A Revolution in Rights Reflections on the Democratic Invention of the Rights of Man

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A Revolution in Rights: Reflections on the Democratic Invention of the Rights of Man

Ayten Gündogdu Law, Culture and the Humanities 2014 10: 367 originally published online 22 October 2012 DOI: 10.1177/1743872112459034 The online The online version of this article can be found found at: http://lch.sagepub.com/content/10/3/367

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LAW, CULTURE AND THE HUMANITIES

Commentary

A Revolution in Rights: Reflections on the Democratic Invention of the Rights of Man

Law, Culture and the Humanities 2014, Vol. 10(3) 367 –379 © The Author(s) 2012 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1743872112459034 lch.sagepub.com

Ayten Gündog ˘ du Barnard College-Columbia University, USA

Abstract

This commentary aims to bring to the fore the revolutionary elements of the democratic politics inaugurated by the 1789 Declaration of the Rights of Man and Citizen. This founding event places rights at that gap or hiatus between constituent and constituted power, and it reminds us that rights are not simply normative constraints on an existing political and legal order but also democratic inventions that can institute a new order. The commentary examines the works of two thinkers who offer crucial insights into the key features of this democratic politics of rights: Claude Lefort and Étienne Balibar. Keywords

Rights of man, declaration, 1789, French Revolution, democracy, human rights, Lefort, Balibar

Human rights discourse has achieved an unprecedented power in our contemporary landscape. Following World War II, the gradual emergence of an international human rights regime has placed a plethora of institutional and normative constraints on states. We now have innumerable international and nongovernmental organizations devoted to the protection of human rights. There are multiple treaties and conventions to ensure that human rights are not merely paper claims, and many states have incor porated human rights into their constitutions. In the light of these developments, many observers have suggested that what we are witnessing is nothing less than a

Corresponding author:

Ayten Gündog˘du, Department of Political Science, Barnard College-Columbia University, 3009 Broadway, New York, NY 10027, USA. Email: [email protected]


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“human rights revolution.”1 These routinized invocations of the word “revolution” aim to capture primarily the institutionalization of human rights through the juridical work of domestic, regional, and international courts. The world-transformative effects of these developments cannot be underestimated, but it is also important to think carefully about what is missing from these recent uses of “revolution.” This commentary turns to the 1789 Declaration of the Rights of Man and Citizen to rethink what is revolutionary about a democratic politics of human rights. This momentous event places rights at that gap or hiatus between constituent and constituted power and reminds us that we cannot understand the democratic dimension of rights simply by examining how they legitimize constituted power. The 1789 Declaration highlights that rights are not simply normative constraints on an existing political and legal order but also democratic inventions that can institute a new order, change existing conceptions of power, and reorganize social relations. The commentary first outlines some of the challenges involved in turning to the 1789 Declaration to rethink what is at stake in a democratic politics of human rights. It then turns to two thinkers whose works offer crucial insights in this regard: Claude Lefort and Étienne Balibar. Both thinkers urge us to understand the declaration as an extraordinary event that institutes a new understanding of rights, citizenship, sovereignty, equality and freedom. As different from moralistic accounts that take rights as pre-political or non political norms setting limits on state power, their frameworks turn attention to the political activities that are crucial for founding and reinventing rights. The commentary suggests that Lefort’s work is more helpful when it comes to understanding the significance of the political innovations introduced by the 1789 Declaration, whereas Balibar’s work offers a more insightful analysis of the radical transformations at stake in the later reappropriations of these rights.

1. Revolutionary Origins of the Rights of Man Historians of the French Revolution have long alerted us to the crucial connections between our contemporary understandings of human rights and the 1789 Declaration of the Rights of Man and Citizen. Among others, Lynn Hunt has noted that the framers of the Universal Declaration of Human Rights (1948) “closely followed the model established by the French Declaration.”2 But rethinking these “revolutionary origins,” to use Hunt’s phrase, is by no means an easy task; there are some potential traps. First, there is the danger of turning the 1789 Declaration into just another phase in the gradual, eventual unfolding of the idea of human rights. This teleological historiography might take a modest and nuanced form, focusing on modern history and linking the American Declaration of Independence in 1776, the French Declaration of the Rights of 1.

See, for example, Thomas Buergenthal, “The Human Rights Revolution,” St. Mary’s Law Journal , 23 (1991), 3–10; Michael Ignatieff, The Rights Revolution (Toronto: House of Anansi Press, 2007, 2nd edn.). 2. Lynn Hunt, “Introduction: The Revolutionary Origins of Human Rights,” in The French Revolution and Human Rights: A Brief Documentary History , ed. Lynn Hunt (Boston, MA and New York: Bedford/St. Martin’s, 1996), p. 3.


