Rights : J.M. Bernstein

Claire Tabouret / Les Forces Contraire
Claire Tabouret / Les Forces Contraire


Rights / J.M. Bernstein

1. Introduction

Étienne Balibar’s political philosophy innovates a complex constellation of concepts aimed at reviving and renewing the great tradition of radical democracy. Equaliberty, citizenship, intensive universality, civility, constituent power, structural violence, insurrection and transformation, and the democratizing of democracy are all plausible candidates for concepts that leverage the constellation as a whole. Yet, not only is Balibar’s concept of rights the most exorbitant in his conceptual armory, but it is also the conceptual fulcrum on which his political philosophy pivots: without its particular normative insistence, the constellation falls to pieces.

In accounting for who we are, philosophy has proposed a bundle of familiar answers; rational animal, zoon politikon, soul, self, person, subject, self-consciousness, agent, and Dasein each intends a defining account of what it is to be human. If modernity is the discovery-invention of subjectivity in which one’s relation to oneself precedes one’s relation to the other, then for we moderns to be human is to be a subject. There is only a short distance from Kant’s conception of the synthetic activity of the subject to Marx’s conception of social labor as world making. Marx provides the socialized and materialist correction to Kant’s idealist projection: we make the world in the image of our understanding and desire by working on it, forming it in accordance with normative and practical conceptions that are not yet themselves fully of our own making. If one nuances the idea of social labor with the concept of class, then the proletariat can be posited as the final subject of history, the subject who could end the subjection of humanity to the logic of class antagonism that has governed human history till now.

Balibar argues that the Marxian correction is insufficient; knowingly or not, the French Revolution contested the claim that human being was subject; it declared that it was the citizen who composed the truth of human being: “The citizen (defined by his rights and duties) is that “nonsubject” who comes after the subject, and whose constitution and recognition put an end (in principle) to the subjection of the subject.”1 The citizen is “defined,” that is, composed, constituted, and constructed by her rights and duties. If the citizen comes after the subject, displaces the subject, and the citizen is constituted by rights and duties, then the meaning of being human, the value of the human is given through the possession of human rights. Rights and duties are the normative materials out of which the human is made, or rather, they are the normative materials through which we make ourselves who we are and through which we come to recognize one another as fully human. Balibar takes the French Revolution as the original effort to create, invent, and install a radically new account of the being of the human as such: the citizen as one who is constituted through her rights and duties.

It will prove useful to place Balibar’s conception of rights in a wider setting. I will thus begin my argument with a recounting of Joel Feinberg’s classic analytic essay, “The Nature and Value of Rights,” explicating how claiming is integral to the meaning and moral significance of rights, before elaborating Hannah Arendt’s critique of the natural rights position as a prelude to the idea of the right to have rights which is one of the pivot’s of Balibar’s account. I complete section 3 by showing how Arendt’s analysis of the wholly constructed character of human equality prepares for Balibar’s epochal comprehension of the primacy of politics and citizen identity. In the course of elaborating Balibar’s theory of equaliberty in section 4, I demonstrate how these ideas of equality and citizenship turn on the right to have rights, and by inference the rights character of the human überhaupt. I conclude by arguing that Balibar’s conception of equal liberty, equaliberty, requires a supplementation by the notion of equal dignity.

2. Nowheresville: A World Without Rights

In order to understand the kind of function rights practices involve it is helpful to begin with a simple thought experiment. Imagine two more or less identical worlds in each of which the worse off receive adequate food and housing, health care, basic education, they are given sufficient aid when they are unemployed, etc.; overall, the material conditions of the populations in these two worlds are, in the sense specified, identical. The only difference between these two worlds is that in one people have rights, while in the other they do not; because the two worlds are materially identical, it follows that whatever the meaning and significance of rights are, rights do not necessarily provide a fairer (more just) or more reliable distribution of material resources, nor are rights necessary for a morally intelligible world.

Joel Feinberg, whose thought experiment this is, names the second world, the one without rights, “Nowheresville.”2 In order to account for the material sufficiency of the less prosperous inhabitants of Nowheresville, we might first conceive of their better off neighbors as possessing great benevolence, as beings who virtuously compete with one another about who can aid the less well endowed most fully and tactfully. If we consider the circumstances of justice—scarcity and lack of benevolence3—as contingent rather than necessary (as Hume and Marx both do), then abundant charity would be materially sufficient. If that seems like it is asking too much of generosity and altruism, we could conceive of the well-off as morally charged to take care of their less well-off neighbors. We might suppose there are strict duties imposed by positive law and/or authoritative morality obligating individuals or the administration of Nowheresville to take care of the basic needs of its inhabitants. These duties would not be duties owed to the beneficiaries, but duties to God or to the moral law or to Nowheresville itself that would be fulfilled through appropriate beneficent actions. To fail in one’s obligation would thus not be to fail a fellow human (the giver does not owe anything to the particular recipient), but to fail the community or God or the moral law.

Nowheresville is not far from how conservatives would prefer to conceive of welfare, namely, as a “paternalistic system of “social protections” conferred from on high to “vulnerable” individuals, who are perceived as passive beneficiaries of social aid.”4 Such beneficiaries are meant to feel grateful for the aid they receive, and however injured they might feel if they are overlooked or ignored, morally or legally, their grumbling is morally idle, a matter of private dissatisfaction only.

Worlds without rights can be materially satisfactory, and morally replete; Nowheresvillians can be conceived of as eminently virtuous, even great-souled, or, in a Kantian register, as morally punctilious about their imperfect duties to others. Lacking rights, what is absent from the architecture of ethical life of Nowheresville is the capacity of beneficiaries of welfare to make claims. The internal connection between rights and claims belongs to the dictionary definition of legal right:

1

a: a claim recognized and delimited by law for the purpose of securing it
b: the interest in a claim which is recognized by and protected by sanctions of law imposed by a state, which enables one to possess property or to engage in a transaction or course of conduct . . .

2

: the aggregate of capacities, powers, liberties, and privileges by which a claim is secured; 3: a capacity of asserting a legally recognized claim.”5

What the comfortable circle between possessing a right and the ability to make a claim leaves out, Feinberg argues, is that claiming is “an elaborate sort of rule-governed activity,”6 and thus to comprehend the ethical significance of rights involves elaborating what is involved in the activity of claiming: “Having rights makes claiming possible; but it is claiming that gives rights their special moral significance.”7

In the ethical and legal sense, claiming involves making a claim to something as opposed to merely claiming that. While I can say that you have a claim to that item—“the umbrella is yours”—and we can both correctly say that I have a claim to the umbrella, only I can make a claim to it, demand it. “It is an important fact about rights (or claims),” Feinberg argues, “that they can be claimed only by those who have them,” and, further, that when one makes a claim to something one can thereby “make [legal] things happen.”8 Making claims to sets legal consequences in motion, requiring further actions of others—to desist from a current doing or to commence a new course of action. Since it is the activity of claiming that accomplishes setting these further actions in motion, Feinberg plausibly considers claiming a special kind of moral-legal performative.

