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Beyond Human Rights


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BEYOND

HUMAN RIGHTSAlain de Benoist

ARKOS

MMXI


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First English edition published in 2011 by Arktos Media Ltd., originally

published as Au-delà des droits de l’homme: Pour déendre les libertés

(Paris: Krisis, 2004).

© 2011 Arktos Media Ltd.

No part o this book may be reproduced or utilised in any orm or byany means (whether electronic or mechanical), including photocopying,

recording or by any inormation storage and retrieval system, withoutpermission in writing rom the publisher.

Printed in the United Kingdom

----

BIC classification: Social & political philosophy (HPS)

Human rights (JPVH)

ranslator: Dr Alexander Jacob

Editor: John B. Morgan

Cover Design: Andreas Nilsson

Layout: Daniel Friberg

Prooreader: Matthew Peters

ARKOS MEDIA LD

www.arktos.com


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A NOTE FROM THE EDITOR

Unless otherwise indicated, the ootnotes to the text were addedby the author himsel or the original French edition. Additional

ootnotes which were added by me are so marked. Where sources inother languages have been cited, I have attempted to replace themwith existing English-language editions. Citations to works or which Icould locate no translation are retained in their original language. Website addresses or on-line sources were verified as accurate and avail-able during May and June 2011.

I would like to thank Pro. Eric Maulin, who kindly contributed

an original Preace or this volume on extremely short notice. I wouldalso like to extend my appreciation to Sergio Knipe, who translatedthe Preace; to Dr. Alexander Jacob, who made some clarificationsregarding the translation o the Preace; and to Matthew Peters, or hisextraordinary contributions as a prooreader.

-JOHN B. MORGAN IV


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FOREWORD

Summum ius, summa injuria. Tere is, perhaps, no other area olaw where Cicero’s saying (well-known to all lovers o dictionaries

o quotations) is more applicable than human rights. In the name ohumanity, the Empire o Good will bomb Belgrade, Baghdad or rip-oli, oment colour revolutions in ormer Soviet states, set the Maghreb

and the Near East ablaze, and seek to universally impose its undamen-talist conception o democracy. Squads o businessmen dispatched bycorporations will ollow the ideological bulldozers driven by the evan-gelists. How many times have popular revolutions been hijacked bysocial beneactors chiefly interested in serving the interests o the peo-ple behind them?

Already in the late 1970s — with the onset o the second wave oglobalisation — the philosopher Marcel Gauchet observed how the

deence o human rights had been turned into a substitution policy.Tis metamorphosis has continued: rom politics, one has moved onto religion, so much so that today — as Alain de Benoist observes inthe present volume — ‘it is as unseemly, blasphemous and shocking tocriticise the ideology o human rights as it once was to doubt the exist-ence o God’. In this context, works critical o human rights – meaningworks written in a critical spirit – can only be beneficial. With the eyes

o a lynx, at the beginning o this transormation, Michel Villey had set

1 Latin: ‘the extreme law is the greatest injustice’. From Cicero, ‘On Duties’, bookone, chapter 33.-Ed.

2 Marcel Gauchet, ‘Les droits de l’homme ne sont pas une politique’, in Le Débat , no.3, July-August 1980, pp. 2-21; reprinted in La démocratie contre elle-même (Paris:Gallimard, 2002).


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10 Beyond Human Rights

out precisely to provide such a critique. He caused quite a bit o con-sternation and his work is now read neither in law aculties nor any-where else. Is Alain de Benoist’s work destined to meet the same ate?We bet it won’t. Still, the sanctimonious are gathered in their palaces:the Venetian palaces housing the mighty Venice Commission. Teseconstitutional engineers are developing principles o political justice tobe adopted by all states seeking admission into one o the many Euro-pean organisations, starting rom the European Council and EuropeanUnion. In the Palace o Nations in Geneva, away rom the cries o thepeople, experts are setting down universally applicable human rights

laws and the ways in which these are to be applied. In the Palace o theRights o Man, in Strasbourg, great inscrutable judges, enveloped inlong silk robes, unflinchingly issue regulatory judgements reversingprevious laws, overruling parliaments and bypassing the constitutionso sovereign states. It is difficult to make this criticism heard becausethe Church o Human Rights is so powerul that it imposes as sel-evident doctrines which rest on nothing but sheer assumptions, andwhich ofen go against the most ancient laws in peoples’ traditions.

It is upon these assumptions that Alain de Benoist ocuses, inves-tigating the origins, basis, universality and influence o human rights.In doing so, he undermines the very oundations o human rights andtheir underlying claims.

1. Human rights are ofen presented as being timeless rights. ake thePreamble to the Declaration o the Rights o Man and o the Citizen o

1789:

Te representatives o the French people, constituted in the NationalAssembly, considering that ignorance, orgetulness or contempt othe rights o man are the only causes o public misortunes and thecorruption o governments, have resolved to set orth, in a solemndeclaration, natural rights, inalienable and sacred to man.

3 Michel Villey, Le Droit et les Droits de l’homme (Paris: Presses universitaires deFrance [PUF], 1983).

4 Otherwise known as the European Court o Human Rights.-Ed.

5 Te Declaration o the Rights o Man and o the Citizen was adopted by the FrenchConstituent Assembly during the French Revolution, in August 1789.-Ed.


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Foreword 11

Forgetulness or contempt, according to this declaratory rhetoric, justi-fies the need to reinstate rights which nonetheless already exist . It is orthis reason that the first French Revolutionaries were so keen to drawa distinction between the Declaration o 1789 on the one hand and theConstitution o 1791 on the other. Te ormer reinstates what is al-ready in existence, whereas the latter establishes something which pre- viously did not exist; the ormer invokes an alleged tradition, the latterorges institutions or the new man. But clearly this is a largely rhetori-cal distinction. Te antiquity o the rights invoked serves to justiy thepromotion o the new man, Homo oeconomicus, whose actions are en-

tirely calculated to match the algorithm o his own interests and whosebehaviour can be standardised.

Antiquity, however, ignored the idea o undamental rights. Nei-ther the Greeks nor the Romans believed there could be such a thingas what we call human rights, which are subjective rights attached toall human individuals as subjects. For human rights to become possi-ble, the notion o the individual had to be invented, and Norbert Eliashas shown that there was no equivalent to it in Antiquity. Alain deBenoist stresses the important role which the Christian religion playedin the birth o the idea o the individual. Tis is not to say that individuals did not exist beore Christianity (to think so would be absurd);simply, individuals were not acknowledged as such. For the categoryo the individual to make its appearance — the prerequisite or thebirth o human rights — it was necessary to attribute a unique valueto each human being, a soul which would connect it to God. Starting

rom the individual, it then became possible to think in terms o subjects; starting rom subjects, in terms o subjective rights; and startingrom subjective rights, in terms o human rights. Naturally, this wasno linear progression; yet it indicates an axis which ultimately runsrom St. Augustine to Locke and Kant. From the Sixteenth centuryonwards, it has contributed to the development o modern naturallaw, which has ound its chie representatives in Grotius, Puendor,

6 Latin: ‘economic man’.-Ed.7 Norbert Elias, Te Society o Individuals (Oxord: Basil Blackwell, 1991).

8 Hugo Grotius (1583-1645) was a Dutch jurist who is considered one o the ounderso international law based upon the principles o natural law, in particular as itpertains to the conditions or the justifications o war.-Ed.

9 Samuel von Puendor (1632-1694) was a German political philosopher andstatesman. He asserted that the authority o the state depends or its power upon


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Locke and Wolff and has exercised a considerable influence uponthe thought o both the Founding Fathers o the United States and theFrench Revolutionaries.

Te anthropological revolution which made it possible to think oman as an individual immediately went hand-in-hand with a juridicalrevolution which imposed the idea that individuals are equal beorethe law, i.e., that they possess inalienable subjective rights. Differencesamong men thus came to be regarded as something merely contingent,secondary and social, and hence commonly perceived as unjust. Somuch so that, as René Girard has illustrated, it is equality — through

the mimetic rivalry it engenders — and not mutual difference whichis the major cause o conflict among men. Alain de Benoist has writ-ten that a triple revolution has shaped modernity: ‘On the one hand,the notion o will is substituted or the notion o order. On the otherhand, the individual has moved to the centre and the law has becomehis attribute. Finally, the law is identified with “justice”, the latter hav-ing henceorth an essentially moral complexion.’ Tis triple revolutionclearly shows that human rights are ar rom eternal and that theiralleged universality is merely the expression o an ideology, which isto say o a system or representing the world and man’s place in theworld which has being developing and incessantly changing since lateAntiquity. In its modern orm, the anthropology o subjects is a recentinvention. It is based on an abstract conception o the individual,reduced to certain constitutive elements whose combinations standar-dise our actions.

the combined wills o the individuals that comprise it.-Ed.

10 John Locke (1632-1704) was an English philosopher o the Enlightenment who isregarded as the most important theorist o liberalism, as his works were extremelyimportant to the development o modern democracy.-Ed.

