More on that whole human rights thang...

So in connection with my previous post I have continued along the precarious path of reading complex French philosophy (don’t worry I’m still reading Marxists too). Reading Jacques Rancière’s Who is the Subject of the Rights of Man actually managed to give me some good ideas.

So at the end of my last post I looked into the relatively innocuous question of how those outside of a national framework are able to be interpellated as legal subjects. Firstly, I think that a functional explanation is sufficient to explain why corporations and other international bodies are posited as legal subjects. It is axiomatic that if the legal form is both a product and guarantor of commodity exchange then those subjects engaged in exchange will be interpellated as legal subjects. With the increasing globalisation of trade and the centralisation/monopolisation of capital it is prima facie obvious that these bodies will need to become legal subjects. The same goes for non-economic international bodies, in order for these bodies to actually work they need status as a person, politically they have the support of the most ‘important’ imperialist nations, and so it follows that they will become subjects.

However, there is still the problem of ‘stateless people’. Functionally, there is no need for them to become legal subjects, precisely because they are not engaged in any exchange function. One imagines that as soon as a stateless person is of some ‘use’ to capital then they will be able to become a legal subject (i.e. once they start working).

But this does not really explain how stateless people qua stateless people are able to become legal subjects. Rancière has an interesting – if somewhat impenetrable – approach to this question. Firstly Rancière, as is usual for these people, looks at Hannah Arendt’s Origins of Totalitarianism, where she poses the following paradox vis-à-vis human rights:

She makes them a quandary, which can be put as follows: either the rights of the citizen are the rights of man – but the rights of man are the rights of the unpoliticized person; they are the rights of those who have no rights, which amounts to nothing – or the rights of man are the rights of the citizen, the rights attached to the fact of being a citizen of such or such constitutional state. This means that they are the rights of those who have rights, which amounts to a tautology.[1]

This in essence is the problem that we have as regards those stateless people, if human rights are the rights who have no rights they are nothing. Rancière’s (confusing) solution is that ‘the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not’[2]. However, he becomes much clearer later, and in fact posits what one might term a materialist explanation.

Basically he illustrates this sentence in terms of the French Revolution, where Olympe de Gouges – a woman – said ‘if women are entitled to go to the scaffold, they are entitled to go to the assembly’[3]. Essentially what she tried to show here was although women were denied political rights, they were entitled to the ‘right’ to be executed for betraying the revolution and thus those who are apparently excluded from the political are in fact included.

For Rancière this is an example of ‘dissensus’. He says:

A dissensus is not a conflict of interests, opinions, or values; it is a division put in the “common sense”: a dispute about what is given, about the frame within which we see something as given.[4]

Furthermore:

[T]hey could demonstrate, through their public action, that they had the rights that the constitution denied to them, that they could enact those rights. So they could act as subjects of the Rights of Man in the precise sense that I have mentioned. They acted as subjects that did not have the rights that they had and had the rights that they had not.[5]

He then abstracts:

It is the opening of an interval for political subjectivization. Political names are litigious names, names whose extension and comprehension are uncertain and which open for that reason the space of a test or verification. Political subjects build such cases of verification. They put to test the power of political names, their extension and comprehension. They not only confront the inscriptions of rights to situations of denial; they put together the world where those rights are valid and the world where they are not. They put together a relation of inclusion and a relation of exclusion.[6]

Now, the idea of a ‘dissensus’ I feel actually has some merit if it is (rather radically) reinterpreted in a materialist fashion. What Rancière has identified here is the gap between the formal and the real in rights discourse. The formal ‘language’ of the rights is only meaningful insofar as it is transformed into real social practice. This is of course the message that Pashukanis and the realists have driven home time and time again.

The point here is that Rancière identifies a ‘conjunctural moment’ in the legal process. The ‘gap’ between the formal and the real, the transformation of the formal into the real is a political matter. Thus Rancière is able to take the Marxian approach of seeing law as politics expressed within a particular form. The problem here is that the ‘rightless’ are not legal subjects so how can it be that they struggle through the legal form?

I would have to say that they don’t. Obviously the struggle to become a legal subject cannot be done as a legal subject; it must be the sphere of politics alone. However, this is not quite correct. What Rancière seems to be saying is that ‘legal concepts’ (such as they are) are tested by those who are not yet legal subjects through the political sphere. This is a case of man proving the ‘this-sidedness’ of a legal ‘concept’ through ‘practice’.