It is the performative character of claiming that organizes the relation between having a claim, claiming that, and making a claim to: “having a claim consists in being in a position to claim, that is, to make a claim to or claim that.”9 One can make claims that are neither legal nor moral; one can claim that a statement is true. Here claiming is more than saying or merely asserting; it involves a certain manner of affirming, insisting, demanding. Claiming that stakes the speaker. So claiming that one has rights is to insist upon one having rights; and having the right is being licensed to make a claim to. Since rights idle when unrecognized, then the business of claiming that one has a right and making a rights claim to some good are fiercely intertwined: one cannot make a claim to a good without claiming at the same time that one has that right, and, conversely, a claim that one has a right is the effective prelude to making a rights claim to some good.

Claiming, then, is a first personal activity through which an individual inserts herself as having a normative authority that demands recognition and heeding whilst, simultaneously, being a claim to the appropriateness and even necessity of such recognition and heeding. A rights claim inserts into social space an idea of what is due the agent; and what is due thus imposes a duty on others—to heed and recognize the right-holder’s claim. Claim rights precede duties, and make the idea of others having duties toward one intelligible—as what is one’s due. The point here is not simply that rights claims are made in the first person; rather, rights as provisioning the space for claiming create the space of the authority of the first person—the worth, entitlement, value of the first person as features that emerge from an individual’s own doing and effort. Rights claims project an egalitarian social framework that authorizes individuals, gives social authority to them as individuals, with respect to their social fellows and encompassing institutional habitat.

It is this sense of individual worth as bound to first personal activity of claiming what is one’s due that the inhabitants of Nowheresville lack; they may believe the each individual is created in the image of God and therefore is possessed of infinite worth, and still lack the space through which an individual has a right to claim sustenance or education or health care or work or a right to habitation. Individuals may deserve all these goods without having a right to them; it is having a right to them that entitles an individual to claim them, and so have a claim against those in a position to satisfy that claim. But since right is only actual in the claim, then claiming is necessary to the existence of the right; hence, the right emerges through the claiming it founds.10 Without that way of knotting right and claim—claiming instituting and actualizing the rights that ground the claim—the performative character of claims that give them their moral significance is erased. It is in this sense that rights involve some conception of oneself as having equal worth or equal entitlement in some domain that leads Feinberg, running far ahead of anything he actually argues, to wonder whether the notion of rights is not the key to the value of the human in general.

Having rights enables us . . . to look others in the eye and to feel in some fundamental way the equal of anyone. To think of oneself as the holder of rights is… to have that minimal self-respect that is necessary to be worthy of the love and esteem of others. Indeed, respect for persons (this is an intriguing idea) may simply be respect for their rights, so that there cannot be the one without the other; and what is called “human dignity” may simply be the recognizable capacity to assert claims. To respect a person then, or think of him as possessed of human dignity, simply is to think of him as a potential maker of claims. Not all this can be packed into a definition of “rights;” but these are facts about the possession of rights that argue well their supreme moral importance.11

This is a remarkable passage. Feinberg is here contending that our ideas of respect, self-respect, moral worth, self-esteem, and dignity in their uniquely modern sense receive their moral substance through “the recognizable capacity to assert claims,” that is, through the ethical space created by the modern idea of rights and claiming. It is just this thesis that Balibar’s theory means to vindicate.

3. Nowheresville, Again: Of Natural Rights and Human Rights

Chapter Nine of Arendt’s The Origins of Totalitarianism, “The Decline of the Nation-State and the End of the Rights of Man,” offers a withering critique of the thesis that human rights are moral rights. What makes the critique unanswerable is that, in the first instance, the verdict on the emptiness, futility, non-existence, and even bad faith involved in the presumption of the existence of moral rights is offered not by Arendt’s work of philosophical analysis and critique, but by history, that is, by all the participants in the decimating history of minority peoples in Europe following World War I. The Minority Treaties, Arendt argues, by making the League of Nations responsible for protecting the rights of minority populations made evident what had always been implicit in the practice of nation-states: “that only nationals could be citizens, only people of the same national origin could enjoy the full protection of legal institutions . . . [the League treaties] took it for granted that the law of a country could not be responsible for persons insisting on a different nationality.”12

The consequence of the inability to resolve the problem of minorities led to increasing internal crises within states, to the growth of refugees from states where they were unwanted and without place, thus to increasing numbers of stateless people even in non-totalitarian nations, to the use of internment camps, and to all the terrible events we know too well. In all this the Jews were simply the exemplary minority: “those whom persecution had called undesirable became the indésirables of Europe.”13 Uncannily anticipating the crisis and European reaction created by refugees fleeing the war-torn, broken states of Syria, Afghanistan, and parts of Africa today (September 2016), the Official SS newspaper, the Schwarze Korps, stated in 1938 that “if the world was not yet convinced that the Jews were the scum of the earth, it soon would be when unidentifiable beggars, without nationality, without money, and without passports crossed their frontiers.”14 Here is the historical verdict being rendered:

. . . the incredible plight of an ever-growing group of innocent people was like a practical demonstration of the totalitarian movements’ cynical claims that no such thing as inalienable human rights existed and that the affirmations of the democracies to the contrary were mere prejudice, hypocrisy, and cowardice in the face of the cruel majesty of a new world. The very phrase “human rights” became for all concerned—victims, persecutors, and onlookers alike—the evidence of hopeless idealism or fumbling feeble-minded hypocrisy.15

If the defender of universal moral rights thinks these events and this verdict are insufficient to demonstrate the non-existence of human rights, then it is unclear how philosophical argument can proceed: must not a priori theory give ground to empirical reality somewhere? And if not here, then where?

Arendt’s philosophical analysis of the Rights of Man is intended as an explication of the historical verdict, as an attempt to understand how in the moment when the possession of rights would have been most humanly important, they were perspicuous by their absence. She argues the Rights of Man were aporetic in character because their very gesture of dignification was the source of their abrupt emptiness: in making rights inalienable, a permanent, unlosable possession, rights strip man of his actual placement in a world, making participation in worldly practices an afterthought with respect to his status as a bearer of rights: “From the beginning the paradox involved in the declaration of inalienable human rights was that it reckoned with an abstract human being who seemed to exist nowhere.”16 In this respect the fate of stateless persons is, at least in part, a working out of the paradox of inalienability:

The Rights of Man . . . had been defined as “inalienable” because they were supposed to be independent of all governments; but it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them.17

Because rights were taken to be inalienable, their possessors effectively inhabited a terrifying Nowheresville. What inalienability accomplished was to make the having of rights independent from their claiming; making the possession of rights the foundation on which the activities associated with them were to rest effectively emptied those activities of their political powers of claiming, invention, recognition, and authority. Inalienability, as a transcendental guarantee, subjects humans to their presumptive standing as rightholders.

The best explanation of why a transcendentally guaranteed moral possession does nothing is because considering rights as possessions is a category mistake.18 Considering claims and rights possessions, non-detachable moral things, fixes them to us in a manner that makes them practically unintelligible. It is that precise unintelligibility that eventuated in the skeptical judgment of history that human rights represented a form of either hopeless idealism or feeble-minded hypocrisy.

