Saturday, 16 December, 2017.

In today's 'postmodern' world, where universality has been challenged in almost all areas of social life, human rights maintain the status of something unquestionable and sacred. They stand as the last remnant of the Enlightenment to retain its universal character. When, for example, governments or opposition parties all over the world try to legitimize their politics, they invoke the universal rights of man. Human rights thus function as a normative imperative that is beyond politics and law.

Before socialism collapsed, human rights also formed one of the main issues for which the opposition fought. But when the anti-communist forces came into power in Eastern Europe, human rights suddenly lost their importance, as if with the end of socialism, when the new government officially recognized the importance of human rights, the need to actually enforce such rights disappeared. Similarly for the rights of minorities and women, the new post-socialist governments acted as if the fall of socialism resolved all those particular inequalities and there was no need to care about them any more. Women in today's East European countries especially reveal the 'dark side' of post-socialism. In the majority of the countries, women are in some ways worse off than they were under communism. Such things as abortion rights, maternity leave, and equality of employment were taken for granted by the previous regimes. But the new regimes question these rights. Women thus have to fight for the rights they once already had. The same goes for the participation of women in politics. Communists tried to increase the number of women in the parliament by establishing quotas and by seeking out the devoted communist women who would fulfil these quotas; but the new governments usually do not care at all that in the majority of the East European parliaments a very low percentage of the delegates are women. The transition to democracy in Eastern Europe thus did not bring about emancipation for all the people: women were actually forced to accept even more in the way of patriarchal roles than they had to under the socialist regime.

The status of women in post-socialism is, in fact, not very different from that of women in right-wing capitalist societies. The problem of women's rights in post-socialism touches the very problem of human rights as such: to what extent are human rights also women's rights?


Feminist legal theory finds the notion of human rights utterly problematic because of its patriarchal character. For the majority of feminist theorists, two objections immediately arise over the notion of human rights: first, the abstract character of the notion itself; and second, the individualism on which this notion is based. Responding to the first objection, Frances Olsen (1992), for example, writes that the discourse of rights cannot solve social conflicts but can only serve to reformulate them in an abstract, final form. In her opinion, the discourse of rights allows us to see sexuality only in terms of social control and sexual freedom: the discourse of rights defines sexual freedom and thus indirectly allows new forms of sexual violence. In terms of the second objection, Carol Gilligan (1982) argues that women, because they tend to (reason in a different voice' are less likely than men to privilege individual, abstract rights over concrete relationships and are more attentive to the values of care, connection and community .In summarizing feminist critiques of human rights, one could say that human rights are actually men's rights, and the state uses them as a means to control sexuality. Furthermore, human rights represent individuals as utterly separate one from another while masking concrete relationships of domination, particularly patriarchal domination. From the perspective of the majority of feminist legal theorists, human rights reflect a male viewpoint characterized by objectivity, distance, and abstraction or, as Catherine MacKinnon puts it: (Abstract rights will authorize the male experience of the world' (MacKinnon, 1991: 195).1

Feminist legal theory locates the main reason for the patriarchal character of human rights in the theoretical premises of liberalism. In particular, Robin West's reproach to modern American legal theorists insists that all of them, regardless of their liberal or critical (Marxist) backgrounds, explicitly or implicitly embrace the 'separation thesis' about what it means to be a (human being'. The (separation thesis' claims that the (distinction between you and me is central to the meaning of the phrase "human being" and that individuals are distinct and not essentially connected with one another' (West, 1991: 201). Problematically, separation is perceived not only as physical separation but as an epistemological and moral precondition of any possible co-operation between human beings; such separation is also held to be necessary for the origin of law. Robin West rejects this position because, in her opinion, the (separation thesis' may be (trivially true' for men, but is patently untrue of women.

Women are not essentially, necessarily, inevitably, invariably, always, and forever separate from other human beings: women, distinctively, are quite clearly 'connected' to other human life when pregnant. ...Indeed, perhaps the central insight of feminist theory of the last decade has been that women are 'essentially connected', not 'essentially separate', from the rest of human life, both materially, through pregnancy, intercourse, and breastfeeding, and existentially, through the moral and practical life. If by 'human beings' legal theorists mean women as well as men, then the 'separation thesis' is clearly false. If, alternatively, by 'human beings' they mean those for whom the separation thesis is true, then woman are not human beings. It's not hard to guess which is meant. (West, 1991: 202)

What strikes us in this argument is that it could just as easily be promoted by advocates of the moral majority .The ideology of the moral majority, in another context, says the same thing: women are essentially linked to children and because of this are more warm, more compassionate, etc. The moral majority would also agree that people today are too separated from one another and that we need to return to some kind of 'real connection'. However, while such advocates would argue against 'separation' in order to impose the view that the place of women is at home (where a woman can always be 'connected' with her husband and children and thus find the expression of her true 'essence'), Robin West's intention is, on the contrary, to find ways to overcome patriarchal domination.

The tension between 'separation' and 'connection' as well as the critique of human rights in feminist legal theory touches on one of the major problems of feminist theory -the notion of the Cartesian cogito. The majority of contemporary feminist theorists oppose the notion of the cogito: the cogito, as the abstract notion of a subject, is perceived as a partiarchal notion per se, which renders philosophy as such patriarchal. According to this view, the notion of the cogito provides the basis for the universality of male domination, as well as for 'separation' of individuals; i.e. in the framework of the cogito the individual is perceived as an abstract entity, separated from other individuals.

