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Identity, Recognition, Rights or What Can Hegel Teach Us about Human Rights? Author(s): Costas Douzinas Source: Journal of Law and Society, Vol. 29, No. 3 (Sep., 2002), pp. 379-405 Published by: Blackwell Publishing on behalf of Cardiff University Stable URL: http://www.jstor.org/stable/4150539 Accessed: 05/02/2010 10:26
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ANDSOCIETY JOURNAL LAW OF 2002 VOLUME NUMBER SEPTEMBER 29, 3, ISSN: 0263-323X, 379-405 pp.

Identity, Recognition, Rights or What Can Hegel Teach Us About Human Rights?
COSTAS DOUZINAS* Rights play a crucial role in shaping identity by organizing the For recognitionof self by othersand by legal and social institutions. basedon the Hegel, legal rightslead to an abstracttypeof recognition universality the law. The concretenessof the person, alongsidethe of callsfor the acknowledgment respectbestowedby legal recognition, of honourand esteem.Humanrightsmovein this direction,by validating both the similarity of claimants with abstract humanityand their and uniqueness. law's necessarygeneralitycannotmeet But difference the demands the full recognitionof the postmodernself with its for desires and its complexstrugglesfor recognitionas a polymorphous uniqueindividual. HEGEL'STHEORYOF RECOGNITION The voluminous on literature rightshas paid scantattention the role legal to in constructing identities. discussclassifications rightsplay Legalphilosophers of rights,theinternal of the consistency rightsdiscourse, socialeffectsof rights or the goods rights guarantee.But on the subjectiveside, the operative assumption is that rights express, uphold, and guarantee pre-existing characteristics, their task typically being to promote free will. The exist priorto rights elements,andtraitsof humanpersonality characteristics, and otherpublicinstitutions, whichare treatedas tools facilitating public the and of pre-formed completeselves. Theseassumptions partof are expression liberaltheory'simpoverished view of the subjectas a closed andmonological collection of individuals entity and, of the social bond as an atomocentric to whose relations each otherare external,superficial, interest-driven. and The shortcomings the liberaltheoryof rightshave been attacked of from many perspectivesand in particularby Americancritical legal scholars. Critical academics have faced some difficulty in reconciling their * School of Law, BirkbeckCollege, Universityof London,Malet Street, LondonWCIE7HX,England Bloomsbury, 379
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occasionally scathingtheoretical critiqueof rightswith the practiceof radicallawyerswho, consistently often successfully, and mobilizerights been in strongevidencein the writingsof criticalrace theoristsand in Williams's statement rightsare 'a symboltoo that exemplified Patricia enmeshed thepsyche theoppressed lose without in of trauma and to deeply muchresistance'.' seeing rightsas 'symbols'which have important In the effects,Williamsinvitesus to abandon liberaltheory psychological whichapproaches the as external the self andto examine waysin to rights whichrightsare 'enmeshed' the psyche.It is possible by changing in that focus and emphasizing constitutive of rightsin building human the role the apparent conflictbetweencriticaltheoryand practicewill identity, disappear. of Forrational natural thetradition led to thegreat declarations that law, of and human aim right theeighteenth century, rights to acknowledge protect the central immutable and Theseattributes nature. characteristics human of from the need for selfto may differ from philosopher philosopher, in in and freedom moral to preservation Hobbes rational responsibility Kant, buttheiruniform absolute establishes makesthemuniversal, character and thepriority rights of the of and overduties, determines content legalrights. While this approach a numberof followersin moral and legal has the social contractarians, philosophy, amongst particularly contemporary social theoryof subjectivity owes more to Hegel's critiqueof Kant's of and fromothersandthe conception morality of the personas separate world.Indeed, theories recognition, the of to central identity politicsand communitarian to and, as misrecognition, Lacanian politicalphilosophy are descendents Hegel'sunderstandingidentityof of psychoanalysis, direct of formation. firstpartof this essay aimsat introducing concept The the it withinthe generalframework the Hegelian of recognition placing by before and dialectic to of moving anexamination its specific legalelements of its contemporary for relevance human rights. Kant's obsession to Critiques philosophical gave expression themodern with the separation and betweensubject objectandbetweenself andthe world.Hegel'smaintaskwas to heal thisrift andto reclaim unityof the existence. earlyGerman The the romantics tried overcome separation to had was one by successively prioritizing or theother pole.Hegel'sanswer more of the radical: splitwasinternalized historicized thefragmentation and and wasseennota catastrophe as a necessary in theodyssey but modernity stage of spiritor reason its For towards own self-consciousness. Hegel,thought, and consciousness, the spiritare active forces,caughtin a continuous in whichthe spiritfightsits own alienation the external in world, struggle, to as its ownpartial and existence realization, returns objectified recognizes
1 P. Williams, Alchemy Race andRights(1991) 165. The of

discourseto protectthe underprivileged oppressed.This conflict has and

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itself throughits negation, acknowledginghistory as the process of its realization. gradual art, People,institutions, work,morals,religion,and all aspectsof social The existencefollow a similartrajectory. strugglebetweenprinciples, forces, meansthat Its andformsof life moves historyforward. dialecticalcharacter in each of its concentricstages, a force or institutionand its underlying principleis 'sublated',both negated and retained by its opponent.The institutionof family, for example, and its central value of care for its and is members treatedas uniqueindividuals, transcended both preserved - by that of civil society with its emphasison formalrelations overcome amongst legal persons treated as abstractright-holders.The dialectical and overcomingmoves the historicalprocess in a spiral-like absorption The fashiontowards finalstage,the stateof ethicallife or Sittlichkeit. key the but conflictstherefore dynamic are of oppositions modernity not catastrophic expressionsof the ongoing struggle which defines existence, determines humanconsciousness, makeshistorythe processin which the spirit(or and Fromthe perspective reason)realizesitself as history'sunderlying principle. of the final stageor the end of history,the spiritlooks backand sees history not as a randomsequenceof events but as the unfoldingof a progressive trajectoryleading to the overcoming of conflict. Philosophy follows a comes parallel trajectory, eventuallymergingwith the first,whichgradually of to recognizethathistoryis the incarnation reason. When Hegel turnedto the normativefield, he argued,against Kant's moral and legal formalism,that freedom and ethical life are intrinsically scene with the linked.In ethicallife, the finalstagethatenteredthe historical into modern and state,morality legalityarefinallyreunited an organicwhole All manifestation. previousnormative and become the state's institutional withits limited to fromthe Greekcity-states the absolutemonarchy, systems, werepartialstationson the roadto the final reconciliation legal protections, a of ethicallife. Subjectivity Hegel believed,is createdthrough struggle too, of theiridentity.This struggle for the reciprocal recognition amongst people in whichculminated the creationof a led to social divisionsandhierarchies, class of mastersandof slaves and only with the modem overcomingof the can master/slave relationship the completehumanpersoncome to life. the Hegel'sPhilosophy Right2 of presents movementto reason'shistorical which assumes explicitly legal form. incarnation a tripartite as progress formalrightgives way to the moralityof Kantianism Abstract, (Moralitiit), which is finally transcended ethical life. In the first stage, rights have by the formalexistencebut no determinate contentand legal personality, key Law andmorality exists only in the abstract. expressthe organizing concept, immediate undifferentiated and of universal principlesand,as a result, unity human is freebutits only actionis to relateself to itself andthuscreatea will
2 G.W. Hegel, Philosophyof Right (1967, tr. T.M. Knox). 381
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and personwho lacks concretecharacteristics does not relateto others.This is abstraction the legal subject,a purelogical cipher,whoseonly role is to be of abstract support universalnormsand only quality,to possess legal rights and duties. 'Man' is a legal subject but the kernel only of an embodied humanbeing. The passage from formal right to morality involves the incomplete and differentiation concretization the abstractsubject.At this stage, the of standsbeforethe worldandbecomesawareof heror his freedomand, person the of and gradually, bareuniversality legal personality formalrightdevelop individualsubjectivity. personnow realizesthatnot only she is free into The to act on the world through rightsbut that freedomis her essence. The her recognition emerges when, in relating to herself as the bearer of universalizable rights, she discovers an inner space of freedomand moral responsibility.But the good, the universalend of ethics, cannot remain internalto conscience;it must be realizedin the world. Kantianmoralism howeverdoes not allow the inner life of good intentionsand the world to communicate.The moral conscience, with its universalism and cruel disregardfor human emotions and needs and, universal freedom, the authenticform of the good, face each other as two alien and unconnected forces. Humansmust act accordingto universalmaximsbut the categorical imperativecreates an abstractmoralitywhich has no content and cannot provideconcreteguidance.Its commandis to follow and apply the empty form of the universal.As the young Hegel showed, any maxim can be and anythingcan be justified in the universalizedwithout contradiction If is the kernelof the concretehuman,the abstract.3 the abstract legal person shell. To move from that to the unique Kantiansubjectis its external-only individual,the 'concreteuniversal',legal mentalitymust be complemented with emotionalcare. Formalright and abstractmoralityare finally absorbed,cancelled, and in The transcended the thirdmomentof Sittlichkeit. abstract good andhuman conscience,which were kept apartfrom the world by morality,now come togetherand are realizedin the actions of concreteindividuals.Unlike the and coercivelaw of Kantian freedom,ethicallife is the living good practised each citizen. This living law constrains'subjectiveopinion experiencedby and caprice'4 with minimumneed for externalsanctionsand makes virtue in character.'5 becomesrealonly whenit 'reflected the individual Autonomy is embodiedin politicalinstitutions universal and laws whichgive contentto and to reason,shapeourpersonality, give substance ourmoralduties.Unlike of right and the formalsubjectivity morality,in of the abstract universality ethicallife 'rightanddutycoalesce, andby being in the ethicalordera man
3 G.W. Hegel, Systemof Ethical Life (1802-3) and First Philosophy of Spirit (1805-6) (1977, tr. H.S. Harrisand T.M. Knox) and Natural Law (1975, tr. T.M. Knox). 4 Hegel, op. cit., n. 2, p. 105.

