Communism, the word: notes for the London conference 2009

The following are the notes that Jean-Luc Nancy prepared for the conference On the
Idea of Communism, arch !""#$ %n edited &ersion is a&aila'le in Costas (ou)inas *
+la&o, -i)e. /eds0, The Idea of Communism /1erso, London !"2"0 234 5 46$
Communism, the word. Not the word before the notion, but the word as notion and as
historical agent.
Communism is a word with a strange story. It is very difficult to rigorously trace its
origin. Nevertheless, it is sure that the word communist existed already in the XI
century, with the meaning of !eo!le having in common a !ro!erty belonging to the
category of "main morte# $ that is, not being submitted to the law of heritage%
a monastery belongs to the community of the &on's, which is, as community,
inde!endent from the individuals. It seems that at the same time and even before, from
the XII century, the same word designated some as!ects of communal law and was
lin'ed to the communal movement which ex!anded as the beginning of a bourgeoisie.
(ater, namely in the XIII century, the word a!!ears in a text written by ictor
d#)u!ay de *uveau in +,-. $ four years before the *rench revolution. It designates the
!ro/ect or the dream to found a community of life $ which !recisely is su!!osed to
re!lace that of the &on's.
)ere for exam!le a 0uotation of d#)u!ay%
Cette union et cette communaut1 de r1gime moral 1conomi0ue serait !raticable !ar
!elotons, dans tous les 1tats, sans confondre les fortunes, eu 1gard au /uste m1rite de
divers talents, moyen 0ue n#avaient !oint encore voulu admettre les 21lateurs de la
31!ubli0ue de 4laton. 5lle fortifierait l#amiti1 humaine dans cha0ue !rofession, en
excluant toute vaine et ext1rieure distinction, odieuse dans une m6me classe de
Citoyens% rivalit1 !u1rile 0ui confond et entra7ne ensemble tous les 1tats 8 leur ruine et 8
tous les crimes. Tel fut l#abus funeste au0uel rem1dia !ar ses sim!les (ois 9om!tuaires
le bon 3oi Idomen1e, mod:le de nos deux )enris. (es ;ga!es des !remiers Chr1tiens
tendaient au m6me but, en r1unissant les )ommes dans cet es!rit de sim!licit1 le !lus
!ro!re 8 maintenir la !aix et la religion. Il a!!artiendrait donc 8 un 4rince 0ui voudrait
mieux m1riter le titre de 4:re de la 4atrie, 0ue tous ceux encore 0ui ont favoris1
l#1tablissement des &oines, devenus inutiles au/ourd#hui, !lacent ces vrais et nouveaux
&od:les de tous les 1tats, chacun relativement 8 leur fonction, dans les divers
&onast:res 0ui se d1!eu!lant tous les /ours, semblent attendre une meilleure
destination.
<#)u!ay was a a friend of 3estif de la =retonne#s, who is 'nown to be the first to
!resent, among the several 'inds of government, the communism or communaut1. In
his autobiogra!hy >&onsieur Nicolas?, he ex!ounds it as one among @ ty!es of
government and writes this one is only effective for some !eo!le of 9outh ;merica,
who wor' together in the morning and !lay together in the afternoon >this is not very
different from what &arx says in Aerman Ideology?.
; short time later, at the time of the *rench 3evolution, >and this is well 'nown?,
Aracchus =abeuf, ta'ing !art in the first Commune insurectionnelle de 4aris, used
several times the word communautariste in the context of his thought about the
5gaux and the !hrase communaut1 nationale.
=eside the ex!licit use of the word, we have to remember how other nouns designated
the same thing, for exam!le in the doctrine of the 5nglish <iggers of the XIe
century, who s!o'e of the land as a common treasure and who belonged to the time of
the first 5nglish 3evolution, which ended with the creation of the first 3e!ublic under
the name of Commonwealth which had at the time almost the meaning of res !ublica.
;ctually, those historical data are unable to give us the origin and the meaning $ or,
even better, the sense B of communism. No history, no etymology either, can !roduce
anything li'e sense.
