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martes, 8 de enero de 2013

Human Rights and the Victims of History

The Victims of History: The Real Foundation of Human Rights.
A Deconstructive Approach
José Bayardo Pérez Arce
The foundation of human rights is still an open question. While some affirm that their very foundation lies in human nature, others argue that they are mere political conventions. The question is quite problematic. The naturalistic theory, i.e. the conception of human rights as inherent to human nature or to human dignity, emphasizes both features of universality and inalienability of human rights. In short, human rights are a transhistorical reality. Conversely, the constructionist approach, which also includes both relativist and pragmatist approaches, highlights the historical condition of human rights. In this case, not the nature but both the context and the institutionality of human rights, i.e. their reference to specific cultures and social-political structures, are the bearers of the ‘human’ feature to human rights.
Notwithstanding the radical opposition between both approaches, four issues emerge from such antagonism: the universality of human rights, the question about the ‘human being’ and the meaning of human action, and the source of the constitutive force of human rights.

The Problem of Universality
The naturalist theories postulate a transhistorical human nature as the root of the universality of human rights. In consequence, any form of exclusion from human rights means automatically an exclusion from the set of humanity. Conversely, the constructivist theories outline a figure of human being historically continuously reconstructed, and then, the universality means to participate in this process. In any case, the issue of exclusion undermines any possibility of ‘humanity’ since the universality itself excludes the exclusion.
However, since the assumptions of naturalistic universalism are based on a metaphysical-non-scientific conception of the world, which does not provide any effective foundation but a theoretical or even a faith object, human rights become “flatus vocis,” meaningless words lacking the capability to involve those who do not share the same world vision or belief. This does not mean that a scientific[2] demonstration of the human nature or human dignity would be more effective, given that from science no right can be deduced. Nonetheless, some beliefs of religious groups may support the idea of human rights, but since beliefs are positive statements, i.e. linguistic constructions structured as affirmation, their capacity to enable agreements as to embrace the reality is very limited.
On the other hand, constructionism set the conditions for cultural relativism, which enhances the influence of the context over the worldviews, and thus it points to the contextualized powers as determinant factors for the institution of rights and meanings. In other words, human rights may be valuable in one culture and not in another. On the basis of such limitations, the cultural relativists grapple with a two-faced problem. If human rights are not valid for all, therefore these are not “human” rights at all, and then their relevance is relative, or those who do not recognize human rights are not human at all, and then again, there is no ‘humanity’. But, if instead, human rights are indeed valid for all, their implementation requires a type of ‘epoché’ or even a subordination of the cultural differences. However, given the importance conferred to both the context and the historical non-universal determinations, to affirm any superiority of one single culture would be a self-contradiction for cultural relativism[3]. Consequently, there is no possible universal foundation of human rights, and therefore, there are no human rights either.
            Notwithstanding, there is an alternative to universalism and relativism: the pragmatic approach. Pragmatism, closely related to constructivism, proposes at least two considerations about the foundation of human rights: to consider human rights as a social-political project, and to parenthesize the lack of foundations and just act. Although both considerations are very persuasive in order to effectively incorporate human rights policies into the world, i.e. to “humanize” it, they are still dangerously counterproductive. Whereas a radical pragmatic attitude fixes the damage but does not alter the structures that produced them, the logic of the social-political project keeps the perspectives of universality and progress, which arouse hope but are incapable per se of bringing justice. Even though the universality may be a great social equalizer, in practice it tends to be exclusive. Actually, while the future (progress) is universality’s best arouser, the past is its fierce challenger. In other words, the idea of human rights as a project requiring action in the present seems to solve the problem of the foundation, since universality reaches the present from the future under the figure of ‘project’.  This approach coincides perfectly with the cultural mainstream oriented towards the future manifested through several psychosocial figures, namely, desires, dreams, development, progress, et cetera. Nonetheless, the perspective of the future may be misleading. As a perspective, the future may be promising, but its unanchored constitution and its lack of engagement with the present make it unreliable. The future is reliable only if it is also capable of commitment with the past. Therefore, it is necessary to have a universality capable of comprehending the past too, especially since progress has never been accountable to its victims.

