Frontier Justice

by Andy Lamey

  It is not hard to see why many people would invoke Agamben’s ideas to understand the actions of the U.S. government in the aftermath of September 11. Few administrations have so clearly exemplified “the strange relationship of law and lawlessness” that Agamben is uniquely concerned with. It would be short-sighted, however, to regard Agamben as merely an especially severe critic of George W. Bush. His theory applies just as much to Italian Communist politicians of the 1970s as it does to U.S. Republicans thirty years later. This is because Agamben is a critic not of a particular party or state, but of the modern state as such, and of its ability to consign refugees, Guantánamo Bay detainees and many other groups to an enduring state of exception. Advocates who invoke human rights in response only hasten along the state’s invasive and limitless scope. Such advocates fail to realize that the sovereign state represents not the solution to any human rights crisis, but the cause. “This is what, in our culture, the hypocritical dogma of the sacredness of human rights and the vacuous declarations of human rights are meant to hide.”

  Agamben’s arguments provoke strong reactions. A book he wrote on the Holocaust was once branded “pornographic” in the normally calm pages of an academic journal. Another critic has denounced his political writings for exhibiting an “ontological loathing for government.” It is easy to imagine Agamben’s debunking view of human rights also garnering a hostile reaction. It is important to note, however, that Agamben’s criticism of human rights places him in distinguished company.

  Ever since the rights of man were widely promulgated in the eighteenth century, there have been thinkers who offer principled reason for rejecting those rights. Hannah Arendt, who also belongs to this skeptical tradition, gives a sense of its lineage when she invokes the father of modern conservatism, Edmund Burke, in her analysis of the situation of refugees. “These facts and reflections,” Arendt writes, “offer what seem an ironical, bitter and belated confirmation of the famous arguments with which Edmund Burke opposed the French Revolution’s Declaration of the Rights of Man. They appear to buttress his assertion that human rights were an ‘abstraction,’ that it was much wiser to rely on an ‘entitled inheritance’ of rights which one transmits to one’s children like life itself, and to claim one’s rights to the ‘rights of an Englishman’ rather that the inalienable rights of man.”

  Burke criticized the rights of man as part of a rejection of the French Revolution and an affirmation of a more conservative approach to politics. Yet before the twentieth century, it was not just conservatives who rejected human rights. Many thinkers who otherwise disagreed profoundly with Burke also took a dim view of the rights of man. Karl Marx, for example, ridiculed “so-called human rights,” which he felt did little more than reinforce capitalism and the right to private property. Similarly, nineteenth-century liberal Jeremy Bentham famously denounced the rights referred to in the Declaration of the Rights of Man as nonsense upon stilts.

  Agamben’s philosophy contains many original insights, and his references to Guantánamo Bay and the international zones of European airports could not be more contemporary. But the most significant aspect of his work may be that it has kept alive the skeptical tradition regarding human rights. Agamben himself suggests such an affinity when, like Arendt, he singles out Burke’s critique for praise. According to Agamben, the Old Whig’s remark that “he preferred his ‘Rights of an Englishman’ to the inalienable rights of man [contains] an unsuspected profundity.” In the matter of human rights, we thus appear to have come full circle. A thinker of the twenty-first century Left urges upon us the wisdom of the eighteenth-century Right.

  What are we to make of Giorgio Agamben and the larger tradition of human rights skepticism he represents? Some rights advocates feel the justification of human rights is too obvious to be worth debating, and so dismiss Agamben’s criticisms. This response is short-sighted. Agamben’s books and articles speak to a large audience, and his ideas are given a respectful hearing in classrooms, conference sessions and editorial offices around the world. Many people believe Agamben is on to something, however much excess his position may contain. Nothing could be more detrimental to the future of human rights than to turn it into a dogma that never responds to probing critiques such as his. We should, therefore, take Agamben’s criticisms seriously.

  But should we agree with them? In Agamben’s view, governments became dangerously intrusive only in the eighteenth century, with the rise of rights. But is this really true? Agamben ignores the many ways governments intervened at a “biopolitical” level prior to the age of rights, as when they classified some people as slaves from the time of birth, and devoted a vast legal apparatus to making sure they stayed slaves throughout their lives. As for the suggestion that there is a hidden affinity between human rights and Nazi ideology, it is even harder to take. It is true that when viewed from a high level of abstraction, both doctrines can be said to grant the state a large role in matters relating to the basic biological needs of its subjects. But that is all they have in common. Agamben’s suggestion of a family resemblance passes silently over the role that hatred, racism and anti-Semitism played in Nazi ideology, as if these were minor elements, not worth distinguishing from the inclusiveness and impartiality of human rights.

  Make no mistake, Agamben’s analysis contains genuine insights. His emphasis on the power of political authorities to declare states of exception and suspend the normal operation of law captures a disturbing feature of how governments actually operate, especially during times of crisis. Similarly, his philosophy would seem well suited to explain how politicians from the United States to Australia justify harsh non-arrival measures for refugees under the guise of humanitarianism: policies that put refugees’ lives at risk are justified by rhetorical appeals to concerns about the same refugees’ welfare. But for every thought-provoking insight that Agamben throws out, there are one or more key questions he leaves unaddressed. And nowhere is this truer than in regard to his argument against human rights.

