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Law, Ethics and the Utopian End of Human Rights
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Law, Ethics and the Utopian End of Human Rights

Stewart Motha and Thanos Zartaloudis
Social Legal Studies 2003; 12; 243
DOI: 10.1177/0964663903012002005
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REVIEW ARTICLE
LAW, ETHICS AND THE

UTOPIAN END OF HUMAN
RIGHTS
COSTAS DOUZINAS, The End of Human Rights: Critical Legal Thought at the Turn
of the Century. Oxford: Hart Publishing, 2000.
STEWART MOTHA AND THANOS ZARTALOUDIS

Birkbeck School of Law, University of London, UK
I. INTRODUCTION
T
HE ‘END OF IDEOLOGY’ apparently ushered in by the demise of the cold
war is accompanied by a new certainty about the ‘measure’ for all time.
This measure or ground for law, justice and the resolution of conflict
is human rights – a paradoxical universal that is at once accomplishment and
aspiration, a means of defining ‘good’ through the negation of ‘evil’ and the
justification for ‘humanitarian bombing’, destructive embargoes and ‘wars
without end’. In this article we engage with perhaps the most sustained
jurisprudential engagement with the philosophical grounds of human rights,
Costas Douzinas’ The End of Human Rights, which attempts to reintroduce
a transcendent justification for the humanity of rights through a genealogi-
cal critique of its erstwhile liberal manifestations.
Douzinas’ principal aim is to set out the philosophical underpinnings of
(another) human rights through the genealogy of radical natural right. Radical
natural right is proposed as a transcendent ground for human rights, but with
the acknowledgement that it is an impossible utopian ideal of a justice ‘to
come’. In this article we interrogate Douzinas’ reliance on Emmanuel
Levinas and Ernst Bloch in his attempt to derive a transcendent ground for
human rights in an allegedly disenchanted postmodern world. Does his
project of establishing a transcendent ground for human rights escape the
SOCIAL & LEGAL STUDIES 0964 6639 (200306) 12:2 Copyright © 2003
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
www.sagepublications.com
Vol. 12(2), 243–268; 033089

244 SOCIAL & LEGAL STUDIES 12(2)
violence of the metaphysical presuppositions of law? By this questioning we

mean to explore the extent to which a critique of human rights, which
Douzinas clearly intends, can both denounce the incorporation of human
rights in hegemonic practices and as universalized hegemony, and yet retain
hope and express a meaning of freedom through human rights.
II. HUMAN RIGHTS: GROUNDS OF CRITIQUE WITHOUT CRITIQUE

OF GROUNDS
Human rights are the predominant ‘measure’ for enforcing consensus at the
purported ‘end’ of the ‘ideological battles of modernity’.1 With its selected
application as a gauge of the humanity of an event, action or inaction, it might
be said that human rights has become the ‘ideology at the end of ideology’.
But to deploy the notion of ‘ideology’ as denunciation, whether as mystifi-
cation or falsification or both, is not sufficient to meet the challenges posed
by the rise and rise of human rights (Eagleton, 1991: ch. 1). Given the eman-
cipatory potential claimed for human rights by countless social movements
and political groups it is not easy to merely denounce human rights as a
vehicle of liberal, capitalist triumphalism amid wide-scale hypocrisy. This is
precisely why a sustained critique of human rights is most crucial for the
transgression of the pseudo-universal and ‘proper’ humanity that has rapidly
become the simulacrum of freedom. As Foucault wrote:
Criticism indeed consists of analyzing and reflecting upon limits. But if the
Kantian question was that of knowing what limits knowledge has to renounce
transgressing, it seems to me that the critical question today has to be turned
back into a positive one: in what is given to us as universal, necessary, obliga-
tory, what place is occupied by whatever is singular, contingent, and the
product of arbitrary constraints? (1984: 45)
Indeed, one of the most crucial points of Douzinas’ critique of human

rights is how to conceive of the action of critique (of human rights) in itself.
From our perspective, as Deleuze and Guattari put it:
Rights save neither men nor a philosophy that is reterritorialized on the demo-
cratic state. Human rights will not make us bless capitalism. A great deal of
innocence or cunning is needed by a philosophy of communication that claims
to restore the society of friends, or even of wise men, by forming a universal
opinion as ‘consensus’ able to moralize nations, States, and the market. Human
rights say nothing about the immanent modes of existence of people provided
with rights. Nor is it only in the extreme situations described by Primo Levi
that we experience the shame of being human. We also experience it in insignifi-
cant conditions, before the meanness and vulgarity of existence which haunts
democracies, before the propagation of these modes of existence and of
thought-for-the-market, and before the values, ideals, and opinions of our time.
The ignominy of the possibilities of life that we are offered appears from within.
We do not feel ourselves outside of our time but continue to undergo shameful
compromises with it. This feeling of shame is one of philosophy’s powerful

MOTHA & ZARTALOUDIS: UTOPIAN END OF HUMAN RIGHTS 245
motifs. We are not responsible for the victims, but responsible before them.
(1994: 107–8)
To think radically of human rights requires an inquiry into what it means to

criticize. Central to the task of critiquing human rights is the questioning of
what ontological and ethical ground is presupposed under the guise of the
humanism of human rights.
The End of Human Rights is the third volume planned by Costas Douzinas
and Ronnie Warrington as a continuation of their critique of jurisprudence
which began with Postmodern Jurisprudence: The Law of Text in the Texts
of Law (1991) and was followed by Justice Miscarried: Ethics, Aesthetics and
the Law (1994a). Their project reopened the questions of ethics, justice and
critique as the central themes of jurisprudence. We do not provide a compre-
hensive review of their work here but note that one of their paramount
concerns, and indeed one that takes shape as a major trajectory in this third
volume, is an attempt to introduce Levinas’ ‘ethics of alterity’ (for an intro-
duction and exposition of this concept, see Douzinas, 1998; Douzinas and
Warrington, 1994a) and ‘another justice’ (see Douzinas and Warrington, 1994a:
ch. 4) to the discourse of jurisprudence. For Douzinas and Warrington:
Modernity, in destroying any generally acceptable conception of value or virtue

and in disassociating ethics from law, makes justice a central concern of political
theory and the main area of contention of practical politics. But the modern
conception of justice is no longer that of dike,2 the social face of the ethics of
intersubjectivity; it becomes exclusively social justice, an artificial way of
organising the social order when all its traditional bases have been weakened.
(Douzinas and Warrington, 1994a)
The ‘traditional bases that have been weakened’ is not a reference to a ‘previ-
ously existent past long gone’. What they refer to is the a priori ethical obli-
gation that Levinas proposed in his work. For Douzinas and Warrington, this
Levinasian understanding of intersubjectivity (or the ethical relation)
arguably ‘appeared’ prior to the ancient Greek separation between know-
ledge and the right (in the sense of ‘dike’, whereby nature and culture, myth
and logos, subject and community were in juncture, as indistinguishable).
This concern with the ethics of intersubjectivity forms the critical perspec-
tive of Douzinas and Warrington’s critique of law and of the modern (legal)
subject and is largely influenced by Levinas’ ‘ethics of alterity’. As Douzinas
and Warrington state:
[T]he ethics of alterity is a challenge to all attempts to reduce the other to self
and the different to the same [. . .] Moral consciousness is not an experience of
values but the anarchic (an-arche, without beginning or principle) access to a
domain of responsibility and the obligated answer to the other’s demand.
(1994a: 167)
Before considering Douzinas’ reliance on Levinas’ ethics further we shall

briefly outline the themes taken up in this volume.