5 id, pp. 107, 109. 382


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has rightsin so far as he has duties, and dutiesin so far as he has rights.'6 Ethical life integrates the universal and the particular,makes freedom concrete,unites subjectand object, is and ought, contentand form. This is then the movementof the spiritin history:fromrightto moralityto ethical life in the domain of morals and from family to civil society to state in of institutions.The progressis full of internaland externalcontradictions, absorbed in the conflicts turns and tribulations,which are gradually inexorablemarchof the spirittowardsits own self-consciousness. of when he turnedto the examination Hegel followed a similarapproach interestto critical legal the person.What makes his analysis of particular theory is that legal forms and institutionsplay a crucial role in shaping between self and other are crucialfor For personality. Hegel, relationships the construction both self and of community.The self is not a simple, of stableentityfully identicalwith itself which,once formed,thengoes into the world and builds relationswith others from a position of self-sufficiency. While Descartesand Kanthad presentedconsciousnessas a solitaryentity confronting the outside world, Hegel insists that self is constituted on reflexivelyand is radicallydependent the action of others.The struggle or for recognitionis the key ethicalrelationship the main form of practical Moralconflicts,personaldisputes,and social antagonisms intersubjectivity. are partialexpressionsof this struggle,which createsthe agreementsand reciprocitynecessary for the socialization and the individuationof the subject. My identity is constructed through the recognition of my and attributes, traitsby others,both otherpersonsand what characteristics, we may call, following Lacan,the Big Other,the varioussocial and legal institutionswhich determine the parametersof our existence. Lack of the undermines sense of identity,by projecting or recognition misrecognition of a false, inferior defectiveimageof self. This acknowledgement the vital or of othersmaketo the constitution self reconcilesus (or alienates contribution with the world.In this sense, recognitionis a us in case of non-recognition) mode of socialization. the other'srecognitionof my identitymakesme But also awareof my specificityanddifferencefromall othersandthushelpsmy individuation. of is Hegel's starting pointis thatthe ego as self-consciousness a creature lack desire.Desirerevealsa fundamental in the subject,an emptinessin the self that must be filled throughthe overcomingof externalobjects.Desire makesme realizethatI am missingsomethingto be completeandmakesme awareof my differencefromthe object,the not-I.Behindall types of desirea deep dialecticis at work:embodiedhumanlife dependsfor survivalon the externalworldand,as a result,partof the self is alwaysoutsideitself andthe in of is otherness objecthood alreadylaunched self. Hegel's philosophyaims as to integrate aspectsof social existencein a historicalmarch,presented all
6 id., p. 109.

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and of the realization spirit,whichovercomesalienation unitesthe humanity and the world,the finite and the infinite,freedomand fate. Humanhistory moves towardsa 'totalintegrity',7 in which the oppositionbetweenself and us otherwill have been overcomeand the externalrealitywhich determines containsnothingalien or hostile. Integritywill be achievedonly when our dependenceon the externalworld is dialecticallynegated,in other words, when humanityis at home in its environment. For Hegel, self creates itself in a continuousstruggleto overcome the foreignnessof the other.The immediateself suffers from the delusion of self-sufficiencyunderwhich the differencefromothersis absoluteandmust be negated throughthe arrogationof absolute sovereignty.The other is than self. treatedas inferiorand inessential,of lesser value and importance the first reactionof the desiringself when faced with the otheris to Indeed, seek immediatesatisfaction heal the split betweensubjectandobjectby and negatingthe object.The desirefor food, for example,negatesthe otherness of the foodstuffby eating it. But once hungerand desire are met, self is humans whichdoes not differentiate thrownbackto his illusoryself-identity, from animals.Humandesire is not addressedtowardsan object, however, The next step for self is to accept but towardsanotherself-consciousness. thathe dependson the otherbut to keep the relationbetweenself and other external.The two consciousnessesknow they need the other's desire and the but recognition believe thatthey can forgo or force it through exclusion, or of marginalization subjugation the other.Heredesireis totallynarcissistic, the other is only the foil in a quest for unreciprocated prestige,typically betweenmasterand slave. evidentin the relationship Mutualrecognitionis the thirdstep, which completesand overtakesthe first two. Now the otheris acceptedboth in her identityand her difference from self and, as a result,self discovershimself as integrallyrelatedto the in other.Theother'srecognition desireallowsself to see himselfreflected and self that another andcreatea nexusof linksanddependencies affectall aspects of both selves. Recognitionworksif it is mutual.I must be recognizedby I know myself in another. someoneI recognizeas human; mustreciprocally Whenfull mutualrecognition the two selves standin a relationship operates, in which the self-understanding each passes throughthe other and the of of each to the otherdependson the self's self-relation. relationship Recognition is both a phenomenology of identity and a theory of knowledge.I can only become a certaintype of person,if I recognizein the otherthe characteristics thattype whicharethenreflectedbackonto me. I of cannotchange myself thereforewithoutchangingthe otherand changesin the other who stands in recognition of me change the self too. As epistemology,recognition,by assumingthe object to be anothersubject, and turnsknowledgeinto a processof cultural mutuality exchange,andself7 C. Taylor, Hegel (1977) 148-50.

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and knowledgeinto self-exploration self-controlthroughthe understanding of the other. Liberal philosophy,however, in its attemptto glorify the individual, denies our dependence on the world, artificially erases the traces of otherness,and imagines self as identical with itself. The illusion of selfin of the identityhas been promised a number ways. Law promotes idea that self standsat the centreof the world,fully in controlof himself,clearabout his motives and in possessionof his rights, which allow him to enter into instrumental relations.The delusion of self-identityis only a palliative, for the painfulbut inescapablerealizationthat we dependon the however, otherandaredetermined the outsideworld.Full self-consciousness the is by 'unity of oneself in one's other-being'.Identityembracesboth being for oneself and being for anotherand is achieved by accepting self as the 'identityof identityand non-identity'.8 The self-conscioussubject,created the fromthe otheras one partof through other'sdesire,retainsthe separation his identityand recognizeshimself both in the otherand in his difference fromher.In this sense, self-consciousness bothnegatesthe split betweenself and other and preservesit. The self can never be self-identical:he is an amalgamof self and otherness,of samenessand difference. Identity is thereforedynamic, always on the move. It is an ongoing dialoguewith others,whichkeeps changingthe imageothershave of myself and re-drawingmy own self-image. Significant others, parents, close interlocutors. and This relatives,intimatepartners, friendsare the primary of of dialogical construction identity throughthe (mis)recognition others extends to further interlocutors, from the secondary audience of and colleagues all the way to strangersin the street who acquaintances foes butcruciallybecomecollaborators, or victims,in ourstruggle fleetingly for recognition. while recognition takesthe formof a conversation, But this is a 'distorted'dialogue, the opposite of the Habermasian 'ideal speech situation'betweenfree and equal speakers.Whenaspectsof my self-image are not recognizedby others,the conversation turnsinto an often violent conflict, typicallyin the case of hate speech and hate crime. Our 'dialogue'with the Big Otherof legal and social institutions even is more limited.It usuallytakes the form of a monologuein which aspectsof self are recognizedor not. Ourabilityto negotiate,to answerbackor to ask for greater or different recognitionis restrictedif not non-existent.An influential of presentation the recognition given by the law has been offered Louis Althusser in his essay 'Ideology and Ideological State by Althusserdescribesthe way subjectsidentifythemselvesas Apparatuses'.9 a kind of ideological calling or 'interpellation'. allegoricallyuses a He commonstreetscene, in which someonegoes abouthis businesswhen he is
8 G.W. Hegel, The Phenomenologyof Spirit (1977, tr. A.V. Miller) 140. 9 L. Althusser, 'Ideology and Ideological State Apparatuses'in Lenin and Philosophy and other Essays, ed. L. Althusser (1971, tr. B. Brewster) 127-88.