11 Christian Wolff (1679-1754) was a German philosopher who viewed humansociety in the same way as the division between body and soul, in which the soulis the leadership o the state and the body represents its subjects, which comprisethe majority o the populace.-Ed.

12 Georg Jellinek, Te Declaration o the Rights o Man and o Citizens: A Contributionto Modern Constitutional History (Wesport: Hyperion Press, 1979).

13 René Girard, Violence and the Sacred (Baltimore: Te Johns Hopkins UniversityPress, 1977).

14 Regarding this matter, we shall reer to the overview provided by J. B. Schneewind,Te Invention o Autonomy: A History o Modern Moral Philosophy (Cambridge:Cambridge University Press, 1998).


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Foreword 13

2. Human rights, however, are presented not in terms o their histo-ricity — or this would weaken their authority by relativising them— but through a philosophical tale o their oundations. It is always very important to clearly distinguish the historical question o originsrom the philosophical one o oundations. Alain de Benoist must becredited or having drawn a perect distinction between the two issues.

In its basic version, the question o the oundations o human rightsmay be ormulated starting rom social contract theories. Indeed,explanations not o the origins o society but o its oundations were

first developed within the school o modern natural law, a currento thought which began with Grotius’ publication o the treatise TeRights o War and Peace in 1625 and which continued into the Eight-eenth century. Te various social contract theories vary significantly,to the point they are mutually irreducible. Still, they ollow a line othought that may be summed up as ollows: ree individuals exist inthe state o nature. In order or them to deend their own reedomand property, they soon realised they needed a common power whichcould secure their undamental rights. Te state, which is to say publicpower, results rom an agreement among ree individuals who haveregrouped to orm an association. Te political constitution whichserves as a law or them is the contract which brings them together.All the elements behind the theory o human rights are already pre-sent in this mythological account: the individual in the state o natureis a Homo oeconomicus, a ree individual and property owner con-

cerned with deending his own interests. Trough rational planning,he reaches the conclusion that the establishment o the state is neces-sary i he is to deend his own interests. As individuals are essentiallyrational, a collective choice can only lead to a contract. Case made.Te same reasoning may be applied at the level o states to justiy theestablishment o an international society.

Tis line o reasoning, sprung rom Seventeenth-century philo-sophical treatises, has not yet grown outdated. It is still to be ound atthe very heart o the most sophisticated contemporary theories. JohnRawls’ A Teory o Justice, which is ofen regarded as the greatest

15 Grotius on the Rights o War and Peace: An Abridged ranslation (Clark: TeLawbook Exchange, 2009).

16 John Rawls, A Teory o Justice (Cambridge, MA: Belknap Press, 1971).


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work o political philosophy o the wentieth century, is nothing butan elaborate reormulation o social contract theories. Some o themajor interpretations o globalisation, such as Francis Fukuyama’stheory about the end o history or James Rosenau’s idea o global

governance, are based on the same assumptions. Social contracttheory is not an old theory belonging to the history o political phi-losophy, but rather something which is constantly being updated andexpanded, and which serves as a oundation or theories o interna-tional law. Te recent theory about ‘the responsibility to protect’ whichhas been applied by the United Nations Security Council in the Ivory

Coast and in Libya ultimately rests on Locke’s idea that rulers onlyderive their legitimacy rom the protection they afford the reedomand property o individuals, thus losing all legitimacy the momentthey oppose any insurrection in the name o reedom. When the socialcontract is severed, the NAO air orces will intervene to restore it.

3. Te above observations lead us to another question, which is alsoraised by Alain de Benoist in his work, namely the issue o the univer-sality o human rights. Human rights are spreading globally. Does thismean they are universal? A distinction must clearly be drawn betweenthe two questions. Te first is a practical matter, the latter a juridi-cal one. Still, the two questions are interrelated. Te idea that humanrights are universal will lead people to search or ways o extendingtheir applicability. Te just war is the unavoidable consequence o a-firming the universality o human rights.

Te alleged universality o human rights is bound to run up againstthe diversity o cultures and values. One civilisation will exposedeormed newborns, while another will euthanise the elderly. TeCaribs would eat the flesh o their slain enemies in order to assimilatetheir virtues, while the Incas used to sacrifice a Corn Queen in order tosprinkle their fields with resh blood. Many populations o sub-Saha-ran Arica practice emale circumcision; Jews and Muslims practicemale circumcision. Dying or one’s country afer killing the highestpossible number o enemies was still held to be an honour only fify

17 Francis Fukuyama, Te End o History and the Last Man (New York: MaxwellMacmillan, 1992).

18 James Rosenau, urbulence in World Politics: A Teory o Change and Continuity (Princeton: Princeton University Press, 1990).


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Foreword 15

years ago, while having an abortion was seen as a crime against thenation. Slavery as practiced in ancient Rome and Athens has becomethe very symbol o degeneration, and yet purchasing a child conceivedin the womb o a woman who is renting her uterus is held to be aright in some modern Western countries. A thousand other examplescould be cited to illustrate the ollowing point: ‘Tree degrees o lati-tude overthrow jurisprudence. A meridian determines the truth. Lawhas its periods; right has its epochs; Saturn’s entry into the house o theLion marks the origin o a given crime. It is an odd kind o justice tohave a river or its boundary. ruth lies on this side o the Pyrenees,

error on the other.’ Under these conditions, what credibility couldthe idea o universal human rights have?

A Universal Declaration o Human Rights was adopted througha resolution o the General Assembly o the United Nations on 10December 1948 in the Palais de Chaillot (yet another palace!), but itsapplicability remained limited, as is shown by the multiplication olater declarations: the American Declaration o the Rights and Dutieso Man, adopted in Bogotá in 1948, the Convention or the Protectiono Human Rights and Fundamental Freedoms (known as the Euro-pean Convention o Human Rights) signed in Strasbourg in 1950, theArican Charter on Human and Peoples’ Rights adopted in Nairobi in1981, the Universal Islamic Declaration o Human Rights proclaimedin Paris in 1981, the Arab Charter on Human Rights signed in 1994and finally adopted in unis in 2004, the European Charter on Fun-damental Rights adopted in Nice in 2000... Why multiply the declara-

tions i they are all alike? Te truth is that, in act, they are not alike(or some stress rights and others add duties; some contain only un-damental rights, while others also include social or economic rights).Nor do these declarations all stem rom the same principles.

ake the ollowing example: in its Preamble, the Universal IslamicDeclaration o Human Rights contains a resounding statement:

Tereore we, as Muslims who believea) in God, the Beneficent and Merciul, the Creator, the Sustainer,

the Sovereign, the sole Guide o mankind and the Source o all Law;

19 Blaise Pascal, Pensées and Other Writings (Oxord: Oxord World’s Classics, 1995),§ 294, p. 23. Montaigne had already written: ‘What truth is it that is bounded bythese mountains and that is alsehood in the world beyond them?’ in Apology orRaymond Sebond (Indianapolis: Hackett, 2003), p. 140.


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b) in the Vicegerency (Khilaah) o man who has been created toulfil the Will o God on earth;

c) in the wisdom o Divine guidance brought by the Prophets,whose mission ound its culmination in the final Divine message thatwas conveyed by the Prophet Muhammad (Peace be upon him) to allmankind.

It does not take a great scholar to grasp that the universality reerredto here has little to do with the universality o human rights as under-stood by the European Convention o Human Rights or the EuropeanCharter on Fundamental Rights, both o which prudently avoid all re-

erences to God and assume man is o one kind.Tese ew indications are enough to reveal how in the West, in

Europe, when talk is made o the universality o human rights, it is realuniversality — so to speak — which is being reerred to, namely thato secularised, individualist societies ollowing a market economy andmass consumption. It is this universality alone which is being offeredas a model to the rest o humanity. Besides, it would be easy to showhow all the exotic declarations, charters and conventions on humanrights are more the product o an incomplete acculturation process, aorm o collateral damage caused by the colonisation o consciences,than o any spontaneous drive towards undamental rights on the parto indigenous elites!

Te Western notion o individual rights is ar rom common to eve-ryone, including those who adopt declarations or charters regardingundamental rights. As Alain de Benoist well illustrates, the European

conception o the individual is simply incomprehensible to most non-Western cultures, which rest on completely different holistic or com-munitarian oundations.

4. Much evidence suggests that the spread o human rights is takingan increasingly authoritarian turn. Alain de Benoist begins by ocus-ing on the problem o the emergence o the idea o dignity as a cate-gory central to human rights. Ignored in the first declarations rom thelate Eighteenth century, the dignity o the human person entered theworld o human rights afer 1945, when it began to be used in the senseo that which distinguishes man — something above the sovereignty o

20 Full text available at the Al-Hewar Center Web site (www.alhewar.com/ISLAMDECL.html).


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Foreword 17

both individuals and peoples. Te introduction o the idea o dignityin relation to human rights has led to a substantialist turn. Humanrights are not merely subjective but also substantial, meaning they arerights which neither individuals nor peoples can orgo, as they repre-sent the very essence o man.

