(Human Rights in History) Justine Lacroix, Jean-Yves Pranchère - Human Rights On Trial - A Genealogy of The Critique of Human Rights-Cambridge University Press (2018)

Human Rights on Trial
The first systematic analysis of the arguments made against human

rights from the French Revolution to the present day. Through the
writings of Edmund Burke, Jeremy Bentham, Auguste Comte, Louis
de Bonald, Joseph de Maistre, Karl Marx, Carl Schmitt and Hannah
Arendt, the authors explore the divergences and convergences between
these ‘classical’ arguments against human rights and the contemporary
critiques made both in Anglo-American and French political
philosophy. Human Rights on Trial is unique in its marriage of the history
of ideas with normative theory, and its integration of British–North
American and continental debates on human rights. It offers a powerful
rebuttal of the dominant belief in a sharp division between human rights
today and the Rights of Man proclaimed at the end of the eighteenth
century. It also offers a strong framework for a democratic defence of
human rights.
Justine Lacroix is Professor of Politics at the Université libre de

Bruxelles, Belgium. She is Associate Editor of the European Journal of
Political Theory.
Jean-Yves Pranchère is Professor of Political Theory at the Université
libre de Bruxelles, Belgium. He is Associate Editor of the European
Journal of Social Sciences.
Human Rights in History
Edited by
Stefan-Ludwig Hoffmann, University of California, Berkeley
Samuel Moyn, Yale University, Connecticut
This series showcases new scholarship exploring the backgrounds of human rights
today. With an open-ended chronology and international perspective, the series
seeks works attentive to the surprises and contingencies in the historical origins
and legacies of human rights ideals and interventions. Books in the series will
focus not only on the intellectual antecedents and foundations of human rights,
but also on the incorporation of the concept by movements, nation-states,
international governance, and transnational law.
A full list of titles in the series can be found at:

www.cambridge.org/human-rights-history
Human Rights on Trial
A Genealogy of the Critique of Human Rights
Justine Lacroix
Université libre de Bruxelles
Jean-Yves Pranchère
Université libre de Bruxelles
Translated by Gabrielle Maas

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Information on this title: www.cambridge.org/9781108424394
DOI: 10.1017/9781108334884
Originally published in 2016 by Editions du Seuill as Le Procès des droits de
l’homme: Généalogie du scepticisme démocratique, written in the French language
by Justine Lacroix and Jean-Yves Pranchère (ISBN 9782021181005)
© Editions du Seuil 2016
First published in English by Cambridge University Press in 2018, translation by
Gabrielle Maas.
© Justine Lacroix and Jean-Yves Pranchère 2018
This publication is in copyright. Subject to statutory exception
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no reproduction of any part may take place without the written
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First published 2018
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Contents
Acknowledgements page vi
Introduction: From the Rights of Man to Human Rights? 1

1 Critiques of Human Rights in Contemporary Thought 25
2 Human Rights against Inheritance
A Conservative Critique: Edmund Burke 59
3 Human Rights versus Social Utility
A Progressivist Critique: Jeremy Bentham and Auguste
Comte 91
4 Human Rights against the Rights of God
A Theologico-Political Critique: Louis de Bonald and
Joseph de Maistre 127
5 The Rights of Man against Human Emancipation
A Revolutionary Critique: Karl Marx 157
6 Human Rights against Politics
A Nationalist Critique: Carl Schmitt 187
7 The ‘right to have rights’
Revisiting Hannah Arendt 206
Conclusion: Towards a Political Understanding
of Human Rights 229
Index 247
v
Acknowledgements
We gratefully acknowledge the support of the European Research

Council, which funded this book with a Starting Grant entitled
‘RESIST. Human Rights versus Democracy? Towards a Conceptual
Genealogy of Skepticism about Human Rights in Contemporary Political
Thought (2010–2016). The Centre de théorie politique (CTP) at the
Université libre de Bruxelles, our home institution, has provided us
with an exceptionally inspiring and collegial working environment. The
authors would like to thank all past and current CTP members, and in
particular Christopher Hamel and Carlo Invernizzi-Accetti for their com-
mitment to the RESIST project.
An earlier version of Chapter 5 was published as Justine Lacroix and
Jean-Yves Pranchère, ‘Karl Marx fut-il un opposant aux droits de
l’homme?’, Revue française de science politique, 3/2012 (vol. 62), pp. 433–
451. Chapter 7 draws on arguments first explored in Justine Lacroix,
‘The Right to Have Rights and French Political Philosophy.
Conceptualising a Cosmopolitan Citizenship with Arendt’,
Constellations. An International Journal of Democratic and Critical Theory,
22/1, 2015, pp. 79–90. We would like to thank the editors of both journals
for granting permission to develop these ideas further here.
Many colleagues have generously shared their ideas and time with us:
Julie Allard, Sarah Al Matary, Carolina Armenteros, Isabelle Aubert,
Catherine Audard, Serge Audier, Etienne Balibar, Olivier Beaud,
Thomas Berns, Samuel Chambers, Bertrand Binoche, Antoon
Braeckman, Emmanuelle Bribosia, Frédéric Brahami, Bruno
Bernardi, Louis Carré, Manuel Cervera-Marzal, Anne-Sophie
Chambost, Véronique Champeil-Desplats, Francis Cheneval, Antoine
Chollet, Laurent Clauzade, Jean Cohen, Catherine Colliot-Thélène,
Juliette Corsy, Philippe Crignon, Ludivine Damay, Robert Damien,
Martin Deleixhe, Florence Delmotte, Isabelle Delpla, Helder De
Schutter, Alexandre Escudier, Jean-Marc Ferry, Rainer Forst, Stéphanie
Francq, Michael Freeden, Marie Gaille, Antoine Garapon, Raf Geenens,
Raphaël Gely, Pierre Glaudes, Florent Guénard, Sophie Guérard de la
vi
Acknowledgements vii
Tour, Axel Gosseries, Ayten Gündogdu, Michel Hastings, Bonnie Honig,

James Ingram, Engin Isin, Bruno Karsenti, Jean-François Kervégan, Jan
Kleinheisterkamp, Michael Kohlhauer, Cécile Laborde, Pieter Lagrou,
Arnaud Leclercq, Annabelle Lever, Alain Loute, Lois McNay, Kalypso
Nicolaïdis, Samuel Hayat, Murray Hunt, James Ingram, Léa Ipy, Pierre
Manent, John Milbank, Nobutaka Miura, Samuel Moyn, Janie Pélabay,
Anne Philipps, Arnd Pollman, Alain Policar, Jean-Claude Poizat, Olivier
Rémaud, Isabelle Rorive, Pierre Rosanvallon, Denis Salas, Andrew
Schaap, Diogo Sardinha, Réjane Sénac, Céline Spector, Tristan Storme,
Etienne Tassin, André Tosel, Bernadette Tulkens, Françoise Tulkens,
Yannick Vanderborght, Philippe Van Parijs, Hajime Yamamoto and
Patrick Weil, as well as our students at the Université libre de Bruxelles,
Université Saint-Louis–Bruxelles, Sciences Po Paris and Sciences Po Lille.
Our thanks go to all.
Introduction: From the Rights of Man to
Human Rights?
Fragmented social relations, the twin demise of authority and tradition,

the breakdown of behavioural norms and constraints: all these are the
outcome, according to their critics, of the uses and abuses of human rights
in contemporary democratic societies. We are, they say, seeing the
perverse effects of a ‘religion of human rights’ to which Europe has rashly
devoted its heart and mind, and the supposed burgeoning of rights, which
goes hand in hand with an unchecked rise of expectations, is catapulting
Western democracies into an age of never-ending demands. This
emerged clearly in France in Spring 2013 during the demonstrations
against equal marriage (‘mariage pour tous’) whose opponents deplored
the excesses of a movement-driven left striving for an unbounded
extension of rights – from the right to same-sex marriage to the enfranch-
isement of non-nationals or the right of same-sex couples to adopt.1
This view is now so widespread that we may well ask: are we witnessing
the backlash against a vocabulary of human rights accused of dispensing
with the limits essential to the existence of a body politic worthy of the
name, and thereby ‘annihilating law’?2 Both in the press and in political
discourse, rampant accusations of ‘human rights-ism’ – attacking the
fixation with human rights that allegedly blinds their proponents to
constraints on political action – suggest that such is the case. While this
so-called human-rights-ism masquerades as a misunderstood ‘ethic of
conviction’, say its critics, it is in fact the contemporary face of
a morally and politically disastrous lack of responsibility.3 The campaign
against same-sex marriage in spring 2013, with its scorn for the supposed
narcissism of claims to purely individual rights, and its reminders of the
1
Nicolas Truong, ‘Vers un “printemps” anti-Mai 68?’, Le Monde, Saturday 25 May 2013,
p. 20. On this topic, see the contributions of Ludivine Bantigny, François Cusset, Jean-
Pierre Le Goff and Chantal Delsol in the same edition.
2
Alain Finkielkraut, Causeur, 3, June 2013, p. 35.
3
For a summary of some instances of this expression used both on the right and left, see
François L’Yvonnet, ‘Du droit-de-l’hommisme’, Human Rights and their Possible
Universality, Academy of Latinity, Rio de Janeiro, 2009, pp. 207–219, www.alati.com
.br/fra/publicacoes_2009_oslo.html.
1
2 From the Rights of Man to Human Rights?
demands and limitations of community life (whether family, social or

political), can be seen as giving broader voice to a rejection of ‘human
rights politics’ that has run through various schools of political philosophy
for over thirty years.
Few political theorists, of course, would endorse rejection of human
rights as such – of the normative and legislative corpus, in other words,
that forms the basis for the rule of law in democratic states. Likewise,
there are few critics who would contest the inclusion of declarations of
rights in the legal framework of the republican state. Yet the apparent
consensus that has made human rights a dominant discourse of the last
forty years has not prevented the development of a parallel critical
argument which sets out to expose the ambiguities that consensus may
conceal.
Such attacks specifically target the use made of human rights in
contemporary democracies. Criticisms across the board accuse the new
‘human rights’ of being a kind of purely moral and anti-political utopia
that seeks to break down constraints inherent in the nature of historical
community. To elevate human rights to the status of self-standing
political ideal, say their critics, is to endanger a necessarily specific social
and political order that simply cannot be reduced to such an abstract
principle. In its most radical versions, this argument suggests that there
are two distinct conceptions of democracy: democracy understood as the
‘political form’ of a necessarily limited entity, according to this view, is
entirely different from democracy as the ‘form of a society’ without limits.4
Jean-Claude Milner, who lays out this theory, contrasts ‘classical human
rights – those of 1789’, which ‘embody a limiting principle’, with ‘the new
doctrine of human rights, which has entirely taken the place of its
predecessor’ and arises from a ‘register of limitlessness’.5
These grievances add up to a picture that is the more fragmented
because historical diagnosis of the problem wavers from the very start:
does the story of ‘boundless’ human rights begin with the French
Revolution of 1789, as conservative liberals who see Edmund Burke as
a forebear might say? Or in the 1830s with the presidency of Andrew
Jackson in the United States, as Jean-Claude Milner attempts to show
from his reading of Tocqueville? Or is it in fact the outcome, as Marcel
Gauchet seems to suggest, of a belated or postmodern individualism that
took hold in the 1970s? Before answering these questions, in order to
4
Jean-Claude Milner, Les Penchants criminels de l’Europe démocratique, Lagrasse, Verdier,
2003, pp. 41–46 and 92–94.
5
Ibid. As Jacques Rancière observes (La Haine de la démocratie, Paris, La Fabrique, 2005,
p. 36), Milner’s argumentation has the advantage of giving ‘a concise résumé of a large
body of literature’ on the perils of democratic individualism.
The Decline or Dormancy of Human Rights 3
understand the context around criticisms of human rights, we must start

with an overview of the recent history of uses of human rights in political
discourse and practice.
The Decline or Dormancy of Human Rights:

The Nineteenth Century and Interwar Period
Before we examine the objections raised against them, it is as well to recall
that human rights have not always been the popular idea they are today, or
at least since the American and French revolutions. We are undoubtedly
living in the ‘Age of Rights’6 in so far as human rights are the only political
and moral concept that has enjoyed near-universal endorsement –
whether by the adoption of the Universal Declaration of Human Rights
in 1948, the ratification of the two International Covenants of 1966
(respectively on civil and political rights, and economic, social and cul-
tural rights) or via the recognition of human rights in the vast majority of
national constitutions. This invocation of human rights is of course
largely hypocritical; yet the fact they are so widely espoused is no less
significant ‘since hypocrisy, we know, is the homage that vice pays to
virtue (. . .) human rights is today the single, paramount virtue to which
vice pays homage’.7 Over half of the world’s population may be subject to
daily violations of their rights, yet (short of a temporary state of
emergency) no state can openly admit these violations.
The fact remains, however, that this revived reference to human rights
is a recent development. According to Jeremy Waldron and Samuel
Moyn, after the great Declarations of the eighteenth century, the idea of
human rights went into a decline during the nineteenth and first half of
the twentieth centuries. The ‘giants’ of social theory in this period
(Comte, Marx, Durkheim and even Weber, despite his seminal role in
shaping ‘methodological individualism’) no longer saw society as
a product of human will but instead as a process existing in complex
relation to the intentions of its agents. With this view in mind, the image
usually attached to declarations of rights – that of a social contract
between independent individuals who settle rationally on rules to govern
their association – no longer seemed to cover the new understanding of
social life.
In an article of 2009, Waldron identifies three overarching reasons for
what he calls the ‘decline’ of a discourse of the rights of man in the
6
Louis Henkin, The Age of Rights, New York (NY), Columbia University Press,
1990, p. xviii.
7
Ibid., p. xviii.
nineteenth century. The first has to do with the ‘revulsion’ occasioned by

the bloody turn taken by the French Revolution.8 Though rejections of
human rights rhetoric reached their crisis point in counter-revolutionary
thought – which in one fell swoop writes off the entire historical tract
running from 1789 to 1815 as a catastrophe attributable to
Enlightenment principles – this view also runs through the work of certain
liberal thinkers who sought to preserve the constitutional heritage of 1789
while also arguing that immovable demands for the ‘rights of man’ had led
to the Terror of 1793. In this view, the politics of the rights of man comes
to be identified with the figure of Robespierre – so much so that it would
soon serve as a standard, in a deliberate reversal of this stigmatisation, for
the Society of the Rights of Man (Société des droits de l’homme),
founded in Paris in 1830 to promote a programme of radical, social and
European democracy.
Waldron’s second suggestion has to do with the about-turn in mid-
nineteenth-century Britain that saw the image of human rights move from
contestation to consolidation of the established order. Associated less with
Rousseau or Robespierre than with Locke, human rights were now
attached to the intangible right to property and rigid defence of the rule
of law, and entered the Whig lexicon which constituted ‘almost
establishment talk’. In this context, the rights of man hardly seemed like
tools of social change.9 Utilitarianism, with its insistence on collective
utility, seemed a better bet for progressive aspirations than the tired
rhetoric of natural right. Similarly, several progressive thinkers on the
Continent preferred to reference the positivism of Auguste Comte, which
dismissed the idea of ‘natural right’ as an abstraction with no social
power.
The third cause of this demise of human rights discourse was the
emergence of national self-determination movements. Declarations of
rights, of course, already proclaimed the right of groups to self-
determination. Yet for many nineteenth-century nationalists it was the
people as such that came to represent the ‘real’ entity, and the discourse of
individual rights was progressively side-lined by calls for collective
emancipation.10 An emblematic instance of this was the critique of
human rights outlined by Mazzini, an archetypal figure of a strain of
political romanticism marrying the radical nature of democratic ideals
with the imperative of national unity. Mazzini’s treaty The Duties of Man,
8
Jeremy Waldron, ‘The Decline of Natural Right’, New York University Public Law and
Legal Theory Working Papers. Paper 143, p. 8, referencing Georges H. Sabine, A History of
Political Theory, 3rd edn., New York (NY), Holt, Rinehart and Winston, 1961, p. 542.
9
Waldron, ‘The Decline of Natural Right’, p. 11.
10
published in 1860, begins by stressing that any progress made ‘during the
last fifty years’ has been made ‘in the name of the Rights of man’; yet he
quickly follows this with the qualification that these ‘rights of man’ have
failed to solve the social question and to put an end to the widespread
selfishness of individuals who, once endowed with rights, seek only their
own ‘material well-being’. Indeed, the duties of man to his nation and
fellow humans simply cannot be established on the basis of the absolute
rights of the individual. The ‘basis’ of society lies not in rights but ‘duty’,
which may extend as far as to require ‘self-sacrifice’ in the name of
a ‘common faith’.11
During the nineteenth century, then, individual rights were gradually
hemmed in between incipient nationalism on the one hand – whose early
forms, even when democratic, were apt to subjugate the demands of law
to a romantic adulation for the will or ‘soul’ of a people – and on the other
a positivism which started (as we shall see with Comte) by reappropriating
the anti-liberal heritage of counter-revolutionary thought for its own
ends, and negating the very idea of law on the grounds that social totality
takes precedence over activities that take place within it:
‘Natural right seemed as irrelevant to the enthusiasm with which posi-
tivists, such as Auguste Comte, conceived a new science of society and
administration as to the fury and despair with which romantic and idealist
literature reacted to the soullessness of modern industry.’12
Moyn gives an even more radical diagnosis of this decline, positing that
the political vocabulary of human rights was (barring a few exceptions)
generally ‘abandoned’ everywhere during the nineteenth century but
especially in France, which had previously been the ‘epicentre’ of the
rights of man.13 Moyn relies especially heavily on the thinking of Tony
Judt, who argues that from 1831 to 1977 human rights were never at the
heart of any debate in French political theory except the Dreyfus Affair.14
The Dreyfus Affair, however, was far more than an ‘exception’: it was
a foundational event that determined the orientation of the French left for
the entire twentieth century.
This explains why (as Waldron himself admits) we must qualify the
idea that the lexicon of the rights of man was left for dead in the
nineteenth century. The century of social thought it may have been, but
11
Giuseppe Mazzini, Doveri dell’Uomo, London, 1860 – The Duties of Man, London, 1862,
pp. 4–8, 10–12, 19, 25–27, 38.
12
13
Samuel Moyn, ‘Plural Cosmopolitanisms and the Origins of Human Rights’, in
Costas Douzinas and Conor Gearty (eds.), The Meanings of Rights. The Philosophy and
Social Theory of Human Rights, Cambridge, Cambridge University Press, 2014, p. 208.
14
Tony Judt, ‘Rights in France. Reflections on the Etiolation of a Political Language’, La
Revue Tocqueville, XIV, 1, 1993, pp. 67–108.
it was also in the nineteenth century that the concern with individuality
took on new proportions. This is witnessed by the works of Alexis de
Tocqueville, who saw rights as the essential condition for liberty in
democratic societies. Tocqueville showed that the overlap between the
sense of liberty and of the ‘civic spirit’ is ‘inseparable from the exercise of
political rights’: ‘after the general idea of virtue, I know no higher
principle than that of right; or rather these two ideas are united in one.
The idea of right is simply that of virtue introduced into the political
world.’15
The rhetoric of rights likewise remains prominent in several social
campaigns such as the Chartist movement in Britain, the struggle for
women’s rights or the abolition of slavery.16 The scorn of some socialists
for formal rights, meanwhile, did not impede the emergence of
‘Guarantist’ socialism, based on a dogged attachment to individual
liberties.17 And Marx himself, whatever his distaste for the idea of rights,
had to accept that the Statutes he drafted in 1864 for the International
Workingmen’s Association opened with the statement ‘that the struggle
for the emancipation of the working classes is a struggle [. . .] for the
establishment of equal rights and duties’.18 We might even add that the
Marxist demand for the fulfilment of freely defined individual potential
points the way towards an ‘anthropological basis for the notion of “human
rights”’.19 We shall return to this argument in Chapter 5.
Waldron uses the examples of Great Britain, the United States and
German legal science to back up his theory of a decline of human rights
discourse. Discussion of the German liberal jurists – who defended the
rule of law in terms overdetermined by the ‘strategic’ constraints imposed
on them in the authoritarian context of Prussian monarchy – lies beyond
the scope of this study. We must point out, nevertheless, that human
15
Alexis de Tocqueville, De la démocratie en Amérique, vol. 1, Paris, Gallimard, 1986, p. 557
(trans. Henry Reeve, 1899). It is therefore simplistic to say, as does Moyn, that
Tocqueville thought of rights merely as one amongst many on a long list of means of
preserving liberty.
16
See especially Robin Blackburn, The American Crucible. Slavery, Emancipation and
Human Rights, London, Verso, 2011 and Jenny S. Martinez, The Slave Trade and the
Origins of International Human Rights, New York (NY), Oxford University Press, 2012.
17
See Serge Audier’s many works on this question, especially Le Socialisme libéral, Paris, La
Découverte, 2006.
18
In a letter of 4 November 1864 to Engels, Marx said that he had been ‘obliged to insert two
phrases about “duty” and “right”’, but ‘placed them in such a way that they can do no
harm’. In his Critique of the Erfurt Program, in 1891, Engels suggested replacing the
expression ‘for equal rights for all’ with: ‘for equal rights and equal duties of all’, since
‘Equal duties are for us a particularly important addition to the bourgeois-democratic
equal rights and do away with their specifically bourgeois meaning.’
19
Robin Blackburn, ‘Reclaiming Human Rights’, New Left Review, 69, May–June 2011,
P. 137.
rights were the subject of one of the great historiographical debates of the
decade after 1900, which pitted the great German liberal jurist Georg
Jellinek against the French political scientist Emile Boutmy over the
origins of the 1789 Declaration.20 This has often been reduced to the
dimensions of a nationalist tussle between a ‘Germanic’ appropriation of
the ideals of 1789, brought back to the Protestant kernel of freedom
of conscience (Jellinek), and a defence of the irreducible originality of
France and Rousseau’s innovations (Boutmy). But the philosophical
question was in fact a real one, since the disagreement bore on the
question about the nature of human rights: is their core to be found in
an intangible freedom of conscience that precedes political law and
overrides any principle of sovereignty (Jellinek), or rather in the recipro-
city of citizen rights which guarantee equal liberties (à la Rousseau) by
subjugating individual wills to the sovereignty of the general will
(Boutmy)?21 The very fact that this debate took place demonstrates that
human rights had remained part of European consciousness. In his reply
to Boutmy, before restating his thesis that the 1789 Declaration had
American, English and Calvinist roots (rather than Lutheran – as he
stressed to distance himself from nationalist agendas), Jellinek started by
recalling that the Declaration was a ‘historical fact of universal signifi-
cance’, and that in making ‘recognition of individual rights’ a ‘principle of
public law’, France had founded the ‘modern State’ in all its contrast with
the ancien régime.22
Waldron unfortunately omits from his study the role played by reference
to human rights in France, where the fight for or against the republic that
was the guiding thread of the French ‘long nineteenth century’ was always
a struggle over the memory of human rights, over their interpretation
and their perpetuation. Alphonse Aulard, who held the first chair in the
history of the French Revolution at the Sorbonne from 1885 to 1922 and
20
Georg Jellinek, Die Erklärung der Menschen und Bürgerrechte, Leipzig, Duncker &
Humblot, 1895; French translation La déclaration des droits de l’homme et du citoyen:
contribution à l’étude du droit constitutionnel moderne, trans. Georges Fardis, Paris,
A. Fontemoing, 1902; Emile Boutmy, ‘La Déclaration des droits de l’Homme
et M. Jellinek’, Annales de l’Ecole libre des Sciences politiques, XVII, 1902, p. 415ff, in
Etudes politiques, Paris, A. Colin, 1907, pp. 117–182; Georg Jellinek, ‘La Déclaration des
droits de l’homme et du citoyen. Réponse à M. Boutmy’, Revue du droit public et de la
science politique, XVIII, 6, 9th year, 1902, pp. 385–400.
21
On this debate, see Marcel Thomann, ‘Origines et sources doctrinales de la Déclaration
des droits’, Droits n° 8: La Déclaration de 1789, Paris, PUF, 1988, pp. 55–70;
François Saint-Bonnet, ‘Regards critiques sur la méthodologie en histoire constitution-
nelle. Les destinations téléologiques des options épistémologiques’, Jus politicum, 2,
2009, www.juspoliticum.com/Regards-critiques-sur-la.html (accessed 25 November
2013).
22
Georg Jellinek, ‘Réponse à Boutmy’, p. 386. ‘The basis for this significant event’, Jellinek
wrote, ‘is the official recognition of the rights of man opposite state rights.’
co-founded the League of Human Rights (Ligue des droits de l’homme),

spoke for all French republicans when he said that,
The French Revolution consisted of the Declaration of Rights drafted in 1789 and
finished in 1793, and of the attempts to make this declaration reality; the counter-
revolution consisted in the attempts to turn the French away from acting in
accordance with the principles of the Declaration of Rights, in other words in
accordance with reason as revealed by history.23
To defend the republic, in Aulard’s view, meant to defend revolutionary
heritage, which in turn was first and foremost that of the rights of man.
This explains why human rights returned to the forefront of debate each
time the republican regime had to confront the threat of counter-
revolutionary subversion: Clémenceau’s creation of the Society of the
Rights of Man and the Citizen (Société des droits de l’homme et du
citoyen) in 1888 during the Boulangist crisis; the foundation of the
League of Human Rights (Ligue des droits de l’homme)
in February 1898, just as the culmination of the Dreyfus Affair in Emile
Zola’s trial was giving rise to appalling anti-Semitic outbursts all over
France.24 In his magisterial history of French republicanism, Claude
Nicolet goes so far as to conclude that the 1789 Declaration was ‘the
republican “symbol” par excellence’ in France,25 a profession of political
faith which was to be preserved and nurtured by public education.
Waldron’s theory of a supposed ‘decline’ of human rights, then, is an
exaggeration. Moreover, Moyn’s claim that the concept had been aban-
doned (with the exceptions of Benjamin Constant, François Guizot and
Alexis de Tocqueville) across the French political spectrum in the nine-
teenth century does not hold water.26 If human rights had been in the
background of political and theoretical debates for a time, they were
latent rather than completely absent, and this dormancy can be seen as
the assumption of a step forward whose theoretical significance was
beyond question. What is more, theoretical discussion of human rights,
closely associated with the memory of the revolutionary establishment,
continued during this period. It was merely that such discussion
happened in historical terms: French political philosophers of all persua-
sions, from Thiers to Jaurès by way of Lamartine, Louis Blanc,
23
Alphonse Aulard, Histoire politique de la Révolution française, Paris, A. Colin, 1901, new
edition 1926, p.782, quoted in Florence Gauthier, Triomphe et mort du droit naturel en
Révolution. 1789–1795-1802, Paris, PUF, 1992, p. 113.
24
See Pierre Birnbaum, Le moment antisémite. Un tour de la France en 1898, Paris, Fayard,
1998.
25
Claude Nicolet, L’Idée républicaine en France, Paris, Gallimard, 1982, p. 357.
26
Waldron, ‘The Decline of Natural Right’, art. cit., p. 29; Samuel Moyn, ‘Plural cosmo-
politanisms and the origins of human rights’, art. cit., p. 208.
Tocqueville and Taine,27 wrote histories of the Revolution that also

served as imposing theoretical explorations. For these authors, writing
revolutionary history meant tackling the institutional meaning of human
rights and the problem of their entanglement with the Terror – or, as we
see with Edgar Quinet, the problem of their disentanglement from the
Terror.
Human rights also featured in legal theorising. In France, pre-eminent
jurists were debating the question of the constitutional nature of the 1789
Declaration before 1914. Political practice under the Third Republic was
undoubtedly recalcitrant towards controls on constitutionality: most repub-
licans insisted on the primacy of national sovereignty over the power of the
judiciary, and therefore refused to grant the Declaration of the Rights of
Man the status of a higher rule that could trump legislative or even constitu-
tional power. Thus, without consenting to cede exclusive power over law to
the legislature, the legal theorist Adhémar Esmein held that individual rights,
‘the heritage definitively won for the French’ since 1789, were adequately
guaranteed by the interplay of republican institutions. Raymond Carré de
Malberg, who described ‘natural right’ as ‘a contradictio in adjecto’, mean-
while denied any positive legal value to the 1789 Declaration.28
The Catholic liberal Maurice Hauriou directly counters this argument,
however, taking the sequence of Declarations from 1789 to 1852 to be the
‘constitutive text of the social constitution’, and advocating judicial
review of the constitutionality of laws on the basis of the declarations.29
An even more radical rejection comes from the legal theorist Léon
Duguit, a disciple of Durkheim; though he had no connection with the
Catholic tradition of natural right, Duguit based law on the objective and
prime fact of ‘social solidarity’, and was a determined critic of natural
right and the individualist metaphysics which in his view marred the
Declaration of 1789. He did, however, recognise in the Declaration
a ‘positive legal force’ such that ‘any law running contrary to the terms
of the Declaration of Rights of 1789 would be an unconstitutional one.’30
27
Michelet must be added to this list: his Histoire de la Révolution française is also an essay on
political philosophy – albeit possibly to a lesser degree than Edgar Quinet’s work La
Révolution, whose theoretical importance has been demonstrated by Claude Lefort.
(C. Lefort, ‘Edgar Quinet: la Révolution manquée’, in Essais sur le politique, Paris,
Seuil, 1986, pp. 140–161).
28
Adhémar Esmein, Eléments de droit constitutionnel, Paris, Larose, 1896, pp. 369–390;
Raymond Carré de Malberg, Contribution à la théorie générale de l’Etat (1920–1922),
Paris, Dalloz, 2004, I pp. 238–243, II pp. 578–582.
29
Maurice Hauriou, Précis de droit constitutionnel (1923), Paris, Sirey, 2nd edn., 1929
p. 625.
30
Léon Duguit, Manuel de droit constitutionnel, 1st edn., Paris, Fontemoing, 1907, pp. 8ff
and 485. For an overview of these debates, see Nicolet, L’Idée républicaine en France,
pp. 333–374.
At the same time, Jaurès shows in his analysis of the legislative actions
of the French revolution that the meaning of the Declaration had always
gone beyond the individualism uppermost in the mind of its authors.
The ‘revolutionary idealism’ of human rights had revealed its ‘imperious
logic’ in the process that led the revolutionaries – beyond their original
aims, and even against their better judgement – to extend political rights,
limit property rights by imposing an egalitarian principle on inheritance
law, abolish slavery, and finally recognise that ‘every man has the right to
subsistence’.31
‘The human right proclaimed by the Revolution immediately took on
a deeper and broader meaning than that ascribed to it by the revolutionary
bourgeoisie. [. . .] The riverbed was wider than the river, and a new
current would be needed – the great proletarian and human current – in
order finally to fulfil the idea of justice. It is socialism alone that will imbue
the Declaration of the Rights of Man with its full meaning and make all
human law reality.’32
Breaking down the ‘bourgeois’ boundaries of the Declaration, refound-
ing it on the new basis of ‘social property’, imbuing it with its full
meaning – all these, for Jaurès, came to one and the same thing. This
absorption of human rights into socialism converged with the mirror
move of republican thought in attempting to base the idea of social right
on individual rights. The combination of socialist ambitions with an
insistence on ‘natural right’ which ‘no one can renounce without renoun-
cing the very human condition’ was already present in 1848 in Charles
Renouvier’s Manuel républicain de l’homme et du citoyen, which went
beyond the liberties declared in 1789 to demand the ‘right to work’ and
the ‘right to assistance’. Renouvier, who systematically developed his
Kantian philosophy over the second half of the nineteenth century, is
now unjustly forgotten; yet his work at the time exerted considerable
influence, so much so that his adversary Maurras saw him as the repub-
lican philosopher par excellence.33
For another founding father of the Third Republic, the philosopher
Alfred Fouillé, the job of democracy was to guarantee at once:
‘1. The liberty and equality of individual rights; and 2. Organic and
voluntary solidarity between individuals within the whole’.34 In this
31
Jean Jaurès, Histoire socialiste, vol. I, Paris, Rouff, 1901, pp. 381, 479.
32
Jean Jaurès, Etudes socialistes, Paris, Cahiers de la Quinzaine, 1901, p. 137.
33
‘Le “spirituel” de la France est dirigé par le cénacle de M. Renouvier’ ( Charles Maurras,
article of 1903 reproduced in La démocratie religieuse, Paris, Nouvelle librairie nationale,
1921, p. 310). On Renouvier, see Marie-Claude Blais, Au Principe de la République. Le cas
Renouvier, Paris, Gallimard, 2000.
34
Alfred Fouillé, La démocratie politique et sociale en France, Paris, Alcan, 1910, p. 19.
view, the individual rights won by the Revolution must be extended into
new social rights. No surprise then that on the incentive of its second
president, the socialist deputy Francis de Pressensé, the Ligue pour la
défense des droits de l’homme (League for the Defence of Human Rights)
moved beyond the Dreyfus Affair to turn its efforts towards economic and
social rights, as well as the rights of colonised peoples and women.
We must not therefore simply conflate ‘human rights’ and ‘natural
right’. The revival of natural right spurred by the renaissance of
Thomism in the Catholic Church during the second half of the nineteenth
century went hand in hand with a virulent rejection of the heritage of the
French Revolution. The translation of Thomist natural law into the
lexicon of human rights would not come until much later, in the work
of philosophers such as Etienne Gilson and Jacques Maritain. Vice versa,
certain sociological schools which dismissed the idea of natural law as an
absurdity were also at this time starting to revive human rights. To fail to
distinguish between human rights and natural right, as does Claude
Nicolet in his otherwise remarkable study,35 is to miss the originality
and power of both Duguit’s and Jaurès’ attempts to found the essential
substance of human rights on a base other than natural law, or the
primacy of subjective rights.
Given this, the peculiar case of France – where neither Bentham nor
Burke became ‘classics’, as they had in England – should not lead us to
dismiss all truth in the thesis of a ‘hibernation’ of human rights discourse
during the nineteenth and early twentieth centuries. The theory is
perhaps even truer of the interwar period, when the influence of
Leninism and the Russian Revolution side-lined human rights-based
socialism – and, vice versa, defence of rights was often associated with
freedom of contract and the right to property.36 In the United States,
during the so-called Lochner era – named after a 1905 Supreme Court
ruling that threw out as unconstitutional a New York state law limiting
working hours – invoking individual rights came to serve as a conservative
weapon against social regulation in general,37 an attitude that prevailed
until the end of the 1930s. When dealing with the issue of national
35
Claude Nicolet sees in Duguit’s doctrine of social law merely a ‘detour which brings him
back to a form of natural law under the guise of a “social norm” – a fact which of course he
refuses to recognise’ (L’Idée républicaine en France, p. 352). Yet there is no reason not to
take Duguit’s attempt for what it is: the foundation of individual rights on a principle of
‘social solidarity’ that is not jusnaturalist.
36
Once again, this observation must be nuanced. See the excellent review by Eric D. Weitz,
‘Samuel Moyn and the New History of Human Rights’, European Journal of Political
Theory, 12 (1), 2013, pp. 84–93.
37
Samuel Moyn, The Last Utopia, Cambridge (MA), Harvard University Press, 2010,
p. 30.
minorities as one of human rights, the League of Nations meant nothing

more by this than a vague appeal to states for fair treatment of inhabitants
under their territorial jurisdiction. As for the unofficial human rights
organisations that did exist, Hannah Arendt’s judgement of 1951 on the
activists of the 1920s and 1930s is unequivocal:
All societies formed for the protection of the Rights of Man, all attempts to arrive
at a new bill of human rights were sponsored by marginal figures . . . The groups
they formed, the declarations they issued show an uncanny similarity in language
and composition to that of societies for the prevention of cruelty to animals.
No statesman, no political figure of any importance could possibly take them
seriously and none of the liberal or radical parties in Europe thought it necessary
to incorporate into their program a new declaration of human rights.38
Yet even here we must put this diagnosis into perspective: recent works by
Bruno Cabanes have highlighted the pivotal role of the First World War in
discursively displacing the notion of ‘charity’ with that of ‘rights’. At the
end of a thorough analysis of transnational work undertaken in the inter-
war period by veterans’ associations and pioneering jurists such as René
Cassin, Cabanes concludes that ‘the transition from war to peace in the
course of the 1920s was a key moment in the emergence of a new sense of
human rights that would lead in time to the Universal Declaration of
Human Rights of 1948’.39
The Revival of Human Rights Discourse

However, it is without question only in the last half-century that human
rights have become a sort of global lingua franca – our ‘last secular
religion’, as Elie Wiesel and many others have thought of them.40
The choice of the term ‘secular religion’, first introduced by Raymond
Aron in 1944 to describe totalitarian doctrines – the ‘rationalist, huma-
nist [religion] of the socialists’ as much as the ‘irrationalist, pessimist
[religion] of the Hitlerians’41 – is far from coincidental. Behind the use
38
Hannah Arendt, The Origins of Totalitarianism (1951), New York (NY), Meridian Books,
1958, p. 292.
39
Bruno Cabanes, The Great War and the Origins of Humanitarianism 1918–1924,
Cambridge, Cambridge University Press, 2014, p. 308.
40
Elie Wiesel, ‘A Tribute to Human Rights’ in Yael Danieli et al. (eds.), The Universal
Declaration of Human Rights. Fifty Years and Beyond, Amityville, Baywood, 1999, p. 3.
Cited in Michael Ignatieff, Human Rights as Politics and Idolatry, Princeton (NJ),
Princeton University Press, 2001.
41
Raymond Aron, ‘L’avenir des religions séculières’ (La France libre, 15 july 1944), in Une
histoire du XXe siècle, anthology compiled by C. Bachelier, Paris, Perrin, 2012, pp. 236
and 244. See also Eric Voegelin, Les Religions politiques (1938), trans. J. Schmutz, Paris,
Cerf, 1994. For a history of this concept, see M. Angenot, Le Siècle des religions séculières,
Discours social, vol. 38, Toronto, McGill University Press, 2014.
The Revival of Human Rights Discourse 13
of the word ‘religion’ to describe the current hold of human rights over
contemporary society lies condemnation of a dangerous confusion
between the political and the spiritual, or even a new ‘opium of the
people’: ‘the doctrine of the Rights of Man is the latest in a series of civil
religions, the soul of a soulless world, the illusion of a world that has lost
its illusions’, as Régis Debray writes in a pastiche of early Marx.42
The equation some authors have suggested, in the vague name of reli-
gion, between equal liberties and their denial by a ‘total ideology’ may
seem perplexing.
Yet there can be little doubt that human rights permeate contemporary
political discourse (if not practice). The question then becomes when
exactly the concept emerged, and this has given rise to a complex histor-
iographical debate. The question here is less of a philosophical order (are
human rights universal? Should all legitimate political action be based on
them?) than a historical one: when did the belief that human rights were
universal, and that they must be the litmus test for judging the legitimacy
of a course of political action, start to hold sway? Without entering into
the tortuous genealogical aspect here, we can identify three schools of
thought following Devin O. Pendas; they argue, respectively, that this key
moment occurred at the end of the eighteenth century, in the aftermath of
the Second World War or at the end of the 1970s.43
The most widely accepted opinion has long been that the American
Declaration of Independence of 1776 and the French Declaration of
1789 were the first steps in a process that would culminate in the events
of the twentieth century. If human rights failed when conscripted to the
nation-state it was ‘only to succeed in the long run’ as a result of the
domino effect which soon confronted the male, white, Christian and
property-owning proponents of the American and French Declarations
with demands for equal rights issuing from Jewish and black commu-
nities, women and later gay rights activists.44 In this sense, Lynn Hunt
argues that the guiding thread of the whole of Western political history
since the early eighteenth century lies in the dynamic that places the 1948
Universal Declaration in the direct lineage of principles first laid out in
1789.
This history, however, is by no means linear. Hence other authors,
while not denying the connections between the late eighteenth-century
42
Régis Debray, Que vive la République, Paris, Odile Jacob, 1989, p. 173.
43
Devin Pendas, ‘Towards a New Politics? On the Recent Historiography of Human
Rights’, Contemporary European History, 21, 1, 2012, pp. 95–111.
44
Lynn Hunt, The French Revolution and Human Rights. A Brief Documentary History,
Bedford, St Martin’s, 1996, p. 3 and Lynn Hunt, Inventing Human Rights, New York
(NY), Norton, 2007.
Declarations and that of 1948, stress that the contemporary idea of

human rights only really came to global awareness with the Second
World War and above all in its aftermath, when the discovery of the
concentration camps made limiting the omnipotence of nation-states
a matter of urgency. The horror of Nazi atrocities was arguably the
force that drove international recognition of individual rights: already
proclaimed among the aims of Allied warfare in the Atlantic Charter of
1941, this went further with the introduction of the concept of a ‘crime
against humanity’ in Nuremberg in 1945 and culminated in the adoption
of the 1948 Universal Declaration of Human Rights.45
It is these two theories – which, to borrow Marc Bloch’s phrase, arise
from a common ‘idolatry of origins’ – that Samuel Moyn sets out to
disqualify in his work The Last Utopia: Human Rights in History (2010),
which has been hugely influential. In Moyn’s view, human rights were
merely a ‘peripheral’ element of the rhetoric used both during the Second
World War and after it. And since Moyn believes that there was no public
awareness of the Holocaust immediately after the end of the war, these
rights cannot in his view be seen as a direct response to the Jewish
genocide. He argues that it was not in the mid-1940s but only thirty
years later – in the second half of the 1970s – that they took on the mantle
of our ‘last utopia’.
Distancing himself from retrospective fêting of the ‘1948 moment’,
Moyn thus underlines that the notion of human rights has occupied
only a marginal position in the post-war period. Both the Universal
Declaration of 1948 and the European Convention on Human Rights
of 1950 are only ‘minor byproducts’ of their time, powerless to spark the
public’s imagination or inspire any substantial intellectual movement in
their support. As soon as they were proclaimed, Moyn posits, human
rights were paralysed by their confinement to state diplomacy within the
United Nations – and by the fact that they were barely taken up except by
Christian personalist movements which were themselves soon associated
with anticommunism and narrow defence of the West.
Above all, from this angle, human rights revealed themselves incapable
of solving the great dilemma of the time: the choice between a communist
system and a market economy tempered by the institution of the welfare
state. In the same vein, Moyn discredits the interpretation of decolonisa-
tion as a struggle for human rights. When anticolonial activists claimed
human rights as their due, they understood the concept in its original
45
Danièle Lochak, Les droits de l’homme, Paris, La Découverte, 2005, p. 48. See Louis
Henkin, The Age of Rights, and Jack Mahoney, The Challenge of Human Rights. Origins,
Development, Significance, Oxford, Blackwell, 2007.
The Revival of Human Rights Discourse 15
sense – as linked to state-building. Their objective, he argues, was

national sovereignty, the defence of individual prerogatives; the
supremacy of the nation-state, not its subordination to a general law.
If the campaign dates neither from the immediate post-war period nor
from the era of decolonisation, how are we to explain the global
dominance of human rights today? In Moyn’s view, the explanation lies
above all in the failure of other utopias. Once the Soviet invasion of
Prague and the death of Allende had crushed former hopes for ‘socialism
with a human face’, human rights took on the colours of a provisional and
minimal morality that sat above and beyond politics – as witnessed by the
emblematic trajectory of an organisation such as Amnesty International.
The explanation for the rise of human rights, then, is arguably less
globalisation and the erosion of the nation-state than the collapse of
global political alternatives. Moyn suggests that the neutral nature of
human rights – which had caused their marginalisation after the war,
when the pressure was on to take one side in the communist–capitalist
dilemma – may conversely explain their success at the end of the 1970s,
when the ideological climate was ripe for claims to ‘transcend’ politics.
It is tempting to compare Moyn’s book with its exact contemporary by
the political scientist Andrew Vincent, who gives a more conventional
account of the ‘discovery’ of the Holocaust, decolonisation and the Cold
War as the main forces behind the gradual emergence of a transnational
language of rights.46 Moyn’s theory that the ‘realisation’ of genocide
occurred only at the end of the 1970s must unquestionably be qualified
in the light of recent works, such as those of François Azouvi on the
French case, which demonstrate that contrary to popular belief the exter-
mination of Jews was not simply silenced at the Liberation but very soon
after became the subject of intensive intellectual reflection.47 Proving that
‘awakening’ to genocide happened far earlier than Moyn suggests may
not discredit his theory that human rights discourse only really took root
in the 1970s – especially since it seems clear that even if there had been
debate earlier, this ‘was not enough to prevent repression of the crime in
the public sphere’.48
Yet the fact remains that the ‘big bang’ idea,49 that human rights
supposedly emerged as if from nowhere in 1977, does not stand up to
46
Andrew Vincent, The Politics of Human Rights, Oxford, Oxford University Press, 2010.
47
François Azouvi, Le mythe du grand silence. Auschwitz, les Français, la mémoire, Paris,
Fayard, 2012.
48
Enzo Traverso, La fin de la modernité juive, Paris, La Découverte, 2013, p. 155.
49
As per the expression used by Philip Alston to describe Moyn’s thesis. Philip Alston,
‘Does the Past Matter? On the Origins of Human Rights’, Harvard Law Review, 126,
2013, p. 2074.
thoroughgoing analysis. Several authors, both historians and legal

theorists, have underlined the ‘short-sightedness’ and the ‘America-
centric’ nature of this argument by detailing examples of appeals to
human rights in the 1940s, 1950s and 1960s.50 Without taking up
position on this historiographical debate, we endorse Philip Alston’s
view that Moyn displays at the very least a ‘reluctance to acknowledge
the power of ideas before they reach a high threshold [of recognition]’.51
Rights of Man and Human Rights: Merely a Family

Resemblance?
Beyond their differences over when the concept of human rights emerged,
Andrew Vincent and Samuel Moyn nonetheless join forces in arguing that
there is no direct lineage linking the ‘rights of man’ proclaimed at the end
of the eighteenth century to ‘human rights’ as established during
the second half of the twentieth. There are undoubtedly certain ‘family
resemblances’52 between the two concepts, but in these authors’ view we
cannot simply see ‘human rights’ as an updated dialect of the old language
of the rights of man. Whereas the rights of man were tied to an enclosed
space of citizenship, human rights according to these authors advocate an
outward-facing politics of compassion; where the rights of man formed
a basis for constructing a territorial state, human rights strive to transcend
the state. What seems clear enough today – that the chief aim of human
rights is to limit the capacity of states – was, in their view, a foreign idea to
the rights of man, which sought to define citizenship, not to protect
humanity. In other words, the association between the rights of man
and the nation-state is no unfortunate coincidence but rather constitutes
the very essence of these rights.53
Yet the poker-straight line these authors draw between ‘human rights’
(a term that, tellingly, has never taken root in French) and the ‘rights of
man’, seen as two distinct and competing universals,54 gives pause for
thought at the very least. It is certainly true that these are not strictly
identical concepts, and that the internationalisation of the individual
rights proclaimed at the end of the eighteenth century is a recent devel-
opment, whether we opt for the post-war period or the end of the 1970s as
the exact date when this happened. However, they then skip several steps
50
Aside from Philip Alston, see especially Weitz, ‘Samuel Moyn and the New History of
Human Rights’. For a critique of Moyn more relevant to the nineteenth century, see
Blackburn, ‘Reclaiming Human Rights’, pp. 126–138.
51
Alston, ‘Does the Past Matter?’, p. 2073.
52
Vincent, The Politics of Human Rights, p. 119. 53 Moyn, The Last Utopia, p. 30.
54
Moyn, ‘Plural Cosmopolitanisms and the Origins of Human Rights’, p. 210.
Rights of Man and Human Rights 17
to conclude that the ‘rights of man and the citizen’ and ‘human rights’ are
two concepts of an entirely different nature. As Bruce Robbins observes,
the legitimate desire to historicise the rights of man – in counterweight to
an essentialism that side-lines context – ends up instead producing
a paradoxical brand of de-historicisation: in refusing to recognise either
that numerous conflicting political strategies all call on them in any given
era or the historical dynamic that transcends their institutional incarna-
tions, we essentialise the relationship between the rights of man and their
historical context.55 The claim that the rights of man aimed only to build
citizenship within states, while human rights apply to humanity beyond
national borders, rests on hastily made simplifications.
First, the new ‘revolution of human rights’, underway since the end of
the 1970s, has not only sought to set an international norm on state
action. It has also led to the definition of various social movements – for
women’s rights, gay rights, consumer rights and so on – in terms of ‘new
rights’ to be won within existing states. By shifting the boundaries
between the public and private and the universal and particular, it has
also contributed to a sort of reinvention of ‘national’ citizenship, as the
works of Claude Lefort, Jacques Rancière or Etienne Balibar among
others amply demonstrate. The norms invoked by international move-
ments in support of human rights, moreover, derive from treaties signed
by states – which as matters stand remain the chief guardians of respect
for rights – and the most visible actors in ‘human rights’ struggles, from
Ukraine to China to Egypt, are domestic actors rather than organisations
such as Amnesty International or Human Rights Watch.56 Strangely,
Moyn seems to see the emergence of human rights exclusively in the
colours of a new duty to empathise with the suffering of humanity, and
therefore exclusively from the angle of their ramifications for transna-
tional practice.
Conversely, can we really limit the scope of the ‘rights of man’
announced at the end of the eighteenth century to the mere goal of
establishing a sovereign state? The fact that these rights were conceived
and embodied within a finite system – as witnessed by Article 3 of the
1789 Declaration, ‘The principle of all sovereignty resides essentially in
the nation’ – takes nothing away from the fact that they also sought to
define limits on the power of the state thus established. We must also
admit that it is extremely difficult to attribute a unanimous aim to
55
Bruce Robbins, ‘Sartre, Rancière, and the Cause of the Other’, in Douzinas and Gearty
(eds.), The Meanings of Rights, pp. 254–257.
56
Alston, ‘Does the Past Matter?’ p. 2072. See also Jean Cohen, Globalization and
Sovereignty. Rethinking Legality, Legitimacy and Constitutionalism, Cambridge,
Cambridge University Press, 2012, p. 217.
a document that grew out of a compromise between political actors of

different stripes – carrying within it unresolved tensions that would rear
their heads as the revolution unfolded – and occasioned a cascade of
unforeseen consequences that far exceeded the revolutionaries’ original
aims, taking on a momentum of its own. As Jaurès underlines in his
analysis of the runaway consequences of the Article 1 assertion that ‘social
distinctions must be founded only upon the general good’:
The notion of public utility, introduced in the bourgeois code in order to limit the
absolute right to individual property, gradually changed and grew as society itself
changed. The bourgeois revolutionaries of the Constituent Assembly would have
revolted in 1789 if they had known that the article that they themselves had put in
the Declaration of Rights would, three years later, be invoked by the bourgeois
revolutionaries of the National Convention to justify the application of the Law of
the Maximum and universal taxation on commodities – in other words the
generalised expropriation of exchange, which is such an essential part of indivi-
dual property.57
As Eric Weitz rightly notes, Samuel Moyn superimposes the outline of

a logical antithesis – between the rights of man as the model for a political
body and human rights as compassionate humanitarianism – on a far
more confused, ‘messy’ (not to say contradictory or dialectical) historical
reality.58 It is therefore misleading to contrast contemporary ‘human
rights’, whose anti-political nature has been exaggerated, with the classic
‘rights of man’, which are apt to be hastily equated with the nation-state
project. To make this link too easily is to forget that revolutionaries had
inherited the national form from the monarchy, and proclaimed the rights
of man in order to democratise that form – a link that was by no means self-
evident, since it soon became clear that the republican idea and the
national idea were not straightforwardly compatible bedfellows.
Burke grasped this fact immediately and steadily developed his polem-
ical thesis that the rights of man were an anti-national idea, incompatible
not only with the peaceful co-existence of nations but with their very
existence, an argument that he would express most forcefully in his Letters
on a Regicide Peace of 1796–1797. From Joseph de Maistre to Maurras or
Carl Schmitt, counter-revolutionary thought incessantly embellished this
grievance,59 denouncing the rights of man for dissolving national differ-
ences into the democratic idea and thus erasing the boundary between
international and civil war, based on the claim of the ‘party of the rights of
man’ to be the ‘party of the human race’.
57
Jaurès, Etudes socialistes, pp. 235–236.
58
Weitz, ‘Samuel Moyn and the New History of Human Rights’, p. 88.
59
See Chapters 2, 4 and 6.
Rights of Man and Human Rights 19
It is true that the friction between the ideas of rights of man and nation
never became an open contradiction in the nineteenth century – though
there were always those, such as Durkheim, who criticised the ‘concept of
the nation’ as an ‘obscure mystical idea’, announced the inexorable
demise of the national form and demanded that patriotism should in the
interim see itself ‘as a small fragment of cosmopolitanism’.60 Durkheim
proposed no viable alternative, however, to the political model of the
nation he so deplored. At the same time, Jaurès declared himself unable
to see how internationalism could move beyond a peaceful relationship
between autonomous ‘national organisms’: ‘it is the nation that will for
a long time yet to come provide the historical framework for socialism, the
mould of unity for the new form of justice’.61
Yet this observation of the nation form as a historically restricting force
was not tantamount to a complete lack of awareness of the cosmopolitan
meaning of human rights – a meaning that Kant had grasped in 1795 in
the first of his works to be translated into French, as the Projet de paix
perpétuelle (1796). The cosmopolitanism of the revolutionaries had
doubtless taken rather cursory forms, hardly comparable with the com-
plex Kantian relationship between national law, international law and
cosmopolitan law.62 Yet the fact that they held these cosmopolitan views
at all demonstrates that the ideal of the rights of man aimed eventually to
transcend communities of origin. The idea that human rights are timeless
and placeless ‘runs like a leitmotiv through the speeches delivered at the
National Assembly’.63 It takes virulent shape in the hands of Anacharsis
Cloots, who posits the principle that since ‘the rights of man extend to
men in their entirety’, ‘we make up a confederation of individuals; no
other massed body or corporation than that of the human race can be
admitted’.64
We might raise the objection that Cloots was a figure too radical to
prove anything. If so, Volney – neither a Terror leader nor an Enragé – is
the next port of call. His 1791 book Les Ruines reaches its apogee in the
60
Emile Durkheim, Débat sur le nationalisme et le patriotisme (1905), Textes III, Paris,
Minuit, 1975, pp. 178–186; Leçons de sociologie (1898–1900, posth.), Paris, PUF,
1950, pp. 100–109. Recall that Proudhon and Comte both believed that the nation-
state had had its day.
61
Jaurès, Etudes socialistes, p. 130.
62
This connection has been explored by Jean-Marc Ferry, who illustrates its relevance
today. See Jean-Marc Ferry, Europe la voie kantienne, Paris, Cerf, 2005.
63
Danièle Lochak, Les droits de l’homme, p. 21. The same observation applies to the
American Revolution. See G. Wood, ‘The Origins of the American Bill of Rights’, La
Revue Tocqueville / The Tocqueville Review, XIV, 1, 1993, p. 38.
64
Anacharsis Cloots, Bases constitutionnelles de la république du genre humain (1793), dans
Écrits révolutionnaires. 1790–1794, Michèle Duval, (ed.), Paris, Champ libre, 1979, pp.
476 and 500.
vision of an ‘immense congress of peoples’, in which the assembled races

decree equality and liberty as their sole law. Volney predicted the immi-
nent advent of an age in which an independent international authority
would ensure respect for human rights: ‘from people to people, a balance
of forces will establish itself which, holding all in the respect of their
reciprocal rights, will put an end to their barbarous warring habits, and
submit the arbitration of their disagreements to a civil process; and the entire
race shall become one society, one single family governed by one mind, by
shared laws’.65
We can now see how Moyn’s concern with avoiding anachronism and
the ‘distort[ion] of the past to suit the present’66 leads him to dismiss out
of hand lineages of ideas that are not merely semantic. Our point is not to
deny that the 1970s represented a turning point in uses of human rights
discourse, a success for human rights that went hand in hand with the
death of the great ideologies, the flourishing of social movements after
1968, the horrors of looking back on Soviet and Maoist totalitarianism or
the revulsion towards torture-based regimes in Latin America that were
for a time supported by Nixon and Kissinger. But rather than seeing this
appeal to human rights as a radically new phenomenon, we may alterna-
tively conclude that it was in the 1970s that human rights ‘rediscovered
the rebellious and subversive dimension that had been their preserve in
1789 and that had gradually withered away, either because they seemed
to be already a given or because the “march towards a bright future”
seemed to have followed different paths’.67
However, it would be unfair to forget that Moyn’s work ploughs
a furrow alongside other historians – for instance the Belgian author
Pieter Lagrou – who refuse to see their discipline instrumentalised by
a sort of ‘duty to remember’. This compulsive memory, such authors
point out, all too easily reduces history to a ‘lullaby’ condemning the past
as a black book of authoritarianism, Fascism and slavery in order to justify
the present as thoroughgoing devotion to the triumph of democracy and
human rights. We can only welcome Lagrou’s energetic reminder that
history must be a method of critical investigation, not a ‘pedagogical tool
that serves to inculcate the superiority of our societal model’.68 And it is
hard not to share the irritation of those who fear that memory of the
Holocaust, ‘institutionalised and neutralised’, has come to be ‘the moral
65
Volney, Les Ruines, pp. 148, 114–115.
66
Samuel Moyn, ‘On the Genealogy of Morals’, The Nation, 16 April 2007.
67
Lochak, Les droits de l’homme, p. 3.
68
Pieter Lagrou, ‘De l’histoire du temps présent à l’histoire des autres. Comment une
discipline critique devint complaisante’, Vingtième siècle. Revue d’histoire, Paris, Presses de
Sciences Po, 118, 2013, p. 117.
Objectives and Structure of the Book 21
“deposit” paid by a Western order to offset its perpetuation of oppression

and injustice’.69
But we must also observe that these new historians’ desire to extricate
themselves from the ‘self-satisfied grammar of human rights’70 echoes
some critiques of human rights in political philosophy. As Pieter Lagrou
writes, unreservedly approving Moyn’s diagnosis that the ‘rights of man
and citizen of the national revolutions’ must be rigorously distinguished
from the ‘human rights’ proclaimed by the United Nations in 1948 or
outlined in the Helsinki Final Act of 1975:
The movement for civic rights carried within it a vision for a new society; an
emancipatory story moving towards the goal of political participation. What
political project can we associate with human rights discourse (which is in fact
exclusively a discourse about violations of human rights)? It must be a backwards-
looking project, made of wrongs to right, reparations to be won, a retreat from the
political sphere without any commitment made for the present or future beyond
the immediate fulfilment of demands issuing from particular interest groups.71
This analysis may well reinforce the idea that the new ‘human rights’ of
today are a sort of anti-political and moralising utopia. Albeit unwittingly,
this rigid dichotomy between the ‘rights of man’ and ‘human rights’
corroborates the tendency to consider contemporary human rights as
the consecration of the individual against the belonging of the citizen,
instead of using one to shore up the other as did the original republican
version.72 Robin Blackburn thus considers The Last Utopia as ‘reprising,
for a post-Iraq era, moves made thirty years ago in Paris’.73
Objectives and Structure of the Book

The objective of this book is precisely to investigate the different faces of
the critique of human rights since 1789, with a view to deepening under-
standing of the relevant contemporary debate on the relationship between
human rights and democracy. What are the main arguments that have
been advanced against human rights? What do the critiques advanced by
Burke, De Maistre, Bonald, Bentham, Marx, Comte and Schmitt have in
common, and where do they diverge? Above all, is it really possible to
establish continuities between these authors’ critiques and those to be
69
Traverso, La fin de la modernité juive, p. 167.
70
Lagrou, ‘De l’histoire du temps présent à l’histoire des autres’, p. 117.
71
Ibid., p. 112.
72
Marcel Gauchet, La religion dans la démocratie, Paris, Gallimard, Folio, 1998, p. 111.
Robin Blackburn thus considers The Last Utopia as ‘reprising, for a post-Iraq era, of
moves made in Paris thirty years ago’.
73
Blackburn, ‘Reclaiming Human Rights’, p. 129.
found in contemporary political thought? Or is there rather a true

epistemological break between critiques within the tradition of liberal
modernity on one hand, and others that start from a perspective radically
hostile to individualism on the other? The key questions are whether
a common critical aim can be articulated from different intellectual start-
ing points that are otherwise far apart, and whether or not the structure of
the arguments that run through these approaches significantly changes
the type of critique advanced.
This book does not, of course, aim to examine all critiques of human
rights. In particular, the critique of universal rights on grounds of cultural
pluralism – which has already given rise to a significant literature – is not
within the purview of our ambition. There will also be no discussion of
critiques of international humanitarianism,74 and no analysis of the dif-
ferent types of scepticism that arise from the idea that human rights are
not universal.75 Our analysis will rather concentrate on contemporary
contestation of the primacy of human rights in the name of a certain
interpretation of the democratic ideal. Attention will thus be focused on
two objections to human rights: that the dominant discourse leads to
a form of social ‘atomism’, and that it implies restrictions on the political
in favour of the juridical sphere. It is on these two points that historical
comparisons prove most fruitful.
This approach, which aims to be sensitive to the differences between
authors, avoids drawing non-supported comparisons, and draws a more
complex portrait of the complexity of critiques of human rights –
a portrait that goes further than the simple cliché of ‘abstract rights that
cut the individual off from community’. Our working method is deter-
mined by an awareness of the temptation – which must be resisted – to
consider democratic critiques of human rights a priori as constituting
a single tradition or paradigm. A bias towards abstraction and general-
isation threatens to obliterate the crucial differences between apparently
similar arguments. Striving for philological integrity, we seek to under-
stand the critiques of human rights studied in their own terms. Taking
rights seriously presupposes not least understanding the objections raised
to them, and the arguments of those who deny their existence or their
pertinence.76
74
See notably David Kennedy, The Dark Sides of Virtue: Reassessing International
Humanitarianism, Princeton (NJ), Princeton University Press, 2004.
75
For an overview, see notably Charles Beitz, A Theory of Human Rights, Oxford, Oxford
University Press, 2009, pp. 3–7.
76
Jeremy Waldron, Nonsense upon Stilts. Bentham, Burke and Marx on the Rights of Man,
London, Methuen, 1987, p. 2.
Objectives and Structure of the Book 23
However, as has been pointed out, we do not aim to write a narrative

history of critical thought on human rights since 1789, but rather to
tease out the main concepts and types of arguments in order to deepen
our understanding of the contemporary debate. Our interest in the
historical evolution of the critique of rights is clearly inspired by the
desire to arrive at a better understanding of the divided opinion on
human rights today. This is why we begin, in Chapter 1, by investigating
the contemporary critiques of human rights both in French and in
English-speaking political thought. We show that one should be careful
to distinguish critiques of human rights per se from attacks on the use
made of them in contemporary democracies. Consequently, we identify
three strands of thought on this issue – the anti-modern critique, the
communitarian critique and the radical critique. From Chapters 2 to 6,
we go back to the past. Seven authors – Edmund Burke, Joseph de
Maistre, Louis de Bonald, Jeremy Bentham, Karl Marx, Auguste
Comte and Carl Schmitt – seem to us to illustrate the five basic para-
digms that form the ‘poles’ of a geography of human rights critiques.
The choice is justified not only by the considerable influence of each of
these authors in the history of ideas – attributable to their skill in giving
a substantive, coherent or systematic shape to arguments that appear in
fragmentary or scattered form across the output of other authors – but
also by the scope of the theoretical field they stake out, from counter-
revolution to socialism via liberalism or progressivism. Beyond this, they
all thought about and reacted to human rights not merely in a general
sense, but as a particular embodiment of this idea in the French
Declaration of the Rights of Man and the Citizen in 1789, and the
updated versions furnished by the Declarations of 1793 and 1795.
Our aim is not to supplement an already vast body of literature by
interpreting each of these authors’ overall political philosophy afresh,
or to write a new history of ‘anti-democratic’ or ‘anti-liberal’ strains
of thought, but instead to focus attention on a clearly defined goal: to
draw an intellectual map of critiques of human rights since 1789,
with the aim of casting light on current dilemmas. Political theory
must always undertake a process of self-examination which cannot be
critical without also being historical: without exception, individual
political philosophies grow out of the issues that surround them.
Correspondingly, it is impossible to understand situations without
the context of their historical ‘cartography’. We therefore always
interpret political reality – a reality bound up with the theories that
have shaped it – according to concepts that contain the political
conditions of their generation and the tensions of their own history.
Even at the outer limits of its most ‘analytical’ or ‘normative’
ambitions, political theory cannot proceed without concern for this

sort of genealogical thinking, that is without a historical eye guided
by a ‘present question’77 which strives to gain clarity from the past
that has produced it. This genealogical view leads us to see the
present not as the necessary outcome of an ‘origin’ that contained
its seeds, but – against the backdrop of a far broader body of ques-
tions and possibilities – as the ‘path’ that was in fact followed in the
historical event, among the many that were possible. If the analysis of
political ideas is to transcend the limits of its own historical time,
whose legacy influences it in covert and unconscious ways, it must
pass by way of a ‘conceptual history’ that will eventually enable it to
explore the meaning of its own decisions.78
With this in view, we come full circle at the end of the book to directions
taken by contemporary ideas via an exploration of the thought of Hannah
Arendt (Chapter 7), who felt more keenly than any other the ambiguity
and myriad wealth of possibilities contained in the idea of human rights.
This awareness led Arendt towards a unique position at the crossroads of
contemporary political theories. Her celebrated formula of the ‘right to
have rights’ has given rise to radically opposed critiques of human rights,
stretching from the conservative stance, which holds that the only real
rights are those of national citizens, to extreme-left criticisms of the
hypocrisy and outdatedness of proclamations of rights. Against these
interpretations, we shall demonstrate that Arendt in fact opens the way
towards a ‘political’ understanding of human rights that can effectively
counter several of the criticisms identified in the course of the book.
77
Michel Foucault, ‘Le souci de la vérité’, Dits et écrits IV, Paris, Gallimard, 2001, no. 350,
p. 674.
78
Here we take up Bruno Bernardi’s notion of conceptual history. Bernardi distinguished his
approach from the traditional ‘history of ideas’ as well as Koselleck’s ‘history of concepts’
(Bernardi 2010). Bernardi justifies the cardinal role of conceptual history in political
theory as follows: ‘political concepts more than any others are defined by the “field of
experience” they structure and the “horizon of expectations” they shape. The concepts
we use today can be understood only if we take into account the history that moulded
them and the decisions we effect about that history by the new usages we make of it.’
(https://rousseau2.wordpress.com/etudes-dhistoire-conceptuelle/).
1 Critiques of Human Rights in Contemporary
Thought
Human rights are ‘not a good subject for political philosophy’, because
they do not ‘involve very interesting philosophical problems’. Such was
the judgement of Charles Beitz thirty years ago; he himself mentions this
in a recent book on the subject – surprisingly enough – of human rights.1
Beitz’s reversal of position mirrors the wider revival of human rights as
a key topic of philosophical interest.
The publication of John Rawls’s A Theory of Justice in 1971 marked the
renaissance of grand political theorising that assesses social imperatives in
terms of individual rights rather than general utility, historicity or
cohesion of the body politic. With Rawls, fundamental rights became
the crux of political justice – so much so, in fact, that they were sometimes
treated as a special case of normative value, trumping all other political
considerations. Advocates of minimal public intervention such as the
libertarian Robert Nozick thus open their works with the claim that
individual rights are so far-reaching as to cast doubt on the very legitimacy
of the state.2 But social democrats also invoke the idea of rights, arguing
they take rights more ‘seriously’ than anyone else,3 on the grounds that
citizens can exercise these rights to equal opportunity only if they are
guaranteed a measure of independence in the private economic domain.4
However, it is possible to endorse the importance of rights without
believing that they necessarily ‘trump’ other political values. As Amartya
Sen reminds us, ‘taking rights seriously requires us to recognize that it
would be bad – sometimes terrible – if they were violated. This does not
imply that the recognition of a claim as a right requires us to assume that it
must always overwhelm every other argument in the contrary direction
(based, for example, on well-being, or a freedom not included in that
right).’ Sen thus makes the quest for human rights into a never-ending
1
Charles Beitz, A Theory of Human Rights, Oxford, Oxford University Press, 2009.
2
Robert Nozick, Anarchy, State, and Utopia, New York (NY), Basic Books, 1974.
3
Ronald Dworkin, Taking Rights Seriously, Cambridge (MA), Harvard University Press,
1977.
4
Jeremy Waldron, Nonsense upon Stilts, London, Methuen, 1987, p. 156.
25
26 Critiques of Human Rights in Contemporary Thought
discursive process, stressing that ‘the viability of ethical claims in the form
of a declaration of human rights is ultimately dependent on the presump-
tion of the claims’ survivability in unobstructed discussion’.5 Before him,
Jürgen Habermas had also attempted to counter the ‘eclipse of the
democratic process’ effected by the liberal paradigm with his well-
known theory of the common origins of private and public autonomy,
arising respectively from fundamental liberties and political rights. Seen
from this angle, human rights are both the prerequisite and guarantee of
collective debate, which in turn is the only means of ensuring the free
exercise of fundamental liberties taken as a whole.6
The Rebirth of Human Rights in French Political Thought

Since the early 1980s, the corpus of French theoretical works on human
rights has also expanded quickly after a long period of marginalisation in
dominant discourses – especially, though not only, in Marxist thought.7
This philosophical ‘swing’ towards rights in France is not merely
a reproduction of the Anglo-American debate but has a nature of its
own, arising from the social ontology underlying discourses of rights,8
and also as such from the tension between the individualist tenets of rights
and the demands of collective living. The context for this renewed interest
in human rights is well known. The restoration of the individual to pride
of place was above all a legacy of May 1968, which ushered in a wealth of
social movements ranging from women’s rights to gay rights by way of
prisoners’ rights. The new activism and its advocacy for new political
subjectivities called for all-encompassing structuralist and poststructur-
alist attacks on the ‘subject’ to be nuanced ‘. . . during the late 1970s, the
“rebirth of the subject” became an omnipresent topos’.9
The career of Michel Foucault is telling in this regard. While his former
comrade Gilles Deleuze persisted in denying any relevance to the ‘sub-
ject’ and spurning the language of human rights, between 1978 and 1984
5
Amartya Sen, The Idea of Justice, Cambridge (MA), Harvard University Press, 2009, p. x.
6
Jürgen Habermas, Droit et démocratie (1992), trans. R. Rochlitz and C. Bouchindhomme,
Paris, Gallimard, 1997, p. 120.
7
Witnessed by the output of Michel Villey (culminating in his book Le Droit et les droits de
l’homme, Paris, PUF, 1983).
8
Samuel Moyn, ‘The Politics of Individual Rights. Marcel Gauchet and Claude Lefort’, in
Raf Geenens and Helena Rosenblatt (eds.), French Liberalism from Montesquieu to the
Present Day, Cambridge, Cambridge University Press, 2012, p. 292.
9
Richard Wolin, ‘From the “Death of Man” to Human Rights: The Paradigm Change in
Intellectual Life’, in The Frankfurt School Revisited, London, Routledge, 2006, p. 175.
Even an opponent of human rights like Alain Badiou stresses that activism forces us to
retain the philosophical place of the subject against structuralism (Que faire?, dialogue with
Marcel Gauchet, Paris, Philo Éditions, 2014, p. 23).
The Rebirth of Human Rights in French Political Thought 27
the author of Discipline and Punish embraced ever more closely his notion of
the ‘practices of self’, through which a subject transforms and empowers
herself to escape domination at the heart of power relations. Despite this,
Foucault was unrelenting in his critique of humanism and his analysis of
the social production of ‘subjects’ by the imposition of ‘disciplines’
or modes of ‘governmentality’. Whilst stressing the limits of the notion of
the ‘juridical person’, he maintains that the subject enjoys a measure of
liberty in as much as he represents a ‘relationship to the self and the other’
that can take many and varied forms. As an anti-totalitarian thinker,
Foucault prefers to speak of the ‘rights of peoples’ – yet he does not reject
the vocabulary of ‘human rights’.10
The anti-totalitarian movement had been galvanised by the 1974 trans-
lation of Alexander Solzhenitsyn’s Gulag Archipelago, which had an enor-
mous impact in France and made dissidence the key idea of the time.
As Michael Christofferson has argued, it was less the (well-known) con-
tent of the book itself that called French intellectuals to arms than the
French Communist Party’s attacks on its author, and above all the pro-
spect of a communist leadership of the leftist Union assembled by
François Mitterrand for the 1978 elections.11 Combined with the shock
at the discovery of Cambodia’s killing fields and the exodus of Vietnamese
‘boat people’ (which would be reinforced by the Soviet invasion of
Afghanistan and the Solidarnosc protests), these decisive internal political
events led a whole generation of activist intellectuals to treat human rights
as the ‘alpha and omega’ of any political commitment.12
It was at this time that a cohort of young media-friendly intellectuals
such as Bernard-Henri Lévy and André Glucksmann started to appear
on television and in popular press columns, and were rapidly christened
the ‘new philosophers’. The ‘new philosophy’ represented what Julian
Bourg has described as the ‘1970s ethical turn’ or the ‘depoliticizing turn
to ethical dissidence’.13 Cultivating the persona of the anti-state rebel,
these authors – though very different in many ways – converged on
a number of key themes such as the defence of the rights of man, the
rehabilitation of the individual and even the ‘reject[ion of] politics as
10
Michel Foucault, ‘Face aux gouvernements, les droits de l’homme’ (1981) in Dits et écrits,
vol. 4, Paris, Gallimard, 1994, 355, pp. 707–708. See Pierre Sauvêtre, ‘Foucault et le
droit des gouvernés’, Matérialismes, 39, February 2015, pp. 1–8 and Serge Audier’s vast
Penser le ‘néolibéralisme’. Le moment néolibéral, Foucault et la crise du socialisme, Lormont,
Le Bord de l’eau, 2015.
11
Michael Christofferson, French Intellectuals against the Left. The Antitotalitarian Moment of
the 1970s, Oxford, Berghahn Books, 2004, pp. 89–113.
12
Wolin, Frankfurt School, p. 178.
13
Julian Bourg, From Revolution to Ethics: May 1968 and Contemporary French Thought,
Montreal, McGill Queen’s University Press, 2007, p. 237.
such’,14 equating all forms of power with a will to domination whose

logical endpoint is the totally administered world of the Gulag.
It was precisely this ‘moral’ reading of fundamental rights that Claude
Lefort’s seminal article of the late 1970s, ‘Human rights and politics’, set
out to dismantle.15 Born in 1924, and the co-founder (with Cornélius
Castoriadis) of the journal Socialisme ou Barbarie, Lefort was one of the
earliest and clearest-minded exponents of anti-totalitarian thought in
France. Un Homme en trop, published in 1975, is a commentary on the
Gulag Archipelago. But it is clearly political thought that Lefort sets out to
rehabilitate against the temptation of a vulgate that automatically con-
flates power with oppression. Though he recognised the successes of the
new philosophers in giving a wider voice to dissident figures, Lefort
refused to follow them into the trap of a bird’s-eye view. He believed
that such a view reduced the state to a universally oppressive monolith,
thereby also reducing the qualitative difference between democracy and
totalitarianism to a difference of degree and proving the new philosophy
unfit to conceptualise the political institution of collective life.16
Lefort thus underlines that unconditional defence of human rights in
the name of a religion of resistance to all power shares with Marxism ‘a
pure and simple refusal to think about politics’. Beyond the case of the
new philosophers, a common ‘inability to conceive of human rights other
than as individual rights’ prevails both in conservative liberalism (which
reduces law and rights either to a ‘rationalisation’ of ‘property relations’
and ‘power relations’ or to a ‘moral sanctuary’) and in Marx’s early attack
(in On the Jewish Question) on the ‘selfish’ rights of individuals isolated
from their community. Blinded as he was by the liberal reduction of rights
to the specific rights of property owners – whose oppressive results he had
reason to criticise – Marx failed to see that human rights were not merely
a ‘veil’ masking class relations but the arena for a ‘symbolic institution of
society’. Seen from Lefort’s angle, freedom of opinion thus makes opi-
nion not an article of private property but a true ‘freedom of relations’,
a ‘freedom of communication’ which binds the subject to other subjects in
a shared public space.17
14
Ibid., p. 252.
15
Claude Lefort, ‘Droits de l’homme et politique’ in L’Invention démocratique, Paris,
Fayard, 1981, pp. 45–84.
16
At the same time, in his 1979 course on neoliberalism, Michel Foucault (originally
a supporter of Glucksmann) warned against ‘phobia of the state’ and described the neolib-
eral theory of totalitarianism as an ‘endogenous extension of state mechanisms’ as a wrong
turning (Naissance de la biopolitique, Paris, Seuil/Gallimard, 2004, pp. 78 and 196–197).
17
Lefort, ‘Droits de l’homme et politique’, pp. 51–58 and ‘Droits de l’homme et Etat-
providence’ (1984), Essais sur le politique, Paris, Seuil, 1986, pp. 34, 44–46. On this
subject see also Serge Audier, ‘Que reste-t-il de l’antitotalitarisme de gauche? Lefort,
The New Critiques of Human Rights 29
Lefort’s argument is not just that rights conceived as individual attributes

may have collective implications; this would hardly be an advance on the
classic liberal position.18 His theory is that human rights have led to claims
for ‘social rights’ because they have always contained a social meaning –
that of the discovery of ‘a transversal dimension of social relations of which
individuals are the terms; yet social relations both confer identity on
individuals and are produced by them’.19 The emergence of ‘society as
such’ and that of individual rights are the two indissociable sides of invent-
ing a ‘political society’ in the full sense of the term – a society which fully
accepts and works both with its own lack of certainty and with the irredu-
cible diversity of the subjects that combine to make up its complex whole.20
The ‘disentanglement’ of law, power and knowledge that is essential to
sovereignty also makes it inappropriable. The ‘uncontrollable heart’ of
human rights is refracted through a plethora of struggles – for women’s
rights, gay rights, workers’ rights, migrant support associations and so on –
which ‘do not tend to combine’, ‘do not rank themselves under the banner
of an historical actor or a unified people (“Peuple-Un”)’,21 yet are none the
less decisively political for it.
Lefort clearly sees a new relationship with politics in struggles for rights.
The real distinction to be drawn is not between political and moral
demands (indeed, Lefort believes that there can be no pre-political moral
foundation) but rather between individualist and collective interpretations
of human rights – and, within collective interpretations, between those that
either conceive of a people in terms of an imagined ideal of unification or
see society in the full diversity of its subjectivities. It is not the individual as
an ‘owner’ of rights (themselves centred on the right to ownership) that
Lefort sets up against Marx, but rather a conception of democracy as
a regime in which division is ‘constitutive of the very unity of society’.22
The New Critiques of Human Rights

However, this insistence on the democratic aspect of human rights has
been subject to harsh criticism, representing ‘the shadow that is cast by
Merleau-Ponty et la question de la “modernité”’ in Nicolas Poirier (ed.), Cornélius