For Arendt the possession of so-called human rights in the absence of political community turns out to be a world without rights: “The calamity of the rightless is not they are deprived of life, liberty, and the pursuit of happiness, or of equality before the law and freedom of opinion . . . but that they no longer belong to any community whatsoever. Their plight is not they are not equal before the law, but that no law exists for them; not they are oppressed but that nobody wants even to oppress them.”19 What happened to minorities in the inter-war years is today a fundamental mechanism of capital domination: humans who are without a political place in the world are “superfluous” beings, disposable, beings whose sheer naked humanity, their naked possession of human rights and nothing else, is the mark of their superfluousness and disposability.20

In claiming that natural inalienability is partly to blame for the human rights disasters of the inter-war years and what immediately followed, in claiming that the consideration of human rights as inviolable moral rights strips humans of their political habitation in the world in the act of morally dignifying them, Arendt is arguing that only through a paradigm reversal, only through the contingent rights of the citizen becoming the ground of universal human rights can there be human rights at all. Arendt and Balibar are not moral skeptics; on the contrary, they are contending that some version of the idea of the primacy of politics is a necessary condition for the possibility of human rights being both actual and effective. For a quick way into this thought, Arendt’s brief remarks on equality will prove helpful. The equality of moral rights, the thought that each human being in light of their possession of human rights should be treated equally belongs to the great moral decency of modern morals. But that great moral decency erases not only the long and difficult history through which it came to be, turning social invention and construction into discovery, but also obscures the obvious fact that each human being is empirically different from every other. Nor is it intuitively plausible to think that everyone should be treated the same since that would ignore manifest differences that should be considered morally salient; nor is it the case that all the practical inequalities in wealth, intellect, power, capacity, and status are wrong. Meritocracies depend on the idea that differences in status and power can be earned, and that meritocratic procedures are among the rational ways of distributing (some) goods and (some) statuses. If expertise and hierarchy are good for the ordering of science laboratories and business administrations, why are they not equally good for morals and politics? Equality is not natural.

The thought of a priori moral equality is just another version of universal natural rights. Against this Arendt argues that equality in the senses it matters to us was an ethical invention of the Greeks.21

Equality, in contrast to all that is involved in mere existence, is not given us, but is the result of human organization insofar as it is guided by the principle of justice. We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights.

Our political life rests on the assumption that we can produce equality through organization, because man can act in and change and build a common world, together with his equals and only with his equals.22

Arendt is emphatic that rights are neither given features of the human world nor deposited from on high, but items we mutually give to one another. Rights, in this respect, are the stuff out of which mutuality amounting to significant equality is made. Rights are products of human activity; from guaranteeing one another rights we manufacture significant human equality. Human equality is the product of an ongoing series of collective and intersubjective acts of equalization. Equality is a practical state of affairs that must be brought into being and sustained through acts of equalization. Our becoming equal is the result of a decision we have made about who we are. That decision, I shall want to say, is neither arbitrary nor fully determined. We are switching from the nominative to the verbal form, from equality as a moral property possessed by individuals to equality as a social status achieved through a series of rigorous practices of equalization: the active distribution and guaranteeing of rights. All actual moral equality is nothing put a time-slice portrait of the equalization processes constitutive of a given community.

4. The Primacy of the Political

Arguing that equality must be conceived as a communal decision to undertake a process of equalization—in which the Greek decision for equality is the model—is a component of Arendt’s general defense of the autonomy of the Vita Activa from the life of contemplation, that is, from theoretical understanding and explanation in general. Employing a method of historically informed phenomenology, Arendt demonstrates that the spheres of labor, work, and action have an internal logic that is not determined by, dependent on, or, in the final instance, under the guidance of theoretical truth. Action, she contends, is bound to an intersubjective space of appearances in which opinion, rather than truth, is the fundament of collective political action.

Balibar radicalizes the argument for the autonomy and primacy of politics from a phenomenological theorem to a constitutive historical political project—political action grounding the claim for the primacy of the political—that commences with a groundless act of declaration.23 In Balibar’s handling the reversal from transcendence (theory) to immanence, from human rights as moral rights to political rights being the ground of human rights is initiated by three moments: (i) the political act of declaring of the Declaration of the Rights of Man and the Citizen; (ii) the identification of the rights of man with the rights of the citizen, or better, the inclusion of the rights of man in and as an element of the rights of the citizen; and (iii) the material a priori truth of the theorem of equaliberty.

These three moments are best considered as three aspects of a singular act of political founding in which modernity constitutes itself as a distinct form of human living in the long and discontinuous history of societal experiments on the meaning of being human. It is only in the light of these three moments that the universality of equal rights can come into view. Equal rights for Balibar will manifest a definition of the meaning of human being in general; it is that transfiguration in the meaning of the human that spells out the historically constitutive character of the primacy of politics. To put the thesis most broadly and crudely: only through the epochal reconstitution of the human as a creature composed of legal rights that are indefinitely politically implemented, sustained, invented and re-invented—the process through which ‘constitution’ is continually created and recreated through insurrection—can we finally exit from the Nowheresville of theoretical transcendence, natural hierarchy, and social domination.

It is not uncommon to interpret the French Revolution as riven between the intention of founding history anew, and its commitment to “the natural, inalienable and sacred rights of man” (Preamble), to men being “born . . . free and equal in rights” (Article 1), to “the preservation of the natural and imprescriptible rights of man” (Article 1), etc. Balibar fiercely opposes the natural reading of the Declaration as maneuvering the suppressed egalitarian tendencies of the classical natural rights tradition in the direction of radical egalitarian political fulfillment. Nor does he accept that the claim that Article 3’s alignment of sovereignty with the nation operates a simple substitution whereby monarchical sovereignty is taken over by the sovereignty of the nation. With respect to the latter problem, Balibar insists that it is the thesis of an “egalitarian sovereignty” that is “practically a contradiction in terms” that enables the expulsion of “transcendence” and makes possible the inscription of “political and social order in the element of immanence, of the auto-constitution of the people.”24 Since this thesis will find its substantiation in the identification of man and citizen, I will leave it undefended for the present.

More troubling is the attempt to deny what appears on the surface level of the text obvious, namely, that the Declaration affirms and relies on a broad transcendent conception of natural rights. It is the critique of this claim at which Balibar’s three moments are directed. First is the thesis that the tradition of natural rights undergoes an emphatic sea-change, an ontological transfiguration through its being declared. The speech act of declaration provides the determining framework through which what is declared takes on its specific salience and meaning. Roughly, it is through the political act of being declared here and now that the enumerated rights come to determine the fabric of a people’s being together as men and citizens; hence it is through being declared that those rights take on the mantle of actuality—an actuality that is politically constituted. Balibar is here operating the same substitution of the nominative by the verbal that Feinberg effects with respect to having a claim and the activity of claiming. If rights are to be effective, then the agents whose rights they are must actualize them. The first act by which they become actual as their rights is through the declaring of them. By politically declaring them, rights are deposited into a social space that is politically constituted, so a self-created political space; this political space is defined by declaring those rights as constitutive terms for the being together of a people. The declaring of those rights is, then, a claiming of them—an insisting upon them and a demanding of them—as what is fitting and proper to each, what ‘we’ declare to one another about who ‘we’ are, individually and collectively, endowing one another with the very rights being so declared. The declaring of the rights transforms all rights into claim-rights, and makes claiming the actuality of those rights.

