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Moving beyond False Binarisms: On Samuel Moyns <em xmlns:m="http://ww xmlns:mml="http://www.w3.

org/1998/Math/MathML" xmlns:xlink="http://www Last Utopia

Seyla Benhabib

Qui Parle: Critical Humanities and Social Sciences, Volume 22, Number 1, Fall/Winter 2013, pp. 81-93 (Article) Published by University of Nebraska Press

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Moving beyond False Binarisms


On Samuel Moyns The Last Utopia
seyla benhabib

Rarely in intellectual history has a concept red the imagination of scholars across disciplines as divergent as law, philosophy, history, and cultural studies during the same period of time. But this is exactly what has happened with the concept of human rights in the last two decades. While it may be plausibly argued that the law could hardly ignore the conceptsince it is a cornerstone of the modern system of the rule of lawit is nonetheless surprising that in political science and political theory, interest in human rights had waned radically after the late 1960s and was not revived until quite recently. Under the triple attacks of Marxism, some variants of feminism, and the charge of ethnocentrism levied by postcolonial theory, human rights had largely disappeared from view. Even John Rawlss monumental work A Theory of Justice (1971) did not lead to a revival of this concept. Throughout the 1970s, Ronald Dworkins contributions remained nearly alone in urging all to take rights seriously.1 This has changed radically.2 Along with that phenomenon referred to as globalization, the impact and inuence of the international human rights regime has grown. By a human rights regime, I understand the collection of public treaties, covenants, and documents, as well as the institutions and organizations that are entrusted to measure, evaluate,

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and judge compliance with them, and also, norms of international customary law, such as jus cogens norms that bind even in the absence of formal treaties. Against the background of the rise of the international human rights regime, James Grifns On Human Rights and Charles Beitzs The Idea of Human Rights are the most prominent philosophical works of the last decade discussing human rights.3 In contrast to philosophical accounts, the historiography of international human rights is distinguished through the more colorful dramatis personae introduced into the discussion by historians. Each historian has his or her heroes and heroines in telling the tale of the Universal Declaration of Human Rights (udhr) and international human rights. For Mary Ann Glendon, this is Eleanor Roosevelt; for Samantha Powers it is Raphael Lemkin; for Jay Winter it is the French jurist Ren Cassin; for Marx Mazower it is the South African prime minister Jan Smuts, whose efforts ironically resulted in the condemnation of his own country by the un General Assembly for its treatment of colored peoples.4 As its hero, Johannes Morsinks extremely instructive and philosophical reconstruction of the debates leading to the udhr has the Canadian jurist John Peters Humphrey.5 Samuel Moyns The Last Utopia: Human Rights in History is both an account of historical and political developments leading to the current prominence of human rights and, at the same time, a forceful and often polemical intervention into the expanding literature on the historiography and philosophy of human rights. Moyn casts a critical and jaundiced eye upon the increasing global inuence of the politics of human rights. I am not convinced. Indeed, Moyns historiography is impressive; however, the political theory implicit in his book is never articulated clearly. I nd problematic and false the philosophical binarisms Moyn sets up between morality and politics, human rights and citizens rights, and human rights and democratic sovereignty. Some of these binarisms derive from Moyns desire to deconstruct, in the nontechnical sense of taking apart the elements of, a certain teleological way of writing the history of human rights, extending from the Stoics conception of the law of nature to the udhr. But some of his binarisms rest on his own unexamined normative assumptions.

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Moyns Narrative Methodology Joining the historian Marc Bloch in criticizing the idol of origins (we can also think of Walter Benjamins critique of certain forms of historical writing), Moyn refuses to see history as the tracing of antecedents or as the unfolding of a unied narrative out of a common source or origin.6 Human rights, he argues, are something new that has transformed old political currents beyond recognition (LU, 42). And the true key to the broken history of human rights, then, is the move from the politics of the state to the morality of the globe which now denes contemporary aspirations (LU, 42, my emphasis). This passage succinctly states Moyns historiographic method, and there is much to be learned from it. His discussion of the human rights movements in Latin America and Eastern Europe, his careful reconstruction of debates among his renowned colleagues of international law at Columbia University, and his learned account of the premodern history of the concept are all exemplary. As opposed to Lynn Hunts work, which establishes a parallelism between the rise of humanitarian concerns and human rights along a continuous line across political modernity, Moyn emphasizes ruptures, discontinuity, and unexpected breaks in this historical trajectory.7 This irreverent history has an equally irreverent and delegitimizing theoretical purpose. The term utopia in the title of the book does not mean utopia in Rawlss sense of a realist utopia, that is, as moral hope grounded in a reasonable future conguration of the political institutions of our society. Nor does Moyn mean utopia in Habermass sense, as when the latter writes of the utopian force of human dignity, of how moral anger and a sense of humiliation can turn into motivations for political struggles of equal citizenship. Nor does Moyn mean by utopia Ernst Blochs principle of hope that sees the present as containing within itself radical alternatives such as to open for us a horizon of expectations that is not yet, noch nicht, but may come to be. Rather, Moyn uses utopia in the sense in which the young Marx used the term to heap scorn upon the utopian socialists of his time for their lack of historical acuity and political realism. In this sense, utopians are moralists, dreamers, and, au fond, deeply antipolitical thinkers.8