Castoriadis et Claude Lefort: l’expérience démocratique, Lormont, Le Bord de l’eau, 2015,
pp. 95–108.
18
Moyn, ‘The Politics of Individual Rights’, p. 298. Moyn observes that Lefort’s suppo-
sedly ‘liberal’ turn is still premised on ideas that continue to ‘take Marx seriously’
(p. 299).
19
Lefort, ‘Droits de l’homme et politique’, pp. 71–73 and 65–67.
20
Lefort, ‘La logique totalitaire’ in L’Invention démocratique, pp. 90–91.
21
Lefort, ‘Droits de l’homme et politique’, pp. 64, 76.
22
Lefort, ‘Droits de l’homme et Etat-providence’, pp. 28, 44.
the ascendancy of rights talk in modern political discourse’.23 It is impor-

tant here to dissociate critiques of human rights in themselves from attacks
on the use made of them in contemporary democratic societies.
The first strain of thought here, highly varied in itself, takes issue with
the declarations of the eighteenth century, and beyond this with the very
idea of subjective right, which it alleges is a corruption of the legal con-
cept. We might term this an ‘anti-modern’ stance if we agree with Antoine
Compagnon that anti-modern thinkers, rather than defending a tradition
close to their origins, are in fact perverse ‘moderns’ who have turned
against the modernity that raised them.24 Such critiques, indeed, display
many of Compagnon’s ‘anti-modern’ traits: the themes of counter-
revolution and counter-Enlightenment, deep pessimism at the
predicament of Western societies, a theological pitch and a tone verging
on vitriol. Only the art of the sublime, notable by its absence from
contemporary political thought, remains to complete the picture.
That said, Compagnon too often treats anti-modernity as a mere
aesthetic category lacking in real philosophical or political content.
Rather than defining this substance in terms of a psychological ambiva-
lence that makes the anti-moderns ‘modern despite themselves’ or
‘driven by self-hatred and hatred of the moderns’,25 we should recall
that the notion of anti-modernity designates above all the paradoxical
make-up of a given type of thought. It describes a traditionalist nostalgia
which does not grow out of a living heritage but is defined instead by its
rejection of a notion of modernity against which (starting from which, in
other words) it seeks to define a counter-ideal.26 The so-called anti-
modern strain of thought attempts to deny that social life can viably be
based on a universally shared rational autonomy. Its tell-tale character-
istics are mistrust in the idea of progress, scorn for the social and cultural
‘levelling’ encouraged by egalitarian democracy and dismay at the death
of the sacred that anti-modern thinkers see as the counterpart of rising
individualism and utilitarianism.
A second and very different strain of thought endorses the principles of
liberal modernity but warns against the dangers that human rights may
pose in attaching themselves to it. It especially decries the destructive
effects of the primacy allegedly accorded them in contemporary
23
Waldron, Nonsense upon Stilts, p. 2.
24
Antoine Compagnon, Les Antimodernes. De Joseph de Maistre à Roland Barthes, Paris,
Gallimard, 2005.
25
Antoine Compagnon, ‘Après les antimodernes’, in Marie-Catherine Huet-Brichard and
Helmut Meter (eds.), La Polémique contre la modernité. Antimodernes et réactionnaires,
Paris, Garnier, 2011, p. 13.
26
See Jean-Yves Pranchère, ‘Antimodernité’ in Didier Masseau (ed.), Dictionnaire des anti-
Lumières et des antiphilosophes, Paris, Honoré Champion, 2017, pp. 87–96.
democracies. What we might call the ‘communitarian’ critique by no

means rejects the legacy of the American and French revolutions; rather,
it stresses that ‘individual rights’ today have lost their earlier collective
nature, and that their exponential use and abuse has become one of the
causes and worst symptoms of social dissolution and increasing narcis-
sism. For these authors, then, the moot point is not the legitimacy of
human rights themselves but the question of their potential effects as
a normative concept, and above all as social practice.
Finally, a ‘radical’ critique has grown up which claims to speak for the
modern project conceived as a ‘striving for autonomy’, which must not
stop at the minimum requirement of protecting individual liberties but
lead on towards social forms able to create themselves by blending
together individual and collective autonomy. These critiques are less
concerned with the dangers of social fragmentation than with the ideolo-
gical and disciplinary function of a discourse of rights which they see as
turning their back on the promise of emancipation. According to authors
who espouse this idea, ‘human rights’ are an ‘ersatz’ for the abandoned
ideal of autonomy – the ‘placebo’, we might say, that anaesthetises our
craving for autonomy by satisfying a lesser need. Intersecting in places
with feminist grievances, such arguments also draw on analyses of the
perverse effects of so-called humanitarian politics and the role of organi-
sations for the defence of human rights, as articulated in the field of
international relations, notably by David Kennedy, Stephen Hopgood
or Nicolas Guilhot.27
Though several sophisticated critiques of human rights (or their usage)
agree or echo across these strains of thought, their motivation and aims
are different enough to make it important to resist any conflation.
Equally, however, the categories suggested here must not blind us to
the slippage that often takes place between them. Certain authors, for
instance Pierre Manent, may recast themselves across successive texts as
theological Catholic or communitarian thinkers; others, such as the legal
theorist Martti Koskenniemi, straddle the ‘communitarian’ and ‘radical’
schools of thought.
This overview cannot claim to be exhaustive. Our book does not, for
instance, address critiques made in the name of cultural pluralism which
see human rights as a form of neo-imperialism; instead, it focuses exclu-
sively on internal challenges to human rights, in other words those which
27
David Kennedy, The Dark Sides of Virtue. Reassessing International Humanitarianism,
Princeton (NJ), Princeton University Press, 2004; Stephen Hopgood, The Endtimes of
Human Rights, Ithaca (NY), Cornell University Press, 2013; Nicolas Guilhot,
The Democracy Makers. Human Rights and the Politics of Global Order, New York (NY),
Columbia University Press, 2005.
arise from the heart of liberal modernity – which is not, we might add, the
exclusive preserve of so-called Western culture.28 We shall also only deal
in passing with the vast literature that has grown up around attacks on the
‘international human rights regime’ and its evolution since the late 1970s,
culminating in the 1990s.
Similarly, we shall not be discussing in any detail critiques which argue
against extending definitions of rights beyond the fundamental liberties
outlined in 1789. Maurice Cranston, for instance, has argued that eco-
nomic and social rights cannot be subsumed under the broader umbrella
of human rights, on the grounds that reducing rights to a ‘mere ideal’ is
the surest way of sabotaging any endeavour to protect human rights.29 All
rights have attendant duties, and the criterion for identifying them is that
of practical viability. Civil and political rights, according to this argument,
must be implemented since it is ‘not costly’ to establish them: all they
require is a lack of state interference, whereas economic and social rights
involve a capacity for action.
This is a recurring theme in neoliberal and neo-conservative writing.
In a 1978 attack on Jimmy Carter’s presidency, the neo-conservative
essayist Irving Kristol warned against ‘the human rights muddle’. While
agreeing that human rights ‘properly called’ did exist, as did purely ‘civil’
rights translating into prohibitions on genocide, torture and ‘restrictions
on emigration rights’, Kristol refused to accept that the absolute nature of
such rights could be carried over to the political and social rights
encompassed under the banner of ‘human rights’. Beyond the minimum-
requirement basic rights, he explained, the rule of law arises not from an
unconditional demand for universal rights but from the ideal of a ‘limited
government’, which in turn creates the greater part of individual rights.
Because it precludes further extension of the state, this ideal concurrently
precludes maximisation of rights.30
Several authors have argued against this distinction between ‘true’
human rights and otherwise, stressing that the gulf between the eight-
eenth-century declarations and that of 1948 must not be exaggerated. It is
true that the radically new idea of the 1948 Declaration compared to its
predecessors lies less (as Moyn points out) in the move from texts firmly
rooted in the nation-state to a twentieth-century appeal to common
28
The juridical positivism at the heart of liberal modernity should not be understood as
a critique of human rights. This has been demonstrated by Michel Troper, ‘Le positi-
visme et les droits de l’homme’, in Bertrand Binoche and Jean-Pierre Cléro (eds.),
Bentham contre les droits de l’homme, Paris, PUF, 2007, pp. 231–247.
29
Maurice Cranston, ‘Are There Any Human Rights?’, Daedalus, 112 (4), 1983, pp. 1–17.
30
Irving Kristol, ‘The Human Rights Muddle’ (1978), Reflections of a Neoconservative:
Looking Back, Looking Ahead, New York (NY): Basic Books, 1983, pp. 266–269.
humanity beyond borders, and more in 1948’s introduction of economic

and social rights – the rights to work, to education, to fair pay and so on.31
Yet even in the French debates of 1789–1793, questions as to whether the
rights of man might not in themselves also contain the rights to work and
state assistance32 had foreshadowed the idea of ‘social rights’, in embryo-
nic form at the very least.
Above all, we must challenge the idea that respect for fundamental
freedoms requires nothing but the absence of constraint: the right to
religious freedom or the right to life, for instance, certainly do demand
positive action on the part of the state.33 Reserving the status of a ‘human
right’ for civil and political (and not economic and social) rights means
‘draw[ing] a line in the sand that is hard to sustain’.34 Even an advocate
of the minimal state like Karl Popper had to recognise that the neoliberal
antithesis between rights-as-freedoms and rights-as-claims (or social
rights) fell down on the fact that rights-as-freedoms are themselves also
claims.35 All rights, whether first- or second-generation, come at
a ‘cost’36 – and indeed we might interpret ‘rights-as-claims’ as the out-
come of the ‘right to life’ proclaimed in the American Declaration of
Independence. They are nothing but the right to enjoy the conditions for
liberty: in other words, the rights to liberty or to rights-as-liberties. This
is why Philippe Van Parijs has demonstrated the logical requirement for
social rights premised on libertarian principles.37
This puts the neoliberal critique of human rights in a tight corner: if
they take individual rights seriously, its exponents must either extend
these into social rights or boil them down to the variable functions of
a ‘market order’ that is synonymous with a communitarian system built
on the particular merits of its actors (business and competition culture,
respect for contracts, meritocracy and so on). In short, when neoliberal-
ism engages in a true critique of human rights, its argument becomes
31
See Georges Gurvitch, La Déclaration des droits sociaux (1943), Paris, Dalloz, 2009.
32
See Marcel Gauchet, La Révolution des droits de l’homme, Paris, Gallimard, 1989, p. 231
sq. and Robert Castel, Les Métamorphoses de la question sociale, Paris, Fayard, 1995, p. 107
sq. The theory of a ‘right to work’ was ousted, but the ‘right to assistance’ led to the law of
19 March 1793: ‘every man has the right to the means of his existence through work if he
is able; or to assistance free of charge if he is unable to labour’.
33
Waldron, Nonsense upon Stilts, p. 157. 34 Sen, The Idea of Justice, p. 456.
35
Karl Popper, ‘Observation sur la théorie et la pratique de l’Etat démocratique’ (1988), La
Leçon de ce siècle, trans. J. Henry and C. Orsoni, Paris, Anatolia, 1993, pp. 114–121. For
a deconstruction of the opposition of ‘rights-as-freedoms’ and ‘rights-as-claims’, see
André Tosel, Démocratie et libéralismes, Part I, Paris, Kimé, 1995, and Jacques Bidet,
John Rawls et la théorie de la justice, Paris, PUF, 1995.
36
Stephen Holmes and Cass R. Sunstein, The Cost of Rights. Why Liberty Depends on Taxes,
New York (NY), Norton, 1999.
37
Philippe Van Parijs, Qu’est-ce qu’une société juste? Paris, Seuil, 1991.
indistinguishable from other critiques that decry the damaging effects of

rights on social cohesion. There is of course an inflection of this argument
that is unique to neoliberalism: that human rights endanger not the power
of a collectivity but rather the social structure that permeates an anon-
ymous market order, which demands that its competing actors fully
internalise the legitimacy of social inequality and business hierarchies.
Yet as we shall see in Chapter 2, this defence of social order – which
promotes a paradoxical sort of ‘market civicism’ – easily starts to dovetail
with a conservative agenda. The leading critiques of human rights in
contemporary political thought moreover make no distinction between
the two supposed categories of rights (rights-as-liberties and social
rights). What they reject is not the idea of economic and social rights in
particular; it is either the idea of ‘human rights’ itself or the consequences
of its ascendancy at the expense of social cohesion.
These limits on the remit of our investigation aim to focus attention on
the critiques that see human rights (or their uses) as a threat to the cohesion
of the democratic model. However, we do not intend to add to an already
vast body of literature on the relationship between representative democ-
racy and judicial review. As Waldron has shown, it is perfectly possible to
champion the primacy of fundamental rights without necessarily assuming
that it is the job of the courts to interpret human rights and how they should
evolve in response to social developments. Waldron followed up on his
response to human rights critiques38 with a series of essays taking a stand
against the practice of judicial review. In these, he argues that where
citizens or their representatives disagree on the subject of rights, it is an
‘insult’ to hand over the ensuing dispute resolution from a majoritarian
process to a small coterie of judges who ‘disagree among themselves along
exactly the same lines as the citizens and representatives do’.39 Though
these two lines of attack – on the primacy of human rights and the role of
the judiciary – often merge together, they remain conceptually distinct.
The defining belief of the theorists we discuss here is that the contem-
porary consecration of human rights above all else – not simply the fact of
their interpretation being entrusted to the judiciary – encroaches on the
democratic idea. The idea of ‘democracy’ itself, meanwhile, is of course
a very different thing for a theorist who espouses the Aristotelian concept of
a just society, one who harks back to the American republic of the founding
fathers, or a Marxist advocate of radical emancipation. Yet this takes
nothing away from the fact that all contemporary critiques of human rights
cast themselves as proponents of democracy in one form or another.
38
Waldron, Nonsense upon Stilts.
39
Jeremy Waldron, Law and Disagreement, Oxford, Oxford University Press, 1999, p. 15.
The Anti-modern Critique (1): Human Rights and Destruction 35
The Anti-modern Critique (1): Human Rights and

Destruction of the Just Order
We can break the ‘anti-modern’ critique down into two strands, with one
more important conceptually than the other. The first and by far the more
developed emerges from religious thought, and sees the consecration of
individual rights as the necessary outcome of a derailed Christian theol-
ogy that tramples on the idea of justice. The most powerful statements of
this view can be found in the work of the leading representative of the
radical orthodoxy, John Milbank, who builds on the arguments pre-
viously developed by the French theorist Michel Villey and the Scottish
philosopher Alasdair MacIntyre. These authors all see human rights, and
beyond them liberalism as a whole, as the offspring of a decadent theol-
ogy. In their view, the rise of nominalist theology in the fourteenth century
and its radical tenets – first articulated by Ockham then explored further
by the ‘Christian heresiarchs’ Hobbes and Locke40 – are the source of the
liberal destruction of the proper understanding of law. Liberal modernity,
according to this argument, means rejecting an original Christian belief
that the dignity of the person goes hand in hand with a form of common
good founded on the ties between created and creation, to which indivi-
dual rights must always be subordinate. Modern theology has abandoned
this belief to see law not as translating the just order of the world, but
instead as the expression of a will or order emanating from a higher
authority. This, such authors believe, is why theology has led the way
towards absolute rights of the self-possessing individual on the one hand,
and tyrannical rights of the sovereign on the other.
‘Subjective right’, based on the sovereignty of will, overturns the very
idea of law as a quest for justice in multilateral human relationships. Law
for Aristotle meant ‘the just proportion of things distributed across mem-
bers of a political group’;41 the content of laws, meanwhile, was to be
found by observing social realities and setting different stances on legal
matters against each other. In Villey’s view, this is tantamount to saying
that law cannot proceed exclusively from man’s intrinsic nature:
‘Whether or not one knows it, using the word “law” means talking
about a relationship. How are we to draw out a relationship encompassing
plural terms from a single term: man?’42 Law comes into being only in
objective situations, not through subjective claims. The relationship
between parents and children is a prime example here, with their respec-
tive rights and duties translating a relational system. In short, there is no
40
John Milbank, ‘The Gift of Ruling: Secularization and Political Authority’, New
Blackfriars, 85 (996), 2004, p. 222.
41
Villey, Le Droit et les droits de l’homme, p. 54. 42 Ibid., p. 154.
such thing as subjective rights, and to espouse them according to

MacIntyre is akin to ‘belief in witches and unicorns’.43
This twisting of the idea of law by claims to individual rights emerges
clearly in the contradictions inherent in human rights, each of which
negates another: the right to freedom of contract contradicts the right to
work, the right to life opposes the right to abort, parents’ right to work
may clash with their children’s right to education and so on.44 The result
is that claims to rights dash headlong into a murky terrain that gives rise to
illusory ideas and claims that cannot be satisfied. In this sense, the
emergence of human rights may be interpreted as the most visible symp-
tom of Enlightenment thinkers’ failure to equip themselves with a rational
foundation – what MacIntyre describes as the ‘incommensurability’ of
contemporary debates.
This is well illustrated by the abortion dilemma, which traces the full
circle of attacks made on the insoluble nature of demands to conflicting
rights. On the basis that each individual holds the rights over his or her
own person and therefore body, we may say that it is the mother’s decision
whether or not to abort. Yet since I cannot wish that my own mother had
aborted, how can I reasonably deprive others of a right to life that I claim
as my own? The worrying aspect of this in MacIntyre’s view is not that
such debates arise or even that they remain unsolved, but that the pre-
mises of the conflicting positions mean that a conclusion will never be
reached. Competing claims for the rights of different individuals – in this
case the right to life of a foetus on the one hand, and a woman’s right to
exercise control over her own body on the other – leave no room for
debate, mediation or rational decision-making. This, in views such as
MacIntyre’s, is the source of the vehemence or even violence with which
rights are often claimed in contemporary societies.45
Today, Milbank is pursuing this two-stranded interpretation to attack
the incoherence of Jacques Maritain’s ‘pseudo-synthesis’, which
attempts to reconcile Classical-era ideas of the just society with the
rights of the person.46 This does not hold true, because if a subjective
right originates in a just order it cannot by definition be driven by a single
isolated human will.47 Milbank thus opposes both those who see human
rights as the logical endpoint of Christianity and the official position of
43
Alisdair MacIntyre, After Virtue: A Study in Moral Theory, Notre Dame (IN), Notre Dame
University Press, 1981, p. 69.
44
Villey, Le Droit et les droits de l’homme, p. 154. 45 MacIntyre, After Virtue, p. 71.
46
Jacques Maritain, Christianisme et démocratie suivi de Les droits de l’homme (1942), Paris,
Desclée de Brouwer, 2005.
47
John Milbank, ‘Against Human Rights: Liberty in the Western Tradition’, Oxford Journal
of Law and Religion, 2012, pp. 1–32 (advance access published 13 January 2012).
Accessed 21 February 2013, p. 28.
the church – which between the end of the nineteenth century and the
mid-1970s gradually moved from determined opposition to the princi-
ples of 1789 towards full ‘moral support’ for the 1948 Declaration – and
interprets the emergence of human rights as a ‘historical anomaly’ in
view of Western principles. Arguing that ‘true democratic liberties’ grow
out of long-term sedimentation of organic customs and developments of
the sort championed by Edmund Burke, Milbank sets out to demon-
strate that the ideology of human rights is no guarantee of respect for
human beings and is inseparable from a neoliberal system that he has no
hesitation in describing as ‘totalitarian’.
Similarly, how is respect for the dignity of the person to be achieved if
we see the ‘rights’ that are meant to guarantee it as a subjective posses-
sion? Those who claim that the dignity of the person can be protected by
sheltering behind the concept of inalienable rights miss the complex
dialectic between rights and alienability. William of Ockham founded
the paradigm of subjective rights on the free use of one’s own property,
a concept that has held ever since. But this right to ‘inalienable’ ownership
is paradoxically defined by its absolute alienability. Something that is
owned in an ‘inalienable’ sense may be unconditionally transferred or
sold, whereas an alienable possession – held in certain conditions on the
basis of bonds formed by mutual recognition – cannot be freely yielded or
exchanged in any given circumstances.
If the prohibition on torture rests on the idea that human beings ‘own’
their own body, the liberal state may always claim exceptions in the name
of majority rights, and so strip the person concerned of his or her rights –
as in the case of the anti-terror measures in place today. The only certain
way of preventing torture, Milbank writes, is in fact to posit that there is
a value that is intrinsic to the person by virtue of the fact that he is
conceived in the image of God: ‘Torture may be often be carried out by
religions, but only a genuine religion, not liberalism, can provide
a rationale to stop torture.’48 In the same way, there can be no valid
truth without free consent – a concept that according to Milbank is
found only in Judaism, Christianity and Islam.
Furthermore, in conceiving of ‘one’s’ rights as properties, forgetting
that duties towards the other are the ‘intimate reality’ of these rights, we
risk transforming what appears to be the conquest of individual dignity
into new types of oppression. This is true of the idea that only women
have rights over the foetus, which could induce ‘men as men’ to exercise
their implied equivalent right to have no role in their children’s
education.49 In upholding the necessary connection between rights and
48
Milbank, ‘The Gift of Ruling’, p. 236. 49
Milbank, ‘Against Human Rights’, p. 28.
duties, the Middle Ages were paradoxically more conducive to the

development of children’s rights than the modernity we know today,
based as it is on the paradigm of a rational, free and autonomous indivi-
dual. Beyond the case of women and children, taking the idea of an
abstract individual reduced to sheer will too far paradoxically (in this
argument) hinders rather than helps in protecting human beings who
are each seen as specific and unique, and as integral parts of the network
of human relationships they create.
Individual rights and absolutism, though commonly believed to stand
in opposition, are in fact – as stated by Hobbes – inextricably linked.
The politics of human rights also ties in with a form of increasingly
arbitrary will which is not the expression of a balanced choice but merely
a ‘will to will’.50 As Villey had already observed, endorsing Marx’s early
critique on this point, the ideology of human rights is closely bound up
with ‘capitalist economics’;51 the only ‘serious’ rights are those of the
capitalist entrepreneur. Milbank radicalises this point by linking the
success of human rights with the growth of a totalitarian neoliberalism
in two directions: open-ended extension of the market beyond political
control, and the emergence of a ‘market state’ that re-evaluates politics as
a means of meeting the demands of citizens seen as consumers. In this
view, failing a return to its original grounding in the Christian conception
of limits, the West has little choice between the model of a Chinese-style
authoritarianism at one extreme and that of a Latin American mafia at the
other – unless, of course, the two were to combine as in the ‘diabolical
Russian synthesis’.52
This line of thinking sees the recent recognition of same-sex marriage as
confirmation of the expansion of liberal totalitarianism. For Milbank,
same-sex marriage has nothing to do with respect for gay people; rather,
by breaking the ‘natural’ link between sex and procreation, it paves the
way for marketisation and quasi-eugenic control of birth, and debases the
parent–child relationship into a narcissistic projection. He sees this as
a glaring example of ‘biopolitical tyranny’,53 which exploits the universa-
lisation of rights to destroy the family on the grounds that it is the fore-
most social institution likely to intervene in the direct relationship
between individual and state. The more human rights come to act as
50
Here we see once again a notion outlined by Heidegger in the blanket critique of
modernity that followed the disillusionment of his Nazi sympathies: see
Martin Heidegger, ‘Overcoming Metaphysics’, in The End of Philosophy, trans. Joan
Stambaugh, New York (NY), Harper & Row, 1973.
51
Villey, Le Droit et les droits de l’homme, p. 152.
52
Milbank, ‘Against Human Rights’, pp. 4–5.
53
John Milbank, ‘The Impossibility of Gay Marriage and the Threat of Biopolitical
Control’, www.abc.net.au/religion/article/2013. Accessed 12 November 2014.
the normative basis for all politics, Milbank believes, the more they will
drive the transformation of neoliberalism into a kind of totalitarian capit-
alism which abandons ‘democracy’ in the name of liberty and efficiency.
These are the grounds on which Milbank believes that Samuel Moyn’s
analysis – which sees the emergence of human rights as a sort of anti-
political utopia – underestimates the truly political dimension of the new
international human rights discourse. Human rights are in fact still bound
up with the political, but politics are at the same time becoming more and
more international, moving towards the creation of a new entity that
accepts liberty as far as it responds to political needs, yet erodes democ-
racy understood as a plurality of specific and unique associations.
It seems we are to understand this conception of ‘democracy’ (which is
not explored in much depth) as a political body founded on the principles
of distinction, corporation and cooperation. First, distinction, since
majority rule must be balanced by the ‘aristocratic’ face of the concern
for truth and virtue as ends in themselves, and by a sense of justice
sheltered from mass prejudice, as happened with the ‘legitimate abolition’
of the death penalty. Second, corporation, meaning that a people is not
merely an aggregation of abstract, isolated individuals, but a body of
human beings integrated in groups larger than themselves: professions,
cultures or faiths, for instance. In Milbank’s view, integrating Muslims in
European societies would therefore mean governments taking Islam ser-
iously as a political body and not merely a nebulous mass of individual
believers – a conception that would be foreign to Islam itself. Finally,
cooperation, by promoting a dense fabric of associations of local produ-
cers and consumers which would encourage the growth of an alternative
market based on the ethical value of any transaction. However, beyond
this it is clear that the ultimate justification of democracy must be
a theological one: if truth is distributed among the people (even if guided
by a virtuous elite), this is because the Holy Spirit speaks through all its
members.54
We may be doubtful as to whether the name ‘democracy’ really applies
to such a determinedly organic, hierarchical and theological vision of
society. Anti-modern thinkers, as Antoine Compagnon observes, ‘carry
the cross’ of democracy since they dare not revolt against it.55 We would
add that because of this, anti-moderns also tend to avoid thinking about
democracy in its own right and in the essence of its demands, the first
54
John Milbank, ‘How Democracy Devolves into Tyranny’, www.abc.net.au/religion/arti
cles:2010. Accessed 12 December 2014. On this ‘theocratic’ facet of democracy, see
Rémi Brague, ‘Are Non-Theocratic Regimes Possible?’ Intercollegiate Review, Spring
2006, 41.
55
Compagnon, Les Antimodernes, p. 37.
being freedom of conscience. It is telling that John Milbank is not

interested in the real history of the idea of human rights: he does not
consider that the late eighteenth-century declarations might be irreduci-
ble to their remote historical origins, or that their meaning must be sought
above all in the novelty of their emergence and in the debates and con-
flictual appropriations that forged them. Like Villey before him, Milbank
takes it as given that the philosophy of Hobbes and Locke – who never use
the expression, however – furnishes the idea of human rights with its
meaning. He gives no more justification for his omission of the other
source of the liberal democratic idea in Spinoza’s thought, which is by no
means a philosophy of the all-powerful will or the isolated individual.
Milbank’s entire critique is premised on a highly questionable thesis (we
shall see why in Chapter 2): that neoliberalism and human rights share
a common genealogy.
The Anti-modern Critique (2): Human Rights against

Politics
Another movement that we may describe as ‘anti-modern’ also rejects the
very principle of subjective right, following the outlines of Julian Freund’s
contentions about the unique nature of the political domain and (going
further back) those of Carl Schmitt on the contradiction between a liberal
conception of law and the political concept of democracy.56
Schmitt’s ‘official’ editor and commentator in France, the Christian
thinker and ex- Resistance member Julien Freund – who pursued doctoral
studies under the supervision of Raymond Aron – surely did not believe in
all the neo-pagan theories of the ‘Nouvelle Droite’ (New Right) that
attracted him in later life. It nevertheless seems misplaced to describe
him (as does Pierre-André Taguieff) as a ‘liberal-conservative’, even
a ‘dissatisfied’57 one, without badly denaturing the concept of liberalism:
Freund’s work evinces the same hostility as Schmitt’s towards the depo-
liticising logic that he believes is behind individualist liberalism.
Freund sees the very idea of subjective right as ‘absurd’ since law can
apply only to a plurality; in other words, it can only apply to individuals in
so far as they stand in mutual relationships to other individuals within
a given society.58 In this sense, the ‘subjectivist delirium’ arguably run-
ning through societies today stands witness to a corruption of law that is
intrinsically ‘a measure, that is a principle of social regulation, and not the
56
See Chapter 6.
57
Pierre-André Taguieff, Julien Freund. Au coeur du politique, Paris, La Table Ronde, 2008,
p. 128.
58
Julien Freund, Politique et impolitique, Paris, Sirey, 1987, p. 285.
The Anti-modern Critique (2): Human Rights against Politics 41
legitimation of irregularities, excesses and disorder’.59 Freund believes

that subjectivism indicates the perversion of a law diverted from its object
in order to justify the deregulation of arbitrary desires.
The ‘Nouvelle Droite’ ideologue Alain de Benoist, meanwhile,
reworked these fragmentary observations into a more systematic attack
on human rights. In an incongruous hotch-potch calling on Marx and
Gauchet by way of Villey, Manent and of course Freund and (above all)
Schmitt, Benoist sets out to decry the loss of what he sees as the European
legacy of an objectivity principle. While this principle is always reached
from the starting point of something particular, the ideology of human
rights in Benoist’s view claims to apply to all regardless of group belong-
ing, tradition and context. Human rights discourse according to this
argument is an ideological weapon of globalisation and merely renders
the untenable image of a society reduced to a mere mass of individual
atoms, each equally driven by the rational betterment of their own
interest.
So far, this attack on human rights is hardly new. Where the second
anti-modern movement departs from the first is with the idea, clearly
borrowed from Schmitt, that human rights are a sort of denial of the
political, an ‘impolitical’ matter to quote Freund. Freund defined the
‘impolitical’ as a way of doing politics without acknowledging its
specificity, its spirit and vocation, flouting its imperatives of organisa-
tion or protection of human beings within a given society. The
‘impolitical’ means that which ‘contravenes intelligence and cogency
in political action, or which debases the spirit and vocation of
politics’.60
In this regard, the impolitical must not be confused with the non-
political (that which simply falls outside the political domain), or with
the antipolitical (rejection of the political). Rather, it designates a lack of
judgement or cogency in implementing political action. Though Freund
mentions the ‘impolitical of human rights’ only in a reconstructed inter-
view published after his death,61 the idea that human rights evince a form
of degeneracy consisting in ‘mixing up powers’ would seem to tally with
his thought. Just as issues of economics, pedagogy or justice cannot be
resolved by politicising them, democracy is corrupted when it ceases to be
a process of attributing power and becomes a process of democratisation,
that is, an open-ended extension of the democratic function into non-
political domains of human activity.
59
Ibid., p. 316. 60 Freund, Politique et impolitique, p. 1.
61
Conversation with Julien Freund, http://grece-fr.com/?p=3510. Accessed 17 December
2014.
As a political (not social) regime, democracy is founded on the

existence and validity of a given authority which as such restricts the
boundaries of the political to dealing exclusively with citizens defined by
belonging and specific capacities (those of a given political community).
Yet if everything becomes political, there is no politics in the true essence
of the term; we lose any sense of direction amidst the ‘deluge’, ‘starting
with the meaning of the word politics’.62 Benoist continues this argu-
ment, arguing that this is the downfall of human rights theory which
recognises only abstract, private individuals (here he joins others in
paying tribute to Marx’s foresight), extracted from their historical context
and obeying only the laws of morals and economics. Human rights theory
is thereby divorced from both politics and democracy, rallying not only
against one particular kind of despotism but against democracy itself and
ultimately against politics in any form.63 Twenty years earlier, Freund
had already argued that what defined the situation of his time was ‘the
hostility or even hatred for politics as an concept and organising activity of
society’.64
Depoliticising it may be, but the logic of human rights is no less likely to
give rise to war. The French Revolution had hardly proclaimed the rights
of man before it led towards war and the Terror. Schmitt, too, decried the
politicisation of the idea of humanity as an ideological tool of expansion
by force, or in its ethical and humanitarian forms as a specific vehicle for
economic imperialism.65 Benoist reprises this view verbatim, adding
Freund’s prediction that human beings might well one day fight ‘in the
name of equally commendable conceptions about human rights’.66
The novelty of this prediction masks a strange paradox: that it disqua-
lifies human rights in the same gesture as a process of depoliticisation
(supposedly diluting democracy into non-conflictual areas of economics,
culture and morals) and politicisation (human rights allegedly invest non-
political spheres such as education with the conflictual practices of
political democracy). The idea that ‘nothing is political when everything
is political’ does not resolve this paradox. It is one of the principles of
Schmitt’s conceptualisation, used by Freund and Benoist, that the poli-
tical ‘does not designate an exclusive area of activity but only the degree of
intensity of an association or dissociation of human beings whose motives
may have to do with religion, nationalism (in an ethnic or cultural sense)
62
Freund, Politique et impolitique, p. 204.
63
Alain de Benoist, Au-delà des droits de l’homme, Paris, Krisis, 2004, p. 34.
64
65
Carl Schmitt, The Concept of the Political (1927), trans. George Schwab, Chicago (IL),
University of Chicago Press, 2007, pp. 78–79.
66
The Communitarian Critique (1) 43
or economics, amongst other things’.67 Defined like this, it is difficult to

see how a process of politicisation can as such be depoliticising.
The Communitarian Critique (1): The Ascendancy of

Rights and the ‘Good Life’
If attacks on human rights in themselves remain relatively marginal, the
primacy allegedly accorded to individual rights – over and above bonds of
group belonging and loyalty that integrate the citizen into a political
community – has been subject to sustained criticism for at least three
decades both in Anglophone political thought and French political
theory. Compared with the objections to human rights examined in the
previous section, the defining feature of these criticisms is that they high-
light the alleged domination of human rights in contemporary political
cultures with an argument that originates in the heart of modernity itself.
For so-called communitarian or civic republican writers, as well as
some legal theorists,68 the theory of human rights ascendancy neglects
the involvement and contextualisation that define human existence, and
takes root in an abstract conception of individuals as mere vessels for
rights.69 Pushed to its logical endpoint, this critique comes close to seeing
appeals to individual rights as the symptom of our failure to establish
virtuous institutions driven by a sense of common good. The argument
appears to be that if we shared common goals and were bound together by
real affective bonds, we would have no real need for rights. Michael
Sandel thus cites the example of the family as the blueprint of an institu-
tion based on shared meanings and objectives, rather than only on duties
and obligations.70 We should point out in passing that this argument
strangely idealises the traditional communitarian family, shaped not by
affection so much as the preservation and transmission of a legacy. In fact,
the family based on emotive ties rather than on the need for reproduction
67
Schmitt, The Concept of the Political, p. 79.
68
This type of neo-republicanism has little in common with the republican strand which, in
the vein of Phillip Pettit, fully acknowledges the moral individualism and ethical plural-
ism of modern society even while focusing on the concrete conditions for rights to be
effective more than the liberal paradigm does. See Cécile Laborde and John Maynor
(eds.), Republicanism and Political Theory, Oxford, Blackwell, 2008, pp. 15–17.
69
See especially Amitai Etzioni, The Spirit of Community: Rights, Responsibilities and the
Communitarian Agenda, New York (NY), Crown, 1993; Michael Sandel, Liberalism and
the Limits of Justice, Cambridge, Cambridge University Press, 1982 and Democracy’s
Discontent. America in Search of a Public Philosophy, Cambridge (MA), Harvard
University Press, 1996; Theodore Pangle, The Ennobling of Democracy: the Challenges of
Post-Modern Ages, Baltimore (MD), Johns Hopkins University Press, 1992.
70
Sandel, Liberalism and the Limits of Justice, p. 33.
or the brutality of power relations is a result of the rise in awareness of

rights and of their extension to the domestic sphere.
However, the ‘communitarian’ critique does not for the most part
attack the idea of human rights in itself, recognising that it has histori-
cally been an emancipating force both at the national and international
levels. However, what it does question is the new direction supposedly
taken by human rights discourse over the past five or six decades, which
it argues has led to a ‘colonisation’ of contemporary political culture by
a language exclusively focused on the prerogatives of the individual.71
The attack targets a particular dialect of this language (what it calls
‘rights talk’) that has shifted the centre of gravity, both in legal decision-
making and political discourses, towards defence of individual liberty at
the cost of all else.
Michael Sandel places the turning point in legal precedent at the start
of the 1940s, when the US Supreme Court radically changed its view of
the relationship between civil liberties and community membership from
one decision to the next. Sitting in 1940 on the case of two children
expelled from school because they had refused to salute the national
flag, the Court threw out the plaintiffs’ claims, ruling that demanding
allegiance to the flag was ‘a legitimate way of cultivating the communal
identity of its citizens’ and fostering ‘that unifying sentiment without
which there can ultimately be no liberties, civil or religious’.72 However,
in a similar case three years later the Court annulled the principle of
compulsory salute, stating that ‘the very purpose of a Bill of Rights was
to withdraw certain subjects from the vicissitudes of political contro-
versy’. In a concurring opinion, Judges Black and Douglas added that
(in Sandel’s words) ‘patriotism would be a matter of choice, not of
inculcation, a voluntary act by free and independent selves’; the court
ruling stipulated that ‘love of country must spring from willing hearts and
free minds, inspired by a wise administration of free laws enacted by the
people’s elected representatives within the bounds of express
constitutional prohibitions’. With this decision, Sandel writes, ‘the pro-
cedural republic had arrived’.73
Sandel sees signs of this development in several other areas, including
freedom of speech where, following an initial distinction between ‘high-
value’ and ‘low-value’ discourses worthy of protection or not as the case
71
Martti Koskenniemi, ‘The Effects of Rights on Political Culture’, in Philip Alston (ed.),
The EU and Human Rights, Oxford, Oxford University Press, 1999, p. 99.
72
Minersville School District v. Gobitis, 310 US 586 (1940), cited by Sandel, Democracy’s
Discontent, p. 53.
73
West Virginia State Board of Education v. Barnette 319 US. 624 638 (1943) cited by
Sandel, Democracy’s Discontent, p. 54.
might be, the Court came round to a different view in the 1970s and
1980s: that while the government might on occasion have legitimate
reason to regulate freedom of speech, any valid restriction must be
based not on evaluation of a discourse in itself but only on its nature as
the result of choices freely and voluntarily made.
We might almost call this line of thought ‘teleological’. In fact, it
challenges less the importance of rights than the possibility of identifying
and justifying them outside the framework of a conception of the good
life. The new culture of rights today is thus described as overly legalist and
formalist. Exponents of this view maintain that approaching social issues
in terms of individual rights obscures the fact that people in real societies
must deal with demands and constraints – of religion, ethical behaviour,
excellence, national belonging and so on – which are not translatable into
a language of rights.74 Escape from the ‘tragedy of incompatible and
contested goods’ comes at the price of a bureaucratisation of the political
arena which now aims to provide nothing beyond aggregate utility –
‘paradoxically precisely the outcome that rights discourse originally
sought to combat’.75
It is important here, of course, not to confuse authors who appear
almost to advocate a kind of renewed ‘moral community’, organised
around a substantive conception of the good life, with those who define
democratic politics precisely as a stand-off between competing visions of
equality and liberty.76 The two do hold one grievance in common, how-
ever: that the ascendancy of rights today goes hand in hand with impov-
erishment of the political domain, stripped of its ethical, creative and
imaginative dimensions to make way for a purely technical organisation of
legal powers.
Furthermore, in this view, today’s culture of rights must be seen as
absolutist. The formidable power of human rights rhetoric lies in their
Janus-faced nature: though purportedly ahistoric and universal, they can
in fact find real meaning only once implemented in the context of
a domestic constitution. Hence also their ambivalence: the more funda-
mental rights are presented as a criterion external to the political com-
munity, the further we move towards a form of theology that takes us
away from the exercise of popular sovereignty. According to Martti
Koskenniemi, therefore, we have a dilemma: either we embrace a small
kernel of fundamental rights in the guise of ‘taboos’ – at the risk of
becoming mired in interminable debates between the ‘right to life’ and
74
Koskenniemi, ‘The Effects of Rights’, p. 103. 75 Ibid., p. 114.
76
On this distinction see Chantal Mouffe, The Return of The Political, London, Verso, 1993,
2005, pp. 32–33. We could place Sandel in the first group, while Koskenniemi is more in
the second.
the ‘right to private life’, or between the ‘right to liberty’ and the ‘right to
security’ – or we accept that rights are indissociable from a politics
increasingly reduced to mere procedural tussles and competing jurisdic-
tions. Indeed, once any group can table its demands in the form of rights
to be satisfied, the conflicts generated by such ‘proliferation’77 can no
longer be resolved in a reasoned, balanced way in view of the common
interest. This dovetails with Mary Ann Glendon’s diagnosis: that the
current tendency to describe any controversy in terms of a struggle over
rights precludes compromise and encourages unrealistic expectations
with no regard for the social costs these incur.78 Translating every desire
into a right is a recipe for a contentious society defined by an imbalance
between rights and responsibilities.79
This is also the source of another criticism of a ‘politics of rights’: that it
undermines people’s civic sense and makes citizens into passive, selfish
consumers of individual rights. According to this argument, the rhetoric
of rights forgets that individual autonomy also emerges from the context
in which an individual lives, and thus becomes indissociable from a kind
of ‘therapeutic sensibility’ as described by Christopher Lasch at the end of
the 1970s.80 Lasch holds that this sensibility places individual fulfilment
above all else, aiming for short- rather than long-term gratification, mana-
ging crises rather than forestalling them, and prioritising particular inter-
ests over the common good. The original conception of the American
Republic and the proper meaning of the initial declarations has thereby
been lost:
‘Rights in the current American dialect are the expression of desires the
drafters of the Bill of Rights viewed with suspicion – to be completely free,
to possess things totally, to be treated justly without being asked to act
justly.’81
The Communitarian Critique (2): Democracy Turning

against Itself
In a similar way – though without the extensive reference to international
debates discussed earlier – certain strands of French thought have voiced
increasing criticism of the new pre-eminence granted to human rights
over the last three decades. This may seem paradoxical given the compet-
ing thesis, advanced by some outside observers, of a conversion to
77
See also Carl Wellman, The Proliferation of Rights, Boulder (CO), Westview Press, 1999.
78
Mary Ann Glendon, Rights Talk. The Impoverishment of Political Culture, New York (NY),
The Free Press, 1991.
79
Etzioni, Spirit of Community, p. 6. 80 Glendon, Rights Talk.
81
Glendon, Rights Talk, p. 173.
liberalism during the 1980s in France after the anti-liberalism of the

1960s. In fact, the ‘zenith’ of human rights claims in France precisely
coincided with the moment when some of the intellectuals who had been
among the harshest critics of communist ideology distanced themselves
from a discourse they had come to see as founded on illusions.82 This
turn-around is explained by the fact that the conversion to liberalism itself
contained the challenge to what François Furet had called the ‘revolu-
tionary catechism’: the critique of totalitarianism did not leave the legacy
of the French Revolution intact. Not only did the Terror of 1793 now
appear in the long shadow of the ‘Gulag’ ‘by virtue of similar aims’;83
1789 itself, in its overestimation of the power of political action, already
seemed to herald elements of 1793.84 This did not disqualify the progress
achieved by human rights, but the critical analysis of the course taken by
the Revolution nonetheless painted a picture of the idea as a problem as
much as a solution. The 1789 Declaration had served as the banner of
a revolutionary process that it had not been able effectively to channel.
It followed that legitimate uses of human rights must, on the one hand, be
marked out from their non-liberal uses that had turned the revolution
towards terror, and, on the other, that we should not demand the impos-
sible of human rights – the basis for a total reorganisation of society, which
they are powerless to provide.85
The alleged domination of human rights came more and more under
fire with the collapse of the Soviet empire and the first Iraq war. As of
1980, several well-known figures of French public debate challenged
Lefort’s political defence of human rights.86 For philosophers such as
Marcel Gauchet and Pierre Manent, the vitality of pluralist society
described by Lefort risked eventually turning democracy against itself.87
At first glance, these two figures – both members of the Centre Raymond
Aron at the Ecole des hautes études en sciences sociales – may appear to
82
Frédéric Worms, La Philosophie en France au XXe siècle, Paris, Gallimard, Folio, 2009,
p. 558.
83
François Furet, Penser la Révolution française (1978), Paris, Gallimard, Folio, 1985, p. 29.
84
On this subject as seen in Furet’s writings, see Steven Kaplan, Adieu 89, Paris, Fayard,
1993, p. 708 sq.
85
P. Simon-Nahum (‘François Furet et la double fin de l’idée révolutionnaire’, Esprit, 10,
2009, pp. 149–160) shows that Furet ‘shares’ the ‘critical diagnosis’ of Marcel Gauchet
‘on the predominant position accorded to human rights in contemporary societies’.
86
As early as 1978, Régis Debray was elaborating a neo-republican critique of human
rights. Régis Debray, Modeste contribution aux discours et cérémonies du dixième anniversaire,
Paris, Maspero, 1978.
87
See notably Marcel Gauchet, L’Avènement de la démocratie, vol. 1, La Révolution moderne,
Paris, Gallimard, 2007, pp. 16–20 and La Démocratie contre elle-même, Paris, Gallimard,
2002, as well as Pierre Manent, Cours familier de philosophie politique, Paris, Fayard, 2001
and La Raison des nations, Paris, Gallimard, 2006.
have little in common. A former student of Claude Lefort, Marcel

Gauchet – after a series of flings with a number of post-’68 ultra-leftist
journals – made a long transition that led him from anarchism towards
a type of republicanism which viewed the decline of social cohesion with
anxiety.88 In 1980 he started work as co-editor of the new journal Le
Débat, which was to become one of the main arenas of intellectual influ-
ence in the following two decades. It was in this journal that he published
an article whose title became a sort of mantra for neo-republican French
thought89 – ‘Human Rights Are Not Politics’ – and which he would
return to and develop further twenty years later in ‘When Human
Rights Become Political’.
If the arguments in the first article can be seen as an (implicit) response
to those put forward in ‘Politics and human rights’, we must also remem-
ber that both Gauchet and Lefort rejected a ‘moral’ vision of human
rights as situated outside the political domain. Conversely, however,
Gauchet is far more alive than his former mentor to their individualist
dimension. Lefort’s mistake, he argues, lay in failing to recognise that
putting individuals with their interests and rights before all else risks
weakening the defining political footholds of the modern democratic
process. If the implementation of democratic principles exhausts its ener-
gies in a politics of human rights, it will eventually sap democracy itself of
its vitality – if not, more radically, lead to the collapse of its institutions
and means of exercise (Gauchet 2002 and 2007).
In this argument, Gauchet speaks in concert with an article by Pierre
Manent, in which he accuses Lefort of underestimating the ‘atomising’
capacity of human rights90 – a recurring theme of many of his later works
too. Manent – a Catholic philosopher, former assistant to Raymond Aron
and a key figure in launching the journal Commentaire in 1978 – is,
however, of very different political and philosophical stock from
Gauchet: he can in fact be seen as one of the French disciples of Léo
Strauss. Yet beyond their significant differences, these two authors unite
in resisting what they call a kind of ‘democratic fundamentalism’ and the
88
See especially Samuel Moyn, ‘Savage and Modern Liberty: Marcel Gauchet and the
Origins of New French Thought’, European Journal of Political Theory, 4 (2), pp. 164–187
and Michael Behrent, ‘Religion, Republicanism and Depoliticization: Two Intellectual
Itineraries – Régis Debray and Marcel Gauchet’ in Julian Bourg (ed.), After the Deluge:
New Perspectives on the Intellectual and Cultural History of Postwar France, Oxford,
Lexington Books, 2004, pp. 325–352.
89
Once again, this neo-republicanism is distant from that which identifies the ideal of non-
domination with the rejection of any identity-based definition of the public space. See
Cécile Laborde, Français, encore un effort pour être républicains !, Paris, Seuil, 2010.
90
Pierre Manent, ‘Démocratie et totalitarisme. A propos de Claude Lefort’, Commentaire,
16, Winter 1981–1982, pp. 574–583.
ideology that accompanies it: the elevation of human rights as an

overarching regulatory principle of social life. They both interpret the
triumph of liberal democracy as a Pyrrhic victory, on the grounds that the
democratic principal, corrupted into a sort of radical individualism, will
eventually turn against itself. Threats to democracy issue not only from its
conventional enemies – those who reject the principle of democratic
equality – but also, perhaps above all, from its ‘over-zealous friends’ –
those who attempt to impose equality as a formal and abstract concept on
the whole of society, spurning any compromise with the requirements of
communal life or moral norms inherited from pre-democratic times.
In this sense, a democracy of rights is democracy both travestied and
truncated, having lost sight of the inherent constraints of the political
domain. It is, in Manent’s words, a ‘pure democracy’, a ‘democracy
without a people, in other words a form of democratic governance
which lacks no respect for human rights but is detached from any collec-
tive deliberation’: a ‘kratos with no demos’, because ‘What now possesses
kratos is the very idea of democracy’.91 Conventionally, the term ‘democ-
racy’ referred to the capacity of political entities to govern themselves.
Today, it has arguably been reduced to the point of designating mere
protection of individual rights and masking pathology in the mirror image
of totalitarian domination: that of the individual divorced from any sense
of collective belonging. All in all, Gauchet argues, we have swung ‘from
one extreme to the other: the threat of the total State has now been
superseded by that of the total individual – the individual who owes
nothing to society yet demands everything of it’.92 This is the source of
the unprecedented pairing of ‘profound depoliticisation’ with ‘radical
demand-making’, which these authors see as the spectacle played out by
contemporary society. It is also why legal norm-making is increasingly
eating into the territory of political will.
For these authors, the clearest sign of this transformation of democracy
is the current consecration of individual rights. And ‘individual’ they truly
are, since they refer to a very particular conception of human rights –
which now, according to Gauchet, ‘mobilise the inherence of rights in the
person against a sense of civic belonging, instead of using one to shore up
the other as in the original republican version’.93 This is the most
91
Manent, La Raison des nations, pp. 15–16. We should note that Schmitt had already
criticised liberal democracy as a ‘democracy without a demos, without a people’
(Carl Schmitt, ‘The Liberal Rule of Law’ (1928) in Arthur J. Jacobson and
Bernard Schlink (eds.), Weimar. A Jurisprudence of Crisis, Berkeley (CA), University of
California Press, 2000, p. 298.
92
Marcel Gauchet, La Condition historique, Paris, Gallimard, 2001, p. 314.
93
Marcel Gauchet, La Religion dans la démocratie, Paris, Gallimard, 1998, p. 111.
noticeable break with anti-modern thought: though the substance of their

claims against human rights is similar, the anti-moderns’ critique (as we
saw earlier) rejected the concept of human rights itself, making no dis-
tinction between those proclaimed in the eighteenth century and human
rights today. Communitarians or neo-republicans, on the other hand,
view the meaning now ascribed to human rights as a travesty of their
original description. This ‘verbosity’ covered by the discourse of human
rights, as Régis Debray writes, ‘has nothing but name in common with
1789’.94 Debray’s diagnosis foreshadows that of Jean-Claude Milner,
who as we have seen pits two doctrines of human rights against each
other: the ‘classic’ position of 1789, which embodied a principle of
boundaries, and the ‘new doctrine’ of today, which operates on the
premise of illimitation.95
These authors posit the existence of a human rights utopia, moving
towards the gradual absorption of political life into law. Manent goes even
further in opposing two bodies ‘increasingly subjected to a single and
exclusive principle, the unlimited right of the European individual and the
unlimited power of divine Law in Islamic countries’.96 Manent suggests
that both of these – the ‘extremism of subjective right’ and the ‘extremism
of the objective rule’ – in fact reject the same thing, that is, the ‘production
of the common good by the citizen community’.97 He also goes against
Lefort in arguing that Marx had clearly seen the internal contradiction in
the modern democratic project, somehow based on the negation of
a human political condition. Hence Manent’s assessment of Lefort’s
critiques of Marx as ‘pertinent’ yet ‘not entirely convincing’. Though
Marx may indeed have been blind to the social meaning of human rights
in the new society, ‘Lefort is doubtless not sensitive enough to the divisive
effects of these rights and especially those which he approvingly calls the
new rights.’ Manent sees proof of this divisive function in the fact that
women no longer need the ‘conjugal tie’ in order to guarantee them
a place in society.98 Similarly, in his argument against same-sex marriage,
the Catholic philosopher Thibaud Collin attributes to Lefort the source
of the intellectual mutation that has made the subject into a ‘being whose
nature is . . . to demand rights’. The ‘circularity of the argument’, he adds,
‘shows that individual liberty has become the benchmark of demands;
hence the open-ended proliferation of new rights’.99
94
Régis Debray, Que vive la République, Paris, Editions Odile Jacob, 1989, p. 171.
95
Jean-Claude Milner, Les Penchants criminels de l’Europe démocratique, Lagrasse, Verdier,
2004, p. 93.
96
Pierre Manent, Situation de la France, Paris, Desclée de Brouwer, 2015, p. 26.
97
Ibid., pp. 27–28. 98 Manent, Cours familier de philosophie politique, pp. 179–180.
99
Thibaud Collin, ‘Un combat idéologique’, Le Monde, 6 February 2014.
Other authors also express this critique of Lefort, the more strikingly so
since they come supposedly from such radically different political camps
and intellectual traditions. The writings of Manent or Collin overlap
significantly with those of the ex-communist Jean-Claude Michéa, who
claims kinship with an ‘original’ socialism most faithfully perpetuated in
the twentieth century by George Orwell. Acknowledging the contempor-
ary relevance of Marx’s critique of the individualising tendency of human
rights, Michéa alleges that Lefort’s interpretation has played a ‘decisive
role’ in the emergence of a so-called liberal-libertarian left which forgets
that indefinite growth of individual rights must eventually lead, ‘through
the effects of the old provocation/hardening dialectic’, to a perpetual
struggle of all against all.100
Beyond his alleged underestimation of the divisive nature of human
rights, then, Lefort is also accused of failing to see that the proliferation of
new rights is in fact more of a threat to civil society than to state power.
Manent highlights the idea that state power is not only the usual vehicle
for reciprocal recognition of liberties but also benefits from this recogni-
tion. Once traditional powers within society (that of business owners over
employees, men over women and so on) are thrown out in the name of the
individual, it is society’s own power to organise independently of the state
that tends to suffer. This intersects with Gauchet’s diagnosis that ‘the
more humans take on the right to define their own society, the more the
organising arm of the bureaucratic state – under pretence of facilitating
this process – in fact seizes it from them’.101 Today, it has also become
necessary to ‘defend human rights against themselves’ or against the logic
of liberal illimitation, the likely outcome of which is the blanket
normalisation of any and every kind of behaviour.102
It is strange to see this argument presented as a defence of Marx’s early
work against Lefort: what Marx was attacking in his critique of human
rights was certainly not their supposed threat to social order, but rather
the support given to this order by the image of the property-owning
individual that permeated them. In claiming that democracy gets into
all areas of social life, Marx radicalised the political demand intrinsic to
human rights. Lefort’s critique, attempting to rescue the democratic
demand from the ‘totalitarian fantasy’ that leeches off it in some of
Marx’s works (whilst also avoiding the alternative of a return to property
rights as the central idea) is paradoxically more faithful to Marx’s ideas
than is Manent’s explicit reprise of Marxist themes. Marx’s aim was not to
100
Jean-Claude Michéa, L’Empire du moindre mal. Essai sur la civilisation libérale, Paris,
Champs, 2007, p. 41.
101
Gauchet, La Démocratie contre elle-même, p. 21. 102 Ibid., p. 39.
warn against the crisis of authority and state surplus that would arguably
be produced by a rise in demands issuing from a diverse civil society;
rather, his concern was about the separation of the political and the social
which limited the power of collective exercise of rights. He set out, in
other words, not to ‘defend human rights against themselves’, but rather
to push them beyond their own limits. We shall return to this idea in
Chapter 5.
*
Some see in either communitarian or anti-modern critiques nothing but
a veiled continuation of one of the perpetual features of antidemocratic
thought. Stephen Holmes, for instance, calls the ‘communitarians’ ‘soft’
anti-liberals, arguing that they never distinguish their critique of the
apathy liberal law supposedly produces in its subjects from that of Carl
Schmitt or Giovanni Gentile, for instance.103 Though they attack the
atomism of contemporary theories and societies in similar terms to several
anti-liberal writers, they too often fall back on eleventh-hour concessions
which suggest that their critique is no bar to continued enjoyment of the
gains of liberal modernity. ‘They exhibit their aversions, impatiently
attack, and then pull back’,104 as if it were possible to combine the
supposed charms of the social order of pre-individualist societies with
the range of choice and the mobility that mark out liberal societies.
In French thought, the philosopher Jacques Rancière has maintained
that the new critique of rights merely revisits the counter-revolutionary
theme of the French Revolution as an instance of terror, not for having
trampled on human rights but for having proclaimed them – a belief that
has spread beyond its original intellectual circles to the conservative
strains of liberalism exemplified by Ernest Renan or Hippolyte Taine.
Behind the apparent reverence for Enlightenment thinkers and the demo-
cratic idea, neo-republican ideology according to this argument is merely
the reprise of a ‘very French denunciation of the individualist revolution
breaking social bonds’.105
However, three remarks must be made to stall a hasty conflation. First,
in the vast majority of cases, the critique of human rights works today in
the name of democracy even while it is used by counter-revolutionary
103
Stephen Holmes, The Anatomy of Antiliberalism, Cambridge (MA), Harvard University
Press, 1996 and ‘The Permanent Structure of Antiliberal Thought’ in
Nancy Rosenblum (ed.), Liberalism and the Moral Life, Cambridge (MA), Harvard
104
Nancy Rosenblum, ‘Pluralism and Self-Defence’ in Nancy Rosenblum (ed.), Liberalism
and the Moral Life, Cambridge (MA), Harvard University Press, 1989, p. 216.
105
Jacques Rancière, La Haine de la démocratie, Paris, La Fabrique, 2005, p. 22.
The Radical Critique: Human Rights against Emancipation 53
thought and elitist liberalism to argue against democracy and the

advances offered by republican citizenship. Challenging the sincerity of
democratic demands of one or the other group is not enough to offset this
criticism; neither is piecemeal observation of the (deliberate) confusion
between nation and democracy that allows a communitarian form of
conservatism to present itself as a defence of self-government, or even
as a socialist critique of neoliberal dominance. Even if these slippages are
genuine in many cases, philological honesty compels us to take authors at
their word when they espouse a democratic and/or republican principle.
We can only establish intellectual kinships and similarities in argumenta-
tion between different forms of critiques against human rights through
close textual study, concerned as much to respect the nuanced differences
between authors as to prise out the guiding threads that structure the logic
of their ideas.
We might also, to continue setting references alongside each other,
compare the new critique of human rights to Marx’s early objections in
On the Jewish Question to the idea of ‘man . . . separated from the com-
munity, from himself and other men’. We have already seen that authors
such as Villey or Manent admire Marx’s foresight on this point, even if
they use it to support conclusions utterly different from Marx’s own. Yet
the fact remains: from a historical point of view, attacks on human rights
have by no means always issued from counter-revolutionary quarters.
This leads to the third reason why we cannot reduce the new critiques
to a conservative stance: there exists a third line of attack on human rights
issuing from within the radical left itself.
The Radical Critique: Human Rights against

Emancipation
Once again, the ‘radical’ critique must not be hastily written off as
a straightforward rejection of human rights. This is sometimes the case
with a few influential authors whose work is informed more by hollow
formulas than reasoned argument. However, in its more sophisticated
incarnations – especially the works of David Kennedy, Martti
Koskenniemi and above all Wendy Brown – the point is less about turning
away from human rights or even contesting their historical importance
than giving a critical account of the effects of the language of rights today.
In many ways, this critique picks up Marx’s early view and complements
it with the findings of Foucault, stressing that although political emanci-
pation represents ‘great progress’, it must not be confused with human
emancipation.
The combination of Marx and Foucault here may seem strange given
that Foucault saw the attempt to ‘disalienate’ man as a vestige of the
illusory belief in human nature. What Foucault shows us is that the
struggle against domination is never-ending, since every human relation-
ship is a relationship based on power. Campaigns for freedom cannot be
a case apart from this law of power relations; rather, they are a way of
dealing with power relations in order to dismantle their underlying
oppression. Yet Foucault does overlap with Marx in his analysis of the
ambiguities of law. Just as Marx reveals the two faces of human rights
(political emancipation and transmission of social alienation), Foucault
draws attention to the paradoxical solidarity between the rule of law and
the implementation (in prisons, schools, hospitals and so on) of
a ‘disciplinary power’ that invents new ways of controlling individuals.
These normalisation techniques are foreign to the principles of the rule of
law, and perhaps even unjustifiable in accordance with it, yet are neces-
sary to its proper functioning within the state: ‘it was clearly not an option
to liberate individuals without first “training” them’,106 Foucault
observes. ‘Effect[ing] a suspension of law which is never total, but is
never annulled either’, disciplinary power constitutes a ‘counter-law’, in
the two senses of an ensemble of techniques that run against the juridical
principles of liberal legal codes and a ‘counterpart’ of law which is also its
buttress – that is, its material bedrock.107 Foucault’s intention is not to
disqualify all recourse to ‘law’ as an ideological veil for normalisation
techniques; as already stated (and we shall return to this later), his posi-
tion on human rights is far more complex than this. However, for the
majority of his readers, the key issue remains to avoid getting trapped
inside juridical forms that arguably represent yet another normalising
stratagem.
The radical critique thus sets itself the task of challenging the real
contribution of human rights ideology to the progress of individual and
collective autonomy. It suspects today’s rights talk of supporting an
incomplete view of emancipation, and consolidating the neoliberal para-
digm with a veneer of morality. In short, according to this view, human
rights are tantamount to a kind of idolatry that hides insidious forms of
domination under an ‘antipolitical’ exterior.
Human rights discourse according to the radical critique first entails an
impoverished version of emancipation, focused exclusively on govern-
ment infringements of formal liberties. This is one of the paradoxes that
106
Michel Foucault, ‘Entretien’ (1978), Dits et écrits IV, 281, p. 92.
107
Michel Foucault, Discipline and Punish: the Birth of the Prison (1975), trans. A. Sheridan,
New York (NY), Vintage Books, 1995, pp. 224–225.
the ‘communitarian’ critique had already brought out: while human

rights advocates tirelessly rehearse their distrust of the state, their lan-
guage implicitly places the state at the heart of the process of liberation,
which it depicts as a binary relationship between the state and an indivi-
dual invested with rights.108 This tactic produces at least two unexpected
side effects.
On the one hand, it distracts our attention from inequalities or equally
crippling forms of domination, whether caused by private groups or
socioeconomic context. As the example of Iraq amply demonstrated,
merely overthrowing a state power does not necessarily win autonomy;
nor does it help people to help themselves.109 In shifting the focus of
society and the economy towards the state, the primacy accorded to
human rights allows for scant attention to the specific contingencies
that necessarily determine the meaning of individual laws. Its effect is to
strengthen institutional sovereignty over individuals by masking the con-
crete dimension of power relations.110
On the other hand, a process that defines justice exclusively as the
relationship between an individual invested with rights and the state
encourages a strategy of claims to victimhood that hardly favours the
emergence of an autonomous subject. Taking this argument to its
extreme, Alain Badiou thus posits that an ethics of human rights reduces
human beings to the role of mere victims. It identifies man with his naked
nature of a ‘suffering animal, a gaunt dying body’111 – which in a perverse
twist amounts to something approaching scorn, disguised as pity, for
a kind of sub-humanity. The ideological apparatus of human rights in
this view implies a victimised, animal definition of humanity, even while it
soothes the conscience of those who condescendingly claim to work ‘on
behalf of’ others less fortunate than themselves.112
It is in this sense that Wendy Brown sees the appeal to human rights
discourse as merely an expression of our ‘fatalism’. Today, she argues,
everything points to the idea that the prospect of any real democratisation
of power has become so remote that the only remaining hope is that of
reducing the overall weight of human suffering. The ethics of human
rights confirms that no emancipatory project or politics remain; as
Badiou says, it is merely a rallying cry for the ‘niceties of necessity’, an
108
Kennedy, The Dark Sides of Virtue, pp. 3–35.
109
Wendy Brown, ‘The Most We Can Hope For . . . Human Rights and the Politics of
Fatalism’, The South Atlantic Quarterly, 103, 2/3, 2004, p. 455.
110
Wendy Brown, ‘Rights and Losses’, in States of Injuries. Power and Freedom in Late
Modernity, Princeton (NJ), Princeton University Press, 1995, pp. 96–134.
111
Alain Badiou, L’Ethique. Essai sur la conscience du mal, Caen, Nous, 2003, p. 31.
112
Ibid., p. 38 and Kennedy, The Dark Sides of Virtue, p. 29.
‘extraordinary impoverishment of the active and activist value of

principles’.113 Human rights in this argument are a variant on the
conservative consensus – a way, in fact, of legitimating the status quo.
Today, this status quo takes the form of a dominant neoliberal
individualism. The social atomism we now see claims to be open towards
the ‘other’, yet in fact respects others only in so far as they are like us – and
thus not really other at all. The Muslim headscarf, as Slavoj Žižek
observes, is thus seen as acceptable if freely chosen by the woman wearing
it and therefore a sign of individual idiosyncrasy rather than a marker of
(non-voluntary) affiliation to the Muslim community. For Žižek, this
indicates that the purported subject with ‘free choice’ results from
a violent process of dislocation from one’s usual environment.114
Indeed, Badiou adds, the proclaimed apostles of the right to difference
are in fact ‘horrified’ by anything beyond minor difference. In these
authors’ view, respect for difference holds true only where the ‘different’
individual supports parliamentary democracy, market economics and
freedom of opinion, or is feminist, ecologist and so on and so forth.115
The ethics of human rights and respect for difference, then, clearly
defines an identity forged around liberal individualism. This ideology,
in turn, operates without regard to the structural limitations that
constrain its actors’ choices, aims first and foremost to outline a space
of negative freedom, and does not concern itself with producing actors
capable of taking collective action.116
For these radical critics, the liberal emphasis on a supposedly funda-
mental corpus of civil and political rights arises less from ontological
imperatives than from the needs of capitalist expansion. As Marx had
already highlighted, human rights are the precondition for a free market,
and are intimately connected to a conception that subordinates the poli-
tical domain to the legal needs of the economy. In this sense, the 2003
invasion of Iraq was not only motivated (according to this argument) by
powerful political and economic interests, but also relied on a highly
determined idea of the conditions for ‘liberty’ – namely liberal-
democratic capitalism and incorporation in a globalised world
economy.117
The most virulent strain of this criticism arguably comes with the work
of Gilles Deleuze. In his Abécédaire, he deplores the emptiness of human
rights, which he sets against jurisprudence, meaning the invention of law
based on the specific cases that arise: ‘those who simply recall and declaim
113
Badiou, L’Ethique, p. 57.
114
Slavoj Žižek, ‘Against Human Rights’, New Left Review 34, July–August 2005.
115
Badiou, L’Ethique, p. 13. 116 Brown, ‘The Most We Can Hope For’, p. 456.
117
Žižek, ‘Against Human Rights’.
human rights are nothing short of imbecile. The point is not to enforce
human rights, but to invent specific legal precedents in which, for each
case, this will no longer be possible. These are two very different
things.’118 His last book, co-authored with Félix Guattari, continues the
attack: ‘human rights will not make us bless capitalism’. Because they
ignore the ‘immanent modes of existence of people provided with rights’,
human rights have nothing to counter ‘the ignominy of the possibilities of
life we are offered’. Their ‘axioms’ can ‘coexist on the market with many
other axioms, notably those concerning the security of property, which
are unaware of or suspend them even more than they contradict them’.
They also easily rub along with the forces that cancel them out, especially
the ferocity of a global market mediated by nation-states with their poli-
cing apparatus and their ghettos of misery.119
Deleuze’s argument is continued by the radical critique taken as
a whole. Perfectly compatible with the ‘smug egotism of cosseted
Westerners’120 and conveniently disregarding the fact that justice is con-
structed in context, for its time and for a particular people, human rights
discourse according to this view cuts any local deliberation off at source
through a combination of moral condemnation, legal adjudication and
textual certainty. In this account, the ascendancy of rights abets the
limitation or erasure of collective choices by transcendental demands,
appeal to the courts and escape into exaltation of private liberties.121
Above all, however (such authors argue), human rights discourse
presents the problem of power as a zero-sum equation: the individual
has exactly what institutions do not. This is an obviously naïve vision,
disqualified by a fact highlighted by Brown (who aligns with Sandel’s
argument on this point) – that Americans have never had so many rights
and simultaneously so little power to shape their collective justice and the
direction taken by their nation.122 Here, the radical critique follows up on
feminist allegations that human rights discourse reifies acquired identities
and keeps quiet on oppressive mechanisms such as exploitation, margin-
alisation or the absence of authority, which (as Foucault illustrated) do
118
Gilles Deleuze, ‘G. comme Gauche’, L’Abécédaire (1988), Paris, Editions
Montparnasse, 2004 (DVD). Strangely, this quasi-Burkean emphasis on jurisprudence
is ushered in by a eulogy for the ‘becoming-revolutionary’ that neglects the role played in
historical revolutions by human rights – which Deleuze hastily equates with certain
ideological accounts of them in vogue at the time. This paradox also arises in the work of
Badiou, who criticised human rights at the same time as glorifying the Jacobin
revolutionaries.
119
Gilles Deleuze and Félix Guattari, What is Philosophy? (1991), trans. G. Burchell and
H. Tomlinson, London, Verso, 1994, pp. 107–108.
120
Badiou, L’Ethique, p. 17. 121 Brown, ‘The Most We Can Hope For’, p. 458.
122
Ibid., p. 459.
not necessarily come from the state but travel through the ‘capillarity’ of
power and individuals’ internalisation of the principles of their ‘govern-
mentality’. A good example is freedom of expression, which in an era of
mass media controlled by public or private groups can in fact favour the
dominance of non-democratic discourses.
The radical critique asks us to recognise what human rights discourse
seeks to repress in itself: that it is a form of power which neatly converges
with the demands of liberal imperialism and global exchange while also
legitimating them.123 Proclaimed over and above politics, human rights
are little more than the ‘façade’ of a technical administration of things and
a struggle for power between various organs, each driven by
precise political goals – and especially the universal imposition of a type
of laissez-faire that gives free rein to insidious forms of domination.124
*
Our overview illustrates that these various critiques, though radically
different in their aims – from the anti-modern Catholic position to the
Marxist view, by way of the republican critique – nonetheless occupy
common ground in a number of the grievances they express against
human rights. This holds especially true for the idea, which may at first
seem counterintuitive, that market economics and state power are
expanding in concert with one another. According to this view, the
primacy of human rights, closely linked to the neoliberal paradigm,
bolsters administrative power yet empties self-determination and
collective emancipation of their meaning. We must also highlight the
ubiquitous reference to the ideas of Marx’s early writings, which are
called into the service of various different arguments by authors as far
removed from each other as Catholic conservatives and advocates of
a new communist hypothesis.
However, the common rejections and references are not enough to
constitute a shared position. Today as previously, we are dealing with
not one but many critiques of human rights. Our aim in this book is
precisely to examine the different faces of these critiques since 1789 in
order to deepen our understanding of the current debate, which unfolds
against their backdrop. Taking rights seriously also involves understand-
ing the objections put to them and the arguments of those who deem them
irrelevant.125
123
Brown, ‘The Most We Can Hope For’, p. 456.
124
Koskenniemi, ‘The Effects of Rights’, p. 100.
125
Waldron, Nonsense upon Stilts, p. 2.
A Conservative Critique: Edmund Burke
Edmund Burke’s Reflections on the Revolution in France, published

in November 1790, are in a manner of speaking the primal scene for
critiques of human rights. Burke’s argument, quickly deplored by
Thomas Paine as a theatrical ‘manufacture’ divorced from real events,1
or as a staged fantasy, nonetheless resonates through subsequent attacks
on human rights. These range from the radicalised reprise of Burke’s
ideas by counter-revolutionary thinkers from Wilhelm Rehberg to Joseph
de Maistre2 to recognitions of Burke’s relevance by republican theorists
such as John Pocock.3 Even Marx, who condemns Burke as a ‘sycophant’
patronised by ‘the English oligarchy’, then reconverges with the thrust of
the Reflections when he writes that a ‘modest Magna Charta’ in the
English tradition advances the cause of liberty further than ‘the pompous
catalogue of the “inalienable rights of man”’.4
To speak of a primal scene is to speak of a traumatic event. The many
reinterpretations and adaptations of Burke’s critique in new contexts have
confused as well as enriched its original meaning; yet its powerful transla-
tion of the revolutionary trauma has never failed to make it an effective and
influential argument. As Antonio Negri points out,5 the foresight of
Burke’s early diagnosis of the situation in France soon became clear: as
early as 1790, he predicted the real course of events when he declared that
the revolutionary process would end in a coup in which ‘some popular
1
Thomas Paine, Rights of Man [1791], New York (NY), Dover, 1999, pp. 15–16.
2
We cannot omit Burke himself from the list of authors who radicalised the tenets of the
Reflections on the Revolution in France: his hostility to the Revolution grew ever fiercer
before reaching its peak in 1796, in the Letters on a Regicide Peace, which described
revolutionary France as a ‘monster-State’.
3
Pocock sees Burke’s Letters on a Regicide Peace as ‘the 1984 of its generation’, the discovery
of the ‘theory of totalitarianism’ (Introduction to Edmund Burke, Reflections on the
Revolution in France [1987], Indianapolis (IN)/Cambridge, Hackett, 2003, p. xxxvii).
4
Karl Marx, Capital, Book 1, chs XXXI and X, 7, pp. 539, 195.
5
‘Burke’s œuvre triumphs here standing tall. Its greatness is witnessed by the fact that
although Burke was writing in 1790, at the start of the Revolution, he speaks of it as though
he had already lived through its entire course’ ( Antonio Negri, Il potere costituente: saggio
sulle alternative del moderno, Carnago, SugarCo, 1992).
59
general, who understands the art of conciliating the soldiery, and who
possesses the true spirit of command, shall draw the eyes of all men upon
himself’.6 At a time when no one could have anticipated the events of
1793, and when the actors of the revolution demanded only
a constitutional monarchy, Burke predicted that the revolutionary bid
could end only in the terror of the scaffold as the basis for law: ‘massacre,
torture, hanging! These are your rights of men!’7 In 1790, then, Burke
saw human rights as one part of an impending terror, and judged this to be
their inexorable fate. The visionary power of Burke’s argument, and the
acute portrayal of his own terror at the violence of the revolutionary
process, cannot fail to strike us.
However, this terror remains that of an external spectator judging
events at a distance that exaggerates their foreignness. Burke’s virulent
counter-revolutionism has none of the strains of empathy found in
a French monarchist such as Chateaubriand, who had experienced and
directly suffered under the revolution, yet nonetheless (from his exile
home in London) defended the desire for liberty that had led to 1789,
and argued that the positive effects of the revolution would emerge in the
longer term.8 Burke would persist in his refusal to acknowledge the very
fact of revolution. As of 1790, his main concern was to deter his own
compatriots from any thought of emulating the democratisation of
political representation – or even the challenge to monarchy – seen in
France. Burke sought less to defend the absolute Catholic monarchy in
France than to preserve the English constitutional monarchy and church
from revolutionary contagion, a threat he perceived in Richard Price’s
speeches demanding the dissolution of the Anglican Church.
Burke, moreover, prefaces his critique of human rights in the Reflections
not with an analysis of the 1789 Declaration, but instead with a polemic
directed against Richard Price’s 1789 sermon on patriotism, preferring to
cite and comment on Price’s words than the seminal text of the
Declaration. We can explain this relative indifference to the source text
by the fact that it is not the content of the idea of human rights, but rather
the fact that they are claimed, that imbues them with meaning. In other
words, the meaning of human rights lies in the political action that they
can justify – in England as in France – to contest the established order, or
even any established order, regardless of its nature. Accordingly, for
Burke, the mere idea of human rights is a subversive weapon since it
takes no account of the context of demands for rights; it represents the
6
Burke, Reflections, p. 193. 7 Ibid., p. 195.
8
François-René de Chateaubriand, Essai sur les Révolutions (1797), II, 19, Paris,
Champion, 2009, p. 950.
Human Rights against Inheritance 61
notion of a universal law which leaves no place for circumstance as

a determining factor.
In Burke’s view, the radical novelty of the French Revolution lies in this
universality which rides roughshod over contingent circumstance; and
whereas the American Revolution had been a localised process with no
bearing on internal political order elsewhere, the French Revolution
according to Burke constitutes a ‘schism with the whole universe’ affect-
ing all nations and compelling each to come out either in favour or
against.9 The revolution calls each country to recognise the universality
of human rights, which thus takes on the colours of a religious rather than
political doctrine. This ‘new fanatical religion’ is the ‘ferment’ of an
‘exterminatory system’ that threatens all existing religions.10 Whereas
a purely political revolution would stop at national frontiers, human rights
make revolution a universal demand; they provide the recipe for an
insurrection arising not from a particular situation (as had been the case
in England in 1688 or in the American War of Independence) but rather
from a universal idea of rights that may be claimed in any circumstances.
Founded on human rights, the ‘revolution in France’ cannot remain
a ‘French’ revolution, for it constitutes a denial of the law of local
circumstance.
Burke seeks to affirm the particular right of the English constitution
against the absolute principle of the rights of man; however, this cannot be
justified by a purely local argument, which would give it the status of an
exception. He sets out to show that the English constitution is a model
whose guiding principle – namely a particular configuration of universal
and particular values – other nations should also be able, each in its own
way, to adopt. Against the ‘abstract’ or ‘metaphysical’ universality of
human rights, Burke therefore needs to prove the existence of a superior
right of historical circumstance. This in itself holds the value of a universal
right: hence why Burke endorses the universal scope of the English
example – on the very grounds of its exemplary status. It is by no means
clear that this twin universality of the right of history and of its English
incarnation is any less ‘abstract’ than that of the rights of man. Burke thus
claims that the old constitution of the French monarchy contained all the
seeds of an English-style liberty, such that no revolution was actually
necessary. This argument explains why Burke, despite his editorial
success, has had no true descendants in France: neither liberals nor
9
Burke, First Letter on a Regicide Peace (1796), in Reflections, p. 563.
10
Edmund Burke, ‘Letter to Richard Burke on Protestant Ascendancy in Ireland’, 1793, in
Works, London, Nimmo, 1887, vol. VI, pp. 398–399. See Patrick Thierry, Burke. Le futur
en héritage, Paris, Michalon, 2010, p. 79f.
conservatives could condone his description of the French monarchy,

which they all ‘knew’ was misled.
Burke argues against the revolutionary politics of human rights that it
is impossible to judge existing political regimes on a disembodied
normative principle that ignores the primacy of circumstance; yet asso-
ciated with this quasi-relativism (which goes hand in hand with the
jurisprudential conception illustrated by English common law) in
Burke’s thought is the normative theory of a superior type of regime
typified by the English constitution: namely, mixed constitutions that
marry monarchy with aristocracy and democracy. At this point, it
becomes difficult to say whether Burke counters the abstract universal-
ism of human rights with a particularism that negates the existence of
the universal, or rather with the notion of a ‘concrete universal’.
The latter remains ambiguous as to whether the universal must become
particular in order to exist (a thesis that substantiates the difference
between universal and particular), or rather that the universal can never
be distinguished from the particular circumstance in which it is
couched?
The Coherence of Burke’s Thought

This uncertainty explains why so many and such radically different thin-
kers have followed in Burke’s footsteps: as Philippe Raynaud observes,
Burke’s legacy encompasses both ‘true liberals and reactionaries hostile to
modern principles of liberty taken as a whole, and even socialist critics of
bourgeois society’.11 Indeed, such are the conflicts of interpretation over
Burke’s thought that we might almost be forgiven, reading several works
on the subject, for wondering whether they are in fact discussing the same
author. We see the author of the Reflections on the Revolution in France
presented in turn as a disciple of Locke, a defender of classical natural law
over modern natural law, a representative by turns of Scottish
Enlightenment liberalism and the counter-Enlightenment, an opponent
or advocate of historicism, the champion of liberties or of an authoritarian
state.12
In Alfred Cobban’s view, these interpretive clashes arise in the first
place from Burke’s unique place in the history of ideas. A public figure of
his times who served in the House of Commons from 1765 to1794, and
very rarely expounded his political thought outside this role, Burke
11
Philippe Raynaud, Trois révolutions de la liberté. Angleterre, Amérique, France, Paris, PUF,
2009, p. 3.
12
Philippe Raynaud, preface to Edmund Burke, Réflexions sur la Révolution en France, Paris,
Hachette, 1989, p. xiv.
The Coherence of Burke’s Thought 63
appears according to Cobban ‘as an anomaly’.13 But the anomaly is not

primarily (as Cobban reminds us) that of a ‘political philosopher who is
also a politician’: in the period 1780–1850, political thinkers and political
actors were relatively synonymous, as witnessed by the examples of
Bonald, Constant and Tocqueville, not to mention Paine, Madison or
Jefferson. Burke’s exceptional status lies rather in the fact that his thought
lies entirely within his political action. It goes without saying that action
and theory also feed into each other in the hands of Guizot, Tocqueville or
Jefferson: theory shapes practice, and experience in turn grounds theory.
However, for these authors, theory and practice interact but ultimately
remain distinct. In Burke’s case, meanwhile, political philosophy
becomes a weapon. As a political actor involved in the causes of his
time, Burke wrote hastily, passionately and sometimes rashly, in
a polemical rather than deliberative style, marrying irony, description,
sarcasm and diatribes ad hominem.14 The majority of his writings are
circumstantial works whose first concern is practical, whether to refute
an opponent or to triumph in political decision-making. All Burke’s
thoughts on ‘natural rights’ or ‘human rights’ stand in the context of
tactical decisions about the most persuasive rhetoric for a given
audience.15 Burke is particularly skilled in the art of appropriation –
turning his opponents’ own vocabulary and arguments against them16 –
which prompts Michel Villey to write that Burke charges the rights of man
with serving as a ‘cover for their own violation’,17 a strange formula that
appears in the same breath to endorse and reject the idea of human rights.
This is the source of a tension that explains why some have interpreted
Burke’s political commitments as inconsistent. A defender both of Irish
Catholic and Indian rights, Burke had first come to public notice as
a supporter of demands issuing from the American colonies in 1775.
During the revolt of the American colonists, he thus found himself in
the same camp as Richard Price or Thomas Paine. In 1788, in the course
of his campaign against Hastings, he pointed out that the ‘pride of
England’ was that it had ‘better institutions for the preservation of the
rights of men than any other country in the world’.18 We may therefore
13
Alfred Cobban, Edmund Burke and the Revolt against the Eighteenth Century [1929],
London, George Allen, 1960, p. 38.
14
15
Leo Strauss, Droit naturel et histoire, trans. M. Nathan and E. de Dampierre, Paris,
Flammarion, 1986, p. 255.
16
Michel Ganzin, La Pensée politique d’Edmund Burke, Paris, LGDJ, 1972, p. 210.
17
Michel Villey, ‘Philosophie du droit de Burke’, in Critique de la pensée juridique moderne,
Paris, Dalloz, 1976, p. 130.
18
Burke, ‘Speeches in the Impeachment of Warren Hastings, Esquire, Late Governor-
General of Bengal’, speech of 16 February 1788, inWorks, vol. IX, pp. 448 and 463.
imagine the surprise of his contemporaries when, faced with a French

