Human Rights – Not All That Universal

The intellectual hegemony that the proponents of the human rights ideology claim to exert has made us somewhat forget that it was vigorously contested in 1948.

In the opinion of a good number of political commentators, the moralization and ideologization of human rights has led to formidable abuses. Contrary to the international diplomatic tradition of negotiation and dialogue, the concept of human rights is nowadays widely used to exclude, ostracize, or humiliate adversaries.

Since the 1990s, nothing has proven more dangerous to stability and world peace than the Manichaean precept of, “human rights or chaos.” A key element of the new globalist Bible (along with individualism, consumerism and multiculturalism), human rights have become a sort of Trojan horse for Western military interventionism.

This risk had been anticipated by the most prestigious intellectuals in the immediate post-war period. Gandhi, Harold Laski, Benedetto Croce, Emmanuel Mounier and many other thinkers from all walks of life, were severe, or at least reserved, when drafting the Universal Declaration of Human Rights (UDHR) of 1948. They did not question the uniqueness of human nature, but challenged the unreal or Utopian nature of the universality of human rights. A critical attitude, widespread at the time, is today ignored or overlooked by the mainstream media.

The profusion of texts published on the occasion of the preparation of the Universal Charter, adopted by the General Assembly of the United Nations – in Paris, at the Palais de Chaillot – on December 10, 1948, deserves an in-depth analysis. We will limit ourselves here to recalling the main philosophical and legal objections, which were made during the drafting project, before presenting a choice of edifying reflections and testimonies.

The first step is to destroy a myth. The French Revolution was not the “founding event” of democratic modernity on a planetary level; it was only a case in point. It takes gross ignorance or bad faith to identify the ideas of democracy, liberalism and human rights with those of 1789.

The liberal economist, Wilhelm Röpke, wrote precisely on this subject: “Democratic and liberal history can claim dates that are much more convincing than 1789.” To be convinced, in addition to evoking the role and place of local assemblies in the Middle Ages, we can list a host of dates that have been forgotten or passed over in silence.

We can indeed evoke the Cortes of Leon of 1188, the Catalan Cortes of 1192 (in the Iberian Peninsula); the Magna Carta of 1215 (in England); the Golden Bull of 1222 (in Hungary); the Swiss Federal Charter of 1291, the general Swedish code of King Magnus Erikson (around 1350); the Dutch Federation of 1579; the Petition of Right of 1628 (in England), the Mayflower Compact (of the Pilgrim Fathers of America) of 1620; the Bill of Rights of 1689 (in England); the Declaration of independence of 1776 (in the United States of America); the Constitution of the United States of 1789 with its famous amendments; the Swiss Federal Constitution of 1848 and 1874, and so on. Unlike the French Revolution of 1789, these dates do not mark breaks, but stages of a slow and progressive evolution.

A brief historical reminder helps to break a second myth. A certain French chauvinism leads to claim that the Universal Declaration of Human Rights is directly inspired, on the initiative of René Cassin, by the Declaration of Human and Citizen Rights of 1789. A similar reading leads the Americans to claim the model of their own Declaration and the “motherhood” of Eleanor Roosevelt.

The reality is much more complex because the contributions are multiple. The history of this text teaches us that very many personalities from countries as different as Australia, Canada, Chile, China, the United States, France, India, Lebanon, the Philippines, the United Kingdom and the USSR actively participated in its design. Among the eighteen members, who made up the Human Rights Commission, chaired by Eleanor Roosevelt, eight were on the Drafting Committee responsible for drafting the preliminary text.

Among them, the Canadian John P. Humphrey, the Chilean Hernán Santa Cruz, the Chinese Peng Chung Chang, the French René Cassin, the Indian Hansa Mehta, the Lebanese Charles Malik, and the Filipino Carlos Rómulo.

Debates in the Commission and in the Committee saw deep philosophical and ideological differences when the Cold War began. The rights of women and ethnic minorities, freedom of religion, the right to property, the importance of individual rights, the place that should be given to economic and social rights, the freedom to contest, the concepts of duty and of responsibility, and finally, the role of the State – all proved to be formidable stumbling blocks. In the compromise, finally adopted in 1948, it was the western, liberal and individualist conceptions which prevailed.

