1.  Back in the Eighties and Nineties, Marxist intellectuals, shaken by the Gulag revelations and the collapse of the communist states, started welcoming human rights. Claude Lefort, Jean-Francois Lyotard, Etienne Balibar and Jacques Rancière¹ amongst others participated in this move. It coincided with the ‘end of history’ bragging of liberal capitalists and the revisionist histories of the French Revolution, which emphasized its failures, terror and totalitarianism. It was a time of defeat and demoralization for the left. All that has been solid in radical thinking started melting in the air.

This period of defeat, introspection and penance came to an end with the financial and economic crisis. The return of radical theory and politics revived the suspicion towards the facile moralism and humanitarianism of liberal democracy and postmodern culture’s abandonment of universalism. Alain Badiou dismissed the humanism of rights in Ethics,² Slavoj Zizek questioned the emancipatory potential of human rights after some wavering,³ while Michael Hardt and Antonio Negri see human rights as an indispensable tool of empire.⁴ The rejection of the earlier rights revisionism is almost complete.

Yet, this rejection is somewhat problematic. Universalism is the rallying cry of liberal humanitarians. The defence of the sans papiers, a major campaign of Badiou’s organization politique, cannot avoid some version of rights-talk. Hardt and Negri’s recipe for turning the claims of empire’s into radical multitude’s expression takes the form of social rights. Jacques Rancière finds in human rights a good example of the radical politics he espouses. An embarrassed flirtation between the left and rights has been renewed in a direction which combines the defence of universalism with the rejection of human rights ideology.⁵ This is the time to re-visit rights history and theory in the context of late capitalism. If communist practice was a denial of liberal rights, can the philosophical idea of communism save (human) rights?

2. The history of human rights has been characterized by a conflict between liberal celebration and rejection by Marxism and communitarianism. Human rights are Janus-like, they have only paradoxes to offer. They can emancipate and dominate, protect and control.⁶ This ambiguous attitude permeated the radical theory of rights until recently with the negative side more pronounced.

Marx’s writings on rights were part of his wider critique of capitalism. In feudalism, political power, economic wealth and social status coincided. The political dominance of the rising bourgeoisie, on the other hand, could be ensured precisely through the apparent loss of direct political power. The rights of man removed politics from society and ended the identification of economic dominance with political leadership. Politics became confined into the separate domain of the state. At the same time, property and religion, the main safeguards of class dominance, were turned into private institutions located in civil society and protected from state intervention through the operation of natural rights. This ‘demotion’ to the private realm made property more effective and guaranteed its continued dominance. In this dialectical formulation, the main aim of natural rights was to remove politics from society and de-politicise the economy. After the separation, the state is presented as (politically) dominant, while real (economic) power lies in capitalist society. The bourgeois abandonment of the direct political power of feudal lords and kings was the precondition for the ascendancy of bourgeois society and the triumph of its capitalist principles.

In this bourgeois hall of mirrors, natural rights support selfishness and private profit. Politics and the state, on the other hand, replace religion and the church and become a terrestrial quasi-heaven in which social divisions are temporarily forgotten as the citizens participate in limited formal democracy.   The liberal subject lives a double life: a daily life of strife in pursuit of personal economic interest and a second which, like a metaphorical Sabbath, is devoted to political activity and the ‘common good’.  In reality, a clear hierarchy subordinates the political rights of the ethereal citizen to the concrete interests of the capitalist, presented in the form of natural rights.

Marx’s attack on natural rights inaugurated the various strands of ‘ideology critique’. First, equality and liberty are ideological fictions emanating from the state and sustaining a society of inequality, oppression and exploitation. While natural rights (and today human rights) are hailed as symbols of universal humanity, they were at the same time powerful weapons in the hands of the particular (bourgeoisie). Ideologies, class interests and egotistical concerns appear natural, eternal, in the public good when glossed in the rights vocabulary.

Second, rights turn real people into abstract ciphers.  The abstract man of the declarations has no history or tradition, gender or sexuality, colour or ethnicity, those elements that make people real. All content is sacrificed at the altar of abstract humanity. This gesture of universalisation conceals however their real subject: an human-all-too-human, wealthy, white, heterosexual, male bourgeois standing in for universal humanity who combines the dignity of humanity with the privileges of the elite. The emancipation of universal man subjects real people to a very concrete rule: ‘the rights of man as distinct from the rights of the citizen are nothing but the rights of the member of bourgeois society, i.e. egotistic man, man separated from other man and the community.’⁷

A related argument emphasizes the statism of rights. Effective rights follow national belonging. While proclaimed on behalf of universal humanity beyond local or historical factors only national citizens get their full protection. The gap between universal man and national citizen is populated by millions of refugees, migrants, stateless, moving and nomadic people, the inhabitants of camps and internment centres, the homines sacri who belong to ‘humanity’ but have few if any rights because they do not enjoy state protection.

Third, formal equality (the legal entitlement to have property) treats unequals equally as a matter of right and fairness. This turns equality into an ideological construct; it also promotes material inequality, poverty and destitution and undermines close human relationships. ‘Right by its very nature can consist only in the application of an equal standard; but unequal individuals (and they would not be different individuals if they were not unequal) are measurable only by an equal point of view, are taken from one definite side only…One worker is married, another not; one has more children than another and so on and so forth…To avoid all these defects, right instead of being equal would have to be unequal.’⁸

Finally, Marx’s critique of specific rights was scathing. They proclaim a negative freedom based on a society of isolated monads who see each other as threats. The right to ownership is nothing more than the protection of private property on the means of production.  Freedom of opinion and expression is the spiritual equivalent of private property, a claim fully validated in the era of Murdoch, Turner and Gates. Anticipating the recent bio-political turn, Marx argues that the right to security is the only real right. It constructs artificial links between (fearful) individuals and the state and promotes the ultimate social value, law and order. Policing, the ‘supreme concept of bourgeois society, the insurance for [bourgeois] egoism’,⁹ undertakes to keep social peace and public order in a conflictual society.