The most common feminist approach to the notion of the cogito rejects the cogito primarily on the grounds that it is falsely neutral: behind its presumed neutrality lies a series of hidden presuppositions which align a masculine subjectivity to it more easily than a feminine subjectivity .2 Such a feminist critique intends not only to stress that the cogito is not neutral enough and that, in order to make it truly neutral, one has to cleanse it of the remainders of male precedents, especially since it is already the very neutrality of the cogito which implies male prerogatives. Feminists usually goon to stress that in Descartes's philosophy the cogito is linked to the rigid opposition of the two substances -mind-body, or subject-object-which reduces the body to res extensa, to inanimate matter subjected to mechanical laws and governed by technical manipulation. This notion of the body involves the correlative notion of the subject perceived as a fixed self- identical entity standing opposed to reality regarded as the object of possible technical manipulation. And in the modern universe, this position of a fixed self-identical subject is clearly a male position.3 That is to say, in the division of work brought about with capitalist society, man is perceived as the upholder of knowledge and of the working process, in contrast to woman, who is excluded from this process and constrained within the privacy of family life. Women are perceived as non-rational beings, subjected to passions: they are passive victims of the affective mechanisms that govern their inner lives, who 'can only ever look at history in terms of little stories, through the wrong end of their opera glasses' (Le Doeuff, 1989: 2). From this perspective emerges a constant motif in post-Cartesian philosophy that regards women as passive, impressionable human beings who, in contrast to men, are not able to purify their souls and attain the reflective attitude of an objective observer, a bearer of impartial knowledge. Criticizing this philosophical notion of women, feminism usually reaches the conclusion that it is necessary to affirm a specifically feminine form of subjectivity that involves a different attitude towards the world, one involving dialogue instead of domination, plurality of particular links instead of the reign of an abstract universality, etc.

Current feminist challenges to the cogito lose some of their force when we recall that, in the seventeenth century, when Descartes was inventing his notion, some women tended to embrace the cogito as a liberating idea. These women, self-styled Cartesians, with whom Descartes corresponded and debated his ideas, regarded the cogito as a way to overcome patriarchal domination. For them, the cogito confirmed that 'mind has no sex' and that, anyone can fill the place of the individual subject' (Harth, 1992: 73) because the notion of subject as such has no sex.

If Descartes still thought of the cogito as a 'thinking thing', with Kant the cogito became the locus of a non-substantial subjectivity .In Kant's view, the cogito, as the empty form of apperception, does not have any positive ontological consistency in itself. As such, the cogito is neither male nor female: thus, we cannot say that it is essentially patriarchal. On the contrary, it is the very non-substantiality of the cogito, its abstract character, which enables us to discern features of patriarchal domination.

Lacan, who has been cited as one of the last 'Cartesian orphans' (Jardine, 1985), discovered in the notion of the cogito this Kantian potential. First of all, Lacan radically desubstantializes the cogito by showing how Descartes's reading of the cogito as res cogitans reveals that Descartes misunderstood his own invention. Cogito is definitely not 'a thing which thinks', instead it is a thoroughly empty form, a substanceless point of self-reflection. And Lacan's wager is that, on the ground of this substanceless void of the cogito, it is possible to formulate sexual difference.. Here we have to take into account Lacan's seemingly paradoxical assertion that the subject of psycho-analysis is none other than the Cartesian subject of modern science. This subject emerges by way of the radical desexualization of the human relation- ship to the universe. That is to say, traditional wisdom was thoroughly anthropomorphic and 'sexualized', its comprehension of the universe structured by oppositions bearing an indelible sexual stamp: yin-yang, Light- Darkness, active-passive. On this anthropomorphical model, the relation between the microcosm and the macrocosm, between the parallel structures of human beings, society and universe, was perceived in terms of both correspondence and organic unity .For example, the birth of the universe was derived from the coupling of the earth and the sun; society was regarded as a body politic with the monarch as its head, workers as its hands, etc. In modern society, in contrast, we are confronted with a non-anthropomorphic reality perceived as a blind mechanism which 'speaks the language of mathematics' and which can be expressed only through inherently meaning- less formulas. In this society, every search for a 'deeper meaning' of phenomena inevitably fails. The modern subject thus emerges without any support in the universe and searches in vain for traces of its meaning. The pain of adapting to such a reality is evident from the recent return of an anthropomorphic-sexualized worldview in the guise of pseudo-ecological wisdom ('new holism', 'new life paradigm', etc.).

It is against this background that we can measure the extent of Lacan's achievement: he was the first to outline the contours of a non-imaginary, non-naturalized theory of sexual difference, of a theory which radically breaks with anthropomorphic sexualization ('male' and 'female' as the two cosmic principles, etc.). For Lacan 'the formulation of sexual difference and sexual desire are not tied to any essential body' (Brennan, 1990: 301). This is why drawing a parallel between Lacan's 'formulas of sexuation' and Kant's antinomies of pure reason is fully justified. In Lacan, neither 'masculine' nor 'feminine' is a predicate that provides positive information about the subject or designates some of its phenomenal properties; 'masculine' or 'feminine' is rather a case of what Kant conceives of as a purely negative determination, one which merely marks a certain limit. More precisely, such a negative determination registers a specific modality of how the subject failed in its bid for an identity which would constitute it as an object within phenomenal reality .4 Lacan thus moves as far as possible from the notion of sexual difference as the relationship of two opposite poles which complement each other, together forming the whole of 'Man'. 'Masculine' and 'feminine' are not the two species of the genus Man but rather the two modes of the subject's failure to achieve the full identity of Man. 'Man' and 'Woman' together do not form a whole, since each of them is already in itself a failed whole.

We must also abandon the idea that before modern society (established on the notion of the Kantian cogito) there existed a society where patriarchal domination did not exist in a form as explicit as it is now. In pre-Cartesian society sexual difference as such did not exist; society was organized as a sexual community per se and functioned as an extended family. This society was a hierarchic organization: people were born into their social roles (of rich or poor, of women or man). Patriarchal domination was therefore universal, spread throughout the whole of society. When, with the advent of modernity , society became an organization of autonomous individuals and previous sexual communities were replaced by national communities, patriarchy had to affirm itself in an implicit, masked way. Only when people were perceived as formally equal did sexual difference as such become thinkable. With this claim, I do not intend to contradict the feminist thesis that philosophy is marked by patriarchal ideology .5 My point is simply that the foundation of this ideology is not the cogito as feminists currently perceive it and, on the contrary, that the very notion of the cogito can provide ways to overcome patriarchy.