As the past few decades have shown, human rights are written in history and vary in time and space. Several international declarations have been adopted, emphasizing the relative and evolving nature of each. This was the case with the European Convention on Human Rights of 1950 and the Additional Protocol of 1953. In 1966, two international covenants supplemented and corrected the Declaration of 1948, introducing the rights of peoples, minorities, women, the concept of duty and the concept of cultural heritage of humanity.

Then, there were the Pacts and the Program of Action of the World Conferences in Vienna (1993) and Durban (2001), the Declarations of UNESCO (notably the Universal Declaration on Cultural Diversity of 2001), and the International Labor Organization (ILO), without forgetting the charters adopted at the regional level (Africa, Asia, Pacific, Latin America, Arab and Muslim world). Thus, a declaration of human rights in Islam, under the influence of sharia, was adopted in 1990 in Cairo by the Organization of Islamic Cooperation.

All of these texts have tried to take greater account of the diversity of cultures. All have rewritten, amended and outgrown the 1948 Universal Declaration, which can no longer be viewed as the sole reference.

Human rights are a concept according to which all human beings have universal and inalienable rights, whatever their nationality, ethnicity or religion. These rights, which aim to protect the dignity of the individual, are enforceable in all circumstances against society and the State.

But the origin, validity and content of human rights are a constant subject of debate. The most diverse personalities and authors, such as, Bentham, Burke, Marx, or the popes who preceded John XXIII and Paul VI, to name but a few, underscored these rights’ specious, impracticable, contradictory, ethnocentric and Utopian character.

Legions of historians, theologians and philosophers of law have criticized their alleged universality and their ideological character. They have shown that, under the guise of granting infinite satisfaction to all, the system works exclusively for the benefit of the few.

Theologians regard these rights as a political instrument in the hands of the powerful. Marxists denounce class rights within them. Historians and geopoliticians commonly see them as a political weapon, a means for powerful nations to maintain their domination or the status quo. Jurists often argue that the law presupposes a relationship between men, an objective factor external to the person, while human rights derive only from man himself, from his nature.

Many, finally, denounce the erroneous vision of an individual barricaded in his sovereignty, when the person must be considered within the framework of a social group (family, ethnicity, nation, religion) strongly bound by social duties and ethical norms.

On a metaphysical and religious level, it has been possible to criticize human rights for being based only on man, instead of being founded first on the rights of God. This is how we usually oppose the American Declaration (1776), which intended to transcribe and proclaim the rights conferred by the creator and legislator God, to the French Declaration (1789), which founds human rights on human will and ignores God.

For sociologists, the ideology of human rights considers the sovereign individual, locked in his citadel of inalienable rights and more important than his community of belonging, as the ultimate goal of political association. Faced with the “natural” aspiration of men to obtain universal, absolute and abstract “rights,” cultural traditions are secondary, incidental, even illegitimate.

Moreover, these rights generally refer to the satisfaction of quantifiable needs. Finally, the ideology of human rights considers that a world organization, conceived as a last resort, is always preferable to sovereign nations. All these principles implicitly assume the existence of a universal reason common to all men, a reason which, because of its universality, must prevail over the cultural and historical specificities of peoples.

Law historian and philosopher, Michel Villey, notes that “respect for the human person is not the invention of Kant or even of Christianity. There was no more exalted virtue in Rome than humanitas, which is both the duty to perfect human nature in oneself and to respect it in others.” Christian revelation undoubtedly exalts human dignity more, but the expression “human rights” remains absent in Christian literature.

The Spanish thinkers of the School of Salamanca (1483-1617), at the origin of the great concepts of modern public international law, ignore it and prefer to draw from the natural law of duties, obligations borne by individuals, rather than rights.