A undamentalist conception o human rights has thus emergedwhich justifies any deence o these rights against the very will o individuals or peoples — deence by means o orce.

Trough various bodies, the European Council is playing a leadingrole in spreading this conception. Let us recall here, by way o exam-

ple, the action o the Venice Commission and o the European Courto Human Rights.

Te Venice Commission (officially, the European Commission orDemocracy through Law) is an advisory body o the Council o Europespecialising in constitutional matters. It was very active in the 1990s,when it lent advice to the rulers o central and eastern European statesby providing them with good constitutional principles. Te Commis-sion has played an important role in promoting what is sometimes stillreerred to as ‘democratic conditionality’. Its original aim was to helpthe ormer Soviet states to change their constitutions and undamen-tal laws so that they would be in conormity with European norms byrespecting the standards o the European Council — namely, democ-racy, human rights and the rule o law. Later, the reputation acquiredby the Venice Commission enabled it to extend its influence beyondEurope. It is now particularly active in Arica and the Middle East.

Parallel to this, we are witnessing a juridically remarkable develop-ment o the European Court o Human Rights, which is going urtherand urther in its definition o what constitutes real democracy. TeCourt is setting the main standards or democracy and, in doing so,increasingly affecting the constitutional law o European states, to thepoint o breaching their independence.

21 he European Commission or Democracy through Law, better known todayas the Venice Commission, was ounded in Strasbourg some twenty years ago –on 10 May 1990 – by the 18 member states o the European Council: Austria,Belgium, Cyprus, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg,Malta, Norway, Portugal, San Marino, Spain, Sweden, Switzerland and urkey.

22 Tis is a phenomenon which has been studied in detail, yet without any criticalspirit, by Florence Jacquemot in Le standard européen de société démocratique (Montpellier: Université Montpellier I, 2006), and more recently by Yannick


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Democracy is literally in the grip o human rights. Tis orm odemocracy is called constitutional. Judge Aharon Barak, the ormerPresident o the Israeli Supreme Court, summed it up in a rather strik-ing way:

Everyone agrees that a democracy requires the rule o the people,which is usually effectuated through electing representatives in a leg-islative body. Tereore, requent elections are necessary to keep theserepresentatives accountable to their constituents… Democracy is notsatisfied merely by abiding by proper elections and legislative suprem-acy. Democracy has its own internal morality based on the dignity and

equality o all human beings. Tus, in addition to ormal requirements(elections and the rule o the majority), there are also substantiverequirements. Tese are reflected in the supremacy o such underlyingdemocratic values and principles as separation o powers, the rule olaw, and independence o the judiciary. Tey are based on such un-damental values as tolerance, good aith, justice, reasonableness, andpublic order. Above all, democracy cannot exist without the protectiono human rights — rights so essential that they must be insulated romthe power o the majority… Democracy is not just the law o rules andlegislative supremacy; it is a multidimensional concept. It requires rec-ognition o both the power o the majority and the limitations on thatpower. It is based on legislative supremacy and on the supremacy o values, principles, and human rights.

Tis extract rom a work by Judge Barak reflects a very commonconception o democracy, which is ound among several authors: the

Frenchman Dominique Rousseau, the German Peter Häberle, andthe American Stephen Breyer are only some o the zealous deenderso this substantialist conception o democracy, which treats the people

Lécuyer, L’européanisation des standards démocratique (Rennes: Presses del’Université de Rennes, 2011).

23 Aharon Barak, Te Judge in a Democracy (Princeton: Princeton University Press,

2006), pp. 27-33.24 Dominique Rousseau, Sur le conseil constitutionnel: La doctrine Badinter et

la démocratie (Paris: Descartes & Cie, 1997); Dominique Rousseau (ed.), Ladémocratie continue (Paris: LGDJ, 1995).

25 Peter Häberle, L’État constitutionnel (Paris: Economica, 2004).

26 Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution(NewYork: Alred A. Knop, 2006).


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Foreword 19

chiefly as an ideal and an abstract principle rather than a tangible com-munity brought together by shared values, views and practices.

Alain de Benoist’s work offers a particularly enlightening critiqueo this concept o substantialist or undamentalist democracy. It willserve as a starting point or thinking beyond human rights through areturn to political categories. Human rights are not a policy and a pol-icy o human rights is the very negation o politics. Alain de Benoist isully in line with Carl Schmitt’s and Julien Freund’s theories aboutthe essence o politics. Indeed, he may be regarded as their real heir.

Eric Maulin,Proessor o Public Law at Strasbourg University Director o the Institut des Hautes Études EuropéennesJune 2011

(ranslated into English by Sergio Knipe)

27 Carl Schmitt (1888-1985) was an important German jurist who wrote aboutpolitical science, geopolitics and constitutional law. He was part o the ConservativeRevolutionary movement o the Weimar era. He also briefly supported theNational Socialists at the beginning o their regime, although they later turnedagainst him. He remains highly influential in the fields o law and philosophy.-Ed.

28 Julien Freund (1921-1993) was a student o Raymond Aron and Carl Schmitt.During the Second World War, he was a member o the French Resistancemovement. Afer the war he became a proessor o sociology at the Universityo Strasbourg. In 1980, in protest against the French educational system andits methods o teaching political science, he decided to retire. He was also acontributor to New Right publications in both Germany and France.-Ed.


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INTRODUCTION

One sometimes wonders what Europe has brought to the world,what particularly characterises it. Te best reply is perhaps this:

the notion o objectivity. Everything else flows rom this: the idea othe individual and o the reedom o the individual, the common goodinsoar as it is distinguished rom particular interests, justice as the

search or equity (that is to say, the opposite o vengeance), the ethicso science and the respect or empirical data, philosophical thoughtinsoar as it is emancipated rom belie and conserves the power othe thinker to think o the world and to question truth by himsel, thespirit o restraint and the possibility o sel-criticism, the capacity ordialogue, and even the notion o truth.

Universalism is a corruption o objectivity. Whereas objectivity isachieved rom particular things, universalism claims to define particu-

larity rom an abstract notion posed arbitrarily. Instead o deducingconscience rom being, it proceeds in an opposite direction. Univer-salism does not consist in treating things objectively but rom an over-arching abstraction rom which a knowledge o the nature o thingsis supposed to ollow. It represents the symmetrical opposite o theerror o the metaphysics o subjectivity, which reduces the good to thatwhich is good or me or good or us, the true to the judgment o one’s

own conscience or to the personal. Te European tradition has alwaysaffirmed man’s necessity to struggle against his immediate subjectiv-ity. Te entire history o modernity, says Heidegger, is a history o theunravelling o the metaphysics o subjectivity.


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Subjectivity leads necessarily to relativism (everything is valid),reaching in this way the egalitarian conclusion o universalism (all areimportant). Relativism cannot be surmounted except by the arbitra-tion o one’s sel (or o our selves): my point o view should prevail orthe sole reason that it is mine (or that it is ours). Te notions o justiceand o the common good are destroyed in one blow.

Te ideology o human rights combines these two errors. It isuniversalist insoar as it wishes to impose itsel everywhere withoutconsideration or relationships, traditions and contexts. It is subjec-tivist insoar as it defines rights as the subjective attributes o a single

individual.‘Te enthronement o human rights’, writes Marcel Gauchet, ‘is

surely the major ideological and political act o the last twenty years’.Human rights, he adds, have become ‘the ideological centre o gravity’o everything that we participate in at present. Tey are on the vergeo replacing, in a hegemonic manner, all sorts o political and socialdiscourses which ormerly were articulated rom the point o view onotions that are today worn out or discredited (tradition, nation, pro-gress, revolution), as well as o becoming the sole compass o a dis-oriented epoch, and o supplying a minimal morality to a world indisarray. Tey are the ‘moral horizon o our time’, says Robert Badint-er. Tey should become the ‘oundation o all societies’, adds KofiAnnan. Tey contain ‘in essence the concept o a true world govern-ment’, declares Jean Daniel.

Tey are even more than that. Based on propositions declared to be

‘evident’ (‘we hold these truths to be sel-evident’ can already be oundin the American Declaration o Independence o July 1776), they

1 La démocratie contre elle-même (Paris: Gallimard, 2002), p. 326.

2 Robert Badinter (b. 1928) is a lawyer and a long-time politician o the SocialistParty in France who is best-known or his opposition to the death penalty, whichwas repealed in 1981. De Benoist is reerring to Badinter’s speech at the 50thanniversary ceremony to mark the signing o the Universal Declaration o Human

Rights, which was adopted by the United Nations in 1948. Badinter stated, ‘Here isa text which, even more than when it was conceived, marks the moral horizon oour times.’-Ed.

