Fundamental Rights: The Right to Have Rights

2.1.1 The Form of Rights

The formal structure and definition of rights are perhaps the most solid springboard from within a debate where everything is contestable. This should offer at least a general matrix into which the question of citizenship, like many others, can be translated. Furthermore, any indication we can gain about the structure of rights should constrain answers to more substantial questions, in the same way as the description of a shell or a dwelling can reveal something about the content or the inhabitant. This formal inquiry is of course still open to the radical objection – uselessness/emptiness – that comes with the rejection of the very idea of a right to be considered later on.

A formal description of the kind we are looking for has been offered by the American jurist and legal philosopher Wesley Newcomb Hohfeld approximately one century ago, as he published his seminal essay on Fundamental Legal Conceptions in 1919.

Rights are entitlements (not) to perform certain actions, or (not) to be in certain states, or entitlements that others (not) perform certain actions and/or (not) be in certain states. ⁴

We will leave aside the problem of clarifying what “entitlements” are as the term is hopefully more self-explanatory than right. All rights can be described as “Hohfeldian incidents,” that is, they pertain to one of the categories helpfully clarified by Hohfeld and named after him. ⁵

The simplest of these incidents is the privilege, namely an exemption from a general duty. It can be written in a general form such as

“A has a Y right to phi” implies “A has no Y duty not to phi”. ⁶

Examples of privileges are police carrying guns and border guards asking for documents, or, to come to our subject, the statement “Citizens have a general legal and moral right to return to their own country without a visa,” where this means that they have no legal or moral duty not to do so.

The second Hohfeldian incident is the claim, which is correlative to an obligation of someone toward the person who bears the right in question: ⁷

“A has a Y right that B phi” implies “B has a Y duty to A to phi”.

In this way, we say that “Citizens have a right to be provided help and information by their embassy when they are undergoing special difficulties abroad,” or we make the complementary (technically speaking: “correlative”) statement that “Embassies have a duty to support their own nationals when these are under circumstances of special needs.” Most ordinarily, very young children unquestionably have legal and moral claim rights to be taken care of by their parents and/or guardians and tutors: these imply correlative duties on the part of the latter.

These two simplest or “first-order” Hohfeldian incidents share the linguistic forms of the “second-order” incidents, the entitlements that alter the normative situation of oneself or another: that is, what oneself or another has an entitlement to be, do, or be done to. The “second-order” incidents are in turn divisible into powers and immunities.

The general form of powers is the following: “A has a Y right to phi.” As we have just seen, this is the form of a privilege, but it indicates a power if by “phi” we mean to “change the rights and duties within a set of rules.” Namely, “Joe has a moral/legal right to establish and/or waive rights and duties for Julie” is an example of a power: simply, in this scenario, and quite similarly to ordinary parlance, “Joe has power over Julie.” Two parents have a moral and legal power to forbid their child from eating candies, within the set of rules that regulates parenting within any given society. As a consequence of their decision, the child would therefore lose the privilege to eat candies. Citizens have the legal power to vote for someone in a national election and thereby assign her the power to restrict or widen the requirements for naturalization, through her work in the legislature and within the limits set by the constitution.

In this last example, two powers are implied: the citizens' altering their representative's power by electing her to be a representative and the latter's power to participate in lawmaking which affects the citizens in turn. Note, however, that the “right to vote” signifies the privilege to express one's political preference, which does translate into power only under certain conditions – such as those required for a voted candidate to be elected. These intricacies – associations, overlaps, uncertainties, and ambiguities – are common in the analysis of rights and make confusion on the matter very likely, already on a purely formal perspective. Hohfeld provided a partial antidote: yet if his language might prove sophisticate even in court, applying it in everyday discussions is often utopian.

Moving on to the last Hohfeldian incident: the general form of immunities is in turn formally the same as that of claims. “A has a Y right that B phi.” An immunity consists of the right (and the correlated duties) that someone's normative situation within a set of rules is not altered: for example, female citizens in many advanced democracies hold an immunity from being disenfranchised by virtue of their countries' constitutions.

It is difficult to come up with a right claim that falls beyond the reach of the Hohfeldian scheme: thanks to its lights, it became possible to recognize and signal the continuous switches in the meaning of the word “right,” but as noted, Hohfeld's antidote was not a panacea. Any attempt at analyzing a right should nonetheless requires much effort and patience because of the complexity of our morals, our laws, our society, and our language. For instance, the right a mother has to decide the diet of her young child would involve constitutional immunity from having a particular kind of upbringing imposed by the state, the power to delegate the care of the child to relatives, schools, nurses, and nannies, the legal and moral duties not to threaten the health of infants by irresponsible choices and so forth.

The interconnectedness, richness, and complexities of rights, duties, and the institutional and conceptual cantilever and scaffolding can get vertiginous. In the past, I have argued that the apparently uncomplicated claim that refugees have rights implies a political conception of the international community that would have been deemed revolutionary for centuries in the long history of modern nation-states. ⁸

Citizenship rights work like any other, and from a legal point of view, they connect the “ordinary” political authority of the community that enforces them to the multilayer legislation of international institutions and agreements. For example, a state of the EU must take into account national laws, standards agreed on by all the members of the Union and international treaties that reach even wider. Occasionally to regularly, it is of course problematic to understand what norms are in fact rights (and duties) and how rights should be ordered and applied: this is the everyday job of courts, and sometimes also a task for governments, parliaments, committees, and other such bodies. Beyond the legal sphere, moral rights can be no less pressing: a classic case in point is Antigone, Sophocles' play in which the protagonist is torn between the legal obligations against her brother, who has become a public enemy, and the moral obligations toward him. The story illustrates clashes between the legal and the moral, the personal and the political, the local and the universal (as “natural law” is supposedly borderless) at one time. Some theorists speak of prima facie rights to refer to the number of obligations that have to be taken into account at first sight but must be ordered and either enforced or trumped upon consideration. For instance, during a medical emergency, it is usually possible to drive in a way that would ordinarily be forbidden, and a state emergency can suspend or alter a large body of legislation, including immunities, as COVID-19 has shown.

Hohfeld and the scholars that followed him shaped an all-embracing tool for analyzing situations in which rights are disputed, and for clearing up their composite meaning, but this step toward the harmonization of moral and legal conflicts is far from being conclusive. Beyond the practical problem of reducing the complexity of aggregated, “molecular” rights, questions about rights' proper function remain theoretically as biting.

2.1.2 The Function of Rights

It is apparent that, despite its utility and range, what has been provided so far is more of a description than a definition: we know that rights are Hohfeldian incidents, but we still lack a most important exclusion of the Hohfeldian incidents that are not rights. Every whim and extravagant claim can be translated into Hohfeldian terms. The theory reported so far is inclusive and not exclusive, but the question of linguistic structure and substantive content must be asked independently. All dolphins are mammals, but not all mammals are dolphins: likewise, Astolfo's right to ride the hippogriff to the moon is certainly well construed in Hohfeldian terms, and based on the fiction, we might wonder whether it is a privilege, claim, power or immunity but what distinguishes this bogus construct – as well as any invalid right – from a genuine one?

On this matter, the wide to unanimous agreement one encounters when pondering the general convenience and applicability of the Hohfeldian account fades. Many have tried to give a further contribution by identifying one or more common features, but the debate is still ongoing and after about a century it seems impossible to secure stably any notable improvement, to the point that the very terms in which the question is posed are sometimes challenged.

There is a set of thus-called “monistic theories,” meaning the theories that aspire to single out just one essential element as constitutive of a right. The most important theories in the field, at least in recent years, argued for the defensibility of one or the other comprehensive principle.

The will theory, in particular, focuses on the choice that a right gives to an individual entitled to it. The right-holder is in this perspective a “small sovereign” capable of limiting other people's wills through her decision. ⁹ It is already apparent from this interpretation that rights are directly connected to sovereignty and especially to freedom, as well as to propriety. Indeed, claim rights are often considered the paradigmatic form of rights, and propriety rights offer either a model or a historical source for rights in general. Per the “will theory,” one's choice (an alternative name of the will theory is “choice theory”) establishes duties for others. While sovereignty and freedom are key elements of this research, and it is, therefore, appropriate to stress their relationship and analogy to individual rights thus represented, neither the “will theory” nor its alternative is endorsed by the perspective put forward here.

The main rival for the will theory is the interest theory, which is based upon an assumption that is just as concise and straightforward: rights have the essential function of promoting someone's interests. Of course, this statement too must be analyzed carefully because no interest can constitute automatically a right. The development of interest theories has paid much attention to the problem of distinguishing what kind of interests has a normative relevance, and, conversely, which interests generate only prima facie rights that can be trumped by other norms. ¹⁰

Behind the language of a “will” or “choice” theory of rights sometimes lies a normative assumption that is coupled with the descriptive analysis of the word “right”'s ordinary usage, but some argue that both theories should be in themselves “neutral” ¹¹ in this respect.

There are also numerous and diverse pluralistic accounts of rights, as opposed to the main “monistic” ones recalled thus far. Pluralistic accounts tend to accept the complex and diverse set of normative phenomena ordered by Hohfeld rather than trying to reorganize or restrict them. Leif Wenar's “several functions” theory of rights matches the Hohfeldian incidents with a set of specific functions each one of them could perform, like exemption, protection, authorization, and so on. Hohfeldian incidents are thus taken to be rights only when they effectively play one or more of such roles.

Reaching even further, the “any-incident” theory of rights plainly suggests that all Hohfeldian incidents are rights. In this way, the problem becomes not that of distinguishing between incidents those which are actually rights but rather that of understanding the interaction between all these incidents.

Even if one of these theories turned out to be victorious, and achieved an endorsement as wide as the Hohfeldian formal scheme, the questions concerning the eventual normative validity of a single right would still be far from being fully answered. To wit: let us assume that the “interest theory” prevails. It is unclear whether any specific version of it would suffice to discriminate a normatively valid interest, say a private individual's interest in not having their government choose their partner, from an illegitimate one, say a thief's interest not to be investigated against. Any attempt at thus bridging a general theory of rights with its specific and detailed applications will necessarily turn into a general philosophy and view of society: and a normative loaded and specific one at it.

No one of these theorists is close, at least for the moment, to furnishing us with a practical test to distinguish between false and valid pretensions of having such and such rights. Each of them could be tempted to reply that as a part of his\her theory, there is in fact something similar to the test or the formula we are looking for, or some hint to it, but the sheer extent of the variations and differences between theories, and within theories, undermines the hope that this optimism is justified.

Neither the form nor the function of right is in and by itself a reason for its relevance and validity. Showing that a function is performed is one thing, and vindicating the legitimacy or effectiveness of such performance is quite another.

It must also be recognized that these theories have all arisen as ex-post interpretations, explanations, and perhaps even rationalizations of the conception of rights. The history and development of the general concept and its specific conceptions are relatively independent of them all.

Initially, I felt like this skeptical view was extreme and scarcely represented in the literature. ¹² Yet about a decade after having first conceived it I see that first, no one theory of rights has emerged from the arena as triumphant, and second, David Frydrych has articulated the very same criticism in recent articles. ¹³

What are we to do with all these theories, then? I believe the reply to be fourfold.

