Douzinas sobre derechos humanos (2)

Por Jorge Luis Fabra Zamora (jorgefabraz@gmail.com)

Seven Theses on Human Rights: (2) Power, Morality & Structural Exclusion

21 May 2013
By
Thesis 2: Power and morality, empire and cosmopolitanism, sovereignty and rights, law and desire are not fatal enemies. Instead, a historically specific amalgam of power and morality forms the structuring order of each epoch and society.
Guantanamo
We will explore the strong internal con­nec­tion between these super­fi­cially ant­ag­on­istic prin­ciples, at the point of their emer­gence in the late 18th cen­tury here and in the post-​1989 order in the next part.
The reli­gious ground­ing of human­ity was under­mined by the lib­eral polit­ical philo­sophies of early mod­ern­ity. The found­a­tion of human­ity was trans­ferred from God to (human) nature. Human nature has been inter­preted as an empir­ical fact, a norm­at­ive value, or both. Sci­ence has driven the first approach. The mark of human­ity has been vari­ously sought in lan­guage, reason or evol­u­tion. Man as spe­cies exist­ence emerged as a res­ult of legal and polit­ical innov­a­tions. The idea of human­ity is the cre­ation of human­ism, with legal human­ism at the fore­front. Indeed the great 18th cen­tury revolu­tions and declar­a­tions paradig­mat­ic­ally mani­fest and helped con­struct mod­ern uni­ver­sal­ism. And yet, at the heart of human­ism, human­ity remained a strategy of divi­sion and classification.
We can fol­low briefly this con­tra­dict­ory pro­cess, which both pro­claims the uni­ver­sal and excludes the local in the text of the French Declar­a­tion of the Rights of Man and Cit­izen, the mani­festo of mod­ern­ity. Art­icle 1, the pro­gen­itor of norm­at­ive uni­ver­sal­ism, states that ‘men are born and remain free and equal of right’ a claim repeated in the inaug­ural art­icle of the 1948 Uni­ver­sal Declar­a­tion of Human Rights. Equal­ity and liberty are declared nat­ural enti­tle­ments and inde­pend­ent of gov­ern­ments, epochal, and local factors. And yet the Declar­a­tion is cat­egor­ic­ally clear about the real source of uni­ver­sal rights. Art­icle 2 states that ‘the aim of any polit­ical asso­ci­ation is to pre­serve the nat­ural and inali­en­able rights of man’ and Art­icle 3 pro­ceeds to define this asso­ci­ation: ‘The prin­ciple of all Sov­er­eignty lies essen­tially with the nation.’
Nat­ural’ and eternal rights are declared on behalf of the uni­ver­sal “man.” How­ever these rights do not pre-​exist but were cre­ated by the Declar­a­tion. A new type of polit­ical asso­ci­ation, the sov­er­eign nation and its state and a new type of ‘man’, the national cit­izen, came into exist­ence and became the bene­fi­ciary of rights. In a para­dox­ical fash­ion, the declar­a­tion of uni­ver­sal prin­ciple estab­lished local sov­er­eignty. From that point, state­hood and ter­rit­ory fol­low a national prin­ciple and belong to a dual time. If the declar­a­tion inaug­ur­ated mod­ern­ity, it also star­ted nation­al­ism and its con­sequences: gen­o­cide, eth­nic and civil war, eth­nic cleans­ing, minor­it­ies, refugees, the state­less. The spa­tial prin­ciple is clear: every state and ter­rit­ory should have its unique dom­in­ant nation and every nation should have its own state – a cata­strophic devel­op­ment for peace as its extreme applic­a­tion since 1989 has shown.
The new tem­poral prin­ciple replaced reli­gious eschat­o­logy with a his­tor­ical tele­ology, which prom­ised the future sutur­ing of human­ity and nation. This tele­ology has two pos­sible vari­ants: either the nation imposes its rule on human­ity or uni­ver­sal­ism under­mines paro­chial divides and iden­tit­ies. Both vari­ants became appar­ent when the Romans turned Stoic cos­mo­pol­it­an­ism into the imper­ial legal reg­u­la­tion of jus gen­tium. In France, the first altern­at­ive appeared in the Napo­leonic war, which allegedly spread the civil­iz­ing influ­ence through con­quest and occu­pa­tion (accord­ing to