3 Kofi Annan (b. 1938) was Secretary General o the United Nations rom 1997 until2006.-Ed.

4 Jean Daniel (b. 1920) is a French-Jewish journalist and writer known or his liberalhumanist positions.-Ed.


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Introduction 23

present themselves as a new en Commandments. As a new oundationo human order, they seem to have a sacred character. Human rightshave thus been able to be defined as the ‘creed o humanity’ (NadineGordimer), and as a ‘worldwide secular religion’ (Elie Wiesel). Teyare, writes Régis Debray, ‘the last, to date, o our civil religions, the soulo a soulless world’.

One proo o this is its dogmatic character: it cannot be debated.Tat is why it seems today as unsuitable, as blasphemous, as scandal-ous to criticise the ideology o human rights as it was earlier to doubtthe existence o God. Like every religion, the discussion o human

rights seeks to pass off its dogmas as so absolute that one could notdiscuss them without being extremely stupid, dishonest or wicked. Bypresenting human rights as ‘human’ rights, as ‘universal’ rights, onenecessarily withdraws them rom criticism – that is to say rom theright to question them – and, at the same time, one implicitly placestheir opponents beyond the pale o humanity, since one cannot fightsomeone who speaks in the name o humanity while remaininghuman onesel. Finally, just as, the believers once thought they hadthe duty to convert, by all means, ‘infidels’ and miscreants, the adher-ents o the credo o human rights consider themselves as legitimatelyinvested with the mission o imposing these principles on the wholeworld. Teoretically ounded on a principle o tolerance, the ideologyo human rights thus reveals itsel to be the bearer o the most extremeintolerance, o the most absolute rejection. Te Declarations o Rightsare not so much declarations o love as declarations o war.

5 Nadine Gordimer (b. 1923) is a Jewish South Arican writer who was known orher involvement in the anti-apartheid movement. She won the Nobel Prize orLiterature in 1991. In Te Universal Declaration o Human Rights: Fify Years andBeyond (Amityville: Baywood, 1999), p. viii, she wrote that it ‘is, and shall remain,the essential document, the touchstone, the creed o humanity that surely sums upall other creeds directing human behavior, i we are to occupy this world togethernow and in the wenty-first century.’-Ed.

6 Elie Wiesel (b. 1928) is a Romanian-Jewish Holocaust survivor who is well-knownor his books describing the event. In Te Universal Declaration o Human Rights,p. 3, he wrote, ‘Te deense o human rights has, in the last fify years, become akind o worldwide secular religion.’-Ed.

7 Que vive la République (Paris: Odile Jacob, 1989), p. 173. (Jules Régis Debray [b.1940] is a prominent French Marxist intellectual. He is amous or having been apart o Che Guevara’s ill-ated guerrilla insurgency in Bolivia in 1967.-Ed.)


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But today the discussion o human rights does not just have asits goal the supply o a substitute ideology afer the collapse o the‘grand narratives’. By seeking to impose a particular moral norm onall peoples, it aims at giving the West a good conscience once againby allowing it to install itsel once more as a model and to denounceas ‘barbarian’ those who reuse this model. In history ‘rights’ haveonly too ofen been that which the masters o the dominant ideologyhad decided to define in this way. Associated with the expansion omarkets, the discussion o human rights constitutes the ideologicalarmour o globalisation. It is above all an instrument o domination,

and should be regarded as such.Men should be able to fight everywhere against tyranny and oppres-

sion. o contest the ideology o human rights is thus evidently not toplead or despotism, it is rather to contest that this ideology is the bestmeans o remedying it. It is to question onesel concerning the validityo the oundations o this theory, on the nomological status o theserights, and on the possibilities o manipulation to which they can besubjected. It is thus to propose another solution.

Freedom is a cardinal virtue. It is the very essence o truth. Tatis why it should be removed rom the rut o universalism and subjectivity. Tat human rights are proclaimed orceully in an increas-ingly dehumanised society, where men themselves tend to becomeobjects, and where the commercialisation o social relationships cre-ates everywhere new phenomena o alienation, is probably not an acci-dent. Tere are many ways o demonstrating respect and solidarity to

men. Te question o reedoms cannot be resolved in terms o law oro morality. It is above all a political question. It should be resolvedpolitically.


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- 25 -

I ARE HUMAN RIGHTS A

PART OF THE LAW?

The ideology o rights classically defines ‘human rights’ as the innaterights, inherent in human nature, that are borne by every indi-

vidual since the time o the ‘state o nature’, that is to say, beore thedevelopment o all social relations. Being subjective attributes o everyman insoar as he is a man, relating to an isolated individual, whois pre-political and pre-social, these rights are thereore necessarilyindividual in nature: they are those which the individual can imple-ment according to his will alone; they constitute the privileges whichthe agent that possesses them can enjoy. Tey are a prerogative o allhuman beings, supposed to be independent o space and time, valid atall times and in all places independently o personal conditions, politi-cal situations and socio-historical attributes, they are besides universal

and inalienable by definition. No state can create them, grant or abro-gate them, since they pre-date, and are superior to, every social andpolitical orm. Te public powers can only recognise them by makingsure that they guarantee and respect them. Te general idea which isdeduced rom this definition is that man is not reducible to his socialbeing, and that his true sel is elsewhere.

Human rights are ahistorical, but they nevertheless have a history.Besides, the expression jura hominum besides is not older than 1537.Te first question that one should pose consists, thereore, in knowing

1 Latin: ‘human rights’.-Ed.

2 Te first known use o the expression ‘human rights’ appeared in the bookHistorica Diplomatica Rerum Bataviarum by Volmerus, which was published in1537.-Ed.


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Are Human Rights a Part of the Law? 27

o a singular individual, the bearer o universal and inalienable rights,which seem to be taken or granted by us’ — something that did notprevent them rom inventing democracy and to honour the notion oreedom more than others.

Te first rupture appeared with Christianity. Te Christian religionproclaims, in effect, the unique value o every human being by positinghim as a value in himsel. Insoar as he possesses a soul which puts himin a direct relationship with God, man becomes the bearer o an abso-lute value, that is to say, o a value which cannot be conused eitherwith his personal qualities or with his belonging to a particular collec-

tive group. Concomitantly, Christianity gives a purely individual defi-nition o reedom, which it makes the aculty o choosing, or a personendowed with reason, in accordance with morality, and between themeans that lead to an end (Radix libertatis sicut subjectum est voluntas,sed sicut causa est ratio, as Tomas Aquinas would say). Tis accentplaced on ree will implicitly contains the idea that man can ree him-sel o his natural qualities, that he can effect his choices on the basis oreason alone and thus make the world accord to his will. At the start,this will is posited as a power o consent. Te superior lie proceedsrom a transormation o the will that is the work o grace.

By these major anthropological innovations, Christianity digs aditch between the origin o man (God) and his temporal existence. Itwithdraws rom the relative existence o the human being the ontolog-ical anchoring that is now reserved or the soul. Te relations betweenmen are, o course, always important, but they remain secondary, or

the simple reason that the common lie o men, their collective lie, isno longer conused with their being. It is thus not wrongly, rom thispoint o view, that Hegel was able to make the coming o Christianitycoincide with subjectivism.

7 Le Monde, 8 June 1993, p. 2.

8 ‘Te root o liberty is will as the subject thereo; but it is the reason as its cause.’

From Tomas Aquinas, Summa Teologica: Volume wo, Part wo, First Section(New York: Cosimo, 2007), p. 656.-Ed.

9 St. Tomas Aquinas (1125-1274) was a Dominican priest whose writings becameimportant in both theological and philosophical debates.-Ed.

10 Georg W. F. Hegel (1770-1831) was one o the most important philosophers o theNineteenth century, being one o the principal ounders o the school known asGerman Idealism.-Ed.


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It is above all in the Augustinian tradition that the act o belong-ing to the supra-terrestrial city would be affirmed at the expense othat which ties man to those similar to him. ‘Te Christian ceases to bea part o the political organism’, writes Michel Villey, ‘he is a totality, aninfinity, a value in himsel. He himsel is an end superior to the tempo-ral ends o politics and his person transcends the state. Here is the seedo the modern reedoms o the individual, which will be opposable tothe state, our uture “human rights”’. By proclaiming the metaphysi-cal destiny o man, Christianity tends to divert human justice rom itsinterest in the world o the senses.

Augustine also develops with orce the Christian idea according towhich the path towards the higher passes through the interior: Noli

oras ire, in teipsum redi; in interiore homine habitat veritas (‘Do notgo abroad. Return within yoursel. In the inward man dwells truth’).Te internal conscience thus replaces the world as the locus o truth. Itis through the conscience, the locus o a secret reedom which is alsothe seat o the soul, that one can go to God. A tendency toward reflex-ivity is introduced into Western thought through this theme, whichwill later be transormed into pure subjectivity. Te idea that the con-science is the locus o truth announces, in act, the modern idea o aprivate sphere, cut off rom the public sphere and detached rom exter-nal contingencies, which would be the privileged place o the blossom-ing o the individual. Descartes will resume the theme o Augustinianinteriority and orient it in a new direction by situating the sources omorality in the cogito. Privatisation, one could say; the promotion o

11 St. Augustine (354-430) was an important bishop o the latter-day Roman Empireand was one o the Church Fathers. He outlines his idea o the heavenly city in hisCity o God .-Ed.

