The World(lessness) of Human Rights
Mark Antaki*
The language of human rights has captured our imaginations.
But despite its predominance, the presuppositions, and limits of the
language of human rights have been subject to little scrutiny. In The
End of Human Rights, Costas Douzmas aims to take up this task. The
present essay focuses on key aspects of Douzinas’ critique of human
rights so as to further Douzinas’ path of questioning-a path leading
toward a proper critique of human rights.
In Part I, the author begins with Douzinas’ key question: should
we give up on human rights? Though Douzinas does not believe that
we ought to give up on human rights, he does believe that they need to
be saved from “human rights triumphalism” and, ultimately, from
metaphysics. Douzinas attempts to save human rights by defending his
version of tanscendence: the idea that human rights, by acting as a
negative “utopia”, that is, as a negative pre-figuration of an impossible
better future, allow for the possibility of critical judgment of the here
and now. Douzinas is keen to avoid “metaphysical thining” in his
in a disenchanted world.”
attempt to find a “place for transcendence
The author questions Douzinas’
to present a “non-
metaphysical” approach to human rights. Despite attempting to be non-
metaphysical, Douzinas’ search for a new ground of human rights
turns out to be animated by metaphysics, the essence of which is a
denial of this world in the name of a better and tuer world.
attempt
In Part II, the author explores Douzinas’ ambivalent relation to
metaphysics by turning to Douzinas’ reading of Kant and Heidegger,
his treatment of the relation between morality and power, and his
understanding of the relation between goodness and being. The author
draws on Nietzsche and others in order to highlight potential problems
and avenues for further reflection. In light of Douzinas’ entanglement
with metaphysics, the author focuses on the extent to which, and the
ways in which, Douzinas’ account of human rights as negative utopia
leads to an impoverished understanding of world In the end, the author
suggests that the subordination of duty to the production of a better
world
insapprehends both duty and world. It is perhaps by recovering
duty as duty that we will be able to recover the worlti
Le discours des droits de l’hoinme domine l’imagination. Mais
en d6pit de son importance, les prhsupposs et liites de ce discours
ont & pen examindo. L’ouvrage de Costas Douzinas, The End of
Human Rights, se consacre A cet examen. Cet article porte sur des
aspects clds de Ia critique des droits de l’homme par Douzinas et
prolonge le questiounement de celui-ci afin de permettre une critique
v6ritable des droits de lhomme
Dan
la premilre partie, l’auteur commence avec Ia question
centrale de Douzinas : faut-il en finir avec les droits de l’homme? Si
Douzinas ne croit pas A leur abandon, il soutient toutefois que les droits
de l’homme doivent 8tre sauvs du
triomphalisme des droits de
l’homme>> et ultimement de ia mtaphysique. Douzmnas tente de sauver
les droits de l’homrnme en proposant sa propre version de
ia
transcendance. II sutient qu’en agissant comme une sorte d’utopie
nigative (une priffiguration n6gative d’un futur meilleur et impossible),
les droits de lunme permettent un jugernent critique du pr6sent. En
tentant de trouver otne place pour la transcendance dans un monde
dsenchant&r, Douzinas s’effore d’ilviter In pns6e nitaphysique.
L’auteur remet en question In tentative de Douzinas de piisenter une
approche smon-m6taphysique>s des droits de
ihomme. Alors que
Douzinas s’efforce d’6tre non-mitaphysique, sa qulte d’un nouveau
fundement des droits de I’homme est motivde par Ia miltaphysique dont
l’essence mime est la n6gation de ce monde au nor d’un monde
meilleur et plus vai.
l’auteur explore
le
Dans
la deuxi~me patie,
rapport
ambivalent que Douzinas entretient avec la m6taphysique. A cette fin
, il examine la lecture que fait Douzinas de Kant et Heidegger, son
traitement de la relation entre
la morale et le pouvoir, et sa
compr6hension de Ia relation entre le bien et l’dtre. S’inspirant de
Nietzsche et d’autres penseurs,
l’auteur relive des problimes
potentiels et propose des pistes de riflexion. Compte tenu de
l’emptrement de Douzinas avec la mitaphysique, dans quelle
mesure et de quelle fagon sa conception des droits de l’homme
comme utopie n6gative mine A une vision appauvrie du monde?
L’auteur sugg&e en conclusion que la subordination du devoir i la
production d’un monde meilleur ne rend pas justice au devoir et an
monde i la fois. C’est peut-itre en retrouvant le devoir comme devoir
qu’on pourra retrouver le monde.
Research Associate, McGill University (Faculty of Law). Ph.D. Candidate, University of
California, Berkeley, Boalt Hall School of Law (Jurisprudence and Social Policy Program). The
author wishes to thank Peter Fitzpatrick, Shai Lavi, Desmond Manderson, Regan Morris, Karl
Shoemaker, Jill Stauffer, and two anonymous reviewers for their comments.
McGill Law Journal 2003
Revue de droit de McGill 2003
To be cited as: (2003) 49 McGill L.J. 203
Mode de r&6frence : (2003) 49 R.D. McGill 203
204
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[Vol. 49
Introduction: Human Rights as a Question
1. Saving Human Rights
A. Should We Give Up on Human Rights?
B. Saving Human Rights from Themselves?
C. Saving Human Rights from Metaphysics?
II. Metaphysics and/as World Denial
A. Utopia: Negative or Unattainable?
B. The Immorality of Power as the Empowerment
of Morality
C. The Identity-or Not?-of Being and Goodness
Conclusion: In the End-Ontology and Ethics?
205
206
206
208
210
213
215
216
219
221
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M. ANTAKI – THE WORLD(LESSNESS) OF HUMAN RIGHTS
205
Introduction: Human Rights as a Question
The language of human rights has captured our imaginations. Talk of justice, the
good, and most especially, human dignity is carried out more and more in the idiom
of human rights. In such an intellectual climate, to question the turn to the language
of human rights is tantamount to presenting oneself as an enemy of humanity.
However, such a climate demands that serious attention be given to the language of
human rights-its presuppositions, its limits, its capacity to speak to the human
condition. In The End of Human Rights,1 Costas Douzinas, Professor of Law at
Birkbeck College, University of London, takes up this task as he aims to provide “a
critique of legal humanism inspired by a love of humanity” (vii).
Douzinas describes his book as “an advanced textbook of legal theory and human
rights” (vii). He characterizes the vast array of thinkers and approaches he turns to as
a “cornucopia of philosophical thought … “He explains that given such a vast array
and the little “common ground” that obtains between the chosen thinkers, no “grand
synthesis can arise … ” Douzinas’ work is also almost part manifesto as this textbook
is one “for the critical mind and fiery heart” (4).
The task of reading this work is made difficult by this chosen manner of
proceeding and of conceiving the project: summaries of the thought of great thinkers
abound-but sustained engagements are rare and usually give way to suggestive
remarks. The habit of summarizing can leave the reader unsure as to where Douzinas
himself stands on key issues: there sometimes arises a problem of voice.’ Further,
because Douzinas spends so much time demonstrating the relevance of a vast array of
scholarly literature, he leaves much less space to clarify and expand key moments in
his own critique. His aim of ‘firing hearts up’ also leads to a moralistic and combative
tone that often obscures the matter at hand. This tone also leads to a shifting use of
language and, sometimes, to a lack of care and rigour.
