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Balibar, Etienne - Is a Philosophy of Human Civic Rights Possible -New Reflections on Equa Liberty

Balibar, Etienne - Is a Philosophy of Human Civic Rights Possible -New Reflections on Equa Liberty

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04/08/2013

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Étienne Balibar
Is a Philosophy of Human Civic RightsPossible? New Reflections on Equaliberty
I
would like to propose here some ‘‘new reflec-tions’’ concerning the notion of equal liberty(
aequa libertas
), a notion that has persistedacross the entire republican political traditionfrom antiquity (Cicero) to contemporary debatesaround the work of John Rawls and AmartyaSen, and that I have previously presented inthe compressed form of the portmanteau word
equaliberty
(
égaliberté 
,
igualibertad
,
Gleiche Frei-heit
, or
Gleichheit/Freiheit
, etc.).
1
These reflec-tionsareintendedtocontributetothediscussionofaclassicalprobleminpoliticalphilosophy,thatof the democratic
foundation
of the rights of thecitizen. In philosophy,
foundation
is to be under-stood as meaning the explanation of a principle,particularly a constitutive principle. If we pre-sume that the ‘‘rights of the citizen’’ themselvesform the heart and the goal of the constitutionalorder, whether written or unwritten, formal ormaterial, normative or structural, then whatwe will be concerned with is something likea constitution of the constitution, following aphilosophical-political wordplay deeply rootedin our history (but variably apparent in differ-ent languages: thus in French,
constitution dela constitution
, but in German,
Konstitution der 
The
South Atlantic Quarterly
103:2/3, Spring/Summer 2004.Copyright © 2004 by Duke University Press.
 
312
Étienne Balibar 
Verfassung 
). Here I would like to treat this constitution of the constitutionin the spirit of a ‘‘deconstruction,’’ understood not as a destruction or pureandsimpledisqualification,butasan
Ab-bau
,acriticalanalysisofpresuppo-sitions. Deconstruction in this sense brings out problematic elements andnegative, antinomical, or aporetic aspects and therefore helps us under-stand the necessity of recastings, displacements, or even reversals (as I willbe led to suggest in conclusion, taking a free inspiration from certain con-siderations of Hannah Arendt).In order to get a grasp on the problem we are working with, I would likebriefly(and,Ihope,inanoncontroversialway)torecallwhatconstitutesthephilosophicalrevolutioninherentinmoderncitizenshipthatisdemocraticin essence, and why it raises a difficulty of principle. It is in fact not the
invention
ofthedemocraticprinciplethatdistinguishesmoderncitizenshipasprogressivelyinstitutedbythepoliticaltransformationsthatbeganintheclassical age, moving through the popular insurrections and constitutionalreformsoftheseventeenth,eighteenth,andnineteenthcenturies,andthatis widely acknowledged to constitute an infinite task, from the citizenshipof antiquity, the Middle Ages, and the Renaissance. Aristotle and Ciceroalready had said that the principle of the
politeia
or
civitas
referred to an
iuscommunis
anda
consensuspopuli
thatwasessentiallydemocratic.Whatisdis-tinctlycharacteristicofmoderncitizenship,atleastbyrightorinprinciple,is the
universalization
of the status of the citizen. In other words, this statusceases to be a privilege and instead comes to be conceived in terms of uni-versalaccess,orauniversalrighttopolitics:arightnotonlyto
 politicalrights
(a‘righttohaverights,asArendtsaid),butalsotoeffectivepoliticalpartici-pation.
2
Whatisatstakeinthisconception,whichforusrepresentsboththeincontestable and uncomfortable heritage of modernity, is in the first placean
extensive
universality—that is, a cosmopolitical horizon, approached indifferent degrees by various national or federal citizenships, or, better yet,by the articulation of national citizenship and international law. But evenmore important is what I would call an
intensive
universality, which givesas a support or ‘‘subject’’ for political participation
common humanity
, the
Gattungswesen
or‘species-being’asHegelandFeuerbachcalledit,themanwithout particular qualities (if not without properties).This intensive uni-versality
excludes exclusion
, forbids the denial of citizenship in the name of determinations of condition, status, or nature.We should take note of theelement of negativity or ‘‘negation of the negation’’ that is, of course, inher-ent in the conceptualization of the universal.
 
Is a Philosophy of Human Civic Rights Possible?
313
Ideally(ornormatively,ifyouprefer),moderncitizenshipthusinstitutesan equation, a reciprocity of perspectives, a coextensivity of the predicatesof humanity and those of citizenship:
Homo sive Civis
, to parody a famousphilosophical formulation. And this is precisely what is expressed, in amode that is both constative and performative, by the great Declarationsthatfoundpoliticalmodernityandwhosetraceisvisibleinmostofourcon-stitutionalpreambles.AsIhavearguedelsewherefollowingotherscholars,the heart and kernel of these declarations, as well as the Bills of Rights thatprecededthemandholdasimilarplaceintheAnglo-Americanconstitutiontradition, turn out to be constituted by the proposition of equal liberty orequaliberty.Thispropositionposes,inthecharacteristicformofadoubleor simultaneous negation, that equality is impossible without liberty andliberty impossible without equality, and
therefore
that liberty and equalitystandinarelationofmutualimplication.Itthusequatesinprinciplegenerichumanity and citizenship, implying a juridical adequation of the ‘‘rights of man’’ and the ‘‘rights of the citizen.’’ It is thus, if you will, the principle of democratic constitution of the constitution in its typically modern univer-salist conception.Whencethencomesthedifficulty—apersistent,probablyunsolvabledif-ficulty,thatofcourseshouldnotleadustoabandonoroverturndemocraticuniversalism, but to develop a
critique
of its constitution? It seems to methat we can identify at least three sources or sets of reasons whose concate-nation I would like to sketch out in such a way as to allow us to put backinto question or reformulate the constitutive proposition itself.First (here I am of course making no claim to originality), these diffi-culties stem from the duality of interpretations of the idea of a democraticconstitution of rights, expressed in the competition between the notions of fundamentalrights(the
Grundrechtsdemokratie
evokedinthetitleofGeraldStourzh’smajorwork)andthatofpopularsovereigntyorlegislativeandcon-stituent ‘‘general will.’’
3
Second, and I will attempt to show that this aspect is in fact not inde-pendent of the first, and even provides a more satisfactory interpretationof it than the opposition between an abstractly normative viewpoint anda historically and politically concrete viewpoint, the difficulty comes fromthe fact that the concept of man to which the universalist foundation refersis a fundamentally equivocal concept.We can express this by recalling the‘‘metaphysical fact’’ that, in the historic substitution of an anthropologicalperspectiveforacosmologicalortheological(orcosmotheological)perspec-

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