The self-owning “human”

I said earlier that the Universal Declaration does not define “the hu­man” in “human rights” other than (tautologically) as the subject of hu­man rights that were once theorized as natural rights.

Those who formulate and implement Western policies often as­sume that there is a natural fit between the legal culture of “human rights” and the wider culture of “Western norms.” This includes particu­lar attitudes to the human body and to pain. In Chapter 3 I mentioned some post-Enlightenment views about measures of suffering that allowed imprisonment to be represented as humane as opposed to flogging. Here I want to pursue a slightly different point: attitudes to the body indicated by such moral preferences—why, for example, confinement, even solitary confinement, is an acceptable form of punishment while any punitive practice that directly impinges on the body is not.

High value is clearly given to the integrity of the body—which ex­plains in part the particular horror in Euro-America at the widespread cus­tom of female genital mutilation in some African regions.³⁰1 say “in part” because there is no comparable sense of horror at the custom of male gen­ital mutilation. The latter is, of course, a quite familiar practice in the

30. It may be noted that while activists in this field often give the impression in the media that female circumcision is especially associated with Islamic soci­eties, the overwhelming majority of Muslims in the world do not practice it, and large numbers (perhaps the majority) of those who do are non-Muslims.

Redeeming the “Human“ Through Human Rights 149 Judeo-Christian West and the former is not. But there is more to it than that. There is the belief that female circumcision, unlike the male variety, interferes with the sexual pleasure of the woman.

In an impressive series of publications Martha Nussbaum has re­opened the old question of human nature through the Aristotelian idea of human capabilities that she recognizes can also be linked to the concept of human rights. Her basic idea is that a list can be compiled of central hu­man functional capabilities (for example, “Being able to use the senses, to imagine, think, and reason—and do these things in a ‘truly human’ way, a way informed and cultivated by an adequate education, including, but by no means limited to, literacy and basic mathematical and scientific train­ing. Being able to use imagination and thought in connection with experi­encing and producing self-expressive works and events of ones own choice, religious, literary, musical, and so forth”).³³ The universal character of these

31. Martha Nussbaum cites “opportunities for sexual satisfaction” as an as­pect of “Bodily Integrity,” listed as one of the “central human functional capabili­ties” in her influential Women and Human Development: The Capabilities Ap­proach, Cambridge: Cambridge University Press, 2000, p. 78. The assumption that “opportunities for sexual satisfaction' can be clearly identified and legally pro­tected is intriguing,

32. This is not quite how human rights advocates put it. Thus in “Female Genital Mutilation—A Human Information Pack (1998)” Amnesty International states: “The Universal Declaration of Human Rights and a host of international standards that flow from it, underscore the obligation of states to respect and en­sure respect for basic, human rights, such as the right to physical and mental se­curity, freedom from discrimination on the basis of gender, and the right to health.

33. Nussbaum, pp. 78-79.

capabilities, according to Nussbaum, can be found in the Rawlsian idea of “overlapping consensus,” which I have discussed briefly in connection with Taylors use of it in the Introduction. “By overlapping consensus’ I mean what John Rawls means,” she writes, “that people may sign on to this con­ception, without accepting any particular metaphysical view of the world, any particular comprehensive or ethical view, or even any particular view of the person or of human nature.”³⁴ And yet, Nussbaums idea of universal capabilities does express the emerging idea of “the human” in it. A subject possessing bodily integrity, able freely to express himself or herself, and en­titled to choose for herself or himself what to believe and how to behave is not simply a “freestanding moral core of a political conception” to which people sign on. It is itself a thick account of what being human is—and one that underpins human rights.

As a view of human nature it follows that where these capabilities are not being exercised due to obstacles, their removal will allow humans ei­ther to exercise them spontaneously (and to rank them), or to freely choose not to do so. However, humans will have to be taught what good capabili­ties are and how to exercise them, and to be prevented from exercising vices that harm others. After all, humans are also capable of cruelty, greed, arrogance, treachery—indeed there is scarcely anything they are wot capa­ble of.

