald. For these authors, democracy had only a negative definition, as the lack of a legitimate hierarchy – in other words the disorder of a contentious regime in which power is always divided and unstable. This is why Bonald held that war alone could furnish democracies with a basis for unity.16 Democracy in this view was the regime united not by a common good and its management by powers devoted to public service, but instead by the imperatives of fighting an enemy, a threat that meant the subordination of private interests must be subordinated to the needs of public safety. What Bonald had presented as a critique of democracy Schmitt took as a sign that democracy is in fact consistent with the meaning of a truly political existence. Unlike the liberal ideal of subordinating politics to law, the ideal of popular sovereignty maintains the principle of sovereignty as a decision-making power irreducible to law or the spontaneous alignment of private interests. Where popular sovereignty comes down in practice to 14

15 16

Though on occasion Maistre comes close to decisionism and sanctification of war, he expects Catholicism to achieve a ‘fusion of nations’. See Théodore Paléologue, Sous l’œil du Grand Inquisiteur. Carl Schmitt et l’héritage de la théologie politique, Paris, Cerf, 2004, pp. 30–35, and Jean-Yves Pranchère, ‘The Negative of the Enlightenment, the Positive of Order, and the Impossible Positivity of History’, in Carolina Armenteros and Richard Lebrun (eds.), Joseph de Maistre and the Legacy of Enlightenment, Oxford, Voltaire Foundation, 2011, pp. 45–64. Note that in 1934, in Three Types of Juristic Thought, Schmitt would replace the decisionism of his 1920s works with a philosophy of ‘concrete order’ in alignment with the new Nazi ‘order’. Schmitt, The Concept of the Political, pp. 46–48, 71ff. Bonald, Théorie du pouvoir, Part I, book V, ch. V: ‘Pourquoi les sociétés non constituées sont toujours guerrières’, Œuvres complètes, Paris, Migne, 1859–1864, vol. I, p. 360ff.

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domination by elites who use representative bodies to wield power, as shown in the wake of the counter-revolutionaries by anti-democratic liberals such as Vilfredo Pareto, Gaetano Mosca or socialist-leaning political writers such as Robert Michels,17 this is not valid grounds to reject the impetus offered by the political idea of democracy. Shaping popular will means monopolising the resources of education, information and influence,18 which might be described as elite domination. But the only relevant question is whether this domination is an instrumentalisation of the political domain by veiled private interests, or rather means that elites are able to coincide with and help perpetuate popular will, in which case their power is that of the demos. Schmitt is thus able to note the impossibility of restoring traditional hierarchies whilst at the same time ploughing the themes of the counterrevolutionary critique of individualism back into a defence of democracy as a regime of political production of popular will. He argues that democracy is not the regime of equal rights in the sense of human rights, since it implies only the equality of citizens qua citizens – hence why its content may just as well be liberal, socialist or reactionary. Democracy is the regime in which law expresses the general will of the people. It requires this general will, which its purpose is to produce in order to constitute the unity of the people. The equality it assumes is not that of individual liberties but that of belonging and playing a part in a shared community, in other words in a shared political identity. Democracy against Liberalism With the lifespan of traditional hierarchical societies now at an end, Schmitt diagnoses liberal neutralisation of the political domain as the chief danger for bourgeois societies. The desire to affirm sovereignty against rights liberalism leads him to explore the possibility of an antiliberal enunciation of democratic sovereignty, with the aim of preserving the essence of the political domain at the very heart of the democratic sphere. Schmitt therefore stresses the radical difference, observed by many nineteenth-century liberals, between liberalism (a limitation of state power by law, legal rather than popular sovereignty and 17

18

Schmitt refers to these authors in The Crisis of Parliamentary Democracy, pp. 18, 66. Michels would later identify with Fascism, while Mosca would attempt to rehabilitate liberal democracy. See Schmitt, The Crisis of Parliamentary Democracy, pp. 34–36, and the radio interview of 1 February 1933 cited by Dominique Séglard in the French edition of Three Types of Juristic Thought (Les Trois types de pensée juridique, trans. M. Köller and D. Séglard, Paris, PUF, 1995, p. 23).

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parliamentary representation of the people) and democracy understood as the submission of a people to its own law.19 The core of democracy, indeed, lies in affirming that the people hold not only legislative but also constituent power, as Sieyès had proclaimed in his pamphlet Qu’est-ce que le tiers-état?20 Parliamentarianism, the concrete translation of liberalism, is in essence foreign to democracy in Schmitt’s view: it rests on the idea not of popular sovereignty but of government by reason. Parliamentarianism is defined above all by the habit of holding ‘parliaments’, or in the etymological sense discussions; its basis is the quest for truth through public deliberation. It is not even linked to representation in essence. The connection between parliamentarianism and representation rests on the fact that in the context of the fight against absolute monarchy, parliament appeared to represent the interests of the social ranks in the face of the monarchy, who for his part stood for the unity of state or nation. This idea of representation was absolutely not about representing the will of a sovereign people; rather, it was about checking state capacity through the separation of powers. Parliament was not meant to fulfil the mandate of an already existing popular will, but rather to provide the arena in which public reason would take shape through deliberation, in which the diversity of parties was merely the diversity of arguments.21 Schmitt sees a crisis of parliamentarianism behind the effect of the reign of parties. On the one hand, party discipline does away with the ‘representative principle’ (the idea that a deputy represents the people as a whole) as well as parliamentary representation properly understood. The ‘conflict of opinions’ described by Burke and Guizot, on the other,

19

20

21

Schmitt, The Crisis of Parliamentary Democracy, p. 105; ‘The Liberal Rule of Law’ (‘Der bürgerliche Rechtsstaat’, 1928), in Arthur J. Jacobson and Bernhard Schlink (eds.), Weimar. A Jurisprudence of Crisis, Berkeley (CA) / Los Angeles (CA) / London, University of California Press, 2000, pp. 294–300; Constitutional Theory, pp. 256, 263, 274, 280, 285, 298. Schmitt frequently formulates the difference between the two principles – which are combined in representative democracy – in terms of an opposition or antithesis. Schmitt, Constitutional Theory, pp. 286–287, 220 and ‘The Legal World Revolution’, pp. 79–80. See Emmanuel Joseph Sieyès, What is the Third Estate? (1789), in Keith Michael Baker (ed.), The Old Regime and the French Revolution,Chicago (IL), University of Chicago Press, 1987, pp. 171–172: ‘Not only is the nation not subject to a constitution, but it cannot be and it must not be; which is tantamount to saying that it is not [. . .] The manner in which a nation exercises its will does not matter; the point is that it does exercise it; any procedure is adequate, and its will is always the supreme law. Sieyès specifies further in a handwritten note: ‘the nation creates rights and duties following its needs and wishes’ (cited by Jacques Guilhaumou, ‘Nation, individu et société chez Sieyès’, Genèses, 26, 1997, pp. 4–24). Schmitt, The Crisis of Parliamentary Democracy, p. 298.

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has given way to a ‘struggle of interests’, in other words a bargaining process tantamount to an oligarchic capture of power.22 This crisis is a symptom of the unstable mix of incompatible elements effected by parliamentary or constitutional democracy. The liberal domestication of democracy – which makes it subject to conditions foreign to the very existence of the people and its constituent power – founders on its incapacity to guarantee the existence of a truly political subject and form. Liberalism empties democracy of its substance by removing its political content: in substituting individual liberties for popular sovereignty, it makes democracy into a ‘democracy without a demos, without a people’.23 In dissolving the collective, responsible subject of the ‘people as an entirety’ into a multitude of private, irresponsible individuals, it catapults the people into a downward spiral moving ‘from the condition of political existence into one that is sub-political’, into a life that is ‘merely cultural, economic or vegetative’, and which condemns it merely to ‘serv[e] a foreign, politically active people’.24 The principle of individual liberty as a universal right cannot provide the basis for political community, since all it states is the right to withdraw from such a group. Schmitt therefore stresses that the concept at the root of democracy is not liberty (the principle of a liberal rule of law) but rather equality, understood not as equal rights of ‘individuals’ but as equality of citizens within a people.25 Democratic liberty is purely political, overlapping with the equality of belonging to a political community. As such, it cannot be seen as a right to withdraw or abstain, as a private-sphere right to be used against the state. Rather, its meaning is something like that of public service, a responsibility that arises not from the apolitical liberty of the individual but as a collective mission. ‘“The people” is a concept in public law’, Schmitt stresses; ‘this means these democratic rights have an essentially political character’. which establishes firmly that the public sphere stands above the private.26 The superior nature of the public sphere, which implies that democracy cannot be made to respect private property as a ‘sacrosanct’ principle, should by rights preclude the secrecy of individual voting, which expresses the liberal principle of dissolution of the public into the private. The secret ballot, which traps the individual inside the confines of his own privacy by detaching him from the political community in which he exists as a citizen, is directly opposed to the political principle of democracy that citizens must vote as citizens, not as private individuals protecting their 22 24 26

Ibid., pp. 5, 20. 23 Schmitt, ‘The Liberal Rule of Law’, p. 171. Schmitt, Constitutional Theory, p. 248. 25 Ibid., p. 256ff. Schmitt, The Crisis of Parliamentary Democracy, p. 16; Constitutional Theory, p. 207.

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own interests. Secret balloting does not allow for a people ‘voting as a people’; it is part of a privatisation of the state that excludes the ‘general will’ as distinct from the ‘will of all’. Indeed, a stockpile of private opinions, in other words of apolitical desires, even if held by a majority, does not add up to ‘public opinion’ or to political will. Democracy stricto sensu requires the vote to form a part of public service, which is the concept behind citizenship: not an individual right but a collective responsibility, a ‘service’ in the same sense as military service.27 By analogy with the traditional distinction between the king’s two bodies (the private and public persons existing within the monarch), we can explain Schmitt’s thought by applying the same theory to popular sovereignty: the public person of the ‘people’ is not just the multitude of private individuals who make it up. We cannot understand democratic sovereignty starting from individuals: it stems from the sovereign function, whose effect in any regime is to transform a mass of individuals into a people. Democratic sovereignty is never a function of individual liberty or the expression of some ‘natural right’ that would make a people sovereign by essence. Rather, it means ‘investing’ the people with the sovereign function. Democracy is the political form that invests the people with political responsibility, and by that very token creates the fiction of popular sovereignty – an fiction that requires the people to be whatever it must be in order to constitute a sovereign people, in other words in order to meet the demands of sovereignty. The People against Humanity Democracy rests on a paradox: by definition, the people means the ensemble of those ‘who do not govern’.28 It follows from this that the regime of democracy cannot be defined either by popular selfgovernment, which is impossible, or by representation, which ‘contains the genuine opposition to the democratic principle’. The more representative a democracy is, the less democratic it is: ‘there is really only direct democracy’, Schmitt argues. The only viable definition of democracy is therefore ‘the identity of ruler and ruled, governing and governed, commander and follower’, that is to say the lack of any ‘qualitative difference’ between governor and governed.29 This identity, understood as lack of 27 28

29

Schmitt, Constitutional Theory, pp. 302–306, 281–282, 302; ‘The Liberal Rule of Law’, pp. 298–299. Schmitt, Constitutional Theory, p. 451. See also Saint-Just, Institutions républicaines, in Œuvres complètes, Paris, Gallimard, 2004, p. 1139 and Emile Durkheim, Débat sur le nationalisme et le patriotisme, in Textes III, Paris, Minuit 1975, pp. 178–186. Schmitt, Constitutional Theory, pp. 251, 248, 264–266.

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superiority (not as the eradication of asymmetry between public functions) is the true meaning of democratic equality: elections in a true democracy are ways of expressing this sameness and not, as in a representative democracy, a means of choosing the most competent or in other words an aristocracy. This explains why ostracism – the right to banish citizens purely on the grounds of their superiority by virtue of excellence – was a key tenet of Athenian democracy. The identity of governors and governed implies that the ultimate principle of democracy must be ‘self-identity of the concretely present people as a political unity’.30 The people cannot experience what it feels like to be a unified political entity without experiencing its own equality with itself, and therefore its sameness: this identity-with-self is the basis for all forms of democratic equality, such as universal suffrage. Democratic equality is indissociable from the qualities of sameness and homogeneity (expressed in Schmitt’s view by the closeness of the German words Gleichheit and Gleichartigkeit): as Aristotle had observed, true equality means giving the same treatment to those who are the same, but concrete equality is possible only through essential sameness – hence why the French revolutionaries had felt the need to add the term ‘fraternity’ to their celebrated slogan. Citizens can be ‘equalised’ only through a ‘substantive’ sameness allowing them to form an egalitarian political community. ‘Democratic equality is essentially similarity, in particular similarity among the people . . . If democracy is to be a political form at all, there is only a people’s democracy and not that of humanity.’31 Only the people can in fact hold ‘constituent power’. Neither individuals nor humanity as a whole can be invested with such power, since neither is a political subject. Democratic equality, therefore, cannot be seen in terms of ‘human rights’: in fact it actually precludes them, since it affirms the identity of a people as distinct from others. It means not the equality of all as apolitical individuals, but the equality of citizens within a given people. It necessarily means inequality with non-nationals, and ensuring a compulsory uniformity which is the condition for a real democratic collectivity. Any democratic politics must be one of ‘national homogeneity’: ‘a democracy demonstrates its political power by knowing how to refuse or keep at bay something foreign and unequal that threatens its homogeneity’.32 Schmitt would give a more radical version of these arguments in The Concept of the Political, where he confirmed the state’s right to 30 32

Ibid., p. 255. 31 Ibid., p. 263ff. Schmitt, The Crisis of Parliamentary Democracy, p. 9.

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‘provid[e] . . . some kind of formula for the declaration of an internal enemy’ or public enemy and stressed that a people refusing to name its enemies supports them by that very token and renounces political sovereignty: ‘political thought and political instinct prove themselves theoretically and practically in the ability to distinguish friend and enemy’.33 It is difficult not to read these passages as a harbinger of Schmitt’s eventual conversion to Nazism and his wholehearted endorsement of naming ‘the Jew’ as a public enemy, the ‘foreigner in the nation’s midst’ who must be purged to achieve national purity. However, the fact remains that the thesis of democracy requiring uniformity of the people as formulated by Schmitt in the 1920s is not his alone, but also appears in the work of liberals such as Hans Kelsen and Joseph Schumpeter;34 and some of Schmitt’s most alarming passages on democracy as purging of foreigners are merely commentaries on the real practices of democratic regimes at the time, especially US democracy, which judged citizenship according to racial criteria.35 The need for a uniform people emerges most strongly in the fact that democracy needs to win over a people adjusted to it: its prerogative, in other words, is to shape a democratic people.36 This means that some measure of homogeneity has to be imposed through state education, but also that the political creation of the people happens only in electoral ‘bursts’ of unity: hence why the referendum is the device most apt to democracy. The definition of democracy is the same as Renan’s definition of the nation as a ‘daily plebiscite’, a description embraced by Schmitt, who sensed its counter-revolutionary ‘harmonies’ and knew that the Bonapartist practice of the plebiscite meant unanimous endorsement without critical dilution.37 ‘Public opinion’, insofar as it is not an amalgamation of private opinions but a political force, represents this 33 34

35 36 37

Schmitt, The Concept of the Political, pp. 46, 67. Kelsen, The Essence and Value of Democracy, p. 45, stresses that democracy requires national homogeneity. Schumpeter, meanwhile, writes that ‘even the necessary minimum of democratic selfcontrol requires a national character and national habits of a certain type’; ‘must we not leave it to every populus to define himself [sic]’? (Joseph A. Schumpeter, Capitalism, Socialism and Democracy [1942], London, George Allen & Unwin, 1976, pp. 390, 323). Schmitt, Constitutional Theory, p. 258ff. Schmitt, The Crisis of Parliamentary Democracy, p. 29ff. Schmitt, State, Movement, People. In Renan’s speech What is a Nation?, the word ‘plebiscite’ goes hand in hand with the definition (which Renan borrowed from Maistre) of the nation as a ‘soul, a spiritual principle’ based on a ‘cult of the ancestors’ and a ‘heritage that we have jointly received’ from them (our emphasis). The fact that Renan passes for a ‘civic nation’ theorist is a curious historical irony: see Patrick Weil, Qu’est-ce qu’un Français? Histoire de la nationalité française depuis la Révolution, Paris, Grasset, 2002, pp. 199–200; Justine Lacroix, L’Europe en procès, Paris, Cerf, pp. 41–42, 137–138; Jean-Yves Pranchère, ‘Nation sacrée ou Europe chrétienne?’ in

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daily ‘plebiscite’, which ‘is the modern type of acclamation’.38 This gives a hint of the ‘vital’ meaning of democracy, in the face of which ‘parliament appears an artificial machinery, produced by liberal reasoning, while dictatorial and Caesaristic methods not only can produce the acclamation of the people but can also be a direct expression of democratic substance and power’. The proof of this is in revolutionary figures such as Cromwell, Robespierre, Napoleon Bonaparte, Lenin and Mussolini, who showed that democracy expresses itself as dictatorship when, instead of an electoral procedure, it designates a regime that produces the people in its will to be a people.39 If guaranteeing the rights of humanity and producing popular will seem like conflicting aims, it is hardly surprising that in practice human rights are above all ‘an especially useful ideological instrument of imperialist expansion’. As ‘humanity’ is not and can never be a political subject, its only reality is found in ‘concrete human groupings’ that invoke rights in order to compete with other groups of the same kind. The idea of human rights then reveals itself to be the opposite of what it claims to be: rather than a means of limiting state violence, it is in fact the perfect pretext for violence. For ‘to confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity’.40 Schmitt would often re-rehearse this argument, introduced earlier by Burke and Maistre, and later systematised it as an opposition between humanitarian law and the law of nations (jus gentium) or ‘European public law’, of which he claimed to be the last true representative. He never acknowledged the obscenity of his remorseless perpetuation of this argument after its use in the service of Nazism – in other words of the most radical denial there has ever been of the enemy’s humanity, in the context of a total war which amidst a delusional story of racial hostility destroyed all boundaries between civil and military, national and global.41

38

39 40 41

Jean-Marc Ferry (ed.), L’Idée d’Europe, Paris, Presses Universitaires de la Sorbonne, 2013, pp. 133–135. Schmitt, Constitutional Theory, p. 275. In 1933, Schmitt used Renan’s formula to justify the Nazi takeover of the press and other information channels (quoted by Dominique Séglard, Les Trois types de pensée juridique, p. 23). Schmitt, The Crisis of Parliamentary Democracy, p. 17. Schmitt, The Concept of the Political, pp. 54, 67. See the shameless passages of Theory of the Partisan: Intermediate Commentary on The Concept of the Political (1962), London, Telos Press, 2007, pp. 23–24, in which Schmitt explains the behaviour of German troops in the Soviet Union during the Second World War as an effect of their punctilious respect for the difference between civil and military actors.

