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459034
2012
LAW, CULTURE
AND
THE HUMANITIES
Commentary
A Revolution in
Rights: Reflections on the
Democratic Invention of the
Rights of Man
Ayten Gndogdu
Barnard College-Columbia University, USA
Abstract
This commentary aims to bring to the fore the revolutionary elements of the democratic politics
inaugurated by the 1789 Declaration of the Rights of Man and Citizen. This founding event places
rights at that gap or hiatus between constituent and constituted power, and it reminds us that rights
are not simply normative constraints on an existing political and legal order but also democratic
inventions that can institute a new order. The commentary examines the works of two thinkers
who offer crucial insights into the key features of this democratic politics of rights: Claude Lefort
and tienne Balibar.
Keywords
Rights of man, declaration, 1789, French Revolution, democracy, human rights, Lefort, Balibar
Corresponding author:
Ayten Gndogdu, Department of Political Science, Barnard College-Columbia University, 3009 Broadway,
New York, NY 10027, USA.
Email: agundogdu@barnard.edu
368
human rights revolution.1 These routinized invocations of the word revolution aim to
capture primarily the institutionalization of human rights through the juridical work of
domestic, regional, and international courts. The world-transformative effects of these
developments cannot be underestimated, but it is also important to think carefully about
what is missing from these recent uses of revolution.
This commentary turns to the 1789 Declaration of the Rights of Man and Citizen to
rethink what is revolutionary about a democratic politics of human rights. This momentous event places rights at that gap or hiatus between constituent and constituted power
and reminds us that we cannot understand the democratic dimension of rights simply by
examining how they legitimize constituted power. The 1789 Declaration highlights that
rights are not simply normative constraints on an existing political and legal order but
also democratic inventions that can institute a new order, change existing conceptions of
power, and reorganize social relations.
The commentary first outlines some of the challenges involved in turning to the 1789
Declaration to rethink what is at stake in a democratic politics of human rights. It then
turns to two thinkers whose works offer crucial insights in this regard: Claude Lefort and
tienne Balibar. Both thinkers urge us to understand the declaration as an extraordinary
event that institutes a new understanding of rights, citizenship, sovereignty, equality and
freedom. As different from moralistic accounts that take rights as pre-political or nonpolitical norms setting limits on state power, their frameworks turn attention to the
political activities that are crucial for founding and reinventing rights. The commentary suggests that Leforts work is more helpful when it comes to understanding the
significance of the political innovations introduced by the 1789 Declaration, whereas
Balibars work offers a more insightful analysis of the radical transformations at stake
in the later reappropriations of these rights.
369
Gndogdu
Man in 1789, and the 1948 United Nations Declaration each taken as exemplars of the
bulldozer force of the revolutionary logic of rights.3 The danger of projecting the present onto the past becomes more perceptible in the more ambitious historical accounts
when the 1789 Declaration is placed, along with Stoicism, natural law, and the JudeoChristian tradition, in the evolutionary trajectory of human rights since antiquity.4 In
both the modest and ambitious forms, teleological history risks not only constructing
precursors after the fact5 but also losing sight of the radical transformation inaugurated
by the 1789 Declaration. As Hannah Arendt puts it, modern revolutions break with the
linear understanding of time as a continuum and instill in us the sense that the course of
history suddenly begins anew, that an entirely new story, a story never known or told
before, is about to unfold.6 Understanding the revolutionary dimension of the 1789
Declaration demands nothing less than facing up to the new beginning it embodies and
refusing to render it simply as another edition of a story told before.
Rethinking the 1789 Declaration in this revolutionary sense as a hiatus between the
end of the old order and the beginning of the new or between a no-longer and a not-yet,
to use Arendts terms again, has its potential risks as well.7 In her critical reflections on
Jean-Franois Lyotards reading of the 1789 Declaration and Jacques Derridas reading of
the American Declaration of Independence, Seyla Benhabib draws attention to the traps
of a regression to a thinking of origins, or a thinking that derives the meaning of
political phenomena from the limit condition of an extraordinary and foundational
moment.8 The trouble with this kind of thinking is not merely that it locates in these revolutionary declarations nothing but an abyss representing the arbitrary violence founding
politics and law. More importantly, a thinking centered on origins can also risk losing
sight of the new story told by these revolutionary declarations, especially when it examines the aporias of founding in terms of general assumptions about the structure of language. These declarations do exemplify the aporias of new beginnings, especially those
arising from the problem of self-authorization: The signatory of the declaration lacks a
prior authorization, as it is the declaratory act that establishes that authorization. Once this
point is granted, however, the distinctive characteristics of the political, normative, and
symbolic universe inaugurated by these rights declarations still remain to be known.