Engagement and Practice: What We Do when We Say Human Rights
            A neutral universality, i.e. a non-engaged universality, is as meaningless as a single word. In the construction of a sentence, the word engages with the particular sense of the phrase, and then the word becomes meaningful. Likewise, human rights and their universality must be engaged with a particular sense, and to be located within a specific frame of meaning, otherwise, as meaningless objects, they also lose their capability to compel action. Therefore, it is necessary to find a type of universality that, without excluding anyone, it is still capable to put at stake itself through a specific commitment, which confers meaning to human rights.
            Accordingly, to find the criteria adequate to what has been said above, it will be necessary to analyze four issues to elucidate the relevance of the coherence between discourse, practice and theory; and why not any discourse, practice or theory are appropriate for human rights. In other words, the four issues try to answer the question: what we are doing when we say ‘human rights’?
The first issue starts from the institutionalized statements, namely, the Universal Declaration of Human Rights (UDHR). Two facts are very suggestive, the absence of any definition of the ‘human being’ and the linguistic nature of its protection. Although the reluctance to provide any definition of the human being is very understandable in practical terms, the fact is deeply eloquent. To provide a definition would have entailed the possibility of exclusion, and notwithstanding the long list of rights conferred to the human being, that undefined ‘entity’, none of the rights say anything about the right-bearer’s identity.
The second fact is correlated to the first one. The UDHR is definitely a form of protection. Both the structure of the document and the constructions of the sentences reflect clearly the intentionality of protection. The scripture is static; it is neither a system nor a process. Actually, as a set of signs called scripture, it only points to ‘nobody’. The use of ‘everyone’, ‘no one’, ‘all’, is an exercise of universality reluctant to be engaged with anyone unwilling to be engaged. The use of affirmations and negations for doing the same negative activity –the protection-, refers to the status conferred by Lacan to the ‘no’ (the negation, the refusal, the resistance) as the inaugural moment of freedom. In short, the language used is a language for saying-not-saying. The assertions of the UDHR ‘say’ the rights in order to protect the human being, and at the same time, they point to the human being without saying it.
To preserve the human being, it must be (not)said, but to (not)say the human being, it must be preserved. In consequence, human rights are the ban of (not)saying the human being. The ban of defining the latter, and the negation of its negation, i.e. the ban of not acting to preserve what cannot be said.
The second issue refers to the ‘practice’ of human rights, or more specifically, the action realized when the expression ‘human rights’ is used, and the subsequent effects and sense produced. According to Wittgenstein’s language games theory, words are meaningless per se, and it is through the uses or ‘games’ of a language that this may be learned. The practice provides the concrete meaning of the words within a specific context, and then, also enables the sense of the sentences. Thus, meaning is not a metaphysical essence but praxis, and the latter establishes the difference between the lack of meaning of human rights or their effectiveness in the world. For example, to identify directly human rights with the UDHR statements risks to reduce them to a bureaucratic practice. This practice is based on a binary system of compliance/non compliance, focused on identifying victims and offenders, for finally trying to fix the present (reparation) and to predict the future (recommendation). Even though this type of practice highlights the urgency of the present –and the pain of the suffering worth it-, it tends to introduce individuals into the logic of the ‘administered world’ (Horkheimer), a world in which everything is regulated. The rights established to protect the human being become its definition, and even determine the form of its relationships. Indeed, to vindicate the personal own value requires claiming the respect of the rights: out of the system there is no human being. This is a shrewd strategy for ratifying a system by assuming what the individual needs or wants and by dissolving the necessity of other relations, in short, the individual become unary (Dufour), unidimensional (Marcuse). In this way, the individual finds the source of its rights in the system or in itself, but there is no reason for including others, excepting the rules of the system. Released from any duty towards others, the individual becomes sacred, untouchable, and can address its life to whatever it wants, on condition that it has to respect the rules for keeping order. Universality became the right to be individual, or using the language of the cultural mainstream, the right to be ‘unique’, but definitely, this praxis does not enable the universality, but self-centered individuality. The praxis required for universality must be eccentric, that is, that removes the self-centeredness from the right-bearer and refers it to others.            
The third issue set the question for the framework of the meaning or the ideology. Human action is more than behavior. Whereas behavior corresponds to the field of the observable activity, reactions and manners, the action comprehends the ideological dimension (Martín-Baró), i.e. the way to understand, feel and interact with the world according to set of values, relationships and the conflicts produced by their divergences. Succinctly, behavior focuses on acts and causal relations, while action highlights interactions and meaning relations. If the first describes the world, the second re-invents it. Thus, for human rights to be not a mere description of the human being, but conditions of possibility of its meaningful existence, they must be conceived as a human action, and subsequently, as bearers of an ideology that works like their framework of meaning. Nonetheless, not any ideology or referent of meaning is suitable for the foundation of human rights. Given the relevance of both universality and interaction, the referent of meaning has to be able to articulate and support relationships of non-exclusion and, at the same time, to compel committed action.   
