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Post-Marxism and the Politics of Human Rights: Lefort, Badiou, Agamben, Rancière

Daniel McLoughlin

McLoughlin D, 2016, 'Post-Marxism and the Politics of Human Rights: Lefort, Badiou,
Agamben, Rancière', Law and Critique, vol. 27, pp. 303 - 321,

It has almost become routine to observe that human rights now provide one of the principle
languages in which claims about justice are framed (Golder 2014; Ingram 2008). This is, however,
a relatively recent phenomenon. The instruments of international human rights law were
promulgated in the wake of the Second World War, and NGOs such as Amnesty International
and Medicine Sans Frontier began to develop new forms of political critique and activism based
around the protection of human rights as early as the 1960s. However, as Samuel Moyn shows in
The Last Utopia, human rights only exploded into global political consciousness in the late 1970s –
and he convincingly argues that the reason for this political break-through is that previously
successful forms of utopianism, such as Marxism and national liberation, began to falter at this
point. Human rights, which provided a set of ethical standards ostensibly above politics, proved
an attractive alternative to increasingly discredited ideologies, offering a minimalist utopianism that
mitigated suffering rather than trying fundamentally transform the world.
Moyn’s unorthodox history of human rights illustrates the importance of the recent history
of radical theory and politics to understanding the contemporary political role of human rights –
and in this essay, I respond to Moyn’s analysis by examining the way that radical continental theory
has responded to the political hegemony of human rights. The purpose of this essay is twofold:
first, to map the theoretical terrain of post-Marxist theory on the question of human rights; second,
to draw on these analyses to consider the contemporary political meaning of human rights.
The essay focuses specifically on ‘post-Marxist’ thought because this tradition illustrates
most starkly the problem that human rights have posed for radical political thought over the past
thirty years.1 Marxism long had a profoundly critical attitude to the rights of man as the juridical

1 Laclau and Mouffe are some of the few contemporary political theorists to explicitly describe themselves as Post-
Marxists. Badiou, Lefort and Ranciere are, however, all ‘Post-Marxists’ in the sense that they once identified as
Marxists but broke with its theoretical premises and forms of political organisation in the 1970s. While Agamben
has never identified as a Marxist he has long engaged with Marx’s work and is interested in rethinking a number of
its theoretical problems in the wake of the crisis of orthodox Marxism. In this essay, then, I use the term Post-
Marxist in much the same broad sense as Warren Breckman who writes, in Adventures of the Symbolic, that “Post-
Marxism functions in this book as a ‘period’ concept, a self-description, a biographical fact, and a designation of
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expression of an alienated bourgeois civil society. However, with the withering away of Marxist
politics in the 1970s, thinkers once explicitly aligned with Marxism began to re-evaluate many of
its central doctrines. Much of this literature was particularly concerned with the ‘the political’
which, it was often argued, was a neglected problem within the Marxist tradition (Lefort 1986,
p.252; Hay 1999, p.152; Agamben 1998, p.12) and drew upon new conceptual tools in order to
think through this concern. What emerged from this process of revision is a relatively broad
theoretical church that is indebted to many of the concerns of the Marxist tradition while also
having a yet which has a troubled relationship to many of its canonical ideas - including the classical
hostility to bourgeois rights. Post-Marxist thought is characterised by a broad consensus that the
liberal version of rights is deeply problematic. There are, however, two very different approaches
to the political possibilities offered by human rights. The first retains a fidelity to the anti-nomian
spirit of the revolutionary tradition and rejects the language and conceptuality of rights as being
too deeply implicated in the liberal political order that needs to be resisted. The second engages in
a ‘critical redemption’ (Golder 2013) of rights that acknowledges their limitations while arguing
that they also offer important tools for democratic political struggle.
This essay stages the political and conceptual division around the question ‘what is to be
done with human rights?’ through a brief history of their treatment within post-Marxist theory.
This is obviously a broad theoretical canvas, so the essay focuses on the work of four thinkers
whose analyses of human rights have been influential in post-Marxist thought and whose
arguments are, I believe, exemplary of broader trends on the theoretical left. The essay begins with
Claude Lefort’s 1978 essay ‘Human Rights and Politics,’ which responded to the rise in concern
with human rights in French thought and politics with one of the earliest attempts at their ‘critical
redemption.2 We then jump forward fifteen years, turning to the work of Alain Badiou and Giorgio
Agamben, who both developed an unsparing critique of human rights in response to the role that
they were playing in the new global order emerging after the Cold War ‘victory’ of liberal
democratic capitalism. The decisive question, then, is whether the criticisms of the role that rights
have come to play in the operations of contemporary power undermine the kind of democratic
politics of rights originally espoused by Lefort. To consider this problem, I examine Jacques
Rancière’s 2004 essay “Who is the Subject of the Rights of Man?” which develops a radical
democratic critique of Agamben – but which is also characterised by a little noted hesitation about

continuity – whether explicit or implicit – in the way in which questions are posed and even judged important”
(Breckman 2013).
2 Ben Golder has argued that Foucault’s work of the same period contains a similar ‘ambivalent affirmation’ of

rights (Golder 2011; 2013). This is not, however, as explicit as Lefort’s embrace of rights.
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the prospects for the politics of human rights in the era of post-history.3 I conclude by considering
the meaning of this hesitation in the context of the contemporary political conjuncture, which is
marked by a crisis of capitalism and the flaring of revolts across the globe.