Marx however did not dismiss rights out of hand. Commenting on the 1848 Revolution, he spoke of a different right: ‘The right to work is, in the bourgeois sense, nonsense, a wretched, pious wish. But behind the right to work stands power over capital. The appropriation of the means of production, their subjection to the associated working class. That is the abolition of wage labour, capital and the mutual relationship.’¹⁰

The communist revolution will realise the universal promise of rights by negating moralistic form and idealist content.  Freedom will stop being negative and defensive and will become a positive power of each in union with others. Equality will no longer mean the abstract comparison of unequal individuals but catholic and full participation in a strong community. Property will cease being the limitation of each to a portion of wealth to the exclusion of all others and will become common. Real freedom and equality look to the concrete person in community, abandon the formal definitions of social distribution and inscribe on their banners the principle ‘from each according to his ability, to each according to his needs.’ For this to happen the political revolution symbolized by the rights of man must be superceded by a social revolution which will lead to the emancipation of humanity.

3. The Marxist philosopher who mostly emphasised the paradoxical action of rights is Ernst Bloch.¹¹ Bloch retains the main elements of Marx’s critique of rights but discovers in the tradition of natural law the historically variable but eternal human trait to resist domination and oppression and to imagine, fight and achieve a society in which ‘man will walk upright’. There can be no real foundation of human rights without an end to exploitation and no real end to exploitation without respect for rights.

Bloch’s criticisms of the illusions of ‘bourgeois natural law’ are devastating. But human rights hail also from the tradition of critique of power, convention and law and have developed in two directions. Initially, rights were associated with dominium, possession and property, the legal dominance over things and people and were invented in order to protect creditors from debtors.¹² Human rights emerged from this early right to property but were ‘adopted in a quite different way by the exploited and oppressed, the humiliated and degraded. It is precisely this that appears in its incomparable second sense as the subjective catchword of the revolutionary struggle and actively as the subjective factor of this struggle.’¹³ Bloch concludes that a historically enduring sense of resistance and rebellion shows the human ‘intention of freeing themselves from oppression and installing human dignity, at least since the time of the Greeks.  But only this will is immutable, and not…“man” and his so-called eternal right.’ ¹⁴

Bloch’s Natural Law and Human Dignity is the most advanced Marxist reading of the history and philosophy of human rights. Influenced by German idealism, Marx’s early writings. Penned at the height of the cold war, it adopts an evolutionary philosophy of history and prophesises the realization of the humanum in communism. Radical human rights condemn bourgeois legality while at the same time realizing their kernel, the principle of hope of (socialist) humanism.

This type of Marxist historicism and humanism came under devastating attack by Althusserian and poststructuralist philosophy. Yet Bloch’s insistence in the will to resist and rebel, freed from humanist idealism, can help resituate the radical potential of normativity. If progress is no longer guaranteed by historical necessity and the revolutionary wager has been firmly placed on the long odds of the (coming) event, how can values and norms prepare the epiphany and the fidelity necessary for its realisation? If radical change is not the linear unfolding of the human spirit, but a rare and unpredictable instance of eternal return how does the event link with moral imperatives and psychological motivations? As Peter Halward puts it, ‘isn’t there a danger that by disregarding issues of motivation and resolve at play in any subjective decision, the militants of truth will preach only to the converted?’¹⁵ Is there a synchronic constant beyond historicism and finitude that moves people to answer the call of Badiou’s ‘void’ and change the situation?

Radical philosophy tends to neglect such questions as secondary or ‘super-structural’. Yet Antigone’s defiance, Paul’s conversion and Lenin’s resoluteness did not emerge ex nihilo. If ‘the subject is only partially the subject inspired by the event…social agents share, at the lever of a situation, values, ideas, beliefs, etc. that the truth…does not put entirely into question.’¹⁶ The militants are partly prepared and supported by norms and beliefs pre-existing the dramatic act and leading to their abiding fidelity. Following Badiou’s terminology, we can call them the normative pull of the void or, with Zizek, the normativity of the real. Where does this pull come from? What prepares the militant subjects? As rights are becoming the dominant language of politics, with all the problems this entails, we need perhaps a genealogy of radical normativity.

4. The Anaximander fragment, the oldest extant Greek text reads: ‘but where things have their origin, there too their passing away occurs according to necessity; for they are judged and make reparation (didonai diken) to one another for their adikia (disjointure, dislocation, injustice) according to the ordinance of time’.¹⁷ Heidegger uses the fragment to confirm his fundamental ontology. The proper presence of beings is ‘lingering awhile’.  When they present themselves, they cannot be out of joint (adikia); on the contrary, they are joined with others (Heidegger’s translates dike as joint or jointure). But Being withdraws as it reveals itself in beings, conceals itself and keeps to itself.  In this process of unconcealment/concealment, beings are cast adrift in errancy, and ‘history unfolds…Without errancy there would be no connection from destiny to destiny: there would be no history’.¹⁸ Adikia is the disorder of Being, its concealment accompanying its unoncealment or lingering.

