Human Rights as Subjectivity - SSRN

Simon Chesterman, “Human Rights as Subjectivity: The Age of Rights and the Politics of Culture”, Millennium: Journal of International Studies 27 (1998), 97–118.

Abstract This article seeks to open up the question of the foundation of human rights by reference not to their philosophical origins but their political function. I argue that attempts to ground human rights in objective fact (such as ‘human nature’) or in pure reason (as ‘self-evident’) are futile, but more importantly are unhelpful in the broader project of protecting those rights that are recognised as ‘universal’. A more useful approach is to conceptualise human rights as a discourse in which the human being is constituted and reconstituted as the subject of rights. Allied with this theoretical analysis is the political project of establishing the conditions for meaningful conversation about human rights. More than any philosophical insight, this is the ultimate precondition for their recognition.

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Human Rights as Subjectivity: The Age of Rights and the Politics of Culture

Simon Chesterman*

Introduction

All human beings are born free and equal in dignity and rights. Universal Declaration of Human Rights, 1948 1

Man was born free, and everywhere he is in chains. Jean-Jacques Rousseau, 1762 2

It is a curious irony of human rights in late modernity that even as the political commitment to them has grown, philosophical commitment has waned. As (or perhaps because) the language of human rights gains currency in the international arena — even where it is used only to justify alleged breaches — so the theoretical structures on which that commitment is thought to be based are being undermined by the discrediting of Eurocentric conceptions of human nature and the state. On one view, the ends of modernity in securing universal recognition of norms born of the European Enlightenment have been subverted by the end of modernity and the concomitant scepticism of the power of reason to herald in a New World Order. History may not have ended, as was famously announced in the ‘prating eloquence of a White House advisor’, 3 but Western liberalism appears to be approaching some form of limit — if only the recognition of its own limits. Another account places contemporary disquiet as to the foundations of human rights in the context of the political effects such rights have had. The at times imperceptible erosion of sovereignty by human rights standards has resulted in a backlash that is incapable of enunciation within the discourse and so opts out of it. This operates in one of two ways: excluding Western political constructs as antithetical to Other conceptions of human nature, or selectively including aspects of them, as in the case of the fetishisation of development under the aegis of modernisation. Universalism and cultural relativism are constituted as opposing camps in this battle, an entirely tired and unhelpful opposition that pits ‘human nature’ against ‘culture’, divine right against moral nihilism — tired because its roots lie in the earliest assertions of the Rights of Man; unhelpful because when pursued in the abstract these positions are reducible to little more than the opposition of self-evidence and non-falsifiability. And all the time, the corpus of ‘universal’ human rights instruments continues to grow. What is missing here is an account of human rights as practice. If a crucial site of contestation in the debates over foundations is the politico-moral status of the human being, then what is required is an account explaining the transformations that have taken place in the way human beings talk and are talked about as possessors or violators of these rights. And, crucially, such an account must be of some practical as well as critical utility — not necessarily in the sense of providing an explicit programme of action, or a justification of a stance, but as facilitating a conversation between the subjects of these rights.

* I would like to thank John Cash, Patrick Emerton, Pene Mathew, Aruna Pavithran and Joanna Sanson for the stimulating and critical discussions that helped shape my views on this issue. The opinions expressed remain my own. 1 2 3

Universal Declaration of Human Rights, GA Res 217A, 3 UN GAOR 135, UN Doc A/810 (1948) art 1. Jean-Jacques Rousseau, The Social Contract (London: Dent, 1968 [1762]) bk 1, ch 1, 49. Jacques Derrida, The Other Heading: Reflections on Today’s Europe (Bloomington and Indianapolis: Indiana UP, 1992), p. 32, referring to Francis Fukuyama, ‘The End of History?’, The National Interest (Summer, 1989), p. 3, 4.


Page 2 of 17 Electronic copy available at: http://ssrn.com/abstract=1117242

In this article, I seek to open up the question of the foundation of human rights by reference not to their philosophical origins but their political function. First, I briefly rehearse the universalist-cultural relativist debate, highlighting the historical specificities of contemporary human rights and their indebtedness to and implication in the twin projects of modernity and the European Enlightenment. The recently translated work of Italian political theorist Norberto Bobbio provides a focus for the major debates, in particular his work on ‘the Age of Rights’ as a stage in the moral progress of humanity, and the idea that rights are justified by reference to the consensus that emerges from intersubjectivity. Bobbio’s work is useful because he squarely confronts the difficulties attendant to rejecting an ‘absolute principle’ on which to ground human rights; nevertheless, his account of intersubjectivity is relatively untheorised and fails to answer the important questions that it raises. It is used here primarily to foreground the questions of method that occupy the second half of this article. In Part II, then, I extend this consideration of intersubjectivity to argue that the subject of human rights may provide the point of mediation between contending conceptions of human rights by reference to the construction of the self. By conceptualising human rights qua discourse as describing not merely a political structure but a relationship to self, it may be possible to arrive at a theoretical exposition of rights that mediates the tensions evident in contemporary debates over human rights — the globalising violence of universalism, the fragmenting dissonance of relativism — by reference to the sense of self that is charted by and drawn between such conceptions. This approach opens up the discourse to interdisciplinary scholarship on subjectivity. First, I will seek to demonstrate the productivity of juxtaposing the legal subject of human rights with Foucault’s works on the subject as moral agent implicated in the law. This provides the methodological rigour necessary to Bobbio’s sometimes vague excursions on subjectivity, and makes possible the incorporation of conversations between and within cultures (rather than merely states) in the ongoing human rights discourse. Secondly, I will explore the practical utility of an approach that foregrounds subjectivity by considering Julia Kristeva’s psychoanalytic approach to the problem of nationalism. This account more accurately locates change at the level of the subjects of the rights in question, and demonstrates both the promise and the limitations of such a politics. My project, then, is at once theoretical and practical. On the one hand, I seek to move beyond the sterile philosophical extremes of universalism and cultural relativism; at the same time, however, the theoretical trajectory I adopt is directed towards establishing the conditions for meaningful conversation about human rights. This, more than any philosophical insight, is the ultimate precondition for their recognition.

I The Age of Rights: Bobbio and the Search for Foundations

As a theory variously developed by philosophers, theologians and jurists, the doctrine of the rights of man can be regarded as a later rationalization of the state of affairs resulting from the struggle many centuries earlier, especially in England, between the king and other social forces. Norberto Bobbio, 1988 4

In one of his earlier papers, Italian political theorist Norberto Bobbio considered whether it was possible (or, indeed, desirable) to seek to disclose an ‘absolute principle for human rights’. 5 This problem, he argued, has long been distorted by a confusion as to the respective roles of philosophy and law, with philosophers approaching it as if the answer were deducible from human nature in the same way that jurists deduce principles from positive law. 6 For centuries, this illusion was maintained in the guise of ‘natural law’, whose advocates believed they had safeguarded certain rights from possible

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Norberto Bobbio, Liberalism and Democracy (London: Verso, 1990 [1988]), pp. 6-7. Norberto Bobbio, ‘On the Fundamental Principles of Human Rights’, in Norberto Bobbio, The Age of Rights (Cambridge: Polity, 1996), p. 3. This paper was originally published as ‘L’Illusion du fondament absolu’, in Le Fondament des droits de l’homme (Florence: La Nuova Italia, 1966). Bobbio, ‘Fundamental Principles’, op. cit., in note 5, pp. 3, 10.