Human Rights and the End of Revolution

Recent histories of the French left in the 1970s have identified three major theoretical
developments – ethics, direct democracy, and anti-totalitarianism – which fed into reviving the
fortunes of human rights. By the late 1970s it had become apparent that the proletarian revolution,
expected during the upheavals of May 1968, was no longer imminent. Disenchantment with
actually existing communism had also intensified as a result of Krushchev’s 1956 speech criticising
Stalin’s rule, the repression of reform movements in Hungary in 1956 and Czechoslovakia in 1968,
and Solzhenitsyn’s critique of the ‘gulag archipelago’ (Moyn 2010, p.133; Whyte 2012b). The
critique of institutionalised communism had a particularly intense impact on French political and
intellectual life in the late ‘70s due to anxieties that the 1978 elections would give the Parti
Communiste Française (PCF) – who remained closely allied to the Soviet Union - access to state
power through their ‘Union of the Left’ with the Socialist Party (Bourg 2007, p.251; Christofferson
2004).
By the late 1970s, then, a ‘post-revolutionary’ situation had emerged (Ewald 1999, p.85)
and institutionalised revolutionary politics had become increasingly discredited amongst large
swathes of the intellectual left. Julian Bourg has argued that the major theoretical response to these
developments was the rise of ethics as a way of conceptualising a host of problems: “ethics
gradually became a preferred term, lens, and framework for grappling with many aspects of life:
from interpersonal relationships (especially matters of desire, sex and gender) to institutions
(universities, prisons, and psychiatric hospitals) to politics (violence, law, and human rights)”
(Bourg 2007, p.5). While this rise of ethics was a very broad phenomenon with a range of political
meanings, it often involved the abandonment of political utopianism and, for many, a retreat from

3 Like Lefort and Ranciere, Laclau and Mouffe develop a radical democratic account of rights that emphasises the
possibility for contesting exclusion through political struggles that exploit the indeterminacy of the ‘human’ of
‘human rights’ by redefining its meaning (Laclau and Mouffe 2001). This analysis (which emerged at around the
same time as Badiou and Agamben’s critiques of human rights) has also been particularly influential within post-
Marxist theory as well as international human rights theory. I do not deal with their analysis in this essay due to
limited space: instead I focus on Lefort as the first to articulate such a politics of rights in response to the specificity
of the post-1968 political conjuncture; and Ranciere as a recent advocate of this position whose ambivalence about
the democratic politics of human rights arises from his attention to the character of contemporary politics. Pairing
these two thinkers thus serves to structure a historical narrative about the radical democratic politics of human rights
in light of the development of post-historical politics.
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anti-nomian thought and politics and the return of liberal political concepts (Martin 2013, p.121)
– and perhaps the most successful of these was human rights. Alongside this turn to ethics, direct
democracy played a crucial role in the critique of orthodox Marxism and the development of
alternatives to its conceptual and political apparatus. A host of thinkers, influenced by the gauchiste
and autogestionnaire tendencies of May ’68, advocated direct democratic forms of organisation and
attacked all forms of political hierarchy and bureaucratic organisation, leading to a critique of
orthodox Marxism for its sclerotic organisational forms and its dogmatism and longstanding
failure to reckon with the state crimes of the Soviet Union. This left wing critique of communism
was the driving force of an ‘anti-totalitarian moment’ in French intellectual life that culminated in
1977: concerned about the Union of the Left, a range of intellectuals argued that Bolshevism and
Marxism were authoritarian forms of politics whose success in France threatened the possibility
of the gulag (Christofferson 2004).
The most prominent and controversial advocates of the ethical and anti-totalitarian turns
in French thought were the so-called ‘new philosophers.’ Thinkers such as André Glucksmann,
Bernard-Henri Lévy, Maurice Clavel, and Christian Jambet (many of whom were ex-Maoists)
responded to disappointed revolutionary hopes with a profoundly pessimistic account of politics,
the principle themes of which were the “defence of the rights of man, critique of the political and
of its statist realization, rehabilitation of the individual and the intellectual, [and affirmation of the
moral as a foundation for historical action” (Pharo, in Bourg 2007, p. 245). They cast domination
as an inevitable product of the state and politics, presented totalitarianism as the most extreme
example of the logic of political domination, and linked Stalin’s crimes directly to the theory and
practice of revolutionary Marxism.4 While they regarded resistance to power as a virtue, they
rejected the possibility of collective emancipation and instead valorised the figure of the
individual dissident. Human rights then played a crucial role in this philosophical vision, providing
an ostensibly a-political means of protecting the individual from the apparently inescapable
tendency towards domination that emanates from politics (see Moyn 2012, p. 293).
While this new philosophers’ hostility to politics has much in common with the ‘a-political’
vision of rights informing the nascent human rights movement, this was not the only account of

4 Bernard Henri-Levy famously argued that “apply Marxism in any country you want, you will always find Gulag
in the end.” With somewhat more theoretical subtlety, Andre Glucksman argued that the theoretical root of
totalitarianism lies in the statism of German thinkers from Kant through Marx and Nietzsche: “German
idealism set forth a program, and our very materialistic century is putting this into practice” (Glucksman 1980,
in Bourg 2007 p.289).
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human rights to emerge from the post-revolutionary situation of the late 1970s.5 In 1978, Esprit (a
left wing Christian personalist journal that had once allied with the PCF) responded to the upsurge
of interest in human rights by hosting a debate on ‘whether human rights are a politics’ - and
Claude Lefort was to provided the most important and influential response to the question. Lefort
had previously been involved with the Marxist left through the journal Socialisme ou Barbarie, but by
mid-1970s he had “had come to refuse any politics that was organized or hierarchical enough to
create ‘the conditions for a dominating-dominated division’” (Christofferson 2004, p.100). His
work of the time voiced the increasingly common concern that there was a connection between
Marxist theory and political authoritarianism (Lefort 1986, p.251-3). Unlike the new philosophers,
however, he did not temper this anti-totalitarianism with an a-political ethics, but rather, with an
emphasis on direct democratic political struggle. Lefort’s ‘Politics and Human Rights’ thus
navigates a path between the moralistic celebration of human rights, and the longstanding rejection
of rights within the Marxist tradition. In so doing, he manages to articulate an eminently political
account of rights as tools of political resistance – a vision of rights that retains considerable
purchase in contemporary political theory.
The leverage for Lefort’s analysis is his reading of Marx’s ‘On the Jewish Question,’ which
is the founding document for the revolutionary critique of rights. Marx infamously argues that the
twofold structure of the Declaration of the Rights of Man and Citizen reflects the division of bourgeois
society into the political and the social: where the rights of the citizen are the rights of those
participating in a political community, the rights of man are the juridical form of a civil society
whose atomised structure is determined by relations of commodity exchange (Marx 1975, p. 229).6
The alienation of civil society is deeply embedded in the conceptual fabric of the Declaration: it is
presupposed in the negative conception of freedom that undergirds the right to liberty as well as
the right to dispose of one’s private property without regard to others; the vision of equality at
work in Article Three is a purely formal equality before the law in which “each man is to the same
extent regarded as such a self-sufficient monad” (Marx 1975, p. 230); and finally, the right of
security is “the highest social concept of civil society, the concept of police, expressing the fact that