First, as suggested, the pluralistic and, to some extent, relativistic, arbitrary, and even accidental nature of what can come to constitute a “right” under specific circumstances should be recognized. The consequence is that of abandoning any attempt at providing a unitary neutral framework, as part of the utopian Enlightenment–liberal project to rewrite morality and law based on a principle or set of principles that can be attained rationally and in the abstract.

Second, these theories should nonetheless be known to extract some recurrences in the functions of rights, as well as to recognize their partial validity. There are indeed occasions in which a “will” is made into a right, such as marriages, contracts, and as the name suggests, wills. And there are also circumstances under which basic human “interests” are rendered into rights in the same way, e.g. the human need to eat translates into the right to food. This sober and limited theorizing can probably find its place. Interestingly, when societies that did not typically resort to Western-like conceptions of rights translated Western legal concepts into their languages, they fittingly recognized such plurality, as did the Chinese in speaking of “power, authority, interest.” ¹⁴ A right can indeed be one or the other, or even be found at the border between the two – as it is difficult to distinguish nature from culture, it is sometimes unclear what is a “need” and what an “interest.” Yet to rewrite the function of rights by restricting the focus on a principle such as “power,” “authority,” “will,” or “interest,” when exclusively conceived, will turn out to be impossible or misleading.

Thus, we have seen that, with rights, the form is unitary and systematic – the Hohfeldian scheme – and the function is pluralistic and diverse. In reviewing the origins of the idea of rights, the politics of their justification, and continuing the search for their essence, the controversial, refractory, elusive nature of rights is bound to become increasingly apparent.

2.1.3 The Origin of Rights

Rights occupy such a central role in today's morality and politics that it might be surprising to discover they are relatively recent as a concept. Unlike main and general ideas of law, morality, and politics, such as justice, good, and evil, and despite being now considered inextricably linked to these – a violation of a right is often considered a mere synonym of a breach of justice – the term and the concept was not employed, at least not in the modern sense, by societies such as ancient Greece and Rome, nor is it geographically universal even nowadays. There have been, there are, and there could yet emerge, worlds without rights. Granted, this does not mean that these societies were and are “rightless” in the sense of being immoral. If the ancient Greeks believed that refusing hospitality to a needy stranger was “against the gods,” “against nature,” or “against reason,” that was as strong a reason to provide help as speaking of a “right to seek asylum.” ¹⁵

And yet, the very contingency of the notion of a “right” does not weaken its importance because rights characterize our society and its morality and politics in a way that reveals something distinctive of them.

There is some agreement in dating the birth of the concept of rights to the beginning of modernity, the Renaissance, or the late Middle Ages. During the first period, the term was used to point to the obligations of natural, religious, and canon law, as exemplified by the systems of Aquinas and Suárez. With Grotius, Pufendorf, and their contemporaries, the idea of rights is gradually detached from theism, religion, and faith, and the argument is advanced that, even if atheists were correct, the constraints of moral law would still be accessible to rational inquiry. The famous expression by which Grotius epitomizes this concept is etsi Deus non daretur (meaning: “even if God did not exist”). ¹⁶

John Locke, another prominent theorist of rights in modern history, established in this way the preeminence of rights to life, liberty, and property, without any implication on the nature of a summum bonum, or “highest good.”

The age of the revolutions endowed with political and legal efficacy what until then were mostly advanced philosophical innovations. It is in this period that the rights vindicated were more and more frequently considered “human,” for example in the French Declaration of the Rights of Man (1789). The turning points in the history of Anglophone countries, such as the great rebellions and revolutions in 17th-century England and the American Declaration of Independence in 1776, all have central roles in the history of the development of this concept. Arguably, they started with the 1215 Magna Charta Libertatum (“Great Charter of Liberties”), which limited the power of the English king and established the liberties and immunities of the subjects.

From the secularization, the politicization, and democratization of “rights” stemmed also their large expansion to the civil, economic, social, and political realms. These became the goals of the protests, revolts, and movements of the 19th and 20th centuries. The full development of modern nation-states, in particular with the adoption of ideologies of romantic origins in the 19th century, deeply impacted rights and citizenship. The status of citizenship with its rights and duties was then tightly linked to history, culture, ethnic origin, and political allegiance. In the meanwhile, a science-like bureaucracy was gradually put in charge of interpreting and applying rights. The entire system of Western bourgeoise nation-states came to a culmination and at the same time to a crisis with colonialism and the ultra-nationalism that fueled the world wars.

With the United Nations Universal Declaration (UD) in 1948 and the two Covenants of 1966 the history of rights touched its apex: an almost universally agreed-on list of moral precepts was finalized and became publicly known all around the globe. These developments also stimulated debates and processes with a focus on measurement, implementation, and enforcement. Several decades after the Declarations and Protocols, their legacies are normatively paramount, but their practical import has been disputed. ¹⁷

Feasibility, good faith, and implementation are not the only problems for this sort of documents, as will be expounded upon in the next section. Other issues are the lexical ordering, harmonization, and interpretation of the rights they contain. The list of rights issued in 1948 is composed of 30 articles, reaching from such different matters as the entitlement to rest and leisure (Art. 24) and to health (Art. 25) to the right to take part in government (Art. 21). Yet such heterogeneous lists also go without any overarching principle to order their normative injunctions. Even more importantly, and contrary to national laws and constitutions, the interpretive and enforcing bodies of such declarations are usually underspecified, if anything at all is mentioned about them. The vagueness of such enunciations is especially evident about contentious issues, for instance, when different states and communities argue over the definition of “family” everyone has a right to (Art. 16). And generally, no indication is given as to what Hohfeldian incidents is denoted by a right, which opens up the space to argue about whether the right to health or to work and the like do in fact demand government intervention or are mere liberties the government should not infringe upon.

And as we generally welcome the extension of rights to such vast spheres as the environment or the animal realm, philosophers like Norberto Bobbio have denounced the risks that, in a context marked by difficulties in theorizing, as well as by massive and even ordinary violations of some of the most basic and uncontroversial human rights, this extension of rights risks translating into inflation of rights. ¹⁸

2.1.4 The Justification of Rights

In February 1947, under the leadership of former US First Lady Eleanor Roosevelt, Pen-Chun Chang, and Charles Malik started working on a draft for the “International Bill of Human Rights.” ¹⁹ The UN Secretariat then assigned responsibility for coordinating a preliminary draft to John Humphrey, and further to representatives from Australia, China, Chile, France, Lebanon, the US, the UK, and the Union of Soviet Socialist Republics.

UNESCO was one of the most active international bodies to join that enterprise, by assembling committees and surveying leading thinkers from Mohandas Gandhi to Aldous Huxley. ²⁰ It should be remembered that the members of the UN were then a fraction of today's, and as apparent from the list of representatives, the committee was pretty much dominated by Western thought. Even some of the spokespersons for the Global South were in reality much Westernized: the Lebanese Charles Malik, for instance, was a Christian who held relatively traditional views, and Pen-Chun Chang, the Chinese representative, came from Taiwan – continental China not being represented at the UN back then – and later taught at the University of Chicago before passing away at his house in New Jersey. Nonetheless, as Western thought is by itself very pluralistic, finding convergences should have proven difficult. The fact that it was less such than expected is epitomized in an oft-quoted laconic sentence by the French Thomist philosopher Jacques Maritain: “We agree about the rights but on condition no one asks us why.” ²¹ In this view, Maritain displays an optimism about the merging of the traditional and the modern, of the partisan and the transversal, that resisted unshaken at least until his last book. ²²

This statement expresses as explicitly as possible the interpretation of “rights” that is accepted here. Rights are seen, descriptively, but also understood, theoretically, as “normative intersections” (intersections between normative systems that are then abstracted from these latter): as a content of the “overlapping consensus” that was later to be defended in the work of the great political theorist John Rawls. Rights can be part of any traditional social system, including a collectivist one, as long as there is an individualist impulse, and there are practical necessities regarding the regulation of the relationship between the individual and the collective. Thus, the possible birth of the concept of rights in the debates among orders of Franciscan monks – as to whether any property should be allowed, for example, and within which limits – is illustrative. ²³ Yet rights in their most interesting forms – rights treated as freestanding and autonomous or even primary entities of sorts – arise as a necessity when a plurality of social and moral systems interact or clash. For the practical needs of living together – under religious civil wars, in diverse societies, in international organizations and diplomacy – arises then the need for moral and legal parlance that is able to abstract individual normative injunctions from any given worldview or broad and controversial system of justification. In this function of minimizers of conflicts, rights and the accompanying ideologies are necessarily opaque, ambiguous, ambivalent: any specification that is not strictly necessary to signal and strengthen agreement must be postponed to further debate, to the court, to a decision by the law of the stronger or, if the disagreement does not threaten civil order, to perpetual confusion and no decision at all. ²⁴

The liberal–modern constitutions are all examples, to varying degrees, of how such a doctrine and practice can justify itself, and work: they are, at the same time, a display of its limitations. Indeed, as there is no possibility of synthesizing the basic systems – socialism and liberalism, say, or Protestantism and Catholicism, or the combination of these four with additional doctrines such as in the case of Germany – the abstraction of neutral ad hoc, even à la carte moral–legal principles such as the right to life and property becomes necessary. As Ernst-Wolfgang Böckenförde explained with unique clarity:

The liberal, secularized state draws its life from presuppositions it cannot itself guarantee. This is the great risk it has made for the sake of liberty. On the one hand, as a liberal state it can only survive if the freedom it grants to its citizens is regulated from within, out of the moral substance of the individual and the homogeneity of society. On the other hand, it cannot seek to guarantee these inner regulatory forces by its own efforts – that is to say, with the instruments of legal coercion and authoritative command – without abandoning its liberalness. ²⁵

Rights, in the sense employed in the Western, pluralistic liberal democracies of advanced modernity, correspond to this dualism. They are abstracted from their cultural substrate into the neutral institution of the state. But they cannot survive or be justified on their own. In order to be filled with normative force, or just be defined specifically enough to warrant implementation, they need to be seen through the lenses of this or that specific political theory – academic philosophies have propounded a variety of them, often without securing agreement broad enough to make them socially relevant – of this or that political ideology – environmentalism, say, or nationalism – of this or that religion or comprehensive worldview – such as Islam or Marxism.

Rights are therefore unsaturated, abstracted normative injunctions presented in a neutral form. They presuppose or even require interpretations and enforcement by external agencies. They are not self-motivating or self-justified or freestanding.

The constitutions and, more loosely, the political and legal arrangements of the modern age generally reflect the underlying social and ideological pluralism: the fight between Catholicism, Anglicanism, and increasingly other Protestant and less conformist doctrines in Great Britain; the emancipation of the Jews, religious tolerance, and a substrate of theism in the case of the French Revolution; a broad variety of conceptions to be protected by the First Amendment in the US. It is, however, in the constitutions that are born out of the Second World War, and with internationalism and a significant amount of social diversity in mind, that this “overlapping consensus” and its corresponding corpus of rights as normative intersections are apparent. In that age, a specific spectrum of ideologies – those explicitly and most closely corresponding to Nazi-Fascism – was eliminated: not through philosophical debate, but through military annihilation. Correspondingly, an international consensus was to emerge and, over time, constrain and eventually disqualify remnants such as racial discrimination in the US and the apartheid regime in South Africa.

