Australian Journal of Human Rights

ISSN: 1323-238X (Print) 2573-573X (Online) Journal homepage: http://www.tandfonline.com/loi/rjhu20

On the genealogy of human rights: an essay on

nostalgia nostalgia

Ben Golder

To cite this article: Ben Golder (2016) On the genealogy of human rights: an
essay on nostalgia nostalgia, Australian Journal of Human Rights, 22:2, 17-36, DOI:
10.1080/1323238X.2016.11910940

To link to this article: https://doi.org/10.1080/1323238X.2016.11910940

Published online: 30 Oct 2017.

Submit your article to this journal

Article views: 6

View related articles

View Crossmark data

Full Terms & Conditions of access and use can be found at

http://www.tandfonline.com/action/journalInformation?journalCode=rjhu20
Volume 22(2) On the genealogy of human rights 17

----~-
Articles

On the genealogy of human rights: an essay

on nostalgia nostalgia
Ben Golder*
This arlicle engages with the special issue's theme of human rights and utopia
through examining recent scholarship on the history of human rights. Taking
Samuel Moyn's The Last Utopia as an example of a genealogical approach to
writing the history of human rights, the arlicle argues that such an approach
provides a helpful and productive political orientation towards the present that
consists in an ambivalent attitude towards nostalgia (and utopia).

Keywords: human rights, genealogy, utopia, nostalgia, Samuel Moyn, Michel

Foucault

Introduction
'[T]here is a struggle for the soul of the human rights movement', wrote the
international lawyer Philip Alston in 2012, 'and it is being waged in large part
through the proxy of genealogy' (2013, 2077). Alston's beguiling statement provides
the starting point for my article. He is undoubtedly right that much recent (and
continuing) contestation over the meaning, the political limitations, and the future
trajectory of human rights has been conducted via historical argument about where
and when human rights emerged. But what might it mean for such inevitably
political debates to be conducted through the proxy of history? Is history really a
proxy for the political analysis, or perhaps even the critique, of human rights? If
so, is it a faithful and reliable proxy or does something happen in the political or
disciplinary transfer to history? And if the historico-political critique of human rights
really is a particular style and modality of critique, then what flows from this? This
article is an attempt to reckon with some of these questions and, in the process, to
try to account for some of the dimensions and the potential of the historical turn in
the critique of human rights.

Faculty of Law, UNSW Australia. Email: b.golder@unsw.edu.au.

18 Australian Journal of Human Rights 2016

There is much to be said about this particular topic, some of which I have endeavoured
to say in that scholarly utopia of' elsewhere', 1 but what I want to focus on in this article
is the question of nostalgia. My suggestion, pursued throughout the following pages,
is that a certain kind of historical critique of human rights allows us simultaneously
to surmount some of the problems of nostalgia while not entirely relinquishing the
political (indeed, even utopian) possibilities of nostalgia 'itself'. The argument that
follows hence relies upon a critical doubling of the idea of nostalgia. On my reading,
the productive political possibilities disclosed by a certain type of critical historical
writing about human rights are to be found precisely in this complicated negotiation
that it encourages between different concepts of nostalgia. But before progressing
much further, it is clear that some conceptual and methodological clarification is
needed on questions of history and genealogy. The 'certain kind of historical critique'
with which I am concerned is what I would call (but not necessarily what Alston
would call, I suspect) genealogy. It is on behalf of the critical, political potential of a
genealogy of human rights that this article is written, so I start in the next section with
an explanation of what I take genealogy to mean and how I think it differs from other
ways of writing the history of human rights. In order to help me make these kinds
of distinctions, I provide an example of a recent genealogy of human rights: Samuel
Moyn's book The Last Utopia: Human Rights in History (2010). Moyn's book is a fertile
example of how the genre of genealogy can help to generate productive political
questions for human rights and, in the subsequent sections of this article, the political
question that I use it to pose is how to negotiate (the two) nostalgia(s). But before
coming to nostalgia, let me start by sketching an understanding of the genealogical
method and how it functions in the context of human rights.

What is a genealogy of human rights?

It can be easily admitted that genealogy is a form of history-writing, but what kind
of history-writing is it? There is a certain irony in seeking to define in tightly drawn,
stipulative, 'ideal type' terms a tradition of historical writing that, in the hands of
its most accomplished practitioners (in my view, Friedrich Nietzsche and Michel
Foucault), functions less as a manual about how to write 'good' or factually correct
history than as a kind of oppositional ethos; rhetorical, affective and performative as
much as it is, strictly speaking, 'methodological' (Saar 2002, 231). Things are further
complicated by the fact that the term circulates widely in contemporary intellectual
work, often across disciplines, and its meaning is accordingly not always precise
(the philosopher Colin Koopman wryly observes that '[i]t sometimes seems as if
anyone who does history and is not themselves a historian is eager to describe their
work as a "genealogy"') (2013, 5). Moreover, among those who do, consciously

See Golder 2016.

Volume 22(2) On the genealogy of human rights 19

and self-reflectively, use the term to describe their own or others' work, there is a
great discrepancy in how they conceive it as operating. A full accounting of these
differences would take me well beyond the task of the current article, but suffice it to
say that a genealogy of genealogists would have to take stock not only of Nietzsche
and of Foucault but also of thinkers such as Bernard Williams, Raymond Geuss,
Quentin Skinner and Alasdair Maclntyre.2

Leaving to one side the methodological differences between these figures, it is

perhaps easiest to frame my understanding of genealogy by starting with a basic
yet heuristic distinction between a lay, common-sense deployment of the term and a
critical, revisionist deployment of the term more often encountered in philosophical
work. The Oxford English Dictionary, in defining genealogy, captures the meaning
of this first, lay, sense well: '1. An account of a person's descent from an ancestor
or ancestors, by enumeration of the intermediate people; a pedigree. 2. Lineage,
pedigree, family stock'. Calling this lay form of genealogy an exercise in constructing
'pedigree', the contemporary philosopher Raymond Geuss argues that '[t]he general
context [of this endeavour] is one of legitimizing or at any rate of positively valorizing
some (usually contemporary) person, institution or thing' (1994, 275). According to
this understanding, one might trace, to take the most common example, one's family
genealogy back in time so as to connect it to a noble origin (and hence to transmit that
value or esteem from the past to the present).

