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

Human Rights vs. Human Dignity Part One

In the process of workshopping some comp's questions -- any input is appreciated.

A typical answer to the supposition that there is value in shifting discussion from ‘human rights’ to ‘human dignity,’ is that when people talk about human rights, the implicit assumption is that they are identical terms, or that when we talk about human rights, we are already talking about human dignity. While I will agree that colloquially these two terms might function interchangeably, I argue that there are important distinctions between the two concepts which shows that they function differently when elevated into the public sphere. Prior to engaging in a sustained analysis regarding the pitfalls of rights-discourse, it is first necessary to parse out my understanding of rights. I would define a right as something which an authoritative body grants to an individual, such that this individual is either free-from some form of intrusions or free-to act in a particular way. This definition is indebted to Isaiah Berlin’s famous essay “Two Concepts of Liberty,” in which he argues that we are granted both positive (free-to) rights and negative (free-from) rights what allow us to have a robust sense of how rights actually function. It is important to take both senses of what a right might be, such that my critique of rights-discourse does not only indict one particular way of thinking about rights.

What is implicit in Berlin’s definition of what constitutes a right is that there must be some authoritative body who is able to determine which of these rights the individual might have. In domestic situations this poses no particular difficulty. To use the United States as an example, the federal government acts as the author and executor of our rights, some of which have been enumerated in the Bill of Rights. While there is certainly an aura of contingency with regard to a particular right which points to the potential suspension of some rights (e.g. the suspension of the right of habeus corpus during the Second World War for Japanese-Americans held in internment camps), there is no debate on who is sovereign with regard to determining if these rights are applicable at a particular time. I cannot, for example, authorize myself as sovereign of Pittsburgh and eminent domain my neighborhood. There is separation of powers, both between branches of government, as well as the federalist system which governs who is authorized to enforce particular rights in a particular place.

Thing get much muddier, though, when we attempt to talk about the universalization of rights, or in other words, human rights. Unlike in the domestic space where there is not credible question of “who is the sovereign,” the international arena (following international relations theorists like John Mearsheimer and others) is fundamentally anarchical. There might be some supranational bodies and treaties (WTO, UN, Geneva Convention) which attempt to govern this space, but at best it is a patchwork of differing institutions, many of whom have different goals and capacities to enforce their decisions. This does not mean that any attempt to internationalize a rights-agenda will always fail or counterproductive. The United Nations Universal Declaration of Human Rights, for example, enumerates a short set of rights which all individual ought to have. Most important for this particular essay, is the first Article, which holds that all human beings are born free and equal in dignity and rights. This seems to lend credence to those who believe that there is no essential difference when talking about the human rights and human dignity.

There are a pair of anecdotes which I would like to contrast with one another which informs my understanding of the distinction between human rights and human dignity when it comes to their elevation to the international level. The first of these is the Haitian revolutionary, Toussaint L’Ouveture. Prior to the Haitian Revolution, then slave Toussaint made a decidedly Enlightenment plea based on those rhetorical moves which were emanating from France at that time. He believed that if the French revolutionaries opposing the Ancien Regime proclaimed the universal human rights to liberty, equality, and fraternity, then the slaves of Saint Domingue should also be covered under their umbrella. In a letters Toussaint sent to the French military and governmental leader push the rhetoric of the French revolutionary agenda to its logical conclusion (and subsequentially, reveal its hypocrisy). However, unlike in France where the Declaration of the Rights of Man remain abstracted from everyday experience, in the Haitian example, Toussaint insists on their full translation into practice. Nick Nesbitt, in his book Universal Emancipation: The Haitian Revolution and the Radical Enlightenment, argues that in the Haitian revolution was the first state who is able to implement human rights universally and unconditionally, unlike in the American and French revolution who still predicated citizenship in the class ‘man’ upon conditions like gender, sexuality, race, and class. In this instance, framing calls for liberty, equality, and fraternity in the frame of ‘human rights’ does not diminish its potency. The work by Toussaint and others in the Haitian revolution were accomplished precisely by their overidentification with the rhetoric of a universal human right. While this can be hailed as an instance where universalization does not necessarily remain problematic, the careful observer will notice that in the Haitian case, there is still a sovereign body who is willing to instantiate and protect that thing which is being flagged as a universal right.

The second anecdote, which I believe complicates the Haitian case, is from the work of Hannah Arendt in her work The Origins of Totalitarianism. In this text, she examines the plight of the stateless person during the intrawar periods in Europe. She observes that despite the call for universal human rights to protect the stateless person, these individuals more or less wandered Europe without any legal protections. From a historical perspective, the Declaration of the Rights of Man argued that rights were “inalienable,” and that “Man himself was their source as well as their ultimate goal” (Arendt 291). What is notable about the 19^th century definition of human rights is that it grounds its source in the sovereignty of the individual, and not the sovereignty of some governing institution, however, it only seemed natural that the “inalienable” rights of man would find their guarantee and become an inalienable part of the right of the people to sovereign self-government. Thus, the individual who sought to become emancipated and carried his dignity only within himself disappeared into ‘the people’. The question of universal human rights was then quickly and inextricably blended with the question of national emancipation; and only the emancipated sovereignty of the people would have the force to protect their new-found rights.

However, what World War One makes clear is that when civil rights were blended with human rights in those places where the abstract nature of the law was made tangible, the universality of human rights got lost. With the emergence of refugees during this era, who were no longer citizens of any sovereign state, no one was able to define with any assurances what these general human rights, as distinct from the rights of citizens actually were (293). The loss of the government for these refugees was not just the protection of citizen rights in their own country, but instead that these people were being denied the basic political status of being a person; that is, if they lack the basic right to have rights. International treaties and agreements are predicated on the assumption that you take your legal status with you when you travel abroad. If however, there is no longer a legal status which grounds the individual (for example, citizens of the Austria-Hungarian Empire), then there is no legal standing which would allow deterministic judgments to be made. Assuming that a refugee commits a crime in one’s own country – to what nation should this person be deported? Rather than respecting or granting that these now-stateless people were bearers of human rights, they too often got caught in the problems of political organization who framed these issues in terms of economic strains of mass asylum, resettlement problems and threats to the nation. This plight gestures towards the perplexity of human rights: no matter how they are defined, the real situation of those whom the 20^th century has driven outside the pale of the law shows that these are the rights of citizens. Their plight is not that they are deprived of life, liberty, and happiness, or of equality before the law, but that they no longer belong to a community who is able to grant these rights in the first place. As Arendt puts it, it is “not that they are oppressed but that nobody wants even to oppress them” (296). The reason why Arendt’s analysis of the stateless person is so interesting is that she points out the ontological problem at the heart of rights-discourse. Regardless of how one decides to define the content of universal human rights, there is an implicit ‘right to have rights’ which is never enumerated yet acts as the foundation for the entire system of rights. Without this right, as the stateless person shows, people have no standing before any law, and are susceptible to violence without any hope of political recourse.