The principal question of this volume is the possibility of transcendence

in a disenchanted world (p. 15). It is an inquiry that seeks an energy from the
paradoxes that the history of humanism and human rights have to offer; for
instance, the paradox of the two sovereignties of Hobbesian modernity – that
human rights becomes a defence against state power which is itself modelled
on the sovereignty of the individual: ‘[t]he sovereignty of unshackled will
finds its perfect complement and mirror image in the sovereignty of the state.
The Leviathan is the mirror image and the perfect, all too perfect partner of
emancipated man’ (p. 20). That is to say, the ascendance of the ‘autonomous
subject’ is coextensive with the emergence of the mechanism of its subjection
and destruction. Douzinas’ search for a transcendent point from which to
confront these aporias leads him to examine and engage in a genealogical
critique of the tradition of radical natural right.
Part I of the volume thus traces the genealogy of natural law from
its classical beginnings among the Sophists, Stoics, Plato and Aristotle
(pp. 23–45), the renaissance of this classical tradition in Christian natural law
(pp. 52–68), and the maturing of natural right in Hobbes and Locke, the early
thinkers of modernity who produced the hapless individual whose subjec-
tion took the form of the sovereignty of state, nation and people (pp. 69–84).
The revolutions of the 18th century and their respective universal declar-
ations are then exposed as the fount of the paradox of modern humanism:
that the rights and freedoms they inaugurated are ‘groundless’ (pp. 92–5) –
emphasizing the performativity of the proclamations (the undecidability of
whether the declarations created the free and emancipated ‘man’, who, it
seems, would already have to be in existence in order to declare himself free
and emancipated).
This familiar Derridian critique of the ‘speech act’ launches a review of the
polemical critiques of humanism by Burke and Marx that opens part II of
the volume (pp. 147–81). Chapter 7 of the book is a crucial juncture in
Douzinas’ argument as it poses the questions that the genealogy of radical
natural right (part I) provoked, and sets the scene for a philosophical inquiry
into the possibility of human rights as a transcendent ground for a utopian
politicolegal enterprise that has as its ever receding ‘end’, a human rights of
‘the other’. The juridico-philosophical conjunctions by which this critique
of human rights is pursued in part II of the volume will be the focus of the
rest of this article. As already emphasized, Levinas and Bloch are the central
figures in Douzinas’ arguments. We have thus selected these aspects of the
volume for sustained treatment.
Levinas’ ethics emerges through a critique of both Husserl’s and
Heidegger’s thought. We shall open our critique of Douzinas’ reliance on
Levinas with a basic outline of the phenomenological and ontological precur-
sors of Levinas’ thought, Husserl and Heidegger.
Phenomenology is a method, to risk oversimplification, of questioning the
encounter between one’s self, or, to be precise, a consciousness, and the
world. It also involves radically questioning the manner in which the world
is presented to consciousness. As Levinas has put it, phenomenology involves

the thinking self (a cogito) questioning the so-called ‘natural’ knowledge

available to it about things in the world. The world is made present to a cogito
as various objects, but this representation of the world obscures the thing in
itself. The task of phenomenology is to question how the cogito comes to
know ‘what is’ – ‘how is what is?’ (Levinas, 1985: 30–1).
The modern phenomenological method begins perhaps with Edmund
Husserl’s ambition to provide a liberation of philosophy from naturalist epis-
temology and scientific neutrality (see generally, Husserl, 1970, 1983). For
phenomenologists like Husserl there is no stable essence behind the flux of
perceived phenomena that science can secure and reveal. For Husserl, this
means that the ‘intentional object’ cannot be separated from the conscious-
ness that intends it. The transcendental reduction reveals a transcendental
Ego which is not part of an objective natural ‘world’, but which produces
the perception of what constitutes the knowledge of the world through its
conscious intentionality. The reflexive subject can still assume its primacy in
an intelligible world, yet Husserlian phenomenology also maintains that
there is a primary openness of consciousness to what lies outside it, that is
to a ‘world’, the real. Yet what ‘is’, or ‘being’, is to be seen in the multiplicity
and the non-stable intentional realization of it through consciousness. To
summarize, Husserl gives to phenomenology a method whereby it is
perception that gives us ‘being’ (phenomenological existence), rather than an
atemporal domain (like nature) that is distinct from the experience of
phenomena. Yet, consciousness in its primacy over being remains transcen-
dental in this conception, that is, independent of the historical and experien-
tial situation of a human being.
With Heidegger, an ontological turn is provided for phenomenology.
Heidegger renews the questioning of Being in order to replace, inter alia, the
absolute primacy accorded to consciousness in Husserl which is free and
transcendental, with Dasein (Being-there).3 Dasein is inseparable from its
situatedness in temporality and history. That is, Dasein is immersed in
experience, facticity, contingent reality, time and space. Being can only be
‘understood’, by Dasein, as being historical. Being is the pure transcenden-
tal (yet it is no God or supreme being). Instead of a primacy of conscious-
ness over the world (Husserl), or a primacy of subject over object, for
Heidegger there lies a need to question the perpetual interchange between
Being and being, alterity and presence. And this perpetual interchange is
conditioned only by temporality.
For Levinas, Husserl’s transcendental reduction, given the self-referential
character of intentionality, imprisons thinking in a conscious self through
which all ‘understanding’ must pass. The ‘meaning’ of the other is presup-
posed in the translation of this ‘alien’ object into a meaningful object of inten-
tional experience. The problem with this reduction, from a Levinasian
perspective, is that the ‘thing in itself’ (or the primordial ethical ‘suffering’
that precedes the ‘I’ of consciousness) remains undisclosed. Heidegger’s
rejection of Husserl’s primacy of consciousness enjoys greater proximity
with the Levinasian undertaking. But for Levinas, Heidegger replaces the

transcendental Ego with Being and subsumes the ‘alien’ outside into Being.
Yet, Levinas asks, is the relation of human beings to Being one of ontology?
For Levinas the ethical has primacy over the ontological. According to
Levinas, Husserl thought of the Other as the self’s other, and Heidegger
thought of the Other as the being-with of Dasein. Both then thought the
Other through the same (conscious self or Dasein) while Levinas’ concern is
with a way ‘to think the Other as Other’ (for a basic account, see Davis, 1996;
and for a more advanced outline, Llewelyn, 1995). To quote a crucial state-
ment of this concern:
a calling into question of the same – which cannot occur within the egoistic
spontaneity of the Same – is brought about by the Other. We name this calling
into question of my spontaneity by the presence of the Other ethics. The
strangeness of the Other, his irreducibility to the I, to my thoughts and my
possessions, is precisely accomplished as a calling into question of my spon-
taneity, as ethics. (Levinas, 1969: 43)
For Levinas ‘justice, law, right’ are principles of the I’s conscious dwelling in
the world, while ‘ethics’ is the ‘pure’ transcendental (beyond Being,
consciousness or knowledge) that lies prior (a priori) to any (legal) determi-
nation or response to a claim for justice.
For example, a claim to recognize the torture of a person in an application
for ‘refugee status’ (in itself a reductive category of recognition) that may be
evaluated by an official or in a court of law through legal mechanisms of
‘recognition’ and of ‘passing judgment’ fails to ‘recognize’ the absolute suffer-
ing of the other ‘as such’. In such encounters between the law and the subject,
the ethical ‘Other’ before the law is translated into an object for the law’s
mechanisms of adjudication through the law’s own self-reflexivity (its
Sameness). For Levinas, the absolute ‘Other’ is neither an object of know-
ledge and understanding, nor an unknowable empty shell. This absolute
otherness is prereflexive. It is not ontological (a unifying ground of Being)
but ethical (an ethics that precedes ontology) and hence perhaps a radical
ontology that is characterized a priori by a scission between itself (as Being)
and the ethical ineffable ‘call’ to responsibility (as beyond Being). In this
sense, it is not law, the calculable good, or the ontological ground of Being
that is transcendental-proper, but the ethical ‘going-beyond-oneself’ (beyond
the Same).
Law and justice traditionally conceived will thus encounter the suffering
Other by valorizing his/her ‘essence’; for instance, when a decision is made
between categories of ‘good’ and ‘evil’, where the latter is sometimes
condemned, and at other times the necessary suffering or ‘evil’ is tolerated
or encouraged for an apparently ‘higher’ (i.e. transcendental humanitarian
‘good’) goal. In such calculations the encounter with the other is perceived,
translated and regulated through the violent reduction of the other’s needs
through politically determined categories of (‘good’ and) ‘evil’ (see Badiou,
2001). The political and legal framing of the ‘humanitarian’ bombing of the
Republic of Yugoslavia, the apparent need for the sanctions against Iraq, and

