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non-citizen & human rights Arrow vol 3 no 1 contents
About borderlands Volume 3 Number 1, 2004


The non-citizen and the concept of 'human rights'

Frances Daly
Australian National University


The shift beyond human rights

1. A scepticism in relation to the concept of human rights, and thus a call to move beyond it, has been a feature of much radical dialogue in the fields of philosophy, political theory and legal studies for the past few decades. What emerges in many such inquiries touches, of course, upon much older debates about the nature of law and rights. Hippias had commented upon the law as a vehicle of tyranny before there was really very much law to be concerned about (Hippias in Sprague, 1972: 104); Tacitus complained that "we were once distressed by crimes: now, by laws" (Tacitus, 1996: 36); and a considerable time before this, around 311 B.C., Epicurus had uttered urgent teachings on the goal of happiness, which Plutarch was to later convey, as determined by an ability not to live as a slave to laws, and indeed to be able to freely express one's contempt for the laws "providing there is no fear of beatings and punishment" (Epicurus, 1994: 80).

2. In the modern period we see a profusion of such critiques of the problem of law, and particularly of a sense of an ever-widening gulf between the presumptions of the law and its use or realization. For example, it was an understanding of the necessity to oppose the law that motivated Marx's "Critique of Hegel's Doctrine of State", written in 1843. In democracy, Marx suggests, "man does not exist for the sake of the law, but the law exists for the sake of man" (Marx, 1984: 88). Its failure to be thus is then a failure in existence and in reality, a failure tending towards a "democracy of unfreedom". Recognizing the conundrum that this poses, Marx is moved to ask: "What sort of state is it that cannot even tolerate the idealism of its own civil law?" (Marx, 1984: 170). For Nietzsche, it is only those who do not feel themselves bound by existing laws who are doing what is fair and courageous, thereby creating for themselves a right (Nietzsche, 1982: 100). And even in Hegel's ultimate justification of the codification of laws by reason, we find a useful distinction made between a law of shadows or darkness as opposed to the law of the day (Hegel, 1967: 486). Indeed, at his most accepting of the State and laws, Hegel's understanding of dialectical process, and particularly the idea of a constant confrontation between the object and its concept, means that there are provocatively radical conclusions to be drawn from the idea that the laws and customs of an ethical community "are not something alien to the subject" (Hegel, 1978: 106). The problem then of the use of law, and particularly of a perceived separation between content and form, theory and practice, is an age-old problem.

3. Although expressed very differently this is the fundamental issue highlighted in the works of a number of contemporary theorists, including, amongst others, Maurice Blanchot, Jean-Luc Nancy, Augusto Illuminati and Giorgio Agamben, all of whom wish to understand, and indeed reinterpret, a contemporary politics based on a type of praxis that is deemed able to overcome separations within social life and what it means to be human. Rather than a politics that would traditionally have been expressed in terms of the 'individual', 'citizen', 'sovereignty', the 'general will', and so forth, here we are presented with the importance of 'inoperative' or 'unavowable' communities of diversified and conflicting interests that are paradoxical and ambiguous. This alterity, a being-in-common of singularities, these theorists argue, runs counter to the constraint that is a fundamental part of the immanent representation of a democracy of rights – a democracy that necessarily creates its own impossibility by constraining the very excess of desire that it attempts to make fit within a representation.

Agamben's potential politics and the concept of the refugee

4. The work of Giorgio Agamben addresses many of these issues. Agamben argues that a "legitimation crisis" of all current relations of power is above all exemplified in the law and the State (Agamben, 1999: 170). Our present condition is one of "accomplished nihilism" and "the complete triumph of the spectacle" (Agamben, 1993: 82, 80) in which the State presumes a representable identity and the law enacts this as a type of 'force without significance' (Agamben, 1999: 170). The realm of law is instead more typically that of a suspension of law – a state of exception that becomes the norm. Because we live in a time, he argues, in which an ultimate alienation of productive activity and language has been reached, there is nothing left to be revealed within the nullifying presuppositions of the State (Agamben, 1993: 80). These presuppositions, which forcibly ensure bonds of identity and belonging, merely 'uproot' and 'devastate' people, unhinging and emptying "traditions and beliefs, ideologies and religions, identities and communities" (Agamben, 1993: 83). On this basis, Agamben reasons that the "humanist discovery of man" is nothing more than "the discovery that he lacks himself, the discovery of his irremediable lack of dignitas". As a result, the more urgent issue, he contends, is to understand why "man has been separated from non-man and the animal from the human than it is to take positions on the great issues, on so-called human rights and values" (Agamben, 2004: 30, 16).