3. Lynn Hunt, Inventing Human Rights: A History (New York and London: Norton, 2007), p. 160.
4. See, for example, Paul Gordon Lauren, The Evolution of International Human Rights:
Visions Seen (Philadelphia, PA: University of Pennsylvania Press, 1998); Micheline Ishay,
The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley, CA:
University of California Press, 2004).
5. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press
of Harvard University Press, 2010), p. 18.
6. Hannah Arendt, On Revolution (London and New York: Penguin, 1990 [1963]), p. 28.
7. Arendt, On Revolution, p. 205.
8. Seyla Benhabib, Democracy and Difference: Reflections on the Metapolitics of Lyotard
and Derrida, Journal of Political Philosophy, 2 (1994), 14, 5. See also Jacques Derrida,
Declarations of Independence, New Political Science, 7 (1986): 715; Jean-Franois
Lyotard, The Differend: Phrases in Dispute, tr. Georges Van Den Abbeele (Minneapolis, MN:
University of Minnesota Press, 1988), pp. 1457.
370
In what follows, I discuss two theorists who avoid the potential traps exemplified by
teleological history and origin-thinking: Claude Lefort and tienne Balibar. For both
theorists, the 1789 Declaration is a new beginning that cannot be assimilated into a teleological narrative, as it breaks with any previous understanding of rights, including the
natural law tradition. What is more, although both Lefort and Balibar are very attentive
to the aporias of this declaration, they also refuse to see that revolutionary hiatus as an
abyss revealing an originary violence. Instead, they examine how the declaration introduces a new principle of universality that founds these rights politically and endows
democratic politics with an indeterminable futurity.
371
Gndogdu
dies.13 Kantorowiczs thesis illuminates the pre-modern understanding of power, according to Lefort. The French Revolution inaugurates a symbolic transformation that breaks
with this schema of incorporating or incarnating power in a substantial unity and reveals
power as an empty place: it is not that no one exercises power in this new order, but no
one can any longer appropriate, possess, or embody power since its exercise now
requires a periodic and repeated contest.14 This transformation indicates a gap between
the symbolic and the real, between empty place of power and its exercise, between
generative principles of the democratic constitution and actually existing institutions of
these principles. There might be attempts to close this gap by invoking a unitary body
embodying power, and even by making appeals to religion. Although such attempts are
common especially in times of crisis, they do not invalidate the symbolic transformation
by which power is disembodied or disincorporated. Such ideological representations of
power, which Lefort describes as the imaginary, cannot be conflated with the symbolic, or the generative principles of democratic society.15
As Lefort draws attention to this symbolic transformation, he breaks away from not
only the Marxist historiography, which represents the French Revolution mainly as a
victory of the bourgeoisie over the nobility, but also the revisionist historiography that
ends up tracing the excesses of totalitarian politics back to the French Revolution.
Leforts critical engagement with the work of Franois Furet illustrates his distinctive
position. On the one hand, Lefort applauds Furet for breaking with the Marxist analysis
to foreground the political dimensions of the revolution; in this political framework,
revolution cannot be understood as a transfer of power from one class to another, as it
involves a transformation in the understanding of legitimacy. On the other hand, Lefort
questions Furets thesis that the revolution shared with ancien rgime the phantasm of
an absolute and undivided power and simply inverted that absolutism in favor of the
people.16 What escapes Furets analysis, according to Lefort, is that the French
Revolution invents a democratic politics that ultimately opens up the possibility of questioning any absolutist attempt to embody society in the form of an organic totality.17
With this symbolic transformation, power moves to a paradoxically unstable and indeterminate place that owes its existence to the incessant work of its enunciation or to
13. Lefort, Democracy, pp. 2505.
14. Lefort, Democracy, p. 225. For a discussion of this empty place of power, see, among others, Oliver Marchart, Post-Foundational Political Thought: Political Difference in Nancy,
Lefort, Badiou and Laclau (Edinburgh: Edinburgh University Press, 2007), pp. 945.