All this I take to be what is implied by Balibar’s statement that “the materiality of this act of enunciation was the anchoring point for a series of claims that, from the day after the Declaration, started to claim it in order to demand the rights of women, workers, or colonized races to be incorporated into citizenship.”25 Said differently, but this matters to a proper reading of what Balibar is arguing, the materiality of the enunciation, our coming to perceive the depth and ineliminability of the performative character of the act of declaration, submits the contents of the performance to a transformation: whatever they once were, and indeed, however they were originally conceived by their framers, through being declared they have become immanent elements in our radical act of collective self-constitution. The afterlife of the Declaration—that it has been the political origin of the continuing demand for the rights of women, workers, and colonized races to be included in the scope of citizenship—reveals the significance of the materiality of the original enunciation. In retrospect, the materiality of the enunciation requires us to perceive the Declaration as, in Ayten Gündoğdu’s limpid phrasing,

a revolutionary speech act that transforms the organization of political community as well as the terms of human co-existence by constituting human beings as the subjects with the capacity to declare rights and the objects to which the declared rights are addressed. Once we understand declaration as a practice of political founding and attend to its inaugural effects (i.e., constitution of rights, subjects, political community, humanity), we realize that what is at stake is not only justification or reason-giving but instead the political invention and disclosure of a new world .26

The brio of this statement accurately captures the trajectory of Balibar’s argument. Nonetheless, there is a patent overreach in its conclusion: declaration on its own cannot have all the constitutive consequences claimed for it independently of the content of the rights claims made. If Marx is correct in his analysis that the Rights of Man, on the one hand, and the Rights of the Citizen, on the other, are separate and distinct bodies of right in which the former covers private man, man as an inhabitant of civil society, “i.e. of egoistic man, of man separated from other men and community . . . the right of the restricted individual, restricted to himself . . . the right of self-interest,”27 then the inalienability of these rights are for the sake of man opposing himself to political society, of having those rights independently of political society, and hence of relegating political society to the task of protecting rights that are taken as, precisely, natural and inalienable.

This is why Balibar quickly leaves off the discussion of declaration in order to defend his second thesis, namely, pace Marx, the identity of the Rights of Man with the Rights of the Citizen: “they are exactly the same. Nor, consequently, is there any difference between man and the citizen, at least to the extent that they are defined practically by their rights to which they are entitled.”28 Balibar’s argument proceeds cautiously in the first instance. He first offers the reminder that the rights noted in Article 2 (freedom, property, security, and resistance to oppression) are, finally, the rights that “the Declaration will show are organized juridically by the social constitution.”29 After noting that “resistance to oppression” acts as a “verbal trace” of the revolutionary struggle that makes the claim of freedom pivotal for the Declaration as a whole, Balibar returns his attention to the issue of juridical organization. Noting the absence of any mention of equality in Article 2, Balibar turns our attention to Article 6, which states, “The law is the expression of the general will. All citizens have the right to take part . . . in its formation. It must be the same for everyone whether it protects or penalizes. All citizens being equal in its eyes . . . etc.” Article 6 announces the juridical organization the state in which law is both the product of all in being the expression of the General Will, and, more emphatically, what determines the actuality of the equality of all citizens: to be equal is to be equal under the law, to be equalized by having fundamental possibilities of action determined by laws that are the same for everyone. The rule of law is being transformed into the rule of equality.30 This is why Balibar contends that the formulations of Article 6 “do more than compensate for the absence of equality in the enumeration of Article 2; they reverse its meaning, making equality the principle of right that effectively ties all the others together.”31

Nothing about the concept of rights or the operation of law necessitates that rights must be equal for all (there can be special rights) or that laws equalize (there can be laws that insure relations of domination). On Balibar’s reading, Article 6 performs a triple operation: it juridifies rights, making their possession a question of law not morality; it subsumes law under right so that being a creature of law endows individuals with the power to claim rights; and it binds the operation of law as the expression and articulation of right to the principle of equality. Hence the efficacy of law is at one with the actuality of equal rights—the creation of human equality. In this scenario, laws provide for the actuality of rights, and the rule of law is the operative mechanism of equalization: law rules rather than any man ruling over others—Rousseau’s miraculous if plangent proposal. If rights are primarily for the sake of equalizing and dignifying—and that still needs to be shown—then rights juridification is the truth of right, the subsumption of law under right underwriting the ethical actuality of law, and their joint operation the historical coming-to-be of human equality. This begins to hint at what I claimed in my opening was the exorbitant status of rights in Balibar’s political thought.

It is the thorough juridification of right as the work of equalization that allows for the “most precise identification of man and citizen.”32 But it is this very identification, under the umbrella of equal rights, which seems to quietly erase freedom and liberty, as least freedom and liberty as they appear in liberal thought. Is freedom not a human power, the power of self-determination? And if that is too strong, then at least a freedom from external interference, including the interferences of law? Isn’t the ideal of negative freedom a reason why one might suppose that there is a distinction between the private rights of man and the political rights of the citizen? Isn’t the power of negation, of saying “No!” forever outside the constitutive sway of political citizenship? Neither declaration nor the identity of man and citizen accomplished through the juridification of right is sufficient to institute the ontological primacy of the political unless freedom can be socialized. But it cannot be solely the socialization of freedom that is required, but a socialization commensurate with the great project of equalization. Hence the decisive third moment of Balibar’s declension of the political: “the Declaration in fact says that equality is identical to freedom, is equal to freedom, and vice versa.”33 Balibar names this identity equaliberty. If equality is accomplished through the juridification of right, and freedom is identical to equality, then freedom is a social and political achievement of a certain kind rather than the limit condition of social immersion and social making.

There are normative analyses of the meaning of freedom that might be appropriate here; but this is not the direction of Balibar’s thought. The proposition of equaliberty, that liberty and equality are equal (L = F), is not a conceptual matter, not the posing of an egalitarian theory of positive freedom (although such a theory is necessary for Balibar’s analysis), but empirical and experimental. Freedom and equality are extensionally equivalent: wherever there is a lack of freedom, then there will be a lack of equality; and wherever there is a lack of equality, there too will be a lack of liberty: “the (de facto) historical conditions of freedom are exactly the same as the (de facto) historical conditions of equality.”34 The proposition of equaliberty proposes an experiment in the idea of a form of life where it is taken to be the material a priori truth underlying our collective pursuits. For reasons that will become clear directly, the form of life projected by the proposition of equaliberty can only be an historical experiment because there are no obvious ways of demonstrating it directly. As Balibar underlines, part of the logic of the equaliberty is causal: the conditions in which there is debilitating inequality are ones that bring about or depend on the deprivation of some liberty; and wherever there is lack of needful freedom, this will cause or be caused by a lack of equality.