Despite these limitations, Douzinas is one of few contemporary theorists who
recognize the need for a critique of human rights. Rather than engage in a one-sided
attack on, or defense of, human rights, The End of Human Rights seeks to confront
them in their complexity. The account of human rights provided is one of the few that
even begins to let the matter itself emerge into visibility. Douzinas’ The End of
Human Rights is welcome not because of the questions it answers but because of the
questions it raises.
This essay attempts to go to the crux of the matter by focusing only on key
moments or aspects of Douzinas’ account. By taking very seriously Douzinas’ own
manner of proceeding-including the language to which Douzinas tums in his
attempt to bring the matter to visibility-this essay aims to further his own path of
1 Costas Douzinas, The End of Human Rights (Oxford: Hart, 2000). All page numbers in
2 For two examples, see infra notes 12 and 29.
parentheses in the text and in the footnotes are to The End of Human Rights.
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[Vol. 49
questioning. Moreover, the account of human rights Douzinas provides is also the
outline of a task for thinking, for our thinking as modems. How does the language of
human rights hold sway in our world? Is it a language that frees us to our own
humanity? Is it a language that imprisons us in a disenchanted world? Is it both?
In Part I, this essay provides an overview of The End of Human Rights and
attempts to lay out both the intellectual task Douzinas sets out for himself and the
manner in which he goes about setting it out. Recognizing that human rights are
associated with the tradition of liberal humanism that he decries, Douzinas asks
whether we should give up on human rights (A). Although Douzinas is more than
reluctant to do so, believing they can be saved, he recognizes that we must also face
the possibility that human rights must be saved from themselves (B). Ultimately,
however, the reader discovers human rights must be saved not from themselves but
from (what Douzinas understands or takes to be) metaphysics (C). Part H1, in turn,
consists of a more sustained engagement with the question of metaphysics.3 Part H is
less concerned with providing an overview of The End of Human Rights than with
subjecting it to a more careful and rigourous reading.
I. Saving Human Rights
A. Should We Give Up on Human Rights?
Douzinas opens his book with a dual observation. On the one hand, “[h]uman
rights have won the ideological battles of modernity.” On the other hand, “[o]ur age
has witnessed more violations of their principles than any of the previous and less
‘enlightened’ epochs.” This dual observation leads to a question-a question of some
importance to Douzinas for it is posed twice in the first seven pages: “should our
experience of the huge gap between the theory and practice of human rights make us
doubt their principle and question the promise of emancipation through reason and
law when it seems to be so close to its final victory?” (2 and 7).
Douzinas’ answer is subtle and complicated (and book-length). The short answer
is: no, we ought not to give up on the language of human rights. The long answer is
that to understand human rights in a certain way, that is, according to the tradition of
liberal humanism, is to have given up on the spirit that animates or ought to animate
3 See infra note 35 and accompanying text. In metaphysics, we can hear meta ta physika, after or
beyond physis. The Greek physis is translated as the latin natura (though not without great loss or
change of sense). So, the metaphysical (Greek) is the supernatural (Latin). Metaphysics, then, involves
an understanding of this world, this world of nature, this sensory world, as being grounded in a world
beyond this one. For the most part, in our history, metaphysics is inseparable from Christian
metaphysics. Even if we “modems” claim to be post-metaphysical, we often think metaphysically,
that is, we exhibit the tendency to constantly look behind things and the will to justify every thing by
something else. (Originally, metaphysics did not point to all of this: metaphysics was simply the name
given to the works of Aristotle that were placed “after” his Physics).
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M. ANTAKI – THE WORLD(LESSNESS) OF HUMAN RIGHTS
them. Accordingly, to remain faithful to the spirit that animates or ought to animate
human rights
the
“universality of law”, “the
imperialism of reason” (see e.g., 8), and the very
possibility of a “final victory”.
liberal humanist presuppositions
regarding
is
to question
It is precisely against this backdrop of “final victory” that the title of Douzinas’
book is to be understood. The sense of the title is derived from a play on the word
“end”. As he writes in the conclusion: “[t]he end of human rights comes when they
lose their utopian end.” The “end of ideology, of history or utopia” does not “mark
the triumph of human rights” but rather brings “human rights to an end” (380). What
does this mean? To paraphrase Koskenniemi, human rights are uncomfortably
situated between apology and utopia.4 As Douzinas explains, on the one hand, the
widespread acceptance of human rights in official discourse points to their increased
use in legitimating state power. On the other hand, human rights are, or ought to be,
animated by a spirit of rebellion against power and point, or ought to point, to the
denunciation of injustice by ordinary people. However, and paradoxically, the final
ideological victory of human rights could signify the collapse of the difference
between apology and utopia, it could signify the taming of moral rebellion by the
forces of power (see e.g., 340). How could this be?
For Douzinas, the “true victory” of human rights, if one may put it this way, lies
in their non-victory, in the impossibility of their full actualization. Human rights
“remain necessarily and radically negative both in their essence and in their action.”
Indeed, “[t]o the extent that they become positivised legal discourse and join law’s
calculation, thematisation and synchronization, they share the quest for subjecting
society to a unique and dominant logic which necessarily violates the demand of
justice” (368). For Douzinas, the “symbolic importance” of human rights is “that they
inscribe futurity in law” (369). However, the future promised by human rights is
never to be achieved (337). The utopia they promise is not an actual place and, for
that reason, cannot be conceived of as a destination: “all utopias, when they arrive,
turn out to be the negation of their promise. Utopia’s vocation is never to become a
topos but to act as a negative prefiguration of the future which helps understand and
judge the infamies of the present” (292).’ In an important sense, “justice is not fully
of this world” (45, 331).
Thus, as we can see, Douzinas sets out for himself the (un)enviable task of saving
human rights from their own victory (or defeat). But why exactly do human rights
4 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument
(Helsinki: Finnish Lawyers’ Publishing Company, 1989).
5 Cf. Simone Weil, Gravity and Grace, trans. by Emma Craufurd (London: Routledge and Kegan
Paul, 1952) at 154: “[a] future which is completely impossible … degrades us far less and differs far
less from the eternal than a possible future. It does not degrade us at all, except through the illusion of
its possibility. If it is conceived of as impossible, it transports us into the eternal.” Some of the present
essay raises the question of whether Douzinas can genuinely assert the impossibility of the future he
espouses while at the same time refusing to embrace the “eternal”.
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need to be saved? How does Douzinas believe this saving can be accomplished?
What are the principal obstacles to this saving? To whom does Douzinas turn in his
effort to save human rights from themselves? And, what are we to make of Douzinas’
efforts in this regard? These questions are addressed below. However, it is of great
importance that the possibility of moving beyond the language of human rights is not
one Douzinas explores in any significant manner. Rather, as he states at the outset,
“[h]uman rights are the fate of postmodernity … “And, “[w]e have been blessed-or
condemned-to fight the twilight battles of the millennium of Western dominance
and the opening skirmishes of the new period under the dual banners of humanity and
right” (1).
