Is Humanity Enough? the Secular Theology of Human Rights
Fitzpatrick, Peter, Law, Social Justice and Global Development Journal
'[W]hoever invokes humanity wants to cheat' decrees Carl Schmitt (Schmitt, C, 1996, p 54). Or, we could add, has to cheat. The uncontainable 'human' of human rights does at times have to be contained. That is a condition of their having any effect, or even affect, whatsoever. But what quality is to be attached to that containment? With its usual usage, the containment assumes an instrumental appropriation of a unitary, a supposedly universal 'human' along with the subordination of others in its name. Taking a generative cue from the work of Upendra Baxi, the 'human' of human rights is found to resist that containment and to extend responsively to a plurality of diverse constituencies. An accommodation of these two seemingly opposed notions of the 'human' is provided by a theological discourse often associated with human rights, a discourse 'secularized' here in terms of Nietzsche's revealing how, with the death of God, 'new idols' are elevated for us now to live by--idols that can effect the neo-deific combination of determinate position with the illimitable possibility of being. The human, including the human of human rights, is taken as an instance. As such, the human of human rights is susceptible of an encapsulated arrogation in a variety of national, imperial and 'global' manifestations. Yet, Nietzsche would also indicate, with the 'tremendous event' of the death of God there is an exalted openness to the uncontainable possibility of the 'human'. This openness, along with its insistent plurality, goes to constitute the 'human' of human rights, and that openness is, in turn, given efficacy by the 'rights' of human rights.
Human Rights, Upendra Baxi, Secular Theology, Humanity, Universality, Plurality, Liberation.
1. Introduction and Celebration
Even a remit as extensive, as ultimately extensive, as human rights would be stretched to celebrate the scholarship of Upendra Baxi--to accommodate its exuberant generosity of engagement, its generative range of reference. The fortunate focus of that scholarship, fortunate for the feasibility of this present essay, has for some time now been human rights, and compounding that happy coincidence, there is the recent and luminous concentration of Baxi's work on human rights in the second edition of his The Future of Human Rights (Baxi, U, 2006). (1)
In a tribute to Baxi, this essay will consider his pointed emphasis on the future of human rights, and do so not so much by way of asking what future does human rights have but more by way of showing how futurity is constitutive of human rights--of human rights as they are, here and now. The essay subsumes futurity in this way by combining two qualities of human rights that have played significant parts in Baxi's work. One of these is a religious or quasi-religious quality of human rights, the other is the contested composition of the 'human' of human rights (see Baxi, U, 2006, pp 34-6, xix, xxiii-iv, 21, 89-90, and 137-47; Twining, W, 2006, pp 263 and 265-6). The constituent force these qualities bring to the composition of human rights is derived from a provocative division in the way Baxi typifies human rights. On one side of the divide, human rights cohere as unitary, even as monist and 'universal', at least as 'paradigm', and as such this conception of human rights can assume a 'dominant or hegemonic' position (Baxi, U, 2006, pp xv and 23). (2) In seeming contrast, and on the other side of the typifying divide, Baxi depicts human rights as plurality, as having 'not one but many futures', and he further depicts a scene in which 'human rights enunciations proliferate, becoming as specific as the networks from which they arise and, in turn, sustain' (Baxi, U, 2006, pp 26 and 47). Such multitudinous human rights not only provide 'sites of resistance and struggle', of subaltern assertion, but Baxi would also have it 'that the originary authors of human rights are people in struggle and communities of resistance' (Baxi, U, 2006, p xiv). …