Critical humanities and the human of international human rights law

Ben Golder

There is doubtless far more to this complicated relation between human rights and the humanities, and much has already been written on the topic.[1] In this chapter my intention is neither to traverse this voluminous archive nor to propose a relation between international law (even, more circumspectly, international human rights law) and the humanities writ large, but to confine my attention more narrowly to the encounter between international human rights law and two particular humanistic modes of critique: genealogy and peiformativity. These genres of humanistic critique function neither (per Rorty s philosophical targets) to justify or found human rights, nor to serve, pace Rorty, as their cultural ‘vehicles of moral change and progress’, but rather to put the very human of international human rights law productively in question. In the best spirit of the critical humanities, they take something supposedly commonsensical and presuppositional and render it strange, turning it into a problem for us. Whereas genealogy (la Nietzsche and Foucault, for example) evokes the groundlessness and contingencies of the human, performativity (la Arendt and Butler, for example) calls for that human’s reimagining and pluralisation.

In what follows, and in the tradition of handbook entries understood as manuals and guides to particular techniques, I attempt to lay out how genealogy and performativity, as particular modes of humanistic critique, work both to problematise and expose the contingencies of the human of international human rights law as well as to give us the tools to begin to remake that human differently and otherwise. In so doing 1 neither want to suggest that problematis-ing the human is the special preserve of the humanities (indeed, lessons from primatology, neuroscience and artificial intelligence, to name just a few scientific disciplines, work similarly destabilising effects),' nor that genealogy and performativity are the humanities’ only or best tools to reimagine the human. Rather, I simply select these two modes of critique as they are each representative of currently influential and productive forms of inquiry in the contemporary scholarship on international human rights law, and hence forms of inquiry with which any handbook entry should hope to reckon.


Embedded in most orthodox introductions to human rights or relevant chapters in international law textbooks is some version of the following, confidently asserted, phrase. ‘|H|unian rights’, to take the exemplary instance of Jack Donnelly’s Universal Human Rights in Theory and Practice, ‘are the rights one has simply because one is a human being’. As a means of distinguishing an entitlement to human rights from, say, an entitlement to citizenship rights or contractual rights, each of which clearly depend upon the rightsholder’s birth or entry into a particular legal status or relation, the formulation serves a limited heuristic purpose. As a means of asserting the simplicity or straightforwardness of the legal category of the human it is, of course, a complete (yet productive) failure. For it turns out that there is nothing simple or straightforward about the human that is said to be the bearer of human rights. As I suggested earlier, there are multiple disciplinary ways of unpacking who or what is claimed to be the human of human rights, not all of them native to the humanities. Each of these disciplinary provocations to the human of human rights, however, reveals something similar: the putatively constitutive lines drawn between the human and its supposed opposite (the animal, or the sub- or less-than-human) emerge as far

more porous, contentious and contingent than first thought. But if it turns out that, to repurpose a famous title, we have never been human (that is to say, our operative conceptions of humanity and the rights owed to it are time-bound, contingent, variable and exclusionary) this is not necessarily to debunk or refuse the categories of the human and of human rights. If we fail to settle, simply and once and for all, the contours of the human, this is nevertheless the kind of productive failure that leads not to the end of the human (and its rights) but to the beginning of different conversations about what that human might be.

But that is to get ahead of ourselves somewhat. Let me come first to genealogy as a more particular way of articulating the historicity and contingency of human rights. What, then, is genealogy? 1 want to operate in this chapter with a fairly generous and non-stipulative conception of this practice of writing history.9 This is not only because (as will shortly become evident) there is something faintly ironic in trying to police what is and what is not a genealogy (at least when one is working, as I am, with a primarily Nietzschean and Foucauldian set of references) and also because it is not entirely central to the present enterprise (which is, after all, to say what genealogy can and cannot do to our notions of international human rights law) to parse distinctions between genealogy and Cambridge School contextualism and the history of ideas, and so forth. Having said that, a starting point might be to say, with philosopher Colin Koop-man, that genealogies

are addressed to today despite ostensibly being histories about the past. ... As such, genealogies function as critical histories of the present. Genealogies start with the present in order to trace the conditions of the emergence of the present in which we are present."1

