The sovereign individual and the sovereign state

₄ This leads to another point about the story of human rights that has to do not with the evolution of legal theories and the political power of

. 13. Tuck, p. 150.

14. Richard Tuck, The Rights ofWar and Peace: PoliticalThought and the Inter­national Orderfrom Grotius to Kant, Oxford: Oxford University Press, 1999, p. 14.

Redeeming the “Human“ Through Human Rights 135 those in a position to deploy them, but with the use of legal language itself. Thus it has been argued that because the massive growth of public debt in the seventeenth century increased the precariousness and volatility of prop­erty—especially the newer financial forms of property, distinct from the older, landed, “real” property—this development contributed to an inten­sified sense of the self’s contingency among the middle and upper classes. If this argument is correct, then Lockes famous emphasis on natural right as a limit to arbitrary government may also be closely linked to the desire to stabilize the contingent character of the self through a legal concept of the person.¹⁵ The essence of the human comes to be circumscribed by le­gal discourse: The human being is a sovereign, self-owning agent—essen­tially suspicious of others—and not merely a subject conscious of his or her own identity. It is on this basis that the secularist principle of the right to freedom of belief and expression was crafted.

Whatever its early history may be, today only a strong, secular state can enforce natural right and its successor as the law—whether that relates to the treatment of persons or of property. One does not have to subscribe to an Austinian definition of law in order to recognize that it is a matter of critical importance whether or not a state concedes that it has violated rights and restores them, or restores rights that have been violated within its own domain (or coerces a weaker state to the same end), or it legally en­dorses rights vindicated by other civil powers (trade unions, women’s movements, ethnic groups, and so forth).

15. J. G. A. Pocock, “Modernity and Anti-Modernity,” in Patterns and Modernity, vol. 1: The West, ed. S. N. Eisenstadt, London: Francis Pinter, 1987. These comments on Locke’s invocation of natural rights should not be taken as a claim that it was really an ideological justification for early capitalism. For Locke, a faithful Christian, natural rights were at the center of a theological worldview (see Richard Ashcraft, “The Politics of Lockes Two Treatises of Government“ in E. J. Harpham, ed., John Locke’s Two Treatises of Government, Lawrence: Univer­sity of Kansas Press, 1992).

16. In an article on human rights in Mexico, Shannon Speed and Jane Col­lier have described how the state government of Chiapas uses that discourse to un­dermine indigenous attempts at defending a measure of autonomy. They see this

In his influential account of the development of citizenship in Britain first published in 1950, T. H. Marshall traced the history of rights in that country since medieval times but stressed that thb critical moments in their formation were—schematically—the seventeenth, eighteenth, and nine­teenth centuries, that is, precisely when the modern state was being con­structed.^{[90] [91] He saw citizenship rights as being divided into civil (“liberty of the person, freedom of speech, thought and faith, the right to own prop­erty and to conclude valid contracts, and the right to justice”), political (“the right to participate in the exercise of political power, as a member of a body invested with political authority or as an elector of the members of such a body”), and social (“from the right to a modicum of economic wel­fare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in the society”).[92]}

It is this classification, coming as it does out of the Anglo-American legal tradition and the Franco-American Revolutionary tradition, that makes its way in 1948 into The Declaration of Human Rights.

Redeeming the “Human” Through Human Rights 137 human rights inevitably depended. The constitutional structures of em­pire—of metropole, colonies, protectorates, mandates, and dominions— remain outside their theorization. The classification of rights thus moves from the context of a Euro-American state in which political struggles for the extension of rights are punctuated by national settlements, to the con­text of an abstraction sentimentalized as “the human family.” This “family” is homogeneous and exclusive (it doesn’t include animals or machines or gods), although real “families” are internally differentiated and they over­lap with one another.,