5 Samuel Moyn explicitly locates the thought of the New Philosophers in this broader context, casting as the “self-
destructive acme’ of leftist appeals to dissidence to indict the Soviet regime and the archaic French Communist
Party” (Moyn 2012, p.169)
6
The separation of man from man is presupposed in the negative conception of freedom that undergirds the right
to liberty as well as the right to dispose of one’s private property without regard to others. The vision of equality
that is at work in Article Three is a purely formal equality before the law in which “each man is to the same extent
regarded as such a self-sufficient monad” (Marx 1975, p. 230). Finally, the right of security is “the highest social
concept of civil society, the concept of police, expressing the fact that the whole of society exists only in order to
guarantee to each of its members the preservation of his person, his rights, and his property” (Marx 1975, p. 230).
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the whole of society exists only in order to guarantee to each of its members the preservation of
his person, his rights, and his property” (Marx 1975, p. 230).
While Lefort believes that the atomism and apolitical tenor of liberal thought is
problematic, he argues that Marx “allows himself to become the prisoner of the ideological version
of rights” presented by liberal theory “without examining what they mean in practice, what
profound changes they bring to social life” (Lefort 1986, p.248). While the juridical image of liberal
democracy is the political unity of homogenously free and equal individuals, the Rights of Man,
and in particular the right of freedom of opinion, actually fosters a “transversal dimension of social
relations” of individuals in communication with each other. Modern democracy also produces a
profound transformation of the political imaginary of the West by instantiating “a gap between
the symbolic and the real” (Lefort 2006, p.159). Where classical democracy and monarchical
absolutism grounded power in positive biological or supernatural criteria, the symbolic source of
power and legitimacy in modern democracy is an abstraction (‘Man’). This leads to an irreducible
difference between the ground of power and the particular identity of those that hold power at
any point in time, holding open the gap between the symbolic and the real, and calling forth a
democratic politics of contestation: as Lefort writes, the rights of man “go beyond any particular
formulation which has been given of them; and this means that their formulation contains the
demand for their reformulation” (Lefort 1986, p.258).
Lefort argues that this combination of a pluralistic civil society and an indeterminate form
of right lies at the heart of the history of modern political struggle: “from the legal recognition of
strikes or trade unions, to rights relative to work or to social security, there has developed on the
basis of the rights of man a whole history that transgressed the boundaries within which the state
claimed to define itself, a history that remains open.” (Lefort 1986, p.258) According to Lefort,
the political struggles of the late 1960s and 1970s did not (despite their often overtly Marxist
language) conform to the revolutionary schema of classical Marxism in which the proletariat as
revolutionary subject would capture the state in order to transform the relations of production.
Instead, the politics that had emerged from May 68 were characterised by a diversity of minorities
who believed that a breakdown of social obligation and reciprocity had occurred, and who
demanded recognition as a remedy for this injustice (Lefort 1986, p.262). The right to work, for
example, is generated by those excluded from the sphere of work which who experience this injury
as a denial of a social rights. This demand intervenes in a political situation comprised a social
power “which has a multiplicity of elements, apparently distinct, and less and less formally
independent” arranged around the political power of the state. The demand for a right to work
“reveals the presence of social power in places where it had been practically invisible” (Lefort
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1986, p.263) and has the potential to shatter the existing arrangement of social power predicated
upon a certain configuration of state and capital.
According to Lefort, then, the failures of the revolutionary projects of the twentieth
century and the multiplication of struggles in the wake of 1968, shows that leftist theory and
politics should not attempt to impose models of socialist transformation upon contemporary
politics but should, rather, listen to the struggles of the oppressed in order to try and detect the
contours of a new and democratic relationship to the political. The demands that were emerging
from civil society at the time did not aim at the revolutionary transformation of economy and
society, but rather, deepened the democratic content of modernity by intervening in and re-
organise the existing network of power relations so that those that have been unjustly treated are
rendered visible and recognised (Lefort 1986, p.262). Rights played a central role in these struggles
as they were foundational to conceptualising the wrong suffered and in articulating demands: “the
idea of legitimacy with the representation of a particularity” found across the broad range of these
struggles indicates the “symbolic efficacy of the notion of rights” (Lefort 1986, p.264).