  • (This doubtless why Foucault labelled his genealogies, bluntly yet revealingly, ‘histories of the present’).1 If genealogies are forms of history writing that are written from and to a present (rather than, impossibly, from some Archimedean vantage point or with a putatively disinterested interest in the past for its own sake) then they do so precisely in order to disrupt the seeming certitude and self-evidence of present concepts and practices, denaturalising and rendering them contingent. The genealogist is not interested in establishing the lineage and pedigree of present arrangements (tracing them back to a glorious and justifying origin so as to establish temporal continuity, value and legitimacy — Nietzsche, for example, attempted the exact opposite) but rather to show how what we now think and do is in fact the product of local, haphazard and violent contests over meaning and purpose, often forgotten or repressed. The genealogist opposes herself to teleology and immanent reason in history, insisting instead on the discontinuous ‘development’ of history. Genealogies are irreverent counter-histories, written to trouble dominant justificatory narratives by emphasising discontinuity and breaks where the seamless historical transmission of value and identity is claimed or assumed. (It follows from the foregoing that genealogy proposes a challenge to the idea that one can narrate the origin story of a given concept or practice as a continuous development of that concept or practice through time where its meaning and self-identity remains stable. Rather, the genealogist instead proposes that
  • 9 For a fuller treatment, see Ben Golder, “Contemporary Legal Genealogies,” in Searching for Contemporary Legal Thought, eds. Justin Desautels-Stein and Christopher Tomlins (Cambridge: Cambridge University Press, 2017). Much of the following text in this chapter condenses analyses made at greater length therein.
  • 10 Colin Koopman, Genealogy as Critique: Foucault and the Problems of Modernity (Bloomington: Indiana University Press, 2013), 24.
  • 11 Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (Harmondsworth: Penguin. 1977), 31.

the meaning of, say, ‘human rights’, is fashioned from one historical moment and context to the next and thus has no enduring meaning ‘itself’, extended across time. This is why on my reading genealogy is an anti-essentialist and, broadly, deconstructive, method.)

If genealogies are counter-histories, most always rhetorically and irreverently written against something or someone, then it makes sense to explore what a genealogy of human rights might oppose itself to. The example of a genealogy that I am going to use in a moment is Samuel Moyn’s The Last Utopia, and in that text Moyn explicitly opposes his own account of the rise of human rights to rival accounts that suffer from ‘teleology’, tunnel vision, and triumphalism’.[2] One such account is that furnished by Micheline Ishay in her 2004 book, The History of Human Rights: From Ancient Tinies to the Globalization Era. Briefly, and as its title indicates, Ishay’s book narrates a longform and progressive history of human rights that connects contemporary iterations of human rights with the very dawn of civilisation, establishing the longest possible pedigree and continuity for the present human rights dispensation. Along the way, a diverse and indeed contradictory set of historical actors and movements are assimilated to the category of human rights, from Buddhism and Lenin to Martin Luther King. As Moyn acerbically observes elsewhere, such accounts seek to ‘ransack . . . the past as if it provided good support for the astonishingly specific international movement of the last few decades’, hence furnishing appealing ‘backstories to the vogue of human rights’.

As has become increasingly well known, Moyn’s own revisionist account of the emergence of human rights in The Last Utopia proceeds on very different historiographical (that is to say, genealogical) footing. 1 use this very well-known example in the literature not to suggest it is the last word on the history of human rights,1’ but precisely because its oft-cited account is well enough circulated and understood to release me in the present context from the duty of extensive exegesis — freeing me up instead to focus not on what it says so much as on how and why (and with what effect) it says it.

