Human Rights, Inc.: The World Novel, Narrative Form, and International Law

HUMAN RIGHTS, INC.

JOSEPH R. SLAUGHTER

Human RIGHTS, INC.

The World Novel, Narrative Form, and International Law

Copyright © 2007 Fordham University Press

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording, or any other—except for brief quotations in printed reviews, without the prior permission of the publisher.

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Printed in the United States of America

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First edition

CONTENTS

Acknowledgments

Preamble

The Legibility of Human Rights

1.  Novel Subjects and Enabling Fictions: The Formal Articulation of International Human Rights Law

2.  Becoming Plots: Human Rights, the Bildungsroman, and the Novelization of Citizenship

3.  Normalizing Narrative Forms of Human Rights: The (Dys)Function of the Public Sphere

4.  Compulsory Development: Narrative Self-Sponsorship and the Right to Self-Determination

5.  Clefs à Roman: Reading, Writing, and International Humanitarianism

Codicil

Intimations of a Human Rights International: The Rights of Man; or What Are We [Reading] For?

Notes

Bibliography

Index

ACKNOWLEDGMENTS

The seeds of this book have been germinating for close to a decade in my research, writing, and teaching on human rights and postcolonial literature, but Human Rights, Inc. takes the form it has here in the context of the late emergence of a nascent field that is beginning to sketch the parameters of interdisciplinary study of human rights and the humanities. This means that while the book is of recent origin, I have many intellectual debts to people and institutions who have made formative contributions to the evolution of my thinking on the subject of human rights and the world novel.

The impetus for this project developed from the vibrant intellectual climate of the Ethnic and Third World Literatures program at the University of Texas at Austin. I want to thank my colleagues, teachers, and friends at UT Austin, who challenged me not only with their questions about and commentary on my early work but with their own exemplary scholarship: Ben Lindfors, Mia Carter, César Salgado, Steven Ratner, Gerry Heng, Chris Hudson, Salah Hassan, Fran Buntman, Susan Harris, Zjaleh Hajibashi, Mary Harvan, Aime Ellis, Sandy Soto, Bret Benjamin, Jennifer Wenzel, Bill Holt, David Lapides, and Andy Stracharski. Special words of thanks must be reserved for Barbara Harlow, whose unflagging commitment to rigorous and engaged teaching, reading, and writing consistently pushed me to surpass myself and remains an influential model for my present and future work.

I have benefited immensely from the incisive comments, penetrating questions, trenchant criticisms, and encouragement of my colleagues in the Department of English and Comparative Literature at Columbia University: Gayatri Chakravorty Spivak, Marianne Hirsch, David Damrosch, Gauri Viswanathan, Bruce Robbins, Farah Griffin, Marcellus Blount, Jonathan Arac, Ann Douglas, Ursula Heise, Jean Howard, David Kastan, Julie Peters, Kathy Eden, Karl Kroeber, Ed Mendelson, Maura Spiegel, David Yerkes, Julie Crawford, Ezra Tawil, and Jenny Davidson. The administrative staff in the department provided daily help: Joy Hayton, Michael Mallick, Maia Bernstein, and Isabel Thomson.

A visiting year at the University of Michigan gave me the opportunity to enter into sustained and stimulating conversation with many people while this book was in the early stages of writing. I especially want to thank Sidonie Smith, Yopie Prins, Patsy Yaeger, Jonathan Freedman, Tobin Siebers, David Halperin, Seanna Oakley, Josh Miller, Maria Cotera, Viv Soni, Miriam Ticktin, and the many other colleagues and students who listened to my public presentations and offered important complications to my ideas.

I have had the good fortune to present draft portions of this project in invited lectures and at numerous conferences (too many to name) where I have learned a great deal about my own book from my co-panelists and audience members. The participants in sessions at MLA, the American Comparative Literature Association, the Cultural Studies Association, and the African Literature Association deserve at least corporate mention. I want especially to thank the organizers of the Law and Humanities Junior Scholar Workshop for the opportunity to present at UCLA an early draft of the first chapter to a large group of smart, interdisciplinary-minded readers and auditors; in particular, I want to thank Katherine Franke, Julie Peters, Brenda Cossman, and Kirstie McClure for their insightful comments. At the ACLA, I was given the chance to present some of my ideas in a plenary session on human rights and comparative literature with Simon Gikandi, Domna Stanton, Gayatri Chakravorty Spivak, and Margaret Higonnet; that experience and the feedback from it have been invaluable. There are, of course, people who don’t fall into the obvious groupings of thanks who have been immensely helpful in various ways: Marjorie Agosín, Emily Apter, Greg Mullins, Johannes Morsink, Bert Lockwood, Costas Douzinas, Susan Andrade, the folks at YBC. If I have inevitably missed anyone, I apologize sincerely.