All of them extol the community values of solidarity and cooperation between human beings and against the individualist values of selfishness and competition. “Catholicism is not the cradle of human rights,” insists Villey. The papacy, until John XXIII, remained constant in its attitude of hostility to human rights. In fact, “human rights originate in a deviated Christian theology… They are the product of modern philosophy, hatched in the 17th century,” with Hobbes and Locke playing the founding roles here.

Michel Villey, therefore, points out that “Each of the alleged human rights is the negation of other human rights, and practiced separately generates injustices.” And again, “We have never seen in history that human rights were exercised for the benefit of all. The problem with human rights is that no one can participate, except to the detriment of certain men.”

For his part, the Spanish philosopher, Raimon Panikkar, specialist in the comparative history of religions, stresses that “human rights are a Western intellectual construction.” He further adds that “It is clear that the Declaration (of 1948) was constructed according to the prevailing historical currents of Western thought over the past three centuries, and in accordance with a certain philosophical anthropology, or a certain individualist humanism, which helped provide a rationale.”

The political scientist, specialist in ethnic and linguistic minorities, Joseph Yacoub, also notes that human rights are eminently culturally dependent and that they are dependent on political manipulation and instrumentalization: “Human rights actually vary from place to place and from time to time. The underlying values, freedom, equality, tolerance, non-discrimination, etc., are historically relative and evolving.”

France has known a succession of declarations since 1789. The Constitution of the United States, the oldest in force, has been amended twenty-seven times. The 1948 Universal Declaration was supplemented by a series of subsequent texts. The various nations, conglomerates of nations and international organizations of Africa, Asia and America have adapted human rights to their worldviews, thus demonstrating that the human person is perceived and protected distinctly according to civilizations and cultures.

It is often unknown that a good number of intellectuals, in particular French, such as Emmanuel Mounier, Jacques Maritain, Pierre Teilhard de Chardin, or Georges Gurvitch, in their time, severely criticized the excess of individualism and rationalism of rights human, their lack of reference to duties and obligations, their ignorance of the rights of natural communities born outside the State (the family, the nation, the economic and working communities, the international community), and finally, their silence on social and economic rights.

In 1947, UNESCO carried out an inquiry into “the theoretical problems raised by the drafting of an International Declaration of Human Rights.” A questionnaire was sent to various personalities from the member nations of the organization and a document was published on June 15, 1948, under the title, A Collective Approach to the Problems of Human Rights, preceded by a preface by Jacques Maritain. This “manuscript” contains the answers of Gandhi, Harold Laski, Teilhard de Chardin, Benedetto Croce, Aldous Huxley, Salvador de Madariaga, Emmanuel Mounier, Richard P. McKeon, E.H. Carr, Luc Somerhausen, and many others.

Among the responses published, many would today bring their authors the wrath of the censors of social welfare. Let us see what they say.

Mahatma Gandhi sneeringly objected: “I learned from my mother, illiterate but very wise, that all the rights worthy of being deserved and preserved are those which come from accomplished duty… One could show that any other right is only a usurpation for which it is not worth fighting for.”

The English historian of international relations, Edward Hallett Carr, said for his part that “No declaration of rights which does not also include a declaration of the corresponding obligations can have real meaning.”

Socialist theorist Harold Joseph Laski, former president of the British Labor Party (1945–1946), warned: “Any attempt by the United Nations to draw up a Declaration of Human Rights, based on individualist conceptions, would inevitably be doomed to failure… In fact, if a declaration of this kind does not take into account the important ideological differences which exist between political societies and their effects on individual and collective behavior, there will be nothing to gain and much to lose by formulating it… We do not have the right to awaken the hope of humanity, if we are not able to create the conditions without which this hope cannot be realized.”

The anti-fascist philosopher Benedetto Croce, founder of the Italian Liberal Party, was even more severe: “I do not even see how it could be possible to formulate a declaration which constitutes a compromise and that would not thus be meaningless or arbitrary. It may be that you and your colleagues, when you set to work, discover the futility and impossibility of this work, and even if I may say it, the danger of making readers smile at the naivety of men who have designed and formulated such a declaration.”

