Professional Documents
Culture Documents
THE LABYRINTH
OF HUMAN RIGHTS
F
ar from being a radically new phenomenon, ‘globalization’
is the latest stage of a process that has unfolded over several
centuries, and whose origins can be traced to the Renaissance
and the conquest of the New World. Ever since the extermina-
tion of America’s indigenous population, that process has been at one
with the domination of Western countries over all others. This ascend-
ancy has rested not on any physical or moral superiority of the West, but
on the material power afforded by its science and technology—which,
like the market economy, are products of Western civilization and still
closely bound up with it. Western science was founded on the belief that
God had bequeathed the earth to man, that he had organized nature
according to immutable laws, and that knowledge of these laws would
give man mastery over nature. The material strength of the West thus
owes much to Christianity, which has cemented its identity.
We are inclined to think that all this belongs to the past, and that
Western societies have freed themselves of religion. The ‘disenchant-
ment of the world’ and ‘secularization’ have become clichés spread by
the social sciences, and many in the West see the attachment of other
peoples to the religious foundations of their societies as an anachro-
nism, slated for disappearance. But we should recall that the meaning
of the word ‘religion’ has been reversed in the process of secularization.
Formerly the doctrinal basis of society, religion has become a question
of individual liberty; a public matter has become a private one, giving
1
Jean-Claude Schmitt, ‘La croyance au Moyen-Âge’, in Le corps, les rites, les rêves, le
temps: Essais d’anthropologie médiévale, Paris 2001, pp. 77ff.
2
The term ‘dogmatic’ comes from the Greek dogma or ‘what appears’, and originally
designated what seems self-evident and therefore has no need to be demonstrated
(axioms, founding principles), as well as what is displayed (honours, decorations).
The history of this pivotal notion in the fields of medicine, natural science and law
has been reconstructed by M. Herberger: Dogmatik. Zur Geschichte der Begriff und
Methode in Medizin und Jurisprudenz, Frankfurt 1981. Subsequently associated with
religious truths, the term acquired a pejorative connotation in the 17th century,
which it has never since lost. We owe its heuristic use in an anthropology of the
Western world to Pierre Legendre, who defines dogma as ‘a discourse of official
truth that is honoured as such, of what is said because it should be said’. See Sur
la question dogmatique en Occident, Paris 1999, p. 78; and more generally L’Empire
de la Vérité. Introduction aux espaces dogmatiques industriels, Paris 1983 and De la
Société comme Texte. Linéaments d’une anthropologie dogmatique, Paris 2001. Western
societies, like all others, need the solemn affirmation of ‘self-evident truths’, that
is, dogmatic pronouncements that dispense with argument. Anyone who doubts
this need only consult the Declaration of American Independence : ‘We hold these
truths to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable rights, that among these are life, liberty and
the pursuit of happiness’. Such were the truths invoked in a much-publicized dec-
laration by patriotic intellectuals in the United States, hailing the War on Terror in
the wake of September 11 2001: ‘What We’re Fighting For: A Letter from America’,
Institute for American Values, February 2002.
120 nlr 21
Unequal beliefs
Certain of these fundamental beliefs have come to form part of the jurid-
ical dogmata that sustain the institutional structures of the West. The
opening declaration of the Preamble to the French Constitution of 1946,
repeated in that of 1958, is a good example: ‘the French people once
again proclaims that every human being, irrespective of race, religion or
creed, possesses inalienable and sacred rights’. The subject of the decla-
ration, ‘the French people’, plainly overflows the confines of our mortal
3
‘The declaration of God in the Pledge of Allegiance doesn’t violate rights. As a
matter of fact, it’s a confirmation of the fact that we received our rights from God,
as proclaimed in our Declaration of Independence’, President Bush told reporters
at the Group of Eight summit meeting in Canada: 28 June 2002, United Press
International.
4
See my ‘Dogmatic Foundations of the Market’, Industrial Law Journal, December
2000.