I have to thank en masse (which misrepresents the enormous value of their intellectual stimulation) the many students at Columbia and the universities of Michigan, Montana, and Texas who have taken my courses on human rights and literature over the years and who have consistently pushed me to pursue my questions about the crucial intersections of law, politics, and narrative wherever they may lead; they constantly humble me with their excitement and remind me why ideas and arts matter. I have had excellent research assistance and general moral support from, among others, Melanie Micir, Josh Perlman, Shirley Wong, Amiel Melnick, and Bina Gogineni.

Portions of this book originally appeared as "Enabling Fictions and Novel Subjects: The Bildungsroman and International Human Rights Law" in PMLA; they are reprinted by permission of the copyright owner, The Modern Language Association of America. I want to thank the anonymous readers, the editorial board, and the editors at PMLA for their penetrating criticisms of my submission; in particular, I want to acknowledge Susan Fraiman and Eric Wirth. I also want to thank the anonymous manuscript readers for Fordham University Press, and the production staff who have skillfully shepherded this book into print: Nick Frankovich, Kathleen O’Brien, Margaret Noonan, Loomis Mayer, and Katie Sweeney. I want to thank William Kentridge for permission to reproduce Blue Head for the book’s cover. I especially want to thank Helen Tartar for her immediate, enthusiastic, and continued belief in this project.

Academic debts are in some ways easy to acknowledge, since it is a relatively straightforward matter of recognizing the work of others; familial debts, because they are broader, deeper, richer, and more enduring, are harder to account for. I’ve been lucky to have a seemingly bottomless supply of moral, intellectual, and material support as well as inspiration from my family, all of whom have converged lately to find ourselves working, in our own ways and in our own fields, on similar issues of social justice. I can’t thank them enough, and I want to let them know how much I love and admire them: Amy Slaughter, Kathleen McKenzie, William Slaughter, David Laffitte, Jeanie Slaughter, Richard and Louise Bell.

Finally, this book would have been impossible without the critical and emotional support of Jenny Wenzel. My constant conspirator and companion, Jenny has been my closest ear and keenest eye, my best reader and my harshest critic. Although there are certainly sentences (perhaps pages) in this book that you would still push me to express better, its quality is a measure not only of your exacting standards but of your sustaining faith in the project and my capacity to see it through; thank you . . .

HUMAN RIGHTS, INC.

PREAMBLE

The Legibility of Human Rights

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, . . .

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

—PREAMBLE, Universal Declaration of Human Rights, 1948

All that this document requires therefore is simply that it be rendered in all the accessible languages of all societies; then let every sentient member of society weigh its claims against the excuses of dictatorships, intolerance, [and] discrimination.

—WOLE SOYINKA, Nigerian Nobel

Laureate for Literature

Everyone knows, or should know, why human rights are important, writes John Humphrey, Canadian legal scholar and first director of the United Nations Human Rights Division, in a commemorative essay on the fortieth anniversary of the adoption of the Universal Declaration of Human Rights (UDHR) by the UN General Assembly on 10 December 1948.¹ Almost unfailingly, books about international human rights open with one of two seemingly contradictory grandiloquent claims about their importance. The triumphalist version proclaims that human rights law and discourse have at last achieved some form of worldwide normativeness, and that we are now living in the Age of Human Rights. The cautionary version soberly reminds us of the continued poignancy of human rights by noting the global increase of human rights violations over the course of the twentieth century. The difference between the two claims is not a matter of historical accuracy; both reflect facets of the contemporary international condition of human rights. Human rights discourse and law have indeed achieved rhetorical, juridical, and political hegemony in international affairs, but such triumphalist narratives about the virtue of human rights extol legal normalization itself as a sign of humanity’s advancement rather than as a probable symptom of its continued benightedness.² Human rights thus triumph in their apparent banality, but this progress narrative also tends to disregard the fact that human rights violations—like the international law designed to prevent them—have become increasingly systematic, corporate, and institutional. Even more troubling, the banalization of human rights means that violations are often committed in the Orwellian name of human rights themselves, cloaked in the palliative rhetoric of humanitarian intervention, the chivalric defense of women and children, the liberalization of free markets, the capitalist promise of equal consumerist opportunity, the emancipatory causes of freedom and democracy, etc. Thus the discursive victory of human rights means that ours is at once the Age of Human Rights and the Age of Human Rights Abuse.

Humphrey obliquely invokes both the triumphalist and the monitory versions of such claims in five deceptively simple words: everyone knows, or should know. His article is not simply a paean to the Universal Declaration; rather, his ironic opening words subtly suggest a number of paradoxes and anxieties about human rights that characterize the articulation of universal principles generally and the legislation of human rights in particular. This referential discrepancy arises from a historical disconnect between the world that the law imagines, or images, in principle and the one that it addresses in fact—between the ideal and the real. Human rights speak the language of universalism and absolutes: All human beings are born free and equal in dignity and rights (UDHR Article 1); Everyone has the right to recognition everywhere as a person before the law (Article 6); Everyone has duties to the community in which alone the free and full development of his personality is possible (Article 29). Human rights are ostensibly inherent and inalienable, deducible, as French philosopher and UNESCO consultant on the UDHR, Jacques Maritain, wrote in 1943, "from the simple fact that man is man."³ Despite the language of simplicity and obviousness that pervades human rights commentary, not every man recognizes (or is in a position to recognize) that simple fact in a concrete, practicable, or justiciable way. Humphrey’s paradox intimates the basic historical and rhetorical condition of contemporary human rights law, which necessarily presupposes the universality of the tautological, commonsense principles it aspires to universalize to make Maritain’s man man. This book will argue that the gap between what everyone knows and what everyone should know poses human rights as a question of both literacy and legislation, as much matters of literature as of law.