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confutation by grounding them in human nature. 7 Human nature, however, proved to be a ‘very shaky foundation’ on which to build an absolute principle for incontrovertible rights:

For instance, advocates of natural law argued for a long time whether the most natural of three possible forms of inheritance was for property to return to the community, to pass from father to son, or to be freely disposed of by the proprietor … [A]ll three solutions conform perfectly to human nature, according to whether you consider man as a member of a community on whom his life ultimately depends, as a pater familias whose natural instinct is to continue the species, or as a free and autonomous individual who is the only person responsible for his own actions and property. 8

After reviewing various contemporary justifications of an ‘absolute principle’ and rejecting them as either ill-defined, variable, heterogeneous, or illusory, Bobbio argues that the very notion that an absolute principle would be useful is misguided. It cannot be said that while natural law was at its most credible that human rights were more respected than they are now. Moreover, the Universal Declaration of Human Rights and other human rights instruments have been adopted by the vast majority of existing governments notwithstanding the collapse in the plausibility of fundamental principles. In addition, the strongest arguments against human rights generally relate not to their lack of foundation but their infeasibility. This leads him to state that the fundamental problem of human rights ‘is not so much how to justify them, but how to protect them.’ 9 And this is a political, rather than a philosophical problem:

There can be no denying that there has been a collapse in the influence of fundamental principles, but we must not attempt to overcome this reality by attempting to find another absolute principle to replace the one lost. Our task today is much more modest, but also more difficult. We do not have to find the absolute principle, a sublime but desperate undertaking, but rather the various possible principles for each particular circumstance. 10

The warning against abstracting the theory of human rights from its practice is clearly an important one and has been discussed elsewhere. 11 For my purposes here, however, I want to use a close reading of Bobbio to pursue the notion that it may be possible to negotiate a path through the Scylla of universalism and the Charybdis of relativism by reference to a plurality of principles, less a foundation of rights than a medium for their expression. In his subsequent works, Bobbio applies this basic politico-philosophical position to the question of justifying the values incorporated in the increasing number of broadly accepted human rights documents. He suggests that there are three ways to demonstrate the values they express as legal entitlements: deduction from a constant objective fact, such as human nature; their consideration as self-evident truths; and the discovery that they are generally accepted within a given historical period. 12 He deals only briefly with the first two, 13 but in different ways they elucidate issues that are central to the universalist position that is often adopted in opposition to the variety of stances labelled as ‘cultural relativist’. In the next sections, I will discuss these justifications in turn, before moving on

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See, e.g., Richard Tuck, Natural Rights Theories: Their Origins and Development (Cambridge: Cambridge UP, 1979), pp. 146149. Bobbio, ‘Fundamental Principles’, op. cit., in note 5, pp. 4-5. Ibid., p. 10.

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Ibid., p. 11 (emphasis in original). See, e.g., Richard Rorty, ‘Human Rights, Rationality, and Sentimentality’, in Stephen Shute and Susan Hurley (eds.), On Human Rights (1993). Norberto Bobbio, ‘Human Rights Now and in the Future’, in Bobbio, Age of Rights, op. cit., in note 5, p. 13. This paper was first published as ‘Presente e avvenire dei diritti dell’uomo’ (1968) 23 La comunità internazionale 3. Bobbio, ‘Human Rights Now and in the Future’, op. cit., in note 12, pp. 13-14.


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to consider the implications of Bobbio’s own conclusion that human rights may be understood as indicators of humanity’s ‘moral progress’. 14 Ultimately, Bobbio’s critique is of limited utility in replacing the universalist paradigm, but his attempt provides a necessary bridge to the more theoretical considerations of intersubjectivity discussed in Part II.

A Human Nature and Cultural Relativism

[T]he sacred rights of Mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature by the hand of Divinity itself, and can never be erased or obscured. Alexander Hamilton, 1787 15

The idea that there exists a constant and discernible human nature would, if proved, provide the strongest foundation for truly ‘universal’ human rights. 16 Not surprisingly, this has also proved to be one of the major stumbling blocks to the development of human rights standards, notably in response to perceived Western ‘cultural imperialism’. 17 The modern basis of human rights as legal formulations is traceable to the Declaration of the Rights of Man and the American Declaration of Independence, but their philosophical foundations lie in the Enlightenment works of philosophers such as Hobbes, Locke and Rousseau. The debates over the utility of ‘natural rights’ in the eighteenth century and the two documents that presaged their entry into mainstream political discourse are well known and will not be pursued here. 18 Bentham in particular famously rejected the French Declaration as ‘nonsense upon stilts’ — arguing that there is no such thing as a right anterior to the establishment of government. 19 For present purposes, it is sufficient to note that the conception of human nature invoked in these movements was indebted to European liberalism and Christianity, with the individual as Divine and Divinely inspired truth. 20 Significantly, some of the most important early critiques of natural rights came from Enlightenment anthropology, 21 echoed in the resistance of twentieth century anthropologists to accept uncritically the universality of ‘human’ rights. This has given rise to a divergence of views that at one extreme precludes judgment or even meaningful conversation between different cultures. At times this amounts to little more than a rationalisation of essentialist beliefs and the reification of culture; 22 viewed more broadly, it derives from a suspicion as to the purported universality of Western social formations.

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Norberto Bobbio, ‘The Age of Rights’, in Bobbio, Age of Rights, op. cit., in note 5, p. 35. Quoted in J A Joyce, The New Politics of Human Rights (London: MacMillan, 1978) 7. Bobbio, ‘Human Rights Now and in the Future’, op. cit., in note 12, p. 13. See, e.g., R. Panikkar, ‘Is the Notion of Human Rights a Western Concept?’, Diogenes (Vol. 120, 1982), p. 75, 76-7. See, e.g., Jeremy Waldron (ed.), ‘Nonsense upon Stilts’: Bentham, Burke and Marx on the Rights of Man (London: Methuen, 1987), especially pp. 7-21. Jeremy Bentham, ‘Anarchical Fallacies’, in Waldron, op. cit., in note 18, p. 53. Cf. Morton Winston (ed.), The Philosophy of Human Rights (Belmont, Calif: Wadsworth, 1989), p. 5. See Waldron, op. cit., in note 18, p. 13. See, e.g., ibid., pp. 17-18; Peter Gay, The Enlightenment: An Interpretation (New York: Knopf, 1969) vol 2, p. 458. This was in part foreseen by Locke himself, who wrote in 1689: ‘He that will carefully peruse the history of mankind, and look abroad into the several tribes of men, and with indifferency survey their actions, will be able to satisfy himself that there is scarce that principle of morality to be named … which is not, somewhere or other, slighted and condemned by the general fashion of whole societies of men, governed by practical opinions and rules of living quite opposite to others’:John Locke, An Essay Concerning Human Understanding (London: Everyman, 1965 [1689]) bk 1, ch 3, §§ 10, pp. 31-2. See Rhoda Howard, Human Rights and the Search for Community (Boulder: Westview, 1995), pp. 67-71, discussing the anachronistic pictures that are often painted of ‘premoderrn’ societies and the opposition of ‘cultural absolutists’ to allowing such peoples to shatter their romanticised vision of ‘tradition’.