Derrida returns to Heidegger’s reading in Spectres for Marx agreeing with the ontological direction. Derrida objects however to the one-dimensional interpretation of dike and adikia, which emphasise pacific jointure and care. For Derrida, the centrality of adikia must be re-instated. There is disjointure and dissension in Being, a dislocation that animates the relationship with the other than being, with the other as other and with death.¹⁹

Derrida’s return to Being as dissension can help us develop an ontological thinking of dike as the response to enduring disorder and conflict (adikia). Following this correction, the fragment can be paraphrased as follows: ‘An archaic adikia, dissension or conflict, animates the unconcealment of Being. It endures in human history which is the unfolding (tisis) of adikia’s overcoming (dike).’  What creates this dislocation or injustice? How is the reparation calculated and paid?²⁰

An early answer is given by Sophocles in the Ode on Man, the superb choral song from Antigone.

polla ta deina kouden anthropou deinoteron  pelei (332).
Numberless wonders (deina), terrible wonders walk the world
but none more wonderful and terrible  (deinoteron) than man.

Heidegger’s reading of the song places power, violence and conflict at the centre of history. Deinon, the key word, has two meanings: first, it is man’s violent and creative power, evident in techne knowledge, art and law. Secondly, dike is an overpowering power, the order and structure humanity is thrown in and has to struggle with. Techne confronts dike and violently tears asunder the order of Being, using violent poesis against dike’s overpowering dispensation. In this confrontation, man stops being at home and both home and the alien are disclosed. Humanity opens paths and sets boundaries, introduces laws and institutions, masters earth and sea.²¹ Techne and logos make manifest the manifold of beings and humanity’s own historical becoming.

But dike, the overpowering order, can never be fully overcome. It tosses pantoporos man (all resourceful and everywhere-going) back to aporos (without passage and resource). Catastrophe is humanity’s inescapable condition caught up as it is in the conflict between power and overpowering, the violence of knowledge, art and deed and the order of the world. Abiding disaster lurks behind every achievement as its precondition. The fragment calls it adikia, dislocation, disjointure or injustice. Humanity rises on the breach opened by the exercise of overwhelming force on primordial dike.²²

Adikia is the cause and effect of dike. There is an ‘aboriginal injustice in which we share, to which we belong. Older than time, than measure and law, it owns no measure of justice of equality or inequality’.²³ The sense of injustice, which prepares the militants of revolution against the dominant order, is history’s judgment and reparation for the original and enduring adikia. This dislocation is in excess of any possible restitution and opens history  ‘according to the ordinance of time’. Adikia is both the unending struggle between techne and dike and the limit between them, what keeps freedom and necessity apart.

The struggle between techne as thinking and dike as doxa led to the birth of philosophy and epistemic knowledge. At the same time, the techne/dike antagonism motivates militant subjects. Such is the conflict between Creon’s stubborness (Hegel greatly respected his achievement and predicament) and Antigone’s defiance or ate:

Nor did that (Dike), dwelling with the gods
beneath the earth, ordain such laws (nomous) for men.
Nor did I think your edicts had such force
that you a mere man, could override
the great unwritten and certain laws of the gods
(agrapta kasphale theon nomima) (Antigone lines 448-453).

Adikia endures as the world-making struggle between techne and dike. It has political, theoretical and subjective facets. Its political form is the epochally specific confrontation of human action with the order of the world. Its philosophical, explores the epochal forms of adikia, of order, freedom and their entanglement. Such was Plato’s quest for a theory of justice against the doxa of his time. Similarly, Marx’s identification of class struggle and invention of communism against triumphant capitalism were theoretical responses to the adikia or disorder of capitalism.

Finally, each type of adikia creates its own subjectivity by inducing subjects who resist and radically transform it. Antigone as the champion of dike, Prometheus of techne give name to rebellious subjectivity. This subjective response results from the epochal instantiation of adikia. When the kairos gets out of joint, an affective or/and rational sense of dislocation incites subjects of resistance and revolution. Resistance and its militants take therefore two interlinked forms: theoretical exploration of the ruling dislocation and political action to resist or redress it.  The dissidents and revolutionaries, from Prometheus to Michael Kolhaas and Che Guevara answer the sense of disorder adikia begets. History moves in this combination of politics, theory and radical subjectivity.

We can now understand why the theory of justice is the oldest failure of human thought. Since Homer, the Bible and Plato, the best minds and fieriest hearts have tried to define justice or imagine the conditions of a just society. They have failed; indeed the successive and endless ‘theories of justice’ are a serial recognition of this miserable failure. Justice and injustice are not normative predicates but subjective motivations. Adikia’s endurance generates the common feeling that we are surrounded by injustice without knowing where justice lies. This is the paradox of justice: while the principal has been clouded in uncertainty and controversy, injustice has always been felt with clarity, conviction and a sense of urgency. We know injustice when we come across it, its truth is felt. Every time however a theory of justice is put into practice, it soon degenerates into another instance of injustice. Justice applied leads to (feelings of) injustice. Life starts with injustice and rebels against it. Thinking follows.