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Some sought to achieve, Moyn writes, through a moral critique of politics the sense of pure cause that had once been sought in politics itself (LU, 171); further, human rights substituted a plausible morality for failed politics (LU, 175). And using a more cutting formula, he asserts that human rights were born in antipolitics and that they survived as a moral utopia when political utopias died (LU, 214). These are not only provocative claims but also ghting words, based on binarisms that are never claried. Morality is juxtaposed to politics, utopianism to realism, and liberal internationalism and cosmopolitanism are said to be antagonistic to democratic sovereigntism. Moyns work is part of an amoral turn in our understanding of the political, one that blends together old-fashioned and nation-state centered political realism with postmodern skepticism toward normativity. The False Binarisms of Moyns Work Moyn sees an evolution, or rather a devolution, in human rights discourse from eighteenth-century conceptions of the rights of man and the citizen to a disembodied politics of global and international human rights. He relies on Arendts famous analysis of the right to have rights in The Origins of Totalitarianism to make this case. Arendt writes:
We become aware of the existence of a right to have rights (and that means to live in a framework where one is judged by ones actions and opinions) and a right to belong to some kind of organized community, only when millions of people emerge who had lost and could not regain these rights because of the new global political situation. . . . The right that corresponds to this loss and that was never even mentioned among the human rights cannot be expressed in the categories of the eighteenth-century because they presume that rights spring immediately from the nature of man . . . the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself. It is by no means certain whether this is possible [my emphasis].9

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The historical context of Arendts remarks was the growing discord and political ineptitude of the League of Nations throughout the 1920s and 1930s in continental Europe; the emerging conicts among so-called national minorities themselves, as well as the hypocrisy in the application of the Minority Treaties.10 The modern nation-state was being transformed from an organ that would execute the rule of law for all its citizens and residents into an instrument of the nation as a narrowly imagined ethno-national community. The nal perversion of the modern state from an instrument of law into one of lawless discretion in the service of the nation was completed when states began to practice massive denaturalization against unwanted minorities, creating millions of refugees, deported aliens, and stateless peoples across borders. If we read Arendt within this historical context, the right to have rights can be understood narrowly as the right to political membership, that is, to citizenship within a bounded polity, which then acts as the guarantor of ones human as well as civil rights. And this is precisely Moyns reading of Arendt. However, Arendt has a broader philosophical problem in mind which Moyn deliberately avoids. The right to have rights entails a twofold claim: rst, the right to be recognized as a person entitled to a bundle of rights, however these may be dened; and second, the rights to which one would be entitled once such recognition is established. Moyn interprets the rst right as being identical with the right of political membership, whereas the right to have rights, needs to be parsed as the moral right of every human being to be recognized as a person, in other words, a being entitled to bear rights. It is precisely because the European nation-state system, which collapsed in the interwar period, did not institutionally respect such a category of universal personhood as distinguished from national membership that stateless peoples lost all human rights as well. At one point, Moyn quotes Cardinal Silva of Chile, Every man has the right to be a person (LU, 145). This is precisely the norm of the universal right of personality from which the udhr proceeds. Admittedly, in the 1950s Arendt was deeply skeptical about such international guarantees, preferring to leave the condition of the stateless as an aporia with no foreseeable solutions. However,