Hegel, Napo­leon was the world spirit on horse­back); while the second was the begin­ning of a mod­ern cos­mo­pol­it­an­ism, in which slavery was abol­ished and colo­nial people were given polit­ical rights for a lim­ited time after the Revolu­tion. From the imper­ial deform­a­tion of Stoic cos­mo­pol­it­an­ism to the cur­rent use of human rights to legit­im­ize West­ern global hege­mony, every norm­at­ive uni­ver­sal­ism has decayed into imper­ial glob­al­ism. The split between norm­at­ive and empir­ical human­ity res­ists its heal­ing, pre­cisely because uni­ver­sal norm­ativ­ity has been invari­ably defined by a part of humanity.
The uni­ver­sal human­ity of lib­eral con­sti­tu­tions was the norm­at­ive ground of divi­sion and exclu­sion. A gap was opened between uni­ver­sal “man,” the onto­lo­gical prin­ciple of mod­ern­ity, and national cit­izen, its polit­ical instan­ti­ation and the real bene­fi­ciary of rights. The nation-​state came into exist­ence through the exclu­sion of other people and nations. The mod­ern sub­ject reaches her human­ity by acquir­ing polit­ical rights of cit­izen­ship, which guar­an­tee her admis­sion to the uni­ver­sal human nature by exclud­ing from that status oth­ers. The alien as a non-​citizen is the mod­ern bar­bar­ian. He does not have rights because he is not part of the state and he is a lesser human being because he is not a cit­izen. One is a man to greater or lesser degree because one is a cit­izen to a greater or lesser degree. The alien is the gap between man and citizen.
In our glob­al­ised world, not to have cit­izen­ship, to be state­less or a refugee, is the worst fate. Strictly speak­ing, human rights do not exist: if they are given to people on account of their human­ity and not of some lower level group mem­ber­ship, then refugees, the sans papi­ers migrants and pris­on­ers in Guantanamo Bay and sim­ilar deten­tion cen­ters, who have little if any legal pro­tec­tion, should be their main bene­fi­ciar­ies. They have few, if any, rights. They are leg­ally aban­doned, bare life, the hom­ines sacri of the new world order.
The epochal move to the sub­ject is driven and exem­pli­fied by legal per­son­al­ity. As spe­cies exist­ence, the “man” of the rights of man appears without gender, color, his­tory, or tra­di­tion. He has no needs or desires, he is an empty ves­sel united with all oth­ers through three abstract traits: free will, reason, and the soul (now the mind) — the uni­ver­sal ele­ments of human essence. This min­imum of human­ity allows “man” to claim autonomy, moral respons­ib­il­ity, and legal sub­jectiv­ity. At the same time, the empir­ical man who actu­ally enjoys the ‘rights of man’ is a man all too man: a well-​off, het­ero­sexual, white, urban male who con­denses in his per­son the abstract dig­nity of human­ity and the real prerog­at­ives of belong­ing to the com­munity of the power­ful. A second exclu­sion there­fore con­di­tions human­ism, human­ity and its rights. Man­kind excludes improper men, that is, men of no prop­erty or pro­pri­ety, humans without rhyme and reason, women, racial, and eth­nic sexual minor­it­ies. Rights con­struct humans against a vari­able inhu­man­ity or anthro­po­logy. Indeed these “inhu­man con­di­tions of human­ity,” as Pheng Cheah has called them, act as quasi-​transcendental pre­con­di­tions of mod­ern life.1
The con­tem­por­ary his­tory of human rights can be seen as the ongo­ing and always fail­ing struggle to close the gap between the abstract man and the con­crete cit­izen; to add flesh, blood and sex to the pale out­line of the ‘human’ and extend the dig­nit­ies and priv­ileges of the power­ful (the char­ac­ter­ist­ics of norm­at­ive human­ity) to empir­ical human­ity. This has not happened how­ever and is unlikely to be achieved through the action of rights.
Cos­tas Douz­i­nas is Pro­fessor of Law and Dir­ector of the Birk­beck Insti­tute for the Human­it­ies, Uni­ver­sity of London.

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