  When someone asks us to let go of our commitment to human rights, what exactly are we being asked to give up? Human rights, after all, is an idea with several distinct parts. One component, for example, involves a commitment to moral universalism. All human beings occupy a position of moral worth, and we cannot just write off this or that group because they are the wrong ethnicity, the wrong religion or the wrong nationality. A second aspect of human rights is a commitment to some basic minimum standard of treatment. Human rights advocates may disagree whether any particular entitlement is a right or not, but they all share the view that there is some minimum threshold of fundamental rights that no human being should be deprived of. A third aspect of human rights involves idealism: rights advocates believe rights are worth insisting on even, or especially, in situations in which someone’s rights are not being respected (an aspect of human rights, as we saw, that Arendt failed to recognize). Finally, a commitment to human rights is also a commitment to realism, as human rights advocates recognize that rights will not be upheld spontaneously, but must rather be written into law. Rights need to be enforced.

  Universalism. Minimalism. Idealism. Realism. Critics and supporters of human rights could potentially have different items on this list in mind when they are debating whether or not to abandon human rights. Agamben does not seem to object to universalism or minimalism. This is perhaps unsurprising. The episodes he highlights of refugees being mistreated, in internment camps during World War II or in airports today, derive their force from the fact that they involve human beings being denied dignity and respect. (If Agamben were urging us not to care how human beings are treated, such stories of injustice would have no point.) Agamben also does not seem to object to the fact that human rights is an idealistic doctrine, one that is invoked in situations in which human rights are violated. Rather, his objection seems to centre primarily on the realist aspect of human rights, as something subject to enforcement by government.

  No human rights advocates can
be complacent about the role governments play as upholders of rights. As Samantha Power has written, the reason rights were needed historically was that states could not be trusted to automatically respect the moral worth of the human beings under their control. “Yet the evolving human rights system left those same untrustworthy states in charge of enforcing these allegedly inalienable rights.” There is thus a paradox involved in the implementation of rights: the same institution that commits the grossest human rights abuses, the state, is simultaneously tasked with ensuring such abuses do not occur. And states, there is no denying, often fail to live up to this crucial responsibility.

  But if the authority that human rights invest in the state is the core of Agamben’s objection, then a key question his argument raises is, what is the alternative? Is there some better arrangement that would allow us to hang on to the universalism, minimalism and idealism of human rights without granting such a central role to governments? A major shortcoming of Agamben’s work is that it never addresses this question. The only concrete political proposal I am aware of in his writings occurs when Agamben endorses a suggestion to make Jerusalem the capital of two states, one Israeli and the other Palestinian (although it is not clear why Agamben would want Palestinians, Israelis or anyone else to have a state of their own, given the low regard in which he holds all governments). More common is for him to discuss problems associated with states and to speculate about “the possibility of a nonstatist politics” without suggesting how the problems of the state can be avoided or saying anything about what a nonstatist politics might look like.

  Agamben’s bleak view of the state, combined with his enduring silence in regard to alternatives, has led some commentators to take him for an anarchist. Perhaps Agamben does not mean to go quite that far. But insofar as his philosophy even flirts with anarchism, it shows that the problem he is grappling with is not a problem unique to human rights. It is a problem that will occur when any moral concept is written into law, whether the concept at hand is human rights, citizen rights or some pre-modern alternatives to rights such as virtues or manners or divine commands. Agamben’s real problem, in other words, is not with human rights as a moral concept. His problem is with any political institution powerful enough to enforce moral claims—with political authority as such.

  Once we see this, it becomes clear why another Italian philosopher would call Agamben “a thinker of great value but also, in my opinion, a thinker with no political vocation.” Agamben’s lack of a political vocation is evident in his lack of realism. He is not concerned to point to any solutions, propose any new arrangements or endorse any existing political institution on the face of the earth. He is here to bring home to us, relentlessly and unblinkingly if he must, the many negative aspects of the system of sovereign states that dominates the globe. But the more the state itself is taken as the real problem, the less it matters that different governments employ vastly different measures when it comes to refugees and human rights. Agamben’s analysis shifts our attention away from any individual government to focus exclusively on the institution of government itself. Policy-makers who implement the worst measures are thus given an alibi for their actions: the state did it, not us.

  Making progress on refugee issues requires distinguishing between better and worse states. We also need to conceptually distinguish politicians who administer severe policies such as interdiction and mandatory detention from the human rights groups who speak out against the same measures. And if we are to make any progress in the world we inhabit, we need to see states themselves as worthy receptacles of our hopes. These are all impulses Agamben’s philosophy would wrongly have us overcome. As sometimes happens with hyper-radicalism, his political stance is ultimately one of arch-conservatism. The radicalism occurs at the level of expression. But at the level of consequences, absolutely everything is left in place.