5
The Sarbanes–Oxley law, adopted in the wake of the Enron and WorldCom scan-
dals, obliges the directors of quoted companies to certify under oath as to the truth
of their accounts. Perjury is punishable by 20 years imprisonment, and those con-
victed will be unable to file for bankruptcy to avoid responsibility.
supiot: Human Rights? 121
Yet to speak here of beliefs rather than religions has in my view the
immense advantage of placing all countries and peoples on an equal
footing, since all are motivated by beliefs, even if these are not the same.
Of course, to see such a perspective as desirable suggests my own found-
ing beliefs, as a descendant of generations of republican school-teachers,
and citizen of a state that has made the principle of equality a keystone
of its institutions. But a difficulty immediately arises. How can we even
begin to reason in terms of equality when numerous great civilizations
have, on the contrary, been based on the idea of a rigorous hierarchy
of human beings and societies?6 Or when biological inequality between
persons or races was long taken for granted in the West itself, as one
of the established verities of post-Darwinian science? 7 Or when, in the
aftermath of the incident of 9/11, some of our political leaders did not
hesitate to pronounce Western values superior to all others?
To that end, the first step is to accept that human rights form a dogma
of religious origin, articles of a credo rooted in Western Christianity.
That does not disqualify them. For as Auguste Comte noted, ‘dogma-
tism is the normal state of the human mind, towards which it naturally
6
For the case of India, see Louis Dumont, Homo hierarchicus. Le système des castes et
ses implications, Paris 1966; Chicago 1980.
7
See André Pichot, La société pure. De Darwin à Hitler, Paris 2000.
122 nlr 21
and continually tends, even when it seems farthest removed from it’.8
A dogma is a resource, perhaps more indispensable to human life than
any other. For as soon as human beings can speak, their horizons extend
beyond the life of the senses—sheer biological existence—to questions
of meaning. Where meaning stops, madness lies in wait. Man can act
freely only where his actions make sense to his beliefs. As Tocqueville
observed, ‘It is easy to see that no society can prosper without such
beliefs, or rather there is none that could survive this way’.9
8
Auguste Comte, Considérations sur le pouvoir spirituel (1826), in Appendice général
du système de politique positive, Paris 1854, p. 204. Comte continues: ‘For scepticism
is nothing but a state of crisis, the inevitable result of the intellectual interregnum
that necessarily supervenes whenever the human mind is called upon to change
doctrines; it is at the same time an indispensable means employed either by the
individual or by the species to facilitate the transition from one dogmatism to
another, which constitutes the sole fundamental utility of doubt . . . Modern peoples
have obeyed the imperious law of our nature, even in their revolutionary period,
since each time there was a real need to act, even if only to destroy, they have inevi-
tably been led to give dogmatic form to ideas that were purely critical in essence.’
9
Tocqueville, Democracy in America, Chicago 2000, p. 407.
10
See, for example, the outpourings that accompanied the publication, in Science
and Nature on 11 February 2001, of the human genome sequence, according to
which a reading of ‘the Great Book of Life’ proves that races do not exist (‘Les boul-
eversantes révélations de l’exploration du génome humain’), Le Monde, 13 February
2001.
supiot: Human Rights? 123
To worship Man
11
Those who asserted the absence of any significant differences between men
and women (so-called gender theories), claiming science was on their side, were
thrown into disarray when new ‘scientific truths’ revealed contrasts between the
sexes in the layout of the brain. See Mark Lansky, ‘Gender, Women and all the Rest’,
International Labour Review, vol. 139, no. 4 (2000), pp. 481ff.
12
‘Humanity substitutes itself definitively for God, without forgetting his provi-
sional services’, wrote Comte in the conclusion of his Catéchisme positiviste ou
Sommaire Exposition de la Religion Universelle (1852), Paris 1966, p. 299. Renan
echoed him with his parting words to the Creator at the end of L’avenir de la
science (1890), Paris 1995, p. 491: ‘Farewell! Although you have deceived me,
I love you still!’