Revolution which appeared to champion the same causes as the
American, Burke became its most vehement and most immediate
English adversary, making enemies of Price and then of Paine. This
apparent U-turn led Paine, who knew Burke personally, to conclude
that he had simply defected to the opposition.19
But the contradiction is perhaps less clear than it would appear.
In 1791, Burke responded to the charge of incoherence levelled against
him that ‘if the principles of a mixed Constitution be admitted, he [Burke
himself, speaking in the third person] wants no more to justify to con-
sistency everything he has said and done during the course of a political
life just touching to its close’. Contrary to ‘imaginary rights of men (which
at best is a confusion of judicial with civil principles)’, which are the
perfect example of those ‘principles [that] always go to the extreme’, the
ideal of the mixed constitution ‘gravitate[s]’ around a happy medium
granted to ‘political convenience’ and to ‘human nature’ in as much as
it is both ‘universal’ and ‘modified by local habits and social aptitudes’.
The defender of the British constitution considers ‘a certain portion of
liberty to be essential for all good government’; but ‘this liberty is to be
blended into the government, to harmonize with its forms and its rules,
and to be made subordinate to its end’.20
Accordingly, those who argue that Burke ‘turned tail’ in 1789 fail to
grasp that different circumstances and opponents led this champion of
mixed constitutions to stress, by turns, one aspect or the other of con-
stitutional ‘mixity’. Faced with advocates of absolute monarchy, he
appears as a partisan of the rule of law, or even as a democrat; against
democratic unilateralism, he takes on the colours of a reactionary defen-
der of instituted hierarchies. Indeed, a mixed constitution unites into
a ‘harmonious body’ different components or ‘parts’ whose founding
principles are in fact opposed, each having its own right to existence
which must be defended in keeping. The monarchic element, Burke
explains, must be defended according to monarchic principle, just as
the democratic element can only be defended by an argument based on
democratic principle.21 Burke can thus affirm the constancy of his com-
mitments: according to this argument, his enduring membership of the
Whig opposition, his support for American claims, his proclamations in
favour of Irish and Indian rights and his struggle against the global threat
19
Waldron, Nonsense, p. 79.
20
Edmund Burke, ‘Appeal from the New to the Old Whigs’, in P. J. Marshall and
Donald Bryant (eds.), The Writings and Speeches of Edmund Burke, Oxford, Oxford
University Press, 2015, pp. 375–477, 470.
21
Ibid., p. 469.
The Coherence of Burke’s Thought 65
represented by the French Revolution all have their roots in a common

ideal of political equilibrium which at once recognises the rights of the
populace, of the nobility and of the sovereign.
The complexity of this political equilibrium, in which opposing prin-
ciples offset one another, sits uncomfortably with the absolute nature of
human rights claimed by French revolutionaries. Burke believed that
the coherence of his political career lay in his concern to defend the law
of complexity against absolutism that endeavours to reduce political
order to a single right, be it that of the populace, the monarch or a pre-
political idea of man in his ‘natural’ state. This is why Burke’s campaign
for religious tolerance was never a fight for equal rights between reli-
gions; why his calls for mitigation of legislation directed against Irish
Catholics never aimed at the dissolution of the Anglican Church.
Though Burke believed that all religions had their own value and
legitimacy, he remained fiercely opposed to the separation of church
and state. To separate ‘religion from the state’, he argued, meant to
separate ‘morality from policy’, and to erase the ‘principle of our
obligations to government’ which lies in ‘conscience’.22 Burke never
commented on the American Bill of Rights of 1791; but nothing, surely,
can have been more foreign to him than the first amendment of the
American constitution that prohibits the ‘establishment’ of religion by
Congress.
In 1791, Burke recalled the meaning of his ‘support’ for the American
rebels. On the one hand, he recognised the right of Americans to preserve
their ‘ancient condition’ and not to be taxed without consent; the original
wrongs lay with the British Crown, which had attacked the colonies’
traditional liberties. On the other, he thought that the intention to sub-
ordinate the Americans by force was doomed to failure, and also endan-
gered English liberty. In order to avoid independence, Burke had
advocated reconciliation. However, since English intransigence had pre-
cluded this, he had admitted that the only solution was English resignation
to American independence. Yet Burke stressed that he would not have
supported the American rebels had they been motivated by a wish to extend
their freedoms rather than to preserve their existing liberty.23 Indeed, he
never welcomed American independence as a happy development or
a ‘revolution of liberty’, but rather discussed it as a regrettable necessity
which might, in the future, bear more positive fruit. In his Address to the
22
Ibid., p. 467. A substantial part of the Reflections is taken up with a critique of disestabl-
ishment and the dispossession of the French Church. The rejection of the rights of man is
a defence of church holdings, associating the Church with property as the two central
pillars of social order.
23
Ibid., pp. 411–412.
British Colonists in North America of 1777, even while he claimed to

‘embrace’ Americans as ‘friends’ on the grounds that the ‘true
Englishmen’ were those who adhered to the ‘principles of liberty’ of the
English constitution, he considered it ‘doubtful’ that American liberty
would successfully preserve the ‘perfection’ and ‘native purity’ of its ‘ori-
ginal fountain’. Burke’s proclamation of support was subject to a caveat:
only England could ‘communicate . . . the benefits’ of its constitution, and
American independence threatened the ‘platform of common liberty’.24
Burke does not, then, set out to discredit the French ‘catechism’ of
human rights with different arguments from his previous contentions
which had – in the name of the ‘rights of man’ in a different under-
standing – allowed him to defend the Irish, Americans or Indians.
We should recall here that Burke ascribed as much importance to his
action against Governor General of Bengal Warren Hastings (whose
impeachment hearings lasted from 1787 to 1795) as to his campaign
against the French Revolution.25 In May 1794, he appealed against
Hastings to ‘the rights of humanity’ and the ‘law of Nations which is
the birthright of everyone’. Burke, then, conducted his struggle for the
‘rights of humanity’ in India simultaneously with his struggle against
‘French human rights’.26
This is because in Ireland, America or India, ‘the rights of man’
designated a limit of politics: the bare minimum of rights on which
power cannot encroach without becoming despotic. The ‘French rights
of man’ are different in nature: they claim to represent not a limit but the
first constitutive principle of the political domain. In stating that their
‘preservation’ is ‘the goal of any political association’, the 1789
Declaration elevated them to the status of an absolute norm from
which it should be possible to derive the content of any political con-
stitution in its entirety. This is the first object of Burke’s criticism: in his
view, the idea of human rights can hold relevance only if it is not a legal
norm, but rather one moral idea amongst other moral ideas that impart
limits to political order.
24
Edmund Burke, ‘A Letter to the Marquis of Rockingham, with Addresses to the King and
the British Colonists in America’, January 1777, Works, vol. VI, pp. 190–192.
25
In a letter of 28 July 1796 (cited by Thierry, Burke. Le futur en héritage, p. 29), Burke
writes that his action to ‘save the Nation from that shame and guilt’ represented by the
Hastings administration would be ‘my monument’: ‘Let everything I have done, said, or
written be forgotten but this’ (‘Letter to French Laurence’, in H. Furber et al. (eds.),
The Correspondence of Edmund Burke, 9 vols, Cambridge, Cambridge University Press,
1958–65, vol. IX, p. 62.
26
Burke, ‘Speeches in the Impeachment of Warren Hastings’, vol. XI, pp. 241, 251;
‘The French Rights of Men’: Thoughts on French Affairs’, Works, vol. IV, p. 323.
Human Rights, a Tyrannical and Hypocritical ‘Digest of Anarchy’ 67
Human Rights, a Tyrannical and Hypocritical ‘Digest

of Anarchy’
If human rights, in their legitimate meaning, designate the limit of
political order, this implies that political order cannot be created by
human rights. Burke constantly reiterates that the French Declaration is
a ‘digest of anarchy’ that succeeded in ‘systematically destroy[ing] every
hold of authority by opinion, religious or civil, on the minds of the
people’.27 ‘Against these there can be no prescription; against these no
argument is binding: these admit no temperament and no compromise:
anything withheld from their full demand is so much of fraud and
injustice.’28 The effect of the idea of human rights is to delegitimate any
social order, which necessarily presumes the existence of institutional
hierarchies linked to inequalities of power, status and property.
In return, this delegitimation vindicates all violence against natural
authority, and all destructive acts committed against aristocratic or eccle-
siastical property. Anarchy thus spills over into despotism.
Human rights are merely the incarnation of that misguided dream of
a ‘pure democracy’ which, as Aristotle pointed out, bears striking resem-
blances to tyranny. Absolute democracy can no more be a legitimate form
of government than absolute monarchy because it means the abolition of
boundaries and a rejection of necessary compromise between the various
powers that order society.
Furthermore, since any social order is necessarily hierarchical, human
rights are hypocritical: in this argument, they serve merely to veil violent
transfers of power and wealth, and as an alibi for use by an oligarchy
hostile to established aristocracies. In the Reflections, Burke describes this
oligarchy as the offspring of a marriage between an irreligious intelligen-
tsia composed of men of letters, embittered by their political margin-
alisation during the eighteenth century, and what Burke calls monied
interest – by which he means not the capitalist trading or industrial class
but rather financial speculators who exploit state public debt to expand
their own wealth.29
Burke sees signs of this new domination in the dispossession of the
Church and the alarming rise in French public debt, artificially sustained
by issuing valueless ‘bank-paper’. However, he also devotes much atten-
tion to the argument that the new oligarchic power is taking hold of
27
Edmund Burke ‘Speech on the Army Estimates’ (1790), in Works, vol. III, p. 221.
28
Burke, Reflections, p. 51.
29
Ibid., p. 96. See the analysis given by Bertrand Binoche, ‘Critiques des droits de l’homme’
(1989), in Bertrand Binoche and Jean-Pierre Cléro (eds.), Bentham contre les droits de
l’homme, Paris, PUF, 2007, pp. 140–141.
principles in the institution of census suffrage by the French National

Assembly. ‘This metaphysic principle, to which law, custom, usage,
policy, reason, were to yield, is to yield itself to their pleasure . . . What!
a qualification on the indefeasible rights of men?’30
To be sure, Burke stresses, the contribution to the public purse
required in order to vote, the equivalent of three’ days labour, is ‘not
much, I readily admit’. Yet by this ‘very small qualification’, the ‘equal-
ising principle’ is ‘utter[ly] subver[ted]’.31
Of course, Burke was not calling for real equality; he sought merely to
draw attention to the hypocrisy inherent in the egalitarian claims of
declarations of rights: ‘In all this process, which in its fundamental
elements affects to consider only population, upon a principle of natural
right, there is a manifest attention to property – which, however just and
reasonable on other schemes, is on theirs perfectly unsupportable.’32
Natural Rights, Civil Rights, Political Rights

How, then, can we explain why Burke is happy to use the expression ‘the
rights of man’ in a more positive sense? Not only does this positive
meaning run through his speeches at the impeachment hearing of
Warren Hastings until 1794; it also manifests on occasion in Burke’s
counter-revolutionary polemics: the first Letter on a Regicide Peace argues
that the combat against the ‘armed doctrine’ of revolutionary France is
a war for ‘the interest of mankind’ against ‘a system which by its essence is
inimical to all other governments’. For England, this war is a duty founded
not only on its proximity to France, since as Burke notes, ‘distance of
place does not extinguish the duties or the rights of men’, though ‘it often
renders their exercise impracticable’.33 In a piece of 1793, Burke advo-
cates severe punishment for revolutionaries who not only rebelled against
‘political and civil laws’ and ‘the state as state’ but transgressed ‘the law of
Nature’ and ‘outraged man as man’. Among them are notably those who
presided over ‘revolutionary tribunals, where every idea of natural justice
and of their own declared rights of man have been trod under foot with the
most insolent mockery’.34
30
31
Ibid., p. 153. August Wilhelm Rehberg (Recherches sur la Révolution française [1793],
trans. Lukas Sosoe, Paris, Vrin, 1998, p. 39) would revive this example of a contribution
equal to three days’ labour to accuse the Declaration of having raised futile hopes.
32
33
Burke, First Letter on a Regicide Peace, pp. 520, 524, 564.
34
Edmund Burke, ‘Remarks on the Policy of the Allies with Respect to France’, Works, vol.
IV, pp. 413 and 463.
Natural Rights, Civil Rights, Political Rights 69
We must here cite the passage from the Reflections in which Burke
recognises the existence of ‘real rights of men’:
Far am I from denying in theory, full as far is my heart from withholding in
practice, (if I were of power to give or to withhold), the real rights of men.
In denying their false claims of right, I do not mean to injure those which are
real, and are such as their pretended rights would totally destroy. If civil society be
made for the advantage of man, all the advantages for which it is made become his
right. It is an institution of beneficence; and law itself is only beneficence acting by
a rule. Men have a right to live by that rule; they have a right to justice, as between
their fellows, whether their fellows are in politic function or in ordinary occupa-
tion. They have a right to the fruits of their industry, and to the means of making
their industry fruitful. They have a right to the acquisitions of their parents, to the
nourishment and improvement of their offspring, to instruction in life and to
consolation in death. Whatever each man can separately do, without trespassing
upon others, he has a right to do for himself; and he has a right to a fair portion of
all which society, with all its combinations of skill and force, can do in his favor.
In this partnership all men have equal rights; but not to equal things. He that has
but five shillings in the partnership has as good a right to it as he that has five
hundred pounds has to his larger proportion; but he has not a right to an equal
dividend in the product of the joint stock. And as to the share of power, authority,
and direction which each individual ought to have in the management of the state,
that I must deny to be amongst the direct original rights of man in civil society; for
I have in my contemplation the civil social man, and no other. It is a thing to be
settled by convention.35
Two clear points emerge from this passage. The first is that the existence
of ‘true rights of men’ must never be interpreted as the right of individuals
to an equal measure of liberty. Burke never used the expression ‘Rights of
Man’ in a positive sense referring to an individual right. His positive terms
are ‘rights of mankind’ – which assumes the existence of a shared human
nature – and ‘rights of men’, which suggests various rights rather than
a body of equal rights across individuals. Not only does Burke reject what
he elsewhere terms ‘the absolute equality of the human race’; on closer
examination, he denies the equality of individual rights. The statement
that ‘men have equal rights, but not to equal things’ means precisely that
all men cannot have identical rights: Burke’s thesis is that each must have
a right to draw benefit from society, but not that each must have an equal
right to enjoy these advantages. Each must have certain rights, but all will
not have the same rights.
This thesis is illustrated in the point of view that Burke defended
throughout his political career on the question of tolerance. Freedom of
conscience, according to Burke, is indeed one of those ‘rights of men’ that
35
Burke, Reflections, pp. 51–52.
only a despotic power may threaten.36 But the equal right of each to
practise a religion of his choice by no means implies that the same civil
and political rights must be ascribed, on a principle of equality, to mem-
bers of each confession. In his defence of tolerance, Burke is an enemy of
what we might call secularism: he deems necessary the existence of a ‘state
religious establishment’ and an established church,37 which in his view
brings about inequality between members of the national church and
those of minority denominations.
The second point is that men have no right to govern themselves. After
the passage cited at N. 35, Burke states that one of the ‘fundamental rules’
of civil society is that ‘no man should be judge in his own cause’. And in
abdicating this right, which is ‘the first fundamental right of uncove-
nanted man’, man also abdicates ‘all right to be his own governor’.
The reasons for this abdication of the ‘right of self-defence, first law of
Nature’, in favour of justice delivered by third parties, necessarily also
mean rejecting the idea that human rights can be claimed by any indivi-
dual against any state, as if each were the judge of his own cause. In this
sense, human rights and the rights of civil society are incompatible with
one another.
Burke never tires of repeating that civil rights, like political rights, are
always the rights of a people. It is therefore impossible to deduce civil
rights exclusively from natural rights, which are the rights of isolated
individuals who have reached no common agreement and do not constitute
a people.38 The relationship between natural rights and the rights of civil
society then remains to be defined. Burke does not deny the existence of
a primitive state. He acknowledges that in the ‘uncovenanted’ state of
nature (before the socialisation stage) men certainly do have natural
rights: to ensure justice for themselves, to self-govern and defend them-
selves. Since entering into society involves abdicating these rights, Alfred
Cobban concludes that natural rights are simply abolished and their place
taken by civil or covenanted rights; only the positive constitutional rights
of political man, in this understanding, are truly rights. Against Cobban,
however, Michel Ganzin illustrates that the idea of natural rights as lying
outside political order does not mean that they cease to exist entirely with
36
See Edmund Burke, ‘A Speech on a Bill for the Relief of Protestant Dissenters’ (1773),
Works, vol. VII, p. 38, and ‘A Letter to a Peer of Ireland on the Penal Laws Against Irish
Catholics’ (1782), Works, vol. IV, pp. 227–228.
37
Burke, Reflections, p. 81. As early as 1772, Burke had stated that the issue of ‘establish-
ment’ is independent of those of ‘tolera[nce]’ and the ‘rights of conscience’: Speech on the
Acts of Uniformity, 6 February 1772, Works, vol. VII, p. 15.
38
Burke, Appeal from the New to the Old Whigs, p. 466: ‘the pretended rights of men . . . cannot
be the rights of the people. For to be a people, and to have these rights, are things
incompatible’.
Natural Rights, Civil Rights, Political Rights 71
socialisation.39 If primitive natural rights cannot be maintained in their

pure form in the socialised world, this does not mean that they are
cancelled out by civil rights.
The proof is that Burke acknowledges the possibility of an ultimate
recourse to insurrection in the event of inadmissible despotism. ‘It is the
first and supreme necessity only . . . which alone can justify a resort to
anarchy’; yet this case can indeed occur: ‘If it could have been made clear
to me that the king and queen of France (those, I mean, who were such
before the triumph) were inexorable and cruel tyrants’, writes Burke, ‘that
they had formed a deliberate scheme for massacring the National
Assembly . . . I should think their captivity just.’40 The error of the
Declaration was precisely that it made the exception into a rule, and
what should have been resignation to necessity a ‘choice’. The scandal
of the Revolution, during the days of October 1789 which Burke cannot
describe without horror, was that it treated as criminals a king and queen
who were in fact the most benign sovereigns (or at any rate, the least
tyrannical and those who had shown the greatest respect for public
liberty) yet seen in France.
Here, we can identify three distinct phases in the argument. First, in no
way does Burke question the right to resist: he clearly states that resistance
is justified either in order to preserve the rights of the monarchy or to
defend the rights of subjects. However, resistance need not take the form
of insurrection; rather, it must rely on the constitution to safeguard the
constitution. Legitimate resistance usually aims to preserve constitutional
rights, not natural rights.
The second stage of the argument, which Burke discusses only indirectly
in the context of the French revolution, concerns the possibility of extreme
tyranny such that would leave subjects no other choice than to take refuge
in their primitive rights and to dissolve civil society. Burke discussed this
possibility in extremely clear terms before 1789. In 1783, he claimed that
‘the rights of men, that is to say, the natural rights of mankind, are indeed
sacred things’ even without a charter according them constitutional status.
Any political power, he writes, operates as a trust; and ‘it is of the very
essence of every trust to be rendered accountable’. ‘If the abuse is proved’,
Burke concludes, ‘the contract is broken; and we re-enter into all our rights:
that is, into the exercise of all our duties’.41 This argument is once again
taken up in identical terms in 1788:
39
Ganzin, La pensée politique d’Edmund Burke, p. 120; see also Michael Freeman, Edmund
Burke and the Critique of Political Radicalism, Oxford, Blackwell, p. 79.
40
Burke, Reflections, pp. 85, 72–73.
41
Edmund Burke, ‘Speech on Mr. Fox’s East-India Bill’, 1 December 1783, Works, vol. II,
pp. 438–441.
men cannot covenant themselves out of their rights and their duties . . . Those who
give and those who receive arbitrary power are alike criminal . . . Nothing but
absolute impotence can justify men in not resisting it to the utmost of their ability.
Law and arbitrary power are in eternal enmity . . . The moment a sovereign
removes the idea of security and protection from his subjects, and declares that
he is everything and they nothing, when he declares that no contract he makes
with them can or ought to bind him, he then declares war upon them: he is no
longer sovereign; they are no longer subjects.42
The third phase of Burke’s argument rests on the idea that natural rights,
which are far more than the mere right to self-govern, cannot be set
against the civil rights that absorb them by taking over from them.
If human rights are ‘metaphysically true’ yet ‘morally and politically
false’, this is because ‘these metaphysic rights entering into common
life, like rays of light which pierce into a dense medium, are . . . refracted
from their straight line’. ‘Indeed, in the gross and complicated mass of
human passions and concerns, the primitive rights of men undergo such
a variety of refractions and reflections that it becomes absurd to talk of
them as if they continued in the simplicity of their original direction.’43
This refraction through a dense social context must not be seen as
a loss. It enriches primitive rights by placing them at the heart of a far
broader civilisational process. It is even only through this inclusion in
a greater order that they become a good, for order is ‘the condition of all
good’. ‘The nature of man is intricate; the objects of society are of the
greatest possible complexity.’44 In their varied particularity, civil and
political rights are far more than a ‘garb’ for the nudity of human rights.
They are a fabric weaving the thread of human rights together with many
others, which cannot be disentangled without destroying the whole. Civil
and political rights are not an application of human rights: they are in fact
a ‘particularisation’ of human rights, but one which does not allow
a universal definition to subsist outside or above it. ‘The rights of men
are in a sort of middle, incapable of definition, but not impossible to be
discerned.’45 We cannot see the original rights of man apart from their
refraction and particularisation in civil and political rights, which consti-
tute their only means of social existence.
In reality, human rights only exist, in the strict interpretation of the
verb, within the civil and political rights in which they are ‘chartered’46
42
Burke, ‘Speeches in the Impeachment of Warren Hastings’, pp. 457–459. ‘The rights of
the people are everything’, he writes in 1794, ‘as they ought to be in the true and natural
order of things (Ibid., May 30, 1794, pp. 241–251).
43
Burke, Reflections on the Revolution in France, op. cit., p. 54. 44 Ibid., p. 64.
45
Ibid., p. 54.
46
The freedoms guaranteed by the English constitutional charters, Burke declared in 1783,
are the ‘chartered rights of men’ (‘Speech on Mr. Fox’s East-India Bill’, p. 438).
Between Prudential Virtue and Theological Grounding 73
and founded. They can therefore never be declared in their own right, or
unconditionally claimed against the real rights that give them existence.
It would be illogical to claim both the rights granted by society and those
that we would hold living in isolation: ‘how can any man claim, under the
conventions of civil society, rights which do not so much as suppose its
existence?’47 In any constitutional and non-authoritarian regime, human
rights have no other reality or authority than that granted by the civil and
political rights enshrined in the constitution that brings them to life.
The idea of a ‘Declaration of human rights’ challenging an existing
constitution is therefore a legal absurdity.
Between Prudential Virtue and Theological Grounding:

The Right of Prescription
There are two sides to Burke’s critique of the rights of man: one some-
times termed ‘empiricist’ but which should properly be called
prudential;48 and another that we might term ‘cosmo-theological’, basing
natural law on a divine design for the universe. These two aspects meld
together into a philosophy of prescription that furnishes Burke’s legal
counter-model to human rights.
This philosophy itself falls into several different arguments about the
necessity of practical reason, the diversity of national societies and the
importance of inheritance.
The best-known facet of Burke’s critique of human rights is his first
argument about the need for practical reason: that what cannot be
accepted is the articulation of rights in a universal code that is ‘rational’
only by not being ‘reasonable’. Burke’s diatribe against human rights thus
represents a broader trial of Cartesian reason based on pure deduction
and disregarding historical experience.
Wisdom is not the same thing as deductive reasoning: to function, it
needs the habitus of prior knowledge which provides the only valid way of
intuiting or seeing the way forward (more often than not involving no
action) without having to articulate it consciously. Practical wisdom
(prudence) is different from theory in that it willingly adapts to contingent
circumstances and change, where theory remains fixated on universals
47
48
Burke’s critique of the rights of man is based less in the epistemological primacy of the
senses over the intellect than the ascendancy of practical over theoretical reason.
The ‘experience’ Burke invokes against ‘metaphysical abstraction’ takes as its model
not sensory ‘data’ as opposed to the ‘innate ideas’ or concepts of reason; rather, it calls on
the historical wisdom gathered in jurisprudence.
and unchanging values.49 In this vein, Burke stresses the importance of

‘moral sentiment’ as opposed to calculation in political affairs. Sentiment
allows for solid off-the-cuff decisions when they are most needed, which
in turn improves foresight and facilitates planning and coordination of
future courses of action. Conversely, liberty in the abstract has no
meaning: ‘Circumstances (which with some gentlemen pass for nothing)
give in reality to every political principle its distinguishing color and
discriminating effect. The circumstances are what render every civil and
political scheme beneficial or noxious to mankind.’50
Now, the difficulty of human rights is precisely the challenge they
represent to any circumstantial evaluation. In search of intellectual
clarity, they leave aside the infinite variations in time and circumstance
that determine the practical viability of a proposition. As in Rehberg’s
later Recherches sur la Révolution française, the primary critique of the
French revolutionaries is their alleged aim of deducing ‘political practice
starting from theory’.51 In Burke’s view, politics must be moulded not to
human reasoning but to human nature, ‘of which reason is a part but
certainly not the greatest part’.52
Paradoxically, this attack on theoretical reasoning in itself constitutes
a theoretical position. As Benjamin Constant observed, ‘to argue that
abstract principles are merely vain and useless theory is in itself to state an
abstract principle’.53 Constant concluded from this that Burke’s position
was self-contradictory. It would be incontrovertibly so if Burke espoused
a pure form of empiricism and denied any metaphysical basis to his
‘particularism’; but this is the very position that he rejects. Some episodes
in Burke’s writing do have echoes of utilitarianism, especially his
contention that ‘the rights of men in governments are their advantages;
and these are often in balances between differences of good; in compro-
mises sometimes between good and evil, and sometimes between evil and
evil’.54 However, this evaluation of good derives for Burke from an
Aristotelian or Ciceronian principle of moral equity founded on an origi-
nal justice that constitutes ‘the great standing policy of civil society; and
any eminent departure from it, under any circumstances, lies under the
suspicion of being no policy at all’.55
That justice is a ‘standing policy’ does not mean that it is a norm set in
stone. Rather, it extends into the Aristotelian notion of equity – the idea of
morality, in other words, as a corrective for the generality of law, or of the
49
Strauss, Droit naturel et histoire, p. 263. 50 Burke, Reflections, p. 7.
51
Alain Renaut, preface to Rehberg, Recherches, Paris, Vrin, 1998, p. 6.
52
Cobban, Edmund Burke and the Revolt, p. 76.
53
Benjamin Constant, Des réactions politiques (1797), p. 138.
54
spirit of law to counter the letter of law. In this definition, equity

represents a ‘justice beyond the writ of the law’, beyond the part of law
that strives for finality. Burke belongs to the case law tradition of English
Common Law, in which the meaning of the law is determined by ‘jur-
isprudence, the pride of the human intellect’, ‘the collected reason of
ages, combining the principles of original justice with the infinite variety
of human concerns’.56
The second facet of the prudential critique is the argument that the
universal nature of the Declaration of Rights rides roughshod over
national differences. If human nature is socially determined and therefore
essentially diverse, there can be no rights specific to human beings as such
but only ‘rights of men’ that have developed in particular social and
historical contexts. Human rights are always the rights of a member of
a particular community. This illustrates, once again, why the apparent
contradiction between Burke’s support for Irish, American colonists’ or
Indian rights on the one hand, and his fierce opposition to the French
Revolution on the other, is in fact an illusion. His defence of Indian rights
against the abuses committed by the administration of Governor-General
Hastings was a defence not of individual rights but rather of the rights of
an organised community, its elites and traditions. His defence of Irish
Catholic rights, meanwhile, sought to protect the traditional rights of an
established group which held Catholicism as a key element of their
identity.
By the same token, Burke did not see American colonists as revolu-
tionaries in the radical sense. They were defending their way of life,
established commercial practice and local administration against the
new fiscal and political impositions of the British establishment.
In France, it was the monarchy that in Burke’s view represented existing
custom, and the populace that attacked it with metaphysical concepts.
In America, meanwhile, the reverse was true: George III and his ministers
pushed new ideas of sovereignty to their furthest logical conclusion.57
As Leo Strauss emphasises, the political leaders whom Burke opposes in
both cases were claiming absolute rights: the rights of sovereignty in the
case of the English government, or the rights of man for the French
revolutionaries. And in both cases Burke goes about his task in the same
way: it is not rights themselves but rather the problem of how to
56
Ibid., p. 83.
57
Waldron, Nonsense, p. 79. See the First Letter on a Regicide Peace, in Burke, Reflections,
p. 554: The war against the democratic imperialism of the French Revolution responded
to the same motives as that of a century before against Louis XIV’s monarchic
imperialism.
implement rights wisely that he debates, advocating a political rather than

a legalist approach to rights.58
This ‘political’ approach is nonetheless a ‘juridical’ approach, in the
sense of English Common Law jurisprudentialism, in which Burke in turn
sees the true sense of jusnaturalism. Natural law becomes reality not
through the sovereign decision of a legislative will, but rather through
the quasi-natural nature of an unfolding sequence of judicial and political
decisions which eventually ‘crystallise’ in the form of law: a law that is all
the more authoritative for being the outcome of generational continuity
and the accumulation of reason over time. Jurisprudence is at once the
vessel for a collective rationality and the natural work of time: for this
twofold reason, it is the best approximation available of that ‘law of
reason’ represented by ‘natural law’.
This jurisprudential character of practical reason is associated with
a juridical privilege granted to inheritance in its connection with prescrip-
tion. Burke articulated his conception of prescription as early as 1782 in
a speech that remained unpublished, in which he opposed a voting reform
that proposed to democratise parliamentary election by equalising the
weight of circumscriptions and electors. Burke forcefully countered the
justification offered for this reform: the ‘supposed rights of man as man’.
Here already, he countered that the British constitution was immiscible
with the claim to ‘natural rights’, which are purely ‘individual rights’ that
are incompatible with the notion of a political institution. Because ‘men
as men are individuals, and nothing else’, and ‘by nature there is no such
thing as politic or corporate personality’, the idea of a right of man as man
implies that each individual has the right to govern himself, and that ‘all
other government is usurpation’.59 Against this reduction of society to the
individual, Burke sets the existence and rights of political bodies whose
legislative capacity is founded precisely on the fact of their existence as
bodies and moral persons. The fact of a nation as nation is a legal title: this
is exactly what constitutes the law of prescription. ‘Prescription is the
most solid of all titles, not only to property, but, which is to secure that
property, to government.’60
A ‘prescriptive constitution’, ‘whose sole authority is, that it has existed
time out of mind’, cannot be the work of a legislator. Burke does not
explore the origins of states, casting a veil over the birth of governments.
In his view, the only criterion for their validity is their ‘expedience’, which
58
Strauss, Droit naturel et histoire, p. 304.
59
Edmund Burke, ‘Speech on a Motion for a Committee to Inquire into the State of the
Representation of the Commons in Parliament’, 7 May 1782, Works, vol. VII, pp.
92–93.
60
Ibid., p. 95.
is the ‘touchstone of all theories’.61 Now, this expedient character is

established precisely by the prescription that proves the legitimacy of
origin. The prescriptive nature of legitimate constitutions means that
the original contract that founds states is nothing other than the present
state of the constitution that makes it known. It is not the original contract
that imparts authority to the existing constitution, but instead the ‘per-
formance’ of the existing constitution that grants its historically inscribed
value of an original contract; this contract is presumed to exist in the
constitution by virtue of the prescription on which it is based. By virtue of
this, Burke’s definition of prescription reveals itself to be mere acceptance
of the existing order – as long as it really constitutes an order. As Alfred
Cobban writes: ‘Reason and utility both abdicate before the achievements
of the past . . . Reason is displaced by utility, and for utility Burke reads
history.’62
This challenge to the abstract nature of human rights, then, does not
arise from a historicist conception of time marching onwards to a final
goal. The relevant idea, rather, is experience understood as a ‘regional
and contingent sequence of events’,63 whose authority comes less from an
idea of history than of ‘inheritance’. ‘We wished at the period of the
Revolution, and do now wish, to derive all we possess as an inheritance
from our forefathers . . . [our] most sacred rights and franchises [are] an
inheritance . . . Besides, the people of England well know that the idea of
inheritance furnishes a sure principle of conservation, and a sure principle
of transmission, without at all excluding a principle of improvement.’
Public liberties are also described as an ‘inheritance’, and indeed Burke
conceives of politics more broadly as modelled on the structure of the
family.64
Inheritance of rights implies a law of inheritance, and vice versa.65
Burke’s thesis is that inherited rights are the only form of rights (inheri-
tance, in other words, is the foundation of law) and that, because of this,
law must be conceived as starting from the right of inheritance, in other
words the right to property. Inheritance and property, then, go hand in
hand. According to a circular reasoning that defines prescription, tradi-
tion (that is, transmission) is the basis of property, yet also itself the object
of a right to property. The law of tradition and history thus becomes
61
Ibid., pp. 94–98. 62 Cobban, Edmund Burke and the Revolt, p. 85.
63
Binoche, Les critiques des droits de l’homme, p. 12.
64
Burke, Reflections, pp. 27, 28 and 29 (our emphases).
65
As pointed up by J. C. D. Clark (Introduction to Burke, Reflections, p. 87ff.), the
celebrated passages of the Reflections setting the ‘rights of Englishmen’ against the ‘rights
of men’ describe the rights of Englishmen in a carefully chosen legal and juridical lexicon,
that of seventeenth-century English common lawyers.
intertwined with the law of property, and the patrimonial model entails
a right to property that trumps other rights. Conversely, the 1789
Declaration threatens property even while proclaiming it, since in abol-
ishing all notion of inherited rights (or of rights granted by inheritance), it
abolishes ipso facto the very principle of the right to inheritance which
constitutes the right to property. Without the right to inheritance, in fact,
no ownership is stable: ‘If prescription be once shaken, no species of
property is secure.’66
We see here that Burke’s critique of human rights sits in stark
opposition to what the young Marx would later advance. Marx
denounced the ‘man’ of the ‘rights of man’ as a model of the selfish
individual, narrowly concerned with his own right to property; his main
critique was that the heart of ‘human rights’ was the intangible nature of
property rights. Burke too set upon the selfish individualism that drove
demands for human rights; however, this individualism was not the
possessive egotism of the owner but rather the envious egotism of the non-
owner and his bitterness at unequal property rights. Burke’s alarm at the
concept of human rights stems from the idea that they destabilise property
by advancing the principle of equal rights, and denying the existence of
specific rights conferred by birth. For inheritance, which is a crucial facet
of property, is a birthright; and ‘[t]he characteristic essence of property,
formed out of the combined principles of its acquisition and conservation,
is to be unequal’.67 In accusing human rights of sanctifying the right to
property, Marx in the same gesture accuses them of blocking the exten-
sion of citizen rights by limiting democracy to the political sphere only.
Burke, in contrast, accuses human rights of desanctifying the right to
property by straining towards an unbounded extension of citizen rights
and democracy.
Burke holds that there is an essential connection between property,
inequality and inheritance – in other words, the establishment of inequal-
ities in the shape of differentiated rights attached to hierarchical positions
and corporate institutions, among which pride of place is given to that
corporation par excellence: the nation. Inequality of rights starts from the
plurality of nations and the diversity of their political constitutions.
Indeed, this diversity means inequality of political rights between
nationals of different countries. The nation is first among establishments:
those who recognise its existence must also recognise the existence and
legitimacy of the other establishments that make up the constitution of
each country. Thus, speaking of England, Burke writes: ‘We are resolved
to keep an established church, an established monarchy, an established
66 67
Burke, Reflections, p. 133. Ibid., p. 44.
aristocracy, and an established democracy, each in the degree it exists,

and in no greater.’68 The key word here is established: a democracy is
legitimate on condition that it is established, whether in the form of
a regime, a national body or, as in England, a ‘member’ of a mixed
constitution. However, the Declaration of 1789 denies this legitimacy,
positing instead that absolute sovereignty of the majority is the ‘only
natural government’, and that ‘all others are tyranny and usurpation’.
By virtue of the ‘French Rights of Man’, all existing states must be
abolished and recreated on the basis of democratic absolutism: ‘equal
representation’, ‘totally abolishing hereditary name and office’, ‘levelling
all conditions of men (except where money must make a difference)’,
elimination of the aristocracy and all established churches, and transfor-
mation of priests and magistrates into ‘creatures of election and pen-
sioners at will’.69 The fanaticism of human rights, Burke protests,
‘rejects all establishments’.70 Unbounded democracy in turn is
a principle of disestablishment.
However, this conception of ‘establishment’ based on prescription
extends beyond the confines of the prudential critique. In fact, it assumes
a notion of duty which, though it means obeying an established order, is
nevertheless an unconditional rather than a relative duty which cannot
rely exclusively on criteria of utility and expedience. When Burke writes
that the people ‘must respect that property of which they cannot
partake’,71 he means this not in the sense of a ‘prudential’ demand but
rather of a duty almost religiously founded on respect for the order of
things.
This explains why Burke’s relativism remains limited. Behind the
infinite variety of circumstances lies an immovable and inexorable theo-
logical order: ‘Each contract of each particular state is but a clause in the
great primeval contract of eternal society, linking the lower with the
higher natures, connecting the visible and invisible world, according to
a fixed compact sanctioned by the inviolable oath which holds all physical
and all moral natures each in their appointed place.’72 We thus see
a cosmo-theological order taking shape, with an appointed place for
every being. In other words, human rights are an absurdity not only
because pragmatically speaking the socialised individual has already for-
feited the right to govern himself, but also because he is a component part
of the Order of Creation. Human rights are not merely speculative
68
Ibid., p. 80.
69
Edmund Burke, ‘Thoughts on French Affairs’ (1791), Works, vol. IV, p. 323.
70
Edmund Burke, ‘Letter to Richard Burke on Protestant Ascendency in Ireland’ (1793),
Works, vol. VI, p. 398.
71
sophisms; they are a transgression of divine order and a sign of impiety.

This vein of Burke’s thinking paves the way for the providentialism that
we shall find again in the work of Joseph de Maistre.
Burke is moved by his conviction that a divine plan sculpts the devel-
opments of human society, guided not by human will but by an
unfathomable wisdom73 which represents the ultimate court of appeal.
The moral precepts imposed by divine command are clear, universal and
absolute; it is their application in the political sphere that proves a greater
challenge. The error of natural law theorists in Burke’s eyes lies in their
treatment of principles of political organisation as revealed truths of the
same order as divine commandments. The kinship between God’s com-
mandments and political laws is in fact not direct but tortuous. Yet for
Burke, ‘God is the very archetype of the universe, source of all perfection
and all Right, while human law is valid only in so far as it follows the
precepts of divine law.’74
If this is so, then even community as it has evolved over the course of
long centuries cannot provide an absolute foundation for Burke’s theory.
‘From rationalism we come to utility, from utility to history, from the
history of mankind to the history of community and finally from history to
religion.’75 Hence the paradox: Burke condemns metaphysical abstrac-
tion, and yet his conception of law clearly has a metaphysical basis.
The sources of authority are numerous and composite, yet they still
have a religious counterpart which would be inexplicable without the
metaphysical reality of a sort of divine law which is pluralised, so to
speak, in history and political society. From this, Burke concludes that
the members of society must pay a ‘corporate homage’ to God, offering
up, so to speak, ‘the oblation of the state’.76
However, this divine right remains ‘diffuse’: to offer up the ‘oblation’ of
the state to God does not mean regarding the state as a providential
creation; rather, it means treating the state as a human creation which
men must in turn devote to God. Unlike Catholic counter-revolutionaries
such as Maistre or Bonald who would revive the idea of a divine right to
sovereignty to make the monarch its sole vessel, Burke believed that the
divine right at the basis of political order is inappropriable. It is the fact of
this order itself that is divine – not the specific right of one of the elements
that make it up. Burke never writes that the constitution arises from divine
law; a rift persists between the idea, advanced by Burke, that social order
is sacred because it is born of the law of nature which is part of the divine
73
Cobban, Edmund Burke and the Revolt, p. 94.
74
Ganzin, La pensée politique d’Edmund Burke, p. 166.
75
Cobban, Edmund Burke and the Revolt, p. 94. 76 Burke, Reflections, p. 86.
order of the universe, and the strictly traditionalist idea – which he never
endorses – that power is the image of God. This is why Burke continues to
write in contractualist terms: even if his notion of the social contract bears
no relation with those of Hobbes, Locke or Rousseau, the fact that he
retains the term indicates the difference between the author of the
Reflections and Bonald or Maistre, who would both refuse to recognise
any meaning in the concept of the social contract.
The two dimensions – prudential and theological – of Burke’s critique
of human rights therefore exist in barely resolved tension with each other.
The notion that civil society is part of a divine plan implies a belief in
providence, reading divine action into the spontaneous development of
human communities. But if empirical fact must be considered an instance
of providence, the consequence – which Maistre would also take on – is
unavoidable: the French revolution must be seen as an act of providence.
However, Burke rejects this implication,77 which illustrates that in his
view empirical and circumstantial fact are not ipso facto providential.
Burke stops short of the step into a political theology: he does not believe
that a theological justification of the exact nature of social order can be
deduced from its sacred character. Divine sanction applies to social order
only ‘en masse’, so to speak. Burke proclaims the necessity of established
religion, but he avoids any truly theological perspective that would
involve weighing the truth-claims of different religions against each
other, placing them in a hierarchy, and eventually deciding in favour
of one.
Pocock rightly notes that Burke remains aloof from the great
theological–political quarrel of the English tradition which opposed
a vision of the Anglican Church as an extension of its presiding royal
power to one of an apostolic communion forming part of the mystical
body of Christ.78 In line with the Whig tradition, Burke leaves this ques-
tion open – which amounts to leaving the status of divine right in the
church, and the political constitution linked to it, completely undeter-
mined. Bonald and Maistre would later espouse a political theology in
concert with their claims about the exclusive truth of Catholicism; Burke,
on the other hand, speaks only pejoratively in terms of the ‘political
theologians and theological politicians’79 represented, to his mind, by
77
Burke’s analysis of the causes behind revolutionary evil, in Reflections, p. 45ff, is purely
sociological. He hints at the possibility that the Revolution was a divine punishment, but
does not explore it further.
78
Pocock, ‘Introduction’ to Burke, Reflections, p. xvii. For a true theorist of divine law or
a political theologian, this would be the essential question. Burke believes instead that it
should be passed over in order to avoid needless dissent.
79
the French revolutionaries: submitting political legitimacy to the theolo-

gians’ judgement is out of the question. Unlike Maistre, who would
defend intolerance, Burke praises the ‘true spirit of toleration’ that he
sees in the English, who ‘would reverently and affectionately protect all
religions, because they love and venerate the great principle upon which
they all agree, and the great object to which they are all directed’.80
Burke’s Ambiguities: Between ‘irrationalist

utilitarianism’ and ‘conservative liberalism’
The theological-political question reveals the broader conflicts that run
through Burke’s thought: the ambiguous shifts in meaning between pru-
dential law and the divine law of the political constitution perpetuate the
theoretical slippages between jusnaturalism and jurisprudentialism, or
between the theory of an original contract and an immemorial constitu-
tion founded on prescription. In a sense, these ambiguities are inherent in
the very process of Burke’s thinking: to defend a mixed constitution which
draws conflicting principles and needs together into a harmonious body,
Burke’s thought must itself be composite and achieve compromise
between potentially incompatible principles. This compromise is possible
only at the price of a certain ambivalence, or even calculated obscurity.
From a Burkean perspective, this is not a theoretical shortcoming: on the
contrary, it is in the nature of a successful political system, which strives to
achieve a reasonable balance between man’s various social needs, that it
cannot be explained by a theory that rationally grasps its structure and
composition. As Frédéric Brahami has noted, the assumption behind
Burke’s criticism of jusnaturalist abstraction is that ‘a political doctrine’s
capacity for harm is a function of its simplicity: it is transparency as such
that is flawed in its principles’.81
This deliberate opacity makes it difficult to determine whether Burke’s
critique of human rights makes him a utilitarian, an advocate of classical
natural law or the forerunner of a new form of irrationalism; and more
difficult still to define Burke’s relationship with the liberal tradition.
Burke is sometimes cast as a utilitarian;82 and indeed, he takes political
reason to be a ‘method of . . . computation’.83 Burke’s phrasing is very
close to utilitarianism when he states of the foundations of government
80
Ibid., p. 132. In this passage Burke again underlines that tolerance may go hand in hand
with measures that favour a particular religion.
81
Frédéric Brahami, ‘Déchirure et production politique du temps. Science et volonté –
autour de la Révolution française’, in Incidence n° 7 (L’énigme du régicide), Autumn 2011,
p. 261.
82
Cobban, Edmund Burke and the Revolt, p. 76. 83 Burke, Reflections, p. 71.
Burke’s Ambiguities 83
that ‘power has no other rational end than that of the general advantage’,
and that ‘Government is a contrivance of human wisdom to provide for
human wants’.84 However, we can counter this with the idea that Burke’s
utility principle is ‘in no way the utilitarianism of the utilitarians’.85
On the one hand, Burke’s conception of well-being, inspired by
Aristotelian eudaimonia, is alien to Bentham’s hedonism. It assumes the
existence of an independent notion of moral virtue and duty anchored in
a theological position, and provides a teleological basis for political mor-
ality. On the other, Burke does not rely on calculation formulas. He
stands closer here to Aristotelian phronesis – an informal and implicit
practical judgement – than to Bentham’s formal, elaborate
constructions.86 Above all, Burke differs from Bentham in his misgivings
about reformism. Where Bentham constantly finds new ideas, Burke
remains extremely cautious, driven by the conviction that the polity
cannot be explained by a body of a priori knowledge. If Burke must be
considered a utilitarian, he can only be an ‘indirect’ utilitarian, believing
that the best results are a reward for those who do not seek them
consciously.87 His political philosophy is thus based on an anti-
voluntarist position, even a true ‘horror at voluntary will’.88
Keeping the utilitarian reference in play, we may consider following
Elie Halévy that Burke’s political doctrine allows us to grasp the nature of
the historical evolution of the utility principle before it came into alignment
with the democratic idea. Whereas in Bentham it leads to a resolutely
voluntarist and reform-minded doctrine, Burke’s framing of the utility
principle moves in the direction of a traditionalist philosophy whose outer
reaches verge on mysticism.89 From a common belief in utility – which
had become a truly ‘universal philosophy’ in late eighteenth-century
England – we thus see two politically opposed critiques of human rights
emerging: the first condemns the 1789 Declaration’s disregard of the
authority of prescription, and the second rails against the limits it imposes
on the freedom of future generations.
This also explains why other commentators reject the utilitarian
reading that in their view wrongly associates rejection of human rights
and rejection of natural law. In appealing to the past and to God, they
argue, Burke reinterprets natural law in the light of the classical school.
84
Ibid., p. 52. 85 Ganzin, La Pensée politique d’Edmund Burke, p. 161.
86
Waldron, Nonsense, p. 86. 87 Ibid., p. 87.
88
The wording is that of Stéphane Rials, ‘La droite ou l’horreur de la volonté’, in
Révolution et Contre-révolution au XIXe siècle, Paris, DUC/Albatros, 1987. As Rials
observes, it is this ‘horror of will’ that aligns Burke with certain contemporary forms of
neoliberalism.
89
Elie Halévy, La formation du radicalisme philosophique [1905], Paris, PUF, pp. 10 and 15.
This concept of natural law thus makes Burke in their reading the chief
opponent of modern natural law and the exponent of a Stoical,
Ciceronian and medieval natural law. In this line of thinking, Michel
Villey, a champion of Aristotelian jusnaturalism, has praised Burke’s
doctrine for what he sees as its adaptation (also recognised by a line of
English-language authors90) of classical natural law doctrine to the mod-
ern world. ‘Burke maintained not the letter but the spirit – a fact that does
not pass without personal contradiction – of the doctrine of natural law,
enriching it with new content, breathing the life of new form into it, a garb
suited to the world in which we live.’91
Against this interpretation we may set the reservations of Leo Strauss.
As Philippe Raynaud notes, the classical doctrine had already undergone
significant transformation in modern times under the combined influence
of Stoicism, Christianism and rationalism. In his hostility towards poli-
tical rationalism and his vehement critique of human rights, Burke
remains at one remove from this development, and is surely less close to
the Thomist tradition than Michel Villey would have us believe. On the
other hand and most importantly, Burke stands apart from the classical
tradition in that he tends to deny the value of theory and rationality, which
he associates with modern philosophy.92 Burke’s opposition to modern
rationalism blends almost imperceptibly with an opposition to reason as
such: prudentialism slips over into irrationalism.93 This depreciation of
the value of reason would become even clearer in the work of Rehberg,
who mocked the empty efforts of ‘speculative writers’ to formulate an
ideal of the perfect constitution – for, Rehberg writes, ‘the ideal serves no
useful purpose, not even that of comparing and evaluating existing
constitutions’.94
In the Reflections and in his earlier essay on ideas of the sublime and the
beautiful, Burke develops an aesthetic theory of politics that associates the
sublime with language and imagination.95 The sublime is the feeling
awakened by an ineffable, distant and awe-inspiring power. People sub-
mit to the idea of God, of the King or of a father because these male
incarnations of power provoke terror, inciting us to submit our will to
a force that we cannot entirely understand. ‘No passion so effectually robs
the mind of all its powers of acting and reasoning as fear . . . Whatever
90
See Peter J. Stanlis, Edmund Burke and the Natural Law, Michigan, University of
Michigan Press, 1965.
91
Villey, ‘Philosophie du droit de Burke’, p. 137.
92
Raynaud, Preface to Burke, Réflexions, p. lxi.
93
Strauss, Droit naturel et histoire, pp. 269–271. 94 Rehberg, Recherches, p. 104.
95
See the analysis in Costas Douzinas, The End of Human Rights, Oxford, Hart,
2000, p. 150, and Thierry, Burke. Le futur en héritage, pp. 105–116.
therefore is terrible, with regard to sight, is sublime too.’96 Now, ‘for

anything to be very terrible, obscurity seems in general to be necessary’.
The sublime is obscure, and cannot be grasped by means of reason.
Invisibility and the absence of images are the political signs of the sublime:
‘Those despotic governments, which are founded on the passions of men,
and principally upon the passion of fear, keep their chief as much as may
be from the public eye. The policy has been the same in many cases of
religion. Almost all the heathen temples were dark.’97 Conversely, delib-
erate drafting of a constitution sweeps away the arcane and the sacred,
leaving only brute force as a foundation for the state’s authority. Through
these strands of his thought, Philippe Raynaud observes with some justi-
fication that in some ways Burke’s thought ‘enters into a relativist train of
thought, at once “irrationalist” and “historicist”, which takes us some
distance . . . from the classical tradition’.98
Raynaud nonetheless concludes that Burke takes up a place at the heart
of a controversy inherent in the liberal tradition.99 This thesis, also
endorsed by several other commentators,100 benefits from the authority
of two highly significant thinkers in the same area: Carl Schmitt from the
angle of proclaimed anti-liberalism, and Friedrich Hayek from the oppo-
site standpoint of offensive liberalism, both painted Burke as
a prototypical representative of liberal thought. For Schmitt, Burke is
the classic philosopher of parliamentarianism and representation;101
Hayek sees him as the architect of a political translation of the economic
theories expounded by Adam Smith and other figures of the ‘Scottish
Enlightenment’.102 These two points are indisputable: theoreticians of
representative government still today cite Burke’s Bristol speech explain-
ing the meaning of the electoral mandate as a seminal text.103
The intellectual affinity between Smith and Burke is well known.
Pocock has showed that Burke diverges from ‘Scottish’ philosophy only
96
Edmund Burke, A Philosophical Enquiry into the Origin of Our Ideas of the Sublime and
Beautiful [1757], London, J. Dodsley, 1767, p. 96.
97
Ibid., p. 100.
98
Philippe Raynaud, Trois révolutions de la liberté. Angleterre, Amérique, France, Paris, PUF,
2009, p. 40.
99
Ibid., p. 53.
100
See especially Frank Turner, Darrin McMahon and Conor Cruise O’Brien in Burke,
Reflections and Sanford Lakoff, ‘Tocqueville, Burke and the Origins of Liberal
Conseravtism’, The Review of Politics, 60 (3), 1998, pp. 435–464.
101
Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy, Cambridge
(MA), MIT Press, Paris, Seuil, 1988.
102
Friedrich Hayek, Law, Legislation and Liberty. I: Rules and Order, ed. Paul Kelly,
London, Routledge, 1913, p. 22. See Ralf Dahrendorf, Reflections on the Revolution in
Europe, Transaction Publishers, 1990.
103
Bernard Manin, Principes du gouvernement représentatif, Paris, Flammarion, 2012, pp.
237–238.
on one point: his belief that commerce had been able to drive the process
of civilisation only because it had itself been civilised by the feudal codes
of the spirit of ‘chivalry’.104
However, we cannot stop at such a decontextualised and dehistoricised
conception of ‘liberalism’. To paint Burke as a representative of liberalism
is to use with hindsight a nineteenth-century term that had no place in his
own intellectual universe. Burke considered himself a Whig; and it would
be highly anachronistic to attribute the same meanings to the term ‘Whig’
and ‘liberal’. Historically, liberalism first designated a very clearly defined
political movement:105 when it first arose, at the beginning of the nine-
teenth century, the word described par excellence the ideas of Madame de
Staël and Benjamin Constant. Now Constant’s liberalism was explicitly
defined in opposition to Burke’s traditionalism: a liberal, in the original
sense of the word, was someone who rejected Burkean traditionalism and
joined Constant and Madame de Staël in condemning the Terror of 1793
while endorsing the intentions of 1789.
There is certainly no reason not to describe Burke as a liberal if we are
also willing to class thinkers such as Hume, Smith or Montesquieu as
liberals. Burke says nothing that Montesquieu had not already said;106 he
is perhaps even more ‘liberal’ in his explicit rejection (in his speeches
against Hastings) of the idea that despotism might be well suited to
certain contexts. This argument is not without its strength, and gives
the exact measure of what should be understood by Burke’s ‘liberalism’,
if we choose to use the word. But we must immediately add that
Montesquieu’s eulogy of the English constitution, written in the first
half of the eighteenth century in the spirit of opposition to absolute
monarchy in France, could hardly carry the same meaning as a eulogy
(even formulated in identical terms) of the English constitution written to
justify the French monarchy against the revolutionaries.
In Zeev Sternhell’s expression, Burke’s liberalism may be seen as
a ‘blocked liberalism’;107 but blocked, it must be said, in the scheme of
Montesquieu’s thought, the Whig tradition, and seventeenth-century
Common Law. Burke was an admirer and passionate advocate of the
Whig order, the most liberal order there was in Europe at this time. Yet
this admiration had a conservative consequence: the desire to immobilise
the Whig order in the exact position it had reached. We have seen that as
104
Pocock, Introduction to Burke, Reflections, p. xxxiii.
105
On the history of the term in France and England, see Bertier de Sauvigny, ‘Liberalism,
Nationalism and Socialism: The Birth of Three Words’, The Review of Politics, 32 (2),
1970, pp. 147–166.
106
See Montesquieu’s eulogy in the Appeal from the New to the Old Whigs, p. 449.
107
Zeev Sternhell, Les Anti-Lumières, Paris, Fayard, 2006, p. 46.
of 1782 Burke regarded the English constitution as the summit of perfection,

and consequently opposed any democratisation of its institutions.
The critique of ‘revolutionary despotism’, affirmation of the intang-
ibility of property rights, rejection of any form of absolutism in the name
of constitutional pluralism: these constitute what we may call liberalism in
Burke’s thought. However, they do not suffice to define Burke as a liberal
in the sense of a figure whose political meaning and aims were defined by
liberalism. We need only read the Reflections to see that the essential
nature of Burke’s diatribe against the French revolution is a campaign
for order, for maintenance of a state religion and a nobility fully in control
of its land holdings. Burke refuses to conceive of liberty ‘without order
and virtue’: liberty is in his view only one of the assets that should be
protected by a political system, and this asset was itself understood as
plural. The liberties that Burke defends are those of defined groups
(including religious or national minorities) and corporations. They are
not liberties of the individual understood as an entity equivalent to others,
but the liberties of establishments embedded in customs and institutions.
The property rights that he sets against the revolutionary ‘tabula rasa’ are
those of corporate property, in the mould of ecclesiastical and aristocratic
corporations. Burke associates the right to property less with individual
than patrimonial rights, understood so to speak as a right of the patrimony
itself which can trump individual free will (an inheritance imposed on its
heirs). In a word, Burke saw himself more as a defender of the civilisation
of custom than a defender of liberty.
It is true that this defence of a civilisation of custom bears striking
resemblances to the neo-liberalism of Friedrich Hayek, that great admirer
of English Common Law as opposed to the continental notion of demo-
cratic sovereignty.108 To be sure, civil society – a concept that Burke
inherited from the Scottish Enlightenment thinkers – is by no means the
same thing as Hayek’s theory of the order of the market, which refers not
to a divine design but to an immanent process of natural selection in
a Darwinian vein. In contrast to the immanence of the market, civil
society as envisaged by Burke is founded on the transcendence of
a divine law. A certain number of rights and duties lie outside the
commercialist order – since ‘We had not a right to make a market of our
duties’109 – and individual liberties are limited by corporative rights (not
excluding the syndicate). However, the fact remains that Hayek, like
Burke, refuses to accept that human will can intervene in a self-
regulating market order (in the social order), and posits a first thesis
108
Hayek, Law, Legislation and Liberty I, p. 86ff.
109
Burke, Speech on Mr. Fox’s East-India Bill, p. 440.
following Ferguson that civil societies are ‘the result of human action but
not of human design’.110 The argument of liberalism – understood as the
antithesis of social engineering – lies, in Hayek’s view, in the fact that the
market provides the equivalent of a body of knowledge about society’s
needs which no human perspective, whether individual or state-based,
can access. ‘Each member of society can have only a small fraction of the
knowledge possessed by all, and . . . each is therefore ignorant of most of
the facts on which the working of society rests. Yet it is the utilization of
much more knowledge than anyone can possess, and therefore the fact
that each moves within a coherent structure most of whose determinants
are unknown to him, that constitutes the distinctive feature of all
advanced civilizations.’111
Now, as Hayek explicitly recognises, this argument supports
a traditionalist vision. On the one hand, the order of society supposes
inheritance of inequalities. On the other, ‘Since we owe the order of our
society to a tradition of rules which we only imperfectly understand, all
progress must be based on tradition.’ What justifies market freedom is less
a human right to liberty than the fact that this market liberty has proved its
worth during the process of civilisation. More prosperous, efficient and
powerful than societies based on social solidarity, market societies have
been validated by the process of cultural selection that has made them
outlast other social systems, a process of cultural selection guided not
by reason but by success.112 We should not, then, be surprised to find that
Hayek has only misgivings about declarations of human rights, which he
accuses of attempting to catalogue rights that cannot be defined in
principle.113 Hayek’s liberalism can be translated into Burkean terms: it
is the performance of its constitution that validates the liberty of the
market. Conversely, Hayek’s rejection of any social planning – on the
grounds that laws can only be ‘equipment’ for certain unknown contin-
gencies, able to serve several purposes even while ensuring ‘the abstract
overall order’114 – finds a precursor in Burke’s eulogies of mixed
constitutions by virtue of this same reason: the polyvalence of law.115
Yet it would be hasty to conclude that Burke espouse ‘liberalism’ on the
basis of these echoes between his thought and certain contemporary
110
Hayek constantly cites this formula from Ferguson: see for example Law, Legislation and
Liberty, p. 21.
111
Ibid., p. 14.
112
Friedrich Hayek, Law, Legislation and Liberty. III: The Political Order of a Free People, ed.
Paul Kelly, London, Routledge, 2013, p. 489ff.
113
Ibid., p. 264.
114
Friedrich Hayek, Law, Legislation and Liberty. II, ed. Paul Kelly, London, Routledge,
2013, p. 274.
115
See Burke, Second Letter on a Regicide Peace, in Reflections, pp. 596–597.
visions of conservative liberalism; we might conclude instead that some

forms of ‘neo-liberalism’ or market fundamentalism in fact arise from
a traditionalism that dares not speak its name.
This traditionalism, to be sure, is not radical. An indefatigable advocate
throughout his political career of rights grounded in concrete institutions
tempered by experience, Burke must not be confused with figures such as
Maistre or Bonald. From a factual point of view, first of all, these authors
offer no possible justification for the Anglican schism, the Glorious
Revolution of 1688 or the American Revolution of 1776 – all events
that Burke, on the other hand, admits as legitimate. Burke’s traditional-
ism, then, does not disqualify all acts of revolt. In this respect, though it is
perspicacious in certain ways, Sternhell’s attack on the author of the
Reflections underestimates the internal divergences of counter-
Enlightenment thinkers by lumping together authors who aim to stabilise
modernity in the sense of a technical-economic development with no
emancipatory effects – Burke, Taine, Gehlen, Hayek – and theorists
who envisage a radical rupture with modernity in a reactionary or revolu-
tionary vein – Maistre, Bonald, Schmitt, Heidegger.
However, it remains true that Burke’s thought takes the individualist
core out of liberty. For Burke, as for Rehberg after him, human beings are
only truly human when they are embedded in the inequalities of history.
In denying history, human rights bring man onto a level with animals
instead of integrating him into human society116 – which means in turn
that humanisation passes by way of unequal rights.
Herein lies Burke’s common ground with a true liberal such as Alexis
de Tocqueville, to whom some have compared him,117 but who believed
that liberty must be desired ‘for itself’ and forcefully emphasised, in an
antithesis of the Reflections: ‘According to the modern notion, the demo-
cratic notion, and I dare say the correct notion of freedom, it is assumed
that each man has received from nature the gifts necessary to conduct his
affairs and carries at birth an equal and indefeasible right to live indepen-
dently from his peers in everything that relates only to himself and to
regulate his own destiny as he sees fit.’118
Tocqueville had drawn a close connection between equality of rights and
the exercise of public virtue: for him, it is only because the Americans – by
virtue of their exceptionally egalitarian circumstances – can see the
116
Lukas Sosoe, ‘August Wilhelm Rehberg : l’homme et l’œuvre’, in Rehberg,
Recherches, p. 63.
117
See Sanford Lakoff and Bruce Frohnen, Virtue and Promise of Conservatism. The Legacy of
Burke and Tocqueville, Lawrence (KS), University Press of Kansas, 1993.
118
Alexis de Tocqueville, L’Ancien Régime et la Révolution, Œuvres complètes, vol. II, Paris,
Gallimard, 1952, p. 62.
concrete link between civic-mindedness and individual liberties that they

tend to display public virtue. In a ‘virtuous circle’, only the spectacle of
equal rights can act as motivation for virtue; and only the exercise of public
virtue can guarantee the maintenance of individual liberties: ‘rights are real
only if citizens are virtuous, but conversely, citizens are virtuous only if
rights are real’.119
*
To round off this exploration of Burke, we can outline two ways in which
his work lives on in contemporary thought. On the one hand, the contrast
between virtues and rights continues to feed into the so-called ‘commu-
nitarian’ opposition to liberalism today, based on the idea that ends
precede rights and trump consent. The rejection of the boundlessness
Burke saw in the rights of man can also be seen today in the distinction
drawn by some theorists between the rights of man as a form of commu-
nity self-limitation and human rights as a type of democratic absolutism.
Burke’s critique of pure democracy in the name of an ‘embedded democ-
racy’ thus still persists, in updated form.
On the other hand, Burke’s early juxtaposition of market liberalism and
conservative defence of a sort of piety towards nation, family, religion and
established traditions remains very striking. This combination appears
again in the convergence today between neoliberalism and neoconserva-
tism. As Wendy Brown has highlighted, this convergence between two
schools of thought that both strive to limit or even depose the democratic
system nonetheless remains highly paradoxical. Neoconservatism grows
from a ‘moral rationality’ founded on an ideal of devotion to collectivity,
whereas neoliberalism forms part of a ‘market rationality’ that has little
interest in moral duties.120 Burke offers us one of the keys to this paradox
in his suggestion that a non-egalitarian market order assumes general
acceptance of the subordination of individuals to a hierarchical order.
This Burkean scheme hints at the fact that claims to human rights in
a neoconservative vein can hardly ever be more than a pretext.
119
Jean-Fabien Spitz, La Liberté politique, Paris, PUF, 1995, p. 473.
120
Wendy Brown, ‘American Nightmare : Neoliberalism, Neoconservatism, and
De-Democratization’, Political Theory, 34 (6), 2006, pp. 690–714.
A Progressivist Critique: Jeremy Bentham and Auguste
Comte
In answer to the revolutionary dynamics of human rights, Burke

developed a form of conservatism that would eventually lose its liberal
overtones among his later followers. However, many of the arguments he
makes can be dissociated from the traditionalism in which he often cloaks
them. For instance, Burke’s denunciation of the intractable contradiction
between the principle of egalitarianism and the tacit acceptance of
inequality entailed by the right to private property could just as well
feature in a radical liberal project advocating the maximisation of
collective wellbeing, or even in a Saint-Simonian type of socialism plan-
ning to return their share of the collective wealth to the disenfranchised.
What makes such a progressivist ‘reconversion’ of Burke’s analysis
possible is that when he rejects abstract universalism, he touches on
many utilitarian themes. These utilitarian undertones can even be
found in Maistre’s work, where the ‘best government’ is defined by its
ability to ‘provide the greatest possible sum of happiness and power, to
the greatest possible number of men, during the longest possible time’.1
The rejection of what Étienne Balibar calls ‘the proposition of equalib-
erty’ – the 1789 Declaration’s radical ‘identification’ of liberty and
equality2 – leads to the emergence of a competing ideal which emphasises
the optimal balance of liberty and equality. Liberty and equality are
perceived as separate entities, which can only increase up to a specific
point, and not by handing out rights according to a purely arithmetic
notion of equality.
However, when utilitarianism rejects the Burkean conflation between
tradition and usefulness, it loses its connection to conservatism. Instead,
it embarks on a critique of human rights unhampered by respect for the
aristocracies unseated by the revolution, and guided by the maximisation
1
Joseph de Maistre, Against Rousseau: ‘On the State of Nature’ and ‘On the Sovereignty of the
People’, trans. and ed. Richard A. Lebrun, London, McGill-Queen’s University Press,
1996, p. 159.
2
Etienne Balibar, ‘Droits de l’homme et droits du citoyen’, in Les frontières de la démocratie,
Paris, La Découverte, 1992, p. 134.
91
of collective happiness, or even the pursuit of equality understood not as

enjoyment of identical rights, but rather as the possibility for all citizens to
develop their unequal abilities, and thereby to profit from the material
and intellectual wealth created by the interaction of unequal positions.
Jeremy Bentham positions himself halfway between Paine and Burke.3
He ‘filters’ Paine’s progressivist intuition about the importance of safe-
guarding the freedom of choice of future generations through Burke’s
denunciation of the democratic absolutism of human rights. Similarly,
the Saint-Simonians, and later Auguste Comte, also qualified
Condorcet’s philosophy of progress by borrowing Maistre’s thesis about
the law’s inability to organise social life. The ‘metaphysics’ of human
rights came to be seen as the obsolete legacy of a transitional period of
crisis, of no relevance in an age of industrial and scientific progress.
The differences between Bentham’s and Comte’s thought are too
significant for the two of them to be considered as a unit, just as it
would be wrong, in spite of their many similarities, to equate Comte
with the Saint-Simonians (who wanted to abolish inheritance and to
grant equal rights to women, two ideas staunchly rejected by Comte).
Nevertheless, Bentham and Comte represent the two main advocates of
a utilitarian and progressivist critique of human rights. In Bentham it
finds its ‘liberal’ incarnation, since he stresses the pre-eminence of col-
lective utility, understood as the aggregation of individual utilities. Comte
represents its ‘social’ incarnation, since he considers social utility as the
utility of the whole social body, understood as an indivisible organism
greater than the sum of its parts.
Collective Utility versus Human Rights: Jeremy Bentham

At first glance, it is difficult to imagine two more antagonistic approaches
than Burke’s and Bentham’s. Burke considered it essential to foster due
reverence for authority by shrouding it in mystery, and by relying on
rituals and other types of ‘pleasing fiction’ designed to encourage
obedience. Bentham constantly sought to expose the raw workings of
power in order to free the minds of his readers from the false beliefs that
are the source of insidious domination. Burke guided jusnaturalism
towards the idea of a natural order of social hierarchies, safeguarded by
tradition and independent from such things as personal will or individual
reason. Bentham denied the existence of natural rights and considered
3
Jeremy Bentham, unpublished manuscript cited by Philip Schofield, ‘Jeremy Bentham
and the British Intellectual Response to the French Revolution’, Journal of Bentham
Studies, 13, 2011, pp. 1–27, p. 1.
Collective Utility versus Human Rights: Jeremy Bentham 93
legislation an instrument which could be changed in accordance with the

needs of collective utility. He criticised declarations of rights for robbing
future generations of the possibility to determine their own needs in their
own times.
Nevertheless, in spite of these very different premises and their
implications, Bentham’s attacks on human rights were no less abrasive
than Burke’s. Like the latter, he considered human rights a threat to
private property and an attempt to subject all other nations to specifically
French injunctions. With the same virulence as Burke, Bentham attacked
the Declaration line by line, denouncing its internal contradictions as well
as its ‘terrorist’ consequences.4 As early as 1776, in a pamphlet entitled
An Answer to the Declaration of the American Congress, Bentham denounced
natural rights as dangerous, as ‘vague generalities, sentiments, and
rhetoric’, and he excoriated the theories of Richard Price – the future
target of Burke’s own Reflections – who claimed that only direct or indirect
democracies were in conformity with natural law. ‘Dr. Price with his self-
government made me an anti-American’, Bentham later declared.5
Bentham became increasingly vocal in his support of representative
democracy with the years. During the first decades of the nineteenth
century, he was in favour of universal male suffrage, secret voting, annual
elections and the freedom of the press, arguing that elections were the best
way to force governments to truly work for the common good. In spite of
this, he never relented on his criticism of declarations of rights, which he
denounced as ‘a hodge-podge of confusion and absurdity, in which the
thing to be proved is all along taken for granted’.6 During the stormy
debates of the summer of 1789, Bentham wrote to his friend Brissot: ‘I am
sorry you have undertaken to publish a Declaration of Rights. It is
a metaphysical work – the nec plus ultra of metaphysics. It may have
been a necessary evil – but it is nevertheless an evil.’7 His reservations
about human rights (including Sieyès’s project), which he began to for-
mulate during this period, eventually led him to write the 1795 Nonsense
upon Stilts, a merciless critique of the Declaration not published until
1816 in French, before its first English edition in 1838.
4
Jeremy Bentham, Anarchical Fallacies, in John Bowring (ed.), The Works of Jeremy
Bentham, Edinburgh, William Tait, 1843, vol. 2, pp. 491–534, p. 501.
5
Herbert Hart, Essays on Bentham. Studies in Jurisprudence and Political Theory, Oxford,
Clarendon Press, 1982, p. 61.
6
Jeremy Bentham, letter to John Bowring (30 January 1827), in Luke O’Sullivan and
Catherine Fuller (eds.), The Correspondence of Jeremy Bentham, Oxford, Clarendon,
2006, vol. 12 (July 1824–June 1828), p. 308.
7
Jeremy Bentham, letter to Jacques Pierre Brissot, mid-August 1789, Bentham’s
Correspondence, in John Bowring (ed.) The Works of Jeremy Bentham, Edinburgh,
William Tait, 1843, vol. 10, p. 214.
Human Rights: A Theoretical Non-Sense

Bentham dismissed the notion of man’s natural rights because he did
not believe in the myth of a pre-social ‘state of nature’; instead he held
that ‘all men . . . are born in subjection, and the most absolute subjec-
tion – the subjection of a helpless child to the parents on whom he
depends every moment for his existence’.8 Having decided to interpret
the Declaration through the prism of ‘social contract’ theory (in spite of
the fact that such a contract is never mentioned in the text), Bentham
goes to great lengths to underscore that such a contract is ‘pure fiction’:
‘all governments that we have any account of have been gradually
established by habit, after having been formed by force; unless in the
instance of government formed by individuals who have been
emancipated . . . a rare case, and from which nothing follows with regard
to the rest’.9
If it is ‘nonsense on stilts’ to claim that a society’s laws are based on
a contract, then it follows that there is no such thing as a ‘natural law’, not
even in the sense recognised by Burke, that of a ‘metaphysically true’
abstraction. We obey laws because they are useful (since they increase our
overall individual happiness) and not because of some theoretical con-
tract which we entered into on the basis of primitive rights. It is not their
origin, but rather their aims and benefits which give legitimacy to
a society’s laws. It is a burden to obey them (since it entails effort and
limits personal freedom), so they therefore need to be counter-balanced
by a positive gain.
As an important scholar of his works points out, Bentham was afraid
of ghosts, and so he had to confront the difference between the real and
the imaginary at a very early age. Furthermore his legal studies left him
with a deep-seated hatred of legal jargon.10 His first published work,
A Fragment on Government (1776), is a model of close linguistic analy-
sis, in which he criticises the ‘fictions’ used by legislators, magistrates
and lawyers in order to confuse their opponents. What Bentham
expects of the critical analysis of language is that it should expose the
sophistry and confusion that help perpetuate social and political sub-
jugation. In this sense, as Herbert Hart suggests, his work can be seen
as an attempt to demystify legal language, and therefore as partially
similar to Marx’s own writing, in spite of the latter’s sarcastic dismissal
of ‘Sir Bentham’ as a ‘genius of bourgeois stupidity’ who based his
generalisations about human nature on the native prejudices of English
8 9
Bentham, Anarchical Fallacies, p. 497. Ibid., p. 55.
10
Catherine Audard, Anthologie historique et critique de l’utilitarisme, Paris, PUF, 1999,
p. 185.
Human Rights: A Theoretical Non-Sense 95
shopkeepers.11 From the very different vantage point of his measured

and gradualist reformism, Bentham had an equally sharp perception of
the way abstract concepts can insidiously impose the idea that injustice
and exploitation are facts of nature that human beings cannot
change.12
Bentham writes of the law that ‘it shews itself in a mask’.13 The role of
political writers is to open their compatriots’ eyes to the fact that legal
imperatives are nothing but the expression of a few determined men’s
personal will: ‘Law is something men add to the world, not find within
it.’14 In a sense, Bentham’s analysis anticipates Bourdieu’s later descrip-
tion of ‘the juridical field’, as well as the ‘hermeneutics of suspicion’ which
deconstructs the linguistic and symbolical systems that make legal mys-
tifications possible.15 Bentham criticises the linguistic process whereby
individuals or groups are referred to as abstract, fictional entities, such as
‘the Throne’ or ‘the Crown’ instead of ‘the King’, or ‘the Church’ instead
of ‘the churchman’, ‘the Court’ instead of ‘a Judge’.16
How, then, are concepts to be defined? In Bentham’s earlier writings,
definitions are understood as the resolution of complex thoughts into
simple elements that conform to the experience of the senses.
Gradually, however, Bentham developed his own personal approach to
conceptual definitions, which he called ‘paraphrasis’, and which aimed to
elucidate the meaning of terms by analysing the context in which they
were used rather than considering them in isolation. It was no longer
necessary for each word to refer to some element of the sensory experi-
ence; for a word to mean something, it was enough if the sentence in
which it appeared retained some direct empirical reference.17 Conversely,
if paraphrasis cannot elucidate meaning, then the noun designating
a fictional entity is merely a sound, and the proposition it is part of
meaningless.18
11
Karl Marx, Capital: A Critique of Political Economy, ed. Friedrich Engels, New York,
Cosimo Classics, 2007, p. 668.
12
See Hart, Essays on Bentham, p. 2 and ‘ Bentham and the Demystification of the Law’,
Modern Law Review, 36 (1), 1978, pp. 6–7.
13
Jeremy Bentham, Comment on the Commentaries and A Fragment on Government, ed. James
Henderson Burns and Herbert Hart, Oxford, Clarendon, 1977, p. 124.
14
Hart, Essays on Bentham, p. 2 and ‘Bentham and the Demystification of the Law’, p. 7.
15
Emanuelle de Champs, La Déontologie politique ou la pensée constitutionnelle de Jeremy
Bentham, Paris, Droz, 2008, p. 52.
16
Jeremy Bentham, The Constitutional Code, in John Bowring (ed.) The Works of Jeremy
Bentham, Edinburgh, William Tait, 1843, vol. 9, p. 76.
17
Jeremy Waldron, Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man
(1987), London, Routledge, 2014, p. 35.
18
Schofield, Utility and Democracy, p. 25.
As many scholars have pointed out, one of Bentham’s most innovative

contributions is his idea that our relationship to the world and to lan-
guage would be unintelligible if we considered that the words in
a sentence directly referred to elements of the real world and had mean-
ings independently from the sentences in which they were used. Jeremy
Waldron argues that the way Bentham defines terms in positive law such
as ‘right’ or ‘duty’ using paraphrasis represents the ‘triumph of
Benthamite jurisprudence’.19 Using this approach, it becomes clear
that terms like ‘right’ or ‘duty’ are fictional, whereas ‘law’, ‘sanction’
or ‘sovereign’ are not. The first of these do not refer to anything tangible,
whereas the second two express easily identifiable things that we can
hear, see and sense – things like orders designed to deliberately inflict
pain. However, even if we cannot know what words like ‘rights’ or
‘duties’ mean in themselves, we can determine the meaning of the
sentences in which they appear. Talking about duties means talking
about behaviours required by the sovereign under the threat of punish-
ment. If the meaning of sentences about ‘rights’ and ‘duties’ depends on
the meaning of other sentences about ‘sovereigns’ or ‘orders’, then it
follows that there is no way of talking about ‘natural duties’ or ‘natural
rights’ except if one refers to the commandments of some natural law
issued by a divine sovereign.20 Using a similar logic but with very
different intentions, Maistre (who had not read Bentham), concluded
that there could be no such thing as eternal rights and duties without an
explicit reference to a Legislator God.21
However, the revolutionaries rejected this conclusion, as Bentham
underscores: ‘in no mouths are (natural rights) so frequent nor so insisted
upon as in the mouths of those by whom the existence of a divine law and
a divine lawgiver are equally denied’. Doing away with the divine legis-
lator entails doing away with the law, which robs the notion of natural
rights of all meaning: ‘Right and law are correlative terms: as much so as
son and father. . . . A natural right is a son that never had a father.’22 For
Bentham, ‘right is the child of law’, and ‘poets, rhetoricians, and dealers
in moral and intellectual poisons’ are the ones to be blamed for giving this
child a ‘false parentage’ by leaving it on the doorstep of Nature.23
19
Waldron, Nonsense, p. 35. 20 Ibid., p. 35.
21
Joseph de Maistre, Soirées de Saint-Pétersbourg, 8th entretien, Œuvres, Paris, Laffont,
2007, p. 699. ‘Any concept of Right is divine’, Charles Maurras would later write,
referring to Comte; ‘let us not talk about right, lest we agree that it entails a theological
guarantee’ (Enquête sur la monarchie, Paris, Nouvelle Librairie Nationale, 1924,
p. ciii–cvii).
22
Jeremy Bentham, Supply Without Burden or Escheat Vice Taxation in Waldron,
Nonsense, p. 73.
23
Bentham, Anarchical Fallacies, p. 69.
Severing the tie between rights and the law is not only contradictory,
but it also strips the notion of rights of all criteria that can govern their
identification and their concrete applications. This leads either to endless
controversies or to a theoretical vacuum allowing people to claim any
political whim as a natural right. However, such abstract debates are
nothing more than a form of ‘verbal bludgeoning’.24 For Bentham, it
makes sense to say that specific types of people should have specific rights,
but not to claim that they should have legal rights by virtue of some pre-
existing, natural right: ‘a reason for wishing that a certain right were
established, is not that right – want is not supply – hunger is not
bread’.25 The very abstraction with which these rights are enunciated
betrays their ‘impertinence’ in the sense of ‘lack of pertinence’.26
The overall strategy of the Declaration is to articulate very general
demands in an absolute, abstract way – including demands about free-
dom, equality and private property. However, as Bentham points out, no
single form of government can be successfully established if such rights
are regarded as absolute. There must be some restrictions on personal
freedom (for freedom to mean anything at all) and some restrictions on
equality (for rights to actually be effective). From this perspective, the
very declaration of a right to freedom is devoid of meaning, insofar as the
function of the law is to safeguard the safety and the security of citizens by
imposing obligations. Any kind of obligation is, by definition, an infringe-
ment on personal freedom, and to claim the contrary is to pervert the very
meaning of the word – as if the freedom to do evil was not also a form of
freedom. Bentham’s conclusion is that ‘freedom is not the point of the
law’,27 or, more specifically, that ‘the law puts a limit on personal freedom
in order to make action possible’.28
The same is true of the principle of equal rights, which according to
Bentham would give lunatics an equal right to imprison their jailers. This
example, already used by Burke, shows that the real purpose of the law is
to create differential situations by ascribing rights to some people and
imposing obligations on others. What point is there to claim a right in the
absolute, without taking specific circumstances into account? This is
especially true since the actual manner in which the right is applied will
always depend on the specific needs of a nation’s citizens, and on the
restrictions they choose to put on it. For Bentham, it is absurd to combine
24
Waldron, Nonsense Upon Stilts, p. 36. 25 Bentham, Anarchical Fallacies, p. 501.
26
Ibid., p. 497.
27
Mohammed El Shahankiri, ‘Jeremy Bentham : Critique des droits de l’homme’, Archives
de philosophie du droit, 9, 1964, p. 150.
28
Guillaume Tusseau, ‘Jeremy Bentham et les droits de l’homme. Un réexamen’, Revue
trimestrielle des droits de l’homme, 2002, p. 424.
the claim that there exists such a thing as inalienable rights with the claim
that some form of government is necessary to safeguard these rights, and
that a government loses its legitimacy if it fails to do so. It is absurd
because by exercising its powers, all but the most utopian of governments
will automatically infringe on their citizens’ rights.
As Hart points out, the relevance of this criticism is paradoxically
confirmed by a contemporary advocate of the intangibility of rights.
When Robert Nozick, in Anarchy, State and Utopia (1974), asks ‘how
much room do individual rights leave for the state?’ it is striking that his
conclusion should be very similar to Bentham’s: he concludes that they do
not leave the state much leeway, except in an imaginary world.29 Bentham
ascribed what we would call a libertarian meaning to the Declaration of
Rights, far removed from its authors’ concerns about equal freedom.
Bentham was, arguably, well aware that those who defended the notion
of human rights did not adhere to a rigid interpretation of them, but
considered that they had limitations; He thought they were, in the words
of Herbert Hart, ‘on the horns of a dilemma between the impossible and
the nugatory’.30 When they did evoke the need to introduce certain
limitations, the authors of the Declaration expressed themselves in the
vaguest of ways in order not to undermine the thrust of their initial claim –
which did not, according to Bentham, prevent the very vagueness of their
formulations from nullifying the rights they had just declared.31 As he saw
it, the Declaration oscillated between the ‘futility’ of formulas devoid of
direct application, and the ‘nuisance’ of slogans which could be used to
justify any form of violence.32
However, the real contradiction may lie in Bentham’s own position,
since he interpreted the Declaration’s assertion of the irreducibility of
human rights as a claim that they were unlimited, which would make
them mutually exclusive. The Declaration itself never posits a right in
isolation from all others; on the contrary, it presents the equality of free-
dom as the organising principle determining the boundaries of each
person’s individual freedom. By reducing the idea of human rights to an
absurd belief in a pre-contractual state of nature absent from the actual
Declaration, Bentham takes the Declaration’s rhetoric, with its mentions
of ‘natural’ rights, at face value, without realising that what it expresses is
29
Robert Nozick, Anarchy, State and Utopia, New York (NY), Basic Books, 1974, p. ix.
30
Hart, Essays on Bentham, p. 152.
31
Commenting on Article 10 of the Declaration of 1789, which stipulates that the freedom
of expression should not disturb the public order established by law, Bentham ironically
remarks: ‘Disturb the public order? – what does that mean? Louis XIV need not have
hesitated about receiving an article thus worded into his code’ (Bentham, Anarchical
Fallacies, p. 513).
32
Ibid., p. 525, p. 414.
the crisis (rather than the consecration) of the idea of natural law. There is
no mention in the Declaration of any human ‘nature’ pre-existing the
social and political order. Bentham misunderstands both the meaning of
‘equaliberty’ and the extent to which this ‘extraordinary event of
a declaration that really was an autodeclaration’ must be understood as
a break with idealised notions of a ‘state of nature’.33 As Claude Lefort
and Étienne Balibar have both pointed out, the Declaration, in spite of its
phraseology, breaks with legal naturalism insofar as it never posits any
form of human nature independent from life in society.34
In spite of being very detailed, Bentham’s critique of the Declaration
comes across as crude in that he remains blind to its performative dimen-
sion. Amartya Sen effectively highlights the flaws in Bentham’s approach
when he points out that Bentham assessed the Declaration using the
wrong yardstick: instead of comparing an ethic based on human rights
to an ethic based on utility, the author of Anarchical Fallacies stubbornly
insisted on comparing the rights proclaimed by the Declarations to those
effectively guaranteed by the law. ‘Armed powerfully with the wrong
question and the wrong comparison, Bentham dismissed human rights
with admirable swiftness and breathtaking simplicity.’35 He never con-
sidered that declarations of rights could be used as a basis for the later
development of actual rights, and that sometimes right was not ‘the child
of law’, but rather its parent.
With a certain degree of bad faith, Bentham assumed that the
Declaration’s use of the indicative mode betrayed its authors’ confusion
between ‘pouvoir’ (to be able to) and ‘devoir’ (to have to), between
actual circumstances and abstract rights, without realising that this gap
between the affirmation of certain rights and the effective enjoyment of
them was precisely the space wherein political demands could be voiced.
He constantly denounced the lack of specificity with which the
Declaration’s rights are expressed, when it is precisely their indetermi-
nate nature – the fact that these rights ‘go beyond any particular for-
mulation that has been given of them’36 – that makes them so relevant
for disenfranchised social groups fighting for the concrete advantages
bestowed by the enjoyment of these rights; and Bentham himself would
33
Claude Lefort, Essais sur le politique, Paris, Seuil, 1986, p. 51.
34
Balibar, ‘Droits de l’homme et droits du citoyen’, p. 137. Lefort, Essais sur le politique,
pp. 51–52. For a detailed analysis of the Declaration’s break with the idea of a pre-social
human nature, see Marcel Gauchet, La Révolution des droits de l’homme, Paris, Gallimard,
1989, pp. 75–87 and 220–226.
35
Amartya Sen, The Idea of Justice, Cambridge (MA), Harvard University Press, 2009,
p. 361.
36
Claude Lefort, The Political Forms of Modern Society, ed. John B. Thomson, Cambridge
(MA), MIT Press, 1986, p. 258.
later become heavily involved precisely in this type of struggle, when he

campaigned for the extension of voting rights.
Anarchy, Tyranny and Selfishness: Burke and Bentham