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Ambiguities of the General Will Repeating Maistre’s and Bonald’s trick of turning Rousseau’s arguments on themselves, Schmitt attempts to distinguish Rousseau’s concept of the general will from the contractualist foundation that casts individual rights as its limits. Arising from the secret vote of the individual deciding alone ‘in the silence of the passions’, the ‘general will’ in Rousseau’s view was not the same thing as an ‘acclamation’, and also excluded the case of a Jacobin-style dictatorship. Rousseau distinguished between the general will and the will of all not in order to suggest that the will of a minority could pass for general, but to identify the conditions under which collective will would reliably pursue the common interest. Yet in Rousseau’s thought, the idea of the contract in fact left no place for reflection about how the general will would be formed. According to a circular logic described in the chapters of The Social Contract devoted to the ‘need for a legislator’, the general will would paradoxically have to be already formed in order to validate the contract that makes it possible. Schmitt concludes from this that the two concepts of the general will and the social contract in Rousseau’s thought are contradictory.42 The true meaning of democracy lies not in the individualist notion of the ‘contract’ but in the idea of a general will which has no intrinsic interindividual nature, and whose real meaning is the uniformity of the people. Democracy – understood in a broad sense, not Rousseau’s narrow definition of it as distinct from the republic – is the regime of legal sovereignty, insofar as the law expresses the general will. The heart of democracy is the homogeneity of collective will. In Rousseau’s view, the existence of factions and fragmented social groups is an obstacle to the development of a general will. Citizens can successfully carry a general will, and so be equals, if they are to some extent uniform or identical in some way that makes a common will possible. The generality of will is predicated on a substantive homogeneity, that of patriotism, without which individuals can only diverge and embrace private interests with no shared ground. The schmittian thesis that the basis for this homogeneity is the nation, finds support in Rousseau’s Constitutional Project for Corsica: ‘The first rule to be followed is the principle of national character; for each people has, or ought to have, a national character; if it did not, we should have to start by giving it one.’43 As we have seen, the paradox of democracy is this: the people, which in theory holds constituent power, has only a negative definition as the sum 42 43

Schmitt, The Crisis of Parliamentary Democracy, p. 44ff. Jean-Jacques Rousseau, ‘Projet de constitution pour la Corse’, Œuvres complètes III, Paris, La Pléiade, 1964, p. 913. English translation at www.constitution.org/jjr/corsica.htm.

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of those who do not govern and can only ‘acclaim’. This paradox is accentuated by the fact that in the normal course of things, only a minority of the people will be politically active and engaged, such that universal suffrage puts power in the hands of a mass of individuals without truly political will. Now, ‘it is in no way democratic and would, moreover, be a remarkable political principle that those without a political will should decide in contrast to those with such a will’.44 Democracy thus founders on its limitations – which also come from the fact that the people cannot represent itself independently at the international level. Democracy ‘seems fated then to destroy itself in the problem of the formation of a will’.45 If popular will is not to dissolve without trace into the private space of liberal individualism, it must be substituted with potentially dictatorial powers seeking to bring it into being. This is why the truth of modern democracy lies in the ‘myth of the nation’. However, Schmitt’s suggestion that democracy is subsumed by nationalism does not provide any conclusive criterion for the identity of the people: the ‘intensity’ of association invoked in The Concept of the Political does not tell us how the conditions for the political existence of a people are to be distinguished from the fits of hostility that divide it into opposed camps during civil war, or submerge it in the fanatical unity of mass movements. Schmitt criticises Rousseau’s association of contractualism and democracy as incoherent; yet in so doing he sidesteps the fact of the plurality of the people, which Rousseau had at least confronted in attempting to conceptualise the general will starting from the selfpreference adopted by the will of an individual operating purely as himself, removed from any social pressures. In his claim that the formation of democratic will precludes the possibility of a democratic formation of popular will, Schmitt distorts the concept of public opinion, reducing it to a mere unity of will when in fact it properly refers to the shared nature of a public sphere, in which all citizens have an equal right to contribute to the debate on the general interest. In that it designates equal political rights, citizens’ equal membership of a political community undeniably constitutes equal liberties. The necessary uniformity behind this means first of all observing an ideal of non-domination, which is not exhaustively covered by national independence. Even the ostracism practised in classical Athens sought not to eliminate difference, but rather to prevent the domination that can arise even from one charismatic personality rising too far above others. When Aristotle claimed that friendship would bring citizens together, 44 45

Schmitt, Constitutional Theory, p. 304. Schmitt, The Crisis of Parliamentary Democracy, p. 28.

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‘friendship’ meant not uniform character or identity as such, but the sentiment that binds together those who have agreed to manage their differences through reciprocal respect for each other’s liberty.46 True, democracy taken historically is not necessarily predicated on the idea of human rights, and has the notion of equality rather than that of individual independence (as opposed to collective autonomy) at its core. However, if we are to take the political definition of democracy seriously, we must reject any definition of democracy as the substantive ‘identity’ or sameness of the people with itself. Civic autonomy does not mean homogeneity: it requires an equality of rights that includes the right to liberty. Schmitt was not wrong to say that democracy does not require intangibility of individual rights, only equality between citizens qua citizens, and hence does not, for example, preclude socialism since citizens may decide to prioritise social equality over private property. But this must not obscure the fact – and Rousseau’s contractualism is not inconsistent in this regard – that democracy as a political regime is defined by equal political liberties. Equality between citizens means equality between individuals who reciprocally guarantee identical liberties, and cannot be excluded from the community they form together. A certain measure of uniformity between citizens may be the condition for consensual liberties. But what defines democracy is cooperation of liberties, and this equality requires no homogeneity except that of a common desire to agree freely on shared autonomy, a desire that may exist in many and varied conditions. Historically, even if national homogeneity has been its other side (and often a perilous one) since the nineteenth century, democracy has been defined above all by demands for a certain level of social equality. National homogeneity is merely one possible vector for a form of political equality defined as equality of political liberties, which is above all equality before the law. One difficulty remains, as Schmitt’s work demonstrates: how to define the demos. A response to the effect that the ethos of equality is the only ‘sameness’ required – that is, citizens must agree on the principle of equal liberties – refutes Schmitt’s reduction of equality to homogeneity, but it does not satisfactorily answer Schumpeter’s question: does every populus have the right to define itself? How can a people define ‘itself’ without arbitrary exclusion and without doing violence to those who make it up?

* It is without a doubt through these ambiguities around the idea of popular self-definition that Schmitt continues to exert such influence over some 46

For a painstaking critique of Schmitt’s politics of hostility in the light of ‘friendship’, see Jacques Derrida, Politiques de l’amitié, Paris, Galilée, 1994.

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schools of thought today, far removed though they may be from any totalitarian beliefs. Schmitt’s arguments are taken up in their entirety by a wing of the ‘anti-modern’ critique, especially on the New Right and its European counterparts. Yet fragments of Schmitt’s ‘very ingenious theories’47 of the 1920s also appear almost word for word in the works of authors variously attached to republican and inheritance-based theories or to radical revolutionary aims. The communitarian movement underscores the destructive effects wrought by the depoliticising logic of individual rights on the constitution of the body politic. The underlying theme of the homogeneity of general will tends to lead to the conclusion that democratic autonomy must be subsumed in national identity. A ‘post-Leninist’ coterie within radical thought sees the depoliticisation effected by human rights as the polar opposite of the eruptive forces of constituent power and centrality of conflict. Human rights thus appear as the ideological weapon of a form of imperial domination. But this is to forget what Schmitt had stressed: that ‘constituent power’ is a theologico-political concept.

47

The expression is from Hannah Arendt, The Origins of Totalitarianism (1951), New York (NY), Meridian Books, 1958, p. 339.

7

The ‘right to have rights’ Revisiting Hannah Arendt

In a recent work, Enzo Traverso remarks ironically on the ‘posthumous canonisation’ of Hannah Arendt in European culture since the 1980s, when her writings became a sort of escape route for a generation of intellectuals who were the ‘orphans of Marxism but not yet ready to embrace classical liberalism’: ‘A Jewish exile, a woman, a philosopher, a brilliant essayist, a libertarian and subversive spirit, disciple then lover of a great German thinker compromised by his links to Nazism, Hannah Arendt now holds an irresistible fascination, to the point that she has become a veritable icon of twentieth-century culture.’1 At the risk of seeming to give in to a ‘cultural trend’, this chapter sets out to explore interpretations of one of the philosopher’s best-known texts, found at the end of the second volume of The Origins of Totalitarianism. In it, Hannah Arendt calls attention to the paradox at the heart of human rights discourse, and coins the equally ‘magnificent and enigmatic’2 formula of the ‘right to have rights’. This chapter – ‘The Decline of the Nation-State and the Rights of Man’ – along with its interpretations and appropriations by others – raises questions that are also crucially important in current debates about the meaning of human rights. However, approaching Arendt for these purposes clearly means distancing our argument from the ‘conservative appropriation’ of her work in certain areas of French thought. The vastly differing reception of her work in France and the English-speaking world has a history of its own, arising above all from the incomprehension that has dogged the reception of The Origins of Totalitarianism in France for some decades: ‘It was indeed inevitable that at the very moment when anti-totalitarianism became a synonym for anti-communism, Arendt’s book should have been

1 2

Enzo Traverso, La Fin de la modernité juive, Paris, La Découverte, 2013, p. 105. Catherine Colliot-Thélène, La Démocratie sans demos, Paris, PUF, 2011, p. 123.

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interpreted as a “Cold War bible” and placed in the index librorum prohibitorum of a left subjected to the hegemony of Stalinism.’3 The first reviewer of The Origins (which appeared in 1951) in French was Raymond Aron, in 1954. Yet reading the review today, it is hard not to be struck by its reserved position: having pointed out a number of factual errors and criticised a ‘tone of haughty superiority towards matters and men’, Aron judges that ‘if the majority of her [Arendt’s] analyses taken individually are persuasive, the organising concepts and ideas that the author considers as essential leave one unconvinced’.4 But for all this, and despite his misgivings, Aron remains the first to have introduced a French audience to Arendt’s work, publishing The Human Condition (translated as La Condition de l’homme moderne) in his collection ‘La Liberté de l’esprit’ with Calmann-Lévy in 1963, which in itself sufficed to secure Arendt a lasting place in the French ideological firmament. Furthermore, in France as elsewhere, Arendt was vilified amidst the controversy over Eichmann in Jerusalem, and in 1966, when the French translation of the work first appeared, the weekly magazine Le Nouvel Observateur had no qualms in publishing a special section under the title ‘Is Hannah Arendt a Nazi?’ France discovered Arendt nearly thirty years late. The Origins appeared in translation – not as a single volume but in a format that suggested three separate works – only in 1972, 1973 and 1982, and with three different publishers.5 The translations were also published around the crucial juncture of the so-called anti-totalitarian turn in French thought. With the notable exceptions of Claude Lefort, Miguel Abensour and a few others, the French debate over totalitarianism took on the colours of a veritable ‘cultural restoration’.6 In this context, Arendt’s work served as a lifeline for a generation of intellectuals that had been left stranded after their rejection of Marxism. As Enzo Traverso remarks, Arendt’s thought was at first largely divested of its critical dimension in France, especially on the subject of imperialism, whereas in the United States, she was one of the authors whose writings served as a seedbed for political radicalisation of younger generations in the 1960s.7 As Miguel Abensour points out, French intellectuals even on occasion cast Arendt strategically, ‘for the war effort’, as an intellectual bedfellow of Leo Strauss, ‘as if the two 3 4 5 6 7

Enzo Traverso, La Fin de la modernité juive, p. 95. Raymond Aron, ‘L’essence du totalitarisme. À propos d’Hannah Arendt’ (1954), Commentaire, 112, 2005–2006, pp. 944–945. Michelle-Irène Brudny de Launay, preface to Hannah Arendt, La Nature du totalitarisme, Paris, Payot, 1990. Enzo Traverso (ed.), Le totalitarisme. Le XXe siècle en débat, Paris, Seuil, 2001, p. 85. See the Introduction in this book. Traverso, ‘La mémoire des vaincus’, Vacarme, 21, www.vacarme.org/article434.html.

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authors had agreed in their conceptualisation of the political domain, diverging only on specific political decisions properly understood’.8 What is more, Arendt’s writings on the ‘education crisis’ were extensively invoked during the debate starting in the early 1990s over the supposed disintegration of a state school system which many argued had abandoned its proper role of transmission in favour of a demagogy attempting to give ‘voice to pupils’ and thereby ‘disinherit everyone’.9 Taken together, these circumstances made it easy to forget that Arendt had in fact championed participatory democracy in On Revolution. This appeared to give credence to a conservative interpretation of Hannah Arendt, casting her as a defender of tradition for its own sake. Our aim is to explore the reception not of Arendt’s output in its entirety but of her writings on human rights, which have a pivotal place in our argument. Arendt’s thought can be called into the service of two very different offensives against human rights even while it paves the way towards a ‘political’ conception of these rights, providing a riposte to several of the arguments discussed thus far. Alongside her radical critique of human rights, Arendt in fact offers us an equally radical way of conceptualising them afresh.10 Arendt’s Paradox of Human Rights In ‘The Decline of the Nation-State and the End of the Rights of Man’ Arendt explores the situation of stateless persons in the period between the two World Wars, and demonstrates that what she terms ‘the annihilation of the juridical person’11 – that is, the act of stripping entire human groups of their legal rights – was by no means simply a diabolical totalitarian invention, but had been foreshadowed by European nationstates’ treatment of minorities and stateless persons after the First World War. Deprived of a government to represent or protect them, Arendt argues, these groups were cast into absolute illegality. This situation 8 9

10 11

Miguel Abensour, Hannah Arendt contre la philosophie politique? Paris, Sens et Tonka, 2006, p. 10. On these mutations of contemporary republicanism in the 1990s, see Cécile Laborde, ‘The Culture(s) of the Republic. Nationalism and Republicanism in Contemporary French Republican Thought’, Political Theory, 29, 5, 2001, pp. 716–735. See also Serge Audier, La Pensée anti-68, La Découverte, 2009, p. 170. For an example of the use of Arendt’s work to criticise the degeneracy of the republican school, see the debate between Alain Finkielkraut and Bérénice Levet at La Règle du jeu: www.dailymotion .com/video/xrlu40_que-nous-apprend-hannah-arendt_news. Ayten Gündogdu, Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants, Oxford, Oxford University Press, 2015, p. 14. Hannah Arendt, The Origins of Totalitarianism (1951), New York (NY), Meridian Books, 1958, p. 455.

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illustrates the paradox of human rights, which are said to be inalienable and imprescriptible, in the sense that they are thought to exist above and beyond membership of any given group. Yet Arendt argues that it is precisely when human beings have been stripped of a government of their own, and thereby left without recourse to anything but their ‘natural’ rights, that they have found themselves ‘without rights’. Reduced to their basic human condition, they no longer have any effective authority acting to protect them. This is at the root of Arendt’s insistence on the importance of denationalisation to totalitarianism: one of the few rules that the Nazis consistently observed during the ‘final solution’ was that Jews could be sent to concentration camps only once they had been thoroughly stripped of their nationality. Survivors of camps – in which each individual, in a ‘gruesome and grotesque’ combination, clung to that last vestige of the juridical person that lay in belonging to a clearly defined category of prisoner (common criminals, political prisoners, Jews and so on) – know all too well that ‘the abstract nakedness of being nothing but human was their greatest danger’. Not only, then, has loss of national rights engendered loss of human rights; as the example of Israel proves, only the consecration of national rights has ensured the effective restitution of human rights. This, indeed, was the unprecedented essence of the Eichmann trial: ‘for the first time (since the year 70, when Jerusalem was destroyed by the Romans), Jews were able to sit in judgment on crimes committed against their own people, that, for the first time, they did not need to appeal to others for protection and justice, or fall back upon the compromised phraseology of the rights of man – rights which, as no one knew better than they, were claimed only by people who were too weak to defend their “rights of Englishmen” and to enforce their own laws’.12 The paradox of human rights, then, is that a person who is nothing more than a person, who can invoke no other rights than those of a human being, in fact has no rights and enjoys no juridical protection. But although it became fully apparent only with the emergence of group after group of stateless people after the First World War, this paradox of human rights had existed since the end of the eighteenth century, when the question of human rights had been indelibly attached to the proclamation of national sovereignty. In the body of the 1789 Declaration of the Rights of Man, indeed, the assertion that all men are born free and have equal rights (Article 1) is 12

Hannah Arendt, Eichmann in Jerusalem. A Report on the Banality of Evil, New York (NY), Penguin, 2006.

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followed almost immediately by the statement that all sovereignty resides in the Nation (Article 3). In other words, as Arendt underlines, man had no sooner asserted himself as an emancipated, autonomous being than he was subsumed into the body of a nation-state. Hence the profoundly ambivalent nature of human rights, which are only guaranteed in practice when they are also the rights of citizens of a given state. This is the source of Arendt’s celebrated formula of the ‘right to have rights’. The first human right, says Arendt, and that which conditions all others, is that of belonging to a given political community. ‘Man, it turns out, can lose all so-called Rights of Man without losing his essential quality as man, his human dignity. Only the loss of a polity itself expels him from humanity.’13 Two Possible Interpretations or Critiques of Human Rights Francophone analyses frequently condense this chapter of The Origins into a denunciation of the abstract and formal nature of human rights, shown by history to be utterly ineffective as soon as they are dissociated from national rights. We can identify two interpretations here, both of which (as Etienne Tassin demonstrates) constitute a ‘misunderstanding’ about Arendt’s interpretation of human rights.14 This misinterpretation interests us here because it provides the arsenal for two separate critiques of rights already discussed in the first chapter: the ‘communitarian’ and ‘radical’ critiques. The Revival of Burke’s Arguments? According to the first interpretation – which casts Arendt in a ‘conservative’ mould – humanity can only exist within national belonging. This supports ‘the primacy of a communitarian conception of politics over a democratic based one’,15 which appears to endorse Burke’s well-known attack on the ineffectual nature of the rights of man as soon as they are divorced from national belonging and allegiance to a state. While human rights are presumed to protect all men from arbitrary power, they never in fact exist except as ‘citizen rights’, in other words the rights of nationals. Such rights, Arendt believes, constitute an abstract principle of 13 14

15

Arendt, Origins, p. 297. Etienne Tassin, ‘La signification politique des droits de l’homme : lectures de Hannah Arendt’, in Lambros Couloubaritsis and Martin Legros (eds.), L’Enigme de l’humanité en l’homme, Brussels, Ousia, 2015, p. 116. Ibid.

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incomparably lesser value than the fact of belonging to a given political community.16 Indeed, in as much as Arendt saw in the fate of interwar refugees ‘an ironical, bitter, and belated confirmation of the famous arguments with which Edmund Burke opposed the French Revolution’s Declaration of the Rights of Man’,17 it may seem logical to conclude as does Philippe Raynaud that she is merely ‘reviving Burke’s opposition of “metaphysical rights” with the “true rights of man”’. In this interpretation, Arendt saw Burke’s great merit as having rediscovered, ‘beyond an emerging ideology, the conditions of authentic political experience, of which the first is unquestionably belonging to a defined community, founded on a tradition, which is in a position to ensure effective implementation of rights where nothing else can’.18 Though he reaches a very different political conclusion – accusing Arendt of making one of those ‘errors of perspective which even today play their part in blurring the horizon’, the historian of ideas Zeev Sternhell also regards Arendt’s reasoning as directly tracing Burke’s thoughts on our ‘naked and trembling’ human nature, unfit to command respect. Sternhell counters these arguments by stressing that the Jews were persecuted ‘not as human beings stripped of their distinctive characteristics’ but in fact ‘as members of a defined human group, an ethnic group in some cases, or a race in others by virtue of the same hereditary criteria glorified by Burke’.19 This argument is hard to contest in itself; but as we shall see, Sternhell picked the wrong target in accusing Arendt of this error. In the same interpretive vein, Luc Ferry and Alain Renaut situate Arendt in the sphere of ambivalence about human rights, of the same strain that we find in the work of conservative authors such as Leo Strauss or Michel Villey. In other words: ‘against the desire for radical change, the mark of subjectivity and of its founding claims that are expressed in the Declaration of the Rights of Man, [Arendt espouses] the wisdom of tradition; against human rights, “the rights of Englishmen”’.20 Reconnecting in ‘resolute’ fashion with Burke’s thought, Arendt 16 17

18 19 20

Philippe Raynaud, preface to Hannah Arendt, L’Humaine condition, Paris, Gallimard, 2012, p. 24. Arendt, Origins, p. 299. We should note that the French translation obscures the fact that Arendt speaks of an appearance of confirmation. The text in fact says not that the facts ‘offer confirmation’ but offer ‘what seems’ to be a confirmation. Philippe Raynaud, Trois révolutions de la liberté. Angleterre, Amérique, France, Paris, Puf, 2009, p. 35. Zeev Sternhell, Les Anti-Lumières, Paris, Fayard, 2006, pp. 556–558. Luc Ferry and Alain Renaut, ‘Des droits de l’homme à l’idée républicaine’, in Philosophie politique, Paris, PUF, 2007, p. 483.

