A right to existence?

My very post-structuralist (foucauldian, derridean, gramscian) partner and I got into a 'discussion' yesterday evening, one of those 'discussions' that quickly deviates from its initial setting to become something else. We had started talking about Hamas and the quick retreat of many commentators and officials from a pro-democracy position. For such commentators, democratic election was insufficient for legitimacy. Of course, one of the interesting puzzles in democratic theory is how to think the limits of democracy, but that's not where our 'discussion' led.

Instead, we went from the right of Hamas to govern to the right of Israel to exist to a right to exist per se. And, I found myself taking the position that there is no right to exist; that nothing has a right to exist.

Why? It seems to me that the fact of existence is morally neutral, that it is a matter of ontology. And, to say that existence is a right is to make a kind of category mistake (one that I think Hobbes makes): one takes the fact of persistence, that what exists may strive to keep existing, to mean a right of persistence.

Well, my partner was none to happy about this. He thought that it ended up permitting murder.
I disagreed. There isn't a right to exist or not to exist. That entities will struggle against one another is, again, an ontological condition, not a moral one. My partner then accused me of being a neo-darwinian spinozaist with deleuzian tendencies (things went downhill, as it were).

I tried a different, foucauldian tack that I thought he'dl like (or get more riled up over since I'd be using his work against him). So, I say that the language of rights doesn't work here at all. Rights are instruments of political struggle (so one doesn't claim rights absolutely but within conditions, in contexts, citationally; a right to govern, then, may be contingent upon various factors, etc). At this point, my partner (who writes on these matters), says, of course, and it has been a matter of political struggle to recognize rights to life.

And, I think here that we reach a kind of impasse. Because I want to say that such a right tells us nothing and that the assertion of such a right instead gives voices to a fundamental (ontological) gap, lack, or absence that cannot be filled in or covered over by the right. Or, one might say that life exceeds rights, cannot be captured within them and that the very attempt to do is what has enabled the modern form of sovereignty (I take this to be a version of arguments raised by Foucault, Deleuze, and Agamben).

Comments

[Luke]

A brief, half-thought suggestion: the "right to have rights," as Arendt calls it, follows from the devestation of the second World War, and the population exchanges, displaced persons and refugees. Her account, found in the Part 2, Imperialism of Origins of Totalitarianism (the last few chapters of which should be read as a propaedeutic to Agamben's Homo Sacer) -- her account is not so much an argument as an assertion that this point must not be crossed again.

For Arendt, the right to have rights is normatively grounded in the assertion (without much argument) of human dignity. This value seems rooted only in the horror that awaits a world that forsakes it. But then isn't this sort of normative argument precisely that of Zizek[!]? Normative claims can only be grounded in the actions of people that create their own justifications ("the Act par excellence"). The only way to transcend the exclusionary binary of national-legal rights, Arendt argues, is through international organizations. (Although, I suspect she was unconcerned with the rights of animals or Half-animal/half-man clones -- so I can't be sure that if pushed that far, Arendt could answer Angela's reservations. But her point is suggestive: perhaps for Arendt as well rights were nothing but the reification into concept of the power of individuals working together. This at least is one answer I could see her giving.)

[TCO]

I'm not really a fan of the mysticism of rights, but you can't seriously say that children's rights are like those of pets. There is a pretty glaring error here, Angela, which leads you away from the actual problem with these things.

Children, the insane, the infirm, even brain dead persons do not lose their rights and become de facto non humans (much less noncitizens). Rather what happens is that such persons cannot exercise, or guard their own rights, the responsibility for which is thus given to another person, a guardian. In some cases, in fact surprisingly rare, the state acts as the guardian.

It is the existence of this unequal relation that underpins the rights of the incapacitated. The rights accorded to children are rights *beyond* the rights of the UN Charter, and do not overide these, precisely because their intent is to control, assure and enable the management of these people's human rights.

There is no doubt a sense in which this is all about fucking people over. Guardianship is often used to control people who are slightly odd, in a humiliating fashion.

But there is simply no sense in which a person who is put under a Guardianship Order, or who is a child, ceases to be human. Unless, bizarrely enough, you assumed that being a citizen of mens sana, were the criterion of being human. The whole point is that this is not the state's criterion; maybe some evil fucker rationalist would think that, but not our good friend, Mr. State.