Human Rights, Inc. is a book about the legibility of human rights; about the literary, political, and juridical effects of transcribing into international legal conventions what the ancient Greeks regarded as unwritten law; about the tensions and gap between what everyone knows and what everyone should know; about how norms of legal obviousness manifest in literary forms; and about how, in an era of intense globalization, those legal and literary forms cooperate to disseminate and legitimate the norms of human rights, to make each other’s common sense legible and compelling. More specifically, this book is about the sociocultural, formal, historical, and ideological conjunctions between human rights and the novel, particularly the coming-of-age genre, the Bildungsroman, whose plot we could provisionally gloss as the didactic story of an individual who is socialized in the process of learning for oneself what everyone else (including the reader) presumably already knows.

This book elaborates the conceptual vocabulary, deep narrative grammar, and humanist social vision that human rights law shares with the Bildungsroman in their cooperative efforts to imagine, normalize, and realize what the Universal Declaration and early theorists of the novel call the free and full development of the human personality. This goal is part of the UDHR’s larger intention to facilitate the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want (Preamble). Tracking the formula of free and full human personality development in literature and the law—and in literary and legal theory—allows me to excavate a neglected discursive genealogy of human rights that intersects with German idealism and its particular nomination of the bourgeois white male citizen to universal subject. This book traces an ideological confluence between the technologies of the novel and the law that manifests in a common vocabulary and transitive grammar of human personality development, which are themselves related strains of a more general, hegemonic discourse of development. The novel genre and liberal human rights discourse are more than coincidentally, or casually, interconnected. Seen through the figure and formula of human personality development central to both the Bildungsroman and human rights, their shared assumptions and imbrications emerge to show clearly their historical, formal, and ideological interdependencies. They are mutually enabling fictions: each projects an image of the human personality that ratifies the other’s idealistic visions of the proper relations between the individual and society and the normative career of free and full human personality development.

As sweeping as these claims may seem, this book is in fact rather narrowly focused on the shared image of the human person and its development in the Bildungsroman and in human rights legislation. The Bildungsroman is not the only cultural form that cooperates with human rights, nor is it the only form through which human rights may be imagined or the literary image of the human rights person might be projected.⁴ Other cultural forms certainly interact with, and likely make imaginable alternative visions of, human rights, but the Bildungsroman is exemplary in the degree to which its conventions overlap with the image of human personality development articulated by the law. Human rights law and the Bildungsroman are consubstantial and mutually reinforcing, but their sociocultural and historical alliance is neither unproblematic nor uncomplicated. Both human rights and the novel have been part of the engine and freight of Western colonialism and (neo)imperialism over the past two centuries. Like the cultural institution of the novel, human rights law legitimates particular forms and subjects of history and subjugates or erases others.⁵ Thus this book’s approach is Janus-faced: Beyond elaborating the sociohistorical cooperation and formal intersections of the Bildungsroman and human rights as extensions of the Enlightenment project to modernize, normalize, and civilize (or, perhaps better, civicize) the individual and society, it also examines the problems that such complicity creates, particularly with the Bildungsroman’s ambivalent capacity to disseminate and naturalize not only the norms of human rights but also the paradoxical practices, prejudices, and exclusions codified in the law. Some of these complications are forecast in the notion of enabling fiction that I adapt from Rita Felski’s feminist critique of the Habermasian liberal public sphere—that vaunted realm of democratic group-will formation whose ideal of a free discursive space that equalizes all participants . . . engenders a sense of collective identity but is achieved only by obscuring actual material inequalities and political antagonisms among its participants.⁶

Human rights’ enabling fiction expresses certain laudable aspirations in its projection of an egalitarian imaginary, but the revolutionary rhetoric of liberty, equality, and fraternity obscures the character of its implementation in practices and discourses bearing new forms of inequality as it becomes the hegemonic common sense of liberal-democratic ideology.⁷ Yet the discourse of common sense becomes available for appropriation and transformative rearticulation of the egalitarian imaginary by historically marginalized subjects (e.g., women and members of racial, religious, sexual, and class minorities) not comprehended practically within its original enabling fiction. That is, the projection of a normative egalitarian imaginary not only sets the terms and limits of universality’s constituency, it makes possible nonhegemonic rearticulations of universality’s compass. Thus I am interested not only in the imbrications and normativeness of the forms, institutions, and structures that literature and law project to imagine an international social order of human rights based on the equality and dignity of the human personality, but also in the problems their complicity and in the ruptures, paradoxes, impossible figures, and bizarre temporalities that emerge from human rights’ enabling (and necessary) fiction that man (sic) is man (sic).