B. Saving Human Rights from Themselves?
According to Douzinas, human rights need to be saved from human rights
triumphalism so as to allow (moral) criticism and judgment of the here and now in the
name of a better future that will never arrive. To this possibility of critical judgment
of the here and now, Douzinas gives the name “transcendence” (10, 12, 14). Human
rights triumphalism denies transcendence in its threatened reconciliation of apology
and utopia, power and right, is and ought, fact and value, real and ideal. Human rights
triumphalism is marked by the philosophical vice of historicism according to which
history validates its own truths such that, following Leo Strauss, “no ideals or
standards exist outside the historical process and no principles can judge history and
its terror” (10). Human rights, to retain their utopian purchase on reality must,
somehow, not be “infected” with the “transience” of history (10). Human rights must
not be reducible to their specific, contemporary manifestations. Thus, Douzinas aims
to save human rights by defending the idea of transcendence. He aims to do so in
order to escape historicism yet without, at the same time, falling into an ahistorical
universalism (14).
Part I of the book, “The Genealogy of Human Rights”, undertakes a critique (in
the Kantian sense6 ) of human rights so as to identify their “conditions of existence”
(3). In this genealogy, Douzinas tells the story of the decline of natural law from its
beginnings in Ancient Greece (with the Sophists, the Stoics, Plato, and Aristotle).
Two points are to be noted here. First, the emergence of human rights is integrally
related to the decline of natural law and, hence, to the transformation of objective
right, (what is right) to subjective right, (right as my right). They emerge at the
conclusion of the disenchantment of the world whereby (after the positivization of
6 In the Preface to the first edition of the Critique of Pure Reason, Kant explains that by critique of
pure reason, he does “not mean … a critique of books and systems, but of the faculty of reason in
general” (Immanuel Kant, Critique of Pure Reason, trans. by Norman Kemp Smith (Toronto:
Macmillan, 1965) at 9). Douzinas mischaracterizes Kantian critique (and is too liberal in his use of
contemporary theoretical vocabulary or jargon such as “practice” and “discourse”) when he writes that
“[critique’s] original Kantian aim was to explore the philosophical presuppositions, the necessary and
sufficient ‘conditions of existence’ of a particular discourse or practice” (3).
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M. ANTAKI – THE WORLD(LESSNESS) OF HUMAN RIGHTS
209
nature) sanctified individual human will, following Strauss again, takes the place of
nature as the “standard of right” (11). Precisely because their story is bound up with
the decline of natural law, human rights have “only paradoxes to offer” (2l)–and
these paradoxes are “built-in”. For example, “[h]uman rights are internally fissured:
they are used as the defence of the individual against a state power built in the image
of an individual with absolute rights” (20).’
Second, the spirit that animates or ought to animate human rights is to be found
in the Ancient world, before the decline of natural law, under the banner of “radical
natural right” and in the “rebellion of philosophy against the weight of custom and
the past” (44). Here, Douzinas asserts, we find “a non historicist but deeply historical
and cultural standard for judging the world” (45).8 Nevertheless, he recognizes the
impossibility of “a return to a pre-modem Aristotelian universe” (15). The aim of the
genealogy, then, can only be to recover the animating spirit of human rights, to
recover the “critical potential” lost when “[n]atural right was written out of modem
law” (15). In modem times, however, the ground and possibility of human rights,
animated by such a spirit, must be sought elsewhere.
Part II of the book, “The Philosophy of Human Rights”, aims to undertake a
critique (in the Marxian sense: a critique of ideology) of human rights, and more
specifically of the legal humanism that, in Douzinas’ opinion, too often animates
human rights talk today. Two points are to be noted here. First, Douzinas subjects
legal humanism to a series of seemingly devastating critiques beginning with the
more familiar critiques of Burke and Marx, then turning to critiques drawn from
Hegel, Heidegger, semiotics, and psychoanalysis. The bringing together of these
critiques is intended to demonstrate the poverty of “liberal rights theory” (371) and to
paint in its place a more complex picture-one in which the very subjectivity and
boundaries of humanity are constructed through the discourse of human rights.
Second, each of these critiques is also part of a search for a ground of human
rights. Thus, finally, in his last chapter, Douzinas turns to Levinas: “[I]f the futural
aspect of human rights is to be reinforced, it must be anchored in an ethical
interpretation of the (desire for the) other which the weak ethics of psychoanalysis
cannot support” (379). Pitting Levinas against Heidegger, Douzinas outlines an
“ethics of alterity”. Human rights “become the postmodern version of the idea of
justice or rather the expression of the sense of injustice” (354). The “infinite
7 In the introduction to The Rights of War andPeace, Richard Tuck makes a similar point. For Tuck
however, it is not simply that the state is built in the image of the individual. Rather, and conversely,
the modem, liberal agent can be imagined and understood out of the behaviour of states in
international relations (Richard Tuck, The Rights of War and Peace: Political Thought and the
International Order fivm Grotius to Kant (Oxford: Oxford University Press, 1999) at 8-9).
8 Though he discusses Aristotle and Plato, he finds them lacking in the critical potential for moral
rebellion against established authority and “dominant relations”. In so doing, Douzinas distinguishes
radical natural right from justice: “[flrom the perspective of radical natural right, justice was not a
critique but a critical apology of positive law” (44).
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responsibility” for the other “in a face-to-face encounter” becomes “concretised” and
“diluted” into a finite responsibility “to save many others whom I have never faced”
(354). According to Douzinas, the “experience of othemess can perhaps provide [the]
historically grounded transcendence” which international law and theories of human
rights cannot provide as “they vacillate between ahistorical universalism and
historicist localism” (355).
is keen
to avoid “metaphysical
Throughout his attempt to find “a place for transcendence in a disenchanted
world” (15), Douzinas
thinking”. Following
Heidegger, Douzinas recognizes that “[m]etaphysical humanism lies at the heart of an
unprecedented colonization of nature in its various meanings, as territory and
physical landscape, as human or animal nature or, as the nature of the ‘naturals’, the
indigenous people” (209). Douzinas even points to the “obvious continuity between
metaphysics and historicism,” (though the “obvious” continuity is not explicated9)
and asserts that “legal humanism is part of the same process” (244). For Douzinas,
“[m]etaphysics remains the plaything of the powerful and law, the will to etemalize
momentary relations of power” (249). Thus, Douzinas is brought to ask: “how would
a non-metaphysical approach to human rights look?” (215).
His answer is one to which we shall return below. For the moment, let us
emphasize that Douzinas recognizes that saving human rights from themselves
ultimately involves saving them from metaphysics. Indeed, whereas rights are
irremediably tied to (the metaphysics of) “humanism and subjectivity”, Douzinas
follows Ernst Bloch in asserting that human rights “hail also from another tradition,
that of critique of power, convention, and law … “”0 Human rights, as opposed to
rights simpliciter, do not simply point to the dominium of man. Human rights
themselves are not metaphysical: it is their positivization that makes them so (244).
But is it proper to think of human rights as not metaphysical?