13
Hereafter I will refer principally to the Universal Declaration of Human Rights
adopted by the UN General Assembly on 10 December 1948.
124 nlr 21
14
See the contribution of Amadou Hampâté Bâ to La notion de personne en Afrique
noire, Paris 1973, reprinted 1999, pp. 181ff; Maurice Leenhardt, Do kamo. La per-
sonne et le mythe dans le monde mélanésien, Paris 1947, republished 1985; and Louis
Dumont, ‘Absence de l’individu dans les institutions de l’Inde’, in Ignace Meyerson,
ed., Problèmes de la personne, Paris 1973, pp. 99ff.
15
In Article 16 of the Universal Declaration, the couple and the family are the object
of individual rights.
16
Universal Declaration, Article 1.
supiot: Human Rights? 125
Finally, the bearer of human rights is a person. ‘Everyone has the right
to general recognition as a juridical person’, announces Article 6 of
the Universal Declaration of Human Rights. Where Roman Law knew
degrees of legal personality, and accorded full recognition to only a hand-
ful of men—the figure of the paterfamilias—Christianity endowed every
human being with personality.20 Just as God was incarnated in Christ,
so each man is both matter and spirit, a mortal body and an immortal
soul, whose union defines the person. Tirelessly hammering home the
notion of a ‘free and full development of the personality’, the discourse
of human rights is the heir to this concept of the individual as a unique
spirit, unfolding through a life and surviving after death by virtue of
its works. So conceived, personality is not a mask to be stripped away,
as in India, but a being to be discovered: the revelation of the spiritual
identity of each individual in its physical incarnation.21 Modern science
has retained this dualism in its opposition of psyche to soma, treating
man as at once a biological animal—an explicable and programmable
object—and a disembodied consciousness in command of all things. At
once or, unhappily, as either all-powerful spirit or mere ‘human material’,
with all the risks such schizophrenia entails.22 It was because the hor-
rors of two world wars showed where this might lead that the Universal
17
See Universal Declaration, Article 21, and Pierre Rosanvallon, Le sacre du citoyen:
Histoire du suffrage universel en France, Paris 1972, p. 640; and Articles 17, 23 and
27 enshrining, respectively, the right to property, to work and to ‘share in scientific
progress and its benefits’.
18
See Philippe d’Iribarne, Vous serez tous des maîtres. La grande illusion des temps
modernes, Paris 1996.
19
Osamu Nishitani, ‘La formation du sujet au Japon’, Intersignes, no. 8/9 (1994),
pp. 65–77; Malek Chebel, Le Sujet en islam, Paris 2002.
20
Paul Girard, Manuel élémentaire de droit romain, Paris 1911, p. 91.
21
Heinrich Zimmer, Les philosophies de l’Inde, Paris 1997, p. 186.
22
Victor Klemperer, LTI—Notizbuch eines Philologen, Leipzig 1975. Compromised
by its currency under the Nazis, ‘human material’ has been replaced in contempo-
rary usage by the notion of ‘human capital’—initially employed by Stalin.
126 nlr 21
A particular genealogy
The fact that many non-Western civilizations have had, or still have, to
adopt legal doctrines of Western origin creates an illusion that they have
been converted to the values of the Law. But this is to misunderstand
usages that typically are either products of direct colonial imposition
or merely instruments for trade with the West, rather than the expres-
sion of any social values. Japan offers a striking case in point, since
it imported a juridical culture for external use, while preserving its
23
The Origins of Totalitarianism, New York 1951.