For Bentham, the language of natural rights was not only theoretically
indefensible; it also opened the door to criminal consequences. In this
sense, his practical conclusions are very close to Burke’s. Like Burke,
Bentham identified three main evils born of the Declaration: anarchy,
despotism and violence.
Burke had already denounced human rights as a ‘digest of anarchy’
threatening the entire social order.37 Bentham shared the same concerns.
By introducing a ‘right’ to resistance, he considered that the Declaration
‘arm(ed) all fanatics against all governments’, since ‘among the immense
variety of ideas upon the natural law (. . .) each one will find some reason
for resisting human law’.38 That is why Bentham considered one of the
Declaration’s most corrupting fallacies to be the way it specifies what
governments ‘can’ or ‘can not’ do rather than what they ‘ought’ or ‘ought
not’ to do, irrespective of circumstances.
Can and can not, when thus applied – can and can not, when used instead of ought
and ought not – can and can not, when applied to the binding force and effect of
laws (. . .) are the disguised cant of the assassin: after them there is nothing but do
him, betwixt the preparation for murder and the attempt. (. . .) These are the
words that speak daggers(.)39
This leads to a second charge levelled at the rights of man, which also
echoes Burke’s earlier criticism: that the unlimited nature of these rights
risks transforming them into an instrument of despotism. Since all the
claims derived from these rights are equally absolute and yet mutually
exclusive, they are bound to lead to violence: since they are neither true
nor false, they can only impose themselves or be suppressed. The equality
of rights, which entails universal sharing, contradicts the sacred right to
private property; to give precedence to either one becomes equally
arbitrary.40 For Bentham, every article of the Declaration suffers from
37
Edmund Burke, cited by R. R. Fennessy, in Burke, Paine and the Rights of Man:
A Difference of Political Opinion, The Hague, Springer, 1963, p. 6.
38
Étienne Dumont, Principles of Legislation: from the ms. of Jeremy Bentham, ed. John Neal,
Boston (MA), Wells and Lilly, 1830, p. 308.
39
40
In Nonsense upon Stilts Bentham adds: ‘this declaration of rights may be allowed to have
made property sacred, even as Jephthah conceived himself bound to make his daughter
sacred by cutting her throat’ (The Collected Works of Jeremy Bentham: Rights,
Representation and Reform; Nonsense Upon Stilts and Other Writings on the French
Anarchy, Tyranny and Selfishness: Burke and Bentham 101
this over-generalisation: ideals like equality, liberty and democracy are

affirmed without taking into account their actual consequences for public
wellbeing, when the only valid reason to pass a law in the first place is the
beneficial consequences expected from it. As Bentham sees it, the
Declaration’s anti-consequentialism turns human rights into a basis for
misfortune and tyranny.
Finally, like Burke before him, Bentham violently denounced the self-
ish individualism underlying the Declaration of Rights, which he saw as
a threat to social cohesion:
The great enemies of public peace are the selfish and dissocial passions –
necessary as they are – the one to the very existence of each individual, the other
to his security. (. . .) What has been the object, the perpetual and palpable object,
of this declaration of pretended rights? To add as much force as possible to these
passions, already but too strong, – to burst the cords that hold them in, – to say to
the selfish passions, there – everywhere – is your prey! – to the angry passions,
there – everywhere – is your enemy.41
Nevertheless, in spite of their shared concerns about the rights of man,
Burke’s and Bentham’s perspectives remained radically different. For
Burke, order followed from tradition: once order had been established it
automatically became a social good which must be preserved. Bentham’s
position, on the other hand, was that of the tireless reformer. He spent his
life developing the right criteria to assess and improve existing laws.
However, as he saw it, no claim about the need for a specific law could
ever be considered as a legal judgement, only as the expression of
a subjective sense of dissatisfaction. In spite of being subjective, this
feeling could still be justified using rational arguments about the law’s
utility. Utilitarian arguments could therefore establish the validity of
moral arguments about laws and legal rights.
Bentham established a distinction between ‘the anarchist’ and ‘the
rational censor of the laws’.42 Nothing prevents the latter from being
a good citizen: though he campaigns for the suppression of a law he
does not approve of, he does so without questioning its status as law.
However, this does not entail any form of blind adherence to the laws
already in place. The anarchist, on the other hand, denies the law’s very
existence and makes of his own will a universal law: ‘What is, is not, such
is the dangerous maxim of the anarchist every time he comes across
something that resembles a law he does not like.’43 Interestingly, on this
Revolution, ed. Philip Schofield, Catherine Pease-Watkin and Cyprian Blamires, Oxford,
Clarendon, 2002, p. 374).
41
Bentham, Anarchical Fallacies, p. 497. 42 Bentham, Anarchical Fallacies, p. 498.
43
Elie Halévy, La Formation du radicalisme philosophique, 1901, Paris, PUF, 1995, p. 35.
point Bentham is equally dismissive of conservatism and anarchy. As he

sees it, conservatives justify positive laws by stressing their accordance
with the laws of nature, whereas anarchists dismiss positive laws because
of their supposed incompatibility with the laws of nature: ‘since both
appeal to an inexistent criterion in order to justify their arguments, both
are saying nonsense’.44
In Burke’s critique of human rights, an important argument is the
respect due to previous generations. The opposite is true for Bentham:
he criticises declarations of rights for robbing future generations of the
possibility to choose according to their own needs. Whereas Burke sees
each generation as one link in a long chain of solidarity uniting past and
future generations, Bentham considers it utterly absurd for any man to
‘love posterity better than the present generation; to prefer the man who is
not, to him who is; to torment the living, under pretence of promoting the
happiness of those who are not born, and who may never be born’.45
This is a major difference between Burke and Bentham: the latter was
motivated just as much by his dislike of the established order as by his
dislike of anarchy. The past had no intrinsic value for Bentham. As he saw
it, the wisest and best informed of his ancestors were nevertheless com-
pletely ignorant on many subjects compared with the least educated
citizens of his own generation, and this discrepancy indicated another,
more epistemological way in which human rights could become a source
of tyranny: through their pretence of infallibility. For Bentham, absolut-
ism always entailed a form of intellectual arrogance:
What, then, was their object in declaring the existence of imprescriptible rights
(. . .)? In us is the perfection of virtue and wisdom: in all mankind besides, the
extremity of wickedness and folly. Our will shall consequently reign without
control, and for ever: reign now we are living – reign after we are dead. All nations –
all future ages – shall be, for they are predestined to be, our slaves.46
As Bertrand Binoche points out, this passage is central to Bentham’s
thinking about human rights. His ‘negative take on the Burkean meta-
phor of the chain’ means that Bentham finds himself, somewhat para-
doxically, closely aligned with Paine, who used a similar argument in his
polemical wrangles with Burke. In his Rights of Man, Paine wrote:
‘The vanity and presumption of governing beyond the grave, is the
most ridiculous and insolent of all tyrannies. Man has no property in
man; neither has any generation a property in the generations that
44
Schofield, Utility and Democracy, p. 75.
45
Jeremy Bentham, ‘Principles of the Civil Code’, in John Bowring (ed.), The Works of
Jeremy Bentham, Edinburgh, William Tait, 1838, vol. II, p. 321.
46
follow.’47 Bentham is similarly vocal about the constant need to free the
present from the ‘morbid weight of tradition’. The difference is that he
articulates this argument in opposition to the project of establishing
a body of fundamental laws, ‘that is, in opposition to the notion of
human rights evoked by Paine, who considered these rights to be “nat-
ural” and therefore to deserve to be enshrined into a declaration which
would be binding for all generations’.48
In an interesting article devoted to Bentham’s take on temporality,
François Ost points out that Bentham disqualifies three different kinds
of time commonly used in legal thought: the mythical time of origins – the
primal, sacred time of foundational events, be it a divine mandate, a social
contract or a revolution; the backward-looking time of custom with its
focus on steadily accrued precedent; and the type of ‘instantaneous time’
which sees the genesis of a legal norm as a ‘pure moment of reason’.49
Bentham’s take on time, by contrast, is resolutely gradualist and
reformist. From his perspective, the first step in determining what legal
rights citizens should enjoy should be to investigate the time, place and
circumstances in which the law is meant to operate. Like Burke before
him, Bentham ridicules the notion that philosophers should be able to
determine universal rules governing all types of societies, based only on
abstract and timeless principles.
However, this type of pragmatism does not mean that Bentham places
value on prejudice or some vague wisdom passed down through history.
On the contrary, he stresses the importance of constantly anticipating
future developments, and of tirelessly looking for rational ways to guar-
antee the greatest happiness of the greatest number of people. Burke
believed public action could never be truly transparent; the legitimacy
of a political system depended on its retaining a degree of mystery and
opacity. Bentham’s method, on the other hand, consists in developing
clear and intelligible formulae designed to assess the impact of public
actions on the happiness of all people concerned, with all individuals
being considered equally important.
All of which brings up the question of the value ascribed to the indivi-
dual in Bentham’s thought. Burke considered that one of the major errors
of the proponents of human rights was to consider society as no more than
47
Thomas Paine, ‘Rights of Man’, Part I (1791) in Bruce Kuklick (ed.), Political Writings,
48
Binoche, Bentham contre les droits de l’homme, p. 44.
49
François Ost, ‘Codification et temporalité dans la pensée de Jeremy Bentham’, in
Philippe Gérard, François Ost and Michel Van de Kerchove (eds.), Actualité de la
pensée juridique de Jeremy Bentham, Brussels, Presses des Facultés Universitaires Saint-
Louis, 1987, p. 212 ff.
a collection of individuals. For Bentham, on the other hand, the only basis
for determining collective happiness is the happiness of every single
individual: the interest of the individual is ‘the only real interest’.50
The question is whether this belief is sufficient to claim Bentham as
a ‘methodical defender of the prerogatives of the individual’.51
Utilitarian thought has, undeniably, proved to be sensitive to the
demands of individuals – be they women, homosexuals, Jews or colonial
populations. It is also true that the so-called sacrificial argument (accord-
ing to which collective interest outweighs the respect due to the
individual) does not take into account the fact that the calculation of
utility can in fact ‘represent an obstacle to (individual) sacrifice since it
takes into account secondary disadvantages such as the fear and insecur-
ity felt by anyone at the thought that they could be sacrificed’.52
However, this obstacle to sacrifice remains a very fragile one insofar as
it relies on complex calculations that may be revised according to circum-
stances at any given time. The defensive argument that Bentham’s utili-
tarianism safeguards the essential content of the rights of man,
meanwhile, is flawed in that it seems to consider this mandatory, as if
the utility principle must be inflected by ethical intuitions independent of
it. What Bentham never considers is the possibility, well-illustrated
around the same period by the writings of Sade, that individuals may
derive a degree of pleasure from seeing the suffering of others, a pleasure
that proves far superior to any concerns about their own physical safety;
many reactionary writers, on the other hand, were acutely aware of this
attraction to evil, which they saw evidence of in the popular violence
unleashed by revolutionary terrorism.
Let us assume, following Benjamin Constant, that Bentham’s utilitar-
ianism really does lead to ‘the same consequences as those that derive
from natural law’, and that the only real difference between utilitarianism
and natural law is one of ‘terminology’. Even then, as Constant points
out, it is undeniable that that the notion of utility – which is no less flexible
than that of natural law – endangers respect for the law far more since it
depends on ‘our daily interests’ and not on ‘our sense of duty’.53
Furthermore, by stipulating that disobedience to the law is only war-
ranted if the nefarious effects of the law are greater than those entailed
by obedience, utilitarianism can also be said to encourage submission to
regimes of terror (where disobedience is severely punished) and disobe-
dience to liberal regimes, where the risks entailed by civil disobedience are
50
Halévy, La Formation du radicalisme philosophique, p. 82.
51
Tusseau, ‘Jeremy Bentham et les droits de l’homme’, p. 411. 52 Ibid., p. 430.
53
Benjamin Constant, ‘Des droits individuels’, in Marcel Gauchet (ed.), De la liberté chez les
modernes, Paris, Hachette, ‘Pluriel’, 1988, p. 432.
much smaller. This leads to a rather paradoxical conclusion: that indivi-

duals can only behave in accordance with their real utility if they base their
actions not on a felicific calculus, but on a non-utilitarian sense of their
rights and duties – or even of their own personal dignity.54
It is therefore difficult to contest Rawls’ conclusion that utilitarianism is
not fundamentally a form of individualism, since by treating all systems of
desire as equally valid, it also undermines any sense of the plurality – and
therefore of the uniqueness – of different individuals.55 That an intelligent
calculation of social utility can lead to a level of protection of personal
freedom essentially similar to that guaranteed by the Declaration of
Rights does not change the fact that this is the accidental outcome of
a collective felicific calculus that does not even take into account notions
like respect for an individual’s personal dignity or integrity. As Catherine
Audard remarks, even if Bentham’s utilitarianism is a ‘methodological’
form of individualism (since it ascribes equal value to each individual), it
cannot be considered an ‘ethical’ form of individualism, since it ‘does not
take into account that each person is a unique individual endowed with
inalienable rights’; instead, it considers their needs to be essentially
similar and therefore comparable.56
One can even argue that the opposition established by Bentham
between collective utility and human rights goes as far as to endanger
the methodological individualism that underpins his democratic
engagement. As Larry Siedentop points out, utilitarianism does not
provide any ‘satisfying answer’ to the question of why, when it comes
to determining collective utility, each individual should be counted as
one person and one only.57 This is by no means self-evident: there are
plenty of historical examples of aristocratic societies taking it for granted
that some individuals count more than others. In the late nineteenth
century, Nietzsche articulated an influential defence of the aristocratic
principle, arguing that individuals, in the original sense of the word,
were always few in number, and that in every great civilisation the
masses were always sacrificed for the good of a small elite. As he wrote
in his glowing endorsement of caste systems: ‘The inequality of rights is
the very condition of there being rights at all.’58
54
Ibid., pp. 433–435: ‘Rights are a principle, utility only a result (. . .) You effectively destroy
utility by giving it first place.’
55
John Rawls A Theory of Justice, Cambridge (MA), Harvard University Press, 2009, p. 24.
56
Catherine Audard, Qu’est ce que le libéralisme?, Paris, Gallimard, 2009, p. 151.
57
Larry Siedentop, Democracy in Europe, London, Penguin Books, 2001, p. 192.
58
Friedrich Nietzsche, ‘The Antichrist’, in Twilight of the Idols and The Antichrist, trans.
Tomas Common, New York (NY), Dover Publications, 2012, p. 128.
Bentham for his part writes: ‘Difference in rights is precisely that which
constitutes social subordination. Establish equal rights for all, there will
be no more obedience, there will be no more society (. . .) ‘If all men are
equal in rights, there will not exist any rights.’59 Why does Bentham,
unlike Nietzsche, not intend this maxim as an endorsement of the sacri-
fice of the masses for the good of an aristocracy of superior individuals?
Why does he consider that each individual counts as one – if not for the
fact that he tacitly presupposes every individual to have the same funda-
mental human right, the right to count as ‘one’ like all others?60 It would
not be impossible to claim that Bentham’s utilitarianism really rests on an
incoherent form of egalitarianism, which simultaneously asserts and
denies the equality of rights between all individuals.
*
In his 1978–1979 lectures at the Collège de France, Michel Foucault made
a distinction between two different ways of limiting the exercise of political
power, the ‘revolutionary’ or ‘juridico-deductive’ approach which was – ‘up
to a point’ – that of the French Revolution, and the ‘inductive’ or ‘residual’
approach of ‘English radicalism’.61 Whereas the ‘juridico-deductive’
approach starts with human rights in order to establish the desirable limits
of governmentality, the second aims to curb governmental action by ques-
tioning its utility. Hence the ‘absolutely heterogeneous’ conceptions of
freedom associated with these two approaches, ‘one based on the rights of
man, and the other starting from the independence of the governed’.62
When it comes to Bentham’s own thought, this clear-cut distinction
needs nuancing. For one, Foucault’s antithesis between the law as ‘the
expression of a will’ (with securitised rights which effectively limit each
other) and the law as ‘the effect of a transaction’ (between the government
and the sphere of personal freedom) does not account for the importance
ascribed to personal will in Bentham’s approach to the law. Furthermore,
by doing away with the constraints associated both with natural law and
with tradition, Bentham’s aim is to give more freedom to the sovereign in
his quest to determine the greatest good for the greatest number. It is also
worth noting that, as Foucault’s editors point out, his was a very ‘free’
approach to Bentham’s thought, based on the somewhat hasty assump-
tion that Bentham was a partisan of laissez-faire economics.63 For
59
Bentham, Anarchical Fallacies, p. 533. 60 Siedentop, Democracy in Europe, p. 192.
61
Michel Foucault, The Birth of Biopolitics : lectures at the Collège de France 1978–79, ed.
Michel Senellart, trans. Graham Burchell, Palgrave Macmillan, 2008, pp. 39–40.
62
Ibid.
63
See footnote 27 of the lecture dated 24 January 1979 in Michel Foucault, Naissance de la
biopolitique. Cours au collège de France 1978–1979, Paris, Gallimard-Seuil, 2004, p. 75.
Bentham, the point of the law is its utility rather than its protection of
personal freedom, though it is true that Bentham gradually came to see
the defence of personal freedom as one of the best ways of maximising
public utility.
That said, Foucault’s analysis does highlight a dimension of liberal
thought which also finds its expression in the theories of writers like
Vilfredo Pareto or Friedrich Hayek, whose defences of personal freedom
are motivated by their belief in the superior utility of the free market and
not by their adherence to the imprescriptibility of human rights – which is
also why Pareto and Hayek recognise that free markets are not incompa-
tible with authoritarian regimes. Foucault notes that there are different
dangers associated with each of these two ways of safeguarding personal
freedom. Since it does not leave any room for ‘the art of governance’, the
human rights approach always risks absorbing the protection of individual
rights into the overall exercise of sovereign power, and so producing
a system where ‘the juridical constitution of the sovereign is so strong
that the exercise of basic rights are reduced to pure ideality’.64 The liberal
approach, on the other hand, means that the rights of the governed are
determined from the point of view of ‘governmental utility’, which always
risks emphasising ‘general utility over individual utility and (so to) infi-
nitely reduce the independence of the governed as a consequence’.65
Though it may seem paradoxical, there is no contradiction, from this
perspective, between taking into account the rights of those who are
governed, and prioritising ‘governmentality’ over respect for fundamental
rights. Laissez-faire is based not on legal principles but on utilitarian
calculations, which means that the independence of the governed is
merely the optimal result of a form of governmentality that entrusts the
regulation of human behaviour to non-governmental mechanisms.
The free market represents one such mechanism, since its reliance on
open and fair competition forces everyone to internalise these constraints
as rules governing individual behaviour.
From this perspective, astonishing and hasty though it may seem at
first, Foucault’s suggestion that Bentham’s Panopticon (an architectural
form designed to ensure total surveillance66) represents ‘the very formula
of liberal government’ makes a lot more sense.67 What it suggests is that in
64
Foucault, The Birth of Biopolitics, p. 43. 65 Ibid., p. 43.
66
Foucault famously analysed the implications of this design in Discipline and Punish.
67
Foucault, The Birth of Biopolitics, p. 67. This was not Foucault’s last word on liberal
utilitarianism. Without reneging on the ideas about the normalising underside of modern
liberties presented in Discipline and Punish, Foucault shrank them to size somewhat from
1978 onwards, stressing the anti-disciplinarian aspects of liberal governmentality. See ‘Revue
d’études benthamiennes’, 8, 2011 (Foucault et l’utilitarisme); José Luis Moreno Pestaña,
Foucault, la gauche et la politique, Paris, Textuel, 2010; Serge Audier, Penser le
the utilitarian model, ‘the independence of the governed’ merely means

that society is entrusted with monitoring itself. Seen like this, the
Panopticon can indeed be described as a model of the relationship
between a liberal government and the mercantile society that it oversees:
its primary role is to observe from a distance in order to assess whether the
‘natural mechanics’ of economic activity are running smoothly, and to
intervene only if they come into disarray. This explains why, in a model
not predicated on human rights, economic freedom can be so closely
associated with ‘disciplinary techniques’ or ‘the considerable extension of
procedures of control, constraint and coercion’.68 It is useful here to recall
that the Panopticon is not Bentham’s only relevant work: in Outline of
a Work Entitled Pauper Management Improved, he argued in favour of
committing the poor to labour houses run by a private monopoly.69
As Robert Castel points out, ‘the imposition of the total institution appears
as the dark shadow cast by the liberation of work’.70
Social Utility versus Human Rights: Auguste Comte

It may seem surprising to pair Comte with Bentham. The seductive
influence Comte’s positivism had for a time on John Stuart Mill as
evidence could certainly be seen as proof of an affinity between the
English tradition stretching from Bentham to Mill and the French tradi-
tion from Saint-Simon to Comte.71 However, quite aside from the fact
that the differences between Mill and Bentham (on such issues as the
death penalty or plural voting) are just as marked as those between Comte
and Saint-Simon (on inheritance and women’s rights), the short-lived
agreement between Mill and Comte72 is not enough to cancel out the
antagonisms between Comte’s positivism and Bentham’s utilitarianism.
Although they share a similar premise – the decision to reject metaphysics
and to limit their field of enquiry to facts and the laws governing them
‘néolibéralisme’. Le moment néolibéral, Foucault et la crise du socialisme, Lormont, Le Bord de

l’eau, 2015.
68
Foucault, The Birth of Biopolitics, p. 67.
69
Jeremy Bentham, ‘Tracts on Poor Laws and Pauper Management: Outline of a Work
Entitled Pauper Management Improved’, in John Bowring (ed.), The Works of Jeremy
Bentham, Edinburgh, William Tait, 1843, vol. VIII.
70
Robert Castel, Les Métamorphoses de la question sociale, Paris, Fayard, 1995, pp. 157–158.
71
For more on Mill’s enthusiastic but short-lived interest in Comte’s positivism, see
The Correspondence of John Stuart Mill and Auguste Comte, ed. and trans. Oscar A. Haac,
New Brunswick (NJ) and London, Transaction Publishers, 1995. Comte suggested to
Mill that Bentham’s philosophy might be seen as a transition towards positivism.
72
See John Stuart Mill, Auguste Comte and Positivism, London, N. Trübner & Co, 1865.
Mill largely agrees with the first phase of Comte’s philosophy, but dismisses the second
phase (which intends to found a new religion).
Social Utility versus Human Rights: Auguste Comte 109
(which can be considered as general facts) – nothing seems further from

Bentham’s utilitarianism than the sociology of Comte, whose guiding
principle was to ‘make our sympathetic instincts preponderate as far as
possible over our selfish instincts’.73 Christian Laval writes that ‘Comte’s
fundamental thesis’ about ‘the need for spiritual and moral unity of
society’ ‘entails a radical criticism of the very foundations of
utilitarianism’.74
The opposition between Comte’s holism and Bentham’s individualist
methodology is accentuated by a political incompatibility. While
Bentham believed democracy to be the most reliable system to ensure
the triumph of the common good, Comte denounced universal suffrage
and the parliamentary system as errors, advocating instead a spontaneous
regulation of society by two distinct forms of power – temporal and
spiritual – which arise from the interplay of material and moral forces.
What is more, Bentham would no doubt have considered Comte’s later
attempts to transform the spiritual impulse into a positivist religion based
on the sociological systematisation of scientific knowledge absolutely
absurd. ‘Just as theocracy and theolatry rest on theology’, Comte wrote at
this time, ‘sociology clearly constitutes the systematic basis of sociocracy
and sociolatry’.75 The dry calculations of utilitarian politics are poles apart
from the Comtian project of a positivist Church, whose priests would lead
the faithful in their worship of ‘Humanity’, including in the veneration of
the Virgin Mother and of the ‘Great Fetish’, the earth itself.
However, in spite of all these differences there is a deep kinship
between Bentham’s and Comte’s approaches to human rights. Comte’s
motto, ‘Order and Progress’, could just as well have been coined by
Bentham to express his dual ambition. Bentham combines Paine’s love
of progress with a critique of human rights not unlike Burke’s. Comte,
meanwhile, combines the rationalist progressivism of Condorcet with
a theory of social order borrowed from Maistre and Bonald but ‘de-
theologised’.76 He sanctions the destruction of the ancien régime even
73
Auguste Comte, ‘Appel aux conservateurs’ (1855), in Pierre Arnaud (ed.), Du pouvoir
spirituel, Paris, Pluriel, 1979, p. 395.
74
Christian Laval, L’Ambition sociologique, Paris, Gallimard, 2012, p. 213.
75
Auguste Comte, Système de politique positive (1851–1854), Paris, Société Positiviste,
1929, vol. 1, p. 403.
76
There is a recurrent desire in Comte’s writing to enrich Condorcet’s philosophy of history
by incorporating elements from ‘the retrograde school’ of Bonald and Maistre. For more
detail see Frédéric Brahami, ‘Sortir du cercle. Auguste Comte, la critique et les
rétrogrades’, Archives de Philosophie, 2007, 1, pp. 41–55, and ‘Déchirure et production
politique du temps. Science et volonté autour de la Révolution française’, Incidence, 7 :
L’Enigme du régicide, Paris, 2011, pp. 249–290, as well as Pierre Macherey, Etudes de
philosophie « française ». De Sieyès à Barni, Paris, Publications de la Sorbonne, 2013, pp.
233–256.
as he denounces the anarchical impulse behind the ‘revolutionary

metaphysics’ of rights, which ignores the true ‘utility’ of social organisa-
tion. Crucially, Comte considers usefulness to be a key component of the
‘positive spirit’, which he defines as a scientific spirit having renounced
the ‘empty satisfaction of a barren curiosity’ in order to ascertain ‘the
degree of precision compatible with the nature of phenomena and in
accordance with our real needs’.77 In the positivist order, utility, under-
stood as the index of humanity’s ‘real needs’, becomes the ultimate norm
of science. Science, which ‘always considers the relative rather than the
absolute’, must ‘correspond to our situation and to our organisation’.
Science must be understood as a kind of social service. And although it
does not have to guarantee immediate returns, science must nevertheless
be guided by a ‘final intention of utility’, with the ‘demands of its applica-
tion’ determining what type of research ought to be carried out.78
The project of systematising science based on its social function (the
aim being to better serve sociability by better understanding it) is what
most clearly opposes Comte’s positivism to Bentham’s utilitarianism.
Comte reformulates the principle of utility from ‘a social perspective’,
that of ‘sociology’, a term he coined in 1839 in order to endow ‘social
physics’ with the prestige of a system of logics or morality.79 Bentham
thought of collective utility as the sum of all individual utilities, whereas
Comte equates social utility with that of the social body as a whole;
though the wellbeing of individuals is tied up with it, they do not decide
the rules of its evolution. The only way to determine social utility with ‘the
same certainty’ as in a geometric conclusion is to rely on the scientific
77
Auguste Comte, Discours sur l’esprit positif (1844), Paris, Vrin, 1983, pp. 63–69. Appel aux
conservateurs, p. 391.
78
Ibid., pp. 20, 46, 68–70. Although Christian Laval admits that the principle of utility
informs Comte’s work on the ‘macroscopic’ level (L’Ambition sociologique, pp. 166–170),
he underestimates its importance based on the fact that Comte posits the absence of
utilitarian motivations as one of the conditions of scientific progress. He forgets that the
advent of sociology, by unifying all the branches of knowledge, also makes social utility
the new guiding principle of science. From that point onwards, ‘one should think of
science as essentially one, human science or more exactly social science’ (Discours sur
l’esprit positif, pp. 38–39), whose only lasting function is to ‘serve sociability’
(Auguste Comte, Discours sur l’ensemble du positivisme (1848), Paris, GF-Flammarion,
1998, p. 55). In his last work, Comte goes so far as to deliberately omit any mention of the
word ‘truth’ in his definition of ‘logic’: ‘the normal interplay of feelings, images and signs,
designed to instill in us the notions which correspond to our moral, intellectual and
physical needs’ (Synthèse subjective, Paris, chez l’auteur, 1856, p. 27).
79
Auguste Comte, Cours de philosophie positive (Physique sociale), 47th lesson, Paris,
Hermann, 1975, p. 88. The term ‘sociology’ had already been used by Sieyès in
a manuscript unknown to Comte (Jacques Guilhaumou, ‘Sieyès et le non-dit de la
sociologie’, Revue d’histoire des sciences humaines, 15, pp. 117–134).
Social Utility versus Human Rights: Auguste Comte 111
knowledge of living conditions and of the evolutionary laws governing

social entities, from which ‘individual happiness’ derives.80
There is no need to enter here into the complex architectonics of Comte’s
‘politics of the spirit’, which eventually acquires the status of a ‘positive
religion’ in the second part of his work. Of greatest interest to our own
argument is Comte’s reliance on the guiding principle of social utility, which
makes his thought one of the two main ‘types’ of progressivist criticism of
human rights.81 Comte is especially virulent in his social critique of human
rights. His position on this topic remains remarkably consistent throughout
his oeuvre; it rests on the notion that the idea of individual rights cannot be
the organising principle of social life. The abstract metaphysics of human
rights must be replaced by a set of rules based on the needs of the social
body – and more generally on the needs of that larger organism made up of
many social organisms known as Humanity.
In emphasising that society must be founded on altruistic feelings
rather than rational calculations of self-interest, what Comte rejects is
not so much the rule of utility as such, but rather the ‘metaphysical’
notion that individuals are capable of knowing what is best for them and
that such knowledge can be attained independently of a close examina-
tion of social context. Such a notion is not so far removed from the fiction
of an original state of nature, with its conception of human beings as
separate, intrinsically asocial entities. Comte’s answer to this is that
individuals are ‘an intellectual abstraction’, and that society is the only
thing that really exists: ‘man does not exist as such, Humanity alone is
real, since our entire development is due to society’. Having established
this, it is pointless to try to determine collective wellbeing on the basis of
individual wellbeing. The correct approach is the opposite: since the
individual exists only by virtue of ‘the bond of each to all’ and ‘social
solidarity’, individual wellbeing must be understood as deriving from
collective happiness. This is why empirical observation confirms that
happiness derives primarily from the ‘sympathetic instincts’ and that
individuals find the greatest degree of private happiness in ‘the active
pursuit of the public good’.82 It is therefore essential to move beyond the
80
Comte, Discours sur l’esprit positif, pp. 110–111.
81
Comte’s critique of the legal system is heavily indebted to Saint-Simon (for whom Comte
worked as a secretary). However, the question of Comte’s relationship to Saint-
Simonianism (the subject of Henri Gouhier’s three-volume work entitled La Jeunesse
d’Auguste Comte, Paris, Vrin, 1964) is too vast a topic to be properly addressed here. For
a broader perspective on Comte’s thought within nineteenth-century social philosophy,
see Bruno Karsenti, D’une philosophie à l’autre. Les sciences sociales et la politique des
modernes, Paris, Gallimard, 2013 and Frédéric Brahami, La Raison du peuple, Paris, Les
Belles Lettres, 2016.
82
Comte, Discours sur l’esprit positif, p. 118.
idea of individual rights, not by adding together selfish or subjective

utilities, but rather by objectively determining the utility of Humanity
itself, of which all individuals are but the organs.
From a Metaphysics of Rights to a Social System of Duties

Since one of the main tenets of positivism is to consider nothing but
verifiable facts, it has little time for ‘strange metaphysical notions’ such
as the state of nature, social contracts or natural rights.83 Society is no
longer seen as a free choice made by naturally independent individuals,
but as a mode of organisation outside which the notions of human
existence and individuality lose all their meaning. Human beings are
not born adult. They only become human beings through a long process
of socialisation that begins within the family sphere. That is why ‘the
scientific mind’ does not consider society as ‘really made up of indivi-
duals’; the ‘real social unit’ is the family.84 Comte’s first methodological
principle is almost tautological: society needs to be studied from
a sociological perspective that can grasp the conditions for existence
and evolutionary laws of society qua society. What these laws outline
are the necessary conditions governing the evolution of collective life,
depending on its level of development, and subject to the same kind of
prior constraints studied by physics and chemistry (the inorganic
sciences) and biology (organic science, whose remit matches that of
sociology).
From its beginnings, the history of humanity is really the history of
human societies, and its dynamics are the outcome of the theoretical and
practical relationship between organised groups and the natural
environment with which they interact. Comte believed he had identified
the formula behind social evolution in his famous ‘law of three stages’.
It holds that the human mind necessarily passes through three successive
stages, but in different rhythms depending on the area (which accounts
for many of the discrepancies noticeable in the historical evolution of
mankind). First, it goes through a theological (or fictional) stage, in which
everything that happens is explained by supernatural causes, resulting in
a society organised along military and feudal lines; following which comes
a metaphysical (or abstract) stage, in which theology is submitted to
rational criticism, and deities are replaced by abstract entities like nature,
leading to the institutional supremacy of ‘jurists’ and of literary intellec-
tuals. Finally, the human mind reaches the positive stage, and humanity
83 84
Comte, Cours de philosophie positive, 46th lesson, pp. 34–35. Ibid., pp. 34–35.
From a Metaphysics of Rights to a Social System of Duties 113
adopts its last, definitive form of social order, in which industrialists and
the spiritual authority of scientific thought reign supreme.85
This historically oriented form of sociology shares the progressivist and
anti-anarchist aims of Bentham’s utilitarianism, but without adopting
individual self-interest as its guiding principle. In Comte’s thought, indi-
vidual utilities do not coalesce into a harmonious whole, and do not offer
clear guidelines for resolving the conflicts that such an association neces-
sarily brings about. A society cannot reach agreement based on indivi-
duals’ representations of their own needs and wellbeing. Instead, its
organisation is determined by the (theoretical and practical) demands
associated with the division of labour that is necessary for society to
achieve order and progress. Its aim cannot be an amorphous notion of
wellbeing, which may be different for every individual concerned. Beyond
the organisational constraints entailed by a society’s level of knowledge
and technological progress, its aim should be nothing other than the
progress of reason and the improvement of the human condition and of
human nature. Collective utility should not be understood as a purely
quantitative measure indicating the satisfaction of desire, without taking
the human quality of these desires into account. To determine collective
utility, it is necessary to scientifically establish the organisational princi-
ples of an industrial society whose structuring principle is not ‘individual
self-interest’, but rather the optimal development of human activities
depending on their means and ends, and on the abilities of each citizen.
Individualism is not only a sociological mistake but also a normative
one. Human society exceeds the sum of its parts and cannot be under-
stood as merely an aggregation of individuals; its structure requires all
individuals to abandon their own self-interest in favour of ‘altruism’,
a term invented by Comte. Social solidarity is not only a given (since
individuals rely on society for their own personal development), but it
must also be understood as a basic duty, insofar as every individual owes
a debt to society that can never fully be paid back; furthermore, society
itself is also the only possible source of immortality available to indivi-
duals, who are called to identify with humanity as a whole. The aim of
social education is to weaken all ‘selfish impulses’, not by destroying them
altogether, but rather by subordinating them to the ‘sympathetic
instincts’, allowing individuals to realise that the best path to happiness
is to carry out their social duties. For positivism, all of human morality can
85
Comte briefly outlines this law in his Discours sur l’esprit positif, pp. 2–29. He also devotes
lessons 52 to 57 of his Cours de philosophie positif to it. See Michel Bourdeau, Les Trois
états. Science, théologie et métaphysique chez Auguste Comte, Paris, Éditions du Cerf, 2006.
be reduced to one imperative: ‘Living for others’, which is also the ‘com-
mon source both of happiness and duty’.86
This fundamentally social dimension of human life disqualifies the
‘very notion of right, which is based on an absolutist notion of
individuality’.87 In the same way that positivist science no longer tries to
discover the first causes behind the world’s existence, replacing ‘the
impossible determination of the actual causes’ with ‘the simple search
for laws, that is, for the permanent relationships between the different
phenomena under observation’, so positivist politics dismisses the notion
of ‘rights’ as a typically ‘theologico-metaphysical’ construct.88 ‘The idea
of rights must disappear from politics, just as the notion of cause must
disappear from philosophy.’89 Inherent to the very notion of ‘rights’, as it
has been developed by modern jusnaturalism, is the ‘ontological’ concep-
tion of an indelible connection between a series of sacred and eternal
attributes (rights) and an abstract subject (the individual) considered in
isolation, without reference to any specific conditions of existence.
The absolute nature of these rights derives from the absolute status of
the individual, through a process of creation ex nihilo whereby the human
will determines itself. This means that the basis for human rights is
theological: they can be considered absolute because they presuppose ‘a
supernatural source, which alone can shield them from being subjected to
human debate’.90
In response to this absolutist metaphysics, positivism argues that
every institution is relative, adapted to the knowledge, techniques and
needs that exist around it. The very idea of absolute individual rights is
replaced by the notion of duties associated with specific social functions.
Comte is no less scathing than Bentham about the ‘antisocial’ metaphy-
sics of the ‘so-called human rights’.91 Since the idea of individual rights
is both absolute and purely ‘critical’ or ‘negative’, it represents an
‘aberration’, expressing an ‘anarchist tendency’ which goes against
‘any regular institution, since it perpetually condemns all superiors to
an arbitrary dependence on the multitude of their dependents, by
86
Auguste Comte, Catéchisme positiviste (1852), 9th interview (Paris, Garnier-Flammarion,
1966), pp. 221–224.
87
Comte, Discours sur l’ensemble du positivisme, p. 387.
88
Comte, Discours sur l’esprit positif, pp. 25–26.
89
Comte, Catéchisme positiviste, 10th interview, p. 237.
90
Ibid. Cours de philosophie positive, 46th lesson, p. 36: ‘the set of absolute rights which
underwrite revolutionary doctrine are guaranteed, in the last instance, by a sort of
religious consecration, as real as it is vague, without which these metaphysical dogmas
would necessarily be subjected to constant debate, which would dent their efficacy’.
91
Comte, Discours sur l’ensemble du positivisme, p. 385.
From a Metaphysics of Rights to a Social System of Duties 115
transferring onto the people the divine right for which monarchs had
been so criticised’.92
However, Comte’s unique strength lies in the fact that his historico-
sociological angle allows him to move beyond mere criticism. Seen in the
perspective of the logical social development of modern times, the idea of
‘human rights’ is a ‘necessary’ aberration, an illusion justified by its role in
the progress of rationality. Comte points out, first of all, that ‘the major
political advances’ of recent times must be ascribed to ‘the metaphysical
politics of rights’. These advances must be considered as ‘essentially nega-
tive’ since what they entailed was the breakdown of the feudal system.
However, without this important transition there could have been no move
towards the positive spirit. Claiming human freedom as an absolute right
was the only way to strip feudal hierarchies of the prestige associated with
their divine right. The theocratic absolute could only be overcome by the
equal power of a ‘metaphysical, and thereby absolute mind’. In spite of
being transitory and dependent on the very ideas they oppose, ‘critical
dogmas’ needed to be above criticism and held to be ahistorical in order
to acquire the ‘energy’ needed to overthrow ‘the power, overwhelming at
the time, still wielded by the old political system’.93
However, because this paradox is inseparable from the paroxysmal
moment of ‘the great crisis of modern societies’, it is not meant to last.
Having accomplished its task by destroying feudal society, the metaphy-
sics of rights must be replaced by a true ‘social doctrine’, which alone can
enable a society entering adulthood to assume its ‘normal state’.
The revolutionary Terror translated into practice the utter incapacity of
a metaphysics of rights (which then had unlimited political power at its
disposal) to organise social life. The ‘stationary politics’ that followed
(that of non-revolutionary liberalism) only perpetuated the social crisis
begun by the Revolution. It posited the impassable nature of ‘intellectual
anarchism’ even as it enshrined a purely formal principle (‘the equal
eligibility of all individuals for any public service role’) as ‘the final
destination of the general evolution of all modern societies’.
Consequently, it made the language of human rights ‘a hypocritical
system’ designed to conceal the rampant corruption that invariably char-
acterises any society devoid of moral unity and thereby forced to allot
political power according to the crude principle of ‘simple possession of
wealth’. For ‘in the absence of moral authority, the material order
necessarily requires either the use of terror or reliance on corruption’.94
92
Comte, Cours de philosophie positive, 46th lesson, pp. 32–35. 93 Ibid., pp. 24–26.
94
Ibid., pp. 62–63, 34, 60 and 54–57. For Comte, ‘political corruption’ refers to all
circumstances where ‘selfish motives’ predominate in questions of public interest (p. 54).
Liberty, Equality and Sovereignty

The useful transitional role played by the revolutionary metaphysics of
rights can be seen as the expression of a type of rationality blind to its own
meaning. The truths it carries are not ahistorical, but must be understood
as the growth pangs of humanity as it moves away from its feudal child-
hood and towards the maturity of the industrial era. It would be absurd to
endow ‘critical dogmas’ with the value of ‘organic principles’ when this is
not what they are.95 But it is possible, beyond their historical function, to
discern residual truths that an organic doctrine could usefully take from
them. The aim, Comte declared, is to ‘substitute the peaceful determina-
tion of duties’ to ‘the stormy debate about rights’.96 Part of what this
substitution entails is a translation or conversion of the language of
individual rights into a language of social duties, their ‘moral equivalent’:
In the positive state, where no heavenly claims are admissible, the idea of right
must irrevocably disappear. Each person has duties, to everyone else; but no one
has any rights as such. The individual guarantees which justice calls for are
nothing but the direct result of this universal reciprocity of obligations, which
represents the moral equivalent of the earlier system of rights, without entailing
the same grave political dangers. In other words, no one has any other right but
that of always doing their duty.97
The fundamental principle of this ‘critical doctrine’ of rights is, according
to Comte, ‘the absolute right to free and critical examination, that is, the
dogma of freedom of conscience’.98 It is obvious that such a right is, by
definition, incapable of providing the intellectual and moral consensus
necessary for the organisation of social life. In his Cours de philosophie
positive, Comte reasserted what he had written as early as 1822:
There is no freedom of conscience in astronomy, in physics, in chemistry, in
physiology even, insofar as anyone would consider it absurd not to put their
confidence in the principles established by competent men for each of these
sciences. If things are different in politics, it is only because the old principles
have been abandoned and the new ones not yet formed, to the effect that there are
not yet any truly established principles.99
The fact that ‘unlimited freedom to think’ is not established as an
‘absolute right’ does not entail any justification of censorship or of
95
As early as 1825 Comte wrote: ‘each of the dogmas of the critical doctrine, when taken in
an organic sense, amounts precisely to laying down the principle (again, from the organic
point of view) that society must not be organized’. (‘Considerations on Spiritual Power’,
in H. S. Jones (ed. and trans.), Early Political Writings, Cambridge, Cambridge University
Press, 1998.)
96
Comte, Discours sur l’ensemble du positivisme, p. 185. 97 Ibid., pp. 385–386.
98
Comte, Cours de philosophie positive, 46th lesson, p. 27. 99 Ibid., p. 28.
Liberty, Equality and Sovereignty 117
persecution: Comte emphasises that positive philosophy could not have

emerged in the absence of such a freedom. However, this freedom is only
useful or functional in the absence of the type of consensus that normally
forms the basis of a science. No one would be taken seriously if they
claimed they had an ‘absolute right’ to believe that the moon was made of
cheese or that gravity did not exist: scientific practice is not organised
around such rights but around a shared rationality, both in terms of
doctrine and of methodology. There is nothing despotic about this ration-
ality; scholars do not persecute the ignorant or the incompetent, they
simply keep them away from their laboratories and sideline them from
their discussions. Scientific ‘dogmatism’ (Comte opposes ‘dogmatism’ to
the type of sceptical indecision that holds all opinions to be equally valid)
is a form of knowledge that knows itself to be relative, which is why its
normal mode of functioning is progress or, in other words, constant self-
correction.
Since social life is organised around scientific knowledge, it relies on an
intellectual consensus underpinned by the ‘dogmatic’ authority of scho-
lars. The invention of social science marks the culmination of this ten-
dency which is at the heart of industrial civilisation. Comte expects
scientific sociology to put an end to the pluralism of moral and political
opinions, not through despotic state intervention (which he vigorously
opposes), but through the natural emergence following a free debate, of
the type of intellectual consensus that is the normal operating mode of
science; this, he believes, will persuade the masses to submit willingly to
the authority of this new intellectual power, which is thus constituted
independently of temporal power.100
Freedom of conscience, which is useful in ignorant times, does not
work as an arbitrary rejection of knowledge: no society can be organised
around what would amount to a ‘fundamental right’ not to know what is
known, and not to draw social consequences from scientific discoveries.
Freedom to doubt in a vacuum cannot form the basis of social order,
which presupposes shared knowledge and some form of ‘public morals’;
as Saint-Simon had already put it, ‘people do not associate in order to be
free’, and freedom cannot be ‘the goal of activity’.101 The second article of
the 1789 Declaration, which states that ‘the conservation of natural
rights’ is ‘the goal of any political association’ is therefore nonsensical.
The function of society is not to protect asocial or antisocial freedoms; its
100
Comte, Cours de philosophie positive, 46th lesson, pp. 27–31 and p. 41.
101
Claude Henri de Saint-Simon, ‘Du système industriel’, in Œuvres completes, Paris, PUF,
2012, vol. IV, p. 2348. This section owes a lot to Frédéric Brahami’s analysis (‘On ne
s’associe point pour être libres’, colloquium presentation at Université libre de Bruxelles
study day La pensée sociale française face au droit, 17 October 2013).
aim is to establish a social order in which the interplay of freedoms aids

collective progress.
The same is true of the two other ‘critical dogmas’ that naturally follow
from freedom of conscience: equality and the sovereignty of the people.
These are not foundational rights or organising principles, but only ‘the
political consecration of some of the main obligations imposed by uni-
versal morality’, ‘which any real attempt at social reorganisation must
fulfil in order not to be invalid’.102 Again, it would be absurd to endow
these two principles with constitutive value, given that they technically
forbid the unequal distribution of political power according to skill, and
even the very possibility of forming a government. Claiming equality as an
absolute right was necessary in order to bring down ‘the old forms of
inequality which, after long furthering the development of modern
society, had finally in their unavoidable degradation become truly oppres-
sive’. However, the endpoint of this destruction of feudal inequalities
should not be anarchy, or what Saint-Simon referred to as ‘Turkish
equality’.103 Rather, it should lead to the establishment of a ‘new social
classification’ demanded by the division of labour in industrial society,
a society in which ‘the importance of material distinctions’ diminishes,
even as the weight of ‘moral and intellectual inequalities’ drastically
increases.104
Since the organisation of society must necessarily reflect the distinction
between those who plan and those who execute, the equality of political
rights appears as yet another illusion, as vain as the utopian notion of
a self-governing people. Since in the normal course of things the people
cannot directly participate in ‘political government’, popular sovereignty
can only mean one thing: a guarantee of last resort against possible abuses
of temporal power. What positivism retains from the ‘metaphysical
dogma of popular sovereignty’ (which can be summarised as ‘the funda-
mental obligation to direct the entirety of social existence towards the
common good’) is ‘everything it contains which is truly salutary’, that is
the recognition in ‘extreme cases’ of a ‘right to insurrection’. Under
a positivist regime, characterised by shared moral consensus on the
need to prioritise ‘sociability over individual personality’, any actual
recourse to this right should remain exceptional since it presupposes
a failure on the part of the governing classes to heed the demands of
public opinion and the counsel of spiritual power.105 Nevertheless, the
right to insurrection remains the best defence against tyranny, and its
102
Comte, Cours de philosophie positive, 46th lesson, op. cit., p. 41.
103
de Saint-Simon, ‘Du système industriel’, in Œuvres complètes, vol. III, p. 2464.
104
Comte, Cours de philosophie positive, 46th lesson, pp. 31–32.
105
Comte, Discours sur l’ensemble du positivisme, pp. 169–171.
Liberty, Equality and Sovereignty 119
natural extension in the context of ‘industrial relations’ lies in the right to

form professional unions and the right to strike, the only recourse avail-
able when conflicts between the propertied classes and the working class
cannot be spontaneously resolved. It is not universal suffrage and parlia-
mentary democracy (which Comte dismisses as deceptions) that form the
rational core of the idea of ‘popular sovereignty’ but rather labour unions,
which under the arbitration of spiritual authorities are destined to give up
on ‘political debate’ in favour of ‘social transactions’ with the governing
classes whose power and ownership they would no longer seek to
challenge.106
It is interesting to note that the concept of ‘rights’, which Comte had
wanted to ban altogether from political language, makes a reappearance
in his discussion of strikes and the right to insurrection. Comte cannot in
fact dispense entirely with the idea of rights or, for that matter, that of
‘human dignity’. Beyond the fact that he cannot explain the alchemical
transformation of social utility into personal duty, his substitution of
rights with duties is valid only on condition of recognition of an equal
right to personal development:
There is no question that unless they indulge in extremely antisocial behaviour,
even the most inferior of individuals have a natural right to expect others to show
them the consideration they deserve as human beings, a consideration which will
gradually become the basic and most commonly relied on principle of universal
morality. However, in spite of this weighty moral obligation, which has not been
directly contradicted since the abolition of slavery, it is nevertheless obvious that
all men are neither equal nor even equivalent, and thus cannot be expected to
enjoy the same rights when they associate – except of course for the fundamental
right necessarily shared by all to freely develop their personal activities under
appropriate guidance.107
Here, Comtian positivism exposes itself to the same type of criticism as

Benthamite utilitarianism, insofar as both systems seem to rely on ideas
borrowed from the very language of rights they claim in theory to reject.
When Comte stresses ‘the universal reciprocity of obligations’, arguing
that it represents ‘the moral equivalent of the earlier system of rights’, he
does not refute the idea of human rights but rather denies it outright, in
the psychoanalytical sense of the word. It is true that Comte’s denial does
not function in quite the same way as Bentham’s, since he goes as far as to
reject the notion of universal political rights. Nevertheless, their
approaches bear a fundamental similarity and lead to the same internal
contradictions. Both reject the notion that the law is there to guarantee
106
Ibid., pp. 180, 185, 198–201, 239.
107
Comte, Cours de philosophie positive, 46th lesson, p. 32.
liberty and equality, and both stress that deep-rooted inequalities of social
status mean by extension that there can be no equality of rights.108 What
is more, neither system makes it clear why the inequality of rights depend-
ing on status constitutes an objection to the idea of human rights, which
does not per se reject the notion of individuals of different social status
enjoying different rights, but merely holds that every individual should
enjoy an equal right to compete for privileged positions. Bentham and
Comte make no distinction between inequality of status and the inequal-
ity of rights of the people who hold these statuses; this confusion often
undermines the logic of their thought.
The right of every individual to count as one in Bentham’s thought, or
to fully develop their own abilities in Comte’s, both presuppose
a fundamental equality of rights which cannot easily be circumscribed
within the (different) narrow limits posited by either thinker. When
Comte tries to replace the equality of rights with a form of ‘social solidar-
ity’ or ‘fraternity’109 consisting in mutual recognition through reciprocal
services, he strangely forgets that this type of reciprocity assumes that
each individual will consider all others as holding fundamentally equal
rights in spite of the gulf between their social positions. Furthermore, the
sense that every person ought to have of his own dignity (without which
true wellbeing is impossible) is inseparable from the awareness of equality
of rights with others. Without this sense of personal dignity, the positivist
ambition to foster ‘a necessary harmony between patricians and ple-
beians’ by encouraging ‘the devotion of the strong to the weak and the
veneration of the weak towards the strong’ appears almost indistinguish-
able from the feudal ideals of Bonald or Maistre, which Comte had so
wished to leave behind.
Choosing between Social Solidarity and Political Rights

For Comte, there is no other answer to the pressing question of equality
and redistribution than the moral ‘regeneration’ supposed to result from
the free and unanimous rallying of public opinion of positivist sociology,
or as he begins to call it from 1848 onwards ‘positivist religion’, in which
the worship of God is replaced by the worship of Humanity. From this
perspective, the reform of political institutions becomes a secondary con-
cern. It is more important for public opinion to unite around a universal
108
As Guillaume Tusseau points out, equality is never a goal for Bentham, even if the
maximisation of collective happiness entails a certain degree of social equality (‘J.
Bentham et les droits de l’homme’, p. 423).
109
In his Appel aux conservateurs (p. 455) Comte vehemently denounces the confusion
between ‘noble fraternity’ and ‘a false and degrading idea of equality’.
Choosing between Social Solidarity and Political Rights 121
doctrine, whose spread and evolution will be managed by philosophers

(who find themselves imbued with a new form of spiritual authority) and
by women and the proletariat, the two social groups with whom they
share a natural affinity. What philosophers, women and the proletariat
have in common (for Comte) is that they have no influence over industrial
and political life, which frees them up for more speculative pursuits.
Furthermore, they share a frugal or domestic mode of existence, which
in turn guarantees a higher degree of morality. They are called to
determine the ethics of the day because they will always be in a position
of lesser economic and political power, except for the brief period during
which the proletariat will be given dictatorial powers in order to effect the
revolutionary transition towards society’s final and positivist stage. In the
normal state of humanity, society will be overseen by two distinct powers:
temporal power, controlled by capitalists with the necessary wealth to
manage society’s needs in terms of investments and entrepreneurship,
and spiritual power entrusted to philosophers, women and the proletariat,
whose responsibility it will be to ensure that capitalist activity serves the
needs of society as a whole. This is how Comte envisions the organisation
of his ‘universal republic’, which will supersede nation-states and
reorganise all of society under the aegis of a universal ‘social feeling’,
with no allegiance ‘to either king or God’.110
It is hardly necessary to draw attention to the naivety and disappoint-
ments of Comte’s ‘moral solution’ at any great length, let alone to engage
with the bizarre detail of his ‘religious positivism’. Comte seems to con-
sider that the moralisation of social relationships alone, without any real
changes in the distribution of property, wealth or power or putting any
means of institutional pressure at the disposal of the people, would be
enough to replace the class struggles of liberal society with a harmonious
reciprocity of services. Comte’s thought takes an increasingly conserva-
tive turn in his last works, in which he argues that positivism represents,
for the propertied classes, ‘the only systematic defence of order against
communist and socialist subversions’.111 By turning the improvement of
the proletariat’s living conditions into a purely moral issue, Comte effec-
tively sidesteps the question of the distribution of property, the social
110
This is a summary of Comte’s Discours sur l’ensemble du positivisme, which outlines his
political thought at the time when he first developed the notion of a ‘positivist religion’.
111
Auguste Comte, letter to Pierre Laffitte, 8 Gutenberg 65 (18 August 1853), in
Correspondance inédite, 2nd series, Paris, Société Positiviste, 1903, p. 167. On the same
page, Comte declares that ‘the conservative and retrograde class’ represents ‘the real
seedbed for positivism’; hence his 1855 Appel aux conservateurs and his attempts to reach
out to the General of the Jesuits.
domination of entrepreneurs and the confinement of the working class to

the status of day-labourers fulfilling purely menial tasks.
Tempting as it may be to deride parts of Comte’s thought, it would be
a mistake to dismiss his ideas out of hand. There is more to Comte’s
rejection of communism than mere conservative fear of the ‘enormous
danger’ represented by a ‘utopia’ which negates individualism instead of
subordinating it to the common good, and which ‘sacrifices freedom in
the name of an illusory equality’. Comte sees the working classes’
embrace of communism in the positive terms of an expression of legit-
imate demands; these are given flawed expression by communist theories
(and incoherent – since no communist would advocate the abolition of
intellectual property), with the virtue, however, of effectively countering
the shortcomings of the liberal order. What can be glimpsed behind the
ideology of communism, and even more behind the ‘apt term socialism’, is
an acute insight about ‘the social nature of property’.
The mistake of communists and socialists is to believe that this ‘social
nature’ of property necessarily means that private property should be
abolished (or at least the inheritance system, as advocated by more
moderate proponents), whereas what it really entails is that private prop-
erty should be regulated and used in accordance with ‘social needs’.
Liberal economists demonstrate that private property, contrary to com-
munist claims, is a necessary precondition for the growth of capital.
Communists, on the other hand, convincingly highlight the flaws in the
liberal model of property as an absolutely individualistic right to ‘use and
abuse’. Comte believes that whether through a system of taxation or of
regulation, private property should always be treated as a ‘social service’
that needs to be controlled by society as a whole. Thanks to the ‘moral
equivalence between private property and public service’, it should be
possible for free enterprise and the unequal distribution of wealth to
function together for ‘the common good’ and ‘collective utility’.112
*
It is well known that Comte was a major inspiration for French repub-
licans at the turn of the century. Solidarism, which developed alongside
Durkheimian sociology, drew on his work to develop its concept of ‘social
property’. This contribution is probably more significant than the fact
that Comte did not move beyond the idea of a strictly moral regulation of
the social use of private property. Although he himself rejected the term
‘socialism’, Comte nevertheless contributed to the development of an
112
Auguste Comte, Discours sur l’ensemble du positivisme, pp. 185–198. His discussion of
‘socialism’, which he added in 1851, is missing from the 1848 edition; it can be found in
the edition of the Discours included in the Système de politique positive, I, pp. 153–170.
alternative form of socialism, separate from the Marxist tradition. During

the 1840s, his thought evolved in parallel with Marx’s; like Marx, he
considered the proletariat to be a universal class, the only one that
could give concrete application to philosophical ideas. However, unlike
Marx, he did not believe in the possibility of a classless society. Not only
does Comte consider the proletariat’s subjugated status as an essential
precondition for its moral superiority and philosophical mission, he also
holds that the thrust of industrialisation, which necessarily entails an ever
more complex division of labour, naturally accentuates social differences
and makes social hierarchies more pronounced. This means that social
issues cannot be solved through mere collectivisation of the means of
production. This utopian measure does not take into account the fact that
the levels of expertise required to regulate modern economies make
democratic self-government (that is, arbitrary power of the unskilled) de
facto impossible. The imperatives of industrial life do not allow for any
other solution than a form of social solidarity able to incorporate existing
social inequalities into a reciprocal system of a collective cooperation.
This notion of social solidarity retains an ambiguous dimension. Its
purely moral character means that it can be interpreted, along strictly
conservative lines, as evidence of the fact that ‘progressive tendencies
(are) increasingly overshadowed by the need to safeguard social
order’.113 This would assimilate social positivism to doctrines of social
order centred on the necessary subordination of the ruled to their rulers,
and limiting the notion of progress to adaptation without emancipation.
This explains how Maurras was able to claim Comte’s work as a source of
inspiration, reading it as a secular version of Bonaldian politics.114
However, the majority of Comte’s readers rejected this regressive
interpretation, and preferred to give his notion of ‘social property’
a legal framework and to turn his idea of social solidarity into an effective
social right. This is the path taken by writers such as Émile Durkheim,
Léon Duguit or Léon Bourgeois.115 However, this ‘social solidarity’
approach – which reclaimed the term socialism by giving it a new meaning
drawn from Saint-Simon and Comte instead of Marx – necessarily meant
reconsidering Comte’s critique of rights. The idea of democracy, in this
113
Comte, Système de politique positive, vol. III, p. xxiv.
114
Charles Maurras, ‘Auguste Comte’, in Romantisme et révolution, Paris, Nouvelle
Librairie Nationale, 1922, pp. 91–127.
115
Jacques Donzelot has shown that in spite of the verbal dominance enjoyed by the
republican rhetoric of sovereignty and rights, it was the theory of social utility which
proved most popular both in France and England: ‘at the end of the nineteenth century,
the solidarist doctrine inspired by the work of Émile Durkheim gave its legitimacy to the
French adoption of utilitarian thought’. Jacques Donzelot, ‘Michel Foucault et l’intelli-
gence du libéralisme’, Esprit, November 2005, pp. 73–74.
view, also had to be rehabilitated by redefining social thought as being

first and foremost society’s perception of its own practices and institu-
tions, rather than the expert knowledge of independent sociologists. This
makes it possible for the Comtian criticism of popular sovereignty to find
its logical conclusion not in the rejection of democracy but instead in its
redefinition, as a permanent ‘communication’ between diffuse collective
thought and a set of governmental institutions which clarify this using
‘social utility’116 as a guideline; or as an ‘organised social right’, and the
‘sovereignty of social right’.117 The concept of ‘social right’ requires
precisely that the idea of individual rights should not be conflated with
a notion of absolute individualism, as it is in Comte’s writing. Social rights
are not opposed to human rights, but rather reinterpret them by cutting
away ‘exaggerated’ expressions of a misunderstood individualism.118
‘Social rights’ now appear in their true colours as an integral part of the
dynamic of human rights, an interpretation that in a different version cuts
across works on social liberalism or the social democratic tradition
stretching from Jean Jaurès to Georges Gurvitch.
The pieces of the theoretical jigsaw that Comte had attempted to put
together – rejection of human rights, emphasis on social solidarity, the
vision of an international republic and the need for a ‘religion of human-
ity’ – are thus broken up again. Human rights are no longer incompatible
with social solidarity, and their reliance on a nation-state no longer
necessary. What does hold is Comte’s assertion that the rights of man,
which involved no organised worship, cannot form the basis for a ‘religion
of humanity’. Linked in with social rights, they become the shifting
reflection of the collective practices that run through the social transac-
tions translating the democratic reality of law.
This overlap between social right and the rights of man is not without
its problems. Both Bentham and Comte show that the utility principle,
whether individual or ‘collective’, usually puts more weight on equal
opportunities than equal rights. The maximisation of collective happiness
guarantees a basic right not to be sacrificed, but beyond that it tolerates
a certain amount of inequality, including inequality of rights if this is
necessary to optimise broader collective opportunities for personal
development. This tendency is manifest today in the growing preference
for legal practices allowing individuals to negotiate their own rights
through settlements. In these cases, the individual is no longer a subject
endowed with inalienable rights calling for defence, but rather holds
116
Émile Durkheim, Leçons de sociologie, Paris, PUF, 1950, pp. 113–129.
117
Georges Gurvitch, ‘Le principe démocratique et la démocratie future’, Revue
de métaphysique et de morale, July–September 1929, p. 429.
118
Durkheim, Leçons de sociologie, p. 95.
a number of rights which can be used as bargaining chips to guarantee the

most profitable outcome in a negotiation: as a result, freedom is redefined
as ‘the freedom to negotiate one’s rights’.119
Even when it combines social solidarity with the defence of personal
autonomy, the principle of democratic utility is not quite the same thing
as the ‘proposition of equaliberty’. The principle of democratic utility
entails ‘an equality of freedoms’, but not the co-extensivity of equality and
freedom. How best to articulate these two values remains a problem, and
the solution in theory precludes neither social inequalities that optimise
the overall amount of freedom nor restrictions on personal freedom which
happen to improve social integration. Equality of liberties can thus take
the form of an ‘equal inequality’.120 This expression can mean two
different things: either it refers to the ‘optimisation of systems of
difference’ which allows minority lifestyles (or even, for that matter,
secessionist lifestyles rejecting all outside controls and norms introduced
in the name of ‘social security’121) to develop with minimal interference;
or it refers to the social rights instituted by social security to compensate
for uneven living conditions in an attempt to transform this inequality
into a form of solidarity through a reciprocity of services.122
As Etienne Balibar has pointed out, there remains an important differ-
ence between the defence of ‘equaliberty’, which focuses on the institu-
tion of a ‘transindividual’ order, and a ‘sociological conception’ like that
of Robert Castel, heir to the solidarist movement. In Balibar’s words,
Castel’s ‘irreplaceable analysis’ remains bound up in a vision of society as
‘an organism constantly fighting against a process of disintegration and
a state of anomie engendered by unbridled capitalism’.123 Arguing that
society is based on intersubjectivity is not the same as arguing it exists as
a sui generis collective reality, as Comte and the sociological tradition had.
In spite of their strong similarities, the definition of human rights as social
rights (plural) remains distinct from a (re)definition of these rights based
on a social right (singular) which exceeds the mere ‘extension’ of
individual rights. Both of these definitions also differ in their turn from
119
Antoine Garapon, ‘Michel Foucault visionnaire du droit contemporain’, Raisons poli-
tiques, 2013, 4, 52, pp. 39–49.
120
This is an expression coined by Jacques Donzelot in a commentary on Foucault’s
writing, ‘Michel Foucault et l’intelligence du libéralisme’, p. 70. For Foucault, it only
refers to neoliberalism (The Birth of Biopolitics, p. 148).
121
This possible interpretation of Foucault’s thought (see The Birth of Biopolitics, p. 265) is
defended by Serge Audier in Penser le ‘néolibéralisme’; see especially pp. 417–433 and
pp. 509–512.
122
See Robert Castel, Les Métamorphoses de la question sociale, Paris, Fayard, 1995, p. 279,
pp. 295–301.
123
Étiene Balibar, La Proposition de l’égaliberté, Paris, PUF, 2010, pp. 131 and 33.
a more ‘Foucaldian’ approach – described by Serge Audier as a libertarian

‘metabolisation’ of liberal utilitarianism – which interprets human rights
as a clumsy reformulation of the ‘demand for independence’ by governed
peoples and calls them into the service of creating arenas for plural
liberties, freed from disciplinary mechanisms.124 The fact that their
ideas have been harnessed for such different ends suggests that there is
something fundamentally unstable in both Comte’s and Bentham’s
systems of thought. Their criticisms of human rights hold true only at
the price of their progressivist ambitions, retreating to the conservative
positions of thinkers such as Burke or Bonald. This explains why the
beating heart of their work has in fact been adopted by philosophers who
embrace the language of human rights.
124
Audier, Penser le ‘néolibéralisme’, p. 84, p. 316, pp. 411–412, pp. 417–419, p. 446,
pp. 455–456.
A Theologico-Political Critique: Louis de Bonald and
Joseph de Maistre
The conceptual arsenal established by Burke fast became the source of

a counter-revolutionary doxa that would far outlive the events of 1789.
Burke’s arguments were the more effective for their ambiguities, which
left them open to many and varied uses and adaptations. We might be
forgiven for thinking that various counter-revolutionary critiques of
human rights merely reproduce Burke’s thesis, without adding new
arguments of their own. Think of the famous passage of the
Considerations on France in which Joseph de Maistre, mocking the 1795
constitution ‘made for man’, writes that ‘there is no man in the world’:
‘In the course of my life, I have seen Frenchmen, Italians, Russians . . .
I know too, thanks to Montesquieu, that one can be a Persian. But as for
man, I declare that I have never met him in my life; if he exists, he is
unknown to me.’1 Does this not merely reproduce in epigrammatic form
Burke’s opposition between the rights of men and the rights of
Englishmen? Zeev Sternhell argues in this sense that there is no real
difference between Burke and Maistre, who both rely on the ‘immutable’
pillars of counter-Enlightenment thought: ‘antirationalism, relativism
and nationalism’.2
However, to stop at this superficial observation ignores the fact that the
same arguments can also form part of very different theoretical
frameworks. A common anti-revolutionary feeling is not the same thing
as an identical conceptual structure. We cannot lump together the
political philosophies of two authors, one of whom – a devout
Anglican – sees English liberty as the summit of political perfection,
while the other, who considers Anglicanism the most illogical form of
1
Joseph de Maistre, Considerations on France, trans. Richard Lebrun, Cambridge,
Cambridge University Press, 1994, p. 74.
2
Zeev Sternhell, The Anti-Enlightenment Tradition, trans. David Maisel, New Haven (CT),
Yale University Press, pp. 16–17, 65. However, we should point out that Bonald, a leading
figure of counter-Enlightenment thought and traditionalism, was determinedly anti-
relativist: he accused Montesquieu of looking for ‘the spirit of what is’ rather than inquir-
ing into ‘the reason of what should be’ (Louis de Bonald, ‘Législation primitive’ [1802],
discours préliminaire, in Œuvres complètes, Paris, Migne, 1859–1864, vol. I, p. 1133).
127
Protestantism, sees in the English constitution nothing but ‘a phenomenon

altogether local, and perhaps transient’.3 Burke’s parliamentarianism,
associated with a defence of religious tolerance, is far distanced from the
thesis of sovereign infallibility that lies at the heart of Maistre’s thought up
to The Pope; and far, too, from Bonald’s denunciations (in common cause
with Maistre) of the ways of commerce and industrial development.4
Faced with Burke’s ambiguous inheritance of the Scottish
Enlightenment, Maistre and Bonald, the theorists of a monarchist and
Catholic counter-revolution, pursued a critique of human rights couched
in a radical rejection of liberalism in any form.
The Theologico-Political Radicalisation of Burke’s