On the substance of Moyn’s account, then, he insists on a radical disjuncture between contemporary understandings of human rights (which he proposes emerge in the late 1970s) and previous historical understandings of, for example, the French revolutionary Kights of Man or the rights articulated in the American revolutionary context, or indeed rights claimed in the twentieth century on behalf of decolonising peoples or, most controversially, the rights enunciated in the Universal Declaration of Human Rights itself in 1948. What distinguishes contemporary human rights discourse from its oft-claimed historical forebears is, according to Moyn, the fact that our present version of human rights (born in the late 1970s) is very much a creature of international law and dedicated to the transcendence of nation-state sovereignty whereas previous rights discourses founded and animated nation-state sovereignty'. What explains the shift to a more minimalist and supposedly apolitical human rights at this time? Moyn contends that this vision of a minimalistic human rights protective of personal integrity rights against the state triumphs in a Cold War battle of utopias at the expense of other maximalist political projects (revolutionary communism, state socialism, decolonisation), which, at least in much of the West, had been discredited by the late 1970s as violent and flawed ideologies. Exeunt revolution; enter human rights.

This adumbrated account of Moyn’s argument nevertheless allows us to see how a genealogy of human rights functions and what conceptual and political work it might perform. The Last Utopias historical account introduces a radical discontinuity into the heart of the concept of human rights. Instead of a singular and self-identical concept of human rights moving through history, we are confronted with multiple discontinuous concepts of rights and of human rights, each dependent for their emergence, uptake and institutional acceptance on the confluence of particular and contingent historical factors. Rather than a time-honoured and coherent concept of human rights we are forced to reckon with the precarity and contingency of our taken-for-granted concepts in the present. Human rights could have been otherwise, indeed could still be otherwise — or (horribile dictu) not at all. This is the kind of vertigo the best genealogies aim to foster. Even as they withdraw the kind of temporal legitimacy often claimed on behalf of authoritative contemporary concepts and practices (like human rights), by suggesting that in fact they have a much more recent, accidental and invented history, they clearly elucidate and sharpen the political stakes of their object. They remind us that the expansion and contraction of, say, the concept of human rights, is a function not of the progressive logic of rights themselves (first white men, then white women, then racial and ethnic and religious others, etc) but of pitched and unpredictable political battles fought over who or what should fall within their remit, over who should count and be counted as a human worthy of rights. (Hans Joas reminds us that none of these battles were foregone conclusions and that political claims for full rights for women, for example, were viewed at the time ‘even by the most radical universalists, partly as preposterous, and partly as a danger to the life of society’.)[3] In attending to the political constitution of the limits of human rights, genealogies of human rights also orient us away from reactivating anachronistic or nostalgic solutions to contemporary problems. A genealogists response to the current impasse or ‘crisis’ of human rights (whether that be framed in terms of populism, authoritarianism, neoliberalism or a combination of the three) might well be to prob-lematise the notion of crisis itself and to see how it configures (and perhaps invites) particular solutions rather than others, wondering what work the notion of crisis does for human rights? What it would assuredly not do would be to encourage us to return to a supposed heyday of human rights in the imagined past, whether that be the embedded liberalism of the post-war era or Moyn’s ‘original’ minimalism of the 1970s (‘origin’ here is of course placed in the dreaded quotation marks as 1 want to suggest that genealogies disperse and problematise the very idea of determinate origination). If genealogies practice a ruptural historicising of the present it is not to return to the safety of the past but to sharpen our attention to the ways in which our present is presented to us, and various futures made more or less possible as a result. Finally, and as Koo-pman helpfully insists, what genealogies are particularly good at doing is in accounting for how present arrangements are not only constructed in their own time but (as with the ‘backstory’ to human rights at which Moyn’s account takes aim) retrospectively narrated.

I have briefly used the example of Moyn’s critical historicisation of human rights law to lay out how genealogies trouble the self-identity of their historical object. If we have not always thought of human rights in the way we do now and the ways in which we do so are the product of particular political contestations that may not be repeated (let alone won or settled) then what vouchsafes the future of human rights? We can of course broaden the genealogical net to encompass critical historicisations not just of particular instantiations or understandings of