These rights of the incapacitated are really in a very different situation as compared with civil rights, or even 'humanitarian rights' - meaning, the right to be tended to by some nefarious NGO scam, and the right to be pictured alongside some condescending BBC journalist. The rights of the incapacitated are rights governing the relation between two people who are conceived of by law as being unequal; it is entirely different from the rights of a citizen against a state, or between two equal persons.

The determination of who is, in fact, incapacitated is problematic and a means for the assertion of state power, but it is rather obvious that while this is related to questions of rights, the question of incapacitation arises even in the absence of a legal or moral framework of rights. So, if Angela's friend got so drunk he fell in a filthy ditch in a delirious state, she would probably not wait until morning to let him decide whether or not to go home. Maybe she would pick the guy up, take him home and maybe give him some coffee and a shower. To see what the rights of the incapacitated mean, one would have to imagine a situation in which the police then shows up and charges her with kidnapping, indecent conduct and attempted poisoning by criminally ill prepared instant coffee.

As for a right to existence, it is a transparent farce cooked up once it became impossible to say that PLO did not recognise Israel. Once that happened, Israeli rejectionists started to demand something beyond recognition of the factual situation (ok, so you guys stole our land. Fine, let's move on) to a demand that the victims concede the justice of their persecution (sure, it was your right to steal our land).

[YH]

Interesting discussion of rights in the latter half of this review article by Malcolm Bull: http://www.lrb.co.uk/v28/n03/bull01_.html

[Jodi]

Luke, the Act doesn't ground a new norm and isn't itself defended as a norm. Or perhaps I've misunderstood you?

TCO--in what sense do children, the infirm, or anyone have rights? I get a sense in your comment of rights somehow attaching to people in a semi-mystical way. If rights were political tools then of course it would be possible for the incapacitated to lose their rights--and to give them away in advance. It would be possible for children to have no rights of their own. Etc.

[s0metim3s]

Matt, does the "fishbowl" remark mean that you think not having recourse to a rights discourse risks marginalising one? If so, I'm not so sure that's the case. In my experiences around migration issues, rights talk falls on deaf ears among those who believe that 'migrants steal our jobs'. The form of address, the 'we' that is elicited by rights claims, are much more limited than is usually assumed to be the case.

Thiago/TCO, no doubt my errors are many, and that your remarks seem contradictory to me is probably one of them. In any case, all rights function as a form of delegation and/or alienation. In rights, recognition trumps theology, and revocation shadows recognition.

[TCO]

I thought I explained quite clearly how it is that the rights of the incapacitated work. The idea is that people have rights, but cannot exercise them, thus another person must be put in a position of power over them. The rights of the incapacitated govern the behaviour of this person.

Do I believe this? That's not the point. The point is that this is how the state, and the discourse of rights work.

And the whole point of that is that this isn't about nullifying someone's rights. It is about controlling the interactions of certain kinds of persons who are recognised to be in positions of responsibility over others. If you miss this, and imagine the situation resembles that of a man and his dog, you've missed the whole point (and problem) of this class of rights.

There is nothing particularly mystical about a person continuing to have rights that they cannot defend, or that they delegate to someone else. For the liberalist, you still own your property whilst asleep, or drunk. If you sleep for ever, or are permanently drunk, a person will then be appointed to take care of your property on your behalf - precisely because you still own it. These are concrete, legal structures, with precise meaning and often devasting effects for people. I know, because I used to work for the Protective Commissioner of NSW. Long story, but suffice it to say that my position here is very much hostile to this kind of talk.

You could argue they are mystical in the sense that all law is founded upon mysticism, like Pascal might have it, and there is something to that. But that is far too blunt an instrument to understand, let alone react to, what is happening to us. The alternative, or rather completementary reading is that rights of this sort a just social facts no less real, and no less metaphysical, than marriages or promises. I think that is a more promising way of tackling the issue. I don't see this as contradicting the Pascalian point, btw, precisely because I would also see mysticism as a concrete human activity we can look into.

As for what Angela said, I have no idea what that could mean. It seems to me an absurd level of abstraction to say that all rights are a form of delegation. If that is true, which I think it isn't (not because I like rights, I just think it is the wrong way of describing the trap we're in), it isn't very helpful. The first problem being - what is it that gets delegated or alienated? I'd like to see that spelled out in a language that is not in fact just the language of rights with hidden apostrophes...