The dialectic between justice and injustice does not lead to their synthesis. Injustice is not the opposite of justice; the unjust is not the contrary of the just; suffering injustice is not the logical opposite of doing injustice.²⁴ Adikia is both the gap between justice and injustice and the endless but impossible attempt to bridge it.  It is what the symbolic order tries to suppress and the prolific theories of justice (the imaginary) to legitimize, failing each time. In this sense, the Real is a name for adikia, the constituting dislocation of the social bond. As Jean-Francois Lyotard put it, a residue, a ‘nonlinked thing’²⁵ or faultline beyond control founds every community and law. It is analogous to an ‘unconscious affect’, encountered in the  ‘sharp and vague feeling that the civilians are not civilised and that something is ill-disposed towards civility’ which ‘betrays the recurrence of the shameful sickness within what passes for health and betrays the “presence” of the unmanageable’.²⁶

This unmanageable adikia has been called successively the unbridgeable gap between God and world, class struggle, self-other division, friend/enemy antagonism or the death drive. In all these nominations,  ‘the kernel of the real encircled by failed attempts to symbolize-totalise it is radically non-historical: history itself is nothing but a succession of failed attempts to grasp, conceive, specify this strange kernel.’²⁷ Its earliest generic name was adikia.

5. The idea of communism is a response to capitalism, the modern form of adikia. Do norms and maxims play a role in preparing radical change and its militant subjects?  Let us pursue this question in relation to the greatest perhaps modern normative maxim:   ‘All men are born and remain free and equal in rights’ pronounces the French Declaration of the Rights and Man and Citizen radically transforming the political and legal universe.

The juridico-political maxim of the classical world was suum cuique tribuere, give everyone his due. It was both a moral and a legal principle. The Greek dikaion or the Roman jus was the morally correct and legally right answer to a social dispute. In the pre-modern hierarchical order, social status determined what is due to each, what duties masters had towards slaves, husbands to wives, Greeks to barbarians. Right and wrong revolved around the suum, the proper to each according to his given place.  Backed by a teleology of natural ends, social standing assigned roles, tasks and duties.

The classical dike was transformed by Christianity. The first challenge was the idea of universal spiritual equality exemplified in St Paul’s statement that ‘there is no longer Jew or Greek, there is no longer slave or free, there is no longer male or female; for all of you are one in Jesus Christ’ (Galatians 3:28). The Franciscan nominalists Duns Scotus and William of Ockham prepared the second attack in the fourteenth century when they argued that the historical incarnation of Christ made individuality the supreme expression of creation. Its knowledge takes precedence over that of universal forms. Abstract concepts owe their existence to linguistic practices and have no ontological weight or empirical value. For William, God has given individuals control over their lives and bodies similar to that of dominium or property.²⁸ For Duns, God’s will has priority over his reason; the good exists because the omnipotent ordained it and not on account of some other independent quality.

The normative innovation of the French Declaration was to bring together the classical maxim of due deserts and the Christian command of universal equality. It disengaged the suum from social status and gave it, rhetorically at least, to ‘all men’. The pre-modern (moral and legal) jus/right, determined by natural reason in a fixed ontological universe, turned into a bunch of individual rights belonging to all.

The confrontation between hierarchical teleology and individualist ontology was resolved through revolution. Revolution was not just a radical socio-political change. It became a normative principle, the modern expression of  techne. The ‘right to resistance to oppression’, a key political maxim of the French Declaration, became the highest form of freedom. The rights of man emerged through revolution; resistance sustains their vitality. The declaration, ‘an act of war against tyrants’, proclaimed revolution as modernity’s techne and the right to revolution as freedom’s due.²⁹ The constitutionalisation of the right to revolution was as radical a normative innovation as was the proclamation of universal equality.

German idealism commended the revolution for incarnating freedom into history but rejected the Declaration’s revolutionary right.  Once constituent power had been constituted, the right to revolution retired. Immanuel Kant typically went to great lengths to dismiss a right to revolution as a contradiction in terms. The law cannot tolerate its own overthrow: ‘Revolution under an already existing constitution means the destruction of all relationships governed by civil right, and thus of right altogether. And this is not a change but a dissolution of the civil constitution; and a palingenesis, for it would require a new social contract on which the previous one (which is now dissolved) could have no influence.’³⁰

Kant’s ethico-plitical dislike of the right to revolution was adopted by the victorious revolutionaries and later by the human rights movement. The 1793 Declaration started weakening the revolutionary right by making it supplementary to the guaranteed rights. Only their violation (and no other injustice) could justify resistance, indicating that rights had started their long mutation from revolutionary maxims into legitimation myths.

The first epigrammatic article of the Universal Declaration of Human Rights (1948) repeats the French statement of equal freedom. Yet no right to resistance is found in the much longer epigonal recitation. On the contrary, the preamble states that these rights are given in order to prevent revolution and article 30 prohibits radical challenges to the political and legal system. Articles 15, 16 and 17 of European Convention of Human Rights repeat and augment this self-serving conservatism, by allowing states to declare a state of emergency and derogate rights, outlawing attacks on the juridico-political established order and prohibiting political activities by foreigners. These provisions of human rights treaties and the associated criminal laws had dire consequences. Despite the liberal rhetoric, communist and radical parties and groups were banned Germany, Greece, Britain and the United States amongst others, their members sent to exile, prison or camps. The reversal of priorities between the right to revolution and substantive rights was complete.

For Kant and the legal mentality, the revolutionary event leads to a palin-genesis, a re-birth of nation, community or class. This is the eventuality constitutions and treaties morally reject and formally negate.  As a result, the order initiated by revolution leads each time to the repudiation of its founding principle. The rights of man started as normative marks of revolutionary change. Positive human rights, their descendents, have become defence mechanisms against the possibility of resistance and revolution. The removal of the right to revolution was an attempt to foreclose radical change by making rights an insurance policy for the established order. In this sense, the order of the world is but a species of its dislocation. This unending confrontation brings back resistance and revolution through the sense of injustice adikia begets. The consecrated right to revolution, the foundation and guarantor of the ongoing struggle between techne and dike, cannot be wished away. Permanent revolution is the modern condition in science and art. In politics, it has turned into a ghostly normativity, the ‘right to the event’ one could call it, which eternally returns as perhaps the most important moral command of modernity.