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Man in 1789, and the 1948 United Nations Declaration – each taken as exemplars of the “bulldozer force of the revolutionary logic of rights.”3 The danger of projecting the present onto the past becomes more perceptible in the more ambitious historical accounts when the 1789 Declaration is placed, along with Stoicism, natural law, and the JudeoChristian tradition, in the evolutionary trajectory of human rights since antiquity.4 In both the modest and ambitious forms, teleological history risks not only constructing “precursors after the fact”5 but also losing sight of the radical transformation inaugurated by the 1789 Declaration. As Hannah Arendt puts it, modern revolutions break with the linear understanding of time as a continuum and instill in us the sense “that the course of history suddenly begins anew, that an entirely new story, a story never known or told before, is about to unfold.”6 Understanding the revolutionary dimension of the 1789 Declaration demands nothing less than facing up to the new beginning it embodies and refusing to render it simply as another edition of a story told before. Rethinking the 1789 Declaration in this revolutionary sense as “a hiatus between the end of the old order and the beginning of the new” or “between a no-longer and a not-yet,” to use Arendt’s terms again, has its potential risks as well.7 In her critical reflections on Jean-François Lyotard’s reading of the 1789 Declaration and Jacques Derrida’s reading of the American Declaration of Independence, Seyla Benhabib draws attention to the traps of “a regression to a thinking of origins,” or a thinking that derives the meaning of political phenomena from the “limit condition” of an “extraordinary and foundational moment.”8 The trouble with this kind of thinking is not merely that it locates in these revolutionary declarations nothing but an abyss representing the arbitrary violence founding politics and law. More importantly, a thinking centered on origins can also risk losing sight of the “new story” told by these revolutionary declarations, especially when it examines the aporias of founding in terms of general assumptions about the structure of language. These declarations do exemplify the aporias of new beginnings, especially those arising from the problem of self-authorization: The signatory of the declaration lacks a prior authorization, as it is the declaratory act that establishes that authorization. Once this point is granted, however, the distinctive characteristics of the political, normative, and symbolic universe inaugurated by these rights declarations still remain to be known. 3. 4.

5. 6. 7. 8.

Lynn Hunt, Inventing Human Rights: A History (New York and London: Norton, 2007), p. 160. See, for example, Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia, PA: University of Pennsylvania Press, 1998); Micheline Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley, CA: University of California Press, 2004). Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press, 2010), p. 18. Hannah Arendt, On Revolution (London and New York: Penguin, 1990 [1963]), p. 28. Arendt, On Revolution, p. 205. Seyla Benhabib, “Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida,” Journal of Political Philosophy, 2 (1994), 14, 5. See also Jacques Derrida, “Declarations of Independence,” New Political Science, 7 (1986): 7–15; Jean-François Lyotard, The Differend: Phrases in Dispute , tr. Georges Van Den Abbeele (Minneapolis, MN: University of Minnesota Press, 1988), pp. 145–7.


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In what follows, I discuss two theorists who avoid the potential traps exemplified by teleological history and origin-thinking: Claude Lefort and Étienne Balibar. For both theorists, the 1789 Declaration is a new beginning that cannot be assimilated into a teleological narrative, as it breaks with any previous understanding of rights, including the natural law tradition. What is more, although both Lefort and Balibar are very attentive to the aporias of this declaration, they also refuse to see that revolutionary hiatus as an abyss revealing an originary violence. Instead, they examine how the declaration introduces a new principle of universality that founds these rights politically and endows democratic politics with an indeterminable futurity.

II. Rethinking the Declaration of Rights as a Revolution within the French Revolution Claude Lefort’s reflections on the French Revolution and the Declaration of the Rights of Man foreground what he calls the “symbolic” dimension of rights. This somewhat confusing term can be best understood by examining Lefort’s definition of politics in terms of the ancient Greek notion of politeia, which means “constitution,” but not simply in the juridical sense of the term. Following Plato and Aristotle, Lefort understands “constitution” as a “form of society” or “style of existence or mode of life,” encompassing norms, values, and mores that define “notions of just and unjust, good and evil, desirable and undesirable, noble and ignoble.”9 Given this broader understanding of constitution, “the political,” for Lefort, cannot be designated simply as a separate sphere of social life. Instead, it encompasses those principles generating society by “shaping [mise en forme] human coexistence,” and this notion of shaping involves both “giving meaning [mise en sens] to social relations” and “staging them [mise en scene].”10 It is these generative principles that organize social relations, “institute conditions of their intelligibility,” and give rise to distinctive organization of spheres or sectors (e.g. political, religious, economic) in different forms of society.11 Lefort analyzes the French Revolution and the 1789 Declaration, first and foremost, as political transformations in this symbolic sense. The revolution “forces us to interpret the political” because it involves nothing less than a radical change in the constitution as politeia, or the generative principles organizing society.12 It inaugurates a new understanding of politics in which power can no longer be occupied, appropriated, or represented by a body or an organic entity. Lefort reflects on this symbolic transformation by turning to Ernst Kantorowicz’s thesis about the king’s two bodies, which posits a relationship between a king’s natural, fallible, mortal body and his supernatural, immortal, sacred body. Power is embodied in this second, invisible, mystic body, which transcends the limits of a king’s natural body and legitimizes his rule with reference to divinity; this body that never dies allows the continuity of monarchy even after the king himself 9. Claude Lefort, Democracy and Political Theory , tr. David Macey (Cambridge, UK: Polity, 1988), pp. 2, 3. 10. Lefort, Democracy, pp. 217, 219. 11. Lefort, Democracy, p. 219. 12. Lefort, Democracy, p. 94.