C. Saving Human Rights from Metaphysics?
But what is metaphysics? Douzinas takes up this question most directly in his
summary of “Heidegger’s ontological critique” of legal humanism (201). Douzinas
recognizes that “[m]etaphysics believes in the existence of an ideal, transcendent
world over against which everyday reality must measure itself.” He also recognizes
that “[b]ehind metaphysics lies a simple and urgent desire: to make sense of the
disorder that surrounds us, to master finitude” (202). Thus, metaphysics is “a type of
knowledge obsessed with mastery and control. Positing an ideal meta-being and
9 Douzinas explains that “when human rights undermine the distinction between the real and the
ideal, they become the foundation of modem historicism” (242). But, as we shall see in the section
below, metaphysics is predicated on that very distinction between real and ideal. Perhaps, Douzinas
means to say that historicism is, somehow, the consummation of metaphysics.
10 This essay emphasizes Douzinas’ path and not the thought of authors whom he claims to be most
influenced by. Ernst Bloch, however, does provide much of the “negative” utopianism that pervades
Douzinas’ account.
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M. ANTAKI – THE WORLD(LESSNESS) OF HUMAN RIGHTS
measuring everything against its transcendent principles is an attempt to manipulate
the world” (204). The rise of human rights is intimately tied to metaphysics because
in modem times (after Descartes and Kant), humanity comes to occupy the position
of this transcendent ground of reality: man is taken to be the subjectum”. Humanity’s
ascendancy to the status of subject is part and parcel of the positivization of nature, of
the reduction of beings to objects invested with “value” only by human beings. 2
Douzinas asks whether human rights are not “a defensive shield against the self-
destructive horrors of metaphysical arrogance?” (209). He recognizes that human
rights “have not been successful in resisting the endless objectification of humanity.”
Further, “[w]hen [human rights] move from their original aim of resistance to
oppression and rebellion against domination, to the contemporary end of total
definition and organization of self, community and of the world, according to the
dictates of endless desire, they become the effect rather than the resistance to
nihilism” (214). Douzinas even notes that “from a strict Heideggerian position, the
concept of rights may be irredeemably associated with metaphysical humanism.”
Nevertheless, Douzinas attempts to outline a non-metaphysical approach to human
rights (which anticipates the later chapter on Levinas) by way of “some guesses”
since “[s]uch predictions cannot escape the metaphysical horizon” (215).
According to Douzinas, a non-metaphysical approach to human rights would
“reject the attempt to interpret ‘all beings as a whole’, as if some common essential
denominator lies under the historical differences and the myriad of groups and
individuals.” It “would not treat people as synthetic entities for which the prosthetic
operation of fragmentary rights satisfies disconnected wants.” And, “[c]ommunity
would not be constructed by the following of the past or obedience to tradition but by
the exposure to the other person, whose trace creates the self.” And, it “would reverse
the arrogance of subjectivity and assign rights, if at all, because, as humans, we have
been destined to be near Being and to care for the human as well as the other entities
in which Being discloses itself’ (215).
Indeed, though
[s]ome human rights may be consistent with non-metaphysical humanism … the
overall form of the social bond would change from rights and principles to
being-in-common, to the public recognition and protection of the becoming-
human with others, a dynamic process which resists all attempt to hold
humanity to an essence decided by the representatives of power. To coin a term,
” Subjectum is the Latin translation of the Greek hypokeimenon. As in grammar, the subject is
“what underlies… ”
12 Douzinas notes Heidegger’s critique of (what Douzinas calls) “[t]he value system” (207), that is
to say, the manner in which value-thinking cannot understand beings in their own being but, rather,
understands them out of the projection of value onto them by a subject. Nevertheless, Douzinas
continues to use the word “value” throughout his work. Does Douzinas continue to use the word
“value” because he disagrees with Heidegger? This is not at all evident from a reading of The End of
Human Rights. Perhaps, as we shall see below, Douzinas himself remains wedded to the metaphysics
of subjectivity. In any case, an explanation is required.
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this would be a process of ‘righting’ and not a series of rights, and, like writing,
it would open Being to the new and unknown as a condition of its humanity
(216).
Here we see Douzinas flirting with a move beyond the language of human rights.
But it is only a flirtation: human rights, at least for now, constitute our fate. For, as we
have seen and shall see further below, Douzinas sometimes recognizes that the
attachment to the language of human rights may also be an imprisonment in
metaphysics. Even his brief and suggestive reference to “righting” comes close to the
kind of metaphysical arrogance he so passionately denounces when “Being” itself is
to be opened to the “new and unknown as a condition of its humanity” (216). If it is
anything, metaphysics is the forgetting of the ontological difference, that is, the
difference between being
to
misunderstanding13) and beings. Being is no being that could be opened (or closed) to
the new and unknown. To conceive of opening or closing being to the new and
unknown is precisely to wish to turn being into a being, and thus, to begin to lose
sight of the temporality of human being-in-the-world (and of being itself-if one may
speak this way). Only by turning being into a being can humanity begin to conceive
of a mastery over beings. For example, only as a being can God be held to account for
this world. In some ways, the search for (ultimate) responsibility-the urge to hold
some being responsible, answerable for our finite existence-is metaphysics. Such a
search can also be nothing other than a desire to be done with our own responsibility.
capitalization of which usually
(the
leads
Of course, Douzinas’ aim is clearly not to allow us to be done with our
responsibility via the legitimating device of human rights language. To the contrary,
his insistence on the negative character of human rights points to the very important
appreciation that we can never be done with our responsibility:
the burden of
(in)justice is always ours to bear. As he notes, human rights fail to live up to their
potential when they begin “to relieve the burden of ethical life” (213). Nevertheless,
metaphysics, including the redemption of this world or even the desire for total justice
in this world, may still animate his project insofar as the negative character of human
rights must somehow point to a better, even perfect, future-albeit never to be
attained. The “function” of this negative future is precisely to provide some critical
leverage so that this world can be better manipulated. In Nietzschean terms, this
comes rather close to world-denying, even world-hating, ressentiment. 4 We shall
return to this world-denial in the section below.
13 As Heidegger explains, “The being of beings ‘is’ not itself a being” (our modification of the
translation “The Being of entities ‘is’ not itself an entity”) and “being is in every case the being of
some being” (our modification of the translation “Being is in every case the Being of some entity”).
Martin Heidegger, Being and lime, trans. by John Macquarrie & Edward Robinson (New York:
Harper & Row, 1962) at 26, 61. In German, all nouns are capitalized. In English, capitalizing “being”
(a) leads one to think that being is a being, and (b) tends to deify being. In German, being is “Sein”
whereas a being is “ein Seiendes”.