5. We will consider later whether Agamben's interpretation of a Debordian critique of social life results in something of a conceptual impasse, but let us presently examine how Agamben theorizes the place of the refugee and rights within this critique. Agamben argues that within our current conditions of alienation it is the figure of the refugee who signifies "the only imaginable figure of the people in our day" (Agamben, 1995: 114). The central presence of the refugee means that all concepts that have hitherto been used to represent subjects of the political – 'man', 'the citizen', 'the subject of rights', 'the sovereign people', and so forth – need to be abandoned, and in their place new categories of political thought should be expressed, such as inoperative community, compearance, mass intellectuality, whatever singularity, animality and the coming people (Agamben, 1995: 114). The categories of humanism and rights, it is contended, prevent human life – its acts and processes – from being possibilities of life. The 'happy life' must be one that has "reached the perfection of its own power", and the only way it might ultimately achieve this, it is argued, is by sovereignty and right no longer having any hold over human life (Agamben, 2000: 114-115).

6. Agamben's questioning of categories frequently creates worthwhile spaces in which challenges to political forms can be made. For example, he uses Alice Becker-Ho's argument concerning the origins of the Romany peoples to usefully call into question what we take to be a 'people' or a 'language'. Becker-Ho contends that the Romany are the "dangerous classes of an earlier epoch" who adopted the patronymics of the countries through which they travelled, rather than people of Eygptian or other origins, and this insight enables Agamben to argue that "all peoples are gangs and coquilles, all languages are jargons and argot" (Agamben, 2000: 67). Likewise, there are many good reasons for placing the refugee at the centre of a contemporary analysis of community – for instance, as a politicizing gambit, as the rejection of an ethics based on autonomy or individualism rather than a heteronomy, as a critique of a particular understanding of nationalism or because of the difficulty in drawing distinctions between State and non-State, even as the basis for a critique of the idea of cosmopolitanism and notions of world citizenship. But rather than pursuing these issues and their relationship to rights, what tends to emerge is a more limited account of the problem of law by way of a rejection of the concepts constituting human rights, including the ideas of humanity, the human, law and history. And, in a surprisingly unimaginative continuation of much preceding criticism of the law, Agamben draws the necessity of such a rejection from a disjuncture between the presuppositions of rights and the reality of their failed or insufficient enactment.

7. Agamben's use of the paradigm of the refugee is, as is well known, derived from Hannah Arendt's belief that a banished European Jewish people represented "the avant-garde of their people" because they did not particularly want to be assimilated to a new identity (Arendt in Feldman, 1978: 67). Certainly, a theoretical understanding of the mass phenomenon of refugees is important because, despite the shifting and yet constant presence of the mass refugee for the last hundred years, issues of persecution and exploitation, of displacement, loss and suffering, continue to mark the lived experience of the refugee. And yet there is something problematic with this particular characterization of refugees, for there is no necessary equation between the experience of exile – for either the ‘wandering Jew’ or refugees today – and empowerment. And given the shifting circumstances of present-day refugees, it is also difficult to argue that the condition of exile can be taken as a wider signification of a type of enabling permanent unfulfilment that is then assumed to be the basis of an effective witnessing. Drawing out the radical consequences of phenomena such as 'exodus' and the existence of the refugee is crucial, but the context of this cannot be ignored. This is only all the more the case if the shift that Agamben would have us think possible is to take place – to a generalized acknowledgement that we are all refugees (Agamben, 1995; 119).