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as I have argued elsewhere, her attitude changed over the years to the point that in Eichmann in Jerusalem (1963) she engaged in a full-throated defense of crimes against humanity, which is inseparable from the principle of the right of every human being to be a juridically protected personality, whether citizen of a state or not.11 Arendt would hardly agree with Moyn that the history of human rights reveals the persistence of the nation-state as the aspirational forum for humanity (LU, 212). It is striking that for her the nation-state contained within itself two often contradictory principlesthe modern state as governed by the rule of law and respect for human rights for all, and the supremacy of the ethnos or the view that the state belongs to one ethno-national group alone. And this conict was often resolved with the triumph of the latter and the defeat of the former. Moyn is inattentive to Arendts skepticism vis--vis the modern nation-state to achieve the rights of all its citizens and residents. Moyn has recourse to Arendts arguments because he is trying to make human rights claims depend upon collective selfdetermination. Problematically, throughout his text, Moyn interchanges collective self-determination and sovereignty. Notably, collective self-determination can take many different forms that are sub- or supra the nation-state. Local and federalist forms of collective self-determination are just as plausible as are new transnational or supranational forms of self-determination and sovereignty such as the European Union. Such polities do not bear the traditional markers of sovereignty, understood as a unitary, undivided, absolute form of authority. In these new forms of collective self-determination, sovereignty becomes a functional concept indicating the nality but not the ultimacy of certain decisions, procedures, and institutional practices. Moyns persistent juxtaposition of politics and morality has its sources in an equally unexamined statist theory. In the tradition of liberal democracy and of civic republicanism, such as Jean-Jacques Rousseaus, Charles Taylors, Michael Sandels, and Norberto Bobbios, human rights constitute the moral foundations of the political. According to such thinkers, the moral respect for every person qua person places constraints on the constitution of the political.

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The disagreement between Kantian liberals and civic republicans is not about the place and importance of human rights in the polity but rather about the extent to which human rights can or cannot trump other goods to which polities may be equally devoted. In my view, human rights constitute a narrower group of claims than general moral rights; human rights bear on human dignity and equalitythey are protective of human status as such. Clearly, morality involves more than just concepts of dignity and equality; moral systems entail values such as fairness, justice, human ourishing, and altruism. I agree with James Grifn that human rights do not exhaust the entirety of our conceptions of justice, let alone of morality.12 Human rights have their proper place in discourses of political legitimation. Such discourses presuppose moral principles, in the sense that the justication of human rights always leads back to some moral principle and some view of human personhood and agency. But human rights are most centrally part of a public vocabulary of political justice; they designate a special and narrow class of moral rights. Most contemporary theorists would see no antagonism therefore between morality and human rights or human rights and liberal democratic sovereigntism. Moyn uses phrases such as the morality versus the politics of human rights without spelling out what he means by either, leaving the assumptions and prejudices of the reader to ll in the blanks. The most pressing philosophical question today is about whether, following Rawls, Beitz, Cohen, and Raz,13 we should view human rights in terms of their function in a public political project with its own distinctive purposes, forms of action, and culture, which is in turn part of the global normative order (IR, 13); or whether, following Grifn, Kateb, Habermas,14 and others, we should rather distinguish the conceptualization of human rights from the problems of attaining a normative global order. Establishing our conception of human rights through some procedure of justication would then show that there will be inevitable conicts and tensions between the normative surplus of human rights discourse and existing institutional practices. Raz and Beitz fear the irrelevance of such philosophical argumentation in the face of institutional human rights practice, but the danger in not engaging in

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the philosophical task is that the normative force of human rights language will be blunted. I do not see that Moyns work helps us think through these issues at all: he would accuse the Rawlsians of naive moralistic interventionism in international affairs while he would charge neo-Kantians such as Habermas, who enthuse over the surplus moral power of concepts such as human dignity, with political irrelevancy. Furthermore, insofar as he does not explore the internal link between democratic self-governance and human rights and simply continues to juxtapose them to one another, Moyn cannot go beyond the false binarisms he has set up. Human rights are the most abstract and foundational principles of a political system built around the rule of law, which then need to be lled with concrete content through the constitutional, legal, and socioeconomic traditions of various polities. Citizens must rst recognize each other reciprocally as persons entitled to the right to have rights, and then determine the schedule of rights compatible with this principle of right. In my view, basic human rights, although they are based on the moral principle of the communicative freedom of the person, are rights that require justiciable form, that is, embodiment and instantiation within a specic legal framework. Human rights straddle a necessary line between morality and legality; they enable us to judge the legitimacy of law.15 Here it is important to consider Habermass caveat: Hence we must not understand basic rights or Grundrechte, which take the shape of constitutional norms, as mere imitations of moral rights, and we must not take political autonomy to be a mere copy of moral autonomy. Rather, norms of action branch out into moral and legal rules (BF, 107). Since even basic constitutional norms such as respect for the dignity of the person and equality need to be promulgated in accordance with a specic jurisdiction and in a specic time and place, they differ from moral norms, which are valid for human beings at all times and places. Moral principles, such as respect for human dignity and equality, do not dictate a specic constitutional content, but they do constrain it; all constitutional basic norms must entail certain moral principles of respect for persons, their equality and dig-