human rights but, perhaps more challengingly still, of the conceptions of dignity and humanity that are said to undergird human rights. The contingency, mutability and hence finitude of contemporary institutionalisations of human rights law might well be conceded but surely the metaphysics to which they refer are themselves beyond genealogy? ‘If we were uncompromising mythbusters, we would tear up our human rights and start again,’ suggests Felipe Fernández-Armesto, after having worked through and exposed the conceits of various attempts to distil human essences and demarcate the human from the animal. His verdict: we need to ‘rethink what we mean by human life and human dignity’.[4] But if the genealogy of human rights (and indeed of concepts like humanity and dignity, and so forth) reveals their contingency and con-structedness this need not lead us to paralysis and despair, or to throwing out the political and legal concepts and practices that we have to hand. Rather, genealogy issues a call to action to rethink and remake those categories without the guarantee of historical or metaphysical absolutes. Hannah Arendt called this task ‘thinking without bannisters’, and it is to her work, and work inspired by and in dialogue with it, that 1 now turn in presenting a brief account of the perfonnativity of human rights.


Thinking about the performativity of human rights is to think of several, inter-related, things. On a basic level, and one which is immediately compatible with the foregoing discussion of genealogy, when we think about the performativity of human rights we commit ourselves to thinking of rights as enactments. Human rights do not exist in some immaterial out there (indeed have not always already existed) but are the result of practical, political claim making. Human rights are struggled for and claimed (though sometimes lost), by political groups in concrete political situations with particular political agendas who took particular political decisions and acted in particular ways (and not others). Human rights, taking this perspective, are a result of political action. As Arendt says in regard to the ideal of political equality, for example, we are equal (or, at least, some of us in political communities are equal) not because of our membership of the human species or some aspect of our human nature but rather because we decide to accord each other equal rights. Rights are hence tenuous political achievements (the result, for Arendt, of speech and action in common), not timeless entailments of humanity. Thinking about international human rights law in this way orients us towards questions of doing and political practice — and away both from the transcendental claims of morality and the scriptures (and strictures!) of the sacred juridical texts of international human rights law. This is the perspective taken up (and commended) by the political theorist Karen Zivi in her book Making Rights Claims: A Practice of Democratic Citizenship, who argues that the democratic potential of rights inheres in the act of rights claiming itself. ‘[Rjights language remains of value for political movements’, she argues, because it is in the very act of claiming that we ‘contest and constitute the meaning of individual identity, the contours of community, and the forms that political subjectivity take’. For Zivi, we need to attend to the (messy, unpredictable, and uncontainable) effects that rights claims produce in the world.

One of these effects, she argues, is discernible on the level of what Zivi refers to in the quotation just cited as our political subjectivity; that is to say, our conceptions of ourselves, of (legal) personhood, and of who can be the subject of human rights. This moves us closer to Judith Butlers celebrated contemporary theorisation of performativity (and of how Butler has herself applied this idea to international human rights law).[5] For Butler, at once drawing upon and radicalising the insights of a tradition of speech act theory which suggests that linguistic utterances do not simply describe the world constatively but intervene into it perforniatively, identity is itself a performative enactment. For her, paradigmatically, the claim is that gender is performative. It is precisely the reiterated and constrained performance of the social norms of gender that fabricates the sense of an inner gender identity that is said to precede its articulation and performance. There is a tension here — we ‘do’ gender but gender is (normatively, violently) done to us. And yet Butler nevertheless suggests that in its various doings it can go productively awry (this is the ineradicable possibility of the norms of gender unravelling and being subversively reperformed and reiterated against the grain, what she elsewhere suggestively calls the ‘aberrant temporality of the norm’).3

Butler has herself applied this way of thinking to international human rights law and in so doing holds onto both the analytic insight that the human is a regulative and regulatory category, and the promise that it can be performed differently. ‘[WJhen we struggle for rights, we are not simply struggling for rights that attach to my person, but we are struggling to be conceived as persons,’ she writes in an important piece on sexual and gender diversity and human rights. The human person is not simply given and it does not precede its legal articulation; rather, it is through its legal articulation that it performatively emerges:

[IJf we are struggling not only to be conceived as persons, but to create a social transformation of the very meaning of personhood, then the assertion of rights becomes a way of intervening into the social and political process by which the human is articulated. International human rights is always in the process of subjecting the human to redefinition and renegotiation. It mobilises the human in the service of rights, but also rearticulates the human when it comes up against the cultural limits of its working conception of the human, as it does and must.2