the recently condemned ‘axis of evil’ are examples of this dynamic of reducing
the other to the perceived moral, political and economic needs determined by
a handful of dominant western nations. The legal regulation of this respon-
siveness through the universalization of rights and law violates the singular-
ity of the unassimilated other, by attempting, ‘violently’ as Levinas suggests,
to ‘do justice’ by imposing an egalitarian principle that is not ethical, but
calculable according to the predefined interests of the system (no matter how
humanitarian the rhetoric of such interventions). An alternative radical ethical
approach suggested by Levinas requires that our obligation or response
towards the suffering of the other remain absolute and hence not valorized
or categorized (between ‘good’ and ‘evil’), but beyond ‘good’ and ‘evil’.
However, this Levinasian presupposition requires scrutiny – a task that
Douzinas does not undertake in any significant detail in this book.
There are two crucial questions that Douzinas has not critically scrutinized.
First, there is the question of to what extent the Levinasian depositioning of
the metaphysics of the Same fails to account for its own resurrection of
potentially yet another (different but still) metaphysical imposition on exist-
ence, action and potentiality. That is, to what extent Levinas not only
presupposes what he attempts to ‘overcome’ (for instance, crucially, the
Heideggerian analysis and the Hegelian dialectic), but also to what extent his
‘Other’, as the absolute exterior to Being, depends on what it aims to over-
throw (Being)? For Douzinas there is no doubt that Levinasian ethics are a
transcendental presupposition (and thus subject to a critique of its condition-
ing as ground), yet, for him, Levinas’ ground is a profoundly different one
(in that it is ethical) from the ontological grounds of modernity (which are
based on cogito, Being, knowledge, power, ideology and so forth; Douzinas
and Warrington, 1994a: 168–71). The Levinasian ethical ground remains a
ground (albeit anarchical) and it claims to be neither ideal (a concept, an Idea)
nor logical (a logos, a ratio, a reason). It does so by ‘receiving’ (unegotisti-
cally as it claims) an absolute responsibility.
While an ethical response to the injustices of (humanitarian) law is urgent
and necessary, in our view the arguable absoluteness of the Levinasian
ground does not recognize (in the way it is preserved as such by Douzinas)
its own weakness and susceptibility to critique. A suspicion remains regard-
ing the potential erection of yet another absolute law (of otherness) to
counter the absoluteness of the present law’s injustices (of sameness). In other
words this Levinasian ground may not remain as an opening but as yet
another closure, this time around the ‘radically other’ rather than the ‘self-
same’. There is great potential in furthering, through a critique of itself, this
conception of the radical other, but only by placing it in the midst of a
critique of its transcendental deconstruction and reconstruction. This is a
recognition that a dialectic between ethics and ontology, no matter how
radical the distance may be between the ethical and the ontological in
Levinasian terms, remains a dialectic of metaphysical logos (discourse) and
metaphysical transcendence. Hence, Derrida’s critique of Levinas in
‘Violence and Metaphysics: An Essay on the Thought of Emmanuel Levinas’

(Derrida, 1978: ch. 4) could have been explored further by Douzinas in this
book, not only in order to explicate the proximity and the problematic
reading of Heidegger by Levinas (for instance his arguable misreading of
Being-with), but also in order to expose the limit of Levinas’ ethics through
what Levinas himself has later acknowledged as a fundamental problem of
his thought – that is, as Derrida argues, the recognition that he aims to expose
the absolute Otherness of the Other through the language of philosophical
discourse that he aims to transcend. When one is attempting to show that the
Other should not be thought as the Same, one is still thinking. What would
then be even more important for Douzinas’ engagement with Levinas would
be to further examine how Levinas in his subsequent writings responds to
Derrida’s critique (and significantly his exposition of the difference of the
absolute Other on the level of language, between what Levinas calls the
significance of saying and the signification of the said).4
The second crucial problem with Douzinas’ engagement with Levinas lies
with the failure to interrogate further the ‘passage’ between an absolute obli-
gation to respond to what is ‘beyond understanding’ and ‘the necessity of
doing justice’. The non-essence of the Levinasian ‘absolute obligation’ to the
other lies, on one possible reading, between the absoluteness of the ‘beyond-
understanding’ of the suffering inflicted upon the other, and Levinas’ concern
for the ‘necessity of justice’ from within the workings of a legal system
(although Levinas himself is quite unclear on this). While justice, for Levinas,
is not a legality, that is a regulatory technique:
[justice] calls for judgment and comparison, a comparison of what is in prin-

ciple incomparable, for every being is unique; every other is unique. In that
necessity of being concerned with justice the idea of equity appears on which
the idea of objectivity is based. At a certain moment, there is a necessity for a
‘weighing’, a comparison, a pondering, and in this sense philosophy would be
the appearance of wisdom from the depths of that initial charity [of ethics], the
wisdom of love. (Levinas, 1981: 129–48)
There is here a paradoxical initiative to traverse the impassable, to penetrate

the aporia that is the Other in the name of doing justice. Through the always
inadequate ‘responsiveness’ of ‘weighing, comparison and pondering’ a legal
system projects and enforces the other to a ‘self’ (a party to a case with finite
interests) that law can recognize as an (allegedly) immanent (self-generating)
system. The extent to which the necessity of ‘weighing’ (a valorizing
judgment) is inevitable according to Levinas remains unclarified. If the only
ethical stance that remains is for the legal system to recognize that its
encounter with the other’s suffering is always ‘partial, valorized, and incom-
plete’ – that is, that the law cannot attend to absolute suffering in itself – then
how much potential resistance to the ‘rotten’ (Walter Benjamin) operations
of law is left before the law reenacts its violence (Benjamin, 1921/1986)? How
will the absolute radicality of the a priori ethical Other maintain itself
with/against the presuppositions of law? To what extent, if any, does
Levinasian radicality remain plausible in the shadow of a history of law’s

foundations so closely shared with the atrocities justified in the name of

another ‘pure’ transcendence that we have known all too well, that of the
Christian God?5
Killing in the name of human rights remains possible. And today we
witness human rights’ rhetoric as a banal repetition of an obvious facticity of
the violence of law and the violence of both humanism and antihumanism.
Further, notwithstanding the positivization of human rights, the (selective)
setting up of international tribunals, and despite emphasis placed on the
regional and particular, they are not providing any solution to the tragic
denial by the West of its own crimes ‘against humanity’.
III. SUBJECTIVIZATION: BETWEEN THE SELF AND THE OTHER

AND BEYOND SUBJECT-BOUND RIGHTS?
The extent to which Douzinas’ analysis of human rights has been informed
by a Levinasian ethics has been set out above. We argued that Douzinas fails
to consider the implications of the gap between alterity and the attempt to
do justice through legal categories that inevitably ‘sacrifice’ some, and at
times, ‘all’ of the Other (for a penetrating analysis of ‘sacrifice’ in the
administration of rights under the new South African Constitution, see van
der Walt, 2001). Thus the a priori ethics that are meant to inform the ‘imposs-
ible ideal’ (p. 165) of radical natural rights operate in a context where the
subject is already stranded, but offered the utopian hope of a justice to come,
albeit one that will always, perhaps, fail to arrive. There is nevertheless a
‘subject’ (or a humanity) that comes before the law (of rights) (p. 183). In
what follows we discuss how Douzinas accounts for this subject ‘before’
(and of) ‘rights’ and critique the emancipatory possibilities held out for the
subject through (another) human rights.
Douzinas’ account of subjectivization6 is posed in relation to the horizon-
limit postulated between subjectum and subjectus. Subjectum is a concep-
tion of the subject as the predicate for all substance and essence which is
itself not predicated on anything else. Subjectum, then, is the philosophical
hypokeimenon (‘what lies under’) as Aristotle called it (p. 203). Subjectus is
the legal-political subject who is under subjection and submission to the rule
of a sovereign power and/or the political, legal order imposed or seemingly
‘voluntarily’ accepted by the subject as legitimate (p. 217). Douzinas’ allo-
cation of a certain theoretical primacy to subjectum over subjectus indicates
his reception of Heidegger’s critique of the ‘metaphysical urge’ to ask ‘what’
questions (like ‘what is (a) human (subject)?’) (p. 203). The metaphysical urge
(the asking of ‘what’ questions) is usually resolved in metaphysical accounts
by proposing an origin (arche) and an end (telos) and then arranging all
entities and experiences in terms of their distance from that origin (p. 203).
Metaphysicians assume that this origin and the ‘essences’ derived from it
are immediately present to a transcendental Ego or Self, beyond language
and signification (p. 203). Through this, ‘unity is privileged over plurality