34. Ibid., p.76.

35. Ibid., p. 78.

There are other well-known problems with this view that may be noted in passing. First, the ability to choose freely whether or not to exer­cise a capability sometimes encounters a contradiction: because certain choices are irrevocable, they themselves may constitute insurmountable obstacles to further choices (as an iliiterate one cannot make an informed choice regarding literacy unless one has experienced it, but having become literate one cannot then change one’s mind). Second, it is a notorious fact that human capabilities—and the conditions in which they are realized— are subject to conflicting interpretations. When “human capabilities” are legally enshrined the business of interpreting them is the privilege of judi­cial authorities and technical experts, and politics proper is excluded. In brief, it becomes a matter of domination rather than negotiation.

Who—in a world of nation-states—has the authority to interpret and the power to promote the conditions that facilitate human rights, and “the human” they sustain? At a meeting two years ago the U.S. Trade Rep­resentative negotiating China’s entry into the World Trade Organization casually observed in response to a journalist’s question that “democratic political reform and greater adherence to human rights are certainly en­couraged by an opening to the West and Western norms."³⁶ A direct connec­tion is thus made between a free trade, human rights, and “Western norms.” What might these norms be when viewed as styles of life relating to specific kinds of subjectivity?

In a recent article on American global power, Ignacio Rarhonet, chief editor of Le Monde Diplomatique, recounts the scale of U.S. military, diplo­matic, economic, and technological hegemony, and then goes on to ask why—given the liberal democratic ideology of equality and autonomy— there isn’t more criticism of it? I quote his elegant answer in full:

“No doubt because US hegemony also embraces culture and ideol­ogy. It has long been the home of many fine, respected intellectuals and creative artists, rightly admired by everybody. Its mastery extends to the symbolic level, lending it what Max Weber calls charismatic domination. The US has taken control of vocabulary, concepts and meaning in many fields. We have to formulate the problems it invents in the words it offers. It provides the codes to decipher enigmas it created. It has set up many re­search centers and think-tanks just for this, employing thousands of ana­lysts and experts. These eminent bodies produce reports on legal, social

36. Justin Brown, “After China Fact, a Diminished Role for Human Rights?” Christian Science Monitor, November 19, 1999, p. 4 (emphasis added). and economic issues with a perspective that supports the ideal of the free market, the world of business and the global economy. Their lavishly funded work attracts media attention and is broadcast the world over....

I do not present this statement as decisive evidence of what is going on in the world. Its interest lies in the explanation it offers of how, by hav­ing “to formulate the problems [America] invents in the words [America] offers,” global society adapts to a stronger, more modern language—in which the equal right to pleasure can be articulated as America’s project of secular redemption.³⁸ Ramonet’s recognition that the desire to do as one

37. Ignacio Ramonet, “The Control of Pleasure,” Le Monde Diplomatique, May 2000.1 have collapsed the original paragraphing and supplied the italics.

38. But as the post-9/11 “war on terrorism” demonstrates, the United States does not simply seduce its opponents with pleasure. It is prepared to use devastat­ing force. The war against Afghanistan was presented by the American media not only as the pursuit of terrorists but also as the liberation of Afghan women. See, in

Redeeming the "Human“ Through Human Rights 153 pleases (to do what pleases one) evoked by marketing discourse is familiar enough—the normalization of consuming desire is a banal feature of con­temporary capitalist society often noted by both supporters and critics. Fa­miliar, too, is his suggestion that the human being assumed in modern, market culture is an autonomous individual who seeks pleasure and avoids pain. For just as electoral democracy postulates the equivalence of citizens (each of whom counts as one and only one) within any given party, so market strategies assume the equivalence of buyers (each of whom counts as one) within any given niche. In both cases the choosing subject is a sta­tistical object to be targeted, added to or separated from other individuals. It is this that explains the U.S. Trade Representatives claim that greater adherence to human rights is encouraged by the acquisition of “Western (that is, American) norms” in place of older ones, just as the opening up of free trade with the West and the blossoming of a market society will rein­force human rights.

My thought is not that this claim is arrogant, or otherwise morally tainted, but that it may be true.^{[98] [99] “Cultures” are indeed fragmented and interdependent, as critics never tire of reminding us. But cultures are also unequally displaced practices. Whether cultural displacement is a means of ensuring political domination or merely its effect, whether it is a necessary stage in the growth of universal humanity or an instance of cultural takeover, is not the point here. What I want to stress is that cultures may}

be conceived not only in visual terms (‘‘clearly bounded,” “interlaced,” “fragmented,” and so forth) but also in terms of the temporalities of power by which—rightly or wrongly—practices constituting particular forms of life are displaced,, outlawed, and penalized, and by which conditions are created for the cultivation of different kinds of human.^[100] Resentment on the part of the weak about being treated cruelly by the powerful is gener­ally a spontaneous human reaction, but learning to see certain practices as insupportable that were not previously viewed as such, and organizing so­cial opposition to them, are steps in the reconstruction of the human.