One might perhaps therefore say that this is an ideological-political struggle, in which case one can give credence to Engel’s thesis as regards the elasticity of the law:

[Law] must … be an internally coherent expression which does not, owning to inner contradictions, reduce itself to naught[7]

However, I do not think that such a struggle is purely ‘ideological’. Firstly, insofar as the struggle will aim at real material results it is political. Secondly, the basis of the struggle will not just be the internal coherence of the legal form, it will instead be the objective social relation of the legal form, as is constituted through commodity exchange.

This view is useful insofar as it does not render those without states as passive victims of the machinations of evil Capital. It rather sees within them the embryonic structure of the legal form, precisely because they are struggling to materially constitute it. As Rancière puts it, in a very materialist fashion:

This is also why today the citizens of states ruled by a religious law or by the mere arbitrariness of their governments, and even the clandestine immigrants in the zones of transit of our countries or the populations in the camps of refugees, can invoke them. These rights are theirs when they can do something with them to construct a dissensus against the denial of rights they suffer. And there are always people among them who do it.[8]

Whilst a purely ideological model of dissensus may seem off, locating this in the political sphere does seem important. It perhaps also fits in with the notion of the bourgeoisie having a much greater hegemony than any other class before it, and the struggle some groups go through to gain these rights.

However, it does raise fundamental questions about the intersection between the political and the economic in a capitalist totality. Whilst it is obviously true that in some cases a structural-functional imperative causes a subject to be posited as ‘legal’, this cannot be the case everywhere. There is obviously also the idea that as the commodity form destroys traditional methods of dispute resolution, the legal form must rise up in their place.

But these functional accounts seem to banish class struggle from the realm of the constitution of legal subjects. This however, is not quite the case. Firstly, capitalism is not an autonomous development whilst it does develop through its own internal logic it required a class to smash the old relations of production and being to accumulate. In this way the development of capitalism and by extension the legal form can be explicitly linked to politics during the transition from feudalism to capitalism (note here the notion of ‘bourgeois freedom’). The deeper political question is that raised by Rancière, the process whereby subaltern groups are interpellated as legal subject. A large part of this process will be ‘automatic’ and therefore legal, this is because most people become commodity proprietors and engage in commodity exchange.

However, it seems clear that certain super marginalised groups did not gain such a position automatically; one might here think of racial groups or gender groups. Here, there is more of an ideological-political struggle that is linked to the traditional Engelsian thought on law. In essence here we see people operating within the assumptions and concepts of the legal superstructure so as to point out its contradictory nature. In this way their political struggles can end up positing them as legal subjects. However, it must be remembered that this occurs within the context of commodity production. It is only because the legal form is so widespread that political struggle is able to lead to a legal subject. This is because ultimately ‘right-less’ people are in contradiction to the material structure of mature capitalism, even if political conjunctures make it easy to ignore and fight this tendency.

To be honest I'm not sure if I like what I've just written, but it's done now...

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[1] Jacques Rancière, ‘Who is the Subject of the Rights of Man?’, South Atlantic Quarterly 103:2/3,Spring/Summer 2004, p.302

[2] ibid, p. 302

[3] ibid, p.303

[4] ibid, p.304

[5] ibid, p.304

[6] ibid, p.304

[7] Engels’ Letter to J Bloch, 1890 (MIA haven’t fully transcribed it!)

[8] ibid, p.305/6

The right to have rights

Ok, so my laptop has finally been fixed, rather unfortunately I had to get a new hard drive, which mean I have lost quite a lot of articles and notes on articles – mais c’est la vie. Also, this holiday has been horribly busy, so I haven’t had much time to do anything particularly intellectual. Recently, I have actually started to read some interesting articles. One pretty good one I read ‘The Right to Have Rights’ by Werner Hamacher (South Atlantic Quarterly 103:2/3, Spring/Summer 2004).

The article is essentially a reading of Marx and Arendt vis-à-vis human rights, obviously what I am interested in is the Marxian perspective. Hamacher examines the oft quoted ‘On the Jewish Question’, basically – to put it in somewhat Althusserian terms – the article examines the law from an external perspective. Most of my previous ‘work’ has been looking at the legal form, and legal subjects as posited in opposition to each other. In contradistinction to this approach (and in line with seemingly most of the post-whateverist legal theorists) what is here examined is those subjects who are outside of the law, i.e. those who have a right to rights.