The non-citizen and the concept of human rights

8. Beyond these reservations is, of course, the fact that the presence of refugees surely brings into serious question the assumption of rights – not merely citizen rights but also 'human rights' or, using the term Fraisse argues is preferable, 'rights of the human being' (Fraisse, 1995: passim). This is perhaps the most valuable point that Agamben makes in his theorization of the refugee. For whilst it would seem that the refugee would embody the very necessity of the existence of human rights, it is just such rights that are often, and increasingly, denied to those seeking asylum. Agamben’s frequently overly truncated writing tends to insinuate that this is an inevitable outcome – he refers to rights proving to be "completely unprotected" in the case of the refugee, and the State as "absolutely incapable" of dealing with this situation. (Agamben, 1995: 116, 115). Whereas, the reality is that there is variation within rights, in that some who seek asylum are in fact granted various rights. Indeed the present, and very much historically variable, tendency is towards making those seeking asylum fall within various categories of partial or non-citizenship. This tendency is an attempt, both linguistically and in practice, to rid certain nation-States of the category of the refugee. This most certainly marks a radical crisis in the concept of human rights, in that, if an obvious candidate for the protection of human rights is excluded from their meaning and enactment, we are then forced to question the significance of the category itself. But the question remains as to how we are to understand the nature of this crisis.

9. Agamben approaches this problem from two different but interrelated angles. Firstly, he draws our attention to the experience of permanent resident non-citizenship that constitutes the reality of existence for the majority of refugees in industrialized countries today (Agamben, 1995: 117). This reality is clearly at odds with a notion of human rights and rights of asylum because the purpose of such rights is to ensure the freedom and equality of all individuals. The denial of these rights to refugees places them in a condition of inequality and lack of liberty. From the point of view of citizen rights, this denial casts refugees into a situation of statelessness, cut off as they are from their own State's protection and without the rights of the State in which they are resident.

10. This condition of statelessness, of the absence of human rights afforded to the refugee, is, Agamben wants to emphasize, something more than just the paradoxical state of the existence of the concept of human rights and, at the same time, the reality of statelessness. It is also, he argues, the absence of any autonomous space in the political order of the State for the fact of being human (Agamben, 1995:116). Agamben claims that it is not possible to make existing conceptions of the human more effective or authentic – we need instead to "render inoperative the machine that governs our conception of man" in order to show its "central emptiness" "and to risk ourselves in this emptiness" (Agamben, 2004; 92). In doing this, he contends, humans are able to simply be their own existence as possibility (Agamben, 1993: 43). Agamben's reason for this theorization certainly seems to be motivated by his concern for a potential politics unanswerable to categories of right, but it is also the result of the fact that the category of human rights currently includes those who are excluded from any practical protection – in other words, there is a disjuncture between the presuppositions of rights and their enactment.

11. What it is that we might want a human potentiality to mean is, of course, a complex, difficult and open-ended issue. But it is important for us to ask whether a human potentiality must start from emptiness. Agamben repeatedly refers to the need to begin from a place of 'amorphousness' and 'inactuality', assuming that there is something that will necessarily follow from the simple fact of human existence – but why should we assume this? What might constitute or form this potentiality is surely concerned with what is latent but as yet unrealized. For Agamben, there is nothing latent that is not already tainted by a sense of a task that must be done (Agamben, 1993: 43). There is no ability to achieve any displacement with what is present within values of community and justice, there is only an immobilizing nothingness that assumes a false essence, vocation or destiny. If the 'whatever' being that he contends is indeed emerging, and it possesses, as he argues, "an original relation to desire", it is worthwhile asking what this desire is for (Agamben, 1993: 10). If it is simply life itself, then it is not clear why this should be devoid of any content. Any process of emptying out, of erasing and abolishing, such as that which Agamben attempts, is done for a reason - it involves critique and rejection, on the basis, necessarily, that something else is preferable. But Agamben provides us with very little of what is needed to understand how we might engage with this option.

12. Agamben's second argument is that the existence of rights stands in contradiction to the denial of these rights to refugees, and that this is the result of the State's most fundamental contradiction – the promotion of the idea of inalienable human rights - and the failure to protect this idea when it is no longer possible to conceive of human rights as rights of a citizen (Agamben, 2000: 20). This contradiction is not, for him, something inherent within the State itself, but is the outcome of the existence of rights in a world in which they are not granted equally (Agamben, 2000: 21). What we are not then given is an examination of what it is about this world that gives rise to these inequalities. Being told that contemporary existence is completely spectacularized does not provide us with sufficient insight to know why some refugees are denied rights, or why proclamations on rights do not always lead to their enactment. Agamben's analysis of rights is too cursory and dismissive for us to be able to draw any relation between his critique of alienation and his understanding of the place of the refugee. As a result, any basis for seeing within rights concerns for what it might mean to be human or for what community might entail, is discarded.