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suddenlycalled from behind. As the person turnsaroundand sees that a policeman is calling him, he accepts the terms by which he is hailed, responds'HereI am' and stops. In so doing, he occupiesthe place ascribed law to him by the personified andidentifieswith the distorted (as recognition a suspect,a criminal,a subject)offered.10Ideologicalsubjection, recognition are andidentification linkedin this allegoricalscenewiththe law:the subject turnsto face the law, aligns itself with its commandsand this way acquires his identity.But we can literalizethe story:the law is not just a symbolfor and social institutions theirideologicaloperation theirfirst andforemost but I have discussedelsewherehow the free legal subjectdepends expression. to for his or herexistenceon a relationof subjection submission the law. or This subjection was presented in medieval political theology as a between 'a sublimuschosen to commandandsubditi,who turn relationship and him to hearthe law'." In modernity, towards is subjection internalized gives rise to the sense of freedom. From this perspective,the typical subjectionto the law takesthe formof a personhailedby the police officer who turnsaround, recognizesthathe is called to his identity,and responds like any good lawyerwho understands police powers,'HereI am officerbut I have my rightsand yourpowers are limited.' thereforethe Hegelian Legal recognitionas subjectionmust supplement tale of interpersonal reciprocalrecognition.Without this corrective,the of sophistication dialectics remainsinadequateand can be criticizedfor of the excessiveidealismandlackof historical sensitivity, verycriticisms neoTo Kantianlegal philosophyfrom which Hegel departed. this extent, this 2 on essay is the first partof a widerargument. It concentrates interpersonal and of relations the contribution rightsmaketo the project identityformation. tokensof ouridentity,important Legal andhumanrightsare the institutional weapons in our struggle for recognition. Recognition helps establish bonds and build individualitythroughsociality; rights are interpersonal of chipsin ournegotiations identity.Butthe dialogueof the social bargaining in whichwe contribute the construction the identityof self and to of partners othertakesplace alwaysagainstthe monologueof legal subjection. LEGALRECOGNITION AND PERSONALITY Law is a major contributor the social process of recognition.Legal to is one of the threemain formsof mutualacknowledgement, the recognition middlestagebetweenlove andethicallife or solidarity. threeareethical All The 10 Forcommentary Althusser's on see classical of theory 'interpellation' S. Zizek,
Sublime Object of Ideology (1989) 1-2 and throughout,and J. Butler, The Psychic Life of Power (1997) ch. 4. 11 C. Douzinas, The End of HumanRights (2000) ch. 8, at 218. 12 The second partof TheEnd of HumanRights is an attemptto understand process the under which freedom presupposessubjectionto the law.

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different the ways of recognizing otherandcreatingself; theyhelp constitute exclusive.Hegel claimsthateach of identity.But they arenot mutually types is associatedwith a differenthistoricaland institutionalstage: love with statebourgeoissociety of his family, legal recognitionwith the pre-welfare and full recognitionwith what he calls the ethical state. From the time, layers of the self. viewpointof the subject,however,these are overlapping the terrainis the family. In a loving relationship, love. Its primary First, but lover negateshis isolationand independence regainsa richerand more the In his nuancedself through partner. a loving relationship, self finds in his finds the otherin himself.Furthermore, lover bothhimselfandthe otherand the the each sees himself through eyes of the otherand understands partner throughthe same ideas andemotionshe uses to reflecton his own motives, desires, and actions. Similarly,family membersare in a state of mutual dependencyand affectionand recognizeeach otheras concretepersons,as or mothers, daughters sons withconcreteneedsanduniquedesires.We arein a continuous dialoguewith ourloved ones, imaginedor real,andthis creates to our sense of uniqueness.Power plays a part in these conversations, be is sure, typically when our interlocutor the father. But the metaphorof conversationgives a sense of the centralityof the other's presencein the of constitution self. This combination autonomyand community,which of lies at the centre of identity formation,can be sustained,however, only amongstthe membersof small and closely-knitunits. Legal recognitioncould not be more different.It is the effect of the operationof a legal system which enforces equally the universalizable is interestsof all. Legal personality both a state of being and a stage in the of political and legal institutions.In existentialterms,it expresses history self's ability to remove itself from family, social and culturalbackground, that from all determinations makeit a concretehumanbeing and to become It indeterminate. appears, first,in the Romanconceptof thepersona abstract, and becomes fully realizedin the bourgeoissociety Hegel observedaround As him in nineteenth-century Germany. ThePhilosophyof Right puts it, of consciousness meregeneral beginsnot with the subject's [p]ersonality but himself as concreteand in some way determined, ratherwith his abstract in whichall concrete of consciousness himselfas a completely ego and therefore are In and limitation validity negated invalidated. thepersonality with of identical itself.13 there knowledge the self as an object... purely is Legal personality is a type of recognition based on the minimum of commonality people. It places the individual: in that as in the formof universality, I am apprehended a universal person, A are beingcountssimply respectof whichall humans identical. human Protestant and he he because is human notbecause is Jew,Catholic, German, etc.14 Italian,
13 Hegel, op. cit., n. 2, para. 35. 14 id., para. 209.

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The personality legal rightsis therefore'thin', an 'emptyunit', a 'mask of only of character'.The legal person negates all the contingencies of existence,race, sexuality,colouror religionand acquiresan individualistic, negative,and privateconceptof self. The negationof what makesself real opens the possibilityof negatingothersand of creatinga sphereof privacy, wherethe personis free to act withoutexternalimpositionsandto rejectthe offers and advancesof others.The will of the legal personis negative;it relatesto othersthroughexcludingthem. Legal personalitycomes to existence when private right becomes the basic buildingblock of the modemlaw and society and replacesthe ethical unity of family life with its exact opposite, subjectivefreedom.The law elementof freedom,andright,the subjective element expressesthe universal of law, allows legal personsto come togetherin exchanges,sales, and other deals which externalizetheirfreedom. is and and as [M]an recognized treated a rational being,as free,as a person; the individual, his side, makeshimselfworthyof this recognition on by the a and state overcoming natural of hisself-consciousness obeying universal, thewillthat inessence is towards will, therefore, actuality thelaw;hebehaves, in others a manner is universally that them valid,recognizing - as he wishes to others recognize - as free,as persons.15 him Personal freedom, the great achievementof modernity,released the individualto pursuehis interestsin a way that 'the universaldoes not attain fulfillmentor validity withoutthe interest,knowledgeand volition of the Every belief system, traditionor ideology must be posited, it particular.'16 mustbecome the objectof reflectionand adoption people, openingitself by to the form of the universal.But in the absence of the ethical links that characterize family,the universalandthe particular external: the stay people come togetherout of need and are united superficiallyin their difference. Private interest,the differenceof each from the others, defines this as a The society of conflict andcompetition. othersare a meansonly to our selfinterest. 'Civil society is universalegoism and reciprocalexploitation... personsarerelatedto each otheronly in an externalor contingent manner.'7 But how do legal rights contributeto the process of recognition?The example of propertyand contractcan help us here. The possession and enjoymentof propertyenables the abstractpersonalityto acquirespecific to characteristics, objectifyitself. The self as abstract claimsto be essentialreality,butthe existenceof will external things, that is, objects, and our dependenceon external reality contradicts The self, therefore, this. needsto appropriate external objects- it
15 Hegel,quotedin A. Honneth, Struggle Recognition The (1995,tr. J. Anderson) for
108. 16 Hegel, op. cit., n. 2, para. 260. 17 R. Williams, Hegel's Ethics of Recognition (1997) 233.