In an interdependent modern world, “traditional cultures” do not spontaneously grow or develop into “modern cultures.” People are pushed, seduced, coerced, or persuaded into trying to change themselves into something else, something that allows them to be redeemed. It may not be possible to stop this process; it may be a wonderful thing that the process takes place as it does because people really are redeemed through it. I do not argue for or against such directed changes here. I merely em­phasize that they are not possible without the exercise of political power that often presents itself as a force for redeeming “humanity” from “tradi­tional cultures.” Or—and this comes down in the end to the same thing—as the force for reclaiming rights that belong inalienably to man in a state of nature.

In the seventeenth century, so John Pocock proposed, the self was beginning to be seen as contingent. The anxiety that that provoked was the context in which Lockes political appeal to natural rights acquired added plausibility.^[101] Legal discourses for defining the person gain added weight.

In an essay on flexible capitalism at the close of the twentieth century, Richard Sennett has argued that the highly unstable conditions of work in America are making a coherent narrative of the self—and therefore the re­alization of “character”—increasingly difficult.⁴² It is possible (although this is not Sennett’s argument) that this new stage in the growing anxiety about the private self is not unconnected to the increasing insistence on the redemptive quality of human rights at a global level. When the secularist ideological order separating public politics from private belief is seen to crumble, the new terrain is occupied by a discourse of human rights that can be taken as either sacred or profane. Canovans appeal to myth to de­fend the liberal project of human rights (see Chapter 1), King’s appeal to universal brotherhood and human dignity under God, the U.S. govern­ment’s global project to free both belief and property, and Nussbaum’s cel­ebration of the capabilities of the sovereign human are all variations of this discourse.

Including and excluding subjects as “humans”

I look finally a little at how boundaries are established between the human and the nonhuman. This question has emerged challengingly in re­cent attempts to deal theoretically with the problem of animal suffering.

That animals have an interest in living free from human cruelty has long been recognized. But some people have gone further and asked: Why don’t nonhuman animals have, like humans, all the rights of personhood? It is argued that the assumption that animals cannot have rights because they literally cannot claim their rights in a court of law is merely an arbi­trary limitation in the meaning of “right”—to active right. What is re­quired, it is said, is a radical reworking of attitudes and behaviors in which our modern concept of “the human” as the ultimately privileged being is embedded. For attempts to draw a radical separation between “human” and “animal” have been a continuous feature of modern thinking and practice. The criteria for constituting “the human” in contradistinction to “the animal” have been endlessly debated: Do animals possess real con­sciousness? Do they have language in the proper sense? Are they able to change their culture as humans are? Ultimately the aim behind this ques­tioning seems to be to distinguish the subject of rights from the objects of

42. Richard Sennett, "the Corrosion of Character: The Personal Consequences ofWork in the New Capitalism, New York: Norton, 1998. rights, the owner from the property owned. Although for a long time now the law has been concerned to penalize “unjustifiable” pain and distress to animals, there has been a strong reluctance to transform the way animals live in human company—except perhaps in allowing them to become sub­jects of biological and psychological experiments that aim at “knowledge for human benefit.”

A new book by an animal rights activist and lawyer now argues that le­gal personhood—and consequendy rights—be recognized for chimpanzees and bonobos who have been cruelly mistreated in Africa and in Euro-America. Should all life have rights? The prospect of an epidemic of rights appears daunting. But the book insists that “there are about i million species of ani­mals [and that] many of them, say, beedes and ants, should never have these rights.”⁴³ They are too different from us. However, chimpanzees and bono­bos are like humans. We are told that their genes and brain structures are similar to ours, that they are conscious and self-conscious, that they under­stand relations of cause and effect, make tools, live in complex and fluid societies, that they deceive and empathize, use numbers, communicate with symbols, treat illnesses with medicinal plants. That is why “an in­creasing number of scientists demand they be tucked into the genus Homo with us,”⁴⁴ writes the author Steven M. Wise.