13. For example, Agamben discerns an ambiguity within the 1789 Declaration on the Rights of Man and of the Citizen because it is not possible to know whether the different rights mentioned – those of 'man' and those of 'the citizen' - refer to two distinct realities or are somehow subsumed within each other (Agamben, 1995: 116). But with this he both discerns an ambiguity and then neutralizes the tension underpinning its significance, by inferring from it that humans are reduced to 'bare life' in the State through the very existence of principles of freedom and equal respect. We are then led by him to conclude that this ambiguity is in fact the occlusion of human potentiality from rights. A number of problems could be raised with this dismissal of ambiguity. Why, for example, should we not view this problem as the real asymmetry that ambiguity entails, an ambiguity which might, under different circumstances, animate rather than annihilate a sense of being human? It is surely up to us to claim a complex sense of humanity or being human within rights, and there would seem to be some basis for this via the unresolved tensions and incompletions that the affirmations of equality and liberty signify. Might we not consider, then, that rather than the problem being that rights continue to fail our expectations or attempted realizations, it is perhaps us who have not yet arrived at a place where we might answer the appeal set down by the 'liberty, equality, fraternity' impulse of natural rights?

14. Agamben wants to draw attention to the role human rights play in the inscription of the human being or naked life in the political-juridical order of the State. Naked human life, he argues, becomes the foundation of the sovereignty of the State. And yet, if we see the value of the concept of rights of the human being persisting today, it is precisely in its ability to challenge the idea that human rights are merely an internal matter for each State. For Agamben, sovereignty, nation and human rights all make up the fiction that values are eternalized, when in reality rights are attributed only to the extent to which they constitute "the immediately vanishing presupposition" of the citizen (Agamben, 2000: 20-21). I would argue, however, that if we disassemble this particular discourse, we can identify in Agamben's objection to the concept of rights the conceptual construction of an externalization of the State and rights that necessarily makes all life or practice incommensurable and unrepresentable. This abstraction of the State emerges in formulaic and straightforwardly structuralist fashion, and does so in such a way that a rigid opposition between rights and 'the happy life' is the inevitable result. Thus we are presented with the State – that which wants to regulate disorder – and the law – that which regulates and prevents to produce order – as external, unmediated abstractions that are assumed to compel a fearful and largely compliant society to assent to their methods of discipline. Any transformative or subversive practice must, according to this logic, fall outside the concept of right or justice (Agamben, 1993: 40). There is no sense that types of conflict and refusal play a part in and against the State and law. The State is merely referred to as a blind and selfish bureaucratic machine (Agamben, 1995: 116) rather than as a range of processes in which people engage and live out modes of being and in which conformism, cynicism, opportunism and degrees of acquiescence currently appear to prevail.

15. A significant part of Agamben's rejection of rights is based on the belief that rights necessarily involve processes by which values are made eternal. The argument as to whether there is a problem with the idea of eternal metajuridical values able to be inscribed within rights is interesting for a number of reasons. Firstly, there is the problem of what particular values we find inscribed, and by what process these values have been arrived at; secondly, there are certainly difficulties at issue with an understanding of what is eternal within such values. But such arguments often proceed on the basis of misplaced assumptions. Instead of indicating the actual nature of the problem with particular metajuridical values, or indeed indicating what, for example, a construction of an eternalized, homogeneous substrate would mean for the idea of a social contract or rights, it is presumed that, despite whatever it is that constitutes their content, it is such values themselves that are at fault. Agamben elides all difference by assuming that right has only judgment, calculation and control as its outcome, and that the basis of right is its place within the structure of the State. And yet right is not necessarily or merely a part of the State; rather it is better understood as practices on the part of human beings interacting within social forms (of which the State may or may not be a part).