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(Similarly, the articulation of the rights of white, property-owning man has drawn criticism from within and without Western society for its religious, 23 racial, 24 class 25 and gender 26 specificity.) Increasingly, however, it has been argued that some form of ‘cultural relativism’ is not incompatible with the articulation of ‘human’ rights. Alison Dundes Renteln, for example, claims that human rights can be discussed using the concept of ‘ethical relativism’, a subset of cultural relativism. 27 Such a framework holds that ‘there can be no value judgments that are true, that is, objectively justifiable, independent of specific cultures’. 28 Within such a paradigm, however, she maintains that cross-cultural study reveals that all cultures share certain common values that can provide a global consensus for human rights. 29 Renteln argues that relativists in the past have incorrectly linked the relativity of moral values and the ideals of toleration and objectivity. She argues instead that relativism is primarily a ‘meta-ethical theory’ empowered by the realisation that moral judgments are the product of ethnocentricity and enculturation (the process by which people unconsciously acquire the moral values of their own culture and accept them as universal truths). On this basis, she seeks to justify certain forms of external critique of specific human rights practices, while insisting on the ultimate relativity of values. This is an example of the search for an additive (rather than ethical) universality by reference to shared values or their ‘homeomorphic equivalents’. 30 Muslim legal scholar Abdullahi Ahmed An-Na‘im adopts such a position in his search for Qur’anic justifications for equal rights for women, improved treatment of religious minorities, and displacing the notion of jihad as a basis for relations between Muslim and non-Muslim states. 31 Although the limitations of such an approach are made clear in his inability to find any internal Muslim precept to abolish hudud punishments (amputation of limbs for theft) that are prescribed in his native Sudan, 32 An-Na‘im argues that all religio-cultural traditions, including Islam, share at least the principle of the Golden Rule, ‘the principle that one should treat other people as he or she wishes to be treated by them’. 33 Unhappy with such a passive approach to the spread of human rights principles, other scholars and advocates have recommended a ‘reconstruction of the world’s illiberal cultures’. 34 Richard Falk has recently argued that ‘virtually any cultural heritage is morally rich enough that it can, if appropriately constructed, under some circumstances make inspirational contributions to the struggle for human

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See, e.g., Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (2nd ed, Boulder: Westview, 1995) pp. 8-9 and references there cited. Cf. Abdullahi Ahmed An-Na‘im, ‘Human Rights in the Muslim World’, Harvard Human Rights Journal (Vol. 3, 1990), p. 13. See, e.g., Fernando Tesón, ‘International Human Rights and Cultural Relativism’, Virginia Journal of International Law (Vol. 25, 1985), p. 869, 894-5. See, e.g., Tom Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights (1993). See, e.g., Hilary Charlesworth, C Chinkin and S Wright, ‘Feminist Approaches to International Law’, American Journal of International Law (Vol. 85, 1991), p. 613; Catharine MacKinnon, ‘On Torture: A Feminist Perspective on Human Rights’, in Kathleen Mahoney and P Mahoney (eds.), Human Rights in the Twenty-First Century (1993), p. 21; Berta Esperanza Hernandez-Truyol, ‘Making Women Visible: Setting an Agenda for the Twenty-First Century’, St John’s Law Review (Vol. 69, 1995), p. 231. Useful collections include Dorinda Dallmeyer (ed.), Reconceiving Reality: Women and International Law (1993) and Rebecca J Cook (ed.), Human Rights of Women: National and International Perspectives (1994). Alison Dundes Renteln, International Human Rights: Universalism Versus Relativism (Newbury Park, California: Sage, 1990), p. 69. Ibid., p. 71, quoting Paul F Schmidt, ‘Some Criticisms of Cultural Relativism’, Journal of Philosophy (Vol. 52, 1955), p. 780, 782. Renteln, op. cit., in note 27, p. 86. Renteln, op. cit., in note 27, p. 88; Panikkar, op. cit., in note 17, pp. 77-9. See Abdullahi Ahmed An-Na‘im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse: Syracuse UP, 1990). See Abdullahi Ahmed An-Na‘im, ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment’, in Abdullahi Ahmed An-Na’im, Human Rights in Cross-Cultural Perspectives (Philadelphia: University of Pennsylvania Press, 1992), pp. 35-6. An-Na‘im, Toward an Islamic Reformation, op. cit., in note 31, pp. 162-3. Cf. Matthew 7:12. Reza Afshari, ‘An Essay on Islamic Cultural Relativism in the Discourse of Human Rights’, Human Rights Quarterly (Vol. 16, 1994), p. 235, 247.


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rights, democracy, and social justice.’ 35 Falk concludes, however, that the prospects for such development of human rights depends on an ‘open process of communication, free from dogmatic interferences.’ 36 Although cultural specificity is doubtless invoked on occasion in bad faith as a justification for human rights abuses, 37 it appears that the search for an abstract, universal and fixed human nature as the justification of such rights is doomed to failure. The development of this argument, however, has marked an important distinction between the attempts to generate trans-cultural foundations for human rights and cross-cultural values that may provide the basis for dialogue. Such attempts to broker conversations between cultures will be pursued further in Part II.

B ‘We hold these truths to be self-evident…’

All men are born free? All men remain free? No, not a single man: not a single man that ever was, or is, or will be. All men, on the contrary, 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. In this subjection every man is born — in this subjection he continues for years — for a great number of years — and the existence of the individual and the species depends upon his so doing. Jeremy Bentham, 1791 38

The idea that debate over human rights can be ‘short-circuited’ by reference to their self-evidence reflects more the manner of their legal exposition than their philosophical justification. At the very least, such self-evidence appears to be somewhat historically specific. It may well have appeared to the authors of the Declaration of 1789 that property was ‘sacre et inviolable’, but today all reference to property rights as human rights has virtually disappeared. 39 Few people today would not consider it self-evident that detainees should not be tortured, yet for many centuries torture was accepted and defended as a normal judicial procedure. 40 In addition to their specificity, such claims also have the defect of putting themselves beyond the requirement of proof, serving as a justification at once positivist and autochthonous. 41 Although this critique can be made of more general claims that the law is constative rather than performative, 42 it is especially interesting that the legislation of human rights exercises the double-move of both defining