Therefore this book does not offer a euphoric celebration of human rights as just the thing that the world needs now; nor a defense of the sentimental power of literature to make us see the lives of the different with . . . involvement and sympathetic understanding, to cultivat[e] our humanity and the civic habits necessary for world citizenship, as Martha Nussbaum proposes in phrases traceable to the Stoic traditions of cosmopolitanism and the German idealist formulations of Bildung—the free development of the human passions . . . [that] lead[s] to a harmonious personality and to harmonious co-operation between free men.⁸ Nonetheless, I share a cautious critical commitment to those humanist ideals and a qualified belief that everyone should know why human rights are important, that we do need a little human rights just now, and that literature does have a capacity to minister to that need. Nobel Prize-winning Nigerian poet, playwright, and social critic, Wole Soyinka, introduced the publication of a 1994 Yoruba translation of the UDHR with the earnest claim that All that this document requires therefore is simply that it be rendered in all the accessible languages of all societies. In Soyinka’s optimistic appraisal, translation alone is all that is needed to release the hegemonizing force of common sense, to transform what everyone should know into what everyone does know. In most of these rhetorical appeals to common sense, both the human and the rights belonging to it are presumed to be known in advance of their articulation in language and their transcription (or translation) into legal conventions. But the legislative history and practice of human rights shows that to secure their universal and effective recognition and observance (UDHR) is not just a simple matter of writing down the unwritten ethereal principles of obviousness;⁹ rather, it requires the collaboration of writers like Soyinka and the cooperation, or complicity, of literary and cultural forms to make the common sense of human rights norms both legible and legislatable, imaginable and articulable.

Common Assumptions and Crucial Concepts: Reading Across Disciplines

Writing about what everyone already knows presents a challenge, and in many ways my two primary topics—human rights and the Bildungsroman—could not be better known. Indeed, it seems likely that everyone already knows what human rights, dignity, and personality are, even if few share the dominant technical and institutional vocabulary in which they are articulated by international law. Similarly, every reader of literature surely knows a coming-of-age story when they see it, even if few share the critical and theoretical vocabulary of a Bildungsroman specialist. The general conceptual language of human rights and the Bildungsroman seem to be ubiquitous in our conversations about society, law, and literature. But there is something peculiar about these two discourses; as I argue throughout this book, both human rights law and the Bildungsroman developed as technologies for making common sense commonsensical, for making what is already known effective. This confluence of form and function—and the ubiquity of the two discursive technologies—makes it especially important to question what we presumably already know, to examine how what we know comes to be taken for granted (of how our assumptions become assumable), and to track the operation of the obvious and its manifestation in particular forms and functions.

I am interested in the Bildungsroman as the generic name of a kind of literary social work—a function (or practice) that articulates certain social relations—rather than as the name of a typologically consistent literary artifact that is imagined to have remained uniform since its fabled emergence in eighteenth-century Germany. Strict typological studies of the genre claim that, far from being a common and constant literary form—a coherent idealist strain of the realist novel—the Bildungsroman was a historical phantom of which few true examples ever existed, a retrospective invention of nineteenth-century historicist scholars.¹⁰ But if, as Roberto Schwarz has argued, forms are the abstract of specific social relations, then we might see the Bildungsroman genre as a novelistic correlative to the socializing project of human rights law that, nonetheless, has certain generalizable formal manifestations, literary codes, and conventional tendencies that link many eighteenth- and nineteenth-century European novels with their contemporary post-colonial counterparts.¹¹ Examining the genre’s social function helps avoid the pitfalls of speaking about the imbrications of literature and the law as a series of unilateral (or even bilateral) causal relations; from the perspective of their cooperative social work, the correspondences and interdependencies of the Bildungsroman and human rights law amount to a network of conceptual, lexical, and grammatical intersections within the larger discourse of human development and emancipation.

I do not assume that all of my readers are familiar with the disciplinary languages and approaches of literary and legal studies that I employ, and so I want to make clear some of the assumptions that underwrite my analysis and critical methodology. I take for granted—although I aim to show how—that law and literature are discursive regimes that constitute and regulate, imagine and test, kinds of subjects, subjectivities, and social formations; that they are machines for producing [and governing] subjectivity and social relations (to modify Fredric Jameson’s characterization of the Bildungsroman).¹² In the fields of legal studies and political science, Wendy Brown formulates this idea as a conclusion about human rights, which, she argues, produce and regulate the subjects to whom they are assigned.¹³ This constitutive thesis—a staple of analysis for Critical Legal Studies, Critical Race Theory, Feminist Jurisprudence, and Legal Storytelling practitioners¹⁴—recognizes that the law is not simply a reactive construct reflecting material conditions and social practices that exist prior to the law; rather, the law is itself an interventionist, positive force that call[s] into being, and enable[s], particular forms and expressions of personhood—as well as the social relations in which those forms find expression—that it pretends merely to describe.¹⁵ In the preambular language of the UDHR, the rule of [international] law seeks as much to promote as to protect the human rights it enumerates. Beginning with the idea that the law constitutes what it regulates, I explore constitution and regulation as they operate in legal and literary forms and formations to incorporate the kinds of humans that can serve as subjects of rights.