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dies.13 Kantorowicz’s thesis illuminates the pre-modern understanding of power, according to Lefort. The French Revolution inaugurates a symbolic transformation that breaks with this schema of incorporating or incarnating power in a substantial unity and reveals power as “an empty place:” it is not that no one exercises power in this new order, but no one can any longer appropriate, possess, or embody power since its exercise now “requires a periodic and repeated contest.”14 This transformation indicates a gap between the symbolic and the real, between “empty place” of power and its exercise, between generative principles of the democratic constitution and actually existing institutions of these principles. There might be attempts to close this gap by invoking a unitary body embodying power, and even by making appeals to religion. Although such attempts are common especially in times of crisis, they do not invalidate the symbolic transformation by which power is disembodied or disincorporated. Such ideological representations of power, which Lefort describes as “the imaginary,” cannot be conflated with “the sym bolic,” or the generative principles of democratic society.15 As Lefort draws attention to this symbolic transformation, he breaks away from not only the Marxist historiography, which represents the French Revolution mainly as a victory of the bourgeoisie over the nobility, but also the revisionist historiography that ends up tracing the excesses of totalitarian politics back to the French Revolution. Lefort’s critical engagement with the work of François Furet illustrates his distinctive position. On the one hand, Lefort applauds Furet for breaking with the Marxist analysis to foreground the political dimensions of the revolution; in this political framework, revolution cannot be understood as a transfer of power from one class to another, as it involves a transformation in the understanding of legitimacy. On the other hand, Lefort questions Furet’s thesis that the revolution shared with ancien régime the “phantasm” of an absolute and undivided power and “simply inverted” that absolutism “in favor of the people.”16 What escapes Furet’s analysis, according to Lefort, is that the French Revolution invents a democratic politics that ultimately opens up the possibility of questioning any absolutist attempt to embody society “in the form of an organic totality.”17 With this symbolic transformation, power moves to a “paradoxically unstable and indeterminate” place that owes its existence to “the incessant work of its enunciation” or to 13. Lefort, Democracy, pp. 250–5. 14. Lefort, Democracy, p. 225. For a discussion of this “empty place” of power, see, among others, Oliver Marchart, Post-Foundational Political Thought: Political Difference in Nancy, Lefort, Badiou and Laclau (Edinburgh: Edinburgh University Press, 2007), pp. 94–5. 15. Lefort, Democracy, p. 255. See also Warren Breckman, “Democracy between Disenchantment and Political Theology: French Post-Marxism and the Return of Religion,” New German Critique, 94 (2005), 91–2. Lefort uses the Lacanian terms but gives them a different meaning, as briefly indicated by the analysis above. For an analysis, see, for example, Bernard Flynn, The Philosophy of Claude Lefort: Interpreting the Political (Evanston, IL: Northwestern University Press, 2005), pp. 118–19; Samuel Moyn, “Claude Lefort, Political Anthropology, and Symbolic Division,” Constellations, 19 (2012), 43–4. 16. François Furet, Interpreting the French Revolution , tr. Elborg Foster (Cambridge and New York: Cambridge University Press, 1981), pp. 39, 38. 17. Lefort, Democracy, p. 114.


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“the impalpable, universal and essentially public element of speech.”18 Furet is right to identify in this shift the birth of ideology, but Lefort sees in it something that exceeds ideology: the emergence of an “open-ended debate as to the foundations of the legitimacy.”19 The crucial role of speech in this new constitution, or politeia, is nowhere more apparent than in the Declaration of the Rights of Man and Citizen. It is impossible to understand the symbolic transformation at stake here without grappling with the unconventionality of the idea of a “declaration” in the first place. A bill or a petition appeals to an external authority and attempts to demarcate the boundaries of its power.20 As revolutionaries such as Sieyès recognized, such a pact indicates “implicit recognition of a seigneur, a suzerain, or a master to whom one is naturally obligated.”21 “Declaration,” on the other hand, denotes a public utterance by which human beings reciprocally recognize each other as subjects entitled to equal rights. As Lefort puts it, what we are confronting is, a declaration, by which human beings, speaking through their representatives, revealed themselves to be both the subject and object of the utterance in which they named the human elements in one another, ‘‘spoke to’’ one another, appeared before one another, and therefore erected themselves into their own judges, their own witnesses.