And again:

The necessity of keeping our notion of the human open to a future articulation is essential to the project of international human rights discourse and politics. We see this time and again when the very notion of the human is presupposed; the human is defined in advance,

in terms that are distinctively western, very often American, and, therefore, partial and parochial. When we start with the human as a foundation, then the human at issue in human rights is already known, already defined.[6]

And finally:

1 would suggest that . . . we can only rearticulate or resignify the basic categories of ontology', of being human, of being gendered, of being recognisably sexual, to the extent that we submit ourselves to a process of cultural translation. The point is not to assimilate foreign or unfamiliar notions of gender or humanness into our own as if it is simply a matter of incorporation [sir] alienness into an established lexicon. Cultural translation is also a process of yielding our most fundamental categories, that is, seeing how and why they break up, require resignification when they encounter the limits of an available episteme. ... It is crucial to recognise that the notion of the human will only be built over time and by the process of cultural translation, where it is not a translation between two languages that stay enclosed, distinct, unified.

The juridical framework of international human rights, on Butler’s account, thus presents a promising opportunity for different cultural, sexual, religious, and so forth, groups, to argue over the meaning of the human of human rights law. On this performative view, the politics of human rights is not about uncovering an existing essence or quality of humanness and then arguing for its extension to or bestowal upon benighted others; that is to say, with Anne Phillips in The Polities of the Human, it is not a question of seeking recognition (of dignity, for example) but rather of demanding equality and, in the process, reperforming humanity. As Butler says, the contours of this figure of the human that emerges from these human rights struggles cannot be guaranteed in advance (as the more conventional human rights language of ‘foundation’ might assume) but rather emerge from the fraught process of cultural translation whereby each group’s different understanding of humanity is altered and affected (‘yielded’, as she puts it). The result is not a final or a better or a more universal rendition of the human but rather the contingent outcome of a process of universalisation that, while conscious of its own cultural embeddedness and the unavoidable exclusions it practises, nevertheless underwrites the futurity and political effect of human rights (for were there ever to be a final realisation of the human of human rights, that would itself spell the end of human rights). This is a critically self-reflective praxis of human rights that attempts to unsettle and resignify prior (and existing) inscriptions of humanness in human rights discourse in the name of new human possibilities. ‘I think our current political dilemmas’, Butler argues in a different context, ‘are . . . challenging us to refashion what is meant by the term “human” so that it becomes more encompassing and more capacious, and finally more human, perhaps in a sense we have only begun to imagine’. And this challenge ‘to rethink the human’, she insists in the book Precarious Life, is ‘part of the democratic trajectory of an evolving human rights jurisprudence’. To perform human rights politics, then,

is to start from the acknowledgment that there is no human as such, no abstract set of guidelines to guide us — but to see in this prospect not the negation of human rights but their very possibility, the possibility for contestation and subversive renewal of the human.


To return, briefly, to the famous lecture of Rorty s with which I started, it will be recalled that whilst Rorty issued an iconoclastic challenge to philosophical human rights foundationalism (although one that is arguably less provocative than broadly unquestioned today),[7] his conception of the relationship between human rights and the (cultural) humanities was a fairly straightforward and «„challenging one: the telling of sad and sentimental stories in various media were to assist in the extraversion of human rights globally and moral uplift and progress were set to follow, ineluctably. In the preceding pages I have simply tried to supplement this happy and simplified picture of human rights and the humanities (wherein we might well diagnose symptoms of that Moynian alliterative affliction of teleology, tunnel vision and triumphalism) by introducing and describing two particular humanistic modes of critique that aim not to extend the remit of an already existing human but rather to trouble its supposed foundations. Of course, to trouble something is by no means to reject it out of hand and so each of these critical humanistic methods discloses possibility even while exposing uncertainty, contingency and danger. Genealogy shows our most treasured conceptions to be recent and partial inventions (but leaves open the prospect of their renewal), while performativity exposes how our conceptions of the human become normatively solidified but at the same time can be subverted, made slippery and repurposed. It is that kind of hopeful troublemaking that is surely central to the theoretical humanities and which expresses, to finish on a Foucauldian note, a certain vocation of critique in terms of exposing a hidden margin of freedom immanent in contemporary social, political and legal arrangements we previously took to be unchanging and unchangeable.3