14 See e.g. Friedrich Nietzsche, The Genealogy of Morals and Ecce Homo, trans. by Walter
Kaufmann (New York: Random House, 1967). See Wendy Brown, States of Injury: Power and
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Indeed, Douzinas himself later asserts that though
[t]he approach to the discourse of rights adopted so far has been resolutely anti-
metaphysical … the persistence of the gap between humanity and (legal) rights,
or between the utopian moment in human rights and law, indicates that their
force and rebelliousness may be related to a metaphysical or redemptive urge
which lay dormant but has acquired renewed significance in postmodernity
(344).15
A few pages later, Douzinas states that “[i]f there is something truly ‘universal’ in the
discourse of human rights, if a metaphysical trait survives their deconstruction, this
could perhaps be the recognition of the absolute uniqueness of the other person and
of my moral duty to save and protect her” (348). And, Douzinas even states that
“[t]he ethics of alterity is as powerful a metaphysics as any humanism” (351). Thus, it
becomes easier to understand Douzinas’ earlier statement that, since “the old grounds,
the good, God, transcendental man or abstract humanity, no longer command wide
acceptance … [t]he postmodem condition seeks foundations that do not look
foundational” (246). Could it be that we have never abandoned metaphysics after all,
that we have been lying to ourselves, that we still seek foundations but merely want
them not to look foundational? Put in another way, and to follow Heidegger’s account
of Nietzsche, can an anti-metaphysical account or position ever be non-metaphysical?
II. Metaphysics as World Denial
Our own so-called “post-metaphysical times” are often understood, as Douzinas
explains, out of the disappearance of “old grounds” that “no longer command wide
acceptance” (246). For much contemporary theory, therefore, the goal has become to
present normative accounts of the structure of our basic institutions (whether national
or international) that do, would, or could secure “our” assent, and, therefore,
command wide acceptance-but without resort to the “old grounds”. 6 Douzinas
understands this will-centered and “atomocentric” approach to be “cognitively limited
and morally impoverished”–and even boring (4). Nevertheless, as we have seen, the
failure of wide acceptance to constitute adequate grounds that could replace the “old
grounds” does not mean that Douzinas has abandoned the search for ground
altogether. For example, he asserts that “the voluntarism of modem natural law
cannot provide a sufficient foundation for human rights” (68).” But, in an important
way, the modem search for ground is metaphysics, the essence of which is the denial
or the misapprehension of the world into which we are all thrown.
Freedom in Late Modernity (Princeton: Princeton University Press, 1995) for an insightful and
explicitly political account of ressentiment. See also note 28 and accompanying text.
15 Earlier, Douzinas asserts that “[in a strange almost metaphysical way, human rights ‘exist’, even
when they have not been legislated” (344). This is quite unclear and confusing.
16 The classic example of this “normative theory” is John Rawls, A Theory of Justice (Cambridge:
Harvard University Press, 1971).
“7 Though Douzinas, too, finds it difficult to resist the appeal of “wide acceptance” as ground as he
notes the “admittedly contested” character of his own “ground” (351).
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The challenge for post-metaphysical thinking then, is not the replacement of “old
grounds” with “new grounds”-for that would only replicate the problem–but
something like the “recovery of the world”. 8 As Arendt explains, “[m]odem man, when
he lost the certainty of a world to come, was thrown back upon himself and not upon this
world; far from believing that the world might be potentially immortal, he was not even
sure that it was real. … [Mlodem man at any rate did not gain this world when he lost the
other world … “19 Arendt here is following Nietzsche, who in the sixth step of his “How
the ‘True World’ at Last Became a Myth” notes that the abolition of the true world-the
other world that is the ground of this world-is, in our history, also the abolition of this
world.2 Too often “post-metaphysical” thinking turns out to be the consummation of
metaphysics: abolishing the other world does not, in itself, save this one.
Where does Douzinas’ account leave us in relation to this understanding of
metaphysics as world denial (which includes the modem search for grounds, even
those that do not look foundational)? Does Douzinas’ portrayal of the utopia of
human rights as merely a negative prefiguration of the future-and hence not a
blueprint-mean that this utopia is not, in the end, to be understood as another world
(even if unattainable)? (A) Can Douzinas insist, in the manner that he does, on the
utopian elements of human rights, and hence on a strict separation of morality and
power, without denying the being of this world? (B) Does the inability to dwell in this
world in the name of a better world never to come presuppose a moralistic
understanding of being, goodness, and philosophy? (C) The aim below will be to
provide possible-not definitive-avenues for answering these questions. Our
attempt to do so will revolve around Douzinas’ own ambivalent (though not always
explicitly so) relation to metaphysics. Each of the sections below will highlight
potential problems as well as avenues for further reflection. Each section will also
18 This way of putting the matter is inspired by the title of ElisabethYoung-Bruehl’s biography of
Hannah Arendt (Elisabeth Young-Bruehl, Hannah Arendt: For Love of the World (New Haven: Yale
University Press, 1982)). “World” is a key word in Arendt’s thought. On page 324, Young-Bruehl
recounts how Arendt originally wished to call her The Human Condition “Amor Mundi” (Love of the
World).
19 Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1998) at 320.
2 0 Friedrich Nietzsche, Twilight of the Idols and The Anti-Christ, trans. by R.J. Hollingdale (New
York, N.Y.: Penguin Books, 1990) at 50-51 [Nietzsche, Twilight of the Idols]. We have stuck to a
literal translation of Nietzsche’s title, whereas Hollingdale translates the title as “How the ‘Real
World’ at last Became a Myth”. While he translates wahre Welt as “real world,” he notes that Wahreit
is truth. In “How the ‘True World’ at Last Became a Myth”, Nietzsche points to how the abolition of
the true world entails the abolition of the apparent world as well. Elsewhere, he emphasizes the
converse: “[liet at least this much be admitted: there would be no life at all if not on the basis of
perspective estimates and appearances; and if, with the virtuous enthusiasm and clumsiness of some
philosophers, one wanted to abolish the ‘apparent world’ altogether – well, supposing you could do
that, at least nothing would be left of your ‘truth’ either” (Friedrich Nietzsche, Beyond Good and Evil,
trans. by Walter Kaufmann (New York: Random House, 1966) at 46). For a keen account of the social
scientification of law based on Nietzsche’s “How the ‘True World’ at Last Became a Myth”, see
Marianne Constable, “Genealogy and
the Social
Scientification of Law” (1984) 19 Law & Soc. Inquiry 551.
Jurisprudence: Nietzsche, Nihilism, and
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215
point to one or more potential interlocutors-interlocutors with whom a deeper
engagement could further Douzinas’ project and implicit account of “world”.
A. Utopia: Negative or Unattainable?
Throughout The End of Human Rights, Douzinas’ relation
a Hegelian
finds more
hostile. Espousing
often
reading of Kant, Douzinas
to Kant-and
especially neo-Kantianism—is
and
predominantly epistemological
than
problematic Kant’s “exclusion of passions and desires from rule-following” as well as
the “excessive formalism” of both Kant’s moral law and the “universal community”
which it presupposes (195). Ultimately, this “universal community” is of “limited
usefulness” in international human rights law because its formalism can lead it to act
“as a rationalising and legitimising device for state laws largely devoid of ethical
content” (195). Douzinas also tends to “modernize” Kant too quickly either by,
mistakenly, asserting the Kantian subject’s “transparency” to itself (189) or by
pushing Kant toward (what Douzinas seems to understand as) a Nietzschean “will to
will” (195).21 The point here is not to disparage Douzinas’ reading of Kant.22 Rather, it
is to see how a less epistemological (and possibly more ontological) reading of Kant
might reveal much affinity with Douzinas’ own Levinasian project.