The Belgian lawyer, J. Haesaert, drove the point home: “The lawyers know very well that the laws are impotent without mores… In short, the essential is not the law, but the common conduct to which it is the adminicle… It is to prepare for new disappointments in seeking slogans rather than educating people: the spirit of good neighborliness would advantageously replace the most eloquent declarations of the world, and propagating it is a matter more of the educator than the lawyer.”

Cautious, Pierre Teilhard de Chardin declared that “the human races are not equal but different and complementary like the children of the same family.”

The Unitarian political scientist Quincy Wright, a professor at the University of Chicago, noted that human nature is the product of a particular culture. Consequently, “human rights must be stated taking into account their relativity.”

Censor of rationalism and individualism, Emanuel Mounier, suggested a “rectified draft declaration of human and community rights,” based on an investigation by the journal, Esprit, published in May 1945.

Philosopher Filmer Stuart C. Northrop, a professor at Yale University, warned: “A bill of rights for all countries cannot be based solely on the values and traditional ideological claims of one or the other.”

The Chinese philosopher, Chung-Shu Lo, developed the Confucian concept of human rights: “Man must fulfill his duties towards others rather than claiming rights. This is the moral foundation of social and political relations in China. The notion of mutual obligations is the essential teaching of Confucianism.”

The English journalist and novelist, Aldous Huxley, insisted on the importance of the economic rights of the most underprivileged.

The Bengali Muslim poet, philosopher and politician, Humayun Kabir, emphasized that “the Western conception of human rights has a fundamental flaw. Whatever these rights are, in theory, they are very often recognized, in practice, only by Europeans, and sometimes even by certain Europeans only.”

Indian thinker S.V. Puntambekar, professor at the University of Nagpur, warned: “Thinking only of liberties by neglecting the virtues which are their corollaries, would lead to an imbalance of life and to stagnation or even to degradation of personality as well as chaos and social conflicts.”

Neurophysiologist Ralph W. Gerard, President of the American Physiological Society, provided the biologist’s perspective: “Human rights and duties cannot be absolute, but always relate to the environment.” They are “a function of culture. Any doctrine which sees in man only the individual or the unit within the group, is necessarily false. The duality of man, both individual and element of society is inevitable.” Life evolves, and as a result “any declaration of rights will become imperfect at some point, and can only lose its value.”

The Australian anthropologist, Adolphus Peter Elkin, professor at the University of Sidney, points out: “Out of society, the individual would have no rights.” On the other hand, “all human rights are also relative, because they have for their origin and as a condition the necessities of common life, which shapes and nourishes personal life.”

In his preface to this survey, Jacques Maritain justified belief in human rights, but only as a “common ideology limited to the practical order.” He emphasized that “for peoples to agree on how to effectively enforce human rights, they should have in common… at least a practical conception of man and of life, a shared philosophy of life.”

And Maritain was forced to develop an absurd theory that in the area of human rights action precedes thought. Instead of trying to justify and define human rights, he said, “put them into practice and protect them.” As early as 1942, Maritain had published in New York a harsh criticism of the individualism of human rights, in which he said, “We ended up treating the individual as a god, and we gave him all the rights so that we might see him with absolute and unlimited rights of a god.”

In 1952, UNESCO published the famous brochure by Claude Lévi-Strauss, Race and History, which the latter finalized, almost twenty years later, with his conference, Race and Culture (1971), delivered at the headquarters of the same organization. On this double occasion, the famous anthropologist also manifested a singularly critical attitude towards the Western conception of human nature, “universalist and ethnocentric,” which is at the heart of the declaration of human rights.

There are so many texts, comments, reflections and arguments that are today “politically incorrect,” that the mainstream media has, for the long term or temporarily (?), swept under the rug.