The counter-posed notion of genealogy upon which I want to draw in the remainder
of this article is derived from the writings of Friedrich Nietzsche and Michel
Foucault) I call this latter tradition of genealogy 'revisionist' as it is not interested in
the lay, genealogy-as-pedigree project of establishing the legitimacy or venerability
of the object being studied, but rather in using historical reflection in order to assail
and thence undermine the taken-for-granted valuations of present institutions. In
On the Genealogy of Morals, Nietzsche makes the claim that one of the origins of
the Judea-Christian morality of compassion lies in the festering ressentiment of a
slave morality in antiquity, hence depriving the dominant morality of his time of a
normatively valued origin. Likewise, in Discipline and Punish, Foucault reveals that
the shift in punitive techniques in the modern West from public torture and execution
to incarceration was not (as per received Whiggish accounts) the result of a beneficial
and 'quantitative increase in humanity' but rather, (in)famously, of a reordering of
punitive technologies and modes of power in modernity (1991, 16). While Foucault's
genealogies were often conducted under the banner of the 'history of the present'
(1991, 31), the present never furnished a standard of judgment or rule of interpretation

2 For an excellent survey, see Koopman 2013.

3 See primarily Nietzsche 1998; Foucault 1991.
20 Australian Journal of Human Rights 2016

for the past. To the contrary, his genealogies were intended precisely to intervene into
and to disrupt that present, by exposing how it was contingently produced and thus
depriving it of its aura of self-evidence. For both Nietzsche and Foucault, the present
was a problem to be investigated through a critical historicisation, or a genealogy. 'To
offer a genealogy', Geuss reminds us, 'is to provide a historical dissolution of self-
evident identities' (2002, 212).

Crucially, a genealogy in this sense seeks to tell the story not of the gradual unfolding
of an idea, institution or practice (such that one could in principle tell the story of a
given object from its origin to its present instantiation where the meaning or self-
identity of the object remained essentially continuous from beginning to end), but of
the constant contest over the very meaning of the object itself. For the genealogist,
history proceeds not as a temporal continuity, but rather as a series of ruptures
and events (the product of arbitrary and 'haphazard conflicts') in which practices,
institutions and identities have no stable essence extended over time but rather are
constantly made and remade (by 'substitutions, displacements, disguised conquests,
and systematic reversals') in which the identity of both the historical object and the
present subject are ultimately 'dissolved' (Foucault 1977, 154, 151, 163). (In short:
whereas other historians might narrate the history of x, the genealogist tells the
history of the successive, political struggles to give meaning to x (Geuss 1994, 281).)

In all this, and to conclude, one can readily conceive that there is no room for master
narrative, immanent reason or teleology - the genealogist is committed to a view
of history characterised by political contest, chance, discontinuity, rupture and
utter contingency. 'Genealogy', writes Foucault in reflection on Nietzsche, 'rejects
the metahistorical deployment of ideal significations and indefinite teleologies. It
opposes itself to the search for "origins"' (Foucault 1977, 140). Genealogy is a genre
of historical writing addressed to the present that seeks to destabilise that present
by exposing its irreducible contingency and its multiple points of origination. In so
doing, it presses us to question our views of that present and even (especially, for
someone like Foucault) our most cherished ideas about who we are (Saar 2002).

The recent historical contestation over human rights is conducted, to return to Alston's
opening statement, via the proxy of genealogy. But we can already see that there are
multiple possible understandings of genealogy that each index a different relation to
the concept of origin. On the lay, pedigree-producing account, the genealogy of an
object is the search for its true origin and the tracing of it from that historical point up
to the present. On the critical, Nietzschean-Foucaultian version of genealogy (which,
now dropping the double-barrelled qualifier, I should be taken to refer to for the
remainder of this article) the very notion of a founding origin is fundamentally put
into question. Origin is replaced with (better: dispersed into) multiple origins that in
Volume 22(2) On the genealogy of human rights 21

their contingency and unknowability threaten the self-evidence of the object in the
present (and, what is more, the putative knower of that object: 'We are unknown to
ourselves, we knowers', writes Nietzsche percipiently) (1998, 1). This is the critical
charge and wager of genealogy. I want shortly to return to this wager and to think
about it through the lens of utopia and nostalgia, but before doing so I want briefly
to introduce an example of a genealogy of human rights to give a better sense of the
critical force of this kind of historical writing.

My example is Moyn's The Last Utopia. If genealogy is best conceived as a kind of

oppositional, counter-historical, writing, then what is Moyn's genealogy of human
rights opposed to? In a bibliographic essay at the end of his book, he suggests that
previous efforts in the field have succumbed to the alliteratively tripartite curse of
'teleology, tunnel vision, and triumphalism' (2010, 311). An example of such a history
(referenced by Moyn in the essay) is Micheline !shay's 2004 book The History of Human
Rights: From Ancient Times to the Globalization Era (Ishay 2004). Ishay tells the story of
the rise to global prominence of the concept, and latterly juridical instantiation, of
human rights from the dawn of Western civilisation until the neoliberal present. Her
account is premised on the basic self-identity of the concept of human rights; broadly
normatively approving of its present instantiation; and undergirded by a sense of
moral progress tending towards liberalism. In Moyn' s own particular terms, her
account is teleological in the sense just indicated, and simultaneously suffers from
tunnel vision and triumphalism in its seeking anachronistically to 'ransack ... the past
as if it provided good support for the astonishingly speCific international movement
of the last few decades', and hence to 'provide [long-run, normatively appealing]
backstories to the vogue of human rights' (2014, 1-2). 'Human rights' as they appear
in the present day are used as a historiographical cipher to read the preceding
millennia and the result is an assimilative 'writing in' of bedfellows as strange as
Buddhism, Lenin and Martin Luther King (who feature as prefigurative moments or
as incarnations of the ideal) into the history of human rights (Ishay 2004, 29, 175, 249).