First, Douzinas’ criticism of the limited “usefulness” of Kant’s account of the
moral law and universal community may reveal more about Douzinas’ own project
than about Kant’s. The central practical concept in Kant’s critical project is that of
duty. As Douzinas well knows, as is evident in his account of Levinas (e.g., 348 ff.),
duty always calls me in the first person and singles me out as subject to its demands.
The “point” of an account of duty cannot be to make room for moralistic judgments
of others-and especially not of the present or world as a whole.23 Duty brings me
back to my own finitude and to my own constant need to surpass myself in rising to
its demands-it does not bring me back to the fmitude or imperfection of others or
the world so that I can judge them. In this manner, it is quite fitting that the Kantian
project is of “limited usefulness” or “unrealistic practically”. Further, in no way could
an ontological reading of Kant lead one to understand “the universal community” as a
“legitimating device for state laws largely devoid of ethical content” (195). To read
Kant (on the moral law) as providing (purely formal) “tests” for the propriety of
21 Douzinas explains that “[b]efore modernity, will was subordinated to the ends it was supposed to
pursue within the teleological scheme of the world” (195). In modem times, then, the will becomes its
own end, hence the “will to will”. Douzinas needs to say more, however, about the complicated ways
in which teleology figures in Kant.
22 In many ways, Nietzsche is nothing but a radicalization of Kant. For example, with
Nietzsche, “In that it wills first and foremost to empower itself to command, the will attains
absolute freedom from all laws other than those it posits for itself: it may then lay claim to an
unconditioned power to legislate- and thus give a radically new sense to the kantian principle of
autonomy” (Philippe Nonet, “What is Positive Law?” (1990-1991) 100 Yale L.J. 667 at 670).
23 Douzinas writes of “judging the world” and ofjudging “reality” (see e.g., 45).
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action or political orders is to seek to deprive the Kantian account of duty from the
futurity which properly belongs to it (my duty always lies ahead of me, always calls
me to myself) and, indeed, is to displace the always first-person question of duty by
the need to judge others. On these sorts of points, Kant’s kinship with Levinas may be
worth exploring further.
Second, as can be seen in step three of Nietzsche’s “How the ‘True World’ at Last
Became a Myth”, the never-to-be-attained better future of Douzinas’ account is
already to be found in Kant. As Nietzsche writes: “[t]he [true] world, unattainable,
undemonstrable, cannot be promised, but even when merely thought of a consolation,
a duty, an imperative.” 4 If one maps Douzinas’ story onto Nietzsche’s, step three is
followed by the rise of positivism, and hence the positivization of human rights. But in
the end, this positivization of human rights (which is inherent in their ideological
triumph) leads to the abolition of the truer and better world toward which they pointed.
We have seen that Douzinas recognizes that a return to the world of the ancients is not
possible. Could it be that Douzinas’ story requires a kind of “freezing” of the history of
metaphysics (for that is what Nietzsche is describing here) at the Kantian stage? At the
stage of absolute duty without hope of attainment of the true world?
Douzinas does sometimes gesture in this direction. He writes of “the human
ability to disrupt the empirical world and pass beyond the given,” of how utopia’s
“inevitable failure” and “inescapable betrayal” shows “humanity to be an incomplete
project fired by the injustices and infamies of this world but unable to reach the state
of grace” (377). It is as if no duty, no individual action, no historical “change” would
be possible without at least the “thought” of this better, yet never-to-be-attained,
world and “state of grace”. Thus, “what is”, “what is given”, “the present”, “this
world” are all denigrated in the name of an impossible future. Indeed, future as future
cannot possibly belong to the present. Future must present itself as a constant
interference “from the outside” as it were. Similarly, this world is understood in terns
of a kind of empiricism of the given that needs to be disrupted by human action. Does
this mean that proper human action belongs to this world only to the extent that it
denies or disrupts it? The next section, then, considers a little further the question of
the extent to which Douzinas is susceptible to the kind of criticism he makes of Kant,
that is, does Douzinas’ espousal of (an albeit negative) two-worlds theory lead to a
potentially impoverished understanding of the idea of a world, and hence of this
world? We will thus be in a better position to ask whether Douzinas’ neglect of the
question of being leads him to adopt an impoverished understanding of “what is”,
“what is given”, “the present”, “this world”.
B. The Immorality of Power as the Empowerment of Morality
Though Douzinas is keen to avoid the (Kantian) separation of reason and desire
by linking his account of human rights with a (Levinasian) desire for the other, his
24 Nietzsche, Twilight of the Idols, supra note 20 at 50.
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217
account often embraces the same kind of Kantian dualisms he seeks to avoid.
Particularly apposite is his treatment of “power”. Douzinas writes of the “cynicism
and self-serving nihilism of power and power-holders” (13), of the “hypocrisy of
power” (122), of “the apologists of power”, of “the impositions of power” (340), of
the manner in which “metaphysics remains the plaything of the powerful and the law”
(249). Power appears, from the outset, as rotten to the core, even as evil incarnate.
References to positive senses of power are rare (but see e.g., 162).25 Power is
generally reduced to an unspecified combination of the will to violence and self-
interest that exists separately from a pure realm of morality. Rarely is power
understood as indispensable to understanding the human capacity “to act in concert”-
as Arendt sometimes seeks to understand it.26 Always, power needs to be redeemed by
right. More to the point: there is no right that belongs to power as power.
Early on, Douzinas notes:
the claim that power relations can be translated fully into the language of law
and rights was never fully credible and is now more threadbare than ever. We
are always caught in relations of force and answer to the demands of power
which, as Foucault argued forcefully, are both carried out and disguised in legal
forms (7).
What is worrisome is that Douzinas’ tone often suggests that power (now confounded
or entangled with force) can almost never be “translated” into the language of law
and rights. Indeed, “convention” and “law” are themselves almost irredeemably
associated with power (244). That in German or French, law is right (Recht or droit)
is mostly ignored. Law tends to be reduced to positive law (to Gesetz or loi) and right
ends up being a standard external-not internal-to law. Thus, we are led to believe
that no right belongs to law as law. We are led to denigrate law, convention, and
power simply because they have always already been understood-in a reductive
way-as almost necessarily opposed to morality.
Indeed, Douzinas turns to striking language in his pitting of morality against
power. For example, he asserts “the prophesying of a future not yet and not ever
present helps in the self-purification of moral ideas contaminated by the powerful”
25 Here, Douzinas explicates what a “real” Marxian revolution would entail. He writes: “Freedom
will stop being negative and defensive, a boundary and limit separating self from other, and will
become a positive power of each in union with others.”
26 Arendt is careful to distinguish power, strength, force, authority, and violence. Power is not
inherently “bad”. Further, those “in power” need to be “empowered” by others. As Arendt explains,
“[p]ower is never the property of an individual; it belongs to a group and remains in existence only so
long as the group keeps together” (Hannah Arendt, On Violence (New York: Harcourt, Brace &
World, 1969) at 44). Foucault, too, is careful to distinguish power from violence-and even, to an
important extent, from domination. Like Arendt, Foucault points to the belonging together of power
and freedom: “[p]ower is exercised only over free subjects, and only insofar as they are free” (Michel
Foucault, “The Subject and Power” in Hubert L. Dreyfus & Paul Rabinow, Michel Foucault: Beyond
Structuralism and Hermeneutics, 2d ed. (Chicago: University of Chicago Press, 1982) 208 at 221).