16. The problem would appear to be that not only are we no clearer as to the actual problems involved in such values, but we are also left without a basis for the critique of the intention of right. And, not surprisingly, we are also without any basis for considering the productive content of these values. Legal positivism assumes or sets out the basis for rights within a normative framework of the State that merely takes for granted judicial postulates of the inalienability of rights, the basis of rights in property and assumptions that people are in fundamental accord on matters of right. It is unable to imagine a realm of freedom against the State. But within rights, I would argue, we can detect unsatisfied demands that have nothing to do with essentialist assumptions about 'man' or 'citizen'. These demands are concerned with an understanding of human freedom in relation to values of solidarity, justice and the overcoming of alienation; they are historical and contingent, shifting and alive, and are not about a fixed, static, generic essence of the person, or some ahistorical or superhistorical immutable totality. What it is to be human is open and changeable, although not without determinations, commonalities and shared properties that can emerge at various times. Simply because we would want to challenge a distorted, limited or perhaps unappealing view of what it is to be human, does not mean that we are unable to say anything about what it is to be a creative, suffering, desiring being. Somewhat strangely, Agamben's argument is ultimately more concerned with the problem of contradictions within the theory and practice of rights and with attendant illusions that arise from these contradictions than with a critique of content or with an examination of a new potentiality that might emerge out of what he takes to be our present vacuousness. Such contradictions and illusions certainly do exist in relation to right, although as far as attitudes to the law are concerned I believe that a Slöterdijkean 'cynical reason' probably more accurately describes the matter.

17. The assumption that any understanding of human values is a reductionist, eternalizing essentialism has become one of the banalities of much contemporary theorizing, but even in more considered forms it often fails to come to terms with what it is attempting to criticize. For example, if there is a problem with making right the depository of eternal values, this is hardly because we have arrived at some content that would forevermore allow us to express a sense of justice in common. Rather, it is because what becomes 'eternalized' (or, more correctly, what merely congeals under certain circumstances and is able to be reformulated for these changing circumstances) is a view of what it means to be human in terms of an ability to possess. Thus, what is frequently taken to be the eternal nature of right is, unfortunately, anything but the idea of communal principles that would provide some natural standard, however derived, for justice. Instead, what becomes solidified, and, more importantly, reified, is a positivity of existing conditions (such as the right to possess, exclude and alienate) through which doctrines of the rights of the individual are determined. This, I want to argue, is at the basis of the juridical objectification separating ethics or justice from law. It is this reification of law rather than the eternalization of values that is of significance to a critique of rights.

18. With the rise of individualism in the seventeenth and eighteenth centuries, the idea of natural rights of the individual, of liberty, fraternity, and equality of the individual – of 'inalienable' rights and normative ideals – was quite clearly conceived in terms of the citoyen. What persisted of a sense of natural justice for all, whose standard had been derived from various sources - in nature, God, a view of reason or human nature - was undoubtedly distorted by a sense of individualism defined in terms of possession and property rights. But this sense was not completely extinguished. It is certainly on the basis of a realm of legal positivism and its doctrines of positive law, a realm which assumes that no element of law or right pre-exists an act of the State, that some of the basic contradictions that Agamben highlights are likely to emerge. For it is the State that institutes types of validity for its laws on the basis of procedure rather than any sense of morality or principles of justice. But there are other pathways to rights, other forms in which principles of justice have been derived and enacted. And if this is the case, why must we then necessarily conclude from a critique of legal positivism that there can be no ethical basis to rights?

19. If we are to understand the real function of rights in the modern State, as Agamben wishes to do, as rights of the citizen serving the interests of the nation-State, then we need to understand why a separation between human and citizen rights emerged, and what relation the distinction between these rights has to the propositions of an ethical or just life. This, I want to argue, involves understanding an inheritance that brings with it illusions and aporias, and, at the same time, a theoretical heritage that has engaged with certain ideals and intentions that reveal an anticipation of what is right and just. An ahistorical disdain for legal action is merely the obverse of the process of fetishizing legality. Much theory that merely substitutes the idea of the static essence of the person to explain the consequence of good and evil in the world with an equally static, invariant view of authority and the State is, I would argue, ultimately eternalizing such concepts. Undoubtedly, some sort of move beyond categories underscoring divisions within the ways people are entitled to live their lives is necessary. But much of the power of any such critique must depend upon the manner in which the context of this life – the possible experience of acting in the world, or 'form-of-life' - is itself understood. In the absence of any such context, what tends to emerge is a return to the problem of rights reduced to a division of form and content, rather than the overturning of this very problematic. Only in this case, because the content is seen to fall short of the abstraction of, for example, a "whatever singularity", the form is wholly discarded. More importantly, by revisiting this problem via a dismissal of the context of rights, and more specifically of the possibility of traces of the intention towards human dignity, a rich heritage of critique is sidelined.