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according to these authors makes little secret of her inability to conceive of human rights.21 This comparison of Arendt’s arguments on human rights with those found in the Reflections on the Revolution in France of 1790 even finds its way into the work of as informed an author as Claude Lefort, who sees fit to point out that ‘for Hannah Arendt as for Burke, only citizen rights are real; human rights are a fiction’.22 It is in large measure this distinctive French view of Arendt that accounts for Jacques Rancière’s well-known argument that Arendt leaves us with a crippling dilemma between human rights (an empty space, an illusion, since they are the rights of man stripped bare and therefore without rights) and citizen rights (that is, the rights of those who already have rights, and therefore a tautology).23 Human Rights and Sovereign Violence A second interpretation – which casts Arendt as a critic of a duplicitous humanism likened to a form of imperialism of subjectivity – holds that the arguments of the Origins are an invitation to declare human rights obsolete on the grounds that they are inextricably linked to a modern nationstate in decay. It is in this sense that Giorgio Agamben, at the price of an especially convoluted reconstruction of Arendt’s reasoning, locates the declaration of rights as part of a broader theme of the biopolitical determination of modern sovereignty. Here, human rights are indissociable from the assertion of sovereign violence, and in Agamben’s view there is a ‘necessary and intimate [link] between the fate of human rights and that of the nation-state’.24 In a slightly different way, critiques of the hypocrisy of human rights rhetoric used to justify American foreign policy by authors such as Slavoj Žižek and Noam Chomsky also appear to find support in Arendt’s writings, for instance in her observation that: the incredible plight of an ever-growing group of innocent people was like a practical demonstration of the totalitarian movement’s cynical claim that no such thing as inalienable human rights existed and that the affirmation of the democracies to the contrary was mere prejudice, hypocrisy and cowardice in the face of the cruel majesty of a new world. The very phrase ‘human rights’ became

21 22 23 24

Ferry, ‘Le droit. La nouvelle querelle des Anciens et des Modernes’, in Luc Ferry and Alain Renaut, Philosophie politique, p. 43. Claude Lefort, ‘Hannah Arendt et la question du politique’, in Essais sur le politique, Paris, Seuil, 1986, p. 74. Rancière, ‘Who is the Subject of the Rights of Man?’, p. 302. Giorgio Agamben, Homo Sacer. Le pouvoir souverain et la vie nue, trans. M. Raiola, Paris, Seuil, 1997, pp. 137–146. See also his Moyens sans fins. Notes sur la politique, trans. D. Valin et al., Paris, Payot, 2002, pp. 25–37.

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for all concerned – victims, persecutors and onlookers alike – the evidence of hopeless idealism and fumbling feeble-minded hypocrisy.25

Arendt’s text leads here to another critique: no longer the argument that human rights are restricted to those who belong to a national collectivity, but instead the attack on a hypocritical brand of abstract humanism that merely (according to this criticism) draws a thin veil over a cold calculation of interests underlying invocations of human rights politics, in particular for the purposes of so-called humanitarian interventions. Though these two interpretations – respectively ‘communitarian’ and ‘radical’ – of the human rights question in Arendt’s work start from opposing premises and reach conflicting conclusions, their interpretations of the chapter on ‘The Decline of the Nation-State and the End of the Rights of Man’ turn out to be highly similar; all appear to agree that Arendt endorses critiques of the abstraction of human rights. While Agamben judges that Burke’s ‘quip’ on the rights of Englishmen takes on ‘unexpected depth’26 in Arendt’s hands, the Trotskyite philosopher Daniel Bensaïd also aligns Arendt’s analysis with that elaborated by another conservative: not Edmund Burke, Leo Strauss or Michel Villey this time but Carl Schmitt, who (Bensaïd argues) saw ‘before Hannah Arendt’ the dangers of depoliticisation implicit in granting formal or abstract rights.27 It is in this sense that Bensaïd speaks (in the same vein as Agamben’s interpretation) of the ‘dissolution of politics in humanitarian action’ and the political exploitation of the notion of humanity in everyday politics.28 However, we must remember that the reference to Burke in the final chapter of the section of The Origins on ‘Imperialism’ cannot be understood in isolation from the section entitled ‘The “Rights of Englishmen” versus the Rights of Men’, which concludes the chapter on ‘Race-Thinking Before Racism’. In this section, Arendt suggests that Burke’s arguments against the abstract principles of the French Revolution – which consist in applying the idea of inheritance to that of liberty – make him one of the forerunners of racial thought in England.29 If Arendt endeavoured to show that Burke’s opposition between ‘the rights of men and the rights of Englishmen’ was a vector of the transition from nationalism to imperialism and racism itself, she did not ultimately intend to redeem it. When she calls on Burke once again at the end of her 25 27 28 29

Arendt, Origins, p. 269. 26 Agamben, Homo Sacer, p. 138. We owe this remark to Tristan Storme. Daniel Bensaïd, Eloge de la politique profane, Paris, Albin Michel, 2008, pp. 86–87. Arendt, Origins, p. 175. This is pointed out by Etienne Balibar, ‘Arendt, le droit aux droits et la désobéissance civique’, in La Proposition d’égaliberté, Paris, PUF, 2010, p. 208n.

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exploration of imperialism, Arendt is not suggesting his position be readopted; rather, the reference is there because Burke was the main witness to the original dialectic that wove human rights into national sovereignty and consigned them to impotence by crushing the ‘right to have rights’ under the weight of the nation-state and nationalism. Far from linking human rights to the nation-state, as Agamben claims was her aim, Arendt sees them as contradictory: The secret conflict between state and nation came to light at the very birth of the modern nation-state, when the French Revolution combined the Declaration of the Rights of Man with the demand for national sovereignty. The same essential rights were at once claimed as the inalienable heritage of all human beings and as the specific heritage of specific nations, the same nation was at once declared to be subject to laws, which supposedly would flow from the Rights of Man, and sovereign, that is, bound by no universal law and acknowledging nothing superior to itself.30

Burke’s position, which had furnished one of the leading arguments for imperialist racism, could hardly be revived. Yet even from his misled position Burke had clearly seen the weakness of the French Revolution, which gave the rights of man no distinct institutional reality and in fact subsumed them in national sovereignty. Burke criticised the abstraction of the rights of man on the grounds that all rights were national rights. Arendt, meanwhile, observes that the idea of human rights was hardly born before it foundered on the stumbling block of the nation-state. This is a ‘victory’ to Burke; yet it is, as Arendt stresses, a ‘bitter’ victory because it is also a political disaster, as shown by the issue of stateless persons and its totalitarian ‘regulation’. Burke’s supposed ‘victory’ does not prove him right: rather, it shows up the imperative of revisiting the question of human rights in the light of the ‘right to have rights’, in order to draw them out of their strict national confinement. Three ‘Arendtian’ Answers to Critiques of Human Rights We can therefore respond to the two critiques discussed in this chapter with three points to show that Arendt’s writings neither reject the abstraction of 1789 Declaration attack the alleged hypocrisy of human rights rhetoric nor restrict human rights to a national collectivity; rather, they point the way towards a right to humanity. (1) On the question of abstract humanism, Arendt’s presumed contrast between a ‘good’ American Bill of Rights – ‘good’ in the sense of practical, and moulded to the real aims of an already instituted limited 30

Arendt, Origins, p. 230.

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government – and a ‘bad’ Declaration of the Rights of Man – abstract because it was thought to exist prior to the body politic – is far less clearcut than some of its analysts31 who merely extend the arguments of the American neoconservative Irving Kristol have claimed. In 1976, Kristol invoked the authority of Arendt’s essay On Revolution, reducing it to a binary opposition between the glories of the American Revolution and the evils of 1789.32 It is true that in On Revolution Arendt appears to endorse Burke’s critique of the 1789 Declaration, claiming that it is neither ‘obsolete’ nor ‘reactionary’. However, careful reading of the passage reveals that Arendt’s preference for the American Declaration is based less on a limiting concept of rights than a refusal to restrict them to natural rights. Their formulations may appear similar, but Arendt and Burke are leagues apart: Arendt’s intention is not to neutralise human rights but to imbue them with truly political meaning: as the rights not of a ‘natural being’ but of a free citizen.33 Above all, returning to the text of the Origins reveals that Arendt by no means unequivocally condemned the 1789 Declaration. This is illustrated by her analysis of the Dreyfus Affair, especially in the following eloquent passage: There was only one basis on which Dreyfus could or should have been saved. The intrigues of a corrupt Parliament, the dry rot of a collapsing society, and the clergy’s lust for power should have been met squarely with the stern Jacobin concept of the nation based upon human rights – that republican view of communal life which asserts that (in the words of Clémenceau) by infringing on the rights of one you infringe on the rights of all.34

In reality, if The Origins of Totalitarianism has heroes, they go by the names of Bernard Lazare and above all Georges Clémenceau,35 whose greatness lies according to Arendt in the fact that his politics did not combat a specific miscarriage of justice but instead ‘was based upon such “abstract” ideas as justice, liberty, and civic virtue . . . those very concepts which had formed the staple of old-time Jacobin patriotism and against which much mud and abuse had already been hurled’.36 And she adds: ‘Followers of men like Barrès who had accused the supporters of Dreyfus of losing themselves in a “welter of metaphysics” came to realize 31 32 33 34 35 36

See the analysis of Philippe Raynaud in his preface to L’Humaine condition, p. 27. Irving Kristol, ‘The “Human Rights” Muddle’ (1978) in Reflections of a Neo Conservative; Looking Back, Looking ahead, New York (NY), Basic Books, 1983, pp. 266–269. Hannah Arendt, On Revolution (1963), London, Penguin, 1990, p. 108. Arendt, Origins, p. 106. See especially the analysis by Margaret Canovan, Hannah Arendt. A Reinterpretation of her Political Thought, Cambridge, Cambridge University Press, 2003, p. 163. Arendt, Origins, p. 110.

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that the abstractions of the “Tiger” were actually nearer to political realities than the limited intelligence of ruined businessmen or the barren traditionalism of fatalistic intellectuals.’37 The view that Arendt attacks the 1789 Declaration for its abstraction is a misunderstanding: what she explicitly deplores, in fact, is the spinelessness of those intellectuals and politicians of the interwar period who had become incapable of rallying around abstract ideas. ‘What made France fall’, she writes, ‘was the fact that she had no more true Dreyfusards’, no one who was able to conjure up ‘the old revolutionary passion for human rights’ in their speeches as Clemenceau and Jaurès had before them.38 This is why we must once again understand Arendt’s endorsement of Burke ‘at one remove’.39 Arendt praises Burke’s pragmatic potency and ‘immense good sense’, but certainly not his philosophical depth.40 Above all, distinguishing between two conceptions of human rights was for Arendt a way of uncovering the causes of the turn towards terror in 1793. She certainly did not aim to give an exhaustive description of the multiform dynamic associated with the various different accounts of human rights. It is in fact highly questionable whether any such thing exists as ‘a’ French version of human rights: the Declarations of 1789, 1793 and 1795 bear the mark of the divergent historical force fields that shaped them, of the acrimonious debates that accompanied their drafting and in view of which they can be seen as often ambiguous or strained attempts at compromise. The belief that political rights might be reduced to natural rights was unquestionably attractive to the French revolutionaries,41 and Hannah Arendt rightly saw in this temptation the peculiarity that might explain terrorist abuses of human rights. However, this does not mean that the blurring of boundaries between natural rights and political rights would yield up ‘the’ meaning behind a series of Declarations whose titles elliptically define the relationship between man and the citizen as both a tie and a distinction. (2) Further to this, Arendt was clearly aware that human rights discourse could well give rise to a kind of ‘double-speak’. But to follow Jeffrey Isaac’s interpretation, she also believed that hypocrisy is not the worst of the vices, and that exposing it is not the ultimate goal of intellectual endeavour.42 This is borne out by Arendt’s analysis, in the third 37 39 40 41 42

Ibid., p. 110. 38 Ibid., p. 93 and p. 113. Tassin, ‘La signification politique des droits de l’homme’, p. 118. Jeffrey Isaac, ‘A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights’, American Political Science Review, 90, 1, 1996, p. 64. See on this the analysis of Dan Edelstein, The Terror of Natural Right. Republicanism, the Cult of Nature and the French Revolution, Chicago (IL), Chicago University Press, 2009. Isaac, ‘A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights’, p. 529.

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volume of The Origins, of the irresponsibility of intellectuals who yielded to the temptations of totalitarianism in the interwar period. Interesting claims indeed in view of the contemporary attack on a ‘hypocritical’ human rights rhetoric: ‘What the spokesmen of humanism and liberalism usually overlook, in their bitter disappointment and their unfamiliarity with the more general experiences of the time, is that an atmosphere in which all traditional values and propositions had evaporated (. . .) in a sense made it easier to accept patently absurd propositions than the old truths which had become pious banalities (. . .) Vulgarity with its cynical dismissal of respected standards and accepted theories carried with it a frank admission of the worst and a disregard for all pretenses which were easily mistaken for courage and a new style of life’43

She goes on to recall that ‘the desire for the unmasking of hypocrisy’ was ‘irresistible’ among an elite which demonstrated its ‘lack of a sense of reality’.44 Arendt does not, of course, deny the importance of coherence as an intellectual asset, and her thought shows absolutely no signs of careless logic. What she does reject, on the other hand, is ideological coherence of a formal and rigidly literal nature, achieved by denying reality and common sense. And above all, in her view, the priorities of political reflection and action should not be to condemn incoherence or potential contradictions between rhetoric and practice, but rather to deal with the suffering inflicted by human beings on fellow human beings.45 (3) Beyond this, what appears to be at stake in Arendt’s thought is the emergence of a cosmopolitan form of citizenship. Pace Agamben – who argues that ‘the decline and crisis’ of the modern state necessarily brings about the ‘obsolescence’ of human rights46 – Arendt’s analysis allows us to start thinking about ways of attaining a right to political inclusion, or to a ‘human right to politics’47 beyond the nation-state. The right to have rights means the right to have a meaningful place in the world – the ‘world’ being understood not in the sense of a defined national collectivity but of a sphere constituted by connections between individuals who reciprocally recognise each other as equals.48 In other words, when Claude Lefort accuses Arendt of cutting off ‘mutual recognition between human beings as equals at the gates of the 43 45 46 47 48

Arendt, Origins, p. 334. 44 Ibid., p. 336. Isaac, ‘A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights’, p. 519. Agamben, Homo Sacer, p. 145. Balibar, ‘Arendt, le droit aux droits et la désobéissance civique’, in La Proposition d’égaliberté, p. 201 sq. Tassin, ‘La signification politique des droits de l’homme : lectures de Hannah Arendt’, pp. 118–119.

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polis’, he appears to miss the fact that citizenship in Arendt’s interpretation has a direct connection with a cosmopolitan point of view. As Myriam Revault d’Allones writes: ‘Belonging does not refer to “places” in the geographical sense of the term but offers access to universality: opinions can be meaningful and actions effective only when they refer back to the fundamental conditions that make them reality in the context of effective power.’49 Arendt writes that the first loss suffered by those ‘without rights’ was that of their ‘home’, but even more so the impossibility of finding a surrogate place of belonging. ‘Home’ has generally been translated into French as the word patrie, which appears to imply analogy with the national form. However, if Arendt had meant something equivalent to patrie, she might well have used the word ‘homeland’ instead. Whereas the ‘homeland’ refers to a more or less fixed place in which we are born and learn to speak, a ‘home’ can be rebuilt in other places: it is a more neutral term for an organised political community in which we are recognised as meaningful beings.50 Arendt underlines the movable nature of ‘home’ when she observes that the unprecedented development of the interwar period was not the loss of political belonging as such – ‘in the long memory of history, forced migrations of individuals or whole groups of people (. . .) look like everyday occurrences’ – but rather the fact that finding a new home was no longer an option.51 In this sense, though Arendt’s thought contains apparent vestiges of communitarianism – especially in her emphasis on political participation – she distances any form of communitarianism with her belief that belonging is necessarily always partial, multiple and conflictual, and her mistrust for a culture of authenticity or ‘constituted self’ anchored in a specific tradition. As we have seen, at the heart of Arendt’s analysis stands the idea that it was the ‘conquest of the state by the nation’52 – and thus the reduction of human rights to the rights of nationals – that had proved catastrophic. A constant theme of her writings on Zionism is the ‘disastrousness’ of the ambition for a uni-national state and the imperative need for Arab–Jewish cooperation ‘without which the whole Jewish venture in Palestine is doomed’. Arendt’s argument here was not merely prudential but clearly normative, since such cooperation would show the world ‘that there are no differences between two peoples that cannot be bridged’.53 She 49 50 51 53

Myriam Revault d’Allones, ‘Arendt en perspective : entretien avec Myriam Revault d’Allones’, Spirale, 211, 2006, p. 40, http//id.erudit.org/iderudi/16611ac. Gündogdu, Rightlessness in an Age of Rights, p. 161. Nicholas Xenos, ‘Refugees: the Modern Political Condition’, Alternatives 18, 4, 1993, p. 427. Arendt, Origins, p. 293. 52 Ibid., p. 230. Hannah Arendt, The Jew as Pariah. Jewish Identity and Politics in the Modern Age, New York (NY), Grove Press, 1978, p. 186.

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believed implicitly in finding a way out of the nationalist ‘pathology of citizenship’, and creating new forms of political association not rigidly bound to national belonging. It may not, of course, be immediately apparent what shape these new forms of political belonging might take in practice. Catherine ColliotThélène observes that, for Arendt, the only alternative to national belonging is belonging to humanity, yet that she (Arendt) considers this ‘impossible’.54 Arendt does indeed betray some pessimism – or at least caution – about the actual emergence of this right to humanity in the body of the text of the Origins: humanity, which for the eighteenth century, in Kantian terminology, was no more than a regulative idea, has today become an inescapable fact. This new situation, in which humanity has in effect assumed the role formerly ascribed to nature or history, would mean in this context that the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself. It is by means certain whether this is possible.55

Beyond the fact that Arendt does not explicitly declare the birth of such a right ‘impossible’, her grounds for caution are above all that instituting the ‘right to have rights’ would require the invention of new political forms, based neither on mere treaty reciprocity nor ‘world government’. Hence why, in a conclusion added ex post facto to the work, she forcefully restates the imperative of striving to reach this goal, and therefore of forging what Burke had judged impossible: namely, new discoveries about morality and ideas of liberty: The concept of human rights can again be meaningful again only if they are redefined as a right to the human condition itself, which depends upon belonging to some human community, the right never to be dependent on some inborn human dignity which de facto, aside from its guarantee by fellow men, not only does not exist but is the last and most arrogant myth we have invented in all our long history. The Rights of Man can be implemented only if they become the prepolitical foundation of a new polity, the prelegal basis of a new legal structure, the, so to speak, prehistorical fundament from which the history of mankind will derive its essential meaning in much the same way Western civilization did from its own fundamental origin myths.56

As her explicit distancing of the appeal to an ‘innate’ human dignity suggests, Arendt’s statement must not be mistaken for a resurrection of 54

55 56

Catherine Colliot-Thélène, ‘La démocratie à l’épreuve de la globalisation’, paper at the seminar coordinated by Pierre Rosanvallon at the Collège de France, Paris, 13 February 2013, www.college-de-france.fr/site/pierre-rosanvallon Arendt, Origins, p. 298. Hannah Arendt, The Burden of Our Time, London, Martin Secker and Warburg, 1951, ch. 13.