Because this is a social causality, where the phenomena are themselves socially constructed—the actuality of meaningful human equality through the juridification of right as an idea about the meaning of the human—then we have no definitive insight into the workings of this logic beyond naively hydraulic models. Rather, we come to understand what is meant by and wanted by the desire for freedom and the need for equality through the political practices where their urgent demand is satisfied by the implementation or invention of an appropriate right. Learning, constructing, and/or inventing the appropriate rights necessary to satisfy particular exigent needs, and the even more exigent cases of domination and systematic humiliation, are how we come to understand what freedom and equality are. They are not Platonic norms or deontological principles, but socially constructed ideas that govern specific forms of practice subject to indefinite determination and re-determination as those practices develop and unfold.

The material a priori truth of the proposition of equaliberty is what grounds the theorem of the primacy of the political: because the rights of man and the rights of the citizen are one, then being a man and being a citizen are one. Even after the argument for the inclusion of the rights of man within the rights of the citizen, the further identification of the being of man with the being of the citizen can still sound blisteringly wrongheaded and exorbitant. Clearly, what makes the argument load bearing is the original identification of the rights of man with the rights of the citizen. Can the rights of the citizen intelligibly absorb the meaning of the human in this way?

5. The Rights Character of the Human: The Right to Have Rights

In The Origins of Totalitarianism, Arendt offers an analysis of the destruction of the human in the camps, an account of how persons can have the very fabric of what makes them human undone while yet they remain alive. Humans can have their very humanity, their dignity, taken from them because what this destructive process revealed is that the human is a status that requires the work of an entire complex social world to hold it in place. Remove the fundamental structures of that world, the social practices and forms of recognition constituting that world, deprive individuals of all rights, all entitlements, strip them of their names and identities, subject them to fierce routines, brutal labor, and near starvation, and what remains is nothing human, nothing you would recognize as human. In the camps these beings were called Musselmanner. We don’t yet have a general concept to cover the extreme of degradation and dehumanization; for these purposes I have proposed the term “devastation.”35 What Arendt documents in Origins is that human beings are the kind of beings who can suffer devastation.

After bearing witness to Arendt’s account of the destruction of the human, Balibar remarks that it is in light of this analysis that we must separate Arendt’s critique of human rights—including her emphatic institutional thesis that only the juridification of right can generate rights that have enforceable corresponding duties—from the denial of natural rights one finds in Burke, Bentham, and later legal positivism. She does indeed want to argue that if the destruction of civil rights entails the destruction of human rights, then in reality the latter rest on the former; that is her concession to the tradition of Burke and legal positivism. But hers is a “much more radical and philosophically opposite idea: outside the institution of community . . . there are no human beings. Humans do not exist as such, and thus they are not, strictly speaking.”36 If humans are destructible in their being human, then being human is a status and an achievement, not a theological, metaphysical, or natural fact about the world.

But this is not to surrender the claim of human rights; on the contrary, Arendt does not intend to relativize the idea of human rights, but rather “to make it indissociable and indiscernible from a construction of the human that is an internal, immanent effect of the historical invention of political institutions. We must say that strictly speaking human beings are their rights, or exist through them.”37 Elsewhere, Balibar states the thesis this way: “The recognition of social rights implies the emergence of a form of citizenship that makes their effective institution possible, and it is these rights that, as new fundamental rights, come to define the human.”38

If we are not to disown or repudiate being human as a value concept, as idea and ideal, then the idea of human rights is “indissociable and indiscernible from a construction of the human” under conditions in which politics has become the primary form of collective self-interpretation and collective self-determination. The converse of this thesis also holds: we come to recognize the primacy of politics, the identity of the rights of man and the rights of the citizen, once we recognize the contingency of the human status is, now, dependent on the possession and recognition of political and civil rights (where once it was dependent on just community membership—being one of us). What other forms of collective self-interpretation ignored, the reason why they de facto installed humans in Nowheresville—a Nowheresville that became and has become again horrifically literal with the emergence of superfluous beings, beings stateless and rightless—was the indisputable discovery that being human is destructible, and what follows from that discovery: being human is a status whose achievement is contingent; for some beings with a human form it may never be fully achieved, and even after it is achieved, the human remains subject to devastation.

Balibar parses this contingency and necessity of the rights character of the human in terms of Arendt’s doctrine of the right to have rights. Balibar’s deduction begins with the recognition of the contingency of right: “Rights are not properties or qualities that individuals possess on their own, but qualities that individuals confer on one another as soon as they institute a “common world” in which they can be considered responsible for their actions and opinions.”39 On Arendt’s accounting, this recognition is, again, not a positivist critique of the metaphysics of natural right but an inference from the radical experience of the rightlessness of stateless persons. The right to have rights is consequent upon perceiving the connection between rightlessness as a work of exclusion and rights as a product of mutual bestowal because, quite literally, “among the rights individuals are thus deprived of . . . [is] the fundamental political right to demand or claim their rights, the right to petition in the classical sense.”40 In the condition of statelessness and rightlessness, what becomes lost is the human power to claim as such, to make claims against others, to have one’s claiming be a recognizable and meaningful intervention into social space that can set other events in motion. But to lack this singular possibility is to lack all that the possession of rights involves and entails. Thus, “the reciprocal thesis that follows from this is that the first right is precisely the right to have rights, taken absolutely or in its indetermination . . . and not some particular statutory right.”41

If rights represent the condition for making meaningful and valid claims with the force of law behind them, then not all rights can be legal rights. The right to have rights, the right to make legal claims, is not itself a further legal claim, and hence not itself a statutory right; it is, precisely, its condition of possibility. There is a temptation here to suppose that the right to have rights is a moral right to have legal rights; but this cannot be correct because moral rights would here have precisely the Nowheresville structure of natural rights from which we are seeking to depart; a moral right to have legal and political rights is a way of being rightless. This is the opposite of Arendt’s intent. While I will want to say that ethical experience of a certain kind is integral to claiming rights, Balibar emphatically takes the right to have rights as an irreducible political moment, a moment of political decision in which we recognize our mutual dependence both on one another and on those whose refusal of equal rights first calls us to political claiming.42 Balibar titles the eruptive acts of politically claiming the right to claim rights insurrection, or, in an equivalent if quieter locution, civil disobedience. In acts of civil disobedience those without rights, or without equal rights, or without the precise rights they need, claim that as beings whose humanity is equivalent to their possession of right, they here and now claim those rights. The right to have rights is the political premise of their action, the presumption of the extensional equivalence between self-respect and the right to have rights. The right to have rights is the rights character of the human in action. The right to have rights is thus the political recognition we bestow on one another as members of a rights community, a community composed not of likeness—of having the same ethnicity or skin color or religion or first language—but solely of mutual rights; hence a community without community. Notice how here the concepts of ‘insurrection’ and ‘community without community’ that are integral to Balibar’s political theory are simply a conceptual working out of the right to have rights as the nisus of the rights character of the human.