=ut there is something we may understand from those data% something has been at sta'e
with this word, with the invention of it and with the attem!t or the need which was
involved in it. 9omething $ which is still in front of us, which is still to be discovered,
or which is still to come.
Communism $ the word, again. The word as !resence, as feeling, as sense >more than
meaning?.
To a certain extent, it seems strange that the in0uiry or commentary about this word
should be so rare. ;s if it were always considered as selfCevidentD It is, in a way $ but
in which way, this deserves a little more reflection D
5ven if history is not enough to ex!lain what we could call the destiny of this word,
something seems to be !ositive% community $ 'oinonia, communitas $ emerges at
times of !rofound social transformations andEor trouble or even destructions of social
order. This is the case at the time before the Christian era as well as at the final time of
feudalism or later at the time of the first industrial revolution. The first time was that of
the transformation of the whole social and cultural structure of the anti0ue world $ that
is, the final achievement of what had o!ened his anti0ue world itself% the deconstruction
of agrarian culture and of theocracy. 9uch a deconstruction ma'es clear, or !ushes to the
foreground what was hidden under or inside the construction% that is, the togetherness of
!eo!le >admittedly, even of !eo!le with every other being li'e animals, !lants, even
stars and stonesD?. =efore and out of the Aree' $ occidental$ moment, the
togetherness is given first. Fe call that holistic society, su!!osing that such society
understands itself as a holon, that is a whole. To the whole we o!!ose the !arts $ as
!arts ta'en out of their whole $ or a togetherness of several wholes $ that is, of
individuals. In both re!resentations the same 0uestion arises% what becomes of
togetherness when a whole is not given, and !erha!s even not to be given in any way G
Thus arises 'oinHnia or I would say the drive to it, the drive to community. It comes or
it emerges, !erha!s it constitutes itself because what it calls, what it names or designates
is not or is no longer given.
Certainly, many im!ortant features or trends of common life $ or, to be more !recise,
life in common $ are already given with the first 'ind of man'ind, as certainly as
!recisely the first 'ind of man'ind is or has never been an individual but a grou!,
a gathering of many. =ut as far as we can see, something of the togetherness is given,
and is given with or through an as!ect of the whole, of totality >which has nothing to do
with what has been called totalitarianism?.
If togetherness is given without this as!ect, that is, if it is given as a society $ an
association instead of, say, an integration li'e the family, the tribe, the clan $ then the
association as such o!ens a 0uestioning about its own !ossibility and its own
consistency% how is it !ossible to associate those who seem not to want it or even to
re/ect it. 9ociety then is what its members$ the socii $ have to acce!t and to /ustify.
Communitas on the contrary, or communio, is invented as the idea of what /ustifies by
itself the !resence and even the existence of its members.
Communism is togetherness $ the &itsein, the beingCwith, understood as the belonging
to existence of the individuals, which means, in the existential meaning, to their
essence. 9ociety means an unessential $ even if necessary $ lin' between individuals
who are, in the final analysis, essentially se!arate.
>I will not enter into the analysis of the word socialism neither in general nor in &arx#s
text. ;s we 'now, for several historical reasons but as well $ this is my belief $ on
account of the strength and de!th of the meaning of the word >of the image, of the
symbol?, communism alone too' and 'e!t the force of more than a !olitical choice,
a !olitical line and a !arty.
This, for me, is the !oint% communism says more and says something else than
a !olitical meaning. It says something about !ro!erty. 4ro!erty is not only the
!ossession of goods. It is !recisely beyond >andEor behind? any /uridical assum!tion of
a !ossession. It is what ma'es any 'ind of !ossession !ro!erly the !ossession of
a sub/ect, that is !ro!erly an ex!ression of it. 4ro!erty is not my !ossession% it is me.
=ut me, I, never exists alone. It exists essentially with other existing beings. The with is
no external lin', it is no lin' at all% it is togetherness $ relation, sharing, exchange,
mediation and immediation, meaning and feeling.
The with has nothing to do with what is called collective. Collectivity means collected
!eo!le% that is, !eo!le ta'en together from anywhere to the nowhere of the collectivity
or of the collection. The coB of collective is not the same as that of communism. This is
not only a matter of etymology >munire versus ligare? . This is a matter of ontology% the
coB of collectivism is a mere external side by side which im!lies no relationshi!
between the sides or between the !arts of this !artes extra !artes.
