The Self, Ethics & Human Rights

Joseph Indaimo

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317805854
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores how the notion of human identity informs the ethical goal of justice in human rights. Within the modern discourse of human rights, the issue of identity has been largely neglected. However, within this discourse lies a conceptualisation of identity that was derived from a particular liberal philosophy about the 'true nature' of the isolated, self-determining and rational individual. Rights are thus conceived as something that are owned by each independent self, and that guarantee the exercise of its autonomy. Critically engaging this subject of rights, this book considers how recent shifts in the concept of identity and, more specifically, the critical humanist notion of 'the other', provides a basis for re-imagining the foundation of contemporary human rights. Drawing on the work of Jacques Lacan and Emmanuel Levinas, an inter-subjectivity between self and other 'always already' marks human identity with an ethical openness. And, this book argues, it is in the shift away from the human self as a 'sovereign individual' that human rights have come to reflect a self-identity that is grounded in the potential of an irreducible concern for the other.

Chapter 1 Tracing the subject

DOI: 10.4324/9781315814896-2

Introduction

It is perhaps inconceivably ironic (perhaps even impossibly ignorant) that many practitioners and participants in our contemporary human rights discourse lack a deep understanding of the philosophical underpinnings of our modern rights. And yet even at the inception of one of the most important modern human rights documents, one of the more significant contributors to the drafting of the Universal Declaration of Human Rights, the Canadian delegate to the United Nations John Humphrey, was adamant that the Declaration was “based on no philosophy whatsoever.”¹ Yet despite these protestations there is a certain philosophical doctrine behind our current human rights law – a notable philosophical tradition on the nature of being and human identity – which underscores how we conceive and construct, understand and speak of, rights. The assumption of what it is to be human which resides in our contemporary rights discourse is often lost in the good-willed urgency and intentions of educators and activists, focussed on the notion of universality as a means to attempt the possibility of enabling others and all to share in such rights. And just as this philosophy of being within modern rights is obscured, so too are the architectural implications and limitations of how we conceive and construct (how we talk and act about) rights rarely fully critiqued and questioned.

¹ John Humphrey was the author of the first draft of the Universal Declaration on Human Rights and the first Director of the United Nations Division of Human Rights, as well as a Canadian legal scholar. Refer to Glendon, M.A. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. Random House, New York, (2001), at 58; in Simmons, W.P. Human Rights Law and the Marginalised Other. Cambridge University Press, Cambridge, (2011), at 4.

It is not necessary for my task in this book to give a full account of the evolution of the concept of human rights and the constituting philosophical tradition of such rights. There are a number of contemporary texts which give a detailed outline of this history – including the works of Douzinas, Tierney and Herbert, to name a few.² Broadly speaking, this is a tradition that progresses from Western pre-modern natural law, through to the European Enlightenment’s thesis on natural rights, and its tenets of liberal humanism with its focus on the autonomous individual, and which finally moves into today’s law of universal human rights, as expressed through our contemporary human rights discourse.³ My interest and focus is not on such an historical account, but rather, on the shifts in the conceptualisation of human identity within the discourse of human rights and, thus, the substance of rights involved with such identity; to identify certain shifts in the philosophy of the nature of being which is now assumed (subsumed) within our contemporary human rights discourse. Beginning with a brief consideration of pre-modern natural law, this aim necessarily leads to a focus on the period of the European Enlightenment and upon a particular tradition of liberal individualism, and the social contract doctrine, which emerges from the history of humanism. Thinkers such as Hobbes, Locke, Rousseau and Kant signpost a transition in the Western philosophy of being, and mark a categorical shift in its thinking on human identity and what rights it holds. Here, human identity is marked with independent, autonomous capacities to be, free from the limits of the previous pre-modern strict social hierarchies. And rights are re-conceptualised as radical tools against the State in the name of the (individual) power to be. It is this Western tradition which has had such a significant impact upon our understanding of the identity of the human subject in our contemporary human rights discourse and the content of rights which such an identity invokes.

² Refer to Douzinas, C. The End of Human Rights: Critical Legal Thought at the Turn of the Century. Hart Publishing, Oxford, (2000); Tierney, B. The Idea of Natural Rights. Scholars Press, Atlanta, (1997); Herbert, G. A Philosophical History of Rights. Transaction Publishers, New Brunswick, (2003). ³ Refer to Finnis, J. Natural law and Natural Rights. Clarendon Press, Oxford, (1980); Strauss, L. What is Political Philosophy. University of Chicago Press, Chicago, (1988), for a discussion on the link(s) between pre-modern, modern and contemporary human rights.

This (philosophical) tradition of this concept of the individual and the autonomous, self-centred nature of its rights has received much criticism over time. Hence, I conclude this chapter with an outline of Marx’s critique of the prevalent human rights discourse of his own contemporary time, the rights of man thesis. This critique of Marx is important because such a critique still holds significant relevance and insight to our own contemporary understanding of human rights and the deconstruction of (the philosophy of) being, behind the identity of the human of such rights. It is such insights which have significantly influenced the post-discourses’ own deconstruction and critique of contemporary human identity and subjectivity and the expansion of the notion of rights in our own modern times.

The pre-modern predicament

Before the European Enlightenment, the idea of human rights was not known as we know it today. What was right, just and ethical, and what was a right of the individual, in the pre-modern ancien régime of Greece and Rome was that which accorded with nature and the notion of natural law and “naturale ius” (natural justice). Generally, the concepts of natural law and rights emanated from an understanding of nature – the cosmos – as a balanced harmony in the unity of the fundamental forces in nature. It was this notion of a natural balance which informed the idea of what was naturally right, ethical and just and was the natural general law and general justice to guide specific human society. This general law and justice of nature was a type of pre-historical/a-historical myth of unwritten laws distinct and separate from man-made, particular law.⁴ This cosmological balance was organised and arranged through a hierarchy of perfect harmony revolving around the notion of telos or purpose/end. Everything in nature had a purpose and it was the telos of each entity which determined its place in the whole. What was right and just was whatever contributed to and facilitated the movement towards this ideal teleological end and the natural, balanced harmony amongst all things.