To come to terms with the political importance of this public utterance and recognition of rights, it is necessary to reject the naturalist position that assimilates both the American and French declarations into the prior conceptions of natural law. The invocation of “nature” as the ground of rights in these declarations, according to Lefort, conceals an “extraordinary event,” which involves “the ascription of ‘nature’ to the self.”22 This democratic invention defies the naturalistic idea of deriving rights from an already existing nature since there is no “nature” prior to the enunciation of rights. By contesting the naturalistic thesis, Lefort also challenges any moralistic account that posits rights as pre-political (hence non-political, or even anti-political) norms limiting state power.23 What renders Lefort’s analysis of the modern rights declarations really distinctive is that he does not stop at refuting the naturalistic thesis. While Lefort emphasizes that these declarations “reduc[e] the source of right to the human utterance of right” and 18. 19. 20. 21.

Lefort, Democracy, p. 110. Lefort, Democracy, p. 114. For the distinction, see Hunt, Inventing Human Rights, pp. 114–5. Quoted in Keith Michael Baker, “The Idea of a Declaration of Rights,” in Dale Van Kley, ed., The French Idea of Freedom: The Old Regime and the Declaration of Rights of 1789 (Stanford, CA: Stanford University Press), p. 158. See also Marcel Gauchet, “Rights of Man,” in A Critical Dictionary of the French Revolution , ed. François Furet and Mona Ozouf; tr. Arthur Goldhammer (Cambridge, MA: Belknap Press of Harvard University Press, 1989), pp. 820–1. 22. Lefort, Democracy, p. 38. 23. Such a moralistic position was held by some of Lefort’s contemporaries known as “the New Philosophers.” For a discussion, see Samuel Moyn, “The Politics of Individual Rights: Marcel Gauchet and Claude Lefort,” in French Liberalism from Montesquieu to the Present Day, ed. Raf Geenens and Helena Rosenblatt (Cambridge, UK: Cambridge University Press, 2012), pp. 293–5.


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make it impossible to locate a foundation for rights outside of and prior to their proclamation,24 he also challenges the historicist thesis that these rights have no validity beyond the original context in which they were declared. To make this point, Lefort turns to the French Declaration and responds to critics such as Burke and Marx who question the universal import of the “rights of man.” According to Lefort, these critics overlook how this declaration introduces a new “principle” that “cannot be annexed by historicism.” This principle, “which reduces right to the questioning of right,” opens up the possibility of challenging existing formulations of rights and disputing the legitimacy of the established order.25 The universality of the “rights of man” arises out of this new dynamic that renders the meaning and content of rights indeterminable. Lefort’s argument about rights cannot be easily categorized as foundationalist or antifoundationalist; he seems to offer a third possibility: On the one hand, he moves away from foundationalism and affirms that the eighteenth-century declarations “install the radical contingency of linguistic proclamation into the heart of constitutional arrangements,” to use Costas Douzinas’ terms.26 On the other hand, Lefort distances his position from antifoundationalism, as he refuses to locate in these founding events nothing but an abyss. Even though the revolutionary declaration strikes us as completely arbitrary with its spontaneity, unpredictability and contingency, his analysis suggests, it carries within itself a principle that serves as the source of its validation or authorization. Lefort does not explicitly state what he means by the term “principle,” but his analysis proceeds in a quite Montesquian vein. What is at stake here is not an extra-political norm, standard, or yardstick guiding action or offering criteria for judgment but instead a “principle” inspiring, becoming manifest in, and validating the declaratory act. As this principle animates and authorizes new inventions of rights, its effects cannot be contained by the original context of the declaration that gives rise to it. It is universal to the extent that it can be reactivated time and again to demand new rights.27 This continuous democratic reinvention of rights, Lefort argues, is made possible by “the fiction of man without determination,” a fiction often criticized for its abstraction.28 One such criticism comes from Marx, who suggests that this abstract “man,” as distinct from “citizen,” is none other than the egoistic member of civil society.29 Lefort responds to Marx’s critique in two ways: First, highlighting how rights such as freedom of opinion institute new forms of sociability and create “a new network of human relations,” Lefort challenges the view that the discourse of rights produces egoistic individuals.30 Second, he 24. Lefort, Democracy, p. 37. 25. Lefort, Democracy, p. 38. 26. Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford and Portland, OR: Hart Publishing, 2000), p. 95. 27. This interpretation draws on Hannah Arendt’s Montesquian understanding of “principle” in her reflections on modern revolutions and freedom. See Arendt, On Revolution, p. 212; “What is Freedom?” in Between Past and Future (New York and London: Penguin, 1993 [1968]), pp. 152–3. 28. Lefort, The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism , ed. John B. Thompson (Cambridge, MA: MIT Press, 1986), p. 257. 29. Karl Marx, “On the Jewish Question,” in Marx: Early Political Writings , ed. Joseph O’Malley (Cambridge: Cambridge University Press, 1994), p. 44. 30. Lefort, Democracy, p. 32.