12 Philosophie du droit , vol. 1: Définitions et fins du droit , 3rd ed. (Paris: Dalloz, 1982),p. 131.

13 Tis is rom Augustine’s On rue Religion, in Augustine: Earlier Writings (Louisville:Westminster John Knox Press, 2006), p. 262.-Ed.

14 René Descartes (1596-1650) was a French philosopher who initiated many o thetrends and ideas which have come to preoccupy modern philosophy and sciencein particular. One o his central efforts was to determine how one can be certainthat anything actually exists. His most amous ormulation is the proo he offeredin his Meditations on First Philosophy : cogito ergo sum, or ‘I think, thereore I am’.Although we can doubt the existence o objects in the world, the act that we arecapable o thinking about them is proo positive that we ourselves exist.-Ed.


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a private sphere where the good lie is reduced henceorth to the ordi-nary lie, begins with this promotion o the conscience.

Te belie in a sole God allows one, besides, to represent all menwithout distinction as being equally sons o this god. Humanityacquires a moral significance by the same stroke. Radicalising a uni- versalist tendency already present in Stoicism, the Christian doc-trine proclaims the moral unity o mankind. ‘It is indisputable’, writesOlivier Mongin, ‘that the egalitarianism which underlies the naturallaw o belonging to a human community cannot be separated rom itsJudaeo-Christian context, indeed rom Evangelical values’.

Although Christian love (agapè) may well put the accent on the‘love o one’s neighbour’, by definition it never stops at the neighbour.Even i it can admit a hierarchy o pleasures or legitimate certain pre-erences, on the metaphysical level it does not know any borders. Teneighbour, especially, is not so much ‘loved’ or himsel as he is as acreature o God. In other words, he is loved only or that by whichhe does not differentiate himsel undamentally rom other men —or that even which makes him similar to the others (the act o hav-ing been created by God). Pierre Manent has clearly shown that thereare two ways or a man to eel related to other men. Te first, quitenaturally, involves directing benevolence towards the one who has themost need o it, or example, towards the one who suffers. Te rela-tionship between men then derives rom compassion. Te second wayis quite different: ‘Te relationship is not addressed to the visible andsuffering body, it is addressed to something invisible, to the soul, i

you like, more precisely to the dignity o the person’. Tis way is theChristian way. Christian universalism, being unlimited, contains theseeds o all the later developments o the idea o undamental equal-ity. Agapè already announces the modern ideal o practical universal

15 Stoicism was a school o philosophy first developed in ancient Greece whichtaught that excessive emotion leads to errors in judgment. In this case, however, de

Benoist is reerring to the act that the Stoics taught that all individuals, includingslaves, were inherently equal beore God and should be treated as such.-Ed.

16 ‘Droits de l’homme, une généalogique complexe’, in Projet , September-October1988, p. 53.

17 Classical Greek: ‘love’. In Christianity, the word took on connotations o pure,divine love.-Ed.

18 ‘L’empire de la morale’, in Commentaire, Autumn 2001, p. 503.


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benevolence: all human beings should be treated with an equal respectto which their equal dignity gives them a right.

Te Church proclaims the universal raternity o men in Christ andtheir equality beore God, but does not draw rom it, originally, anyparticular message about the social organisation o humanity. Underthe influence o Aristotle, Tomas Aquinas continues to proess theidea o an ordered cosmos and to relate the exercise o the law to thecommon good.

Another decisive stage is about to be opened with the appearanceo the notion o subjective law. Historically this is bound to the rapid

development, in the Middle Ages, o the nominalist doctrine which,as a reaction to the theory o ‘universals’, claims that there is no beingoutside the individual being, that is to say, that there exist in the universe only individual beings. (Tis thesis is affirmed by William oOckham in the context o a amous theological debate bearing onthe question o knowing how one can justiy the property rights othe Franciscans when they have taken a vow o poverty.) Consideringonly the individual as existing, there results rom this the act that thecollectivity is only a juxtaposition o individuals, the rights becomingnaturally legitimate individual powers.

Nominalism maintains besides that the natural law is not so muchthe reflection o the divine order as o the divine will . Its partisansargue that a natural order which would indicate good and evil by itselwould finally prevent God rom deciding on good in a sovereign way.aking into consideration the absolute reedom o God, it ollows that

no necessity is imposed by itsel in nature, which permits William oOckham to declare that the law is not a just relation between things butthe reflection o a law willed by God. Tereby the universe is alreadyemptied o sense and o its intrinsic raison d’être.

19 Nominalism denies that there is any such thing as a universal concept, maintainingthat they are abstractions with no genuine reality.-Ed.

20

William o Ockham (c. 1288-c. 1348) was an English Franciscan riar who wasasked to review the concept o Apostolic poverty in 1327, when some Franciscansasserted that since Jesus and his apostles had owned no personal property, andthat thereore, in contrast to the wealth exhibited at the Vatican, riars should liveby begging alone and that the act that riars sometimes used property did notimply that they held ownership o property. He also maintained that the Popehimsel was a heretic. Tis doctrine was not accepted by the Church. His text onthis debate is ‘A Letter to the Friars Manor’.-Ed.


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Ten there appears the Spanish Scholastic who, notably under theinfluence o political Augustiniansm, derived justice and law onceagain rom norms derived rom the moral law. (One will note that theterm justitia is only derived relatively late rom the Latin word jus: itis only rom the Fourth century that the ‘law’ was related to ‘justice’ inthe sense o a universal philosophical notion.) In the Sixteenth century,under the influence o the two principal representatives o the Schoolo Salamanca, Francisco de Vitoria and Francisco Suárez, Scholas-tic theology passes rom a notion o objective natural law ounded onthe nature o things to a notion o a subjective natural law ounded

on individual reason. At the same time that he affirms the politicalunity o mankind, the Jesuit Francisco Suárez declares that social andpolitical reality cannot be explained merely by the natural inclinationto sociability: an act o will is also required o men, and is an accordo their wills. (Te same idea was later taken up by Puendor.) Fran-cisco de Vitoria adds that ‘the right o people is what natural reasonhas established among all peoples’. Rights, then, become synonymouswith an individual aculty conerred by the moral law, with a moralpower o action. With subjective law, notes Michel Villey, the individ-ual becomes ‘the centre, the origin, o the legal universe’.

Tis evolution, sketched rather rapidly, allows us to apprehend theundamental difference existing between Classical natural law andmodern natural law. While the nature o which the first natural lawspoke was that o the cosmos which, as an extrinsic principle, definedan objective perspective, even though the law which was deduced rom

it was also an objective law, modern natural law is a subjective lawwholly deducible rom the subject. Te principles which it enunciates,deduced rom the rational nature o man, are the principles accordingto which men should live, independently o the existence o a particu-lar society.

From a cosmological naturalism, one is thus, at first, passed toa theological naturalism. Ten, in a later period, the justification orights was no longer sought in the act that all men have been ‘created

21 Te School o Salamanca reers to a theological school which flourished inSixteenth-century Spain. Te School addressed many issues, among them beingthe affirmation o the idea that private ownership o property is a right and thatindividuals have the right to enjoy that property independently o the needs otheir community.-Ed.

22 La ormation de la pensée juridique modern (Paris: Montchrétien, 1975), p. 663.


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in the image o God’ but in the nature o their nature. Right was nolonger thought o as derived rom the divine law but rom humannature alone, characterised by reason. It was a revolution at the sametime philosophical and methodological that will have immediatepolitical consequences.

Te first modern theoreticians o human rights argue in turnrom the idea o a ‘state o nature’, an idea which one ound alreadyin the Sixteenth century in the Spanish Jesuit Mariana. ‘Te right onature, which writers commonly call jus naturale’, writes Hobbes atthe opening o Chapter 14 o his Leviathan, ‘is the liberty each man

hath to use his own power as he will himsel or the preservation ohis own nature’. ‘Neither by the word right is anything signified’, headds elsewhere, ‘than that liberty which every man hath to make use ohis natural aculties according to right reason’. In the state o nature,law is a power which man can make use o reely. And sel-interest isthe rule o this law. For Hobbes, as or Locke who permanently seekshis own sel-interest, his advantage, his utility. It is thereore becausehe thinks he finds an advantage in it that he enters into contractualrelations with others (to guarantee his right to property, according toLocke; in order to deend onesel against the hostility omnipresent inthe state o nature, according to Hobbes).