The coB of a communism is another one. It is, in the terms used by )eidegger about the
mit of the &itsein, not a categorical but an existential with >mit, coC?. ; categorical one
means, in a more or less 'antian way, that it is merely formal and does nothing more
than distinguish between with and without >you are here with me, but you could be here
without me I it does neither disturb the fact you are here, nor the fact that you are you as
I am me?. ;n existential with im!lies that neither you nor me are the same together or
se!arate. It im!lies that the with belongs to the very constitution or dis!osition or as you
may wish to call it $ say% to the being of us. ;nd there is more to it% only in this case is
it allowed to s!ea' of a we $ or still better% only in this case is it !ossible that a we
comes to be s!o'en. Jr even better% if the we can only and each time be a s!eech act,
then only a we existentially s!o'en may !erform its significance >what is exactly this
significance is another matter% for now, I note only that it im!lies a relationshi!, not
a mere sideCbyB side?.
>;nother !arenthesis $ sorry K It is not sure that there is, absolutely, something li'e a
mere sideCbyCside. 9ideCbyCside is already ta'en in a relationshi!. =ut we may discuss
this !oint later.?
=y !utting together the various arguments I have used so far, I can say% communism is
the s!eech act of existence as it is ontologically beingCinCcommon. This s!eech act
claims >for? the ontological truth of the common, that is the relation $ which ultimately
is nothing else than sense.
>I can come bac' later or elsewhere on this identity of sense and relation $ as well as
the identity of truth and existential coC?
*urther% the truth of the common is !ro!erty. 4ro!erty does not mean only the
!ossession or the belonging. In a reverse way, one should rather say that !ossession or
belonging may only be truly understood and determined if !ro!erty is first understood.
&arx wanted to o!en the way for a !ro!erty he calls individual !ro!erty /ust as
distinct from !rivate !ro!erty as from collective !ro!erty. 4rivate and collective
refer both only to the realm and to the category of law. The law 'nows only the formal
and external lin's. Individual !ro!erty means% !ro!erty which is !ro!er to the !ro!er
sub/ect >we may call it !erson or even, as &arx does in this !assage individual?.
9ub/ect means the ca!acity of what we could call !ro!erness% the way to enter
a relationshi! or to engage in a lin', an intercourse, a communication, which has
nothing to do with !ossessing something >but may be !ossible as well with things,
ob/ects?. I am !ro!er in so far as I commit myself as well as I communicate, that is, as
the word ma'es clear, I am in the common >which in 5nglish can be the name for the
common or communal !lace?, I am made of it, by it, to it. *reud is the best way to
understand it% as he states, the I or the ego is only a small dis', almost a !oint, emerging
at the surface of the large it which is the totality of the other being of the world. 5ven in
solitude, I am made of the whole world as it ta'es with me or as me a new singular
!oint of sensitivity.
Communism, therefore, means the common condition of all the singularities of sub/ects,
that is of all the exce!tions, all the uncommon !oints whose networ' ma'es a world >a
!ossibility of sense?. It does not belong to the !olitical. It comes before any !olitics. It is
what gives to !olitics an absolute re0uirement% the re0uirement to o!en the common
s!ace to the common itself $ that is neither to the !rivate nor to the collective, neither
to se!aration nor to totality $ but without !ermitting any !olitical achievement of the
common itself, any 'ind of ma'ing a substance of it. Communism is a !rinci!le of
activation and limitation of !olitics.
;t this !oint it becomes necessary to 0uestion the Bism. ;ny Bism im!lies a system of
re!resentation, and a 'ind of ideologiLation >in the marxian meaning as well as in the
arendtian meaning of ideology?. Cartesianism is the ideologiLation of <escartes#s
original drive.
I do not want to go into the 0uestion of historical or soCcalled, so oddly called real
communism. Communism is still ex!osed to the /eo!ardy of becoming an ideology and
should lose its Bism. The word is commun without Bism. Not even commun $
common, 'ommune, any thing that could be ta'en as something li'e a form, a structure,
a re!resentation $ but com. The (atin !re!osition cum ta'en as the universal !reC
!osition, the !resu!!osition of any existence.