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foregrounds the promising political effects of assigning rights to an abstract “man.” Precisely because rights are not assigned to determinate, concrete subjects, they “go beyond any particular formulation which has been given of them” and contain within them “the demand for their reformulation.” This fiction, pointing to the indeterminacy of “man,” has a symbolic efficacy as it sets up in democratic politics “the theatre of a contestation.”31 Lefort’s discussion of the democratic politics inaugurated by the declarations of the eighteenth century, especially the French Declaration, brings to light the revolutionary changes resulting from turning public utterance to the source of rights. In line with his invitation to understand constitution or politeia beyond its juridical meaning, Lefort’s analysis of rights takes us beyond their juridical formulations and presents these rights as “generative principles” reorganizing social space, giving meaning to social relations, and establishing new codes of intelligibility. As such, rights have a symbolic dimension that cannot be reduced to either their ideological representations (imaginary) or their institutionalized forms (real). Although Lefort’s analysis sheds crucial light on what was revolutionary about the 1789 Declaration, it does not fully capture the radical transformations brought by the later democratic struggles for rights. As I discuss below, Balibar’s analysis, which draws on Lefort’s arguments in certain respects, is more helpful when it comes to understanding what is politically at stake in these later attempts to question the established right so as to reinvent rights.

III. Rethinking Democratic Reinventions of Rights as Revolutionary Acts Balibar shares with Lefort the idea that the 1789 Declaration needs to be understood as an extraordinary event that radically changes our conceptions of rights. We lose sight of this revolutionary transformation, he argues, if we take rights of man to be continuous with classical natural right theories. The 1789 Declaration breaks with this tradition to the extent that it refuses to posit a pre-social or pre-political “human nature” as the ground of rights; when it invokes “man,” it does not refer to a pre-political subject but instead to a “citizen” or a member of political society.32 In addition, both Balibar and Lefort question the attempts to read into the Declaration an absolutist understanding of national sovereignty, which has often been taken as “a mimetic inversion of the monarchical sovereignty that it opposed.”33 The 1789 Declaration contests earlier understandings of sovereignty, which institute hierarchy and appeal to transcendence, Balibar argues. Instead, it introduces the paradoxical formulation of “egalitarian sovereignty,” which takes the political activity of equals as the 31. Lefort, Political Forms, p. 258. 32. Étienne Balibar, Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx, tr. James Swenson (New York: Routledge, 1994), pp. 42–3; 45. In making this point, Balibar criticizes Florence Gauthier who ties the 1789 Declaration to “the modern philosophy of natural right.” See Gauthier, “The French Revolution: Revolution of the Rights of Man and the Citizen,” in History and Revolution: Refuting Revisionism , ed. Mike Haynes and Jim Wolfreys (London: Verso, 2007), p. 76. 33. See, for example, Balibar’s critique of Marcel Gauchet’s work on the rights of man; Balibar, Masses, p. 41.