24
See my ‘Ontologies of Law’, NLR 13, Jan–Feb 2002.
supiot: Human Rights? 127
Still less can the idea of Right (Droit) pretend to any universality.26
With its emergence, Law changes character. Ceasing to be a prescription
revealed forever by an immutable Text, it becomes a technical object,
whose meaning derives from the minds of men, who can create or
reform it. So defined, Western notions of Right are the product of a long
history, whose turning-point was the Gregorian Revolution of the elev-
enth and twelfth centuries, when the Papacy recycled Roman law for its
own purposes, to make itself the living source of laws applicable to all
Christendom, and thereby ultimately to the whole world.27 Our concep-
tions of Right and the State date from this transformation: of Right as
an integrated system of rules whose evolution is autonomous; and of the
State as an undying Person, source of laws and guarantor of individual
rights.28 These institutional structures took on their modern form with
the separation of Church and State. Science replaced religion as the uni-
versal measure of truth, becoming—as Saint-Simon had predicted—the
only spiritual power with authority in the public sphere. The nation-
state, freed from the authority of the Church, became a sovereign subject
25
Notably in the rules pertaining to giri: see Ruth Benedict, The Chrysanthemum
and the Sword, Boston 1946; Maurice Pinguet, La mort volontaire au Japon, Paris
1984. See also I. Kitamura, ‘Une esquisse psychanalytique de l’homme juridique
au Japon’, in Takehisa Awaji et al., Etudes de droit japonais, Paris 1989.
26
Anglo-American cultures of common law lack the distinction between loi (legge,
Gesetz, ley) and Droit (Diritto, Recht, Derecho), shared throughout continental
Europe, whose origin lies in Roman Law, where lex designates the source of legiti-
macy and ius its normative effects—respectively, the foundation of a juridical order,
and the rules of that order. The distinction between the two acquired its modern
meaning in the tradition of Romano-Canon Law, which conceived the state on the
model of the Papacy, as the legislative author of Right (Droit: the system of rules)
and rights (droits: prerogatives enjoyed by individuals or corporate bodies). In cul-
tures of common law, it is judges rather than the State that embody the ultimate
source of legitimacy, and hence the totemic figure of the Law.
27
See Harold Berman, Law and Revolution: The Formation of the Western Legal
Tradition, Cambridge, MA 1983; Pierre Legendre, La pénétration du droit romain
dans le droit canonique classique, Paris 1964, and Les enfants du Texte, Paris 1992, pp.
237ff. See also my ‘Travail, droit et technique’, Droit social, 2002, 1, pp. 13ff.
28
Ernst Kantorowicz, The King’s Two Bodies: a Study in Medieval Political Theory,
Princeton 1957.
128 nlr 21
Two fundamentalisms
If we are to make any progress here, we need to avoid the twin pitfalls of
absolutist and relativist attitudes towards human rights, both of which
are forms of fundamentalism. Absolutist standpoints regard human
29
See Alain Wijffels, ‘Aux confins de l’histoire et du droit: la finalité dans le débat
sur la formation d’un nouveau ius commune’, Revue d’éthique et de théologie morale,
Supplement, n. 207, December 1998, pp. 33–66. On its contemporary expression
in France, see Mireille Delmas-Marty, Pour un droit commun, Paris 1994 and Trois
défis pour un droit mondial, Paris 1998.
supiot: Human Rights? 129
There are many examples of such delirium today in the West. They
include demands for the abolition of differences between the sexes;
the ‘de-institution’ of maternity; the dismantling of the special status
of children, who are likened to an oppressed minority; the replacement
of descent by contract; even—very logically—the right to insanity.30
This is a messianic fundamentalism, propagating Western interpreta-
tions of human rights across the developed world, and making use of
the full arsenal of the modern missionary, from grants in the social
sciences to structural adjustment plans.31 Predictably, it flourishes in
the jurisprudence of courts specially created to enforce the observation
of human rights. In July 2001, for instance, the European Court of
Human Rights rejected a complaint lodged by a group of MPs from
the Refah party, removed from their seats by the Turkish army, on
the grounds that they advocated the introduction of the shari‘a—whose
‘stable and unchangeable religious dogmas and divine rules’ it deemed
incompatible with ‘principles of pluralism in political participation or
the unceasing evolution of public liberties’. The decision brushed aside
the rich history of Islamic legal thought, barring the way for any accom-
modation between human rights and the values of Muslim law—so
vindicating the interpretation of the former by Islamic fundamental-
ists. Indeed, human-rights fundamentalism can only encourage the rise
of contrary, anti-Western fundamentalisms, making human rights the
battleground of a war of religions.