The Universal Declaration of Human Rights begins by asserting “the inherent dignity” and “the equal and inalienable rights of all members of the human family” and then turns immediately to the state. In doing so it implicitly accepts the fact that the universal character of the rights-bearing person is made the responsibility of sovereign states, each of’which has ex­clusive jurisdiction over a limited group within the human family. This limited population is—as Foucault noted—at once the object of the states care and a means of securing its own power.¹⁹ In other words, although the individual does not have the right to decide his own fate, authorities of the state of which he is a citizen have the constitutional right to decide it for him. Thus when Kant wrote of “the Idea of the dignity of a rational being who obeys no law other than that which he at the same time enacts him­self”²⁰ he referred not to the subject of the state (who is substitutable in war and always obliged to obey his country’s laws) but to the rational, morally sovereign human being for whom there is no equivalent.²¹

However, the state has more than sovereign jurisdiction over all its subjects; it also seeks to create an exclusive national identity in each of its citizens.

19. Foucault identified this seeming contradiction with the political princi­ple of raison d’itat (see especially “The Political Technology of Individuals,” in Technologies of the Self A Seminar with Michel Foucault, ed. L. H. Martin, H. Gutman, and P. H. Hutton, Amherst: University of Massachusetts Press, 1988.

20. Immanuel Kant, Groundwork of the Metaphysical of Morals, trans. H. J, Paton, New York: Harper Torchbook edition, 1964, p. 102 [p. 77].

21. “In the kingdom of ends everything has either a price or a dignity. If it has a price, something else can be put in its place as an equivalent·, if it is exalted above all price and so admits of no equivalent, then it has a dignity” (ibid, [italics in original]).

which help to sustain national attachments and interests that are actually and potentially hostile to outsiders.

The Declaration states that unless human rights are “protected by the rule of law,” subjects will be “compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.” It is not immediately clear whether this is to be read as a warning to rulers to be prudent or a recog­nition that the ruled are morally entitled to retrieve their natural rights. And yet The Declaration seems to justify rebellion only when it can be seen as a response to the government s violation of human rights law, although all infringements of the law (and their remedy) can be properly determined only by a court of law. There is no explicit recognition that what is allowed by the law may be unjust and therefore intolerable; there is only the state­ment that nothing contravening human rights can be lawful (which is ei­ther a tautology or untrue). In other words, The Declaration seems to as­sume a direct convergence of “the rule of law” (a notion that depends on the proper maintenance of rights by state institutions) with social justice (a vision of social life that logically presupposes remedies but not necessarily rights, and that is concerned more with questions of distribution and civil­ity than with individual rights and liberties).

There is an. unresolved tension here between the moral invocation of “universal humanity” and the power of the state to identify, apply, and maintain the law. For not only does The Declaration equate law with jus­tice, it also privileges the states norm-defining function (or that of several states in association), thereby encouraging the thought that the authority of norms corresponds to the political force that supports them as law. Iron­ically, it was the moral revulsion against the legal atrocities of the Nazi state that led, after World War II, to a renewed interest in the old natural law tradition, and that contributed in a major way to the framing of The Dec­laration. (It was the Nuremberg War Crimes Tribunal that retrospectively introduced the notion of crimes against humanity into international law.) But the condemnation of a particular states system of law and of its be­havior in terms of norms entirely external to them led not to a recognition that nonstate norms have authority as such. They led instead to the for­mulation of sacred laws that must ultimately depend, as laws, on their 'recognition by states.²² Of course there are now growing bodies of inter-

22. The Nazi atrocities are a favorite example used by advocates of univer­salism to underline the dangers of relativist thinking. However, the Nazis carried

Redeeming the “Human' Through Human Rights 139 national law that cover entire regions (such as the European Community, which also has its own Human Rights Charter) and that thus transcend the authority of individual states. But these regions also act as larger proto­states whose individual member-states retain considerable authority.

An aspect of the divergence between the moral authority of norms and the secular force of state laws may be illustrated by a recent example from Europe. As a consequence of Greece having joined the European Union, the Greek state was required by the European charter of human rights to remove any information on religious affiliation, family status, na­tionality, and thumb print in the identity cards issued to citizens.