Inheritor o nominalism, Hobbes also writes, ‘But whatsoever is theobject o many man’s Appetite or Desire; that is it, which he or his partcalleth Good ’. Te ormula is immediately reversed: the desire andthe will o each individual determines his degree o good, and each

individual is the sovereign judge o his own happiness.

23 Juan de Mariana (1536-1624), in Te King and the Education o the King , asserts thatollowing the Fall o Man, humanity in the ‘state o nature’ o absolute individualreedom, became increasingly subject to corruption, greed and violence whichculminated in the wealthy and powerul realising that they could terrorise andexploit the weak through the construction o social hierarchies. Te origins o

society are thereore rooted in corruption rather than in an effort to improve thehuman situation.-Ed.

24 Tomas Hobbes (1588-1679) was an English political philosopher who laid manyo the oundations o modern liberal societies.-Ed.

25 Leviathan (Cambridge: Cambridge University Press, 1991), p. 91.

26 De cive, or Te Citizen (New York: Appleton-Century-Crofs, 1949), p. 27.

27 Leviathan, p. 39.


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‘In one way,’ clarifies Charles aylor, ‘to speak o a universal, naturalright to lie does not seem much o an innovation… Te earlier way oputting it was that there was a natural law against taking innocent lie.Both ormulations seem to prohibit the same things. But the differencelies not in what is orbidden but in the place o the subject. Law is whatI must obey. It may coner on me certain benefits, here the immunitythat my lie, too, is to be respected; but undamentally I am under law.By contrast, a subjective right is something which the possessor canand ought to act on to put it into effect.’

Te first rights are thereore, above all, rights to reedom. Equal-

ity is only the condition required or their realisation. Tis priority oreedom is simply explained. Freedom, the expression o a pure beingin itsel, an incarnation o the uniqueness o the individual, qualifiesthe nature o man independently o all social relations. Equality is cer-tainly a correlation o reedom defined in this way (i everyone is com-prised o a ree and absolute desire to be onesel, then all are in a wayidentical) but, contrarily to reedom, it requires a minimum o sociallie to acquire a significance. In certain respects, as André Clair writes,it ulfils ‘the unction o an element that determines and transormsreedom; by this determination is ormed the social relationship’.

Te existence o men being considered as having preceded theircoexistence, the transormation o the simple plurality o individu-als into a society should be explained. Te traditional response is thecontract or the market. Unlike an association in the biblical sense, thesocial contract is a pact contracted between equal partners. Following

the example o business, it results rom a calculation o sel-interest.For Locke, the aim o all political association is economic: ‘Te greatand chie end, thereore, o men’s uniting into commonwealths, andputting themselves under government, is the preservation o their pro-perty’. Possessed naturally, the rights are, besides, conceived on themodel o the right to property. One understands that in the Seven-teenth and Eighteenth centuries, the theory o rights was the privileged

28 Sources o the Sel: Te Making o Modern Identity (Cambridge: CambridgeUniversity Press, 1989), p. 11.

29 Droit, communauté et humanité (Paris: Cer, 2000), p. 62.

30 From Te Second reatise o Government , in John Locke: Political Writings (Indianapolis: Hackett Publishing, 2003), p. 73.


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instrument used by the bourgeoisie to succeed in playing a politicalrole proportionate to its economic weight.

But by the same token, politics loses its status o a cause to becomean effect. Te act o society being no more than the consequence oa contract undertaken between individuals, power is no longer anorganising orce but a secondary product o society, a superstructurethat is always threatening to the members o the society. (Tis role osuperstructure, present among all liberal authors, will recur in Marx.)Concomitantly the political relationship is ound to be entirely rede-fined on the basis o a new legal norm, corresponding to the subjec-

tive rights o the individual. Civil society, finally, is identified with theprivate sphere, that is to say, to that part o the society shielded romthe political lie, where individuals are thought to be able to act reely.‘Te philosophical stake o modern natural law’, writes Marcel Gau-chet, ‘...is going to be the double redefinition o politics according tothe subject: as regards the political element, the citizen, as the subjecto individual right, and also, as regards the political whole, the politicalcommunity, as the collective political subject’.

Tus a triple revolution is accomplished. On the one hand, thenotion o will is substituted or the notion o order. On the other hand,the individual has moved to the centre and the law has become hisattribute. Finally, the law is identified with ‘justice’, the latter havinghenceorth an essentially moral complexion. With Hobbes and his suc-cessors, lie in society is conceived in view o the utility o each at theheart o a world where nature as a unified totality has no more intrin-

sic value, nor significance, nor finality. Right is henceorth an individ-ual property, a quality inherent in the subject, a moral aculty whichgrants permissions and authorises demands. Reason is conceived, un-damentally, as a simple aculty o calculation. Te legal matter ceasesto be the just solution (dikaion, id quod bonum est ), and becomesan ensemble o sanctioned norms and conducts. Te state and the lawitsel are no longer anything but instruments destined to guaranteeindividual rights and to serve the intentions o the contracting parties.

31 ‘Les tâches de la philosophie politique’, in La Revue du MAUSS, first quarter 2002,p. 282.

32 Classical Greek: the exact meaning is disputed, but it generally means ‘what isright’.-Ed.

33 Latin: ‘that which is best’.-Ed.


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‘It is only by a strong usurpation at the same time urtive and vio-lent’, writes André Clair, ‘that, at the turning point o the modern age,this mutation o the concept o right which has permitted the applica-tion o this concept to man has been accomplished; one then under-stood right as a property essentially present in every human being;instead o being a system o distributing and awarding lots among themembers o a society (to the extent that it was defined primarily interms o distributive justice), right is now conceived with a complete

reversal o meaning as a aculty o affirming onesel that should be ren-dered absolutely effective or every individual vis-à-vis everybody else.Every philosophy o human rights is thus a philosophy o subjectivity,o a subjectivity o course said to be universal, but recognised initiallyas individual and unique.’

I human rights are part o the law, the latter then has nothing moreto do with what one understood by ‘law’ when the latter was ounded.Te classical natural law has been replaced by a modern natural lawwhich argues rom radically different theoretical bases, and does nothave beore it anything more than the platitude and maniest inad-equacies o legal positivism.

In reality, as their theological roots demonstrate, human rights areonly law contaminated by morality. But a morality which does nothave anything to do with that o the Ancients, insoar as it no longerdefines what it is good to be, but what it is right to do. Since the right

precedes and commands the good, morality is no longer interested inwhat has a value in itsel, or in what we should admire and love. It ishenceorth interested only in that which is justifiable rom the point o view o reason.

Such a morality derives rom the biblical notion o ‘justice’. It pro-poses a certain conception o ‘justice’ which, belonging by definitionto the reign o ends, cannot constitute the specific aim o a politicallydetermined activity. Bertrand de Jouvenel had already confirmed, withregard to the expression ‘modern natural law’, ‘Te key word whichdoes not figure in the announcement is the word morality, and it isto this elided noun that the adjective ‘natural’ is related. When onespeaks o natural law, one primarily understands that the oundation

34 Droit, communauté et humanité , pp. 63-64.


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o positive law is in morality’. Human rights constitute the legal cus-tom o a moral demand o ‘justice’; they express a legal means o con-ceiving and expressing this morality. It is in this sense that, as ArnoldGehlen was able to say, the diffusion o the discussion o humanrights derives rom the ‘tyranny o moral hypertrophy’.

Te dream o a united humanity, subject to the same norms and liv-ing under the same Law, orms the basic abric o this discussion. Teideology o human rights posits unified humanity at once as a givenact and as an ideal, as something that is and something that shouldbe; in other words, as a sort o potential truth that cannot be verified

and would appear ully only when it is realised. In such a perspective,the only differences admitted are ‘differences within the same’ (MarcelGauchet). Te other differences are denied or rejected or the sole rea-son that they cause one to doubt the same. Te key word is that menare everywhere endowed with the same rights because, undamentally,they are everywhere the same. In the final analysis, the ideology ohuman rights aims at subjecting all o humanity to a particular morallaw rehabilitating the ideology o the Same.

*

Excursus: Te Church and Human Rights

Te theological roots o the ideology o human rights have beendescribed many times. For a long time, however, as Jacques Maritain

35 ‘L’idée du droit naturel’, in Le droit naturel (Paris: PUF, 1959), p. 162.

36 Arnold Gehlen (1904-1976) was a German philosopher who was active in theConservative Revolution. He joined the Nazi Party in 1933 and remained in itsranks until the end o the war, being drafed into the Wehrmacht in 1943. Aferpost-war denazification, he continued to write and teach, and his ideas remain

influential on the German Right to this day.-Ed.37 Moral und Hypermoral: Eine pluralistische Ethik (Frankurt am Main: Athenäum,

1969), chapters 10 and 11. An analogous argument, ounded on the critiqueo moral universalism, has been repeated more recently by Hans MagnusEnzensberger in Civil Wars: From L.A. to Bosnia (New York: Te New Press, 1994).

38 Jacques Maritain (1882-1973) was a French Catholic philosopher who believedthat Christian ethics are a necessary component o political systems.-Ed.