This is not !olitics, this is meta!hysics or, if you !refer, this is ontology% to be is to be
cum. >;t the very moment I am writing this, I am surrounded by a singing crowd of
futbol aficionados on a !laLa in &adrid% there is there a multitude of symbols, !roblems,
feelings about the common? =ut it as's !olitics this 0uestion% how is it to thin' about
society, government, law, not with the aim of achieving the cum, the common, but only
with the ho!e of letting it come and ta'e its own chance, its own !ossibility of ma'ing
sense $ if, as I wish to suggest, any sense is necessarily common sense or, if not
common sense in the common meaning of the word, then in the meaning that any
sense is made of communication, of sharing or exchange. =ut of an exchange which is
not an exchange of !ossessions, but an exchange of !ro!erty% where my !ro!erty
becomes !ro!er by its own commitmentI sometimes this is called love, friendshi!,
sometimes faithfulness, sometimes dignity, sometimes art, sometimes thought,
sometimes even life and sense of life $ under all those names there is nothing else
than a commitment to the common.
MMM
If the 0uestion of communism is the 0uestion of !ro!erty $ namely, the 0uestion of
neither collective nor !rivate !ro!erty but of individual as well as common !ro!erty,
then it raises a double 0uestion%
+? what does it mean to be both individual and common G )ow are we to
understand the individuality of commmonness and the community of individualness
G
N? )ow are we to thin' of wealth and !overty in the realm of commonCindividual
!ro!ertyG
To the first 0uestion I would li'e to answer by arguing that it has to be ta'en in terms of
singular !lural, which has other im!lications than individualCcommon I I do not want
to address this matter here >I have already written some !ages about it? I but to say the
least here I would suggest that singularC!lural avoids the /eo!ardy of the double
substantiality which may be involved in indidualCcommon?
N? Concerning wealth and !overty, the 0uestion is clear as it is obviously !resented to
us% wealth means to !ossess more than common life needs, !overty to have less. The
first commun>ist? command is obviously that of /ustice% to give to the common what
common life needs. This need at the same time is sim!le, evident >in a way, it is
included in human rights $ which nevertheless may be discussed from other !oints of
view? $ and it is nevertheless unclear% from the need to the desire or to the wish, there
is no sim!le nor clear difference.
It is then necessary to thin' differently. Fe shall not only ta'e a first ste! of needs and
their satisfaction $ even if, of course, we shall absolutely consider a level of
elementary or minimal satisfaction. =ut we shall as well consider that infinity is
involved in each need and as the very essence of it. Need is to be ta'en as an im!ulse to
get something >li'e bread, water or s!ace? but as a drive toward what is not a thing, and
maybe is nothing $ but infinity.
;t this !oint we are close $ againD $ to ca!italism. that is, to infinity ta'en as endless
accumulation of things >which are all e0uivalent, as measured by the very !ossibility of
accumulating them, whose name is money $ money ta'en itself as the endless !rocess
of ma'ing money?. Ca!italism is endlessness instead of infinity, or infinity as endless
!roduction of ca!ital itself.
This has been, so to s!ea', a choice of civiliLation. ;t one !oint >even if this !oint is
extended through some centuries? the western civiliLation o!ted for endlessness. This
!oint was the one where infinity as the absolute given in each existence changed into
infinity as an endless !rocess toward accumulation.
Jf course it has been connected with a change about wealth.
Control, regulation of the mar'et is not enough. The challenge is not only about
managing the system of !roductionCconsum!tion
It is about the meaning of wealth. Fealth and !overty may have two 0uite different uses
and meanings. Jne can be accumulation vs disaccumulation, if I may say so, or getting
rich vs in!overishment.
;nother can be what I would name glory vs humility. >The )umble, the name of
a virtue became the name of !oor !eo!leD?.
4ossibly glory and humility could not even be called wealth and !overty. They are
related to each other not as the !lus to the minus but li'e, let#s say, a mon' in his sim!le
froc' facing a golden altar. Jr myself listening to =eethoven#s 0uartets.
