The End(s) of Human Rights
Douzinas, Costas, Melbourne University Law Review
[The history of human rights has made resistance to domination and oppression their main end. However from early modernity onwards, natural rights underpinned the sovereignty of the modern state. This trend has been strengthened in postmodernity and human rights have become the moral order of a new empire under construction. From a philosophical perspective, it is argued that humanity is an indeterminate concept which cannot become the source of normative values. Universalism and cultural relativism, the intertwined strands of humanism, are unable to understand human rights as the legalisation of individual desire. In postmodernity, the action of human rights expands the boundaries of the social, but it also dismembers the subjected subject. Only if we conceive of human rights as dependent on the other can they return to their original end and become the postmodern principle of justice.]
A new ideal has trumped on the global world stage: human rights. It unites left and right, the pulpit and the state, the Minister and the rebel, the developing world and the liberals of Hampstead and Manhattan. Human rights started their life as the principle of liberation from oppression and domination, the rallying cry of the homeless and the dispossessed, the political program of revolutionaries and dissidents. But their appeal is not confined to the wretched of the earth. Alternative lifestyles, greedy consumers of goods and culture, the pleasure-seekers and playboys of the Western world, the owner of Harrods, a former managing director of Guinness plc, as well as a former king of Greece, have all glossed their claims in the language of human rights. (1)
Human rights were initially linked with specific class interests and were the ideological and political weapons in the fight of the rising bourgeoisie against despotic political power and static social organisation. But their ontological presuppositions--the principles of human equality and freedom--and their political corollary--the claim that political power must be subjected to the demands of reason and law--have now become part of the staple ideology of most contemporary regimes and their partiality has been transcended.
Internationally, the New Times after the collapse of communism have elevated human rights as the central principle. Humanitarian interventions, war crimes tribunals and domestic prosecutions of heads of states for violations of human rights are all part of the new order. Human rights are the fate of postmodernity, the energy of our societies, the fulfilment of the Enlightenment promise of emancipation and self-realisation. Human rights are the ideology after the end, the defeat of ideologies, or, to adopt a voguish term, the ideology of globalisation at the `end of history'. (2)
And yet many doubts persist. (3) The record of human rights violations since their ringing declarations at the end of the 18th century is quite appalling. `[I]t is an undeniable fact', writes Gabriel Marcel, `that human life has never been so universally treated as a vile and perishable commodity than during our own era.' (4) If the 20th century was the epoch of human rights, their triumph is, to say the least, something of a paradox. Our era has witnessed more violations of their principles than any of the previous and less `enlightened' epochs. The 20th century was the century of massacre, genocide, ethnic cleansing--the age of the Holocaust. At no point in human history has there been a greater gap between the poor and the rich in the Western world or between the North and the South globally. No degree of progress allows one to ignore the fact that never before, in absolute figures, have so many men, women and children been subjugated, starved or exterminated. It is this paradox of triumph and disaster that I want to explore.
A second paradox characterises the theory of human rights. While rights are one of the noblest liberal institutions, liberal political and legal philosophy appears unable to grasp fully their operation. …