Moyn's counter-history of human rights ('the first critical history of human rights')
(Weitz 2013, 84) could not be more different. 4 His starting point is that the concept of
rights (broadly understood) is not self-identical and is contested and fundamentally
remade from one historical moment to the next (indeed, within each moment). What
we take to be human rights, for Moyn, is not something that extends back in time to
the Greeks, but is actually something much more recent. His is a story not of long-
run, fated historical necessity but of the very recent and contingent emergence of
human rights. Moyn parses the oft-claimed and more orthodox origins of human
rights in The Last Utopia, working through and rejecting each of them as insufficient.

4 The next paragraph is adapted from Golder 2016.

22 Australian Journal of Human Rights 2016

Human rights, he argues, cannot be connected to the 18th-century French and

American revolutionary declarations, as these were political attempts to construct
state authority while today's discourse of human rights involves (nominally) moral-
legal attempts to transcend and discipline the excesses of state sovereignty via a
supervening international law.S Neither can the more familiar end of the Second
World War and the signing of the Universal Declaration of Human Rights (UDHR)
serve as the origin of human rights, as his examination of that time shows that they
were politically marginal and infrequently invoked.6 By (stunning) contrast, Moyn
locates the emergence of the contemporary discourse of human rights in the late
1970s (1977, to be provocatively exact, being the year that then US President Jimmy
Carter delivers an important speech on human rights and American foreign policy
and Amnesty International wins the Nobel Peace Prize) (2010, 4). What largely
explains this emergence is signified in his title of The Last Utopia. In Moyn' s account,
and to continue my trope of negative definition, human rights emerge in this Cold
War moment as a powerful response to the perceived failures of left-wing political
utopias (revolutionary, redistributive or anticolonial). Human rights offer a form of
utopia, but they are the last utopia in the sense that they come after the failures of
the preceding (leftist, political) utopias. Against the false, flawed and violent claims
of such discredited political ideologies, human rights in the late 1970s emerge as a
plausible, more modest and palatable form of utopia that is simply directed towards
staving off the worst that political action can do: a minimalist, liberal utopia. On the
self-understanding of their protagonists in the 1970s- East European dissidents and
emergent transnational NGOs such as Amnesty - human rights were hence not a
political project but a moral one that viewed the state not as the possible mechanism
of justice or recognition, but as something to be disciplined through international
law, monitored by human rights groups, and shamed through global media scrutiny.
Moyn writes: 'Westerners left the dream of revolution behind -both for themselves
and for the third world they once ruled - and adopted other tactics, envisioning
an international law of human rights as the steward of utopian norms, and as the
mechanism of their fulfilment' (2010).

Two brief, interrelated methodological comments about Moyn's text can be made at
this point - the first pertaining to utopia; the second to genealogy. The second of
these will lead us into a discussion of the politics of Moyn's counter-narrative, but
let me start with the notion of utopia. What work does utopia perform in Moyn's
text and how does he understand the term? In terms of the structural function of
utopia in the text, one of the productive methodological moves that Moyn makes
in The lJJst Utopia is to read the history of political movements through the lens of

5 See especially chapter 1 of Moyn 2010.

6 See especially chapter 2 of Moyn 2010.
Volume 22(2) On the genealogy of human rights 23

utopia such that we are led to understand the discontinuity between one preeminent
political movement (with its attachments, beliefs, modes of belonging_ and so forth)
and another as proceeding in some sense from a shift in utopias. In one guise, then,
utopia furnishes the historian with an analytic that helps to explain how human
rights triumphs ideologically over, say, state socialism or the revolutionary political
tradition. But utopia is not just a lens through which the historian can read the past
in order to analyse it. It is also an historically available and contingent category of
thinking the future, a category mobilised, relied upon and believed in within that past
(it is both an analytic and an actor category, one could say).7

So what does Moyn mean by 'utopia'? This is a deceptively complicated question. For
a start, the term does double duty as a category of historical understanding and itself
an object of historical interpretation that varies from time to time and place to place.
To read Moyn as a genealogist (more on this, explicitly, in a moment) is to commit
oneself to the position that the meaning of utopia is itself historically contingent and
shifting (both in the past and in the present). Perhaps one can minimally say, as I did
above, that it is a way of thinking the future, but that is to leave more interesting
questions (How? By whom? What kind of future? What kind of thinking?) unresolved.
In The Last Utopia, Moyn does not theorise his understanding of utopia as explicitly
as he might (McCrudden 2014, 187), operating with a conception that is broadly
synonymous with a (better and brighter) political vision of the future and I think
he often imputes this understanding to the actors he studies (though he is acute on
the political differences between, say, nationalist politiccil utopias and ones based on
international law and respect for human rights). When Moyn writes of 'the image
of another, better world of dignity and respect' (2010, 4), for example, he invokes
this notion of utopia as a political vision of a better world in the future (but without
committing himself to a classic view that it is literally impossible or unrealisable,
a ou-topos, as More conceived it). His readers have taken him to task for this. The
philosopher John Gray has chided him for failing to realise that only utopias that
we know in advance cannot be realised qualify for the title (Gray thinks that the
contemporary human rights movement is an example of just such a pernicious type
of utopianism), whereas the political theorist Seyla Benhabib suggests that Moyn
himself is operating with a conception of utopia equivalent to the young Marx's use
of the term (that is, largely as an epithet to mean hopelessly idealistic and politically
naive) (Gray 2011, 87-89; Benhabib 2012, 83).