The basic line of argument taken by this position is gleaned from Marx’s work ‘On the Jewish Question’, here ‘Christianity’ is seen to provide the ‘secular religion’ of democracy. Christianity posits religion as primarily a private matter, this meant that the ‘human’ could be perceived as separable from the citizen:

That public, political matters were matters alien to Christians meant nothing other than that the human was henceforth not only a political being, but, moreover, and above all, a social being. Politics, on the other hand, was thereby, however discreetly, transformed into the sphere that was able to guarantee the neutrality of the constituents of the state with regard to the political.
p. 334

Now, although this is ok as it goes, I think reading ‘On the Jewish Question’ in this way isn’t necessarily right. To again sound horribly like Althusser I think we need to read ‘On the Jewish Question’ in the light of the fullest development of the materialist dialectic (i.e. read it in a Marxist way). In this way rather than seeing Christianity as the cause of the shift, a change in the religious form should be seen as symptomatic of broader shifts in the socio-economic order. The rigid separation of private and public was only really achieved with the destruction of feudalism and the rise of the commodity form. It is only at this point in history that the economic ‘backbone’ of civil society is sufficiently ‘separated’ from the direct influence of politics, under feudal regimes politics was directly identified with economics (e.g. the feudal lord is the direct political and economic ‘master’ of the peasant).

But back to Hamacher. He argues that ‘democracy’ leaves a gap between the ‘human’ and the political. The ‘political man’ is defined as against other men and within the framework of a national community. What of course follows is that the ‘human’ in human rights is the ‘political’ man, and therefore only exists within a national political context. Since this is the case those groups of people who are without a nation are not human for the purpose of human rights.

This is a basic outline of Hamacher’s position. I found it pretty interesting, and I have already been thinking of somehow trying to account for those external to the law who have not been interpellated through the legal form as legal subjects, especially because I intend to start reading Agamben. Firstly, it should of course be noted that such theorising is not incompatible with Pashukanis. On the contrary it in facts serves to reinforce his account, insofar as it sees the legal form in very similar terms. What it does force us to do is examine the process by which ‘people’ are interepellated as legal subjects.

The first point I’d like to make is that Hamacher is incorrect to limit his account purely to ‘human rights’, a more interesting account would look at rights in general (particularly as human rights are seen as a ‘last ditch’ set of rights in any case). If we do this then the first point to note is that not only humans are capable of being legal subjects. With the development of capitalism and its (seemingly inexorable) centralisation the commodity form has grown to encompass more complex social organisms. Accordingly these organisms have (of necessity) been posited as legal subjects. Thus the corporation is capable of bearing rights, as are certain political organizations. Secondly, some of these social organisms are not rooted in any particular national-political organization. Thus the UN and certain TNCs are still capable of being legal subjects. Thus we can see that although human rights (and all rights) are conceived as ‘private rights’ they are nonetheless not necessarily rooted in a specific national context. Therefore we must why some subjects without nationality are capable of being posited as legal subjects and some are not.

This in itself is a complicated question which I do not really feel up to answering in all its complexity today. However, I think it might be quite interesting to reconsider some of the earlier stuff I said about the spread of the legal form so we get some insight into what might be the driving force behind the exclusion of certain groups from legal subjectivity.

Firstly, we can examine the first context in which the legal form was articulated. In Rome only a very small number of people were actually ‘legal subjects’. Primarily it was only the ‘heads of family’ who were interpellated in this way. Slaves, women and children were all ‘represented’ by the father. Any offence committed against them was only an offence insofar as it offended or harmed the father. Furthermore, any liability they incurred would accrue to the head of the household. This seems to show that where the commodity form is confined to a narrow spectrum of the economy there will be large numbers of people who are not legal subjects. Only those whose status sees them involved in commodity exchange are likely to be posited as legal subjects.

As the commodity form grows stronger we see the expansion of the legal form. This is accelerated by the destruction of other modes of dispute resolution on the basis of bourgeois ‘freedom’. In this respect disputes not directly related to exchange are nevertheless mediated through the legal form. This might provide a grain of distinction, insofar as we see that corporations are engaged in commodity exchange and insofar as there is a global market it is logical that these organizations become legal subjects. But this seems too neat and functional. Not to mention it smacks of economism, it seems necessary to connect the interpellation of legal subjects to politics but that will be for another post I think…

So yeah, I'll start again properly soon, I wanna do some more posts on this, and a little bit on class struggle and the law, I also reckon I might just branch out into Marxian theory in general, 'cos I often have little thoughts I'd like to jot down.

Harry Magdoff

I will begin posting again soon, have some interesting stuff to write on class struggle, PoMo people etc. but I've been bogged down.

However there is some sad news, Harry Magdoff has died, rest in peace comrade.