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nity. Moral norms place certain outer limits on constitutional norms, and some of the most challenging questions in legal philosophy and jurisprudence center around the specication and defense of these outer limits. For example, equality before the law is a fundamental principle for all societies observing the rule of law.16 Yet in many societies, such as Canada, Israel, and India, this is considered quite compatible with special immunities and entitlements that accrue to individuals by virtue of their belonging to different cultural, linguistic, and religious groups. For societies such as the United States and France, with their more universalistic understandings of citizenship, these multicultural arrangements would be completely unacceptable.17 At the same time, in France and Germany the norm of gender equality has led political parties to adopt various versions of the principle of paritenamely, that women ought to hold public ofces on a fty-fty basis with men, and that for electoral ofce their names ought to be placed on party tickets on an equal footing with male candidates. By contrast, gender equality is protected within the United States by Title IX of the Education Amendments of 1972, which applies only to major public institutions that receive federal funding.18 Political parties are excluded from this. There is, in other words, a legitimate range of variation even in the interpretation and implementation of such a basic right as that of equality before the law. But the legitimacy of this range of variation and interpretation is crucially dependent upon the principle of self-government. My thesis is that without the right to selfgovernment, which is exercised through proper legal and political channels, we cannot justify the range of variation in the content of basic human rights as being legitimate. Unless a people can exercise self-government through some form of democratic channels, the translation of human rights norms into justiciable legal claims in a polity is short-circuited. So, the right to self-government is the condition for the possibility of the realization of a democratic schedule of rights. Just as without the actualization of human rights, self-government cannot be meaningfully exercised, so too, without the right to self-government, human rights cannot be con-

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textualized as justiciable entitlements. They are coeval; that is, the liberal defense of human rights as limits on the public exercise of power needs to be complemented by the civic-republican vision of rights as constituents of a peoples exercise of public autonomy. Without the basic rights of the person, republican sovereignty would be blind; and without the exercise of collective autonomy, rights of the person would be empty.19 There is no sense in Moyns analysis of this internal link between human rights and democratic self-governance. The claim, therefore, that human rights do not contribute to the expansion of the practices of citizenship is wrongempirically as well as conceptually. Empirically, one need only consider how international conventions on womens rights, the rights of the child, the rights of migrants have beenand aremobilized throughout the world by citizens in their own countries to ght for the expansion of their capabilities to participate in the political system and much else. Such international human rights norms can empower citizens in democracies by creating new vocabularies for claim-making as well as by opening new channels of mobilization for civil society actors who then become part of transnational networks of rights activism and hegemonic resistance.20 Human rights norms require interpretation, saturation, and vernacularization; legal elites and judges cannot just impose them upon recalcitrant peoples; rather, they must become elements in the public culture of democratic peoples through their own processes of interpretation, articulation, and iteration. Samuel Moyn has written a provocative book, and his warnings about the excesses of human rights euphoria need to be taken seriously. Nevertheless, these warnings are based on unexamined binarisms and cannot help in the expansion of a new kind of global politics. They are written not out of a sense of solidarity with, but rather out of a tone of ironic and imperious detachment from, global human rights activism.
Notes 1. Ronald Dworkin, Taking Rights Seriously (1970), in Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 184206.