  • [1] Among many examples, see the special issue of PMLA dedicated to “The Humanities in Human Rights: Critique, Language, Politics” (Volume 121, Number 5, October 2006). 2 See Felipe Fernandez-Armesto’s beguiling So You Think You’re Human? (Oxford: Oxford University Press, 2004). 3 Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca: Cornell University Press, 2003), 1.
  • [2] Samuel Moyn, The List Utopia: Human Rights in History (Cambridge: Belknap Press, 2010), 311. 2 Micheline Ishay, The History of Human Rights: From Ancient Times to the Clobalization Era (Berkeley: University of California Press, 2004), 29, 175, 249. 3 Samuel Moyn, Human Rights anil the Uses of History (London: Verso, 2014), 1-2. 4 Cf Joseph Slaughter, “Hijacking Human Kights: Neoliberalism, the New Historiography, and the End of the Third World,” Human Rights Quarterly 40, no. 4 (2018): 735.
  • [3] Hans Joas, The Sacredness of the Person: A New Genealogy of Human Rights (Washington: Georgetown University Press, 2013), 19. 2 Koopman, Genealogy as Critique, 130.
  • [4] Fernandez-Armesto, So You Think You’re Human? 170. 2 See Hannah Arendt, “Hannah Arendt on Hannah Arendt,” in Thinking Without a Banister: Essays in Understanding, 1953-1975 (New York: Schocken Books, 2018). 3 Hannah Arendt, The Origins of Totalitarianism (New York: Schocken Books, 1951), 301. 4 Karen Zivi, Making Rights Claims: A Practice of Democratic Citizenship (New York: Oxford University Press, 2012), 7.
  • [5] For a fuller (and more complicated) account of Butler’s politics of human rights, see Ben Golder, “Human Rights Trouble? Judith Butler and the Performative Refusal of Human Rights,” in Critical Perspectives on Human Rights, ed. Birgit Schippers (Lanham: Rowman & Littlefield, 2018). 2 For the classic reference, see John Langshaw Austin. How to Do Things with l-Vords, 2nd ed. (Cambridge: Harvard University Press, 1975). 3 Judith Butler, Antigone’s Claim: Kinship Between Life and Death (New York: Columbia University Press, 2000), 29. 4 Judith Butler, Gentler Trouble: Feminism and the Subversion of Identity (London: Routledge, 1990). 5 Judith Butler, “Beside Oneself: On the Limits of Sexual Autonomy,” in Undoing Gender (London and New York: Routledge, 2004), 32 (emphasis in original). 6 Ibid., 33.
  • [6] Ibid., 36-37. 2 Ibid., 38. 3 Anne Phillips, Tile Politics of the Human (Cambridge: Cambridge University Press, 2015). 4 Jill Stauffer, "Interview with Judith Butler,” May 1, 2003, accessed February 9, 2017, issues/200305/?read=interview_butler. 5 Judith Butler, Precarious Life: The Powers of Mourning and Violence (London: Verso, 2004), 90.
  • [7] See further Ben Golder, "Theorizing Human Rights,” in The Oxford Handbook of the Theory of International Late, eds. Anne Orford. Florian Hoffmann and Martin Clark (Oxford: Oxford University Press, 2016). 2 See further Ben Golder, Foucault and the Politics of Rights (Palo Alto: Stanford University Press, 2015), especially Chapter 1. 3 I say ‘a certain vocation of critique’ because of course it is only one such understanding of critique, among many. For a different approach to the critique of contingency (and of human rights) that aims to think beyond the exposure of contingency, see Susan Marks, “False Contingency,” Current Legal Problems 62, no. 1 (2009): 1 (and for an application to human rights, see Golder. “Contemporary Legal Genealogies”).
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