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natural right; rather, she sees human rights as practices that may legitimate unprecedented political principles. Arendt does not elaborate what these might constitute in any systematic way, but she sketches some elements of them, particularly in her analysis of the crime against humanity in Eichmann in Jerusalem, where she explicitly deplores the fact that the Jerusalem tribunal at no point stated that the extermination of entire ethnic groups was more than a crime against the Jewish, Polish or Roma people but a crime against humanity in its entirety – which, understood as such, should have fallen under the remit of an international tribunal endorsed by the global community of nations.57 With this, Arendt confirms what she had written ten years earlier in The Origins, when she remarked that ‘the Russian concentration camps, in which many millions are deprived of even the doubtful benefits of the law of their own country, could and should become the subject of action that would not have to respect the rights and rules of sovereignty’.58 Arendt’s cosmopolitanism must certainly not be confused with advocacy of world government, which she believed would undermine the plurality of nationalities, cultures and political identities and signal ‘the end of all political life as we know it’ – in other words a political life based on plurality, diversity and reciprocal limitations.59 She may well, on the other hand, have had in mind federal-type political solutions based on relativised sovereignty, a proliferation of checks and balances on power and constraints on the power of the nation-state to be achieved through a combination of citizen-led initiatives and international jurisdiction. Though her institutional conceptualisation of this possibility remained vague, her emphasis on the need to break down the automatic equation of nationality with citizenship can hardly be in doubt. As she wrote in her preface to the first edition of the Origins, ‘human dignity needs a new guarantee which can be found only in a new political principle, in a new law on earth, whose validity this time must comprehend the whole of humanity while its power must remain strictly limited, rooted in and controlled by newly defined territorial entities’.60 Whatever its cosmopolitan implications may be, the essential point for our purposes remains the following: those who claim to find confirmation in Arendt’s work that human rights are always those of national citizens, or who conversely condemn her inability to ‘conceptualise’ human rights – without forgetting those who think to join her in arguing that declarations 57 58 59 60

Hannah Arendt, Eichmann in Jerusalem (1963), New York (NY), Viking Press, 1964, p. 1284. Arendt, Origins, p. 871. Hannah Arendt, Men in Dark Times, New York (NY), Harcourt, 1993, p. 81. Arendt, Origins, p. ix.

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of rights have lost their relevance – all miss the aporetic nature of her approach. Arendt’s reasoning is ‘aporetic’ in the sense of a type of reasoning that attempts to grasp an everyday political concept, to challenge traditional ways of understanding it and thereby to enable a reconceptualisation of its meaning.61 Far from blocking the path, Arendt’s thought outlines a critical space that opens the way towards a ‘political’62 conception of human rights. A ‘political’ Conception of Human Rights In French political philosophy, Etienne Balibar has been the foremost exponent of this ‘political’ interpretation of human rights in Arendt’s writings for the last decade or so, and Etienne Tassin has more recently taken up the argument.63 However, the ground for this ‘political’ interpretation of human rights had already been extensively prepared by Miguel Abensour’s reinterpretation of Arendt’s thought. Against the simplifications of various anti-totalitarian currents defined by an ‘apoliticism that degenerates into depreciation of politics and over-valuation of ethics’,64 Abensour aimed to show in his 1996 publication that Arendt was leagues apart from the classic liberal critique which sees totalitarianism as a submission of the private domain to the public: ‘Indeed, totalitarian domination cannot subject private to public life because it means above all and essentially the destruction not only of public life itself but of its very possibility.’65 Abensour reinterprets Arendt as anything but a ‘conservative’ philosopher, seeing a libertarian promise in her work that has tangible affinities with Claude Lefort’s ‘savage democracy’ – two authors who decried totalitarian domination in similar terms, and strove to ‘rediscover’ politics. Abensour does not tackle the issue of human rights itself; but the reinterpretations of the concept proposed by Balibar and Tassin are clearly in his debt, both bringing out the paradoxes of Arendt’s conception of human rights and its singularly political dimension. 61 62

63

64 65

Ayten Gündogdu, ‘Perplexities of the Rights of Man: Arendt on the Aporias of Human Rights’, European Journal of Political Theory, 11, 1, 2012, pp. 4–24. For a remarkable overview of different ways of thinking about human rights and of Arendt’s ‘political’ conception, see James Ingram, ‘What is a Right to Have Rights? Three Images of the Politics of Human Rights’, American Political Science Review, 102, 4, November 2008. The first French-language work on this should also be mentioned here: Robert Legros, ‘Hannah Arendt : une compréhension phénoménologique des droits de l’homme’, Etudes phénoménologiques 2, Brussels, Ousia, 1985, pp. 27–53. Miguel Abensour, ‘D’une mésinterprétation du totalitarisme et de ses effets’, Tumultes, 8, 1996, pp. 11–44, cited by Traverso, Le Totalitarisme, p. 756. Abensour, ‘D’une mésinterprétation du totalitarisme et de ses effets’.

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The first paradox of the human rights question in Arendt’s work – and the main source of the misunderstandings discussed previously – lies for Etienne Balibar in her combination of a radical rejection of any anthropological basis for human rights with an uncompromising defence of their imprescriptible character, according to which neglecting human rights amounts to a destruction of the human. The paradox is that Arendt appears to deny with one hand what she wishes to implement with the other.66 Hence the risk of mistaking her criticisms of the discourse of natural rights for an attack on human rights themselves. It is difficult to deny that Arendt no longer believes it possible to base human rights on the idea that man is an integral part of the cosmos. Beyond the fact that natural laws are difficult to interpret, so-called natural rights in Arendt’s view are merely (as we have seen) the woeful defences of human dignity against political evil – including before the birth of totalitarianism. Beyond this, Arendt argues that the philosophical premises for natural rights, already fragile in the eighteenth century, can no longer be justified in the eyes of twentieth-century men and women. Yet though she forcefully refuses an ‘essentialist’ conception of rights that links them to a universal or formal human essence incarnated in each individual, Arendt does not conclude that the notion is devoid of meaning: The only condition given for the establishment of rights is the plurality of human beings; rights exist because we inhabit the earth with other human beings. No divine commandment issuing from the creation of man in God’s image and no natural law arising from the nature of man are sufficient to establish a new law on earth, for rights emerge from human plurality while divine commandments or natural law would be true even if there were only a single human being.67

In other words, to be human is to be one of a plurality of individuals, each unique and each able to engage in collective action. The Human Condition thus presents a view of existence that posits the defining characteristic of human beings as the capacity to initiate action, an ability rooted in unpredictability and intersubjectivity. Hence, Etienne Tassin writes, the un-founded character of human rights in Arendt’s thought – in the sense that for Arendt human rights are not an origin to be rediscovered (or restored), but an invention or a constant beginning.68 For Arendt, human rights are not natural: they are conventions, forms of recognition produced by agreement between human beings, the fragile artefacts of communal life. 66 67 68

Balibar, ‘Arendt, le droit aux droits et la désobéissance civique’, p. 202. Arendt, Origins, p. 871. Balibar, ‘Arendt, le droit aux droits et la désobéissance civique’, p. 201.

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This allows us, following Etienne Tassin, to take the paradox one step further: human rights presume the existence of citizenship even though we persist in seeing them as independent of it. However, this is not a factual observation as the advocates of a ‘positive’ reading of Arendt would argue. Human rights in fact presume the existence of citizenship not as a fact but a right: ‘Human rights mean that men are men only when they are recognised as such by other men who declare publicly that every man has the right to be recognised as a being with rights . . . .’69 Though Arendt, like Bentham, emphasises the importance of institutional guarantees of liberty, her defence of civil disobedience remains distant from the positivist idea that there are no rights outside the prescriptions of law guaranteed by a sovereign. Neither does she align herself with Burke’s notion that effective rights are passed down between generations in a political community conceived as a family. ‘Arendt’s idea is far more radical, and at the philosophical antipodes [of this]’, Balibar writes: outside the institution of community (understood as reciprocal action), ‘there can be no human beings’.70 A politics of human rights must thus be seen as the active and cooperative practice of individuals offering reciprocal recognition to others as their equals. This is why, rather than an alternative to radical or revolutionary politics, ‘the politics of human rights is one of its most important expressions’.71 If, like Balibar, we are to ‘think with Arendt beyond Arendt’, the community of citizens is no longer an existing community or an ideal community located in the past, but a community ‘to come’, a community without any previous model which is bound to appear first as a non-community but is virtually present in the struggle for its own definition. With this, we reach a view of Arendt’s conceptualisation of rights that dovetails significantly with the ideas developed by Jacques Rancière and Claude Lefort. According to Jacques Rancière, individuals become political actors in the very act of claiming rights that they do not yet have. In opposing man and the citizen, Rancière argues that Arendt failed to see a third possibility: that ‘the Rights of Man are the rights of those who have not the rights they have, and have the rights they have not’. This process is exemplified for Rancière by the actions of women during the French Revolution, who could simultaneously show that they were being deprived of the rights 69 70 71

Tassin, ‘La signification politique des droits de l’homme : lectures de Hannah Arendt’, p. 118. Balibar, ‘Arendt, le droit aux droits et la désobéissance civique’, p. 210. James Ingram, ‘Democracy and its Conditions: Etienne Balibar and the Contribution of Marxism to Radical Democracy’, in Martin Breaugh, Christopher Holman et al. (eds.), Thinking Radical Democracy: the Return to Politics in Postwar France, Toronto, Toronto University Press, 2015, p. 217.

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they held (thanks to the Declaration), and conversely that by taking action they were investing themselves with the rights that the Constitution denied them.72 Yet in the light of a ‘political’ interpretation of Arendt’s thought, we may wonder whether Rancière is in fact ‘more Arendtian than he realises’.73 For Arendt too, equality is not a given but a product of human action, achieved through negotiation, struggle, compromise, defeat and the victory of all those originally excluded from legal definitions of rights (whether slaves, women, the poor and underprivileged, or LGBT groups), who have attained full citizenship by claiming rights that they had not previously enjoyed. Upending the constitutional formulas that base human rights on citizen rights, Arendt posits that human rights are not the basis but rather the outcome of politics.74 This political conception of human rights is also close to that expounded by Claude Lefort, who argues that it is actors themselves who create their liberties by declaring their rights.75 Our point here is not to deny the significant divergences between Arendt, Lefort and Rancière, but to show that all three, albeit in different ways, share a political conception of human rights. We can therefore see a very different interpretation of Arendt emerging from that which might have seemed to condone scepticism about human rights discourses and politics. For several contemporary authors, Arendt’s thought opens the way instead towards a ‘political’ conception of rights, which remains distinct from a ‘philosophical’ conception in that its concern is less to identify the foundations of human rights than to explore how they can be put into practice. From this angle, as James Ingram humorously puts it, human rights may be likened not to ‘unicorns’ (as Alisdair MacIntyre suggests) but to ‘mules’, which do not exist naturally and do not reproduce as such, but can exist and therefore must be said to have real effects.76 To put it another way: we may indeed not be born equal, but we can become equal through a proclaimed will to ensure rights mutually for one another.77

*

The publication of ‘The Decline of the Nation-State and the End of the Rights of Man’ now dates back sixty-seven years, to the exact moment 72 73 74 75 76 77

Jacques Rancière, ‘Who is the Subject of the Rights of Man?’, The South Atlantic Quarterly, 103, 2/3, 2004, p. 302. We owe this phrase to Etienne Tassin. Alison Kesby, The Rights to Have Rights. Citizenship, Humanity and International Law, Oxford, Oxford University Press, 2012, p. 5. Claude Lefort, ‘Droits de l’homme et politique’, in L’Invention démocratique, Paris, Fayard, 1981, p. 66. Ingram, ‘What is a Right to Have Rights?’, p. 402. For a recent interpretation close to what we suggest here, see Raphaëlle NollezGoldbach, Quel homme pour les droits?, chapter 2, III, Paris, CNRS Editions, 2015.

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when a transition was starting – after two centuries of absolute legal sovereignty – towards the emergence of fundamental liberties and rights as a new juridical category, particularly within the European polity through the European Council or the provisions of the treaties drafted by the European Communities. From this point, to echo the elegant phrasing of Mireille Delmas-Marty in her preface to a collection of texts on fundamental liberties and rights, ‘law no longer has every right’.78 Several more or less binding international texts provide for the protection of the rights of the person regardless of nationality – the most sophisticated model being the European Convention on Human Rights and fundamental freedoms, ratified in Rome in 1950. All of which makes reexamination of Arendt’s chapter the more pertinent. We know that Arendt staunchly refused to define herself as a ‘philosopher’.79 She was in fact a philosopher beyond a doubt, and among the greatest; but by this refusal, she meant that in her conception of thought it was impossible to speculate in a vacuum, free from concerns of understanding the world and elucidating action. In this sense, studying Arendt’s output merely in its own right would not be faithful to her own approach: we must look beyond this at its relevance to contemporary political issues. This is also the reason why Arendt’s writings have produced a substantial secondary literature in recent times, seeking to draw out the implications of her vision of human rights in order to conceptualise citizenship beyond national borders.80 In particular, some scholars have posited a more or less direct connection between the predicament of stateless persons in the interwar period and that of asylum-seekers and undocumented migrants today. It is easy enough, of course, to highlight the differences between these two situations. The vast majority of asylumseekers and sans-papiers are in fact not stateless: most, driven by many and varied reasons, have fled a home country to establish themselves elsewhere. Asylum-seekers are also not stricto sensu ‘without rights’, since they still hold the rights recognised by the 1951 Geneva Convention on the status of refugees, completed by the 1966 Protocol – which was intended to ensure recognised legal status for individuals outside their country of nationality (or usual residence) who ‘reasonably’ fear persecution because of their race, religion, nationality, political opinions or 78 79 80

Mireille Delmas-Marty and Claude Lucas de Leyssac, Libertés et droits fondamentaux, Paris, Seuil, 2002. Interview with Günter Gaus, 28 October 1964, in La Tradition cachée, Paris, Christian Bourgeois, 1987, pp. 222–223. See especially Gündogdu, Rightslessness in an Age of Rights; Monika Krause, ‘Undocumented Migrants: an Arendtian Perspective’, European Journal of Political Theory, 2008, 7, 3, pp. 331–338 and Etienne Tassin, Le Maléfice de la vie à plusieurs, Paris Bayard, 2012.

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membership of a given social group. In the European area, the European Convention on Human Rights allows any person, even if not from a state party to the Convention, to appeal to the European Court of Human Rights for arbitration on perceived violations of rights recognised in the treaty. At first glance it might seem tempting to conclude that there are no longer individuals ‘without rights’ in the European area and that Arendt’s text is therefore outdated. This observation would be completely misplaced. First, it is well known that only a fraction of contemporary asylum seekers is covered by the Geneva Convention, which applies neither to individuals fleeing foreign or civil war nor to victims of violence arising from generalised insecurity or anarchy.81 Second, though the scope of the Convention has been expanded in many European decrees, many states have doggedly sought ways of freeing themselves from their international obligations over the last three decades; the Hungarian case is only the most recent and flagrant example of this.82 Above all, arguing that international proclamation of rights alone is enough to put an end to the predicament of those ‘without rights’ misses the real meaning of the concept in Arendt’s view. To be ‘without rights’ does not mean being stripped of a specific right: a criminal may have his freedom of movement taken away yet not be ‘without rights’. Fundamental deprivation of human rights is ‘manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective’.83 But attempting once more to think ‘with Arendt beyond Arendt’, we might say that those without rights find themselves in a precarious situation such that claiming rights, and therefore access to justice, becomes difficult or even impossible. Arendt talks about poverty in these terms, in On Revolution, describing it as ‘a state of constant want and acute misery whose ignominy consists in its dehumanizing force; poverty is abject because it puts men under the absolute dictate of their bodies, that is, under the absolute dictate of necessity . . . ’.84 This ‘absolute dictate of the body’ makes any participation in public life on an equal footing extremely difficult. Ayten Gündogdu has recently countered the received wisdom according to which Arendt neglects both the social dimension of oppression and the fact that political participation assumes prior satisfaction of material needs. Against this, Gündogdu demonstrates that Arendt 81 82 83

See Danièle Lochak, ‘Qu’est-ce qu’un réfugié ? La construction politique d’une catégorie juridique’, Pouvoirs, 144, 2013, p. 45. See notably Virginie Guiraudon, ‘L’Europe et les réfugiés: une politique peu solidaire’, Pouvoirs, 144, 2013, pp. 79–90. Arendt, Origins, p. 296. 84 Arendt, On Revolution, p. 61.

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questions the distinction between a moral principle (compassion) and a political one (solidarity).85 Rather than drawing an immovable line between the ‘political’ and the ‘social’, Arendt’s purpose is to stress that social issues must be politicised in so far as they are linked to the equality and freedom enjoyed by actors in the public sphere, rather than being made into token issues of a politics of compassion driven by pity. In other words, Arendt’s criticism of the French revolutionaries was not that they had politicised poverty but quite the opposite – that they had failed to do so by reducing the ‘poor’ to an undifferentiated mass of victims, and had not managed to ‘institute conditions that could have enabled citizens to politically address poverty’.86 Like those in extreme poverty, asylum seekers and undocumented migrants rarely live in conditions that allow them to flourish as autonomous subjects, and there are numerous other such types of social marginality and vulnerability in which inherent fragmentation and division are a barrier to group mobilisation. Thus understood, the notion of a ‘right to have rights’ remains valuable in identifying concrete social obstacles that stand in the way of attaining rights, and actions that can help individuals in any situation to make their voice heard. We can also extend it into the endeavour of rekindling the connection between political and social philosophy that the public sphere has lost, over the past few decades, to the hegemonic role-split between an asocial conception of rights and a conservative critique of individualism. There is nothing absurd about marrying Arendt’s thought with the wisdom of the sociological tradition, as well as with Marx’s questions as to whether the real individual could experience freedom.87 If Arendt’s critique of totalitarianism never stopped her stressing the importance she accorded both to the ‘councilist’ revolutionary tradition and Marx’s philosophy, this is because both Marx and Arendt looked squarely at the contradictions, tensions, limits and promises inherent in the Declaration of Rights in order to pursue a common goal of emancipation. We may therefore be able to respond to Agamben’s surprise at the lack of clarity in the expression of the ‘rights of man and the citizen’, when he asks ‘whether the two terms refer to two distinct entities or rather form a hendiadys, the figure in which the first term is already contained within 85 86 87

See especially Traverso, La Fin de la modernité juive, pp. 103–104. Gündogdu, Rightlessness in an Age of Rights, p. 58. As witnessed by the similarities between Arendt’s analysis of democratic authority and that given in Robert Damien’s recent Eloge de l’autorité (Paris, Armand Colin, 2013), using the radically different tools of Durkheimian sociology and the French epistemological tradition stretching from Bachelard to Dagognet by way of Canguilhem.

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the second’.88 Our answer rests on the vision of both Marx and Arendt, who invite us to conceive the relationship between man and the citizen as a dialectical unity which represents neither complete independence between the two terms nor one term being contained or subsumed in the other. However, one essential difference remains: Marx believes it possible to resolve the tension between the terms into the superior unity of a classless society, whereas Arendt makes of this tension the fertile prerequisite for all political existence.

88

Agamben, Moyens sans fin, p. 30.

Conclusion: Towards a Political Understanding of Human Rights

The first chapter of this book identified two broad critiques of the uses of human rights in democratic societies today. The first or ‘communitarian’ critique draws attention to the danger of fragmentation inherent in a culture of rights which it sees as dangerously legalist and absolutist. The second, ‘radical’ critique views the recourse to human rights as one symptom among many that society has given up on the promise of emancipation. We now respond to these two critiques in succession, before returning to the outline of a ‘political’ conception of human rights sketched in Arendt’s philosophy. Human Rights and Civic Desertion1 In his recent book on French intellectual life, with a hint of ritualism, the Oxford historian Sudhir Hazareesingh notes the French preference for abstract arguments over discussion founded on empirical observation.2 Indeed, what is most striking about the tireless rehearsal of the allegedly destructive effects wrought by the primacy of human rights is perhaps its disjuncture from reality. Many claim without further explanation that the ascendancy of rights now determines social reality. Has the discourse of human rights really become the exclusive language of contemporary democracy, though? Are its effects really as alleged by its opponents? The argument that the consecration of human rights (if it really exists) has emptied civic commitment of its content is usually taken as so selfevident that authors offer no empirical information about new types of sociability, or about associative or activist movements, to back it up.3 1 2

3

On this point see Justine Lacroix, ‘Human Rights and Politics’, Books and Ideas, 2012, www.booksandideas.net/Human-Rights-and-Politics.html. Sudhir Hazareesingh, How the French Think. An Affectionate Portrait of an Intellectual People, Penguin, 2015, p. 237 (Ce pays qui aime les idées, trans. M.-A. de Beru, Paris, Flammarion, 2015). Serge Audier, La Pensée anti-68. Essai sur les origines d’une restauration intellectuelle, Paris, La Découverte, 2008, p. 313.