30
The reader interested in some of these extravagances can consult ‘Quels parents
pour demain?’, Le Monde 19 June 2001; M. Iacub, ‘Filiation: le triomphe des mères’
and F. de Singly, ‘Le contrat remplace la lignée’, Le Monde des Débats, March 2000;
O. Cayla and Y. Thomas, Du droit de ne pas naître, Paris 2000.
31
There is a preponderance of grants for gender studies in Western programmes of
assistance to African scholars. On the need to rid ourselves of nineteenth-century
paradigms in the social sciences, see Immanuel Wallerstein, Unthinking Social
Sciences, Cambridge 1991.
130 nlr 21
The relativist view, on the other hand, considers that human rights
suit only the West—freedom, equality and democracy have no meaning
in other civilizations. To assume that there can be no communication
between major doctrines of a religious cast is to succumb to an identitar-
ian fundamentalism, that treats belief-systems as inflexible structures,
incapable of evolution or reinterpretation. Within Western countries, one
result has been a rising tide of communitarianism among immigrants
driven from their homelands by fifty years of ‘development’ policies, and
the spread of ‘multi-cultural’ ideals of a society where these different
communities would coexist more than cohabit. Another has been an
answering surge of communitarianism among ‘natives’, of a xenopho-
bic and racist stamp. The fundamentalism of identity locks people into
an ethnic or religious destiny. Westerners, endowed with democratic
freedoms and human rights, are masters of their fate. The rest of the
world become objects of anthropological inquiry, marked from birth by
membership of a community—Afro-American, Hispanic—that can be
escaped only by a denial of origins: that is, by renegacy.32
Opening doors
32
Osamu Nishitani, ‘Two notions of Man in the West: Anthropos and Humanitas’,
in Defining the Twentieth Century, vol. 4, Tokyo 2001, pp. 35–48.
33
This idea was suggested by Altan Gokalp. On the millet, see Robert Mantran,
‘L’Empire ottoman’, in Maurice Duverger, ed., Le concept d’empire, Paris 1980,
p. 231 ff.
supiot: Human Rights? 131
The escape from this vicious circle lies in opening the door of interpreta-
tion of human rights to all civilizations. I use this metaphor by design:
it has been employed by generations of Muslim intellectuals, seeking
to stem the tide of regression in their countries, by reconnecting with
the most brilliant chapters of Islamic civilization.34 The cultures of the
West are threatened by a similar regression should they yield in their
turn to fundamentalism.
34
See Louis Gardet, La Cité musulmane, Paris 1954, pp. 121ff; Joseph Schacht,
An Introduction to Islamic Law, Oxford 1964; Mohamed Charfi, Islam et liberté,
Paris 1998.
35
On the notion of appropriating modernity, see Jacques Berque, L’Islam au temps
du monde, Arles 1984, p. 87.
36
A penetrating analysis of the prospects of each of these great civilizations was
made in the 1920s by Liang Shuming: Les cultures d’Orient et d’Occident et leurs phi-
losophies, Paris 2000.