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wrote, ‘the affirmation o rights themselves based on Christian princi-ples appeared revolutionary with regard to the Christian tradition’.Te reason or that is well-known. It rests, rom the historical point o view, in the aggressive rationalist character o the modern ormulationo these rights, in the climate o anti-clericalism that has surroundedtheir proclamation, as well as in the anti-religious persecutions o theRevolution that ollowed it. Besides, rom the doctrinal point o view,the Catholic critique could not admit the elimination o all dimensionso transcendence implied by the integral subjectivisation o rights, anelimination which tends to transer to man a certain number o divine

prerogatives, nor the act that this subjectivisation opens the way to anunending demand which, not being ounded on any standard, leads torelativism.

On 23 April 1791, Pope Pius VI expressly condemned the Declara-tion o Rights o 1789, accusing the articles which composed it o being‘contrary to religion and society’. Tis condemnation was renewed orexactly a century. In 1832, or example, Gregory XVI qualified the the-ory o human rights as a ‘veritable delirium’, the same opinion beingormulated again in the encyclical Quanta Cura o 1864.

Matters begin to evolve rom the encyclical Rerum Novarum (1891)o Leo XIII. From this date, under the influence, most notably, o thethought o Father Luigi aparelli d’Azeglio, whose Essai théorique surle droit naturel (1855) sought to give (or to give again) a theologicalcontent to subjective right, the notion o human rights begins to beintroduced into the social thought o the Church.

Immediately afer the Second World War, this development wasrapidly accelerated. In 1963, in the encyclical Pacem in erris, PopeJohn XXIII declared that he saw in the Universal Declaration o Human

39 Natural Law: Reflections on Teory and Practice (South Bend: St. Augustine’s Press,2001), p. 79.

40 Te French Revolution o 1789.-Ed.

41 C. Louis de Vaucelles, ‘Les droits de l’homme, pierre d’achoppement’, in Projet ,September-October 1988, pp. 115-128.

42 Luigi aparelli (1793-1862) was an Italian Jesuit scholar who was concerned withthe Church’s way o dealing with the social changes being brought about as aresult o the Industrial Revolution. He is credited with coining the term ‘social justice’. He viewed modern societies as being comprised o various sub-societies,with individuals belonging primarily to one o these rather than to society as awhole.-Ed.


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Rights o 1948 ‘a step in the right direction, an approach toward the esta-blishment o a juridical and political ordering o the world community’(§ 144). On 7 December 1965, the pastoral constitution Gaudium etSpes, adopted in the context o the Second Vatican Council, affirmedthat ‘the Church, thereore, by virtue o the Gospel committed to her,proclaims the rights o man; she acknowledges and greatly esteems thedynamic movements o today by which these rights are everywhereostered’. Tree years later, Paul VI declared in his turn, ‘o speak ohuman rights is to affirm a common property o humanity’. In 1974,beore the General Assembly o the United Nations, he specified, ‘Te

Holy See gives its ull moral support to the ideal contained in the Uni- versal Declaration as to the progressive deepening o the human rightsthat are expressed therein’. John Paul II, finally, would declare in 1979that the Universal Declaration o Human Rights ‘is a milestone on thelong and difficult path o the human race’.

Te traditionalist Catholic milieus have, o course, interpretedthis change as a sign, among others, o the ‘rallying’ o the Church to‘modern ideas’. Even though this point o view contains some truth,the reality is a little more complex. In declaring that it admits humanrights, the Church understands above all that it recognises (and causes

43 From the Vatican Web site (www.vatican.va/holy_ather/john_xxiii/encyclicals/documents/h_j-xxiii_enc_11041963_pacem_en.html).-Ed.

44 From the Vatican Web site (www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_cons_19651207_gaudium-et-spes_en.html).-Ed.

45 From a message delivered on the occasion o the 20th anniversary o theDeclaration o Human Rights on 22 April 1968.-Ed.

46 From a message to the President o the 28th General Assembly o the UnitedNations on the occasion o the 25th anniversary o the Universal Declaration oHuman Rights on 10 December 1973.

47 C. René Coste, L’Église et les droits de l’homme (Paris: Desclée, 1982); M. Simoulin,‘L’Église et les droits de l’homme’, in Les droits de l’homme, special issue o Vude haut (Escurolles: Fideliter, 1988); and Giorgio Filibeck, Les droits de l’hommedans l’enseignement de l’Église, de Jean XXIII à Jean-Paul II (Vatican City: LibreriaEditrice Vaticana, 1992).

48 C. notably Jean Madiran, Les droits de l’homme — DHSD (Maule: Éditions dePrésent, 1988) and L’envers des droits de l’homme (Issy-les-Moulineaux: Renaissancecatholique, 1993). (Te quote rom John Paul II is rom his address to the 34th GeneralAssembly o the United Nations on 2 October 1979, available at the Vatican Website [http://www.vatican.va/holy_ather/john_paul_ii/speeches/1979/october/documents/h_jp-ii_spe_19791002_general-assembly-onu_en.html].-Ed.)


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to be recognised) that part in their genealogy that returns to it. It doesnot, however, subscribe to the aspects which remain in its eyes con-testable in their present ormulation. In other words, the approval inprinciple given henceorth by the Church to the doctrine o humanrights reers, first o all, to the Christian version o these rights. AsFrançois Vallançaon writes, ‘Te Church is no more or human rightsthan against them. It is avourable to human rights when they are welland rightly interpreted. It is hostile to them when they are badly andwrongly interpreted’.

49 ‘Les droits de l’homme: analyse et critique’, in La Ne , February 1999, p. 26.


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- 40 -

IIIN SEARCH OF A FOUNDATION

2

When UNESCO had decided, in 1947, to launch a new UniversalDeclaration o Human Rights — the one, indeed, that would be sol-emnly proclaimed on the 10 December 1948 by the General Assemblyo the United Nations — its directors undertook to proceed to a vastpreliminary inquiry. Notably, at the initiative o Eleanor Roosevelt,an international committee was constituted in order to collect theopinions o a certain number o ‘moral authorities’. Around 150 intel-

lectuals rom all countries were asked in this way to determine thephilosophical basis o the new Declaration o Rights. Tis approachended in ailure, and its promoters had to limit themselves to regis-tering the irreconcilable divergences between the responses obtained.Since no accord emerged, the Commission on Human Rights o theUN decided not to publish the results o this inquiry.

In his response, Jacques Maritain showed that he had no illusions,declaring that as regards human rights ‘a practical accord is possible,

[but] a theoretical accord is impossible among intellectuals’. It is, how-ever, evident that it is difficult to speak o human rights without a pre-cise conception o man considered as being the bearer o these rights.No consensus has ever been established on this point. Not having

1 United Nations Educational, Scientific and Cultural Organization.-Ed.


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In Search of a Foundation 41

reached an accord, one thus decided to give up justiying what onewished to affirm. Te authors o the Universal Declaration ormulatedits text in a consensual vision not corresponding to reality. ‘Te Decla-ration’, affirms François Flahaut, ‘had to be accepted by all on the con-dition that nobody ask what justifies it. Tat came back to a questiono an imposition o authority’.

René Cassin was accustomed to saying that human rights rest ‘onan act o aith in a better tomorrow and the destiny o man’. Such an‘act o aith’ would thus be justified by its aims. ‘Tese aims’, writesJulien Freund, ‘we pose as norms, thus we affirm them dogmatically

as valid and worthy o being pursued; they do not have the incontro- vertible character o a scientific proposition’. It results rom this thatthe conception o man on which the theory o rights rests derives notrom knowledge but rom opinion. From this sole act, in the mannero a religion — every belie is valid only to the exact extent to whichone believes in it — they can have only a wishul validity, that is to saythey are imposed only insoar as one accepts to see them imposed, andthat they have no other validity but that which one decides to accordthem. ‘Every coherent reflection on human rights’, repeats Julien Fre-und, ‘can only proceed rom the ollowing undamental act: they havenot been established scientifically, but dogmatically’. ‘Human rights’,adds François de Smet, ‘cannot escape their categorisation as an ideol-ogy. On account o this they are exposed to criticism’.

Even the definition o man o which the theory o rights speaksis less evident than it appears. Te proo o this is that many ‘human

2 Le sentiment d’exister: Ce soi qui ne va pas de soi (Paris: Descartes et Cie, 2002), p.453. Certain contributions to the debate opened by UNESCO were published inEnglish in 1949 (Comments and Interpretations) with an Introduction by JacquesMaritain. Te work was republished by UNESCO in 1973.

3 René Cassin (1887-1976) was a French jurist and judge who helped to draf theUniversal Declaration o Human Rights or the UN. A veteran o the First WorldWar, he aferwards became a pacifist and was active in the League o Nations,the Consultative Council o Jewish Organisations, the UN’s Human Rights

Commission, and the European Court o Human Rights.-Ed.4 From Statement on the Implementation o Human Rights (New York: United

Nations, 1948).-Ed.