Let us consider briefly a document that is coeval to the UD: the Constitution of Italy, which came into force in the same year, on January 1, 1948. At the time the constituent, assembly was composed of several opponents of the previous Fascist regime. Between them, we find figures as diverse, if not opposed, as Alcide De Gaspari, leader of the Catholic Christian Democratic party, and Palmiro Togliatti, the Communist politician whose close connections to the Soviets led these latter to name a Russian city after him. At the time, for an orthodox Catholic, the endorsement of Communism was a ground for excommunication while for orthodox communists, Catholic beliefs were a reactionary ideology and the “opium of the people.” In principle, it would not be exaggerated to wonder what rights, if any, could have been agreed upon coming from such distant ends of the ideological gamut. Despite these deep clefts, the Constitution was drafted, and rights that so peculiarly marked the political culture of Italy like the social protection of the workers were recognized and enforced by both sides. In general, the Constitution and the rights it enunciates are examples of overlaps (and compromises) between ideologies as diverse as political Catholicism, communism, socialism, liberalism, republicanism, etc (Fig. 2.1).

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Fig. 2.1.

Overlapping Political Ideologies and Worldviews Compromise in the Italian Constitution.

The convergence on the democratic character of the republic, on popular sovereignty, on the right to work, and its central importance in the construction of the political community, all give place to divergences as soon as the rights derived therefrom are detailed, applied, or even interpreted.

A much more complex and broad overlap is obtained between and among the ideologies, worldviews, and cultures that came together for the drafting of the UN UD of 1948. The differences between such a global perspective and the case of a nation-state like Italy are, on the one hand, the increased diversity and distance between the ideological and cultural components, and on the other, the absence of a political body to regulate the main aspects of the life of a people. The UN UD simply provides a general orientation in addition to already developed national institutions, and to orient them. Yet the challenge and possibility of articulating an agreed-upon set of “rights” remain the same.

In other words, the hermeneutic suggestion is simply to take rights at face value: as the outcomes of encounters, confrontations, and negotiations between otherwise disparate if not irreconcilable doctrines. Such compromises are not justified or legitimized by definition, but merely as pragmatic agreements aimed at finding a peaceful coexistence. They are functions of the broader normative landscape, and interpreting them independently would be as difficult as interpreting the fluctuation of the stock market independently from the economic, social, and political variables that are reflected in it.

The political and ideological convenience of an appeal to rights is therefore especially evident under conditions of pluralism and democracy, where consensus – even if broad or based upon misunderstandings – opens the doors to power.

The empirically testable counterpart to this account is some degree of tension between “rights” and any systematic moral philosophy are by definition irreducibly in tension. Any attempt at reworking a normative system “the other way round,” that is to say, by starting from rights as departing blocks and arriving at general principles, would run the risk of being obliterated by contemporary changes in the very set of rights that are considered. ²⁶ More radically, rights that are meant to work as compromises cease to make sense when considered independently: in the previous example of the democratic republic of Italy, a moderate right to strike would have been eliminated by both a conservative, social Catholic understanding of the relations of production and a radical communist theory of class struggle. Yet while no right to strike at all would make more sense from one perspective and an unlimited right to strike – or to revolution – from the other, a moderate right to strike is perfectly understandable as a workable compromise.

This understanding is therefore admittedly vague. ²⁷ Rights, like versatile bricks and sticks, find someplace in many kinds of constructions. In fact, very few philosophies or political ideologies argued that depriving people of their livelihood and of a fair and reliable judiciary are fundamental principles of justice: those who did so, like Nazi-Fascism, have been wiped away from the table of history, and it is by no accident that only after they were the attempt at articulating international law and morality received a renewed impulse. ²⁸ Counter-intuitive doctrines that cannot reserve even a small place for rights to life, freedom, basic bodily well-being, etc., however expressed and phrased, are doomed to disappear in a sort of “natural selection of ideas” or of their proponents. Such doctrines ought of course to be resisted: contrary to Jonathan Quong, the reply to Nazism does not need to be a bullet. ²⁹ Indeed, most of the time – in education, for instance – we do not reply to Nazis by shooting. The theoretical point is very simple: it is easy to show how Nazism is self-contradictory and unsustainable: based on logic, common sense, any scientifically and factually informed conception of human nature, or the main system of thoughts that enjoys the respect of humanity. But the practical aggressiveness of such ideologies makes the advancing of theoretical points often naïve and irrelevant, and at times even counterproductive. After all, a good argument can be coupled with a good bullet when strictly needed. ³⁰

It is philosophically more interesting to consider (1) the rejections of conceptions of rights and (2) more radical rejections of normativity in and by itself, such as nihilism (or radical skepticism).

2.1.5 The Rejection of Rights

21st century readers from Western countries might be surprised to know that the very concept of rights has been radically criticized: and not necessarily by extreme or fringe thinkers, but by leading philosophers, including some writing in the tradition of the Enlightenment. As each of these critiques is extremely complex, and for the present argument there is no need to delve into any details, we will not consider them closely. Interested readers can refer to the sources directly. Here, it will suffice to recall the main points and show that these disparate writers display in fact a certain convergence.

Jeremy Bentham, the founding father of utilitarianism, took issue with one of the earliest declarations of rights: the French Declaration of the Rights of Man and Citizen. In his powerful text Anarchical Fallacies, Bentham shows that the list of rights cannot be interpreted literally and that it offers a fragmented, piecemeal view of normativity. ³¹ Although Bentham is a writer of the Enlightenment and he shares the rationalistic, humanistic, and democratic assumptions of the Declaration, he considers such a list of rights devoid of any unifying principle to be more problematic than advantageous to moral and legal progress. It is possible to conceive of some form of reconciliation between Bentham's utilitarianism and a list of rights: for instance, in some version of “rule utilitarianism.” However, his monistic focus on the sole principle of utility forced Bentham to argue against the project.

A counterpart to Bentham's critique is the surprisingly converging thesis by the conservative English thinker Edmund Burke. Of course, Burke's problem was not that rights should be ordered and harmonized through reference to a unifying principle such as “utility.” On the contrary, to Burke, any such unification sounded worse than simplistic and utopian. In the Reflections on the Revolution in France, he makes it clear that he prefers his “rights of an Englishman” to the rights of “man and citizen” simpliciter. It is only through the complexities of history and culture that the general principles of natural law – whose classical conception Burke draws directly from Cicero – can be realistically and reasonably implemented. Rights are meaningless and dangerous without these: without institutions, precedents, prejudices, and wisdom, such as assemblies, courts (both royal and judicial), pulpits, debates, police forces, communities, families, history, and traditions.

Very distant from Burke, a second authority in the progressive tradition that rejects the very concept of rights is Karl Marx. In The Jewish Question, Marx rejects the thesis of those who support formal emancipation for the Jews, arguing that substantial discrimination and alienation will not be alleviated by the removal of their legal counterparts. More generally, here and in the rest of his philosophy, Marx considers the idea of subjective rights to be part of the ideology of individualism and capitalism: indeed, the quintessential right, which serves as a model for all rights, is the right to property. It is perhaps the most famous and central claim of Marx's philosophy that private property is a form of alienation. Marx rejects rights on a deeper level than Bentham: for Bentham, rights are, as he says, fallacies. They are logically inconsistent and linguistically vague and misleading: the plane of Bentham's critique is logic and the philosophy of language, even if, at the level of principle, his systematic views of normativity are incompatible with the fragmented repository of the Declaration. For Marx, rights are the manifestation of an erroneous anthropology: one in which human beings are narcissistically focused on their possessions – “I have a right to this and that…” – rather than on their social nature and interdependence.

A much more radical and, to a certain extent, qualitatively different critique is articulated by Friedrich Nietzsche. In the works of his maturity, and clearly in the Thus Spoke Zarathustra, Nietzsche exposes the emptiness of Western normativity, revolving around an idea of God that was by then already outdated. Modern individuals must now reckon with the heroic task of a “revaluation of all values.” Duties and rights are now based not on I ought, but on I will. Science, progress, religion[…] All the guiding principles of Western civilization have been deprived of their mystic sacredness – in a Twilight of the Idols, and have become, in and by themselves, unable to sustain individual and social behavior. ³²

Nietzsche's impassioned rebuttal was to return in the form of scientific detachment and analytic rigor in the writings of Axel Anders Theodor Hägerström, and the school of “realists” that drew from him. Hägerström surveyed as large a sample of Greek and Roman laws as materially possible in his search for “the essence of all law.” ³³ The result he found was that all law has no essence at all. Hägerström could only recognize, in his characteristic sobriety, that rights as social facts present themselves as “actual forces, which exist quite apart from our natural powers; forces which belong to another world than that of nature, and which legislation or other forms of lawgiving merely liberate.” In other words, right and duty would amount to superstitions. The reviewers who complained because his monumental study of legal antiquities prevented Hägerström from spelling out his normative theory more fully seem not to appreciate the implications of such discovery in full.

A number of contemporary philosophers have built upon these critiques or added their own and sometimes both.

Alasdair's MacIntyre skepticism about rights has three main sources. MacIntyre's initial philosophical position was that of (analytical) Marxism, and he appropriated the rejection of liberal individualist anthropology and its normative implications that we have seen in Marx. Later in his career, and as his rejection of post-Enlightenment morality and politics evolved, MacIntyre rejected belief in rights as the like of a belief “in witches and unicorns.” The terminology is similar to Hägerström, and MacIntyre draws extensively from the Nietzschean and postmodernist “tradition” to argue that all the Enlightenment's attempts to provide an independent justification for morality have failed. Yet MacIntyre does not embrace Nietzsche's nihilistic and super/post-humanistic perspectives. On the contrary, MacIntyre considers Nietzsche's life and theory as largely a reductio ad absurdum. ³⁴ The superhuman is unachievable and the individual who sets out to the “revaluation of all values” is bound to become uncomprehensible and prisoner to the loneliness and burden of the feat. ³⁵ If the Enlightenment project of a new foundation of morals based on rationalistic, ahistorical, universalistic premises fails and the very dissolution of that project in Nietzschean and postmodern thought is unlivable and offers no constructive alternative, what is the way out?

For MacIntyre, this consists of a return to the classical – Aristotelian and Thomist – the(le)ological view of human nature. MacIntyre references philosophy of science to argue that the most workable theory, however imperfect and flawed, is to be preferred.