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This obscures the fact that the idea of human rights remains the preserve of a minority in global terms, and that the rhetorical triumph of human rights by no means always translates into practice. This is witnessed within the European Union itself by the half-hearted support for causes that bear directly on fundamental rights – campaigns, for instance, against incursions on the rule of law in Hungary, the plight of Roma people in several central- and east-European states, or the parlous conditions that prevail in many French and Belgian prisons.4 Until recently, public opinion remained largely unmoved even by the drowning of thousands of migrants in the Mediterranean. Following a recent and extremely lukewarm report from the Council of Europe on the state of human rights in France,5 which drew particular attention to the plight of disabled people and lone minors arriving as refugees or asylum seekers, we might well question beliefs that Europe today exists under ‘democratic governance with scrupulous respect for human rights’6 or that French democracy is groaning under the weight of a supposed primacy of individual rights. In fact, the surest bulwark against hedonist consumerism and spineless individualism remains democratic self-organisation of society through mobilisation for rights.7 It is true that there are more (and more varied) ‘minority’ demands for recognition of rights in the public sphere today than in the nineteenth and most of the twentieth century. Such groups enjoy neither the permanence of parties and unions nor the capacity of these organisations to offer their members a cohesive environment and a shared interpretive lens on the world. Yet these demands for respect and extension of existing rights, and access to new ones, always happen by way of newly formed groups of individuals ‘who mobilise together to win recognition of rights which they believe they are denied’.8 If rights protect individual interests, this does not mean they cannot be claimed through a political campaign fought with others and for others: ‘in the real world . . . what is striking is that, on the whole, claims are put forward by people on other individuals’ behalf ’.9 The same applies to the implausible idea that the members of a liberal society only now see each other as holding individual rights. We have seen 4 5 6 7

8 9

See the 2015 report by Human Rights Watch, www.hrw.org/fr/rapport-mondial-2015 Report by N. Muiznieks, Commissioner for human rights for the Council of Europe, following a visit to France from 22 to 26 September 2014, published 5 March 2015. Pierre Manent, La Raison des nations, Paris, Gallimard, 2006, p. 16. See Richard Wolin, ‘From the Death of Man to Human Rights: The Paradigm Change in French Intellectual Life 1968-1986’, in The Frankfurt School Revisited and Other Essays on Politics and Society, New York (NY), Routledge, 2006. Catherine Colliot-Thélène, La Démocratie sans demos, Paris, PUF, 2011, p. 6. Jeremy Waldron, Nonsense upon Stilts, London, Methuen, 1987, p. 196.

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how Sandel uses the family model as the prototype of an institution founded on shared meanings and aims, and Manent argues that the situation of women, now free to live ‘disconnected’ from others, illustrates the divisive effects of fundamental rights.10 Yet Will Kymlicka’s objections to these arguments remain relevant: which, rights or love, is the sounder basis for choice? The fact that women can change career without their spouse’s permission hardly means that all women will choose to use this right at the price of family break-up. The primacy of rights does not exclude affective ties, but simply prevents corruption of these relationships by systems of domination and subordination.11 These critiques of the primacy of rights, which for the most part ignore the findings of legal sociology, rest on the received wisdom that too much credence given to rights discourse automatically entails a loss of civic autonomy. These supposed consequences should be qualified in the light of research findings that demands for rights have stood alongside and encouraged the development of social solidarities and political collectivities. Several empirical studies have shown that the individualist bias of rights discourse coexists with perspectives that vehicle a collective or relational vision.12 These studies also show that (counter-intuitively, perhaps) fears about the incursion of justice into private and public life are largely overstated: ‘The supposed crisis of the judicial system, described as all-powerful and snowed under with complaints, is in fact a construction widely exploited to question the affirmation of rights by citizens.’13 Such conclusions may not be unanimous, but the idea that human rights discourse jeopardises collective participation would nonetheless surely benefit from some empirical reinforcement. Critics of the fragmentary effects of individual rights also ignore works of political philosophy which demonstrate that their scepticism may be founded on a narrow, rigid conception of fundamental liberties and vision of the relationship between rights and practice leaving little space for dialectical processes.14 As Karen Zivi writes, claims to rights can be interpreted as a ‘practice of persuasion’ which is always part of a defined context. Rights are not attributes held independently of our relationship 10 11 12 13 14

See Chapter 1. Will Kymlicka, Contemporary Political Philosophy: An Introduction, Oxford, Oxford University Press, 2002, p. 210. Michael McCann, Rights at Work. Pay Equity Reform and the Politics of Legal Mobilization, Chicago (IL), The University of Chicago Press, 1994. Liora Israël, L’Arme du droit, Paris, Presses de Sciences Po, 2009, p. 129. See especially John Tomasi, ‘Individual Rights and Community Virtues’, Ethics, 101, 3, 1991, pp. 521–536 and Kenneth Baynes, ‘Rights as Critique and the Critique of Rights: Karl Marx, Wendy Brown and the Social Function of Rights’, Political Theory, 28, 4, 2000, pp. 451–468.

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with others, but complex intersubjective practices and linguistic acts whose effects cannot be completely controlled or understood.15 In terms of the French case, the usual criticism levelled at Lefort – that he failed to see how ‘human rights politics’ might lead to collective powerlessness – does not do this author justice. Lefort tirelessly stressed that winning new rights always depended on public recognition, vehicled by collective debate. Exploring the political dimension of human rights did not mean sidelining civic participation and the need for a public sphere. Quite the opposite: Lefort reminded us that campaigns for new rights, which are part of a wider collective struggle for justice and liberty, are therefore a building block for a public sphere that frees up communication between citizens.16 Lefort situated his interpretation in the broader context of a democratic logic which he understood as a process of emancipation:17 human rights are the product of past struggles and the chief aim of present ones. Democracy always retains a ‘savage’ side,18 for its greatest resource lies precisely in challenges or demands by those excluded from its benefits. To the conservative question of who is the ‘man’ written into the Declarations of his rights, Lefort responds: everyone and no one. The indeterminate idea of ‘man’, in his view, is bound up in the indeterminate nature of democracy: it is the actors of democracy themselves who create their liberties by proclaiming their rights.19 Clearly, Lefort’s vision is difficult to reconcile with a defensive conception of democracy concerned with the de-limiting effects of a dynamic of rights. In this vein, Gauchet’s idea of a type of ‘democracy against itself’ really has the value of a rhetorical figure of speech, attributing to rights a boundless nature that is in fact merely an extension of market relations into different social spheres. Democracy is always in some measure ‘against itself’, since an established right is no sooner stated than it becomes ‘elusive’ and cannot be fixed in place. Now, ‘where law is in question, it is the established order that is in question: this is one of the constitutive definitions of democracy’.20 This means that democracy 15 16 17 18 19

20

Karen Zivi, Making Rights Claims. A Practice of Democratic Citizenship, Oxford, Oxford University Press, 2012, p. 62. Audier, La Pensée anti-68, p. 312. Catherine Colliot-Thélène, ‘L’interprétation des droits de l’homme: enjeux politiques et théoriques au prisme du débat français’, Trivium, 3, 2009, http://trivium.revues.org. Claude Lefort, ‘La communication démocratique’, in Le Temps présent. Ecrits 1945–2005, Paris, Belin, 1979, p. 389. See especially Jean L. Cohen, ‘Rethinking the Politics of Human Rights and Democracy with and beyond Lefort’ in Martin Plot (ed.), Claude Lefort, Thinker of the Political, Basingstoke, Palgrave, 2013, pp. 124–135. Lefort, ‘La pensée politique devant les droits de l’homme’ in Le Temps présent. Ecrits 1945–2005, ibid.

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experiences this internal conflict only when it confronts its own limitations, in a process that is less about boundlessness as loss of a moral compass, and more a permanent reflexive and critical readoption of the value of the inherited limits of democracy. Lefort certainly did not ignore the potential for democracy to be misused, and as early as 1979 drew attention to a twin danger to be avoided: seeing any demand automatically in terms of rights, and striving to reach an ultimate or definitive criterion for the identification of what is and is not properly bound up with rights. ‘We ourselves – not only the state – are in the predicament of repeatedly having to confront an indeterminate value and having to maintain, in the name of what we hold to be truth and justice, that a right is either inadmissible or admissible.’21 We cannot, then, accuse Lefort’s philosophy of reducing democracy to mere autonomy of the legal subject in evading the moment of collective self-determination. The sovereignty of a people, though inappropriable, nonetheless remains in his thought the normative foundation of democracy. Human Rights and Emancipation The other common objection to human rights today moves away from the danger of social atomisation and focuses instead on the ideological and disciplinary aspect of a rights discourse seen as abandoning the fight for democratic and social autonomy. There are two strands to this critique. On the one hand, the correlation sometimes suggested between glorification of individual liberties and the decline of social justice neglects the fact that the rise of social inequality represents a regression of equal liberties, which are at the heart of the idea of human rights.22 Whereas authors who advance this thesis talk of a ‘proliferation of rights’, the reality is one of individuals forced to adjust to the rigours of the market at the expense of social rights, and as a result living in ever more precarious situations. On the other hand, though the critique of the normalising function of human rights does identify a real danger, it is also incomplete as it marginalises the welcome effects of demands for rights in bringing individuals together, giving them a ‘voice’ and allowing them to shape their own future.23

21 22

23

Lefort, ‘La communication démocratique’, p, 395. In different and sometimes contrasting ways, this idea permeates the sophisticated work of Etienne Balibar, Jacques Bidet, Robert Castel, Pierre Rosanvallon, Alain Supiot and André Tosel. Zivi, Making Rights Claims, p. 83.

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These intuitions from the field of political philosophy are supported by sociological research on conditions for rights-based mobilisation, demonstrating that while law certainly still works to maintain hierarchy, it can also be, ‘in the hands of defiant citizens, a source of disorder and egalitarian reordering’.24 In his work on campaigns for equal pay across the gender divide, Michael McCann has thus shown that ‘taking legal rights discourse seriously in political practice has opened up more than closed debates, exposed more than masked systematic injustices, stirred more than pacified discontents, and nurtured more than retarded the development of solidarity among women workers and their allies’.25 In counterbalance to the Manichaean vision of law as automatically reinforcing social domination, several authors have pointed out that it is the ‘potential for reversal’ that gives the law such ‘political force’.26 In other words, these ‘leftist’ critiques of human rights forget what Michel Foucault himself recognised, particularly if we read his works in the light of his own political activism: that campaigns for rights can, by their very unpredictability, be forces for emancipation. Law, of course, functions as a ‘cover’ for ‘disciplines’, and Foucault thus described the legal activity of the last two centuries as a surface phenomenon (‘the forms which make acceptable this essentially normalising power’).27 But he also stressed that ‘law is neither the truth of power nor its alibi. It is an instrument of power which is at once complex and partial’.28 His diagnosis was that the contradiction between normalisation and the ideal of law, which had previously sheltered and been concealed behind the notion of sovereignty, had now come strongly to the fore. The way forward was to move ‘in the direction of a new right, one which would be anti-disciplinary, but at the same time liberated from the principle of sovereignty’.29 Though he preferred to speak of the ‘rights of governed peoples’, Foucault appeared to think that the recourse to human rights was indeed moving in this direction. This transpires in several interviews and opinion columns published at the end of his life in which he defends existing rights and calls for recognition of new ones, for example under the umbrella of a ‘relational right’ that would allow ‘all types of relationships to exist without prevention, obstacles or annulment by relationally impoverishing institutions’.30 ‘The misfortune of human beings’, 24 26 27 28 29 30

McCann, Rights at Work, p. ix. 25 Ibid., p. 14. Liora Israël, L’Arme du droit, Paris, Presses de Sciences Po, 2009, p. 13. Michel Foucault, La Volonté de savoir, Paris, Gallimard, 1976, p. 190. Michel Foucault, ‘Power and Strategies’ (1977), in Power/Knowledge: Selected Interviews and Other Writings 1972–1977, Pantheon, 1980, p. 141. Foucault, ‘Cours du 14 janvier 1976’ in Dits et écrits, III, 194, pp. 188–189. ‘The Social Triumph of the Sexual Will: A Conversation with Michel Foucault’ (‘Le triomphe social du plaisir sexuel: une conversation avec Michel Foucault’, interview with

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Foucault also said in 1984, ‘must never be a mute residue of politics. It is the foundation of an absolute right to rise up and address all who hold power.’31 Demands for rights, in other words, must not be simply reduced to a victimisation tactic or reification of existing identities. Even if they do not call time on discrimination and injustice, they can be understood as performative practices through which we become citizens who alter and reinvent their political identities. It is in this spirit that a number of current authors have radicalised Lefort’s conception of a democracy always ‘in excess’ of any pre-existing formulation. In the hands of authors such as Jacques Rancière or Étienne Balibar we thus see a conceptualisation of democracy understood as boundless by its very nature. However, illimitation here means not the excess of unchecked expansion but the gesture of reaching out for autonomy, validated by campaigns for rights, through which subjects continually push the boundaries of the public and private, of the social and the political. Social plurality, which feeds resistance to the domination of a self-designated elite, is the source of a democratic process conceived as a permanent reshaping of social divisions. It is this perpetual motion that constitutes the force of democratic life. In short, these authors combat the idea that the best defence we can give democracy is to force it to admit its own limits with a different proposal: that the defence of democracy passes by way of affirming its fundamental illimitation.32 In the era of capitalist globalisation, claims to rights – including both the struggle against social violence and critiques of the limitations of the national state – take their place, for some thinkers, as the privileged instrument of radical democracy. In Les Frontières de la démocratie, Balibar thus implicitly responds to Gauchet when he points out that ‘without a politics of human rights, there is no democratic politics at all’. The great Declarations of rights must be seen as radical discursive operations that deconstruct and reconstruct the political domain by stating a ‘universal right to activity and recognition, in all domains where the problem arises of collective organisation of the exercise of ownership, power and knowledge’.33 ‘An egalitarian turn of phrase is not insignificant’ writes Rancière,34 meanwhile, echoing Lefort’s emphasis on the

31 32 33 34

G. Barbedette, 20 October 1981), reproduced in Dits et Ecrits, II, Paris, Gallimard, 2001, p. 1129. Foucault, ‘Face aux gouvernements, les droits de l’homme’, Libération 967, 30 June1 July 1984 in Dits et écrits, vol. II, p. 1527. Martin Deleixhe and Justine Lacroix, ‘Aux bords de la démocratie. Droits de l’homme et politique chez Etienne Balibar’, Raison publique, 19, 2014, p. 44. Etienne Balibar, Les Frontières de la démocratie, Paris, la Découverte, 1992, p. 247. Jacques Rancière, Aux bords du politique, Paris, Gallimard, Folio, 2012, p. 87.

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emancipatory dimension in real terms of liberties described as purely formal.35 The issue is not to establish that the constraints imposed by individual rights can be reconciled with self-government, but rather to explore the way in which rights are invoked by, and in turn produce, democratic citizens. Insofar as claims to rights are bound up with the demand for inclusion, they may be understood as performative practices through which political communities take shapes which are by nature fluctuating. The connection between the indetermination of rights and democratic autonomy defines a conception of democracy that may be called ‘radical’. As Samuel Chambers points out, in the context of international debate this concept combines a break from orthodox Marxism and a critique of the oppressive effects of capitalism; or recognition of the emancipatory dimension of legal liberties and emphasis on forms of socio-economic domination. Beyond their differences, radical democracy philosophers all aim to marry socialism with democracy, with both seen as prerequisites for the other to exist. Chambers argues that radical democracy is different from social democracy in that it stresses the structurally unfinished nature of democracy.36 If equality, liberty or socialism are the goals of social democracy, radical democracy maintains the impossibility of attributing a telos to a democratic process defined by its perpetual openness to other possible realities, and to a social order which can only remain unequal since it is always imbued with power relations. With any possibility of ultimate reconciliation thus foreclosed, radical democracy in this argument means the radical impossibility of a finished, cut-and-dried democracy.37 The interest of this emphasis on the action of political subjects is that it moves beyond a ‘defensive’ and ‘partial’38 vision of rights to connect them more closely to the conditions for collective action. A ‘political’ conception of human rights refuses to draw rigid distinctions between the rights of the citizen – that is, of human beings acting in concert – and human rights, or those of the individual narrowly focused on his own interest. As the January 2015 attacks in Paris tragically reminded us, there are essentially no rights today – even that of free artistic expression – with no 35 36 37

38

Lefort, L’Invention démocratique, p. 66. We should recall here that the opposition between ‘formal’ and ‘real’ liberties does not appear in Marx’s work. Samuel Chambers, ‘Giving Up (on) Rights? The Future of Rights and the Project of Radical Democracy’, American Journal of Political Science, 48, 2, April 2004, p. 192. Chantal Mouffe, ‘Democratic Politics Today’, in Dimensions of Radical Democracy: Pluralism, Citizenship, Community, London and New York (NY), Verso, 1992, p. 4, quoted by Chambers, ibid. Cornelius Castoriadis, ‘La démocratie comme régime et comme procédure’, in La Montée de l’insignifiance. Les Carrefours du labyrinthe IV, Paris, Seuil, 1996, p. 236.

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political dimension. Human rights are always those of citizens too – and more precisely, as Cornelius Castoriadis pointed out, a large part of the struggle for democracy is to ‘establish real conditions that allow all to exercise these rights in practice’.39 This is also tantamount to saying that there are no effective rights outside campaigns for rights. When Arendt draws attention, with rather needless spite, to the naiveté and ineffectiveness of interwar human rights activists, her point is not that human rights themselves are absurd but that it is absurd to see them exclusively as a matter of compassion. Human rights are not about charity, Arendt believed. To which Lefort added that they were also no ‘moral sanctuary’. Rather, they are an integral part of the political domain and call for political action, including even the use of force when necessary. But can we really reduce citizenship to these campaigns for rights alone, whether for the implementation of rights already recognised or recognition of new ones? Several philosophers of radical or ‘agonistic’ democracy as it is sometimes called yield to the temptation of seeing political citizenship exclusively in terms of political action, deconstructing it as a status and thereby neglecting even the institutional bases of autonomy. Some take this reasoning so far as to conclude that it is less the legal outcomes of rights campaigns than the campaigns themselves that matter. Democratic citizenship, as Zivi writes in this vein, is valid only in terms of actions and above all in the fact of ‘claiming’ rights rather than ‘having’ rights.40 James Ingram, meanwhile, judges that Arendt’s formula of the ‘right to have rights’ must be understood not as the right to a status in a given community but as a right to politics – to take part in campaigns striving for the invention of new rights, new forms of inclusion and unprecedented forms of autonomy.41 This sort of trust in social and political effervescence may not be entirely convincing, with its ‘aphasia’ on the question of how to constitute and regulate democracy beyond moments of rebellion.42 The double undervaluing of legal status and belonging to a stable group, furthermore, is not wholly faithful to Arendt’s thought. Beyond the obligatory emphasis on praxis, a ‘political’ conception of human rights would do well to explore the three conditions for autonomy represented by legal personality, the existence of an ‘institutional’ grammar and that of a shared world. 39 41

42

Ibid. 40 Zivi, Making Rights Claims, p. 119. James Ingram, ‘Democracy and its Conditions: Etienne Balibar and the Contribution of Marxism to Radical Democracy’ in Martin Breaugh, Christopher Holman et al. (eds.), Radical Democracy: The Return to Politics in Post-War France, Toronto, Toronto University Press, 2015, p. 218. See Samuel Moyn, ‘Introduction: Antitotalitarianism and After’ in Pierre Rosanvallon (ed.), Democracy. Past and Future, New York (NY), Columbia University Press, 2006, p. 3.