The political surplus beyond positive rights in the right to have rights is anyway patent once we remind ourselves that positive law has always operated simultaneously as a force of domination and the condition of emancipation, that even if the rule of law means the effort to overcome the arbitrary domination of the ruled by some ruler, nonetheless the positivity of law enables the normalization and consolidation of privilege and hierarchy. A particular regime of rights can be a regime of exclusion, discrimination, or domination; for this reason, the claim of right must exceed every particular regime for the distribution of rights—the heartthrob that, beginning with Plato, has always propelled belief in natural rights. There must be some ethical excess beyond statute; for Balibar this is why the declaration of the rights of man and citizen exceeds whatever implementation is achieved through it: it proposes the proposition of equaliberty as a material a priori truth of the human. Political idea, promise, and project are the form of immanent transcendence necessary for finite creatures whose ethical existence is practically endowed not transcendentally guaranteed. Thus, even if it is true that the rights character of the human is the ethical realization of humanity, the process of realization is political, a political project in which humans undertake the political struggle to become (world) citizens.

6. The Rights Character of the Human: Equal Dignity

The buoyant utopian phrasing of that last statement is patently unearned, and contrary to Balibar’s tragic conception of the political. The political excess of the claim of right beyond every regime of rights is just the converse of the thesis that the authority of rights lives off the absence of right, the demand for rights the pained response to their even more brutalizing absence, the positive just the negation of a negation, hence the acknowledgement that the politics of right operates through a negative dialectics of right. Balibar likes to state this thesis as the malgré lui truth of Nietzsche’s theorem that all morality is a slave morality. What is helpful in this statement is its joining of ethical authority to what has been negated, denied, excluded, discriminated against, undone, that is, to the condition of rightless lives, superfluous lives, disposable lives, and, finally, to the reminder that each of these formations of hollowed out lives, lives that do not live, image or presage what Arendt’s presents as the scene of the destruction of human.

Nothing in this argument can hold without the acknowledgement of the destructibility of the human, and the consequences of that truth for understanding what it is to be human. Again, from the destructibility of the human it follows immediately that to be human is a status that is bestowed in accordance with local standards that are produced and reproduced through processes of socialization and social reproduction; that because being human is a status, it can come in increments and degrees—one can be less human than one’s fellows; and because becoming and achieving humanity is accomplished in accordance with a local schema of collective self-interpretation, then every appearance of the human is in reality an experiment in the meaning of being human—as a member of some enduring tribe, as a member of a people who are themselves parts of a wider nature, as creatures of a creator God, as citizens of some state. On Balibar’s interpretation, the particular ethical thrust of the proposition of equaliberty is that it is meant as an historical project in which each human would finally achieve an equal standing or status with every other, that no human would be counted as worth less than any other human, that no differences in sex, gender, race, intellect, et. al. would be grounds for lesser treatment or lesser standing as human. This idea of ‘worth’ more or less, of having a higher or lower status in a way that matters to one’s humanity is the ethical stakes of the right to have rights. In a way that Balibar is fully aware of, and repeats sufficiently often but without theoretical emphasis, we have come to call the idea of the equal intrinsic worth of every human their dignity: “[Throughout the twentieth century] ‘multitudes’—‘ordinary’ citizens, classes, ‘mass’ parties—have come together to force the state to recognize their dignity, and to introduce norms of civility into public service or the public sphere.”43

Because he rightly does not want to ground the possession of rights in an anterior moral principle, Balibar is cautious in the extreme in his employment of ethical and moral vocabulary; his claim that the truth of the proposition of equaliberty is material yet absolute is the perfect exemplar of his normative strategy. Nonetheless, if the human can be destroyed, and that matters, then something of value—either intrinsically or conditionally—has been destroyed. Although without emphasis, Balibar quietly accepts the idea that when a human is directly excluded from the human community, no matter how, they suffer a “wrong”, a moral injury.44 The most natural way to express that thought is to say they have suffered a violation to their dignity.

Here is my broad hypothesis: First, if the idea of dignity is the placeholder for the idea of the intrinsic worth of individuals, then when a human is destroyed then it is their dignity that is destroyed; that when a human is excluded, discriminated against, or dominated by another there occurs a violation of their dignity. When we perceive another treated with disrespect, we experience their intrinsic worth as a human being violated, their dignity being violated; and hence at the same time the worth of the human as such depredated. The destruction or violation of dignity is the ethically charged negative moment that is directly capable of being experienced. At the discursive level this is equivalent to the thesis, which has been repeated again and again in the course of moral history, that there are no moral grounds justifying a given range of discriminatory treatment. However fiercely abided by and brutally enforced, the vicious insistence the some others are of lesser moral worth and lesser human value is revealed as groundless, empty, and hollow; and, again, we experience the rational groundless of the claim of difference through an experience of moral injury—an experience of humiliation, degradation, violation, or devastation.

Second, since the human is destructible, then we know that dignity is nothing metaphysical or natural; indeed, we know that human dignity (now) is a status of being counted as being of equal worth with all other humans. If dignity is a status that is destructible, then, for us, it will follow that the possession of equal rights is constitutive of human dignity, that, here and now, having equals rights is the necessary condition for possibility of achieving dignity in the modern world. If the possession of dignity expresses the intrinsic value of the human, and the possession of equal rights constitutes the possibility of achieving dignity, then the possession of equal rights is the constitutive condition for being human. Q.E.D.

We know that ‘full’ participation in the life of the community means different things in different cultures, and in the light of what Balibar calls “anthropological differences” (differences in sex, gender, race, language, lineage, and the like), which are differences that do not carry in themselves any transparent indicator of rank, of higher or lower, but nonetheless have been used—almost everywhere and almost always—to create hierarchies of rank, worth, privilege, and status, that the idea of full participation in community has historically not entailed anything like equal participation. The Declaration was, again, intended to signal a new, radical idea of equal participation, even as its announcement comfortably abided in the very inequalities its words claimed as at an end. But the problem is even deeper than this; if real differences are ignored, then equal rights, the same for everyone, will brush past what is needful—maternity leave, child care facilities, freedom of conscience, etc. This is part of the aporia of rights: equal rights should provide equal dignity, but they cannot do so if equal rights means precisely the same rights for everyone independent of significant differences. To connect equal rights with equal dignity can help us begin to think about what the possession of equal rights involves, if not the possession of exactly the same rights for everyone yet sufficient for full and equal participation in social life.

I will take as evident that the primary social function of the concept of dignity is to signify the inherent, non-derivative worth of each individual human life. By ‘non-derivative’ I mean only that the worth a particular life is not derived from or dependent on the roles she plays or the social functions she serves in a particular community such that were she to become functionally useless she would lose her human worth. Because dignity signifies the intrinsic worth of a human life, it has routinely been thought to entail a form of metaphysical individualism; but even the briefest reminder of the relation between the sociality of rights and their function as the ground of claiming obviates that thesis. The question that needs interrogating is: how can dignity play the role of protecting and ensuring the intrinsic worth of each individual life?            