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The and than mustown property. self becomesparticularized concrete,rather becomes actuality.18 abstract, Potentiality throughownership. is becausethe Property a necessarymomentin the strugglefor recognition desire for objects is one aspect of the desire for others. When I take myself by placingmy will in thatobject possessionof an object,I externalize and so in the world. My will stops being abstract;it takes determinate Without existence. But simple possessionis contingent,always threatened. cannot become actual and offer recognition by others, possession This is what the property satisfaction. rights achieve. Othersrecognizemy My rightsin my possessionon conditionthatI also recognizetheirproperty. of is property securethroughthe universaloperation the legal relationship. recognition,a type of Propertythereforeleads to a form of interpersonal intersubjectivityachieved through the medium of the object; others recognize me by acknowledgingand respectingthe existence of my will is in the thing.The mainaim of property therefore to constitute'subjectivity as intersubjectivity the helps the through mediationof objectivity'.Property recognition of legal personality in a dialectical process in which an is individual recognizedby someonehe or she recognizesas legal subject.19 of humanity Respectfor the rightsof othersand the recognition abstract The becomesconcretein contract. exchangeof offer thatunderlines property and acceptance allows the two wills to come togetherand createa common will, which leads to the passingof the object.Recognitionnow moves from of the universal of humanity abstract rightto the concreteembodiments will, The possession and the exchangedobjects of the contractual relationship. of identifiessubjectandobjectfor another subject,while enjoyment property the alienation, thirdelement,realizesthe free will of the abstract personand turns her into a concrete individual throughthe recognitionof another alreadyrecognizedas subject.In the legal universethat Hegel describes, of of is property a pre-condition the recognition others.The rightto property is the right to have rightsand to be recognizedas a (legal) person.Lack of assets not only leads to poverty and materialhardshipbut also excludes and people from universality the recognitionit bestows. thereforethe minimumrecognitionoffered by legal Contract represents relations. The propertycontract symbolizes the birth of the subject. In conveyancing,the contractorsnot only exchange objects but they also recognizeeach other as separateand free and as possessorsof rights and duties- in and through contractthey constituteone anotheras subjects. the We desireobjectsnot for theirown sakebutas meansto the desireof andfor is otherpersons.Subjectivity hereconstructed and symbolically the property has contract a little bit of magic.The contractors theirobjectof desirebut get on top they receive somethingmore than they bargained they become for: the true desireof the other. recognized,they achieve
18 J. Schroeder,The Vesta and the Fasces (1998) 34. 19 id., p. 23.

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But even this more concrete recognition of conveyancing remains rudimentaryand defective. Contractualconvergence is contingent and but The transient. otheris not recognizedas a uniqueindividual as an owner, in It as a legal personexternalized his property. is as if people exist only in is theirproperty. andthrough relationship negative Similarly,the contractual and impoverished:freedom can be expressed only throughnegating the advancesof the other.Furthermore, once the contracthas been signed and the exchangecompleted, contractors the return theirpreviousstateof nonto their identity reverts back to its pre-contractual state, their recognition, and superficialreciprocitydisappears.People converge through fleeting property rightsout of calculationand self-interest.Privaterightshave very of little to do with principleandeverything do with utilitarian calculations to unrelatedand often antagonisticpersonalities.Rights present the self in Their of things and things become the bearersof the attributes personality. is in relationsamongststrangers, also their greatestachievement, organizing greatestlimitation.The lack of interest in the concretenessof the other But of facilitatesrespectfor theirdignity,the universalattribute humanity. at the same time, privaterightskeep the two selves separateand independent, a effect superficial, surfaceevent of no lastingconsequence. theirreciprocal is The main functionof rightstherefore to help establishone partof the of of for necessary theconstitution a full self. Theimperative rights recognition In is to be a personandto respectothersas persons. recognizing rights,the law contracts makesdignityactualin it gives the persondignityandby upholding relationof right offers recognitionof what is the world. The interpersonal formof law. and in universal everyparticular a desirefor the most abstract We can conclude that the recognitionof rights has three components. a legal system underwhich people extend Rightspresuppose universalistic to each otherbecausethey are legal personsawareof the laws which respect create and protectrights. Secondly, the recognitionof the other as legal and personis the effect of the fact thatshe enjoys free will, moralautonomy and possesses legal rights. This type of recognition is responsibility, typically called respect (f)or human dignity.20 Finally, legal recognition leads to self-respect,the realizationthat I, too, am capableof moralaction and andthat,like others,I am an end in myself. Humandignity,self-respect, for othersare synonymous with the abilityto make moraldecisions respect and to raise legal claims. As Feibergputs it: for ... for respect persons maysimplybe respect theirrights,or thatthere be the cannot theonewithout other. whatis called'human And may dignity' be to claims.2' simply therecognizable capacity assert of That 20 'Right therelation human is are insofar they abstract as beings persons. action
is contrary rightthatdoes not respectthe humanbeing as a person,or which to This in is infringes uponits freedom. relationship ... negative thatit doesnotrequire to thatsomething positivebe granted the other,but only thathe be allowedto be a in Hegelquoted Williams, cit., n. 17, p. 137. person.' op.

21 J. Feinberg,Rights, Justice and the Value of Liberty (1980) 151.

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Havingrightsis nothingmorethanthe symbolicexpressionthatone is equal in his or her freedomwitheveryoneelse or, whatamounts the samething, to thatone is a legal subject.22 according Bob Dylan,to be outsidethe law to If, to you mustbe honest,according Hegel, to be in the law, to be a subject,you must have rights. THE FAILINGSOF LEGALRECOGNITION Right as a relation between persons who recognize each other in some is attribute characteristic createdin the process of recognition.Private or lead to the recognitionof the other as anotherperson, rights,in particular, someone carryingweight in his or her abstractcapacityfor freedom.But from anotherperspective,legal rights form a repertory acceptableand of in availableformsof recognition a particular andage, a collectionof society to are ways in which institutions prepared acknowledgepublicly some and not other aspects of identity.Legal rights thereforehave a dual role. As elements of our patrimony, partialrecognitionsand expressionsof our as in becomekey components ournegotiations strugglewith and identity,they relationsand public expressionsof others,crucial aspects of interpersonal inter-subjectivity. But rights also form a key component of social recognition:they express the social and political balanceof power which often promotesdistortedversions of self and misrecognitions identity. of are the interfacebetweenthe intersubjective the social or and Legal rights between conversationand subjection.As legal rights, they express the imposition, disciplineof law, social determination, necessity.As legal rights, are gambitsin the dialogueof recognition,ways of presentingself to they others,aspectsof our opennessto the world.23 Dialectic between self-image, the recognitionof others and social and leadsto the endlessproliferation rights.New group of legal acknowledgment are claimedwhen theirclaimants'strugglefor recognition fails, when rights or the self-imageof an individual groupmismatches identitythe current the state of the law allows them to project. Rights claims are the result of or inadequate defectiverecognition. Hegel discussedthreedeficienttypes of the recognition; first exists betweenmastersand slaves, the second appears 22 From naturalist a to Maritain comes a similar conclusion: 'The perspective, Jacques of if not The means that, dignity thehuman person? expression nothing it does signify

by virtueof naturallaw, the humanpersonhas the rightsto be respected,is the subject of rights, possesses rights'. (J. Maritain,The Rights of Man and Natural Law (1951, tr. D. Anson) 65.) 23 CharlesTaylor in 'The Politics of Recognition' (in Multiculturalism, A. Gutman ed. (1994) 25-74) assumes that social conversationis free and equal and as a result loses the aspect of power and subjectionso centralto the operationof law and thereforeof rights.

