More or less immediately following Liu Xiaobo’s death in 2017, I was asked to speak at a seminar bearing the name of this blog post at a time when it was unlikely that many from my home university, i.e. the organisers, would be presenting. Even though I could claim no expertise in either Liu as an individual or sinology more generally, I agreed because I thought that I might have something relevant to say about human rights. As it turned out, my contribution, entitled ‘Why Are Human Rights Important (Even For A Crit)?’ in the programme, fit in surprisingly well. I thank my co-speakers and other participants at the seminar, the real experts, for their encouragement.
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In the second main section of Charter 08 on ‘fundamental concepts’, human rights are defined in this way:
Human rights are not bestowed by a state. Every person is born with inherent rights to dignity and freedom. The government exists for the protection of the human rights of its citizens.
It is this type of liberal notion of human rights as some kind of stable substance (“human rights are this-or-that”) that one can somehow ‘have’ or ‘own’ that most critical scholars like me are weary of. For my part today, I would like to suggest another understanding of human rights, one that would not seem to be too farfetched in relation to the struggles that the legacy of Liu Xiaobo represents.
I take my cue from Claude Lefort, a French political philosopher (on Lefort, see e.g. Plot 2013). The main reason why Lefort’s name comes up so often in discussions about political theory is a distinction that he popularized between le politique or politics as a form of regime, usually translated as ’the political’, and la politique or social agency conflict-ridden by opposing and often irreconcilable interests, usually translated simply as ’politics’ (Lefort 1988). While ’politics’ in the second more conventional sense can be understood as the competition for power in all of its usual guises, Lefort’s use of the term ‘the political’, in turn, refers to the way in which a given society represents its own unity to itself as a collectivity. It could, then, be understood as a form of collective identity, a representation of the body politic through which society identifies itself claiming to be, for example, a ’liberal democracy’, or a ‘socialist state under the people’s democratic dictatorship’.
Lefort maintains that ’the political’ not only shapes collective life into more or less permanent social relations, but that it also stages individual interpretations of those relations. So individual interpretations as action require a setting, so to speak. Only these relations and individual interpretations of them can together provide form and meaning. In this sense, the dimensions of ’politics’ and ’the political’ are interwoven into one another so that the antagonistic or conflictual element of political action and activism is always reflected in a given society’s representation of itself. And vice versa. Neither dimension can exist independently of the other. So the human rights activism of Liu as something that we might call ‘politics’ in Lefort’s meaning only makes sense as a part of the collective self-representation of the ‘socialist state under the people’s democratic dictatorship’ to which he belonged.
Lefort elaborated in more detail two archetypal modern political ’regimes’, namely totalitarianism and democracy. As different as these regimes may be, they share a kinship even if they operate in diametrically opposite ways. In both totalitarianism and democracy, the regime of ’the political’ functions as a symbolic constitution in so far as it locates society’s unity at a particular point of power. As regimes, they are both attempts to respond to the same question, namely attempts to come to terms with the empty space that has been left behind after monarchical structures with their claim to the transcendental nature of the monarch’s divine power have lost their capacity to represent the corporeal unity of the body politic. Following the symbolic decapitation of the monarchical ruler, be it a king or an emperor, and the consequent dissolution of the kingdom or empire that he represented, power appears as an empty space. Democracy, in Lefort’s account, leaves that space empty. In the absence of kings, emperors, or, indeed, almighty political parties, those who exercise power can only be mortals who occupy positions of power temporarily or who can invest themselves in it only by force or cunning. Unity is unable to efface social division. This division is, Lefort claims, the true nature of democracy as a political regime:
Democracy inaugurates the experience of an ungraspable, uncontrollable society in which the people will be said to be sovereign, of course, but whose identity will constantly be open to question, whose identity will remain latent. (Lefort 1986a: 303-304)
In other words, the antagonistic and conflictual nature of ’politics’ that keeps the symbolic space of power empty is what characterizes ‘the political’ of the democratic regime. This is why we can depict Liu’s human rights activism as a ‘political’ struggle.
Totalitarianism, on the other hand, is an attempt to fill that space, to unify society by placing society itself in the empty space left behind after the regicide and the nonexistent body politic that dissolved with it. With violence and repression totalitarianism attempts (and I quote again) ’to weld power and society back together again, to efface all signs of social division, to banish the indetermination that haunts the democratic experience’ (end quote), or, in other words, to abolish the ’politics’ that would maintain the emptiness of that space. This describes well the environment in which Liu lived and worked. But please don’t get me wrong here: it describes well neo-liberal regimes, as well.
Lefort’s notion of democracy also has a legal dimension. It:
goes beyond the limits traditionally assigned to the état de droit. It tests out rights which have not yet been incorporated in it, it is the theatre of a contestation, whose object cannot be reduced to the preservation of a tacitly established pact but which takes form in centres that power cannot entirely master. (Lefort 1986b: 258)
Such rights are, indeed, ‘human rights’. Lefort’s position on rights may seem curious for a critical political theorist. And it has a very particular history. Unlike their Anglophone counterparts, French representatives of the so-called ‘post-Marxist’ or ‘radical democratic’ movement entertained a more optimistic view on the revolutionary potential of human rights. After decades of Marxist human rights critique, the discussion in France took this decisive turn in 1980 with Lefort’s seminal article ‘Politics and Human Rights’ (Lefort 1986b). For Lefort, human rights are specifically a politics of human rights equivalent to democratic politics. Lefort could not accept the critique of the early Marx who saw human rights merely as a consequence of the decomposition of society into isolated monadic citizens.