Thus, both Arendt and Foucault point to the manner in which power is “shared” and never “owned”.
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(177). Too often, power is personified or reified rather than understood as an
inescapable part of being with others. To put the matter metaphysically: only if power
is a being, can we somehow subjugate it and hold it responsible before the tribunal of
morality. Indeed, despite their numerous and built-in problems or paradoxes, human
rights remain the “main tools we have” against power (245).
However, for Douzinas, power proves to be operative in morality as well. As
Koselleck has shown, the immorality of power is nothing but the flip side of the
empowerment of morality.27 Douzinas’ search for “moral principles” underlying
human rights is, as he recognizes, inseparable from his attempt to discover “political
strategies” (8). Indeed, the Ancient discovery of nature was also a “tactical move
motivated by the need to combat the claims of authority which ruled early Greek
society” (32). And, “[t]uming nature into norm or into the standard of right was the
greatest early step of civilization but also a cunning trick against priests and rulers”
(28). Natural law too needs to draw “its power” from somewhere (“the great thinkers
of the past”) (179). The sense of rebellion or reform needs to be “powerful” (201).
Even the turn to Levinas is bound up with the need for power (to fight power): “[t]he
ethics of alterity is as powerful a metaphysics as any humanism” (351). And, the
search for ground and the search for power (or force) turn out to be the same. As we
have seen, “if the futural aspect of human rights is to be reinforced, it must be
anchored in an ethical interpretation of the (desire for the) other which the weak
ethics of psychoanalysis cannot support” (379). But whence the priority of the “if’, of
the “futural aspect of human rights”? How can such a hypothetical imperative be
permitted to command so categorically? Is it proper to think that ethical “positions”
can be “reinforced”-can sheer force buttress right? If Douzinas refuses to see the
possibility that right belongs to power as power how can he so easily see that power
belongs to right as right? Could it be that it is the (im)possibility of a final victory-
rather than the demands of right as right-that guides his account?
Indeed, morality’s always-already-achieved-victory over power may reside in the
impossibility of its victory, in the “purity” of its speech, perhaps even in its refusal to
dwell in this world, to let itself be “contaminated”. The “occasional” need for “a
remote satellite in order to get the best view of our own earth” (45) can easily lead to
a refusal to live in this world. The rebellion against power as power (and not merely
against power as violence or domination) is part of what Nietzsche refers to as a
morality of ressentiment, a “slave morality”.2″
27 See Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modem
Society (Oxford: Berg, 1988) for an account of the hypocrisy of the morality that claims power by
denying that there ought to be power as power.
28 See e.g. Friedrich Nietzsche, Beyond Good and Evil, supra note 20 at 207, where Nietzsche
explicitly links the modem tendency to moralize (clearly pejorative, not to be confused with morality
in general) with the suspicion of power and, moreover, with the suspicion of “the whole condition of
man”–indeed, “perhaps” even with “a condemnation of man along with his condition.”
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All of this may too easily sound like precisely the apology Douzinas seeks to
avoid. Must we merely accept the injustices of the present and give up on the
(unrealizable but necessary) hope of a better (though impossible) future? At this
point, we must take a step back and ask: how have we already understood “the
world”, “the present”, “what is given” such that we see the demands of being-in-this-
world as coterminous with the surrender of our capacity to judge and even to act?
One must emphasize that what is at stake here is not the possibility of judgment but,
rather, the world-denial that accompanies the need not simply to judge but to judge
“the present”, “the world”, to judge absolutely.
C. The Identity–or Not?-of Being and Goodness
The End of Human Rights’ entanglement with metaphysics comes to the fore in
the account’s acceptance of the stark dualisms of apology and utopia, power and
right, is and ought, fact and value, real and ideal. Douzinas recognizes the manner in
which one of the terms can easily collapse into the other: how utopia can collapse
into apology, how right can collapse into power and so forth. Nevertheless, holding
on to these dualisms–or at least holding on in the stark manner in which Douzinas
wishes to do so-is evidence of metaphysical thinking. When it comes to the
possibility of letting go of metaphysics, the fear is precisely that we will be left with
no ground on which to stand, no standpoint from which to judge: the fear is precisely
that of “ek-sisting”: of standing “out” in the openness of being.29 World-denial is
manifest when we understand “the identification of what exists with the good or the
true” as “the blockage, the disease” (379).
Though he does not note it, Douzinas’ account of the birth of radical natural right
(which he links to the birth of philosophy) doubles as an account of the birth of
metaphysics. For metaphysics is manifestly marked by the stark separation between
the power, “is-ness”, factuality, and reality of this world and the right, ought, values,
and ideals of the other world that grounds this one. Is not Douzinas beginning to
follow the Plato of Platonism, that is, a Plato made metaphysical, when he implies
that what exists, namely is, cannot be good or true? That what is is deficient merely
because it is? But Douzinas also recognizes that the identity of being and goodness is
the
one
inseparability of is and ought, of being and goodness. Nevertheless, he insists that
the Ancient world. Thus, he appears
that belongs to
to recognize
29 Douzinas understands existence, quoting Ferry and Renault, as the “ability to break away, to
‘wrench oneself free of codes’
(199). (Luc Ferry & Alain Renault, Heidegger and Modernity, trans.
by F. Philip (Chicago: University of Chicago Press, 1990) at 4.) Though this may, arguably, be
entailed by existence it is not existence’s primary sense in Heidegger. The problems of voice and
summarizing manifest themselves here with Douzinas turning to Ferry and Renault rather than to
Heidegger himself. As Heidegger writes, “ek-sistence means standing out in the truth of being.” In
Heidegger, ek-sistence is “thought in terms of ecstasis” and out of the belonging-to-one-another of the
human being and truth: Martin Heidegger, “Letter on ‘Humanism'” in Martin Heidegger, Pathmarks,
ed. by William McNeill (Cambridge: Cambridge University Press, 1998) 239 at 249.
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natural right is “transcendent” to “reality” and, in that sense, is an “ideal” (30).
Indeed, it is precisely the “possibility ofjudging the real in the name of the ideal” that
is born with natural right and philosophy (32). What are we to make of this?