Critique of Human Rights
We have already discussed the basic ambiguity behind Burke’s
‘particularism’ and his endorsement of the English tradition of liberty,
which leaves the question open as to whether the English constitution is
exemplary because of its traditional nature or the universal value of liberty
it incorporates. But the balance between traditionalism and liberalism
that undergirds Burke’s argument comes undone as soon as it is taken out
of the English context. Burke had been able to defend the French
monarchy only by attributing ‘liberal’ traits to it; and as Paine was easily
able to demonstrate in his response to Burke, continentals would have
been well aware that these falsified reality.
This forced an answer to the question skirted by Burke: was the point of
his argument to justify conservatism with the ideal of liberty (with the
conditions for its realisation)? Or rather to suggest that English liberty
draws all its purely local value from the tradition to which it belongs? If the
former, not only can the critique of human rights not be total; it also
becomes possible to counter Burke’s argument with the suggestion that
an ideal must have a normative dimension and can act as the motive for
revolt. If the latter, human rights can no longer be seen as ‘metaphysically
true’, and must be written off as metaphysically false. This is the position
espoused by Bonald, who criticises the metaphysical weakness of the
3
Joseph de Maistre, ‘Lettres sur l’inquisition espagnole’, 5, Œuvres complètes, Lyon, Vitte,
1884–1886, vol. III, p. 364; The Pope, Considered in his Relations with the Church
[1819–1821], book II, chs 2, 4 and conclusion, trans. Aeneas McDonell Dawson,
London, C. Dolman, 1850, p. 127.
4
On the diversity of counter-revolutionary schools, see Gérard Gengembre, La Contre-
Révolution ou l’histoire désespérante, Paris, Imago, 1989; Jean-Yves Pranchère, L’Autorité
contre les Lumières, Genève, Droz, 2004, p. 22ff; Henning Ottmann, Geschichte des
politischen Denkens, 3/3 : Die Neuzeivol. – Die politischen Strömungen im 19. Jahrhundert,
Stuttgart, J. B. Metzler, 2008.
The Theologico-Political Radicalisation of Burke’s Critique 129
1789 Declaration,5 and by Maistre, who counters it by setting against it

a ‘metapolitics’ (or a ‘metaphysical theor[y]’ of politics).6 Burke’s reduc-
tion of the Glorious Revolution of 1688 to a defensive measure devoid of
any democratic aim appears plain wrong to Maistre, even while he claims
to ‘applaud a sophism which omits to support the right of a people to
depose its sovereign’.7
Burke’s key argument was that any political order is based on prescrip-
tion. But religion, which stands at the heart of social order, cannot be
motivated by prescription: as an institution of truth and salvation,
a religion cannot be judged on its social performance. A state cannot be
accused of being ‘false’; a religion can. Though he adopts Burke’s
prescriptive justification of the balance of powers that had made
England so influential, Maistre pours cold water on any enthusiasm for
the English constitution in declaring ‘that it has not only cost England
torrents of blood to arrive where she is, but it has cost her her very faith,
which is to say everything’.8 Burke would have seen sheer fanaticism in
the idea that only true religion brought rights with it. Maistre might have
retorted that a defence of religion founded only on moral standards is not
enough: if no religion can claim to represent exclusive truth, by what right
can the state establish a religion whose truth is not established?
Burke founded the principle of the imprescriptible nature of constitu-
tional rights on prescription; but it is hard to grasp how the absolute
intangibility of law can rest on a utility that stands in relative connection
to variable circumstances and needs. It is easy enough to accept that an
established law must not be annulled without reason or procedure, and
that the length of establishment of an institution constitutes grounds for
endorsing it; but how to move from a mere favourable view of an institu-
tion to affirmation of an intangible law precluding any reform project?
Paine had seen the impasse clearly: ‘If governments, as Mr. Burke asserts,
are not founded on the Rights of MAN, and are founded on any rights at
all, they consequently must be founded on the right of something that is not
man. What then is that something?’9 Paine saw only one answer to this
5
Bonald, Législation primitive, Discours préliminaire, p. 1110: ‘the authors of the
Declaration have been accused of dealing in metaphysics. If this is a reproach, there has
never been a less fairly deserved one.’
6
Joseph de Maistre, The Generative Principle of Political Constitutions [1814], ed. and trans.
Jack Lively, preface, New Brunswick (NJ) and London, Transaction Publishers, 2012,
p. 95.
7
Maistre, letter of 1808, Œuvres complètes, vol. IX, p. 94. It is Burke he is accusing here: see
Réflexions sur le protestantisme (1798, posthumous edition), in Œuvres, p. 315.
8
Maistre, Lettres sur l’Inquisition espagnole, V, p. 364.
9
Thomas Paine, ‘Rights of Man’ [1791–1792], in Works of Thomas Paine, London, 1796,
p. 208.
question: whatever the necessities or constraints of social order, the only

rights properly understood are rights not of objects or institutions but
of men.
However, there is another possible response: that the rights of that
‘something that is not man’ are the rights of God, and that the imprescrip-
tible nature of constitutions arises from a divine right. This ‘theocratic’
response finds an unexpected outlet in an underlying difficulty of Paine’s
view that the right to change constitutions is a human right: does this
mean that human beings also have the right to strip themselves of their
own rights at the whim of constitutions that they have bestowed upon
themselves? Do human rights therefore cancel themselves out with the
idea that men have only the rights that they grant themselves, and no law
other than their own will?10 And otherwise, if human rights are intangible,
should a basis for them other than human will not be sought?
Here Maistre cites the Catholic theologian Bergier, who argued against
the concept of social contract that those who pass conventions ‘have not
relinquished the power to revoke them’ and ‘their descendants, who
played no part in the process, are all the less obliged to observe them’.
This argument is identical in form to Paine’s yet upends the meaning he
had ascribed to it: it leads to a metaphysical radicalisation of Burke’s
rejection of the rights of man, on the grounds that law cannot proceed
from arbitrary will. If an agreement ‘obliges no one, unless there is
a superior authority guaranteeing it’, what must be sought is ‘the sanction
of laws in a power above man’.11
Similarly, Bonald credits Bentham with showing that human rights
collapse under the attack of the utilitarian critique. But this does not
establish the truth of utilitarianism: the only merit of Bentham’s system,
incompatible with any moral framework, is that it brings out in sharper
relief the need for a metaphysical foundation behind social obligations.12
Unintentionally, Bentham proved by contradiction that the basis of social
and political cohesion cannot but be found in God, and that the only way
is to ‘fully absorb this philosophical truth, the most philosophical of truths
10
Bonald and Maistre object to the idea in Rousseau’s thesis that the people has the right to
‘harm itself’ (Du contrat social, book II, ch. 12): Maistre, Œuvres complètes, vol. VIII,
pp. 217 and 348; Bonald, Théorie du pouvoir (1796), Part I, book VI, ch. I, Œuvres
complètes, vol. I, pp. 370–371.
11
Maistre, Generative Principle, II, pp. 368–369.
12
‘Mr Bentham . . . rejects the principle of the immutable, eternal nature of law; first among
the public law theorists since Hobbes, he rails against the multitude of professors, legal
theorists, magistrates, philosophers, who proclaim loud and clear the law of nature, . . .
natural law, natural equity, rights of man, and he sets out to find the reason for all laws in
the sentiments of pleasure and pain. This is not the place to contest this system; but the
author proves the need for a more solid foundation than those on which the edifice of
society has previously been built’ (Bonald, Législation primitive, p. 1115).
The Theologico-Political Radicalisation of Burke’s Critique 131
indeed, that the Revolution started with the Declaration of the Rights of Man,
and can end only with the declaration of the Rights of God’.13
Bonald and Maistre represent the purest incarnation of radical
rejection of human rights in the name of a political theology. Admitting
the consequence from which Burke had shrunk – the condemnation of
religious pluralism – both argue against freedom of the press and Jewish
emancipation.14 Maistre had no hesitation in speaking highly of the
Spanish Inquisition, invoking the principle of the ‘infallibility of leaders’
and the need to subordinate individual reasoning to ‘the absolute and
general reign of national dogmas’.15 Without going to such extremes,
Bonald agrees with Maistre on the subject of the indissoluble unity
between the Catholic Church and the state. The two authors were
certainly not, as Maistre believed, in ‘perfectly thorough union’:16 not
only is the slowly unfolding demonstration of Bonald’s systematic trea-
tises a far cry from the vehement tone of Maistre’s essays, but the com-
mon cause of the two authors in defending a Catholic monarchy is no
barrier to real doctrinal divergences.17 For instance, Maistre understands
constitutions as such profoundly variable and circumstantial realities that
their true essence can never be adequately captured in writing. This
relativism is alien to Bonald, who holds that the ‘natural laws of social
order’ are universal and must be fixed in writing.18 Yet though these
differences are significant, the fact remains that the theoretical diver-
gences between the two authors constitute variations on a shared princi-
ple which Bonald describes to Maistre as the fact ‘of considering the
religion in politics, and the politics in religion’.19 A common blanket
13
Ibid., p. 1133.
14
Bonald, ‘Sur les juifs’ [1806], Œuvres complètes, vol. II, p. 933ff; Maistre, Quatre chapitres
sur la Russie (1809, posthumous edition), Œuvres complètes, vol. VIII, pp. 335–345. For
Bonald’s views on the theory and practice of censorship, see Jean-Yves Pranchère,
‘Comment composer l’ordre avec la liberté ? Chateaubriand, Bonald et la question de
la censure’, Bulletin de la Société Chateaubriand, 55, 2012, pp. 133–154.
15
Maistre, Réflexions sur le protestantisme, p. 318; On the Sovereignty of the People
[1794–1795, posth.], book I, chs 10 and 12, in Against Rousseau: ‘On the State of
Nature’ and ‘On the Sovereignty of the People’, trans. Richard Lebrun, Montreal, McGill-
Queen’s University Press, 1996, p. 87.
16
Maistre, Letters to Bonald from 1818 and 1817, in Œuvres complètes, XIV, pp. 137 and 113.
See Bonald’s reservations in his Démonstration philosophique . . . (ch. XVII, pp. 93–94).
17
See W. Jay Reedy, ‘Maistre’s Twin? Louis de Bonald and the Counter-Enlightenment’, in
Richard Lebrun (ed.), Joseph de Maistre’s Life, Thought and Influence, Montreal, McGill
University Press, 2001; Pranchère, L’Autorité contre les Lumières, pp. 26–31, 329–334; Pierre
Glaudes, ‘Joseph de Maistre et Louis de Bonald : la pensée contre-révolutionnaire entre
unisson et dissonance’, Cahiers de la Nouvelle Société des études sur la Restauration, VI, 2007.
18
Bonald, Législation primitive, Part I, Book II, ch. 4, op. cit., p. 1231ff.
19
Bonald, letter to Maistre of 1819, in Joseph de Maistre, Œuvres complètes, XIV, p. 336.
According to the Théorie du pouvoir, Part I, Book IV, ch. V, p. 327, it is best to deal with
‘politics as a theologian and religion as a politician’.
refusal of democracy and liberalism is based, in the works of both, on

a philosophy of authority that affirms the ‘perfect identity of principles
and constitution between religious monarchy and political monarchy’.20
The fact that this principle gives rise to sometimes incongruous develop-
ments in the work of both authors bears witness to tensions and dialectics
immanent in the theologico-political critique of human rights.
For this critique conforms to the same basic patterns. Both shaped in
the school of the physiocratic theory of ‘legal despotism’ (treating the
absolute monarch as the mouthpiece of the laws of social order), both
determined defenders of the rationalism of Malebranche (who had drawn
a philosophy of order and authority from Cartesian thought), both
paradoxical heirs to Rousseau’s concept of the general will (which they
turned against the notion of the social contract on the grounds that the
general will cannot be the will of all), Maistre and Bonald set against
human rights the necessary fact that the social body, by virtue of the
principle of equal submission to superior authority and divine reason, is
organised around the norms of an ordered hierarchy. Against the revolu-
tionary ideal of equal liberties, they argue that the inequality of rights and
duties is the condition for the ordination of social relations in the name of
public good.
Hierarchy in this sense cannot be dissociated from the meaning of the
sacred (hieros). If the Revolution is revealed as the ultimate instance of an
‘insurrection against God’, as Maistre writes,21 this is because the
unequal distribution of power goes hand in hand with its sacred nature.
Democratic equality and the liberal reduction of social ties to
a relationship of exchange, or to a contract issuing from individual interest
only, are conversely indissociable from a deconsecration of all authority
which, taken to its logical conclusion, would make social life impossible.
For social ties demand acceptance of inequalities and the ‘sanctification’,
in the two senses of the word (moralisation and inaccessibility), of the
asymmetry of political relations.
The underlying truth of human rights is therefore the secularisation of
social ties, which Maistre and Bonald interpret as the effect of a perverse
desire for the profanation of the sacred – and in particular of the sacred
nature of sovereign power and the institution of law which goes with it.
The natural outcome of the 1789 Declaration was juridical chaos:
permanent instability of laws, rapid succession of constitutions and the
catastrophe of regicide. In their view, the condemnation to death of Louis
20
Louis de Bonald, Démonstration philosophique du principe constitutif de la société (1830),
Œuvres complètes, op. cit., vol. I, p. 106. The ‘religious monarchy’ is the Catholic church.
21
Joseph de Maistre, The Generative Principle of Political Constitutions, ch. LXI, op. cit., p. 9.
Louis de Bonald: The Sociological Imperative of Unequal Rights 133
XVI – a murder committed in the name of rights, yet in violation of the

law and articles 7 and 8 of the 1789 Declaration, since the king’s immu-
nity had been proclaimed by the Constitution of 1791 – was a crime
incomparably more heinous than the massacres of the Terror, because
it attacked the keystone of the rule of law, namely sovereign power.
Maistre’s extreme assertion that the Revolution is ‘Satanic’22 merely
expresses in ‘dogmatic’ or directly theological tones an idea that we also
find in conditional form in the contemporary writings of Kant, who writes
that the regicide of 1793 evokes the ‘idea of the most extreme evil’ (in
other words diabolical evil) because it assumes ‘a complete overturning of
the principles of the relationship between a sovereign and his people’, and
that through this ‘violence is elevated above the most sacred rights bra-
zenly and in accordance with principle’.23 But unlike Kant, who links the
sacred status of the monarch to the sacred nature of ‘the rights of men’
that the sovereign must guarantee,24 Bonald and Maistre believe that the
transcendence of the sovereign and the law precludes all juridical, social
and political equality.
Louis de Bonald: The Sociological Imperative of Unequal

Rights
In Bonald’s writings, the theological critique of human rights takes the
form of a sociological critique.25 Since men are social beings, divine
transcendence in relation to them is reduced to the ‘natural laws of social
order’ that it has established. For society – which Bonald defines as the
‘union of similar beings for their mutual production and preservation’26 –
has no other end than ‘the preservation of social being’, and hence its own
preservation and reproduction; ‘moral laws’, which are first among ‘nat-
ural’ laws, are merely the expression of ‘relations of all intelligent men
between themselves, as members of a social body’, the ‘necessary relations
22
Maistre, Considérations sur la France, ch. V, p. 226; Du pape, Discours préliminaire, p. 23.
23
Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor, Cambridge, Cambridge
University Press, 1996, p. 97n.
24
Immanuel Kant, To Perpetual Peace, trans. Ted Humphrey, Indianapolis (IN), Hackett,
2003, p. 28.
25
See Pierre Macherey, ‘Bonald et la philosophie’, in Revue de synthèse, Jan–March 1987,
and ‘Aux sources des rapports sociaux (Bonald, Saint-Simon, Guizot)’, in Genèses 9,
Paris, 1991; Bruno Karsenti, ‘Autorité, société, pouvoir. La science sociale selon
Bonald’, in L’Invention de la société, Paris, EHESS 2003; Frédéric Brahami, ‘La mutation
des sentiments’, in Les Affections sociales, Presses Universitaires de Franche-Comté, 2008;
Jean-Yves Pranchère, ‘Totalité sociale et hiérarchie. La sociologie théologique de Louis
de Bonald’, Revue européenne des sciences sociales, XLIX (148), 2011.
26
Bonald, Démonstration philosophique . . ., Preface, p. 31.
derived from the nature of beings’.27 The divine will that orders social
relationships may thus legitimately be described as the ‘general will’ of
society to preserve itself. Bonald is then able to identify the will of God
solely with the necessity of social relations and the dynamics of their
reproduction:
The general will of society, the nature of human beings in society, the will of God –
all these desire the same thing or are of the same nature; they are therefore one and
the same will . . . Thus the general will of society, of the social body, of social man,
the nature of social beings or of society, social will, the will of God Himself – all
these are synonymous.28
The Rights of Society against the Rights of Man

God is society by another name: it is the coincidence of religion with the
laws of social reproduction that invests it with authenticity. What the
revolutionaries had sought to create in the Declaration of the Rights of
Man – an enumeration of the ‘true principles of all legislation’, as they
must figure at the head of any ‘constitutional code’ – they should instead
have found in the Ten Commandments, which Bonald understands as
a definitive exposition of basic social laws.29 Bonald’s thesis is first and
foremost that social duties require a transcendent basis: ‘Remove God
from this world; man then owes nothing to his fellow man, society is no
longer possible, and all duties cease when power no longer exists.’30 But
the divine origin of social powers has no independent content: it is only, so
to speak, a coefficient of transcendence which works as an indicator of the
intangible character of social obligations. This coefficient of transcen-
dence is paradoxically immanent to the social meaning of these duties,
and this is how Bonald can affirm that ‘there is no being superior to
society, since there is no being outside society’ without seeing the self-
contradiction.31
If ‘society is a being’ which must as such constitute the object of
a ‘science’,32 this is because ‘society itself is nothing but an ensemble of
relations and relationships’.33 The laws governing it express only the
structural conditions for this body to cohere and self-reproduce.
27
Bonald, Théorie du pouvoir [1796], Part I, Book I, chs II–IV, Œuvres complètes, vol. I,
pp. 146–164.
28
Bonald, Théorie du pouvoir, Part I, book I, ch. II, p. 147.
29
Bonald, Législation primitive, Discours préliminaire, p. 1116.
30
Bonald, Législation primitive, Part III, ch. 3, pp. 1363–1364.
31
32
Bonald, Théorie du pouvoir, Part I, book I, ch. II, p. 145; Essai analytique sur les lois
naturelles de l’ordre social, Œuvres complètes, vol. I, pp. 957, 1004, 1015.
33
Bonald, Du divorce (1801), Discours préliminaire, Œuvres complètes, vol. II, p. 9.
The ensemble of social life cannot be an outcome of individual initiatives,

but must be analysed as a system of relationships in which individuals are
always already entwined, and in which they take on the roles that make
them into persons properly understood: society is made up not of indivi-
duals but of persons, that is, representatives of unequal social functions.
‘“Person” comes from per se sonat, which in itself expresses a social
relationship. Paul is a word that designates an individual and does not
describe any particular quality. Power, minister, subject, these are persons;
that is to say, they express, per se sonant, relationships, and do not describe
individuals.’34 Individuals never exist as pure ‘individuals’: they exist in
the social form of their relationships, such that their very individuality is
a social form – that of the person they become through the social relations
that shape them.
The rights of God therefore overlap with the rights of society for which
religion, ‘reason of every society’,35 provides the explanation, since it
merely exposes the hierarchy of duties implied in the structure of every
social relationship. The theocratic principle is open to conversion, to
use Auguste Comte’s word, into a ‘sociocratic’ principle: the idea that it
is not ‘up to man to make society’, but ‘up to society to make man’.36
The alternative of the ‘rights of men’ and ‘rights of God’ comes back to
the compulsory choice between two opposed views: the revolutionary
fiction that ‘man makes himself and makes society’, and the truth
established by history and reason that ‘society makes itself and makes
man’37 – from which it follows that individuals hold rights which they
cannot bestow on themselves, but instead receive from social order and
their place within it. The desire to found society on ‘human rights’ at once
ignores the primacy of obligations (and power) over rights and forgets that
law merely reflects the necessities of social relationships.
The Essential Inequality of Social Relationships

The use of the plural ‘rights’, Bonald insists, obscures the meaning of the
word. ‘Right’ means imposition of a rule: ‘right, in the singular, means
a rule, [with the French droit coming] from dirigere, directum’, and there-
fore ‘civil law and ruling over the citizen are one and the same thing’.
Using the word in the plural gives rise to the illusion that rights emanate
from those who hold them, whereas in fact they merely express positions
34
Bonald, Du divorce, ch. II, pp. 47–48.
35
Bonald, Législation primitive, Part I, Book II, ch. 14, p. 1210.
36
Bonald, Démonstration philosophique . . ., Preface, p. 35.
37
Bonald, Observations sur un ouvrage posthume de Condorcet (1796), Œuvres complètes, vol. I,
p. 742.
or relationships which may be ‘entirely opposed’: ‘thus we say both the

rights of the father and the rights of the son, the rights of the husband and
of his wife, the rights of the master and of his servant, the rights of man
and the rights of God’.38 The family is a paradigmatic example here, as
the ‘first element of any society’, since marriage is the ‘truly social contract
(. . .) whose laws are the basis of all political legislation’.39
Now, ‘society’ in the family is governed by natural inequalities. There is
no parity of position or function between father, mother and child: the
mere fact that the child has no ‘will to be born’ is proof that the familial
contract rests not on equal liberty between its parties, but instead on
a social commitment which, once taken, cannot be at the beck and call
of individual will. The institution of the family is by this token incompa-
tible with the idea of human rights, which forces the reduction of marriage
to a ‘civil contract’: this was demonstrated by the law of
20 September 1792 legalising divorce by virtue of ‘individual liberty
which would be compromised by an indissoluble commitment’. Bonald
(whose efforts largely brought about the abolition of divorce in 1816 by
vote in the Chamber of Deputies) tirelessly repeated that marriage must
be indissoluble: the parents have no right to break the contract that binds
them to the third person (present or future) in their child, who even when
adult can never consent to harm done to him. ‘The father and mother who
divorce’, he writes, are ‘in reality two strong persons who reach an agree-
ment to dispossess a weak one; and the state that condones this is
complicit in their theft’.40
The model of the voidable contract cannot apply to fundamental social
relationships, which are conditioned not by the will of individuals but by
the need for society to produce and reproduce – in this case, by the ‘social
necessities’ of a hierarchical structure in which the child’s subordination
to his mother, and that of the mother to the father, are in the service of the
child’s development: ‘I see no rights in this society, but power and
obligations.’41 Vehemently opposed to the will to ‘bring the republic into
the family’ which he sees in Condorcet’s pleas against the imbalance in
gender rights, Bonald exclaims: ‘what the philosopher calls inequality of
rights, between the two sexes, is nothing but the inequality of their
obligations in the family’; for ‘in society, there are no rights, but only
duties’.42
38
39
Bonald, Du Divorce, ch. I, p. 38. 40 Bonald, Du Divorce, ch. IV, p. 63.
41
Bonald, ‘Quelques notions de droit’, pp. 212–213. Bonald concludes from this that the
establishment of power was neither ‘voluntary’ nor ‘forced’, but ‘necessary’ – a formula
he would repeat in his last published work (Démonstration philosophique, ch. VI, p. 47).
42
Bonald, Observations sur Condorcet, p. 725.
The idea of human rights, that is to say of the individual, thus founders
on the inevitably non-egalitarian structure of social ties, always based on
uneven status and ‘hierarchy of functions’.43 The diversity within families
also implies that inheritance should be unevenly distributed; education,
which makes a person of the individual, presumes inequality between the
child and the master; the division of labour results in unequal wealth and
skills; finally, the composition of society as a whole, unified by the concern
for its common good, demands that the social division of labour be
reproduced by a strictly political division of power, which requires asym-
metry between governors and governed.
This last point is key: the unequal distribution of political power is at
once a particular case of the division of labour (of which politics is one
branch) and a means of reconstituting the social unity which this division
has broken. For the division of labour does not in itself produce social
unity: the particular interests it elicits do not naturally fuse as a whole or
intrinsically take second place to the general interest. Bonald, who vehe-
mently critiques Rousseau’s republicanism, nonetheless claims to follow
his judgement that the will of particular interests must be subordinated to
the general will, which the law must express. But this truth requires that
Rousseau’s distinction between the general will, which ‘considers only the
common interest’, and the will of all, which ‘takes private interest into
account, and is no more than a sum of particular wills’, be turned against
Rousseau himself. Bonald posits instead that the primacy of the general
will over the will of all can be translated into political action only through
‘general power exercised by a king, who acts as an agent of the general
will’.44
We know that in Rousseau’s view the general will can only triumph over
the particular in each individual on condition ‘that there should be no
partial society within the state, and that each citizen should think only his
own thoughts’. This, for Bonald, is an impossible fantasy: a society is
made up not of general individuals (having no concern aside from their
general interest as an individual without ties), but of particular families
and social entities. The general will cannot therefore be the outcome of an
impossible concord between purely individual wills, but must express the
principle of incorporation of the diversity of social subgroups into a higher
43
Bonald, Méditations politiques tirées de l’Evangile (1830), Œuvres complètes, vol. III, p. 640:
‘seen in terms of functional relationships, children are not their fathers’ equals, neither
wives of their husbands, priests of their congregations, officers of their subordinates,
because there is no order possible in domestic or public society – not even in a mechanical
arts workshop – without distinction and hierarchy of functions’.
44
Bonald, Théorie du pouvoir, Part I, book VI, ch. I, pp. 370–371. See Jean-Jacques
Rousseau, The Social Contract [1762], book I, ch. 7 and book II, chs 3–4, trans.
G. D. H. Cole, New York (NY), Cosimo, 2008, pp. 34–35.
law of unity that translates the will of the generality of the social body as
such. This ‘general will of civil society’, which corresponds with the will of
society to preserve itself and the ‘generality of beings’ that make it up,45
can be known and recognised only by a state power that remains discrete
from the particular interests of society.
The natural form for this state power is that of monarchic power,
standing at the head of an estates-based society which Bonald sees as
the organisation of a truly public service, with the nobility and clergy
representing ‘public ministries’ whose privileges are indissociable from
the functions of general interest that they must ensure for ‘civil society’.
Recognising the prime importance of public interest means simulta-
neously giving up democratic ideals (as incompatible with the uneven
distribution of political power) and liberal ideals (as running counter to
the ascendancy of the general will over individual wills). A monarchy is
the only coherent way of institutionalising unified public interest. Any
state presumes the existence of a state nobility, as well as a unified power
that by definition takes the shape of a monarchy, even in the absence of
a king. ‘The inequality of power’, as Raymond Aron would write
a hundred and fifty years after Bonald, ‘is bound up with the essence of
social life’; ‘there is no form of power that can dispense with a human
being at its head’.46
And if the management of public interest by an institutional power
inherently implies a hierarchical inequality without which society cannot
be constituted, the idea of human rights as the dream of an apolitical
society knowing no norms outside private law, exchange and contract
must on the other hand be dismissed. This dream of an apolitical society
even appears in the supposedly political content of the Declaration of the
Rights of Man, namely in the affirmation of popular sovereignty. ‘To call
the people, and the entire people, to the very exercise of power’ is in fact to
call massed private interests to wield public power: ‘then the private state
encroaches upon the public’. The democratic equality demanded by
human rights comes down to a demand that the private and public should
be one and the same thing, in other words a demand for the abolition of
state power: democracy, which ‘annihilates’ power ‘in the family by way
of divorce’, destroys it ‘in the state, by making the state a commission
revocable by popular will, and thereby divesting it of all unity, continuity,
and regularity of succession’.47 For the ‘sovereign people’ is not the name
45
46
Raymond Aron, Introduction à la philosophie politique (course delivered in 1952), Paris,
Librairie Générale Française/Editions de Fallois, 1997, pp. 80 and 230.
47
Bonald, ‘Quelques notions de droit’, pp. 217–218.
of a body that fulfils a public function; it boils down to a confused

amalgam of private interests.
Here we come up against a serious difficulty: the sovereignty of the people is the
power of all over each. Yet all men are by nature entirely independent of each
other, and it is in this mutual and absolute independence that mankind finds the
dignity and equality we so fiercely protect. No man therefore naturally has either
power or authority over his fellow human beings . . . But if no man has power over
others, then neither can any group – be they two, ten, a thousand, or an entire
people – have any more power than this, for the people is a being invested with
reason, and when I seek the people I see nothing but individuals isolated from
each other, without bonds or cohesion as a body. Assembling individuals in order
to exercise popular sovereignty means merely assembling men with no power over
their fellows; in other words, assembling so many nullities or non-entities in terms
of power, and all these nulls put together – be they many as they may – cannot add
up to real power, any more than several million zeros set in sequence would add
up to a positive number. What then becomes of popular sovereignty, over whom
and what can it then be exercised? What can it be, this colossus of sovereignty that
dissolves into its assemblies and is reduced to the all-powerful majority of a few
voices, or of a single voice? Sovereignty is a matter of quantity, I hear you say: you
mean of the strength of numbers; but power, which has no principle but strength,
is tyranny, and obedience, which has no principle but constraint, is slavery.48
What transpires here is the inconsistency in the idea of the rights of man:
the principle of equal rights between individuals at once implies and
precludes popular sovereignty, since it proclaims the right of all to be
sovereign yet denies the right of state power over anybody. This paradox
demonstrates the impossibility of deducing the institution of sovereign
power from the individual. In as much as it is the regime of human rights,
the republic in Bonald’s interpretation is defined – contrary to Rousseau’s
belief – by the absence of general will:
In the republic, society is no longer a general body but a juxtaposition of indivi-
duals: since the general will is now a mere aggregation of particular wills, general
preservation, which is its aim, now means nothing greater than individual happi-
ness; and indeed in republics we often see physical well-being growing in direct
counterpart to moral degradation, and the sacrifice of social liberty; everything in
this set-up moves towards individualisation, everything shrinks down and is
concentrated in the life of the present moment; the present is everything to
republican regimes; they have no future.49
Transposing Bonald’s reasoning into terms that are not his own but
remain faithful to his intention, we might say that the idea of human
rights reveals individualism as the intersection between liberalism and
democracy, but also the point at which they break down. The idea of
48 49
Ibid., pp. 216–217. Bonald, Théorie du pouvoir, Part I, book I, ch. X, p. 200.
human rights shows that liberalism and democracy exist in symbiosis, like
two shapes of the same individual right to autonomy. But it also reveals
the antagonism between liberalism and democracy (since the power of all
over each, which defines democracy, is a violation of the right of each
against all, which defines liberalism). In the same gesture, it also suggests
that this contradiction is inherent in the individualist conception of law,
which makes the primacy of unitary state power over diverse societal
interests unthinkable. The events of the French Revolution brought this
contradiction to crisis point over the right to property:
The new order of things had its leaders and followers just like the old one, like any
order; for order between men is nothing but the art of arranging for some to take
their turn before others, so that all may arrive on time. The most diligent or
fortunate among them, showered with honours and assets, passed up no chance to
trumpet the protection of their privileges, or even to write on walls the final article
of the rights of man: ‘Property is an inviolable and sacred right’; yet the last to the
communal table responded with the first article: ‘Men are born and remain free
and equal in rights’. If property was a right, as per the last article, then the equal
rights consecrated in the first must carry out the equality of property.50
Human rights, Bonald observes, are ‘oracles of double prophesy’: the
equality of individual rights can just as well be interpreted as the state-
ment of free right to individual property, in which case human rights are
made material in the free market, or as the demand for effective equality
of access to the resources of liberty – in which case human rights must be
seen in the terrorist democracy of the Jacobins, or even in the communism
of their Babouvist successors. The French Revolution was an experiment
with this ambiguity: ‘there was not a single political principle posited in
1789 from which rigorous dialectics could not have deduced the
revolution in its entirety’.51 The meaning of human rights thus
manifested in their political ramifications, ‘and if this Declaration was
compromised for having stood at the head of the 1789 constitution,
when it acted as a preliminary to the constitution of 1793, it was now
forever dishonoured’:
At last, after long-drawn-out and bloodstained errors, it became clear that man-
kind must hear a little less about his rights and more about his duties. The rights of
man fell into disuse, and were left to the provincial demagogues: only here and
there, on the eve of the revolutionary crises, were those terrifying words of the
rights of man heard to echo in the legislative chambers, a portent of destruction and
death, like spaced out cannon shots from a ship in distress.52
50
51
Bonald, Observations sur Madame de Staël [1818], Œuvres complètes, vol. II, p. 657.
52
Instituted and Disinstituted Equality 141
Instituted and Disinstituted Equality

In Bonald’s view, the idea of human rights travesties the primacy of societal
laws (or the duty of social solidarity) over individual rights: it is discredited
by the uneven capacities that constitute social order (through the division
of labour and unequal inheritance) and political order (through the asym-
metry of leadership and subordinacy). These two critiques converge in
a third: given that social and political inequality are inevitable, the idea of
human rights compounds that inequality with the symbolic weight of an
egalitarian fantasy which disqualifies inequality and aggravates its violence.
This is illustrated first by a psychological point: ‘one of the greatest evils
done by the revolution to the state and the family’, writes Bonald, ‘was to
inspire a mass of individuals with an ambition to status and reward, or
rather, a burning desire to escape their present condition, individuals who
had until this point been content in their private life and are today tormen-
ted by desires which the law of general admissibility grants them neither the
means nor the opportunity of satisfying; and thereby to have saddled all
careers with discontented mediocrity’.53 The evil is greater still: the ascen-
dancy of rights leaves no room for the only possible remedy for the inequal-
ity of power, which lies in the inequality of duties. The broadest-ranging
sociological truth is that ‘society is merely the relationship of strength to
weakness’.54 Now, to be a social relationship, this ‘relationship of strength
to weakness’ must never be a power struggle. The meaning of politically
instituted hierarchy is precisely to prevent disparities in strength from
descending into violence, and to weight social superiority with excess
duties. The function of hierarchy is to take inequality away from domina-
tion and towards service, following the lesson of Jesus who ‘went much
further than the most fervent partisans of equality: far from preaching
equality between great and small, he gave the latter superiority, when
after teaching the world that all power is nothing but service, he asks
“which is the greater between the one who serves and is served?”’55
Since all societies are unequal, it would be wrong to contrast monarchy
and democracy as a regime of inequality versus one of equality. In fact, the
contrast is between two regimes of inequality, which we might respec-
tively call instituted inequality and disinstituted inequality.56
53
Bonald, Démonstration philosophique . . ., ch. IX, p. 62.
54
Bonald, Législation primitive, Part I, Book I, ch. 8, p. 1192.
55
Bonald, Méditations politiques tirées de l’Evangile, p. 640.
56
Bonald distinguishes between ‘constituted and non-constituted societies, that is to say
societies which conserve human beings and those which do not, or do not conserve themselves,
since they have no conservative power’ (Théorie du pouvoir, Part. I, Book I, ch. II, p. 151). He
describes the French Revolution as a ‘political and religious deconstitution’ (Ibid., Part. II,
Book VI, ch. XI, p. 715).
In a hereditary monarchy, inequality is organised by and based on the law,

according to a hierarchy of services in which privileged members ‘are
raised above others by rank and fortune only in order to serve them’.
Nobility, then, corresponds to a political role: Bonald refuses to treat it as
an equivalent of the patriarchy or aristocracy, since he emphasises ‘nobi-
lity serves power’ whilst not wielding power itself.57 This regime is
essentially peaceful, since the choice of sovereign by law (rather than by
election) exempts the position from competition and allows political life
to strive for the common good rather than the conquest of power.
The nobility, meanwhile, requires heredity only for functional reasons:
it is inherent in the definition of the role that it should be open to merit,
such that individuals and families may work towards their own social
betterment. The demand for equal liberties is thus satisfied as far as is
possible in the conditions of division of political labour.
There is in reality no more equality with the proclamation of equal
rights than in an estates-based society open to social mobility.
Inheritance, as much as family and property, remain intact, and equal
rights cannot change inequality of birth; their only consequence is that the
inequality of power is no longer counterbalanced by a hierarchy of duties.
The disinstitution of inequality does not institute equality: it merely
imparts the shape of a pure power relationship in which superiority will
be all the more unyielding for being purely economic. The truth of equal
rights lies in a return to the bellum omnium contra omnes that defines the
sphere of commercial relations. Left by their legal equality to an unfet-
tered confrontation of economic capabilities, humans will wage the mer-
ciless war of individual interests in the framework of ‘human rights’. As of
1796, Bonald expresses concern about the rise of a social regime that
would drive inequality beyond the pale by generating a mass urban
proletariat, without of the virtues of agricultural societies, dehumanised
by their work conditions in manufacturing industries and left prey to
‘hunger and despair’.58
Yet there is something paradoxical in this critique of the violence of
a society of individual rights, starting from a fictional vision of the ancien-
régime estates-based society: the denunciation of the egotism of rights in
the name of a moral framework of duties comes with no demand for legal
or political penalty against those who fail to fulfil these obligations. For it
is in the very nature of privilege that no legal constraint obliges it to act on
duties: in his impassioned argument against divorce, which he decries as
57
Bonald, Démonstration philosophique . . ., ch. XIII, p. 75.
58
Bonald, Théorie du pouvoir, Part. II, Book VI, ch. IX, pp. 702–703 and Part. III, Book II,
ch. I, p. 927.
Joseph de Maistre: The Providentialist Historicisation of Law 143
a form of ‘oppression’, Bonald leaves no course open to wives subjected to

marital violence except life in a convent59 – as though critiquing the forms
of violence behind democratic equality were enough to legitimate the lack
of legal recourse against the violence of hierarchical order.
This paradox is exacerbated by the fluid nature of the opposition
between rights and duties. For the contrast between a purely immanent
conception of law, founded on a contract between free individuals, and
a theological position which holds that men have duties towards others
only by virtue of their duties towards God, does not adequately explain
why the duties of each towards others should not be reinterpreted as rights
of others to each. Praising Christianity, Bonald writes that it has ‘restored
to human nature its just rights’:60 could this reinterpretation of the duty to
God as rights inherent in human nature not be extended to a re-
evaluation of human rights? This, indeed, was one of the arguments of
a strand of Thomist Catholic thought during the twentieth century: to
reject critiques of human rights by nineteenth-century Catholic tradition-
alists, and to undermine them with the idea that recognising a natural law
of divine origin forces recognition of the natural rights of its subjects.61
Joseph de Maistre: The Providentialist Historicisation

of Law
Though Maistre’s critique of the rights of man deals in the same main
themes, his political thought does not have the same consistency as that of
Bonald, who devoted his entire output to refining one description of the
natural order of societies. Though he agrees with Bonald that monarchy is
the natural political regime for any society, Maistre does not conclude
that there is a unique form of monarchy that is the goal of all historical
development. What is identical from one society to another, and by that
token constitutes a ‘natural law’, is the need for a unitary sovereign power
whose decisions are incontestable: this makes monarchy the best possible
regime. But it does not determine the constitutional form of monarchy;
neither does it make monarchy the only legitimate regime. If the unity of
sovereign power is universally inscribed in the very essence of political
relations, forms of sovereignty exist in relation to circumstances and
59
Bonald, Du divorce, ch. XI, p. 108.
60
Bonald, Recherches philosophiques sur les premiers objets des connaissances morales [1818]
conclusion, Œuvres complètes, op. cit., vol. III, p. 414: similarly, in his Réflexions sur
l’accord, p. 87, Bonald describes the social order of ancient societies, based on slavery
and the ‘barbarous law of war’, as a crime of ‘treason against divinity and humanity’.
61
See Etienne Gilson, Pour un ordre catholique, Paris, Desclée de Brouwer, 1934;
Jacques Maritain, Les droits de l’homme (1942), Paris, Desclée de Brouwer, 1989, and
L’Homme et l’Etat (1953), Paris, Desclée de Brouwer, 2009.
history: ‘as a thousand events may alter the relations of a people, different
governments may be right not only for different peoples, but also for the
same people at different times’.62
The divine law that Maistre sets against human rights is clearly (as it is
for Bonald) the law of monarchy, in which Maistre sees the most com-
plete or authentic form of sovereignty. But Maistre, who is closer here to
Burke than Bonald, conceives of this law as a historical one, bound up
with the cultural identity of the nation ruled over by the sovereign.
The critique of human rights is thus levelled at once in the name of the
inexorable nature of the divine right to sovereignty and the irreducible
nature of national identities. In Maistre’s writings between 1794 and
1797, these two facets of the critique simply appear to converge.
However, it transpires that there is a dormant tension within this.
The thesis of the identical meanings of monarchy and Catholicism, on
which Maistre endorses Bonald, leads in his 1819 treatise The Pope to an
argument for papal infallibility in the spiritual order reflected by the
compelling nature of sovereign authority in the political order. The laws
of God are thus incarnated in three types of divine right: those respectively
of the sovereign, national spirit and of the Church and its head. These
different rights clash head on with human rights; yet this does not guar-
antee their mutual compatibility.
The Rights of Sovereignty against Human Rights

In Maistre’s view, the horror of the French Revolution was less the
intensity of its violence than the destruction of what we might call the
‘symbolic order’ of society: ‘there are no more customs, there are no more
masters, each man’s mind is now his own. Philosophy having corroded
the cement that united men, there are no longer any moral bonds’.63
The gravity of the event lay in the triumph of what Maistre was probably
the first to call ‘individualism’.64 If Maistre could judge in 1818 that ‘the
Revolution is far more terrible than in Robespierre’s times’,65 it was
because the bourgeois society of the Restoration, devoted to the egotism
of industry and trade, only deepened the sense of social breakdown whose
watchwords had first appeared in the 1789 Declaration.
The first stage of the critique of human rights is justification of a sacred
right of sovereignty, against the revolutionary idea of a right of ‘resistance
62
Maistre, On Popular Sovereignty, book I, ch. 4, p. 109.
63
Maistre, Considerations on France, ch. V, p. 47.
64
Maistre, Œuvres complètes, vol. XIV, p. 286. See on this point Alain Renaut, L’ère de
l’individu, Paris, Gallimard, 1989, p. 70.
65
Maistre, letter of 1818, Œuvres complètes, vol. XIV, p. 148.
to oppression’. The manuscript that Maistre drafted on sovereignty in

1794–1795 and the first pages of The Pope start from a common definition
of sovereignty:
Every kind of sovereignty is absolute by its nature; whether it is placed on one or
several heads, whether it is divided, however the powers are organized, in the last
analysis there will always be an absolute power that will be able to commit evil
with impunity, which will therefore, from this point of view, be despotic in the full
sense of the term.66
Infallibility in the spiritual order of things, and sovereignty in the temporal order,
are two words perfectly synonymous. The one and the other denote that high
power which rules over all other powers – from which they derive their authority –
which governs, and is not governed – which judges, and is not judged.
When we say that the Church is infallible, we do not ask for her, it is quite
essential to be observed, any particular privilege; we only require that she possess
the right common to all possible sovereignties, which all necessarily act as if
infallible. For every government is absolute; and from the moment it can be
resisted, under pretext of error or injustice, it no longer exists.67
Though these definitions apply to all regimes, they imply that in practice
sovereignty ‘can only be exercised by one organ: to divide it is to destroy
it’.68 Only monarchy gives sovereignty its complete form by conferring on
it the clear personality of a sovereign whose power, while legitimated by
the fundamental laws that identify the sovereign, is at the same time the
legitimate fount of law. For the absolute power of the sovereign is not
arbitrary power: sovereign power is the power of law, in all senses of the
expression. The sovereign, who holds his power by virtue of the law that
has instituted him sovereign, is the power that issues the law; because of
this, he is the power given to law, including the law that legitimates his
own authority.
To deny the rights of the sovereign is at this point tantamount to
negating the sovereignty of law. This does not mean that sovereign
power is always just, but that the injustice of law cannot constitute
grounds for the ‘right of resistance’, which could in principle bring
about a permanent state of civil war. Anyone claiming to base resistance
on a ‘natural right’ or a ‘natural law’ freely interpreted by all sacrifices the
order of law to a vague image that offers neither a ‘stable idea’ nor
‘determined rule’.69 Even supposing that the concept of a ‘natural right’
has any meaning, it would still be absurd to give it the value of a positive
66
Maistre, On the Sovereignty of the People, book II, ch. 1, p. 115.
67
Maistre, The Pope, book I, ch. 1, pp. 1–2. 68 Ibid., book I, ch. 19, p. 108.
69
Maistre, Cinquième Lettre d’un Royaliste savoisien, pp. 51–54. On Maistre’s persistent
rejection of natural law, see Richard Lebrun, ‘Joseph de Maistre et la loi naturelle’, Revue
des Etudes Maistriennes, 8, Paris, Les Belles Lettres, 1983.
right that could be set against existing positive law: revolt remains an act
of violence, however well-founded its motives; it can never be the exercise
of a right. ‘Legal revolt’, instituted as a right in the Declaration of 1789, is
a contradiction in terms: law cannot give authorisation for its own
violation.
So-called human rights are therefore not ‘rights’: the 1789 Declaration is
merely an ‘absurd mosaic’ of demands with no legally determined, or
determinable, content, hence why it was the object of ‘interminable’
Assembly debates between men each declaring his divergent standpoint –
to the point that it was merely ‘by virtue of weariness, and physical inca-
pacity to debate any longer, that this collective labour was passed down to
us’.70 According to the vague conceptions that underpin this composite
text, any law could be condemned as a violation of human rights. Maistre
counters the idea of rights without authorisation with the idea that there are
no other rights than those whose exercise is regulated by law:
Thus when the gloomy scholars calling themselves the Constituent Assembly
inscribed at the head of their absurd constitution a declaration of the RIGHTS
of man, they were in fact merely writing down a hypothesis that remained entirely
to be verified. They took Rights to be first Principles, whereas a Right can in fact
only be a consequence; in other words, the Corollary of a previous Law; such that
in the margins of each of these memorable articles, any philosopher could justi-
fiably write ‘Proof needed’.71
However, this proposition does not preclude the existence of conditional

rights that sovereign power is bound to respect. The fact that sovereignty
is irresistible in matters of law does not mean that it can do everything; it
means that ‘in its legitimate circle, traced by the fundamental laws of each
country, it is always and everywhere absolute, insomuch that no person is
entitled to say to it that it is unjust or mistaken’.72 But this hypothesis
assumes precisely that sovereign power is regulated by fundamental laws
whose divine nature arises from the fact that they are not the work of
human beings – who, as ‘successive instruments of the establishment,
cannot know its destiny’73 – but the outcome of historical circumstances
that confer on them the authority of time.74
70
Joseph de Maistre, Trois Fragments sur la France (1794), in Jean-Louis Darcel (ed.), Ecrits
sur la révolution, Paris, PUF, 1989, p. 88. According to the Lettres d’un Royaliste Savoisien
(1, p. 89), the ‘rights of man’ are merely ‘general maxims’ with no utility, ‘convenient
formulas for ignorance and sloth’.
71
Maistre, Cinquième Lettre d’un Royaliste savoisien, p. 28.
72
Maistre, The Pope, book II, ch. 3, p. 123.
73
‘Nature, time, circumstances – that is to say, God’ (Joseph de Maistre, On the Sovereignty
of the People, book I, ch. 7, p. 73).
74
Maistre, On the Generative Principle of Constitutions, XXIII, p. 379. Ibid., I, p. 368: ‘a
constitution is a divine work, and the most fundamentally and essentially constitutional
The decisive point here is that a constitution is not a declaration of

moral principles, but the reciprocal adjustment to a situation (geographi-
cal, economic or otherwise), a set of needs, a body of (religious or moral)
traditions and national qualities that form a political community.75
A constitution is first of all the ‘mode of political existence’ of a nation,
and only secondarily the body of written laws that follow this mode of
existence, without ever being able fully to explain it, even less create it.76
The turnabout in Maistre’s argumentation here might take us by sur-
prise: the initial argument, that a right is merely the corollary of a law
desired by the sovereign, merges into the opposite idea: that a law can
only be the declaration of a previous right, inscribed in the ‘natural con-
stitution’ of the nation.77 We can easily understand that the rights of this
natural – that is to say historical – constitution are merely the corollary of
a law desired by the divine legislator, the sovereign of sovereigns. However,
the fact remains that the idea of a natural constitution brings with it the idea
of natural rights that the sovereign must respect: are these not valid grounds
to demand the right of resistance? Does the thesis that no human power can
hold a self-instituted right, and that any right is ultimately founded on the
moral obligation to obey God, not imply the right of subjects to demand
that a sovereign should respect his own obligations?
Maistre writes that in Europe, ‘the divine right of sovereignty’ goes
hand in hand with ‘the divine right of the people’.78 But as he explains
in a letter: ‘peoples have rights, but not that of forcing respect for those
rights, or of punishing their violation by force; just as the son certainly has
the right not to be unjustly treated by his father, without it following that if
his father gives him a smack just for his own amusement the son has the
right to return it’.79 In Maistre’s view there is an asymmetry between the
moral right of the subject and the legal right of the sovereign: while
the right of the subject is moral only and has no legal reach, the right of
the sovereign is at once legal (since sovereign will is the criterion of
legality) and moral (since obedience to the sovereign arises from the
duty to obey God, who instigated a legal order outside which – however
imperfect the order – there can be no justice). A right of resistance to the
illegitimate exercise of sovereignty cannot therefore be recognised as
a symmetrical mirror to the absolute right of the legitimate exercise of
elements of the laws of a nation are precisely what cannot be adequately rendered in
writing’.
75
Maistre, Considerations on France, ch. VI, p. 235.
76
Maistre, On the Sovereignty of the People, book I, ch. 9, p. 84.
77
‘The natural constitution of a nation is always prior to its written constitution’
(ibid., p. 86).
78
Maistre, The Pope, book III, ch. 4, pp. 122 and 275.
79
Maistre, letter of 1814, Œuvres complètes, vol. XII, p. 481.
sovereignty: ‘against our legitimate sovereign, though he may be Nero or

worse, we have no other right than that of allowing our head to be cut off,
while respectfully speaking the truth’.80
It must be stressed that the rule ‘of passive compliance or non-resistance’
does not compel subjects to fulfil all of the sovereign’s wishes, but rather to
refrain from contesting them through violence. The rule prohibiting action
against the sovereign does not compel action with him when he acts in
violation of the law: the subject retains the possibility of opposing the
sovereign with inaction (for example in not executing an order).81
Maistre also emphasises that in positing that ‘for no imaginable reason is
it permitted to resist authority’, ‘I must be clearly understood to exclude the
case of a sovereign committing crimes’.82 Furthermore, he is aware of the
possible nuances in the notion of resistance: one of his manuscripts
expounds the difference between resistance (active but non-violent disobe-
dience), revolt (violent disobedience), overthrow of the sovereign (without
constitutional change) and revolution (overthrow of the constitution).83
However, his published texts disqualify these distinctions as negligible.
Unlike Burke, who had recognised valid forms of legal resistance, Maistre
posits a radical alternative: ‘there is no middle way: one must either deny
the government, or submit to it’.84 Moderate forms of resistance are
a sham: any active resistance must be pursued in the context of a right to
revolution, which it must implicitly admit as its legitimating principle.
‘The ready reply is “Have fundamental laws – a constitution.” But who
will establish these fundamental laws, and who will put them in execution?
The body or the individual who should have this power will be sovereign,
since he would be stronger than the sovereign; so that, by the very act of
establishing the constitution, he would dethrone the sovereign.’85
Rights of the Nation against the Rights of Man

It follows from the fact that the ‘natural constitution’ of a state ultimately
fuses with the ‘character of the nation’86 that the particular character of
80
Maistre, letter of 1815, Œuvres complètes, vol. XIII, p. 164.
81
This idea has a precedent: see Bishop George Berkeley, Passive Obedience [1712], Ann
Arbor (MI), University of Michigan Press, 2007.
82
Maistre, The Pope, book II, ch. 4, p. 125.
83
Maistre, Cinquième Lettre d’un Royaliste savoisien, p. 55; these distinctions are further
explored by Johann Benjamin Erhard, Über das Recht des Volks zur einer Revolution (1795)
and Johann Adam Bergk, Über den Unterschied zwischen Aufruhr, Aufstand und Revolution
(1796).
84
Maistre, De l’Eglise gallicane (1821), book II, ch. 9, Œuvres complètes, vol. III, p. 190.
85
Maistre, The Pope, book III, ch. 4, p. 118.
86
Maistre, Cinquième lettre d’un Royaliste savoisien, p. 67.
Rights of the Nation against the Rights of Man 149
each nation is a design of God. Sovereign power is indissociable from the

national identity that gives it its shape, historical legitimacy and ‘mission’.87
With this, Maistre reaffirms the unreality of human rights, which had been
exacerbated by Article 3 of the 1789 Declaration stating that ‘the principle
of all sovereignty resides essentially in the nation’. Whatever it is, the
‘nation’ as referred to in the Declaration is not a nation – in the sense of
a national character incomparable with any other – but a conglomeration
of individuals with no national identity, and whose rights exist only as those
of human beings in an abstract sense. In calling an association of mere
individuals a ‘nation’, the 1789 Declaration in the same breath recognises
and denies the real basis of social cohesion: the fact that a community of
individuals invested with human rights is (in this context) called a ‘nation’
shows that its true nature is not on the ‘rights of men’, but rather on
a national history which has preceded and shaped it. The ‘men’ referenced
in the 1789 and 1793 Declarations are in fact merely the members of
a nation, which is the only place where their rights can exist:
At the head of their prolific works stands a Declaration of the Rights of MAN and
the Citizen. If they had said The rights of the Citizen, or of Man as Citizen I could
follow them; but I must admit that MAN, as distinguished from the Citizen, is
a being of whom I have no knowledge. I have in my life seen Frenchmen,
Englishmen, Italians, Germans, Russians, and so on; I have even learned from
a celebrated book that one may be Persian. But I have never seen Man, and if he
holds Rights yet I hold them in no regard; we shall never live together: let him go
and enjoy his rights in the realms of the imagination.88
Burke had retorted to the revolutionaries that human rights, if they were
not to remain merely ‘metaphysical’, must be fully subsumed into poli-
tical and historical rights. Maistre refuses even the ‘metaphysical’ distinc-
tion between man and citizen. The ‘rights of the citizen’ are not the
‘refraction’ of the ‘rights of men’; they are the only reality, while human
rights are no more than a mirage, no more than the ghostly image of
a featureless ‘human being’ separated from the ‘citizen’ that is his real
body. To counter this unreality, the point must be made that the ‘rights of
peoples’ can only be the rights of nations, understood each in its unique
identity, since a nation is a ‘character . . . [a] common soul that must,
through the centuries and an infinite number of generations, subsist in
a sensible way and distinguish one nation from all others’.89
87
This word recurs tirelessly in Maistre’s writings: ‘Each member of these great families
that we call nations has received a character, faculties, and a particular mission’ (Maistre,
On the Sovereignty of the People, book II, ch. 7, p. 189); ‘each nation, as each individual,
has received a mission that it must fulfil’ (Considerations on France, ch. II, p. 202).
88
Maistre, Cinquième Lettre d’un Royaliste savoisien, p. 69.
89
Maistre, On the Sovereignty of the People, book I, ch. 7, p. 66.
This ‘general spirit’ cannot be born of voluntary association: a contract

between individuals with no attachment can account neither for the
spiritual unity nor the historical continuity of a nation. The nation always
precedes its individual members: it is not the result of their contract but
rather the tradition that carries them. This is why its essence lies not in the
‘people’ at large but in the ‘higher classes’ who ensure the transmission of
cultural heritage and ‘conservative principles’.90 In light of this, the
sovereign nation invoked by the 1789 Declaration is a duplicitous fantasy,
destined to provide the pretext for a politics of imperialist power, and
disregarding the plurality, independence and rights of nations. For
Maistre, truly ‘national ideas’ were represented by the struggles against
French imperialism, typified by the Spanish insurrection, that existed to
defend the religious identity of a nation.91
The fact that the French Revolution led directly into imperial wars was
no coincidence in Maistre’s view: human rights could only come into
being through a merciless war between their proponents and the ‘enemies
of the human race’ – in Maistre’s language, a ‘civil war of the human
race’.92 But this universal civil war would be waged by a nation claiming
as its exclusive property the universal rights which it had declared in its
own name. The real purview of the rights of man was thus an imperialist
project of ‘universal monarchy’.93 Maistre, who had sarcastically
responded to the bloodshed and savagery of the Parisian crowds in
1793 that ‘Here were the rights of man’,94 gave vent to the same sentiment
in 1807 in his description of the horrors of the Battle of Eylau: ‘Here were
the rights of man, so meticulously outlined by Parisian lawyers in 1790 and
joyously sanctioned in Prussian Poland and elsewhere.’95 In his view, the
rights of man negate the ‘law of nations’ (jus gentium), in other words the
European ‘public law’ that had in pre-revolutionary times been based on
the balance of powers.96 They are essentially incompatible with peaceable
90
Maistre, letter of 1816, Œuvres complètes, vol. XIV, p. 8. Maistre’s answer to the question
‘what is a nation?’ is as follows: ‘it is the Sovereign and the aristocracy. Voices must be
weighed, not counted’. Renan would restate much the same idea in 1871, in La Réforme
intellectuelle et morale.
91
Maistre, Lettres sur l’Inquisition espagnole, IV, p. 352ff. This paean to Spanish religious
identity goes hand in hand with an apology for the anti-Semitic persecutions of the
Spanish Inquisition in the name of ‘purity of blood’; for their purpose was to determine
‘whether the Spanish nation would endure’ (ibid., I, p. 290ff).
92
Maistre, letter of 1814, Œuvres complètes, vol. XII, p. 424. Schmitt would later system-
atise this argument (see Chapter 6).
93
94
Maistre, Lettres d’un Royaliste Savoisien, I, p. 107.
95
Maistre, letter of 1807, Œuvres complètes, vol. X, p. 325.
96
Maistre constantly invokes the ‘principles of public law’ (Œuvres complètes, vol. XI p. 260)
and those of the ‘right of peoples’ (ibid., vol. XIII, p. 111).
recognition of foreign sovereignty, also explicitly denied legitimacy by the

1789 Declaration when it states that ‘any Society that does not guarantee
the protection of Rights [. . .] has no Constitution’ (article 16).
We must recall here that Maistre’s rejection of the rights of man was
rooted in the two experiences that had led him towards counter-
revolutionism: the French army’s invasion of Savoy and the nationalisa-
tion of the church in France after the 1790 Civil Constitution of the
Clergy. As a subject of the kingdom of Piedmont-Sardinia, which ruled
over Chambéry (where he served as a magistrate), Maistre gained direct
experience of the French Revolution only with the arrival of French
troops in September 1792. After this he travelled to Turin, home to the
royal court of the kingdom; a brief return to Savoy in early 1793 persuaded
him to go into permanent exile. As he put it, ‘it was enough to see the
churches closing their doors, the priests ousted, the portrait of the King
paraded and attacked in public; to hear the tune of the Marseillaise sung
during the Holy Maas (I myself heard it); my heartstrings were not solid
enough to withstand all this’.97
The violence of secularisation was compounded by a policy of territor-
ial annexation that violated the principles of rights: the law of 25
Brumaire Year III (15 November 1794) stating that any Savoyard who
had left the kingdom after 1 August 1792 and not returned by
27 January 1793 was to be treated as an émigré. Confirmed under the
empire, this law visited ex post facto naturalisation on non-French
nationals who had fled from a foreign army and followed their king.
Maistre protested that punishing as ‘émigrés’ those who had ‘left Savoy
fifty-two days before the conquest and four months before it was reunited
to France’ amounted to a violation of one of the first legal premises: that
‘no one shall be held guilty if he has flouted no law, and that no law shall
have retroactive effect’.98 The rights of man thus served as a pretext for
a twin denial of rights – first of those who wished to remain Roman
Catholics and did not recognise the Civil Constitution of the Clergy,
and second of those who wished to remain the subjects of their sovereign
rather than become French citizens. The principle of an unbounded right
had been used to justify disregard for existing rights.
Yet on the other hand, what could respect for the effective rights of
nations mean in light of the maxim that ‘a sovereign shall never be held
to account by his subjects, on pain of the disappearance of all
97
Joseph de Maistre, letter of 1814, in Correspondance diplomatique 1811–1817, ed. A. Blanc,
Paris, Lévy, 1860, vol. II, p. 34.
98
Joseph de Maistre, Mémoire sur les prétendus émigrés savoisiens, s. l., 1796, p. 17. In 1817,
Maistre again refers to his Mémoire of 1796, in which ‘the question of public law is
exhaustively examined’ (Œuvres complètes, vol. XIV p. 73).
society’?99 The application of this principle by sovereigns themselves

could only lead to disaster once ‘subjects’ no longer meant isolated
individuals but nations understood in their collective identity. Maistre
was dismayed by the Congress of Vienna, where he saw the divorce of
the monarchist and national causes endorsed: he argued that ‘nations
have never been more disregarded and trampled underfoot in such
a harmful way to them’ and that ‘sovereigns attended the Congress,
or rather constituted it (. . .) Sadly nations were not invited’.100 Yet for
Maistre, the very definition of the divine right of sovereigns was bound
up with the principle of national independence, and he never tired of
repeating that ‘it is not in the natural order of things for any nation to be the
subject of another’ and that ‘the greatest misfortune to befall a nation is
to be held to obey another of its kind’.101 But a paradox arises here: the
right of national identities forces us to recognise that the sovereignty of
the people is indeed a truth ‘in a certain sense’,102 insofar as it means
the right of each nation not to be subordinate to another and to find in
its sovereign the image of its unique character. ‘The greatest of flaws’
for a sovereign, writes Maistre, is to ‘lack respect for his own nation’; ‘is
not a king who imparts only despair to his nation and displeases all
inherently at fault?’103
Ecclesiastical Rights against the Rights of Man

The twin defence of sovereign rights and national identity converges in
‘the union of politics and religion’. The fusion of politics and religion into
a single ‘political creed’, which destroys individual opinions under the
weight of ‘national dogmas’, is the principle of spiritual uniformity which
makes of the nation a ‘general spirit’ that grows from a unique ‘germ’.104
This uniform character is in turn what guarantees that subjects will obey
the sovereign, and that the sovereign will observe fundamental laws.
The existence of a shared religion, uniting the sovereign and his subjects
and ensuring the sacred nature of fundamental political law, is the real
guarantee of the sovereign’s respect for such laws – which human rights
and the right to resistance alone cannot guarantee, since they desacralise
99
Maistre, Lettre à une Dame russe (1810, posthumous), Œuvres complètes, vol. VIII, p. 145.
100
Maistre, letters of 1815, Œuvres complètes, vol. XIII, pp. 51 and 97.
101
Maistre, Œuvres complètes, vol. XII, pp. 411–412, XIV, p. 257. We should remember
that this is also based on Maistre’s unhappy experience of Piedmontese rule of Savoy
before 1789.
102
103
de Maistre, lettre de 1815, Œuvres complètes, vol. XIII p. 171; letter of 1811 in Joseph de
Maistre et Blacas, leur correspondance inédite, ed. E. Daudet, Paris, Plon, 1908, p. 141.
104
de Maistre, On the Sovereignty of the People, book I, chs 7 and 10, pp. 79, 87 and 144.
laws and subordinate them to the whims of that most changeable and
capricious of sovereigns, the people.
Religious uniformity across a nation demands an authoritative religion
which suppresses ‘discussion’ and the ‘particular judgment of the
individual’ in favour of the intangible nature of dogma and papal
infallibility.105 Only Catholicism, in Maistre’s view, can fulfil this role
since it ‘is a monarchy’ whose ‘capital dogma’ is ‘the supremacy of the
Pope’.106 Whereas Protestantism – which Maistre unflinchingly describes
as politically inferior to Islam107 – is nothing but the individualist dissolu-
tion of Christianity, Catholicism is the only religion that complements the
coherence of dogma with the coherence of hierarchy by incarnating the
unity of the Church in the oneness of its leader. Maistre thus maintains
that even from an atheist point of view, Catholicism is the best of all
possible state religions:
If I were atheist and sovereign, Monseigneur, I should declare the Pope infallible
by public edict, in order to establish and safeguard peace in my States. Indeed,
there may exist valid reasons to fight, even to kill, for the sake of truth; to do so for
fables, however, would be the greatest of errors.108
However, in the strength of this paradox lies also its weakness: it holds
true only for the atheist who accords little importance to religion and
truth. But the intensity of faith, which alone allows the marriage of
patriotism with religion, precludes this sort of indifference. This is wit-
nessed by the fact that when he advances theological (rather than politi-
cal) arguments for Catholicism, Maistre posits the maxim that ‘an honest
man must change religions as soon as he observes that his own is false and
another is true’, and as a result demands tolerance of the Catholic Church
in Russia.109 The laws of religion then become those of conscience, which
requires the elimination of ‘national prejudices’.110
The theologico-political critique of the individualism of the rights of
man thus takes rather a contradictory turn at this point. Individual rights
are recused in the name of the laws of the spiritual monarchy of the
Church, justified by its likeness to political monarchy. Yet the laws of
spiritual monarchy may also be dissociated from those of national unity
105
Maistre, Réflexions sur le protestantisme, p. 318.
106
Maistre, letter of 1816, Œuvres complètes, vol. XIII, p. 474; The Pope, Book IV, ch. 5,
p. 320.
107
Maistre, Réflexions sur le protestantisme, p. 329.
108
Maistre, letter of 1815 to the Archbishop of Ragusa, Œuvres complètes, vol. XIII, p. 185.
The same argument is taken up almost word for word in The Pope, Book I, ch. 17.
109
Maistre, Lettre sur l’état du christianisme en Europe (1819, posthumous), Œuvres complètes,
vol. VIII, pp. 502–503.
110
Maistre, The Pope, Preliminary Discussion and Book III, chs 1 and 3, p. 227.
and be opposed to the rights of temporal sovereignty. In the process of

elaborating his argument for papal infallibility during the last phase of his
career, Maistre thus develops a critique of absolutism. In Book II of
The Pope, it transpires that the consecration of the State at the heart of
a ‘political religion’ and its ‘national dogmas’ is incompatible with
Catholic subordination of the temporal domain to the spiritual.
The possibility of a right to resistance thus re-emerges: in The Pope,
Maistre declares his willingness to admit a right to resistance authorised
by a sovereign pontiff. This proposal for a form of papal constitutional
control is in fact introduced rather reluctantly: Maistre presents indirect
papal power as an eminently viable possibility, yet stops short of actually
advancing the proposal himself.111 In fact, recognising a papal political
power over other sovereignties, even if indirect, is arguably tantamount to
conceding that national sovereignty contradicts Catholicism.
Maistre attempts to defuse this tension with the argument that national
and spiritual sovereignty have different aims and spheres of exercise: civil
peace for one, eternal salvation of individuals for the other. Yet this
cannot mean that the two types of sovereignty exist alongside one another
without ever merging, which would constitute a kind of secularism.
Spiritual uniformity across a nation assumes not only that two orders
run parallel to each other, but also that they converge and infiltrate each
other. It seems impossible to avoid the choice: either the law of temporal
sovereignty imposes nationalisation of religion – which precludes
Catholicism; or the law of the universal church trumps that of national
identities – but in this case a law transcending the order of political
sovereignty must be admitted. Maistre rejects this alternative, but it
nonetheless emerges in the rift running through his argument. When he
follows the logic of monarchical absolutism, he tirelessly restates the
sacred imperative of respect for national religion112 – ‘Woe to the people’,
warns The Pope, ‘whose nobles abandon national dogmas’.113 But when
he takes up the defence of Catholic institutions, he demands instead that
national dogmas should be sacrificed to Catholic dogmas, denounces the
Gallicanism of Louis XIV as ‘unbridled tyranny’114 and expresses the
111
Ibid., Book II, chs 3 and 4, pp. 121–127.
112
Maistre recognises that from a political point of view, no national religion can be
legitimately attacked by the sovereign, no matter what its nature (Œuvres complètes,
vol. XIII, pp. 288–289 and 473); and he draws from this the following consequence
for Russia: ‘were angels to be made flesh and come to earth to reign over our Church in
Jesuit garb, since they would have divine influence over minds they would be immedi-
ately banished as enemies of the national religion, and the government would in political
terms be in the right’ (Œuvres complètes, vol. XIV, p. 9).
113
Maistre, The Pope, Book III, conclusion, p. 296.
114
See Maistre, De l’Eglise gallicane, Book II, chs 12 and 16, vol. III pp. 95, 226, 271.
hope that a ‘divine revolution’ will achieve a ‘fusion of the human species’
into a communion of faith that will put an end to the rifts between
nations.115
The rights of the Church are certainly not the rights of man: they are the
divine rights of a spiritual sovereignty whose dogmatic decisions cannot
be legitimately challenged by those under its aegis. Likewise, the author-
isation of resistance to temporal power by papal pronouncement is not the
same thing as a natural right that can be freely interpreted by all.
Nonetheless, in spite of his eulogies of intolerance, Maistre never man-
ages to dissociate the rights of the Church from a universal right to free-
dom of conscience. The victory of Catholicism, just one religion among
many at a global level, would be impossible were the right to individual
religious conversion not recognised. It is hard not to see the kernel of
a human right in this. For both Maistre and Bonald, a radical rejection of
the rights of man ultimately founders on the very premise that drives it:
affirmation of the primacy of moral duties over individual interests.
*
Today, the reactionary Catholicism of Bonald and Maistre may look like
a case apart. Yet the arguments behind their critique of individualism
have nonetheless lived on in the work of successors, albeit often unac-
knowledged. We have already seen how Auguste Comte developed the
sociological strand of their work, and we shall explore in Chapter 6 how
Carl Schmitt passed down the nationalist and theologico-political themes
of Maistre’s and Bonald’s output to modern philosophers.
The paradox is this: in the same gesture with which they reject demo-
cratic ideals in the name of the division of labour and its imperatives,
Bonald and Maistre persistently refuse to acknowledge that in the context
of modern technical progress, the consequence of this division must be
the destruction of hierarchies based on birth right. Their idealised vision
of the ancien régime as a pyramid of duties, where privilege came saddled
with weighty obligations, hides the fact that the meaning of privilege in
their understanding is to preclude any legal recourse against the violence
implicit in hierarchical order.
Durkheim demonstrated that the most compelling thesis of
traditionalist thinkers – their reminder of the constraints of the division
of labour – is also their undoing. This is because in modern economic
conditions, it is precisely the social division of labour that forces realisa-
tion of individualist and egalitarian values, without which the market will
115
Maistre, letter of 1808, Œuvres complètes, vol. XI, p. 33; Soirées, II and XI, pp. 517
and 767.
not have the adaptive individuals it needs in order to thrive.

The individualism of human rights may thus be based on the principles
of a ‘holistic’ sociology which (much like Bonald) recognises that society
and the state precede the individual.116 To follow Durkheim, individual-
ism is the very value system that lines up with the ‘organic solidarity’ of
modern division of labour, in which individuals must specialise and
differentiate themselves to a point unknown in the ‘mechanical solidarity’
of traditional societies.
But Durkheim complemented his ‘holistic’ basis for individualism with
a critique of the institution of inheritance, on the grounds that it ‘attacks
the contract system at its roots’ by implying that individuals are inherently
‘rich or poor by birth’.117 He saw the abolition of inheritance as
a necessary condition for contractualism to have valid meaning.
Because it constitutes an important defence of the principle of inheri-
tance, traditionalism conversely forces the issue of identifying the right
social, economic and political conditions for equal liberties to translate
effectively (in Amartya Sen’s terms) into equal capabilities.118 Hence why
Bonald and Maistre bring us face to face with the difficulty that liberalism
cannot avoid: beyond the formal equality of rights, what can equal liber-
ties possibly mean in the twin context of an inevitable social and political
division of labour and the inheritance gap?
116
Emile Durkheim, Leçons de sociologie, Paris, PUF, 1950, p. 90ff.
117
Ibid., pp. 236–237.
118
Amartya Sen, Rethinking Inequality, Cambridge (MA), Harvard University Press, 1992.
5 The Rights of Man against Human
Emancipation
A Revolutionary Critique: Karl Marx
As Marxism became an ideological vulgate over the course of the late

nineteenth and twentieth centuries, attacks on human rights – normal in
counter-revolutionary philosophy since Burke – also came to be
a mainstay of revolutionary thought. Steven Lukes made this observation
just over thirty years ago in his article ‘Can a Marxist Believe in Human
Rights?’, concluding that ‘the Marxist canon provides no reasons for
protecting human rights’.1 Lukes does not deny that Marx advocated
certain human rights, nor does he discount the possibility that Marxist-
leaning individuals may ‘believe’ in these rights. However, he does argue
that they cannot do so consistently: in his view, ‘to take human rights
seriously’ – that is, to prioritise the interests and obligations they assume –
means ‘not to take Marxism seriously’.2
Marx’s early diatribe against human rights as ‘the rights of the member of
civil society ie. of egoistic man . . . of the man who is separated from other
men and from the community . . . enclosed within himself . . . withdrawn
into his private interests and private will’ is well known.3 Proclaimed as
universal rights pertaining to the abstract individual, Marx suspected that
human rights in fact promoted the interests of a highly specific social
category: the property-owning individual of the capitalist system.
Moreover, he argued, not only the context in which they emerged but
their very form was inextricable from bourgeois ideology,4 which Marx
described in a famous passage from the Communist Manifesto as having
submerged all feeling in the ‘ice-cold water of egotistical calculation’ and
dissolved all feudal ties leaving ‘no other nexus between two people than
1
Steven Lukes, ‘Can a Marxist Believe in Human Rights?’, Praxis International, 1, 4,
January 1982, pp. 334–345, here p. 344.
2
Steven Lukes, Marxism and Morality, Oxford, Clarendon Press, 1985, p. 70.
3
Karl Marx, Early Political Writings, ed. Joseph O’Malley, Cambridge, Cambridge
4
Jeremy Waldron, Nonsense upon Stilts. Bentham, Burke and Marx on the Rights of Man,
London, Methuen, 1987, p. 126.
157
naked self-interest’.5 Selfish calculation is in this account built into the

very form of rights,6 which translate the ethos of what the young Marx
identified as the ‘atomism’ of ‘civil society’, or the individualist principle
taken to extremes7 – an ethos blind to the social conditions for its own
existence, those of class war, in which Marx rapidly saw the truth of a ‘war
among themselves of all those individuals no longer isolated from the
others by anything else but their individuality’.8 At first glance, then, it
seems difficult to deny that Marxist thought and claims for human rights
are radically opposed. However, David Leopold’s The Young Karl Marx,
published in 2007, challenged the certainties of this interpretation. In this
study devoted to Marx’s early writings, Leopold argues that there is ‘little
sign of this purported hostility to moral rights’ in Marx’s writings:9 the
conventional interpretation rests on a misunderstanding of the context for
On the Jewish Question, whose argument can only be properly understood
alongside that of Bruno Bauer, to which it responds.
Foregrounding context does not necessarily neutralise Marx’s early
critiques of human rights, never to be revisited yet radicalised in his
later works. Without claiming that Marx actually embraced the idea of
rights – which would mean twisting his words considerably – it is useful to
point out a logical weakness in this area of his work. Though his rejection
of a normative conception of justice is coherent enough, it is hard to see
how individual emancipation, which Marx saw as the ultimate goal of
communism, can be achieved without claims to rights. This argument
may furnish a basis to reunite the emancipatory project of Marx’s philo-
sophy with the tradition of the rights of man – perhaps against the better
judgement of Marx himself.
Although Leopold’s thesis is not entirely convincing as an intellectual
history argument, it does help to clarify contemporary normative debates
on the relationship between rights and social emancipation. These two
traditionally separate realms – historical and analytical – may be married
by asking not only what Marx really thought about human rights, but also
what he should have thought about them. Here, we follow Jon Elster’s
suggestion of adopting a sort of ‘deliberate anachronism’ as
a methodological necessity, thus basing arguments in part on facts and
5
Karl Marx and Friedrich Engels, The Communist Manifesto, ed. and trans. L. M. Findlay,
Toronto, Broadview, 2004, p. 64.
6
Jeremy Waldron, Nonsense, p. 126.
7
Karl Marx, Contribution to the Critique of Hegel’s Philosophy of Right (1843), trans. Joseph
O’Malley, Oxford, Oxford University Press, 1970, pp. 79–81.
8
Karl Marx and Friedrich Engels, The Holy Family (1845), trans. R. Dixon, Moscow,
Foreign Languages Publishing House, p. 157.
9
David Leopold, The Young Karl Marx. German Philosophy, Modern Politics and Human
Flourishing, Cambridge, Cambridge University Press, 2009, p. 150.
The Human Rights Question in Marx’s Early Work 159
concepts that Marx could not have known about.10 However, our aim is
not to contribute to the prolific debates that have defined the evolution of
analytical Marxism since the beginning of the 1980s,11 devoted in large
part to drawing up a Marxist theory of justice that is nowhere to be found
in Marx’s thought itself. Our question is about fundamental rights: we set
out to demonstrate that Marx’s critique of the ideology of justice goes
hand in hand with an understanding of individual liberty which appeals to
the concept of human rights.
The Human Rights Question in Marx’s Early Work