6.  In the post-1989 world, rights have expanded and touch almost every part of daily existence. Democracy is presented as the exercise of a bunch of rights; policy priorities and decisions take the form of extensions or expansions of rights; criminal law protects the rights of victims, commercial the rights of customers, public law upholds the rights of citizens. Rights become negative protections against state power of all kinds – from taxation and the provision of health care to immigration policy and slum clearance; and positive projections of individual will – we all have a human right to properly functioning kitchen gadgets, a British minister recently intoned. Every individual desire and want can be dressed in the language of rights: for the affluent middle class, rights are the public and legal recognition of an unlimited and insatiable desire. In a society of free choice, it is forbidden to forbid.³¹

These developments mean that rights have become both the site and the stake of politics. Marx argued in the nineteenth century that the rights to property and religious freedom removed them from state intervention, de-politicising and offering them the strongest protection possible. What is the effect of the contemporary proliferation of rights-talk and its colonization of major aspects of life? Adjusting Marx’s pioneering work, one could claim that rights attempt to legalise social struggle: they individualise political claims, turn them into technical disputes and remove the possibility of radical change, in other words, rights de-politicise politics. In this sense, human rights operate on a dual register: they conceal and affirm the dominant structure but they can also highlight inequality and oppression. Can they help challenge oppression?

This double operation recalls the distinction between politics (la politique) and the political (le politique) and its influential recent use by Jacques Rancière.³² Rancière defines normal politics (or ‘policing’) as the process of argumentation and negotiation amongst the various parts of the social whole.³³ It aims at (re)distributing benefits, rewards and positions without challenging the overall balance. Against this routine policing, politics proper is a form of disruption of the established social order. Badiou similarly defines politics as ‘collective action, organized by certain principles, that aims to unfold the consequences of a new possibility which is currently repressed by the dominant order.’³⁴ Politics proper erupts only when an excluded group or class, the ‘part of no part’, demands to be included and must change the rules of inclusion and the established equilibrium. This kind of antagonism or ‘dissensus’ ‘is not a conflict of interests, opinions or, values; it is a division put in the “common sense”: a dispute about what is given, about the frame within which se see something as given.’³⁵ A new political subject is constituted, in excess of the hierarchised and visible group of groups, places and functions in society.³⁶ The inclusion of the invisible part overthrows the rules of the game and interrupts the natural order of domination. This is the political’s operation par excellence and reminds Alain Badiou’s event.

Based on this analysis, Rancière  argues, contra Arendt and Agamben, that rights do not belong exclusively to subjects or citizens. Those without rights can equally invoke them. Human rights move back and forth between abstract statements of principle and denial in practice. This dissonance allows the excluded to put the statements of principle to the test. Freedom and equality are not qualities people have; they are political predicates, the meaning and scope of which is the object of political struggles.

Rancière’s attempt to save human rights for radical politics is ingenious but problematic. Rights have become the main stake and tool in the routine ‘politics of consensus’ Rancière denounces. The evolution of rights from inscriptions of constituent power to central expressions of the established juridico-political order has all but removed their radical edge. They stabilise inter-subjective relations by giving minimum recognition to multiple identities; they codify the liberal ideology of limited freedom and formal equality; they express and promote individual desire turning them into the litmus test of freedom (of choice).  Most right claims reinforce the established social order. First, they accept the established balance and aim to admit peripherally new claims or claimants. Secondly, they turn law into the gatekeeper and protector of the social order transforming the political claim into a demand for admission to the law. Law transforms social and political conflict into a set of technical problems regulated by rules and hands them over to rule experts. In this sense, rights express and promote established political arrangements and socio-economic distributions and belong to domain of police. The rights claimant is the opposite of Rancière’s political subject whose task is to transform radically the overall balance.

Successful human rights struggles marginally re-arrange social hierarchies and mildly re-distribute the social product. Right-claims bring to the surface the exclusion, domination and exploitation and the inescapable strife that permeates social life.  But at the same time, they conceal the deep roots of strife and domination by framing struggle and resistance in the terms of legal and individual remedies which, if successful, lead to small improvements and marginal re-arrangements of the social edifice. Rancière seems to agree that ‘these liberties each person has are the liberties, that is the domination, of those who possess the immanent powers of society. It is the empire of the law of the accumulation of wealth.’³⁷ Human rights promote ‘choice’ contra freedom, conformism versus imagination. Children are given rights against their parents, patients, students and welfare recipients are termed ‘customers’ and are offered consumer rights and fake ‘choices.’ In western capitalist societies, freedom and choice have become the mantra of politics. Rights have become rewards for accepting the dominant order but they are of little use to those who challenges it.

Rancière’s ‘excessive’ subjects, who stand for the universal from a position of exclusion, have been replaced by identity and social groups seeking recognition and limited re-distribution. The excluded have no access to rights which is foreclosed by political, legal and military means. Economic migrants, refugees, prisoners in the war on terror, torture victims, inhabitants of African camps, these ‘one use humans’ attest to the ‘inhuman’ in the midst of humanity.  They are the indispensable precondition and proof of the impossibility of human rights. The law not only cannot understand the ‘surplus subject’, its operation prevents its emergence. At that point we send them abroad ‘along medicines and clothes, to people deprived of medicine, clothes and rights.’³⁸ As Wendy Brown put it, rights not only ‘mask by depoliticising the social power of institutions such as private property or the family, they organise mass populations for exploitation and regulation’.³⁹ The dark side of rights leads to the inexorable rise in surveillance, classification and control of individuals and populations.