Human Rights and the Politics of Reaction

Lefort’s celebration of the democratic potentials of human rights emerged in the first flush of their
theoretical and political success as a revolutionary tradition, then flying the red flag, began to falter.
The sense of exhaustion that characterised the revolutionary left in 1970s France became a global
phenomenon when the Berlin Wall fell in 1989, followed by the Iron Curtin in 1992. Francis
Fukuyama famously declared the ‘end of history’ due to the “exhaustion of viable systematic
alternatives to Western liberalism” (Fukuyama 1989), and argued that the future direction of
politics would be a gradual convergence upon the liberal idea through the universalisation of liberal
democratic political forms and capitalist markets (Fukuyama 1989). Although Fukuyama’s account
of the end of History was widely criticised, it nonetheless captured the post-Cold War zeitgeist:
the disintegration of actually existing socialism coincided with a global retreat of organised
Marxism (Hay 1999, p.152) and the sense that ideology and revolutionary change were at an end
became part of the ideological self-presentation of a globalising neo-liberal capitalism.
Human rights played a central role in the political imaginary of this liberal utopianism: as
Jacques Rancière puts it, they were to provide the “charter of the irresistible movement leading to
a peaceful posthistorical world” (Rancière 2004, p.297). The process of globalisation did not,
however, go quite as envisaged by its boosters: by the late 1990s, the terrain of post-history had
become “the stage of new outbursts of ethnic conflicts, religious fundamentalisms, or racial and
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xenophobic movements” and “the rights of Man turned out to be the rights of the rightless, of
populations hunted out of their homes and land and threatened by ethnic slaughter” (Rancière
2004, 297-8). In response, critical theory again placed the rights tradition under sustained scrutiny:
as such, we now turn to the work of two thinkers who attempt to think the politics of rights in
response to the transformations in the political landscape of post-history: Alain Badiou and
Giorgio Agamben.
Alain Badiou is perhaps the most militant critic of human rights in contemporary
continental political thought. Where many former 68’ers responded to the defeats of the
revolutionary left by becoming apologists for liberal democracy, or settling for a more humble and
reformist political vision than they had once articulated, Badiou has been consistently scathing of
‘capitalist-parliamentarianism’ and the abandonment of revolutionary aspirations in French
thought and politics. Since the 1980s, he writes, we have seen the “retrograde consummation of
the essence of capitalism” (Badiou 2012, p. 14) whose iniquities not even Marx predicted. Far from
deepening the democratic content of civil society, then, the exhaustion of revolutionary Marxism
has coincided with the dramatic success of a reactionary project that has rolled back many of the
gains of the revolutionary sequence of the twentieth century. This has been made possible, he
claims, by “the restoration of reactionary ideas” – human rights being foremost amongst – “that
followed the ‘red years (1960-80) just as the 1850s were made possible by the counterrevolutionary
Restoration of 1815--40 after the Great Revolution of 1792-94” (Badiou 2012, p. 14).
Badiou develops his most comprehensive account of human rights in Ethics (published in
French in 1993, which provides a stinging critique of the ethical turn in French thought.7 The logic
that undergirds the prevailing ethics is the priority given to Evil over the Good. Human rights are
“rights to non-Evil: rights not to be offended or mistreated with respect to one’s life…one’s
body…or one’s cultural identity” (Badiou 2001, p.9). Within this conceptual schema, the only
content of the good is the capacity to identify an Evil that is defined a priori (as violation of life,
body, or cultural identity) and to prevent it from occurring. This logic drives the contemporary
politics of humanitarianism in which the West casts itself as an active subject whose role it is to
identify suffering and stop it “by all available means” (ibid.). This, however, reduces the object of
‘intervention’, the Global South, to a chaotic and passive sea of victimhood whose suffering is
consumed by the West through media spectacle. This staging of the division between passive and
active subjects has a number of crucial ideological effects: it casts the West as paragons of virtue
whose role it is to save victims of violence; this occludes the existence of political problems within

7 Technically, he proposes a revolutionary ethics against the dominant ethics.

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Western societies by staging foreign lands as the site of suffering and wrong; it elides the complicity
of the West in the suffering it ostensibly seeks to combat by ignoring the causal role of imperialism
and colonialism; and it deprives those subjected to injustice of political agency by casting them as
recipients of Western charity. The development of humanitarian intervention thus “coincides, after
decades of courageous critiques of colonialism and imperialism, with today’s sordid self-
satisfaction in the ‘West,’ with the insistent argument according to which the misery of the Third
World is the result of its own incompetence, its own inanity – in short, if its subhumanity” (Badiou
2001, p.13).
Badiou’s critique of human rights echoes Marx when it argues that human rights involve a
“cult of freedom (including, of course, freedom of enterprise, the freedom to own property and
to grow rich that is the material guarantee of all other freedoms) (Badiou 2010, p.2). For Badiou,
the conceptual architecture of human rights is predicated upon a ‘civil society’ organised through
commodity exchange, meaning that the political success of human rights has helped to naturalise
the capitalist mode of production. But, while the claim that there is an intimate relationship
between the success of contemporary capitalism and the economic freedoms included in the
catalogue of human rights is intuitively appealing it is but a brief and underdeveloped aside on
Badiou’s part. Indeed, while the relationship between capitalism and rights was a longstanding
concern of Marxism (Marx 1975; Pashukanis 1986), this is one of the least developed aspects of
the critique of rights within post-Marxist theory which has tended to focus on the relationship
between humanitarianism and state violence.
The more developed arm of Badiou’s critique of the relationship between the victory of
capitalism and the hegemony of human rights the role of the latter in fending off more robust
accounts of political emancipation. The language of liberal legality was central to the anti-
totalitarian critique of the left: part of what makes Nazism and Stalinism equivalent political forms
is their massive violation of individual rights and the rule of law.8 Marxism was often cast as leading
to totalitarianism: as we have seen, Lefort argues that this derives from Marx’s ostensible failure
to address the political; the historian of Marxism Leszek Kolawski argues that Marx’s totalising or
‘holistic’ vision of humanity directly gave rise to the totalitarian political project of “the extinction
of personal life, reducing human beings to perfectly exchangeable units of productive processes”
(Kolawski 1983, p.92). Human rights provide not only the definition of totalitarianism, but also
the remedy to its evils: as Badiou summarises the position, “because it has ended in failure all over