and sameness over difference’ (p. 203). Subjectum and the other names given
to it over time (‘essence, substance, the good, God, belatedly, Man, reason,
truth’) (p. 204) is the transcendental principle through which the world is
understood and ordered.
How will this metaphysical urge be avoided in the ‘age’ of human rights
where subjectum is proposed as the arche of law: the Law of law? Does
Douzinas’ project for a ‘Law of law’ as ‘radical human rights’, inspired by
Levinasian ethics and Blochian utopianism run aground as another meta-
physical proposal? To address these questions we must consider Douzinas’
genealogy of human rights and the metaphysics that informs it.
One of the central questions posed in this book – ‘is there a place for tran-
scendence in a disenchanted world?’ (p. 15) – arises out of the apparent post-
modern nihilism where universals have been decried as imperialist and
particulars confine and smother the human subject. Even the possibility of a
human(ism) has barely survived the philosophical critique of its essences that
confine and exclude, or a historicization which exposes the violence and
brutality at its constitutive core. The search for transcendence in this dis-
enchanted world begins with Douzinas reaching back to the classical teleo-
logical world whose natural right is crowned ‘radical natural right’ (p. 44).
Classical justice – whether it was Aristotle’s notion of justice in a static hier-
archical cosmos (pp. 38–44) or Plato’s ideal but functional justice for coordi-
nation and discipline (pp. 33–7, 44) – harboured a potential for domination
by ‘a law-giver from above’. In contrast, the potentiality in physis (nature) to
form the ground of resistance to nomos (law) had been developed by the
Sophists (p. 31). And when physis and nomos were placed in relation, as with
the Stoics, this ‘new natural law’ had the capacity to transgress hierarchical
divides such as that between slave and emperor (p. 31). Physis, then, has
revolutionary potential and signifies movement (p. 44). With this potential-
ity, ‘being’ and ‘becoming’ or ‘essence’ and ‘existence’ cannot be privileged
over each other (p. 29). Natural law is thus the radical ground from which
confining tradition, culture and the past can be resisted in the name of being’s
becoming towards a future utopia that is ‘always yet to come’ – an existence
that is always to be perfected.
According to Douzinas this potential to resist domination through ‘radical
natural rights’ falls foul of the positivism and state formation of modernity.
Unlike the classical conception where law and justice reside together, in early
modernity, justice or right is separated from law. Right is now identified as
freedom from law, from all external imposition upon the individual. With
this move the individual who derived rights from nature was removed from
the ‘social’ order. Communities and social interactions, idealized in the polis
as the zenith of political community, were replaced by the individual who
had rights in a presocial state of nature as with Hobbes and Locke
(pp. 69–84). The social bonds that law reflects and needs for a non-positivist
account of why people obey laws are not to be found in the Hobbesian
theory of modern law. The conceptual removal of ‘community’ in the foun-
dation of modern law is a loss that communities are constantly trying to

augment through myth. These take the form of race, ethnicity, nation or a
reified culture. The modern community persists through cohering myths (see
Fitzpatrick, 1992, 2001). With ‘Scientific individualism’ and the emergence of
the undivided sovereign self, right becomes a power that belongs to the indi-
vidual – it is not the province of law. This paves the way for utilitarianism
which becomes the measure or limit to the drives of the individual. Law
imposes duties and does not confer power (pp. 72–3).
But what of the 18th-century revolutions that proclaimed the emancipation
of man and declared the inalienable character of universal rights? Among the
many paradoxes of the American and French declarations that Douzinas
identifies, two stand out. The first is that the declarations proclaimed a
groundless freedom (pp. 92–5) or the declarations formed their own ground.
This is the paradox that what was proclaimed and declared had already to be
in existence. As Rousseau famously foretold: ‘men should be prior to laws,
what they are to become through them’ (p. 223). One answer to the paradox
proposed by Douzinas is that the declarations constructed a new polity under
the pretext of ‘uncovering’ or ‘describing’ it: the declarations are ‘performa-
tive statements disguised as constative (p. 93) (see Derrida, 1986). The
constituent assemblies were a new coercive legislative power which posited
law and asserted that this power was grounded on the natural autonomy of
individuals (pp. 92–3). Second, the universals were always already particular.
The universal rights could only be guaranteed by national law. These rights
attached to certain citizens of particular polities and not all humans. They
paradoxically ‘perform’ the foundation of a highly localized sovereignty, and
generate violent nationalisms that exclude others (p. 102). Instead of eman-
cipating, the universal declarations transformed universal natural rights to
nation-centred, positivized human rights (pp. 109–14)
But all of this should come as no surprise in light of the critiques of the
18th-century declarations by Edmond Burke and Karl Marx which Douzinas
provocatively situates together (ch. 7; on Burke see pp. 147–57, and on Marx
see pp. 158–64). For Burke the rights of the declarations were metaphysical,
indeterminant and abstract. Heralding Burke as the founder of ‘communi-
tarianism’ (p. 156), Douzinas prepares the ground for his ‘immanent-
transcendent’ foundation for human rights. This ‘immanent-transcendence’,
as we will see, responds to Burke’s call for a recognition that human nature
is socially determined (p. 154) and Marx’s critique of abstract humanism in
which the human loses her concrete content which is filled with the charac-
teristics of bourgeois egotistic man who is separated from other men and
community (p. 159). Douzinas responds to these critiques of the declarations
by suggesting that:
Right can only be grounded on national and local laws, and traditions and the
declarations of human rights remain a ‘nonsense on stilts’ unless translated into
the culture and law of a particular society. But unless the universalising idea of
human rights retains a transcendent position and dignity towards local
conditions [what we interpret as an immanent-transcendence],7 no valid or
convincing critique of the law can be mounted. Rights are local but can only

be criticised and redirected from the point of view of an unrealised and un-
realisable universal. Right operates as a critical function only against a future
horizon, that of the (impossible) ideal of an emancipated and self-constituting
humanity. (p. 165, comment added)
In this formulation universal rights can have no relevance unless they are trans-
lated into the particular (‘dignity towards local conditions’), but in Douzinas’
formulation, no critique of the particular can be mounted without a transcen-
dent point. Hence Douzinas is proposing an ‘immanent-transcendent’ variety
of human rights to form the basis of any critique of law or social and political
practice. The unrealizability of this ideal – and more problematically for
Douzinas’ argument the unrealizability of critique that follows – is then folded
into a utopian claim (we examine the utopian claim in the fourth section).
It is among these contradictions that Douzinas’ approach to the persistent
questions about the ‘ground of law’ and the source of authority for the
humanism of human rights begins to unravel. On the one hand Douzinas
wishes to take on board the critique of humanism and its metaphysical
ground initiated by Nietzsche and Heidegger (pp. 209–16). On the other
hand he wishes to resolve the persistent conundrum around human rights –
the debate between universalism and relativism – by proposing the politico-
philosophical conjunction of an immanent-transcendence. Is this philosoph-
ically and/or politically persuasive?
The philosophical and political critique of a transcendent humanism is
centred on rejecting its metaphysical violence. The classic metaphysical move
in the discourse of humanism was to determine the ‘essence’ of humanum
through the established interpretations of ‘nature’, ‘history’, and the ‘world’
(Heidegger, 1977: 225; Douzinas, 2000: 211). Humanum was then given
the content of these ‘essential’ traits and juxtaposed with barbarum. Meta-
physical humanism, with its often sexist and Eurocentric content authorized
slavery, colonialism and genocide and is manifested in the current world order
through the new imperial wars of the 21st century, also fought in the name
of humanism and the civilized world.
The metaphysical urge has also presented itself in the debate between
universalism (which advances the unrestrained individualism and freedom of
the atomistic subject) and cultural relativism (which insists on the horizons
set by the community, a communion that obliterates individuality) (p. 212).
To this must be added the emerging discourse of a ‘global community’ which
mixes the universalism of US/Eurocentic values and an insistent communion
from which those who attempt escape will be decried as ‘enemies’ and be
subject to destruction. In the face of these critiques of metaphysics Douzinas
proposes a non-metaphysical approach to human rights. It will be the human
rights that are yet to come – and their ground will be in a non-immanent
community of non-metaphysical humanity (p. 213).
The critique of the metaphysical ground of humanism has left the absence
of a ‘value’ by which debates between universalists/relativists can be
resolved. Douzinas’ response to this is to propose human rights as the ‘end
of civilization’ (p. 214), its revised telos. The non-metaphysical approach to

human rights is informed by Heidegger’s critique and Nancy’s extension of

this critique into the thinking of community. Defined negatively by
Douzinas, such a conception of human rights would: reject the attempt to
state what is essential about any being(s); not insist on any version of the
good life; not treat people as synthetic entities with disconnected wants; not
construct community by reference to any essential past manifesting itself
through an obedience to tradition but by exposure to the other whose trace
creates self; and assign human rights not because of the ‘arrogance of subjec-
tivity’ but because ‘humans are destined to be near Being and care for the
other entities through which Being is disclosed’ (p. 215). Inspired by Jean-
Luc Nancy, Douzinas writes: ‘[i]t is only after the disappearance of the
society of atomistic subjects that the non-immanent community of singular
beings-in-common will have a historical chance. The community of non-
metaphysical humanity is still to come’ (p. 213). It is through a process of
‘righting’ (p. 216), not as an accumulation of a series of rights determined by
political superiors, but by a new (ethical) normativity informed by the
primacy of the other and given form through a genealogy of radical human
rights that freedom and equality will flower. Does Douzinas escape the meta-
physics of transcendental normativity as a presupposition of human rights?
The key to evaluating Douzinas’ project is to interrogate his notion of
‘immanent-transcendence’ which he offers as a replacement for subject-
bound egotistical rights. The transcendence in ‘immanent-transcendence’ is
the move towards a new ethical normativity. This normativity is informed
by the philosophy of Levinas. As we argued earlier, the Levinasian ethics is
itself in need of critique. Levinas also proposes a radical ontology that may
impose closure around alterity. Despite the ‘other’ remaining beyond under-
standing, Levinas arguably admits a weighing and balancing when confronted
with the necessity of doing justice. Thus the violation of the other is not
overcome. The transcendent ground for human rights that Douzinas articu-
lates through the genealogy of radical natural right is itself subject to para-
doxical limits. And if the metaphysical bind of humanism is also not escaped
or is still to come, then the panacea of rights is only granted the hollow hope
of a utopian ideal. The historical chance of a non-immanent community that
Douzinas would like to see emerge will not arise from nowhere. The undoing
of current modes of social organization and its ideological apparatuses – the
age-old formula of revolution – also presents the conundrum of what limits
will determine the allocation of social goods and the extent of freedom in
community-as-revolutionary-communion. The totalitarian closures that
have decided these questions were never true to the ideals that informed
social transformation. However, the paradox of an impossible ideal to come
hardly offers the revolutionary, the refugee or the erstwhile liberal humanist
an escape from infinite lingering in the antechamber of emancipation.