15. Lefort, Democracy, p. 255. See also Warren Breckman, Democracy between Disenchantment
and Political Theology: French Post-Marxism and the Return of Religion, New German
Critique, 94 (2005), 912. Lefort uses the Lacanian terms but gives them a different meaning,
as briefly indicated by the analysis above. For an analysis, see, for example, Bernard Flynn,
The Philosophy of Claude Lefort: Interpreting the Political (Evanston, IL: Northwestern
University Press, 2005), pp. 11819; Samuel Moyn, Claude Lefort, Political Anthropology,
and Symbolic Division, Constellations, 19 (2012), 434.
16. Franois Furet, Interpreting the French Revolution, tr. Elborg Foster (Cambridge and New
York: Cambridge University Press, 1981), pp. 39, 38.
17. Lefort, Democracy, p. 114.
372
the impalpable, universal and essentially public element of speech.18 Furet is right to
identify in this shift the birth of ideology, but Lefort sees in it something that exceeds
ideology: the emergence of an open-ended debate as to the foundations of the
legitimacy.19
The crucial role of speech in this new constitution, or politeia, is nowhere more apparent
than in the Declaration of the Rights of Man and Citizen. It is impossible to understand the
symbolic transformation at stake here without grappling with the unconventionality of the
idea of a declaration in the first place. A bill or a petition appeals to an external authority
and attempts to demarcate the boundaries of its power.20 As revolutionaries such as Sieys
recognized, such a pact indicates implicit recognition of a seigneur, a suzerain, or a master
to whom one is naturally obligated.21 Declaration, on the other hand, denotes a public
utterance by which human beings reciprocally recognize each other as subjects entitled to
equal rights. As Lefort puts it, what we are confronting is,
a declaration, by which human beings, speaking through their representatives, revealed
themselves to be both the subject and object of the utterance in which they named the human
elements in one another, spoke to one another, appeared before one another, and therefore
erected themselves into their own judges, their own witnesses.
To come to terms with the political importance of this public utterance and recognition of rights, it is necessary to reject the naturalist position that assimilates both the
American and French declarations into the prior conceptions of natural law. The invocation of nature as the ground of rights in these declarations, according to Lefort, conceals an extraordinary event, which involves the ascription of nature to the self.22
This democratic invention defies the naturalistic idea of deriving rights from an already
existing nature since there is no nature prior to the enunciation of rights. By contesting
the naturalistic thesis, Lefort also challenges any moralistic account that posits rights as
pre-political (hence non-political, or even anti-political) norms limiting state power.23
What renders Leforts analysis of the modern rights declarations really distinctive is
that he does not stop at refuting the naturalistic thesis. While Lefort emphasizes that
these declarations reduc[e] the source of right to the human utterance of right and
18. Lefort, Democracy, p. 110.
19. Lefort, Democracy, p. 114.
20. For the distinction, see Hunt, Inventing Human Rights, pp. 1145.
21. Quoted in Keith Michael Baker, The Idea of a Declaration of Rights, in Dale Van Kley, ed.,
The French Idea of Freedom: The Old Regime and the Declaration of Rights of 1789 (Stanford,
CA: Stanford University Press), p. 158. See also Marcel Gauchet, Rights of Man, in A
Critical Dictionary of the French Revolution, ed. Franois Furet and Mona Ozouf; tr. Arthur
Goldhammer (Cambridge, MA: Belknap Press of Harvard University Press, 1989), pp. 8201.
22. Lefort, Democracy, p. 38.
23. Such a moralistic position was held by some of Leforts contemporaries known as the New
Philosophers. For a discussion, see Samuel Moyn, The Politics of Individual Rights: Marcel
Gauchet and Claude Lefort, in French Liberalism from Montesquieu to the Present Day, ed. Raf
Geenens and Helena Rosenblatt (Cambridge, UK: Cambridge University Press, 2012), pp. 2935.