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immanent source of political and social order.34 Furthermore, Balibar also agrees with Lefort that the Declaration contains within itself a demand for the reformulation of rights.35 In fact, he describes the Declaration as “a hyperbolic proposition,” or as a statement that “exceeds the act of its enunciation” and invites the questioning of any given institutionalization of rights and citizenship.36 Finally, for both Lefort and Balibar, this element of indeterminacy that the 1789 Declaration introduces to democratic politics demands an engagement with the paradoxes, aporias and equivocations of this revolutionary document. As different from earlier critics, who locate in the paradoxical formulations of the Declaration nothing other than signs of the eventual doom of the rights of man, these two thinkers highlight the democratic possibilities arising from this aporetic terrain.37 Despite this similarity, however, Balibar’s account centers on an equivocation that is not fully examined by Lefort: the simultaneous invocation of “man” and “citizen” as the subject of rights in the 1789 Declaration. To address the political effects of this equivocation, Balibar engages in a critical conversation with Marx. Of particular importance for his purposes is Marx’s reading of this equivocation as a split or separation between “man” and “citizen,” representing the limitations of the illusionary universality introduced by political emancipation, which guarantees political equality for citizens without eliminating the inequalities embedded in civil society.38 Contra Marx, Balibar does not read the equivocation as symptomatic of a bourgeois separation between “man” and “citizen,” private and public, civil society and political state. There is no such separation, he argues, since the Declaration ascribes the same rights to man and citizen.39 Even the right to property cannot be taken as a symptom of such separation, Balibar suggests, as it cannot be reduced to a right to private property. The Declaration instead invokes property in a more Lockean sense – i.e. “property of oneself , of a free disposal of one’s forces and of their employment.”40 The text of the Declaration introduces this right, according to Balibar, without settling what kind of a social arrangement having property in oneself would entail; the answer to that question is “ yet to be determined ” by the social struggles that the Declaration gives rise to.41 Balibar takes the equivocation between “man” and “citizen” as an identification or equation that is charged with democratic possibilities. With its equivocal formula, the 1789 Declaration announces that equal rights cannot be simply limited to those who already have the legal status of citizenship and introduces “the possibility of any given realization of the citizen to be placed in question.” Balibar warns against taking this 34. Balibar, Masses, p. 43; emphasis in the original. See also Balibar, “Citizen Subject,” in Who Comes after the Subject? , ed. Eduardo Cadava, Peter Connor, and Jean-Luc Nancy (New York: Routledge, 1991), p. 45. 35. Balibar, Masses, p. 242n. 36. Balibar, “Citizen Subject,” p. 52; emphasis in the original. 37. See Lefort’s analysis of the “triple paradox” of human rights in Political Forms, pp. 256–8. 38. Marx, “On the Jewish Question.” 39. Balibar, Masses, p. 44. 40. Balibar, Masses, p. 217; emphasis in the original. For Balibar’s detailed analysis of “property” in Locke, see “‘Possessive Individualism’ Reversed: From Locke to Derrida,” Constellations, 9 (2002), 300–5. 41. Balibar, Masses, p. 218; emphasis in the original. For an account of these social struggles that led to different declarations, see, for example, Gauthier, “French Revolution.”


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possibility as a “promise” that will be inevitably fulfilled, and his analysis of democratic struggles for equal rights pays close attention to the historical conjuncture, as can be seen in his more recent reflections on the challenges posed to the transnationalization of citizenship by the non-democratic practices of border control that amount to a “global apartheid.”42 In that sense, he is not “over-optimistic,” contrary to what some of his readers suggest, and his work on democratic rights continues to reveal his Marxian attentiveness to the social, economic and ideological conditions that can enable, hinder, or undermine emancipatory struggles.43 Having said that, it is equally important, for Balibar, not to underestimate or overlook the possibilities introduced by the equation of “man” and “citizen,” which endows democratic politics with an “essential limitlessness.”44 This argument gives rise to two interrelated conclusions in Balibar’s work: First, the equation introduces what he calls the “proposition of equaliberty,” which affirms a universal right to citizenship understood as political activity.45 Similar to the case in Lefort, this argument cannot be easily characterized as an anti-foundationalist one pointing to an abyss; instead, what Balibar highlights is the emergence of a new principle (again better to be understood in its Montesquian sense) with the declaration of rights. “Equaliberty” is a term that is a translation of Greek isonomia via its Latin formulation (“aequum ius or aequa libertas”).46 Just as ancient isonomia, equaliberty indicates the inextricably intertwined nature of equality and freedom, but whereas the ancients understood freedom as a status and equality as a right attached to that status and excluded several groups from political activity as a result (e.g. slaves, women, metics), the Declaration of the Rights of Man inaugurates a democratic politics that makes it impossible for citizenship to be limited on the basis of status.47 This limitlessness brings us to the second conclusion. Precisely because the equivocation between “man” and “citizen” introduces “a politics of the universalization of rights,” exclusions from rights and citizenship now become questionable. This does not mean that there are no longer exclusions; in fact, modern politics is haunted by its “repressed contradictions,” which become manifest in the denial of rights and citizenship on the basis of “anthropological differences.”48 But the 1789 Declaration also opens possibilities of contesting such exclusions with its proposition of a universal right to politics, according to Balibar. Embedded in “the equation man=citizen” is a “constitutive 42. Balibar, “Citizen Subject,” p. 53; emphasis in the original. For “global apartheid,” see Balibar, We, the People of Europe? Reflections on Transnational Citizenship , tr. James Swenson (Princeton, NJ: Princeton University Press, 2004), p. 113. 43. Nick Hewlett, Badiou, Balibar, Rancière: Rethinking Emancipation (London: Continuum, 2007), p. 125. For an analysis demonstrating Balibar’s attentiveness to these conditions, see James D. Ingram, “Democracy and Its Conditions: Étienne Balibar and the Contribution of Marxism to Radical Democracy” (unpublished manuscript). 44. Balibar, Masses, p. 211; emphasis in the original. 45. See Balibar, “Is a Philosophy of Human Civic Rights Possible? New Reflections on Equaliberty,” South Atlantic Quarterly , 103 (2004), 312–13. 46. Balibar, “(De)constructing the Human as Human Institution: A Reflection on the Coherence of Hannah Arendt’s Practical Philosophy,” Social Research, 74 (2007), 731. 47. Balibar, Masses, pp. 45–6. 48. Balibar, Masses, pp. 55, 57.