4ossibly this relationshi!, whose !ro!er name is adoration or worshi!, which names
a 'ind of !rayer as well as a form of love, never too' !lace as such in society or was
always already mixed with or transformed in the o!!osition between wealth and
!overty. Nevertheless, as a matter of fact, the cou!le richE!oor as such and as
a !hiloso!hical as well as moral and religious theme or to!ic was formed !recisely at
the time of !reCca!italism, that is in ;nti0uity, between 4lato$ and the criti0ue of
money ma'ing so!hists $ and Christ with his strong re/ection of wealth. This age has
been the first, and in a sense maybe the last, time of the criti0ue of wealth, that is of no
longer thin'ing of it as glory. Jn the contrary, thin'ing of it as the fa'e brightness !ar
excellence.
Jur civiliLation is a schiLo!hrenic one that thin's its own value, its main value is fa'e.
The 0uestion of !ro!erty is the 0uestion about the !ro!er !ro!erty, which belongs to the
!ro!er !erson% that is, of the !ro!er wealth >or glory $ or, this is the same in
a way, the !ro!er sense?. 9uch a !ro!er !ro!erty may only be common. ;s !rivate, it
ma'es no sense >sense for a single one is no sense at all? I as collective it ma'es the
same effect for the collective is a single $ mechanical $ unity, not the !lurality of the
common.
Common is the ade0uate word for the !ro!erness of being, if being means ontologically
being in common.
On Human Rights: Two Simple Remars
by Jean-Luc Nancy 10 April 2013
First remark
Today, !olitical correctness demands that we say in *rench droits humains Ohuman
rightsP when we used to say droits de lhomme Orights of manP.
+
This demand, which
also occurs in other areas, is made because the *rench homme, li'e "man# in 5nglish,
does not distinguish between the human race and the male gender. Aerman is better
e0ui!!ed, differentiating between ensch and ann. (atin distinguishes between &ir
and homo, Aree' between an7r and anthropos, etc.
Fe could discuss the reasons for this. )owever, it is also im!ortant to note the
introduction of another ambiguity. The ad/ective "human# in *rench has a value that
corres!onds to the usual meaning we now give to the term "humanist# and, more
generally, to the moral 0ualities of "care# >a word which has recently been im!orted
unchanged from 5nglish into *rench?, "com!assion# or "charity#. The 5nglish language
attributes this value to the word "human#, further ascribing to it a more s!ecific term,
"humane#. Aerman has introduced, along with menschlish, the words human, humanit8r,
and 9umanit8t as terms of ethical evaluation. In other words, human rights can be seen
as rights bas'ing in the aura of humanity, since this term, in its currently im!overished
and rather ridiculous sense, has ta'en on the meaning of a "love of man'ind# or
"friendshi!# >in *rench, this is the meaning fre0uently ascribed to philia?. Now
!hilanthro!y $ which was actually a secular dis!lacement of the ostensibly all too
Christian charity $ is based u!on a more or less hidden axiom of condescension% it is
the act of the rich, cultivated and dominant, who feel benevolence, com!assion and !ity
for the social misfortune of others. *or all that, !hilanthro!ists have never sought to
challenge the social order, exce!t in minor ways.
4hilanthro!y contains an im!licit negation of the res!ect for the unconditional dignity
of all human beings, which a!!ears at the beginning of the Qniversal <eclaration of
)uman 3ights of +@R- >hereafter referred to as "<eclaration#? and is re!eated further on.
It can even be said to re!resent an inter!retation of dignity that is conservative, selfish
and gushing with sentimentality.
Fithout arguing against the use of the term "human rights#, it is necessary to draw
attention to the extent of its ambivalence. *or whatever the term used, human rights are
mar'ed by a certain degree of !hilanthro!y mixed with a !romise of "social !rogress#,
which is always lin'ed to a "larger freedom#. In this sense, freedom !revails over social
/ustice through the resonance, tone and em!hasis of the text.