It is possible to answer Robin West's criticism of liberal theory, as a theory that wrongly defines the subject as separated from other subjects, on two levels. First, psychoanalytic as well as Foucauldian and deconstructionist feminist theory has for decades strongly opposed the view of the subject held by Robin West. When she speaks about women as connected, West implicitly views the subject in a biologically determined and fixed way. The contribution of modern feminist theory is not, as Robin West says, the view that 'women are essentially connected' with other human beings, but rather, what feminist theory does is to analyse the effects of the patriarchal ideology which perceives of women as connected, warm, etc. Second, in opposing the liberal 'separation thesis' feminist theory does not recognize that it is the Kantian subject, on which liberal theory is grounded, which also makes it possible to think of intersubjectivity. The Kantian subject, as an empty form of apperception, is always in need of another subject to ground its identity: as long as I am an empty, split subject, what I am is always linked to what the Other (in the sense of another human being, as well as the symbolic order) thinks I am.6

Human rights in the modern sense of the term can only appear within the space of intersubjectivity established by the Kantian cogito. Before Kant, rights were defined vertically and were understood as granted by some power beyond human beings (God, for example). With Kant~ rights became established horizontally: the rights of one individual are defined in opposition to the rights of another (see Ferry, 1990). The point is that the rights of another individual not only limit our rights but also define them. When we perceive another individual as someone who has rights, we recognize him or her as the agent who defines what we are, what kind of rights we have.

It is not only feminist theory that scrutinizes the notion of human rights. All major philosophical schools today take some position on the issue of human rights. On the one hand, so-called postmodern theorists ask how we can understand the narrative of human rights when we do not believe anymore that its claims are true or that meta-narratives are even possible. Instead of searching for first principles and meta-norms, postmodernists analyse the discursive form of the notion of rights and read this form as a pan of the historically limited Enlightenment project which today has lost its relevance. Neo- Kantians, on the other hand, speak in favour of the notion of human rights and try to give it a new philosophical foundation. Richard Rony's pragmatism lies somewhere between these two positions: pragmatism is in principle critical of the notion of universal human rights but, at the same time, it tries to preserve the institutions (of legal order) which were originally established on the basis of the notion of rights.

The problem we must address is how to think the universality of human rights in relation to the differences and antagonisms that traverse society. One such difference is sexual difference and in this chapter I will discuss the supposed patriarchal nature of rights from a different perspective than that of feminist legal theory .My aim is to highlight the 'feminine' logic, the panicularity that is implicit in the notion of human rights itself and that has to be reconsidered if the universality of human rights is to acquire a new meaning. But in the first instance, I take a detour through the contemporary philosophical debates on human rights.


In contemporary philosophy, the relevance of the notion of human rights is proven or rejected according to how one decides on the question of whether unjust laws can be legitimately resisted. Answers to this question differ in Neo-Kantian and Foucauldian theory. Neo- Kantians argue that it is necessary to have some regulative principles according to which people orient their behaviour and judge the justness of the law itself. For Neo-Kantians, the notion of human rights is a kind of regulative ideal that has to be postulated as the principle of our action, although it is a principle that always remains, in some way, unrealizable. Without the idea of human rights or of some principle of the subject's autonomy, they argue, there is no way to judge the injustice of existing laws (see Renaut and Sosoe, 1992).

Foucauldians, on the contrary, resist this idea of regulative principles and argue for a genealogical demystification of the notion of human rights which would reveal the historical determination of the notion itself. To summarize the position of the Foucauldians: in resisting unjust laws, there is no need to appeal to some universal human rights, because it is unproductive to judge power relations in terms that are part of the relations of power. Law is also always linked to the mechanisms of power: therefore it is not in a position to judge power. Foucault did not perceive law as a model or code, thus he resisted the notion of human rights as well as the valorization of the state run in accord with the rule of law. When the state claims that it is a democratic state governed according to the rule of law, for Foucault (1980), this is only a sacralization of law as part of a strategy or process of domination, just as human rights are invoked to justify a strategy of power in a specific legal- discursive game. The subject becomes part of this game when it articulates its relation to power in the apparently neutral language of fundamental rights and freedoms. Foucault's colleague Francois Ewald (1986) goes even further , arguing that law as such does not exist; there are only laws and legal practices. For Ewald, as for Foucault, law is always historically determined, therefore they reject references to any universal norms or rights and argue for a genealogical critique of normative praxis.

The Neo-Kantian objection to Foucault is that, by 'drowning law in history', he loses the means to judge illegitimate legal praxis. For Neo- Kantians, only a reference to natural law (or universal human rights) enables us to critically evaluate different historical examples of law. T o judge the effectiveness of laws, we have to have some ahistorical or extra- political regulative idea. This critical role pertains to the law itself, as long as law is always distinct from the facts it judges. If law is perceived only as a historically determined discursive praxis, this split between facts and values is lost. For Neo-Kantians, in this case, law would lose all of its meaning.

The relevance of Kantian philosophy for understanding the notion of human rights can be shown on another level. The Kantian notion of the abstract, empty subject can be used to establish the theoretical basis for democracy. The essence of democracy is that it can never be made to the measure of concrete human beings: the basis of democracy is the subject as a pure empty place. Democracy is always only a formal link between abstract subjects. As soon as we try to fill it out with concrete, 'human', content, we risk falling into totalitarianism. And the same goes for human rights: as an answer to the question 'Who is the subject of human rights?', we can only say that here too we find the empty subject, the cogito.

Marx's critique of the notion of human rights centred on precisely this abstract character of its bearer, the abstract subject which lies at the core of the idea of human rights. Marx saw the notion of human rights as a product of bourgeois ideology which, by establishing the abstract categories of human equality and freedom, tried to mask existing relations of domination in capitalist society and the actual inequality and unfreedom of concrete individuals. But as Claude Lefort (1986) argues in his critique of Marx, the very opposite is true: human rights are one of the essential elements of democracy precisely because they are grounded on the idea of the abstract individual. The contribution of human rights to democracy lies in the fact that human rights can never be totally defined, that their character cannot be determined in full, that they cannot be enumerated. Thus society needs to continually invent new rights. For Lefort, the very fact that it is impossible to determine the character of the bearer of human rights is what gives the idea of rights its critical potential:

The rights of man reduce right to a basis which, despite its name, is without shape, is given as interior to itself and, for this reason, eludes all power which would claim to take hold of it -whether religious or mythical, monarchical or popular. (Lefort, 1986: 258)

As a result, for Lefort, such rights extend beyond any formulation imposed on them; in fact (their formulation contains the demand for their reformulation'; nor are acquired rights (necessarily called upon to support new rights'. Thus Lefort concludes, rights cannot be assigned to a particular period, as if their meaning were exhausted by the historical function they were called upon to fulfill in the service of the rising bourgeoisie, and they cannot be circumscribed within society , as if their effect could be localized and controlled. (ibid.)