On my reading,s The Last Utopia is a genealogy (and hence, from this perspective,
the meaning of utopia is not something than can ever be stabilised). Yet two obvious

7 Contrast Moyn 2013, 103.

8 See also Banerjee 2010; contrast Zaremby 2012.
24 Australian Journal of Human Rights 2016

textual elements militate against such an interpretation. The first is that Moyn purports
to tell '[t]he true history' of human rights and the second is that he accentuates the
break in the late 1970s to such an extent that human rights emerge as a kind of
'miraculous virgin birth' utterly disconnected to their historical precursor (2010, 9;
Smith 2011, 59). If one emphasises these dimensions of the text and decontextualises
them from the remainder of the book, one could possibly maintain that Moyn was
simply replacing one determinate origin story with another more recent and truer
(although, for many readers, a deeply implausible) one. By contrast, I read the
facially counter-Nietzschean reference to 'truth' as either playful or (possibly more
likely) a rhetorical strategy in aid of dethroning the regnant origin myth (remember
that genealogies are first and foremost written against something). Moreover, Moyn's
text teaches us not that human rights emerge as a radically singular object in the late
1970s, but that this is simply one moment in a contingent history of human rights
wherein each successive age reimagines rights, drawing upon and yet departing
from a reservoir of prior conceptions and practices. Better: not simply 'one' moment
in such a history, but a crucially important one in need of explanation. Moyn's text
hence places the accent upon the discontinuity in the history of rights in the late 1970s
not so as to deny the reality or relevance of other continuities (although arguably it is
to deny that they deserve as much historiographical or political attention as they have
heretofore merited) Ooas and Moyn 2015), but rather to point to something politically
significant in the late 1970s. (By contrast, Barbara Keys's Reclaiming American Virtue
provides both a genealogical complement and a stylistic counterpoint to Moyn's
text in that it emphasises the semantic and political openness of 'human rights' in
the 1970s but, unlike The Last Utopia, does not formulate temporal discontinuities as
starkly (Keys 2014). Can we say that, generically, genealogies embrace both patient
de-essentialisation and performative rhetorical overstatement?)

In sum, The Last Utopia emphasises the contingency and plural origins of human
rights in our time, depriving them of necessity, unity and a progressive directionality.
For this attack upon the long-form historicism and teleology of previous human rights
histories, Moyn's book has been castigated for its 'irreverent and delegitimizing'
stance towards its object (Benhabib 2012, 83). Doubtless this work of history can be
read as a critique of human rights (and, possibly more sharply, as a critique of forms
of writing the history of human rights), but it is self-evidently neither a rejection nor
a delegitimisation of human rights per se (unless, implausibly, their legitimacy is
made to depend upon a two-thousand-year pedigree). Rather than rejection, Moyn's
history of human rights results in vertiginousness and ambivalence. While The Last
Utopia disorients those in need of stability, logic and certitude, it equally discloses a
range of hopeful (utopian, even) possibilities for human rights. This is the wager of
contingency I referred to above. The historical exposure of the groundlessness and
non-necessity of human rights simultaneously opens the way to a reimagining of
Volume 22(2) On the genealogy of human rights 25

their future. Once the past is no longer mortgaged to destiny, then the future is (better
yet: futures are) once again thinkable. The epilogue to Moyn' s book ends on this telling
note of ambivalence - of groundlessness and renewed possibility. Having detailed
the ways in which the human rights movement of the late 1970s emerged out of a
critique of maximalist and more traditional left-wing political utopianism, only to
subsequently become the master political discourse of the globe (crowding out other
visions), Moyn concludes:

And so it may not be too late to wonder whether the concept of human rights, and
the movement around it, should restrict themselves to offering minimal constraints on
responsible politics, not a new form of maximal politics of their own. If human rights call to
mind a few core values that demand protection, they cannot be all things to all people. Put
another way, the last utopia cannot be a moral one. And so whether human rights deserve
to define the utopianism of the future is still very far from being decided. [Moyn 2010, 227]

Marking a distance between the professedly minimalist human rights of the recent
past and the more expansionist versions of the present, Moyn ends his genealogy
of human rights with an unanswered question about their future. Should we
understand this unanswered question about the possible forms of the future to be the
necessary political limit to an historical inquiry? Has Alston's proxy exhausted itself?
Must we here relinquish the backward-looking gaze of the historian and return to
something called 'politics' in order to answer this question more directly? In the next
section of this article, I want to suggest that such a retUrn would be too quick, and
that genealogy still has something to teach us, an orientation to disclose (towards the
past, to be sure, but also the present and the future) that will itself help us to come to
terms with the contemporary political challenges of human rights.

Back to the future: two nostalgias

If genealogies characteristically attend to the forgotten dangers and the disavowed
dark sides of virtue, they nevertheless cannot help but emphasise possibility and
renewal. If concepts, institutions and practices are not what they were always
thought to be, and in fact emerge out of multiple, contingent and competing origins,
then the tensions and pluralities exposed by genealogical inquiry disclose the
potential for those same concepts, institutions and practices to be reimaged and
even radically transformed. That is one reason why, as Foucault once put it, we are
'much freer than [we] feel' (Martin 1988, 10). How one responds to these possibilities
and how one exercises one's freedom is another matter, of course, and genealogies
(especially those in the Foucaultian tradition) are famously reticent on the normative
question of what is to be done. In this concluding section, however, I want to think
about the political stakes of genealogy. Here, instead of arguing that genealogy needs
26 Australian Journal of Human Rights 2016

supplementing with different political and theoretical traditions to make good its
normative deficits, I want to argue that genealogy itself helps us to achieve a certain
political orientation. The orientation I am referring to is the necessarily ambivalent
orientation towards nostalgia. But what is nostalgia, and why must our orientation
towards it be ambivalent?