Marx’s critique of the rights of man in On the Jewish Question has often
been accorded the canonical status of a definitive dogma, advancing three
main propositions: the rights of man are an ideology that supports the
egotism characteristic of civil society, whilst also exposing this society’s
alienation through the quasi-schizophrenic division it sets up between
‘men’ and ‘citizens’.
The term ‘ideology’ never appears in On the Jewish Question. Marx
would develop his definition only later, in The German Ideology, and it
continued to be dogged by several doubts which led Engels to redefine the
notion in his later works and gave rise to one of the richest debates
occasioned by the Marxist tradition, stretching from Gramsci to
Althusser by way of Lukacs. Despite this, it seems eminently possible to
apply the concept of ideology (understood as an illusion produced by the
material conditions of existence) to the rights of man as described in
On the Jewish Question.
The underlying structure of the Marxist critique of ideology lies in the
critique of religion: Marx interprets the religious alienation decried by
Feuerbach as the expression of a social alienation for which religion
provides imagined compensation. In his Contribution to the Critique of
Hegel’s Philosophy of Right, published in the same volume as On the
Jewish Question, Marx argues that it is because society and the state ‘are
an inverted world’ that they produce ‘religion, which is an inverted
consciousness of the world’ and represents both an ‘expression of real suffer-
ing’ and ‘protest against real suffering’. The critique of religious
10
Jon Elster, An Introduction to Karl Marx, Cambridge, Cambridge University Press, 1986,
pp. 2–3.
11
See especially Gerald Cohen, Self Ownership, Freedom and Equality, Cambridge,
Cambridge University Press, 1995; Jon Elster, Making Sense of Marx, Cambridge,
Cambridge University Press, 1999; John Roemer, Theories of Distributive Justice,
Cambridge (MA), Harvard University Press, 1996; Philippe Van Parijs, Real Freedom
for All. What (if anything) Can Justify Capitalism?, Oxford, Oxford University Press, 1995.
illusion – which sublimates earthly suffering into the belief in an afterlife –

needs an accompanying critique of the social conditions that make it
necessary: ‘the criticism of religion [must be turned] into the criticism of
right’.12
This, indeed, is exactly what happens in On the Jewish Question, which
introduces the critique of the rights of man as a consequence of the
guiding thread of the article – the critique of religion.13 Bertrand
Binoche writes that ‘the issue is not therefore to reformulate the rights
of man for Marx’s time, but to supersede right just as religion had been
superseded’.14 Echoing the Contribution to the Critique of Hegel’s Philosophy
of Right, which described religion as merely the ‘spiritual point d’honneur’
of a ‘heartless world’, On the Jewish Question stresses that the ‘consumma-
tion of the idealism of the state’ which found expression in the rights of
man was at the same time ‘the consummation of the materialism of civil
society’.15
Like religion, then, Marx sees the rights of man as an ideology in that
they feed into an idealist alibi for the materialism of homo œconomicus.
The ‘man’ in the rights of man, as The Holy Family takes up the argument
of On the Jewish Question, is merely the ‘man of civil society,16 i.e., the
independent man connected with other men only by the ties of private
interest and unconscious natural necessity, the slave of labour for gain and
of his own as well as other men’s selfish need’.17 By turning bourgeois
interests into natural principles of humanity, the rights of man in Marx’s
view merely express entrepreneurs’ desire to be freed from social
12
Marx, Contribution to the Critique of Hegel’s Philosophy of Right. Capital, Book I (1867),
chs 1, 4.
13
The first part of the article includes the critique of the rights of man in the observation that
religious freedom, ensured by church–state separation, does not guarantee freedom from
religious alienation. Its second section extends the critique of Christianity (as a spiritual
illusion of bourgeois society) into a critique of Judaism as the material truth of bourgeois
society and the Christianity it professes. In line with anti-Semitic stereotypes, Marx
associates Judaism with financial egotism and the cult of money. But we must read his
argument as a strategic polemical response: ‘Judaism’ as seen by Christian anti-Semitism
represents the Christian truth that provides bourgeois society with its ideology – which in
turn means that Christian anti-Semitism works against itself. The fact remains that this
retaliation tactic maintains the anti-Semitic definition of Judaism, and leads to what must
properly be called a failure of the Marxist critique of religion.
14
Bertrand Binoche, Critiques des droits de l’homme, Paris, PUF, 1989, p. 112.
15
Karl Marx, On the Jewish Question, in Robert Tucker (ed.), The Marx-Engels Reader,
New York (NY), Norton & Co., 1978, pp. 26–46, p. 45.
16
Bürgerliche Gesellschaft: this concept, which plays a key role in Hegel’s Philosophy of
Right, is often translated as ‘civil society’. We follow the choice of translators who
render the double meaning of the word bürgerlich in Marx’s use of it: both ‘civil’ and
‘bourgeois’.
17
Marx and Engels, The Holy Family, chapter VI, translation modified.
constraints and responsibilities,18 whilst also perpetuating a legalistic

short-sightedness towards the types of servitude that result from real
inequalities between those who control the means of production and the
rest.
Marx’s challenge does not stop at the context for the genesis of human
rights. His thesis is more radical, suggesting that the interests expressed in
such rights are in fact constitutive of a mentality among the actors of civil-
bourgeois society, and therefore reflect the structure of the capitalist
market. The egotism of competition is inscribed in the very form of
these rights, which appeal to a coercive authority to protect individual
interests against their own potential for conflict.19 In On the Jewish
Question, Marx observes that in defining liberty as the right to do ‘any-
thing that does not harm others’, the 1789 Declaration induces human
beings to see others of their kind not as a ‘realisation’ but a ‘limitation’ of
their individual liberty. This so-called liberty is therefore that of
a withdrawn, isolated ‘monad’.
Similarly, the right to property is simply (in Marx’s view) the right to
enjoy one’s private wealth and use it as one sees fit without concern for
others: it is, in fact, the ‘right to egotism’. The enclosures (or ‘barriers’, in
Marx’s language) that are supposed to protect property are not only
guarantees for individuals, but also positive obstacles to individual
responsibility for others. Finally, only the right to security builds connec-
tions, albeit purely exterior, between individuals and society. This is why
the ultimate social value is not the public good but the policing principle,
‘the supreme social concept of civil society’, ‘the assurance of its
egoism’.20 The rights of man thus herald the destruction of what the
Critique of Hegel’s Philosophy of Right had called ‘community, the commu-
nist essence within which the single individual exists’ prior to
society–state separation.21
Now, in the destruction of a community split into two spheres – the
private sphere of civil-bourgeois society and the public sphere of the
state – it is precisely the need for collective rather than selfish ties between
individuals that is represented by the state. This is the origin of a third
facet of Marx’s critique: the schizophrenia enshrined by the Declaration
of Rights between ‘man’ and the ‘citizen’. On the Jewish Question takes the
distinction between the ‘rights of man’ and the ‘rights of the citizen’ very
seriously: Marx stresses that only human beings acting ‘in community
18
See especially Allen Wood, Karl Marx (1981), London, Routledge, 2004, p. 130, and
Dominique Dembour, Who Believes in Human Rights?, Cambridge, Cambridge
University Press, 2009, p. 117ff.
19
Waldron, Nonsense, pp. 126–127. 20 Marx, On the Jewish Question, p. 43.
21
Marx, Contribution to the Critique of Hegel’s Philosophy of Right, p. 134.
with other men may exercise the rights of the citizen’. The heart of
‘political rights’ is ‘participation in the community life’: they make reality
of what Marx, following Feuerbach, calls the ‘generic essence’ of man –
a ‘common essence’ or a ‘common being’ (the literal meaning of
Gemeinwesen or ‘community’) which is also a ‘being-together’, a way of
communal life. Hence why, though political emancipation is not the ‘final
and absolute form of human emancipation’, it nonetheless constitutes
‘great progress’, ‘the final form of human emancipation within the frame-
work of the prevailing social order’.22
However, the limits of political emancipation lie in the fact that it is only
political, and that the political community it claims to institute is merely
set alongside civil-bourgeois society – in other words the ‘sphere of
egoism’ and the generalised struggle of the ‘bellum omnium contra
omnes’, which remain outside it. Political emancipation therefore
preserves social alienation, just as religious freedom – typically seen as
a ‘universal right of man’ – in fact gives free rein to religious alienation
instead of liberating people from it. In the religious sphere, political
emancipation takes the form of church–state separation: yet as the exam-
ple of the United States amply demonstrates, this may well co-exist with
a profoundly religious society. Similarly, democratic emancipation,
which ‘politically’ abolishes private property by ending census suffrage
and enfranchising those who are not property owners, abolishes neither
private property nor its power in social terms. On the contrary, it guar-
antees private property as the first among human rights, which values
political institutions only in so far as they protect it.23
Marx thus highlights the paradox inherent in the fact of a people
abolishing all legal hierarchies in order to form a democratic political
community while in the same gesture negating the political rights it
demands by subordinating them to ‘human rights’, which are those of
an ‘isolated monad, withdrawn into himself’. Human beings thus lead
two lives at once: the first dominated by private interest, and a second,
‘political’ life dedicated ‘like a metaphorical Sabbath’ to pursuit of the
common good.24 However, the so-called citizen is merely ‘an imaginary
member of an imaginary sovereignty’, since his political rights are com-
pletely subordinated to bourgeois interests treated as ‘natural rights’.
In so far as the Declaration posits that the ‘end’ of any political association
is to preserve the natural rights of man, political life – in which human
beings act as generic beings – is reduced to the status of a ‘mere means’ in
22
Marx, On the Jewish Question, pp. 35, 41, 32.
23
Marx and Engels, The Holy Family, ch. VI.
24
Costas Douzinas, The End of Human Rights, Oxford, Hart, 2000, p. 160.
the service of life within civil society, where they act as isolated beings: the
‘end appears as the means and the means as the end’.25
The logical conclusion of this argument seems to be that human rights
give the illusion of a political liberty which in fact they render impossible,
stripping political rights of their meaning and setting against them as an
absolute limit the security of property and the ‘freedom of selfish man’.
Claims to human rights, according to this view, hold no promise of
emancipation. Conversely, once a communist society has successfully
abolished class conflict, it would have no use for human rights as legal
guarantees.26
Is this the end of the story? David Leopold’s arguments suggest perhaps
not. Leopold’s first question is about the moral status of individuals in
Marx’s work. In the broadest sense, to say that an individual has ‘rights’
amounts to saying that she enjoys an independent moral status and is
considered as an end in herself. Now, it seems clear that in his early work
Marx believed in rights in this broad definition. In deploring conditions
that reduce the worker to a machine, Marx is in fact condemning the
mishandling of a being with independent moral status as a mere
‘object’.27 Since he rails against their ‘reification’, we can safely say that
Marx sees an intrinsic moral meaning in individuals.
It may not be much of a surprise, continues Leopold, to find that in his
early works Marx believed in rights in this broad sense; according to the
same definition, practically all normative theories might be interpreted as
subscribing to rights. Commentators who see Marx as hostile towards
rights are working on the assumption of a more restricted conception,
which defines rights as prohibiting certain actions even where they might
lead to a better overall result. In this definition, rights are an ethical
paradigm that emphasises the moral value of factors outside the expected
results of an action, and invests these with an importance over and above
the outcome.
In Leopold’s view, the concept of ‘reification’ in Marx’s work seems to
correspond to this more restricted notion of rights. When he decries the
fact that the work and life of the poor count only as a guarantee against
loan, ‘Marx is not simply saying that humans have a “moral standing”
which dollar bills lack; he is claiming that humans have a moral standing
which we have a duty to respect, and which we fail to respect if we treat
them . . . as if they were objects.’28 In his early writings, Marx believes that
25
Marx, On the Jewish Question, pp. 34, 44.
26
Allen Buchanan, Marx and Justice: The Radical Critique of Liberalism, London, Methuen,
1982.
27
Leopold, The Young Karl Marx, p. 151. 28 Ibid., p. 153.
individuals do indeed have a moral right not to be treated as objects, and

that if we treat them as such we violate that right.
This injunction not to treat human beings as objects expresses
a deontological position. A recurring theme in On the Jewish Question is
the warning against treating others ‘as means’ among members of civil
society. Though Marx had only limited use for Kantian ethics,29 Leopold
argues that it is highly unlikely that his semantic choice was mere coin-
cidence. The reference to Kant is implicit in Marx’s criticism of treating
oneself as a means, as well as his description of civil society’s ethos as
showing disregard for ‘man as an end in himself’.30 For Kant, to treat
individuals as an end is to respect their dignity and unique worth, which is
not dependent on contingent events and trumps all other values.
The implications raised by Marx’s choice of words seem clear: ‘I can
see no obvious reason for Marx’s use of this language – language which
would certainly be familiar to his intended audience – other than to
encourage us to think of the individual as having a value which others
have a duty to respect, and which is independent of the goodness of
outcomes.’31
We might respond to this that Marx’s theory of rights should be
reconstructed not from his thoughts on the moral status of individuals
but rather from his explicit statements about (and scorn for) rights.
However, for Leopold, Marx’s early writings show little evidence of this
opposition to rights. Interpreting On the Jewish Question as an attack on
rights themselves neglects the fact that the piece’s main purpose was to
counter Bruno Bauer’s argument that particularism or profession of
a specific faith are valid reasons for excluding individuals from the ben-
efits of human rights. Marx certainly does not deny that freedom of
conscience, expression or association are goods in themselves; even less
so that individuals have a right to them. However, he does criticise the
ways in which contemporary states institute and in fact constrain these
benefits.
Countering Bauer’s refusal to grant Jews equal rights, Marx thus asks:
‘Does the standpoint of political emancipation have the right to demand
29
To wit, his cursory critiques of Kant’s moral philosophy in The German Ideology, ed.
C. J. Arthur, New York (NY), International Publishers, 2004, p. 90ff. Yet the fact
remains that, in an early-period letter of 1837 (in The First Writings of Karl Marx, ed.
Paul M. Schafer, New York (NY), IG Publishing), Marx said that his thought had been
‘nourished on the Kantian and Fichtean’.
30
A clear reference to Kant also appears at the same point in the Contribution to the Critique
of Hegel’s Philosophy of Right (p. 205), where Marx invokes the ‘categorical imperative to
overthrow all relations in which man is a debased, enslaved, forsaken, despicable being’.
31
Leopold, The Young Karl Marx, p. 155.
from the Jew the abolition of Judaism and from man the abolition of
religion?’32 Marx’s response is that the modern State does not have the right
to discriminate against Jews in favour of Christians, nor to demand
abandonment of their religion as a prerequisite for citizenship. Here,
Marx uses the concept of ‘right’ without comment or restrictions.
Leopold concludes from this that ‘Marx’s own argumentative strategy
in this discussion is not to attack the very concept of rights, but rather to
reject this contemporary justification for excluding Jews from the posses-
sion of human rights.’33 Marx’s critique is directed not at human rights as
such, but at a model of political life that renders citizenship meaningless
by making the partial individual of civil society an absolute value.
Leopold’s new reading of the rights of man in Marx’s early oeuvre must
nevertheless be qualified. His focus on the context for On the Jewish
Question certainly serves to remind us that Marx’s first objective was
a practical one: to win equal rights for the Jewish population. But it
would be easy to object that this contextualisation applies only to
Marx’s early works, and that it obscures the radicality of his later rejec-
tions of human rights. From The Holy Family, which steps up the argu-
ment of On the Jewish Question in its suggestion that human rights paint
a veneer of liberty on ‘the perfection of [man’s] slavery and his
inhumanity’,34 to the Critique of the Gotha Program, which appears to
condemn the very idea of rights declaring that any right is a ‘right of
inequality’,35 Marx’s denunciation of human rights would appear to be
‘total, constant and definitive’.36
Does this mean that we should see Lukes’s argument as more convin-
cing than Leopold’s? This would be a premature conclusion, because
Leopold does clarify one important point that counters the accepted
reading of Marx: Marx’s critique of rights is not the same thing as his
critique of religious alienation from which it follows. Whereas the ima-
gined solace of religion in Marx’s view only reflects social alienation, and
consequently produces no real emancipation, such a thing as ‘political
emancipation’ does in fact exist. The limitation of exclusively legal and
32
Marx, On the Jewish Question, translation modified, p. 30 (our emphasis). The original
French translation by Jean-Michel Palmier for Éditions Sociales (1971) has this phrase as
‘does the standpoint of political emancipation have the right to demand the abolition of
Judaism . . . ?’ ; in the most recent French translation by Jean-François Poirier for La Fabrique
(2006), this is replaced by ‘does it allow . . . ’ [permet-il]. Yet the word in the original German
is indeed ‘Recht’.
33
Leopold, The Young Karl Marx, p. 161.
34
Marx and Engels, The Holy Family, p. 157.
35
Karl Marx, ‘Critique of the Gotha Program’ (1875), in Marx and Engels Selected Works,
vol. 3, Moscow, Progress Publishers, 1970, pp. 13–30.
36
Bertrand Bourgeois, Philosophie et droits de l’homme, de Kant à Marx, Paris, PUF, 1997,
p. 101.
political freedom is that it does not eliminate social alienation; but this
does not make political emancipation a form of alienation. Citizen rights
are not in themselves a form of alienation: they mean exercising an
incomplete yet real freedom.
This is how Marx’s critique of religion leads towards the assertion that
church–state separation is not enough to move past the causes of religious
alienation. But even if religious freedom does not liberate mankind from
religion, it is nevertheless a real freedom which must not be challenged or
curtailed by authoritarian measures. Countering Bauer, Marx asserts that
this freedom ‘is a general righ[t] of man’.37 It thus follows that the principle
behind human rights is different from that which feeds religious illusion:
human rights are equivalent to freedom of religious practice, or to what
we might term ‘secularism’, which does not erase religious illusions but
nonetheless represents real progress and lasting benefit.
Social emancipation, then, does not contradict political emancipation:
it fulfils or completes it by extending political freedom into the social
sphere, in other words by placing social relations as a whole under the
democratic control of collective freedom. It may be tempting to see this
project of total, undivided democracy as does Claude Lefort – as a mere
‘totalitarian fantasy’ that cancels out the notion of ‘free association’ on
which it is allegedly founded, and substitutes for it the dream of
a transparent and self-referential society.38 In condemning the rights of
man as an expression of the atomism of capitalist imagination, Lefort
argues, Marx missed the political and democratic dimension properly
understood of ‘human rights’;39 paradoxically, he succumbed to the
liberal idea of the Declaration as instituting a separation between the
social and the political. As Etienne Balibar has written, this is ‘a complete
misunderstanding with the respect to the letter, the materiality of the
texts’. The ‘man’ of the Declaration ‘is not the “private individual” set up
in opposition to the citizen who is supposedly a part of the state. He is
precisely the citizen’.40 Among the ‘natural and imprescriptible rights of
man’ proclaimed by the 1789 Declaration, resistance to oppression or
free communication of thoughts and opinion – described as one of the
‘most precious rights of man’ – necessarily bind the subject to other
subjects.
37
Marx, On the Jewish Question, p. 40.
38
Claude Lefort, ‘Les Droits de l’homme et l’État providence’ and ‘Relecture du Manifeste
communiste’, in Essais sur le politique, Paris, Seuil, 1986, pp. 46 and 188.
39
Claude Lefort, ‘Droits de l’homme et politique’, in L’Invention démocratique, Paris,
Fayard, 1981.
40
Etienne Balibar, ‘“Droits de l’homme et droits du citoyen”. La dialectique moderne de
l’égalité et de la liberté’, in Les Frontières de la démocratie, Paris, La Découverte, 1992, pp.
133–134.
But this reasonable critique – which reminds us that the rights of man
cannot be separated from the rights of the citizen – should not obscure the
fact that this very separation is what Marx decries under the umbrella
term of the ‘rights of man’. His critique is not directed against an unspe-
cified ensemble of human rights, and among those proclaimed in the
1789 and 1793 Declarations he certainly does not challenge the specific
rights of freedom of association, freedom of the press and political free-
dom: these he had always seen as the first demands of the revolutionary
movement. Instead, Marx targets the rights of man as opposed to citizen
rights – or what On the Jewish Question calls ‘the sophistry of the political
state’,41 which overlaps with the liberal version of human rights and
consists in invoking them in order to limit the scope of political rights.
From this angle, ‘human rights’ are defined by the distinction between
the ‘rights of man’ and the ‘rights of the citizen’, which strips political
rights of any social impact in the same breath as it strips human rights of
any political effects. On the Jewish Question is categorical on the issue:
‘Who is this man distinct from the citizen? No one but the member of civil
society . . . the so-called rights of man, as distinct from the rights of the citizen,
are simply the rights . . . of egoistic man, of man separated from other men
and from the community.’42 Defined by their difference from citizen
rights, the rights of man inevitably become the rights of an isolated
monad, as opposed to political rights which are those of man in his
existence as part of a ‘species’ and community, but ultimately of an
existence so narrowly defined that it loses all semblance of reality.
It is unlikely, then, that Marx intended to deny the social or political
nature of rights such as freedom of the press or freedom of association;
rather, the point of his argument is that human rights must not be used as
a pretext to limit citizen rights by interpreting them as a mere means,
subordinated to the guarantees of apolitical rights. We should add
a historical observation at this juncture, that the same National
Assembly that had promulgated the Declaration of the Rights of Man
also enacted the Le Chapelier law prohibiting workers’ associations: the
‘rights of man’ as differentiated from the ‘rights of the citizen’ clearly
stood alongside a restriction on freedom of association.43 Which is not to
suggest that Lefort was wrong in his view that freedom of the press and
freedom of association are rights of intersubjectivity, of social relations
and not of the selfish monad; but it was these very rights that Marx’s
41
Marx, On the Jewish Question, p. 35. 42 Ibid., pp. 41–42.
43
‘During the very first storms of the revolution, the French bourgeoisie dared to take away
from the workers the right of association but just acquired. By a decree of June 14, 1791,
they declared all coalitions of the workers as “an attempt against liberty and the declara-
tion of the rights of man”’ (Marx, Capital, Book I [1867], ch. XXVIII, 3).
critique left intact. Instead, the object of his scorn was the way in which
the 1789 and 1793 Declarations had subordinated the rights of political
relations to the rights of the isolated individual.
Simply put, Marx’s critique targets the fact that the rights of man have
at their very core the intangible right to private property. Even in the 1793
Constitution, ‘the practical application of the right of liberty is the right of
private property’.44 The subordination of the rights of the citizen to the
rights of man (distinguished from the citizen) translates in concrete terms
as a privileged status granted to the right of private ownership. Liberty as
the relationship of ‘man with other men’ is thus buried by freedom as the
selfish enjoyment of the property owner, ‘without regard for other men
and independently of society’. The right to property as a ‘right to egoism’
cancels out the ‘relational’ rights which give form to the ‘rights of the
citizen’: as soon as political rights cannot constrain the right to private
property, they lose all social meaning. Doomed to preserve the existing
system of wealth distribution, these rights are now merely a secondary
dimension of the security required by possessive individualism, and attest
to what The Jewish Question describes as the impotence of ‘political power’
when separated from ‘social power’.
This impotence furthermore explains the descent into Terror of which
Marx gives an account in On the Jewish Question, later completed in
The Holy Family. It is a commonplace of counter-revolutionary thought
to dismiss the rights of man with the contention that the Terror of 1793
was their only possible outcome.45 Marx takes on the problem of this
relationship between Terror and human rights from the angle of the
French revolutionaries’ inconsistence in proclaiming the subordination
of citizen rights to the rights of man at the very same time that their
politics required the opposite: subordination of the rights of man to the
duties of the citizen, and the requirement for individuals to sacrifice their
private interests to the imperative for public safety. Yet this contradiction
demonstrates that Terror did not grow from the affirmation of individual
rights: it arose from the dissociation of the political state and civil-
bourgeois society, which took society outside the aegis of political power
and made it an autonomous sphere of competition between unchecked
interests, which were in turn to be kept ‘free’ as a ‘human right’. The real
44
45
Some authors have turned this anti-Jacobin critique of human rights into a pro-Jacobin
argument. Luciano Canfora (La Démocratie, trans. A. Caola and P. Itoli, Paris, Seuil,
2006, p. 76ff.) recalls that the very French revolutionaries who promoted Terror abol-
ished slavery in 1794 in the name of the rights of man. Engels strangely forgets this fact when
he attempts in Anti-Dühring to prove the ‘bourgeois nature’ of the rights of man by the
maintenance of slavery through the American Revolution.
individual was thus fractured into two different figures: the ‘member of
civil society’ on the one hand, who represents ‘authentic man’ and leads
his empirical life in the sphere of market competition; and on the other the
citizen, or ‘political man’, who has no power over this empirical existence
and is thus no more than an ‘abstract, artificial man’ or an ‘allegorical,
moral person’.46
It is this ‘allegorical’ face of citizenship that led to the Terror in concrete
terms. The radical separation of the political and social domains means
that political power can be exerted over society only through terrorist
measures, denying society’s rights in the name of the state as an ‘end in
itself’.47 Violence is the sign of the social powerlessness of the political
sphere: Terror constitutes an involuntary admission that the political
community proclaimed in the name of the ‘rights of the citizen’ is an
imagined community. Hence why human rights would, after
Robespierre’s downfall, once again get muddled up with the ‘fever of
the numerous new owners’ and the ‘powerful streams of [capitalist] life’
of the Directorate society.48
Going beyond the rights of man, in this scenario, means reversing their
dissociation from citizen rights, ‘absorbing’ them into political rights,
while extending political rights to the entirety of the social sphere. This
is the goal of Communism: to render ‘political power’ indistinguishable
from ‘social power’. The vocabulary of the rights of man and the citizen
seems inadequate for such a task, as the point is precisely to resolve the
disconnect between man and citizen and to redefine ‘political rights’ such
that they are no longer ‘political’ rights – that is to say, only political – but
a veritable social force. Marx never defined Communism as a right to
collective property, but rather as the process of collective appropriation of
the means of production:49 communism, in this view, means the
conscious and deliberate organization of production and society itself by
‘freely associated individuals’. Its substance, then, lies not in demands for
or protection of human or citizen rights, but in the actual exercise of the
collective power of individuals. Unlike legal constructs, which merely
46
47
Remarkably, The Holy Family describes Napoleonic power as ‘the last act in revolutionary
terror’s struggle against bourgeois society’ (p. 166): Yet at the same time he still regarded the
state as an end in itself and civil life only as a treasurer and his subordinate which must have
no will of its own. He perfected the Terror by substituting permanent war for permanent
revolution.
48
Marx and Engels, The Holy Family, p. 165.
49
On the difference between collective property and the appropriation of production, see
Louis Althusser, Sur la reproduction, Paris, PUF, 2011, p. 91, and Antonio Labriola,
Essais sur la conception matérialiste de l’histoire [1895–1899], trans. A. Bonnet, Paris,
Gordon & Breach, 1970, p. 12.
provide a framework for isolated individuals to interact, communism is

the practice of a collective freedom which is not divorced from its own
substance by the objectivised legal mould, but instead preserves its
autonomy by recognising no constraint but the immanence of its own
decision-making. The concept of communism inherent in the arguments
put forward in Marx’s early works remains identical throughout his
œuvre: communism is not a system of rights, but rather, as Antonio
Labriola writes, ‘the democratic socialisation of the means of production’.50
Should we therefore take the arguments in On the Jewish Question as the
definitive version of Marx’s views on the rights of man? This raises two
questions rolled into one. From an intellectual history standpoint, we
must first ask why throughout his life Marx maintained a rather un-
nuanced opposition in principle to an extremely nebulous ‘juridical
ideology’, without ever reassessing the conceptual articulations of his
early critique of human rights. From a normative standpoint, the chal-
lenge is to determine whether Marx’s understanding of freedom does not
in fact presuppose a theory of human rights, which it otherwise omits to
mention.
The Historicist Recasting of Marx’s Critique of Human

Rights
From 1845 onwards, Marx’s œuvre as a whole reframes the project of
social emancipation as part of an exploration into the historical dynamics
of capitalist accumulation. Countering Proudhon, who founded a theory
of ‘distributive justice’ and failed to see that property relations must be
analysed in their ‘real form’ as the ‘relations of production’ rather than
through ‘their legal aspect as relations of volition’, Marx rejects any norma-
tive perspective except a ‘critical knowledge of the historical movement,
a movement which itself produces the material conditions of
emancipation’.51 He sets out to demonstrate that the ‘stage of develop-
ment’ founded on capital must be surpassed – the state in which man is
‘cultured to a high degree’ and a ‘social human being . . . as rich as possible
in needs, because rich in qualities and relations’ – to be replaced with
a higher form of socialisation which must also be a superior sort of
individualisation.52
50
Ibid.
51
Karl Marx, ‘Letter to J.-B. Schweitzer’ [1865], in Marx and Engels Selected Works, vol. 3,
Moscow, Progress Publishers, 1970, pp. 24–30.
52
Karl Marx, Grundrisse [1857], trans. Martin Nicolaus, London, Penguin Books (in
association with New Left Review), 1973, p. 762.
The Historicist Recasting of Marx’s Critique of Human Rights 171
The emancipation sought by ‘a critical knowledge of the historical

movement’ is not formulated in terms of a theory of justice: Marx clearly
states that justice is no more than compliance with the law as it necessarily
arises from the means of production.53 No injustice exists in legal
relations, as long as these relations adequately correspond to the needs
of the relations of production. This reduction of legal relations to eco-
nomic relations explains why Marx had only contempt for human rights
phraseology, in which he saw merely an ideological translation of the legal
constructs of mercantile relations. Under the guise of an ahistorical law,
the rights of man are the illusory projection of the ‘deceptive semblance’
that exchange is a ‘free and equal’ relation.54 To counter this ‘deceptive
semblance’, Marx traced the ideology of the eternal rights of man to the
historical conditions of legal relations which human rights distort; he
sought to prove that capitalist mercantile relations, whose corresponding
legal fantasy is the existence of human rights, are exploitative relations,
even though they are relations entered into between ‘formally’ equal
individuals, and are thus unimpeachable from the point of view of fair
transaction.
The German Ideology thus marks a key turning point in Marx’s philoso-
phy: the materialist historicism that links human thought and activity to
the material conditions for their social production cannot be reconciled
with the notion of a human essence arguably lost to religion or the state,
and that mankind should recapture. On the Jewish Question had critiqued
human rights in the name of unity of an essential ‘species-being’;
The German Ideology disqualifies the idea of man’s eternal essence as an
ideological illusion, to be countered by the fact that only ‘real individuals’
exist, glimpsed in the ‘material conditions’ of their history55 – in other
words, in the social relations that give rise to their individuality in its
specific form. Marx repeatedly argued that man is a social being who ‘can
only constitute himself as an independent individual in society’.56
It follows that there is no such thing as human nature: ‘all history is
nothing but a continuous transformation of human nature’,57 as it is the
succession of social formations that produce each category of humanity in
correlation with given social relations.
This historical perspective could not bring about the rehabilitation of
human rights: if man does not exist, he cannot have rights. Marx main-
tains the definition of communism presented in On the Jewish Question,
53
See for example Marx, Capital Book III, ch. XXI and Critique of the Gotha Program.
54
Marx, Grundrisse, pp. 892 and 1000.
55
Marx and Engels, The German Ideology, pp. 42 and 48ff.
56
Marx, ‘1857 Introduction’, in Grundrisse I, op. cit., p. 18.
57
Karl Marx, The Poverty of Philosophy [1847], Progress Publishers, 1955, p. 67.
which challenged the right to property as well as the separation between

the political and the social spheres; but now he adds to this rejection
a twofold argument for the historicity and radically secondary nature of
law. The rights of man are false in the sense that they must, by definition,
be presented as natural, eternal or innate rights. Yet all rights are histor-
ical, since they depend on what is possible given the state of productive
powers and relations of production. It is not that the law is reduced to
reinforcing existing power relations (whatever their nature); rather, eras-
ing the historical limits of productive powers and the mode of production
they impose is simply beyond its power. The societies of classical anti-
quity, which could not have abolished the institution of slavery which
underpinned their technical and spiritual progress, could not have con-
ceived of ‘human rights’ as such being incompatible with slavery.58
The concept of ahistorical ‘human rights’, liable to be unconditionally
demanded in any context, is thus in Marx’s view an absurd notion that
should logically lead us to deplore the entire course of human history. Has
it not always taken the ‘bad side’,59 and succeeded in developing ‘civilisa-
tion’ only through the social forms of slavery and feudalism, untenable
from a human rights perspective? A serious belief in eternal rights can only
produce a truly religious sense of frustration at the irrationality of history,
in which the rights of man are constantly violated and reality never
matches up to the ideal. Marx repeatedly decries this ‘sentimental’
point of view, which he sees at play in the legal versions of socialism that
condemn the wrongs of capitalism without understanding the historical
necessity of these so-called injustices.
Nevertheless, throughout his later works Marx maintained that ‘the
development of the richness of human nature’, or the integral develop-
ment of individuals, is ‘an end in itself’.60 But this means that the goal is
less preservation of individual rights than the development of their power.
Now, this development – which would be made reality under commun-
ism in the form of ‘free individuality, based on the universal development
of individuals and on their subordination of their communal, social
productivity as their social wealth’ – means first living through the
capitalist era, which breaks down the close ‘relations . . . of personal
dependence’ and substitutes for them the progress of ‘personal indepen-
dence founded on objective dependency’ (dependence on the market
transformed into an autonomous force).61 Hence the resulting paradox,
58
Engels emphasises this point in Anti-Dühring, Paris, Éditions Sociales, 1977, pp.
208–209: ‘Without the slavery of Antiquity, no modern socialism.’
59
Marx, The Poverty of Philosophy, p. 130.
60
Karl Marx, Theories of Surplus Value, vol. II, Moscow, Progress Publishers, 1963, p. 117.
61
Marx, Grundrisse, vol. I, p. 189 and p. 180.
that ‘the higher development of individuality is thus only achieved by

a historical process during which individuals are sacrificed’:62 the expan-
sion of the powers of individual freedom dialectically passes by way of the
cruelty of a division of labour which violates ‘human rights’ by first
restricting freedom to a small minority of individuals.
The notion of human rights is not only blind to the necessity of violence
(including the emancipatory violence of all revolutionary action); it is
equally blind to its own violence, the violence of the relations of enslave-
ment for which it provides the framework. Human rights appear at first
glance as the realisation of a system for the equality of individual rights;
however, this configuration overlooks the fact that real ‘social relations’
are ‘based on class antagonism’, and that ‘individuals in such a society,
although their relations appear to be more personal, enter into connection
with each other only as individuals imprisoned within a certain definition,
as feudal lord and vassal, landlord and serf’ and so on.63
It would be futile to pit human rights against the power relations that
inevitably establish themselves in a mercantile relation between those who
own the means of production and those who own only their own labour.
For the mercantile relation in fact aligns with the concept of human
rights: it is a relation of equality between proprietors who ‘recognize one
another reciprocally’ as free persons. ‘The exchange of exchange values is
the productive, real basis of all equality and freedom. As pure ideas they are
merely the idealized expressions of this basis; as developed in juridical,
political, social relations, they are merely this basis to a higher power.’64
Consequently, it was ‘foolishness’ to think, as had the French socialists,
that socialism would be the ‘realization’ of the ‘ideals . . . articulated by the
French Revolution’. These ideals were those of bourgeois ‘civil society’
and are truly realised in the market relations that furnish the capitalist
mode of exploitation. Setting human rights against this means opposing
‘the real and the ideal form of civil society’ and wanting to restore ‘the
ideal expression again, which is in fact only the inverted projection of this
reality’. Capitalist exploitation and the domination of money do not
‘deform’ the ‘system of equality and freedom’ for all; they are the
immanent development of this system. ‘Exchange value or, more pre-
cisely, the money system is in fact the system of equality and freedom,
and . . . the disturbances which they encounter in the further development
of the system are disturbances inherent in it, are merely the realization of
equality and freedom, which prove to be inequality and unfreedom.’65
62
Marx, Theories of Surplus Value, vol. II, p. 118.
63
Marx, The Poverty of Philosophy, vol. I, 3, p. 109; and Grundrisse, vol. II, p. 188.
64
Marx, Grundrisse, vol. I, II, 8–12, pp. 243 and 245–246.
65
Ibid., II, pp. 248–249, trans. modified.
Market relations are described in Capital as the implementation of ‘the

despotism of capital’ and the ‘concealed enslavement of workers’.66
Between capitalist owners, who are themselves no more than submissive
agents of their capital, and workers who have only their own manpower
and time to sell, the production relations of capitalist competition enforce
a division of labour: the worker is in the position of ‘one who is bringing
his own hide to market and has nothing to expect but – a hiding’, while the
capitalist inevitably assumes the role of the ‘vampire’ who ‘suck[s] living
labour’.67 And yet this relation of exploitation, which enacts its violence
via inequality of social positions and the destruction of individual free-
dom, develops into ‘a very Eden of the innate rights of man’.
There alone rule Freedom, Equality, Property and Bentham. Freedom, because
both buyer and seller of a commodity, say of labour-power, are constrained only
by their own free will. They contract as free agents, and the agreement they come
to, is but the form in which they give legal expression to their common will.
Equality, because each enters into relation with the other, as with a simple
owner of commodities, and they exchange equivalent for equivalent. Property,
because each disposes only of what is his own. And Bentham, because each looks
only to himself. The only force that brings them together and puts them in relation
with each other, is the selfishness, the gain and the private interests of each. Each
looks to himself only, and no one troubles himself about the rest, and just because
they do so, do they all, in accordance with the pre-established harmony of things,
or under the auspices of an all-shrewd providence, work together to their mutual
advantage, for the common weal and in the interest of all.68
There is a catch or twist in the story of this association drawn between the
rights of man and Bentham – one of their foremost opponents – which
runs through Marx’s output as a whole. However, Marx’s essential argu-
ment is that in limiting ourselves to the notion of equal liberties, which
defines the rights of man, we cannot then express any objection to the
market relation as a free contract between free property-owners who are
equal before the law. Yet this contractual relation sits all too easily along-
side exploitation: ‘apart from extremely elastic bounds, the nature of the
exchange of commodities itself imposes no limit to the working-day, no
limit to surplus labor’.69 Competition can thus force the individual who
freely owns only his own body to consent to his own exploitation. Since
buyer and seller have equal rights, it is not a legal principle but the reality
of competition and power relations that sets limits of working time and
exploitation.
66
Marx, Capital, Book I, ch. XV, 3, XXIV, 6, pp. 276, 435, trans. modified.
67
Ibid., ch. VI, 6 and 7, pp. 123, 163. 68 Ibid., ch. IV, 3, p. 123.
69
Ibid., ch. X, 1, p. 163.
Between equal rights force decides. Hence is it that in the history of capitalist
production, the determination of what is a working day, presents itself as the result
of a struggle, a struggle between collective capital, i.e., the class of capitalists, and
collective labour, i.e., the working-class.70
It is not invoking the rights of man that will counter exploitation –
including in the context of capitalist production, where it can only be
somewhat contained – but a deliberated communal decision that derives
authority only from itself, the assertion of a collective will and power
which in the shape of a legal limitation erect a ‘social barrier’ to the contract
principle.
For ‘protection’ against ‘the serpent of their agonies’, the labourers must put their
heads together, and, as a class, compel the passing of a law, an all-powerful social
barrier that shall prevent the very workers from selling, by voluntary contract with
capital, themselves and their families into slavery and death. In place of the
pompous catalogue of the ‘inalienable rights of man’ comes the modest Magna
Charta of a legally limited working-day, which shall make clear ‘when the time
which the worker sells is ended, and when his own begins’.71
This contrast between an English Magna Carta establishing real albeit

limited liberty, and the human rights touted by the French and American
revolutions, advocating boundless but illusory freedoms, rings out as
a strange echo of Burke’s opposition between the concrete ‘rights of
Englishmen’ and the imaginary ‘rights of men’. And yet, as we have
seen, Marx considered Burke as a mere ‘sycophant’ employed by the
‘English oligarchy’,72 and his own critique of the rights of man was
diametrically opposed to Burke’s defence of privileges and heritage.
Marx saw the destruction of inequality based on birth or tradition as the
great merit of the development of a capitalist market and its correspond-
ing legal system. From this angle, he was able to flaunt ‘the commodity’ as
a ‘a born leveller’.73 In the Grundrisse, Marx decries the way in which the
equality of the market relation ‘tricks democracy’.74 But this expression
suggests that the ‘system of equality and freedom’ represented by human
rights is criticised in the name of a democracy that will not tolerate abuse –
in other words, in the name of another ‘system of equality and freedom’,
70
Ibid., ch. X, 1, p. 164. 71 Ibid., ch. X, 7, p. 195. 72 Ibid., ch. XXXI, p. 539.
73
Ibid., ch. II and XV, pp. 60, 273. It is worth citing the second text: ‘But since capital is by
nature a leveller, since it exacts in every sphere of production equality in the conditions of
the exploitation of labour, the limitation by law of children’s labour, in one branch of
industry, becomes the cause of its limitation in others.’ Here, Marx unwittingly recog-
nises a truly emancipatory dimension of legal equality that he denounces as purely formal:
the formal logic inherent in legal equality implies extension of limitations on working
hours.
74
Marx, Grundrisse, I, I, 24, pp. 248–249.
one that is expressed in the very democratic equality which imposes a limit
on the working day to counter the laws of the market.
Marx does not elaborate further on the conceptual framework for this
other ‘system of equality and freedom’ that provides the content of the
communist idea. He only explains what communism rejects, as though
a series of denials were enough to define it. A Hegelian bias is at work
here: the teleological (and truly idealist) belief that the contradictions of
reality, by and of themselves, produce their sublation into a superior form,
such that if the contradictions of the capitalist mode of production were
successfully proved, this would in itself produce a satisfactory definition
of the communist concept. At the same time, under the banner of
a ‘system of equality and liberty’, Marx critiques both the free market
and rights liberalism, implicitly suggesting that Bentham (the utility
principle) and Rousseau (democratic autonomy) can be seen as equiva-
lent expressions of a common contractual logic.
However, in reality, neither liberalism nor the idea of human rights are
as uniform as Marx would have us believe; both fragment into divergent
versions that carry different political and social consequences, and are
incompatible with each other. In the detail of his analysis, Marx never
succeeds in reducing this divergence. Though he claims to associate the
rights of man only with the form of the laws of commerce, he cannot avoid
recognising (even if through a verbal slip) the aspect of human rights that
cannot be boiled down to market logic, and which in practice – though
Marx strenuously denies it – runs through his critique of capitalist
exploitation.
Justice, Individual Liberty and Human Rights

For some critics,75 the correlation thus suggested between the conflict-
laden egotism of capitalist society and individual rights would render the
latter superfluous in a communist society. The argument runs as follows:
legal guarantees on individual rights are necessary only where these rights
are at risk of infringement. Since such infringements are the product of
selfishness as engendered by class struggle, the advent of a truly
communist society would render all legal protection of liberties useless.
Bourgeois law would no longer exist in such a scenario, of course, but
neither would any law at all or any legal or moral rules. But the argument
stumbles on the fact that there is no good reason to believe that the
elimination of class conflict in Marx’s view would in fact lead to the end
75
In particular, see Allen E. Buchanan, Marx and Justice. The Radical Critique of Liberalism,
Totowa (NJ), Rowman & Littlefield, 1982, and Lukes, Marxism and Morality, p. 57.
Justice, Individual Liberty and Human Rights 177
of all forms of conflict.76 As Will Kymlicka has summarised this point:

‘The “harmony of ends” solution to the circumstances of justice is, in fact,
more of a communitarian ideal than a Marxian one.’77
We endorse Allen Wood’s demonstration that a misunderstanding of
what ‘justice’ means for Marx undergirds this hypothesis of rights ‘eva-
porating’ in a communist society.78 When Marx slays the slogans of
distributive justice – calling them ‘obsolete verbal rubbish’79 – his critique
is not aimed primarily at the liberal idea of the impartial distribution of
rights as John Stuart Mill might have conceived of it.80 His target is rather
the early socialists’ unshakeable faith in ‘just remuneration’ for work and
the ‘just distribution’ or ‘fair exchange’ of goods. Marx believes that there
is no transactional justice by virtue of which the injustice of real exchanges
could be criticised: the justice of any exchange or wage stems from its
relationship to the existing mode of production. The capitalist wage
system is ‘just’, since capitalists purchase labour in the context of a free
contract, without dishonesty, and at the price that it is worth in real terms
on the market.81 However, this justice does not prevent the exploitation of
workers through excess working hours. Difficult as it may be for a reader
of Rawls to comprehend, Marx does not conceive of exploitation as an
injustice, and sees communism not as instituting ‘justice’ but rather as
abolishing the enslaving effects of capitalist production through the col-
lective organisation of labour.
However, if we concede that a critique of the illusions of distributive
justice (understood as the ‘fair sharing’ of the fruits of labour, for which
criteria are incidentally lacking) is not the same thing as a rejection of
equal distribution of rights, we may ask, as Wood explicitly suggests,
whether ‘Marx might very well see a significant place for what liberal
theorists choose to call “individual rights”, though of course Marx himself
scorned that name’.82 Unfortunately, Wood does not expand on this
hunch, which he mentions in passing in a book review and does not
feature in his magnum opus on Marx; it rather seems to contradict his
76
Allen W. Wood, ‘Review of Marx and Justice. The Radical Critique of Liberalism by
A. E. Buchanan’, Law and Philosophy, 3, 1, 1984, pp. 147–152, here p. 151, and
Waldron, Nonsense, p. 134.
77
Will Kymlicka, Contemporary Political Philosophy: An Introduction, Oxford, Oxford
78
Wood, ‘Review of Marx and Justice’, p. 150ff.
79
Marx, Critique of the Gotha Program, p. 16.
80
John Stuart Mill, Utilitarianism [1861], ed. George Sher, Indianapolis (IN), Hackett,
2001.
81
Karl Marx, ‘Notes on Adolph Wagner’, in Terrell Carver (ed.), Later Political Writings,
82
Wood, ‘Review of Marx and Justice’, p. 151.
earlier writings, in fact.83 However, it is an avenue well worth exploring:

looking at the two key stages of the critique of the rights of man in Marx’s
œuvre – the historicity of rights, and the concept of an abstract legal form
likely to contain an unequal social relation – we argue that these two
positions do not add up to an intractable opposition to human rights.
First, the argument about the historicity of rights constitutes an objec-
tion to belief in their eternal truth, but not to the legitimacy of their
demands. Marx never intended his historicism as nihilist relativism: in
his view, historicity carries its own necessity and rationality. The fact that
a political project is historically conditioned, as is the communist project,
does not invalidate it. The fact that human rights presuppose the histor-
ical circumstances of individual emancipation arising from technological
development is not enough to invalidate the entire politics of human
rights. Marx repeatedly described communism as the possibility open to
each and every individual to pursue the ‘integral development’ of his
individuality: why then should it be impossible to see in this the imple-
mentation of a ‘right of man’ consisting in the right of the individual to his
or her own free personal development? Here, Marx’s opposition to
human rights seems more rhetorical than genuine: much like
Althusser’s condemnation of the ‘humanist’ concept of alienation,
which he counters with the idea of ‘the new form of individual development
for a new period of history . . . in which from now on each man will
objectively have the choice, that is, the difficult task of becoming by himself
what he is’.84 What is alienation, then, if not being prevented from
‘becoming what one is’, or to put it in less ‘idealist’ terms being separated
from one’s own possibilities?
Marx again takes up his argument against the abstraction of human
rights in the Critique of the Gotha Program, where he explains that even the
‘equal right’ of a socialist state, which ‘recognizes no class distinctions’, is
‘an unequal right for unequal labor’, and therefore remains ‘a right of
inequality, like every right’. Indeed, ‘right, by its very nature, can consist
only in the application of an equal standard’; yet this equal standard is
then applied to individuals whose capacity for work and ‘individual
endowment’ is not equal; in order to treat unevenly skilled individuals
equally, ‘right, instead of being equal, would have to be unequal’. This
inherent defect of rights, Marx continues, can be overcome only in the
83
In an article published twelve years earlier than the review of Buchanan’s book, Wood
had written: ‘And in the long run, of course, Marx believes that the end of class society
will mean the end of the social need for the state mechanism and the juridical institutions
within which concepts like “rights” and “justice” have their place’ (Allen W. Wood,
‘The Marxian Critique of Justice’, Philosophy and Public Affairs, 1, 3, 1972, pp. 244–282).
84
Louis Althusser, Pour Marx [1965], Paris, Maspéro, 1980, p. 245.
‘higher phase of communist society, after the enslaving subordination of

the individual to the division of labour . . . has vanished’, ‘after the pro-
ductive forces have also increased with the all-round (allseitig) develop-
ment of the individual, and all the springs of co-operative wealth flow
more abundantly – only then can the narrow horizon of bourgeois right be
crossed in its entirety and society inscribe on its banners: From each
according to his ability, to each according to his needs!’85
This argument remains extremely allusive. Althusser sees in it confir-
mation that ‘the only Right is market-related and therefore bourgeois’ and that
‘the socialist mode of production will eliminate all right’.86 However, the
original text is more ambiguous than this, leaving the question open as to
whether the ‘horizon of bourgeois right’ is the same thing as the horizon of
rights in their entirety. As for surpassing rights, it appears in this text less
as an ‘elimination’ than the projected disappearance of rights through
disuse: in the land of plenty of a society of abundance inhabited by men
free of any alienation, there is no use for rights. However, this certainly
does not mean that the principle of rights, of equal liberty, would be
‘superseded’ in the sense of being replaced or bettered by a different
principle. Marx sets no other higher principle against the rights of man:
he stops at the utopian vision of a state of abundance that would eliminate
the need for rights. But a utopia of this sort is certainly not a counter to the
real need for rights in a society that has not yet attained the conditions of
abundance and the all-round development of individuals. Utopia pro-
vides no valid reason to reject human rights understood as a translation of
individuals’ need for protection against political oppression and the
denial of the basic conditions for their individual existence.
Marx’s critique of the abstraction of human rights brings us to the
conclusion that ‘political emancipation’ must ‘go forward’ to ‘social
emancipation’.87 But this social emancipation as an extension of political
emancipation must not eliminate its precedent. The social inadequacy of
the rights of man does not make them politically null and void. In his
political practice, Marx always believed that acquisition of a certain
number of rights that counted as rights of man was a necessary condition
for progress towards socialism. From his 1847 articles all the way to his
Critique of the Gotha Program, the same political watchwords are con-
stantly repeated: universal suffrage, the right to peaceful assembly and
association, freedom of the press and public education uncensored by the
state are all championed as rights which must be won in order for the
85
Marx, Critique of the Gotha Program, p. 19.
86
Althusser, Sur la reproduction (1969), p. 91.
87
Karl Marx, The Class Struggles in France, 1848–1850, in Selected Works, vol. I, p. 236.
communist project to have any practical meaning.88 ‘As long as democ-

racy has not been achieved’, wrote Engels in 1847, ‘thus long do
Communists and democrats fight side by side, thus long are the interests
of the democrats at the same time those of the Communists’.89 Marx’s
ironic take on parliamentary illusions and the naive belief that universal
suffrage is enough to transform all social relations should not blind us to
the fact that democratic rights are still a necessary, if insufficient, condi-
tion for all social transformation in his view. Here we may cite the
sarcastic remarks in The Critique of the Gotha Program regarding ‘freedom
of conscience’. Marx laments that, by repeating this ‘old catchword’ of
liberalism, one ‘chooses not to transgress the “bourgeois” level’ of ‘the
toleration of all possible kinds of religious freedom of conscience’, while
the Workers’ party ought to have declared that it was striving to free the
conscience from the ‘witchery of religion’. But this does not challenge the
right to freedom of conscience, since Marx also adds that ‘everyone
should be able to attend his religious as well as his bodily needs without
the police sticking their noses in’.90 This may seem overly aggressive,91
but the heart of the matter is that Marx seeks to keep the police away from
free intellectual activity, and alongside this offers a virulent critique of
statism.
If this is the case, though, why does Marx obstinately refuse to grant any
positive value to human rights? The answer to this question is no doubt
that they include the right to property, that ‘terrible and perhaps unne-
cessary right’, as Beccaria called it, against which the Communist Manifesto
called for ‘despotic inroads’.92 The rights of man as understood by Marx
have the right to property at their very core. Their ‘formalism’ does not
mean that they are indifferent to substance but rather that their
abstraction is that of a determined substance – that of the capitalist own-
ership of the means of production – which remains present, like
a palimpsest, in the shape taken by the abstraction. In this sense, there
is an intimate symbiosis between the rights of man and market law: ‘the
ground on which the law grows’ is that of ‘bourgeois property’.93
88
See Hermann Klenner, ‘Über Marxens Religions- und Rechtskritik’, Utopie Kreativ, 84,
October 1997, pp. 5–10 and Andrea Maihofer, Das Recht bei Marx. Zur dialektischen
Struktur von Gerechtigkeit, Menschenrechten und Recht, Baden-Baden, Nomos Verlag,
1992.
89
Cited by Jacques Texier, Révolution et démocratie chez Marx et Engels, Paris, PUF, 1998, p.
38. As Texier remarks, Engels’ signature on the article does not prevent it from expres-
sing Marx’s position as well.
90
Marx, Critique of the Gotha Program.
91
In the 1857 introduction (Grundrisse I, p. 104), Marx described in less virulent terms the
‘artistic, religious, practical and mental appropriation of this world’.
92
Marx and Engels, Communist Manifesto, p. 81.
93
Marx, The Class Struggles in France, Part IV.
‘Bourgeois property’ can therefore not be fought against in the name

of a justice system or a human right said to endorse it: the only bulwark
against it is the democratic self-organisation of society, or ‘free exchange
among individuals who are associated on the basis of common appro-
priation and control of the means of production’.94 Moreover, the goal is
not blanket elimination of ‘all social and political inequality’ but only the
inequalities arising from ‘class distinctions’.95 As André Tosel argues,
the terms ‘freedom and slavery are more relevant’ to Marx’s critique of
exploitation ‘than justice or injustice’.96 The famous passage in Capital
describing the Communist transition from ‘the realm of necessity’ to the
‘realm of freedom’ should be read in this light. Marx sees this transition,
which defines ‘the shortening of the working-day’ as a ‘basic prerequi-
site’, not as the implementation of an indeterminate theory of justice but
rather the growing power of collective freedom. This would first man-
ifest in the socialisation of labour that gives it rational structure, so that
associated individuals would expend a minimum of energy ‘under con-
ditions most favourable to, and worthy of, their human nature’. It would
then unfold as the ‘development of human energy . . . [as] an end in itself’.97
Justice here is neither means nor end: the most important thing is the
maximisation of individual and collective freedom through the demo-
cratic organisation of production designed to free up the time and
capacities of all.
The argument that violence is necessary thus takes on its true meaning:
less a validation of oppression in societies past and present than an
affirmation of the ‘right to revolution’ as the ‘only real “historical
right”’.98 The rejection of human rights thus arises from a wish not to
subordinate revolutionary action to a predefined idea of the rights that
would constrain it. The limits of the ‘dictatorship of the proletariat’ must
remain vague. However, this does not mean that the dictatorship must
itself be boundless: Marx stresses that it requires the ‘really democratic
institutions’ of the communal or federal republic, with local self-
administration and the destruction of state bureaucracy and civil
service.99 The totalitarian project that may have informed twentieth-
century Marxism had to draw on other sources than Marx’s writings
94 95
Marx, Grundrisse I, I, 21, p. 181. Marx, Critique of the Gotha Program, p. 19.
96
André Tosel, ‘Marx, la justice et sa production’, in Études sur Marx (et Engels). Vers un
communisme de la finitude, Paris, Kimé, 1996, pp. 95–97.
97
Marx, Capital, Book III, ch. XLVIII (our emphasis). It is striking that Marx’s refusal to
believe in an eternal human nature does not prevent him from recognising the idea of
human dignity – i.e. the idea of freedom which is at the heart of human rights.
98
Engels, 1895 Introduction to Marx, The Class Struggles in France.
99
Karl Marx, The Civil War in France, 1871, ch. V.
themselves, even if it managed to find fodder in their contradictions,

shortcomings or overinflated utopias.100
The fact remains that affirming the right to revolution, without or
against human rights, revives the threat born of the right to revolution
based on human rights: that of Terror led in the name of emancipation, or
what Robespierre – yielding to the headiness of an impossible paradox –
had called the ‘despotism of liberty’.101 Just as the ‘dialectical’ exaltation
of rationality on the ‘wrong side’ of history comes close to spilling over
into brutal cynicism in some texts, the insistence on the dictatorial powers
with which democracy must be endowed is sometimes perilously close to
a blank cheque for the exercise of terror. Lenin only had to take a few
passages out of context to use quotes from Marx and Engels to justify the
suppression of democracy. It is certainly now possible to refute Lenin’s
use of these texts by bringing out the ‘fundamentally democratic’ nature
of Marx’s thought, which Jacques Texier neatly sums up with the phrase
‘there can be no socialisation of production without socialisation of
politics’.102 In Marx’s view, communism extends democracy to all
spheres of social existence, including the organisation of a workplace: it
is democratic deliberation that must determine the social distribution of
labour, its organisation, its goals and its length.
This total democracy, which subordinates production to the deliberate
control of associated individuals, is one without legal guarantees: neither
individual liberties nor the power exercised collectively by individuals
qualify as rights. Marx’s reference points are not those of what Jürgen
Habermas calls the ‘co-originality of popular sovereignty and human
rights’;103 rather, they start from the primacy of popular sovereignty
over the rights of man, such that democracy must not be formulated in
terms of rights that would constrain its implementation.
The fact remains that Marx mounts his attack on the rights of man in
the name of the collective power of free individuals. The break with the
humanism of ‘species’ and community advocated in On the Jewish
Question led Marx to associate communist society with the ideal of ‘inte-
gral development’ of individuals. The program in the Communist
100
It is useful here to refer to Claude Lefort, La Complication. Retour sur le communisme,
Paris, Fayard, 1999. The question of the relationship between Marx’s thought and
totalitarianism is beyond the scope of this chapter: suffice to say that if Marx’s writings
contain traces of a totalitarian explosive, the detonator was put in place only by Lenin.
101
See on this Lefort, ‘La Terreur révolutionnaire’, in Essais sur le politique.
102
Texier, Révolution et démocratie chez Marx et Engels, pp. 13, 23, 56, 92.
103
Jürgen Habermas, ‘Constitutional democracy: a paradoxical union of contradictory
principles?’, Political Theory, 29, 6, 2001, pp. 766–781. Also Habermas L’Intégration
républicaine (1996), trans. R. Rochlitz, Paris, Fayard, 1998, pp. 279–286. See also the
analyses of Jean-Marc Ferry, La République crépusculaire, Paris, Cerf, 2010, p. 263ff.
Manifesto is for a ‘conquest of democracy’ that will supplant class antag-

onism with an ‘association, in which the free development of each is the
condition for the free development of all’. The German Ideology had
already stressed that only the abolition of class and of the division of
labour would leave room for the ‘development of individuals into full
individuals’, in other words the existence of ‘individuals as individuals’:
It follows from all we have been saying up till now that the communal relationship
into which the individuals of a class entered (. . .) was always (. . .) a relationship in
which they participated not as individuals but as members of a class. With the
community of revolutionary proletarians, on the other hand, who take their
conditions of existence and those of all members of society under their control,
it is just the reverse; it is as individuals that the individuals participate in it.104
Contrary to Wood’s theory,105 Marx is clearly an ‘individualist in the
normative sense’.106 If his ‘communist individualism’107 does not coa-
lesce into a theory of rights, this is because his goal is not equity of
exchange but the effectiveness of individual and collective freedom, to
be achieved through a new ‘organisation of production’ intended to
liberate the ‘power of all’.108 In light of this ideal of liberty, exploitation
becomes an inadmissible servitude as soon as technological and social
development remove the need for it that had been warranted by earlier
conditions of precarity. It is not the falsely eternal norm of a social justice
emptied of its substance that motivates the fight against exploitation, but
the historical possibility of a ‘higher’ – that is to say freer – ‘form of life’.109
Yet we may justifiably ask whether Marx’s rejection of a theory of social
justice, though it certainly has its own coherence and strength, necessarily
implies rejection of a theory of rights, and human rights in particular. For
human rights are not a theory of distributive justice: They are rather, if only
in the form of their Declaration, an affirmation of liberty. By definition,
liberty cannot be ‘granted’ as a blessing, but can only be expressed in its
full dignity by affirming itself as a right. It is in the form of rights that
liberty affirms itself and claims its dues.
According to several of Marx’s works, this form is ‘illusory’.
The German Ideology categorically maintains that political and legal
104
Marx and Engels, The German Ideology, p. 85.
105
Wood writes: ‘It still seems to me almost as mistaken to say that Marx’s critique of
capitalism is founded on a “principle of freedom” as it is to say that it is founded on
a “principle of justice”’ (‘The Marxian Critique of Justice’, p. 281). This would be to
forget that Marx explicitly takes the free development of individuality as an ‘end in itself’.
106
Elster, An Introduction to Karl Marx, p. 25.
107
Voir Ingo Pies and Martin Leschke (eds.), Karl Marx’ kommunistischer Individualismus,
Tübingen, Mohr Siebeck, 2005.
108
Tosel, ‘Marx, la justice et sa production’, pp. 95–97.
109
Marx, The Civil War in France.
campaigns ‘are merely the illusory forms in which the real struggles of the
different classes are fought’.110 Yet it remains difficult to see why these
forms should be called ‘ideological’ or ‘imaginary’. If they are the solution
or environment in which social conflicts must play out, they are less an
‘ideological conception’ than an arena or ground in which opposing
ideologies of unequal value confront each other: and if, as Marx suggests,
they are an ‘expression’ of economic and social relations, they are then
likely to hold truth in the vein of this ‘expression’. As Engels would
recognise in his late work on Feuerbach, ‘if, therefore, bourgeois legal
rules merely express the economic life conditions of society in legal form,
then they can do so well or ill according to circumstances’.111 This
amounts to a recognition, against the original spirit of the doctrine, that
forms of rights are not merely a form of ideology, but may be the legit-
imate expression of an objective content of which they are the necessary
incarnation. If the socialist movement ‘must formulate its claims in the
form of claims to rights’,112 this is clearly because claims to rights are the
only possible way of affirming liberty, or indeed the individual emancipa-
tion that is the goal of communism in Marx’s view.
In all of his critiques of human rights, Marx passes over Article 2 of the
1789 Declaration which states four ‘natural and imprescriptible rights of
man’: ‘liberty, property, security and resistance to oppression’. Since
Marx does not take a theory of social justice as his foundation – and
neither does the Declaration – does his critique not in fact amount to an
argument against property and security in the name of liberty and resis-
tance to oppression? If exploitation cannot in Marx’s view be defined by
injustice, it must be defined above all by oppression, understood stricto
sensu as a ‘crushing’ (or ‘flattening under a weight’) of individuals’ life and
liberty. But if this is so, the struggle against exploitation – which Marx
maintains does not fall under the banner of ‘justice’ – can only take root in
the right to ‘resist oppression’, by which life and liberty safeguard their
rights. Is the campaign for reduced working hours not the best example of
a form of resistance to oppression which, with no recourse to social
justice, overlaps with the affirmation of the right to life and liberty?
*
Marx’s refusal to embrace any theory of justice may have served as
a pretext for Leninist and later Stalinist cynicism; it could just as well
110
Marx and Engels, The German Ideology, p. 54.
111
Friedrich Engels, Ludwig Feuerbach and the End of Classical German Philosophy [1886],
Progress Publishers, 1946, ch. 4.
112
Friedrich Engels and Karl Kautsky, ‘Socialisme de juristes’, Neue Zeit, 1887, 2, pp.
49–51.
furnish an argument for neoliberal cynicism following the defeat of ‘real

socialism’. Steering a course between these dangers, we argue that the
emancipatory intent behind Marx’s communism can only be maintained
without utopianism if reformulated in terms of a theory of rights, and one
that gives proper consideration to the legal conditions for the extension of
democracy. Democratic rights must necessarily be understood as those
human rights that make up the conditions for authentically democratic
institutions and practices. Likewise, Marx’s reasonable hopes – for recog-
nition of a shared democratic asset in the form of public goods, or
mitigation of the class gap through social redistribution policies – can
only be realised by implementing rights. If these rights do not in them-
selves put an end to domination, they put limits on it at the very least.
Though they call for a social practice of democracy that they cannot
produce by themselves, they are nonetheless the conditions for the
authentically democratic nature of this practice, which in turn gives
meaning to their institution.
Despite Marx’s own protestations, then, we argue that the emancipa-
tory project underlying his thought can be realigned with the tradition of
human rights, of which his oeuvre is in part a dialectical development.
As Lefort demonstrated, Marx remained in thrall to an ideological version
of human rights: he did not see that their ultimate un-foundedness – their
indeterminacy and undecidability – could throw social norms into ques-
tion and feed into the struggle for emancipation. If the terms of the
Declaration of 1789 soon went beyond the intentions of their authors
and were called into service by campaigns for women’s rights, workers’
rights or the rights of colonised peoples, this is because a politics of human
rights touches on the ‘limits of democracy’, and cannot therefore stop at
mere protection of the legal guarantees of civil and political rights.113
In this sense, Lukes’s argument that ‘Marxism inherited an overly
narrow conception of rights and an overly narrow understanding of the
circumstances which make them necessary’114 remains valid. But we
suggest that Marx’s theory, though it does not present itself as a theory
of the rights of man, carries at its core the material for appeals against any
infringement of human rights.115 The scenario that is playing out today in
claims for human rights – especially in transnational defence of the liberty
of real individuals – is thus able to draw on the Marxist critique of
capitalist domination. And this critique in turn claims as its basis the
113
Balibar, ‘Droits de l’homme et droits du citoyen’, p. 129 and ‘Qu’est ce qu’une politique
des droits de l’homme ?’, in Les Frontières de la démocratie, p. 244.
114
Lukes, Marxism and Morality, p. 66. 115 Ibid., p. 66.
real affirmation of the right of human beings, as individuals, to extend

their liberty as an absolute end in itself.
Several current champions of a ‘politics of human rights’ are also now
heavily influenced by Marx’s legacy. Etienne Balibar’s work, which
extends rather than deconstructs Marxist thought, is emblematic here:
‘Marx is fully in the lineage of a politics of human rights when . . . he
defines the “expropriation of the expropriators” as the reestablishment of
individual property on the basis of the “socialisation” historically achieved
by the capitalist mode of production.’116 This brings us back to Steven
Lukes’s question: ‘Can a Marxist Believe in Human Rights?’ If a ‘Marxist’
is someone who follows Marx’s writings with literalist fervour, the answer
undoubtedly remains ‘no’. If on the other hand a Marxist means someone
who – while recognising that Marxist theories are ‘shot through with
errors of detail, even have basic conceptual flaws, yet remain immensely
fertile in [their] overall conception’117 – can ‘trace the ancestry of his most
important beliefs back to Marx’,118 the answer then becomes: Yes, he
can. And indeed he should.
Hence the paradox that Marx’s influence is ubiquitous in contempor-
ary critiques of human rights. On the Jewish Question is frequently
credited, by right- and left-wing theorists alike, with giving the first
hints of ideas that would emerge fully later. We have already
demonstrated the deceptive nature of this reference in conservative
hands: removed from the critical aims that give them their true meaning,
Marx’s formulas are reduced to a denunciation of individualism. Marx’s
real aim was to expose the enslaving effects of the inegalitarian dynamics
of capital, against which he set the ‘all-round’ development of the
individual. For the champions of radical democracy, on the other hand,
a politics of emancipation must not stop at the least convincing articula-
tions of the Marxist critique of human rights: it is no coincidence that
Marx’s foremost heirs today fully embrace the language of rights.
116
Balibar, Les Frontières de la démocratie, p. 257. For a notion of human rights that explores
their political value from a Marxist-inspired angle, see also Jean Robelin, La Petite
fabrique du droit, Paris, Kimé, 1994, pp. 185–203.
117
Elster, An Introduction to Karl Marx, p. 3. 118 Ibid., p. 4.
A Nationalist Critique: Carl Schmitt
Our overview of critiques of human rights might appear to be complete

with the four areas covered so far:
– The conservative concern for jurisprudentialist historicism (Burke)
gives considerable weight to liberal ideas about division of powers
and the spontaneous order of civil society, but rejects the democratic
absolutism of rights. It is not the moral or natural limitations of power
that give rise to societal inequality. No state can be founded on absolute
rights on which any person may call at any moment to declare himself
in revolt.
– The progressivist impetus of utilitarianism, whether liberal (Bentham) or
social (Comte), aligns with the traditionalist argument in interpreting the
absolutism of human rights as a threat to social order. Demands for
equality and liberty are self-destructive if they are not defined within
a relationship determined by law. The right to property is incompatible
with the idea of equal rights taken in its absolute sense. Yet unlike
jurisprudentialism, which sees the rights of the establishment and history
as natural rights, utilitarianism sees ‘natural rights’ as meaningless, and
denies that any valid source for rights can be found in the past. In the
utilitarian view, a right is merely the consequence of a law, and collective
utility is the only norm worthy of recognition by the legislator. To reject
the absolute nature of rights means refusing to legislate for the future,
thus opening up the potential for improvements from adjusting laws to
changes in society and the state of knowledge. Bentham founds his idea
of democracy as the regime offering the greatest happiness to the greatest
number on this collective utility, understood as the sum of individual
utilities. The tradition inspired by Comte redefines equality according to
a principle of social integration.
– The reactionary, or rather anti-modern, stance of radical counter-
revolutionary thinkers (Bonald and Maistre) denounces the disjuncture
of theology from politics. Such authors oppose both liberalism and
democracy, advocating rule by a figurehead who enjoys absolute authority
187
and incarnates divine transcendence. The divine law of hierarchy stands

in opposition not only to equal liberties but also to the very idea of any
right pertaining to the individual as such.
– The revolutionary project of communist emancipation (Marx) breaks
with the three previous critiques in its accusation that human rights
enshrine the right to property; it is in this regard the direct antithesis of
the argument found in Bonald, Burke and Bentham that property must
be defended against the rights of man which threaten its foundations.
Marx rejects human rights not because democracy is impossible or
limited, but rather in view of a ‘total democracy’ utopia: the distinction
between man and the citizen at their core, which also undergirds the
separation of civil society from the state, means that society cannot as
an integral whole be based on democratic self-organisation.
The critique of human rights here does not attack the limitations of
liberty and equality, or the tensions between the two which prevent
their harmonious coexistence. Rather, it arises from a drive to achieve
equal liberties in a radical sense, and a refusal to curb their exercise by
legal conditions that would determine their meaning a priori.
The maze of critiques of human rights might appear to be exhaustively
waymarked along these four main paths, which give rise to the
transformations and shifting permutations of the arguments covered
more or less extensively (without necessarily coinciding) by various
authors. The full range of nuances inherent in the subject thus emerge
according to the author’s position in different fields of philosophy and
politics: theology or atheism, political religion or secularism, jusnatural-
ism or historicism, hierarchy or equality, authoritarianism or liberalism,
the principle of sovereignty or constitutionalism, market liberalism or
rights liberalism, ‘happiness liberalism’ or the liberalism of freedom,1
antidemocratic or democratic liberalism, libertarianism or social rights,
liberal or radical democracy and social justice or collective self-
organisation.
This wealth of perspectives gives rise to some complex amalgams. For
example, Comte’s critique of human rights marries a blanket rejection of
theology (since God is an empty idea and the concept of rights merely its
superfluous residue) with the proposal for a ‘religion of Humanity’, based
on the necessarily religious structure of society. Jusnaturalism may be
organicist and merge with a type of historicism, as it does in Burke, or it
may refer to the rights of the individual understood outside historical
circumstance. Liberal thought may veer between universalism and
1
A distinction drawn by Catherine Audard, Qu’est ce que le libéralisme?, Paris, Gallimard,
2009, p. 150.
Human Rights against Politics 189
historicism, fluctuate between simple pluralism and real individualism

and serve up a range of different blends of order and liberty, constitution
and utility, market and democracy and corporation and individual rights.
Though he affirms the principle of rights against utilitarianism, Benjamin
Constant does not take this to the heights of a republicanism based on the
rights of man, which he sees as a potential source of terror.
Republicanism, meanwhile, may see human rights as the condition for
the social contract and citizen rights – or instead subordinate the universal
rights of man to the absolute and particular law of the ‘general will’ in the
name of the principle of sovereignty.
There is no need to examine the detail of every shade on this spectrum
that recasts a number of common arguments (unevenly distributed, since
not all are acceptable to different positions) in contrasting meanings and
aims. These recurring arguments include the danger of disconnecting
rights from duties – a warning we find even in Engels;2 the concern (not
shared by Marx) that a dynamic of boundless rights makes social author-
ity impossible; the internal contradictions of human rights, since liberty
and equality cannot be adequately reconciled; and their incompatibility
with concerns for the common good or even with the conditions for
producing a political community.
The meaning behind some of these arguments, then, completes a full
360-degree turn. We saw that in Bentham’s work an originally conserva-
tive critique of the ‘absolutism’ of human rights is drawn into the service
of human beings’ freedom to implement self-government and therefore to
overturn rules they have previously adopted. In fact, this circulation of
arguments between radically different philosophical surroundings also
includes defences of human rights. Marcel Gauchet has demonstrated
that most of the ‘classical’ critiques of human rights declarations issued
initially from the very revolutionaries who had in part written them in the
first place, and were therefore sensitive to the internal tensions and inter-
pretive ambiguities of the principles they advocated.3
It is without a doubt this man/citizen distinction that gives rise to the
widest divergences in meaning ascribed to what looks at first glance like
a single, unified critical argument. The target depends on whether the
idea of human rights is being attacked for excessive association or dis-
sociation of human rights from citizen rights, and whether it conceives of
2
Friedrich Engels, Critique du programme d’Erfurt (1891), trans. E. Bottigelli (1949), Paris,
Editions Sociales, 1972, p. 99.
3
Marcel Gauchet, La Révolution des droits de l’homme, Paris, Gallimard, 1989, especially pp.
43–51, 60–64, 73–74, 90–95, 111–113, 119–121, 194–196. For a wider angle on these
tensions, see Jean-François Kervégan, ‘Les droits de l’homme’ in Denis Kambouchner
(ed.), Notions de philosophie, II, Paris, Gallimard, ‘Folio’, 1995, pp. 637–696.
citizen rights as necessarily particular (national) rights or as universal

rights. The most reactionary vein of thought refuses to recognise any
rights other than those of the citizen, understood (following Bodin) as
a ‘free subject’, in other words endowed with limited rights and depen-
dent on a sovereign power. Liberal conservatism, meanwhile, seeks to
depoliticise the universal rights of man reduced to pure moral limits,
while also refusing to grant universal scope to citizen rights, which it
sees as being always shaped in an irreducibly specific way by their context.
Hence why some liberals posit a dichotomy between the rights of man and
democratic sovereignty.4 When radical democracy theorists attack
human rights, indeed, it is in the name of the inseparability of ‘man’
and the ‘citizen’, whose rights are equally universal. Their thesis is that
the divorce of man from the citizen must not tempt us to curb democratic
autonomy or to compromise the universality of citizen rights on the
pretext of their subordination to the intangible rights of the private
individual.
However, an ambiguity does arise here: popular sovereignty may be
interpreted as national sovereignty, as endorsed by Article 3 of the
Declaration of the Rights of Man. The people-nation then subsumes
the man-citizen and it becomes possible to invoke a nationalist idea of
democracy against human rights, allowing democracy to be reconceived
within traditionalist arguments. The ideal of collective autonomy is iden-
tified with that of a national community following the law of its general
will and founded on a ‘republican’ concept that finds support in the works
of Rousseau.
Carl Schmitt is the theorist who brought the greatest coherence and
radicalism to this line of enquiry. He did so above all in a series of works
from 1923 to 1928 which, in forcing the issue of the choice between
democracy and liberalism as opposing ideas, provided the outlines of
a political project that should not be reduced to the Nazi sympathies
Schmitt drew from it.5 The glorification in these texts of an identity-
based version of democratic sovereignty, opposed to the ‘bourgeois
4
See Emile Faguet, ‘Une déclaration des Droits de l’homme ne doit pas contenir une
déclaration de la souveraineté du peuple’, La Politique comparée de Montesquieu, Rousseau et
Voltaire, Paris, Société française d’imprimerie et de librairie, 1902, p. 287.
5
Aside from a number of articles, the main works here are Die geistesgeschichtliche Lage des
heutigen Parlementarismus (1923, expanded in 1926), translated by Ellen Kennedy as
The Crisis of Parliamentary Democracy, Cambridge (MA) and London, 1985 and
Constitutional Theory (1928), trans. Jeffrey Seitzer, Durham (NC), Duke University
Press, 2008. We leave aside later texts, including the important Legality and Legitimacy
of 1932 (trans. Jeffrey Seitzer, Durham [NC], Duke University Press, 2004) on the
grounds that they evince a new phase in Schmitt’s thought, now marked by his diagnosis
of a ‘turn towards the total state’ and overdetermined by the strategic considerations of the
Weimar Republic crisis.
Human Rights against Politics 191
Rechtsstaat’, is certainly not the ‘key’ to Schmitt’s thought: it represents

only an ambiguous expression and passing phase of his philosophy, that of
a ‘strategic occupation’ of democratic positions by a political project
shaped around a political theology of hostility.6 But this ‘phase’ nonetheless
warrants consideration for its undeniable theoretical efficacy, as witnessed
by Schmitt’s widespread readership today. Its strength lies in the capacity
for exploitation of its own ambiguity, blurring the differences between the
broad types of human rights critique seen over the course of the nineteenth
century. Schmitt rejects human rights in the name of a counter-
revolutionary concept of the political domain that adopts the democratic
idea. His advocacy of the dignity of the political against its dilution in law,
economics and culture makes antimodern ideas look like a defence of
democracy, opposing the communitarian conditions of self-government
to the ‘liberal’ proliferation of rights.
Our aim in this chapter is modest: we do not set out to add a new
interpretation of Schmitt’s thought as a whole or its different ‘eras’ (pre-
1933, 1933–45, post-1945) to the existing literature, or to address the
question of acceptable ‘uses of Schmitt’ despite the close link between his
thought and his Nazi politics.7 We merely draw attention to the two faces
of Schmitt’s Nazism, which arose in tandem from the coherence of an
ongoing struggle against the liberalism of the ‘bourgeois rule of law’ and
an opportunist rallying to the victor. Once the Nazis had taken power and
become the only viable agents of a struggle for national homogeneity,
6
See Carl Schmitt, Political Theology (1922), trans. George Schwab, Chicago (IL),
University of Chicago Press, 1985; Roman Catholicism and Political Form (1923) trans.
G. L. Ulmen, Westport (CT) and London, Greenwood Press, 1996; The Concept of the
Political (1927–1932), trans. George Schwab, Chicago (IL), University of Chicago Press,
2007. See also Leo Strauss, ‘Notes on Carl Schmitt, The Concept of the Political (1932)’,
translated in the seminal work of Heinrich Meier, Carl Schmitt and Léo Strauss: The Hidden
Dialogue (1988), trans. J. Harvey Lomax, foreword by Joseph Cropsey, Chicago (IL),
University of Chicago Press, 1995.
7
Since the bibliography on Schmitt is vast, we refer for a chronological overview of his
thought to Tristan Storme, Carl Schmitt et le marcionisme, Paris, Cerf, 2008, and
Reinhard Mehring, Carl Schmitt: A Biography, trans. Daniel Steuer, Cambridge, Polity
Press, 2014. On Schmitt’s Nazi connections, an initial summary can be found in the
journals Cités (2003/2 and 2004/1) and Le Débat (2004/4) or in the English editions of
Schmitt’s two Nazi legal essays of 1933 and 1934: State, Movement, People (trans. Simona
Draghici, Washington, DC, Plutarch Press, 2001) and On the Three Types of Juristic
Thought (trans. Joseph Bendersky, Westport (CT), Praeger, 2004). On the question of
potential uses of Schmitt’s thought, see Jacob Taubes, En divergent accord. A propos de Carl
Schmitt (1987), trans. Philippe Ivernel, Paris, Rivages, 2003; Etienne Balibar’s preface to
Carl Schmitt, Le Léviathan dans la doctrine de l’Etat de Thomas Hobbes (1938), trans. Denis
Trierweiler, Paris, Seuil, 2002; Jean-François Kervégan, Que faire de Carl Schmitt?, Paris,
Gallimard, 2011. For a rejection of any use of Schmitt at all, see Olivier Jouanjan, ‘Justifier
l’injustifiable’, Astérion 4/2006, http://asterion.revues.org/643, ‘Et si l’on ne faisait rien de
Carl Schmitt?’, Philosophiques, 2, 2012, pp. 475–482.
Schmitt marshalled all his intellectual powers in the service of this

‘German revolution’, which he hoped would solidify into a ‘concrete’
legal order. While he did not wish the ‘total state’ to turn into permanent
revolution – earning him the hostility of a wing of the Nazi apparatus
which found him too statist and conservative – he endorsed Nazi violence
against external and internal enemies (communist and Jewish) that it had
vowed to confront. Schmitt, moreover, never repented of his anti-
Semitism.8
At the turn of the 1940s, Schmitt’s thought underwent a transforma-
tion which, departing from a defence of the principle of sovereignty,
dismissed the state in favor of a vision of the world carved up into neo-
imperial ‘great spaces’ – a vision Schmitt would explore further after
1945. We do not discuss these changes here, since they left intact both
Schmitt’s earlier rejection of the imperialism of human rights9 and the
theologico-political undergirding of a philosophy defining the ‘political
mission’ by the notion of the katechon (that which – or he who – delays the
advent of the Antichrist): each era, in other words, must identify
a political framework to slow the inexorable march of time.10 From first
to last, Schmitt’s output is run through with the conviction that the logic
of liberal modernity is to accelerate a headlong rush towards apocalypse,
signalled by loss of the sense of hostility as a metaphysical condition for
the gravity of human existence, the correlative dissolution of authority
and decisional power, the death of awareness of transcendence amid the
illusory utopia of a society pacified only by the effects of technical
progress, normative organisation of law and the invisible hand of the
market.11 Facing the threat of a descent into the futility of
8
Schmitt’s postwar notebooks (Glossarium. Aufzeichnungen der Jahre 1947-1951, Berlin,
Duncker & Humblot, 1991) are rife with anti-Semitic statements. In an interview pub-
lished in 1983, he unflinchingly declares that the proceedings of the colloquium he had
organised in 1936 against ‘Jewish influence in legal science’ – and which he had himself
closed with a particularly abject and grotesque speech – still held their ‘own validity’
(quoted by Dominique Séglard, Les Trois types de pensée juridique, See note 18 p. 203.
9
In a late work of 1978, ‘ The Legal World Revolution’ (English version in Telos, 72, 1987,
pp. 73–89), Schmitt restates his analyses already given in The Concept of the Political, pp.
98–99.
10
Schmitt lays out this notion borrowed from St Paul (2 Thess. 2, 6–7) in The Nomos of the
Earth in the International Law of the Jus Publicum Europaeum (1950), trans. G. L. Ulmen,
New York (NY), Telos Press, 2003, and in ‘Three Possibilities for a Christian
Conception of History’ (1950), trans. Mario Wenning, Telos, 147, 2009, pp. 167–170.
Schmitt writes in 1948: ‘my theory of the katechon [. . .] dates from 1932. In each century,
I believe, there is a concrete vehicle for this force, and the challenge is to find it’
(Glossarium, p. 80, our translation from the French passage in the original). See Tristan
Storme, Carl Schmitt et le marcionisme, pp. 194–229.
11
As observed by Heinrich Meier (Carl Schmitt and Léo Strauss: The Hidden Dialogue, p. 75),
Schmitt’s horror at the self-immanence of the modern world as a form of triumph for the
The Democratic Totem Recast in Counter-Revolutionary Colours 193
a depoliticised humanity, the texts of the 1920s we exclusively deal with

here wielded the idea of democracy as a sort of totem that might reawaken
a sense, if not of the sacred, then at least of political authenticity.12
The fact that Schmitt thus merely adopted the mask of democracy is
more or less undeniable; yet this mask took on a life of its own, which has
not yet been explored to its logical conclusion.
The Democratic Totem Recast in Counter-Revolutionary

Colours
Schmitt is first and foremost an heir to the radical vein of Catholic
counter-revolutionism. This is amply borne out by his early works,
which present the thought of Maistre and Bonald – the only coherent
and clear-minded philosophy available in Schmitt’s view – as infinitely
superior to the sham traditionalism of ‘political Romanticism’ and the
parliamentary ‘liberalism’ of Burke, for instance.13 Schmitt deliberately
places himself in the theologico-political tradition founded by Maistre
and radicalised by Donoso Cortès, who identifies all political stances by
their position in an eventual choice between dictatorship and anarchy.
This is a virtual prospect: immediate historical reality admits all sorts of
compromises, and does not always look like a stark choice between
anarchy and autocracy. However, the choice remains a constitutive ele-
ment of the political domain, since any action assumes the possibility of
circumstances being reduced to this ultimate alternative, in the event of
which it must be prepared to decide between the options.
In 1927 Schmitt expounded further this idea that politics always
unfolds amidst the future prospect of a possibility of war, and that this
possibility determines the political domain as such, including in peace-
time. In practice, the only meaningful compromises are those made in full
awareness of the opposite poles that ultimately structure political exis-
tence: above all the compromise between, on the one hand, recognition of
the transcendence of decision and political authority over legal formalism,
Antichrist is expressed as much as in the 1916 pamphlet Theodor Daüblers ‘Nordlicht’ as in

Schmitt’s Political Theology II of 1970.
12
The idea that popular sovereignty is tantamount to a ‘totemic mask’ is not Schmitt’s but
that of his chief theoretical sparring partner Hans Kelsen, The Essence and Value of
Democracy (1929), trans. Brian Graf, ed. Nadia Urbinati and Carlo Invernizzi Accetti,
Lanham (MD), Rowman & Littlefield, 2013, p. 92; see Catherine Colliot-Thélène, ‘Les
masques de la souveraineté’, Jus Politicum 8/2012, http://juspoliticum.com/Les-masques-
de-la-souverainete.html. Diverted from the meaning given it by Kelsen, the expression
may also describe Schmitt’s argument.
13
Carl Schmitt, Political Romanticism (1919, 1925), trans. Guy Oakes, New Brunswick
(NJ), Transaction Publishers, 2011, pp. 118–128; 49–157; Political Theology, p. 53ff;
The Crisis of Parliamentary Democracy, pp. 86 and 88.
and on the other the liberal illusion that the exceptional power of the
sovereign can be dissolved into legal calculability and the economic self-
regulation of social life.
Even though Schmitt’s political theology adopts most of Maistre and
Bonald’s arguments, starting with the thesis that sovereignty dominates
the social domain and that politics is irreducible to law, his adoption of
a definition of the political domain unknown to Catholic counter-
revolutionism constitutes a major rupture. Legitimism based on the
ideal of civil peace gives way in his thought to decisionism based on the
fact of hostility.14 Ordination of the polity around the common good,
through which monarchist traditionalism had remained bound to
Thomism, is now replaced by the distinction between friend and foe,
the ‘criterion’ of politics which dissolves the common good in the need for
validation of existence through willingness to self-sacrifice and the gravity
of the power to kill.15
In this argument, the opposition between monarchy and democracy
loses the structuring capacity it had held for Maistre and Bonald. For
these authors, democracy had only a negative definition, as the lack of
a legitimate hierarchy – in other words the disorder of a contentious
regime in which power is always divided and unstable. This is why
Bonald held that war alone could furnish democracies with a basis for
unity.16 Democracy in this view was the regime united not by a common
good and its management by powers devoted to public service, but
instead by the imperatives of fighting an enemy, a threat that meant the
subordination of private interests must be subordinated to the needs of
public safety.
What Bonald had presented as a critique of democracy Schmitt took as
a sign that democracy is in fact consistent with the meaning of a truly
political existence. Unlike the liberal ideal of subordinating politics to law,
the ideal of popular sovereignty maintains the principle of sovereignty as
a decision-making power irreducible to law or the spontaneous alignment
of private interests. Where popular sovereignty comes down in practice to
14
Though on occasion Maistre comes close to decisionism and sanctification of war, he
expects Catholicism to achieve a ‘fusion of nations’. See Théodore Paléologue, Sous l’œil
du Grand Inquisiteur. Carl Schmitt et l’héritage de la théologie politique, Paris, Cerf, 2004, pp.
30–35, and Jean-Yves Pranchère, ‘The Negative of the Enlightenment, the Positive of
Order, and the Impossible Positivity of History’, in Carolina Armenteros and
Richard Lebrun (eds.), Joseph de Maistre and the Legacy of Enlightenment, Oxford,
Voltaire Foundation, 2011, pp. 45–64. Note that in 1934, in Three Types of Juristic
Thought, Schmitt would replace the decisionism of his 1920s works with a philosophy
of ‘concrete order’ in alignment with the new Nazi ‘order’.
15
Schmitt, The Concept of the Political, pp. 46–48, 71ff.
16
Bonald, Théorie du pouvoir, Part I, book V, ch. V: ‘Pourquoi les sociétés non constituées
sont toujours guerrières’, Œuvres complètes, Paris, Migne, 1859–1864, vol. I, p. 360ff.
Democracy against Liberalism 195
domination by elites who use representative bodies to wield power, as

shown in the wake of the counter-revolutionaries by anti-democratic
liberals such as Vilfredo Pareto, Gaetano Mosca or socialist-leaning
political writers such as Robert Michels,17 this is not valid grounds to
reject the impetus offered by the political idea of democracy. Shaping
popular will means monopolising the resources of education, information
and influence,18 which might be described as elite domination. But the
only relevant question is whether this domination is an instrumentalisa-
tion of the political domain by veiled private interests, or rather means
that elites are able to coincide with and help perpetuate popular will, in
which case their power is that of the demos.
Schmitt is thus able to note the impossibility of restoring traditional
hierarchies whilst at the same time ploughing the themes of the counter-
revolutionary critique of individualism back into a defence of democracy
as a regime of political production of popular will. He argues that democ-
racy is not the regime of equal rights in the sense of human rights, since it
implies only the equality of citizens qua citizens – hence why its content
may just as well be liberal, socialist or reactionary. Democracy is the
regime in which law expresses the general will of the people. It requires
this general will, which its purpose is to produce in order to constitute the
unity of the people. The equality it assumes is not that of individual
liberties but that of belonging and playing a part in a shared community,
in other words in a shared political identity.
Democracy against Liberalism