Lefort strongly opposes theorists who perceive the notion of human rights as some kind of relic from the past, long stripped of its significance. He stresses that human rights, because of their abstract character and indefinability, cannot be situated in a specific historical era. This means that they cannot be genealogically analysed, as Foucaudians would like, nor can their effects be measured or controlled. The concept of human rights therefore retains its potential for critique of actual historical circumstances as long as it remains an empty, universal idea. Thus, while it is a mistake to place the idea of human rights in a specific historical context (as historicists try to do), it is also useless to search for some intrinsic human nature at the core of the idea of human rights (as natural rights theory tries to do). Marxists and Foucauldians make a similar mistake in rejecting the notion of human rights. When Marxists perceive human rights as an abstract idea masking real social antagonisms, and when Foucauldians consider human rights as an historically determined discursive praxis entrapped in the game of power, both camps miss the point that the abstract idea of human rights establishes the locus within which a split between law and power first arises. Human rights mark the point at which the all-encompassing power of political institutions is suddenly negated.

One can respond in the same way to the thesis of Critical Legal Studies (CLS), according to which the advocacy of abstract human rights does not help change concrete relations of domination in society or reduce the gap between rich and poor .7 CLS theorists do not recognize that it was only by virtue of the notion of abstract human rights that people first acquired the means to assess social injustice: this abstract idea first enabled people to articulate social differences in the language of law. When CLS theorists argue that society is in principle unjust and that we have to change it - instead of simply legitimizing the state by speaking about human rights - they fall into the same trap into which the advocates of communism had fallen. Communist legal theorists argued that their communist system was in principle the most just system in the world, thus they did not need the bourgeois idea of human rights; all they had to do was to realize communist ideals in everyday life.8 Both CLS theorists and communists thus say the same thing in different words: we have to counter abstraction by fighting for concrete changes; or in a vulgar jargon -we have to get to work instead of theorizing. But both theories, by rejecting the abstract idea of human rights, negate the inner logic of democracy. Thus Lefort argues that modem democracy is founded upon,

the legitimacy of a debate as to what is legitimate and what is illegitimate -a debate which is necessarily without any guarantor and without any end. The inspiration behind both the rights of man and the spread of rights in our day bear witness to that debate. ...The singular thing about the freedoms proclaimed at the end of the eighteenth century is that they are in effect indissociable from the birth of the democratic debate. Indeed, they generate it. We therefore have to accept that whenever these freedoms are undermined, the entire democratic edifice is threatened with collapse, and that, where they do not exist, we look in vain for the slightest trace of it. (emphasis in original) (Lefort, 1988: 39)


American pragmatism trys to compromise between the postmodern rejection of universal human rights and the actual political need to retain the liberal institutions established on the discourse of rights. Pragmatism thus offers a third approach, which addresses the pragmatic need to form a stable liberal democratic society, but which does not glorify some universal notion of freedom, equality or the common good. A society based on pragmatic principles would allow people and their communities to choose the moral codes that would regulate their lives.

The leading contemporary American pragmatist, Richard Rorty, calls 'Kantians' philosophers who understand 'rationality' and 'morality' as transcultural and ahistorical categories and 'think there are such things as intrinsic human dignity , intrinsic human rights, and an ahistorical distinction between the demands of morality and those of prudence' (Rorty, 1991 : 197). On the other hand, Rorty calles 'Hegelians' those philosophers who say that 'there is no human dignity that is not derivative from the dignity of some specific community' (ibid.). American 'Hegelians' thus defend liberal institutions on the ground of solidarity and not on the grounds of some ahistorical moral category. Rorty does not believe in ahistorical moral categories or intrinsic human values (or in humanity as such) but only in the values that are part of one's community. For Rorty, the position to be taken in regard to the universal notions of freedom, equality, etc., is that of 'postmodern bourgeois liberalism': postmodern because it does not believe in meta-narratives (stories about such entities as the noumenal self, Absolute Spirit or the Proletariat); and bourgeois because liberal institutions and practices are possible only in the specific historical and economical circum- stances of contemporary capitalist society.

As for human rights, Rorty argues that meta-ethical discussions of their existence have as little relevance to everyday ethical dilemmas as the question of God's existence. Furthermore, Rorty objects to bourgeois liberals who have not yet embraced postmodernism on the grounds that they still rely on the rationalist rhetoric of the Enlightenment to support their liberal ideas:

These liberals hold on to the Enlightenment notion that there is some- thing called a common human nature, a metaphysical substrate in which things called 'rights' are embedded, and that this substrate takes moral precedence over all merely 'cultural' superstructures. (Rorty, 1991: 207)

This position, Rorty argues, leads these liberals into a paradox as soon as they ask themselves 'whether their belief in such a substrate is itself a cultural bias' ..The problem for liberals is that they are committed, on the one hand, to Enlightenment rationalism and, on the other hand, to cultural diversity. According to the first of these commitments, it is not possible to doubt human equality; while according to the second, it is necessary to admit that most of the globe does not believe in equality, that belief in equality is primarily a Western idea. For Rorty the only way to resolve this inconsistency is to abandon the transcultural criteria of rationality with which the Enlightenment had hoped it could justify liberal ideas and specify limits to liberal tolerance. Pragmatism's answer to this dilemma is: 'we are going to have to work out the limits case by case, by hunch or by conversational compromise, rather than by reference to stable criteria' (Rorty, 1991: 208). If we can no longer rely on trans- cultural categories, our only option is to go back to such ethnocentric terms as 'being a Christian, or an American, or a marxist, or a philosopher, or an anthropologist, or a postmodernist bourgeois liberal'. Only by doing this can we tell 'where we are coming from', through our contingent spatio-temporal affiliations. Rorty stresses that such an ethnocentrism does not intend to work against liberal institutions or human rights; it only wants to be an 'ad hoc philosophical therapy' which would urge liberals to take with full seriousness the fact that the idea of procedural justice and human equality are parochial, recent, eccentric cultural developments, and that to recognize this does not mean they are any less worth fighting for. (ibid.)