132 nlr 21
Interpreting values
The case of Africa is altogether more troubling, for if the West has
appropriated numerous elements of its rich culture—dance, music,
sculpture—Africa’s lack of a written corpus leaves it with few defences
against the opposite process, which threatens its civilization with extinc-
tion. Fundamentalist readings of human rights can only hasten the
process, tearing asunder the social structures that serve as trans-
mission points for African values. For instance, prohibiting child labour
in societies without schools deprives children of any opportunity for
apprenticeship in their own culture.37 Opening the interpretation of
human rights to African contributions, on the other hand, might give
the West cause to rethink its own ways of bringing up children, which
are not necessarily exemplary—schoolwork is itself a form of work, after
all, even if it is ignored by labour legislation. The ‘common value’ in this
case is not hard to define: it is the right of a child to be a child, and to be
treated as such, according to its needs and abilities. In such conditions, a
standard of ‘decent work’ is a much more promising notion than fulmi-
nating prohibitions, ignorant of the civilizations at which they are aimed.
Likewise, equality between the sexes is not a mathematical formula to
be applied uniformly and universally, but an equality in difference—a
fragile equilibrium that hangs on these very differences. It is easy to
37
Aminata Cissé-Niang, ‘L’interdiction internationale du travail des enfants vue
d’Afrique’, Semaine sociale, no. 1095 (2002).
supiot: Human Rights? 133
This is not to imply that Africans are naturally resistant to the values
expressed by human rights; simply that they should be allowed to make
their own interpretations of them. Indeed, juridically the most remark-
able attempt to date at such an appropriation was the African Charter of
Human and Peoples’ Rights of 27 June 1981.38 As its name suggests, the
Charter incorporates the individual rights that feature in Western decla-
rations, but does so within a framework that conceives human beings
not as isolated individual subjects, but as connected entities who find
their identity as members of a series of communities. Hence the pres-
ence in this Charter of subjects of rights other than the individual and
the State, towards which both State and individual have obligations: the
family—not the object of an individual right, but a ‘natural unit and
basis of society’, which the State as ‘custodian of morals and traditional
values recognized by the community’ has a duty to assist; and the people,
who have the right to ‘struggle against foreign domination, be it politi-
cal, economic or cultural’.39
38
In Philippe Ardant, Les textes sur les droits de l’Homme, Paris 1993, p. 92; English
text available at www.law-enforcement-forum.dk/pdf/African%20Charter.pdf. The
following discussion owes a great deal to the paper delivered by Josette Nguebou-
Toukam at the Maison des Sciences de l’Homme Ange Guépin at Nantes in
November 2001.
39
African Charter, Articles 27, 29, 18 and 20.
40
African Charter, Articles 28, 29, 24 and 18.
134 nlr 21
In the West, one of the crucial functions of law has been to control the
potentially deadly effects of the sensation of omnipotence that has devel-
oped with advances in science and technology, and which threaten the
survival of humanity itself. For law to play this role, it must remain open
to interpretation, rather than petrify into a fundamentalist conception
of individual liberty and equality. The day is not far off when the prin-
ciple of equality could be used to claim for single people the right to
clone themselves—since they currently enjoy none of the rights to pro-
creation possessed by couples. But could a child thus born be declared
exclusively the son or daughter of one parent? Certainly not under the
African Charter, which demands the protection of the family; nor under
the Universal Declaration, if we interpret the right to legal personality in
the light of the African Charter. For does not the denial to the child of
filiation from one of the sexes constitute a clear violation of the univer-
sally recognized right ‘to be regarded as a person before the law’? The
example demonstrates, at any rate, the potential impact of opening our
interpretation of human rights to contributions from other civilizations.
The debates that would necessarily follow, drawing on the traditions of
every culture, would serve as an antidote to all fundamentalisms.
of the latter can and should act as a spur to the process of reinterpreting
these rights, and help to put an end to Northern unilateralism, which
brought about the demise—however deserved—of the so-called social
clause in international trade agreements.
41
Defined as the deliberate extermination of civilian populations for political ends,
terrorism has also been widely practised by the West—from revolutionary terror to
Guernica, from Dresden to Hiroshima. Recognition of this might facilitate discus-
sion of a universally recognized definition of terrorism, which would protect us from
the effects of an endless ‘war on terrorism’ without clearly identifiable opponents.