Though the Greek physis and our future can be properly heard, and hence
understood, as saying the same, Douzinas seems to push the ancients in our direction,
as if turning their physis into our future and imputing to them a “teleological”
conception of history. Thus, his account requires an Ancient “ideal” justice “which
promises a future perfection and judges reality in its name” (45). The introduction of
a historical teleology-even if negative-into the ancient world pushes it toward a
specific kind of Christian metaphysics where is and ought can no longer belong to the
same world, where their separation is a stark one. Perfection begins to be impossible,
perhaps because it begins to be ascribed to the fate of humanity as a whole, whereas
perfection, in the Greek world (as opposed to, say, with Kant), is possible-at least
for some (although few) individuals.3″
This particular introduction of history also constitutes an introduction of
moralistic understandings of goodness (and hence of being) in which this world is in
need of redemption by the true world. The stark separation of is and ought allows one
to begin to conceive of this world as, somehow, immoral. The power and rule that
necessarily belong to this world come to be seen as irreparably tainted. Being and
goodness can no longer be understood together precisely because it is beings as a
whole-the world, the present, what is given-that we feel compelled to judge. This
need to judge absolutely contributes to the positivization of nature that Douzinas
points to (though he points to this positivization as part of the decline of radical
natural right). In this manner, Douzinas does not wish to depict philosophy as being
born out of wonder, out of wonder that there are beings rather than nothing, out of the
wonder of being.3 Rather, philosophy needs to be born as political philosophy, as
(imperious) moral rebellion, as a kind of “act of resistance” (25). In this way, the
30 See e.g. Philippe Nonet, “In Praise of Callicles” (1989) 74 Iowa L. Rev. 807 at 808 [footnotes
omitted], where Nonet refers to the myth at the end of Plato’s Gorgias:
In some, not all, Christian interpretations of Platonic thought, particularly the
Augustinian, which inspired the main themes of the Reformation, the supersensible
realm is thought almost inaccessible to man in this world. To Augustine, “our justice,
although true, is nevertheless in this life only such as consists in the remission of sins
[by God’s grace] rather than in the perfection of virtues.” Not so in Plato. The thought
that human law is necessarily futile, i.e., that there can be no salvation by good works,
is utterly alien to Plato. On this point the myth of judgment speaks quite clearly: some
men, and at least one temporal prince, Aristides the Just, reach the Islands of the
Blessed, and do so on account of their just life on earth, unaided by the grace of a
Redeemer. The good is hard to reach, but not impossible, on this earth. Only ifjustice is
attainable in this life can there be, at least in principle, such things as a just and true
rhetoric and a truthful philosophic refutation. [emphasis added]
31 On wonder as a basic attunement or mood (Stimmung), see Martin Heidegger, Basic Questions of
Philosophy: Selected “Problems” of “Logic “, trans. by Richard Rojcewicz & Andrd Schuwer
(Bloomington: Indiana University Press, 1994) at 131 ff.
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question of goodness is understood moralistically and severed from the question of
being. But can there be ethics without-or before-ontology?
Conclusion: In the End-Ontology and Ethics?
Ultimately, Douzinas wishes to follow Levinas (contra Heidegger) in asserting a
priority of ethics over ontology. Nevertheless, we are never truly presented with
Heidegger’s understanding of ontology. Douzinas remarks that “[t]his is not the place
to discuss Heidegger’s ontology in detail” (207). Rather, Douzinas points to how
Heidegger “famously refused to develop an ethics to complement ontology” (210).
Though he notes that Heidegger sought to bring ethics back to the “original Greek
meaning of ethos” and conceived of this “primordial ethics” as “an integral part of
ontology”, Douzinas nevertheless criticizes “Heideggerian ontology” which “by
privileging the relationship between beings and Being abandons ethics in favour of the
primordial ethos” (21 1).32 Douzinas prefers a Levinasian priority of the other to what he
understands as a Heideggerian preoccupation with “the ‘we’ through which we share the
world.” Indeed, “all speculation as to the meaning of Being starts from the examination of
my own being and returns to ontology’s preoccupation with the self’ (346).
Douzinas’ account of the “ontology of alterity” (350) leaves the “other” as
“ground”. Thus, “[t]he ethics of alterity is as powerful a metaphysics as any
humanism.” And, “[i]f one wants to maintain the world-shaping urge that animates
the metaphysics of subjectivity, if one wants to find an-admittedly contested-basis
for the absolute, non-historical character claimed for human rights, one must turn to
the other-dependent kernel of individuality” (351). Indeed, Douzinas goes so far as to
assert that “[a]ll humanity and every right proceed from this primacy of ethics over
being and of obligation over need or interest” (352).
We will not seek here to resolve the question of the propriety of the manner in
which Douzinas reads Heidegger (or adopts Levinas’ reading of Heidegger, or even
reads Levinas 33). For example, Derrida has already anticipated some significant ways
in which the Levinasian reading of Heidegger is quite pertinent to Douzinas’
“subjectivistic” depiction of Heidegger’s thought.34 What is of import here is that the
primacy of the other, and hence of duty is-in the end for Douzinas-intimately
related to the need to “maintain the world-shaping urge that animates the metaphysics
of subjectivity” (351). Douzinas’ understanding of transcendence turns out to be
32 For a careful account of how Heidegger’s thought is always already directed toward ethics
(properly understood), see Philippe Nonet, “Judgment” (1995) 48 Vand. L. Rev. 987.
33 Though Douzinas seems to adopt Levinas’ reading of Heidegger. Heidegger himself explains that
“the thinking that ponders the truth of being” is “neither ethics nor ontology” and prior to the
distinction between “theoretical” and “practical” thinking (Heidegger, “Letter on ‘Humanism”‘, supra
note 29 at 271-72). In other words, the pitting of different branches of philosophy (such as ethics and
ontology) against one another is not at all consonant with Heidegger’s thought.
34 See e.g Jacques Derrida, “Violence and Metaphysics: An Essay on the Thought of Emmanuel
Levinas” in Writing and Difference, trans. by Alan Bass (London: Routledge, 1978) 79 at 97.
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[Vol. 49
is not
transcendentally
itself understood
metaphysical after all: “world”
(or
ontologically). Rather, “world” must be reified or objectified so that we can transcend
it, or “shape”, or master it. Similarly, the (perhaps proper) privileging of the future in
the temporality of human being-in-the-world is tied to (the not so proper) will to
master the conditions of human existence. Duty ends up being anchored in the
(impossible) human right to remake this world in the image of a better one because
this world is not-or is not enough.
But, in the end, duty is and its being, as Kant understood, cannot be reduced to
the production of a world. Similarly, physis or nature is not, as we sometimes might
wish, reducible to a transcendent ground (even if somehow immanent to history and
“reality”) on which we can stand and judge this world. Rather physis is the self-
arising of a world35 and points us in the direction of the mystery that beings are, and
indeed, that there is (es gibt) being. 6 The quite understandable fear that leads us to
insist on a radical separation of is and ought is often a demand that the is-ness of duty,
its very being, be grounded in, or redeemed by, a better world that it might produce
for us-and this is so even if that world is understood as impossible and out of reach.
In the end, as in the beginning-and perhaps as with “the other”-duty simply
is.3 7 And with the rediscovery of duty as duty perhaps we will recover the world, this
world, our world, as well.
City, N.Y.: Anchor Books, 1961) at 11-13.
35 See e.g. Martin Heidegger, An Introduction to Metaphysics, trans. by Ralph Manheim (Garden
36 Es gibt can be translated both as “it gives” and “there is” but it is predominantly as “it gives” that
it should be heard. Heidegger turns to es gibt because “‘is’ is commonly said of some thing that is. We
call such a thing a being. But being ‘is’ precisely not ‘a being’
(Martin Heidegger “Letter on
‘Humanism”‘, supra note 29 at 255).
31 In Groundwork of the Metaphysic of Morals, Kant demonstrates the identity of freedom and duty.
He also points to the finding of reason (and hence freedom) in oneself as a showing of the being of
duty: Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. by H.J. Paton (New York:
Harper & Row, 1964).