5 Politique et impolitique (Paris: Sirey, 1987), p. 192.

6 Ibid., p. 189.

7 Les droits de l’homme: Origines et aléas d’une idéologie moderne (Paris: Cer, 2001),p. 7.


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rights’ have been extended only progressively to women and to diverseother categories o human populations. One may recall, as a symbol,that the two Western countries that vigorously maintained the insti-tution o slavery or the longest time, France and the United States,are also those that were the first to proclaim human rights. Many othe authors o the American Declaration o Independence o 1776,which included a deence o human rights, were, besides, themselvesslave-owners.

Tere is not any more doctrinal or philosophical consensus asregards the definition o rights. ‘A sort o vagueness envelops the notion

itsel o undamental rights’, the jurist Jean Rivero recognises. Whenone speaks o a ‘human right’, does one mean that this right possessesan intrinsic value, an absolute value or an instrumental value? Tat itis o such importance that its realisation should take precedence overall other considerations, or that it just counts among the things that areindispensable? Tat it gives a power or a privilege? Tat it permits animmunity or that it coners an immunity? Tere are as many responsesas there are questions.

Te critiques o the theory o rights have ofen underlined its vague,but also contradictory character. For example, aine wrote about theDeclaration o 1789, ‘most o the articles are abstract dogmas, meta-physical definitions, more or less literary axioms, that is to say, more orless alse, now vague and now contradictory, open to various interpre-tations and to opposite constructions, these are good or platorm dis-play but bad in practice, mere stage effect, a sort o pompous standard,

useless and heavy...’. Analogous words are ound in all the authors othe Counter-Revolution.

Tat there has always been disagreement concerning the scopeand the content o human rights cannot be contested. Article 2 othe Declaration o 1789, or example, makes the right o ‘resistance

8 On the late extension o human rights to women c. notably Xavier Martin,L’homme des droits de l’homme et sa compagne (Bouère: Dominique Martin Morin,

2001).9 In Louis Favoreu (ed.), Cours constitutionnelles européennes et droits ondamentaux

(Paris: Presses universitaires d’Aix-Marseille, 1982), p. 521.

10 Hippolyte aine (1828-1893) was a French historian and literary critic who wasone o the chie influences on the Naturalist school. He opposed the ideals o theFrench Revolution, instead stressing the importance o race and regionalism.

11 Te French Revolution, vol. 1 (New York: Henry Holt, 1878), p. 211.


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to oppression’ one o the natural and inalienable rights. Kant, onthe other hand, denies the existence o such a right and goes so ar asto advocate the duty o obedience to dictatorships. He justifies thisdenial by affirming that right cannot ever be effected except by the law,which means that a juridical state is possible only by submission tothe legislative will o the state. (Natural law is here changed abruptlyinto positive law.) Te Declaration o 1789 stipulates also, in the man-ner o Locke, that the right to property is ‘inviolable and sacred’. TeDeclaration o 1948 is careul not to take this ormula into account.Te majority o the deenders o the rights o peoples to sel-determi-

nation dissociate people and state, which is indispensable i one wishesto deend the rights o minorities. But Hans Kelsen, theoretician othe state under the rule o law, expressly reuses this distinction. Teprinciple o the non-retroactivity o the laws, held in 1789 as an inal-ienable right, has been abandoned regarding ‘crimes against human-ity’. Freedom o expression, guaranteed unconditionally in the UnitedStates as one o the human rights, is not in France, the other ‘country ohuman rights’, on the pretext that certain opinions do not merit beingconsidered as such. It is equally possible in the United States to sellone’s blood, whereas French law renders null and void any commercialcontract related to a product o the human body. One can multiply theexamples.

Human rights can also be shown to be internally sel-contradictory.In a general way, it is common that rights originating rom positivereedom come into contradiction with those that originate rom nega-

tive reedom: the right to work, or example, can have as an obsta-cle the right to property or the right o ree initiative. French law has,since 1975, guaranteed the right to abortion, but the text o the laws on

12 One, however, does not see clearly how such a right could result rom the purelyindividual nature o man, given that there could not be any ‘oppression’ outside anestablished public society.

13 C. ‘Sur le lieu commun: c’est peut-être vrai en théorie, mains en pratique cela ne vaut point’, in Kant, Œuvres philosophiques, vol. 3 (Paris: Gallimard-Pléiade, 1986),p. 265. (An abridged version o this essay appears in Te Teory o InternationalRelations [London: Allen & Unwin, 1970], as ‘On the Commonplace: Tis isPerhaps rue in Teory but in Practice it is Not Valid at All’.-Ed.)

14 Hans Kelsen (1881-1973) was an Austrian-Jewish jurist and legal scholar who isconsidered one o the most important legal philosophers o the wentieth century.He was also considered to be the primary nemesis o Carl Schmitt.-Ed.


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bioethics adopted on 23 June 1994 at the National Assembly prohibitsexperiments on embryos, alleging the need or ‘respect o the humanbeing rom the commencement o lie’. I one believes that the embryois not yet a human being, one ails to see why it would be prohibited toexperiment on it. I one believes that it is, one ails to see how abortioncan be justified.

How does one untangle in these conditions the ‘true’ rights romthe ‘alse’? How does one prevent ‘human rights’ rom becoming an all-purpose expression, a mere flatus vocis having only the ever-chang-ing meaning that one attributes to it in one circumstance or another?

Jean Rivero observes or his part that the ‘major paradox o the ate ohuman rights or two centuries is doubtless the contrast between thewithering o their ideological roots and the development o their con-tent and their audience to a universal level’. Tis is another way osaying that the more the discussion o human rights extends, the morethe uncertainty regarding their nature and bases grows.

Now, this question o bases is posed nowadays with a quite particu-lar acuteness. It is, in act, only recently, as Marcel Gauchet says, thatthe problem o human rights ‘has ended up leaving the books to makeitsel effective history’. From the Nineteenth century, the ashiona-bleness o the theory o human rights had been reduced, in act sus-pended, under the influence o historicist theories, then revolutionarydoctrines. o think in terms o the movement o history, in terms oprogress, necessarily led to the relativisation o the importance o law.At the same time, the advent o historical time brought in a certain dis-

crediting o the abstract intemporality characterising a ‘state o nature’rom whence the rights proceeded. Te all o the totalitarian regimes,the ading o revolutionary hopes, the crisis o all the representationso the uture, and notably the idea o progress, have very logically coin-cided with a return o the ideology o rights with renewed orce.

15 Te term flatus vocis was coined by the Medieval French nominalist theologianRoscellinus to describe his contention that only individuals exist, while terms

which claim a universal truth are merely flatus vocis, or an emission o soundwithout any specific meaning, like a grunt.-Ed.

16 Les droits de l’homme: droits individuels ou droits collectis? Actes du Colloquede Strasbourg des 13 et 14 mars 1979 (Paris: Librairie générale de droit et de jurisprudence, 1980), p. 21.

17 ‘Les tâches de la philosophie politique’, in La Revue du MAUSS, first quarter 2002,p. 279.


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Historically, rom 1970, human rights have been opposed to theSoviet system. Since the collapse o the latter — by a remarkable coin-cidence, the year o the all o the Berlin Wall was also that o thebicentenary o the Declaration o 1789 — they have been employed indiverse ways to disqualiy regimes or practices o all sorts, in particu-lar in the Tird World, but also to serve as a model or new nationaland international policies. Te European Union has itsel given thema position o the highest rank, while, or some years, in authors likeRawls, Habermas, Dworkin and many others, one witnesses a newattempt at a oundation o the political community on law. Te ques-

tion o the oundation o human rights is thus posed anew.In its canonical version, in Locke as in Hobbes, the theory o rights

‘proceeds by a mythical rationalisation o the origin. It projects into theabstract past o the state o nature, a past beyond history, the search ora primordial norm in itsel atemporal with respect to the composition

18 Te reaty o Maastricht (1992) stipulates that the European Union ‘shall respectundamental rights, as guaranteed by the European Convention or the Protectiono Human Rights and Fundamental Freedoms signed in Rome on 4 November1950’. Te reaty o Amsterdam (1997) takes a urther step in adding that ‘[t]heUnion is ounded on the principles o liberty, democracy, respect or human rightsand undamental reedoms’ (emphasis added). Te European Community (andnot the Union, which does not have a juridical character) had besides envisagedadhering to the European Convention o Human Rights. But a judgment renderedby the Court o European Justice on 28 March 1996 concluded that ‘in the present

state o community rights, the Community does not have the competence toadhere to the Convention’. Such an adhesion would have had as a consequence theplacing o community institutions under the judicial tutelage o the Convention —beginning with the Court o Justice o Luxembourg, which would have ound itselonce again in a state o dependence on the Court o Strasbourg. Tat is the reasonwhy the European Union, adopting a substitute solution, decided to announcea list

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