8The destruction of law is, for example, central to Arendt’s analysis of totalitarianism. While total domination is
what defines totalitarianism as such, the destruction of law and rights is essential to this project (Arendt
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the world, the communist hypothesis is a criminal utopia that must give way to a culture of human
rights’” (Badiou 2010, p.2). Anti-totalitarianism thus serves, like the discourse of humanitarianism,
to legitimate capitalist-parliamentarianism by opposing it to a political ‘other’ who lacks respect
for rights. It is likewise undergirded by the conception of the Good as the prevention of Evil – a
definition whose flipside is that any attempt to radically transform the world in light of a positive
vision of the Good is itself likely to lead to Evil: “every effort to unite people around a positive
idea of the Good, let alone to identify Man with projects of this kind, becomes in fact the real
source of evil itself. Such is the accusation so often repeated over the last fifteen years: every
revolutionary project stigmatised as ‘utopian’ turns, we are told, into totalitarian nightmare. Every
will to inscribe an idea of justice or equality turns bad. Every collective will to the Good creates
Evil” (Badiou 2001, p.13). The political result of the anti-totalitarianism mobilisation of human
rights is, then, a closure of political horizons that helps to legitimates existing power arrangements
as the least worst system and forestall any attempt to radically transform the world by casting it as
a step on the road to serfdom.
Giorgio Agamben is, alongside Badiou, the most vociferous critic of human rights in
contemporary post-Marxist theory – and, like Badiou, he takes explicit aim at the moral version of
rights found in the New Philosophers and the human right movement (Agamben 1998, p.127).9
The principle problem with this vision of rights is that it fails to address the most important
political role that they have played in political modernity, which is the justification of state power
rather than its’ limitation.10 Agamben’s analysis of the Declaration of the Rights of Man and Citizen
turns, like that of Marx, on the fact that the rights it announces are ostensibly held by both citizens
and by Man in general. The universal and abstract figure of Man is, he argues, a modern incarnation
of bare life. This is a recurring figure of Western thought that postulates the existence of a human
being prior to their belonging to the political, and of Western politics, which produces populations
that are excluded from the political sphere. In the classical world bare life appeared in the idea of

9 While this is certainly the account of human rights that one finds in the new philosophers and much of the human
rights movement, it ignores the democratic re-articulation of human rights by thinkers such as Lefort. There is also a
more recent liberal re-articulation of rights that claims agnosticism as to metaphysical questions and instead casts
human rights as pragmatic rules for the proper functioning of democratic societies in light of the problem of state
violence: see Shklar 1998 and Ignatieff 2001.
10Samuel Moyn makes a similar point when he argues that modern declarations of rights grounded the sovereignty
of the nation-state which then provided a space within which political claims about justice could be made, while
International human rights law provides a legal mechanism that attempts to place limitations on the state (Moyn
2012). Where Moyn emphasises the difference between the two forms of right for the purpose of criticising histories
of human rights that present them as the full and final flourishing of an unbroken history that can be traced back ,
Agamben argues that the emergence of international human rights needs to be thought in relation to the conceptual
arhtecture of the nation-state.
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natural life (zoe), which was relegated to a domestic sphere (oikos) devoted to its care and
reproduction, and opposed to the political life of public speech and action (bios politikos) that took
place in the polis. This conceptual opposition was reflected in a political distinction between citizens
who could take part in the polis, and the slaves, women and children who were excluded from the
political sphere. Modern political thought collapses the classical distinction between life and
politics which, in response to traditional and transcendent sources of state legitimacy, justifies state
power on the grounds of the protection of the life of the citizen – a move that becomes
foundational for modern democracy by the Declaration of the Rights of Man and Citizen. This gives rise
to two profound problems: first, it plays an important causative role in the development of what
Michel Foucault calls biopolitics; second, modern democracies now produce new and more
extreme form of political exclusion that the conceptual architecture of human rights is incapable
of addressing.
Foucault famously argues that political modernity sees the emergence of new ‘biopolitical’
techniques of power aimed at fostering the life of individuals and populations and that this
prompts a retreat of the juridical power to ‘take life or let live’ (Foucault 1978, p. 138). Agamben
declares that the politicisation of life in modern law and political thought plays the decisive role in
this development as it lies at “the root of modern democracy’s secret biopolitical calling”
(Agamben 1998, p.124). Despite the strength of this claim, Agamben offers little evidence for it
beyond noting a correspondence between the politicisation of life in both the theory and practice
of modern democracies. While we don’t have the space to excavate the complex imbrication
between rights and biopower there can be little doubt, particularly in light of Foucault’s careful
genealogies of the multiple technical and discursive preconditions for the development of
biopower, that Agamben over-eggs his case here. We can, nonetheless, safely assert that the
politicisation of life in the theory of modern democracy does provides normative resources for
legitimating the development of the power over life. Indeed, Foucault himself makes this point
implicitly when he argues that the catastrophic state violence of twentieth century politics is a
massive extension of power justified on the basis of the state’s role in protecting the life of its
citizens: “wars are no longer waged in the name of a sovereign who must be defended; they are
waged on behalf of the existence of everyone; entire populations are mobilised for the purposes
of wholesale slaughter in the name of life necessity” (Foucault 1978, p.137).
Agamben’s second critique of the political function of rights revolves around their
relationship to the figure of the nation, an analysis that he develops from a reading of Hannah
Arendt’s ‘The Decline of the Nation-State and the End of the Rights of Man.’ Arendt’s concern
with the rights of man is that legal rights are dependent upon membership in a political community
 12

and hence those deprived of citizenship rights and left with only the rights of man to protect them
are, in fact, left with no rights at all. As she documents in some detail, since the First World War,
vast swathes of the global population have found themselves outside of political community as a
result of states stripping citizens of rights for political reasons, and large numbers of refugees
fleeing their country of origin. According to Agamben, the fact of mass statelessness exposes a
fiction that lies at the heart of the conceptual architecture of political modernity: that “birth
immediately becomes nation such that there can be no interval of separation (scarto) between the
two terms” (Agamben 1998, p.128). The conceptual economy of the declaration presupposes that
each individual is both “Man” and “Citizen” because everyone is born to into particular nation, and
each of these nations is represented by a state that recognises the members of the nation as citizens.
This is, however, given lie by contemporary politics, in which the figures of “Man” and “Citizen”
have come apart and now appear as autonomous beings (Agamben 1998, p.131-2).
A range of political actors and juridical mechanisms have emerged that attempt to give
teeth to human rights since Arendt expressed her concerns about their adequacy. Agamben,
however, argues that these have proven impotent because they fail to engage in the kind of deep
structural analysis needed to understand, and hence adequately confront, the problems that they
purport to address. Facing the problem of mass statelessness, for example, contemporary
humanitarianism mobilises human rights “for the sake of the supposed representation and
protection of a bare life that is more and more driven to the margins of nation-states, ultimately
to be recodified into a new national identity” (Agamben 1998, p.133). That is, humanitarianism
aims to reintegrate those excluded from the nation-state order by restoring the legal rights of
citizenship or permanent residency. Until full legal recognition can be achieved, human rights
aremobilised to paper over the gaps in legal protection by providing ethical norms that determine
how states should behave towards those without enforceable legal rights, and it falls to non-
government organisations and state powers (acting of their own volition under treaty obligations,
or via organisations such as the United Nations High Commission for Refugees) to protect the
stateless in the name of these human rights norms. These organisations and states have proven
themselves “despite their solemn invocations of the ‘sacred and inalienable’ rights of man,
absolutely incapable of resolving the problem and even of confronting it adequately” (Agamben
1998, p.133) due to the separation of structural and political questions from humanitarian
questions: the UHCR is charged with a “solely humanitarian and social” mission, and Agamben
contends that NGOs who engage in humanitarian work while failing to address the political drivers
for the production of statelessness act in complicity with state power (Agamben 1998, p.133-4).
 13