The last issue is the subjective dimension of the ethical feature of ‘human rights practice’. The peculiarity of this approach lies in the assumption of the situation of the human being in the twenty-first century: there is not a total consensus about what human rights are, and even sometimes, perhaps a subject has no clear idea about them. Some other terms like democracy, love, peacebuilding, are in the same situation: a time in which the subjects cannot say what the things are, especially those important for social life or existential meaning. Like an inverted anomia, in which even though the subject is able to name, it cannot identify the object to be named. In this situation, ethics works not as the application of a right/wrong framework, but as a determination of truth within a relationship of loyalty. Aware of the situation of relative powerlessness, the subject puts itself at stake, not as mere self-determination but as self-determination-in-relation-to events that break the meaninglessness of the administered world. Some examples of these unexpected, terrible or encouraging events are: genocides, a girl standing in front of a tank, a protest march, whatever cannot be predicted or ruled by the system. On the other hand, an action realized within the framework of loyalty to those events constitutes the subject as an authentic actor, and not a mere reproducer of the status quo. Clearly this does not guarantee the subject is doing right, but is a signal that he is really acting, beyond himself and beyond the system, and acting even if the loyalty entails the experience of being broken.  In other words, under this perspective, the ethical dimension of the ‘practice of human rights’ involves responsibility and loyalty, loyalty not to oneself but to the event that introduces a break into the administered world.
This analysis outlines a set of necessary criteria to determine the foundation of human rights. Given that the universality without engagement standardizes all and, in neglecting the differences, it also ignores the injustices committed, it is also necessary to find another type of universality. Therefore, if the foundation of human rights must relate to the universality defined according to a double ban, namely, the ban of the exclusion and the ban of (not)saying the human being, that universality is a “negative universality”.
Victims and exclusion: the real foundation
            Once determined the negative universality as the type of universality required to found human rights, the next step is to elucidate the particular element that such universality has to be engaged with. This process of engagement, which confers meaning to human rights by providing them a specific meaning framework or referent, is the transition from theory to concrete. However, this return to concrete raises the question about how to conciliate universal and particular, or even more, how a particular can enable universality. Given the explicit engaged nature of the negative universality, the respective response to the last question may not be speculative but concrete.
            When Walter Benjamin on his Theses on the Philosophy of the History affirms: “there is no document of civilization which is not at the same time a document of barbarism”, he points to a universal fact: the universality of the suffering concretized in the victims of history.
            Indeed, the victims of history (‘history’ as the symbol of the world ruled, organized, developed and narrated by the ‘winners’) are universal. Since every culture has produced victims, and since these victims have been excluded from history and the promises of happiness and justice, and often have been released to oblivion, the victims of history are the universal concrete, the excluded particular that can break the mechanisms of exclusion. Even though the ‘executioners’ are also a universal presence, they do not enable universality because unlike the victims, executioners produce exclusion.
            If defining the human being is forbidden in order to make possible the universality of ‘humanity’, the victims of history must be protected by such a ban even more. Attempting to represent the victims threatens them, their memory, and the debt of justice that humanity has with them. In fact, since any form of representation is susceptible to become an empty expression, a substitution or replacement, or a pretension of authorized power over of the victims, the act of saying (defining) the victims of history entails their deletion. In terms of time, to define the victims of history means to enclose them in the past, to put away them from the present, and to deny them the future, or even ingenuously believe that there will be no more victims in the future. Furthermore, the mere presence of the victims of history, a presence under the form of absence-that-should-be-presence, denies any pretension of totalizing authorized power, any attempt to justify a self-made individual dissociated from others, any promise of future without assumption of the past, any self-centered constitution of the subject or the society. The debt of justice is still open, and such debt configures the form of the negative universality as a relationship based on responsibility, loyalty and justice: memory.
            Memory preserves the victims of history from a second death, the hermeneutical death, i.e. to make them meaningless. Even though the term ‘victims’ may be manipulated, no one can vindicate the authority to be on their side. The victims are reluctant to power, defy the system, and always demand a relationship of responsibility, a common responsibility. Capable of the most horrible things such the Rwanda’s genocide, Auschwitz, Acteal, tortures and racism, the human being is always a darkly ambiguous entity. To be a human being entails to participate in that destructive potential, which also involves a common responsibility. In consequence, the distinctive feature of the universality enabled by the victims of history is not the guilt, which is another psychosocial form that keeps the individual dissociated and self-centered, but the responsibility. Human rights are an act of memory, the responsibility of and from the memory.
On the other hand, the endless response demanded by the victims overcomes the reductive bureaucratic and procedural approaches over human rights –certain practices that convert human rights issues in a type of procedural ‘balance process’- and keeps justice as a permanent task in the history. Notoriously, this approach turns human rights issues into an unsolvable situation, and precisely from such unsolvable feature along with the status of reality of the victims (they are not virtual objects or hypothetical situations) arises the force to compel the compliance of human rights. In paraphrasing the words of Theodor W. Adorno, this is a new categorical imperative: “Auschwitz… Rwanda… Acteal… torture… discrimination… eviction would not repeat itself”.
            Nonetheless, the negative universality entails a third ban yet, the ban of any individualistic vindication of the status of victim. The condition of victim is not decided but enforced; it is not attainable by power of freedom. To arrogate oneself the condition of victim is an act of power, which often derives into a self-institution as a judge or executioner. Conversely, the victims are universal, in the sense that their condition is not suitable to privatization, they always refer to someone else. Among the victims there is no place for an economy of suffering, namely, comparisons, weighing and ‘pricing of sufferings’. In consequence, for the reasons mentioned above, the winners’ system, nowadays the neoliberal system, cannot deal with them.
            In synthesis, the foundation of human rights is not, and cannot be, neither a theory nor a speculative object, but the concrete and real victims of history. They make human rights meaningful and enable a ‘practice’ capable of breaking the meaningless of the administered world. Additionally, they also challenge every culture and theory in providing an effective sense of responsibility and justice, and even more, they defy human beings for being more than their own dark side. Much more than the rights of property and freedom, the victims of history are the real source of force of every historical movement related to human rights.      