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Richard Falk, ‘Cultural Foundations for the International Protection of Human Rights’, in An-Na’im, Cross-Cultural Perspectives, op. cit., in note 32, p. 54. Ibid., p. 57. See, e.g., Yash Ghai, ‘Human Rights and Governance: The Asia Debate’, Australian Year Book of International Law (Vol. 15, 1994), p. 1, 6. Bentham, op. cit., in note 19, p. 49 (emphasis in original). This is true of the International Bill of Rights, but cf. African Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc CAB/LEG/67/3 Rev 5, art 14 (entered into force 1986), 21 ILM 58; American Convention on Human Rights (Pact of San Jose), opened for signature 22 November 1969, OASTS 36, OAS Off Rec OEA/Ser.L/V/II.23, doc.21, rev.6, art 21 (entered into force 1978), 9 ILM 673; Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 20 March 1952, ETS 9, art 1 (entered into force 1954), reprinted in Henry J Steiner and Philip Alston, International Human Rights in Context (Oxford: Oxford UP, 1996), p. 1200. The right is qualified by reference to ‘public need’, ‘public utility’ and ‘public interest’ respectively. Bobbio, Age of Rights, op. cit., in note 5, pp. 13-14. See, e.g., John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), p. 24, arguing that the principles of natural law have no history: ‘there could be a history of the popularity of the various theories offered to explain the place of those principles in the whole scheme of things. But of natural law itself there could, strictly speaking, be no history.’ (Emphasis added.) Cf. Ian Duncanson, ‘Finnis and the Politics of Natural Law’, Western Australia Law Review (Vol. 19, 1989), p. 239. In other words, the presumption that the law merely describes the world, representing facts, as opposed to producing facts: see Rolando Gaete, Human Rights and the Limits of Critical Reason (Dartmouth, 1993), pp. 25-7.


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‘natural’ rights and constituting the citizen-subject. In distinct ways, each move relies on a certain conception of the (European) self — at once the repository of rights and the subject of law. In its historical context, this ‘self’ is perhaps best explained by reference to its opposite — seen in contemporaneous attitudes toward the (non-European) Other. For this was also the time when Europe sought to fulfil its ‘civilising mission’ by the application of a European truth onto the (presumed) blank slate of the world. The root of this urge to possess the Other goes deeper than the imperialist and colonialist discourse of long distant times, however: ultimately it is referable to the application of Western epistemology as constituted in the natural sciences, where truth is based upon the subjectobject relation of man and nature, and thereby upon ‘true discourse’. 43 The act of defining what the self is, is intimately bound up with the parallel act of defining what the self is not — a rationalisation whose circularity defines the limits of logocentrism. This represents the central problematic in Western epistemology, its irony being that it is at once restrictive and self-validating. 44 Criticism of such (implicitly civil and political) rights is not restricted to their origins in European history or ontology, however. More recently, this self-evidence has been qualified by reference to another ‘given’ of modernity: the ‘right’ to develop. Where cultural relativist arguments have been employed to de-legitimate ‘Western’ intervention in domestic affairs, development theory selectively internalises aspects of Western culture, linking the economic imperative of modernisation to the social ends of civil and political autonomy. The ‘Singapore School’, led by Senior Minister Lee Kuan Yew, states this position at its broadest as challenging the Western idea that the individual is inviolable and must be placed above social order. 45 (Interestingly, the enthusiasm with which this has been accepted by some Western sociologists and economists is evocative of the manner in which authoritarian regimes were tolerated or supported by the United States on the basis of their affiliation with capitalist ideology. 46 ) In the end, both the search for a fixed human nature and the self-evidence thesis are reducible to questions of ontogeny, 47 dependent on socio-theological and metaphysico-rational foundations respectively. The inadequacy of such universal assertions has been demonstrated empirically and historically, but of interest here is the relation that exists between the enunciation of rights and the ontogenesis that is said to ground them. In the next section, I will introduce Bobbio’s account of intersubjectivity, which provides the link between this insight and the excursions on subjectivity in the following Part.

C Consensus and Intersubjectivity

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world… Universal Declaration of Human Rights, 1948 48

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See Michel Foucault, ‘The Discourse on Language’, in The Archaeology of Knowledge (New York: Pantheon Books, 1972), pp. 216-9. These ideas are pursued further in Simon Chesterman, ‘Law, Subject and Subjectivity in International Relations: International Law and the Postcolony’, Melbourne University Law Review (Vol. 20, 1996), p. 979. See Susan Sim, ‘Human Rights - Bridging the Gulf’, Straits Times (Singapore) (21 October 1995) (Reuters on-line service): Kenneth Christie, ‘Regime Security and Human Rights in Southeast Asia’, Political Studies (Vol. 18, 1995), p. 204. Cf. Bilhari Kausikan, ‘Asia’s Different Standard’, Foreign Policy (Vol. 92, 1993), p. 24. See, e.g., Chomsky, Year 501, op. cit., in note 3, pp. 182-95; Noam Chomsky, Deterring Democracy (London: Vintage, 1992), pp. 37-42. Broadly, ontogeny denotes the study of the development of the individual being: OED. Ontogenesis is thus the development of that individual. In each case, the meaning here is ontological rather than biological. Universal Declaration of Human Rights, op. cit., in note 1, first preambular paragraph (emphasis added).


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In many ways, the opening words of the Universal Declaration of Human Rights capture the tensions outlined in the preceding sections: it is not the inherent dignity and rights of human beings that are the foundation of freedom, justice and peace, but the act of their recognition. 49 At one level this is obvious, and revisits a common concern that the articulation of a right in no way ensures its implementation. 50 However, the phrasing implicitly acknowledges also that human rights neither exist nor have meaning absent a community within which to articulate them and a political function with which to attribute them. This is not to say that human rights unenforced are not ‘rights’ — rather, it is to reaffirm that rights cannot be divorced from their social and political contexts. 51 (This was reflected also in the transposition of human for natural rights.) Bobbio acknowledges this in his conclusion on the appropriate philosophical justification of legally cognisable rights as consensus, which

replaces the test of objectivity which is considered impossible or at least extremely uncertain, with the test of intersubjectivity. 52

It is within this framework that Bobbio considers the primary human rights documents and the development of consensual norms as evidence of the ‘moral progress’ of the human race. 53 As support for this thesis, he endorses Kant’s discussion of the emergence of a ‘civil constitution’ as a form of political organisation. By defining the right of every human to obey only those laws in whose legislation she has herself participated as a ‘natural right’, Kant defined liberty as autonomy. 54 Within such a conception, the political restraints of the Lockean social contract find their basis in a metaphysics of the individual, and the equation of liberty and autonomy marks the scar between Locke’s state of nature, the emergence of rights, and the instantiation of the transcendental individual as the subject of those (civil and political) rights. For Bobbio, the moral progress of humanity through these transformations is not comparable to progress as experienced in the sciences, 55 but manifests in the changing relations between individuals and the sovereign. The starting point is the validation of the individual as an economic agent. Here the primacy of jus over obligation in Roman law prior to its development by jurists in the classical era first established the individual (as holder of rights over property) entitled to certain rights in respect of other economic agents (who, in turn, enjoyed the same rights). The turning point came when this economic relation was extended to the power relation between the sovereign and his subjects, with the creation of ‘the so-called subjective public rights which typify the constitutional state’. It is within the state, he argues, that the individual is reborn as citizen:

It is with the birth of the constitutional state that there is the final transition from the sovereign’s point of view to that of the citizen. In the despotic state, the individual has duties not rights. In the absolutist state, individuals can claim private rights in relation to

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The Universal Declaration was adopted by the General Assembly in 1948 with 48 states voting in favour and eight abstaining (Saudi Arabia, South Africa, and the USSR together with four East European states and a Soviet republic whose votes it controlled): Steiner and Alston, op. cit., in note 39, p. 119. As of September 1995, the International Covenant on Civil and Political Rights had 131 states parties, the International Covenant on Economic, Social and Cultural Rights had 132 parties: ibid., p. 117. See, e.g., Burke’s comments, op. cit., in note 18. This is nevertheless distinct from the common position that rights are deontic, with a precise meaning only in a normative language: see, e.g., Bobbio, Age of Rights, op. cit., in note 5, p. xiii; Gaete, op. cit., in note 42, pp. 51-6. Bobbio, ‘Human Rights Now and in the Future’, op. cit., in note 12, p. 14 (emphasis added). Bobbio, ‘Age of Rights’, op. cit., in note 14, p. 35. Immanuel Kant, ‘A Renewed Attempt to Answer the Question: “Is the Human Race Continually Improving?”’, in Hans Reis (ed.), Kant: Political Writings (Cambridge: Cambridge UP, 1991), p. 187. Bobbio, ‘Age of Rights’, op. cit., in note 14, p. 35.


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the sovereign. In the constitutional state, the individual in relation to the state enjoys not only private rights but also public rights. The constitutional state is a citizens’ state. 56

Bobbio thus introduces the interpretive community of human rights and their political function within a framework that emphasises the ends human rights serve in constituting the human subject as individual and as citizen. In following him thus far, I adopt his rejection of the abstract search for an ‘absolute principle’ (whether in an a priori human nature or in metaphysics), and the links he makes between the emergence of human rights and broader social transformations. Nevertheless, his analysis is ultimately of limited use in seeking to provide an account of precisely how the intersubjectivity he identifies operates, and the implications that the politics of human rights has for those outside a given interpretive community. His notion of ‘moral progress’ is also problematic for its implicit reliance on a linear conception of time, a privileging that is all too easily read as positing European ‘moral evolution’ at a stage ‘ahead’ of it non-European counterparts. In the next Part, I seek to push further this account of human rights as contingent on intersubjectivity, dependent on and constitutive of particular forms of subjectivity (the individual, the citizen). I argue that these are more properly seen as modalities of the power Bobbio somewhat optimistically interprets as having been itself transformed. By conceiving human rights as a historically specific discourse, it may be possible to carve out a space for action that relies not on a verifiable human nature, or abstract reason, but participation in a conversation that spans and crosses cultures. I turn, then, to a consideration of human rights as discourse.

II The Discourse of Rights: Agency and the Subject

Whoever ventures on the enterprise of setting up [a people’s institutions] must be ready, shall we say, to change human nature. Jean-Jacques Rousseau, 1762 57

In Part I, I argued that the emergence of the human rights discourse is referable to the development of a Western perception of the self (as well as other historical conditions). How, then, can the problematic origins of human rights be reconciled with their increasingly ‘universal’ (that is, widely recognised) status? This is a common but misleading rendering of the question. For the task of the legal philosopher, surely, is not to construct retrospectively an uncontested origin in order to grant legitimacy to human rights, but to explain and build on their near global recognition today. This is the political question that was unpacked in Part I — what remains is the methodological question of how the problematic origins of human rights affect this subsequent recognition. This may be reduced to two interdependent factors that must qualify both analysis and practice:

(i) The grounding of human rights in consensus precludes the unilateral assertion of universalism on the basis of historically and culturally specific social forms or moral precepts. (ii) It is nevertheless mischievous in the extreme to suggest that human rights must be compromised in order to preserve ‘other’ ways of life untouched by modernity. Human rights as the constitution of subjectivity is an important part of the urge to bring the Other into ‘Western’ discourse, but in a global order defined by such ideological forces, to exclude human rights as a restraint on the modern state without questioning the Western origins of the state apparatus itself is mere duplicity.

56 57

Ibid., p. 43. Rousseau, The Social Contract, op. cit., in note 2, bk 2, ch 7, p. 84 (emphasis added).


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The tensions between these factors suggests that debates as to the foundation of human rights must be revisioned as interrogations of that relation between the individual posited by the (Western) Enlightenment and the globalising discourse of modernity. From this perspective, the utility of such debates to increased acceptance of standards is limited. Instead, a more productive line of inquiry is to focus on cross-cultural engagement with the discourse of rights, exhibited through participation in the interpretive community that gives them contemporary meaning. This reconceptualisation of human rights as discourse raises problems as well as possibilities. Here I will deal with only one of each. First, who as a subject can act meaningfully within the discursive paradigm? This is the problem of agency, commonly raised in response to poststructuralist analyses which, it is claimed, undercut the political legitimation of purposive action. Secondly, what are the benefits of adopting a theoretical approach that foregrounds subjectivity as a critical factor in human rights? Here I will consider the productivity of cross-disciplinary studies, drawing in particular on the recent work of French psychoanalyst Julia Kristeva on the question of nationalism.

A Agency in Human Rights

Michel Foucault’s work on discipline and the modern state provides a useful introduction to the politics of subjectivity that will be discussed in this Part. His seminal work, Discipline and Punish, charts the emergence of the prison as a new modality of power over the body, a transformation in the relations of power and knowledge that at once made the human sciences historically possible and produced new forms of individualisation:

Knowable man (soul, individuality, consciousness, conduct, whatever it is called) is the object-effect of this analytical investment, of this domination-observation. 58 Subjectivity (broadly, the (mis)perception of self) is thus an effect of discourse. 59 Of particular importance here, however, is the interrelation between law and subject, which is described as positioning the subject (in Foucault’s study, the ‘delinquent’) not outside the law, but ‘in the law, at the very heart of the law, or at least in the midst of those mechanisms that transfer the individual imperceptibly from discipline to the law, from deviation to offence.’ 60 Such an analysis manifestly cannot be applied directly to the nascent discourse of human rights law, though it provides a useful departure point for the theoretical component of this Part. By conceptualising human rights qua discourse as describing not merely a political structure but a relationship to self, I hope to arrive at a theoretical exposition of rights that mediates the tensions described in the first Part of this article — the globalising violence of universalism, the fragmenting dissonance of relativism — by reference to the sense of self that is charted by and drawn between such conceptions. For it is precisely the individual posited as the vessel of human rights that provides both the philosophical foundation and political legitimation of that discourse. Absent that conception of the individual as subject of and, importantly, to the law, the discourse neither exists nor has meaning. But, as Foucault shows, the modern discourse of law crucially places the subject in the law — sustaining both law and subject in a relationship at once symbiotic and co-defining. 61 It is relatively uncontroversial to state that Foucault’s conception of subjectivity underwent a substantial change from the ‘docile bodies’ of Discipline and Punish to the ethical agent constituting

58 59

60 61

Michel Foucault, Discipline and Punish: The Birth of the Prison (London: Penguin, 1979 [1975]), p. 305. See, e.g., Michel Foucault, ‘The Confession of the Flesh’, in Colin Gordon (ed.), Power/Knowledge (New York: Pantheon Books, 1980), p. 98: ‘The individual is not to be conceived as a sort of elementary nucleus, a primitive atom, a multiple and inert material on which power comes to fasten or against which it happens to strike .... In fact, it is already one of the prime effects of power that certain bodies, certain gestures, certain discourses, certain desires, come to be identified and constituted as individuals.’ Foucault, Discipline and Punish, op. cit., in note 58, p. 301 (emphasis added). See further Chesterman, op. cit., in note 44.