A colleague of MacIntyre's takes a very different route. For Raymond Geuss, “no solace” is to be found in discredited, outdated theories from the Ancient and Middle Ages. ³⁶ The rejection of the moralistic and unsubstantiated stance of normative ideologies can only issue in the mystic transcendence of A World Without Why. Similarly to Ludwig Wittgenstein, for Geuss the ethical is to be found in experience and existence. At the same time, Geuss discards the political theory that harkens back to Rawls as based on unargued “intuitions,” and the corresponding parlance of rights as relying ultimately on assertion (poignant criticism of flat assertion was already found in Bentham). ³⁷

Two other contemporary critiques merit a brief mention. The former is Michael Ignatieff's denunciation of human rights as “politics and idolatry.” ³⁸ Far from arguing for their rejection, Ignatieff points out that the fetichism about (human rights), as exemplified by treating them as unquestionably authoritative and self-explanatory principles, is detrimental to the culture of rights itself. On a very distant political position, the conservative philosopher Mary Ann Glendon accepts rights but criticizes “rights talk” as too subjective, too self-centered, and too focused – as opposed to duties – on the receiving, passive end. ³⁹

2.1.6 A Critical Redefinition of Universal Rights: Validity and Limits

In order to proceed in spite of all the difficulties raised thus far, these objections need to be considered and, ideally, answered. In a sense, I will do so, and in another sense, I will not.

First, it should be noticed that these critiques are of three very different kinds. Jeremy Bentham and Karl Marx reject the language of rights, but they do propose an ethical–political source and organizing principle themselves: utilitarianism and communism respectively. As anticipated, the parlance of rights is especially foreign to, and at tension with, such standpoints, but it is not necessarily incompatible with them. Once it is established that a certain action maximizes utility, it is not entirely inappropriate to say that someone or everyone has a “right” that this or that action be performed; once the individualistic and subjective premises of capitalism are rejected, it still makes sense to declare that “the working class has a right to the collective ownership of the means of production.” MacIntyre's critique is similar: he draws from classic Aristotelian–Thomism to defend normative positions that could easily be translated into the terminology of rights, with some correctives. The problem emphasized by MacIntyre is especially that of recognizing rights' derivative and atomistic nature. For him, rights can make sense only as part of larger embodied narratives – that is, of practices – which give them definite limits and temper them with duties. Even a minimal, “soft” form of Burkeanism could be accommodated to such more distant theories: all these doctrines require a tradition and a community to function. Therefore, while the communitarianism and traditionalism of Burke are certainly to be rejected by Marx, MacIntyre, and Bentham, a more moderate form that is displaced from the center of morality and is turned into a mere corollary of the respective doctrines seems to be more compatible with them.

Glendon and Ignatieff can be accommodated more easily: their problem is not to “unplug” rights from their liberal–universalistic justificatory source – even if Glendon would be sympathetic to such a move to some extent. They rather intend to correct the linguistic and social dangers of an unchecked language of rights. Glendon raises awareness of the risks involved in “rights talks,” while Ignatieff advises against attributing to (human) rights a quasi-magic or religious power, or even a life of their own.

Yet all these theorists focus, in a way, on rights as the “shell” of normativity: as the form that is inadequate or incapable of expressing certain normative principles (utilitarianism, Marxism, Aristotelianism[…]) which they found to be correct.

Critiques of the Nietzschean kind are, of course, most difficult to address. And in a sense, I will not even attempt to do so. There is no dearth of updated reflections on the “sources of normativity.” ⁴⁰ Yet a substantial engagement with Nietzsche's nihilistic Prometheism, or Hägerström's scientific positivism – which practically amounts to a form of skepticism or normative indifference – is beyond the needs and scope of this work. It is sufficient to believe that some moral system is plausibly capable of resisting their objections. Their critiques prove fatal to rights and laws that are isolated from their sources: but without delving into the debate, it is not unreasonable to assume that some replies – possibly more than one – to their biting objections can successfully vindicate the coherence and effectiveness of a normative system.

Thus, perhaps surprisingly, I do not reject these critiques of rights but rather build on them. While there has been no space to consider these systems in detail as they would deserve, I would consider the core of their rejection of rights to be one and the same. I hope to have sufficiently explained why the rejection of rights does not, by any means, coincide with immorality or amorality. When the Native Americans condemned violence against family members as contrary to their customs, to nature, to the will of the spirits, to the common good, or on any other such grounds, they were acting just as morally as the 21st century New Yorker who orders not to violate the right to bodily integrity of this or that person. The former resorted to an entirely different moral language that corresponded to just as different a worldview: but the moral substance is equivalent.

Thus, the theory of rights that I am offering assumes a different underpinning depending on the underlying theory that is plugged into it. But what is then its utility? Is such a position tantamount to radical relativism? Even at this broad and abstract level, the answer is at least twofold.

First, the theory should suffice to understand the meaning, implications, and limitations of debates and clashes over rights. It has therefore a hermeneutic–interpretive–explanatory function.

Second, the theory conceptualizes rights as a lingua franca, a neutral language that can be employed for intercultural communication and dialogue between different normative systems and worldviews, especially with a view to identifying possible overlaps and compromises. The theory adds information about the limits to such lingua franca. As it has been explained, it is precisely those overlaps and compromises that are then granted the status of rights, even if I hold that projecting a life of their own on them could be misleading and practically problematic.

It is evident that rights thus understood cannot claim the centrality they are often granted in political debates and processes: they are neither freestanding nor invariably ultimate. I will later suggest complementing them with another normative incident that remains central in non-Western normative theories and ideologies and was more central to traditional Western normative thought as well: duties. ⁴¹ Yet even this addition does not solve all problems. Rights, duties, or a system that comprehends both still do not provide a workable moral (or legal) system.

Bentham is right: no coherent whole can be built on such fragmented, diverse, vague, general, and potentially conflicting injunctions (a “right to life,” a “duty to help,” a “right to self-defense,” a “duty of non-interference”). At least not if taken exclusively. And Burke is right: it is not only abstract principles of the kind of Bentham's utilitarianism that can weave these fragments into a coherent whole: one needs at the very least historical experiences, institutions, and the shared life of a community for them to find their place and meaning. From a socio-political point of view, Burke is also generally right in stressing the importance of tradition, “prejudice” (in the sense he gives to the word), and conformism to strengthen normativity, even if the positive lights he casts on these phenomena call for qualification, and to be beneficial they need to be coupled with the exercise of critical reasoning at the individual and collective level.

Marx is, I believe, right in claiming that the anthropology of liberal individualism is insufficient to ground normativity. ⁴² I also concur with his thesis that the language of rights, when employed acritically and without correctives, can have confusing and even alienating effects. ⁴³ The extent to which this risks happening depends, however, on how individual subjective rights are arranged and importantly on how they are temperated with responsibilities and duties. ⁴⁴

MacIntyre is right that only from within a specific tradition and practice one can meaningfully understand and engage with any given theory and view of rights. It is, if not impossible, at least highly implausible to rebuild morality and law “upside down,” so to speak: namely, by starting from rights cleansed of their sociocultural–historical–practical origins and backtracking toward some integrated neutral conception to replace their “partial” sources. A “view from nowhere,” if only were it possible to obtain, would not guide some specific person in their search for just as specific somewhere: a “view from nowhere” leads nowhere. MacIntyre then offers a useful example of an attempt at complementing the parlance of rights with normative sources that integrate it: by his specific return to the Aristotelian-Thomist tradition, and by his general emphasis on traditions, narratives, and practices. The former will inevitably leave many dissatisfied: many will prefer Confucianism, Hinduism, Marxism, or some form of Enlightenment system (as MacIntyre notices), liberalism itself has turned into a tradition. But the latter is, I would believe, less problematic: most if not all Confucians, Marxists, and many liberals would recognize the central normative role of individual and collective histories and experiences (narratives), of their established modes of inquiry (traditions) and of their playing out empirically and experimentally in the pursuit of this or that good (practices).

Nietzsche is also right that, at least in some contexts, there is a socio-ideological crisis that has deprived many if not all traditionally endorsed normative injunctions of their authoritativeness and effectiveness: not only “God is dead” for a large share of the world's population, but so is “progress,” “reason” and many other surrogates that the Enlightenment introduced in its place. As I have claimed, however, neither Nietzsche with his followers have been able to offer a workable alternative to ground individual and, especially, associated life beyond their destructive critique, nor should it be assumed on principle that Nietzsche's genealogical deconstruction works the same with every and each (post-)Enlightenment normative system, with scientific projects explaining normativity such as evolutionary psychology and sociobiology, with the traditional Aristotelian-Thomist framework, with Marxism, with all the world's religions and non-theistic systems like Buddhism alike, and so on. Some people will continue to find Nietzsche convincing purely and simply, and by this, they will inevitably find themselves beyond right (and wrong). But others, both individuals and societies, will find in this or that version of the theories and worldviews I have just mentioned, in some combination of them, or in some development or interpretation of them, or in some other kind of normative sources I have not considered or of their own making, a reason to reject Nietzschean nihilism and to fill the parlance of rights with motivational and normative content.

Correspondingly, Hägerström's search for the essence of the law could well end with the finding that the law has no essence: because the essence of the law came (comes) from outside of the law itself. The Greek-Roman systems that he explored, for instance, offer a formidable conceptual and institutional machinery, but ultimately fail to make sense when abstracted from the concrete social conditions and the ideological worldviews that were associated with them.

While Geuss, as mentioned, is closer to Nietzsche than to MacIntyre in his rejection of such systematic strategies to solve the crisis of normativity, there are elements in his view that are to be accommodated. His critical understanding of rights is common to others: his analysis of the historical and institutional roots of a rights-based normativity is just as valid. ⁴⁵ Finally, his “mystic” realization that normativity, and evaluation, cannot claim the entirety of, or even the centrality in human existence can complement this theoretical understanding most fittingly.

The final two criticisms are easiest to accommodate. Glendon's denunciation of the corrosiveness and groundlessness of “rights talks,” with the implication that this would contribute to social disintegration, is consistent with the account I am here offering. Indeed, the interpretation of rights I have sketched, and its being historically and sociologically informed, is meant as a partial corrective.

The same can be claimed with regard to Ignatieff. While rights should not be simplistically reduced to politics and ideology, politics and ideology do play a crucial role in making rights emerge, and the very existence of the language and concept of rights has been explained above as a result of politics and ideology among other factors. Therefore, even when talking about rights (and duties), as I will continue to do here, fetishizing these – “idolatry,” as Ignatieff calls it – should be avoided.

The democratic ethos and institutions, based on votes and the formation of majorities, lead to the value of the broad appeal of general and abstract formulations.

The ideological history of Western societies, and others, in particular those characterized by Abrahamitic religions, lead to attribute a transformative power to “the Word,” to the point of creating realities – as in the beginning of Genesis – or of constraining human behavior – as in the case of the Ten Commandments.

Individualism, philosophical and practical – for instance as dictated by the conditions of production of post-industrial societies – induces to privileging subjective “rights” that can be vindicated as a safeguard of an individual's interests and freedoms without any intrinsic and explicit link to this or that collective, organization, or ideology: “[R]ights language […] presumes moral individualism and is nonsensical outside that assumption.” ⁴⁶

The pluralism inherent in Western liberal democracies has led to focusing on the “overlapping consensus” between comprehensive doctrines, and to justifying and legitimizing politics based on this restricted common reference only.

While a more comprehensive analysis would be possible, these four factors explain much of the centrality and role of rights in the contemporary moral and legal language, especially in the West.