&oreover, the <eclaration affirms that "the advent of a world in which human beings
shall en/oy freedom of s!eech and belief and freedom from fear and want has been
!roclaimed as the highest as!iration of the common !eo!le.#
N
=ut what is !roclaimed
here and cannot be challenged should not be considered the "highest as!iration.# Jne
can and must thin' that freedom >of s!eech and belief? does not limit the as!irations of
the common !eo!le OhommesP. It would not be wrong to say that the !eo!le can ex!ect
and want different things $ engagements, collaborations, relations $ things that are
larger, infinitely larger and more, than freedoms. =eing "free from fear and want# is not
the only reality of freedomI there are other sta'es that lie beyond any human freedom.
9!inoLa, for exam!le, who can hardly be accused of being inhuman or an enemy of
freedom, considered "freedom# to only exist as the freedom of the entire world >which
he called "nature or god#?. The inde!endence and autonomy of !ersons has a long way
to go before it reaches its limits, if limits exist. ;utonomy should be conceived in
relation to the sense of existence, or more exactly, in relation to existence itself $ of
each, of all and of the world as sense.
9ome will ob/ect, "Fhat do you ex!ect from a declaration of rightsG Sou#re not
considering the extent to which your words go beyond the !redetermined s!here that
constitutes a 'ind of minimum necessary to free humanity from o!!ression. Sou#re
de!arting the realm of right for !hiloso!hy, if not for dreams or s!eculation.#
&y res!onse is that it is indeed necessary to enter a !hiloso!hical register since the text
of the <eclaration $ and the huge body of texts ins!ired by it and by the defence of
"human# rights $ carry an im!licit or latent ideology that should be brought to light. In
fact, this is the !rice to be !aid in order to avoid the selfCrighteous inanity of such
"rights#. The selfCrighteousness here is that of a "humanism# of 5uro!ean origin, which
one must always remember "does not thin' the humanitas of man high enough#, as
)eidegger wrote.
4ascal, another 5uro!ean, said the same thing much earlier but in a different way% "&an
infinitely sur!asses man#. 4ascal was a Christian. )eidegger, on the contrary, believed
that he could find the force of reCfoundation in an antiCChristian direction. Today, all
these references are written off, and human rights float more or less on the surface of
the "icy water of egotistical calculation#.
T
Second remark
The <eclaration is based $ as a declaration of rights, that is to say, as a /uridical
!roduction or ,uris-dictio $ on the following sentence%
Fhereas it is essential, if man is not to be com!elled to have recourse, as a last resort, to
rebellion against tyranny and o!!ression, that human rights should be !rotected by the
rule of law.
This is the third of seven "consid:rants# >"whereas#? after which the text !roceeds with
the actual declaration. The *rench text reads%
Consid:rant ;uil est essentiel ;ue les droits de lhomme soient prot:g:s par un r:gime
de droit pour ;ue lhomme ne soit pas contraint, en supr<me recours, = la r:&olte contre
la tyrannie et loppression$
Fe will !ass 0uic'ly over the com!lex and fragile character of a !ro!osition that see's
to avoid a resort to rebellion. It is clear that this resort is seen as something "com!elled#
and that this com!ulsion can engender "tyranny and o!!ression.# In +@R-, in a text
drafted by a committee of nine members whose !olitical and intellectual com!osition
calls for lengthy analysis,
R
tyranny and o!!ression focused on the fascisms that had /ust
been defeated. In a sense, the <eclaration is !art of the general movement that,
somehow nebulously, fosters the condemnation of "fascism# and what this word would,
over a long !eriod, ignominiously signify. )owever, any 0uestioning of the underlying
reasons for the rise of fascisms is relegated to the bac'ground, if not even further. There
is no examination, from the !ers!ective of democracy and NU
th
century ca!italism, of
what could have facilitated or even caused the emergence of fascisms. There is,
therefore, no o!!ortunity to consider other !ossibilities of o!!ression $ and
conse0uently of rebellion $ li'e those re!resented by the abominable figure of a )ead
of 9tate or (eader flan'ed by !arty a!!aratus, !olice and mythology.
)ere, again, some will !rotest. The !receding sentences will be criticised for being
unacce!tably sus!icious of the virtuous words of the <eclaration. I was careful above to
write, "in a sense#, and to limit myself to !ointing out the absence of examination,
nothing more. In all sincerity, I am not trying to construct a machinery of denunciation.