IV. BETWEEN A RETURN TO HUMANITY AND A RETURN OF

HUMANITY
If radical humanism as an ‘immanent-transcendent’ ideal is the ‘form’ of the

emancipatory ground that Douzinas offers, from where does this new
human(ism) get its content? The ‘dignity toward local conditions’, one aspect
of the double-measure, and the immanence (to law) of immanent-transcendent
rights, is a double source of content. But this community must also be a non-
essential one – a tension that is necessarily (un)resolved by the primacy of
the other (who is beyond understanding) which informs the normative or
transcendent aspect of what Douzinas proposes. Will the measure that
Douzinas advances necessarily have to remain ‘content-less’ (and perhaps in
both senses of the term)?
As Balibar writes, this has been the central question for philosophical
anthropology: on the one hand the symbolic (‘logical’ or ‘singifying’) struc-
tures of representation; and on the other hand, the investigation of the
historicity of the complexus essence-existence of human beings in relation to
their presupposition of Physis, Nature, God, Logos, World, conscience, Law
and otherness (Balibar, 1994). This ‘empirico-transcendental doublet’,
Balibar argues, the difference between empirical individuality and ‘that other
eminent subjectivity’ which alone bears the universal, the ‘transcendental
Subject’, creates the dialectic out of which poststructuralism has attempted
to break free, ‘to transgress’. But to ‘trangress’ what? The question as we
reformulate it, following Nancy, lies between a return to an ideality of
meaning and the return of meaning, of a radically different being of
humanity. The return to such an ideality is still today predominantly
discoursed as a return to the Kantian project, as if in the meantime the
critique of Kantianism never took place (Nancy, 1997). Instead, Douzinas’
questioning for a radical neohumanism would be both enriched but also
problematized further through Nancy’s notion of a return ‘of’ a more open
sense of meaning, ‘of’ humanity, rather than a return to another absolute
ideology of what counts as ‘human’. We are still missing ‘the people’ from
our constructions, as well as a more in-depth questioning of ‘what is a
people?’, ‘who are we?’.
Douzinas’ attempt to transgress the metaphysics of human rights is under-
taken through an endorsement of Heidegger’s reconceptualization of exis-
tential (Sartrean) humanism which the latter undertook by questioning the
being-human of humanism. In the presentation of existential freedom and
subjectivity in Sartre, existence takes priority from essence (that is, to hazard
oversimplification for the moment, the nature of a human being is to create
its historico-political determination herself, and to break away from any
pregiven codes). In this sense, what lies before the creativity as employed by
a human being is nothingness, ‘the absence of all essence’ (p. 198). Sartre,
following Nietzsche in this regard, attaches extreme responsibility to the
creation of values by a human being herself. The only guidance to self-
creation comes with the responsibility of promoting freedom and the

responsibility for oneself and for others (p. 199). For Sartre, the other person
is ‘a freedom confronting me’ and this encounter is where we find ourselves
(‘with-others’). This existential nothingness can indeed help us capture the
essentialization in liberal human rights as seen in the declarations. The
essence of the human in these postulations of rights creates a code imposing
a specific determination of what it means to be human in order to benefit
from these determined rights. Human rights in this sense create a political,
moral, legal and cultural code of essence that portrays itself as a definitive
and unquestionable formulation of human values. Sartre’s existentialism does
not lead to nihilism but to the need for a passionate struggle against the
arrogant orthodoxy of the universal essence of humanity. Thus, Heidegger’s
critique of Sartre’s prioritization of existence must be approached with care.
Humanism is a common target of both philosophers when seen as an impo-
sition of orthodoxy, of a law that asks and predetermines the question ‘what
is a human being?’. Douzinas shows this: ‘the central indictment is that
humanism, by defining the essence of man once and for all, turns human
existence from “open possibility” into a solidified value that follows the
prescriptions of the metaphysicians’ (p. 210).
The difference between Sartre and Heidegger is that while Sartre thinks
within the dialectic of existence-essence, Heidegger finds in this very use of
the dialectic (no matter which term is prioritized) the same problem: a
determination of priority. For Heidegger another thinking of humanism
requires a distancing from all such types of humanism and antihumanism and
a penetration through the radical question behind both: his inquiry is
conditioned in his early work by Being, and to this extent it can be asked
whether Heidegger himself is not just merely positing another supreme
Sameness in the grounding of human existence. However, one needs to
examine Heidegger’s work further, from ‘Being and Time’ and through to the
later writings. On the basis of these it could be argued that the new, the
potential and the unknown are what lies as a ‘discordant condition in itself’
(for an alternative critical reading of Heidegger, see Zartaloudis, 2002). In
other words, for Heidegger to say with Sartre that nothingness is the
condition of freedom, poses the crucial problem of metaphysical presuppo-
sitions but does not encounter the problem fully. To translate this Heideg-
gerian critique into human rights discourse, both to the humanism of liberals
(as a posited code) and to the (anti)humanism of existentialism (the positing
of an anti-code, nothingness as the lack of human essence) does not think
through the question of the Being of the being-human in itself.8 This question
is nothing other than a reconceptualization of existence in itself beyond the
logic of postulating a (legal) signification on the ‘proper’ of humanity (no
other philosophers today have explored this question with more passion than
J. L. Nancy and G. Agamben).

V. (NON) RECOGNIZING: UTOPIA(N) ENDS?
This volume contains an interesting reading of the Hegelian dialectic of

recognition together with an indication of the limits of its logic of negativity
(pp. 265–73, 280–96). Douzinas relies on the Hegelian dialectic of recognition
to show that:
human rights are expressions of the struggle for recognition amongst citizens
which presupposes and constructs the political community [. . .]; Many aspects
of recognition take the form of rights and all rights are in this sense political:
they extend the logic of public access and decision-making to ever-increasing
parts of social life. [. . .]. Human rights [. . .] (are) signs of a communal acknow-
ledgement of the openness of society and identity, the place where care, love,
and law meet. (p. 295)
There are several questions that emerge in reading Douzinas’ treatment of

the Hegelian dialectic of recognition: first, the very reading of this dialectic
through recognition seems to place a misleading or self-conflicting emphasis
on recognition as a possibility of countering misrecognition. Douzinas amply
demonstrates that recognition is always already a misrecognition, and this is
so in Hegel’s own terms. However, when this is translated into the discourse
of human rights, it seems that the dialectical (im)possibility, of let us say
‘complete recognition’, is utilized not as a cataclysmic criticism of the logic
of recognition, but as a basis for explaining the paradoxes of human rights
discourse and practice (and thus in a sense potentially justifying their failure
in their fantastical overcoming). This is a very Hegelian method of critique.
Hegelianism may dangerously become the magna mater of any attempt to
think otherwise. In this sense too, to remain within Douzinas’s references,
Levinas’ critique of Hegelianism is not explicitly taken up.
A person may attain some recognition through a constitutional regime of
rights but not, as Douzinas shows, ‘full’ recognition of his/her being as a
whole. What this misses as a logic is: first, that partial recognition, by being
always partial and monocular – given that the person’s claim is filtered
through a logic of legal rights – always fails to do what it proclaims (to recog-
nize being ‘as a whole’) (for a consideration of constitutional rights in these
terms, see van der Walt, 2001). Second, the logic of rights through this dialec-
tic of recognition does not and cannot look at the violence and the injustice
of everything that has taken place prior to a claim for recognition within the
predetermined movement of the dialectic. It cannot do that because dialecti-
cal recognition posits a ‘supreme’ system of encounter that always begins
from its predetermined ‘self’ and not from the otherness of a violated being.
It is a dialectic of law that does not address (or ironically recognize) the
violence of its own origin in violence. In this sense, human rights are not
‘the place where care, love and law meet’, because legal recognition is always
partial recognition (if at all) of the dialecticized humanity of a human being.
If one is to follow Levinasian ethics perhaps it could be said that the absol-
utely other resists appropriation or recognition absolutely, prior to the