Providing a genealogy of nostalgia itself would be a fascinating and time-consuming

endeavour well beyond the remit of the present article. Thankfully, others have
accomplished this task already and so, relying on their accounts for present purposes,
we can simply say that the genealogy of the concept of nostalgia charts a course from
feeling to medical condition and thence to socio-political status. Literary theorist Jean
Starobinski writes:

In the first place, we have to deal with the actual creation of a disease; for, historically,
the word nostalgia was coined for the express purpose of translating a particular feeling
(Heimweh, regret, desiderium patriae) into medical terminology. [Starobinski 1966, 84]

The modem invention of nostalgia, continues Starobinski, was initially the work of
the Swiss doctor Johannes Hofer, of Mulhouse, who in 1688 defended a dissertation
on the topic. While the underlying feelings had been the subject of discussion well
before this point, '[t]he novelty [of Hofer's thesis] was in the attention which [he] paid
to it, in his effort to convert this emotional phenomenon into a medical phenomenon,
exposing it, in so doing, to rational inquiry' (1966, 84). What were these feelings that
Hofer converted into clinical discourse? Marcos Piason Natali writes that Hofer, 'after
considering the terms nostomania and philopatridomania', settled on the neologism
of nostalgia as a composite of the Greek words nostos and algia to 'describe the pain
resulting from the desire to return to one's home' (2004, 10). Nostalgia thus has a
simultaneously exilic, spatial, dimension and a temporal one: the nostalgic yearns
for a home lost in time and hence suffers from a double displacement. As Natali goes
on to discuss, the term's connotational range expands over time, from the individual
to the social and from the clinical to 'ideas about politics and history, as these were
expressed in philosophies of history, in political discourse, and in psychoanalytic
theory':

In effect, the word was transformed from a disease of memory ... into a problem of the
imperfect assimilation of the categories and practices of history, that is, the condition of
those who did not have what in modernity gradually became the dominant relationship to
the past. Nostalgia thus became a label used to define those who fell outside the modern
framework. [Natali 2004, 11]
Volume 22(2) On the genealogy of human rights 27

This, I sense, remains the current sense of the term. No-one today owns to being
nostalgic. While nostalgia suffuses a range of contemporary political positions from
xenophobic right-wing nationalisms around the world to various instantiations of
left melancholy (on which more, fraughtly, shortly), most would hesitate to conduct
their politics openly or explicitly under the sign of a return to a lost homeland.
'Historians [indeed, many others] often consider "nostalgia" to be a negative word,
or an affectionate insult at best. "Nostalgia is to longing as kitsch is to art", ... In this
understanding, nostalgia is seen as an abdication of personal responsibility', writes
artist and cultural theorist Svetlana Boym, 'a guilt-free homecoming, an ethical and
aesthetic failure. Nostalgia produces subjective visions of afflicted imagination that
tend to colonize the realm of politics, history, and everyday perception' (2007, 9). But
while it is not an openly proclaimed political orientation, nostalgia is nevertheless
frequently a disavowed, and constituent, one. Before examining what this might
mean, we should make a brief return to Hofer's semantically generous neologism of
the late 17th century.

In his creative joining of nostos and algia, Hofer invokes two different concepts of
nostalgia. In her book The Future of Nostalgia, Boym makes this distinction explicit:

Restorative nostalgia stresses nostos and attempts a transhistorical reconstruction of the lost
home. Reflective nostalgia thrives in algia, the longing itself, and delays the homecoming -
wistfully, ironically, desperately. Restorative nostalgia does not think of itself as nostalgia,
but rather as truth and tradition. Reflective nostalgia dwells on the ambivalences of human
longing and belonging and does not shy away from the contradictions of modernity.
Restorative nostalgia protects the absolute truth, while reflective nostalgia calls it into
doubt. [Boym 2001, xviii]

Working with Boym's two nostalgias, which she stresses 'are not absolute types, but
rather tendencies, ways of giving shape and meaning to longing' (2001, 41), helps us
to begin to unpack the ambivalences of nostalgia. The ambivalences are nestled in the
term's two Greek origins- the one universalistic, the other particularistic:

Algia - longing - is what we share, yet nostos - the return home - is what divides us.
It is the promise to rebuild the ideal home that lies at the core of many powerful ideologies
of today, tempting us to relinquish critical thinking for emotional bonding. The danger
of nostalgia is that it tends to confuse the actual home and the imaginary one. In extreme
cases it can create a phantom homeland, for the sake of which one is ready to die or kill.
[Boym 2001, xv-xvi]

Boym here invokes a monstrously particularistic nostalgia that is easily identifiable in

right-wing xenophobic nationalisms, contemporary fascisms and extremist religious
28 Australian journal of Human Rights 2016

movements - all of which traffic in this kind of restorative nostalgia. 'Restoration

(from re-staure-re-establishment) signifies a return to the original stasis, to the
prelapsarian moment. The past for the restorative nostalgic is a value for the present',
writes Boym (2001, 49). Tellingly, restorative nostalgia 'takes itself dead seriously'
(2001, 49).

But restorative nostalgia is not the sole preserve of right-wing political ideologies. We
can see that Boym's invocation of restorative nostalgia, in which the politics of the
present is mortgaged to a particular conception of the past, shares much in common
with the condition of 'left melancholy' that Wendy Brown, thinking with Benjamin
(and Freud}, has diagnosed on the left. The term, writes Brown, is 'Benjamin's
unambivalent epithet for the revolutionary hack who is, finally, attached more to
a particular political analysis or ideal - even to the failure of that ideal - than to
seizing possibilities for radical change in the present' (1999, 20). 'Left melancholy',
writes Brown, 'is Benjamin's name for a mournful, conservative, backward-looking
attachment to a feeling, analysis or relationship that has been rendered thinglike and
frozen in the heart of the putative leftist' (1999, 21-22).

Nostalgia, Boym reminds us, is not just a sense of loss and displacement but' a romance
with one's own fantasy' (2001, xiii). The melancholic romance, rather obviously, is
not so much affirmative as productive of stasis. 'The irony of melancholia', writes
Brown, 'is that attachment to the object of one's sorrowful loss supersedes any desire
to recover from this loss, to live free of it in the present, to be unburdened by it. This
is what renders melancholia a persistent condition, a state, indeed, a structure of
desire, rather than a transient response to death or loss' (1999, 20). Without wanting
to suggest that there is nothing politically to be gained from dwelling in and tarrying
with loss,9 nevertheless the political problems of restorative nostalgia/melancholic
romance present themselves relatively clearly. The nostos is a comforting fiction, a
retrospective construction, a fantasy - and frequently an exclusivist and parochial
one - and the desire to re-create it can blind us not only (as Boym points out) to
faculties of critical thinking that might seek to interrogate and undo the idealism of
that image, but also to the dangers and possibilities of the present, meaning that we
miss the possibilities of change and action in the here and now (like Benjamin's sorry
hack). The past cannot simply be re-created, nor can its solutions be transposed. Its
problems are not the problems of the present.