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in the criminal activities of thieves and fraudsters,while the third is in encountered poverty. The origins of the master and slave dialectic must be sought in the that observation when self desireda thing,it did not do so for its own sake but in order to make anotherself recognize its right to that thing and of its therefore existenceandsuperiority. as a multiplicity desiresdesired But to be so recognized,theiractionturnedinto a war of all againstall, where every self is a being for itself and every otheris a being for the other.The universal struggle for recognition had to stop, before it led to global to annihilation. mustbe prepared Hegel assumesthatone of the combatants to the end, to place his freedomand recognitionhigherthan survival fight and risk his life. At that point, the other who values survivalmore than freedomacceptshis superiority surrenders. one who riskshis life for and The his prestigebecomes master,the other slave. The slave has subordinated desire for recognitionto that for survival.The slave recognizesthe master an but the masterdoes not recognizethe slave, he treatshim as non-person, object. This is the typically deficient process of recognitionbecause it is It one unequal: partyrecognizesthe otherbut this is not reciprocated. is this that type of non-recognition legal rightsnegate. Legal recognitionis fundamentally opposedto the inequalityof slavery. The function of propertyrights is precisely to establish the minimum element of universalitynecessary for the full and mutual recognitionof identity.But legal recognitionsuffersfrom a differentdeficiency:the legal person is far too abstract and the law offers an insufficient of acknowledgement concretehumanity.The inadequate respectgenerated by law motivatesthe criminal,and crime, incredibly,facilitatesthe move from abstractright to moralityand eventuallyto the ethical state. Let us examine the respectivepositions of the two protagonists, criminaland the the victim. A thief may be stealingto meet unmetmaterial needs.But in the gameof crimerepresents muchbigger stake.The 'universalwill' (the a recognition, legal system with its abstract legal relations and rights) coerces the 'individual will to power' (the particularityand concreteness of the individual)who uses the crime to bringforththose partsof his personality not yet recognizedby the establishedlegal order. The criminalmay be offendedby the abstraction the legal rule andthe disinterested of uniformity in its application.To paraphrase Anatole France, the law in its majesty punishesequallyrich andpoorfor stealingbreadandsleepingunderbridges. Insultmay also be the resultof the promiseof formalequalityfollowed by the lack of the materialconditionsnecessaryfor the realization rights.It of be fine to fight for the universal to free speechandpress,butfor a may right starvingfarmerin a developingcountrythe right to read the Timesis not likely to be consideredcentralto his family's well-being.The essence of
criminality is therefore the criminal's demand to be recognized and respected as a concrete and unique individual. The criminal is the first 392
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how the universalworks and real humanbeing, someonewho understands who attacksthe law for its inadequate recognition.24 On the side of the victim, legal rights have two kinds of concentric but to effects:the theftnegatesthe owner'sentitlement his or herproperty it offeredby the law. Victimandthief make also negatesthe widerrecognition two differentclaims:the damageor loss affectsthe property-owner partlyin and partlyin his or her dignity. The thief's his or her externalattributes desire for recognition,on the otherhand,makeshim or her negate legality altogether.But the violence of the conflict teaches the parties important and moral lessons, which help the law move forwards.Law's abstraction thatcalls for greatersensitivityto formalism shownas a type of disrespect is social context and individualneed and desire. Anothertype of disrespect stems from law's privileging of formal procedure over the material conditionsof life and calls for a move towardsgreatersubstantive equality. At the same time, the criminal's attack on legal relations and on the and on alertspeopleto theirdependence community recognition they support its institutions, makesthem desirethe universalas universal.Crimereveals of thatrightis not just externaland subjectivebut a necessaryprecondition thatit must become universaland objective. community, Law's formalismbecomes the ontologicalmotive for its negationby the to criminal,and one would expect that in turncrime would contribute the dialecticalovercomingof formallegalism.But Hegel did not take this step. The most completetype of recognition,Hegel discusses,is honour.Honour These of resultsfrommembership corporations, guilds,tradesor professions. not institutions'treatthe individualin all his particularity as a mediating mere particular,but as a universal.'25Honour is now bestowed not immediatelyfor what one is, as in antiquityor in the family, but for what one does, throughmembership, training,and recognitionby one's estate. the and Whenhonourincorporates overtakesabstract legal personality, self social status.But the reverseis becomes complete,it acquiresdeterminate also true:a personwithouthonouris derided,scorned,humiliated others by and, as a result,his or her own self-imagesuffers. returns the element for concern particularity ethical Thusin thecorporation's in civil society... Thefamilyis thefirstlevel [of ethical in substantial life] an but the is form. corporationlikewise ethical The society, onethatis unlike and relations its basis.The for has familyin thatit no longer nature natural exist it. member a cooperative in andthrough Onthe one handtheyare of hand promote further their in and activeforthemselves, on theother and they the a endandintention universal, itself.26 namely cooperative
he 24 'Thecriminal the firsthuman is of beingin Hegel'sphilosophy right... because in 'TheRepressed IntersubjectivityHegel's "injuresrightas right"',M. Theunissen,
Philosophy of Right' in Hegel and Legal Theory,eds. D. Cornell, M. Rosenfeld, and D. Carlson (1991) 27. 25 G.W. Hegel, Vorlesunguber die Philosophe des Rechts (1983) 205. 26 id., pp. 201-2.

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to of In the recognition honour, peoplepursuetheirself-interest the extent thatit is consistentwith thatof othermembers.Legal relationsare sublated themselvesas fully in understand into mutualrecognition, whichindividuals on eachotherand,at the sametime, as fully uniqueandparticular. dependent Self finds itself in the other and finds the other in self. Ethical existence unites the universal(the state and its law) and the particular citizen of (the andhonour).But this sublation universalandparticular of legal recognition takes place only in the limited environmentof guilds and professions, typicallyin Englandin the Innsof Court.For the vast majoritywho cannot be raised to the dignity of 'concrete universal' through corporate the membership, overcomingof the recognitiondeficit of legal relationsis neitherpromisednor signposted. of commentator It is this difficultythat Axel Honneth,a Habermasian Hegel, tries to correctin his major work, The Strugglefor Recognition. is Honneth for arguesthatthe struggle recognition the key ethicalrelationship in or the mainformof practical intersubjectivity the Hegeliansystem.Moral of are conflicts,personal expressions disputes,andsocial antagonisms partial for and this struggle, whichcreatesthe agreements reciprocity necessary both of and the socialization the individuation the subject.My identityis the result of Thisacknowledgement of the recognition my characteristics another. of by of to the other's vital contribution the constitution self exposes self to the actionof the universalandreconcilesher with the world.At the same time, the identitycreatedthroughthe other'srecognitionmakesme awareof my specificityand differencefrom all others.This consciousnessof uniqueness turnsthe subjectagainstthe worldand re-kindlesantagonism: of established the of Since,within framework anethically relationship mutual subjectsare always learningsomethingmore about their recognition, to and identity, since,in each case, it is a new dimension their particular selvesthattheysee confirmed leave,by means they thereby, mustonceagain in of conflict,the ethicalstage they have reached, orderto achievethe ... form of individuality themovement recognition a more demanding of their between the of recognition forms basisof anethical that subjects relationship and in of of consists a process alternating stages bothreconciliation conflict.27 school of communicative ethics, sees Honneth,followingthe fashionable as andpersonality the outcomeof conflictas an effect of normative pressures normativeinvestments.But this overinflationof normativityis seriously disappointed Hegel's approachto legal relations.While the Hegelian by towardsthe final historical edifice is inexorably movingin all its particulars for did not proposea new type of legal recognition Sittlichkeit. stage, Hegel to the Honneth admitsas much:Hegel 'construes transition a state-based legal as system quite schematically, Kanthad alreadydone in his Rechtslehre'.28 The ethical approach legal recognitionseems to fail at its most crucial to
27 id., p. 17. 28 Honneth, cit., n. 15, p. 55. op.

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moment,precisely when the expectationhas been createdthat the earlier by partialand formalconceptionsof law and rightswouldbe transcended a more inclusive ethic of care. Withoutthat move, legal relationsand rights remain at their Kantianstage and formulationand are open to Hegel's Hegel critique.29To redressthis problem,Honnethsupplements devastating by introducinga third type of recognition,which he calls solidarity.A has basedon solidarity all the elementsof legal recognition it but, personality additionally enjoys social esteem, the recognition of its particular characteristics qualitiesdevelopedwithin its groupand community.A and economicandsocialrightsinto law and introduces societybasedon solidarity real to by attempts mitigatelegal formalism addressing social needsandlifehistories. For Honneth, German social-democracy is the closest to approximation Hegel's ethicalstateandcan achievethe finalandcomplete We of recognition personality. will examinethese claims in the final part. Poverty, finally, completes the inadequacyof legal recognition.Hegel argued that the necessary inequalities of capitalism lead inevitably to extremepoverty and social conflict. A society of riches must provide for those inescapably reduced to slave-labourand unemployment.This is makesthe poor feel becauselack of assets in a society based on property to ... and excluded shunned, scorned, everyone Self-consciousness appears by and has it be driven the extreme to pointwhere no longer anyrights, where the ... existence Because individual's no has freedom longer anydeterminate freedom of the has freedom no determinate existence, recognition universal disappears.30 the The abstract is This formulation of greatimportance. rightto property, as a result does not offer adequate if, recognition potentialto hold property, the of its non-actualization, person cannot supporthis or her basic needs. of This leads to a second valorization theft: to of Life, as a totality ends,has a rightin opposition abstract right.If for a an constitutes life by example, canbe preserved stealing loaf,thiscertainly be but to such of property, it would wrong regard an infringement someone's action common as theft.31 The abstractright must become concrete, the potential actual, for the by recognitionof rightsto work.Povertyleads to lack of recognition others The and deprivesthe poor of respect.But the harminflictedis even greater. poor recognize themselves as free beings, but their material existence radically negates their sense of self-respect.As a result, they feel torn
29 MargaretJane Radin reaches the same conclusion in relationto Hegel's approachto the person, which is 'the same as Kant's - simply an abstract autonomous entity capable of holding rights, a device for abstracting universal principles, and by definition, devoid of individuating characteristics.' (M.J. Radin, Reinterpreting Property (1993) 44.) 30 Hegel, op. cit., n. 25, pp. 194-5. 31 Hegel, op. cit., n. 2, para. 127.