violent translation on the basis of the dialectical right claimed before the law.
Resistance comes prior to ‘righting’. ‘Care’ of/by the law is always an impo-
sition of how far this caring for the (violated by the carers) other can go.
A (mis)recognition is a return to a misrecognition in a dialectical circle that
reduces the different to the same identity. That is, the legal system of rights
recognizes only what is predetermined as acceptable on the basis of evalu-
ating the different through a question such as ‘does it meet our definition of
what we share in common, of our common-being, that is of our definition
of the human?’. What the logic of recognition cannot think is thus what
happens to human rights when one accepts that we have no common being,
but that the common (the community) has a ‘being-in-common’ that should
never be metaphysically essentialized. In philosophical terms, Hegel’s dialec-
tic of ‘the desire to become a subject’, as Nancy has argued, is yet again
another will-to-meaning (the logic of signification) and thus it seems to us
that a logic of recognition cannot be maintained after the radical critique of
metaphysics, and of the signification of essence (in this work via Sartre,
Heidegger and Levinas). This does not mean of course that the study of
Hegel’s thought has exhausted its possibilities.
We cannot develop our perspective here in any detail, suffice it to say the
following. The being-form of rights is in our contention always paradoxical,
not because in their paradoxical way they offer a choice between their free
use and their abuse, but because they are the imaginary symbolic constructs
that reinforce the dialectical capacity of the law to maintain itself, to repro-
duce itself in relation to its presuppositions. Instead, we must think towards
what it would mean to think of ‘the free use of freedom (the proper impro-
priety of humanity)’.
What happens to Douzinas’ reading of Hegel when it is seen through his
reading of Bloch’s division between human rights and legal rights? Indeed,
what happens to the dialectical formation when the humanism that delimits
the human of rights has all along been the presupposition that law enforces
in order to reproduce itself as necessary and consensual? These are the ques-
tions we shall explore here. To an extent Douzinas is right when he writes:
‘the legal subject is the creation of positive law and the accompaniment of its
rules, the sovereign plaything and its potential critic, the autonomous centre
of the world as well as the dissident and rebel’ (p. 373). As such, rebellion is
‘of’ law, within law, the other law of ‘its’ supreme dialectical self-same law.
To use another terminology, the legal subject, as both autonomous (the
Enlightenment fantasy of the self-giving-law) and subjected, cannot create a
subjected self and then absolutely renounce it in order to rebel against its
own often monstrous creation (the inevitable necessity of its dialectical legis-
lation). This would run counter to its very form-of-existence and to the
fundamentally ‘necessary’ continuation of rights as a dialectic system.
To rephrase, absolute otherness is instantly reinscribed within this dialec-
tic of (mis)recognition, the moment he/she arrives on the scene, it is thrown
into an indistinction between inclusion-exclusion, so that from within the
dialectic gloss it has its menacing potential effaced as irrational, violent and

unreal and yet ‘recognized’. It becomes a faceless voice within the dialectical
identification of its difference and yet it enjoys a dialectically simulated face
inside-outside it. There lies a question of radically different viewpoints.
From within the dialectic the all-seeing eye covers, uncovers, recovers. From
outside the dialectic (to stay within Douzinas’ discourse – the Levinasian
absolute exteriority), resistance has primacy. From a Levinasian perspective,
the dialectic denies the absolutely different face of the other in its synthetic
unity of the other and the same.
From our perspective no such dialectic superpostulated synthesis (end) can
handle the fragmentation that affects the coherence of a personality or the
multiple narratives that can be generated from the life of one individual. As
G. Deleuze (1988) argues, ‘there will always be a relation to oneself which
resists codes and powers; the relation to oneself is even one of the origins of
these points of resistance’. The multiplicitous-becoming of humanity is not
a dialectic bundle of rights. In Hegelianism this multiple has become a
metaphor for an array of synthesizing concepts centred on the force of the
ordering of needs and the need for order.
Douzinas demonstrates this but also insists on a supra-dialectic of promis-
sory disturbance of the actual state of this ordering. For Douzinas, the prox-
imity-difference to the Hegelian dialectic is best shown in the following
phrase: ‘there can be no real foundation of human rights without an end to
exploitation and no real end to exploitation without the establishment of
human rights’ (pp. 176–7). Is this not an unacknowledged Marxist-Hegelian
dialectic of dehumanization? How will human rights survive the destruction
of the monocular and violent legal rights and the state-based community of
right-holders that emanates from it? What is Douzinas’ utopian disturbance
or difference from the actual?
In close proximity to Derrida’s ‘Messianism without a Messiah’, Douzinas
frames the utopian end as the social aspect of the messianic experience.
Douzinas quotes Derrida who describes the messianic as ‘an irreducible
amalgam of desire and anguish, affirmation and fear, promise and threat . . .
Messianicity mandates that we interrupt the ordinary course of things, time
and history here-now, it is inseparable from an affirmation of otherness and
justice’ (Derrida, 1994: 378). In our eyes, utopia is es gibt (the gift) of a dialec-
tic sacrifice, and the messianic becomes the ‘disruption-recovery’ of its trace.
For Douzinas the end of human rights is both a messianic eschatology that
never arrives, a promise that is always yet to be realized, and also a begin-
ning, a ‘future anterior’ that is the possibility of human emancipation through
the radical potential of human rights (pp. 336–42). This utopian promise of
human rights is opposed to any universal ideal akin to a Kantian moral law
(p. 195). The alterity of the other, which Douzinas elaborates through Drucilla
Cornell’s notion of the ‘imaginary domain’ (we have examined the Levinasian
aspect of this above), renders any universal position or characterization of
the whole person as a ground for legal intervention illegitimate. The projec-
tions of the ‘imaginary’ (each person’s imagination of who he/she is) defer
from person to person. The existential integrity of each person is held

together by a fantasy of completeness which allows each particular being to

create ‘fragile narratives of biographical coherence out of the many “subject
positions” and disconnected fragments of [their] existence’ (p. 337). For
Douzinas, human rights plays a central role in constructing this fantasy, for
the hope of freedom and equality, the central values of human rights, are
carried in the fantasy and help to ‘inscribe the utopian but indispensable
promise of integrity onto self and the body politic’ (pp. 337–8, 378–9).
This future anterior of anticipated bodily completeness, which Douzinas
draws from Lacanian psychoanalysis and Drucilla Cornell, is then linked to
Bloch’s utopianism, a revival of radical natural rights as the basis of utopian
hope. According to Douzinas’ amalgamation of these theoretical insights, we
conceive of ourselves on the one hand as beings who are fractured and
dismembered by the allocation of socially and historically constructed differ-
ence and oppression, and on the other hand as harbouring the potential for
transcending this allocated (dis)embodiment, not as abstract bearers of rights
but as the beings capable of experiencing freedom based on individual
integrity. This formulation expresses the central regulative ideal presented in
this book: human rights as an immanent-transcendent ideal. The concept of
an immanent-transcendent ideal of human rights is a means of bridging what
is a familiar gap between the empirical and the ideal – an approach that brings
Douzinas strikingly close to Jacques Derrida’s treatment of the ideal as end
in Specters of Marx (Derrida, 1994: 61–75, 86–7).
Derrida and Douzinas refer to the gap in Francis Fukuyama’s thesis on the
end of history. In Fukuyama’s triumphant announcement of the end of
history he asserts that the ideal of liberal democracy and human rights have
finally been realized. There is of course a gap between this ideal and the
present empirical reality that ‘never have violence, inequality exclusion,
famine and thus economic oppression affected as many human beings in the
history of the earth and humanity’ (Derrida, 1994, 85; Douzinas, 2000: 339,
378). On Derrida’s account, despite the historical inadequation of a regula-
tive ideal, a Marxist critique remains urgent and necessary for at least two
reasons: first, in order to reduce the gap as much as possible, ‘in order to
adjust “reality” to the “ideal” in the course of a necessarily infinite process’;
and second to put into question the very concept of the ideal (Derrida, 1994:
86–7).9 This paradoxically maintains the ideal, whether it be the human of
human rights or democracy, as a horizon to come.
The formulation of this horizon to come through the concept of
immanent-transcendence by Douzinas attempts both to preserve the presup-
position of the ideal but also to adjust the ideal to reality – that is to the
alterity of a multitude of particulars and their many rationalities to come
(p. 165). There is a certain end of history in this formulation – the end of the
history of the abstract human – the end of adjusting the actual to the ideal.
In this Douzinas is proximate to Kojève:
which means that even while he speaks from now on in an adequate fashion of
all that he has been given, post-historical Man must/should [. . .] continue to
detach [underscored by Kojève] ‘forms’ from their ‘contents’, doing this not in