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Status and Person Raising the question of status means first of all recalling that the quality of citizenship does not depend exclusively on taking part in political activism. Beyond those who cannot mobilise (whether because of a disability or, for instance, imprisonment preventing meaningful action43), even supposedly ‘ordinary’ citizens – those who have no wish to be involved in public political life – also have the ‘right to have rights’, even if they merely enjoy those won by others. Arendt repeatedly stresses in her 1943 article ‘We Refugees’ that it is the loss of a legal status in the world that made pariahs of stateless persons in the war era: ‘Very few individuals’, she writes, ‘have the strength to conserve their own integrity if their social, political and legal status is completely confused’.44 This view is reinforced in The Origins of Totalitarianism, in which Arendt highlights the loss of ‘legal status’ suffered by Jews and stateless individuals at this time.45 Beyond its practical ramifications, the question of legal personality – the ‘artificial mask created by law’46 – stands at the centre of Arendt’s thought.47 On Revolution recalls the etymology of the Latin word persona as the mask worn by theatre actors. The mask had two functions: ‘it had to hide, or rather to replace, the actor’s own face and countenance, but in a way that would make it possible for the voice to sound through’.48 Without the persona, all that remains would be an individual without rights or duties, ‘perhaps a “natural man”, but certainly a politically irrelevant being’.49 Perpetuating the tenets of the Durkheimian sociological tradition,50 Arendt shows here a sense of the social implications of rights which are often neglected by contemporary philosophers. It is precisely because equality is not a given but the outcome of an agreement among a community of actors that we need a form of legal personhood, without which we would be consigned to public invisibility. In other words, far from being a purely legal issue this is a clearly political one which raises further questions about the capacity of national 43 44 45 46 47 48 49 50

Alison Kesby, The Right to Have Rights. Citizenship, Humanity and International Law, Oxford, Oxford University Press, 2012, p. 132. Hannah Arendt, ‘We Refugees’, in Marc Robinson (ed.), Altogether Elsewhere: Writers on Exile, London, Faber & Faber, p. 116. Hannah Arendt, The Origins of Totalitarianism (1951), New York (NY), Meridian Books, p. 279. Ayten Gündogdu, Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants, Oxford, Oxford University Press, 2015, p. 101. See the analysis of Raphaëlle Nollez-Goldbach, Quel homme pour les droits ?, Paris, CNRS Editions, 2015, especially pp. 117–135. Hannah Arendt, On Revolution (1963), London, Penguin, 1990, p. 106. Ibid., p. 419. See the celebrated essay of Marcel Mauss, Une catégorie de l’esprit humain : la notion de personne, celle de ‘moi’ (1938), in Sociologie et anthropologie, Paris, PUF, 1950.

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and international institutions to confer this ‘mask’ that allows the voice of every citizen to carry into the public sphere.51 Both granting refugee status and progressive expansion of citizenship to include those who share a given national territory are conditions and consequences of the struggle for equality. As Étienne Balibar writes – alone among radical philosophers in his attempt to conceive conflict and status as one – it is precisely the tension between the egalitarian and statutory poles that creates ‘the full historical mobility of citizenship’. If an individual’s statutory position is not the sum total of citizenship, then citizenship cannot exist without it either: citizenship is part of the constitution of a differentiated society and the workings of a state.52 A Social and Institutional ‘Grammar’ This leads to a second difficulty that persists in the works of radical democracy theorists, namely a comparative discrediting of institutions and a lack of attention to social redistribution issues. For Jacques Rancière, democracy is ‘neither a form of government nor a social lifestyle’ but exclusively ‘the type of subjectivation through which political subjects exist’.53 This gives rise to a kind of mistrust for institutions seen as united en masse behind the ‘police’ or government. Yet as Alison Kesby has recently shown through a painstaking analysis of judgements by the European Court of Human Rights, and especially its dissenting opinions, conflicts over the interpretation of ‘recognised’ rights cannot be ascribed wholesale to the ‘police’: there is an emancipatory potential that is born within institutions themselves.54 Politics also unfolds in debate about the rules followed by what Rancière describes as the police. The headlong rush into a politics of challenge and dissent, then, does not of itself define a political sphere. It is one thing for rights campaigns to vehicle a collective dimension that can enrich the ‘relational fabric’ of society in largely unpredictable ways; it is quite another, and more debatable, to conclude from this that only ‘claims’ matter, rather than the legal progress and institutional forms that grow from them. This distinction is summed up by Catherine Colliot-Thélène’s observation that Rancière’s disregard for institutions leads him to neglect recognition of rights, although such is the aim of demands for the right to participate issuing from society’s ‘voiceless’ citizens.55 51 52 53 54 55

Gündogdu, Rightlessness in an Age of Rights, p. 106. Étienne Balibar, Droit de cité, Paris, PUF, 1998, p. 54. Rancière, Aux bords du politique, p. 16. Kesby, The Right to Have Rights. Citizenship, Humanity, and International Law, p. 136ff. Colliot-Thélène, La Démocratie sans demos, p. 12.

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It is true that this oft-rehearsed attack on Rancière is not entirely fair. He did after all respond to it in his book The Method of Equality, claiming that he was ‘not against institutions per se’ but rather the ‘spontaneity vs organization claptrap’, or quite simply ‘everything that redirects the idea of an institution based on liberty and equality towards the idea of an institution within the state power game as it is defined’.56 It would in this sense be fairer to say that Rancière does not make it a priority of his philosophy to define institutional forms that can vehicle demands for liberty and equality. However, Rancière does make a hasty leap from a presumption of equality to one of agency, or the capacity for action. He tells us little about the social conditions he sees as conducive to the radical claims which lie at the heart of the political in his view. ‘The poor . . . often no longer live in conditions that promote political solidarity, and there are many other types of social marginality and vulnerability whose inherent fragmentation and division block democratic mobilization.’57 As Robert Castel’s work reminds us, human beings must be ‘protected in order to be autonomous’, with access to a modicum of resources and rights in order to be free ‘not to have to live hand-to-mouth’58 and be in a position to engage in the sorts of demands for rights already discussed which do not of themselves define the democratic sphere. Lois McNay has recently offered a welcome clarification of this point. On the pretext of avoiding pity politics, she argues, proponents of radical democracy tend to take the agency of dominated people for granted, without further questions about the many guises of social hardship today – which often take the form of (sometimes internalised) obstacles which prevent certain groups from working towards their own interest. Categorical rejection of any action motivated by ‘pity’ (which we often find in criticism of humanitarian organisations) can encourage glorification of campaigns in their own right, without further inquiry as to what makes them possible or their implications for social justice or power imbalances. In McNay’s view, this is the source of the ‘social weightlessness’59 – an expression borrowed from Bourdieu – of a radical democracy which, braced against its rejection of paternalism, ends up dangerously isolated from daily practices and realities. For hidden behind the romantic affirmation of equality are complex situations that cannot be simplified 56 57 58 59

Jacques Rancière, The Method of Equality. Interviews with Laurent and Dork Zabunyan, trans. Julie Rose, Cambridge, Polity Press, 2016. Lois McNay, The Misguided Search for the Political, Cambridge, Polity, 2014, p. 163. Robert Castel, ‘L’autonomie, aspiration ou condition ?’, La Vie des idées, 26 March 2010. McNay, Misguided Search, p. 3.

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to a struggle been the ‘sans-parts’ and the rest. Certain ‘rightsimpoverished’60 individuals have only their minute share, which is always merely something better than nothing.61 Like the figure of the ‘foreigner’ – often invoked as such in contemporary writing though it encompasses such disparate situations – ‘the figure of the sans part fetishizes the position of marginality and substitutes a model of absolute exclusion for a more complex and nuanced account of the varying dynamics of inequality’.62 Above all, a ‘quasi mystical’ vision of politics, seen as always transient and fleeting, prevents work from the inside of the system to overcome structural inequalities.63 In other words: if democracy cannot be reduced to its regulatory elements, it also cannot easily manage without them except by sidestepping the principle of popular self-legislation and renouncing solid forms of social redistribution, which clearly assume the existence of some institutional mechanisms. This argument certainly does not advocate abandoning the term ‘human rights’, but rather calls for recognition of the fact that claims to rights must be part of a collective reflection on the content of public action that is likely to succeed in guaranteeing the social and political capabilities of the individuals concerned. The proclamation of human rights aims precisely to instil this political dimension of law, moving beyond the ‘police’, in institutions: the function of human rights is to maintain the institutor at the heart of the instituted. A Shared World A third confusion engendered by radical democracy philosophy arises from the temptation to sidestep the need for a shared world in the name of a legal subject divorced from membership of any stable group. For Catherine Colliot-Thélène, contemporary legal pluralism provides an incentive to move away from the classical notion of a demos as unified community. She boldly suggests that claims to rights, which call time for good on the determined demos, mean ‘leaving behind the idea or ideal of a democratic community’.64 This is the danger of undoing the ties between legal subject and community, writing off the need for a shared

60 61

62 64

Irène Khan, Pauvres en droits, Paris, Max Milo, 2009. Peter Hallward, ‘Staging Equality: Rancière’s Theatrocracy and the Limits of Anarchic Equality’ in Gabriel Rockhill and Philip Watts (eds.), Jacques Rancière: History, Politics and Equality, Durham (NC), Duke University Press, 2009, p. 157, quoted by Mc Nay, Misguided Search, p. 163. McNay, Misguided Search, p. 163. 63 Ibid., pp. 160–167. Our emphasis. Colliot-Thélène, La Démocratie sans demos, p. 23.

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world as collateral damage and ignoring the fact that a right recognised implies membership of a community. Rancière’s argument that emancipation ‘does not mean seceding’ but rather ‘affirming oneself as a partner in a shared world’ might be set against Colliot-Thélène here. This assumes that it is possible, even if appearances are deceptive, to play the same game as one’s opponent.65 This demand for a ‘shared world’ is furthermore at the heart of Arendt’s thought, with her statement that the first loss ‘which the rightless suffered was the loss of their homes, and this meant the loss of the entire social texture into which they were born and in which they established for themselves a distinct place in the world’.66 Clearly, the difficulty lies in meeting this imperative for a shared world without automatically identifying ‘home’ with membership of a specific national community. Though Arendt strove (as discussed in Chapter 7) to break the automatic equation of citizenship with nationality, it is as well to recall that she did not in fact reject the idea of the state. As Raphaëlle Nollez-Goldbach observes, Arendt distinguished between the nation, that ‘closed society to which one belongs by right of birth’ and the state, an ‘open society’ which ‘knows only citizens no matter of what nationality; its legal order is open to all who happen to live on its territory’.67 Her philosophy appears to call for relativisation rather than abandonment of sovereignty, to be achieved by concomitant internal and external processes: expanding checks and balances, and reinforcing international institutions and legal systems. Arendt’s thought enables us to advocate democratisation and a judicious opening of borders by stating firmly that those within the territory are also of the territory. Or, to borrow Rainer Forst’s conceptualisation, human rights assume the moral imperative that any human being must be subject only to those institutional norms or actions that can be justified to her. This ‘right to justification’ means that the aim of human rights is first of all ‘internal’: before placing limits on state autonomy, they must first ensure their legitimacy with all the actors they affect.68 The implication here is that to break up the state form in the name of popular agency would in reality support neoliberalism and ‘shelve the ambition of achieving a society of equals’.69 As things stand, the state is 65 67 68 69

Rancière, Aux bords du politique, p. 91. 66 Arendt, Origins, p. 293. Hannah Arendt, ‘The Nation’, The Review of Politics, 8, 1, January 1946, p. 139, cited by Raphaëlle Nollez-Goldbach, Quel homme pour les droits?, p. 129. Rainer Forst, ‘The Justification of Rights and the Basic Right to Justification: A Reflexive Approach’, Ethics, 120, 4, 2010, pp. 711–740. Pierre Rosanvallon, ‘Postface. Retour sur mon travail’ in Sarah Al-Matary and Florent Guénard, La Démocratie à l’œuvre. Autour de Pierre Rosanvallon, Paris, Seuil, 2015, p. 249.

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the only space that exists for social redistribution – or at least the only one that continues to exist, for better or worse. Though the legal state has to some extent expanded to the European level, the welfare state has not, and nor is it likely to any time soon with a European budget now below 1 per cent of GDP. Claims to rights, in other words, are indelibly bound up with maintaining an imperative of ‘communality’. The strength of this concept proposed by Pierre Rosanvallon lies in its reminder that the aim is not to restore a mythical, largely imagined and monolithic ‘community’ in counterweight to claims for individual rights.70 It is not the omnipotence of human rights, so far from being achieved in practice, that is a concern today, but the dislocation of sharing or collectivity into a juxtaposed set of selective and segregated ‘identities’ or similarities, marked out by different types of eviction and distinction at all social levels; the phenomenon of tax exile within Europe is merely the tip of the iceberg here, if one of the most flagrant signs. The questions arising are all about this ‘generalised social separatism’, ‘not the diffuse progress of an invasive and deplorable individualism’.71 A Reflexive Conception of Human Rights The ‘political’ conception of human rights we advocate here is not unfounded idealism. In their unilateralism, ‘radical’ critiques do have the merit of reminding us that any politics under the auspices of human rights is unavoidably ambivalent. It may be linked to creative political invention in one case, and in another fall victim to instrumentalisation born of the will to dominate. In this sense, the political conception of human rights is also a reflexive one, conscious of the perversions that the vocabulary of human rights can engender. These perversions are most apparent at the international level, for instance in the limitless damage wrought by the policies of George W. Bush, which exploited an empty rhetoric of human rights to further the cause of thinly veiled Western imperialism. As Mireille Delmas-Marty (hardly an obvious critic of human rights) observes of anti-universalist arguments today, ‘it is easy enough to denounce the absurdity of legal humanism’ given how often ‘the shield of human rights becomes the sword of repression, intervention becomes humanitarian war, and

70

71

For a more extensive look at Pierre Rosanvallon’s work on the distinction between rights and democracy, see Justine Lacroix, ‘Lutte des droits et complication démocratique. La démocratie intégrale selon Pierre Rosanvallon’ in Sarah Al-Matary and Florent Guénard, La Démocratie à l’œuvre, pp. 145–164. Pierre Rosanvallon, La Société des égaux, Paris, Seuil, 2012, p. 385.

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international criminal law comes under suspicion of bias or even hegemonic aims’.72 However, the violence of this neo-conservative assault on the content of human rights should not blind us. As James Ingram points out, it is important to challenge the automatic association of human rights with foreign invasion. It is fair to say that most populations would refuse to have human rights imposed on them by force, but more correct to say that they would refuse having anything imposed on them by force. What is rejected is foreign domination – not, in the name of some unspecified cultural difference, respect for fundamental rights of the person.73 If the moral basis for human rights is respect for an autonomous agent within his rights to demand justification for any coercive action, human rights imposed by force are a contradiction in terms. Focusing on the standpoint of the actors concerned allows us to distinguish ‘human rights politics’ from a ‘humanitarian politics’, which many authors have revealed as open to bureaucratic and paternalistic corruption.74 A politics based on human rights puts the people involved at the centre of the process, even when they invoke international treaties – the point of which is precisely to allow citizens to criticise their own governments.75 What distinguishes human rights from mere charity is the fact that they seek not to protect individuals but to express the autonomy of free and equal persons. Given this, the call to see things from the vantage point of those involved must not obscure the real obstacles that stand in the way of emancipation for vulnerable individuals. The work of volunteers who work day in day out to provide food, legal assistance or language teaching is by no means always about condescension or pity. The concern to avoid victimisation and a vocabulary of compassion should not blind us to the continuing importance of mutual aid and solidarity initiatives. The fact remains that if paternalism is sometimes inevitable in the quest to help oppressed people get their voice heard, it should as far as possible aim to help them conceive of themselves as autonomous individuals.76 72 73 74

75 76

Mireille Delmas-Marty, Résister, responsabiliser, anticiper, Paris, Seuil, 2013, p. 8. James Ingram, Radical Cosmopolitics, The Ethics and Politics of Democratic Universalism, New York (NY), Columbia University Press, 2013, p. 185. See especially: Costas Douzinas, Human Rights and Empire. The Political Philosophy of Cosmopolitanism, New York (NY), Routledge, 2007; Nicolas Guilhot, The Democracy Makers. Human Rights and the Politics of Global Order, New York (NY), Columbia University Press, 2005; Stephen Hopgood, The Endtimes of Human Rights, Ithaca (NY), Cornell University Press, 2013; David Kennedy, The Dark Sides of Virtue. Reassessing International Humanitarianism, Princeton (NJ), Princeton University Press, 2004. Jean L. Cohen, Globalization and Sovereignty. Rethinking Legality, Legitimacy and Constitutionalism, Cambridge, Cambridge University Press, 2012, p. 217. We owe this distinction to Rainer Forst.

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‘A politics of human rights must also be a politics of the second order or a “politics of politics” as it were, reflecting the consequences of its insurrections and resisting the modalities of its perversions’77 – remembering, however, that hypocritical appropriation of a principle does not damage the principle itself. At a time when international protection of human rights is caught in a firestorm at the very heart of the European Union – one of the most striking symptoms being the former British Prime Minister David Cameron’s attempts to exempt his country from the obligations of the European Convention on Human Rights – the left could surely do better than sending empty barbs at the alleged omnipotence of a term that is in fact highly fragile. A ‘political’ conception of human rights thus invites us to move beyond the two-way alternative between fundamentalism about rights on the one hand and sceptical detachment on the other. Against rights fundamentalism, the political conception of human rights reminds us that they are always part of a given historical situation, in the face of a particular government, and that their effects in practice may not be those we expect. Against sceptical detachment, meanwhile, it underscores their role in criticising public institutions and existing lifestyles, and brings to the fore their importance in enabling democratic invention. A political conception refuses to leave the vocabulary of human rights to the mercy of the covertly complicit forces of neoliberalism on one hand and a kind of false republicanism on the other, founded on a secular catechism that all too conveniently justifies new forms of exclusion.78 This emphasis on the fertile ambivalence of a politics of human rights must nonetheless take care to avoid two mistakes commonly made today. The first is what might be called a ‘hyper-Foucauldian’ bent, far outstripping the positions of Foucault himself. This sees human rights as rhetorical weapons imposed by the configurations of social battles, able to serve different purposes depending on how these battles evolve – which are therefore the only means of evaluating rights. This angle is exemplified by the writings of the legal theorist Martti Koskenniemi. As we have seen, Koskenniemi puts forward a vehement critique of human rights for mixing ‘communitarian’ subject matter with ‘radical’ intentions, owing to the perverse effects of their proceduralisation and their inability to offer a solution to the legal dilemmas they produce. This critique might appear incontrovertible. However, it leads to a rehabilitation of human rights if we understand them as a flexible language into which social demands may 77 78

Étienne Balibar, ‘On the Politics of Human Rights’, Constellations, 20, 1, 2013, p. 20. See Jean Baubérot, La Laïcité falsifiée, Paris, La Découverte, 2014, and André Tosel, Nous citoyens laïques et fraternels?, Paris, Kimé, 2015.