Rorty finds that the only alternative lies in pointing out the practical advantages of liberal institutions that do not prescribe one conception of good and that allow individuals and cultures to get along together without intruding on each other's privacy.

You cannot have an old-timey Gemeinschaft unless everybody pretty well agrees on who counts as a decent human being and who does not. But you can have a civil society of the bourgeois democratic sort. All you need is the ability to control your feelings when people who strike you as irredeemably different show up at City Hall, or the greengrocers, or the bazaar. When this happens, you smile a lot, make the best deals you can, and, after a hard day's haggling, retreat to your club. There you will be comforted by the companionship of your moral equals.
(Rorty, 1991: 209)

Rorty thus advocates a mixture of private narcissism and public pragmatism; i.e. a society where people will not be interested in what goes on in the 'club' on the other side of the 'bazaar'. But in this society, it is necessary to follow the rules that will allow the 'bazaar' to stay open and that will ensure the functioning of the institutions of procedural justice.

The problem with Rorty's argument is that in reality such a 'bazaar' and such 'clubs' are not really possible. Rorty overlooks how the subject, as long as it is the subject of desire, is constituted by the desire of the Other (not only the Other of the symbolic order, but also the concrete other in the club on the other side of the bazaar). It is not possible to have a society in which people would not intrude into the privacy of others, where there would not be envy and where each subject's activity would not be essentially determined by what the other does.l0 And the same problem undermines Rorty's conception of 'public pragmatism'; i.e. the need to form neutral institutions, legal mechanisms that would guarantee 'private narcissism'. The question is, is not the very notion of human rights, on which political mechanisms and institutions are based, also determined by the logic of desire?


Joel Feinberg (1980) tries to justify the notion of rights in yet another way, negatively, by hypothesizing the existence of an imaginary 'world without rights', called 'Nowheresville'. In this town life would go on as anywhere else, the only difference being that people in Nowheresville would have no rights. Even more significantly, people in this town would not know the notion of rights at all; i.e. they would not be encumbered by thinking about what rights are, who possesses them and who does not. But without the knowledge of rights, the inhabitants of Nowheresville would not be able to make claims either. If the people were prevented from doing something, or if they felt that some injustice had been done, they would not be able to demand change or retribution by invoking the rightness of their cause. In such a situation, the people of Nowheresville could use force to get what they want, but they could not justify their use of force by referring to universal rights. Without a notion of rights, the citizens of Nowheresville cannot think in terms of what is their due: thus they cannot claim before they take (see Feinberg, 1980: 148).

The connection between rights and demands, however, emerges as much more complicated when explained with the help of Lacanian distinctions between need, demand and desire. For Lacan the concept of need is linked to the natural or biological requirements of human beings (food, for example). But for human beings it is essential that these needs are never manifest as purely natural needs.. Needs are always defined by a symbolic context: if we are hungry, for example, we do not simply grab the first available food, but rather we think about what we shall eat and then prepare food in a special way.

When put into words, a need becomes articulated in the symbolic order. At this moment, we start to perceive it as a demand -as a demand to the Other to satisfy the need. On the level of demand the subject asks the Other for a specific object (the child, for example, wants food) which is supposed to fulfil a need, but by articulating this need as a demand the subject also asks the Other for its love (by demanding food the child also demands love and attention from the mother). The object of demand thus becomes the subject's means of attaining this other goal- the attention or love of the Other . At this point the third element of the triad, desire, emerges: desire arises as the excess of demand over need, as something in every demand that cannot be reduced to a need. As Lacan argues: 'desire is neither the appetite for satisfaction, nor the demand for love, but the difference that results from the subtraction of the first from the second' (Lacan, 1977: 287). Or in other words:

Desire takes shape in the margin in which demand is torn apart from need: this margin being that which is opened up by demand, the appeal of which can be unconditional only in regard to the Other, under the form of the possible defect, which need may introduce into it, of having no universal satisfaction (what is called 'anguish').
(Lacan, 1977: 311; trans. modified)

The subject expects from the Other (the mother, for example) that it will wholly fulfil the subject's demand for love, and when this does not happen, anguish arises. In its desperate appeal to the Other who will fulfil its lack, the subject also encounters a lack in the Other. This is the moment when the child learns that the mother is not all-powerful, that she is not the perfect Other who will always guess what the child wants. The subject therefore encounters the reality that what it lacks is not present in the Other because the Other is also lacking. Lacan symbolizes this lack in the Other with an 0 -the signifier of the lack in the Other, the signifier of the barred Other. This is the signifier that all other signifiers turn around, the signifier that does not follow the logic of other signifiers. All other signifiers represent the subject for another signifier. S (0), on the other hand, is the signifier 'for which all the other signifiers represent the subject: that is to say, in the absence of this signifier, all the other signifiers represent nothing' (Lacan, 1977: 316). The signifier of the lack in the Other concerns what is not possible to symbolize, the irreducible 'remainder' in any symbolization, that which cannot be articulated in language.

This notion of the lack in the Other allows us to further specify the status of the object. The object that was lost in the passage from need to demand now comes back as the object cause of desire - which Lacan calls objet petit a. It is the object that embodies the surplus of demand over need, the object that stands in for the emptiness which the subject encounters when its demand remains unsatisfied. The objet a 'represents what the Other lacks in order to be absolute, represents the lack itself as the irreducible remainder in any signification' (Benvenuto and Kennedy, 1986: 176).