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itself through practice in History of Sexuality volumes two and three. 62 In his earlier genealogies, Foucault argued that the individual-as-subject existed not as an atomised actor that reacts to power, but as one of the prime effects of power. The human subject form was not, therefore, ‘defined’ by the word of God or European rationality, rather it existed through its interactions with these (and other) sites of power. In his subsequent work on ethics and sexuality, however, a centred self became a possibility once more — though this was to be understood in socio-historical, rather than ontological terms. 63 The transition from power to ethics marked a move from discourse analysis to a conception of self as moral agent through a form of relation to oneself. 64 Applied to human rights, this is of primary importance in terms of the actors that may validly participate in the global conversation that contributes to the evolving human rights discourse. Unlike the domestic legal system, which was the focus of Foucault’s study, international law is peculiarly susceptible to critique because of its ‘primitive’ nature and its openness to various sources of authority, including ‘the teachings of the most highly qualified publicists of the various nations’. 65 In addition, the international legal system lacks the coherency that the monolithic state gives to the domestic legal system; such an ‘order’ enables action at a local level that often goes beyond domestic possibilities. (The down-side of this, of course, is the relative weakness of many of the norms at international law and the dearth of enforcement mechanisms.) Recognising the constructed nature of the international system severely undermines claims that only states may validly participate in the articulation of standards and the creation of norms. In some ways, this reflects the current situation, with the significant role played by non-government organisations (NGOs) in the broader human rights movement — especially in the task of enabling otherwise silenced voices to be heard. But this broadening is not restricted to the larger NGOs (such as Amnesty International), which often operate within a highly specific ideological mandate. 66 Indeed, it gives primacy to the grass roots organisations that are increasingly playing a role in the subversion of the state as sole spokespersons for the subjectivity of its citizens. 67 More and more voices are joining in this conversation. As well as the traditional opposition of labour against capital, protest movements have begun focusing on other categories such as ethnicity, ecology, gender and personal liberation. These new social movements, it is argued, may herald the formation of a kind of international public sphere, manifesting in a redefinition of autonomy and the social contract. Camilleri and Falk, for example, point to the rise of movements emphasising local autonomy, decentralisation and citizen participation as evidence of an emergent civil society. 68 Autonomy, identity and community are thus said to form the basis of grass roots movements directed at the delegitimation of state-centred authority. A corollary of these transformations, then, is that such a conception of international politics fragments the traditional boundaries that have defined legal institutions. This is often rendered as the displacing of sovereignty as the divine or inherited right of rule by popular sovereignty, where ‘[t]he will of the people shall be the basis of the authority of government’. 69 It has been argued that within this 62 63

64 65

66

67

68

69

See, e.g., Mark Poster, Critical Theory and Poststructuralism: In Search of a Context (Ithaca: Cornell UP, 1989), pp. 54-61. See Michel Foucault, ‘On the Genealogy of Ethics: An Overview of Work in Progress’, in P Rabinow (ed.), The Foucault Reader (Harmondsworth: Penguin, 1984), pp. 351-2. Michel Foucault, The Use of Pleasure: The History of Sexuality, Volume 2 (London: Penguin, 1992 [1984]), p. 251. Statute of the International Court of Justice, art 38(1)(d). This is one of the four bases of international law to be considered by the Court in making determinations between disputants. Amnesty International in particular has at its heart the very transcendental individual whose ‘universality’ was questioned in Part I. Cf. Henry Steiner, Diverse Partners: Non-Government Organizations in the Human Rights Movement (1991), p. 19. It is important to note that such a critique does not suggest that Amnesty’s work is not important, merely that the motif of the ‘prisoner of conscience’ adopts a particular conception of the human subject of rights and that this is in some ways limiting: see Philip Alston, ‘The Fortieth Anniversary of the Universal Declaration’, in J Bertin et al (eds.) Human Rights in a Pluralist World, Individuals and Collectivities (1990), p. 12. See, e.g., David W Kennedy, ‘A New World Order: Yesterday, Today, and Tomorrow’, Transnational Law & Contemporary Problems (Vol. 4, 1994), p. 329, 334. Joseph A Camilleri and Jim Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Aldershot: Edward Elgar, 1992), pp. 213-21. Universal Declaration of Human Rights, op. cit., in note 1, art. 21(3). It further provides that ‘this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by


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framework it is the rights of the individual rather than those of the sovereign state that become the foundation of international or global law. 70 Although this may be overstating their significance, these changes mark a discernible erosion in the legitimacy of a state’s rejection of criticism of its human rights record on the basis that it ‘infringes sovereignty’. There are, of course, costs associated with so opening up the discourse. No easy answer is provided to the problem of ‘illiberal’ cultures asserting exclusivist views or subjugating certain members of the population (on the basis of sex, race, class or caste). Translations, as Panikkar writes, are indeed more delicate than heart transplants. 71 But what is advocated here above all is a manner of listening, and often it will be possible to question assertions of cultural uniformity, monolithic statism or economic imperatives in the manner of cross-cultural conversation. This is clearly less than some human rights advocates would wish for. Nevertheless, opening up dialogue on any basis other than the unilateral assertion of right demands that oneself be implicated in that conversation — this means that the ‘universal’ standards that are agreed on must be recognised as contingent as well as necessary, necessarily contingent and open themselves to interrogation. A major barrier in this regard is in the unwillingness of certain states to subject themselves to the sort of international scrutiny that they would visit upon others. A brutally honest illustration was given by Louis Henkin when explaining (though not defending) the United States’ reluctance to sign many important human rights instruments:

We never thought that international human rights were intended for us. We thought that they were intended to promote the same ideas which the US had accepted and was working to improve, and to spread them around the world. So inevitably we somehow felt that ‘this is an agenda for the rest of the world’. 72

B Re-Imagining the Subject

In class and ideological conflicts, the key question was ‘Which side are you on?’ and people could and did choose sides and change sides. In conflicts between civilizations, the question is ‘What are you?’ That is a given that cannot be changed. Samuel P Huntington, 1993 73

This can be said, inversely or reciprocally, of all identity or all identification: there is no self-relation, no relation to oneself, no identification with oneself, without culture, but a culture of oneself as a culture of the other, a culture of the double genitive and of the difference to oneself. Jacques Derrida, The Other Heading 74

equivalent free voting procedures’. See generally Thomas M Franck, ‘The Emerging Right to Democratic Governance’, American Journal of International Law (Vol. 86, 1992), p. 46. 70