7. The French Declaration created a dual normative legacy. First, ‘people are born free and equal’; second, there is a (moral and legal) right to resistance and revolution. The equality maxim can be interpreted in three ways. Jeremy Bentham, following Edmund Burke, insisted that read as constative the Declaration is hopelessly misleading, a false and illegitimate passage from a false is to an invalid ought. The human child is not born free but weak, vulnerable, utterly dependent for survival. Similarly, the infant is not born equal but inferior, pathetic, subjected to others. Natality throws us in a world not of our choosing. The accidents of class, race, gender etc befall and inscribe us into hierarchies, conditions and determinations. Dike determines being.

Liberal legal philosophy interprets the statement as a regulative principle with limited illocutionary force. Men are not born but ought to become free and equal. The state of un-freedom and inequality necessitates the intervention of political and legal institutions. Yet ‘even where it is recognized, the equality of ‘men’ and of ‘citizens’ only concerns their relation to the constituted juridico-political sphere.’⁴⁰ Liberal orthodoxy uses institutional (legal, political, military) means to spread limited freedom and formal equality. This is the basis of ‘equality’ legislation with its marginal effects as well as of the war on Iraq. The critique of ideology compellingly shows why the normative reading was doomed to fail. Techne acts as dike’s palliative.

Communism reads equality in conjunction with the right to resistance and revolution. The French and the Russians placed the idea of equality on the world stage through their self-authorising revolutions. The techne of revolution confronted the pre-modern dike of world. But legal equality has reproduced the gap between rich and poor. Equality of opportunities means that outcomes on the output side will closely follow the differential inputs. Inequality created in the name of equality is an extreme symptom of contemporary adikia; it fuels the sense of injustice, revives the dormant right to resistance and ferments the techne of rebellion. Communism’s normative call, which educates militants, results from the failure of the promise of equality. It turns equality from a conditioned norm into Badiou’s unconditional axiom: People are free and equal; equality is not an objective or effect but the premise of action.⁴¹ Whatever denies this simple truth creates a right and duty of resistance. Late modern adikia pits the performative of axiomatic equality against its pale regulative version. ‘The subject is only partially the subject inspired by the event…social agents share, at the lever of a situation, values, ideas, beliefs, etc. that the truth…does not put entirely into question.’⁴² Axiomatic equality motivates militant subjects in late modernity.

The law rejects and deletes the right to resistance and revolution. Yet, it keeps coming back like the repressed. Most modern states were founded against the protocols of constitutional legality. They are the result of revolution, victory or defeat in war, colonial occupation or liberation. Revolutionary violence suspends law and constitution and justifies itself by claiming to be founding a new state, a better constitution and a just law to replace a corrupt or immoral system. It appeals to a right to revolution which, while uncodified, accompanies like a ghostly shadow every established order. At the point of its occurrence, the uprising is condemned as illegal, brutal, evil. But when it succeeds, it is retrospectively legitimized as a social palingenesis and as expression of the eternally returning right to rebel against injustice.

The founding violence is re-enacted in distorted forms in the great pageants celebrating nation, state or regime; or, is repressed in acts of enforcement of the new law and interpretation of the new constitution. The French revolution was retrospectively legitimized by its Declaration des droits de l’homme, the American by the Declaration of Independence and the Bill of Rights. These documents carry the constituent violence of their foundations, even though they have concealed them under the constituted representations and interpretations. Behind every legislative and executive act of the state lies a ‘right to law’ based on the constituent force that inaugurated the legal system.  Similarly, law’s reluctant acceptance of a limited right to protest and strike acknowledges that the right to revolution cannot be eliminated even if it is written out of the constitution.

Public disorder and insurrections are subjective responses to the adikia of law and symptoms of its repressed foundations. They are routinely condemned by the ruling order as undemocratic. This happened recently during the miners strike, the anti-globalization demonstrations, the Greek campaigns against the neo-liberal reforms. Yet, history is full of insurrections and riots which, condemned as they were at the time, changed constitutions, laws and governments. Protests mostly challenge Benjamin’s conserving violence of law, breaking public order regulations in order to highlight greater injustices. As long as the protesters ask for this or that reform, this or that concession however important, the state can accommodate it. What the state fears is the fundamental challenge to its power by a force that can transform the relations of law and present itself as having a right to law. This ‘right to law’, based on the retrospective legitimation of origins, supports state action; by the same token, it remains vulnerable and subject to challenge since it exposes the violent foundations of the state and the repressed and ghostly right to revolution.   This right is the impossible and forbidden kernel of law, the real that sustains normal legality and rights. It always returns like the repressed.