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instability,” which makes it impossible to reduce citizenship and democracy to their institutionalized forms.49 From this point on, democratic politics is defined by “an indefinite oscillation” between “an insurrectional politics and a constitutional politics,” or “a politics of permanent, uninterrupted revolution, and a politics of state as institutional order.”50 Balibar’s argument about this tension seems to resonate with Lefort’s suggestion that a politics of rights introduces the possibility of questioning established rights, but Balibar’s characterization of this questioning as “insurrectional” points to how his analysis differs from Lefort’s. The term “insurrection” captures a revolutionary act, which aims at the established constitutional order, and yet, unlike rebellion and revolt, also “prepares and founds” a constitution.51 Lefort is also aware of this possibility that rights can unmake constitutional orders; for the most part, however, he refrains from invoking a revolutionary imagery in describing democratic reinventions of rights. Characterizing these contestations as relatively autonomous struggles taking place in multiple sites,52 he underscores that this ongoing contestation of the legitimacy of the constitutional order is essential for the democratic state, which exceeds “état de droit ” as it involves an “opposition de droit .”53 But this formulation risks casting politics of reinventing rights as one of revolt or a mere opposition to the established order. Lacking in that characterization is the more radical possibility invoked by Balibar’s notion of “insurrection,” which involves not simply opposing the established order but proposing and constituting a new one. The risk that a revolutionary declaration can inaugurate an insurrectional politics stands at the foreground of criticisms targeted at the rights of man. Jeremy Bentham’s critique of the “terrorist language” of the 1789 Declaration is revealing in this regard.54 Bentham was horrified especially by Article 2, which, in his reading, established a right to resist oppression and justified the French Revolution: “But by justifying it, they invite it: in justifying past insurrection, they plant and cultivate a propensity to perpetual insurrection in time future; they sow the seeds of anarchy broad-cast.”55 Balibar’s account takes the terms of these criticisms (e.g. insurrection, anarchy) but turns them against the conclusions drawn by critics such as Bentham. Whereas critics see in the risk of insurrection nothing but dissolution of political order, Balibar considers such dissolution to be essential for the continuous refounding of democratic politics. To use the terms he invokes for describing Arendt’s understanding of civil disobedience, Balibar locates “a principle of ‘an-archy’ at the very heart of archè itself” and takes that principle as a

49. 50. 51. 52. 53. 54.

Balibar, Masses, p. 51. Balibar, Masses, p. 51; emphasis in the original; see also p. 224. Balibar, Masses, p. 224. Lefort, Political Forms, p. 267. Lefort, Political Forms, p. 258; emphasis in the original. Jeremy Bentham, “Anarchical Fallacies: An Examination of the Declarations of Rights Issued During the French Revolution” in The Works of Jeremy Bentham , ed. John Bowring (Edinburgh: William Tait, 1838–1843), vol. 2, p. 501. 55. Bentham, “Anarchical Fallacies,” p. 496.