order to transform the latter actively, but in order to oppose himself [underlined
by Kojève] as a pure ‘form’ to himself and to others, taken as whatever sorts
of ‘contents’. (Kojève, 1947: 437; Derrida, 1994: 74)
Derrida offers a reading of this passage that resonates with Douzinas’

messianic eschatology of the end of human rights:
The ‘logic’ of the proposition just quoted . . . [Kojève above] . . . might indeed
correspond to a law, the law of the law. This law would signify the following to
us: in the same place, on the same limit, where history is finished, there where
a certain determined concept of history comes to an end, precisely there the
historicity of history begins, there finally it has the chance of heralding itself –
of promising itself. There where man, a certain determined concept of man, is
finished, there the pure humanity of man, of the other man and of man as other
begins or has finally the chance of heralding itself – of promising itself. In an
apparently inhuman or else a-human fashion. Even if these propositions still call
for critical or deconstructive questions, they are not reducible to the vulgate of
the capitalist paradise as end of history. (Derrida, 1994: 74; emphasis in original)
In Douzinas’ formulation there is a conflation of end as messianic eschatol-

ogy, the hope of a yet to come, and the end as a beginning, the future anterior
which is the imagining of an emancipated human through the radical norma-
tivity of human rights. Being (human) is becoming (human), there is a unity
of essence and existence. But this remains rather unclear in this volume.
For Douzinas, human rights, reading Bloch, are the utopian element behind
legal rights. Human rights entail two sources, in Bloch’s analysis, on the one
hand, there is dominium (legal dominance over things and people, posses-
sion and property) and on the other hand there are human rights as adopted
by the oppressed (pp. 244–5). This is based on the natural law heritage that
Bloch elevates over and against the positivization of liberal rights. For Bloch,
however, natural law provides a ‘sober mode of anticipation’ for justice, in
contrast to the ‘enthusiastic mode of anticipation’ of social utopias. Natural
law does not coincide with justice, but is the banner of those attempting to
achieve justice towards a concrete (not abstract) just society. The problem,
however, is that ‘in modernity with the extensive positivization of human
rights, the external division between legal and human rights has been repli-
cated in the body of human rights themselves’ (p. 244).
Thus, the utopian element is always-already framed in the language of
rights. A peculiar juridical-linguistic framing, if the future anterior of utopia
is to maintain its potentiality. It is always already a return-to-rights, as it
seems, always already, rather than an affirmation of multiple potentialities of
struggle. The ‘here-now’, is the present-presence as a presupposition of such
circularity, which (de)limits actuality and potentiality to the technology of
rights. This is why, as Deleuze and Guattari suggest, human rights remain
axioms, or in Nietzschean terms, human rights remain the impure mixture
(of a becoming with history: the present; Deleuze and Guattari, 1994).
Utopia as the end of rights is such a mixture, and as Deleuze and Guattari
write, ‘even when opposed to history it is still subject to it and lodged within

it as an ideal or motivation’ (1994: 110). It would require a wholly separate

work to indulge this radical ontological critique of the present, yet suffice it
to hint at the following: ‘history grasps the event in its effectuation in states
of affairs or in lived experience, but the Event in its becoming escapes history’
(1994: 110). Utopias are hyperactive machines of desire reproduction. As
desire is reproduced, and not any longer poetically (creatively) resistant, it
produces itself as the spectacle of the democratic market. If there is a
universal state, to paraphrase Deleuze and Guattari (which there is not), then
it enjoys the form of a market-cracy, which is the only universal thing in capi-
talism (1994: 110).
The difference that Douzinas aims to redirect between classical utopian
(identified) ends, and the Blochian open-endedness as combined with an
impossible epiphany, is to be seen as ‘transcendent-immanent’. Utopianism
for Bloch is transcendent without transcendence:
it [Utopia] is rectified – but never refuted by the mere power of that which, at
any particular time, is. On the contrary it confutes and judges the existent if it
is failing, and failing inhumanly; indeed, first and foremost it provides the
standard to measure such facticity precisely as departure from the Right; and
above all to measure it immanently: that is, by ideas which have resounded and
informed from time immemorial before such departure, and which are still
displayed and proposed in the face of it. (Geoghegan, 1996: 145)
Utopianism is not confined, in addition, to ‘The’ utopia but to a multiplicity

of forms as ‘a free-floating energy’. It is transcendent(al) as to its utopian
movement from both viewpoints of (other) origin and (open) end; and
immanent as to its means from both viewpoints of ethical-primacy in the
radical-break-of-the-ontologization of the self, and of the paradoxical ontolo-
gization of the rights-bound subject. For the overcoming of both certainty
and uncertainty in the present and of the present, indeterminacy and the
opening (which really should mean the giving-up of the ends-discourse) of
(utopian, or in different terms, potential) ends, is the forming-energy of ques-
tions we need to ask. While there is great value in not thinking of the future
as predetermined and static, this on its own will not suffice for a utopian
project to unravel its potential. Indeed, if Bloch ‘fails’, as Douzinas acknow-
ledges, to avoid later giving primacy to natural rights over utopia, then one
may need to further question to what extent a mere reversal of primacy here
suffices as an argument against the injustices of rights in the present. In
addition, if Bloch’s utopia becomes the wholeness of a multiplicity of
energies that resist the present, this wholeness risks becoming totalized
(hence predetermined), exactly against the ‘spirit’ of what it aims to over-
throw. As Adorno famously put it, ‘for just as there is nothing between
heaven and earth that cannot be seized upon psychoanalytically as a symbol
of something sexual, so there is nothing that cannot be used as symbolic
intention, nothing that is not suitable for a Blochian trace, and this every-
thing borders on being nothing’ (Geoghegan, 1996: 145). We must not wait,
but create (to risk a slogan). That is, to have done with the negation of evil

(in waiting) and to affirm that ‘ethics begins only when the good is revealed
to consist in nothing other than a grasping of evil and when the authentic and
the proper have no other content than the inauthentic and the improper’
(Agamben, 1998b: 13). This is the problem that can come to no ‘end’.
VI. ‘END’NOTE?
Douzinas has provided a valuable contribution to the initiation of a radical

questioning of human rights. The end of human rights (which may take a
longer time than anticipated), with-and-despite the loss of their utopian ends,
may be, in contrast to Douzinas’ hope, the beginning for a radical politics to
come ‘beyond human rights’ but with the humanity of those marginalized as
non-human in the dialectics of legal ‘righting’ (and legal writing). Perhaps,
too, the unitary question of this potential politics could be the end of the
transcendental presuppositions that tradition has endowed us with; what
Agamben in writing about human rights has described as their ‘immediately
vanishing presupposition (and, in fact, the presupposition that must never
come to light as such)’, in his terms, ‘bare life’ (Agamben, 2000: 15–29). In
Douzinas’ analysis of ‘subjectus’ he demonstrates that he knows this need,
yet he maintains a demand for an emancipatory project through the language
of rights which as a negative principle, no matter its significantly progressive
radical reading, cannot but in the ‘end’ risk distorting the affirmation of
difference ‘as’ difference, alterity as radically other. Douzinas seems to
acknowledge this risk. This is perhaps the paradox of critique – that any
survey of the actual (the existence of institutionalized legal rights) and of the
possible (here, the future anterior) must ‘risk’ to unravel.
This risk lies fundamentally in the positioning of the Blochian transcen-
dent (the beyond of law) as immanent to the transcendental (the Law of law,
the violent origin of law), that it aims to struggle against. But this risk lies
also with the unquestioned problems that underpin a Levinasian theoriza-
tion of the other. Utopia risks becoming, despite its aspirations, an eulogy to
the continuation of dominance and oppression and hence a future anterior
that becomes nothing-that-is-possible and everything-that-is-impossible.
Even a radical natural law retains the problem of inscribing a certain natural
(i.e. metaphysical) essence to ‘life’. The same way, ironically, in which
modern juridical and political notions of the ‘human’ inscribe it into citizen-
ship, nationality, the sacred and so forth. How are we to conceive of a freed
(from negative presuppositions) humanity, if not by risking the loss of the
meaning endowed to it by tradition and metaphysical history? We urgently
need to rethink all our political and juridical categories and essences further
(see generally, Agamben, 1998a, 1998b; Lacoue-Labarthe and Nancy, 1997).
If we are to combat both the universal and the particular, can we do this
without rethinking the ontological presuppositions of law and the political?
It is not convincing any longer to ‘settle’ with the undecidable of a decon-
struction of human rights, just as it is not sufficient to assert the primacy of