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2. Henry Steiner and his colleagues, who founded and directed Harvard Law Schools Human Rights Program from 1984 to 2005, published course books with text and materials called International Human Rights in Context (Oxford: Oxford University Press) in 1996, 2000, and 2008. The latest volume in the series is International Human Rights. The Successor to International Human Rights in Context. Law, Politics and Morals, ed. Philip Alston and Ryan Goodman (Oxford: Oxford University Press, 2013). 3. James Grifn, On Human Rights (Oxford: Oxford University Press, 2008); Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), hereafter cited as IR. 4. Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001); Samantha Power, A Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002); Jay Winter, Dreams of Peace and Freedom: Utopian Movements in the Twentieth Century (New Haven: Yale University Press, 2006); Marx Mazower, No Enchanted Place: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton University Press, 2009). 5. Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999). 6. Marc Bloch, The Historians Craft, trans. Peter Putnam (New York: Knopf, 1953); Walter Benjamin, Theses on the Philosophy of History, in Illuminations, ed. and intro. Hannah Arendt (New York: Schocken, 1968), 25365. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard University Press, 2010), is hereafter cited as LU. 7. Lynn Hunt, Inventing Human Rights: A History (New York: Norton, 2007). 8. For John Rawlss concept of a realist utopia, see Rawls, The Law of Peoples with The Idea of Public Reason Revisited (Cambridge: Harvard University Press, 1999); Jrgen Habermas, The Concept of Human Dignity and the Realistic Utopia of Human Rights, Metaphilosophy 41, no. 4 (July 2010): 46480 (hereafter cited as ch); Ernst Bloch, The Spirit of Utopia (1923), trans. Anthony A. Nassar (Stanford: Stanford University Press, 2000); Karl Marx on utopian thinkers in The Communist Manifesto, The Marx and Engels Reader, ed. Richard C. Tucker (New York: Norton, 1978). 9. Hannah Arendt, The Origins of Totalitarianism (1951) (New York: Harcourt, Brace and Jovanovich, 1979), 29697.

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10. I have discussed this in The Rights of Others: Aliens, Citizens and Residents (Cambridge: Cambridge University Press, 2004), 5565. 11. See my International Law and Human Plurality in the Shadow of Totalitarianism: Hannah Arendt and Raphael Lemkin, Constellations 16, no. 2 (June 2009): 33151; reprinted with abbreviations in Seyla Benhabib, Dignity in Adversity: Human Rights in Troubled Times (Cambridge UK and Cambridge ma: Polity Press, 2011), 41 57. Hereafter cited as DA. 12. James Grifn, Human Rights: Questions of Aim and Approach, Ethics 120 (July 2010): 74160, here 745. 13. In addition to references in note 3, see Joshua Cohen, Minimalism about Human Rights: The Most We Can Hope For, Journal of Political Philosophy 12, no. 2 (2004): 190213; and the exchange between Raz and Grifn, Joseph Raz, Human Rights without Foundations, and James Grifn, Human Rights and the Autonomy of International Law, in The Philosophy of International Law, ed. Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010), 32139 and 33957. 14. See George Kateb, Human Dignity (Cambridge: Harvard University Press, 2011); ch; Seyla Benhabib, Reason-Giving and RightsBearing. Constructing the Subject of Rights, Constellations: An International Journal of Critical and Democratic Theory 20, no. 1 (Spring 2013): 3850. 15. See the classic essay by Ronald Dworkin, Taking Rights Seriously (1970), in Taking Rights Seriously, 184ff.; Jrgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Regh (Cambridge: Polity Press, 1996), 107. Hereafter cited as BF. 16. Parts of this section previously appeared in Claiming Rights across Borders: International Human Rights and Democratic Sovereignty, in DA, 127ff. 17. Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton: Princeton University Press, 2002), 15468. 18. Title IX, Education Amendments of 1972, 20 usc 16811688 (1972); at http://www.justice.gov/crt/cor/coord/titleixstat.php. 19. I owe this formulation to Habermass thesis of the cooriginality of public and private autonomy. See BF, 84104. The nal sentence refers, of course, to Kants famous formula that Thoughts without content are empty, intuitions without concepts are blind. Immanuel Kant, Critique of Pure Reason, trans. Norman Kemp Smith

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(New York: St. Martins Press, 1965), 93. Although I am indebted to Habermass general discussions of the relationship between public and private autonomy and his analysis of the discursive legitimation of law, I do not follow his discourse-theoretic deduction of basic rights. See Benhabib, Claiming Rights across Borders: International Human Rights and Democratic Sovereignty, 263n52, and my review of Between Facts and Norms in the American Political Science Review 91, no. 3 (1997): 72526. 20. For more empirical perspectives, see Margaret E. Kick and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Ithaca: Cornell University Press, 1998); Thomas Risse, Steven Rapp, and Katryn Sikkink, The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999); Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge University Press, 2009).