Genealogy, I want to suggest, orients us away from - or, better, makes us suspicious
of- this first form of (restorative) nostalgia. We can return to Moyn's genealogy

9 Indeed, I want shortly (via Boym) to do something similar myself. For other such attempts, see Butler
2006 and also 2010. For a critique, see Honig 2010.
Volume 22(2) On the genealogy of human rights 29

of human rights to make the point. We left Moyn at his somewhat abrupt and
ambivalent conclusion to The Last Utopia, wherein it is possible to read two forms
of nostalgia of this first (restorative) sort. Moyn asks there if 'it may not be too late
to wonder whether the concept of human rights ... should restrict [itself] to offering
minimal constraints on responsible politics' (2010, 227) in the sense of a retreat to
the 'original' vision of human rights in the late 1970s; that is, a kind of ideological
winnowing of human rights to which, for example, someone like Aryeh Neier is
attracted (2013). 10 We can also hear echoes in that final passage of a stronger nostalgic
longing that is elsewhere better represented in the book. When Moyn writes of the
impossibility of the last utopia being a moral one, and evokes doubt as to whether
human rights deserve to define the utopianism of the future, he indexes a sense of
political loss consequent upon the moralisation of the emergence of human rights in
the 1970s. One way to figure that loss (that is, one nostos upon which that longing
might fix) is to conjure the felt connections and solidarities of the welfare state at
the mid-20th century. Indeed, a possible reading of the text (albeit one with which
I am shortly to disagree) might frame The Last Utopia as a book-length lament for
the displacement of the difficult distributional politics of the welfare state by the
glib transcendent moralities of international human rights law. Early in The Last
Utopia, Moyn comes close to framing the question in these terms; that is, as a shift
from 'a politics of citizenship at home' to a 'politics of suffering abroad' (2010, 12).
However, in between this programmatic formulation at the beginning of the text,
and its seemingly plangent conclusion in which one can discern a wistful longing
a
either for a genuinely minimalist human rights or for more properly political and
social justice-oriented welfarist politics, the style and method of The Last Utopia (as a
genealogy) undo this kind of restorative nostalgia. (To fully give Moyn credit here,
this conclusion does not rest on the plausibility of my own reading of The Last Utopia
qua genealogy. Rather, he makes the same point quite explicitly in a review published
in the New York Times of the late intellectual historian Tony Judt's collection of essays,
When the Facts Change. There, discussing Judt's call for a return to the welfare state,
Moyn writes: 'Nostalgia was forgivable in a dying man, but the truth is that the
European welfare state as it emerged after World War II cannot be rehabilitated. It
was faulty in its time, leading to its own undoing, and cannot now be turned into a
global fix.' (Moyn 2015).)

What I want to say on behalf of genealogy, though, is that this problematisation of

restorative nostalgia flows quite naturally from its historiographical and political
premises. For the genealogist, there is no unified and self-identical object of historical
study whose linear progress can be mapped through time. Instead, what emerges
from that historical study are the successive and unpredictable outcomes of political

10 See chapter 3 of Moyn 2010.

30 Australian Journal of Human Rights 2016

struggles over meaning and direction. The genealogist unearths the contingent and
shifting historical conditions of emergence for these meanings and constructions,
and in so doing exposes the fractures and fault lines in the past and the present alike.
To talk in terms of human rights, each historical age reimagines and constructs a
(necessarily conflicted and contested) sense of human rights. The meanings of human
rights of the mid-20th century inscribed within the UDHR differ from those of the late
1970s and the neoliberal moment, and they in tum from those made available at the
start of the 20th century. There can be no simple return, no going back to an idealised
origin that genealogy has dispersed. But the fact that there can be no simple return to
the past in the sense of a retrieval or a reactivation of a lost tradition or set of answers
(that is, precisely, a historical renaissance) does not mean that political lessons cannot
be wrought from the past, or that the past has no value whatsoever for the present.
Those lessons, the genealogist teaches us, consist not in the anachronistic trans- or
imposition of past solutions, but in thinking through how previous emergences were
composed and constructed and how actors in the past politically addressed (indeed,
even constituted things as) problems. Foucault puts the point nicely:

I am not looking for an alternative; you can't find the solution of a problem in the solution
of another problem raised at another moment by other people. You see, what I want to do is
not the history of solutions, and thafs the reason why I don't accept the word 'alternative'.
I would like to do genealogy of problems, of problematiques. [Foucault 1997, 231)

Genealogy hence undoes, problematises and orients us away from nostalgic myths
of return and belonging. It teaches that origins are always multiple, imagined and
contested and counsels us to interrogate the historical conditions of emergence for
particular configurations in the past. As a genealogist such as Foucault appreciates,
these lessons about the constructedness of the past also disclose insights about the
contingency and unpredictability of our present - and this may help us to imagine
other futures. But genealogy cannot be straightforwardly opposed to nostalgia,
either, for the simple reason that, per Boym, nostalgia is not itself coherent or self-
identical. To complicate the argument I have been making, then, the orientation
towards nostalgia that the genealogical tradition gives us has, ultimately, to be a more
ambivalent one. While it might orient us away from forms of restorative nostalgia,
might it not orient us towards its more complicated twin: reflective nostalgia?

For Boym and for other scholars of the phenomenon, nostalgia is a thoroughly
modem condition: it is both a symptom of, and a form of resistance to, modernity's
understandings of time, history and progress. Indeed, Natali argues that it is 'a
distinctly modem word' (2004, 10), while Boym goes so far as to say that nostalgia
is 'coeval with modernity itself' (2001, xvi). Natali connects the politico-cultural
disparagement of nostalgia (with which we still grapple) to modernist assumptions
Volume 22(2) On the genealogy of human rights 31

about history such that 'it was only after history was understood as necessarily
emancipatory, progressive, and rationally comprehensible that affect for the past
could come to be condemned as an irrational obstacle' (2004, 11).