The same applies to the axiom of equality. The formal equality of rights has consistently supported inequality; axiomatic or arithmetic equality (each counts as one in all relevant groups) is the impossible boundary of rights culture.⁴³ As Badiou put it, ‘anyone who lives and works here, belongs here.’⁴⁴ It means that healthcare is due to everyone who needs it, irrespective of means; that rights to residence and work belong to all who find themselves in a part of the world irrespective of nationality; that political activities can be freely engaged by all irrespective of citizenship and against the explicit prohibitions of human rights law.⁴⁵

Paraphrasing Badiou, we can conclude that rights are about recognition and distribution amongst individuals and communities; except that there is a right to revolution. The right to resistance/revolution against what denies the axiom of equality forms the normative maxim of the communist idea.  The combination of equality and resistance projects a generic humanity opposed both to universal individualism and communitarian closure. The universalist claims that cultural values and moral norms should pass a test of universal applicability and logical consistency and often concludes that if there is one moral truth but many errors, it is incumbent upon its agents to impose it on others.   Communitarians start from the obvious observation that values are context-bound and try to impose them on those who disagree with the oppressiveness of tradition. Both are versions of humanism which, having decided what counts as human, follow it with a stubborn disregard and find everything that resists them expendable.

The individualism of universal principles forgets that every person is a world and comes into existence in common with others, that we are all in community. Being in common is an integral part of being self: self is exposed to the other, it is posed in exteriority, the other is part of the intimacy of self. Being in community with others is the opposite of common being or of belonging to an essential community. Most communitarians, on the other hand, define community through the commonality of tradition, history and culture, the various past crystallisations whose inescapable weight determines present possibilities. The essence of the communitarian community is often to compel or ‘allow’ people to find their ‘essence’, common ‘humanity’ now defined as the spirit of the nation or of the people or the leader. We have to follow traditional values and exclude what is alien and other.

From the communist perspective, humanity has no foundation and no ends, it is the definition of groundlessness. Its metaphysical function lies not in a philosophical essence but in its non-essence, the incessant surprising of the human condition and its exposure to the event that radically changes the world. Revolution and equality are brought together by the eternal dialectic of adikia, the confrontation of techne and dike. Alain Badiou argues that the idea of communism helps prepare ourselves, our family and friends for the surprise of the event, for new possibilities out of the impossible.⁴⁶ Yet no idea of communism and no theory of justice can achieve this without the warm grip of injustice. Outrage at injustice and the decision to confront it can only develop against the claims to order (dike), which today include rights and (formal) equality. Revolutionary equality is both the rejection and the sublation of rights culture.

The neo-liberal state combines the functions of capitalist enterprise and muscleman for the market. The adikia hypothesis and the communist response with its centrality of the enduring struggle between techne and dike, cannot wait for the withering away of state and law. Communism cannot survive if it abandons its opposition to the capitalist state. But generic communism exists also in the here and now, when militants resist in Latin favellas, French banlieus or the Athens streets proclaiming the equal singularity of all against the unequal differences sanctioned by the state. Its action revives the right to dissent and rebellion as the highest form of freedom. In the process, rights change from individual entitlements and possessions to a new conception of ‘being in the right’ or ‘right-ing being’:⁴⁷ giving equally to each what is due to all. It may be that only the idea of communism can save rights.

Costas Douzinas is Professor of Law and Director of the Birkbeck Institute for the Humanities, University of London