the different. How are we to combat the univocal ultimacy and universality
in the essentialization of the humanity of the law (of human rights)?
Humanity cannot be seen as a genus that will bring together the universal
and the particular, or different particulars. Nor should we resort to the
nihilism of localized particularities which so often have led to apathy or
violence. We need to think away from the return to a ‘simple’ (i.e. univocal,
universal) ideal meaning of humanity. We cannot resort to unknown, tran-
scendent, over and beyond, categorical imperatives (and obligations). This is
the trivium (the intersection) of questions that remain open and urgent,
henceforth, to the ‘end’.
NOTES
We wish to thank the anonymous referees for their helpful comments. Numerous
discussions with Costas Douzinas and Peter Fitzpatrick helped us to identify the
themes developed here. Costas Douzinas graciously read and commented on this
review. Our thanks also to Peter Goodrich for his incisive comments on the penulti-
mate version.
1. See C. Douzinas, The End of Human Rights: Critical Legal Thought at the
Turn of the Century (Oxford: Hart Publishing, 2000), ch. 1. Page references in
parentheses in the text of this article are to this volume.
2. This notion of ‘dike’ is based on Douzinas and Warrington’s reading of
Sophocles’ Antigone in C. Douzinas and R. Warrington, ‘Antigone’s Law: A
Genealogy of Jurisprudence’, 1994b); see also the more extensive, C. Douzinas
and R. Warrington, ‘Antigone’s Dike: The Mythical Foundations of Justice’
(1994a: ch. 2); and the more recent, C.Douzinas, ‘Law Deathbound: Antigone
and the Dialectics of Nomos and Thanatos’ (1999: ch. 9).
3. To risk simplification: this is not his conception for ‘human existence’ (since
M. Heidegger does not discourse on the existence/inexistence of beings), but a
radical reconceptualization of thought and action on the basis of the openness
of Dasein (see Heidegger, 1962: part 1).
4. We cannot provide further clarification of Levinas’ critique and development
of his project in his later works, but see E. Levinas (1981) and (1993).
5. This line of questioning can be considered in the context of human rights
discourse along the following lines. Under a legal human rights discourse the
legal subject is empowered (in a legal sense) with rights in order to demand
recognition of her/his struggle against injustice and satisfaction of her/his
needs. Yet, within this discourse the human being (as legal subject) is to be
empowered, heard and be allowed to speak in a specifically western, abstract
and legally biased language. When faced with the singular other (for instance,
the Afghan refugee) her/his demand for asylum and protection is translated
automatically at the gates of the western polity in terms of legal rights. In facili-
tating the illusion of an impossible ‘open’ listening process made possible, the
legal system will only accept the translation of her/his demands into legal
discourse (a discourse that is already a biased code of meaning and interaction).
The singularity and difference of the other are violently silenced in order to be
legally recognized (and thus only partly, if at all, assimilated). To read the
Levinasian ethics of otherness within a legal discourse of rights distorts the face
of the (Levinasian) other and gives it a form that the west can recognize in terms

of its own needs (rather than in terms of the other’s suffering). That already
takes place at the start of the legal process of ‘recognition’ (which Douzinas
deems to an extent ‘necessary’ in the sense of describing actual practice) despite
the emphasis Douzinas will place, as we shall see, on this process always being
partial, unfinished and potentially dangerous (and which, as ‘end’ of the
process, Douzinas will eventually claim to be im/possible).
6. The question of personhood or subjectivity is the second major critical horizon
that Douzinas and Warrington have developed throughout this trilogy, but one
that finds its major critical engagement in this third volume. The central
premise here being the following: ‘if the legal person is an isolated and narcis-
sistic subject who perceives the world as a hostile place to be either used or
fended off through the medium of rights and contracts, (s)he is also disem-
bodied, genderless, a strangely mutilated person’ (Douzinas and Warrington,
1994a: 172). This conception of justice, Douzinas and Warrington have argued,
reduces the concreteness of the other and is based on notions of fairness, in-
clusion, reciprocity and formal equality.
7. Transcendence can be called ‘immanent-transcendence’ if it is the transcendence
‘of’ law and in this sense immanent ‘to’ law.
8. For Heidegger the subject is essentially homeless (without essence). The milieu
of homelessness (which is very proximate to Sartre’s nothingness) becomes the
plane for the search of a non-metaphysical radical humanism. Ambivalence,
remains, in that Dasein ‘is and is not’. Balibar puts this in an excellent brief
formulation, when he writes,
It [Dasein] deconstructs and destroys the concept of the Subject, but it also
deconstructs and destroys the concept of the essence (or, if you like the
concept of ‘concept’ in its traditional constitution). If there were something
like an ‘essence of Man’, that essence could not be ‘the Subject’ (nor could
it be the object, of course), i.e. a universal being immediately conscious of
itself (himself), given to itself (himself), imaginarily isolated from the exis-
tential context and contents which form its being-to-the-world, to the
human situations. But neither can we consider the Dasein, which substi-
tutes the Subject, as an ‘essence’, although it appears as a generic concept of
existence. It is rather the name, the always still provisional term by means
of which we try to explain that proper philosophy begins when the ques-
tions about ‘essences’ are overcome. (Balibar, 1994: 5)
9. Though he refers affirmatively to Derrida’s Specters of Marx several times

(pp. 339, 378), Douzinas does not treat the significant gulf between the Kantian
notion of critique he expressly adopts (p. 3) and its contrast with Marx’s
method of critique. It is the Marxist notion of critique as a procedure capable
of undertaking self-criticism that Derrida deploys and he distinguishes this
from the ‘dialectical method’ or ‘dialectical materialism’ of Marx (Derrida,
1994: 88). Marx saw the point of critique as:
not to explain practice from the idea but [to explain] the formation of
ideas from material practice. He accordingly reaches the conclusion that:
‘all forms and products of consciousness cannot be dissolved by mental
criticism, by resolution into “self-consciousness” or transformation into
“apparitions”, “spectres”, “fancies”, etc., but only by the practical over-
throw of the actual social relations which gave rise to this idealistic
humbug; that not criticism but revolution is the driving force of history,
also of religion, of philosophy and all other types of theory. It shows that

history does not end by being resolved into “self-consciousness” as

“spirit of the spirit”, but that in it at each stage there is found a material
result’ (Marx, 1978: 164).
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Law, Ethics and the Utopian End of Human Rights

Article in Acoustics, Speech, and Signal Processing Newsletter, IEEE · June 2003

Stewart Motha Thanos Zartaloudis

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Law, Ethics and the Utopian End of Human Rights

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LAW, ETHICS AND THE

STEWART MOTHA AND THANOS ZARTALOUDIS

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violence of the metaphysical presuppositions of law? By this questioning we

II. HUMAN RIGHTS: GROUNDS OF CRITIQUE WITHOUT CRITIQUE

Indeed, one of the most crucial points of Douzinas’ critique of human

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To think radically of human rights requires an inquiry into what it means to

Modernity, in destroying any generally acceptable conception of value or virtue

Before considering Douzinas’ reliance on Levinas’ ethics further we shall

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The principal question of this volume is the possibility of transcendence

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the thinking self (a cogito) questioning the so-called ‘natural’ knowledge

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[justice] calls for judgment and comparison, a comparison of what is in prin-

There is here a paradoxical initiative to traverse the impassable, to penetrate

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foundations so closely shared with the atrocities justified in the name of

III. SUBJECTIVIZATION: BETWEEN THE SELF AND THE OTHER

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human rights is informed by Heidegger’s critique and Nancy’s extension of

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IV. BETWEEN A RETURN TO HUMANITY AND A RETURN OF

If radical humanism as an ‘immanent-transcendent’ ideal is the ‘form’ of the

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V. (NON) RECOGNIZING: UTOPIA(N) ENDS?

This volume contains an interesting reading of the Hegelian dialectic of

There are several questions that emerge in reading Douzinas’ treatment of

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together by a fantasy of completeness which allows each particular being to

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Derrida offers a reading of this passage that resonates with Douzinas’

In Douzinas’ formulation there is a conflation of end as messianic eschatol-

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it as an ideal or motivation’ (1994: 110). It would require a wholly separate

Utopianism is not confined, in addition, to ‘The’ utopia but to a multiplicity

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Douzinas has provided a valuable contribution to the initiation of a radical

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9. Though he refers affirmatively to Derrida’s Specters of Marx several times

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history does not end by being resolved into “self-consciousness” as

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