71 72

73 74

See, e.g., W. Michael Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’, American Journal of International Law (Vol. 84, 1990), p. 866, 872-3; J G Starke, ‘Human Rights and International Law’, in Eugene Kamenka and Alice Erh-Soon Tay (eds.), Human Rights (London: Edward Arnold, 1978), pp. 113-31. It would be idle to argue that this necessarily represents a victory for human rights: the values expressed in such public international law doctrine are very much ‘those of Liberal individualism transposed to the interstate level’: Martti Koskenniemi, ‘The Future of Statehood’, Harvard International Law Journal (Vol. 32, 1991), p. 397, 404. Panikkar, op. cit., in note 17, p. 77. Brian Urquhart, Louis Henkin and Richard Butler (Satellite Conference), ‘Yesterday’s Politics, Tomorrow’s Problems: A World Without the United Nations?’, Melbourne University Law Review (Vol. 20, 1995), p. 16, 25-6 (Louis Henkin). Samuel P Huntington, ‘The Clash of Civilizations?’, Foreign Affairs (Vol 72, No. 3, 1993), p. 22, 27 (emphasis added). Derrida, Other Heading, op. cit., in note 3, p. 10.


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In this section, I explore a second explanatory function of the subjectivity thesis and attempt to test its utility in relation to concrete problems. This will be pursued through French psychoanalyst Julia Kristeva’s attempt to make sense of one of the major contemporary problems associated with human rights abuses: nationalism. In her provocatively titled Strangers to Ourselves, 75 Kristeva locates within the problem of nationalism a problematic of self. Underpinning the politics of exclusion that manifests in the worst excesses of nationalism is a conception of self constructed in opposition to the Other. The confrontation with the foreigner (as the Other) thus marks the point of violence in such a politics, but Kristeva argues that therein also lies the seeds of its (dis)solution:

Strangely, the foreigner lives within us: he is the hidden face of our identity, the space that wrecks our abode, the time in which understanding and affinity founder. By recognizing him within ourselves, we are spared detesting him in himself. A symptom that precisely turns ‘we’ into a problem, perhaps makes it impossible, the foreigner comes in when the consciousness of my difference arises, and he disappears when we all acknowledge ourselves as foreigners, unamenable to bonds and communities. 76

In the late twentieth century, the presence of the foreigner has never been more immediate. The globalisation of transport, of media, trade and commerce, and a perceived wave of refugees (moving within Europe in particular), have increased confrontations with ‘the foreigner’ in both frequency and intensity. But even as such physical incursions mark the permeability of geographical borders around the territorial state, they simultaneously introduce and reinforce a qualitatively different boundary around the imaginary nation. It is to this latter maginot line that Kristeva addresses her critical attention, moving from her work in psychoanalytic and linguistic theory to the more traditionally political pastures of rights, nationality and citizenship. Her project is the reconceptualisation of the nation — playing out the opposition of atopic (foreignness) and utopic (a concord of people without foreigners, hence without nations) — in order to open it up to the possibilities granted and required by a multinational twenty-first century. 77 The challenge, then, is to be able to live ‘with the others, to live as others, without ostracism but also without leveling’. 78 Interestingly, the political realisation of the ethics which Kristeva locates in Freud’s ‘small truth’ concerning the strangeness within ourselves lies not in the dissolution of the individual but a form of extreme individualism that is nevertheless conscious of its own limits — in Kristeva’s argot, ‘a weakness whose other name is our radical strangeness’. 79 Kristeva’s ethics, then, relies not on an elision of the split between individual and citizen, but on the acknowledgment of a psychic space that constitutes the former and de-legitimises the latter. Anterior to the rejection of difference, in the ‘utopia of a society without nations’, is the recognition of difference (strangeness) within oneself. The modulation of that strangeness, Kristeva argues, may make possible a society that is both ‘polytopic and supple ... neither locked in to the nation or its religion, nor anarchically exposed to all of its explosions.’ 80 Lacking an alternative community bond that transcends national identities — in the absence of some supranational form — we are left with the possibility of a multinational society. Such a society would not seek to sublimate or integrate the foreigner, but rather is said to be constituted by those who recognise themselves as foreigner. 81 Freud’s essay ‘Das Unheimliche’ (‘The “Uncanny”’) provides the theoretical focus for Kristeva’s conclusion to her historico-cultural review of ‘the foreigner’ in Strangers to Ourselves. In his

75 76 77

78 79 80 81

Julia Kristeva, Strangers to Ourselves (New York: Columbia UP, 1991). Kristeva, Strangers to Ourselves, op. cit., in note 75, p. 1. Julia Kristeva, ‘Open Letter to Harlem Désir’, in Julia Kristeva, Nations Without Nationalism (New York: Columbia UP, 1993), p. 50. Kristeva, Strangers to Ourselves, op. cit., in note 75, p. 2. Ibid., p. 195. Ibid., p. 154 Ibid., p. 192.


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etymological and literary analysis of the German antonyms Heimliche and Unheimliche, Freud considers the immanence of the strange within the familiar as analogous to psychoanalytic observations on repression. The uncanny, he says, ‘is that class of the frightening which leads back to what is known of old and long familiar’. 82 That which is uncanny is that which was familiar and under certain conditions emerges. The uncanny is thus in reality nothing new; it is precisely that which is familiar but has become alienated from the subject through the process of repression. Hence the extension in linguistic usage from das Heimliche into its opposite das Unheimliche, and hence the linkage between uncanny strangeness and the anxiety accompanying a repression that recurs. The latter half of Freud’s essay considers the aesthetic experience of the uncanny, which often derives from the blurring of borders between ‘fiction and real life’. This effect is neutralised by artifice. Absolute enchantment and sublimation therefore act as a defence against the uncanny — and the same effect is achieved through absolute rationality (and absolute repression). Kristeva’s tentative conclusion, however, is that even as these modernist impulses protect us from the dangers (and the pleasures) of strangeness, they may also provide us with the means to ‘liquidate’ the politics of exclusivity that they mandate. Anguish revolves around an object, whereas uncanniness is a ‘destructuration of the self that may either remain as a psychotic symptom or fit in as an opening toward the new, as an attempt to tally with the incongruous.’ It is in this psychodynamic clash with the other, the foreigner, that Kristeva valorises as providing the possibility of a release from our nationalism qua psychosis and into an ‘opening toward the new’. Of crucial importance, however, is the transition she makes from this problematic of self back to the political problem of the nation absent the violence of nationalism:

Actually, a foreigner seldom arouses the terrifying anguish provoked by death, the female sex, or the ‘baleful’ unbridled drive. Are we nevertheless so sure that the ‘political’ feelings of xenophobia do not include, often unconsciously, that agony of frightened joyfulness that has been called unheimlich, that in English is uncanny, and the Greeks quite simply call xenos, ‘foreign’? 83