How does this Lacanian triad apply to the question of rights? With his hypothetical example of Nowheresville, Joel Feinberg touches on only one moment of this triad -demand. But the problem of Nowheresville is not only that, because of the nonexistence of the very concept of rights, people would not be able to assert claims. In fact the people in Nowheresville would not even be able to define their needs as demands or claims. Need is always symbolically mediated: it is never directly expressed. Something is recognized as need only in retrospect, when it is articulated in language; i.e. when it acquires the form of the demand to the Other. Only in the framework of symbolic organization is need reflected as demand and is thus capable of being recognized as such. Nowheresville cannot be said to possess a symbolic organization: the nonexistence of the notion of rights means that symbolic organization does not exist. Nowheresville would be a kind of pre- Oedipal society of direct relations between people, reminiscent of the symbiosis of mother and child before the introduction of the function of the father. It is society of immediate relations between individuals without some third element which would introduce symbolic mediation by means of a fundamental prohibition. Because the very way that an individual becomes a social subject involves the prohibition of incest, symbolic castration, the subject has to experience some loss when it becomes a 'being of language' (parletre).

Linked to this is the question, why did the notion of human rights appear only in eithteenth-century bourgeois society and not before? Before the eighteenth century, rights were perceived as a social status (something attributed only to free people) or as granted from some agency above the individual (God, for example) and not as something the human being by definition possessed. The invention of democracy brought with it the notion of a forced choice and a sacrifice the subject has to make in order to become a member of the community .The social contract, which incorporated the subject into the symbolic community, is linked to the subject having to make a choice. The subject has to choose freely to become a member of the community, but this choice is always a forced choice -if the subject does not 'choose' community, it excludes itself from the society and falls into psychosis.

Through this ritual of the forced choice the subject undergoes symbolic castration and actually sacrifices the incestuous Object that embodies impossible enjoyment. (But as Lacan says, the paradox is that this Object is not given prior to its loss, that it only comes to be through being lost.) Before the invention of democracy, when the social community still functioned as an enlarged family, this sacrifice did not exist in such a way. The subject was naturally linked to the community (the subject was by nature social being, zoon politikon, in Aristotle's terms) and did not need to freely accept it. In pre-modern society, the subject's 'entering the society' was not such a traumatic act of choice and sacrifice, because in this hierarchic society, the subject became included in the society by an act of initiation. Although the subject was in pre-modern society also subjected to castration, castration became visible only by the invention of democracy ..The same logic is, on another level, at work with the notion of the 'empty place of power' introduced by Claude Lefort. We cannot say that the place of power became empty only with the invention of democracy. The place of power was always already empty, but with democracy this emptiness became visible, while before it was masked by the presence of the monarch.

The introduction of rights is nothing other than a substitute for the fundamental prohibition. As such, rights serve the same function as the objet a. The objet a is the substitute the subject gets when it is subjected to castration upon entering the realm of symbolic mediation. At the same time, however, the objet a is also the element that renders all other potential substitutes not good enough. For example, when the child is weaned from the breast and loses its primal object of desire, every other object will be seen as a substitute, as something to fill out this place of the primary lost object. Desire will therefore range from one object to another but will always remain unsatisfied, it will always be 'desire for something else' insofar as these new objects are seen as substitutes for the first object (Lacan, 1977: 166, 167). Thus, on the one hand, the objet a fills the lack, the split that traverses the subject after castration, but, on the other hand, the objet a prevents any object from really filling this lack. The same goes for rights: although we get them as a substitute for the fundamental prohibition necessary to live in a society, rights actually prevent any substitute from filling the lack which was introduced by the prohibition. Although we have rights, a right that would express the notion of rights itself does not exist. All we can do, in this regard, is to perpetually invent new rights, searching in vain for a right that would affirm us as non-split subjects.10

Feinberg's argument appears even more problematic if we consider that demand always relates to specific objects. In the case of rights, a demand (or claim) would therefore always refer to a specific right. But the entire logic of rights turns on the impossibility of enumerating rights on which any claim could then be staked. It is never possible to list all rights, just as it is never possible to fill the demand for their total possession. As a result, it appears that rights are not so much linked to demand as they are to desire: they are akin to that surplus of demand over need because of which demand always remains unfulfilled.

Feinberg justifies the need for human rights by saying:

Having rights enables us to (stand up like men', to look others in the eye, and to feel in some fundamental way the equal of anyone. ...Indeed, respect for persons (this is an intriguing idea) may simply be respect for their rights, so that there cannot be the one without the other; and what is called (human dignity' may simply be the recognizable capacity to assert claim. (Feinberg, 1980: 151)11

With the help of Lacanian psychoanalysis, we can say on the contrary that the subject does not feel equal to another because it can demand something, but because as a subject of desire it cannot expect that its demand will be completely fulfilled. Desire is always intersubjective, it is by definition mediated by the Other (other people, the symbolic order as such). And the subject enters the domain of rights when it is possessed by the intersubjectivity of desire: the subject as the bearer of human rights can thus identify with another subject only as a subject of desire.

The whole logic of rights becomes clearer if we say that the subject of rights formulates its lack in the language of the Other.12  The subject is always searching for an object that will fill its lack. The discourse of universal human rights strives to produce the impression that the object has already been attained. By claiming that we have human rights which the state must guarantee, we presuppose that the object of desire is already ours: all we need to do is to describe it and codify it in law. The discourse of universal human rights thus presents a fantasy scenario in which society and the individual are perceived as whole, as non-split. In this fantasy, society is understood as something that can be rationally organized, as a community that can become non-conflictual if only it respects 'human rights'.


In addition to concealing social antagonisms, the discourse of human rights also conceals sexual difference. Sexual difference is understood here as the result of the castration complex which 'makes' a girl (as a sexual role) out of a girl, and a boy out of a boy, although it is not always the case that sexual roles have to correspond to biological sex. As I will show later, the Lacanian interpretation of sexual difference explains how each sex is in a different way inscribed into the symbolic network, how the positions of man and woman are fonned differently in relation to language. Sexual difference thus is not so much a biologically determined position as a position that is symbolically mediated. Consequently, post-structuralist feminist theory is interested in how sexual difference is present in different discourses, not as a reflection of 'reality', but as something that discursive practice helps to constitute. In relation to the question of sexual difference, it is, as Parveen Adams says, always necessary to analyse how 'a series of sexual differences is constructed through practices of representation and in such a way that sexual distinctions set up under different discursive conditions may vary, overlap, be contradictory, etc' (Adams, 1990: 108).