Dignity has two distinct aspects, aspects that seem to correlate precisely with the two sides of the proposition of equaliberty; so convergent are the two aspects of dignity with the two sides of equaliberty, they might be taken as two versions of an underlying idea about the equal worth of every human life that requires both for its full expression. We can denominate the two aspects of dignity as the non-comparative and comparative aspects respectively.45 On the one hand, taking up the account of the mechanisms for the destruction of the human presented by Arendt, we can say that an individual’s dignity is violated when she is treated in a way not fitting for a human being: when she is treated as a beast or thing, when she is denied proper control over her own body, when she is excluded from the surrounding community.46 In each of these cases, we recognize different mechanisms for denying full participation in the life of the community. We may also say about each of these typical forms of infringement of dignity that they deny an individual basic liberties. On the other hand, we also take it as a violation of dignity when an individual is, comparatively, denied equal treatment with others, when women are offered less pay for the same work, or individuals prohibited from voting because of race or class, or because of the color of their skin treated differently by the police. Such forms of unequal treatment are profound sources of humiliation and degradation, that is, such different treatments are not merely different, but are experienced as moral injuries to the individual in herself because lying behind them is the implication that she is thereby of less worth than her fellow citizens.

Corresponding to the proposition of equaliberty, we should now be able to propound a proposition of equal dignity: Whenever there is violation of the inherent dignity of the individual, there will be also a failure of interpersonal, comparative dignity, a failure to affirm their being of equal status; and wherever there is a failure to affirm an individual as possessing an equal status with surrounding others, then there is an injury to her inherent dignity, some way in which she is not being treated as fully human in herself. While I do take the proposition of equal dignity to be a material a priori truth, we do have the beginnings of an explanation of why the two sides of equal dignity are materially joined in this way, namely, that being human just is a constructed status that comes in increments and degrees, and is further capable of destruction.

The difficult thought underpinning the proposition of equal dignity is that to be human is to be (fully) recognized as (an equal) human, where the necessary condition of being recognized as human in the modern world is being recognized as possessing equal rights. The difficulty in this thought is patent: even if it is true, as Balibar argues time and again, because no one can be given rights by another, and because rights are equivalent to capacities and entitlements to make claims, then having rights involves claiming those rights, that only in claiming them can they be actual, it nonetheless remains the case that we are forever dependent on our fellow citizens or the institutions of the state to recognize those claims; there is always an absolute and irrevocable dependence on all others to recognize whatever rights are claimed. And all too obviously, the intransigence or brutality of the other can decimate any rights claim. It is the radicality of our dependence on others that exposes each human to the multiple forms of actual and symbolic violence that effectively humiliate, degrade, violate, and destroy. The possibility of dignity is simultaneously the possibility of the violation and destruction of dignity. I take the sense of exposure intrinsic to the experience of having dignity to be difficult, even threatening, indeed it is often experienced as so threatening that great efforts to deny dependence are put in place.

What is at issue here is “the admission of negativity into the field of political practices, in opposition to the normativity and normality toward which both juridical positivism and the dominant culture tend.”47 The destructibility of the human—“Humans do not exist as such”—and the moral primacy of the negative over the positive mutually entail one another. Often the profoundest and deepest stakes in the preservation of hierarchy and privilege do not concern hierarchy and privilege at all: their furthest reach and deepest concern are the radicality and insuperability of dependence, where the felt fact of dependence on another demonstrates a level of exposure and vulnerability that can be experienced as decimating to one’s very self-image as human. That this is acted out through the subsumption and expulsion of an other who can be symbolically represented as a protuberance of nature into the human—women, or the individual of color as a splinter of nature in the flesh of culture—, as a being not itself fully human sublates both the other and nature at the same time, keeping the human ‘pure’. Purity and some idea of ‘independence’ typically hang together in ways that make purification an incessant work that is ready to topple over into violent repression and/or expulsion.48

The experience of violation, repression, or expulsion, the force of the negative, must depend on some indeterminate but determinable value ascription: some sense that something of (intrinsic) value is being injured. Relationality in the human is about the meaning of the human, its existing as a status-conferring set of forms of practice and interaction.49 The notion of “physical dignity,”50 for example, by which I understand Balibar to mean some notion of actively achieved bodily integrity, some determinate ways in which an individual can determine her body as hers in relation to all others in her physical interactions with them, is not itself a priori determinate: our bodies touch, press, intrude, bump, and get entangled in all sorts of ways all the time with significantly different meanings and registers in different cultures. But to agree that what counts as physical dignity is not an a priori, transcultural, or natural norm does not entail that it is arbitrary. The history of violation in relation to the progressive history of universalism—the work of declaring rights—generates the possibility of determinate responses. For example, although it was breathtakingly late in coming—in France in 1990, in England in 1992, in Germany 1997—eventually each European nation dropped the marital exemption clause from laws prohibiting rape.51 Does anyone really want to argue that prohibiting marital rape is merely customary, relative, a wholly conventional matter? That there is no logic of moral progress involved in enabling individuals to control which others are allowed to touch and penetrate their bodies?

At least in terms of public morality, there is nothing more to equal dignity than equal rights, and therefore nothing more to the possession of dignity than the possession of equal rights.52 What I am calling the rights character of the human is, arguably, the essential and necessary ethical subtext to contemporary ethical and political struggles. Denying that dignity is a metaphysical essence (although the temptation to so believe is as deep as the repudiation of dependence generally), together with the widely shared yet wholly indeterminate moral intuition that every being with a human form should be taken as possessing human dignity, yields an experiential logic of dignity: dignity as the intrinsic value of the human exists only through its practical realization in each human; this is why any violation of the dignity of any individual human can be, is often and should be felt as a violation of the human status itself. Connecting the experience of the violation of any individual’s dignity with the depredation of the human status as such is the experience of our undergoing an anthropological revolution through which the human comes to be ethically and normatively experienced as constituted through the possession of rights. We only possess the dignity of humanity through realizing the dignity of each individual human through each human being recognized as having basic rights. The destructibility and contingency of the human status is the source of its ethical necessity: either dignity matters just here and now with this one vulnerable body or the dignity of the human suffers a practical delegitimation.

The experience of the violation of dignity is the orienting ethical experience, the force of the negative necessary for Balibarian insurrectional politics, the politics of the citizen. That is, only as the anthropological revolution borne of the advance in the recognition of the rights character of the human, the political actuality that has increasingly bound human rights and human dignity into the ethical depiction of humanity could the negative experience of the violation of dignity and the absence of rights become ethically sufficient for the contemporary insurrectional politics of the right to have rights. This thesis requires one severe qualification: ethical sufficiency falters when it proves motivationally insufficient. Thus we had better say, the ethical logic of dignity violation has sometimes proved ethically sufficient, but that sufficiency has and will continue to come under fierce denial. That said, I do want to argue that in implicit and explicit ways, equal dignity, more than the inaugurating impulse of equaliberty, has been the ethical impulse and presupposition making formations of contemporary political radicalism possible. Hence my thesis that equaliberty demands equal dignity as its further articulation.

The fragility of human dignity, its existing through recurrent efforts of mutually endowing one another with it, each human deserving the protections and entitlements of basic rights, underlines both its contingency and necessity. Again, we experience that necessity through the experience of violations of dignity that manifest the absence of fundamental rights; Balibar construes this experience of necessity as a version of the “intensive universality.” However, if there is nothing more to dignity than equal rights, then for us here and now the meaning of being human can be nothing other than having or struggling for, for ourselves and for all others, the rights of the citizen: “the human subject is able concretely to meet the essence of its ‘humanity’ only within a civic, or political, horizon in the broad sense of the term, that of a ‘universal citizenship.’”53

*

J.M. Bernstein is Distinguished Professor of Philosophy at the New School for Social Research.