The constitutive thesis is indebted to Michel Foucault’s insights about the discursive workings of power and the constitution of the modern individual subject, which he understands to be an effect of power, and at the same time, or more precisely to the extent to which it is that effect, it is the element of its articulation.¹⁶ Most of Foucault’s work attempts to describe the epistemic and social transformation of power during Europe’s transition to modernity, when the feudal authority of the sovereign (King, God, Father, etc.) gave way to a dissemination of personal sovereignty in the individualized, disciplinary routines of self-regulation that are constitutive of the modern subject itself. Foucault’s consistent emphasis on the creative, rather than the overtly coercive, dynamics of power in some ways corrects blindnesses in Louis Althusser’s work, but it nonetheless derives its explanatory force from the double meaning of subject that informs Althusser’s theory of interpellation: In the ordinary use of the term, subject in fact means: (1) a free subjectivity, a centre of initiatives, author of and responsible for its actions; (2) a subjected being, who submits to a higher authority, and is therefore stripped of all freedom except that of freely accepting his submission.¹⁷ For Althusser, this double meaning explains and extends the paradox of the modern civil subject who, as Jean-Jacques Rousseau provocatively declared, is forced to be free: "The individual is interpellated as a (free) subject in order that he shall submit freely to the commandments of the Subject. In terms of human rights law, as I show explicitly in chapter 3, to become a subject (a freely and fully developed person) within a particular sociopolitical formation is to be capable of fully exercising the rights enabled by that formation, which entails, at the same time, a free" submission to its norms.

The movement of the subject from pure subjection to self-regulation describes the plot trajectory of the dominant transition narrative of modernization, which both the Bildungsroman and human rights law take for granted and intensify in their progressive visions of human personality development. This story of modernization is typically depicted as the course of human emancipation—for humanity in general and repeated in the life of each individual—that follows the path of Kant’s Enlightenment, in which mankind’s release from its self-incurred immaturity . . . is nearly inevitable, if only it is granted freedom.¹⁸ It has become natural to think of individual and collective human development in terms of this progress narrative of liberation; even the multiple definitions for the word freedom in the Oxford English Dictionary are plotted (the OED’s word) teleologically, to track the development of one meaning from another, as the individual’s progressive liberation from a malignant regulatory regime and its incorporation into a benign one:¹⁹

freedom: 1. a. Exemption or release from slavery or imprisonment; personal liberty. . . . 2. Exemption from arbitrary, despotic, or autocratic control; independence; civil liberty. . . . 4. a. The state of being able to act without hindrance or restraint, liberty of action. . . . 13. The right of participating in the privileges attached to: a. membership of a company or trade; b. citizenship of a town or city.

Thus, in its definitions for freedom, the OED tells the short story of liberation that both human rights and the Bildungsroman amplify, plotting a process of incorporation by which the individual is constituted and regulated as a creature of freedom, emancipated from the pained and minimally sensate existence of the slave to the burdened individuality of the responsible and encumbered freedperson,²⁰ a creature capable of bearing rights and duties—in a word, a person.

The homologue in literary studies to the jurisprudential constitutive thesis underpins most sociological accounts of genre, which this book also offers. Just as the law is not simply a reactive institution that codifies existing social relations, literature is not simply a medium for re-presenting those formations. In his influential essay, Literature as Equipment for Living (1938), Kenneth Burke outlined a method for sociological criticism that would analyze how a work of art (his literary atom was the proverb, a form and semiotic unit quite similar to the legal tautology) "singles out a pattern of experience that is sufficiently representative of our social structure, that recurs sufficiently often mutatis mutandis, for people to ‘need a word for it’ and to adopt an attitude towards it."²¹ Burke suggested that literature provides a shorthand for things that everyone already knows, giving a name to common sense and experience. Raymond Williams complicated the common perception that literature merely reflects life, arguing that cultural forms are not simply derivative from social formations: a formal innovation is a true and integral element of [social] changes themselves.²² To be explicit, my general assumption about literary forms is that genres emerge and become conventional (both publicly common and formally regular) to the extent that they make collectively legible—if sometimes distorted—both actual and possible (desirable and undesirable) social formations and relations. In other words, literary and cultural forms (like legal forms) do not simply reflect the social world. They in some ways also constitute and regulate it when they respond to . . . [and] resolve what Margaret Cohen (after Pierre Bourdieu) calls the space of possibles;²³ they help shape how the social order and its subjects are imagined, articulated, and effected. In this sense, my project shares Jameson’s disregard for the convenient working distinction between cultural texts that are social and political and those that are not.²⁴ Neither does it subscribe to the common distinction between literature and law that understands the former merely to describe what (and while) the latter does. I study human rights and literature as discourses, not as practices per se—although I believe my analysis has implications for human rights practice, if only because discourse is a field of possibilities within which any practice is undertaken. Given their mutual discursive engagements with society, I take it for granted that the social work of literature and the cultural work of law are interdependent and interrelated,²⁵ and elucidating the particular ways contemporary human rights law and the Bildungsroman make human rights legible is the aim of this book. My argument that law favors and enables some narrative plots and literary genres over others might be less surprising to some of my readers than my complementary claim that literature has historically favored and enabled some formulations of the law.