In relation to human rights, then, the question becomes, how is sexual difference present in the discourse of human rights? Is this discourse always already patriarchal, as some feminists claim? Etienne Balibar (1992) differs from the proponents of feminist legal theory when he argues that negation of sexual difference is constitutive of the modern notion of human rights. Balibar describes what he takes as the two basic rights -freedom and equality -as rights that are intrinsically connected and that supplement each other in the modern discourse of human rights, even though, regarding their content, they are not complementary and even exclude each other .13 He describes these two rights with three sets of contrasts. First, while equality concerns primarily the social and economic domain, freedom belongs to the domain of law and politics. Second, the realization of equality demands the intervention of the state (as long as equality concerns some kind of redistribution of goods), but preservation of freedom demands the limitation of state intervention. Finally, equality concerns society as a whole, viewed as a collective entity, whereas freedom is primarily a right pertaining to individuals.

Balibar claims that both freedom and equality have became so connected that they have given rise to a new composite concept- 'egaliberte'. That the two rights now appear identical Balibar sees as a consequence of a specific historical development in which, on the one hand, the conditions of freedom became the same as the conditions of equality and, on the other hand, limitations of freedom became seen as essentially linked to inequality .

Balibar stresses how the notion of 'egaliberte' today functions as a non- reversible truth: a truth that is perceived as universal only in retrospect, historically, and always as a negative universality, as a completely undefined truth, which is nevertheless understood as something that can be realized in any situation. The indeterminate character of 'egaliberte' is, at one and the same time, its strength and the main obstacle preventing the actual granting of the very rights it heralds. A constant tension exists between the universal character of the notion of 'egaliberte' and the actual realization of this notion in existing political and legal institutions. Thus, we must endlessly affirm our belief in 'equality and freedom'. Only if we constantly repeat to ourselves the importance of rights will the effect of the truthfulness of these rights be produced. Because of this tension between the universal meaning of human rights and their dependancy on 'praxis' for their realization, it is also impossible to establish something like a politics of human rights -a kind of plan to realize rights. Balibar argues that the ideological connection between freedom and equality cannot guarantee the stability of societal institutions. In order to achieve such stability, it is necessary to make use of two mediators: the 'community' (or fraternity) and 'property'. Each of these mediators is, however, also a result of social conflicts and is thus also always split. Community is divided into public and national community, and property into capital and work.14 In spite of their own internal divisions, these two mediators serve to conceal the two fundamental differences that traverse society: sexual difference and the difference between intellectual and practical knowledge (or intellectual and manual labour). The notion of community conceals sexual difference, while the notion of property conceals the difference between intellectual knowledge and manual know-how. As Balibar argues, these two differences (sexual difference and the difference between 'mind and body') present the limit of freedom of the class of humanity as a whole. No 'political solution' is available to resolve these two differences: it is not possible to unite opposing groups and create a complete manual-intellectual labourer, or an androgynous being. It is also not possible to resolve these two differences with the formal institution of equality: although citizens may be formally equal, these differences remain in a concealed way. Thus these two differences are something other than individual inequality .In these two cases we encounter collective relations of inequality (of men and women, elites and masses) which are always reproduced as and present in the form of personal relations between individuals. As Balibar points out, these two differences are not equivalent nor are they expressed in the same way. In the case of sexual difference, we are dealing with a 'surplus of singularity' which prevents the freedom of men and the freedom of women from actually being perceived as equal. Thus, although women may be formally the equals of men, this formality does not mean that they have the same freedoms as men. In the case of the inequality of knowledge, we are dealing with a 'withdrawal of singularity' which we encounter when, for example, a liberal government tries to enlighten the masses. Any dissemination of knowledge carried out by the government must always involve a depersonalization of that knowledge. This is especially true for the communist regime. As was shown in Chapter 3, socialist governments always tried to educate the masses. But in introducing the communist ideology to the people, the Party discourse presented its knowledge in a totally depersonalized way - as historical truth being revealed.

Although these two differences cannot be abolished, for Balibar it is necessary that, in the case of sexual difference, society does not neutralize differences but 'diversifies' freedoms. And in the case of differences between intellectual and manual labour, it is necessary that society redistribute knowledge and break institutional connections between intellectuals and knowledge. For Balibar the question that remains open is how to think universal truth and singular truth, or how to inscribe the universality of 'egaliberte' into the singularities invoked by the two differences.

Balibar's excellent essay leaves open, however, some questions about the relation between these two differences. Given the psychoanalytic theory of sexual difference which I have presented in the discussion of the Cartesian cogito, the equation of the two differences becomes more problematic. As long as sexual difference is the effect on the living body of the limit, of the deadlock that pertains to the symbolic order (language) as such, it defines us on another, more fundamental level than the difference between intellectual and manual labour. And when Balibar equates this second difference with mind-body dualism, he unintentionally touches on one of the most debated topics in feminist theory - the patriarchal connotation of the mind-body opposition. Let us recall the feminist objections to this dualism.

Feminist theory features two main perspectives on the notion of the body .15 More traditional feminists (Beauvoir, Firestone, Millet, etc.) perceive the category of the body as an attempt to unify the concrete, sexually and racially different bodies under a single, unified image of the body that is already marked by patriarchal ideology. Within this ideological space, the mind-body distinction comes to found the masculine-feminine distinction. The body is the site of nature and thus correlates to female passivity, whereas the mind is the domain of the creative spirit of men and thus correlates to male activity .For traditional feminists, psychoanalysis plays a major role in locking women into their biological bodies and explaining their behaviour by way of their sexuality (see Millet, 1971).16

Another, more contemporary line of feminist theory has emerged out of the psychoanalytic tradition in the work of such writers as Irigaray, Cixous and Gallop. Such theorists alter the perspective on the body in efforts to rediscover the specificity of the female body. Insisting on the difference between male and female bodily experience, these feminists focus on re- evaluating the female body as the site of resistance to dominant patriachal ideology. Their approaches range from Irigaray's attempt to produce a new feminine imaginary that would represent the specificity of feminine sexual experience, to Gallop's emphasis on the silenced and refused representation of the feminine body, to Cixous's elaboration of the feminine libidinal economy. Although these authors differ in their theoretical analysis, their common ground is a return to the body in the sense of rediscovering the suppressed 'feminine body'. 17 Again, the main target of criticism is psycho- analysis, this time not for locking women into biology but for conceptualizing the symbolic (language) in a male-dominated way.