Yet the power of deliberation is limited. It is one thing to win over support for one policy: it is quite another to implement it. And as Fascism and other forms of demagoguery have shown, popular appeal and support do not automatically translate into moral and rational legitimacy. The same holds for rights (and duties) that are democratically established.

The power of “speech” in general – “rights talks” or others – is also limited. Once a right or a duty is sanctioned, it often takes at the very least education and understanding, and at most surveillance and coercion through force, to have them realized. This education and understanding, and these surveillance and coercion require in turn a culture and a way of living, together with a social and institutional apparatus. There is little hope of converting this world's “villains” simply by preaching “rights” to them, and there is no direct causal relationship between identifying and proclaiming a “right” and the real world being bettered or otherwise altered by this finding and proclamation. ⁴⁷

The power of individual-based right claims, while cherished by the culture and institutions of liberalism, can contribute to their success within these: yet, even in liberal societies, resources are not magically multiplied by the corresponding multiplication (inflation) of rights claims, and rights accorded to one may well translate into rights being taken from another, even if in a way that is indirect and not immediately evident. Also, the continuous strengthening of individualism does not automatically translate into empowerment: it can also contribute to anomie – the concept sociologists employ to refer to the breakdown of shared social values. Once that one is used to articulate one's demands in the neutral, abstract, subjective form of “I have a right to x,” one is also increasingly dishabituated to justify the same claims in terms of collective interests, histories, and ideologies, or even in more neutrally pragmatic terms. The risk is that of ending up as prisoners of “rights echo chambers,” where the validation of one right rather than the other can only appear as arbitrary to any outsider, given the abandonment of normative languages and theories that are more encompassing and normatively deep. Rights individualism can end in rights solipsism. This is indeed a risk with the sort of atomization and polarization of political discourse we witness in the West.

Finally, pluralism and diversity are not achieved as a fait accompli, once and for all, and with their invaluable assets come a number of challenges. As Black Lives Matter, “culture wars,” and other sociopolitical struggles in Europe and the US show us, even rights that were sanctioned to accommodate a broad range of identities and standpoints “neutrally” from the very beginning do occasionally become obsolete and untenable and, especially under conditions of material scarcity, there is no guarantee that a normative culture primarily focused on abstract rights (and duties) will suffice to support social cohesion in the long run. After all, such a culture where rights are normative centerpieces, rather than the appendage of broader normative theories and ideologies, is progressively taking shape as an unprecedented experiment. Its decisive emergence after the Second World War and with the cultural revolutions of the 1960s and 1970s does not afford enough data to predict its trajectory beyond a few generations.

As mentioned, rights are often complemented by other normative incidents (or relationships), such as responsibilities and, more classically, duties: fundamental, individual rights can therefore be linked to collective fundamental duties. ^{48 , 49}

Before proceeding with a working list, let us resume, rephrase, and expand some definitions:

A right: we use the word “right” to mean an obligation proposed by one or more normative system(s) that is widely accepted and/or institutionalized in our pluralistic society and is abstracted from its original and partisan (as opposed to “neutral”) source(s). ⁵⁰

Fundamental rights:

• the rights that are presupposed by all the other rights.

• the rights more widely recognized and fully supported in a particular society at a certain time.

• the rights actually accepted as fundamental in our society. ⁵¹

So when we say “This starving child has a right to be fed,” we make an assertion that is equally open to interpretation as a way to “ease someone's unnecessary pain,” in the utilitarian system, as obeying the imperative to behave according to a law that could be rationally universalized, in a Kantian form of deontologism, or as the Muslim, Christian and Hebrew theological precept to “feed the hungry poor,” and so on. All this while avoiding the divisions that would arise in case we drew on a peculiar “comprehensive doctrine”: divisions that will reappear as we try to specify further this right, the way it must be enforced, its (lack of) priority over my freedom to spend my money in resources according to my own needs and choices, etc. The moral attention is so switched from the subject, the duty-holder, to the right-holder, the one who is “benefited.” As a consequence, the duties connected to rights, and the very recognition of rights themselves, sound impersonal: there is a right somewhere there, independently from my opinions, actions, or omissions. ⁵²

The practical simplicity of the proclamation of an atomistic right consists in its allowing us to abstract from any broader normative system. Consider a trivial example: someone jumps me in the queue at the checkout counter and I shout: “She does not have the right to do it!” This apparently unproblematic situation is morally complex and there is no universal doctrine or formula that can tell me a priori if my claim can be vindicated. Is the woman pregnant? Is she coming back after having exchanged a flawed item? Is her obligation to queue moral, in the sense that is merely based on the normative relationship between us; ethical, in the sense that it is regulated by a customary or written code in this and/or other supermarkets; legal, if potentially regulated by law: or all the three of them, or none? There are, normally, some conventions, some customs, some traditions, even some prejudices, or some procedures, that influence what we take to be (a) “right” in this as well as in more complex situations. These include emergency waivers and appeals for revisions of hitherto unchallenged precedents. Yet in a large if not majoritarian set of cases, nothing needs to be spelled out, or even considered consciously.

This example shows that everyday rights can also be found at the humble intersection between habits and moral precepts or beliefs, or between different habits only. Usually, we see our customs as “rights” only when they are under attack; when some unusual individual or collective situation calls our presuppositions into question; or when we encounter disagreements and anarchy. No declaration included the liberty to breathe, even though there certainly is such a liberty, and air pollution might turn it into something worth spelling out. ⁵³ By and large, dramatic moral/political normative reflections and debates tend to occur at moments of individual and collective crises. Adolescence serves as an example of when the individual transition between groups and statuses is accompanied by an evolution of morals: at the collective level, a civil war over the institution of slavery exemplifies a typical kind of crisis. Morals and rights become problematic when different civilizations meet also, as with the Greeks and the Asians at the beginning of the history of philosophy: e.g in the Third Book of Herodotus' Histories the Callatiae encounter the Greeks and display attitudes toward cannibalism and the burial of their deads. Finally, there are internal, ideological transformations of mentality, that it is difficult to reduce to corresponding social changes, such as when the British society secularizes and the crime of blasphemy is correspondingly abolished.

2.1.7 A Provisional List of Fundamental Rights and Duties

Let us now compile a list of basic rights and duties I will use as a basis for a theory of global citizenship, and as a touchstone to verify the legitimacy of national citizenship. It is only a working blueprint based on the Declaration of 1948, a core model for ethics and politics.

This document has been selected for many reasons. It proclaims rights: on the contrary to the Covenants, it is more oriented to defining principles than to pragmatic enforcement, in line with the present inquiry into general normative theory; it is concise, considering in 30 articles only many of the central moral and political issues of our times; it is internationally, even if not universally, accepted since it attracted a stable and large agreement. Instruments that have been developed in response to it, such as the 1990 Cairo Declaration on Human Rights in Islam and the 2004 Arab Charter on Human Rights, are possibly compatible with it, and translatable into it, at least on some interpretations. ⁵⁴ Here is a workable summary:

According to the Declaration, all our societies recognize:

• A duty to acknowledge and respect always every human being's dignity, his or her moral value, and the active and passive obligations these impose. Human beings are entitled to realize their potentialities within moral limits, and no other limits (Articles 1, 2[…]). ^{55 , 56}

• A duty to promote every human being's bodily and mental integrity, to provide them with drinking, food, clothes, space, housing, health care, free time, rest, leisure, reasonable freedom of movement, and protection from illness, menace, torture, mutilation, aggression, detention within moral limits, and no other limits (Articles 2, 5, 9, 12, 14, 16, 17, 19, 22, 23, 24, 25).

• A duty to institute, enforce, defend, and eventually reform or substitute a judiciary and the means needed to protect fairly and to strengthen every human being's rights and duties and to fairly compensate for their violation within moral limits and no other limits (Articles 6, 8, 9, 10, 11, 12, 14, 15, 16, 19, 20, 22, 23).

• A duty to institute, enforce, defend, and eventually reform or substitute global and local political institutions observing and strengthening fairly these duties and the corresponding rights, within moral limits and no other limits (15, 21, 22, 23, 28). ⁵⁷

• A duty to, at most, participate in, at least not to disrupt, and possibly, contribute to establishing a social and cultural life that includes schools, families, associations, and trade unions, favoring art and science, and similar “higher” activities within moral limits and no other limits (Articles 16, 19, 20, 26, 27). ⁵⁸

This stipulatory yet central list calls for five clarifications.

To begin with, the first duty implies all the articles of the Declaration. In the dignity of the human being, we find the whole and complete set of rights that his or her “reason and conscience” can recognize and observe. ⁵⁹ This very right, the “right to have rights” (and to have duties, and much more) is the fundamental right that translates into global citizenship (see next chapter). Arguably, all the rights and duties stem from an onto-bio-psychological foundation: that is, a possible attempt to circumvent the disagreements from which rights have been “extracted” would be by agreeing on a minimal, shared philosophical anthropology. However, this task would require much more work than the swift “philosophical diplomacy” that led to the drafting of the UD, and its outcome is not as guaranteed.

Second, as argued, a large part of normativity is not captured by rights or duties (or responsibilities, or the like). Individual and social benefits, as emphasized by all utilitarian theories, are here invisible. Also, duties and rights, even if sanctioned by (inter)national institutions, begin with one's own private environment and lived experience, as in a sort of expanding circle. Therefore, existentialism and virtue ethics have also captured other aspects of normativity. Also, by defending one's bodily integrity, for example, by not polluting our common environment, or when promoting culture and education, one gains in turn a safer place to live in and a more stimulating community. As Martin Luther King powerfully argued: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” There is a complex web of individual and common goods that gives point and purpose to rights and duties: but no “declaration” or list will ever suffice to capture it. In this context, rights and duties can be conceptualized as different features, perhaps opposite ends, of a single normative structure: by abiding by my duty to respect others' rights I also defend my own. ⁶⁰

Third, a number of important, even fundamental issues are conspicuously absent from the UD. For instance, it presupposes sovereignty, and it says little to nothing to clarify how a system of sovereign states is to be organized in practice. As we will see, I consider this the typical example of how rights (and duties) need to be contextualized into, and complemented by, a real-world narrative with all its details, in order to become understandable.

Fourth, and relatedly, this scheme is open to a variety of readings. Where are religious freedom and freedom of expression to be placed, for instance? If rights and duties imply and support each other, one is to choose whether religion should fit into the first rank, in consideration of the spiritual dimension of human life and understanding dignity as a special relationship of humans to God – as in Islamic or Christian readings – or if it should be located among cultural rights and duties, as a humanist would more probably prefer. The same can be said of freedom of expression: if it stems from human rationality, as for example in Kant's thought, one cannot constrain it without directly offending human dignity. ⁶¹ Otherwise, it could also be considered to be indirectly protected by the fair judiciary (see the third set of duties) or to pertain to the freedoms necessary to the development of a good body politic (the fourth duty) or even, in some contexts, to that of art and science (the fifth). The majority of universal, general rights, though, like those mentioned in Article 16, are accomplished only if many different duties are observed: for example, family, which gives an important contribution to most people's bodily and physical health, to education, etc., is also “entitled to protection by society and the State.” Namely, it should be recognized and defended by a fair judiciary and a well-ordered political system and so with all the complex intertwining of social and political life. These five main areas of duties and rights (1 – human dignity; 2 – bodily and mental integrity; 3 – the legal/moral sphere with its evaluative presuppositions; 4 – the institutional domain; 5 – the domain of “the civil”: society and culture) are strictly interrelated as well.