Human Rights Paradoxes: The Nonsense in Common Sense

Human rights have ‘only paradoxes to offer’; their energy comes from their aporetic nature.

—COSTAS DOUZINAS, The End of Human Rights

If human rights law represents the transcription of precepts about the human personality that everyone already knows, then the act of knowing (like that of legislating) is disappointing in its feeble ability to translate knowledge into outrage, action, or even acknowledgment.²⁶ We know, as I write this, that the government-sponsored Janjaweed militias are conducting genocide against black African residents in the Darfur region of Sudan, but not only do we do little about it, we—as individuals, nations, and United Nations—mostly refuse to speak its proper name, to convert the knowledge of pogroms into official, and actionable, acknowledgment of genocide. We knew that the Taliban were a violent and repressive regime, especially toward women, but we did not acknowledge that fact until we needed a humanitarian rationale for prosecuting the so-called War on Terror in Afghanistan. More perversely, we Americans somehow manage collectively not to know that we are torturing (or outsourcing the torture of) enemy combatants—a pseudo-legal designation that places the individual outside the realm of legal personality and rights—at Guantánamo Bay and elsewhere. Even when everyone knows what they should know, most people clearly do not react as human rights organizations would like them to. The message . . . moves them—but not necessarily into doing what they ‘should.’²⁷ The knowledge paradox that Cohen and Seu analyze in their study of the reception and perception of human rights appeals is just one of many to which human rights seem perpetually disposed.

Paradox is the rhetorical form of self-contradiction that challenges received opinion and disturbs the hermeticism of tautological self-evidence to report that, despite appearances, man may not in all cases be man. Paradox publicizes the nonsense in common sense, the unorthodox within orthodoxy. The whole field of human rights is characterised by paradoxes and aporias,²⁸ observes legal scholar Costas Douzinas, but perhaps the most influential and trenchant paradox was identified in Hannah Arendt’s study of the condition of statelessness in Europe between the two World Wars:

If a human being loses his political status, he should, according to the implications of the inborn and inalienable rights of man, come under exactly the situation for which the declarations of such general rights provided. Actually, the opposite is the case. It seems that a man who is nothing but a man has lost the very qualities which make it possible for other people to treat him as a fellow-man.²⁹

As Edmund Burke did before her, Arendt concludes that human rights are, in practice if not in principle, not the natural rights of humans qua humans but the positive rights of citizens. Karl Marx identified this condition a century earlier as the consequence of the eighteenth-century bourgeois revolutionary declarations of rights and legislated in the very title of the French Déclaration des Droits de l’Homme et du Citoyen, which, he argued, bifurcated and reduc[ed] man, on the one hand, to a member of civil society, to an egoistic, independent individual, and, on the other hand, to a citizen, a juridical person.³⁰

In the tradition of Arendt, Marx, and Burke, human rights critics and advocates alike have made an industry of exposing such paradoxes to challenge the legitimacy and egalitarian imaginary of human rights, and to publicize the discrepancy between their universalist rhetoric and actual practice. Such efforts to deploy the politics of shame by, and in behalf of, those suffering the paradoxes of rights are clearly necessary, but they are also not sufficient or reliable in eliciting their desired ameliorative response.³¹ These strategies often underappreciate how inequality has defined the human rights regime and how the regime’s discourse, and the Bildungsroman form that helps to naturalize it, tends to normalize paradox. As politically strategic as the use of embarrassment may be, such efforts tend to ignore or forget the degree to which the meaning and efficacy of human rights have historically depended upon specific (though changing) paradoxical "exclusions [that] are constitutive of the ‘neutral’ universality of human rights," as Slavoj Žižek has noted.³² Instead of merely exposing the hypocrisy of rights, our analyses (both literary and sociopolitical) need to go beyond the point at which this revelation is expected to shame governments or embarrass human rights discourse itself; we need to ask, with Wendy Brown,

How might paradox gain political richness when it is understood as affirming the impossibility of justice in the present and as articulating the conditions and contours of justice in the future? How might attention to paradox help formulate a political struggle for rights in which they are conceived . . . as articulating through their instantiation what equality and freedom might consist in that exceeds them? In other words, how might the paradoxical elements of the struggle for rights in an emancipatory context articulate a field of justice beyond ‘that which we cannot not want?’³³