The Prospects for the Politics of Human Rights at the End of History

I have argued that the rights tradition (re)emerged as a central problem for continental
political thought in the ‘post-revolutionary’ situation of late 1970s France. The most prominent
and controversial advocates of human rights at this time were the ‘New Philosophers,’ cast rights
as moral standards that provided an ethical limit on an inescapable political power whose most
extreme example is a totalitarianism. This was not, however, the only vision of human rights to
emerge from the historical conjuncture, and there were those who celebrated rights as vehicles for
political action against the individualistic and apolitical account of rights common to both their
liberal celebration and Marxist critique. 11 It was, nonetheless, the pessimistic, moralising, and
individualistic version of human rights, which the early human rights movement shared with the
new philosophers, that went on to play the dominant role in global politics over the past thirty
years (Moyn 2012). The political trajectory of a post-historical order that gave rhetorical pride of
place to human rights provided renewed impetus to their radical critique and, by the early 1990s,
a host of continental political theorists were once again lining up to attack human rights. The
question, then, is whether these critiques, which are directed at an ostensibly a-political account of
rights that has been taken up by state power to justify its violence, have any purchase against the
kind of democratic politics of rights that Lefort advocated? Do human rights still offer the kinds
of resources for a democratic and emancipatory politics that he once hoped for? In order to
address the question, we now turn to one of the most recent defences of the politics of rights:
Jacques Rancière’s 2004 essay “Who is the subject of the Rights of Man?”
Giorgio Agamben’s critique of the rights of man has prompted a great deal of ongoing
discussion (Patton 2007; Laclau 2007; Whyte 2009; Gündoğdu 2012; Lechte and Newman 2012).
It is, however, Jacques Rancière who articulated the most telling and influential criticism of
Agamben’s position – and this is not least because his argument contains more than an echo of
Lefort’s democratic politics of rights. Rancière is deeply critical of any attempt to depoliticise the
Rights of Man, which means that he is hostile both to the new philosophers’ vision of rights as
incontestable and apolitical moral standards, and to criticisms of rights, such as those of Agamben,
which empty them of political import.12 His defence of the politics of rights is grounded in an

11 The accuracy of the critique of Marx that Lefort offers is, for our current purposes, a moot point: what is
important is that the kind of reading that Lefort was amongst the first to develop has played a major role in the
theoretical landscape of post-Marxist critical theory over the past thirty years.
12 Interestingly, this time the reason for the radical depoliticisation of rights is not, as in Lefort’s critique of Marx,

the attempt to collapse the political into the social, but rather, Agamben’s debt to Arendt’s ‘archipolitical’ attempt to
keep the two spheres rigorously distinguished (Ranciere 2004, p.299). Ranciere’s attempt to assimilate Agamben in
this regard is, however, deeply problematic and has been ably criticised by Jessica Whyte (Whyte 2009).
 14

account of the political as constituted through the relationship between the regime of ‘the police’
and a political event that ruptures this order. Police does not, for Rancière, refer to the security
forces, but rather, to a ‘partition of the sensible’ that defines counts the community “as the sum
of its parts – of its groups and of the qualifications that each of them bears” (Rancière 2004, p.305).
From the perspective of police, the only politics is identity politics: the essence of police is that is
“characterised by the absence of a void or supplement: society consists of groups dedicated to
specific modes of action, in places where these occupations are exercised, in modes of being
corresponding to these occupations and these places” (Rancière 2001). This counting of the
community is, however, predicated upon a partition between “between what is visible and what is
not, of what can be heard from the inaudible” (Rancière 2001). Politics is the moment in which
this border is contested by the “part of no part” (those rendered invisible by the fundamental
division of the sensible) and involves a dissensus that renders the excluded visible by putting two
worlds into one (workers struggles, for example, manifest the world in which the factory is a public
space in the bourgeois regime in which it is a purely private one).
The Rights of Man are, for Rancière, a useful tool in the staging of dissensus because the
freedom and equality that they proclaim “are not predicates belonging to definite subjects. Political
predicates open up a dispute about what exactly they entail and whom they concern in each case”
(Rancière 2004, p.303). The subject of the rights of man is not an individual or collective that has
a determinate identity but is, rather, produced through collective political struggle, “a process of
subjectivisation that bridges the interval between the two forms of the existence of those rights”
(Rancière 2004, p. 302). The political history of modern liberal democracies has been
fundamentally marked by the gap between the universalism of the rights of man and the reality of
a division between white propertied men with full citizenship rights who could participate in the
political space, and slaves, women, workers, and people of colour, who were defined as aliens or
confined to the sphere of the social. The part of no part might, then, be excluded from the rights
of citizens but they can, on the basis of the freedom and equality that they are declared to have,
rupture the order of the sensible and make themselves appear as such. The Rights of Man are thus
“the rights of those who have not the rights that they have and have the rights they have not”
(Rancière 2004, p.302).
Rancière’s argument for the politics of the rights of man has been enthusiastically taken up
by commentators to think through the political struggles of a range of groups rendered invisible
by their communities (Schaap 2011; Ingram 2008). Contemporary critics of human rights have
likewise cast Rancière’s argument as a defence of the politics of human rights: Costas Douzinas,
for example, argues that “Rancière finds in human rights a good example of the radical politics he
 15