20. Moreover, a separation of law and ethics in rights is just as much the separation of ethics from law, the latter an entirely necessary basis for an autonomous, ethical life beyond the juridical relations of the world of goods. For ethics to be completely subsumed by the law would hardly be a desirable thing; the law carries with it exploitative, ideological relations that are not a part of a viable ethics. Nor would it be in any way likely, given that what we are dealing with in relation to current, existing law is a form of decision-making as the ideological playing out of a conflict of wills upon the assumption that the State is all of us and that the will of the State must ultimately, justly, prevail. This is not the basis of a radical equality or solidarity. What we have instead is the separation of society from the ideals of the ethicality of a subject, partly, but not exclusively, the outcome of an Enlightenment abstract rationalism that insists upon a narrow calculation for its judgments. It is this absence of a sense of real justice that most needs to be subjected to critique today, not the possible illusions which might arise from the existence of rights. Agamben sees the necessity of this separation but he attributes it to a lack of ambiguity inherent within law. He also nervously empties any sense of being human of anything that is not simply potentiality, as if right and ethics have nothing to do with human possibility. The concept of potentiality has much that is worthwhile – there is a radical uncompletedness within our being human - but it needs what I refer to as "an ethos of the imagination" that is able to imagine an emancipatory ethics, and that is grounded in a basic responsibility for the other (Daly, 2001: passim) to be of use in critical theorizing.

The fate of right as guiding image

21. At its most fundamental, right is the right to something, and within the realm of natural rights or rights of the human being, it has been principally concerned with rights against oppression and inequality in order to realize a potential for freedom. Citizen rights have at their basis quite different values, namely, a range of political and property rights to be realized within and not against the State. This is not to say that law associated with human rights is not, at times, itself an external form of oppression - but natural or human right is also able to offer something quite different. The term needs to be used advisedly because of the problematic connotations it has – but there is a tradition of natural right containing anticipatory elements of human dignity in which forms of justice as ethically-based community survive, and it is this tradition, I would argue, which needs to be renewed. We can see this in all struggles for human dignity in which unsatisfied demands exist for overcoming the lack of freedom of exploitation and constraint; the inequality of degradation and humiliation; the absence of community in egoism and disunity. And so too can we view this via the necessary reference point that a critique of right provides: by acknowledging the hypocrisy of law or the distance between intention and realization we have an important basis for distinguishing between the problem of right and its complete negation, such as we would see under despotic, fascistic rule. The use and abuse of right is not the same thing as a complete absence of right, and understanding this is vital to being able to comprehend where and in what ways democratic, constitutional States become, or are, fascistic. Natural right, or the right of the human being, occupies a space of interruption in the divide between law and ethicality that can, on occasion, act as to reintroduce a radical pathos within right. Agamben is unable to allow for any of this because, for him, rights are without any basis in human respect, their institutional representation guaranteeing the logic of only the police, the market and, ultimately, the 'extermination camps'.

22. Let us look then at the more specific example of the right of the refugee or right of asylum. In the 1789 Declaration of the Rights of Man and of the Citizen there is a perceived need to set out what are described as "the natural, sacred, and inalienable rights of man". These rights, as is well known, concern freedom, equality, the right to liberty, property, security and resistance to oppression, the presumption of innocence, the right to opinion and religious expression and free communication. Likewise, the 1948 Universal Declaration of Human Rights restates these rights and extends an understanding of right to economic, social and cultural rights and, perhaps most importantly from the perspective of this paper, the right to a freedom of movement and residence and the right to seek and enjoy in other countries asylum from persecution. We have already mentioned the institutionalization of these rights in citizen rights, and that this sense of right was a creation of the nation-State. And along with this is the problematic nature of the inclusion of the right of property as an inalienable right, which first arose as the consequence of the division of labour and has little to do with anything inherently human, and the basic difficulty that arises with a sense of innate rights, as all rights have been acquired. We detect as well the formalism of general juridical equality with the much more normative content of the constitutional state of fundamental social division – those whose access to education, security, work and freedom from detention can be assumed, and those whose lack of this assumption is outlined in their right to seek its guarantee. However, it would be a clear distortion of the struggles involved in the emergence of codified natural rights to not also mention that an essential part of a sense of the absolute inalienability of the person was a view of individual freedom within community (the sort of idea we find Rousseau, for instance) and the attempt to exercise limits upon the power of tyrants to curtail that freedom. That there has been a highly variable degree of protection of these rights, or in certain cases no protection of them at all, is naturally problematic but cannot of itself be attributed to the fact of rights themselves.