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and of betweeninside andoutside,betweenthe universality personhood the of exclusionthey experience.'Thepoormanfeels as if he were contingency relatedto an arbitrary will, to humancontingency,and in the last analysis is whatmakeshim indignant thathe is putinto this stateof divisionthrough have been severed. sheer arbitrariness.'3 The universaland the particular whose The poor personis placed in the position of a radicalparticularity existence is challengedand excluded by the universal.This is the typical a harmof defectiverecognition: split betweensomeone'sself-imageandthe or that social institutions othersprojectupon thatperson. image HUMANRIGHTSAND RECOGNITION These are the harmsthat the law both commits and tries to heal, through humanrights. Indeed,we can approachthe humanrights movementas a of continuingeffort to negatethe inadequacies legal recognition.Civil and politicalrights,the first generationof humanrights,lead to a very similar rights.The right to the freedomand type of recognitionto that of property and securityof the person,the rightsto fair trial,politicalparticipation, free are expressionsof the universaldignity bestowed to persons on speech accountof their humanity.In this sense, all legal rights are humanrights and since theirbasic actionis preciselyto extendabstract recognition respect of to all. The main and quite substantialcontribution the modem legal system is to extend this type of recognitionfrom privateright and intersubjectivemoralityto the public domain.33 than But the recognition impliedin civil and politicalrightsgoes further is the respectand self-respectinvolvedin ordinary Community legal rights. New rightscreatenew ways and both the background effect of recognition. of being in common and push the boundariesof community.The main of consequenceof the early declarations naturaland humanrights was to reduce domination, the non-recognition typical in the master-slave Those given the civil and political rights of citizenshipwere relationship. as equal not only in formal legal relationsbut also as regards recognized expressthe mutualrecognition politicalpower.Politicalrights,in particular, of citizens as citizens; they recognize the constitutiverole of recognition is itself. Participation the primeformof politicalrights,andin this sense, all can be seen as political rights, as an extension of the logic of rights But to public.34 self-determination participation areasof activitynot hitherto
32 Hegel,op. cit., n. 25, pp. 194-5.

for and create all all 33 Indeed positive systems, codesandstatutes rights depend legal
on theiroperation the existenceof legalpersonownersof suchrights.
34 The psychoanalyticalapproachaccepts the subject-formingrole of the other and of rights but is much more sceptical about the contributionof rights to the creation and expansion of community. See Douzinas, op. cit., n. 11, chs. 11 and 12.

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as was initiallyrestricted, to subject,to white,male property-owners as and, to scope, to public life. The political history of the last two centuriesis of marked the strugglesto extendthe recognition citizenshipto excluded by from poor men to women to variousminoritiesand non-nationals. groups But formalpoliticalequality,like property rights,has been accompanied which takes various forms the denial of self-development by oppression, cultural worthsuch as economic exploitation, social marginalization, violence.35 Here the law suffers from two defects: first, lessness, and that circumstances allow the the formalism, lack of concernfor the material revealedin poverty).Secondly,abstraction, of realization rights(the defect in a of the recognition a non-substantial, thinpersonality defectattacked (the are instances of defective crime and redressed through honour). Both recognition,of a public image that seriously mis-matchespeople's selffor calls for greater oppression substantive participation, image. Domination equality. Taken together they aim to combat the inadequaciesof legal recognition. Self-determinationrequires the expansion of democratic frompoliticsto otherareasof social life. Self-development decision-making of the requires expansionof the principleof equality,fromthe formality law numberof substantiveareas of to and decision-making an ever-increasing and domesticlife, the environment, so on. social life, suchas the work-place, Recognitionnow moves from the formaland universalto the differentand which makepeople unique. specific, those characteristics in We can pursuethis analysisin relationto all important developments of for humanrights.The struggles politicalrightsandfor the introduction the betweenmaster universalfranchiseaimed at removingthe non-recognition andslave frompubliclife andextendingcitizenship rightsto groupssuch as the the poor,womenor ethnicminorities. Similarly, rightto self-governance, the which characterized decolonizationprocess of the 1950s and 60s, and prefaced the main human rights documents of the period36extended to fromthe excludedgroupsof the metropolis collectivepoliticalrecognition whole nations and ethnicities in the developing world. In other cases, to rightsextendedthe citizenship rightswere expanded new areas.Workers' to of participation the shop floor and to some aspectsof industrial principle bodies in management.Consumers'rights enlarged the decision-making health and other public utilities. Each extensionenlargedeither education, the number peopleentitledto decideissues of publicconcernor the issues of and to the logic of publicdeliberation decision. open Politicalrightsemerge is the local expressionof universality. Citizenship of and communities the undermining the out of the destruction traditional of
35 I.M. Young, Justice and the Politics of Difference (1990) 56. 36 'All people have the right of self-determination. virtue of that right they freely By determinetheir political status and freely pursue their economic, social and cultural development.' This is the first article of both the civil and political rights and the economic, social, and culturalrightsCovenantsadoptedby the UnitedNationsin 1966.

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body politic and these rights, in turn,acceleratedthe process. pre-modern Mutualrecognitionhas moved from the relationsof love and care which characterized pre-modern the world to legal recognition,to predominantly of the construction identitiesthroughrights.If citizenshipis the essence of if turnsthe abstract legal personinto a universality, community participation self, its essence is negative.It negatesthe closing down sociallyrecognized the of the political space and 'sustains the moment of disembodiment, and the dislocation of power constitutive of democratic groundlessness But practice.'37 as Marx insisted, political communityand citizenshipare both the recognitionof the universalityof rights and of their denial, since and of in rightssupport are supported turnby the inequalities economy and culture.Secondly, citizenshipis a limited universalitywhich is exhausted within the confines of the nation-stateand excludes the non-citizens,the foreigners,enemieswithoutand within. Using Iris Young's terminology, we can argue that the negative but of universality politicalrights addressesthe problemof domination not of oppression. denies people's abilityto decide whatis the best Oppression life-planfor themanddeprivesthemof the necessarymeansto carryit out. It does not allow its victimsto be recognizedas concreteand uniqueselves; it prevents the fulfilment of their aspirationsand capacities. Economic exploitation of the metropolitanpoor through unemployment,breadline or wages, poor health,and casualization, of the developingworld through unequaltrade and cripplingdebt underminesand eventuallydestroys the Whendaily survivalis the orderof the day, possibilityof self-development. all aspirations for social improvement or cultural expression are The oppressedcannotenjoy or even aspireto the Aristotelian extinguished. to eu zein, the good and completelife that allows theirpersonality flourish and be recognizedin its complexintegrity. THE PARADOXOF IDENTITY AND RIGHTS Can legal recognitionbecome the full recognitionof concreteidentity as Honnethargues?The great achievementof legal rights was precisely to As abstractall predicatesand create the person without determination. the 'man' of the rights of man appears without species existence, differentiation distinctionin his nakednessand simplicity,united with or The all others in an empty naturedeprivedof substantivecharacteristics. universal'man' of the Declarationsand Conventionsis an unencumbered man,human,all too human.As species existenceall men are equal,because they shareequallysoul and reason,the differentia specificaof humans.But
37 J. Bernstein, in and 'Rights,Revolution Community' Socialismand the Limitsof
Liberalism,ed. P. Osborne(1991) 113. 38 See, generally, A. Gewirth,Self-Fulfilment(1998).