espouses” (Douzinas 2010, p.82). It should be noted, however, that while Rancière insists on the
importance of the rights of man as political tools, he is also somewhat ambivalent about the
prospects for the politics of human rights. As he notes, the political space within nation-states has
begun to disappear as a result of a consensual politics of technocratic management: “conflicts are
turned into problems that have to be sorted out by learned expertise and a negotiated adjustment
of interests. Consensus means closing the spaces of dissensus by plugging the intervals and patching
over the possible gaps between appearance and reality or law and fact” (Rancière 2004, p.306). The
Rights of Man begin to seem empty within this political horizon because they are no longer
mobilised by the part of no part to produce moments of political rupture. Rancière then argues
that, having been rendered useless in advanced capitalist countries, the Rights of Man are then
exported and turned them into humanitarian rights (Rancière 2004, p.307). However, because the
international order of nation states does not constitute a political space, the part of no part
produced by this order cannot stake their own claim in the name of their ‘human rights.’ The
Rights of Man, thereby transformed into humanitarian rights, have thus become the foundation
of legitimacy for new forms of militarism and colonialism the politics of humanitarian intervention,
which grounds the legitimacy of state violence in the protection of the rights of victims powerless
to demand their rights themselves.

The Politics of Human Rights in the Present Conjuncture

This essay has presented a rather different account of the radical critique of human rights to
some recent scholarship. In the introduction to a recent special issue on the politics of human
rights, Zachary Manfredi gives a concise account of recent criticisms of human rights, before going
on to state that “on the left, those willing to offer even a limited apology for human rights are few”
(Manfredi 2013, p.6). Costas Douzinas presents a similar account of the status of human rights in
contemporary critical theory, noting that the 1980s and 1990s saw former Marxist intellectuals start
to welcome human rights, but that the subsequent return of radical theory “revived suspicion
towards the facile moralism and humanitarianism of liberal democracy” and that “the rejection of
the earlier rights revisionism is almost complete” (Douzinas, p.81). This essay, by contrast, has
argued that while post-Marxist theorists are united in their critique of the liberal vision and politics
of human rights, they nonetheless remain split on the appropriate political and theoretical response
to these problems. The critical redemption of rights, first articulated in the 1970s, continues to
play an important role in recent critical theory (see Rancière 2004; Butler 2004; Balibar 2013;
Birmingham 2006; Laclau 2007; Orford 2003; Vatter 2014).1 Thinkers such as Badiou and
 16

Agamben, by contrast, have responded to the end of history by with a certain fidelity to the
revolutionary ambitions of the tradition: they maintain a vigorous critique of human rights while
renewing thinking of revolutionary political action beyond the horizon of classical Marxism.13
Post-Marxist theory is thus characterised by an ongoing conceptual struggle over the political
meaning of, and potentials offered by, human rights. This raises an obvious question – which of
these approaches is the most convincing? While it is not possible to develop a comprehensive
analysis of this question in the space remaining, I would like to conclude by offering some
reflections on three issues that any answer to this question must confront.
The possibilities offered by the politics of human rights depend, in part, on the conjuncture
in which political action intervenes. As we saw, the turn to human rights coincided with a retreat
of the organised left, the abandonment of the theme of revolution, and the pluralisation of political
struggles. Post-Marxist debates on the politics of human rights took place against this political
background, assessing the strengths and weaknesses of human rights in the context of post-
historical liberalism. The past decade has, however, seen the emergence of three major
developments which undermine the ideological constellation that gave rise to the politics of human
rights: the consistent failure of existing institutions to address the impending climate catastrophe
has given renewed urgency to the demand for radical change: the crisis of capitalism that began
with the global financial crisis of 2008 has exposed weaknesses in the political economy of global
capitalism; and we have seen the emergence of an “age of riots and uprisings” (Badiou 2012) as
revolts spread across the globe. This raises the question as to whether human rights, which
emerged as a placeholder for utopian energies at the end of history, remains a convincing language
and vehicle for critique and contestation on the new terrain opened up by the crisis of the post-
historical order.
An answer to this question depends, in turn, on how one understands the political function
of human rights. As we have seen, the political problems with human rights are broadly
acknowledged in contemporary critical theory. We have seen Badiou argue that the rise of human
rights has gone hand in hand with the counter-revolution that began in the late 1970s by justifying
neo-colonial violence, entrenching the right to property, and presenting attempts at fundamental
political transformation as threats to freedom. Agamben argues that the conceptual and political
problems with human rights run even deeper: the Rights of Man are, he argues, symptomatic of
the centrality of life in modern politics and have contributed to the development of biopolitics

13
Badiou with his analysis of the event; Agamben with the “non-juridical and non-statal politics
and human life” (Agamben 2000, p.111) that he variously terms form-of-life, pure means, and
destituent power.
 17