23. More specifically, the 1951 Refugee Convention sets out the rights which should provide for rights and freedoms of the refugee that are at least equivalent to those of 'nationals' of contracting states, such as the freedom to practice religion, access to education, social security, employment and labour rights; and rights at least equivalent to those of so-called 'aliens', such as property rights, the right of association, access to courts, housing and education. It is this Convention which perhaps most explicitly assumes a separation of rights between 'citizens' as 'natural' holders of rights and those who are 'non-citizens' or residents, and it assumes that such 'non-citizens' are consequently not the natural possessors of such rights. This flagrant reduction of the individual to rights of differential and limited entitlement says much about the totalitarian tendencies of the post-war State, whose justification on welfare terms - a justification that paradoxically appeared in relation to radical social demands - is the basis of the redefinition of citizenship with the State as guarantor of all goods. And, of course, it is the particular outcome of the crisis of this State and the demise of welfarism in the late 1970s and early 1980s - resulting in the still familiar mix of the abnegation of State responsibilities (indeed the transference of obligations from the State to a highly individuated realm) with an increasingly pervasive and authoritarian use of State power - that is undoubtedly the impetus for the sort of radical critique of the State that we find in Agamben's work.

24. The context of rights is one that is frequently unstable, and, as such, it is important to clearly assess the place of rights within our present conditions of unfreedom. Often as a result of their denial, human rights currently act so as to allow a questioning of the assumed authority of the State. Indeed, without a sense of rights it would be difficult for us to understand the current absence of real freedom. If we consider the contemporary struggles of the 'Sans Papiers' in France, the several hundred thousand people whose refusal of the label 'illegal' and fight for documentation is premised on the basis that the undermining of rights is merely a way of attacking the value of dignity for all, we can see a clear example of the possibility that can be realized through right. The Sans Papiers are well-known for their questioning of the assumptions of immigration policies, such as the existence of quotas, detention camps and deportations, and they argue cogently for an end to frontiers themselves. Madjiguène Cissé argues that the initiatives of those claiming their rights are basic to the survival of communities (Cissé, 1997: 3). This is done on the basis of an appeal to rights of justice and egalitarianism. Indeed, it is not possible to understand this emancipatory struggle outside a conception of rights.

25. Agamben views all such setting out of rights as essentially reintegrating those marginalized from citizenship into the fiction of a guaranteed community. Law only "wants to prevent and regulate" (Agamben, 2001: 1) – and it is certainly the case that much law does – but within rights, I argue, we can also detect a potential for justice. In contrast, Agamben contends that legal right and the law always operate in a double apparatus of pure violence and forms of life guaranteed by a Schmittian 'state of emergency' (Agamben, 2000: 43). And although he recognizes the dire consequences of a state of emergency with the eradication of the legal status of individuals, he views this as the force of law without law, as a mystical or fictional element, a space devoid of law, an 'empty legal space', or 'state of exception' as Carl Schmitt refers to it, that is essential to the legal order (Carl Schmitt, 1985: 6). What is then eliminated here is any sense of how the appeal to rights brings into question institutionalized unfreedom and why this underlying insufficiency between the idea of right and real need is opposed by those attempting to expand the realm of human rights. The problem with this strategy for doing away with any distinction and placing the refugee in a position of pure potentiality is that, instead of liberating or revolutionizing the place of the refugee, it creates an eternal present that is unable to connect the very real reality of difference with a critique of the society that victimizes the refugee in the manner with which we are currently so familiar.