373
Gndogdu
make it impossible to locate a foundation for rights outside of and prior to their proclamation,24 he also challenges the historicist thesis that these rights have no validity beyond
the original context in which they were declared. To make this point, Lefort turns to the
French Declaration and responds to critics such as Burke and Marx who question the
universal import of the rights of man. According to Lefort, these critics overlook how
this declaration introduces a new principle that cannot be annexed by historicism.
This principle, which reduces right to the questioning of right, opens up the possibility
of challenging existing formulations of rights and disputing the legitimacy of the established order.25 The universality of the rights of man arises out of this new dynamic that
renders the meaning and content of rights indeterminable.
Leforts argument about rights cannot be easily categorized as foundationalist or antifoundationalist; he seems to offer a third possibility: On the one hand, he moves away from
foundationalism and affirms that the eighteenth-century declarations install the radical contingency of linguistic proclamation into the heart of constitutional arrangements, to use
Costas Douzinas terms.26 On the other hand, Lefort distances his position from antifoundationalism, as he refuses to locate in these founding events nothing but an abyss. Even
though the revolutionary declaration strikes us as completely arbitrary with its spontaneity,
unpredictability and contingency, his analysis suggests, it carries within itself a principle that
serves as the source of its validation or authorization. Lefort does not explicitly state what he
means by the term principle, but his analysis proceeds in a quite Montesquian vein. What
is at stake here is not an extra-political norm, standard, or yardstick guiding action or offering criteria for judgment but instead a principle inspiring, becoming manifest in, and validating the declaratory act. As this principle animates and authorizes new inventions of rights,
its effects cannot be contained by the original context of the declaration that gives rise to it.
It is universal to the extent that it can be reactivated time and again to demand new rights.27
This continuous democratic reinvention of rights, Lefort argues, is made possible by
the fiction of man without determination, a fiction often criticized for its abstraction.28
One such criticism comes from Marx, who suggests that this abstract man, as distinct
from citizen, is none other than the egoistic member of civil society.29 Lefort responds to
Marxs critique in two ways: First, highlighting how rights such as freedom of opinion
institute new forms of sociability and create a new network of human relations, Lefort
challenges the view that the discourse of rights produces egoistic individuals.30 Second, he
24. Lefort, Democracy, p. 37.
25. Lefort, Democracy, p. 38.
26. Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the
Century (Oxford and Portland, OR: Hart Publishing, 2000), p. 95.
27. This interpretation draws on Hannah Arendts Montesquian understanding of principle in her
reflections on modern revolutions and freedom. See Arendt, On Revolution, p. 212; What is
Freedom? in Between Past and Future (New York and London: Penguin, 1993 [1968]), pp. 1523.
28. Lefort, The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism,
ed. John B. Thompson (Cambridge, MA: MIT Press, 1986), p. 257.
29. Karl Marx, On the Jewish Question, in Marx: Early Political Writings, ed. Joseph OMalley
(Cambridge: Cambridge University Press, 1994), p. 44.
30. Lefort, Democracy, p. 32.
374
375
Gndogdu
immanent source of political and social order.34 Furthermore, Balibar also agrees with Lefort
that the Declaration contains within itself a demand for the reformulation of rights.35 In fact,
he describes the Declaration as a hyperbolic proposition, or as a statement that exceeds
the act of its enunciation and invites the questioning of any given institutionalization of
rights and citizenship.36 Finally, for both Lefort and Balibar, this element of indeterminacy
that the 1789 Declaration introduces to democratic politics demands an engagement with the
paradoxes, aporias and equivocations of this revolutionary document. As different from earlier critics, who locate in the paradoxical formulations of the Declaration nothing other than
signs of the eventual doom of the rights of man, these two thinkers highlight the democratic
possibilities arising from this aporetic terrain.37 Despite this similarity, however, Balibars
account centers on an equivocation that is not fully examined by Lefort: the simultaneous
invocation of man and citizen as the subject of rights in the 1789 Declaration.