whose extreme forms are totalitarianism and the contemporary rule of the economy in (neo)liberal
democracies; human rights emerge from this tradition in the context of a breakdown of the nation-
state system and have proven profoundly ineffective because they conceal the political and
structural roots of the problems that they confront. Commentators have argued, however, that it
is problematic to respond to human rights with the kind of hostility that Marxism once directed at
the Rights of Man. The ‘Man’ of the Rights of Man is, as thinkers such as Lefort and Rancière
point out, an abstract category whose boundaries are capable of redefinition – and so too is the
human of human rights. From this perspective, a rigorously critical stance towards human rights
deprives the left of a political tool that might prove of use if it can be re-appropriated for radical
ends (Manfredi 2014, p.7; Deranty 2004). While human rights are an important part of the political
order that needs to be resisted, its power as a political vocabulary also offers resources for
resistance, and human rights activism has demonstrated that it is possible to mobilise this language
for democratic purposes.
Given the recent history of human rights, however, the project of re-appropriating human
rights for radical democratic ends must confront the problem that Susan Marks has identified as
‘false contingency.’ Marks argues that the theoretical left is very good at exposing the ‘false
necessity’ of social relations: the fact that the social, political, and economic order is a contingent
product of history rather than nature and that there is, therefore, the capacity for it to be otherwise
(Marks 2009). She goes on to argue, however, that a great deal of critical thought overestimates
the possibilities for political transformation that arise simply from the constructed nature of social
arrangements, and that it underestimates the weight against which such attempts struggle. As
Marks puts it, history is not altogether contingent and unpatterned: “rather, there exist some
‘necessary factors’, in the shape of limits and pressures which orient change without actually
predetermining it” (Marks 2009, p.9). The work of the theorist concerned with false contingency
then becomes to uncover “voluntarist mystifications” (Marks 2009, p.14) and engage in an analysis
of the “diverse causal factors affecting social processes, including institutional and systemic
factors” (Marks 2009, p.7) that will help to illuminate “in particular circumstances what individual
and collective action can achieve, what relation is established between structure and agency”
(Marks 2009, p.9).
The critique of human rights indicates that the project of mobilising them for radical
democratic purposes now faces some very serious limits and pressures thrown up by their recent
history. While the human may be an empty signifier whose meaning is contestable, radical politics
must now contend with a very definite series of counter-revolutionary inscriptions of the term.
Indeed, even Rancière, who is often presented as a standard bearer for the radical politics of rights,
 18

is ambivalent about the political potentials offered by human rights in the current conjuncture.
This is not simply due to the fact that they have been loaded with a reactionary meaning – a fact
that would present difficulties for the project of re-signifying human rights while still leaving the
possibility open. Rancière’s hesitation is, rather, motivated by the fact that the political space in
which politics of the Rights of Man made sense have been undermined by the process of post-
historical depoliticisation. This is a very material limitation on the political possibilities offered by
human rights that any attempt to mobilise them for emancipatory purposes must negotiate.
The other factor that needs to be considered in assessing the political purchase of human
rights in the contemporary conjuncture is the task of emancipation. The impulse that drove Marx’s
hostility to the Rights of Man was the intimate relationship between capitalism and the limited
‘political emancipation’ brought about by liberal democracy: the Rights of Man legally and
politically entrench atomised market relations, fail to register the structural problems with
capitalism, and do not provide the conceptual tools to enable a revolutionary and ‘truly human’
emancipation that could free humanity from the state and wage relation. Human rights emerge
from the same liberal tradition as the Rights of Man and are beset by similar problems. The political
hegemony of human rights has coincided almost exactly with the dominance of neo-liberal
capitalism: a fact that Badiou pointed to as early as 1993, and which has recently emerged as a
concern in the Anglophone critical literature around human rights (Moyn xxx; Marks 2011; 2012).
Whether or not human rights have been complicit in the rise of neoliberal capitalism, as Marks
and Badiou argue, or whether they have simply been, as Samuel Moyn contends, a ‘powerless
companion’ incapable of registering or dealing with the economic problems generated by neo-
liberalism, the historical coincidence between human rights and neo-liberalism raises some
uncomfortable questions for the radical politics of human rights. If anti-capitalism is a crucial part
of a politics that adequately responds to the demands of the present conjuncture – and I believe
that it is – then the historical role of human rights, whether it be complicity or powerlessness, casts
doubt on their capacity to successfully resist the depredations of contemporary capitalism.
One might argue, however, that this history does not determine the possibilities offered
by the politics of human rights – particularly if they are mobilised in the service of a radical political
agenda that is conscious of the structures of capitalist political economy. Lefort certainly believed
in the capacity of democratic struggles for rights to intervene in and transform the prevailing
economic order. As we observed earlier, one of his principle examples of the politics of rights was
the demand for a right to work by those excluded from the economic system. However, the
capacity of rights claims to fundamentally ‘shatter’ the existing political situation, as Lefort once
hoped, has proven limited. This is no accident: as we saw, the politics of human rights emerged
 19

from the crisis of Marxism and the robust vision of political emancipation involved in this
tradition. Even Lefort’s radical democratic version of rights politics is predicated upon abandoning
the perspective of revolution, valorising instead the struggle for political and legal recognition. The
politics of rights may, then, re-organise the constellation of social power around the state, but the
demand for state recognition cannot achieve the revolutionary goal of liberation from political
domination. And, while Lefort’s example of the right to work may remedy exclusion from the
workforce, it does not seek a fundamental re-organisation of the economy, and nor can it
overcome the valorisation of production that characterises capitalist societies, precisely because it
affirms work as a fundamental value.14
Radical politics cannot, of course, simply return to the political forms of the twentieth
century due to the very problems that the politics of human rights responded to: the collapse of
state socialism, the limitations of the twentieth century party form, and the multiple axes along
which political struggle now occurs. Nonetheless, the political conjuncture that we confront, with
its multiple economic, political, and environmental crises, suggests that the anti-capitalism and
robust vision of political emancipation that characterised the revolutionary tradition retain their
urgency. In this context, the reactionary history of human rights, along with the comparatively
limited ambitions of of rights politics, suggests the need for a different vocabulary for radical
political praxis.

14 This is in stark contrast to the struggles of Italian autonomist Marxism in the 1970s. Where the rights
struggles Lefort refers to seek recognition by the state and a right to work, autonomist Marxism
developed a politics of exodus through the mass desertion of the terrain of the State and the labour
relation and the construction of a new and non-State public sphere (Virno 1996, p.195). Autonomist
Marxism thus offers an alternative response to the crisis of classical Marxism to the radical politics of
human rights – one that attempts to rethink the meaning of revolution in light of the political and
economic transformations of the 1970s. The most prominent intellectual figures associated with this
tradition are Antonio Negri and Paulo Virno, but it has also been an important influence on Agamben’s
conception of a non-statist politics (Smith, forthcoming).
20
 21

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