From the rhetorical force of paradox, Brown’s questions distill a future-oriented human rights project that seeks what is beyond the contradictory conditions of (in)justice now. If we recognize paradox’s figurative role in human rights instead of treating it as a shameful limitation of human rights discourse and practice, then we can attend to its productive possibilities. Such a project must consider not only the content of human rights law and discourse but also its logical and rhetorical forms—from which, as I show, the content is in fact inseparable—as well as the cultural forms of common sense that cooperate to sustain and substantiate the law’s modes of production. Recognizing that forms and formations matter in the human rights project, we can begin to respond to Giorgio Agamben’s provocation: "What is the form of life . . . that corresponds to the form of law?"³⁴

Forms of Law: Positivizing Nature

In declaring itself to be a statement of common understanding (what everyone knows) that also represents a common standard of achievement for all peoples and all nations (what everyone should know), the UDHR formalized Humphrey’s paradox in the text of human rights law itself. Rhetorically, human rights are an inventory of axioms about what it means to be human that everyone presumably already knows; practically, it is necessary to admit that, at the very best, they constitute what everyone should know. This tension between a given universality and a sociocultural particularity to be universalized sustains the textual logic of international human rights law, which announces itself simultaneously as a speech act of recognition—simply an acknowledgment of ostensibly natural truths about the human—and as a speech act of declaration that intends to effect the right of everyone to recognition everywhere as a person before the law (UDHR). The rights of man, observes Claude Lefort, are declared, and they are declared as rights that belong to man; but, at the same time, man appears through his representatives as the being whose essence it is to declare his rights . . . . Rights are not simply the object of a declaration, it is their essence to be declared.³⁵ Although human rights are presupposed to be self-evident, they must be publicly and officially articulated as such, named as self-evident to be made self-evident. As I elaborate in chapter 1, contemporary human rights law is a generic hybrid: the legislative act of naming what should not be necessary to name positivizes nature, formally positioning international human rights law between natural law (transcendental precepts that presumably go without saying and whose classical literary heroine is Sophocles’ Antigone) and positive law (the civil code that obsessively recites its sovereign commandments and whose classical villain is Creon).

The potted history of modern human rights, repeated by the drafters of the UDHR themselves, plots the story of their legislation as an evolutionary process that begins with the revolutionary declarations of the European Enlightenment and culminates in the contemporary international human rights regime. Indeed, the UDHR implicitly evokes this progress narrative in its anticipation of humankind’s triumph over barbarous acts which have outraged the conscience of mankind with the promotion of universal respect for and observance of human rights and fundamental freedoms. However, written in the aftermath of World War II, when faith in the Enlightenment faced its deepest crisis in confidence, the rhetoric of the declaration betrays an anxiety about the confident teleology of civilization.³⁶ The recent experience of the Holocaust and the two World Wars provided the most spectacular illustration of the failures of the Enlightenment in the very places where it was said to have been achieved. The UDHR is a tacit acknowledgment of those failures, even as it recuperates from the natural law tradition what Costas Douzinas (after Ernst Bloch) calls marvelously its promise of the ‘not yet,’ the promise of an Enlightenment still to come.³⁷

The spiritual debt of twentieth-century human rights to the eighteenth-century revolutionary declarations is often converted, however, into a singular line of direct descent. Czech jurist Karel Vasak’s influential reading of the history of human rights organizes their development into three generations that align with the three normative themes of the French Revolution: "the first generation of civil and political rights (liberté); the second generation of economic, social, and cultural rights (égalité); and the third generation of newly called solidarity rights (fraternité)."³⁸ Vasak’s heuristic has been mythologized to describe a smooth evolution of human rights legislation from the eighteenth to the twentieth centuries; it has also regularly been invoked to celebrate the UN’s legislative activity as a process of consensus-building, and to naturalize, as part of a telos of human progress, the West’s prioritization of civil and political rights over social, economic, cultural, environmental, and solidarity rights. Although the generational schema comprehends certain international legislative trends, it is misleading when used to plot a neat, Eurocentric genealogy of contemporary human rights, or to intimate that civil and political rights are (and always have been) divisible from and more fundamental than social, cultural, and economic rights.

As I illustrate in the first two chapters of this book, there are at least as many conceptual, political, historical, and formal differences as there are similarities between eighteenth- and twentieth-century human rights legislation. To keep these differences in view, I maintain Indian legal scholar Upendra Baxi’s important distinction between modern human rights (those articulated in the language of natural law after the American and French revolutions) and contemporary human rights (those positivized in international legal instruments by the UN and regional organizations after World War II).³⁹ Baxi’s critiques offer important correctives to the myopic, Eurocentric view of [the] authorship of human rights by appropriately recognizing the creationist role that resistance to power has historically played in the legislation of human rights—both in Europe in the eighteenth century and after WWII, and in the Third World’s struggles against European imperialism.⁴⁰ Indeed, while the aspirational tone of the UDHR was penned by a UN that was dominated by imperial and colonial European powers, subsequent international declarations and covenants reflect the crucial contributions and priorities of newly independent states—states that comprised at least a nominal majority at the UN by the early 1960s, soon after the Third World delegations successfully pressed for the adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) that formally closed the modern era of high colonialism. When I use the phrase human rights, I do not imagine that discourse of negative liberty, promoted by Michael Ignatieff, which has been largely unresponsive to alternative visions of rights.⁴¹ Thus, throughout this book, I treat contemporary human rights law neither as a Eurocentric monolith nor as a romanticized jurisprudence of the oppressed; rather, I treat it as a complex of contested—and often contradictory—principles still in formation, whose fissures, discontinuities, and inconsistencies are both the source of its continued emancipatory potential and the evidence for the strong possibility that, when members of the international community contemplated human rights, everyone had something else in mind.