The victims of history are the real foundation of human rights. Any other foundation based on an abstract object, a rescindable political agreement, or on a necessary but insufficient personal conviction, sooner or later result in exclusion, injustice and ultimately, in negation of human rights. Paradoxically, those who were considered or ‘made’ less than humans are those who preserve humanity and keep it as such.
Accordingly, the issue of the ‘practice’ of human rights revealed the relevance of engagement and the threat of meaninglessness. Both of them make clear the incompatibility of human rights with a self-centered human being dissociated from others, and with any institution and ‘practice’ of human rights unengaged with the victims of history. Therefore, for being meaningful, human rights entail a relationship of responsibility and loyalty to the memory of the victims. This specific form of engagement means to fight against exclusion, to protect other human beings, and to realize the act of memory. In this way, since every culture has their own victims and has produced victims, human rights can be also a universal project, a project of memory in which those who were excepted and excluded from humanity enable the future for all human beings.
In conclusion, the excepted and excluded –and not a theory- that seem to touch tangentially our world, because they are always in the margins, are the same that confer sense and meaning to human rights from their very core.


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[1] For reasons of language limits I will adopt in this paper the following assumptions: ‘subject’, ‘individual’ and ‘human being’ will be taken as “it” instead of “s/he”.
[2] “Science” according to the hegemonic natural sciences model.
[3] At this point, since the no-imposition is the politically correct basic attitude of the mainstream culture, one can wonder if this means that logic really shapes our knowledge, or if our knowledge is shaped by politics.

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