To address the political effects of this equivocation, Balibar engages in a critical conversation with Marx. Of particular importance for his purposes is Marxs reading of this
equivocation as a split or separation between man and citizen, representing the limitations of the illusionary universality introduced by political emancipation, which guarantees political equality for citizens without eliminating the inequalities embedded in
civil society.38 Contra Marx, Balibar does not read the equivocation as symptomatic of a
bourgeois separation between man and citizen, private and public, civil society and
political state. There is no such separation, he argues, since the Declaration ascribes the
same rights to man and citizen.39 Even the right to property cannot be taken as a symptom of such separation, Balibar suggests, as it cannot be reduced to a right to private
property. The Declaration instead invokes property in a more Lockean sense i.e. property of oneself, of a free disposal of ones forces and of their employment.40 The text of
the Declaration introduces this right, according to Balibar, without settling what kind of
a social arrangement having property in oneself would entail; the answer to that question
is yet to be determined by the social struggles that the Declaration gives rise to.41
Balibar takes the equivocation between man and citizen as an identification or
equation that is charged with democratic possibilities. With its equivocal formula, the
1789 Declaration announces that equal rights cannot be simply limited to those who
already have the legal status of citizenship and introduces the possibility of any given
realization of the citizen to be placed in question. Balibar warns against taking this
34. Balibar, Masses, p. 43; emphasis in the original. See also Balibar, Citizen Subject, in Who Comes
after the Subject?, ed. Eduardo Cadava, Peter Connor, and Jean-Luc Nancy (New York: Routledge,
1991), p. 45.
35. Balibar, Masses, p. 242n.
36. Balibar, Citizen Subject, p. 52; emphasis in the original.
37. See Leforts analysis of the triple paradox of human rights in Political Forms, pp. 2568.
38. Marx, On the Jewish Question.
39. Balibar, Masses, p. 44.
40. Balibar, Masses, p. 217; emphasis in the original. For Balibars detailed analysis of property in Locke,
see Possessive Individualism Reversed: From Locke to Derrida, Constellations, 9 (2002), 3005.
41. Balibar, Masses, p. 218; emphasis in the original. For an account of these social struggles that
led to different declarations, see, for example, Gauthier, French Revolution.
376
possibility as a promise that will be inevitably fulfilled, and his analysis of democratic
struggles for equal rights pays close attention to the historical conjuncture, as can be seen
in his more recent reflections on the challenges posed to the transnationalization of citizenship by the non-democratic practices of border control that amount to a global apartheid.42 In that sense, he is not over-optimistic, contrary to what some of his readers
suggest, and his work on democratic rights continues to reveal his Marxian attentiveness
to the social, economic and ideological conditions that can enable, hinder, or undermine
emancipatory struggles.43 Having said that, it is equally important, for Balibar, not to
underestimate or overlook the possibilities introduced by the equation of man and
citizen, which endows democratic politics with an essential limitlessness.44
This argument gives rise to two interrelated conclusions in Balibars work: First, the equation introduces what he calls the proposition of equaliberty, which affirms a universal right
to citizenship understood as political activity.45 Similar to the case in Lefort, this argument
cannot be easily characterized as an anti-foundationalist one pointing to an abyss; instead,
what Balibar highlights is the emergence of a new principle (again better to be understood in
its Montesquian sense) with the declaration of rights. Equaliberty is a term that is a translation of Greek isonomia via its Latin formulation (aequum ius or aequa libertas).46 Just as
ancient isonomia, equaliberty indicates the inextricably intertwined nature of equality and
freedom, but whereas the ancients understood freedom as a status and equality as a right
attached to that status and excluded several groups from political activity as a result (e.g.
slaves, women, metics), the Declaration of the Rights of Man inaugurates a democratic politics
that makes it impossible for citizenship to be limited on the basis of status.47
This limitlessness brings us to the second conclusion. Precisely because the equivocation between man and citizen introduces a politics of the universalization of
rights, exclusions from rights and citizenship now become questionable. This does
not mean that there are no longer exclusions; in fact, modern politics is haunted by its
repressed contradictions, which become manifest in the denial of rights and citizenship on the basis of anthropological differences.48 But the 1789 Declaration also
opens possibilities of contesting such exclusions with its proposition of a universal right
to politics, according to Balibar. Embedded in the equation man=citizen is a constitutive
42. Balibar, Citizen Subject, p. 53; emphasis in the original. For global apartheid, see Balibar,
We, the People of Europe? Reflections on Transnational Citizenship, tr. James Swenson
(Princeton, NJ: Princeton University Press, 2004), p. 113.