• 1
  Claude Lefort, The Political Forms of Modern Society, Cambridge: Polity, 1986; Etienne Balibar, ‘Citizen Subject’, in E. Cadava, P. Connor and J. L. Nancy (eds.) Who Comes after the Subject (New York, Routledge, 1991); ‘The Rights of the Man and the Rights of the Citizen’, in Masses, Classes, Ideas: Studies on Politics and Philosophy before and after Marx (J. Swanson trans.) (New York Routledge, 1994); Jean-Francois Lyotard, ‘The Other’s rights’, in On Human Rights Stephen Shute and Susan Hurley (eds.) (New York, Basic Books, 1993); Jacques Rancière ‘Who is the Subject of the Rights of Man?’ in Ian Balfour and Eduardo Cadava, And Justice for All?, 103: 2/3 South Atlantic Quarterly (2004) 297.
• 2
  Alain Badiou, Ethics (Peter Halward trans.) (London, Verso, 2001)
• 3
  Slavoj Zizek, The Ticklish Subject (London, Verso, 1999), 215-228; The Fragile Absolute (London, Verso, 1990) 54-69, 107-1.
• 4
  Michael Hardt and Antonio Negri, Empire (Harvard University press, 2000) 393-414.
• 5
  Costas Douzinas, Human Rights and Empire (Routledge, 2007), Chapters 1 and 12.
• 6
  Costas Douzinas, The End of Human Rights (Oxford, Hart, 2000).
• 7
  Karl Marx, On the Jewish Question’, in Early Texts (Oxford Blackwell, 1971) 102.
• 8
  Karl Marx, ‘Critique of the Gotha Programme’ in Selected Writings (David McLellan ed,), (Oxford: Oxford University Press, 1977) 569.
• 9
  Jewish Question, 104.
• 10
  Karl Marx , ‘The Class Struggle in France: 1848 to 1850’, 88.
• 11
  Bloch’s combination of utopianism, interest in natural law and qualified support for the communist states meant that he did not feature in the pantheon of western Marxists, despite his affinity with Walter Benjamin and the Frankfurt School. See Vincent Geoghegan, Enrst Bloch, London: Routledge, 1996 and J. O. Daniel and T. Moylan eds, Not Yet: reconsidering Ernst Bloch, London: Verso, 1997.
• 12
  Richard Tuck, Natural Rights theories, Cambridge: Cambridge University Press, 1979, Chapter 1.
• 13
  Ernst Bloch, Natural Law and Human Dignity (Dennis Schmidt trans) (Cambridge Mass., MIT Press, 1987), 217.
• 14
  ibid., 191.
• 15
  Peter Halward, ‘Introduction’ in Halward ed., Think Again: Alain Badiou and the Future of Philosophy (London, Continuum, 2004), 17.
• 16
  Ernesto Laclau, ‘An Ethics of Militant Engagement’ in Peter Halward op.cit., 134, 135.
• 17
  This translation combines elements from a number of translations emphasising both the ontological and normative character of the fragment with its abundance of terms such as dike, adikia and tisis (reparation). Nietzsche in his early Philosophy in the Tragic Age of the Greeks translates: ‘Whence things have their origin, they must also pass away according to necessity; for they much pay the penalty and be judged for their injustice according to the ordinance of time. Hermann Diels translates ‘but where things have their origin, there too their passing away occurs according to necessity; for they pay recompense and penalty to one another for their recklessness, according to firmly established time’ (Fragment of Presocratics quoted in Heidegger op.cit. at 41). Finally J. M. Robinson, translates as ‘Into those things from which existing things have their coming into being, their passing away too, takes place according to what must be; for they make reparation to one another for their injustice according to the ordinance of time’, An Introduction to Early Greek Philosophy (Boston: Houghton Mifflin, 1968), 34. Martin Heidegger, ‘The Anaximander Fragment’ in Early Greek Thinking ( D F Crell and F Capuzzi transl.) (New York: Harper and Row, 1975) examines the various (mis)translations of the fragment.
• 18
  Ibid. 41.
• 19
  Jacques Derrida, Spectres for Marx: The State of Debt, the Work of Mourning and the New International (New York, Routledge, 1994), 23-9.
• 20
  Jean-Francois Lyotard in Heidegger and the ‘jews’ (A. Michel and A. Roberts trans.) (Minneapolis, University of Minnesota Press, 1990); S. Ross, Injustice and Restitution: The Ordinance of Time (New York: State University of New York Press, 1993), 4. See also a superb exegesis of Heidegger’s text in Jacques de Ville, ‘Rethinking of the notion of a “higher law”: Heidegger and Derrida on the Anaximander fragment’, 20 Law and Critique 59-78 (2009).
• 21
  Heidegger discusses the Ode on Man in Introduction to Metaphysics (R. Mannheim trans.) (New York, Doubleday Anchor, 1961), 155 ff.
• 22
  ibid. 163.
• 23
  Stephen Ross, Injustice and Restitution (SUNY Press, 1993) 10.
• 24
  ‘That is what is unjust. Not the opposite of the just, but that which prohibits that the question of the just and the unjust be, and remain, raised’, Jean-Francois Lyotard, Just Gaming (W. Godzich trans. Manchester, Manchester University Press, 1985), 66-7. Derrida’s ‘indeconstuctibility’, ‘incalculability’ and unconditionality of justice leads to the same conclusion. Justice is always to come, but we do not know its nature and cannot theorise it besides proclaiming its radical otherness.
• 25
  J.-F. Lyotard, ‘A l’ Insy (Unbeknownst) in Miami Theory Collective ed. Community at Loose Ends, Minnesota University Press, 42-8, 46.
• 26
  ibid., 44,43.
• 27
  Slavoj Zizek, For they know not what they do (Verso, 2008) 101.
• 28
  Michel Villey, Le droit et les droits de l’homme (Paris, PUF, 1983), 118-25.
• 29
  Norberto Bobbio, The Age of Rights (Cambridge, Polity, 1996), 88 quoting Mirabeau.
• 30
  Immanuel Kant, The Metaphysics of Morals (Cambridge University Press; 2^nd edition, 1996) 162. See also Stathis Kouvelakis, Philosophy and Revolution (Verso, 2008).
• 31
  Douzinas, The end of human rights (Oxford, Hart, 2000), Chapters 10 and 11.
• 32
  Chantal Mouffe, On the Political (London, Routledge, 2005), 8-9
• 33
  Jacques Rancière, Disagreement (Julie Rose trans.) (Minneapolis, University of Minnesota Press, 1998); On the Shores of Politics (Liz Heron trans.) (London, Verso, 1995); ‘Who is the Subject of the Rights of Man?’ in Ian Balfour and Eduardo Cadava, And Justice for All?, 103: 2/3 South Atlantic Quarterly (2004) 297.
• 34
  Alain Badiou, ‘The Communist Hypothesis, 49 New Left Review (2008).
• 35
  Rancière, ‘Who is the Subject of Human Rights’ op. cit., 304.
• 36
  For the obvious links and some differences between Badiou’s and Rancière’s theory of politics, see Badiou, Metapolitics (London, Verso, 2005), Chapters 7 and 8 and Rancière in present volume.
• 37
  Jacques Rancière, Hatred of Democracy (London, Verso, 2006) 57.
• 38
  Rancière, Subject, op. cit., 307.
• 39
  Wendy Brown, States of Injury (Princeton, Princeton University Press, 1995), 99.
• 40
  Rancière, Hatred, 57.
• 41
  Alain Badiou, Metapolitics (Verso, 2005) Chapters 6,7 and 8.
• 42
  Ernesto Laclau, ‘An Ethics of Militant Engagement’ in Peter Halward op.cit., 134, 135.
• 43
  Badiou, ‘Truths and Justice’ in Metapolitics, 96-106.
• 44
  Quoted in Jason Barker, ‘Translator’s Introduction’ in Alain Badiou, Metapolitics, xv.
• 45
  Art 19 of ECHR bans foreigners from exercising political rights.
• 46
  In this book
• 47
  Costas Douzinas, The end of human rights, 209-216.