Arnaud Imatz, a Basque-French political scientist and historian, holds a State Doctorate (DrE) in political science and is a correspondent-member of the Royal Academy of History (Spain), and a former international civil servant at OECD. He is a specialist in the Spanish Civil War, European populism, and the political struggles of the Right and the Left – all subjects on which he has written several books. He has also published numerous articles on the political thought of the founder and theoretician of the Falange, José Antonio Primo de Rivera, as well as the Liberal philosopher, José Ortega y Gasset, and the Catholic traditionalist, Juan Donoso Cortés

Translated from the French by N. Dass.

The image shows, “Flachsscheuer in Laren (Flax Barn in Laren),” by Max Liebermann, painted in 1887.

On Human Rights

First remark

Today, political correctness demands that we say in French droits humains [human rights] when we used to say droits de l’homme [rights of man]. This demand, which also occurs in other areas, is made because the French homme, like ‘man’ in English, does not distinguish between the human race and the male gender. German is better equipped, differentiating between Mensch and Mann. Latin distinguishes between vir and homo, Greek between anèr and anthropos, etc.

We could discuss the reasons for this. However, it is also important to note the introduction of another ambiguity. The adjective ‘human’ in French has a value that corresponds to the usual meaning we now give to the term ‘humanist’ and, more generally, to the moral qualities of ‘care’ (a word which has recently been imported unchanged from English into French), ‘compassion’ or ‘charity’.

The English language attributes this value to the word ‘human’, further ascribing to it a more specific term, ‘humane’. German has introduced, along with menschlish, the words human, humanitär, and Humanität as terms of ethical evaluation.

In other words, human rights can be seen as rights basking in the aura of humanity, since this term, in its currently impoverished and rather ridiculous sense, has taken on the meaning of a ‘love of mankind’ or ‘friendship’ (in French, this is the meaning frequently ascribed to philia).

Now philanthropy — which was actually a secular displacement of the ostensibly all too Christian charity — is based upon a more or less hidden axiom of condescension: it is the act of the rich, cultivated and dominant, who feel benevolence, compassion and pity for the social misfortune of others. For all that, philanthropists have never sought to challenge the social order, except in minor ways.

Philanthropy contains an implicit negation of the respect for the unconditional dignity of all human beings, which appears at the beginning of the Universal Declaration of Human Rights of 1948 (hereafter referred to as ‘Declaration’) and is repeated further on. It can even be said to represent an interpretation of dignity that is conservative, selfish and gushing with sentimentality.

Without arguing against the use of the term ‘human rights’, it is necessary to draw attention to the extent of its ambivalence. For whatever the term used, human rights are marked by a certain degree of philanthropy mixed with a promise of ‘social progress’, which is always linked to a ‘larger freedom’. In this sense, freedom prevails over social justice through the resonance, tone and emphasis of the text.

Moreover, the Declaration affirms that ‘the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.’ But what is proclaimed here and cannot be challenged should not be considered the ‘highest aspiration.’ One can and must think that freedom (of speech and belief) does not limit the aspirations of the common people [hommes].

It would not be wrong to say that the people can expect and want different things — engagements, collaborations, relations — things that are larger, infinitely larger and more, than freedoms. Being ‘free from fear and want’ is not the only reality of freedom; there are other stakes that lie beyond any human freedom. Spinoza, for example, who can hardly be accused of being inhuman or an enemy of freedom, considered ‘freedom’ to only exist as the freedom of the entire world (which he called ‘nature or god’).

The independence and autonomy of persons has a long way to go before it reaches its limits, if limits exist. Autonomy should be conceived in relation to the sense of existence, or more exactly, in relation to existence itself — of each, of all and of the world as sense.

Some will object, ‘What do you expect from a declaration of rights? You’re not considering the extent to which your words go beyond the predetermined sphere that constitutes a kind of minimum necessary to free humanity from oppression. You’re departing the realm of right for philosophy, if not for dreams or speculation.’

My response is that it is indeed necessary to enter a philosophical register since the text of the Declaration — and the huge body of texts inspired by it and by the defence of ‘human’ rights — carry an implicit or latent ideology that should be brought to light. In fact, this is the price to be paid in order to avoid the self-righteous inanity of such ‘rights’. The self-righteousness here is that of a ‘humanism’ of European origin, which one must always remember ‘does not think the humanitas of man high enough’, as Heidegger wrote.