There is not space here to adequately deal with all of the implications of Kristeva’s thematisation of the unconscious as a field of ethics, which is in turn said to be translatable to a politics. (Notably, her abstraction from the practical and political implications of her work are problematic, as is the faith that she invests in the individual as agent of its own transformation.) Nevertheless, her work is admittedly experimental and is considered here in that light. The obvious application of her analysis is in the area of transnational migration and refugees. 84 David Jacobson has recently discussed transnational migration as a challenge to the principle of citizenship and the dominant conception that nationhood is necessary for the full realisation of rights. He argues that transnational migration is steadily eroding the traditional basis of nation-state membership, namely citizenship. Increasingly, rights are predicated on residency, not citizen status. 85 This has led to the deterritorialisation of communal identity, a progressive and ongoing breakdown of the belief that political identity and, hence, political agency are functions of the sovereign control of a territory.86 It is important to note, however, that such developments are in large part restricted to Western Europe and North America — in Eastern Europe precisely the opposite trend is evident. 87 Kristeva’s psychoanalytic approach presents a suggestive lens through which to view such transformations in the perception of community. Most significant, perhaps, is the light that it casts on 82

83 84

85

86 87

Sigmund Freud, ‘The “Uncanny”’, in Sigmund Freud, The Complete Psychological Works of Sigmund Freud (London: The Hogarth Press, 1953-1975) vol 17, p. 220. Kristeva, Strangers to Ourselves, op. cit., in note 75, p. 191 (first emphasis added). See also Jennifer Balint, ‘Towards the Anti-Genocide Community’, Australian Journal of Human Rights (Vol. 1, 1994), p. 12, 21 n 48, briefly noting Kristeva’s work. David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore: Johns Hopkins UP, 1996), pp. 8-9. Ibid., p. 126-38. Ibid., p. 126-7.


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the inadequacy of effecting radical change in any community by the imposition of political structures; such architecture is useful only in so far as it brings about changes in the ways members of that community perceive themselves. The level at which this takes place is affected by external forces, but is ultimately a product of reflection. The implications that this has for the practice of human rights advocacy repeat, with a difference, the points made in the preceding sections of this article. It is not enough to effect change from the outside. For meaningful transformation in both the perception and reality of human rights, the subjects of rights must themselves own those rights. The history of human rights documents this: citizen-subjects taking sovereign power in their own hands in the first revolutions (‘the sovereign people beheading the royal sovereignty’ 88 ); African and other colonised peoples coming to own decolonisation in the early years of the United Nations; 89 women taking power in the various waves and schools of feminist interventions. 90 In different ways, these demonstrate a form of empowerment — not simply in the ‘new left’ sense of the word as having power to control their own affairs, 91 but in an emergent relation to self that transcends the limitations of the historico-political structure that purports to define that self. This translates to an interminable (even if incomplete) demand for politicisation: an emancipatory politics premised on a self-critical methodology that is rigorous to the point of reinventing itself with each step that is taken. 92 Such a politics acts not in the somewhat naïve sense of calculated implementation of a programme, but in the sense of a ‘maximum intensification of a transformation in progress’. 93 This, then, is the emancipatory ethic that informs this article: an ethics not of ideology or theology but method, seeking to bring about change not by the institution of structure but by emancipation from ‘culture’.

Conclusion

Once more, the ethical decision alone appears able to transcend the narrow needs of national politics. Could cosmopolitanism as moral imperative be the secular form of that bond bringing together families, languages, and states that religion claimed to be? Something beyond religion: the belief that individuals are fulfilled if and only if the entire species achieves the practice of rights for everyone, everywhere? . . . Julia Kristeva, 1991 94

The practice of human rights advocacy in late modernity is both more promising and more difficult than it was fifty years ago. As the language of rights became established as international, so the philosophical and historical assumptions on which that language was founded were eroded away with the belief in the moral and political dominance of Western thought. And yet the language endures. In this article, I have sought to explain this resilience by reference to an alternative (and in one sense tautologous) grounding of human rights standards: in the fact of their recognition. Conceiving human rights as a discourse founded on an evolving relation to self both abandoned the search for an ‘absolute

88 89 90

91

92

93 94

Kristeva, Strangers to Ourselves, op. cit., in note 75, p. 174. See, e.g., Frantz Fanon, The Wretched of the Earth (Grove Press, New York, 1963), pp. 196-8. See above note 26. This does not normally refer to the ‘seizing’ of power in the traditional sense, but is often more properly understood as the displacing of hegemony to provide opportunity for other voices to be heard. Haraway, for example, argues that we need to take responsibility ‘for what we learn how to see’: Donna Haraway, ‘Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective’, in Simians, Cyborgs and Women: The Reinvention of Nature (New York: Routledge, 1991), p. 183. See also Rosi Braidotti, Patterns of Dissonance (Cambridge: Polity Press, 1991). Cf. John Chesterman, Poverty Law and Social Change: The Story of the Fitzroy Legal Service (Melbourne: Melbourne UP, 1996), pp. 13-16, 37. Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’, in Drucilla Cornell, Michel Rosenfeld and David Gray Carlson, Deconstruction and the Possibility of Justice (New York: Routledge, 1992), p. 28. Ibid., p. 9. Kristeva, Strangers to Ourselves, op. cit., in note 75, p. 173.


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principle’ and sought to move beyond the tired and unhelpful opposition of universalism and cultural relativism. The work of Norberto Bobbio was illustrative of the need to relate this debate to questions of intersubjectivity, but was useful primarily as a bridge between contemporary debates on human rights and the more abstract approaches to subjectivity pursued in Part II. I argued that such a methodology (as opposed to foundation) has two advantages over the prevailing approaches to this question. First, it becomes possible to incorporate the conversation between and within cultures (as distinct from states) as a crucial theme in the emergence of broadly accepted standards of human rights. Often, this plurality of voices is lost in the fray of polemic concerning the universality of the principles at stake. Here a distinction was made between trans-cultural and crosscultural values. Secondly, it more accurately locates change at the level of the subject of the rights in question. The psychoanalytic approach of Julia Kristeva was considered here as an example of the utility of seeing the human rights discourse as a discourse of subjectivity. Linked to the opening up of the discourse to non-state actors, this suggests that meaningful transformation also demands that we look beyond the traditional actors and mechanisms of the international system. Ultimately, human rights is not about origins but about change. In an obvious sense, this refers to change in the circumstances of human existence — the rape victim in Bosnia, the ‘prisoner of conscience’ in China, the Vietnamese refugee in detention in Australia. It is also change in the conception of the self that legitimates and perpetuates these abuses of standards — the capacity to deny the Other as less than human, less than citizen. But for a fully reflexive human rights regime sensitive to (but not obsessed with) difference, it must finally be about change in the way that these standards come to be formed: a necessarily contingent approach to the emergence of norms of which we (ie, those laying claim to the dominant Western intellectual tradition) are only a part, and in which we must see our selves implicated — as possessors and as violators of rights, and as part of the interpretive community of their formation. Rights, in the end, are a rhetorical tool. But, pace Bentham, it is precisely this ongoing rhetoric that lays the only meaningful foundation for the project of human rights — a project that constitutes our human selves as moral agents, ethical subjects, and political beings.


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