Views in this debate were far from uniform. A fitting counterpoint for Lefort would be his former student Marcel Guachet. Following the publication of Lefort’s article, Gauchet published his own intervention with the provocative title ’Human rights are not a politics’. Gauchet begins with an almost scornful stab at the renewed interest in human rights, a stab that is clearly aimed at, among others, his former teacher and friend:
and so the old becomes new, what was once the very definition of something suspect resurfaces as something beyond all suspicion, and so our antiquated, waffly and hypocritical human rights regain grace, innocence and a sulfurous audacity in the eyes of the most subtle and exigent members of the avant-garde. (Gauchet 1980: 3, my translation)
This stab reflects the rift that developed between political theorists like Lefort who, despite being ’post-Marxist’ in the aftermath of the hugely divisive Solzhenitsyn affair, still made reference to Marx in their attempts at creating a social theory, and Gauchet who quickly became one of the key figures of the liberal left. Such an interpretation would seem to be at odds with presumed positions on human rights. For surely it would be the liberal’s lot to cherish the human rights that the post-Marxist ‘crit’, for his part, would reject.
The ’state of right’, the État de droit, as Lefort understands it, introduces a ’disincorporation’ of both power and right rather than their complete separation from each other. And so the ’state of right’ will always include within itself an ’opposition in terms of right’:
The rights of man (i.e. human rights; explain) reduce right to a basis which, despite its name, is without shape, is given as interior to itself and, for this reason, eludes all power which would claim to take hold of it whether religious or mythical, monarchical or popular. Consequently, these rights go beyond any particular formulation which has been given of them; and this means that their formulation contains the demand for their reformulation, or that acquired rights are not necessarily called upon to support new rights. (Lefort 1986b: 258)
Democracy is, then, the form of society in which the relationship of human rights to power is always external. In this ’savage democracy’, as it has been called, the law as the institution of human rights is, as Miguel Abensour, another former student and colleague, explains, no longer thought of as an instrument of social conservation, but as a potentially revolutionary source of authority for a society that constitutes itself as the indeterminate entity it is and will always be. In this sense, human rights are always in excess of what they have established. Once instituted in law, a constituent force will always reemerge in order to both reaffirm existing human rights and to create new ones:
A political stage opens according to which there is a struggle between the domestication of rights and its permanent destabilization-recreation via the integration of new rights, new demands that are henceforth considered as legitimate. According to Lefort, it is the existence of this incessantly reborn protest, this whirlwind of rights, that brings democracy beyond the traditional limits of the ’State of right’ [État de droit, Rechtsstaat]. (Abensour 2011: 108, translation modified)
The term ’savage democracy’ that Abensour accredits to Lefort is not a Hobbesian reference. So not a ‘war of all against all’. Nor is it, Abensour further insists, a reference to the political anthropologist Pierre Clastres (e.g. Clastres 1989) whose seminal work on the political structures of so-called primitive societies was a major influence for the young Lefort. Instead, Abensour claims that Lefort’s democracy is ’the form of society that, through the play of division, leaves the field open for the question the social asks of itself ceaselessly, a question in perpetual want of resolution but that is here recognized as interminable.’
So human rights can play a dual role both as a question being asked and as a mechanism that enables the asking. They’re certainly not some kind of stable substance, something that we could be born with and ‘have’, or nail down on a table and observe as if it was a ‘thing’. Human rights do not have a stable ontology. And through the politics of human rights they introduce further instability into any regime, ‘liberal democracy’ or ‘socialist state under the people’s democratic dictatorship’, that is in danger of coagulating into totalitarian structures.
This is the type of legacy that Liu’s human rights activism represents. Perhaps the emphasis is on ‘activism’ rather than on ‘human rights’.
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Abensour, Miguel (2011) Democracy Against the State. Marx and the Machiavellian Moment. Trans. Max Blechman and Martin Breaugh. Cambridge: Polity.
Clastres, Pierre (1989) Society Against the State. Essays in Political Anthropology [1974]. Trans. Robert Hurley. New York, NY: Zone Books.
Gauchet, Marcel (1980) ‘Les droits de l’homme ne sont pas une politique’, Le Débat, No. 3: 3-21.
Lefort, Claude (1986a) ‘The Image of the Body and Totalitarianism’, p. 292-306, in Claude Lefort, The Political Forms of Modern Society. Bureaucracy, Democracy, Totalitarianism. Trans. Alan Sheridan et al. Cambridge: Polity.
Lefort, Claude (1986b) ‘Politics and Human Rights’ [1980], p. 239-272, in Claude Lefort, The Political Forms of Modern Society. Bureaucracy, Democracy, Totalitarianism. Trans. Alan Sheridan et al. Cambridge: Polity.
Lefort, Claude (1988) ‘The Permanence of the Theologico-Political?’, p. 213-255, in Claude Lefort, Democracy and Political Theory. Cambridge: Polity.
Plot, Martin (ed.) (2013) Claude Lefort: Thinker of the Political. Basingstoke: Palgrave Macmillan.