Pascal, another European, said the same thing much earlier but in a different way: ‘Man infinitely surpasses man’. Pascal was a Christian. Heidegger, on the contrary, believed that he could find the force of re-foundation in an anti-Christian direction. Today, all these references are written off, and human rights float more or less on the surface of the ‘icy water of egotistical calculation’.

Second remark

The Declaration is based — as a declaration of rights, that is to say, as a juridical production or juris-dictio — on the following sentence:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

This is the third of seven ‘considérants’ (‘whereas’) after which the text proceeds with the actual declaration. The French text reads:

Considérant qu’il est essentiel que les droits de l’homme soient protégés par un régime de droit pour que l’homme ne soit pas contraint, en suprême recours, à la révolte contre la tyrannie et l’oppression.

We will pass quickly over the complex and fragile character of a proposition that seeks to avoid a resort to rebellion. It is clear that this resort is seen as something ‘compelled’ and that this compulsion can engender ‘tyranny and oppression.’ In 1948, in a text drafted by a committee of nine members whose political and intellectual composition calls for lengthy analysis, tyranny and oppression focused on the fascisms that had just been defeated.

In a sense, the Declaration is part of the general movement that, somehow nebulously, fosters the condemnation of ‘fascism’ and what this word would, over a long period, ignominiously signify. However, any questioning of the underlying reasons for the rise of fascisms is relegated to the background, if not even further.

There is no examination, from the perspective of democracy and 20th century capitalism, of what could have facilitated or even caused the emergence of fascisms. There is, therefore, no opportunity to consider other possibilities of oppression — and consequently of rebellion — like those represented by the abominable figure of a Head of State or Leader flanked by party apparatus, police and mythology.

Here, again, some will protest. The preceding sentences will be criticised for being unacceptably suspicious of the virtuous words of the Declaration. I was careful above to write, ‘in a sense’, and to limit myself to pointing out the absence of examination, nothing more.

In all sincerity, I am not trying to construct a machinery of denunciation. Yet it is difficult to dispute that the question of ‘humanism’ has been continually refined or deepened, according to different views. This has occurred along the road from the defeat of fascism to the unbridled expansion of capitalism, which is undermining human rights in an increasingly obvious way.

It is a road that passes through the other collapse of so-called ‘socialisms’ and, today, through the various tensions in religious and/or communitarian movements. ‘Humanism’ is strictly coeval with mercantile civilization, techno-scientific development and democracy. ‘Human rights’ are not absolutely pristine, as their prehistory in Roman law [droit] after a certain period already shows. They derive from Roman legal culture, transported first out of Roman civil religion and then out of Christianity to fertilise the spirit of modern law [droit] and especially so-called ‘natural’ law [droit].

Now, it is here that we must consider the other clause of this ‘whereas’. The French version provides a striking statement: Human rights must be protected by the rule of law [régime de droit]. The English distinguishes rights and law, the Italian distinguishes diritti and norme giuridiche, whereas other languages (e.g. Greek or German) repeat, like the French, the same term. Perhaps the Latin translation best clarifies the distinction in stating that: hominum jura civitatis forma quae justa est tegi (human rights must be covered by a just civil form).

This is much more than a linguistic curiosity. Repeating a single term (droit) or distinguishing two terms (rights and law), indicates the same difficulty: do rights [droits] exist that have not been established by law [droit]? Here the Declaration declares its own necessity: it is not just a formulation, words solemnly declared.

The Declaration is the legal institution of the rights it declares. If we leave aside the well-known American and French antecedents that paved the way, prior to the Declaration only factual rights and not legal rights [droits de droit] existed. At most, some of these rights pre-existed as rights of certain States, the United Kingdom, the USA and France in particular. But what are ‘factual’ rights or national rights with regard to international law? These two distinct questions are in part intertwined.