⁴ Aristotle calls natural law general law/justice and distinguishes it against particular law/justice, which is human made, local law. Refer to Aristotle, Nicomachean Ethics. (trans. H. Rackham), Harvard University Press, Cambridge, (1962); Aristotle, The Art of Rhetoric. (trans. H.C. Lawson-Tancred) Penguin, London, (1991). Note, in this chapter I have chosen to write in the gender-specific language of the period and use the term man, rather than use more contemporary gender-neutral language.

In the same light as the balance in nature, natural law also dictated that the pre-modern community was considered its own natural whole, which in turn was part of the greater harmonious whole of nature, with a purpose of natural balance and harmony in itself. In this balance of community, humans were not conceptualised – that is, the contemporary philosophy of being and notions of human identity did not conceive humans – as isolated (autonomous) individual personalities and, thus, did not have individual human rights as such. An individual was a member of a larger, established group or community (a polis), beyond their own intimate, autonomous self, and rights were privileges of membership in the community. Like nature itself, every individual had a telos and purpose and the rights of each subject reflected their purpose. Thus, the essence of each being, the identity of each human subject, was tied to its telos and potentiality for growth towards its telos within the community, rather than invested in its own individually autonomous sense of being and personal identity. Reflecting nature, society and community was arranged into hierarchical structures of class and categories ordered under God, nature and/or a divine Royal. For example, there were the social hierarchies found within the great chain of being and the divine cosmos. Or the social structures enforced by the feudal system’s pyramid of power. Similar to the modern Indian caste system, such communal structures of natural hierarchy organised different social positions, different roles and different rights for individuals in different classes and categories, in order to facilitate the teleological end of each subject and the greater community as a whole. Every individual was impressed into a different class/category within the hierarchy of community – a different social station with a different teleological trajectory and a different human value. It was the moral virtue – that is, it was a life of honour – of an individual to live a good life according to his/her pre-ordained purpose and station, to fulfil the potential of their human identity and beingness as marked by pre-arranged classes and categories. This natural law of teleological signification was the natural, moral binding of community and constraint upon the individual and their potential human identity to the limits of their station in life. Thus, through pre-modern natural law, one’s natural value and worth (one’s dignity), one’s own very identity, was beyond one’s autonomous will, and one’s rights were limited to pre-established social structures.

With such natural law, the task of man-made, particular law was to promote a type of proportional and distributive justice, to reflect the natural law’s balance and to harmonise the community. The task of law was to reach a just and ethical outcome – a balanced response – in the distribution of goods, benefits, burdens, rewards, rights and duties, etc., in accordance with the natural hierarchical structures of the community. This was a justice which worked within the particular circumstances of the specifics of the people in community, working in the concrete particulars of disputing citizens to reach a just and ethical – a balanced – outcome for the parties and the community, based upon their differing stations and roles, rights and duties.⁵

⁵ Tuck, R. Natural Rights Theories. Cambridge University Press, Atlanta, (1979), at 37.

But in addition to structuring society into a balanced whole and promoting a justice of ethically balanced distributions amongst classes of people, natural law also had another important purpose. As it was pre-history and beyond man, natural law was a regulatory principle beyond law and State, from which to interrogate and judge law and State. That is, natural law was also an “objective”, external source from which to critique and measure human society and law. Natural law was the pre-original and pre-human ethical and moral marker, which measured man and State, sovereign and law, from the teleological point of fair distribution and fair treatment of/for the human individual, human society and nature at large. This role of natural law is perhaps best illustrated in Sophocles’s play, Antigone,⁶ in which Antigone wishes to bury her brother against the commands (the man-made laws) of the King, Creon. She justifies her actions on the basis of natural law: “Nor did I think your orders [Creon’s orders] were so strong that you, a mortal man, could over-run the Gods’ unwritten and unfailing laws. Not now, nor yesterday’s, they always live, and no one knows their origin in time.”⁷ Significantly, in characterising natural law, Antigone is not claiming a personal right, her own individual human right, nor a right in a particular written, man-made law. The right she claims is not a legal right for her own benefit of being, but rather, something beyond the limits of the law. It is an ethical right – what is right, what is just, beyond written law; a right to claim personally what is just and fair for all concerned – Antigone herself, her brother, and even Creon in the specific circumstances. It is a claim to an eternal, natural and divine (ethical) right, separate from (and superior to) human law, and which may be legitimately called upon and used against the dictates of the State, the sovereign and human law.

⁶ Refer to Sophocles’s Antigone, in Grene, D. and Lattimore, R. (ed.) The Complete Greek Tragedies, Volume III, Sophocles I: Oedipus the King; Oedipus at Colonus; Antigone. (trans. E Wyckoff), Modern Library, New York, (1954). Significantly, this is not only a story of a moral and ethical duty beyond man made laws (the story of Antigone), but also, a lesson in the dangers of individuali...

Table of contents

• Cover Page
• Halftitle Page
• Title Page
• Copyright Page
• Table Of Contents
• Dedication
• List of abbreviations
• Introduction: rights claims and counter-claims: a clash of discourses
• 1 Tracing the subject
• 2 Modern human rights and postmodern agency
• PART A Lacan’s subject-of-lack
• PART B Levinas’s subject for-the-other
• Bibliography
• Index