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this equality, the most radical element of the classical Declarationshad or men' (thatis menof no property) for women limitedvaluefor 'non-proper to andwas deniedaltogether those definedas non-humans (slaves,colonials, and foreigners). The contemporary conceptof humanrightshas moveda long way. Social andeconomicrights,a few rightsfor gays andlesbians,some for womenand children,for minoritiesand indigenouspeople promiseto fill the abstract legal person and to constructa strong recognition.But can we have a this consistentconcept of (human)right that transcends minimumstate of To answer this question we must recognition that legal rights give? betweenthe strugglesfor the adoptionof new rights distinguish analytically and individualclaims for recognition.Let us startwith grouprights. of Using the terminology semiotics,one can arguethatthe 'man' of the rights of man or, the 'human' of human rights functions as a floating signifier.As a signifier,it is just a word, a discursiveelement that is not or signified or meaning. automatically necessarilylinked to any particular On the contrary,the word 'human'is empty of all meaning and can be of attached an infinitenumber signifieds.As a result,it cannotbe fully and to and conception,becauseit transcends finally pinneddown to any particular of overdetermines them all.3 But the 'humanity' humanrightsis notjust an empty signifier;it carriesan enormoussymboliccapital,a surplusof value and dignity endowed by the Revolutions and the Declarations and augmentedby every new struggle for the recognitionand protectionof human rights. This symbolic excess turns the 'human' into a floating signifier, into something that combatantsin political, social, and legal struggles want to co-opt to their cause, and explains its importancefor politicalcampaigns. To have human rights, which in modernityis synonymousto being human, you must claim them. This claim attaches a demandfor social recognitionor legal protectionto the floating signifier. A new right is or recognized,if it succeedsin fixing a - temporary partial- determination its if on the word 'human', it managesto arrest flight.This processis carried out in political, ideological, and institutionalstruggles.Typically diverse groups,campaigns,and individualsfight in a numberof differentpolitical culturaland legal arenassuch as public protest,lobbyingor test-cases,to have an existingrightextendedor a new type of rightaccepted.The creative potentialof languageand of rhetoricallows the originalrightsof 'man' to into the rightsof workers,women,gays, refugees, breakup and proliferate and so on. For the new claim to succeed, the claimants must assert both their similarityand difference with groups already admittedto the dignity of First, they must appealboth to the universaland the particular. humanity;
in 39 For a use of the psychoanalyticalconcept of 'overdetermination' political theory see E. Laclau and C. Mouffe, Hegemony and Socialist Strategy (1985).

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of characteristics the similarity; new groupclaims thatit sharesthe abstract of humannature,that it is a valid sub-group humanitywhich shouldenjoy shareddignityand equalityof treatment. Equality,despitethe assertionsof is Declarationsand Constitutions, not given or obvious. It is a political the as construct, Hegel andMarxargued, typicallyexpressedthrough law, as Kant saw. In this sense, equality before the law acquires its concrete the aboutit. If anything, mainclaim of the meaning:it has nothing'natural' liberal-democratic traditionis that it can transcendsocial differencesand have accidentsof birthand construct equalityagainst nature.Rights-claims character two therefore aspects:an appealto the universal undetermined but of humannature.Secondly, the assertionthat the similaritybetween the claimantsandhumannature,simply,admitsthemto the surplusvalue of the floating signifierand groundstheirclaim to be treatedon an equal footing with those alreadyadmitted. Second, difference. The shared dignity of legal personalityand the of of community citizenshipare inadequate recognitions concreteidentity.I I am a legal person and citizen but, more importantly, may be a man or woman, straightor gay, black or white, English, Africanor Greek,Tory, Labour or anarchist,marriedor divorced, a teacher, miner or poet, an a or refugeeor staunch patriot,a Northerner Southerner, drinker, immigrant, of But raveror teetotaller. the claimsto differenceandthe recognition plural As of identitiesarenothappycompanions liberalism. Amy Gutmann cultural put it the abouthow to recognize distinct reaction questions to one reasonable identities members a pluralistic of of cultural societyus thattheveryaimof ... is differences public in or institutions misguided an representingrespecting strand contemporary in liberalism suggeststhatour lack of ... important of with that the identification institutions servepublic purposes, impersonality institutionstheprice citizens to is that should willing payfortreating be public racial sexual or of us all as equal,regardless ourparticular ethnic, religious,
identities.4

The law, as Hegel argued,is drawnto the same and the universaland is to difference.This is the reasonwhy the subjects ill-equipped accommodate of human rights have no female gender, and sexual orientationis not recognized as an unlawful ground of discriminationin human rights instruments.Difference remains a contested ground in liberal codes of human rights; social, economic, and culturalrights are commonly ringfencedwith statements they areinferiorto civil andpoliticalrights,nonthat justiciable,aspirations only, ratherthan hardrights. Humanrights-claims, involve a paradoxical dialecticbetweenan impossibledemandfor therefore, of universalequality, initially identified with the characteristics western and an equallyunrealizable claim to absolutedifference.Because the man, natureof western,white, affluentman cannot subsumeunderits universal
in ed. 'Introduction' Multiculturalism, A. Gutmann 40 A. Gutmann, (1994)4.

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and desires of workers,women, racial or aspirations,the characteristics ethnicgroups,andso on, the claims to specific workers',women'sor ethnic rights arises. When they succeed, universality becomes a horizon continuously receding before the expansion of an indefinite chain of particular demands basedon the particularity the group.41 this success of But is always provisionaland reversible,as the logic of liberal law tends to prioritizethe universalover the generaland the same over the different. The argument women's rights,for example,involves two apparently for claims: both that 'women are like men' and that 'women are antagonistic differentfrom men'. Women have been invisible to humanrights for too long, initiallybecausethe femininewas seen as an inferiorstatethatdid not But deservethe full dignityaccordedto humanity. the admissionof women to the statusof humanity to withoutresponding the (the actionof similarity) demandsof differenceis equally problematic.It assumes that by simply of extending the rights of the representatives humanity(white, well-off males)to womenexhauststheirclaim. But as the feminismof differencehas of cogently argued,the universality rights necessarilyneglects the specific needs and experiencesof women.42The concerns and claims of women cannot be subsumedunder the universal entitlementsof human nature, precisely becausethe feminineis the differencefromequalizinghumanity. Domestic and international have had great problemsin accepting,for law example,the special natureof domesticrape or of rapeand sexual assaults of duringwar. The non-criminalization maritalrape was the result of nonAs admission womento the statusof the universal. a result,the law treated of women as inferiorto men, as their propertywhich could be subjectedto brutalabuse with impunity.The non-inclusionof rape in war amongstthe crimes against humanity was, on the contrary,the result of the nonof recognition the differenceof women.The standard provisionsof criminal law protecting universal bodily integrity from assaults are considered effect of adequateprotectionsfrom sexual violence. The special traumatic sexual abuse is discounted and sexual violence equated with general the violence, undermining magnitudeof the offence steepedin male power and female degradation. In the strugglefor rights,the rhetorical ruses of similarityand difference can be used to promote the most contradictory objectives. A claim to difference without similarity,can establish the uniquenessof a particular for but, groupandjustifyits demands specialtreatment it can also rationalize its social or economicinferiority. Aristotlewrotethat 'some men are free by natureand some are slaves ... From their birth some are markedout for subjectionand othersfor rule.'43 A Greekor Romanslave was seen as an
41 E. Laclau, (1996)ch. 2. Emancipation(s)
42 L. Irigaray, Thinking the Difference (1994, tr. K. Montin); An Ethics of Sexual Difference (1993, tr. C. Burke and G. Gill); I love to you (1996, tr. A. Martin). 43 Aristotle, Politics (1990, Loeb edn., tr. H. Rakham)I. I. 6.