Fifthly, while proclaiming rights can sound liberating, reminding duties can sound enslaving. How is one to live their life while oppressed by such demanding norms? A traditional distinction taken from Western moral philosophy proves useful: it is articulated in Thomas Aquinas' Summa Theologiae (II, II, Question 40, Article 1) and it has been adopted by his followers, including some forefathers of international law (for instance, in Francisco Suárez De Legibus). ⁶² There are, if any, only a few negative duties that hold always and in each case: do not kill innocents, etc. The majority of moral, even legal injunctions are to be realized conditionally: e.g. you “heal the sick” only if you work as a nurse, or when caring for your close ones. These precepts still hold always – they are generally valid – but not in each case. One does not need to feel compelled to enter a hospital and work whenever one sees one. The right (possibly even the duty, dictated by self-respect) to rest, leisure, and distraction, finds its proper place in this scheme of things.

2.1.8 Human Rights and Human Nature

Is the perspective I am offering boundlessly relativistic? ⁶³ As stated, the purpose here is not directly that of working out an underpinning for (universal and fundamental rights). It is instead that of helping understand rights, and elucidating constraints that any justification will face, either in its construction or in its expression. However, before turning to other issues about the “right to have rights” and the dialectic of rights, I would like to provide a sketch – and nothing more than a sketch – of a way to establish such an underpinning in relation to human nature.

There is, in fact, a large number of simple, undisputable truths rights can be built upon. To quote Iris Marion Young's argument against child labor and exploitation: “Exhaustion and the need to use the bathroom are cross-cultural experiences.” ⁶⁴ At the macro level, and in the long run, economic and social stability in a society that would not recognize or grant any right to workers would be doomed to collapse quickly. And the same holds with regard to many other human, fundamental rights, such as rights to life, a minimum of liberty, etc. While only comparative sociology and history can vindicate this argument, it seems at least worth considering in principle.

In the classic tradition of natural rights, divine law and the rationality of the created universe encompassed and sustained moral precepts. But in a much thinner sense, human rights are “natural” in the sense that they are shared by everybody simply by virtue of their humanity. ⁶⁵ This is the “liberal” conception of “natural rights” or “natural duties,” as formulated for example in A Theory of Justice. ⁶⁶

Some contemporaries have advanced other views of “natural” human rights, grounded in contemporary biology. Noam Chomsky, in a debate with Michel Foucault, suggested that one urgent task to be undertaken “is to try to create the vision of a future just society; that is to create, if you like, a humanistic social theory that is based, if possible, on some firm and humane concept of the human essence or human nature” (emphasis added). ⁶⁷

More recently Steven Pinker has again explored the implications of neuroscience for political and moral thought: the foundations of his views are nearly the same as Chomsky's, but the conclusions they draw are opposite, as one is a liberal, and the other a radical thinker. ⁶⁸ In particular, Pinker challenges “the blank slate prejudice” which would affect modern philosophy at all levels – epistemological, normative, and so on. Linguistics provides some ground for theorizing a universal structure of human reasoning in that it has traced syntactic elements that are mirrored in neural circuits, and present themselves identically – or in a fixed set of variations – across all human societies and languages. If this linguistic homogeneity corresponds to a broader bio-neural–behavioral convergence, “human nature,” namely a scientific account of culturally invariant features such as genes, the structure of the brains and bodies, and the like, would deserve attention by moral and political theorists, and potentially play a role in debating universal values, principles, and norms of conduct. ⁶⁹ Even the Chomskyan scholars who focus prevalently on linguistics have noticed that principles such as “recursion” (namely the unique property of human languages, that makes it possible to combine a potentially illimited set of sentences) point to a unique relationship between human nature, infinity, and freedom. ⁷⁰ More pragmatically, Pinker analyzes the results of comparative ethnography to conclude that many other relevant “cultural universal” exist besides grammatical rules embedded in the physiology of the human brain. ⁷¹ The “human universals” he cites from Donald E. Brown include items ranging from “conflicts, consultation to deal with” to “division of labor by age” (Donald E. Brown, “Human Universals,” arranged in alphabetical order by The Daily Omnivore: https://thedailyomnivore.net/2014/08/21/human-universals/). ⁷²

Even supposing that it is possible in the first place, it is not easy to draw moral conclusions from such a list of anthropological facts. Tacking care of the sick is a human universal, but so is stealing and warfare: yet moral judgment about these could not be more diverging. Without a systematic approach, such as through a scientifically informed philosophical anthropology, it is only possible to single out “certain features of our common humanity,” or non-relative “spheres of experience,” as Martha Nussbaum calls them. ⁷³

Still, this impressive bulk of commonalities shows at least that there are some grounds for suspecting and establishing the existence of an identifiable human nature. A successful attempt at deducting some moral implications may or may not follow: a look at the history of humanity, including the history of thought and global philosophies intent in articulating such that, yields at best mixed and resistible results. The mere existence of a “human nature” is a necessary condition to give legitimacy to this naturalistic view, but it is controversial whether it would also be sufficient. Chomsky, Pinker, and in a very different way also Nussbaum, though, have some strong arguments and facts on their side: since Book Eight of Aristotle's Nichomachean Ethics, indeed, it has been noticed that “Even when traveling abroad one can observe that a natural affinity and friendship exist between man and man universally.” ⁷⁴

The experience of moral disagreement is also very common, and travelers can be struck by both: Herodotus' classic passage on cannibalism, already cited above, serves as a counterpart to Aristotle's quote. It is therefore easy to share in Rousseau's “surprise and disgust” while inquiring about the disproportionate divisions between those who believe in a natural law: indeed, a very narrow group of philosophers (and a much less significant number of people). And any attempt at specifying the content of human rights, and applying them, has indeed proved almost as divisive. ^{75 , 76} Nonetheless, this bookish confusion should not lead astray, nor should we welcome with excessive indulgence Rousseau's case against the consistency of moral and legal systems that successfully sustained civilization for millennia. Yes the customs of the peoples are disparate: but there is no country in the world where killing, stealing, lying, and raping are the norm rather than the exception. Whenever there is a written or oral normative code, these actions are generally and clearly forbidden, and this has been so for the vast majority of history. This is at least an invitation to hope that, in practice, an “overlapping consensus” or equivalent compromises about moral issues could be found, and that in theory, it should be possible to vindicate and ground it into a conception of human nature.

2.2.1 Human Rights, Human Dignity, and the Global Polity

The classic foundation for human rights is dignity. This latter term has been criticized for its vagueness, but it finds a place in most philosophical discourses. Essentially, it has to do with what a human is worthy of (dignus, in Latin). ⁷⁸ The question that is classically central in the domain of justice is what is owed to each person: to give “everyone one's due,” as stated by a phrase variously employed by Cicero, Ulpian, and Justinian in the early days of Western jurisprudence. Its key component is the relevance and distinctiveness of being human, of what is owed to humanity as such. Human dignity so understood relates to the inherent value of personhood, its intrinsic moral relevance, which entitles one to a particular consideration as a member of a community spanning as widely as humankind. While much thinner and less politically organized than a nation-state in its explicit and enforced obligations, such a community would nonetheless be morally and ontologically preeminent. If one has human dignity, one possesses human rights, and the right to have rights that precede them and is presupposed by them.

In this context, dignity can be presented as “the right to have rights.” ⁷⁹ Hannah Arendt's formulation of this most fundamental right refers to the implied existence of a global polity since this right is not predicated on any specific particular political community. ⁸⁰ Humans being “political animals,” a person cannot fully exercise her rights if not as a member of an organized society. Many important articles of the Universal Declaration, such as Article One, which mentions dignity explicitly, and Article Six (“Everyone has a right to recognition everywhere as a person before the law”), are highly compatible with this idea of a non-disposable right to be respected as a human being at every relevant level (moral, legal, political).

The two occurrences of the term “right” in this formula have two different meanings: the first “right” lacks a particular addressee since “humanity as such” is, at present, something much more fluid than any nation-state. The paradox is that what appears to be morally more significant is hardly definable, while the apparatus that distinguishes between citizens and “others,” and whose legitimacy is open to question, is well-identified and materially more forceful. Even nowadays, rights declared by international documents are not enforceable if not through national agencies: the extreme case of the controversial “responsibility to protect (R2P)” notoriously requires in practice that some state acts “on behalf of humanity.” The most fundamental right is therefore very different and much less practically relevant than ordinary rights, and still needs to find its place in “a specific juridico-civil community of consociates who stand in a relation of reciprocal duty to one another.” ⁸¹

2.2.2 Cosmopolitan Norms From Global Violations

The global polity, the One World evoked in Arendt's analysis, is a matter of fact, a historical situation, rather than a political institution. ⁸² Arendt herself considers the modern nation-state the only purveyor of rights and the only context wherein the exercise of those rights is possible. ⁸³ At the same time, though, the arbitrariness of the extension or limitation of membership, the wavering distinctions between subjects and strangers, are incompatible with a universal justification of rights. In this way the situation described by Arendt appears as a “paradox,” a contradiction between the requirements of the respect for universal rights and the internal limits of political institutions. Even the “civic” criterion of membership she endorses is potentially exclusionary. Arendt also knows that nation-states are not to be considered a given, since they undergo frequent and radical transformations, or are even created anew. ⁸⁴ She refuses the idea of a universal state sovereign as starkly as Kant. However, the possibilities of political evolution transcend the dualist alternative between central global governance and contemporary nation-states. Arendt's “experimental, fluid, and open reflections on how to constitute democratically sovereign communities, which did not follow the model of the nation-state, were not explored further,” but they brilliantly alluded to a reality similar to the present. ⁸⁵

Indeed, as Benhabib claims, we have entered the era of “cosmopolitan norms of justice.” This peculiar cosmopolitanism does not consist of a visionary utopia but is rooted in the conditions of global politics. The period in which states negotiated as the only legitimate agencies, the era of “international norms of justice,” ended when states themselves became capable of losing their legitimacy in the eyes of citizens, especially if unfairly denaturalized. As citizens can be made non-citizens, a state may become a non-state. Of course, both of these incidents still occur in cases of emergency. Nowadays even democracy is limited by international norms and institutions. ⁸⁶ Legitimacy has become a global question.