Human dignity and a radical theorization of right

26. There is much in Agamben’s analysis of contemporary society, particularly via his use of a Debordian critique of the spectacle, that forcefully restates some of the central problems of social life that we perceive in commodification, a fetishized distancing and an alienation of the very nature of what it means to be human. But perhaps the rather overstated or one-dimensional nature of Agamben's understanding of alienation reveals one of the problems with his use of this critique. He refers to the "absolutely banal man" who is tempted to evil by the powers of right and law (Agamben, 1993; 32); we have the 'falsification of all production' and the 'complete control of social memory and social communication'; or the "absolute systematic falsification of truth, of language and opinion […] without escape" (Agamben, 2002). Because it is precisely in such a critique that one would expect Agamben to not merely acknowledge the "complete triumph of the spectacle" but to explain the relation between the spectacle and what 'positive possibility' there remains within conditions of alienation that might be used to counter these conditions. There would seem to be an enormous gap between Agamben's critique of this society and the state of simply being that continues to be a possibility. This state of death that Agamben would argue now colonizes all structures of power and that eradicates any experience of democracy might well still possess some kind of antagonistic clash, as Toni Negri argues, but it is difficult for us to see just where resistance to this state might emerge (Negri, 2003: 1).

27. Certainly, Agamben calls for making all residents of extraterritorial space (which would include both citizen and non-citizen) as existing within a position of exodus or refuge, and in this we can perhaps see some basis for resistance. A position of refuge, he argues, would be able to "act back onto" territories as states and 'perforate' and alter' them such that "the citizen would be able to recognize the refugee that he or she is" (Agamben, 2000: 26). In this Agamben directs our attention usefully to the importance of the refugee today – both in terms of the plight of refugees and their presence in questioning any assumption about citizen rights, and also in placing the refugee, or "denizen" as he says using Tomas Hammar's term, as the central figure of a potential politics (Agamben, 2000: 23). But he also reduces the concepts of right and the values they involve to forms of State control, eliding all difference within right and thereby terminating an understanding of the reasons for a disjuncture between legality and morality and of an existing separation of rights from the ideal of ethicality, in which liberation and dignity exist to be realized beyond any form of contract.

28. It is always possible to suppose that a self-fashioned potentiality is simply available to us, and in some senses it is, but not because a type of theory merely posits the social and the historical as completely open to our manipulation or 'perforation'. Likewise, we cannot merely assume that changing 'forms of life' necessarily amount to types of refusal. Such a claim would only make sense if it were put forward on the basis of an appreciation of an impulse to freedom from particular types of constraint and oppression. It would also require a sense of how this impulse takes place within a variety of conditions, some of which might be easily altered and some of which might not. In the absence of an engaged sense of what this impulse means, and of the context in which elements of freedom and unfreedom do battle, it is impossible to speculate on the nature of the subjectivity or potentiality which might be emerging or which might be in stages of decomposition. Agamben merely presumes that a strategy by which we all identify as refugees will renew a politics and thereby end the current plight of the refugee, as if no other reality impinges on this identification. This is also assumed on the basis that the State – in Agamben's theorizing, the abstraction of an all-encompassing, leviathan State – is equally, readily and easily liable to perforation. This contradiction is indicative of a wider problem where what we encounter is a form of critique that is oddly inappropriate to the type of issue it addresses.

29. Much can be said in criticism of the doctrine of right, of the limited nature of the understanding of freedom and rights in documents on rights, of the assumption of the place of citizen rights as the locus of the fundamental rights of the human, and most significantly, the absence of any sense of the undetermined nature of what being might mean. But what must be stated, I feel, is that it would be a serious impoverishment of the ethical problem that we currently face to deny any potential value of rights in carrying forth traces of an impetus towards human dignity, of the ideals of freedom and equality, and to thus reduce rights to what might be termed an absolute politics. Rights cannot be reduced to citizenship rights as if the ideas of rights and citizenship are coterminus. What most critically needs to be understood is, firstly, why values of freedom and equality have such a limited and fragile place within conditions of such inordinate legalism, and, secondly, what the absence of freedom, which the cause of human rights inevitably suggests, means for the installation of any such rights. Without such an understanding we are left with a gestural politics that contains a posture of radicalism but one which fails to connect the aspirations of those who are struggling to achieve elementary rights with a vision of a world that could accord them a degree of dignity. To acknowledge this is not to be seduced by concepts of right or law, but is rather to refuse the denial of a radical questioning of the possibilities with which a discourse presents us. Benjamin's understanding of a genuinely messianic idea is something that is "not the final end of historical progress, but rather its often failed and finally accomplished interruption" (Benjamin, 1974: 1231). We find this in values that resist exploitation and assaults upon human dignity. And it is this realm that currently requires urgent, emphatic and significant renewal.

Frances Daly is a research fellow in the Philosophy Department at the Australian National University. She is working on a book on the German philosopher Ernst Bloch. Email:


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