With the lifespan of traditional hierarchical societies now at an end,
Schmitt diagnoses liberal neutralisation of the political domain as the
chief danger for bourgeois societies. The desire to affirm sovereignty
against rights liberalism leads him to explore the possibility of an anti-
liberal enunciation of democratic sovereignty, with the aim of preserving
the essence of the political domain at the very heart of the democratic
sphere. Schmitt therefore stresses the radical difference, observed by
many nineteenth-century liberals, between liberalism (a limitation of
state power by law, legal rather than popular sovereignty and
17
Schmitt refers to these authors in The Crisis of Parliamentary Democracy, pp. 18, 66.
Michels would later identify with Fascism, while Mosca would attempt to rehabilitate
liberal democracy.
18
See Schmitt, The Crisis of Parliamentary Democracy, pp. 34–36, and the radio interview of
1 February 1933 cited by Dominique Séglard in the French edition of Three Types of
Juristic Thought (Les Trois types de pensée juridique, trans. M. Köller and D. Séglard, Paris,
PUF, 1995, p. 23).
parliamentary representation of the people) and democracy understood

as the submission of a people to its own law.19 The core of democracy,
indeed, lies in affirming that the people hold not only legislative but also
constituent power, as Sieyès had proclaimed in his pamphlet Qu’est-ce que
le tiers-état?20
Parliamentarianism, the concrete translation of liberalism, is in essence
foreign to democracy in Schmitt’s view: it rests on the idea not of popular
sovereignty but of government by reason. Parliamentarianism is defined
above all by the habit of holding ‘parliaments’, or in the etymological
sense discussions; its basis is the quest for truth through public delibera-
tion. It is not even linked to representation in essence. The connection
between parliamentarianism and representation rests on the fact that in
the context of the fight against absolute monarchy, parliament appeared
to represent the interests of the social ranks in the face of the monarchy,
who for his part stood for the unity of state or nation. This idea of
representation was absolutely not about representing the will of
a sovereign people; rather, it was about checking state capacity through
the separation of powers. Parliament was not meant to fulfil the mandate
of an already existing popular will, but rather to provide the arena in
which public reason would take shape through deliberation, in which the
diversity of parties was merely the diversity of arguments.21
Schmitt sees a crisis of parliamentarianism behind the effect of the reign
of parties. On the one hand, party discipline does away with the ‘repre-
sentative principle’ (the idea that a deputy represents the people as
a whole) as well as parliamentary representation properly understood.
The ‘conflict of opinions’ described by Burke and Guizot, on the other,
19
Schmitt, The Crisis of Parliamentary Democracy, p. 105; ‘The Liberal Rule of Law’
(‘Der bürgerliche Rechtsstaat’, 1928), in Arthur J. Jacobson and Bernhard Schlink
(eds.), Weimar. A Jurisprudence of Crisis, Berkeley (CA) / Los Angeles (CA) / London,
University of California Press, 2000, pp. 294–300; Constitutional Theory, pp. 256, 263,
274, 280, 285, 298. Schmitt frequently formulates the difference between the two
principles – which are combined in representative democracy – in terms of an opposi-
tion or antithesis.
20
Schmitt, Constitutional Theory, pp. 286–287, 220 and ‘The Legal World Revolution’,
pp. 79–80. See Emmanuel Joseph Sieyès, What is the Third Estate? (1789), in Keith
Michael Baker (ed.), The Old Regime and the French Revolution,Chicago (IL), University
of Chicago Press, 1987, pp. 171–172: ‘Not only is the nation not subject to a constitution,
but it cannot be and it must not be; which is tantamount to saying that it is not [. . .]
The manner in which a nation exercises its will does not matter; the point is that it does
exercise it; any procedure is adequate, and its will is always the supreme law. Sieyès
specifies further in a handwritten note: ‘the nation creates rights and duties following its
needs and wishes’ (cited by Jacques Guilhaumou, ‘Nation, individu et société chez
Sieyès’, Genèses, 26, 1997, pp. 4–24).
21
Schmitt, The Crisis of Parliamentary Democracy, p. 298.
Democracy against Liberalism 197
has given way to a ‘struggle of interests’, in other words a bargaining

process tantamount to an oligarchic capture of power.22
This crisis is a symptom of the unstable mix of incompatible elements
effected by parliamentary or constitutional democracy. The liberal
domestication of democracy – which makes it subject to conditions
foreign to the very existence of the people and its constituent power –
founders on its incapacity to guarantee the existence of a truly political
subject and form. Liberalism empties democracy of its substance by
removing its political content: in substituting individual liberties for
popular sovereignty, it makes democracy into a ‘democracy without
a demos, without a people’.23 In dissolving the collective, responsible
subject of the ‘people as an entirety’ into a multitude of private, irrespon-
sible individuals, it catapults the people into a downward spiral moving
‘from the condition of political existence into one that is sub-political’,
into a life that is ‘merely cultural, economic or vegetative’, and which
condemns it merely to ‘serv[e] a foreign, politically active people’.24
The principle of individual liberty as a universal right cannot provide
the basis for political community, since all it states is the right to withdraw
from such a group. Schmitt therefore stresses that the concept at the root
of democracy is not liberty (the principle of a liberal rule of law) but rather
equality, understood not as equal rights of ‘individuals’ but as equality of
citizens within a people.25 Democratic liberty is purely political, over-
lapping with the equality of belonging to a political community. As such,
it cannot be seen as a right to withdraw or abstain, as a private-sphere
right to be used against the state. Rather, its meaning is something like
that of public service, a responsibility that arises not from the apolitical
liberty of the individual but as a collective mission. ‘“The people” is
a concept in public law’, Schmitt stresses; ‘this means these democratic
rights have an essentially political character’. which establishes firmly that
the public sphere stands above the private.26
The superior nature of the public sphere, which implies that democracy
cannot be made to respect private property as a ‘sacrosanct’ principle,
should by rights preclude the secrecy of individual voting, which
expresses the liberal principle of dissolution of the public into the private.
The secret ballot, which traps the individual inside the confines of his own
privacy by detaching him from the political community in which he exists
as a citizen, is directly opposed to the political principle of democracy that
citizens must vote as citizens, not as private individuals protecting their
22
Ibid., pp. 5, 20. 23 Schmitt, ‘The Liberal Rule of Law’, p. 171.
24
Schmitt, Constitutional Theory, p. 248. 25 Ibid., p. 256ff.
26
Schmitt, The Crisis of Parliamentary Democracy, p. 16; Constitutional Theory, p. 207.
own interests. Secret balloting does not allow for a people ‘voting as
a people’; it is part of a privatisation of the state that excludes the ‘general
will’ as distinct from the ‘will of all’. Indeed, a stockpile of private
opinions, in other words of apolitical desires, even if held by a majority,
does not add up to ‘public opinion’ or to political will. Democracy stricto
sensu requires the vote to form a part of public service, which is the
concept behind citizenship: not an individual right but a collective
responsibility, a ‘service’ in the same sense as military service.27
By analogy with the traditional distinction between the king’s two
bodies (the private and public persons existing within the monarch), we
can explain Schmitt’s thought by applying the same theory to popular
sovereignty: the public person of the ‘people’ is not just the multitude of
private individuals who make it up. We cannot understand democratic
sovereignty starting from individuals: it stems from the sovereign func-
tion, whose effect in any regime is to transform a mass of individuals into
a people. Democratic sovereignty is never a function of individual liberty
or the expression of some ‘natural right’ that would make a people sover-
eign by essence. Rather, it means ‘investing’ the people with the sovereign
function. Democracy is the political form that invests the people with
political responsibility, and by that very token creates the fiction of
popular sovereignty – an fiction that requires the people to be whatever
it must be in order to constitute a sovereign people, in other words in
order to meet the demands of sovereignty.
The People against Humanity

Democracy rests on a paradox: by definition, the people means the
ensemble of those ‘who do not govern’.28 It follows from this that the
regime of democracy cannot be defined either by popular self-
government, which is impossible, or by representation, which ‘contains
the genuine opposition to the democratic principle’. The more represen-
tative a democracy is, the less democratic it is: ‘there is really only direct
democracy’, Schmitt argues. The only viable definition of democracy is
therefore ‘the identity of ruler and ruled, governing and governed, com-
mander and follower’, that is to say the lack of any ‘qualitative difference’
between governor and governed.29 This identity, understood as lack of
27
Schmitt, Constitutional Theory, pp. 302–306, 281–282, 302; ‘The Liberal Rule of Law’,
pp. 298–299.
28
Schmitt, Constitutional Theory, p. 451. See also Saint-Just, Institutions républicaines, in
Œuvres complètes, Paris, Gallimard, 2004, p. 1139 and Emile Durkheim, Débat sur le
nationalisme et le patriotisme, in Textes III, Paris, Minuit 1975, pp. 178–186.
29
Schmitt, Constitutional Theory, pp. 251, 248, 264–266.
The People against Humanity 199
superiority (not as the eradication of asymmetry between public func-

tions) is the true meaning of democratic equality: elections in a true
democracy are ways of expressing this sameness and not, as in
a representative democracy, a means of choosing the most competent or
in other words an aristocracy. This explains why ostracism – the right to
banish citizens purely on the grounds of their superiority by virtue of
excellence – was a key tenet of Athenian democracy.
The identity of governors and governed implies that the ultimate
principle of democracy must be ‘self-identity of the concretely present
people as a political unity’.30 The people cannot experience what it feels
like to be a unified political entity without experiencing its own equality
with itself, and therefore its sameness: this identity-with-self is the basis
for all forms of democratic equality, such as universal suffrage.
Democratic equality is indissociable from the qualities of sameness
and homogeneity (expressed in Schmitt’s view by the closeness of the
German words Gleichheit and Gleichartigkeit): as Aristotle had observed,
true equality means giving the same treatment to those who are the
same, but concrete equality is possible only through essential sameness –
hence why the French revolutionaries had felt the need to add the term
‘fraternity’ to their celebrated slogan. Citizens can be ‘equalised’ only
through a ‘substantive’ sameness allowing them to form an egalitarian
political community. ‘Democratic equality is essentially similarity, in
particular similarity among the people . . . If democracy is to be
a political form at all, there is only a people’s democracy and not that of
humanity.’31
Only the people can in fact hold ‘constituent power’. Neither indivi-
duals nor humanity as a whole can be invested with such power, since
neither is a political subject. Democratic equality, therefore, cannot be
seen in terms of ‘human rights’: in fact it actually precludes them, since it
affirms the identity of a people as distinct from others. It means not the
equality of all as apolitical individuals, but the equality of citizens within
a given people. It necessarily means inequality with non-nationals, and
ensuring a compulsory uniformity which is the condition for a real demo-
cratic collectivity. Any democratic politics must be one of ‘national
homogeneity’: ‘a democracy demonstrates its political power by knowing
how to refuse or keep at bay something foreign and unequal that threatens
its homogeneity’.32
Schmitt would give a more radical version of these arguments in
The Concept of the Political, where he confirmed the state’s right to
30
Ibid., p. 255. 31 Ibid., p. 263ff.
32
‘provid[e] . . . some kind of formula for the declaration of an internal

enemy’ or public enemy and stressed that a people refusing to name its
enemies supports them by that very token and renounces political sover-
eignty: ‘political thought and political instinct prove themselves theoreti-
cally and practically in the ability to distinguish friend and enemy’.33 It is
difficult not to read these passages as a harbinger of Schmitt’s eventual
conversion to Nazism and his wholehearted endorsement of naming ‘the
Jew’ as a public enemy, the ‘foreigner in the nation’s midst’ who must be
purged to achieve national purity. However, the fact remains that the
thesis of democracy requiring uniformity of the people as formulated by
Schmitt in the 1920s is not his alone, but also appears in the work of
liberals such as Hans Kelsen and Joseph Schumpeter;34 and some of
Schmitt’s most alarming passages on democracy as purging of foreigners
are merely commentaries on the real practices of democratic regimes at
the time, especially US democracy, which judged citizenship according to
racial criteria.35
The need for a uniform people emerges most strongly in the fact that
democracy needs to win over a people adjusted to it: its prerogative, in
other words, is to shape a democratic people.36 This means that some
measure of homogeneity has to be imposed through state education, but
also that the political creation of the people happens only in electoral
‘bursts’ of unity: hence why the referendum is the device most apt to
democracy. The definition of democracy is the same as Renan’s defini-
tion of the nation as a ‘daily plebiscite’, a description embraced by
Schmitt, who sensed its counter-revolutionary ‘harmonies’ and knew
that the Bonapartist practice of the plebiscite meant unanimous endor-
sement without critical dilution.37 ‘Public opinion’, insofar as it is not
an amalgamation of private opinions but a political force, represents this
33
Schmitt, The Concept of the Political, pp. 46, 67.
34
Kelsen, The Essence and Value of Democracy, p. 45, stresses that democracy requires
national homogeneity. Schumpeter, meanwhile, writes that ‘even the necessary mini-
mum of democratic selfcontrol requires a national character and national habits of
a certain type’; ‘must we not leave it to every populus to define himself [sic]’? (Joseph
A. Schumpeter, Capitalism, Socialism and Democracy [1942], London, George Allen &
Unwin, 1976, pp. 390, 323).
35
Schmitt, Constitutional Theory, p. 258ff.
36
Schmitt, The Crisis of Parliamentary Democracy, p. 29ff.
37
Schmitt, State, Movement, People. In Renan’s speech What is a Nation?, the word
‘plebiscite’ goes hand in hand with the definition (which Renan borrowed from
Maistre) of the nation as a ‘soul, a spiritual principle’ based on a ‘cult of the ancestors’
and a ‘heritage that we have jointly received’ from them (our emphasis). The fact that
Renan passes for a ‘civic nation’ theorist is a curious historical irony: see Patrick Weil,
Qu’est-ce qu’un Français? Histoire de la nationalité française depuis la Révolution, Paris,
Grasset, 2002, pp. 199–200; Justine Lacroix, L’Europe en procès, Paris, Cerf, pp.
41–42, 137–138; Jean-Yves Pranchère, ‘Nation sacrée ou Europe chrétienne?’ in
The People against Humanity 201
daily ‘plebiscite’, which ‘is the modern type of acclamation’.38 This

gives a hint of the ‘vital’ meaning of democracy, in the face of which
‘parliament appears an artificial machinery, produced by liberal reason-
ing, while dictatorial and Caesaristic methods not only can produce the
acclamation of the people but can also be a direct expression of demo-
cratic substance and power’. The proof of this is in revolutionary figures
such as Cromwell, Robespierre, Napoleon Bonaparte, Lenin and
Mussolini, who showed that democracy expresses itself as dictatorship
when, instead of an electoral procedure, it designates a regime that
produces the people in its will to be a people.39
If guaranteeing the rights of humanity and producing popular will seem
like conflicting aims, it is hardly surprising that in practice human rights
are above all ‘an especially useful ideological instrument of imperialist
expansion’. As ‘humanity’ is not and can never be a political subject, its
only reality is found in ‘concrete human groupings’ that invoke rights in
order to compete with other groups of the same kind. The idea of human
rights then reveals itself to be the opposite of what it claims to be: rather
than a means of limiting state violence, it is in fact the perfect pretext for
violence. For ‘to confiscate the word humanity, to invoke and monopolize
such a term probably has certain incalculable effects, such as denying the
enemy the quality of being human and declaring him to be an outlaw of
humanity; and a war can thereby be driven to the most extreme
inhumanity’.40 Schmitt would often re-rehearse this argument,
introduced earlier by Burke and Maistre, and later systematised it as an
opposition between humanitarian law and the law of nations (jus gentium)
or ‘European public law’, of which he claimed to be the last true
representative. He never acknowledged the obscenity of his remorseless
perpetuation of this argument after its use in the service of Nazism – in
other words of the most radical denial there has ever been of the enemy’s
humanity, in the context of a total war which amidst a delusional story of
racial hostility destroyed all boundaries between civil and military,
national and global.41
Jean-Marc Ferry (ed.), L’Idée d’Europe, Paris, Presses Universitaires de la Sorbonne,

2013, pp. 133–135.
38
Schmitt, Constitutional Theory, p. 275. In 1933, Schmitt used Renan’s formula to justify
the Nazi takeover of the press and other information channels (quoted by Dominique
Séglard, Les Trois types de pensée juridique, p. 23).
39
40
Schmitt, The Concept of the Political, pp. 54, 67.
41
See the shameless passages of Theory of the Partisan: Intermediate Commentary on
The Concept of the Political (1962), London, Telos Press, 2007, pp. 23–24, in which
Schmitt explains the behaviour of German troops in the Soviet Union during
the Second World War as an effect of their punctilious respect for the difference between
civil and military actors.
Ambiguities of the General Will

Repeating Maistre’s and Bonald’s trick of turning Rousseau’s arguments
on themselves, Schmitt attempts to distinguish Rousseau’s concept of the
general will from the contractualist foundation that casts individual rights
as its limits. Arising from the secret vote of the individual deciding alone
‘in the silence of the passions’, the ‘general will’ in Rousseau’s view was
not the same thing as an ‘acclamation’, and also excluded the case of
a Jacobin-style dictatorship. Rousseau distinguished between the general
will and the will of all not in order to suggest that the will of a minority
could pass for general, but to identify the conditions under which
collective will would reliably pursue the common interest. Yet in
Rousseau’s thought, the idea of the contract in fact left no place for
reflection about how the general will would be formed. According to
a circular logic described in the chapters of The Social Contract devoted
to the ‘need for a legislator’, the general will would paradoxically have to
be already formed in order to validate the contract that makes it possible.
Schmitt concludes from this that the two concepts of the general will
and the social contract in Rousseau’s thought are contradictory.42
The true meaning of democracy lies not in the individualist notion of
the ‘contract’ but in the idea of a general will which has no intrinsic inter-
individual nature, and whose real meaning is the uniformity of the people.
Democracy – understood in a broad sense, not Rousseau’s narrow
definition of it as distinct from the republic – is the regime of legal
sovereignty, insofar as the law expresses the general will. The heart of
democracy is the homogeneity of collective will. In Rousseau’s view, the
existence of factions and fragmented social groups is an obstacle to the
development of a general will. Citizens can successfully carry a general
will, and so be equals, if they are to some extent uniform or identical in
some way that makes a common will possible. The generality of will is
predicated on a substantive homogeneity, that of patriotism, without
which individuals can only diverge and embrace private interests with
no shared ground. The schmittian thesis that the basis for this homoge-
neity is the nation, finds support in Rousseau’s Constitutional Project for
Corsica: ‘The first rule to be followed is the principle of national character;
for each people has, or ought to have, a national character; if it did not, we
should have to start by giving it one.’43
As we have seen, the paradox of democracy is this: the people, which in
theory holds constituent power, has only a negative definition as the sum
42
Schmitt, The Crisis of Parliamentary Democracy, p. 44ff.
43
Jean-Jacques Rousseau, ‘Projet de constitution pour la Corse’, Œuvres complètes III, Paris,
La Pléiade, 1964, p. 913. English translation at www.constitution.org/jjr/corsica.htm.
Ambiguities of the General Will 203
of those who do not govern and can only ‘acclaim’. This paradox is
accentuated by the fact that in the normal course of things, only
a minority of the people will be politically active and engaged, such that
universal suffrage puts power in the hands of a mass of individuals without
truly political will. Now, ‘it is in no way democratic and would, moreover,
be a remarkable political principle that those without a political will
should decide in contrast to those with such a will’.44 Democracy thus
founders on its limitations – which also come from the fact that the people
cannot represent itself independently at the international level.
Democracy ‘seems fated then to destroy itself in the problem of the
formation of a will’.45 If popular will is not to dissolve without trace into
the private space of liberal individualism, it must be substituted with
potentially dictatorial powers seeking to bring it into being. This is why
the truth of modern democracy lies in the ‘myth of the nation’.
However, Schmitt’s suggestion that democracy is subsumed by nation-
alism does not provide any conclusive criterion for the identity of the
people: the ‘intensity’ of association invoked in The Concept of the Political
does not tell us how the conditions for the political existence of a people
are to be distinguished from the fits of hostility that divide it into opposed
camps during civil war, or submerge it in the fanatical unity of mass
movements. Schmitt criticises Rousseau’s association of contractualism
and democracy as incoherent; yet in so doing he sidesteps the fact of the
plurality of the people, which Rousseau had at least confronted in
attempting to conceptualise the general will starting from the self-
preference adopted by the will of an individual operating purely as him-
self, removed from any social pressures. In his claim that the formation of
democratic will precludes the possibility of a democratic formation of popular
will, Schmitt distorts the concept of public opinion, reducing it to a mere
unity of will when in fact it properly refers to the shared nature of a public
sphere, in which all citizens have an equal right to contribute to the debate
on the general interest.
In that it designates equal political rights, citizens’ equal membership of
a political community undeniably constitutes equal liberties.
The necessary uniformity behind this means first of all observing an
ideal of non-domination, which is not exhaustively covered by national
independence. Even the ostracism practised in classical Athens sought
not to eliminate difference, but rather to prevent the domination that can
arise even from one charismatic personality rising too far above others.
When Aristotle claimed that friendship would bring citizens together,
44
Schmitt, Constitutional Theory, p. 304.
45
‘friendship’ meant not uniform character or identity as such, but the

sentiment that binds together those who have agreed to manage their
differences through reciprocal respect for each other’s liberty.46
True, democracy taken historically is not necessarily predicated on the
idea of human rights, and has the notion of equality rather than that of
individual independence (as opposed to collective autonomy) at its core.
However, if we are to take the political definition of democracy seriously,
we must reject any definition of democracy as the substantive ‘identity’ or
sameness of the people with itself. Civic autonomy does not mean homo-
geneity: it requires an equality of rights that includes the right to liberty.
Schmitt was not wrong to say that democracy does not require intang-
ibility of individual rights, only equality between citizens qua citizens, and
hence does not, for example, preclude socialism since citizens may decide
to prioritise social equality over private property. But this must not
obscure the fact – and Rousseau’s contractualism is not inconsistent in
this regard – that democracy as a political regime is defined by equal
political liberties. Equality between citizens means equality between indi-
viduals who reciprocally guarantee identical liberties, and cannot be
excluded from the community they form together.
A certain measure of uniformity between citizens may be the condition
for consensual liberties. But what defines democracy is cooperation of
liberties, and this equality requires no homogeneity except that of
a common desire to agree freely on shared autonomy, a desire that may
exist in many and varied conditions. Historically, even if national homo-
geneity has been its other side (and often a perilous one) since the nine-
teenth century, democracy has been defined above all by demands for
a certain level of social equality. National homogeneity is merely one
possible vector for a form of political equality defined as equality of political
liberties, which is above all equality before the law. One difficulty
remains, as Schmitt’s work demonstrates: how to define the demos.
A response to the effect that the ethos of equality is the only ‘sameness’
required – that is, citizens must agree on the principle of equal liberties –
refutes Schmitt’s reduction of equality to homogeneity, but it does not
satisfactorily answer Schumpeter’s question: does every populus have the
right to define itself? How can a people define ‘itself’ without arbitrary
exclusion and without doing violence to those who make it up?
*
It is without a doubt through these ambiguities around the idea of popular
self-definition that Schmitt continues to exert such influence over some
46
For a painstaking critique of Schmitt’s politics of hostility in the light of ‘friendship’, see
Jacques Derrida, Politiques de l’amitié, Paris, Galilée, 1994.
Ambiguities of the General Will 205
schools of thought today, far removed though they may be from any
totalitarian beliefs. Schmitt’s arguments are taken up in their entirety by
a wing of the ‘anti-modern’ critique, especially on the New Right and its
European counterparts. Yet fragments of Schmitt’s ‘very ingenious
theories’47 of the 1920s also appear almost word for word in the works
of authors variously attached to republican and inheritance-based the-
ories or to radical revolutionary aims. The communitarian movement
underscores the destructive effects wrought by the depoliticising logic of
individual rights on the constitution of the body politic. The underlying
theme of the homogeneity of general will tends to lead to the conclusion
that democratic autonomy must be subsumed in national identity.
A ‘post-Leninist’ coterie within radical thought sees the depoliticisation
effected by human rights as the polar opposite of the eruptive forces of
constituent power and centrality of conflict. Human rights thus appear
as the ideological weapon of a form of imperial domination. But this is to
forget what Schmitt had stressed: that ‘constituent power’ is
a theologico-political concept.
47
The expression is from Hannah Arendt, The Origins of Totalitarianism (1951), New York
(NY), Meridian Books, 1958, p. 339.
Revisiting Hannah Arendt
In a recent work, Enzo Traverso remarks ironically on the ‘posthumous

canonisation’ of Hannah Arendt in European culture since the 1980s,
when her writings became a sort of escape route for a generation of
intellectuals who were the ‘orphans of Marxism but not yet ready to
embrace classical liberalism’:
‘A Jewish exile, a woman, a philosopher, a brilliant essayist, a libertar-
ian and subversive spirit, disciple then lover of a great German thinker
compromised by his links to Nazism, Hannah Arendt now holds an
irresistible fascination, to the point that she has become a veritable icon
of twentieth-century culture.’1
At the risk of seeming to give in to a ‘cultural trend’, this chapter sets
out to explore interpretations of one of the philosopher’s best-known
texts, found at the end of the second volume of The Origins of
Totalitarianism. In it, Hannah Arendt calls attention to the paradox at
the heart of human rights discourse, and coins the equally ‘magnificent
and enigmatic’2 formula of the ‘right to have rights’. This chapter – ‘The
Decline of the Nation-State and the Rights of Man’ – along with its
interpretations and appropriations by others – raises questions that are
also crucially important in current debates about the meaning of human
rights.
However, approaching Arendt for these purposes clearly means distan-
cing our argument from the ‘conservative appropriation’ of her work in
certain areas of French thought. The vastly differing reception of her work
in France and the English-speaking world has a history of its own, arising
above all from the incomprehension that has dogged the reception of The
Origins of Totalitarianism in France for some decades: ‘It was indeed
inevitable that at the very moment when anti-totalitarianism became a
synonym for anti-communism, Arendt’s book should have been
1
Enzo Traverso, La Fin de la modernité juive, Paris, La Découverte, 2013, p. 105.
2
Catherine Colliot-Thélène, La Démocratie sans demos, Paris, PUF, 2011, p. 123.
206
The ‘right to have rights’ 207
interpreted as a “Cold War bible” and placed in the index librorum

prohibitorum of a left subjected to the hegemony of Stalinism.’3
The first reviewer of The Origins (which appeared in 1951) in French
was Raymond Aron, in 1954. Yet reading the review today, it is hard not
to be struck by its reserved position: having pointed out a number of
factual errors and criticised a ‘tone of haughty superiority towards matters
and men’, Aron judges that ‘if the majority of her [Arendt’s] analyses
taken individually are persuasive, the organising concepts and ideas that
the author considers as essential leave one unconvinced’.4 But for all this,
and despite his misgivings, Aron remains the first to have introduced a
French audience to Arendt’s work, publishing The Human Condition
(translated as La Condition de l’homme moderne) in his collection ‘La
Liberté de l’esprit’ with Calmann-Lévy in 1963, which in itself sufficed
to secure Arendt a lasting place in the French ideological firmament.
Furthermore, in France as elsewhere, Arendt was vilified amidst the
controversy over Eichmann in Jerusalem, and in 1966, when the French
translation of the work first appeared, the weekly magazine Le Nouvel
Observateur had no qualms in publishing a special section under the title
‘Is Hannah Arendt a Nazi?’
France discovered Arendt nearly thirty years late. The Origins appeared
in translation – not as a single volume but in a format that suggested three
separate works – only in 1972, 1973 and 1982, and with three different
publishers.5 The translations were also published around the crucial
juncture of the so-called anti-totalitarian turn in French thought. With
the notable exceptions of Claude Lefort, Miguel Abensour and a few
others, the French debate over totalitarianism took on the colours of a
veritable ‘cultural restoration’.6 In this context, Arendt’s work served as a
lifeline for a generation of intellectuals that had been left stranded after
their rejection of Marxism. As Enzo Traverso remarks, Arendt’s thought
was at first largely divested of its critical dimension in France, especially
on the subject of imperialism, whereas in the United States, she was one
of the authors whose writings served as a seedbed for political radicalisa-
tion of younger generations in the 1960s.7 As Miguel Abensour points
out, French intellectuals even on occasion cast Arendt strategically, ‘for
the war effort’, as an intellectual bedfellow of Leo Strauss, ‘as if the two
3
Enzo Traverso, La Fin de la modernité juive, p. 95.
4
Raymond Aron, ‘L’essence du totalitarisme. À propos d’Hannah Arendt’ (1954),
Commentaire, 112, 2005–2006, pp. 944–945.
5
Michelle-Irène Brudny de Launay, preface to Hannah Arendt, La Nature du totalitarisme,
Paris, Payot, 1990.
6
Enzo Traverso (ed.), Le totalitarisme. Le XXe siècle en débat, Paris, Seuil, 2001, p. 85. See
the Introduction in this book.
7
Traverso, ‘La mémoire des vaincus’, Vacarme, 21, www.vacarme.org/article434.html.
authors had agreed in their conceptualisation of the political domain,

diverging only on specific political decisions properly understood’.8
What is more, Arendt’s writings on the ‘education crisis’ were exten-
sively invoked during the debate starting in the early 1990s over the
supposed disintegration of a state school system which many argued
had abandoned its proper role of transmission in favour of a demagogy
attempting to give ‘voice to pupils’ and thereby ‘disinherit everyone’.9
Taken together, these circumstances made it easy to forget that Arendt
had in fact championed participatory democracy in On Revolution. This
appeared to give credence to a conservative interpretation of Hannah
Arendt, casting her as a defender of tradition for its own sake.
Our aim is to explore the reception not of Arendt’s output in its entirety
but of her writings on human rights, which have a pivotal place in our
argument. Arendt’s thought can be called into the service of two very
different offensives against human rights even while it paves the way
towards a ‘political’ conception of these rights, providing a riposte to
several of the arguments discussed thus far. Alongside her radical critique
of human rights, Arendt in fact offers us an equally radical way of con-
ceptualising them afresh.10
Arendt’s Paradox of Human Rights

In ‘The Decline of the Nation-State and the End of the Rights of Man’
Arendt explores the situation of stateless persons in the period between
the two World Wars, and demonstrates that what she terms ‘the
annihilation of the juridical person’11 – that is, the act of stripping entire
human groups of their legal rights – was by no means simply a diabolical
totalitarian invention, but had been foreshadowed by European nation-
states’ treatment of minorities and stateless persons after the First World
War. Deprived of a government to represent or protect them, Arendt
argues, these groups were cast into absolute illegality. This situation
8
Miguel Abensour, Hannah Arendt contre la philosophie politique? Paris, Sens et Tonka,
2006, p. 10.
9
On these mutations of contemporary republicanism in the 1990s, see Cécile Laborde,
‘The Culture(s) of the Republic. Nationalism and Republicanism in Contemporary
French Republican Thought’, Political Theory, 29, 5, 2001, pp. 716–735. See also
Serge Audier, La Pensée anti-68, La Découverte, 2009, p. 170. For an example of the
use of Arendt’s work to criticise the degeneracy of the republican school, see the debate
between Alain Finkielkraut and Bérénice Levet at La Règle du jeu: www.dailymotion
.com/video/xrlu40_que-nous-apprend-hannah-arendt_news.
10
Ayten Gündogdu, Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary
Struggles of Migrants, Oxford, Oxford University Press, 2015, p. 14.
11
1958, p. 455.
Arendt’s Paradox of Human Rights 209
illustrates the paradox of human rights, which are said to be inalienable

and imprescriptible, in the sense that they are thought to exist above and
beyond membership of any given group. Yet Arendt argues that it is
precisely when human beings have been stripped of a government of
their own, and thereby left without recourse to anything but their ‘natural’
rights, that they have found themselves ‘without rights’. Reduced to their
basic human condition, they no longer have any effective authority acting
to protect them.
This is at the root of Arendt’s insistence on the importance of denatio-
nalisation to totalitarianism: one of the few rules that the Nazis consis-
tently observed during the ‘final solution’ was that Jews could be sent to
concentration camps only once they had been thoroughly stripped of their
nationality. Survivors of camps – in which each individual, in a ‘gruesome
and grotesque’ combination, clung to that last vestige of the juridical
person that lay in belonging to a clearly defined category of prisoner
(common criminals, political prisoners, Jews and so on) – know all too
well that ‘the abstract nakedness of being nothing but human was their
greatest danger’.
Not only, then, has loss of national rights engendered loss of human
rights; as the example of Israel proves, only the consecration of national
rights has ensured the effective restitution of human rights. This, indeed,
was the unprecedented essence of the Eichmann trial: ‘for the first time
(since the year 70, when Jerusalem was destroyed by the Romans), Jews
were able to sit in judgment on crimes committed against their own
people, that, for the first time, they did not need to appeal to others for
protection and justice, or fall back upon the compromised phraseology of
the rights of man – rights which, as no one knew better than they, were
claimed only by people who were too weak to defend their “rights of
Englishmen” and to enforce their own laws’.12
The paradox of human rights, then, is that a person who is nothing
more than a person, who can invoke no other rights than those of a human
being, in fact has no rights and enjoys no juridical protection. But
although it became fully apparent only with the emergence of group
after group of stateless people after the First World War, this paradox of
human rights had existed since the end of the eighteenth century, when
the question of human rights had been indelibly attached to the
proclamation of national sovereignty.
In the body of the 1789 Declaration of the Rights of Man, indeed, the
assertion that all men are born free and have equal rights (Article 1) is
12
Hannah Arendt, Eichmann in Jerusalem. A Report on the Banality of Evil, New York (NY),
Penguin, 2006.
followed almost immediately by the statement that all sovereignty resides

in the Nation (Article 3). In other words, as Arendt underlines, man had
no sooner asserted himself as an emancipated, autonomous being than he
was subsumed into the body of a nation-state. Hence the profoundly
ambivalent nature of human rights, which are only guaranteed in practice
when they are also the rights of citizens of a given state. This is the source
of Arendt’s celebrated formula of the ‘right to have rights’. The first
human right, says Arendt, and that which conditions all others, is that
of belonging to a given political community. ‘Man, it turns out, can lose
all so-called Rights of Man without losing his essential quality as man, his
human dignity. Only the loss of a polity itself expels him from
humanity.’13
Two Possible Interpretations or Critiques of Human

Rights
Francophone analyses frequently condense this chapter of The Origins
into a denunciation of the abstract and formal nature of human rights,
shown by history to be utterly ineffective as soon as they are dissociated
from national rights. We can identify two interpretations here, both of
which (as Etienne Tassin demonstrates) constitute a ‘misunderstanding’
about Arendt’s interpretation of human rights.14 This misinterpretation
interests us here because it provides the arsenal for two separate critiques
of rights already discussed in the first chapter: the ‘communitarian’ and
‘radical’ critiques.
The Revival of Burke’s Arguments?

According to the first interpretation – which casts Arendt in a ‘conserva-
tive’ mould – humanity can only exist within national belonging. This
supports ‘the primacy of a communitarian conception of politics over a
democratic based one’,15 which appears to endorse Burke’s well-known
attack on the ineffectual nature of the rights of man as soon as they are
divorced from national belonging and allegiance to a state. While human
rights are presumed to protect all men from arbitrary power, they never in
fact exist except as ‘citizen rights’, in other words the rights of nationals.
Such rights, Arendt believes, constitute an abstract principle of
13
Arendt, Origins, p. 297.
14
Etienne Tassin, ‘La signification politique des droits de l’homme : lectures de Hannah
Arendt’, in Lambros Couloubaritsis and Martin Legros (eds.), L’Enigme de l’humanité en
l’homme, Brussels, Ousia, 2015, p. 116.
15
Ibid.
Two Possible Interpretations or Critiques of Human Rights 211
incomparably lesser value than the fact of belonging to a given political

community.16
Indeed, in as much as Arendt saw in the fate of interwar refugees ‘an
ironical, bitter, and belated confirmation of the famous arguments with
which Edmund Burke opposed the French Revolution’s Declaration of
the Rights of Man’,17 it may seem logical to conclude as does Philippe
Raynaud that she is merely ‘reviving Burke’s opposition of “metaphysical
rights” with the “true rights of man”’. In this interpretation, Arendt saw
Burke’s great merit as having rediscovered, ‘beyond an emerging ideol-
ogy, the conditions of authentic political experience, of which the first is
unquestionably belonging to a defined community, founded on a tradition,
which is in a position to ensure effective implementation of rights where
nothing else can’.18
Though he reaches a very different political conclusion – accusing
Arendt of making one of those ‘errors of perspective which even today
play their part in blurring the horizon’, the historian of ideas Zeev
Sternhell also regards Arendt’s reasoning as directly tracing Burke’s
thoughts on our ‘naked and trembling’ human nature, unfit to command
respect. Sternhell counters these arguments by stressing that the Jews
were persecuted ‘not as human beings stripped of their distinctive char-
acteristics’ but in fact ‘as members of a defined human group, an ethnic
group in some cases, or a race in others by virtue of the same hereditary
criteria glorified by Burke’.19 This argument is hard to contest in itself;
but as we shall see, Sternhell picked the wrong target in accusing Arendt
of this error.
In the same interpretive vein, Luc Ferry and Alain Renaut situate
Arendt in the sphere of ambivalence about human rights, of the same
strain that we find in the work of conservative authors such as Leo Strauss
or Michel Villey. In other words: ‘against the desire for radical change, the
mark of subjectivity and of its founding claims that are expressed in the
Declaration of the Rights of Man, [Arendt espouses] the wisdom of
tradition; against human rights, “the rights of Englishmen”’.20
Reconnecting in ‘resolute’ fashion with Burke’s thought, Arendt
16
Philippe Raynaud, preface to Hannah Arendt, L’Humaine condition, Paris, Gallimard,
2012, p. 24.
17
Arendt, Origins, p. 299. We should note that the French translation obscures the fact that
Arendt speaks of an appearance of confirmation. The text in fact says not that the facts
‘offer confirmation’ but offer ‘what seems’ to be a confirmation.
18
Philippe Raynaud, Trois révolutions de la liberté. Angleterre, Amérique, France, Paris, Puf,
2009, p. 35.
19
Zeev Sternhell, Les Anti-Lumières, Paris, Fayard, 2006, pp. 556–558.
20
Luc Ferry and Alain Renaut, ‘Des droits de l’homme à l’idée républicaine’, in Philosophie
politique, Paris, PUF, 2007, p. 483.
according to these authors makes little secret of her inability to conceive of

human rights.21
This comparison of Arendt’s arguments on human rights with those
found in the Reflections on the Revolution in France of 1790 even finds its
way into the work of as informed an author as Claude Lefort, who sees fit
to point out that ‘for Hannah Arendt as for Burke, only citizen rights are
real; human rights are a fiction’.22 It is in large measure this distinctive
French view of Arendt that accounts for Jacques Rancière’s well-known
argument that Arendt leaves us with a crippling dilemma between human
rights (an empty space, an illusion, since they are the rights of man
stripped bare and therefore without rights) and citizen rights (that is,
the rights of those who already have rights, and therefore a tautology).23
Human Rights and Sovereign Violence

A second interpretation – which casts Arendt as a critic of a duplicitous
humanism likened to a form of imperialism of subjectivity – holds that the
arguments of the Origins are an invitation to declare human rights obso-
lete on the grounds that they are inextricably linked to a modern nation-
state in decay. It is in this sense that Giorgio Agamben, at the price of an
especially convoluted reconstruction of Arendt’s reasoning, locates the
declaration of rights as part of a broader theme of the biopolitical deter-
mination of modern sovereignty. Here, human rights are indissociable
from the assertion of sovereign violence, and in Agamben’s view there is a
‘necessary and intimate [link] between the fate of human rights and that
of the nation-state’.24 In a slightly different way, critiques of the hypocrisy
of human rights rhetoric used to justify American foreign policy by
authors such as Slavoj Žižek and Noam Chomsky also appear to find
support in Arendt’s writings, for instance in her observation that:
the incredible plight of an ever-growing group of innocent people was like a
practical demonstration of the totalitarian movement’s cynical claim that no
such thing as inalienable human rights existed and that the affirmation of the
democracies to the contrary was mere prejudice, hypocrisy and cowardice in the
face of the cruel majesty of a new world. The very phrase ‘human rights’ became
21
Ferry, ‘Le droit. La nouvelle querelle des Anciens et des Modernes’, in Luc Ferry and
Alain Renaut, Philosophie politique, p. 43.
22
Claude Lefort, ‘Hannah Arendt et la question du politique’, in Essais sur le politique, Paris,
Seuil, 1986, p. 74.
23
Rancière, ‘Who is the Subject of the Rights of Man?’, p. 302.
24
Giorgio Agamben, Homo Sacer. Le pouvoir souverain et la vie nue, trans. M. Raiola, Paris,
Seuil, 1997, pp. 137–146. See also his Moyens sans fins. Notes sur la politique, trans. D.
Valin et al., Paris, Payot, 2002, pp. 25–37.
Two Possible Interpretations or Critiques of Human Rights 213
for all concerned – victims, persecutors and onlookers alike – the evidence of
hopeless idealism and fumbling feeble-minded hypocrisy.25
Arendt’s text leads here to another critique: no longer the argument that
human rights are restricted to those who belong to a national collectivity,
but instead the attack on a hypocritical brand of abstract humanism that
merely (according to this criticism) draws a thin veil over a cold calcula-
tion of interests underlying invocations of human rights politics, in
particular for the purposes of so-called humanitarian interventions.
Though these two interpretations – respectively ‘communitarian’ and
‘radical’ – of the human rights question in Arendt’s work start from
opposing premises and reach conflicting conclusions, their interpreta-
tions of the chapter on ‘The Decline of the Nation-State and the End of
the Rights of Man’ turn out to be highly similar; all appear to agree that
Arendt endorses critiques of the abstraction of human rights. While
Agamben judges that Burke’s ‘quip’ on the rights of Englishmen takes
on ‘unexpected depth’26 in Arendt’s hands, the Trotskyite philosopher
Daniel Bensaïd also aligns Arendt’s analysis with that elaborated by
another conservative: not Edmund Burke, Leo Strauss or Michel Villey
this time but Carl Schmitt, who (Bensaïd argues) saw ‘before Hannah
Arendt’ the dangers of depoliticisation implicit in granting formal or
abstract rights.27 It is in this sense that Bensaïd speaks (in the same vein
as Agamben’s interpretation) of the ‘dissolution of politics in humanitar-
ian action’ and the political exploitation of the notion of humanity in
everyday politics.28
However, we must remember that the reference to Burke in the final
chapter of the section of The Origins on ‘Imperialism’ cannot be
understood in isolation from the section entitled ‘The “Rights of
Englishmen” versus the Rights of Men’, which concludes the chapter
on ‘Race-Thinking Before Racism’. In this section, Arendt suggests that
Burke’s arguments against the abstract principles of the French
Revolution – which consist in applying the idea of inheritance to that of
liberty – make him one of the forerunners of racial thought in England.29
If Arendt endeavoured to show that Burke’s opposition between ‘the
rights of men and the rights of Englishmen’ was a vector of the transition
from nationalism to imperialism and racism itself, she did not ultimately
intend to redeem it. When she calls on Burke once again at the end of her
25
Arendt, Origins, p. 269. 26 Agamben, Homo Sacer, p. 138.
27
We owe this remark to Tristan Storme.
28
Daniel Bensaïd, Eloge de la politique profane, Paris, Albin Michel, 2008, pp. 86–87.
29
Arendt, Origins, p. 175. This is pointed out by Etienne Balibar, ‘Arendt, le droit aux
droits et la désobéissance civique’, in La Proposition d’égaliberté, Paris, PUF, 2010, p.
208n.
exploration of imperialism, Arendt is not suggesting his position be read-

opted; rather, the reference is there because Burke was the main witness
to the original dialectic that wove human rights into national sovereignty
and consigned them to impotence by crushing the ‘right to have rights’
under the weight of the nation-state and nationalism.
Far from linking human rights to the nation-state, as Agamben claims
was her aim, Arendt sees them as contradictory:
The secret conflict between state and nation came to light at the very birth of the
modern nation-state, when the French Revolution combined the Declaration of
the Rights of Man with the demand for national sovereignty. The same essential
rights were at once claimed as the inalienable heritage of all human beings and as
the specific heritage of specific nations, the same nation was at once declared to be
subject to laws, which supposedly would flow from the Rights of Man, and
sovereign, that is, bound by no universal law and acknowledging nothing superior
to itself.30
Burke’s position, which had furnished one of the leading arguments for
imperialist racism, could hardly be revived. Yet even from his misled
position Burke had clearly seen the weakness of the French Revolution,
which gave the rights of man no distinct institutional reality and in fact
subsumed them in national sovereignty. Burke criticised the abstraction
of the rights of man on the grounds that all rights were national rights.
Arendt, meanwhile, observes that the idea of human rights was hardly
born before it foundered on the stumbling block of the nation-state. This
is a ‘victory’ to Burke; yet it is, as Arendt stresses, a ‘bitter’ victory because
it is also a political disaster, as shown by the issue of stateless persons and
its totalitarian ‘regulation’. Burke’s supposed ‘victory’ does not prove him
right: rather, it shows up the imperative of revisiting the question of
human rights in the light of the ‘right to have rights’, in order to draw
them out of their strict national confinement.
Three ‘Arendtian’ Answers to Critiques of Human Rights

We can therefore respond to the two critiques discussed in this chapter
with three points to show that Arendt’s writings neither reject the abstrac-
tion of 1789 Declaration attack the alleged hypocrisy of human rights
rhetoric nor restrict human rights to a national collectivity; rather, they
point the way towards a right to humanity.
(1) On the question of abstract humanism, Arendt’s presumed con-
trast between a ‘good’ American Bill of Rights – ‘good’ in the sense of
practical, and moulded to the real aims of an already instituted limited
30
Three ‘Arendtian’ Answers to Critiques of Human Rights 215
government – and a ‘bad’ Declaration of the Rights of Man – abstract

because it was thought to exist prior to the body politic – is far less clear-
cut than some of its analysts31 who merely extend the arguments of the
American neoconservative Irving Kristol have claimed. In 1976, Kristol
invoked the authority of Arendt’s essay On Revolution, reducing it to a
binary opposition between the glories of the American Revolution and
the evils of 1789.32 It is true that in On Revolution Arendt appears to
endorse Burke’s critique of the 1789 Declaration, claiming that it is
neither ‘obsolete’ nor ‘reactionary’. However, careful reading of the
passage reveals that Arendt’s preference for the American Declaration
is based less on a limiting concept of rights than a refusal to restrict them
to natural rights. Their formulations may appear similar, but Arendt and
Burke are leagues apart: Arendt’s intention is not to neutralise human
rights but to imbue them with truly political meaning: as the rights not of
a ‘natural being’ but of a free citizen.33
Above all, returning to the text of the Origins reveals that Arendt by no
means unequivocally condemned the 1789 Declaration. This is
illustrated by her analysis of the Dreyfus Affair, especially in the following
eloquent passage:
There was only one basis on which Dreyfus could or should have been saved. The
intrigues of a corrupt Parliament, the dry rot of a collapsing society, and the
clergy’s lust for power should have been met squarely with the stern Jacobin
concept of the nation based upon human rights – that republican view of com-
munal life which asserts that (in the words of Clémenceau) by infringing on the
rights of one you infringe on the rights of all.34
In reality, if The Origins of Totalitarianism has heroes, they go by the names

of Bernard Lazare and above all Georges Clémenceau,35 whose greatness
lies according to Arendt in the fact that his politics did not combat a
specific miscarriage of justice but instead ‘was based upon such
“abstract” ideas as justice, liberty, and civic virtue . . . those very concepts
which had formed the staple of old-time Jacobin patriotism and against
which much mud and abuse had already been hurled’.36 And she adds:
‘Followers of men like Barrès who had accused the supporters of
Dreyfus of losing themselves in a “welter of metaphysics” came to realize
31
See the analysis of Philippe Raynaud in his preface to L’Humaine condition, p. 27.
32
Irving Kristol, ‘The “Human Rights” Muddle’ (1978) in Reflections of a Neo Conservative;
Looking Back, Looking ahead, New York (NY), Basic Books, 1983, pp. 266–269.
33
Hannah Arendt, On Revolution (1963), London, Penguin, 1990, p. 108.
34
35
See especially the analysis by Margaret Canovan, Hannah Arendt. A Reinterpretation of her
Political Thought, Cambridge, Cambridge University Press, 2003, p. 163.
36
that the abstractions of the “Tiger” were actually nearer to political

realities than the limited intelligence of ruined businessmen or the barren
traditionalism of fatalistic intellectuals.’37
The view that Arendt attacks the 1789 Declaration for its abstraction is
a misunderstanding: what she explicitly deplores, in fact, is the spineless-
ness of those intellectuals and politicians of the interwar period who had
become incapable of rallying around abstract ideas. ‘What made France
fall’, she writes, ‘was the fact that she had no more true Dreyfusards’, no
one who was able to conjure up ‘the old revolutionary passion for human
rights’ in their speeches as Clemenceau and Jaurès had before them.38
This is why we must once again understand Arendt’s endorsement of
Burke ‘at one remove’.39 Arendt praises Burke’s pragmatic potency and
‘immense good sense’, but certainly not his philosophical depth.40 Above
all, distinguishing between two conceptions of human rights was for
Arendt a way of uncovering the causes of the turn towards terror in
1793. She certainly did not aim to give an exhaustive description of the
multiform dynamic associated with the various different accounts of
human rights. It is in fact highly questionable whether any such thing
exists as ‘a’ French version of human rights: the Declarations of 1789,
1793 and 1795 bear the mark of the divergent historical force fields that
shaped them, of the acrimonious debates that accompanied their drafting
and in view of which they can be seen as often ambiguous or strained
attempts at compromise. The belief that political rights might be reduced
to natural rights was unquestionably attractive to the French
revolutionaries,41 and Hannah Arendt rightly saw in this temptation the
peculiarity that might explain terrorist abuses of human rights. However,
this does not mean that the blurring of boundaries between natural rights
and political rights would yield up ‘the’ meaning behind a series of
Declarations whose titles elliptically define the relationship between
man and the citizen as both a tie and a distinction.
(2) Further to this, Arendt was clearly aware that human rights dis-
course could well give rise to a kind of ‘double-speak’. But to follow
Jeffrey Isaac’s interpretation, she also believed that hypocrisy is not the
worst of the vices, and that exposing it is not the ultimate goal of intellec-
tual endeavour.42 This is borne out by Arendt’s analysis, in the third
37
Ibid., p. 110. 38 Ibid., p. 93 and p. 113.
39
Tassin, ‘La signification politique des droits de l’homme’, p. 118.
40
Jeffrey Isaac, ‘A New Guarantee on Earth: Hannah Arendt on Human Dignity and the
Politics of Human Rights’, American Political Science Review, 90, 1, 1996, p. 64.
41
See on this the analysis of Dan Edelstein, The Terror of Natural Right. Republicanism, the
Cult of Nature and the French Revolution, Chicago (IL), Chicago University Press, 2009.
42
Isaac, ‘A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics
of Human Rights’, p. 529.
volume of The Origins, of the irresponsibility of intellectuals who yielded

to the temptations of totalitarianism in the interwar period. Interesting
claims indeed in view of the contemporary attack on a ‘hypocritical’
human rights rhetoric:
‘What the spokesmen of humanism and liberalism usually overlook, in their bitter
disappointment and their unfamiliarity with the more general experiences of the
time, is that an atmosphere in which all traditional values and propositions had
evaporated (. . .) in a sense made it easier to accept patently absurd propositions
than the old truths which had become pious banalities (. . .) Vulgarity with its
cynical dismissal of respected standards and accepted theories carried with it a
frank admission of the worst and a disregard for all pretenses which were easily
mistaken for courage and a new style of life’43
She goes on to recall that ‘the desire for the unmasking of hypocrisy’ was
‘irresistible’ among an elite which demonstrated its ‘lack of a sense of
reality’.44 Arendt does not, of course, deny the importance of coherence
as an intellectual asset, and her thought shows absolutely no signs of
careless logic. What she does reject, on the other hand, is ideological
coherence of a formal and rigidly literal nature, achieved by denying
reality and common sense. And above all, in her view, the priorities of
political reflection and action should not be to condemn incoherence or
potential contradictions between rhetoric and practice, but rather to deal
with the suffering inflicted by human beings on fellow human beings.45
(3) Beyond this, what appears to be at stake in Arendt’s thought is the
emergence of a cosmopolitan form of citizenship. Pace Agamben – who
argues that ‘the decline and crisis’ of the modern state necessarily brings
about the ‘obsolescence’ of human rights46 – Arendt’s analysis allows us
to start thinking about ways of attaining a right to political inclusion, or to
a ‘human right to politics’47 beyond the nation-state. The right to have
rights means the right to have a meaningful place in the world – the
‘world’ being understood not in the sense of a defined national collectivity
but of a sphere constituted by connections between individuals who
reciprocally recognise each other as equals.48
In other words, when Claude Lefort accuses Arendt of cutting off
‘mutual recognition between human beings as equals at the gates of the
43
Arendt, Origins, p. 334. 44 Ibid., p. 336.
45
Isaac, ‘A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics
of Human Rights’, p. 519.
46
Agamben, Homo Sacer, p. 145.
47
Balibar, ‘Arendt, le droit aux droits et la désobéissance civique’, in La Proposition
d’égaliberté, p. 201 sq.
48
Tassin, ‘La signification politique des droits de l’homme : lectures de Hannah Arendt’,
pp. 118–119.
polis’, he appears to miss the fact that citizenship in Arendt’s

interpretation has a direct connection with a cosmopolitan point of
view. As Myriam Revault d’Allones writes: ‘Belonging does not refer to
“places” in the geographical sense of the term but offers access to uni-
versality: opinions can be meaningful and actions effective only when they
refer back to the fundamental conditions that make them reality in the
context of effective power.’49 Arendt writes that the first loss suffered by
those ‘without rights’ was that of their ‘home’, but even more so the
impossibility of finding a surrogate place of belonging.
‘Home’ has generally been translated into French as the word patrie,
which appears to imply analogy with the national form. However, if Arendt
had meant something equivalent to patrie, she might well have used the
word ‘homeland’ instead. Whereas the ‘homeland’ refers to a more or less
fixed place in which we are born and learn to speak, a ‘home’ can be rebuilt
in other places: it is a more neutral term for an organised political commu-
nity in which we are recognised as meaningful beings.50 Arendt underlines
the movable nature of ‘home’ when she observes that the unprecedented
development of the interwar period was not the loss of political belonging
as such – ‘in the long memory of history, forced migrations of individuals or
whole groups of people (. . .) look like everyday occurrences’ – but rather
the fact that finding a new home was no longer an option.51 In this sense,
though Arendt’s thought contains apparent vestiges of communitarianism
– especially in her emphasis on political participation – she distances any
form of communitarianism with her belief that belonging is necessarily
always partial, multiple and conflictual, and her mistrust for a culture of
authenticity or ‘constituted self’ anchored in a specific tradition.
As we have seen, at the heart of Arendt’s analysis stands the idea that it
was the ‘conquest of the state by the nation’52 – and thus the reduction of
human rights to the rights of nationals – that had proved catastrophic. A
constant theme of her writings on Zionism is the ‘disastrousness’ of the
ambition for a uni-national state and the imperative need for Arab–Jewish
cooperation ‘without which the whole Jewish venture in Palestine is
doomed’. Arendt’s argument here was not merely prudential but clearly
normative, since such cooperation would show the world ‘that there are
no differences between two peoples that cannot be bridged’.53 She
49
Myriam Revault d’Allones, ‘Arendt en perspective : entretien avec Myriam Revault
d’Allones’, Spirale, 211, 2006, p. 40, http//id.erudit.org/iderudi/16611ac.
50
Gündogdu, Rightlessness in an Age of Rights, p. 161. Nicholas Xenos, ‘Refugees: the
Modern Political Condition’, Alternatives 18, 4, 1993, p. 427.
51
Arendt, Origins, p. 293. 52 Ibid., p. 230.
53
Hannah Arendt, The Jew as Pariah. Jewish Identity and Politics in the Modern Age, New
York (NY), Grove Press, 1978, p. 186.
believed implicitly in finding a way out of the nationalist ‘pathology of

citizenship’, and creating new forms of political association not rigidly
bound to national belonging.
It may not, of course, be immediately apparent what shape these new
forms of political belonging might take in practice. Catherine Colliot-
Thélène observes that, for Arendt, the only alternative to national belong-
ing is belonging to humanity, yet that she (Arendt) considers this
‘impossible’.54 Arendt does indeed betray some pessimism – or at least
caution – about the actual emergence of this right to humanity in the body
of the text of the Origins:
humanity, which for the eighteenth century, in Kantian terminology, was no more
than a regulative idea, has today become an inescapable fact. This new situation,
in which humanity has in effect assumed the role formerly ascribed to nature or
history, would mean in this context that the right to have rights, or the right of
every individual to belong to humanity, should be guaranteed by humanity itself.
It is by means certain whether this is possible.55
Beyond the fact that Arendt does not explicitly declare the birth of such a
right ‘impossible’, her grounds for caution are above all that instituting
the ‘right to have rights’ would require the invention of new political
forms, based neither on mere treaty reciprocity nor ‘world government’.
Hence why, in a conclusion added ex post facto to the work, she forcefully
restates the imperative of striving to reach this goal, and therefore of
forging what Burke had judged impossible: namely, new discoveries
about morality and ideas of liberty:
The concept of human rights can again be meaningful again only if they are
redefined as a right to the human condition itself, which depends upon belonging
to some human community, the right never to be dependent on some inborn
human dignity which de facto, aside from its guarantee by fellow men, not only
does not exist but is the last and most arrogant myth we have invented in all our
long history. The Rights of Man can be implemented only if they become the
prepolitical foundation of a new polity, the prelegal basis of a new legal structure,
the, so to speak, prehistorical fundament from which the history of mankind will
derive its essential meaning in much the same way Western civilization did from
its own fundamental origin myths.56
As her explicit distancing of the appeal to an ‘innate’ human dignity
suggests, Arendt’s statement must not be mistaken for a resurrection of
54
Catherine Colliot-Thélène, ‘La démocratie à l’épreuve de la globalisation’, paper at the
seminar coordinated by Pierre Rosanvallon at the Collège de France, Paris, 13 February
2013, www.college-de-france.fr/site/pierre-rosanvallon
55
56
Hannah Arendt, The Burden of Our Time, London, Martin Secker and Warburg, 1951,
ch. 13.
natural right; rather, she sees human rights as practices that may legitimate
unprecedented political principles. Arendt does not elaborate what these
might constitute in any systematic way, but she sketches some elements of
them, particularly in her analysis of the crime against humanity in
Eichmann in Jerusalem, where she explicitly deplores the fact that the
Jerusalem tribunal at no point stated that the extermination of entire
ethnic groups was more than a crime against the Jewish, Polish or Roma
people but a crime against humanity in its entirety – which, understood as
such, should have fallen under the remit of an international tribunal
endorsed by the global community of nations.57 With this, Arendt con-
firms what she had written ten years earlier in The Origins, when she
remarked that ‘the Russian concentration camps, in which many millions
are deprived of even the doubtful benefits of the law of their own country,
could and should become the subject of action that would not have to
respect the rights and rules of sovereignty’.58
Arendt’s cosmopolitanism must certainly not be confused with advo-
cacy of world government, which she believed would undermine the
plurality of nationalities, cultures and political identities and signal ‘the
end of all political life as we know it’ – in other words a political life based
on plurality, diversity and reciprocal limitations.59 She may well, on the
other hand, have had in mind federal-type political solutions based on
relativised sovereignty, a proliferation of checks and balances on power
and constraints on the power of the nation-state to be achieved through a
combination of citizen-led initiatives and international jurisdiction.
Though her institutional conceptualisation of this possibility remained
vague, her emphasis on the need to break down the automatic equation of
nationality with citizenship can hardly be in doubt. As she wrote in her
preface to the first edition of the Origins, ‘human dignity needs a new
guarantee which can be found only in a new political principle, in a new
law on earth, whose validity this time must comprehend the whole of
humanity while its power must remain strictly limited, rooted in and
controlled by newly defined territorial entities’.60
Whatever its cosmopolitan implications may be, the essential point for
our purposes remains the following: those who claim to find confirmation
in Arendt’s work that human rights are always those of national citizens, or
who conversely condemn her inability to ‘conceptualise’ human rights –
without forgetting those who think to join her in arguing that declarations
57
Hannah Arendt, Eichmann in Jerusalem (1963), New York (NY), Viking Press, 1964, p.
1284.
58
59
Hannah Arendt, Men in Dark Times, New York (NY), Harcourt, 1993, p. 81.
60
Arendt, Origins, p. ix.
A ‘political’ Conception of Human Rights 221
of rights have lost their relevance – all miss the aporetic nature of her
approach. Arendt’s reasoning is ‘aporetic’ in the sense of a type of reasoning
that attempts to grasp an everyday political concept, to challenge tradi-
tional ways of understanding it and thereby to enable a reconceptualisation
of its meaning.61 Far from blocking the path, Arendt’s thought outlines a
critical space that opens the way towards a ‘political’62 conception of
human rights.
A ‘political’ Conception of Human Rights

In French political philosophy, Etienne Balibar has been the foremost
exponent of this ‘political’ interpretation of human rights in Arendt’s
writings for the last decade or so, and Etienne Tassin has more recently
taken up the argument.63 However, the ground for this ‘political’ inter-
pretation of human rights had already been extensively prepared by
Miguel Abensour’s reinterpretation of Arendt’s thought. Against the
simplifications of various anti-totalitarian currents defined by an ‘apoliti-
cism that degenerates into depreciation of politics and over-valuation of
ethics’,64 Abensour aimed to show in his 1996 publication that Arendt
was leagues apart from the classic liberal critique which sees totalitarian-
ism as a submission of the private domain to the public: ‘Indeed, totali-
tarian domination cannot subject private to public life because it means
above all and essentially the destruction not only of public life itself but of
its very possibility.’65 Abensour reinterprets Arendt as anything but a
‘conservative’ philosopher, seeing a libertarian promise in her work that
has tangible affinities with Claude Lefort’s ‘savage democracy’ – two
authors who decried totalitarian domination in similar terms, and strove
to ‘rediscover’ politics.
Abensour does not tackle the issue of human rights itself; but the
reinterpretations of the concept proposed by Balibar and Tassin are
clearly in his debt, both bringing out the paradoxes of Arendt’s concep-
tion of human rights and its singularly political dimension.
61
Ayten Gündogdu, ‘Perplexities of the Rights of Man: Arendt on the Aporias of Human
Rights’, European Journal of Political Theory, 11, 1, 2012, pp. 4–24.
62
For a remarkable overview of different ways of thinking about human rights and of
Arendt’s ‘political’ conception, see James Ingram, ‘What is a Right to Have Rights?
Three Images of the Politics of Human Rights’, American Political Science Review, 102,
4, November 2008.
63
The first French-language work on this should also be mentioned here: Robert Legros,
‘Hannah Arendt : une compréhension phénoménologique des droits de l’homme’, Etudes
phénoménologiques 2, Brussels, Ousia, 1985, pp. 27–53.
64
Miguel Abensour, ‘D’une mésinterprétation du totalitarisme et de ses effets’, Tumultes, 8,
1996, pp. 11–44, cited by Traverso, Le Totalitarisme, p. 756.
65
Abensour, ‘D’une mésinterprétation du totalitarisme et de ses effets’.
The first paradox of the human rights question in Arendt’s work – and
the main source of the misunderstandings discussed previously – lies for
Etienne Balibar in her combination of a radical rejection of any anthro-
pological basis for human rights with an uncompromising defence of their
imprescriptible character, according to which neglecting human rights
amounts to a destruction of the human. The paradox is that Arendt
appears to deny with one hand what she wishes to implement with the
other.66 Hence the risk of mistaking her criticisms of the discourse of
natural rights for an attack on human rights themselves. It is difficult to
deny that Arendt no longer believes it possible to base human rights on
the idea that man is an integral part of the cosmos. Beyond the fact that
natural laws are difficult to interpret, so-called natural rights in Arendt’s
view are merely (as we have seen) the woeful defences of human dignity
against political evil – including before the birth of totalitarianism.
Beyond this, Arendt argues that the philosophical premises for natural
rights, already fragile in the eighteenth century, can no longer be justified
in the eyes of twentieth-century men and women.
Yet though she forcefully refuses an ‘essentialist’ conception of rights
that links them to a universal or formal human essence incarnated in each
individual, Arendt does not conclude that the notion is devoid of
meaning:
The only condition given for the establishment of rights is the plurality of human
beings; rights exist because we inhabit the earth with other human beings. No
divine commandment issuing from the creation of man in God’s image and no
natural law arising from the nature of man are sufficient to establish a new law on
earth, for rights emerge from human plurality while divine commandments or
natural law would be true even if there were only a single human being.67
In other words, to be human is to be one of a plurality of individuals, each
unique and each able to engage in collective action. The Human Condition
thus presents a view of existence that posits the defining characteristic of
human beings as the capacity to initiate action, an ability rooted in
unpredictability and intersubjectivity. Hence, Etienne Tassin writes, the
un-founded character of human rights in Arendt’s thought – in the sense
that for Arendt human rights are not an origin to be rediscovered (or
restored), but an invention or a constant beginning.68 For Arendt, human
rights are not natural: they are conventions, forms of recognition
produced by agreement between human beings, the fragile artefacts of
communal life.
66
Balibar, ‘Arendt, le droit aux droits et la désobéissance civique’, p. 202.
67
68
This allows us, following Etienne Tassin, to take the paradox one step
further: human rights presume the existence of citizenship even though
we persist in seeing them as independent of it. However, this is not a
factual observation as the advocates of a ‘positive’ reading of Arendt
would argue. Human rights in fact presume the existence of citizenship
not as a fact but a right: ‘Human rights mean that men are men only when
they are recognised as such by other men who declare publicly that every
man has the right to be recognised as a being with rights . . . .’69
Though Arendt, like Bentham, emphasises the importance of institu-
tional guarantees of liberty, her defence of civil disobedience remains
distant from the positivist idea that there are no rights outside the pre-
scriptions of law guaranteed by a sovereign. Neither does she align herself
with Burke’s notion that effective rights are passed down between gen-
erations in a political community conceived as a family. ‘Arendt’s idea is
far more radical, and at the philosophical antipodes [of this]’, Balibar
writes: outside the institution of community (understood as reciprocal
action), ‘there can be no human beings’.70 A politics of human rights
must thus be seen as the active and cooperative practice of individuals
offering reciprocal recognition to others as their equals.
This is why, rather than an alternative to radical or revolutionary politics,
‘the politics of human rights is one of its most important expressions’.71 If,
like Balibar, we are to ‘think with Arendt beyond Arendt’, the community
of citizens is no longer an existing community or an ideal community
located in the past, but a community ‘to come’, a community without
any previous model which is bound to appear first as a non-community
but is virtually present in the struggle for its own definition. With this, we
reach a view of Arendt’s conceptualisation of rights that dovetails signifi-
cantly with the ideas developed by Jacques Rancière and Claude Lefort.
According to Jacques Rancière, individuals become political actors in
the very act of claiming rights that they do not yet have. In opposing man
and the citizen, Rancière argues that Arendt failed to see a third possibi-
lity: that ‘the Rights of Man are the rights of those who have not the rights
they have, and have the rights they have not’. This process is exemplified
for Rancière by the actions of women during the French Revolution, who
could simultaneously show that they were being deprived of the rights
69
Tassin, ‘La signification politique des droits de l’homme : lectures de Hannah Arendt’,
p. 118.
70
71
James Ingram, ‘Democracy and its Conditions: Etienne Balibar and the Contribution of
Marxism to Radical Democracy’, in Martin Breaugh, Christopher Holman et al. (eds.),
Thinking Radical Democracy: the Return to Politics in Postwar France, Toronto, Toronto
they held (thanks to the Declaration), and conversely that by taking action
they were investing themselves with the rights that the Constitution
denied them.72
Yet in the light of a ‘political’ interpretation of Arendt’s thought, we may
wonder whether Rancière is in fact ‘more Arendtian than he realises’.73 For
Arendt too, equality is not a given but a product of human action, achieved
through negotiation, struggle, compromise, defeat and the victory of all
those originally excluded from legal definitions of rights (whether slaves,
women, the poor and underprivileged, or LGBT groups), who have
attained full citizenship by claiming rights that they had not previously
enjoyed. Upending the constitutional formulas that base human rights on
citizen rights, Arendt posits that human rights are not the basis but rather
the outcome of politics.74 This political conception of human rights is also
close to that expounded by Claude Lefort, who argues that it is actors
themselves who create their liberties by declaring their rights.75 Our point
here is not to deny the significant divergences between Arendt, Lefort and
Rancière, but to show that all three, albeit in different ways, share a political
conception of human rights.
We can therefore see a very different interpretation of Arendt emerging
from that which might have seemed to condone scepticism about human
rights discourses and politics. For several contemporary authors, Arendt’s
thought opens the way instead towards a ‘political’ conception of rights,
which remains distinct from a ‘philosophical’ conception in that its concern
is less to identify the foundations of human rights than to explore how they
can be put into practice. From this angle, as James Ingram humorously puts
it, human rights may be likened not to ‘unicorns’ (as Alisdair MacIntyre
suggests) but to ‘mules’, which do not exist naturally and do not reproduce
as such, but can exist and therefore must be said to have real effects.76 To put
it another way: we may indeed not be born equal, but we can become equal
through a proclaimed will to ensure rights mutually for one another.77
*
The publication of ‘The Decline of the Nation-State and the End of the
Rights of Man’ now dates back sixty-seven years, to the exact moment
72
Jacques Rancière, ‘Who is the Subject of the Rights of Man?’, The South Atlantic
Quarterly, 103, 2/3, 2004, p. 302.
73
We owe this phrase to Etienne Tassin.
74
Alison Kesby, The Rights to Have Rights. Citizenship, Humanity and International Law,
Oxford, Oxford University Press, 2012, p. 5.
75
Claude Lefort, ‘Droits de l’homme et politique’, in L’Invention démocratique, Paris,
Fayard, 1981, p. 66.
76
Ingram, ‘What is a Right to Have Rights?’, p. 402.
77
For a recent interpretation close to what we suggest here, see Raphaëlle Nollez-
Goldbach, Quel homme pour les droits?, chapter 2, III, Paris, CNRS Editions, 2015.
when a transition was starting – after two centuries of absolute legal

sovereignty – towards the emergence of fundamental liberties and rights
as a new juridical category, particularly within the European polity
through the European Council or the provisions of the treaties drafted
by the European Communities. From this point, to echo the elegant
phrasing of Mireille Delmas-Marty in her preface to a collection of texts
on fundamental liberties and rights, ‘law no longer has every right’.78
Several more or less binding international texts provide for the protection
of the rights of the person regardless of nationality – the most sophisti-
cated model being the European Convention on Human Rights and
fundamental freedoms, ratified in Rome in 1950. All of which makes re-
examination of Arendt’s chapter the more pertinent. We know that
Arendt staunchly refused to define herself as a ‘philosopher’.79 She was
in fact a philosopher beyond a doubt, and among the greatest; but by this
refusal, she meant that in her conception of thought it was impossible to
speculate in a vacuum, free from concerns of understanding the world
and elucidating action. In this sense, studying Arendt’s output merely in
its own right would not be faithful to her own approach: we must look
beyond this at its relevance to contemporary political issues.
This is also the reason why Arendt’s writings have produced a
substantial secondary literature in recent times, seeking to draw out the
implications of her vision of human rights in order to conceptualise
citizenship beyond national borders.80 In particular, some scholars have
posited a more or less direct connection between the predicament of
stateless persons in the interwar period and that of asylum-seekers and
undocumented migrants today. It is easy enough, of course, to highlight
the differences between these two situations. The vast majority of asylum-
seekers and sans-papiers are in fact not stateless: most, driven by many and
varied reasons, have fled a home country to establish themselves else-
where. Asylum-seekers are also not stricto sensu ‘without rights’, since they
still hold the rights recognised by the 1951 Geneva Convention on the
status of refugees, completed by the 1966 Protocol – which was intended
to ensure recognised legal status for individuals outside their country of
nationality (or usual residence) who ‘reasonably’ fear persecution
because of their race, religion, nationality, political opinions or
78
Mireille Delmas-Marty and Claude Lucas de Leyssac, Libertés et droits fondamentaux,
Paris, Seuil, 2002.
79
Interview with Günter Gaus, 28 October 1964, in La Tradition cachée, Paris, Christian
Bourgeois, 1987, pp. 222–223.
80
See especially Gündogdu, Rightslessness in an Age of Rights; Monika Krause,
‘Undocumented Migrants: an Arendtian Perspective’, European Journal of Political
Theory, 2008, 7, 3, pp. 331–338 and Etienne Tassin, Le Maléfice de la vie à plusieurs,
Paris Bayard, 2012.
membership of a given social group. In the European area, the European

Convention on Human Rights allows any person, even if not from a state
party to the Convention, to appeal to the European Court of Human
Rights for arbitration on perceived violations of rights recognised in the
treaty. At first glance it might seem tempting to conclude that there are no
longer individuals ‘without rights’ in the European area and that Arendt’s
text is therefore outdated.
This observation would be completely misplaced. First, it is well known
that only a fraction of contemporary asylum seekers is covered by the
Geneva Convention, which applies neither to individuals fleeing foreign
or civil war nor to victims of violence arising from generalised insecurity or
anarchy.81 Second, though the scope of the Convention has been
expanded in many European decrees, many states have doggedly sought
ways of freeing themselves from their international obligations over the
last three decades; the Hungarian case is only the most recent and flagrant
example of this.82
Above all, arguing that international proclamation of rights alone is
enough to put an end to the predicament of those ‘without rights’ misses
the real meaning of the concept in Arendt’s view. To be ‘without rights’
does not mean being stripped of a specific right: a criminal may have his
freedom of movement taken away yet not be ‘without rights’.
Fundamental deprivation of human rights is ‘manifested first and above
all in the deprivation of a place in the world which makes opinions
significant and actions effective’.83 But attempting once more to think
‘with Arendt beyond Arendt’, we might say that those without rights find
themselves in a precarious situation such that claiming rights, and there-
fore access to justice, becomes difficult or even impossible. Arendt talks
about poverty in these terms, in On Revolution, describing it as ‘a state of
constant want and acute misery whose ignominy consists in its
dehumanizing force; poverty is abject because it puts men under the
absolute dictate of their bodies, that is, under the absolute dictate of
necessity . . . ’.84 This ‘absolute dictate of the body’ makes any participa-
tion in public life on an equal footing extremely difficult.
Ayten Gündogdu has recently countered the received wisdom
according to which Arendt neglects both the social dimension of oppres-
sion and the fact that political participation assumes prior satisfaction of
material needs. Against this, Gündogdu demonstrates that Arendt
81
See Danièle Lochak, ‘Qu’est-ce qu’un réfugié ? La construction politique d’une catégorie
juridique’, Pouvoirs, 144, 2013, p. 45.
82
See notably Virginie Guiraudon, ‘L’Europe et les réfugiés: une politique peu solidaire’,
Pouvoirs, 144, 2013, pp. 79–90.
83
Arendt, Origins, p. 296. 84 Arendt, On Revolution, p. 61.
questions the distinction between a moral principle (compassion) and a

political one (solidarity).85 Rather than drawing an immovable line
between the ‘political’ and the ‘social’, Arendt’s purpose is to stress that
social issues must be politicised in so far as they are linked to the equality
and freedom enjoyed by actors in the public sphere, rather than being
made into token issues of a politics of compassion driven by pity. In other
words, Arendt’s criticism of the French revolutionaries was not that they
had politicised poverty but quite the opposite – that they had failed to do
so by reducing the ‘poor’ to an undifferentiated mass of victims, and had
not managed to ‘institute conditions that could have enabled citizens to
politically address poverty’.86
Like those in extreme poverty, asylum seekers and undocumented
migrants rarely live in conditions that allow them to flourish as
autonomous subjects, and there are numerous other such types of social
marginality and vulnerability in which inherent fragmentation and
division are a barrier to group mobilisation. Thus understood, the
notion of a ‘right to have rights’ remains valuable in identifying con-
crete social obstacles that stand in the way of attaining rights, and
actions that can help individuals in any situation to make their voice
heard. We can also extend it into the endeavour of rekindling the
connection between political and social philosophy that the public
sphere has lost, over the past few decades, to the hegemonic role-split
between an asocial conception of rights and a conservative critique of
individualism. There is nothing absurd about marrying Arendt’s
thought with the wisdom of the sociological tradition, as well as with
Marx’s questions as to whether the real individual could experience
freedom.87 If Arendt’s critique of totalitarianism never stopped her
stressing the importance she accorded both to the ‘councilist’ revolu-
tionary tradition and Marx’s philosophy, this is because both Marx and
Arendt looked squarely at the contradictions, tensions, limits and pro-
mises inherent in the Declaration of Rights in order to pursue a com-
mon goal of emancipation.
We may therefore be able to respond to Agamben’s surprise at the lack
of clarity in the expression of the ‘rights of man and the citizen’, when he
asks ‘whether the two terms refer to two distinct entities or rather form a
hendiadys, the figure in which the first term is already contained within
85
See especially Traverso, La Fin de la modernité juive, pp. 103–104.
86
Gündogdu, Rightlessness in an Age of Rights, p. 58.
87
As witnessed by the similarities between Arendt’s analysis of democratic authority and
that given in Robert Damien’s recent Eloge de l’autorité (Paris, Armand Colin, 2013),
using the radically different tools of Durkheimian sociology and the French epistemolo-
gical tradition stretching from Bachelard to Dagognet by way of Canguilhem.
the second’.88 Our answer rests on the vision of both Marx and Arendt,
who invite us to conceive the relationship between man and the citizen
as a dialectical unity which represents neither complete independence
between the two terms nor one term being contained or subsumed in the
other. However, one essential difference remains: Marx believes it
possible to resolve the tension between the terms into the superior
unity of a classless society, whereas Arendt makes of this tension the
fertile prerequisite for all political existence.
88
Agamben, Moyens sans fin, p. 30.
Conclusion: Towards a Political
Understanding of Human Rights
The first chapter of this book identified two broad critiques of the uses of
human rights in democratic societies today. The first or ‘communitarian’
critique draws attention to the danger of fragmentation inherent in
a culture of rights which it sees as dangerously legalist and absolutist.
The second, ‘radical’ critique views the recourse to human rights as one
symptom among many that society has given up on the promise of
emancipation. We now respond to these two critiques in succession,
before returning to the outline of a ‘political’ conception of human rights
sketched in Arendt’s philosophy.
Human Rights and Civic Desertion1