These questions share a concern about the foundation of a right in general. The idea of ‘human rights’ brings to light the extraordinary difficulty of founding right, if not the impossibility of such a foundation. We have sought to dismiss the idea of ‘natural rights’, which represents an internal contradiction because their non-positive (in the legal sense) character prevents legal enforcement and sanction.

Yet we have invoked a ‘minimum norm’ (Rawls) which is necessary for the constitution of a just State or of the State under the rule of ‘law’ [Etat de ‘droit’] as it is popularly called today. This is no less lacking in foundations, in the fullest sense of the word, than ‘natural’ rights.

Hannah Arendt also showed how the national appropriation of ‘human rights’ gave rise to categories of persons without rights (refugees, displaced and stateless persons). It follows from these analyses that forms of non-right have not stopped imposing their iron law within positive rights, with the help of economic, technical, and political chaos.

Undoubtedly, the ‘right to have rights’, as Arendt formulated it, is plain to see: we can recognise neither the quality of the human being, nor, perhaps, that of the existent in general, without the involvement of this right. However, this again says nothing about the nature of this singular ‘right’ or about the possibility of its recognition, which should be universal and prior — if not superior — to any determined legal institution.

It is well known that the powerlessness of international law [droit] — of what passes under this name — or perhaps the basic impossibility of such a law [droit] (yet called for, desired and proclaimed by philosophical humanism for more than two centuries and formally declared in the 20th Century) impedes its effective implementation.

But as Hegel says, what is well known is not known at all. What remains here unknown is nothing other than the absence of foundation of right in general. This absence is not temporary or contingent: it is constitutive, I would even say that it is ‘constituent’ of right.

Indeed, right can only exist or be guaranteed by a divine authority, whatever that may be. In such a case, it is not a question of right, if something worthy of this name requires the continuing possibility of recovery, transformation and re-creation in the various practical circumstances — technical, political, cultural and spiritual — to which it must respond.

Both the history of legislated rights of the Roman type as well as the customary rights of the Anglo-Saxon type clearly show that an essential plasticity of right exists within the fixity that the law, no less essentially, requires.

Both the interminable ascent to the ‘basic norm’ in a pyramid of norms (Kelsen) and the recourse to an ultimate power to decide the exception (Schmitt), the right to exceed right, converge towards a passage to the limit.

Right can only be exposed to such a passage; it is by nature the institution of what cannot be instituted, in other words of justice in the non-legal sense of the word. And it is not by seeking a categorical legal imperative that we can hope to found such a justice since the universal can be found neither here nor in a Kantian imperative, where it is reduced to the representation of ‘nature’ as a ‘type’ or nondeterministic model of morality.

In a sense, which itself passes on to the limit of sense, justice consists in rendering justice. This is not ‘to render the justice’, which assumes a determined or instituted justice. This is rendering to someone or something the justice that this person or thing — event, work, any form of existent — deserves.6 But what does each X deserve? Each X deserves an infinite recognition of its singularity. In other words, the justice that must be rendered to X is a justice whose nature and extent or non-naturalness and incommensurability only X can determine.

This justice must be effectively rendered, given back, returned to any X. This justice must be recognised for every X. Justice must be done to X and yet it is not it — whatever it is, tree or man [homme] — that can produce its due and present it as ‘justice’ or as ‘right’. This justice rests on the unfoundable certainty that it is just that that exists. On the certainty, therefore, that it is just that the world exists even though nothing can justify its existence.

Unjustifiable justice, far from founding any kind of rights — as extensive as these may be — opens up instead an infinite perspective that exceeds all possibility of right. From this infinity and to this infinity, all things and every singularity proceed and return.

This perspective must remain present beyond the horizon of right; for without an appeal or a sign towards it, right can only fall back into its inevitable fragility, whether of impotence, arbitrariness, relativity or rigidity. The greatest merit of ‘human rights’ is to bring out all these difficulties and all of these exigencies. The aim of these two simple remarks was, within their narrow limits, to draw attention to this.

Translated from the French by Gilbert Leung.

The photo shows, “The Fair” by Vladimir Egorovich Makovsky, painted in 1885.