Wise wants the partition between humans and nonhumans to be flexible, but he cannot do without it. He does not employ the notion of overlapping and intrinsically differentiated networks because human rights law seems to require mutually exclusive categories (human/nonhuman, guilty/not guilty, legal person/nonperson). The assumption is that to qual­ify for rights “they” must be sufficiently like “us”—and conversely, that if they are too unlike us, they cannot be redeemed. Wise insists that the state­ment “Animals can’t have human rights” seems like a scientific truth about the world but it is simply a formula for privileging humans over animals (or better, over “mere life”). However, Wise still needs to retain the idea that some nonhumans cannot claim to be legal persons.⁴⁵

What counts as “being like us” (that is, who truly belongs in our privileged universe) is certainly a difficult question. But in modern, secu-

43. S. M. Wise, Rattling the Cage: Toward Legal Rights for Animals, Cam­bridge, Mass.: Perseus Books, 2000, p. 5.

44. Ibid., p. 6.

45. Snakes and frogs and beedes should never have rights. Transformed into abeede, Gregor Samsa knew he had no ri^tt even to human compassion.

Redeeming the "Human” Through Human Rights 157 lar society it is regarded as a political and moral question and not a scien­tific or theological one. Even if it were the case that scientists and theolo­gians never argued with one another about the significance of relevant evi­dence, the question for liberal democracies is what follows politically or morally from “the human,” and about this there is no final appeal in a sec­ular society to authorized experts. And yet when it is endowed with legal force, the abstract concept of “humanity” allows authorities to decide who, by virtue of being not human, can legitimately be treated “inhumanly” by the state and its citizens. Precisely because it is an inclusive category, “the human” belongs to an exclusive universe that does »or contain mere life.

If historians of social thought are correct about the increasing salience of a language of “normality” in modern society,⁴⁶ perhaps we should look not to scientific rZ^orz« of “human nature,” but instead to the political and economic practices by which attempts are made to regulate “de­sirable conduct” in the world, both within the nation-state and beyond it, through the application of cost-benefit analysis. As human rights activists point out, it is not only state cruelty (and the cruelty of warring military factions in civil war) that they hold legally accountable; the customs of or­dinary people that are intolerable are also objects of concern. This requires us to analyze human rights law as a mode of converting and regulating people, making them at once freer and more governable in this world. The employment of cost-benefit analysis derived from neoliberal economics has the advantage of defining “freedom” quantitatively (“objectively”) for the consuming subject in terms of behavior. It also provides a pragmatic principle for deciding when and to what extent the government of a population requires the restriction or abrogation of particular individual “freedoms.” The historical convergence between human rights and neo­liberalism may not be purely accidental. For as Tuck has pointed out, while self-ownership and self-preservation are regarded as basic to a natu­ral morality they are also a justification for realpolitik.

But while some historical developments may support human rights, others may undermine them. At any rate, we may get a further destabiliza­tion of the concept of the rights-bearing human subject, now not simply through the law that distinguishes “the human” from mere animal life, but as the result of interventions by genetic engineering and—more radi­cally—by neuroscience. The reason for saying this is not simply that homi-

46. Ian Hacking, The Taming of Chance, Cambridge: Cambridge University Press, 1990.

noids and genetically engineered humans—including clones—are this product of human making (and are therefore “cultural” rather than “natu­ral”). It is that we are now required to consider seriously what the human capabilities of machines are, and what genetic engineering does to the idea of responsibility. Because the modern concept of the natural is now being reconfigured, we may now have to rethink the supernatural

More is involved here, however, than mere thought. Far-reaching po­litical and moral consequences follow from the fact that The Declaration of Human Rights provides a guarantee to entrepreneurial property through­out the world. (See Article 17.) Corporations that have invested heavily in research and construction will have property rights in these hominoids, just as biotechnology firms will have rights in the genetic inheritance of “natural” humans. Because property rights are freely disposable in the market, hominoids (intelligent, emotional machines) will be bought and sold, and the superior genes of humans with privileged capabilities will be acquired and marketed by biocorporations.^[102] (Such rights of disposition are, by the way, accompanied by the “commercial freedom of speech,” which, so it is forcefully argued, is also guaranteed by human rights.^[103]) The old juridically defined self, the self-owning subject, now becomes problema- tized. Who is to be counted as human, what the capabilities are of the hu­man subject, will be decided through the global market in which property rights and cost-benefit analysis are central. Human rights become floating signifiers that can be attached to or detached from various subjects and classes constituted by the market principle and designated by the most powerfill nation-states.