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necessary condition for the “permanent recreation of the political out of its internal dissolution.”56 There is another way in which Balibar’s characterization of democratic struggles for rights as “insurrectional” acts sets his analysis apart from Lefort’s. Whereas Lefort avoids depicting political actors involved in rights struggles as revolutionary figures, Balibar reappropriates the Hegelian-Marxian notion of “universal class” to draw attention to oppressed groups who succeed in transforming the specific wrong inflicted on them into a general one. Such a class demonstrates that the wrong it suffers is a universal wrong, that its alienation “entails the unfreedom of all,” and that its emancipation is the condition for general emancipation.57 What is at play here is representation as an idealization, which involves the creation of names or “keywords” that can “seize the imagination:” “ People” and “ proletariat ” are examples of such keywords, and Balibar adds that “woman and foreigner might yet become terms of this kind.”58 Such keywords point to an “ideal” or “idealistic” universality, Balibar argues. Idealization deploys images and representations, but it is not simply “ideological” and, though it does represent a universalization of a specific wrong, it does not nurture the illusion of a society that can be represented as an organic entity.59 There is a “symbolic” dimension to this idealization, as these struggles aim at “changing the whole fabric of society,”60 which demands nothing less than a radical reconfiguration of existing social relations and institutions. Put differently, whereas Balibar highlights the revolutionary beginnings at stake in democratic struggles for rights, Lefort exercises a cautious restraint in describing them. That restraint is understandable given Lefort’s critique of a “revolutionist” desire to abolish power, which, as he rightly underscores, conceals a secret craving for omnipotence as well as “a phantasized attraction for the One and an irresistible temptation to project it into the real.”61 However, as we see in Balibar’s account, there may be certain forms of idealization or projection that do not romantically long for a homogenous society trans parent to itself. Such representations are crucial in political struggles questioning the violent exclusions of an established order and proposing a new configuration of rights and citizenship. Attending to these representations might help us understand what remains of the “revolution” in the later reinventions of the rights of man. 56. Balibar, “(De)constructing the Human,” 730. 57. Balibar, Politics and the Other Scene , tr. Christine Jones, James Swenson, Chris Turner (London and New York: Verso, 2002), p. 6. 58. Balibar, Politics, p. 7; emphasis in the original. 59. To a certain extent, Balibar’s argument here resembles Jacques Rancière’s analysis of the rights struggles waged by those who have “no part.” See, for example, Rancière, “Who is the Subject of the Rights of Man?” South Atlantic Quarterly , 103 (2004), 303–5. For an analysis of Rancière’s argument, see, among others, Andrew Schaap, “Enacting the Right to Have Rights: Jacques Rancière’s Critique of Hannah Arendt,” European Journal of Political Theory, 10 (2011), 22–45. 60. Balibar, Politics, p. 168. 61. Lefort, Political Forms, pp. 266–7, 270. For a similar account of the limits of Lefort’s analysis, see James D. Ingram, “The Politics of Claude Lefort’s Political: Between Liberalism and Radical Democracy,” Thesis Eleven, 87 (2006), 33–50.


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1V. Conclusion: Situating Rights between Constituent and Constituted Power The analyses provided by Lefort and Balibar raise some doubts about the recent celebrations of the institutionalization of human rights as a “revolution.” This is not to say that Lefort and Balibar are against the institutionalization of rights; in fact, they see institutionalization not only as a necessary development to provide effective guarantees for rights but also as a positive one to the extent that it can raise an “awareness” of rights (Lefort) and even create possibilities for reinventing rights (Balibar).62 Yet, their analyses also suggest that an excessive reliance on the juridical codification and institutional enforcement of rights can blind us to the ineluctable tension between rights and institutions. Politics of rights cannot be reduced to their institutionalization, not only because institutions can turn against rights but also because rights can turn against institutions.63 Regarding the first possibility, Lefort warns us how such institutionalization, though necessary, can “conceal the mechanisms indispensable to the effective exercise of rights,” as it can lead to their “petrification in a corpus of laws.”64 As rights come to be identified with their legally objectified forms, we might end up losing sense of rights as generative principles animating these institutions and endowing them with a dynamic spirit. Balibar alerts us to a different dimension of this tension, as he underscores how the institutions (e.g. nation-state) established to guarantee democratic rights can end up undermining or violating these rights.65 But it is not only institutions that can turn against rights; politics of rights, as we have seen, can be mobilized to question the established order and even institute a new one. Rights as generative principles can inspire and authorize struggles contesting the established right, as Lefort argues, and the proposition of equaliberty, in Balibar’s case, sets into motion an insurrectional politics. These formulations resist the idea of a direct continuity between the democratic politics inaugurated by the 1789 Declaration and the contemporary human rights norms. But they also refuse to see the declaration as an obsolete artifact, as the democratic politics it represents can be reactivated today to open a debate on the legitimacy or illegitimacy of existing institutions of citizenship and human rights. Perhaps it is this necessary and inescapable tension between constituent and constituted power, revolution and established order, rights as generative principles and rights as instituted norms that animates contemporary struggles questioning the limits of human rights law and proposing new formulations of rights as in the case of the ongoing struggles of undocumented immigrants. Such struggles urge us to rethink what is revolutionary about the democratic invention of the rights of man. 62. Lefort, Political Forms, p. 260; Balibar, “(De)constructing the Human,” 733–4. 63. For analyses of this tension between rights and institutions, see, among others, my discussion in “‘Perplexities of the Rights of Man’: Arendt on the Aporias of Human Rights,” European Journal of Political Theory , 11 (2012), 11–13; James D. Ingram, “What Is a ‘Right to Have Rights’? Three Images of the Politics of Human Rights,” American Political Science Review , 102 (2008), 405–8, 414. 64. Lefort, Political Forms, p. 260. 65. Balibar, “(De)constructing the Human,” 734; Balibar, We, the People, pp. 62–4.


A Revolution in Rights Reflections on the Democratic Invention of the Rights of Man

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