  By keeping alive the anti–human rights tradition, Agamben performs the valuable service of reminding us how contingent was the rise of human rights to a position of prominence today. Before the modern era, people used many concepts other than rights to organize and express their moral and political commitments, and regarded institutions other than the state, such as the family and the church, as morality’s rightful custodians and enforcers. That we now live in a world in which international treaties and organizations use human rights as their justification, and the Universal Declaration of Human Rights is one of the most translated documents on earth, is a contingent rather than necessary truth. It is good to be reminded of this, and that history could have gone a different way. But by offering nothing to replace human rights, Agamben would have us risk those gains that human rights have allowed us to achieve for the sake of an unknown and untested alternative. An alternative, moreover, that could all too easily exhibit the same problems Agamben associates with human rights.

  When historians look back at Agamben’s rise during the early years of the twenty-first century, they may take it as a sad commentary on just how poorly the United States and other governments upheld human rights during the same period. But that would at least explain how a thinker as unworldly and unrealistic as Giorgio Agamben became a prominent interpreter of such a worldly and realistic doctrine as human rights.

  In the early 1990s Algeria descended into a civil war that saw writers and journalists targeted for arrest, imprisonment and assassination. Events in Algeria inspired Salman Rushdie, Václav Havel, Susan Sontag and roughly three hundred other authors to establish the International Parliament of Writers. A founding belief of the IPW was that traditional forms of literary protest were worn out and inadequate. In the words of IPW member Pierre Bourdieu, “writers and intellectuals can no longer content themselves with petitions and protests. Their first priority today is to reply to censorship with the creation of new spaces of freedom.” In keeping with this philosophy, the IPW held a congress in Strasbourg, France, in 1996, at which a distinguished group of mayors, European Union dignitaries and intellectuals gathered to hear French philosopher Jacques Derrida issue a call for “a genuine innovation in the history of the right to asylum.”

  Derrida is our second philosophical responder to Arendt. At the time of his IPW speech he was sixty-five years old. Born and raised in Algeria, he had gained prominence in France in the 1960s as the founder of the philosophy known as deconstruction. Deconstruction is notoriously difficult to sum up, but one undaunted reference work describes it as a way of reading literary and philosophical texts that “casts doubt upon the possibility of finding in them a definitive meaning and traces instead the multiplication … of possible meanings.” This manner of reading is controversial because, in the view of some critics, deconstruction presses its case too far and winds up abolishing truth and meaning altogether. (Derrida also has an idiosyncratic and difficult writing style, and this has given rise to the additional charge that deconstruction is a form of obscurantism.)

  Derrida gained an unusual degree of prominence over the course of his career. A 2002 documentary depicts him speaking to large and enthusiastic audiences from New York to South Africa, generating a level of fascination we tend to associate more with rock stars than university professors. A consequence of Derrida’s fame was that he was frequently asked to lend his name to political causes. As a friend of the Derrida family remarked after his death in 2004, “Toward the end of his life, [Derrida] enjoyed the same status as Aristotle among the ancients, and every perception of injustice was routed to his desk.” In response to these requests, Derrida produced a steady stream of speeches, letters and articles that are quite unlike his academic writings. Written in a straightforward prose style, they address concrete issues such as the death penalty or the European Union. As these political writings do not involve deconstruction, even Derrida’s most severe academic critics could in principle agree with them.

  Derrida’s speech to the International Parliament of Writers is of this type. It addresses two developments involving immigrants and refugees that had r
ecently occurred in France. The first was an immigration reform known as the Pasqua law. Named after Charles Pasqua, France’s interior minister at the time of its introduction, the 1993 Pasqua law gave French police the power to stop and check the papers of anyone who might be a foreigner. The law also ended the practice of automatically granting citizenship to the children of foreigners who were born on French soil once they turned eighteen. Such children would now have to apply for French citizenship in young adulthood, an application that could potentially be rejected. Shortly after Derrida’s speech, France’s centre-right government would introduce draft legislation that went even further. It would have required any French citizen who hosted a guest from outside the European Union to notify the authorities of the foreigner’s arrival and departure. Derrida’s speech, delivered at a time when such measures enjoyed a broad plurality of support in public opinion, is a sustained protest against the “mean-minded” attitude he takes them to express.

  The second and more immediate development addressed in Derrida’s speech was the creation of a network of “cities of asylum.” This IPW initiative, which began in 1994, saw the writers’ group take it upon itself to place refugee authors with host municipalities. Each exiled writer received a place to work, stipends of up to US$50,000, assistance with immigration and publishing and, where necessary, physical protection. A conscious goal of the project was to seek out the co-operation of cities rather than states. As IPW executive director Christian Salmon summarized the organizations’ thinking, “Since the Middle Ages, cities, being more liberal in this regard than states, have very often welcomed people who had been banished, and protected those who were threatened.” Within five years of its founding, the asylum network came to include thirty municipalities, including Barcelona, Frankfurt, Salzburg and Venice, and had spread as far as Brazil, Mexico, Senegal and Nigeria.