Set it is difficult to dis!ute that the 0uestion of "humanism# has been continually refined
or dee!ened, according to different views. This has occurred along the road from the
defeat of fascism to the unbridled ex!ansion of ca!italism, which is undermining human
rights in an increasingly obvious way. It is a road that !asses through the other colla!se
of soCcalled "socialisms# and, today, through the various tensions in religious andEor
communitarian movements. ")umanism# is strictly coeval with mercantile civiliLation,
technoCscientific develo!ment and democracy. ")uman rights# are not absolutely
!ristine, as their !rehistory in 3oman law OdroitP after a certain !eriod already shows.
They derive from 3oman legal culture, trans!orted first out of 3oman civil religion and
then out of Christianity to fertilise the s!irit of modern law OdroitP and es!ecially soC
called "natural# law OdroitP.
Now, it is here that we must consider the other clause of this "whereas#. The *rench
version !rovides a stri'ing statement% )uman rights must be !rotected by the rule of law
Or:gime de droitP. The 5nglish distinguishes rights and law, the Italian distinguishes
diritti and norme giuridiche, whereas other languages >e.g. Aree' or Aerman? re!eat,
li'e the *rench, the same term. 4erha!s the (atin translation best clarifies the distinction
in stating that% hominum ,ura ci&itatis forma ;uae ,usta est tegi >human rights must be
covered by a /ust civil form?.
This is much more than a linguistic curiosity. 3e!eating a single term >droit? or
distinguishing two terms >rights and law?, indicates the same difficulty% do rights
OdroitsP exist that have not been established by law OdroitPG )ere the <eclaration
declares its own necessity% it is not /ust a formulation, words solemnly declared. The
<eclaration is the legal institution of the rights it declares. If we leave aside the wellC
'nown ;merican and *rench antecedents that !aved the way, !rior to the <eclaration
only factual rights and not legal rights Odroits de droitP existed. ;t most, some of these
rights !reCexisted as rights of certain 9tates, the Qnited Vingdom, the Q9; and *rance
in !articular. =ut what are "factual# rights or national rights with regard to international
lawG These two distinct 0uestions are in !art intertwined.
These 0uestions share a concern about the foundation of a right in general. The idea of
"human rights# brings to light the extraordinary difficulty of founding right, if not the
im!ossibility of such a foundation. Fe have sought to dismiss the idea of "natural
rights#, which re!resents an internal contradiction because their nonC!ositive >in the
legal sense? character !revents legal enforcement and sanction. Set we have invo'ed a
"minimum norm# >3awls? which is necessary for the constitution of a /ust 9tate or of the
9tate under the rule of "law# O>tat de droitP as it is !o!ularly called today.
.
This is no
less lac'ing in foundations, in the fullest sense of the word, than "natural# rights.
)annah ;rendt also showed how the national a!!ro!riation of "human rights# gave rise
to categories of !ersons without rights >refugees, dis!laced and stateless !ersons?. It
follows from these analyses that forms of nonCright have not sto!!ed im!osing their
iron law within !ositive rights, with the hel! of economic, technical, and !olitical chaos.
Qndoubtedly, the "right to have rights#, as ;rendt formulated it, is !lain to see% we can
recognise neither the 0uality of the human being, nor, !erha!s, that of the existent in
general, without the involvement of this right. )owever, this again says nothing about
the nature of this singular "right# or about the !ossibility of its recognition, which should
be universal and !rior $ if not su!erior $ to any determined legal institution.
It is well 'nown that the !owerlessness of international law OdroitP $ of what !asses
under this name $ or !erha!s the basic im!ossibility of such a law OdroitP >yet called
for, desired and !roclaimed by !hiloso!hical humanism for more than two centuries and
formally declared in the NU
th
Century? im!edes its effective im!lementation. =ut as
)egel says, what is well 'nown is not 'nown at all. Fhat remains here un'nown is
nothing other than the absence of foundation of right in general. This absence is not
tem!orary or contingent% it is constitutive, I would even say that it is "constituent#
of right.