For the modern progressive, then, there is something irremediably improper about
the nostalgic's fixation with and attachment to the past: The past is past!', 'Get
over it!', 'Going forward', in the inane and impatient temporality of the modern
politician-businessman. But the style of that fixation and attachment makes a
crucial (historical and political) difference. While genealogy renders us suspicious of
attempts to return to a lost origin, it equally undercuts claims that history is rational,
progressive and emancipatory. That is to say, if genealogy disposes of restorative
nostalgia, it nevertheless might press us towards (or, at any rate, be congruent with
or sympathetic towards) a politics of reflective nostalgia. What might such a politics
look (or sound, or feel) like?

Recall that for Boym the reflective nostalgic is not one who tries to re-create a lost
past but instead one who dwells with and mobilises the feelings of loss and longing,
the algia of nostalgia, in the conflicted present. Reflective nostalgia 'does not pretend
to rebuild the mythical place called home', writes Boym, and its (more sinuous, less
strident) trajectory is 'ironic, inconclusive and fragmentary' (2001, 50). This form of
nostalgic longing discloses a very different account of time and history: 'The past is
not made in the image of the present or seen as foreboding of some present disaster;
rather, the past opens up a multitude of potentialities, nonteleological possibilities of
historical development' (2001, 50). Restorative nostalgia is simultaneously defeated
and hopeful, longing and futuristic. It is oriented towards what remains from the
past, but not for the purpose of re-creation; rather, for the purposes of remembrance
and reckoning. What is lost from the past (and what is lost in the past) still has a
present 'value', but that value is not one of reproduction. The past returns (better:
multiple and defeated pasts return, or are made to return) so as to challenge the
present. Boym aligns this thinking of nostalgia (a 17th-century neologism) with her
own, 21st-century neologism of 'off modern'. She writes in The Future of Nostalgia:

There is in fact a tradition of critical reflection on the modem condition that incorporates
nostalgia, which I will call off-modern. The adverb off confuses our sense of direction; it
makes us explore sideshadows and back alleys rather than the straight road of progress;
it allows us to take a detour from the deterministic narrative of twentieth-century history.
[Boym 2001, xvi-xvii]

By excavating the silenced voices and 'recover[ing the] unforeseen pasts' of the
present, the reflectively nostalgic off-modernist 'reveals the play of human freedom
vis-a-vis political teleologies and ideologies that follow suprahuman laws of the
32 Australian Journal of Human Rights 2016

invisible hand of the market or of the march of progress'. It 'explores interstices,

disjunctures, and gaps in the present in order to co-create the future'. This is
(counter-)history as scarification:

In the twenty-first century, modernity is our antiquity. We live with its ruins, which we
incorporate into our present, leaving deliberate scars or disguising our age with the
uplifting cream of oblivion. Off modern, then, is not anti-modem; it is closer, in fact, to
the critical and experimental spirit of modernity than to the existing forms of industrial
and postindustrial modernization. In other words, it opens into the modernity of 'what
if', and not only modernization as it was. It unsettles and embarrasses many political and
theoretical narratives that we've grown accustomed to. [Boym 2010, 3]

One could not imagine a more fitting epitaph for genealogy. The genealogist foments
the 'insurrection of subjugated knowledges', but not so as to re-establish a lost
and harmonious unity (Foucault 2003, 7). Rather, the purpose of genealogy is to
retrieve and to bring to bear the defeated and disqualified knowledges of the past
in an 'oblique, diagonal, and zigzag' way upon the seeming certitudes of the present
(Boym 2010, 1). The past (genealogically speaking) is not past: it recurs, it repeats
itself differently, it provides an historical repertoire for problematising, challenging
and destabilising the present. All of which is to say that genealogy maintains a
complicated and ambivalent relationship to something that we must, post-Boym,
henceforth refer to as 'nostalgia', in suitably ironic and self-reflective quotation marks
(or maybe as 'n6stmgi:a nostalgia', as in my subtitle). Genealogy at once problematises
restoration and progress, even as it maintains an elective affinity with the longing
of reflection. This is what I would refer to as the ambivalent political orientation of
genealogy -it prompts us, in the present, to negotiate the two nostalgias, holding at
bay our tendencies to romanticise and idealise lost ways of being even as it enjoins
us to bring something of those losses to bear, tangentially and critically, upon a
victorious present.

And so, to return finally to the history of human rights, such an orientation must
surely teach us that there can be no such thing as a last utopia! This is because in
the first (literal) place there can surely be no such thing as a utopia. Utopias are
always projections, always imaginings (of the past and the future) that are never
whole and always fractured, contested and incomplete. Here, Boym's account of
restorative nostalgia is helpful in showing how certain strands of utopian thinking
partake of this gesture of closure. Genealogy undoes this restorative and romantic
valence of utopia, reminding us that utopias are impossible. Impossible, but perhaps
necessary. While utopias never have existed and never will exist, a utopian horizon
and orientation, as a modality that exceeds the present, is possibly necessary for the
critical and political alteration of that present. In this sense, utopias and utopian
Volume 22(2) On the genealogy of human rights 33

imaginations - while impossible - are arguably an ineradicable and constituent

feature of politics. And so neither can there ever be a last utopia: any political or
institutional claim to represent a utopian scheme always encounters other (dissident)
utopias, other contrary imaginings. The genealogy of human rights helps to unearth
those contrary imaginings in the past and to activate them in the present. It teaches us
of the powerful (yet contingent and ultimately unstable) arrangement of forces that
composed the ideological understanding of human rights in the late 1970s and that
has sponsored it ever since. It teaches us of how that understanding came at the cost of
other rival political understandings - of human rights themselves and of competing
political imaginaries - and of how they were marginalised and defeated. It teaches
us to be suspicious of claims to the true and the original meanings of human rights,
even as it teaches us that what is past, while never able to be fully resurrected in its
past form, might still work critically upon the present. In this sense, the genealogy
of human rights, aligned with what Boym calls reflective nostalgia, teaches us to be
suspicious of claims of historical necessity and progress and to work against them
in the present. And, finally, not to be too nostalgic, it teaches us to 'set ... alight the
sparks of hope in the past' (Benjamin 1968, 255 (VI)), on behalf of a different present
and a possible future, for the genealogy of human rights ultimately sponsors a kind of
conflicted and ambivalently hopeful utopianism. It is a utopianism that is reflective,
self-critical and self-aware, one always attuned to the mythic and exclusionary nature
of its narratives and the remainders it produces, one that never cedes possibilities to
the certitudes of progress or historical reason and that, in spite (or maybe because) of
knowing all that it knows of the past, never ceases to hope fm: a new future. e