In his recent book on French intellectual life, with a hint of ritualism, the
Oxford historian Sudhir Hazareesingh notes the French preference for
abstract arguments over discussion founded on empirical observation.2
Indeed, what is most striking about the tireless rehearsal of the allegedly
destructive effects wrought by the primacy of human rights is perhaps its
disjuncture from reality. Many claim without further explanation that the
ascendancy of rights now determines social reality. Has the discourse of
human rights really become the exclusive language of contemporary
democracy, though? Are its effects really as alleged by its opponents?
The argument that the consecration of human rights (if it really exists)
has emptied civic commitment of its content is usually taken as so self-
evident that authors offer no empirical information about new types of
sociability, or about associative or activist movements, to back it up.3
1
On this point see Justine Lacroix, ‘Human Rights and Politics’, Books and Ideas, 2012,
www.booksandideas.net/Human-Rights-and-Politics.html.
2
Sudhir Hazareesingh, How the French Think. An Affectionate Portrait of an Intellectual
People, Penguin, 2015, p. 237 (Ce pays qui aime les idées, trans. M.-A. de Beru, Paris,
Flammarion, 2015).
3
Serge Audier, La Pensée anti-68. Essai sur les origines d’une restauration intellectuelle, Paris,
La Découverte, 2008, p. 313.
229
230 Conclusion
This obscures the fact that the idea of human rights remains the preserve
of a minority in global terms, and that the rhetorical triumph of human
rights by no means always translates into practice. This is witnessed
within the European Union itself by the half-hearted support for causes
that bear directly on fundamental rights – campaigns, for instance,
against incursions on the rule of law in Hungary, the plight of Roma
people in several central- and east-European states, or the parlous con-
ditions that prevail in many French and Belgian prisons.4 Until recently,
public opinion remained largely unmoved even by the drowning of
thousands of migrants in the Mediterranean. Following a recent and
extremely lukewarm report from the Council of Europe on the state of
human rights in France,5 which drew particular attention to the plight of
disabled people and lone minors arriving as refugees or asylum seekers,
we might well question beliefs that Europe today exists under ‘demo-
cratic governance with scrupulous respect for human rights’6 or that
French democracy is groaning under the weight of a supposed primacy
of individual rights.
In fact, the surest bulwark against hedonist consumerism and spineless
individualism remains democratic self-organisation of society through
mobilisation for rights.7 It is true that there are more (and more varied)
‘minority’ demands for recognition of rights in the public sphere today
than in the nineteenth and most of the twentieth century. Such groups
enjoy neither the permanence of parties and unions nor the capacity of
these organisations to offer their members a cohesive environment and
a shared interpretive lens on the world. Yet these demands for respect and
extension of existing rights, and access to new ones, always happen by way
of newly formed groups of individuals ‘who mobilise together to win
recognition of rights which they believe they are denied’.8 If rights protect
individual interests, this does not mean they cannot be claimed through
a political campaign fought with others and for others: ‘in the real
world . . . what is striking is that, on the whole, claims are put forward
by people on other individuals’ behalf ’.9
The same applies to the implausible idea that the members of a liberal
society only now see each other as holding individual rights. We have seen
4
See the 2015 report by Human Rights Watch, www.hrw.org/fr/rapport-mondial-2015
5
Report by N. Muiznieks, Commissioner for human rights for the Council of Europe,
following a visit to France from 22 to 26 September 2014, published 5 March 2015.
6
Pierre Manent, La Raison des nations, Paris, Gallimard, 2006, p. 16.
7
See Richard Wolin, ‘From the Death of Man to Human Rights: The Paradigm Change in
French Intellectual Life 1968-1986’, in The Frankfurt School Revisited and Other Essays on
Politics and Society, New York (NY), Routledge, 2006.
8
Catherine Colliot-Thélène, La Démocratie sans demos, Paris, PUF, 2011, p. 6.
9
Human Rights and Civic Desertion 231
how Sandel uses the family model as the prototype of an institution

founded on shared meanings and aims, and Manent argues that the
situation of women, now free to live ‘disconnected’ from others,
illustrates the divisive effects of fundamental rights.10 Yet Will
Kymlicka’s objections to these arguments remain relevant: which, rights
or love, is the sounder basis for choice? The fact that women can change
career without their spouse’s permission hardly means that all women will
choose to use this right at the price of family break-up. The primacy of
rights does not exclude affective ties, but simply prevents corruption of
these relationships by systems of domination and subordination.11
These critiques of the primacy of rights, which for the most part ignore
the findings of legal sociology, rest on the received wisdom that too much
credence given to rights discourse automatically entails a loss of civic
autonomy. These supposed consequences should be qualified in the
light of research findings that demands for rights have stood alongside
and encouraged the development of social solidarities and political col-
lectivities. Several empirical studies have shown that the individualist bias
of rights discourse coexists with perspectives that vehicle a collective or
relational vision.12 These studies also show that (counter-intuitively,
perhaps) fears about the incursion of justice into private and public life
are largely overstated: ‘The supposed crisis of the judicial system,
described as all-powerful and snowed under with complaints, is in fact
a construction widely exploited to question the affirmation of rights by
citizens.’13 Such conclusions may not be unanimous, but the idea that
human rights discourse jeopardises collective participation would none-
theless surely benefit from some empirical reinforcement.
Critics of the fragmentary effects of individual rights also ignore works
of political philosophy which demonstrate that their scepticism may be
founded on a narrow, rigid conception of fundamental liberties and vision
of the relationship between rights and practice leaving little space for
dialectical processes.14 As Karen Zivi writes, claims to rights can be
interpreted as a ‘practice of persuasion’ which is always part of a defined
context. Rights are not attributes held independently of our relationship
10
See Chapter 1.
11
Will Kymlicka, Contemporary Political Philosophy: An Introduction, Oxford, Oxford
12
Michael McCann, Rights at Work. Pay Equity Reform and the Politics of Legal Mobilization,
Chicago (IL), The University of Chicago Press, 1994.
13
Liora Israël, L’Arme du droit, Paris, Presses de Sciences Po, 2009, p. 129.
14
See especially John Tomasi, ‘Individual Rights and Community Virtues’, Ethics, 101, 3,
1991, pp. 521–536 and Kenneth Baynes, ‘Rights as Critique and the Critique of Rights:
Karl Marx, Wendy Brown and the Social Function of Rights’, Political Theory, 28, 4,
2000, pp. 451–468.
232 Conclusion
with others, but complex intersubjective practices and linguistic acts

whose effects cannot be completely controlled or understood.15
In terms of the French case, the usual criticism levelled at Lefort – that
he failed to see how ‘human rights politics’ might lead to collective
powerlessness – does not do this author justice. Lefort tirelessly stressed
that winning new rights always depended on public recognition, vehicled
by collective debate. Exploring the political dimension of human rights
did not mean sidelining civic participation and the need for a public
sphere. Quite the opposite: Lefort reminded us that campaigns for new
rights, which are part of a wider collective struggle for justice and liberty,
are therefore a building block for a public sphere that frees up
communication between citizens.16 Lefort situated his interpretation in
the broader context of a democratic logic which he understood as
a process of emancipation:17 human rights are the product of past strug-
gles and the chief aim of present ones. Democracy always retains
a ‘savage’ side,18 for its greatest resource lies precisely in challenges or
demands by those excluded from its benefits. To the conservative ques-
tion of who is the ‘man’ written into the Declarations of his rights, Lefort
responds: everyone and no one. The indeterminate idea of ‘man’, in his
view, is bound up in the indeterminate nature of democracy: it is the
actors of democracy themselves who create their liberties by proclaiming
their rights.19
Clearly, Lefort’s vision is difficult to reconcile with a defensive concep-
tion of democracy concerned with the de-limiting effects of a dynamic of
rights. In this vein, Gauchet’s idea of a type of ‘democracy against itself’
really has the value of a rhetorical figure of speech, attributing to rights
a boundless nature that is in fact merely an extension of market relations
into different social spheres. Democracy is always in some measure
‘against itself’, since an established right is no sooner stated than it
becomes ‘elusive’ and cannot be fixed in place. Now, ‘where law is in
question, it is the established order that is in question: this is one of the
constitutive definitions of democracy’.20 This means that democracy
15
Karen Zivi, Making Rights Claims. A Practice of Democratic Citizenship, Oxford, Oxford
16
Audier, La Pensée anti-68, p. 312.
17
Catherine Colliot-Thélène, ‘L’interprétation des droits de l’homme: enjeux politiques et
théoriques au prisme du débat français’, Trivium, 3, 2009, http://trivium.revues.org.
18
Claude Lefort, ‘La communication démocratique’, in Le Temps présent. Ecrits 1945–2005,
Paris, Belin, 1979, p. 389.
19
See especially Jean L. Cohen, ‘Rethinking the Politics of Human Rights and Democracy
with and beyond Lefort’ in Martin Plot (ed.), Claude Lefort, Thinker of the Political,
Basingstoke, Palgrave, 2013, pp. 124–135.
20
Lefort, ‘La pensée politique devant les droits de l’homme’ in Le Temps présent. Ecrits
1945–2005, ibid.
Human Rights and Emancipation 233
experiences this internal conflict only when it confronts its own limita-
tions, in a process that is less about boundlessness as loss of a moral
compass, and more a permanent reflexive and critical readoption of the
value of the inherited limits of democracy.
Lefort certainly did not ignore the potential for democracy to be
misused, and as early as 1979 drew attention to a twin danger to be
avoided: seeing any demand automatically in terms of rights, and striving
to reach an ultimate or definitive criterion for the identification of what is
and is not properly bound up with rights. ‘We ourselves – not only the
state – are in the predicament of repeatedly having to confront an inde-
terminate value and having to maintain, in the name of what we hold to be
truth and justice, that a right is either inadmissible or admissible.’21
We cannot, then, accuse Lefort’s philosophy of reducing democracy to
mere autonomy of the legal subject in evading the moment of collective
self-determination. The sovereignty of a people, though inappropriable,
nonetheless remains in his thought the normative foundation of
democracy.
Human Rights and Emancipation

The other common objection to human rights today moves away from the
danger of social atomisation and focuses instead on the ideological and
disciplinary aspect of a rights discourse seen as abandoning the fight for
democratic and social autonomy. There are two strands to this critique.
On the one hand, the correlation sometimes suggested between glorifica-
tion of individual liberties and the decline of social justice neglects the fact
that the rise of social inequality represents a regression of equal liberties,
which are at the heart of the idea of human rights.22 Whereas authors who
advance this thesis talk of a ‘proliferation of rights’, the reality is one of
individuals forced to adjust to the rigours of the market at the expense of
social rights, and as a result living in ever more precarious situations.
On the other hand, though the critique of the normalising function of
human rights does identify a real danger, it is also incomplete as it
marginalises the welcome effects of demands for rights in bringing
individuals together, giving them a ‘voice’ and allowing them to shape
their own future.23
21
Lefort, ‘La communication démocratique’, p, 395.
22
In different and sometimes contrasting ways, this idea permeates the sophisticated work
of Etienne Balibar, Jacques Bidet, Robert Castel, Pierre Rosanvallon, Alain Supiot and
André Tosel.
23
Zivi, Making Rights Claims, p. 83.
234 Conclusion
These intuitions from the field of political philosophy are supported by

sociological research on conditions for rights-based mobilisation, demon-
strating that while law certainly still works to maintain hierarchy, it can
also be, ‘in the hands of defiant citizens, a source of disorder and egalitar-
ian reordering’.24 In his work on campaigns for equal pay across the
gender divide, Michael McCann has thus shown that ‘taking legal rights
discourse seriously in political practice has opened up more than closed
debates, exposed more than masked systematic injustices, stirred more
than pacified discontents, and nurtured more than retarded the develop-
ment of solidarity among women workers and their allies’.25
In counterbalance to the Manichaean vision of law as automatically
reinforcing social domination, several authors have pointed out that it is
the ‘potential for reversal’ that gives the law such ‘political force’.26
In other words, these ‘leftist’ critiques of human rights forget what
Michel Foucault himself recognised, particularly if we read his works in
the light of his own political activism: that campaigns for rights can, by
their very unpredictability, be forces for emancipation. Law, of course,
functions as a ‘cover’ for ‘disciplines’, and Foucault thus described the
legal activity of the last two centuries as a surface phenomenon (‘the forms
which make acceptable this essentially normalising power’).27 But he also
stressed that ‘law is neither the truth of power nor its alibi. It is an
instrument of power which is at once complex and partial’.28 His diag-
nosis was that the contradiction between normalisation and the ideal of
law, which had previously sheltered and been concealed behind the
notion of sovereignty, had now come strongly to the fore. The way for-
ward was to move ‘in the direction of a new right, one which would be
anti-disciplinary, but at the same time liberated from the principle of
sovereignty’.29 Though he preferred to speak of the ‘rights of governed
peoples’, Foucault appeared to think that the recourse to human rights
was indeed moving in this direction. This transpires in several interviews
and opinion columns published at the end of his life in which he defends
existing rights and calls for recognition of new ones, for example under
the umbrella of a ‘relational right’ that would allow ‘all types of relation-
ships to exist without prevention, obstacles or annulment by relationally
impoverishing institutions’.30 ‘The misfortune of human beings’,
24
McCann, Rights at Work, p. ix. 25 Ibid., p. 14.
26
Liora Israël, L’Arme du droit, Paris, Presses de Sciences Po, 2009, p. 13.
27
Michel Foucault, La Volonté de savoir, Paris, Gallimard, 1976, p. 190.
28
Michel Foucault, ‘Power and Strategies’ (1977), in Power/Knowledge: Selected Interviews
and Other Writings 1972–1977, Pantheon, 1980, p. 141.
29
Foucault, ‘Cours du 14 janvier 1976’ in Dits et écrits, III, 194, pp. 188–189.
30
‘The Social Triumph of the Sexual Will: A Conversation with Michel Foucault’ (‘Le
triomphe social du plaisir sexuel: une conversation avec Michel Foucault’, interview with
Foucault also said in 1984, ‘must never be a mute residue of politics. It is

the foundation of an absolute right to rise up and address all who hold
power.’31
Demands for rights, in other words, must not be simply reduced to
a victimisation tactic or reification of existing identities. Even if they do
not call time on discrimination and injustice, they can be understood as
performative practices through which we become citizens who alter and
reinvent their political identities. It is in this spirit that a number of
current authors have radicalised Lefort’s conception of a democracy
always ‘in excess’ of any pre-existing formulation. In the hands of authors
such as Jacques Rancière or Étienne Balibar we thus see
a conceptualisation of democracy understood as boundless by its very
nature. However, illimitation here means not the excess of unchecked
expansion but the gesture of reaching out for autonomy, validated by
campaigns for rights, through which subjects continually push the bound-
aries of the public and private, of the social and the political. Social
plurality, which feeds resistance to the domination of a self-designated
elite, is the source of a democratic process conceived as a permanent
reshaping of social divisions. It is this perpetual motion that constitutes
the force of democratic life. In short, these authors combat the idea that
the best defence we can give democracy is to force it to admit its own
limits with a different proposal: that the defence of democracy passes by
way of affirming its fundamental illimitation.32
In the era of capitalist globalisation, claims to rights – including both
the struggle against social violence and critiques of the limitations of the
national state – take their place, for some thinkers, as the privileged
instrument of radical democracy. In Les Frontières de la démocratie,
Balibar thus implicitly responds to Gauchet when he points out that
‘without a politics of human rights, there is no democratic politics at
all’. The great Declarations of rights must be seen as radical discursive
operations that deconstruct and reconstruct the political domain by stat-
ing a ‘universal right to activity and recognition, in all domains where the
problem arises of collective organisation of the exercise of ownership,
power and knowledge’.33 ‘An egalitarian turn of phrase is not insignif-
icant’ writes Rancière,34 meanwhile, echoing Lefort’s emphasis on the
G. Barbedette, 20 October 1981), reproduced in Dits et Ecrits, II, Paris, Gallimard, 2001,
p. 1129.
31
Foucault, ‘Face aux gouvernements, les droits de l’homme’, Libération 967, 30 June-
1 July 1984 in Dits et écrits, vol. II, p. 1527.
32
Martin Deleixhe and Justine Lacroix, ‘Aux bords de la démocratie. Droits de l’homme et
politique chez Etienne Balibar’, Raison publique, 19, 2014, p. 44.
33
Etienne Balibar, Les Frontières de la démocratie, Paris, la Découverte, 1992, p. 247.
34
Jacques Rancière, Aux bords du politique, Paris, Gallimard, Folio, 2012, p. 87.
236 Conclusion
emancipatory dimension in real terms of liberties described as purely

formal.35 The issue is not to establish that the constraints imposed by
individual rights can be reconciled with self-government, but rather to
explore the way in which rights are invoked by, and in turn produce,
democratic citizens. Insofar as claims to rights are bound up with the
demand for inclusion, they may be understood as performative practices
through which political communities take shapes which are by nature
fluctuating.
The connection between the indetermination of rights and democratic
autonomy defines a conception of democracy that may be called ‘radical’.
As Samuel Chambers points out, in the context of international debate
this concept combines a break from orthodox Marxism and a critique of
the oppressive effects of capitalism; or recognition of the emancipatory
dimension of legal liberties and emphasis on forms of socio-economic
domination. Beyond their differences, radical democracy philosophers all
aim to marry socialism with democracy, with both seen as prerequisites
for the other to exist. Chambers argues that radical democracy is different
from social democracy in that it stresses the structurally unfinished nature
of democracy.36 If equality, liberty or socialism are the goals of social
democracy, radical democracy maintains the impossibility of attributing
a telos to a democratic process defined by its perpetual openness to other
possible realities, and to a social order which can only remain unequal
since it is always imbued with power relations. With any possibility of
ultimate reconciliation thus foreclosed, radical democracy in this argu-
ment means the radical impossibility of a finished, cut-and-dried
democracy.37
The interest of this emphasis on the action of political subjects is that it
moves beyond a ‘defensive’ and ‘partial’38 vision of rights to connect them
more closely to the conditions for collective action. A ‘political’ concep-
tion of human rights refuses to draw rigid distinctions between the rights
of the citizen – that is, of human beings acting in concert – and human
rights, or those of the individual narrowly focused on his own interest.
As the January 2015 attacks in Paris tragically reminded us, there are
essentially no rights today – even that of free artistic expression – with no
35
Lefort, L’Invention démocratique, p. 66. We should recall here that the opposition between
‘formal’ and ‘real’ liberties does not appear in Marx’s work.
36
Samuel Chambers, ‘Giving Up (on) Rights? The Future of Rights and the Project of
Radical Democracy’, American Journal of Political Science, 48, 2, April 2004, p. 192.
37
Chantal Mouffe, ‘Democratic Politics Today’, in Dimensions of Radical Democracy:
Pluralism, Citizenship, Community, London and New York (NY), Verso, 1992, p. 4,
quoted by Chambers, ibid.
38
Cornelius Castoriadis, ‘La démocratie comme régime et comme procédure’, in La
Montée de l’insignifiance. Les Carrefours du labyrinthe IV, Paris, Seuil, 1996, p. 236.
political dimension. Human rights are always those of citizens too – and
more precisely, as Cornelius Castoriadis pointed out, a large part of the
struggle for democracy is to ‘establish real conditions that allow all to
exercise these rights in practice’.39
This is also tantamount to saying that there are no effective rights
outside campaigns for rights. When Arendt draws attention, with rather
needless spite, to the naiveté and ineffectiveness of interwar human rights
activists, her point is not that human rights themselves are absurd but that
it is absurd to see them exclusively as a matter of compassion. Human
rights are not about charity, Arendt believed. To which Lefort added that
they were also no ‘moral sanctuary’. Rather, they are an integral part of
the political domain and call for political action, including even the use of
force when necessary.
But can we really reduce citizenship to these campaigns for rights alone,
whether for the implementation of rights already recognised or recognition
of new ones? Several philosophers of radical or ‘agonistic’ democracy as it is
sometimes called yield to the temptation of seeing political citizenship
exclusively in terms of political action, deconstructing it as a status and
thereby neglecting even the institutional bases of autonomy. Some take this
reasoning so far as to conclude that it is less the legal outcomes of rights
campaigns than the campaigns themselves that matter. Democratic citizen-
ship, as Zivi writes in this vein, is valid only in terms of actions and above all
in the fact of ‘claiming’ rights rather than ‘having’ rights.40 James Ingram,
meanwhile, judges that Arendt’s formula of the ‘right to have rights’ must
be understood not as the right to a status in a given community but as a right
to politics – to take part in campaigns striving for the invention of new
rights, new forms of inclusion and unprecedented forms of autonomy.41
This sort of trust in social and political effervescence may not be entirely
convincing, with its ‘aphasia’ on the question of how to constitute and
regulate democracy beyond moments of rebellion.42 The double under-
valuing of legal status and belonging to a stable group, furthermore, is not
wholly faithful to Arendt’s thought. Beyond the obligatory emphasis on
praxis, a ‘political’ conception of human rights would do well to explore the
three conditions for autonomy represented by legal personality, the exis-
tence of an ‘institutional’ grammar and that of a shared world.
39
Ibid. 40 Zivi, Making Rights Claims, p. 119.
41
James Ingram, ‘Democracy and its Conditions: Etienne Balibar and the Contribution of
Marxism to Radical Democracy’ in Martin Breaugh, Christopher Holman et al. (eds.),
Radical Democracy: The Return to Politics in Post-War France, Toronto, Toronto University
Press, 2015, p. 218.
42
See Samuel Moyn, ‘Introduction: Antitotalitarianism and After’ in Pierre Rosanvallon
(ed.), Democracy. Past and Future, New York (NY), Columbia University Press, 2006, p. 3.
238 Conclusion
Status and Person

Raising the question of status means first of all recalling that the quality of
citizenship does not depend exclusively on taking part in political
activism. Beyond those who cannot mobilise (whether because of
a disability or, for instance, imprisonment preventing meaningful
action43), even supposedly ‘ordinary’ citizens – those who have no wish
to be involved in public political life – also have the ‘right to have rights’,
even if they merely enjoy those won by others. Arendt repeatedly stresses
in her 1943 article ‘We Refugees’ that it is the loss of a legal status in the
world that made pariahs of stateless persons in the war era: ‘Very few
individuals’, she writes, ‘have the strength to conserve their own integrity
if their social, political and legal status is completely confused’.44 This
view is reinforced in The Origins of Totalitarianism, in which Arendt high-
lights the loss of ‘legal status’ suffered by Jews and stateless individuals at
this time.45 Beyond its practical ramifications, the question of legal per-
sonality – the ‘artificial mask created by law’46 – stands at the centre of
Arendt’s thought.47 On Revolution recalls the etymology of the Latin word
persona as the mask worn by theatre actors. The mask had two functions:
‘it had to hide, or rather to replace, the actor’s own face and countenance,
but in a way that would make it possible for the voice to sound through’.48
Without the persona, all that remains would be an individual without
rights or duties, ‘perhaps a “natural man”, but certainly a politically
irrelevant being’.49 Perpetuating the tenets of the Durkheimian socio-
logical tradition,50 Arendt shows here a sense of the social implications of
rights which are often neglected by contemporary philosophers. It is
precisely because equality is not a given but the outcome of an agreement
among a community of actors that we need a form of legal personhood,
without which we would be consigned to public invisibility.
In other words, far from being a purely legal issue this is a clearly
political one which raises further questions about the capacity of national
43
Alison Kesby, The Right to Have Rights. Citizenship, Humanity and International Law,
Oxford, Oxford University Press, 2012, p. 132.
44
Hannah Arendt, ‘We Refugees’, in Marc Robinson (ed.), Altogether Elsewhere: Writers on
Exile, London, Faber & Faber, p. 116.
45
p. 279.
46
Ayten Gündogdu, Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary
Struggles of Migrants, Oxford, Oxford University Press, 2015, p. 101.
47
See the analysis of Raphaëlle Nollez-Goldbach, Quel homme pour les droits ?, Paris, CNRS
Editions, 2015, especially pp. 117–135.
48
Hannah Arendt, On Revolution (1963), London, Penguin, 1990, p. 106.
49
Ibid., p. 419.
50
See the celebrated essay of Marcel Mauss, Une catégorie de l’esprit humain : la notion de
personne, celle de ‘moi’ (1938), in Sociologie et anthropologie, Paris, PUF, 1950.
A Social and Institutional ‘Grammar’ 239
and international institutions to confer this ‘mask’ that allows the voice of
every citizen to carry into the public sphere.51 Both granting refugee
status and progressive expansion of citizenship to include those who
share a given national territory are conditions and consequences of the
struggle for equality. As Étienne Balibar writes – alone among radical
philosophers in his attempt to conceive conflict and status as one – it is
precisely the tension between the egalitarian and statutory poles that
creates ‘the full historical mobility of citizenship’. If an individual’s stat-
utory position is not the sum total of citizenship, then citizenship cannot
exist without it either: citizenship is part of the constitution of
a differentiated society and the workings of a state.52
A Social and Institutional ‘Grammar’

This leads to a second difficulty that persists in the works of radical
democracy theorists, namely a comparative discrediting of institutions
and a lack of attention to social redistribution issues. For Jacques
Rancière, democracy is ‘neither a form of government nor a social life-
style’ but exclusively ‘the type of subjectivation through which political
subjects exist’.53 This gives rise to a kind of mistrust for institutions seen
as united en masse behind the ‘police’ or government. Yet as Alison
Kesby has recently shown through a painstaking analysis of judgements
by the European Court of Human Rights, and especially its dissenting
opinions, conflicts over the interpretation of ‘recognised’ rights cannot be
ascribed wholesale to the ‘police’: there is an emancipatory potential that
is born within institutions themselves.54 Politics also unfolds in debate about
the rules followed by what Rancière describes as the police.
The headlong rush into a politics of challenge and dissent, then, does
not of itself define a political sphere. It is one thing for rights campaigns to
vehicle a collective dimension that can enrich the ‘relational fabric’ of
society in largely unpredictable ways; it is quite another, and more deba-
table, to conclude from this that only ‘claims’ matter, rather than the legal
progress and institutional forms that grow from them. This distinction is
summed up by Catherine Colliot-Thélène’s observation that Rancière’s
disregard for institutions leads him to neglect recognition of rights,
although such is the aim of demands for the right to participate issuing
from society’s ‘voiceless’ citizens.55
51
Gündogdu, Rightlessness in an Age of Rights, p. 106.
52
Étienne Balibar, Droit de cité, Paris, PUF, 1998, p. 54.
53
Rancière, Aux bords du politique, p. 16.
54
Kesby, The Right to Have Rights. Citizenship, Humanity, and International Law, p. 136ff.
55
Colliot-Thélène, La Démocratie sans demos, p. 12.
240 Conclusion
It is true that this oft-rehearsed attack on Rancière is not entirely fair.

He did after all respond to it in his book The Method of Equality, claiming
that he was ‘not against institutions per se’ but rather the ‘spontaneity vs
organization claptrap’, or quite simply ‘everything that redirects the idea
of an institution based on liberty and equality towards the idea of an
institution within the state power game as it is defined’.56 It would in this
sense be fairer to say that Rancière does not make it a priority of his
philosophy to define institutional forms that can vehicle demands for
liberty and equality.
However, Rancière does make a hasty leap from a presumption of
equality to one of agency, or the capacity for action. He tells us little
about the social conditions he sees as conducive to the radical claims
which lie at the heart of the political in his view. ‘The poor . . . often no
longer live in conditions that promote political solidarity, and there are
many other types of social marginality and vulnerability whose inherent
fragmentation and division block democratic mobilization.’57 As Robert
Castel’s work reminds us, human beings must be ‘protected in order to be
autonomous’, with access to a modicum of resources and rights in order
to be free ‘not to have to live hand-to-mouth’58 and be in a position to
engage in the sorts of demands for rights already discussed which do not
of themselves define the democratic sphere.
Lois McNay has recently offered a welcome clarification of this point.
On the pretext of avoiding pity politics, she argues, proponents of radical
democracy tend to take the agency of dominated people for granted,
without further questions about the many guises of social hardship
today – which often take the form of (sometimes internalised) obstacles
which prevent certain groups from working towards their own interest.
Categorical rejection of any action motivated by ‘pity’ (which we often
find in criticism of humanitarian organisations) can encourage glorifica-
tion of campaigns in their own right, without further inquiry as to what
makes them possible or their implications for social justice or power
imbalances.
In McNay’s view, this is the source of the ‘social weightlessness’59 –
an expression borrowed from Bourdieu – of a radical democracy which,
braced against its rejection of paternalism, ends up dangerously iso-
lated from daily practices and realities. For hidden behind the romantic
affirmation of equality are complex situations that cannot be simplified
56
Jacques Rancière, The Method of Equality. Interviews with Laurent and Dork Zabunyan,
trans. Julie Rose, Cambridge, Polity Press, 2016.
57
Lois McNay, The Misguided Search for the Political, Cambridge, Polity, 2014, p. 163.
58
Robert Castel, ‘L’autonomie, aspiration ou condition ?’, La Vie des idées, 26 March 2010.
59
McNay, Misguided Search, p. 3.
A Shared World 241
to a struggle been the ‘sans-parts’ and the rest. Certain ‘rights-

impoverished’60 individuals have only their minute share, which is
always merely something better than nothing.61 Like the figure of the
‘foreigner’ – often invoked as such in contemporary writing though it
encompasses such disparate situations – ‘the figure of the sans part
fetishizes the position of marginality and substitutes a model of abso-
lute exclusion for a more complex and nuanced account of the varying
dynamics of inequality’.62 Above all, a ‘quasi mystical’ vision of poli-
tics, seen as always transient and fleeting, prevents work from the inside
of the system to overcome structural inequalities.63
In other words: if democracy cannot be reduced to its regulatory ele-
ments, it also cannot easily manage without them except by sidestepping
the principle of popular self-legislation and renouncing solid forms of
social redistribution, which clearly assume the existence of some institu-
tional mechanisms. This argument certainly does not advocate abandon-
ing the term ‘human rights’, but rather calls for recognition of the fact that
claims to rights must be part of a collective reflection on the content of
public action that is likely to succeed in guaranteeing the social and
political capabilities of the individuals concerned. The proclamation of
human rights aims precisely to instil this political dimension of law,
moving beyond the ‘police’, in institutions: the function of human rights
is to maintain the institutor at the heart of the instituted.
A Shared World
A third confusion engendered by radical democracy philosophy arises
from the temptation to sidestep the need for a shared world in the name of
a legal subject divorced from membership of any stable group. For
Catherine Colliot-Thélène, contemporary legal pluralism provides an
incentive to move away from the classical notion of a demos as unified
community. She boldly suggests that claims to rights, which call time for
good on the determined demos, mean ‘leaving behind the idea or ideal of
a democratic community’.64 This is the danger of undoing the ties
between legal subject and community, writing off the need for a shared
60
Irène Khan, Pauvres en droits, Paris, Max Milo, 2009.
61
Peter Hallward, ‘Staging Equality: Rancière’s Theatrocracy and the Limits of Anarchic
Equality’ in Gabriel Rockhill and Philip Watts (eds.), Jacques Rancière: History, Politics
and Equality, Durham (NC), Duke University Press, 2009, p. 157, quoted by Mc Nay,
Misguided Search, p. 163.
62
McNay, Misguided Search, p. 163. 63 Ibid., pp. 160–167. Our emphasis.
64
Colliot-Thélène, La Démocratie sans demos, p. 23.
242 Conclusion
world as collateral damage and ignoring the fact that a right recognised
implies membership of a community.
Rancière’s argument that emancipation ‘does not mean seceding’ but
rather ‘affirming oneself as a partner in a shared world’ might be set
against Colliot-Thélène here. This assumes that it is possible, even if
appearances are deceptive, to play the same game as one’s opponent.65
This demand for a ‘shared world’ is furthermore at the heart of Arendt’s
thought, with her statement that the first loss ‘which the rightless suffered
was the loss of their homes, and this meant the loss of the entire social
texture into which they were born and in which they established for
themselves a distinct place in the world’.66 Clearly, the difficulty lies in
meeting this imperative for a shared world without automatically identi-
fying ‘home’ with membership of a specific national community. Though
Arendt strove (as discussed in Chapter 7) to break the automatic equation
of citizenship with nationality, it is as well to recall that she did not in fact
reject the idea of the state.
As Raphaëlle Nollez-Goldbach observes, Arendt distinguished
between the nation, that ‘closed society to which one belongs by right of
birth’ and the state, an ‘open society’ which ‘knows only citizens no
matter of what nationality; its legal order is open to all who happen to
live on its territory’.67 Her philosophy appears to call for relativisation
rather than abandonment of sovereignty, to be achieved by concomitant
internal and external processes: expanding checks and balances, and
reinforcing international institutions and legal systems. Arendt’s thought
enables us to advocate democratisation and a judicious opening of bor-
ders by stating firmly that those within the territory are also of the territory.
Or, to borrow Rainer Forst’s conceptualisation, human rights assume the
moral imperative that any human being must be subject only to those
institutional norms or actions that can be justified to her. This ‘right to
justification’ means that the aim of human rights is first of all ‘internal’:
before placing limits on state autonomy, they must first ensure their
legitimacy with all the actors they affect.68
The implication here is that to break up the state form in the name of
popular agency would in reality support neoliberalism and ‘shelve the
ambition of achieving a society of equals’.69 As things stand, the state is
65
Rancière, Aux bords du politique, p. 91. 66 Arendt, Origins, p. 293.
67
Hannah Arendt, ‘The Nation’, The Review of Politics, 8, 1, January 1946, p. 139, cited by
Raphaëlle Nollez-Goldbach, Quel homme pour les droits?, p. 129.
68
Rainer Forst, ‘The Justification of Rights and the Basic Right to Justification: A Reflexive
Approach’, Ethics, 120, 4, 2010, pp. 711–740.
69
Pierre Rosanvallon, ‘Postface. Retour sur mon travail’ in Sarah Al-Matary and
Florent Guénard, La Démocratie à l’œuvre. Autour de Pierre Rosanvallon, Paris, Seuil,
2015, p. 249.
A Reflexive Conception of Human Rights 243
the only space that exists for social redistribution – or at least the only one
that continues to exist, for better or worse. Though the legal state has to
some extent expanded to the European level, the welfare state has not,
and nor is it likely to any time soon with a European budget now below
1 per cent of GDP. Claims to rights, in other words, are indelibly bound
up with maintaining an imperative of ‘communality’. The strength of this
concept proposed by Pierre Rosanvallon lies in its reminder that the aim is
not to restore a mythical, largely imagined and monolithic ‘community’ in
counterweight to claims for individual rights.70 It is not the omnipotence
of human rights, so far from being achieved in practice, that is a concern
today, but the dislocation of sharing or collectivity into a juxtaposed set of
selective and segregated ‘identities’ or similarities, marked out by differ-
ent types of eviction and distinction at all social levels; the phenomenon of
tax exile within Europe is merely the tip of the iceberg here, if one of the
most flagrant signs. The questions arising are all about this ‘generalised
social separatism’, ‘not the diffuse progress of an invasive and deplorable
individualism’.71
A Reflexive Conception of Human Rights

The ‘political’ conception of human rights we advocate here is not
unfounded idealism. In their unilateralism, ‘radical’ critiques do have
the merit of reminding us that any politics under the auspices of human
rights is unavoidably ambivalent. It may be linked to creative political
invention in one case, and in another fall victim to instrumentalisation
born of the will to dominate. In this sense, the political conception of
human rights is also a reflexive one, conscious of the perversions that the
vocabulary of human rights can engender.
These perversions are most apparent at the international level, for
instance in the limitless damage wrought by the policies of George
W. Bush, which exploited an empty rhetoric of human rights to further
the cause of thinly veiled Western imperialism. As Mireille Delmas-Marty
(hardly an obvious critic of human rights) observes of anti-universalist
arguments today, ‘it is easy enough to denounce the absurdity of legal
humanism’ given how often ‘the shield of human rights becomes the
sword of repression, intervention becomes humanitarian war, and
70
For a more extensive look at Pierre Rosanvallon’s work on the distinction between rights
and democracy, see Justine Lacroix, ‘Lutte des droits et complication démocratique. La
démocratie intégrale selon Pierre Rosanvallon’ in Sarah Al-Matary and Florent Guénard,
La Démocratie à l’œuvre, pp. 145–164.
71
Pierre Rosanvallon, La Société des égaux, Paris, Seuil, 2012, p. 385.
244 Conclusion
international criminal law comes under suspicion of bias or even

hegemonic aims’.72
However, the violence of this neo-conservative assault on the content of
human rights should not blind us. As James Ingram points out, it is
important to challenge the automatic association of human rights with
foreign invasion. It is fair to say that most populations would refuse to
have human rights imposed on them by force, but more correct to say that
they would refuse having anything imposed on them by force. What is
rejected is foreign domination – not, in the name of some unspecified
cultural difference, respect for fundamental rights of the person.73 If the
moral basis for human rights is respect for an autonomous agent within
his rights to demand justification for any coercive action, human rights
imposed by force are a contradiction in terms. Focusing on the standpoint
of the actors concerned allows us to distinguish ‘human rights politics’
from a ‘humanitarian politics’, which many authors have revealed as open
to bureaucratic and paternalistic corruption.74
A politics based on human rights puts the people involved at the centre
of the process, even when they invoke international treaties – the point of
which is precisely to allow citizens to criticise their own governments.75
What distinguishes human rights from mere charity is the fact that they
seek not to protect individuals but to express the autonomy of free and
equal persons.
Given this, the call to see things from the vantage point of those
involved must not obscure the real obstacles that stand in the way of
emancipation for vulnerable individuals. The work of volunteers who
work day in day out to provide food, legal assistance or language teaching
is by no means always about condescension or pity. The concern to avoid
victimisation and a vocabulary of compassion should not blind us to the
continuing importance of mutual aid and solidarity initiatives. The fact
remains that if paternalism is sometimes inevitable in the quest to help
oppressed people get their voice heard, it should as far as possible aim to
help them conceive of themselves as autonomous individuals.76
72
Mireille Delmas-Marty, Résister, responsabiliser, anticiper, Paris, Seuil, 2013, p. 8.
73
James Ingram, Radical Cosmopolitics, The Ethics and Politics of Democratic Universalism,
New York (NY), Columbia University Press, 2013, p. 185.
74
See especially: Costas Douzinas, Human Rights and Empire. The Political Philosophy of
Cosmopolitanism, New York (NY), Routledge, 2007; Nicolas Guilhot, The Democracy
Makers. Human Rights and the Politics of Global Order, New York (NY), Columbia
University Press, 2005; Stephen Hopgood, The Endtimes of Human Rights, Ithaca (NY),
Cornell University Press, 2013; David Kennedy, The Dark Sides of Virtue. Reassessing
International Humanitarianism, Princeton (NJ), Princeton University Press, 2004.
75
Jean L. Cohen, Globalization and Sovereignty. Rethinking Legality, Legitimacy and
Constitutionalism, Cambridge, Cambridge University Press, 2012, p. 217.
76
We owe this distinction to Rainer Forst.
A Reflexive Conception of Human Rights 245
‘A politics of human rights must also be a politics of the second order or

a “politics of politics” as it were, reflecting the consequences of its
insurrections and resisting the modalities of its perversions’77 – remem-
bering, however, that hypocritical appropriation of a principle does not
damage the principle itself. At a time when international protection of
human rights is caught in a firestorm at the very heart of the European
Union – one of the most striking symptoms being the former British
Prime Minister David Cameron’s attempts to exempt his country from
the obligations of the European Convention on Human Rights – the left
could surely do better than sending empty barbs at the alleged omnipo-
tence of a term that is in fact highly fragile.
A ‘political’ conception of human rights thus invites us to move beyond
the two-way alternative between fundamentalism about rights on the one
hand and sceptical detachment on the other. Against rights fundament-
alism, the political conception of human rights reminds us that they are
always part of a given historical situation, in the face of a particular
government, and that their effects in practice may not be those we expect.
Against sceptical detachment, meanwhile, it underscores their role in
criticising public institutions and existing lifestyles, and brings to the
fore their importance in enabling democratic invention. A political con-
ception refuses to leave the vocabulary of human rights to the mercy of the
covertly complicit forces of neoliberalism on one hand and a kind of false
republicanism on the other, founded on a secular catechism that all too
conveniently justifies new forms of exclusion.78
This emphasis on the fertile ambivalence of a politics of human rights
must nonetheless take care to avoid two mistakes commonly made today.
The first is what might be called a ‘hyper-Foucauldian’ bent, far
outstripping the positions of Foucault himself. This sees human rights
as rhetorical weapons imposed by the configurations of social battles, able
to serve different purposes depending on how these battles evolve – which
are therefore the only means of evaluating rights. This angle is exemplified
by the writings of the legal theorist Martti Koskenniemi. As we have seen,
Koskenniemi puts forward a vehement critique of human rights for mix-
ing ‘communitarian’ subject matter with ‘radical’ intentions, owing to the
perverse effects of their proceduralisation and their inability to offer
a solution to the legal dilemmas they produce. This critique might appear
incontrovertible. However, it leads to a rehabilitation of human rights if
we understand them as a flexible language into which social demands may
77
Étienne Balibar, ‘On the Politics of Human Rights’, Constellations, 20, 1, 2013, p. 20.
78
See Jean Baubérot, La Laïcité falsifiée, Paris, La Découverte, 2014, and André Tosel,
Nous citoyens laïques et fraternels?, Paris, Kimé, 2015.
246 Conclusion
be translated, working against the danger of backwards movement seen

above all in British attacks on the European Court of Human Rights, the
authoritarian turn in Hungary or the rise of far-right parties in France and
Finland.79 It is difficult here not to think of Marx explaining to Engels
that he had agreed to incorporate a few clauses on rights and justice into
the statutes of the International Workingmen’s Association, thinking
them ultimately meaningless but letting them through because they
were rendered harmless by the rest of the document.
Yet if human rights certainly are a weapon, they are not a neutral one.
Not only are their theoretical explanations applicable to certain political
measures but not others; beyond this they weigh heavily on the measures
they do inform, exerting either inhibiting or dynamic effects.
The undeniable plasticity of human rights, then, does not mean that
they must be reduced to a strictly strategic role.
The second mistake consists in historicising human rights in such a way
as to identify their meaning exclusively with their context, no longer
understood in a tactical way but rather as the ‘historical essence’ which
fully explains their ideal meaning. The ‘truth’ or essence of human rights,
in this argument, is shown by the institutional realities they enable and
from which they are inextricable. As discussed, this is Samuel Moyn’s
position: his staunch rejection of essentialised ideas paradoxically leads
him to essentialise human rights in relation to their original context – that
of nation-state construction. He thus obliterates all conceptual elabora-
tions and abortive attempts which show that the idea of human rights has
since its earliest days exceeded its nation-state-based incarnations, and
harboured a cosmopolitan potential that is far more trenchant than
merely compassionate humanitarianism. In the face of which we can
usefully recall – in terms of a dialectic rather than continuist genealogy –
the crucial lineages (or ‘constellations’, to borrow Walter Benjamin’s
phrase) between eighteenth- and nineteenth-century struggles for
emancipation and those of today, which, whatever their potential for
perversion and corruption, continue to imbue human rights with the
‘explosive political force of a concrete utopia’.80
79
This was the message behind his paper ‘Human Rights – so 90s’ at the conference held at
the Université libre de Bruxelles on 4 May 2015. For an online version, see: www
.oxfordmartin.ox.ac.uk/event/1823
80
Jürgen Habermas, ‘The Concept of Human Dignity and the Realistic Utopia of Human
Rights’, Metaphilosophy, 41, 2010, p. 466.
Index
Abécédaire (Deleuze), 56–57 anti-Semitism, 7–8, 160, 192. See also

Abensour, Miguel, 207–208, 221–222 Dreyfus Affair; Holocaust;
abolition, 6 totalitarianism
abortion, 36 antitotalitarian movement, 27
absolutism, 45, 102, 114–115, 153–154 Arab-Jewish cooperation, 218–219
individual rights and, 38 Arendt, Hannah, 11–12, 24, 216–222,
monarchical, 154 238–239
Address to the British Colonists in North Burke and, 210–212, 213
America (Burke), 65–66 on citizenship and nationality, 242
Agamben, Giorgio, 212, 213, 214, cosmopolitanism and, 220–221
227–228 on Declaration of Independence of
alienation, 159–160, 166, 178, 179 1776, 215
Allende, Salvador, 15 on Declaration of the Rights of Man and
Alston, Philip, 15–16 of the Citizen 1789, 209–210, 214, 216
Althusser, Louis, 159, 178, 179 on Dreyfus Affair, 215
American Bill of Rights of 1791, 65 on education crisis, 208
American foreign policy, 212–213 on equality, 224
American Revolution, 61, 89 French reception of, 207–208
Amnesty International, 15, 17 on homeland, 218
Anarchical Fallacies (Bentham), 99 on humanism, 212–213
anarchism, 47–48 interwar human rights activists and,
anarchy, 100–108 237
despotism and, 67 Lefort and, 212, 217–218, 223–224
digest of anarchy, 67–68 on liberty, 223
Anarchy, State and Utopia (Nozick), 98 Marx and, 227
ancien régime (France), 142–143, 155. See on paradox of human rights, 208–210
also French Revolution; monarchy on poverty, 226
Anglican Church, 60, 65. See also Rancière and, 223–224
Christianity; established church secondary literature on, 225–226
Anglicanism, 127–128 Aristotle, 29–34, 35, 67, 199
An Answer to the Declaration of the American eudaimonia, 82–83
Congress (Bentham), 93 on friendship, 203–204
anthropological basis for human rights, phronesis, 83
221–222 Aron, Raymond, 12, 40, 138, 207
anticolonial activists, 14–15 asylum seekers, 225–226, 227, 230
antidemocratic thought, 52 atheism, 153
antiliberalism, 46–47, 52 Audard, Catherine, 105
antimodern critique, 187–188 Audier, Serge, 125–126
destruction of just order, 35–40 Aulard, Alphonse, 7–8
human rights against politics, 40–43 authoritarianism, 38, 107, 166
antimodern thought, 30, 49–50 non-authoritarian regimes, 73
247
248 Index
authority bourgeois
demise of, 1 ideology, 157–158, 160
sources of, 80 interests, 162–163
autonomy, 31, 125 property, 180–181
civic, 204 Bourgeois, Léon, 123
collective, 54, 190 Boutmy, Emile, 6–7
democratic, 236 Brahami, Frédéric, 82
individual, 54 British constitution, 64, 76
private, 26 Brown, Wendy, 53, 55–56, 57–58
public, 26 Buchanan, Allen, 163, 176, 178
state, 242 Burke, Edmund, 2–3, 18, 37, 58, 59, 60–62,
Azouvi, François, 15 65–66, 67, 68, 69, 84–85, 149
ambiguities of, 82–90
Badiou, Alain, 55 Arendt and, 210–212, 213
Balibar, Etienne, 17, 91, 125, 166, Bentham and, 100–108
221–222, 235 charge of incoherence leveled against, 64
Battle of Eylau, 150 coherence of Burke’s thought, 62–66
Bauer, Bruno, 158, 164–165 contractualist terms of, 81
Beccaria, Cesare, 180 on Declaration of the Rights of Man and
Beitz, Charles, 25 of the Citizen 1789, 67, 214–215
Benjamin, Walter, 246 exceptional status of, 63
Benoist, Alain de, 41, 42–43 on metaphysics, 80
Bensaïd, Daniel, 213 particularism of, 128
Bentham, Jeremy, 58, 82–83, 93, 98–100, on prescription, 129–130
108–111 property, inequality and inheritance,
Bonald and, 130–131 78–79
Burke and, 100–108 relativism of, 79
on collective utility, 92–93 on rights of man, 73
Comte differences with, 92 utilitarianism and, 74
fear of ghosts, 94 Whig thought and, 81
on law, 95 Bush, George W., 243–244
Marx and, 174
on paraphrasis, 95 Cabanes, Bruno, 12
on social contract, 94 Cameron, David, 245
Bergier, Nicolas-Sylvestre, 130 ‘Can a Marxist Believe in Human Rights?’
Bernardi, Bruno, 24 (Lukes), 157
Bidet, Jacques, 33, 233 Capital (Marx), 174
Bill of Rights, 44, 65, 214–215 capital punishment, 39
Binoche, Bertrand, 102–103, 160 capitalism, 161
biopolitical tyranny, 38 contradictions of, 176
The Birth of Biopolitics (Foucault), 107–108 dynamics of capitalist accumulation,
Blackburn, Robin, 21 170
Bloch, Marc, 14 exploitation by, 173, 174, 175
Bodin, Jean, 189–190 globalisation and, 235
Bonald, Louis de, 58, 128–129, 135–136, paradox of, 172–173
138, 141–143 totalitarian capitalism, 39
Bentham and, 130–131 wrongs of, 172
on liberalism and democracy, 139–140 Carré de Malberg, Raymond, 9
Maistre and, 128–133 Carter, Jimmy, 32
on monarchy, 143–144 Cartesian reason, 73
on unequal rights, 133–134 case law, 74–75. See also Common Law
on war, 194 Cassin, René, 12
Boulangist crisis, 7–8 Castel, Robert, 125
Bourdieu, Pierre, 95, 240–241 Castoriadis, Cornelius, 237
Bourg, Julian, 27–28 categorical imperative, 164
Index 249
Catholicism, 11, 75, 131, 153, 154. See also Communist Manifesto (Marx), 157–158,
Christianity; counter-revolutionary 180, 182–183
thought; Thomism communist systems, 14–15
Catholic conservatives, 58 communitarian critique, 31
Catholic counter-revolutionaries, ascendancy of rights and “good
80–81 life,”43–46
counter-revolutionism and, 193 democracy turning against itself, 46–53
monarchy and, 144 communitarian systems, 33–34
reactionary, 155 families and, 43–44
victory of, 155 community life, 1–2
Chambers, Samuel, 236 Compagnon, Antoine, 30, 39
Chartist movement, 6 competition (economics), 161,
children’s rights, 36, 37–38 174
Chomsky, Noam, 212–213 Comte, Auguste, 4, 5, 58, 108–112,
Christianity, 143, 153 114–115, 116–117, 119–120, 121–122
Christian personalist movements, 14 Bentham differences with, 92
theology, 35 Saint-Simonianism and, 111
Christofferson, Michael, 27 The Concept of the Political (Schmitt),
citizen rights, 167, 168, 189–190 199–200, 203
citizenship, 16, 17, 165, 225 conceptual history, 24
Arendt on nationality and, 242 conditional rights, 146
cosmopolitan form of, 217 Condorcet, Nicolas de, 92
republican, 52–53 Congress of Vienna, 152
civic desertion, 229–233 conscience, 117–118
civic republican writers, 43 conservatism, 101–102, 187
Civil Constitution of the Clergy, 151 conservative liberalism, 88–89
civil rights, 32, 68–73 liberal conservatism, 190
civil society, 51–52, 81, 87–88, 173 Considerations on France (Maistre), 127
class struggles, 121, 176–177 Constant, Benjamin, 74, 86, 104
class war, 158 Constituent Assembly, 18
classical antiquity, 172 constituent power, 205
Clémenceau, Georges, 215–216 Constitutional Project for Corsica
Cloots, Anacharsis, 19 (Rousseau), 202
Cobban, Alfred, 62–63, 70–71 constitutional rights, 71, 129–130
Cohen, Jean, 17, 232, 244 constitutionality of laws, 9
Cold War, 15 constitutions, 147
collective action, 56 natural, 148–149
collective happiness, 124 contractualism, 203
collective utility, 4, 92–93, 113 Contribution to the Critique of Hegel’s
collective will, 202 Philosophy of Right (Marx), 159–161
collectivity, 33–34 Cortès, Donoso, 193
Collège de France, 106 cosmopolitanism, 19, 217
Collin, Thibaud, 50 Arendt and, 220–221
Colliot-Thélène, Catherine, 219, 239, cosmo-theological order, 79–80
241–242 costs of rights, 33
Commentaire (journal), 48–49 Council of Europe, 230
common good, 43, 109, 194 counter-Enlightenment thought, 30, 127
Common Law, 74–75, 87 counter-revolutionary thought, 4, 30,
jurisprudentialism, 76 58, 59
communism, 122, 158, 169–170 Catholic counter-revolutionaries,
communist individualism, 183 80–81, 193
defined in On the Jewish Question (Marx), Cours de philosophie positive (Comte), 116
171–172 Cranston, Maurice, 32
emancipation through, 188 crimes against humanity, 13–14, 220
liberties useless under, 176–177 criminals, 226
250 Index
Critique of the Gotha Program (Marx), 165, unbounded, 79

178–180 democratisation, 55–56
cultural pluralism, 22 of political representation, 60
cultural selection, 88 denationalisation, 209
despotism, 42, 71, 100, 117. See also
d’Allones, Myriam Revault, 217–218 totalitarianism
Darwin, Charles, 87 anarchy and, 67
death penalty. See capital punishment legal, 132
Le Débat (journal), 48 revolutionary despotism, 87
Debray, Régis, 13, 50 difference, 56, 125
Declaration of Independence of 1776, digest of anarchy, 67–68
13, 215 dignity, 37–38, 105, 119, 120
Declaration of Rights 1793, 7, 8 Directorate (French Revolution), 169
individualism and, 10 disabled people, 230
universal nature of, 75 disciplinary power, rule of law and, 54
Declaration of the Rights of Man and of the Discipline and Punish (Foucault), 26–27
Citizen 1789, 9, 47, 100, 117–118, disinstituted equality, 141–143
132–133, 134, 144–145, 161–162 distributive justice, 170, 177–178
anti-consequentialism of, 101 Marx on, 177
Arendt on, 209–210, 214, 216 divine law, 80, 82, 144
Article 2 of, 184 divine rights, 152
Article 3 of, 17–18, 149, 190 divine will, 134
Bentham on, 98–100 division of labour, 113, 122–123, 137,
Burke on, 67, 214–215 155–156, 172–173
Maistre on, 149 division of political labour, 142
‘The Decline of the Nation-State and the divorce, 136, 138, 142–143
End of the Rights of Man’ (Arendt), domination, 185, 194–195
206, 208, 213, 224–225 of money, 173
decolonisation, 14–15 struggle against, 54, 235
deductive reasoning, 73–74 Donzelot, Jacques, 123
Deleuze, Gilles, 26–27, 56–57 double-speak, 216–217
Delmas-Marty, Mireille, 224–225, Dreyfus Affair, 5–6, 7–8, 10–11
243–244 Arendt on, 215
democracy, 2, 20, 39–40, 79, 123–124, Duguit, Léon, 9, 123
131–132, 202, 204, 235 Durkheim, Emile, 19, 122–123, 155–156
anti-democratic liberals, 194–195 sociology of, 238
Bonald on liberalism and, 139–140 duties, 96
democratic autonomy, 236 ancien régime as pyramid of, 155
democratic emancipation, 162 inequality of, 141
democratic equality, 199 social system of, 112–115
democratic rights, 185 The Duties of Man (Mazzini), 4–5
democratic societies, 1
embedded democracy, 90 ecclesiastical rights, 152–156
against liberalism, 195–198 economic relations, 171
monarchy and, 141–142 economic rights, 32
paradox of, 198–199, 202–203 introduction of, 32–33
parliamentary, 56, 119 egalitarianism, 91, 106
political foundation of, 42 Eichmann in Jerusalem (Arendt), 220
radical, 186, 188, 190, 235, 236, Eichmann trial, 209
240–242 Elster, Jon, 158–159
Rancière on, 239 emancipation, 44, 233–237
representative, 93 communist, 188
savage democracy, 221, 232 democratic, 162
suppression, 182 human, 53–54
turning against itself, 46–53 human rights against, 53
Index 251
individual, 158 freedom of speech, 44–45

Jewish, 131 French Church, 65
material conditions of, 170 French Communist Party, 27
political, 53–54, 162, 179–180 French National Assembly, 68
radical, 29–34 French political philosophers, 8–9
Rancière on, 242 French political thought, 26–29
social, 166, 179–180 French republicanism, 8
Marx on, 170 French Revolution, 2–3, 140
empiricism, 74. See also positivism; destruction of symbolic order of society
sociology (Maistre), 144–145
Engels, Friedrich, 159, 180, 183–184 Directorate, 169
Enlightenment principles, 4 imperialism and, 150
counter-Enlightenment, 30, 127 legislative actions of, 10
Scottish Enlightenment liberalism, 62, 85 limitation of political power and
equal marriage, 1 (Foucault), 106
equal rights, 97–98 Maistre on, 150
equality, 116–120 property rights and, 10
Arendt on, 224 radical novelty of, 61
democratic equality, 199 revulsion at, 4
instituted and disinstituted, 141–143 Terror, 8–9, 19–20, 42, 115, 168–169
equity, 74–75 women during, 223–224
essentialism, 17 Freund, Julian, 40, 41, 42–43
established church, 70, 79 friendship, 203–204
eudaimonia (Aristotelian), 82–83 fundamental freedoms, 33
Europe fundamental rights, 34, 45–46
Maistre on sovereignty in, 147–148 Furet, François, 47
Muslims in, 39
tax exile in, 243 Ganzin, Michel, 70–71
European Convention on Human Rights Gauchet, Marcel, 2–3, 47–50, 189,
1950, 14, 224–226, 245 232–233
European Court of Human Rights, Gehlen, Arnold, 89
225–226 general spirit, 149–150
European public law (jus gentium), 150, 201 general will, 7, 137–138, 139
European Union, 230, 245 ambiguities of, 202–205
Geneva Convention on the status of
families, 136, 231 refugees 1951, 225
communitarian systems and, 43–44 genocide, 14, 32. See also anti-Semitism;
fatalism, 55–56 Holocaust
feminism, 31, 56, 57–58. See also women’s Gentile, Giovanni, 52
rights George III (King), 75–76
Ferry, Jean-Marc, 19, 182, 200–201 The German Ideology (Marx), 159, 171,
Ferry, Luc, 211–212 182–184
feudal system, 115 ghosts, 94
Feuerbach, Ludwig, 159–160, 162, Gilson, Etienne, 11
183–184 Glendon, Mary Ann, 46
Forst, Rainer, 242 globalisation, 235
Foucault, Michel, 26–27, 106, 107–108, Glorious Revolution of 1688, 89, 129
234–235, 245 Glucksmann, André, 27–28
Marx and, 53–54 God, rights of, 130, 135
A Fragment on Government (Bentham), 94 governmentality, 107
free market, 56, 140 liberal, 107–108
freedom of association, 166, 167 gradualist reformism, 95
freedom of conscience, 7, 39, 69–70, 116, Gramsci, Antonio, 159
117–118, 155, 164–165, 180 Grundrisse (Marx), 175
freedom of press, 167 Guattari, Félix, 56–57
252 Index
Guilhaumou, Jacques, 110, 196 inalienable rights, 37

Guilhot, Nicolas, 31 Indian rights, 63, 75
Gulag Archipelago (Solzhenitsyn), 27, 28 individual rights, 1–2, 5, 35
Gündogdu, Ayten, 226–227 absolutism and, 38
Gurvitch, Georges, 124 fragmentary effects of, 231
international recognition of, 13–14
Habermas, Jürgen, 26, 182 law and, 36
Halévy, Elie, 83 neoliberalism and, 33–34
Hart, Herbert, 94–95, 98 rights of man and, 69
Hastings, Warren, 66, 68 social issues framed as, 45
Hauriou, Maurice, 9 totalitarianism and, 49
Hayek, Friedrich, 85, 88, 107 individual wills, 137–138
Hazareesingh, Sudhir, 229 individualism, 48
hedonism, 82–83 communist individualism, 183
hedonist consumerism, 230 Declaration of Rights 1793 and, 10
Heidegger, Martin, 38, 89 individual wills, 7
Helsinki Final Act of 1975, 21 individualist conception of law, 140
hierarchical order, 142–143 liberal, 203
traditional hierarchies, 195 neoliberalism and, 56
historicism, 178, 187, 246 possessive, 168
historiographical debate, 13 postmodern, 2–3
Hobbes, Thomas, 35, 38, 40, 81, 130 radical, 49
holism, 109 of rights of man, 153–154
Holmes, Stephen, 52 selfish, 78, 101
Holocaust, 14 spineless, 230
‘discovery’ of, 15 utilitarianism and, 105
memory of, 20–21 individuality
The Holy Family (Marx), 160–161, 165 social form of, 134–135
Holy Spirit, 39 social relationship creating, 171
homeland, 218 industrialisation, 122–123
Hopgood, Stephen, 31 inequality, 78–79, 91, 137, 141–142,
The Human Condition (Arendt), 207, 222 175–176
human nature, 171 of duties, 141
Human Rights Watch, 17 of social relationships, 135–140
humanism, 27, 212–213 violence of, 174
humanity Ingram, James, 224, 237, 244
history of, 112–113 inheritance, 73, 77, 78–79, 142
the people against, 198–201 law of inheritance, 77–78
human-rights-ism, 1–2 instituted equality, 141–143
Hunt, Lynn, 13 institutional hierarchies, 67
insurrection, 71
identity-with-self, 199 integrity, 105
ideology intellectual property, 122
bourgeois ideology, 157–158, 160 International Covenants of 1966, 3
Marxism critique of, 159–160 international humanitarianism, 22
of rights of man, 159, 171 International Workingmen’s Association, 6
imperialism, 150, 192, 207–208. See also intersubjectivity, 125–126, 222
neo-imperialism interwar human rights activists, 237
French Revolution and, 150 interwar period, 3–12
imperialist racism, 214 interwar refugees, 211
liberal, 58 Iraq, 55, 56
nationalism and, 213–214 Irish Catholic rights, 63, 75
of subjectivity, 212 Isaac, Jeffrey, 216–217
Western, 243–244 Islam. See Muslims
impolitical politics, 41 Israel, 209
Index 253
Jackson, Andrew, 2–3 Maistre on, 146, 147

Jacobins, 140 of monarchy, 144
Jaurès, Jean, 124 political laws, 80
Jellinek, Georg, 6–7 sovereignty and, 145
Jews, 14, 15 Law of the Maximum, 18
Arab-Jewish cooperation, 218–219 Lazare, Bernard, 215–216
emancipation of, 131 Le Chapelier law, 167
Jouanjan, Olivier, 191 League of Human Rights (Ligue des droits de
judicial review, 9, 34 l’homme), 7–8
judiciary, role of, 34 League of Nations, 11–12
Judt, Tony, 5 Lefort, Claude, 17, 28–29, 47–48, 51, 166
jurisprudence. See case law Arendt and, 212, 217–218, 223–224
jurisprudentialism, 82 criticism leveled at, 232
English Common Law, 76 critiques of, 51
historicism and, 187 on misuse of democracy, 233
jus gentium (European public law), 150, 201 savage democracy of, 221, 232
jusnaturalism, 82, 92, 114 vision of, 232–233
just society, 29–34, 36 legal despotism, 132
justice, 55, 70–71, 181. See also distributive legal formalism, 193–194
justice; social justice legal personhood, 238
Marx on, 171 legal recourse, 155
original justice, 74 legal relations, 171
transactional, 177 legal theory, 9, 43
Lenin, Vladimir, 182
Kant, Immanuel, 19, 133, 164 Leninism, 11, 184–185. See also Marxism
Kantian philosophy, 10 Leopold, David, 158, 163–164, 165–166
Karsenti, Bruno, 111, 133 Letters on a Regicide Peace (Burke), 18, 68
Kelsen, Hans, 199–200 Lévy, Bernard-Henri, 27–28
Kennedy, David, 31, 53 liberalism, 58, 86–87, 88, 191–192
Kervégan, Jean-François, 189, 191 anti-democratic liberals, 194–195
Kesby, Alison, 239 antiliberalism, 46–47, 52
Kissinger, Henry, 20 Bonald on democracy and, 139–140
Koselleck, Reinhart, 24 conservative liberalism, 88–89
Koskenniemi, Martti, 31, 45–46, 53, democracy against, 195–198
245–246 elitist, 52–53
Kristol, Irving, 32, 214–215 individualist, 40
Kymlicka, Will, 177, 231 liberal conservatism, 190
liberal imperialism, 58
Laborde, Cécile, 43, 48, 208 rejection of, 128, 131–132
labour unions, 119. See also capitalism; Scottish Enlightenment, 62, 85
freedom of association social, 124
Labriola, Antonio, 169, 170 liberal-libertarian left, 51
Lagrou, Pieter, 20 libertarianism, 33, 221
laissez-faire economics, 58, 106, 107. See liberty, 33, 39, 56, 65, 88, 116–120, 197
also capitalism; utilitarianism Arendt on, 223
Lasch, Christopher, 46 desire for, 60
The Last Utopia: Human Rights in History equality of, 125
(Moyn), 14, 21 political, 163
Laval, Christian, 109, 110 public liberties, 77
law, 35–36, 234–235 useless under communism, 176–177
ambiguities of, 54 Ligue des droits de l’homme (League of
Bentham on, 95 Human Rights), 7–8
generality of, 74–75 Lochner era, 11
individual rights and, 36 Locke, John, 4, 62
individualist conception of, 140 Louis XIV (King), 154
254 Index
Louis XVI (King), 132–133 on universal rights, 157–158

Lukes, Steven, 157, 185–186 Wood on, 177–178
Marxism, 157–159, 236. See also
Macherey, Pierre, 109, 133 communism
MacIntyre, Alasdair, 35–36 analytical, 159
Magna Carta, 175 ideology critique by, 159–160
Maistre, Joseph de, 58, 59, 80, 96, 127, mass movements, 203
130, 143–145, 153–155 materialist historicism, 171
Bonald and, 128–133 Maurras, Charles, 10, 18, 96, 123
Congress of Vienna and, 152 Mazzini, Giuseppe, 4–5
on Declaration of the Rights of Man and McCann, Michael, 234
of the Citizen 1789, 149 McNay, Lois, 240–241
divine rights and, 152 means of production, 123, 160–161, 169,
on French Revolution, 150 170, 171, 173
on law, 146, 147 Meier, Heinrich, 191, 192–193
on monarchy, 143–144 mercantile relations, 173
on resistance, 148 metaphysical rights, 92, 109–110,
rights of man rejection by, 151 112–115, 211
on sovereignty in Europe, 147–148 metaphysics, 9, 61, 74, 128–129
majority rule, 39 Burke on, 80
Malberg, Raymond Carré de, 9 positivist critiques of, 118
Malebranche, Nicolas, 132 The Method of Equality (Rancière), 240
Manent, Pierre, 31, 47–50, 51, 230–231 Michéa, Jean-Claude, 51
Marx and, 50 Michelet, Jules, 9
Manuel républicain de l’homme et du citoyen Michels, Robert, 194–195
(Renouvier), 10 Middle Ages, 37–38
Maoism, 20 Milbank, John, 35, 36–37, 38
Maritain, Jacques, 11, 36–37 Moyn and, 39
market civicism, 33–34 Mill, John Stuart, 108, 177
market economies, 14–15 Milner, Jean-Claude, 2, 50
market freedom, 88 minorities, 11–12
market fundamentalism, 88–89 Mitterrand, François, 27
market rationality, 90 modernity, 30. See also antimodern critique
market relations, 174 liberal, 22, 31–32, 35, 192
marriage, 135–136. See also divorce; monarchy, 18, 138, 143
families Catholicism and, 144
of same-sex couples, 1, 38 constitutional, 60
Marx, Karl, 6, 13, 28, 38, 51–52, 53, 56, 58, democracy and, 141–142
122–123, 171–173, 174, 175–176, hereditary monarchy and inequality,
178–180 141–142
Arendt and, 227 law of, 144
Bentham and, 174 monarchical absolutism, 154
on distributive justice, 177 monarchist traditionalism, 194
early work of, 159–170 as only legitimate regime (Maistre/
Foucault and, 53–54 Bonald), 143–144
on justice, 171 monied interest, 67
legacy of, 186 moral equity, 74
Manent and, 50 moral rationality, 90
on property rights and egotism, 159, 161 morality, 113–114, 121
on property rights and exploitation, 174 neoliberalism veneer of, 54
realigned with human rights, 185 shared moral consensus, 118
on rights of man, 78, 182–183 Mosca, Gaetano, 194–195
on social emancipation, 170 Mouffe, Chantal, 45, 236
on social justice, 183 Moyn, Samuel, 3, 5–6, 8–9, 14, 15–16, 20–21
turning point in philosophy of, 171 Milbank and, 39
Index 255
Muslims Nouvelle Droite (New Right), 40–41,

in Europe, 39 204–205
Muslim headscarf, 56 Nozick, Robert, 25, 98
mutual recognition, 120 Nuremberg trials, 13–14
National Assembly, 167 objectivity principle, 41

national homogeneity, 199, 204 Ockham, William of, 35, 37
national religion, 154–155 oligarchy, 67
national rights, 209 On Revolution (Arendt), 208, 238
nationalism, 5, 7, 44 On the Jewish Question (Marx), 53, 158,
imperialism and, 213–214 159–163, 171, 182–183
national self-determination, 4–5 communism defined in, 171–172
nationality, Arendt on citizenship and, 242 opinion, 28
nation-states, 13–15, 57, 124, 212, oppression, 184
243–246 Order of Creation, 79–80
constraints on power of, 220 original justice, 74
decline of, 206, 208, 213, 224–225 Origins of Totalitarianism (Arendt),
as historically restricting force, 19 206–208, 215–216, 219, 238
no longer necessary, 124 Orwell, George, 51
natural constitutions, 148–149 Ost, François, 103
natural law, 11, 83–84, 94, 143–144, ostracism, 198–199, 203
145–146, 222 Outline of a Work Entitled Pauper
natural rights, 5, 9, 63, 68–73, 92–93, Management Improved (Bentham),
145–146, 216 107–108
socialism and, 10
natural selection, 87 Paine, Thomas, 59, 63, 102–103, 129–130
Nazis, 191–192 Panopticon, 107–108
atrocities of, 13–14 papal infallibility, 144, 153–154
Schmitt sympathies with, 190 paraphrasis, 95
negative freedom, 56 Pareto, Vilfredo, 107, 194–195
Negri, Antonio, 59–60 parliamentarianism, 196–197
neo-conservativism, 32, 90 parliamentary democracy, 56, 119
violence of, 244 particularism, 62, 128
neo-imperialism, 31–32 patriotism, 60–61, 153, 202
neoliberalism, 32, 54, 90, 242–243 Pendas, Devin, O., 13
cynicism of, 184–185 the people, against humanity, 198–201
dominance of, 52–53 personal development, 119
individual rights and, 33–34 personal freedom, 97, 106–107
individualism and, 56 persons, 134–135
totalitarian neoliberalism, 38 Pettit, Phillip, 43
neo-paganism, 40 phronesis (Aristotelian), 83
neo-republicanism (France), 43, 48, Piedmont-Sardinia, 151
52 pledge of allegiance, 44
new critiques of human rights, 29–34 Pocock, John, 59, 81, 85–86
New Philosophers, 28 police, 239
New Right (Nouvelle Droite), 40–41, political authority, 193–194
204–205 political community, 197–198
Nicolet, Claude, 8, 11 ‘political’ conception of human rights, 24,
Nietzsche, Friedrich, 105–106 53, 76, 208, 221–228, 236–237,
Nixon, Richard, 20 243, 245
nobility, 142 political discourse, 1–2
Nollez-Goldbach, Raphaëlle, 242 political division of power, 137
non-authoritarian regimes, 73 political domain, 191
Nonsense Upon Stilts (Bentham), 93 political equilibrium, 64–65
normalisation, 54, 233 political representation, 60
256 Index
political rights, 32, 68–73, 78–79, 120–122, Rancière, Jacques, 17, 52, 223–224,
163, 168, 216 235, 240
political théology, 81, 131, 191, 194 on democracy, 239
political theory, 23–24 on emancipation, 242
The Pope (Maistre), 144–145 rationality, 117
Book II of, 153–154 of historicity, 178
Popper, Karl, 33 Rawls, John, 25, 105
popular will, 201, 203 Raynaud, Philippe, 62, 85, 211
positivism, 108, 110, 114, 118, 120 Recherches sur la Révolution française
shared moral consensus under, 118 (Rehberg), 74
postmodern individualism, 2–3 reciprocity, 7, 120, 121, 219
poststructuralism, 26 redistribution, 120, 185, 242–243
poverty, 226, 227 Reflections on the Revolution in France
power relations, 173 (Burke), 59, 67, 69, 84–85, 212
practical reason, 73 reflexive conception of human rights,
practical viability, 32 243–246
practical wisdom, 73–74 refugees. See also Geneva Convention on
precarity, 183 the status of refugees, 1951
prescription, 129 interwar, 211
Burke on, 129–130 refugee status, 239
prescriptive constitutions, 76–77 Rehberg, Wilhelm, 59, 74, 84, 89
Pressensé, Francis de, 10–11 reification, 163–164
Price, Richard, 60, 63 relativism
primitive rights, 72 of Burke, 79
prisoners’ rights, 26 nihilist, 178
private property, 28, 91, 93, 197 relativised sovereignty, 220
progressive thinkers, 4 religion, 129, 160–161
progressivism, 58, 109, 187 fusion of politics and, 152–153
Projet de paix perpétuelle (Kant), 19 national religion, 154–155
proletariat, 120–121, 122–123, 142 religious alienation, 166
properties, rights as, 37–38 secular religion, 12
property rights, 78–79, 140. See also uniformity of, 153
communism; inheritance; religious freedom, 33, 69–70
Marxism religious tolerance, 65
egotism and (Marx), 159, 161 Renan, Ernest, 52
exploitation and (Marx), 174 Renaut, Alain, 211–212
Protestantism, 127–128 Renouvier, Charles, 10
Proudhon, Pierre-Joseph, 170 representation, 196
providentialism, 80, 81, 143–144 republicanism, 8, 47–48, 137, 189, 245
prudential law, 82 Resistance, the (France), 40
Prussian monarchy, 6–7 Restoration, 144–145
public actions, 103 revolt, 145–146
public debt, 67 revolutionary despotism, 87
public good, 132 revolutionary trauma, 59–60
public interest, 138 right of prescription, 73–82
management of, 138–139 right to insurrection, 118–119
public opinion, 200–201 right to revolution, 181–182
public sphere, 197–198, 230 rights of man, 16–21, 33, 72, 167, 168
public utility, 18 absolute principle of, 61
Burke on, 73
Quinet, Edgar, 9 ecclesiastical rights against, 152–156
ideology of, 159, 171
racial thought, 213 inconsistency in idea of, 139
racism, 214 individual rights and, 69
radical critique, 31, 53 individualism of, 153–154
Index 257
Maistre rejection of, 151 Smith, Adam, 85

Marx on, 78, 182–183 social atomisation, 233
real, 69 social conditions, 158
rights of nations against, 148–152 social contract, 81, 130
rights of society against, 134–135 Bentham on, 94
social rights and, 124 The Social Contract (Rousseau), 202
Rights of Man (Paine), 102–103 social democrats, 25, 124
rights of nations, 148–152 social developments, 34
rights of society, 134–135 social fragmentation, 31
rights to work, 33 social issues framed as individual rights,
rights-as-claims, 33 45
rights-as-freedoms, 33 social justice, 183
Robbins, Bruce, 17 Marx on, 183
Robespierre, Maximilien de, 4, 144, 169, social mobility, 142
182, 201 social movements, 17, 26
Roma people, 230 social property, 122–123
Roman Catholics, 151 social relationships, 136
Rosanvallon, Pierre, 243 divine will ordering, 134
Rousseau, Jean-Jacques, 4, 132, 137, essential inequality of, 135–140
176, 190 fragmentation of, 1
Schmitt and, 202 individuality arising from, 171
rule of law, 2, 64–65, 230 persons, 134–135
disciplinary power and, 54 social rights, 29, 32, 33, 124
Russian Revolution, 11 introduction of, 32–33
rights of man and, 124
Sade, Marquis de, 104 social theory, 3
Saint-Simonianism, 91, 92 social utility, 108–112, 119
same-sex marriage, 1, 38 socialisation, 112
Sandel, Michael, 43–44, 230–231 socialism, 58, 122, 179–180
Schmitt, Carl, 40, 52, 58, 155, 190–193, Guarantist, 6
199–200, 203 legal versions of, 172
Catholic counter-revolutionism of, 193 natural rights and, 10
Nazi sympathies of, 190 Saint-Simonian type of, 91
on parliamentarianism, 196 Socialisme ou Barbarie (journal), 28
political theology of, 194 Society of the Rights of Man and the
Rousseau and, 202 Citizen, 4, 7–8
on traditional hierarchies, 195 sociology
on war, possibility of, 193–194 Durkheimian, 238
Schumpeter, Joseph, 199–200 historically oriented, 113
scientific knowledge, 109, 117 legal, 231
Scottish Enlightenment liberalism, 62, 85 solidarism, 122–123
secret balloting, 197–198 solidarity
secular religion, 12 mechanical, 156
secularisation, violence of, 151 organic, 156
secularism, 69–70, 154 social, 113–114, 120–122, 123
self-determination Solzhenitsyn, Alexander, 27, 28
collective, 233 sovereignty, 7, 116–120, 152–153
national, 4–5 democratic, 198
selfishness, 100–108 institution of sovereign power, 139
Sen, Amartya, 25–26, 99 ‘King’s two bodies’, 198
Siedentop, Larry, 105 law and, 145
Sieyès, Emmanuel Joseph, 196 legal, 202
slavery Maistre on sovereignty in Europe,
abolition of, 6 147–148
in classical antiquity, 172 national, 14–15, 190
258 Index
sovereignty (cont.) Thomism, 11

peaceable recognition of foreign, monarchist traditionalism and, 194
150–151 Tocqueville, Alexis, de, 2–3, 6, 89–90
popular, 123–124, 138, 194–195 tolerance, 69–70
popular right to depose sovereign, torture, 32
129 prohibition on, 37
relativised, 220 Tosel, André, 181
rights of sovereignty against human totalitarianism, 20, 47. See also anti-
rights, 144–148 Semitism; antitotalitarian movement;
sovereign violence, 212–214 authoritarianism; despotism; Terror
theology and, 35 birth of, 222
unity of sovereign power, 143–144 denationalisation and, 209
of will, 35 French debate over, 207–208
Soviet Union, 20 individual rights and, 49
Spanish Inquisition, 131 right to insurrection as defense against,
Spinoza, Baruch, 40 118–119
spiritual power, 121 totalitarian capitalism, 39
Staël, Madame de, 86 totalitarian doctrines, 12
Stalinism, 184–185 totalitarian neoliberalism, 38
state assistance, 33 tradition, demise of, 1
state education, 200 traditionalism, 86, 89, 128
education crisis, 208 traditionalist nostalgia, 30
state of nature, 111 Traverso, Enzo, 206, 207–208
state power, 138 Troper, Michel, 32
state violence, 201 Trotskyism, 213
stateless persons, 208, 209 truth, 39
statism, 180 Tusseau, Guillaume, 120
status, 238–239 tyranny, 71, 100–108
Sternhell, Zeev, 86–87, 127, 211
Stoicism, 84 U.N. See United Nations
Strauss, Leo, 75–76, 84, 211–212 undocumented migrants, 227
structuralism, 26 United Nations (U.N.), 21
subjective rights, 30, 35 Universal Declaration of Human Rights
rejection of principle of, 40 1948, 3, 13, 14, 32–33, 37
subjectivist delirium, 40–41 universal rights, 22, 157–158
subjectivity, imperialism of, 212 universal suffrage, 109
sublime, the, 30, 84–85 universality, 61–62
Supreme Court, US, 44 utilitarianism, 4, 74, 82–83, 91–92,
103–104, 108–109, 110, 130
Taine, Hippolyte, 52 democratic utility, 125
Tassin, Etienne, 221–223 independence of governed and,
tax exile, 243 107–108
taxation, 18 individualism and, 105
temporal power, 121 laissez-faire economics and, 106
temporality, 103 liberal, 107–108
Ten Commandments, 134 utopia, 179
territorial annexation, 151 anti-political and moralising, 21
Terror (French Revolution), 8–9, 19–20, overinflated, 181–182
42, 115, 168–169
Texier, Jacques, 182 Van Parijs, Philippe, 33
theology Villey, Michel, 35, 63, 84, 211–212
Christian, 35 Vincent, Andrew, 15
sovereignty and, 35 violence, 36, 100
A Theory of Justice (Rawls), 25 of inequality, 174
Third Republic, 9, 10–11 legal recourse against, 155
Index 259
necessity of, 173, 181 wisdom, 73–74

of neo-conservativism, 244 women
of secularisation, 151 during French Revolution,
sovereign violence, 212–214 223–224
state, 201 Manent on, 230–231
virtue, 89–90 women’s rights, 6, 36, 92, 185
Volney, Constantin-François, 19–20 Wood, Allen, 177–178
workers’ associations, 167
Waldron, Jeremy, 3–4, 7, 96 workers’ rights, 185
war World War I, stateless people after,
Bonald on, 194 208, 209
class war, 158 World War II, 13
Cold War, 15
possibility of, 193–194 The Young Karl Marx (Leopold),
‘We Refugees’ (Arendt), 238 158
Weitz, Eric, 18
welfare state, 14–15 Zionism, 218–219
Whig thought, 4, 64–65 Zivi, Karen, 231–232
Burke and, 81 Zizek, Slavoj, 56, 212–213
Wiesel, Elie, 12 Zola, Emile, 7–8

(Human Rights in History) Justine Lacroix, Jean-Yves Pranchère - Human Rights On Trial - A Genealogy of The Critique of Human Rights-Cambridge University Press (2018)

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Human Rights on Trial

The ﬁrst systematic analysis of the arguments made against human

Justine Lacroix is Professor of Politics at the Université libre de

A full list of titles in the series can be found at:

Translated by Gabrielle Maas

Cambridge University Press is part of the University of Cambridge.

Introduction: From the Rights of Man to Human Rights? 1

We gratefully acknowledge the support of the European Research

Tour, Axel Gosseries, Ayten Gündogdu, Michel Hastings, Bonnie Honig,

Fragmented social relations, the twin demise of authority and tradition,

demands and limitations of community life (whether family, social or

understand the context around criticisms of human rights, we must start

The Decline or Dormancy of Human Rights:

nineteenth century. The ﬁrst has to do with the ‘revulsion’ occasioned by

co-founded the League of Human Rights (Ligue des droits de l’homme),

Tocqueville and Taine,27 wrote histories of the Revolution that also

minorities as one of human rights, the League of Nations meant nothing

The Revival of Human Rights Discourse

Declarations and that of 1948, stress that the contemporary idea of

sense – as linked to state-building. Their objective, he argues, was

thoroughgoing analysis. Several authors, both historians and legal

Rights of Man and Human Rights: Merely a Family

a document that grew out of a compromise between political actors of

As Eric Weitz rightly notes, Samuel Moyn superimposes the outline of

vision of an ‘immense congress of peoples’, in which the assembled races

“deposit” paid by a Western order to offset its perpetuation of oppression

Objectives and Structure of the Book

found in contemporary political thought? Or is there rather a true

However, as has been pointed out, we do not aim to write a narrative

ambitions, political theory cannot proceed without concern for this

The Rebirth of Human Rights in French Political Thought

such’,14 equating all forms of power with a will to domination whose

Lefort’s argument is not just that rights conceived as individual attributes

The New Critiques of Human Rights

Merleau-Ponty et la question de la “modernité”’ in Nicolas Poirier (ed.), Cornélius

the ascendancy of rights talk in modern political discourse’.23 It is impor-

democracies. What we might call the ‘communitarian’ critique by no

humanity beyond borders, and more in 1948’s introduction of economic

indistinguishable from other critiques that decry the damaging effects of

The Anti-modern Critique (1): Human Rights and

such thing as subjective rights, and to espouse them according to

duties, the Middle Ages were paradoxically more conducive to the

being freedom of conscience. It is telling that John Milbank is not

The Anti-modern Critique (2): Human Rights against

legitimation of irregularities, excesses and disorder’.59 Freund believes

As a political (not social) regime, democracy is founded on the

or economics, amongst other things’.67 Deﬁned like this, it is difﬁcult to

The Communitarian Critique (1): The Ascendancy of

or the brutality of power relations is a result of the rise in awareness of

The Communitarian Critique (2): Democracy Turning

liberalism during the 1980s in France after the anti-liberalism of the

have little in common. A former student of Claude Lefort, Marcel

ideology that accompanies it: the elevation of human rights as an

noticeable break with anti-modern thought: though the substance of their

thought and elitist liberalism to argue against democracy and the

The Radical Critique: Human Rights against

the ‘communitarian’ critique had already brought out: while human

‘extraordinary impoverishment of the active and activist value of

Edmund Burke’s Reﬂections on the Revolution in France, published

notion of a universal law which leaves no place for circumstance as

conservatives could condone his description of the French monarchy,

The Coherence of Burke’s Thought

appears according to Cobban ‘as an anomaly’.13 But the anomaly is not