A “crime against humanity” is not the same of a crime against humanness: the former is a crime against all human beings, against the very existence of humanity itself. ⁸⁷ A genocide is a criminal act against a whole community (since it is perpetrated against a whole ethnicity or nation) and by virtue of that, it is set at a very different level than the murder of an innocent within a state. ⁸⁸ This latter is to be judged according to the state's laws. But the universal relevance of genocide elevates it to a global arena: states must be coherent with the concept and comprehended in the physical extension of humanity, therefore humanity embraces and surpasses all and each political community. By attacking the entire Jewish people, Eichmann exceeded the jurisdiction of the German state, and as a consequence was legitimately judged on very different bases than those regulating its national context only. ⁸⁹ Eichmann's trial is an example of a trial in which humanity faced an individual who violated the “right to have rights”: in other words, a trial where humanity confronted an individual who denied it. ⁹⁰

2.2.3 Humanity as an Agency

The problem posed by the recognition of a “right to have rights” (or the identification, creation, and distribution of a basic status to which rights apply) is not the same as a violation of an individual right. ⁹¹ When a person is not treated as such, despite being apparently given all the consideration that is due to a human being, her rights are seen as the benevolent and dangerously contingent concession by a domineer. Thanks to the creation of the international human rights regime, this issue has become a practical question rather than a philosophical one. Still, the international rights regime does not specify agencies and means sufficient to enforce human rights, and the identification of these instruments is an urgent matter of philosophical, moral, and political reflection. ⁹² Collective actions and even an evolution of present institutions are needed to answer Arendt's plea for humanity to care for and decide on what affects humanity.

The otherwise legitimate distinction between citizens' and non-citizens’ rights does not apply to human rights, as acknowledged even by those who argue for distinguishing such rights when it comes to distributive justice: I think here of Thomas Nagel, Andrea Sangiovanni, and Michael Blake. ⁹³ One of the problems with these accounts is that they do not emphasize the continuity between human rights and the socio-economic dimension. In any case, a “citizenship gap” is affecting the stateless and displaced together with the citizens who, without a sufficiently harmonic cooperation of states and a more relevant international authority, are affected by the effects of globalization. ⁹⁴

2.2.4 Coercion and the Requirements of Reciprocity

Coercion, reciprocity, and participation in processes of autonomous deliberations generally make the bonds between citizens much tighter. This has been mentioned in arguments to justify international economic inequalities, as well as other such as cultural and the like. The question posed by Arendt, however, regards the justification of citizenship as a guarantee of human rights, its limits, and its compatibility with global duties. ⁹⁵ It evokes, if not invokes, the possibility of a global polity, that emerged from the intertwining of human destinies made visible by the last centuries' historical developments and catastrophes. And, coupling this to the “right to have rights,” it implies some form of global citizenship. A number of critical points should help reassessing this set of issues.

First, the acceptance of a minimal respect for human rights is taken as a given. ⁹⁶ The enforcement of the human rights regime is considered a practical difficulty. Yet usually, theorists do not even list human rights in detail, which would already be somewhat controversial. ⁹⁷ There is disagreement over the precision and legitimacy of many Articles of the UD already, such as those regarding socioeconomic rights. How could the present world order be sufficient to the enforcement of human rights, if there is no clarity about what counts as a human right? And since there is neither a hierarchy of rights nor a definition or quantification of human rights violations that are “tolerable,” these theories potentially expose every state to punishment if not outright aggression. Also, who should prevail between sovereign states and organizations like the UN and a single sovereign state? The “global justice theorists” have not fully spelled out their take on this respect. A coherent theory of combined (or clashing) sovereignties is, at least at present, missing, and it has been substituted by anarchical and chaotic practices. ⁹⁸ De facto, the “burden” of defending human rights weighs principally on the nation-state. As long as the cooperation of the international community is dysfunctional, and its legitimacy is open to question, we will lack a workable philosophical and theoretical understanding of how human rights are to be understood, interpreted, assessed, measured, and enforced. ^{99 , 100}

Second, and relatedly, political institutions are also taken as a given. ¹⁰¹ This approach appears less naive than a utopian philosophy, which freely dreams about global polities as if nation-states had disappeared. “Global justice theorists” would rather accept the present world order, even when they advance requests for significant changes. This realism is to be welcomed. Consistently with it, one can notice that some important institutions defy the polar opposition “global-local (national).” ¹⁰² The EU is obviously the first example that comes to mind, but one can wonder whether federal states are not already situated beyond the protomodern, monolithic concept of sovereignty. Even strongly unitary states sometimes defy dualism between the national and international: for example, China's “Special Economic” and “Free Trade” zones. ¹⁰³ States change and adapt seamlessly: it has always been so in history, and there is no reason to think that in the era of globalization, they will cease to do so. Rather, the relationships with outsiders and between states will adapt accordingly.

However, and as a third point, the most blatant examples of “blurring” between national and international are to be found at the individual, rather than institutional, levels. Migrants live more or less stably in between countries and this affects both the respect of their human rights and their equal status, whether based on their contributions as quasi-citizens or not. ¹⁰⁴ They take part in the hosting state's social and economic life, and they are exposed to state coercion, but often, their status is not proportionally enhanced. Citizens of a collapsed or failed state are in a much worse situation since they can be deprived for a long time of objective-institutional counterparts to subjective citizenship, namely without any appointee to the defense of their rights apart from the feeble and often de jure guarantees from the international community. This is also the case in most extreme cases: minorities who are persecuted to the point of being dehumanized, the state of war, the concentration camp. ¹⁰⁵ And even such cases are not after all really “marginal,” as exceptions may become the norm, wars are prolonged, and refugee and segregation crises affecting millions are protracted over decades.

The fourth and last point regards the definition of coercion presupposed by the “global justice theorists.” ¹⁰⁶ Establishing a cut-off point to determine whether people are coerced by a state or institution or not is not at all simple in theory and is bound to be contested and controversial in practice. ¹⁰⁷ Partly, this is a matter of economics: decisions by one state, or even by private institutions, can plunge entire populations into poverty: and it is hard to find anything more coercive than the threat of starvation. ¹⁰⁸ Also, paradoxically, within or without international institutions, nation-states have been able to inflict more coercion – through military intervention – on foreigners than on residents. These are ordinarily presented as reactions to threats from foreign countries, such as terrorism, diseases, and massive migrations. ¹⁰⁹ Be it as it may, there is certainly no way by which “foreign subjects” can hold their dominators accountable. Therefore, the reciprocity-coercion argument should be played the other way around: in the cases in which we clearly detect international coercion, we should demand a proportionate transnational system of enfranchisement and participation also. ¹¹⁰ The contradiction between universal claims of equal concern and the exclusion of outsiders is thus far from completely settled, despite the arguments of the “global justice theorists,” and the “outsiders” who live within state borders can constitute a constant reminder of pressing inequalities. ¹¹¹ This is why Bohman consistently speaks of “Cosmopolitanism at home”: the justice of the whole system is diminished if this proves ineffective in addressing anyone's legitimate claims for freedom.

It follows that justice cannot be reduced to the setting of “sufficiently fair” standards of (re)distribution in the local, even less, in the global arena. ¹¹² Justice implies also an imperative demanding the expansion and implementation of just institutions (as well as practices and procedures) operating in all the relevant fields. Rawls argued that justice compels us to abide by just laws on the one hand and to reform them and establish new ones on the other. ¹¹³ Since consent plays an important role in legitimating an institution, the “institutional-political” implication of “global justice theorists” could have conservative implications. ¹¹⁴ The legitimization of an institution, in fact, is not contingent if it is predicated on its commitment to justice: the alternative to a recognizably legitimate international order is a Hobbesian-like state of war. ^{115 , 116} In my interpretation, the impulse to enhance global institutions together with ties between individuals and the national institutions they belong to, and also to favor the recognition of humanity “at home,” is continuous and consistent with the primitive inclinations toward social and political life. The fact that we are already distributed in communities, does not eliminate the need for harmonization: a dispute between states over the control of some resources is not different from two individuals fighting but causing greater destruction. ¹¹⁷ In this limited sense, the “domestic analogy” between individuals and nation-states holds: states do not recognize any vertically superior power, nor do they behave like individual citizens, but conflicts between them cannot be abandoned to a Darwinian/Hobbesian fight for the dominance and survival of the fittest. ¹¹⁸ Poverty, attempts at genocide, crises in international relations, massive migrations, pollution, climate change, terrorism: all these can be addressed properly only beyond Westphalian sovereignty. Many accomplishments are already possible only through transnational alliances and cooperation at all levels. These need to be recognized, supported, and sustained by a cultural, social, and psychological effort for understanding, respecting, and harmonizing different civilizations and national communities. From poetry to science, to arts and sports, the achievements of our age exceed boundaries. Identities and meritorious traditions can be preserved and thrive, even more in the context of a harmonious global community. Benefits for individuals, from refugees and migrants to residents and citizens, are also enormous, and the risks of an unsafe and dysregulated international environment are too grave to be dismissed. Originally, it was impossible for human societies to survive without a common organization: this led to the setting of principles of limited range. Yet these implied, e.g., a spatially unlimited principle of non-interference. ¹¹⁹ Now circumstances of justice have changed and require the integration of each state in a system of “global citizenship,” as well as the reconsideration of non-citizens within the state's boundaries, of “marginal cases” and “states of exception.” And these not for reasons opposite or additional to those which led to state formation, but rather as the natural continuation of those latter. ¹²⁰ Just as entrance into society was indispensable for the communal enjoyment of rights, some form of global society is now needed to cope with global and local problems coherently: as a consequence, we have a natural duty to promote it actively, a duty that cannot be misrepresented as a matter of supererogatory generosity. ^{121 , 122}

2.3.1 Power Through Exclusion: The Paradox of Sovereignty

This lends the occasion to introduce a theoretical device both to understand that process, and to grasp better the ambiguity of the “right to have rights”: the idea of “inclusive exclusion.” According to Giorgio Agamben's theory, the space in which political power first arose is where law detaches itself from nature. ¹²⁷ Since humans are naturally “political,” that is, born in an organized society and acting according to judgments instead of mere instinct, the way in which sovereignty is originally exercised is by sanctioning or lifting the “banishment.” “Banishing” consists of “abandoning” someone to the state of nature, therefore excluding the subject from the reign of law and by doing so showing her total dependence on the sovereign itself. It is through this exclusion that the inclusion in the state of subjection is made possible as a power exercised against all, a power whose limits are not visible because the subject lives within them, and trespassing them would cause death. An original “biological” world, a pre-legal state of liberty, is in modern politics unthinkable. ¹²⁸ Freedom, in other words, a proper human life, comes to existence only through the polity: libertas est civitas. ^{129 , 130} And slavery, as Aristotle famously argued, is a condition less than humane, and is only pre-political life: outside of the city no human is found, but only gods, beasts, and “talking tools” (slaves). Still, even within the boundaries of the political life was something one could arbitrarily dispose of on some occasions, as with the Roman vitae necisque potestas. ¹³¹ Therefore the definition of the sovereign as the one “who decides on the state of exception” is consistent with Arendt's idea of a “right to have rights”: the fullness of sovereignty is not in the decision on this or that particular right, but in the definition of who is entitled to bear rights tout court. ¹³² Sovereignty is traditionally unquestionable because all the political questions can be posed only within its framework, on its supporting basis. It is the condition of the possibility of politics, and, since human life is essentially political, it is also the condition required for living and respecting humanity. The outsiders, beings that barely exist, were correspondingly considered almost incapable of questioning anything, all the more the sovereign power. The “political view,” which takes present institutions as a given, is therefore at a loss in considering how to opt in new members. Rather, already existing nation-states need, on this view, merely to justify their coercion, a requirement that is implemented only by the (recently acquired) democratic political agency of the people. But since such institutions, as Nagel clearly concedes, were not created for that purpose, tensions and discrepancies were to be expected from the very beginning. ¹³³ A theory of rational sovereignty, and especially a theory of the rational evolution of sovereignty, is still needed. From this open question originates the problems of the “citizenship gap”: the global extension of rights, which is not the mere enforceability or overreaching of sovereignties. ¹³⁴ Contingent political institutions, for a number of reasons, disguise themselves as “natural,” and by doing so they not only avoid the re-definition of the “social contract,” but also confirm the dangerous confusion between law and nature, illegality and non-existence. ^{135 , 136}