Where the body is concerned, and especially the mind-body division, Lacanian psychoanalysis opens up a new perspective which the feminist critique rarely recognizes. For Lacan the duality of the mind-body is essentially an imaginary opposition. Underlying this opposition is not some kind of brute dualism, but (as Aristotle already knew) a unity of the two aspects of a living organism: the body is not inanimate matter because it is enlivened by its inherent, inner, life-principle (soul). This harmonious totality of form and material, of inside and outside is, however, shattered by the fact of language: language is the original cut which introduces the irreducible disharmony, imbalance or split into the unity of a living organ- ism. Language unseats the organism from its inherent, natural balance. With language, the needs of human beings are transformed into insatiable drives (see Lacan, 1990). For Lacan, it is thus essential to differentiate between the subject and the soul: the soul is inherently linked to the organism, it is the principle of life, while the subject is an empty point of self-relating that emerges when the body becomes enchained within the structure of language. Lacan emphasizes how language itself is a traumatic agency which, as a kind of parasite, destroys the imaginary harmony of soul-body and causes the organism to 'go nuts'; i.e. it enslaves the organism to a symbolic mechanism incompatible with its life interests. The division is thus not mind versus body, but the organism versus the trauma of the symbolic order which perturbs the organism's balanced reproduction.

We can now identify the flaw in Balibar's argument: 'intellect' is a category of the symbolic and is therefore of a totally different order from 'mind' or 'soul'. By linking the division between intellectual and manual work to the mind-body opposition, Balibar subsumes an historically specified feature of the process of production ( the splitting of the unified working process into its 'intellectual' and 'physical' components that took place with the modern division of labour) under a traditional ideological opposition (mind-body).

Returning to the problem of human rights: Balibar is quite justified in pointing out that the universality of human rights and their abstract character are necessary for the functioning of democratic society .It is equally essential that this universality remains empty, contentless. Because human rights possess this kind of universality, they function in the same way as Lacanian mathemes. A matheme is something that can be inscribed or constructed at some Real place, but whose content cannot be defined or displayed in reality. A matheme is an inscription which cannot be translated and it always remains the same because it does not have a meaning in itself.

Lacan describes what he means by a matheme by invoking the difference between the meaning of the words 'exist' and 'ex-sist' (or insist). Something can exist only if it can be articulated in language. But what only ex-sists or insists (and belongs to the Real) cannot be described in language. This is true, for example, for the objet a -it can only be inscribed, formulated in 'quasi logical-mathematical' terms. And this is also true for human rights. As long as they are only a construct, an empty universality, human rights as such do not exist, they can only 'insist'; i.e. as a substitute for something fundamental which the subject has lost. Thus they belong to the Real. Similarly, human rights can never be fully described in language; there will always remain a gap between positive, written rights, and the universal idea of human rights.

By analysing the question of the universality and the particularity of human rights with the help of Lacan's (1975a) formulas of sexuation, we can also see how it is possible to articulate the problems of sexual difference and human rights. Through his formulas of sexuation, Lacan argues that man and woman are defined (and split) separately with respect to the 'phallic function'.18 Lacan understands the phallic function as symbolic castration, as something that happens to a human being when he or she enters language: castration here refers to the alienation of human desire that is due to the very fact that we are forced to express our desires in words, or rather that desire itself forms within and by means of language we have ourselves invented, i.e. which we have learned from others, and are obliged to use because others use it and understand little else. (Fink, 1991: 66)

Man is completely subordinated to symbolic castration and thus wholly determined by the phallic function. Man's logic is a logic of universality .The whole of a man falls under the phallic function; i.e. man is altogether determined by symbolic castration, but at the same time the position of man implies that there is one man (the Freudian 'primordial father') who is an exception and is not subordinated to symbolic castration. This 'primordial father', as is well known from Freud's myth, is the possessor of all women, the father who is not subordinated to the law and to whom the threat of castration does not apply. The women's logic of the formulas of sexuation also has two parts: the first formula says that not all of a woman falls under the phallic function; and the second formula says that there is nothing in woman which is not determined by the phallic function. For women, however, the phallic function does not govern completely. Woman, Lacan says, is, with respect to the symbolic order, not whole, she is not totally bounded and determined by the phallic function. But Lacan argues that although not all of a woman is defined by the phallic function, she is nevertheless situated within the symbolic order.

When Lacan says that Woman does not exist, he means that women cannot be adequately defined through language. Women have something (the presumed woman's jouissance) that escapes the symbolic order. Bruce Fink, in describing the formulas of sexuation, argues that women have more 'direct' access to the Real, to that which is unsymbolizable, around which the symbolic order is structured. The Lacanian feminine logic thus presents what is particular, what is symbolized, but what also escapes symbolization.

These formulas of sexuation can help us further clarify the logic of human rights. As I pointed out earlier, human rights are universal; but as long as they stand in relation to the object of desire, human rights are essentially determined by this particular object. The discourse of human rights actually negates this particularity of the object, just as on another level this discourse also negates sexual difference.

If the idea of human rights is analysed with the help of Lacan's formulas of sexuation, two logics can be found to be at work in it. According to the first, currently dominant 'male' logic, all people have rights, with the exception of those who are excluded from this universality (for example, women, children, foreigners, etc.). According to the 'feminine' logic, in contrast, there is no one who does not have rights; i.e. everybody taken individually possesses rights, but precisely because of this we cannot say that people as such have rights. This feminine logic could be called a postmodern logic of rights: according to this model it is not the case that human beings as such have rights, but that none remain without rights. Rights as such cannot be universalized, because universalization always needs an exception. There has to be someone who does not have rights for the universal notion of rights to exist. A postmodern approach to rights would be based on the claim that no one should remain without rights, which also means that no one can universally possess them. Understanding human rights according to the Lacanian formula of sexuation enables us to articulate a discourse of human rights that does not conceal social antagonisms, while still retaining its critical function.

Women's Studies Journal

Selected Papers
Anniversary Issue 1992/2002

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