*


1. Étienne Balibar, “Citizen Subject,” trans. James B. Swenson, Jr. in Who Comes after the Subject?, ed. Eduardo Cadava, Peter Connor, and Jean-Luc Nancy (New York: Routledge, 1991), pp. 38–9.

2. Joel Feinberg, “The Nature and Value of Rights,” The Journal of Value Inquiry (4/4: Winter 1970), p. 243.

3. David Hume, Treatise of Human Nature, 3.2.2. P8, SB 495.

4. Étienne Balibar, Citizenship, trans. Thomas Scott-Railton (Cambridge: Polity Press, 2015), p. 50.

5. Miriam-Webster: http://www.merriam-webster.com/dictionary/legal%20right.

6. Feinberg, “The Nature and Value of Rights,” p. 250.

7. Feinberg, “The Nature and Value of Rights,” p. 252.

8. Feinberg, “The Nature and Value of Rights,” p. 251.

9. Feinberg, “The Nature and Value of Rights,” p. 253; in Feinberg this statement is italicized.

10. When we come to it, Arendt’s conception of the right to have rights can be considered the elaboration of this practical dependency of rights on the claiming they found.

11. Feinberg, “The Nature and Value of Rights,” p. 252; italics added.

12. Hannah Arendt, The Origins of Totalitarianism (New York: Meridian Books, 1958), p. 275.

13. Arendt, The Origins of Totalitarianism, p. 269.

14. Arendt, The Origins of Totalitarianism, p. 269.

15. Arendt, The Origins of Totalitarianism, p. 269.

16. Arendt, The Origins of Totalitarianism, p. 291; italics added.

17. Arendt, The Origins of Totalitarianism, p. 291.

18. Feinberg, “The Nature and Value of Human Rights,” p. 253.

19. Arendt, The Origins of Totalitarianism, p. 295–6.

20. Arendt, The Origins of Totalitarianism, p. 457. Rather than following Arendt on the idea of superfluousness, Balibar borrows from Bertand Ogilvie the idea of “making of disposable man.” See Étienne Balibar, Politics and the Other Scene, trans. Christine Jones, James Swenson, and Chris Turner (New York: Verso, 2002), pp. 23–6.

21. Hannah Arendt, On Revolution (Harmondsworth: Penguin Books, 1973), p. 30. For a further elaboration, see Étienne Balibar, Equaliberty, trans. James Ingram (Burham: Duke University Press, 2014), pp. 173ff.

22. Arendt, The Origins of Totalitarianism, p. 301.

23. By “groundless” I do not mean without reason: there were massive social transformations occurring in the eighteenth century that gave meaning, substance, and urgency to the French Revolution. But it is the Revolution itself, including the Declaration of the Rights of Man and the Citizen that gives these reasons that particular modern formation.

24. Étienne Balibar, Equalibertity, p. 42.

25. Balibar, Equaliberty, p. 42; italics added.

26. Ayten Gündoğdu, Rightlessness in an Age of Rights: Hannah Arendt and the Contemporary Struggles of Migrants (New York: Oxford University Press, 2015), p. 172.

27. Karl Marx, “On the Jewish Question,” in Karl Marx, Early Writings, trans. Gregor Benton (Harmondsworth: Penguin 1975), p. 229.

28. Balibar, Equaliberty, p. 44; italics added.

29. Balibar, Equaliberty, p. 44.

30. For a detailing of this transformation in the European understanding of the rule of law—which emerged in the effort to abolish judicial and penal torture—see chap 1 of my Torture and Dignity: An Essay on Moral Injury (Chicago: University of Chicago Press, 2015).

31. Balibar, Equaliberty, p. 44; italics added.

32. Balibar, Equaliberty, p. 45.

33. Balibar, Equaliberty, p.46.

34. Balibar, Equaliberty, p. 48.

35. See chap. 3 of my Torture and Dignity.

36. Balibar, Equaliberty, pp. 172–3.

37. Balibar, Equaliberty, p. 173.

38. Balibar, Equaliberty, p. 117.

39. Balibar, Equaliberty, p. 171.

40. Balibar, Equaliberty, p. 171.

41. Balibar, Equaliberty, p. 171.

42. “The ‘right to have rights’ clearly is not (or not primarily) a moral notion; it is a political one. It describes a process which started with resistance and ends in the actual exercise of a ‘constituent power’ . . . It should therefore be called a right to politics, in the broad sense, meaning that nobody can be emancipated from the outside or from above, but only by his or her own (collective) activity” (Balibar, Politics and the Other Scene, p. 165).

43. Balibar, Politics of the Other Scene, p. 33.

44. The notion of “wrong” is Rancière’s borrowing from Lyotard’s conception of the differend. The concept of moral injury is mine.

45. In sketching out the claim of equal dignity in this way, I am following the lead of Allen Buchanan, The Heart of Human Rights (New York: Oxford University Press, 2013), pp. 98–106.

46. See Avishai Margalit, The Decent Society, trans. Naomi Goldblum (Cambridge: Harvard University Press, 1996).

47. Étienne Balibar, We, The People of Europe? Reflections on Transnational Citizenship, trans. James Swenson (Princeton: Princeton University Press, 2004), p. 75; italics in original removed.

48. It should be noted, and conceded, that historically religion was (has been, remains) the massive institutional effort to work through and hold in place the distinct poles of independence and dependence in human living. One part of the deep threat of secular existence is that, under certain conditions, it can make evident and palpable the dependence structures of the human without any buffering; hence, as Balibar was one of the first to note, albeit tracking a slightly different logic, universalist humanism carries sexism and racism as its lining: they attach themselves to universalism as its inevitable shadow—“contraries affecting one another from the inside” (Étienne Balibar, “Racism as Universalism,” in his Masses, Classes, Ideas: Studies on Politics before and after Marx, trans. James Swenson [New York: Routledge, 1994] p. 199). To come to accept secular existence requires the acceptance of one’s radical dependence on one’s human others without any final support or protection—the immense ethical burden that religion so successfully worked through—which makes the work of exclusion and denial, resurgent and repurposed forms of sexism and racism, a recurrent temptation of modern humanism.

49. Bernstein, Torture And Dignity, chap. 4.

50. Étienne Balibar, Violence and Civility: On the Limits of Political Philosophy, trans. G.M. Goshgarian (New York: Columbia University Press, 2015), p. 52.

51. Joanna Bourke, Rape: Sex, Violence, History (California: Shoemaker & Hoard, 2007), p. 327.

52. For a thoughtful exposition of this claim, see James W. Nickel, Making Sense of Human Rights, Second Edition (Oxford: Blackwell Publishing, 2007), pp. 61-69; and, with a surprising acknowledgement of the primacy of negative, Jürgen Habermas, “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” Metaphilosophy 41/4 (July 2010), pp. 464–80.

53. Étienne Balibar, “Subjection and Subjectivation,” in Supposing the Subject, ed. Joan Copjec (New York: Verso, 1994), p. 7.