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be translated, working against the danger of backwards movement seen above all in British attacks on the European Court of Human Rights, the authoritarian turn in Hungary or the rise of far-right parties in France and Finland.79 It is difficult here not to think of Marx explaining to Engels that he had agreed to incorporate a few clauses on rights and justice into the statutes of the International Workingmen’s Association, thinking them ultimately meaningless but letting them through because they were rendered harmless by the rest of the document. Yet if human rights certainly are a weapon, they are not a neutral one. Not only are their theoretical explanations applicable to certain political measures but not others; beyond this they weigh heavily on the measures they do inform, exerting either inhibiting or dynamic effects. The undeniable plasticity of human rights, then, does not mean that they must be reduced to a strictly strategic role. The second mistake consists in historicising human rights in such a way as to identify their meaning exclusively with their context, no longer understood in a tactical way but rather as the ‘historical essence’ which fully explains their ideal meaning. The ‘truth’ or essence of human rights, in this argument, is shown by the institutional realities they enable and from which they are inextricable. As discussed, this is Samuel Moyn’s position: his staunch rejection of essentialised ideas paradoxically leads him to essentialise human rights in relation to their original context – that of nation-state construction. He thus obliterates all conceptual elaborations and abortive attempts which show that the idea of human rights has since its earliest days exceeded its nation-state-based incarnations, and harboured a cosmopolitan potential that is far more trenchant than merely compassionate humanitarianism. In the face of which we can usefully recall – in terms of a dialectic rather than continuist genealogy – the crucial lineages (or ‘constellations’, to borrow Walter Benjamin’s phrase) between eighteenth- and nineteenth-century struggles for emancipation and those of today, which, whatever their potential for perversion and corruption, continue to imbue human rights with the ‘explosive political force of a concrete utopia’.80

79

80

This was the message behind his paper ‘Human Rights – so 90s’ at the conference held at the Université libre de Bruxelles on 4 May 2015. For an online version, see: www .oxfordmartin.ox.ac.uk/event/1823 Jürgen Habermas, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights’, Metaphilosophy, 41, 2010, p. 466.

Index

Abécédaire (Deleuze), 56–57 Abensour, Miguel, 207–208, 221–222 abolition, 6 abortion, 36 absolutism, 45, 102, 114–115, 153–154 individual rights and, 38 monarchical, 154 Address to the British Colonists in North America (Burke), 65–66 Agamben, Giorgio, 212, 213, 214, 227–228 alienation, 159–160, 166, 178, 179 Allende, Salvador, 15 Alston, Philip, 15–16 Althusser, Louis, 159, 178, 179 American Bill of Rights of 1791, 65 American foreign policy, 212–213 American Revolution, 61, 89 Amnesty International, 15, 17 Anarchical Fallacies (Bentham), 99 anarchism, 47–48 anarchy, 100–108 despotism and, 67 digest of anarchy, 67–68 Anarchy, State and Utopia (Nozick), 98 ancien régime (France), 142–143, 155. See also French Revolution; monarchy Anglican Church, 60, 65. See also Christianity; established church Anglicanism, 127–128 An Answer to the Declaration of the American Congress (Bentham), 93 anthropological basis for human rights, 221–222 anticolonial activists, 14–15 antidemocratic thought, 52 antiliberalism, 46–47, 52 antimodern critique, 187–188 destruction of just order, 35–40 human rights against politics, 40–43 antimodern thought, 30, 49–50

anti-Semitism, 7–8, 160, 192. See also Dreyfus Affair; Holocaust; totalitarianism antitotalitarian movement, 27 Arab-Jewish cooperation, 218–219 Arendt, Hannah, 11–12, 24, 216–222, 238–239 Burke and, 210–212, 213 on citizenship and nationality, 242 cosmopolitanism and, 220–221 on Declaration of Independence of 1776, 215 on Declaration of the Rights of Man and of the Citizen 1789, 209–210, 214, 216 on Dreyfus Affair, 215 on education crisis, 208 on equality, 224 French reception of, 207–208 on homeland, 218 on humanism, 212–213 interwar human rights activists and, 237 Lefort and, 212, 217–218, 223–224 on liberty, 223 Marx and, 227 on paradox of human rights, 208–210 on poverty, 226 Rancière and, 223–224 secondary literature on, 225–226 Aristotle, 29–34, 35, 67, 199 eudaimonia, 82–83 on friendship, 203–204 phronesis, 83 Aron, Raymond, 12, 40, 138, 207 asylum seekers, 225–226, 227, 230 atheism, 153 Audard, Catherine, 105 Audier, Serge, 125–126 Aulard, Alphonse, 7–8 authoritarianism, 38, 107, 166 non-authoritarian regimes, 73

247

248

Index

authority demise of, 1 sources of, 80 autonomy, 31, 125 civic, 204 collective, 54, 190 democratic, 236 individual, 54 private, 26 public, 26 state, 242 Azouvi, François, 15 Badiou, Alain, 55 Balibar, Etienne, 17, 91, 125, 166, 221–222, 235 Battle of Eylau, 150 Bauer, Bruno, 158, 164–165 Beccaria, Cesare, 180 Beitz, Charles, 25 Benjamin, Walter, 246 Benoist, Alain de, 41, 42–43 Bensaïd, Daniel, 213 Bentham, Jeremy, 58, 82–83, 93, 98–100, 108–111 Bonald and, 130–131 Burke and, 100–108 on collective utility, 92–93 Comte differences with, 92 fear of ghosts, 94 on law, 95 Marx and, 174 on paraphrasis, 95 on social contract, 94 Bergier, Nicolas-Sylvestre, 130 Bernardi, Bruno, 24 Bidet, Jacques, 33, 233 Bill of Rights, 44, 65, 214–215 Binoche, Bertrand, 102–103, 160 biopolitical tyranny, 38 The Birth of Biopolitics (Foucault), 107–108 Blackburn, Robin, 21 Bloch, Marc, 14 Bodin, Jean, 189–190 Bonald, Louis de, 58, 128–129, 135–136, 138, 141–143 Bentham and, 130–131 on liberalism and democracy, 139–140 Maistre and, 128–133 on monarchy, 143–144 on unequal rights, 133–134 on war, 194 Boulangist crisis, 7–8 Bourdieu, Pierre, 95, 240–241 Bourg, Julian, 27–28

bourgeois ideology, 157–158, 160 interests, 162–163 property, 180–181 Bourgeois, Léon, 123 Boutmy, Emile, 6–7 Brahami, Frédéric, 82 British constitution, 64, 76 Brown, Wendy, 53, 55–56, 57–58 Buchanan, Allen, 163, 176, 178 Burke, Edmund, 2–3, 18, 37, 58, 59, 60–62, 65–66, 67, 68, 69, 84–85, 149 ambiguities of, 82–90 Arendt and, 210–212, 213 Bentham and, 100–108 charge of incoherence leveled against, 64 coherence of Burke’s thought, 62–66 contractualist terms of, 81 on Declaration of the Rights of Man and of the Citizen 1789, 67, 214–215 exceptional status of, 63 on metaphysics, 80 particularism of, 128 on prescription, 129–130 property, inequality and inheritance, 78–79 relativism of, 79 on rights of man, 73 utilitarianism and, 74 Whig thought and, 81 Bush, George W., 243–244 Cabanes, Bruno, 12 Cameron, David, 245 ‘Can a Marxist Believe in Human Rights?’ (Lukes), 157 Capital (Marx), 174 capital punishment, 39 capitalism, 161 contradictions of, 176 dynamics of capitalist accumulation, 170 exploitation by, 173, 174, 175 globalisation and, 235 paradox of, 172–173 totalitarian capitalism, 39 wrongs of, 172 Carré de Malberg, Raymond, 9 Carter, Jimmy, 32 Cartesian reason, 73 case law, 74–75. See also Common Law Cassin, René, 12 Castel, Robert, 125 Castoriadis, Cornelius, 237 categorical imperative, 164

Index Catholicism, 11, 75, 131, 153, 154. See also Christianity; counter-revolutionary thought; Thomism Catholic conservatives, 58 Catholic counter-revolutionaries, 80–81 counter-revolutionism and, 193 monarchy and, 144 reactionary, 155 victory of, 155 Chambers, Samuel, 236 Chartist movement, 6 children’s rights, 36, 37–38 Chomsky, Noam, 212–213 Christianity, 143, 153 Christian personalist movements, 14 theology, 35 Christofferson, Michael, 27 citizen rights, 167, 168, 189–190 citizenship, 16, 17, 165, 225 Arendt on nationality and, 242 cosmopolitan form of, 217 republican, 52–53 civic desertion, 229–233 civic republican writers, 43 Civil Constitution of the Clergy, 151 civil rights, 32, 68–73 civil society, 51–52, 81, 87–88, 173 class struggles, 121, 176–177 class war, 158 classical antiquity, 172 Clémenceau, Georges, 215–216 Cloots, Anacharsis, 19 Cobban, Alfred, 62–63, 70–71 Cohen, Jean, 17, 232, 244 Cold War, 15 collective action, 56 collective happiness, 124 collective utility, 4, 92–93, 113 collective will, 202 collectivity, 33–34 Collège de France, 106 Collin, Thibaud, 50 Colliot-Thélène, Catherine, 219, 239, 241–242 Commentaire (journal), 48–49 common good, 43, 109, 194 Common Law, 74–75, 87 jurisprudentialism, 76 communism, 122, 158, 169–170 communist individualism, 183 defined in On the Jewish Question (Marx), 171–172 emancipation through, 188 liberties useless under, 176–177

249 Communist Manifesto (Marx), 157–158, 180, 182–183 communist systems, 14–15 communitarian critique, 31 ascendancy of rights and “good life,”43–46 democracy turning against itself, 46–53 communitarian systems, 33–34 families and, 43–44 community life, 1–2 Compagnon, Antoine, 30, 39 competition (economics), 161, 174 Comte, Auguste, 4, 5, 58, 108–112, 114–115, 116–117, 119–120, 121–122 Bentham differences with, 92 Saint-Simonianism and, 111 The Concept of the Political (Schmitt), 199–200, 203 conceptual history, 24 conditional rights, 146 Condorcet, Nicolas de, 92 Congress of Vienna, 152 conscience, 117–118 conservatism, 101–102, 187 conservative liberalism, 88–89 liberal conservatism, 190 Considerations on France (Maistre), 127 Constant, Benjamin, 74, 86, 104 Constituent Assembly, 18 constituent power, 205 Constitutional Project for Corsica (Rousseau), 202 constitutional rights, 71, 129–130 constitutionality of laws, 9 constitutions, 147 natural, 148–149 contractualism, 203 Contribution to the Critique of Hegel’s Philosophy of Right (Marx), 159–161 Cortès, Donoso, 193 cosmopolitanism, 19, 217 Arendt and, 220–221 cosmo-theological order, 79–80 costs of rights, 33 Council of Europe, 230 counter-Enlightenment thought, 30, 127 counter-revolutionary thought, 4, 30, 58, 59 Catholic counter-revolutionaries, 80–81, 193 Cours de philosophie positive (Comte), 116 Cranston, Maurice, 32 crimes against humanity, 13–14, 220 criminals, 226

250

Index

Critique of the Gotha Program (Marx), 165, 178–180 cultural pluralism, 22 cultural selection, 88 d’Allones, Myriam Revault, 217–218 Darwin, Charles, 87 death penalty. See capital punishment Le Débat (journal), 48 Debray, Régis, 13, 50 Declaration of Independence of 1776, 13, 215 Declaration of Rights 1793, 7, 8 individualism and, 10 universal nature of, 75 Declaration of the Rights of Man and of the Citizen 1789, 9, 47, 100, 117–118, 132–133, 134, 144–145, 161–162 anti-consequentialism of, 101 Arendt on, 209–210, 214, 216 Article 2 of, 184 Article 3 of, 17–18, 149, 190 Bentham on, 98–100 Burke on, 67, 214–215 Maistre on, 149 ‘The Decline of the Nation-State and the End of the Rights of Man’ (Arendt), 206, 208, 213, 224–225 decolonisation, 14–15 deductive reasoning, 73–74 Deleuze, Gilles, 26–27, 56–57 Delmas-Marty, Mireille, 224–225, 243–244 democracy, 2, 20, 39–40, 79, 123–124, 131–132, 202, 204, 235 anti-democratic liberals, 194–195 Bonald on liberalism and, 139–140 democratic autonomy, 236 democratic emancipation, 162 democratic equality, 199 democratic rights, 185 democratic societies, 1 embedded democracy, 90 against liberalism, 195–198 monarchy and, 141–142 paradox of, 198–199, 202–203 parliamentary, 56, 119 political foundation of, 42 radical, 186, 188, 190, 235, 236, 240–242 Rancière on, 239 representative, 93 savage democracy, 221, 232 suppression, 182 turning against itself, 46–53

unbounded, 79 democratisation, 55–56 of political representation, 60 denationalisation, 209 despotism, 42, 71, 100, 117. See also totalitarianism anarchy and, 67 legal, 132 revolutionary despotism, 87 difference, 56, 125 digest of anarchy, 67–68 dignity, 37–38, 105, 119, 120 Directorate (French Revolution), 169 disabled people, 230 disciplinary power, rule of law and, 54 Discipline and Punish (Foucault), 26–27 disinstituted equality, 141–143 distributive justice, 170, 177–178 Marx on, 177 divine law, 80, 82, 144 divine rights, 152 divine will, 134 division of labour, 113, 122–123, 137, 155–156, 172–173 division of political labour, 142 divorce, 136, 138, 142–143 domination, 185, 194–195 of money, 173 struggle against, 54, 235 Donzelot, Jacques, 123 double-speak, 216–217 Dreyfus Affair, 5–6, 7–8, 10–11 Arendt on, 215 Duguit, Léon, 9, 123 Durkheim, Emile, 19, 122–123, 155–156 sociology of, 238 duties, 96 ancien régime as pyramid of, 155 inequality of, 141 social system of, 112–115 The Duties of Man (Mazzini), 4–5 ecclesiastical rights, 152–156 economic relations, 171 economic rights, 32 introduction of, 32–33 egalitarianism, 91, 106 Eichmann in Jerusalem (Arendt), 220 Eichmann trial, 209 Elster, Jon, 158–159 emancipation, 44, 233–237 communist, 188 democratic, 162 human, 53–54 human rights against, 53

Index individual, 158 Jewish, 131 material conditions of, 170 political, 53–54, 162, 179–180 radical, 29–34 Rancière on, 242 social, 166, 179–180 Marx on, 170 empiricism, 74. See also positivism; sociology Engels, Friedrich, 159, 180, 183–184 Enlightenment principles, 4 counter-Enlightenment, 30, 127 Scottish Enlightenment liberalism, 62, 85 equal marriage, 1 equal rights, 97–98 equality, 116–120 Arendt on, 224 democratic equality, 199 instituted and disinstituted, 141–143 equity, 74–75 essentialism, 17 established church, 70, 79 eudaimonia (Aristotelian), 82–83 Europe Maistre on sovereignty in, 147–148 Muslims in, 39 tax exile in, 243 European Convention on Human Rights 1950, 14, 224–226, 245 European Court of Human Rights, 225–226 European public law (jus gentium), 150, 201 European Union, 230, 245 families, 136, 231 communitarian systems and, 43–44 fatalism, 55–56 feminism, 31, 56, 57–58. See also women’s rights Ferry, Jean-Marc, 19, 182, 200–201 Ferry, Luc, 211–212 feudal system, 115 Feuerbach, Ludwig, 159–160, 162, 183–184 Forst, Rainer, 242 Foucault, Michel, 26–27, 106, 107–108, 234–235, 245 Marx and, 53–54 A Fragment on Government (Bentham), 94 free market, 56, 140 freedom of association, 166, 167 freedom of conscience, 7, 39, 69–70, 116, 117–118, 155, 164–165, 180 freedom of press, 167

251 freedom of speech, 44–45 French Church, 65 French Communist Party, 27 French National Assembly, 68 French political philosophers, 8–9 French political thought, 26–29 French republicanism, 8 French Revolution, 2–3, 140 destruction of symbolic order of society (Maistre), 144–145 Directorate, 169 imperialism and, 150 legislative actions of, 10 limitation of political power and (Foucault), 106 Maistre on, 150 property rights and, 10 radical novelty of, 61 revulsion at, 4 Terror, 8–9, 19–20, 42, 115, 168–169 women during, 223–224 Freund, Julian, 40, 41, 42–43 friendship, 203–204 fundamental freedoms, 33 fundamental rights, 34, 45–46 Furet, François, 47 Ganzin, Michel, 70–71 Gauchet, Marcel, 2–3, 47–50, 189, 232–233 Gehlen, Arnold, 89 general spirit, 149–150 general will, 7, 137–138, 139 ambiguities of, 202–205 Geneva Convention on the status of refugees 1951, 225 genocide, 14, 32. See also anti-Semitism; Holocaust Gentile, Giovanni, 52 George III (King), 75–76 The German Ideology (Marx), 159, 171, 182–184 ghosts, 94 Gilson, Etienne, 11 Glendon, Mary Ann, 46 globalisation, 235 Glorious Revolution of 1688, 89, 129 Glucksmann, André, 27–28 God, rights of, 130, 135 governmentality, 107 liberal, 107–108 gradualist reformism, 95 Gramsci, Antonio, 159 Grundrisse (Marx), 175 Guattari, Félix, 56–57

252

Index

Guilhaumou, Jacques, 110, 196 Guilhot, Nicolas, 31 Gulag Archipelago (Solzhenitsyn), 27, 28 Gündogdu, Ayten, 226–227 Gurvitch, Georges, 124 Habermas, Jürgen, 26, 182 Halévy, Elie, 83 Hart, Herbert, 94–95, 98 Hastings, Warren, 66, 68 Hauriou, Maurice, 9 Hayek, Friedrich, 85, 88, 107 Hazareesingh, Sudhir, 229 hedonism, 82–83 hedonist consumerism, 230 Heidegger, Martin, 38, 89 Helsinki Final Act of 1975, 21 hierarchical order, 142–143 traditional hierarchies, 195 historicism, 178, 187, 246 historiographical debate, 13 Hobbes, Thomas, 35, 38, 40, 81, 130 holism, 109 Holmes, Stephen, 52 Holocaust, 14 ‘discovery’ of, 15 memory of, 20–21 The Holy Family (Marx), 160–161, 165 Holy Spirit, 39 homeland, 218 Hopgood, Stephen, 31 The Human Condition (Arendt), 207, 222 human nature, 171 Human Rights Watch, 17 humanism, 27, 212–213 humanity history of, 112–113 the people against, 198–201 human-rights-ism, 1–2 Hunt, Lynn, 13 identity-with-self, 199 ideology bourgeois ideology, 157–158, 160 Marxism critique of, 159–160 of rights of man, 159, 171 imperialism, 150, 192, 207–208. See also neo-imperialism French Revolution and, 150 imperialist racism, 214 liberal, 58 nationalism and, 213–214 of subjectivity, 212 Western, 243–244 impolitical politics, 41

inalienable rights, 37 Indian rights, 63, 75 individual rights, 1–2, 5, 35 absolutism and, 38 fragmentary effects of, 231 international recognition of, 13–14 law and, 36 neoliberalism and, 33–34 rights of man and, 69 social issues framed as, 45 totalitarianism and, 49 individual wills, 137–138 individualism, 48 communist individualism, 183 Declaration of Rights 1793 and, 10 individual wills, 7 individualist conception of law, 140 liberal, 203 neoliberalism and, 56 possessive, 168 postmodern, 2–3 radical, 49 of rights of man, 153–154 selfish, 78, 101 spineless, 230 utilitarianism and, 105 individuality social form of, 134–135 social relationship creating, 171 industrialisation, 122–123 inequality, 78–79, 91, 137, 141–142, 175–176 of duties, 141 of social relationships, 135–140 violence of, 174 Ingram, James, 224, 237, 244 inheritance, 73, 77, 78–79, 142 law of inheritance, 77–78 instituted equality, 141–143 institutional hierarchies, 67 insurrection, 71 integrity, 105 intellectual property, 122 International Covenants of 1966, 3 international humanitarianism, 22 International Workingmen’s Association, 6 intersubjectivity, 125–126, 222 interwar human rights activists, 237 interwar period, 3–12 interwar refugees, 211 Iraq, 55, 56 Irish Catholic rights, 63, 75 Isaac, Jeffrey, 216–217 Islam. See Muslims Israel, 209

