Human Rights vs. Human Dignity Part Two

Second half is still not complete - anyone have other sources for the conflict between human rights and the rights of the citizen?

While the first half of this essay has outlined the general arguments which frames my argument for the value of human dignity rather than human rights, the second half of this essay will more systematically argue my three essential points; that rights are essentially contingent, indistinguishable for citizen rights, and that the ontological basis for dignity is able to overcome the reasons that the discourse of human rights is problematic. This first argument, the contingency of rights, has recently been made popularized through the work of Giorgio Agamben, in particular his books Homo Sacer and State of Exception. In these books, he places Carl Schmitt’s understanding of sovereignty under his critical lens. Schmitt defines the sovereign through a pair of mutually referential axioms: first, that the sovereign is ‘he who decides upon the exception,’ and secondly, that individual who decides upon the political, which for Schmitt is the demarcation between the friend and enemy (Schmitt, Political Theology). Being that every affirmation is a negation; both Schmitt and Agamben observe that because the sovereign is able to determine whether or not exceptional circumstances require the suspension of the normally functioning legal order (e.g. the aforementioned internment of Japanese Americans during World War Two), the sovereign is actually in charge of determining the whole of the political situation. The premise in Schmitt’s work is that this structure of sovereignty is necessary to ensure that there is an extra-legal apparatus which is able to protect the constitution. 

However, Agamben’s concern with the potential suspension of the normally functioning legal order is not just that suspensions occur at some particular moment, but that it “is starting to coincide with the normal order” (38). In Homo Sacer, he notes that when there is an indeterminacy in the law (for example, when something ought to be included or excluded) in which all acts are judged at legitimate because we have lost the criteria to determine what is an exceptional and unjust application of the law. For Agamben, the potential suspension of the normal functioning of law is a more robust question than it is for Schmitt. Schmitt believes that the exception is only necessary to protect the constitution of the state. Agamben believes that the potentiality of suspension is predicated on the flawed ontological foundation which Arendt sees being brought to the surface in the plight of the stateless person. From the Greek polis onward, life has been included as a category within the law; yet an important nuance of this inclusion gets lost with translation into English. The Greeks, according to Agamben, had two conceptions of life: “bios,” or the political life of the individual, and “zoe,” or the biological or animalistic characteristics of the individual. What is original in Agamben’s work is the recognition that from its inception, the state has included the bare animality of the individual as an object of the law (which occurs in the figure of homo sacer) and due to this inclusion, these two forms of life become indistinguishable. Once these two forms of life become indistinguishable from one another from the perspective of the law, we enter into a radically new dilemma. The assumption behind the suspension of any particular right is that it is only the suspension of a political right which would only target the bios of the individual. Yet the indeterminacy regarding the object of the law means that the bare biological existence of the individual can also enter a suspended state.

The figure in which Agamben locates the emergence of the exception is the category of the homo sacer in Roman law. Translated literally this means “sacred man”, which, in Roman law, implied someone who was considered guilty of a crime, but was not put to death for his or her crimes. If someone were to kill the sacred man, it would not be considered a crime (72). This highlights two important facts about homo sacer: first, that he or she is sacred, and second, that he or she may be killed without the commission of homicide, but could not be sacrificed. Their life has been reduced to its pure animal nature and the death has no special or symbolic meaning. Instead of biopolitics arising during the Enlightenment, Agamben argues that “homo sacer presents the originary figure of life taken into the sovereign ban, and preserves the memory of the originary exclusion through which the political dimension was first constituted” (83). Homo sacer, is included as a category of law only such that he or she would be excluded from the normal functioning of law. Reduced to bare biological existence, this person cannot be scarified and therefore has been abandoned by law. Rather than view this as an archaic category, it is important to “recognize this structure of the [sovereign] ban in the political relations and public spaces in which we still live” (111). All citizens in the modern state, on this account, become homines sacri, as the foundation of sovereignty has always already been imbued with the structure of the exceptional figure, homo sacer.

What Agamben’s analysis shows is that instead of thinking about the potential suspension of human rights as a purely political problem, it is instead an ontological problem which finds its grounding in the structure of sovereignty since ancient times. Those declarations of rights represent the originary figure of the inscription of natural life in the juridico-political order of the nation state. The same bare life that in Rome was politically neutral and belonged to God as creaturely life and was clearly distinguishable as zoe from bios enters into the structure of the state and even becomes the earthly foundations of the state’s legitimacy and sovereignty. Bare life appears as the source and bearer of rights (or, as Arendt explains, that the rights of man emerge from the sovereign man himself), yet this bare individual vanishes into the figure of the citizen, in whom rights are ‘preserved’. If Agamben is right that the figure who is at the center of all political life is homo sacer, then it implies that rather than our societies being grounded in a particular set of rights which we all share, but instead on the suspension of rights. Rather than being the bulwark which is able to stand in opposition to intrusions of the governmental apparatus as Berlin would argue, the discourse of rights instead acts as the conditions for the possibility of the suspension of those political rights due to their elevation to the level of the nation-state, and away from the individual.

This is problem of the refugee, as he or she has no sovereign to guarantee the rights of man. When citizen becomes a contingent category, it allows for instances like Nazi Germany to come to the fore. Here, “citizenship was something of which one had to prove oneself worthy and which could always be called into question (132). Race emerges as a site upon which the sacred character of all people is exposed. Put otherwise, there is nothing necessary about the Jews that necessitated extermination to defend society. Instead, in the modern biopolitical state “the biological given is as such immediately political, and the political is as such immediately the biological given” (148). The fusion of life and politics is the condition for the possibility of all individuals to be sacred life, and allows for the emergence of techniques like eugenics to care for this biological given as a political entity. This is what allows Agamben to make the bold claim that “the birth of the camp in our time appears as an event that decisively signals the political space of modernity itself” (174). Or, to reduce this down to a simple axiom, all individuals exist within the structure or the confines of the camp.

While this transcendentalization of rights from the sovereign individual to the sovereign state makes possible the suspension of the rights of the individual, it is also true that attempts to capture the universal characteristics of human rights poses a parallel problem. Just as the sovereign individual is unable to become a citizen without giving up sovereignty over their rights, those legal protections of the citizen cannot be expanded beyond the horizon of the nation-state. When we examine the plight of the stateless person, it becomes clear that the refugee has become the preeminent heir to the title of homo sacer. The refugee challenges that legal fiction of the rights of citizenship. Modern states disseminate sacred life “into every individual body, making it into what is at stake in political conflict” (124). The person for whom these wars are fought is the citizen, or, as Foucault states in the last chapter of The History of Sexuality Volume 1, that “wars are no longer waged in the name of the sovereign who must be protected, wars are wages on behalf of the population”. Similarly, when the French declare the Rights of Man, this is a bit ingenuous; it is a declaration of the rights of the citizen. 

... to be continued