Is humanity enough? The secular theology of human rights.

• Author: Fitzpatrick, Peter
• Position: Essay

Abstract

'[W]hoever invokes humanity wants to cheat' decrees Carl Schmitt (Schmitt, C, 1996, p 54). Or, we could add, has to cheat. The uncontainable 'human' of human rights does at times have to be contained. That is a condition of their having any effect, or even affect, whatsoever. But what quality is to be attached to that containment? With its usual usage, the containment assumes an instrumental appropriation of a unitary, a supposedly universal 'human' along with the subordination of others in its name. Taking a generative cue from the work of Upendra Baxi, the 'human' of human rights is found to resist that containment and to extend responsively to a plurality of diverse constituencies. An accommodation of these two seemingly opposed notions of the 'human' is provided by a theological discourse often associated with human rights, a discourse 'secularized' here in terms of Nietzsche's revealing how, with the death of God, 'new idols' are elevated for us now to live by--idols that can effect the neo-deific combination of determinate position with the illimitable possibility of being. The human, including the human of human rights, is taken as an instance. As such, the human of human rights is susceptible of an encapsulated arrogation in a variety of national, imperial and 'global' manifestations. Yet, Nietzsche would also indicate, with the 'tremendous event' of the death of God there is an exalted openness to the uncontainable possibility of the 'human'. This openness, along with its insistent plurality, goes to constitute the 'human' of human rights, and that openness is, in turn, given efficacy by the 'rights' of human rights.

Keywords:

Human Rights, Upendra Baxi, Secular Theology, Humanity, Universality, Plurality, Liberation.

1. Introduction and Celebration

   Even a remit as extensive, as ultimately extensive, as human rights would be stretched to celebrate the scholarship of Upendra Baxi--to accommodate its exuberant generosity of engagement, its generative range of reference. The fortunate focus of that scholarship, fortunate for the feasibility of this present essay, has for some time now been human rights, and compounding that happy coincidence, there is the recent and luminous concentration of Baxi's work on human rights in the second edition of his The Future of Human Rights (Baxi, U, 2006). (1)

   In a tribute to Baxi, this essay will consider his pointed emphasis on the future of human rights, and do so not so much by way of asking what future does human rights have but more by way of showing how futurity is constitutive of human rights--of human rights as they are, here and now. The essay subsumes futurity in this way by combining two qualities of human rights that have played significant parts in Baxi's work. One of these is a religious or quasi-religious quality of human rights, the other is the contested composition of the 'human' of human rights (see Baxi, U, 2006, pp 34-6, xix, xxiii-iv, 21, 89-90, and 137-47; Twining, W, 2006, pp 263 and 265-6). The constituent force these qualities bring to the composition of human rights is derived from a provocative division in the way Baxi typifies human rights. On one side of the divide, human rights cohere as unitary, even as monist and 'universal', at least as 'paradigm', and as such this conception of human rights can assume a 'dominant or hegemonic' position (Baxi, U, 2006, pp xv and 23). (2) In seeming contrast, and on the other side of the typifying divide, Baxi depicts human rights as plurality, as having 'not one but many futures', and he further depicts a scene in which 'human rights enunciations proliferate, becoming as specific as the networks from which they arise and, in turn, sustain' (Baxi, U, 2006, pp 26 and 47). Such multitudinous human rights not only provide 'sites of resistance and struggle', of subaltern assertion, but Baxi would also have it 'that the originary authors of human rights are people in struggle and communities of resistance' (Baxi, U, 2006, p xiv). This original creation does not, however, avoid dominance by something like a monist human rights endowed by some overweening power, even if '[d]ominant or hegemonic rights-talk seeks, but never fully achieves, the suppression of subaltern rights-talk' (Baxi, U, 2006, p 23). Nor do 'communities of resistance' avoid having their authoring of human rights reduced, even if 'at the very least', to a 'role ... coequal' with such power (Baxi, U, 2006, p 144). Yet for Baxi futurity would seem to have more affinity with the plurality of rights because 'futures' are 'open and diverse', and so much so that human rights 'may have ... radically contingent futures' (Baxi, U, 2006, p 5). Hence, perhaps, the crowning oxymoron of 'fragmented universality' (Baxi, U, 2006, p 50). What all this indicates is that the two typifications of human rights, the unitary 'universal' and the plural, do not escape mutual affect. Not only does the universal appear to be 'fragmented' plurally but human rights as plurality seem to be subject to some dominance by human rights as unitary assertion.

   Before resolving the seeming paradox of that mutuality, I must account for the qualities of human rights that enable this to be done: account for their religious or quasi-religious quality and for their quality of being human. To do this it will be necessary to go beyond the standard correspondence drawn between religion and human rights, and to do that I will first join the numerous pilgrims to the market-place where Nietzsche's madman announces the death of God, an announcement that is a prelude to Nietzsche's embedding a secular theology in modernity. (3) What Nietzsche helps us identify is that which in modernity can effect the neo-deific combination of determinate position with the illimitable possibility of being. The 'human' is then taken as an instantiation of the combination. Thence the 'rights' of human rights are found to operate in that same combinatory dimension, making the universalized 'human' operative. And this configuring of human rights is found to depend on that mutuality of affect between human rights as monist and as plural derived from Baxi's The Future of Human Rights. (4)

2. The Dimensions of Secular Theology

   In the oft-invoked report of God's death given us by Nietzsche's supremely sane madman in The Gay Science we find the madman, 'having in the bright morning lit a lantern', proclaiming to a group of mocking moderns gathered in the marketplace that he is looking for God, only then to fix them in his stare and announce that God is dead and that, furthermore, 'We have killed him--you and I! We are all his murderers' (Nietzsche, F, 2001, pp 119-20, his emphasis). The madman then puts a series of piercing questions to his audience. In muted summary: How could we possibly encompass this deed? How could we survive in the ultimate uncertainty that results from it? What substitutes will we have to invent to replace the murdered God? His audience is silent and disconcerted. He realizes he has 'come too early', realises that news of this deicide, of this 'tremendous event', is still on its way, yet to reach 'the ears of men': 'this deed', he concludes, 'is still more remote to them than the remotest stars--and yet they have done it themselves!' (Nietzsche, F, 2001, pp 120, his emphasis).

   What of Nietzsche's own response to the deed? That response could be rendered in three related dimensions, moving at times now beyond The Gay Science. And all three are compacted in one of the madman's questions: 'What festivals of atonement, what sacred games will we have to invent for ourselves?' (Nietzsche, F, 2001, pp 120). (5) Nietzsche saw that deific substitutes were, for now, imperative. We 'have to invent' them. (6) And indeed Nietzsche did mark and decry the emergence of such 'new idols' as the 'man' of humanism--'the religion of humanity' to borrow the phrase--and the state, the state that would still act like 'the ordering finger of God' (Nietzsche, F, 1954, pp 160-1 and 1994, p 14). (7) There is, in short, a jostling pantheon of new idols involved in this first response of Nietzsche to the deicide.

   There is, however, a monism imported by Nietzsche's second response. The festivals that have to be invented are ones of atonement, at-one-ment, the recovering of a unity. (8) 'I fear we are not getting rid of God because we still believe in grammar ...' (Nietzsche, F, 1968a, p 38). Grammar, in this broad dispensation...