Index Jackson, Andrew, 2–3 Jacobins, 140 Jaurès, Jean, 124 Jellinek, Georg, 6–7 Jews, 14, 15 Arab-Jewish cooperation, 218–219 emancipation of, 131 Jouanjan, Olivier, 191 judicial review, 9, 34 judiciary, role of, 34 Judt, Tony, 5 jurisprudence. See case law jurisprudentialism, 82 English Common Law, 76 historicism and, 187 jus gentium (European public law), 150, 201 jusnaturalism, 82, 92, 114 just society, 29–34, 36 justice, 55, 70–71, 181. See also distributive justice; social justice Marx on, 171 original justice, 74 transactional, 177 Kant, Immanuel, 19, 133, 164 Kantian philosophy, 10 Karsenti, Bruno, 111, 133 Kelsen, Hans, 199–200 Kennedy, David, 31, 53 Kervégan, Jean-François, 189, 191 Kesby, Alison, 239 Kissinger, Henry, 20 Koselleck, Reinhart, 24 Koskenniemi, Martti, 31, 45–46, 53, 245–246 Kristol, Irving, 32, 214–215 Kymlicka, Will, 177, 231 Laborde, Cécile, 43, 48, 208 labour unions, 119. See also capitalism; freedom of association Labriola, Antonio, 169, 170 Lagrou, Pieter, 20 laissez-faire economics, 58, 106, 107. See also capitalism; utilitarianism Lasch, Christopher, 46 The Last Utopia: Human Rights in History (Moyn), 14, 21 Laval, Christian, 109, 110 law, 35–36, 234–235 ambiguities of, 54 Bentham on, 95 generality of, 74–75 individual rights and, 36 individualist conception of, 140

253 Maistre on, 146, 147 of monarchy, 144 political laws, 80 sovereignty and, 145 Law of the Maximum, 18 Lazare, Bernard, 215–216 Le Chapelier law, 167 League of Human Rights (Ligue des droits de l’homme), 7–8 League of Nations, 11–12 Lefort, Claude, 17, 28–29, 47–48, 51, 166 Arendt and, 212, 217–218, 223–224 criticism leveled at, 232 critiques of, 51 on misuse of democracy, 233 savage democracy of, 221, 232 vision of, 232–233 legal despotism, 132 legal formalism, 193–194 legal personhood, 238 legal recourse, 155 legal relations, 171 legal theory, 9, 43 Lenin, Vladimir, 182 Leninism, 11, 184–185. See also Marxism Leopold, David, 158, 163–164, 165–166 Letters on a Regicide Peace (Burke), 18, 68 Lévy, Bernard-Henri, 27–28 liberalism, 58, 86–87, 88, 191–192 anti-democratic liberals, 194–195 antiliberalism, 46–47, 52 Bonald on democracy and, 139–140 conservative liberalism, 88–89 democracy against, 195–198 elitist, 52–53 individualist, 40 liberal conservatism, 190 liberal imperialism, 58 rejection of, 128, 131–132 Scottish Enlightenment, 62, 85 social, 124 liberal-libertarian left, 51 libertarianism, 33, 221 liberty, 33, 39, 56, 65, 88, 116–120, 197 Arendt on, 223 desire for, 60 equality of, 125 political, 163 public liberties, 77 useless under communism, 176–177 Ligue des droits de l’homme (League of Human Rights), 7–8 Lochner era, 11 Locke, John, 4, 62 Louis XIV (King), 154

254

Index

Louis XVI (King), 132–133 Lukes, Steven, 157, 185–186 Macherey, Pierre, 109, 133 MacIntyre, Alasdair, 35–36 Magna Carta, 175 Maistre, Joseph de, 58, 59, 80, 96, 127, 130, 143–145, 153–155 Bonald and, 128–133 Congress of Vienna and, 152 on Declaration of the Rights of Man and of the Citizen 1789, 149 divine rights and, 152 on French Revolution, 150 on law, 146, 147 on monarchy, 143–144 on resistance, 148 rights of man rejection by, 151 on sovereignty in Europe, 147–148 majority rule, 39 Malberg, Raymond Carré de, 9 Malebranche, Nicolas, 132 Manent, Pierre, 31, 47–50, 51, 230–231 Marx and, 50 Manuel républicain de l’homme et du citoyen (Renouvier), 10 Maoism, 20 Maritain, Jacques, 11, 36–37 market civicism, 33–34 market economies, 14–15 market freedom, 88 market fundamentalism, 88–89 market rationality, 90 market relations, 174 marriage, 135–136. See also divorce; families of same-sex couples, 1, 38 Marx, Karl, 6, 13, 28, 38, 51–52, 53, 56, 58, 122–123, 171–173, 174, 175–176, 178–180 Arendt and, 227 Bentham and, 174 on distributive justice, 177 early work of, 159–170 Foucault and, 53–54 on justice, 171 legacy of, 186 Manent and, 50 on property rights and egotism, 159, 161 on property rights and exploitation, 174 realigned with human rights, 185 on rights of man, 78, 182–183 on social emancipation, 170 on social justice, 183 turning point in philosophy of, 171

on universal rights, 157–158 Wood on, 177–178 Marxism, 157–159, 236. See also communism analytical, 159 ideology critique by, 159–160 mass movements, 203 materialist historicism, 171 Maurras, Charles, 10, 18, 96, 123 Mazzini, Giuseppe, 4–5 McCann, Michael, 234 McNay, Lois, 240–241 means of production, 123, 160–161, 169, 170, 171, 173 Meier, Heinrich, 191, 192–193 mercantile relations, 173 metaphysical rights, 92, 109–110, 112–115, 211 metaphysics, 9, 61, 74, 128–129 Burke on, 80 positivist critiques of, 118 The Method of Equality (Rancière), 240 Michéa, Jean-Claude, 51 Michelet, Jules, 9 Michels, Robert, 194–195 Middle Ages, 37–38 Milbank, John, 35, 36–37, 38 Moyn and, 39 Mill, John Stuart, 108, 177 Milner, Jean-Claude, 2, 50 minorities, 11–12 Mitterrand, François, 27 modernity, 30. See also antimodern critique liberal, 22, 31–32, 35, 192 monarchy, 18, 138, 143 Catholicism and, 144 constitutional, 60 democracy and, 141–142 hereditary monarchy and inequality, 141–142 law of, 144 monarchical absolutism, 154 monarchist traditionalism, 194 as only legitimate regime (Maistre/ Bonald), 143–144 monied interest, 67 moral equity, 74 moral rationality, 90 morality, 113–114, 121 neoliberalism veneer of, 54 shared moral consensus, 118 Mosca, Gaetano, 194–195 Mouffe, Chantal, 45, 236 Moyn, Samuel, 3, 5–6, 8–9, 14, 15–16, 20–21 Milbank and, 39

255

Index Muslims in Europe, 39 Muslim headscarf, 56 mutual recognition, 120

Nouvelle Droite (New Right), 40–41, 204–205 Nozick, Robert, 25, 98 Nuremberg trials, 13–14

National Assembly, 167 national homogeneity, 199, 204 national religion, 154–155 national rights, 209 nationalism, 5, 7, 44 imperialism and, 213–214 national self-determination, 4–5 nationality, Arendt on citizenship and, 242 nation-states, 13–15, 57, 124, 212, 243–246 constraints on power of, 220 decline of, 206, 208, 213, 224–225 as historically restricting force, 19 no longer necessary, 124 natural constitutions, 148–149 natural law, 11, 83–84, 94, 143–144, 145–146, 222 natural rights, 5, 9, 63, 68–73, 92–93, 145–146, 216 socialism and, 10 natural selection, 87 Nazis, 191–192 atrocities of, 13–14 Schmitt sympathies with, 190 negative freedom, 56 Negri, Antonio, 59–60 neo-conservativism, 32, 90 violence of, 244 neo-imperialism, 31–32 neoliberalism, 32, 54, 90, 242–243 cynicism of, 184–185 dominance of, 52–53 individual rights and, 33–34 individualism and, 56 totalitarian neoliberalism, 38 neo-paganism, 40 neo-republicanism (France), 43, 48, 52 new critiques of human rights, 29–34 New Philosophers, 28 New Right (Nouvelle Droite), 40–41, 204–205 Nicolet, Claude, 8, 11 Nietzsche, Friedrich, 105–106 Nixon, Richard, 20 nobility, 142 Nollez-Goldbach, Raphaëlle, 242 non-authoritarian regimes, 73 Nonsense Upon Stilts (Bentham), 93 normalisation, 54, 233

objectivity principle, 41 Ockham, William of, 35, 37 oligarchy, 67 On Revolution (Arendt), 208, 238 On the Jewish Question (Marx), 53, 158, 159–163, 171, 182–183 communism defined in, 171–172 opinion, 28 oppression, 184 Order of Creation, 79–80 original justice, 74 Origins of Totalitarianism (Arendt), 206–208, 215–216, 219, 238 Orwell, George, 51 Ost, François, 103 ostracism, 198–199, 203 Outline of a Work Entitled Pauper Management Improved (Bentham), 107–108 Paine, Thomas, 59, 63, 102–103, 129–130 Panopticon, 107–108 papal infallibility, 144, 153–154 paraphrasis, 95 Pareto, Vilfredo, 107, 194–195 parliamentarianism, 196–197 parliamentary democracy, 56, 119 particularism, 62, 128 patriotism, 60–61, 153, 202 Pendas, Devin, O., 13 the people, against humanity, 198–201 personal development, 119 personal freedom, 97, 106–107 persons, 134–135 Pettit, Phillip, 43 phronesis (Aristotelian), 83 Piedmont-Sardinia, 151 pledge of allegiance, 44 Pocock, John, 59, 81, 85–86 police, 239 political authority, 193–194 political community, 197–198 ‘political’ conception of human rights, 24, 53, 76, 208, 221–228, 236–237, 243, 245 political discourse, 1–2 political division of power, 137 political domain, 191 political equilibrium, 64–65 political representation, 60

256

Index

political rights, 32, 68–73, 78–79, 120–122, 163, 168, 216 political théology, 81, 131, 191, 194 political theory, 23–24 The Pope (Maistre), 144–145 Book II of, 153–154 Popper, Karl, 33 popular will, 201, 203 positivism, 108, 110, 114, 118, 120 shared moral consensus under, 118 postmodern individualism, 2–3 poststructuralism, 26 poverty, 226, 227 power relations, 173 practical reason, 73 practical viability, 32 practical wisdom, 73–74 precarity, 183 prescription, 129 Burke on, 129–130 prescriptive constitutions, 76–77 Pressensé, Francis de, 10–11 Price, Richard, 60, 63 primitive rights, 72 prisoners’ rights, 26 private property, 28, 91, 93, 197 progressive thinkers, 4 progressivism, 58, 109, 187 Projet de paix perpétuelle (Kant), 19 proletariat, 120–121, 122–123, 142 properties, rights as, 37–38 property rights, 78–79, 140. See also communism; inheritance; Marxism egotism and (Marx), 159, 161 exploitation and (Marx), 174 Protestantism, 127–128 Proudhon, Pierre-Joseph, 170 providentialism, 80, 81, 143–144 prudential law, 82 Prussian monarchy, 6–7 public actions, 103 public debt, 67 public good, 132 public interest, 138 management of, 138–139 public opinion, 200–201 public sphere, 197–198, 230 public utility, 18 Quinet, Edgar, 9 racial thought, 213 racism, 214 radical critique, 31, 53

Rancière, Jacques, 17, 52, 223–224, 235, 240 on democracy, 239 on emancipation, 242 rationality, 117 of historicity, 178 Rawls, John, 25, 105 Raynaud, Philippe, 62, 85, 211 Recherches sur la Révolution française (Rehberg), 74 reciprocity, 7, 120, 121, 219 redistribution, 120, 185, 242–243 Reflections on the Revolution in France (Burke), 59, 67, 69, 84–85, 212 reflexive conception of human rights, 243–246 refugees. See also Geneva Convention on the status of refugees, 1951 interwar, 211 refugee status, 239 Rehberg, Wilhelm, 59, 74, 84, 89 reification, 163–164 relativism of Burke, 79 nihilist, 178 relativised sovereignty, 220 religion, 129, 160–161 fusion of politics and, 152–153 national religion, 154–155 religious alienation, 166 secular religion, 12 uniformity of, 153 religious freedom, 33, 69–70 religious tolerance, 65 Renan, Ernest, 52 Renaut, Alain, 211–212 Renouvier, Charles, 10 representation, 196 republicanism, 8, 47–48, 137, 189, 245 Resistance, the (France), 40 Restoration, 144–145 revolt, 145–146 revolutionary despotism, 87 revolutionary trauma, 59–60 right of prescription, 73–82 right to insurrection, 118–119 right to revolution, 181–182 rights of man, 16–21, 33, 72, 167, 168 absolute principle of, 61 Burke on, 73 ecclesiastical rights against, 152–156 ideology of, 159, 171 inconsistency in idea of, 139 individual rights and, 69 individualism of, 153–154

Index Maistre rejection of, 151 Marx on, 78, 182–183 real, 69 rights of nations against, 148–152 rights of society against, 134–135 social rights and, 124 Rights of Man (Paine), 102–103 rights of nations, 148–152 rights of society, 134–135 rights to work, 33 rights-as-claims, 33 rights-as-freedoms, 33 Robbins, Bruce, 17 Robespierre, Maximilien de, 4, 144, 169, 182, 201 Roma people, 230 Roman Catholics, 151 Rosanvallon, Pierre, 243 Rousseau, Jean-Jacques, 4, 132, 137, 176, 190 Schmitt and, 202 rule of law, 2, 64–65, 230 disciplinary power and, 54 Russian Revolution, 11 Sade, Marquis de, 104 Saint-Simonianism, 91, 92 same-sex marriage, 1, 38 Sandel, Michael, 43–44, 230–231 Schmitt, Carl, 40, 52, 58, 155, 190–193, 199–200, 203 Catholic counter-revolutionism of, 193 Nazi sympathies of, 190 on parliamentarianism, 196 political theology of, 194 Rousseau and, 202 on traditional hierarchies, 195 on war, possibility of, 193–194 Schumpeter, Joseph, 199–200 scientific knowledge, 109, 117 Scottish Enlightenment liberalism, 62, 85 secret balloting, 197–198 secular religion, 12 secularisation, violence of, 151 secularism, 69–70, 154 self-determination collective, 233 national, 4–5 selfishness, 100–108 Sen, Amartya, 25–26, 99 Siedentop, Larry, 105 Sieyès, Emmanuel Joseph, 196 slavery abolition of, 6 in classical antiquity, 172

257 Smith, Adam, 85 social atomisation, 233 social conditions, 158 social contract, 81, 130 Bentham on, 94 The Social Contract (Rousseau), 202 social democrats, 25, 124 social developments, 34 social fragmentation, 31 social issues framed as individual rights, 45 social justice, 183 Marx on, 183 social mobility, 142 social movements, 17, 26 social property, 122–123 social relationships, 136 divine will ordering, 134 essential inequality of, 135–140 fragmentation of, 1 individuality arising from, 171 persons, 134–135 social rights, 29, 32, 33, 124 introduction of, 32–33 rights of man and, 124 social theory, 3 social utility, 108–112, 119 socialisation, 112 socialism, 58, 122, 179–180 Guarantist, 6 legal versions of, 172 natural rights and, 10 Saint-Simonian type of, 91 Socialisme ou Barbarie (journal), 28 Society of the Rights of Man and the Citizen, 4, 7–8 sociology Durkheimian, 238 historically oriented, 113 legal, 231 solidarism, 122–123 solidarity mechanical, 156 organic, 156 social, 113–114, 120–122, 123 Solzhenitsyn, Alexander, 27, 28 sovereignty, 7, 116–120, 152–153 democratic, 198 institution of sovereign power, 139 ‘King’s two bodies’, 198 law and, 145 legal, 202 Maistre on sovereignty in Europe, 147–148 national, 14–15, 190

258

Index

sovereignty (cont.) peaceable recognition of foreign, 150–151 popular, 123–124, 138, 194–195 popular right to depose sovereign, 129 relativised, 220 rights of sovereignty against human rights, 144–148 sovereign violence, 212–214 theology and, 35 unity of sovereign power, 143–144 of will, 35 Soviet Union, 20 Spanish Inquisition, 131 Spinoza, Baruch, 40 spiritual power, 121 Staël, Madame de, 86 Stalinism, 184–185 state assistance, 33 state education, 200 education crisis, 208 state of nature, 111 state power, 138 state violence, 201 stateless persons, 208, 209 statism, 180 status, 238–239 Sternhell, Zeev, 86–87, 127, 211 Stoicism, 84 Strauss, Leo, 75–76, 84, 211–212 structuralism, 26 subjective rights, 30, 35 rejection of principle of, 40 subjectivist delirium, 40–41 subjectivity, imperialism of, 212 sublime, the, 30, 84–85 Supreme Court, US, 44 Taine, Hippolyte, 52 Tassin, Etienne, 221–223 tax exile, 243 taxation, 18 temporal power, 121 temporality, 103 Ten Commandments, 134 territorial annexation, 151 Terror (French Revolution), 8–9, 19–20, 42, 115, 168–169 Texier, Jacques, 182 theology Christian, 35 sovereignty and, 35 A Theory of Justice (Rawls), 25 Third Republic, 9, 10–11

Thomism, 11 monarchist traditionalism and, 194 Tocqueville, Alexis, de, 2–3, 6, 89–90 tolerance, 69–70 torture, 32 prohibition on, 37 Tosel, André, 181 totalitarianism, 20, 47. See also antiSemitism; antitotalitarian movement; authoritarianism; despotism; Terror birth of, 222 denationalisation and, 209 French debate over, 207–208 individual rights and, 49 right to insurrection as defense against, 118–119 totalitarian capitalism, 39 totalitarian doctrines, 12 totalitarian neoliberalism, 38 tradition, demise of, 1 traditionalism, 86, 89, 128 traditionalist nostalgia, 30 Traverso, Enzo, 206, 207–208 Troper, Michel, 32 Trotskyism, 213 truth, 39 Tusseau, Guillaume, 120 tyranny, 71, 100–108 U.N. See United Nations undocumented migrants, 227 United Nations (U.N.), 21 Universal Declaration of Human Rights 1948, 3, 13, 14, 32–33, 37 universal rights, 22, 157–158 universal suffrage, 109 universality, 61–62 utilitarianism, 4, 74, 82–83, 91–92, 103–104, 108–109, 110, 130 democratic utility, 125 independence of governed and, 107–108 individualism and, 105 laissez-faire economics and, 106 liberal, 107–108 utopia, 179 anti-political and moralising, 21 overinflated, 181–182 Van Parijs, Philippe, 33 Villey, Michel, 35, 63, 84, 211–212 Vincent, Andrew, 15 violence, 36, 100 of inequality, 174 legal recourse against, 155

259

Index necessity of, 173, 181 of neo-conservativism, 244 of secularisation, 151 sovereign violence, 212–214 state, 201 virtue, 89–90 Volney, Constantin-François, 19–20 Waldron, Jeremy, 3–4, 7, 96 war Bonald on, 194 class war, 158 Cold War, 15 possibility of, 193–194 ‘We Refugees’ (Arendt), 238 Weitz, Eric, 18 welfare state, 14–15 Whig thought, 4, 64–65 Burke and, 81 Wiesel, Elie, 12

wisdom, 73–74 women during French Revolution, 223–224 Manent on, 230–231 women’s rights, 6, 36, 92, 185 Wood, Allen, 177–178 workers’ associations, 167 workers’ rights, 185 World War I, stateless people after, 208, 209 World War II, 13 The Young Karl Marx (Leopold), 158 Zionism, 218–219 Zivi, Karen, 231–232 Zizek, Slavoj, 56, 212–213 Zola, Emile, 7–8