43. Nick Hewlett, Badiou, Balibar, Rancire: Rethinking Emancipation (London: Continuum,
2007), p. 125. For an analysis demonstrating Balibars attentiveness to these conditions, see
James D. Ingram, Democracy and Its Conditions: tienne Balibar and the Contribution of
Marxism to Radical Democracy (unpublished manuscript).
44. Balibar, Masses, p. 211; emphasis in the original.
45. See Balibar, Is a Philosophy of Human Civic Rights Possible? New Reflections on
Equaliberty, South Atlantic Quarterly, 103 (2004), 31213.
46. Balibar, (De)constructing the Human as Human Institution: A Reflection on the Coherence
of Hannah Arendts Practical Philosophy, Social Research, 74 (2007), 731.
47. Balibar, Masses, pp. 456.
48. Balibar, Masses, pp. 55, 57.
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Gndogdu
378
necessary condition for the permanent recreation of the political out of its internal
dissolution.56
There is another way in which Balibars characterization of democratic struggles
for rights as insurrectional acts sets his analysis apart from Leforts. Whereas Lefort
avoids depicting political actors involved in rights struggles as revolutionary figures,
Balibar reappropriates the Hegelian-Marxian notion of universal class to draw attention to oppressed groups who succeed in transforming the specific wrong inflicted on
them into a general one. Such a class demonstrates that the wrong it suffers is a universal
wrong, that its alienation entails the unfreedom of all, and that its emancipation is the
condition for general emancipation.57 What is at play here is representation as an idealization, which involves the creation of names or keywords that can seize the imagination: People and proletariat are examples of such keywords, and Balibar adds that
woman and foreigner might yet become terms of this kind.58 Such keywords point to
an ideal or idealistic universality, Balibar argues. Idealization deploys images and
representations, but it is not simply ideological and, though it does represent a universalization of a specific wrong, it does not nurture the illusion of a society that can be
represented as an organic entity.59 There is a symbolic dimension to this idealization,
as these struggles aim at changing the whole fabric of society,60 which demands nothing
less than a radical reconfiguration of existing social relations and institutions.
Put differently, whereas Balibar highlights the revolutionary beginnings at stake in
democratic struggles for rights, Lefort exercises a cautious restraint in describing them.
That restraint is understandable given Leforts critique of a revolutionist desire to abolish power, which, as he rightly underscores, conceals a secret craving for omnipotence as
well as a phantasized attraction for the One and an irresistible temptation to project it
into the real.61 However, as we see in Balibars account, there may be certain forms of
idealization or projection that do not romantically long for a homogenous society transparent to itself. Such representations are crucial in political struggles questioning the
violent exclusions of an established order and proposing a new configuration of rights
and citizenship. Attending to these representations might help us understand what
remains of the revolution in the later reinventions of the rights of man.
56. Balibar, (De)constructing the Human, 730.
57. Balibar, Politics and the Other Scene, tr. Christine Jones, James Swenson, Chris Turner
(London and New York: Verso, 2002), p. 6.
58. Balibar, Politics, p. 7; emphasis in the original.
59. To a certain extent, Balibars argument here resembles Jacques Rancires analysis of the
rights struggles waged by those who have no part. See, for example, Rancire, Who is
the Subject of the Rights of Man? South Atlantic Quarterly, 103 (2004), 3035. For an
analysis of Rancires argument, see, among others, Andrew Schaap, Enacting the Right to
Have Rights: Jacques Rancires Critique of Hannah Arendt, European Journal of Political
Theory, 10 (2011), 2245.
60. Balibar, Politics, p. 168.
61. Lefort, Political Forms, pp. 2667, 270. For a similar account of the limits of Leforts analysis, see James D. Ingram, The Politics of Claude Leforts Political: Between Liberalism and
Radical Democracy, Thesis Eleven, 87 (2006), 3350.
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Gndogdu