Forms of Life: Incorporating the Human Rights Person(ality)

The declaration would pave the way to a new era of international solidarity, because the basis of rights was neither the State nor the individual, but the social human being, participating in social life, and striving for national and international co-operation.

—LAKSHMI MENON, Indian delegate to the UN, 1948

The drafters of the UDHR took it for granted that their subject of central concern was the human person, and that the law should stipulate the fundamental civil, social, and political protections and privileges necessary for the free and full development of the human personality. Such a focus may seem unremarkable, commonsensical even, but in a document in which the nuances of every word were debated and revised by the delegations of fifty-eight states over the course of three years of drafting, the formula of personality development remains remarkably stable. I examine the reasons for, as well as the implications and aporias of, this consensus in considerable detail in the first chapter, but I can provisionally note that the language of personality development had a popular and academic cosmopolitan currency among lawyers, literati, and others committed to an international bill of rights in the mid-1940s that perhaps it does not enjoy today. This book elaborates the image of the person⁴²—the moral creature capable of bearing rights and duties—projected by both law and literature. Person is a literary and legal moral category derived from two distinct, though related, Roman traditions: the theatrical (in which persona named the mask worn by an actor) and the juridical (where persona denoted the capacity of a legal subject to be represented, or to make representations, within the legal system).⁴³ In the first two chapters, I explain that personality is not the thick, multi-faceted differential category of individual identity and self-expression contemplated in psychology and popular culture (although it inevitably has something to do with those). It is not the name of individual, irreducible difference but of sameness, the collection of common modalities of the human being’s extension into the civil and social order. Personality is a technical term that means the quality of being equal before the law—to put it tautologically, the quality of being a person. It is the basis of the law’s symmetrical disposition to each human being. Thus, person is the legal vehicle of human dignity, what is common to each of us as social human beings and as theoretically equal subjects—subjects of legal and literary interest like any other, possessing equal capacity to be represented within the law and literature.

Modern eighteenth-century human rights law articulated an image of the person as a natural moral creature, whose insuperable dignity followed from the Kantian supposition that human beings were inherently rational and therefore inherently dignified: "rational beings are called persons because their nature already marks them out as an end in itself, that is, as something that may not be used merely as a means."⁴⁴ Person is the legal category that gives abstract moral dignity its justiciable effect and social consequence.⁴⁵ Contemporary human rights law draws upon this tradition when it reaffirms its faith . . . in the dignity and worth of the human person (UDHR), but it also implicitly engages the nineteenth-century positivist legal tradition that vested the business corporation with legal personality.⁴⁶ Thus, person is a legal abstraction,⁴⁷ an amalgam of civil, moral, social, and political capacities that may mean, as John Dewey complained in 1926, whatever the law makes it mean; . . . [it] might be used simply as a synonym for a right-and-duty-bearing unit. Any such unit would be a person; such a statement would be truistic, tautological. Hence it would convey no implications, except that the unit has those rights and duties which the courts find it to have.⁴⁸ While the person may exist as a legal fiction, an entity only in contemplation of the law, legislation is not the whole story;⁴⁹ person also signifies whatever culture makes it signify.

The subtle displacement of the human being by the person in the UDHR all but eliminated human as a substantive noun from the text of human rights law, as a proper grammatical subject of universal human rights.⁵⁰ Indeed, in the postwar, proto–Cold War debates about the shape and scope of human rights leading to the UDHR, the term person became a kind of mask for the human, a rhetorical feint for not naming the human itself as a question. In the 1980s and 90s the legal image of the person resurfaced as the central point of conflict in the cultural relativist–universalist debates, both sides of which proffered, for opposing strategic reasons, an interpretation of the human rights person as a libertarian . . . atomized individual . . . possessed of certain inalienable rights by nature that is foreign to traditional [communitarian and/or authoritarian] cultures.⁵¹ But as I demonstrate throughout this book, the image of the unitary, monadic, self-possessed individual is a strawman (at least within the texts of international law), the product largely of a Eurocentric political and economic agenda (and practice) that reads contemporary human rights law through the conceptual lens of its eighteenth-century predecessors. Certainly there remains an individualist bias in contemporary law that deserves our continued critique, but its image of the person is not merely a rehearsal of its self-sufficient Enlightenment cousin, nor is it fully commensurate or immediately compatible with current Euro-American sociocultural formations. To some degree, the person of human rights