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animalvocale,a worker the nineteenth in as centurywas treated a 'cog in the machine'or disposablemerchandise, wife untilrelativelyrecentlywas the a husband'schattel. In all these cases, empiricaldifferenceestablishedand of justified domination.More generally,the appearance linguistic, racial, and other differences has been used to uphold hierarchiesand gender, legitimize power imbalances. The questiontherefore not why but when, how and in relationto what is attributes 'women (not) like men'? Most humanrights strugglesadopt are this form of timely, historical,and specific comparisonand contestation. Their aim is to redefinethe dominantway of understanding relations the tactics and,to this effect, rhetorical amongstclasses, groups,andindividuals and discursiveargumentation their main weapons.The culturalaim of are the anti-slaveryand workers' and women's struggles was to rearticulate relationsbetween the free, the propertyowners or men (usually the three coincidedin the samepart),andthe slaves,the workers women. or predicates The old hegemonicalposition claimed that the first groupsrelatedto the second on the basis of natural differences,thatinequalitieswere the logical and necessaryoutcomeof dissimilarities. on The rebels and protesters, the otherhand,construedthe relationship one of inequality,of an immoral as denial of similarities, and as illegitimate domination, the turning of differencesinto hierarchies. The assertionof differenceis what gives self identity,makes it a rich, whether characteristic, complicated 'thick' personality.The differentiated of as gender,ethnicityor sexuality,is put forward a validpartialpredication universality, as one way of mediation between the universal and the The distancebetween abstracthumannatureand the concrete particular. of characteristics the groupjustifies their demandto differential treatment, whichrespectsone aspectof theiridentity.If equivalenceandequalityresult frompoliticalandlegal actionagainstabstract the nature, claim to difference reintroducesthe particularity concrete nature situated, localized, and of context-dependent. And here we reach the crux of the matter:once we move from group claims to the individual struggle for recognition, to the continuous conversation with others and social institutions which constructs our identity,the law will always fall short of a full recognitionof identity.It may recognize aspects of my sexuality, ethnicity, and family position throughthe creation of some rights and protections.But the politics of differencewill still remainweddedto the generalityof certainpositions,to thatof being womanor gay rather thanthis womanor thatgay. The law can deal with universalitiesand generalities.A concreteidentity,on the only other hand, is constructedthrough the contingent and highly mutable combination manypositions,it is the outcomeof a highly specific group of of characteristics, only some of which are generalizableand sharedwith others. In relation to shared characteristics,human rights extend the recognitionof esteem by turningthe relevantgroup(women or gays) into 402
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subjectsof rights.Humanrightsand wrongsoperatein the gap betweenthe universaland the generalizable. But most elements of identityremainimmersedin personalhistoryand background with its defining moments, turns, and traumas, with its combinationof, amongstmany others, gay sexuality,supportfor Arsenal and for the Tories.This combination testedandrecognizedor not daily in is an infinitenumber encounters with others,as whatis singularly of myself: a creature of shared dignity and rights ensconced in citizenship and and symbolizedby the rightto vote, but also of total idiosyncrasy absolute differenceexemplifiedby the uniquenessand unrepeatable epiphanyof the face. This is a second crucial space, that between the general and the Herethe universalizing singular. logic of the law alwaysfails the uniqueness of the other. us The referenceto the face and the other, introduces to that aspect of or identitywhich defies the dialectic of the universaland particular of the same and the different.For Hegel, the honour bestowed by corporation membership introduces the individual to the ethical state. But in postmodernity,these associations, memberships,and belongings have proliferated they are unableto createidentity immenselybut, additionally, on their own. The strugglefor recognitionand the politics of identity are The mainelementsof my identity, aboutcreatingself as a uniqueindividual. the buildingblocksof whatI considerthe 'realme' referto a hugevarietyof positions, beliefs, and traits which have very little relationshipwith the shared dignity of legal rights and cannot be capturedby the differenceextensionsof human rights.My identityis the shiftingarticulation promoting of all these disparateelements or 'subject positions' which combine in various ways, occasionally and transientlyunder the direction of one Concrete element,on othertimes withoutany particular particular hierarchy. identitiesareconstructed psychological,social andpoliticalcontexts,they in terms,the outcomeof a situateddesireof the other. are, in psychoanalytical In this sense, claimsfor differentiation initiallyconstructed are outsideof the of the law. equalizinglogic Negotiatingwith othersthe potentialor real conflictsof these positionsis a main part of the individualpolitics of identity.In following my football of team to an away game, for example, membership the tribe of Arsenal becomes the dominant characteristic.But when my fellow supporters startgoadinga playerfor his race, whichhappensalso to be my supporters race or, if theirbehaviour offends my ideologicalallegiances,then my two commitments come into conflict.In these cases, my loyaltyto Arsenalor to the Tories becomes strained,if my partypublicly and vociferouslyattacks my sexuality. I may try to forget the conflict by either rationalizingthe of behaviour my fellows or by acceptingthatsomehowmy raceor sexuality is problematic by internalizing self-shame.In all thesecases, my identity and
is created through the recognition of others who are involved in an actual or silent conversation with me about parts of my identity. Any relevant rights, 403
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created by discrimination hate speech law, will become importantin or negotiatingmy responseto othersand my own self-image.But often these conversations As CharlesTaylorputsit, 'whathas come aboutwith the fail. modem age is not the need for recognitionbut the conditionsin which the attemptto be recognizedcan fail.'44 This failuremay be the resultof the of withholding recognition our closest and most intimate.But the failure by is often the resultof one inevitableand many avoidablemisrecongitions by and legal institutions rights. AND RIGHTS DESIRE,(MIS)RECOGNITIONS, Human rights struggles are symbolic and political: their immediate is battleground the meaningof words, such as differenceand equality or and freedom, but, if successful, they have ontological similarity consequences,they change radicallythe constitutionof the legal subject and affect peoples' lives. Rights formalize and stabilize identities by recognizingand enforcingone type of reciprocal recognition.The law uses the technical categoryof the legal subject and its repertoryof remedies, procedures,and rights to mediate between the abstractand indeterminate conceptsof humannatureandright and the concretepeople who claim its protection.The legal subjectmediatesbetween abstracthumannatureand concreteselves. The legal validationof a contestedcategoryof rights,like of women'srights,acts as the partialrecognition a particular of identity type linkedto the relevantrights.Conversely,a personrecognizedas the subject of women's rightsis acknowledged a personof a particular as identity,the bearerof certainattributes the beneficiary certainactivities,andas the and of of carrier the dignityof abstract An is humanity. individual a humanbeing,a citizen, a woman,a worker,and so on, to the extentthatshe is recognizedas the legal subjectof the respectiverights,andherlegal identityis constructed out of her bunchof rights.But she is also much more thanthat. The abstractconcept of humannature,which underpinned classical the has societies by the proliferating Declarations, been replacedin postmodern claims to new andspecialistrights.Desire,the motorbehindthe strugglefor recognition,has replaced human nature as the ground concept and has become the emptyandfloatingsignifier,whichcan be attached eitherto the of power and the state or to the logic of justice and openness.We logic modemsknow only whatwe can make;the legalisationof desiremeansthat, as postmodern, can now 'make'ourselvesby investingdesirewith legal we We areentitledto becomelegally whatwe believe we are,turn significance. our self-imageinto ourpubliclyrecognizedidentity.The commoncomplaint about the excessive legalisation of the world is precisely the inevitable
44 Taylor, cit., n. 23, p. 35. op.

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outcome of this endless legalisationof desire. Desire became the formal with othersand the polity and was expressionof the subject'srelationship limited legal recognitionwhen self-development fulfilland given initially ment became a matter for law in the 1950s and 1960s. After that the of the of multiplication right-holders, proliferation claims, and the endless mutationof the objects of right was a matterof time, of letting language, politics, and desire do their work. Rights have become recognitionsof a of mobile desire,which turnsa growingnumber aspectsof my identityinto Jacobsonputs it, for Hegel, the human enforceablelegal claims. As Arthur species is under 'the erotic claim ... to fill the universewith every legal relationimaginable'.45 This drive has become the majorforce of human rights. The greatermy bunch of rights, the fuller the recognitionof my identityby others.But at the same time, this type of recognitionis forced, of based not on the reciprocity belongingto a family, corporation, groupor communitybut on the alienatingand coercivelogic of the law. Legal form, so whateverthe content,has not changedits character forcefullydescribed by Hegel. 'To describean individualas a 'legal person'is an expressionof follows the legal contempt',he declares.46 This inevitablemisrecognition personof humanrights. But human rights do not just confirm or enforce certain universal extensionto new groupsandnovel areas traits.Theircontinuous personality of activityindicatestheirdeeply agonisticcharacter. Theirrecognitiongoes to the heartof existence, addressesthe fundamental and other-appreciation of andtouchesthe foundations self-esteemof the individual beyondrespect, We are doomed or blessed to strive endlessly for concrete identity. the recognitionof our uniqueidentity.But the avoidablemisrecognitions, instancesof mismatchbetween the self-imageof an individualor myriad groupandthe identitythe law andrightsallow themto project,make law a in and necessarybutinadequate defectivepartner the strugglefor identity.A of characteristics law but cannotbe basedon the universal completeidentity on the continuous struggle for the other's unique desire and concrete claimthathuman This is whereHonneth's rightscan bestowfull recognition. mutualrecognitionandpacify social conflict fail. Human rights,like desire, are a battlefieldwithethicaldimensions.Socialconflictmaybe occasionally destructive the social bond,but it is also one step in the developmentof of and ethical forms of community.But the desire for the other, political formalrecognitionbut, remainsa step aheadof law. It keeps seekinggreater as soon as the claim for legal form has been granted,its achievement undermines the desire for the other. This intricate but paradoxical intertwiningof identity, desire, and human rights is Hegel's lesson for postmodern jurisprudence.

45 A. Jacobson, 'Hegel's Legal Plenum' in Cornell et al., op. cit., n. 24, p. 114. 46 Hegel, op. cit., n. 8, p. 480.

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