Indeed, right can only exist or be guaranteed by a divine authority, whatever that may
be. In such a case, it is not a 0uestion of right, if something worthy of this name re0uires
the continuing !ossibility of recovery, transformation and reCcreation in the various
!ractical circumstances $ technical, !olitical, cultural and s!iritual $ to which it must
res!ond. =oth the history of legislated rights of the 3oman ty!e as well as the
customary rights of the ;ngloC9axon ty!e clearly show that an essential !lasticity of
right exists within the fixity that the law, no less essentially, re0uires.
=oth the interminable ascent to the "basic norm# in a !yramid of norms >Velsen? and the
recourse to an ultimate !ower to decide the exce!tion >9chmitt?, the right to exceed
right, converge towards a !assage to the limit. 3ight can only be ex!osed to such
a !assageI it is by nature the institution of what cannot be instituted, in other words of
/ustice in the nonClegal sense of the word. ;nd it is not by see'ing a categorical legal
im!erative that we can ho!e to found such a /ustice since the universal can be found
neither here nor in a Vantian im!erative, where it is reduced to the re!resentation of
"nature# as a "ty!e# or nondeterministic model of morality.
In a sense, which itself !asses on to the limit of sense, /ustice consists in rendering
/ustice. This is not "to render the /ustice#, which assumes a determined or instituted
/ustice. This is rendering to someone or something the /ustice that this !erson or thing
$ event, wor', any form of existent $ deserves.
W
=ut what does each X deserveG 5ach
X deserves an infinite recognition of its singularity. In other words, the /ustice that must
be rendered to X is a /ustice whose nature and extent or nonCnaturalness and
incommensurability only X can determine.
This /ustice must be effectively rendered, given bac', returned to any X. This /ustice
must be recognised for every X. Xustice must be done to X and yet it is not it $
whatever it is, tree or man OhommeP $ that can !roduce its due and !resent it as
"/ustice# or as "right#. This /ustice rests on the unfoundCable certainty that it is /ust that
that exists. Jn the certainty, therefore, that it is /ust that the world exists even though
nothing can /ustify its existence.
Qn/ustifiable /ustice,
,
far from founding any 'ind of rights $ as extensive as these may
be $ o!ens u! instead an infinite !ers!ective that exceeds all !ossibility of right. *rom
this infinity and to this infinity, all things and every singularity !roceed and return. This
!ers!ective must remain !resent beyond the horiLon of rightI for without an a!!eal or
a sign towards it, right can only fall bac' into its inevitable fragility, whether of
im!otence, arbitrariness, relativity or rigidity. The greatest merit of "human rights# is to
bring out all these difficulties and all of these exigencies. The aim of these two sim!le
remar's was, within their narrow limits, to draw attention to this.
XeanC(uc Nancy
Translated by Ailbert (eung
This essay will also be !ublished in% Costas <ouLinas and Conor Aearty eds, The eanings of 9uman ?ights@ The
Ahilosophy and +ocial Theory of ?ights, Cambridge Qniversity 4ress, NU+T, forthcoming.
Translator#s note% droit/s0 and loi/s0 have been consistently translated as right>s? and
law>s? res!ectively, unless otherwise indicated.
Translator#s note% "common !eo!le# is the official "e0uivalent# of hommes in the text
of the Qniversal <eclaration of )uman 3ights.
&arxC5ngels in the &anifesto.
It com!rised a 9oviet ambassador, a scholar and di!lomat from China >China, with
the hel! of the 9oviet Qnion, would soon !ass from Chiang VaiCshe' to &ao 2edong?
together with seven other members >;merican, 5nglish, Chilean, (ebanese, ;ustralian,
Canadian and *rench? who clearly all belonged to the s!ace of democratic humanism.
9ince, by definition, a 9tate cannot but !ossess its law or laws, even if they are laws
of o!!ression, ex!loitation, discrimination, and even exclusion.
Immediately, the very idea of "rendering /ustice# raises a difficulty in describing
what is needed to render it, for it involves all "things# without exce!tion, and the world
in its entirety. *rom the outset, "human# rights are exceeded.
Xac0ues <errida s!ea's in this sense of the undeconstructability of /ustice.