References

International/ega/ materials
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd
plen mtg, UN Doc A/810 (10 December 1948)

Other references
Alston P (2013) 'Does the past matter? On the origins of human rights' 126(7) Harvard
Law Review 2043-81

Banerjee K (2012) 'Genealogy, history, and human rights' 8 Journal oflnternationall.Jzw

and International Relations 70-72
34 Australian Journal of Human Rights 2016

Benhabib S (2012) 'Moving beyond false binarisms: on Samuel Moyn's The Last
Utopia' 22(1) Qui Parle 81-93

Benjamin W (1968) 'Theses on the philosophy of history' trans H Zohn, in H Arendt

(ed) Illuminations Harcourt Brace Jovanovich, New York

Boym S (2001) The Future of Nostalgia Basic Books, New York

Boym S (2007) 'Nostalgia and its discontents' 9(2) Hedgehog ReviroJ 7-18

Boym S (2010) 'The off-modem mirror' e-jlux journal October

Brown W (1999) 'Resisting left melancholy' 26(3) Boundary 2 19-27

Butler J (2006) Precarious Life: The Powers of Mourning and Violence Verso, London

Butler J (2010) Frames of War: When Is Life Grievable? Verso, London

Foucault M (1977) 'Nietzsche, genealogy, history,' trans D F Bouchard and S Simon,

in D F Bouchard (ed) Language, Counter-Memory, Practice: Selected Essays and InterviroJs
Cornell University Press, Ithaca, New York

Foucault M (1991) Discipline and Punish: The Birth of the Prison trans A Sheridan,
Penguin, Harmondsworth

Foucault M (1997) 'The ethics of the concern for self as a practice of freedom' trans
R Hurley et al, in P Rabinow (ed) Essential Works of Foucault 1954-1984, Vol1: Ethics,
Subjectivity and Truth Allen Lane/Penguin, London

Foucault M (2003) 'Society Must Be Defended': Lectures at the College de France, 1975-76
trans D Macey, Allen Lane, London

Geuss R (1994) 'Nietzsche and genealogy' 2(3) European Journal of Philosophy 274-92

Geuss R (2002) 'Genealogy as critique' 10(2) European Journal of Philosophy 209-15

Golder B (2016) 'Contemporary legal genealogies' inC Tomlins and J Desautels-Stein

(eds) Cambridge Companion to Contemporary Legal Thought Cambridge University
Press, Cambridge

Gray J (2011) 'What Rawls hath wrought' 111 National Interest 81-89
Volume 22(2) On the genealogy of human rights 35

Honig B (2010) 'Antigone's two laws: Greek tragedy and the politics of humanism'
41(1) New Literary History 1-33

Ishay M (2004) The History of Human Rights: From Ancient Times to the Globalimtion Era
UC Press, Berkeley, California

Joas Hand MoynS (2015)'The Sacredness of the Person or The Last Utopia: a conversation
about the history of human rights' inS Kaul and D Kim (eds) Imagining Human Rights
de Gruyter, Berlin pp 9-32

Keys B (2014) Reclaiming American Virtue: The Human Rights Revolution of the 1970s
Harvard University Press, Cambridge, Massachusetts

Koopman C (2013) Genealogy as Critique: Foucault and the Problems of Modernity Indiana
University Press, Bloomington

Martin R (1988) 'Truth, power, self: an interview with Michel Foucault' in L H Martin,
H Gutman and PH Hutton (eds) Technologies of the Self: A Seminar with Michel Foucault
University of Massachusetts Press, Amherst

McCrudden C (2014) 'Human rights histories' 35(1) Oxford Journal of Legal Studies
179-212

Moyn S (2010) The Last Utopia: Human Rights in History Belknap/Harvard University
Press, Cambridge, Massachusetts

Moyn S (2013) 'The continuing perplexities of human rights' 22(1) Qui Parle 95-115

Moyn S (2014) Human Rights and the Uses of History Verso, London

Moyn S (2015) 'Tony Judt's "When the facts change'" [Online] Available: www.
nytimes.com/2015/01/18/books/review /tony-judts-when-the-facts-change.html?_
r=O [2016, April6)

Natali M P (2004) 'History and the politics of nostalgia' 5 Iowa Journal of Cultural
Studies 10-25

Neier A (2013) The International Human Rights Movement: A History Princeton

University Press, Princeton, New Jersey
36 Australian Journal of Human Rights 2016

Nietzsche F (1998) On the Genealogy of Morality trans M Clark and A J Swensen,

Hackett, Indianapolis, Indiana and Cambridge, Massachusetts

Saar M (2002) 'Genealogy and subjectivity' 10(2) European Journal of Philosophy 231-45

Smith T (2011) 'Quando nascono I diritti umani? Una proposta controversa' III(2) II
mestiere di storico 51--M

Starobinski, J (1966) 'The idea of nostalgia' trans WilliamS Kemp (1966) 14 Diogenes
81-103

Weitz ED (2013) 'Samuel Moyn and the new history of human rights' 12(1) European
Journal of Political Theory 84--93

Zaremby J (2012) 'On the uses and disadvantages of history for human rights law'
15(1) Yale Human Rights and Development Journal155-75