If Agamben is right, in fact, something more relevant is at stake. If the “sovereign ban” is the original definition of who is included and who is excluded, a definition that by itself extends to both categories by implying that the excluded are, whether they like it or not, cut off from entitlements provided by that society (which, in practice, could mean excluded from society or life altogether), a global polity would be a very dangerous, totalitarian, and inescapable global subjection. ¹³⁷ Is the idea of global governance, however imagined, to be coupled with the frightening possibility of a global state of exception, namely of the global suspension of human rights? Are we to face the difficult choice between (pre-political) non-disposable rights which are not enforceable and (political) enforceable rights which are necessarily disposable? ¹³⁸ If so, it comes as no surprise that even some of the staunchest cosmopolitans are wary of the characteristics global institutions could assume. But otherwise, are rights always to be defined and restricted by a limited community, as Burke's “rights of Englishmen” illustrate? And which “third way” could be found out of this dilemma, if traditional sovereignty posited itself as monist and unprincipled, a mere fact to be questioned and justified only after its establishment and acceptance? ¹³⁹

Nagel's realistic insight on this suggests that we can expect a regime of global injustice to consolidate before global justice becomes possible. But since this is no self-unfolding cosmological principle, and we are not assured of the extent of this injustice, nor of our own survival, it is reasonable to elicit as much resistance as possible as soon as we notice its symptoms. Political regimes often present themselves as natural and, if some form of the theory of natural duty is correct, we can take their point: even if no individual political institution is really so indispensable, the existence of some institution is necessary and required by the universal “right to have rights,” namely by humanity itself. ¹⁴⁰ But as the birth, the evolution, and even the dissolution of nation-states have revealed historically, a possibility of directing the process according to some requirements and ideals coexists with this necessity. The shape cosmopolitans give to their global polity is very indistinct, but so were other ideas advanced in the past while debating the constitutions of the states we see at present. In single, situated cases of rights violation, we can discern some paths toward the evolution of citizenship. There is no reason why one should wait until injustice has ripened to establish a more just global community. We do not need total injustice to move from anarchy to justice. We can proceed through facing limited problems, and then try to harmonize the institutions needed for their resolution. The characteristics of global justice are to be worked out as an answer to specific, contextual violations of justice and undue coercive oppressions. There is no assurance that, even in this way, necessarily just institutions will be the outcome. The sum of single improvements, each of which is positive in itself, could turn dangerous if unforeseen and difficult to control, and it could also be twisted to pursue ends that were not inherent in the process of its genesis. As it happened with the dissolution of feudal loyalties, the result can be a well-ordered, unified political entity, absolutism, or both at different times. But the perspective risks of the future do not excuse complacency with the injustices of the present – and the past. In fact, both the violation of minimal redistributive justice meant to redress dramatic deprivation and that of basic human rights undermine the credibility of institutions responsible for them. No individual, and certainly no state, should turn a blind eye toward such violations against any human being, and the discrimination of non-citizens in this respect turns out to be a challenge to state's legitimacy even in the citizens' eyes. ¹⁴¹ Yet, nothing in principle guarantees that a more substantial international order will promote these rights instead of greater domination, as nothing guarantees the same to the founders of any given country.

2.3.2 The Foundational Role of Outsiders

In many myths and national stories, the nation is re-founded by a foreigner who is capable of making the polity anew with his/her double nature of a revolutionary, threatening to destroy the establishment, and of a brave migrant bringing in new energies. Bonnie Honig has argued that the strangers, marginalized, and excluded bear the philosophical and political re-founding of the legitimacy of national institutions. ¹⁴² Democracy requires that all its power is grounded in the defense of people's authentic interests and freedoms, and this assumption is both challenged and verified through processes of inclusion. “Marginal” cases provide the nation-state with a test of embodied universalization: it is only through them that political principles of equality, fairness, fraternity, and universality are coherently embedded in practices. ¹⁴³ In the era of globalization, non-citizens also work as tests for the nation-state to show that it is still able to perform its original instrumental function: protecting subjects from violence and injustice and coping with an environment that would prove dramatically too complex and hostile to individuals. Honig's idea of democratic cosmopolitanism does not determine a specific institutional arrangement, and she denies that either global citizenship or world government is implied by it. Since this idea relies on the particular and unpredictable demands of each practice of integration, the outcome of these trade-offs between in and outsiders will be understandable and explainable only retrospectively. ^{144 , 145} Yet independence or even opposition between laws and practices should not be exaggerated to the detriment of both. Laws and practices may sustain each other, and if one of the two poles becomes predominant, either fluidity is transformed into evanescence or solidity into rigidity. ¹⁴⁶ Moreover, practices and laws must be in line with each other. The task of advancing both cannot be left on the shoulders of the oppressed, of those who most suffer for their defects: therefore, their expected roles should not be conveniently – and ideologically – exaggerated. It is, instead, a task human beings have in common by virtue of their nature and dignity.

2.3.3 Abject Cosmopolitanism: The Refugee/Stateless as the Essential Citizen

Peter Nyers' article on “abject cosmopolitanism” provides a case study and a restatement of such cases: it is however the very concept of “abject cosmopolitanism” that I find of theoretical interest. ¹⁴⁷

The situation of refugees is, more generally speaking, rich in insights into the essence of citizenship for many reasons. The most obvious and not negligible, despite not being central to the argument here, is that refugees make up a great proportion of displaced, stateless people, and constitute an urgent political problem playing a significant role in international politics and diplomacy. ¹⁴⁸ Its dimensions and dramatic intensity make it impossible to ignore. This introduces the second, and philosophically more relevant, point: refugees embody the clash of sovereignties I referred to as an issue of (meta)political legitimization. ¹⁴⁹ They are members of a community not although but rather because they are rejected by another. ¹⁵⁰ And therefore, as a third and crucial point, they already embody the sense and the provisions of global (or fundamental-essential) citizenship and, in my view, also of citizenship itself. ¹⁵¹ In its deepest meaning, the meaning that probably came historically and conceptually first, citizenship is primarily the entitlement to human rights that fades if those rights are violated, and that must be conceded by any legitimate community capable of doing so, under penalty of losing legitimacy before its members' eyes, and before outsiders. The community itself might work as a local instantiation of humanity (in loco civitatis: in the place of humanity, as David Owen has it) corresponding to universal standards of morality and rationality. ¹⁵² Refugees lack human rights (legally), they deserve human rights; they lack citizenship, they deserve citizenship. Conversely, a community provides its members with human rights, and if it does not, it is not a legitimate, “decent” community anymore: depending on the scale of these violations, it can even be considered a tyranny to be overthrown. Ordinarily, however, the right to decide whether this threshold of injustice has been crossed or not lies with a country's own people, and with them exclusively. Otherwise, it is regulated by articles 24, 25, and 51 of the Charter of the United Nations, and implemented through the general provisions of Chapter VII of the same, so that armed interventions are restricted to actions authorized by the Security Council to preserve international peace and security, while states keep their right to self-defense. More recently, in 2005, (A/RES/60/1) “Heads of State and Government affirmed their responsibility to protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

The right of asylum is, just like these international obligations and Francis Deng's innovative conception of “sovereignty as responsibility,” a constitutive part necessary to global citizenship: but if we have, as I think we have, collective duties to ensure that every human being enjoys rights proportionate to his/her dignity, much more is required. ¹⁵³ It may be necessary that states constitute a supranational community capable of dealing with problems of this sort. ¹⁵⁴ And also through this means, states should study and realize policies for the betterment of the human rights regime worldwide: this would be properly a matter of foreign policy, that does not necessarily imply abuses of military interventions, even in case crises loom. Rather, international cooperation to enhance human rights worldwide is both compatible with national sovereignty and reinforces it.

Finally, there is a conception of “abject cosmopolitanism” that goes beyond the meaning initially attributed to the phrase by Nyers: “abject cosmopolitanism” is realized whenever states, peoples, and communities that have been forced at the bottom of the global hierarchy struggle to realize a freer, equal, just international order. In this line, countries and peoples who strive against colonialism and discrimination have all provided examples of “cosmopolitanism from below.”

2.3.4 Peace and the Teleology of Citizenship

On the very contrary, in Europe, where centuries of history disproved the illusion of fixing diplomatic issues through aggression, the human rights of citizens grew both within and without member nation-states thanks to the increase of economic, cultural, and personal ties, the improvement of mobility, the porosity of borders, disarmament, dismantling of colonial empires, and protection of a large number of citizens of any ethnicity and orientation through modern welfare-states. ^{155 , 156} These and many other technical-material improvements were coupled with a number of cultural and educational achievements, which are not as easy to list, but were no less effective in securing human rights at home and abroad: for example, the dismissal of racial and social-Darwinist discourses, and the cultural openness toward the “foreign” that increased over decades. Sure, progress is still required, and all these achievements might end up in peril at one point or another. But three aspects of the development of the EU are here interesting to focus on. ¹⁵⁷

The first is its past: the way through which the idea of a commonwealth of European nation-states emerged is exactly the one theorized by Nagel. Wars, oppressive and unfair treaties, and even the threat of a unified imperial tyranny helped recognize the mutual responsibilities, the strict bonds, and the possibilities of convergence between old enemies and disloyal allies. The second is its present shape: a supranational regime that, despite many, undeniable shortcomings, has persuaded members to agree on common standards and destiny with regard to fundamental matters. And this, without abolishing, perhaps even without diminishing national identities. The most relevant, though, is its possible future development: the telos of the EU was peace, that is to say, the free enjoyment of rights, and the strengthening of friendship among peoples who are different yet capable of being united. It is in opposition to the catastrophic effects of war that the process of European interaction started, and solely in the perspective of the attainment of peace, not only for its members but for the whole world, it could remain a relevant experiment and a model for international institutions. In Immanuel Kant's international political theory, a “Federation of Free States,” and “Universal Hospitality” were joined together with “Perpetual Peace.” ¹⁵⁸ A century and a half, and many disasters later, European politicians started thinking that obtaining peace without shared institutions and hospitality would have remained impossible. ¹⁵⁹ But before I consider national and international peace more thoroughly as the end toward which the instrument of citizenship could be oriented and the idea against which each local citizenship has to be measured, I have to turn to consider, in general, the flexible functions and the essence of citizenship itself. ^{160 , 161}