A Contribution to the Critique of Human Rights

Massimiliano Tomba ()

My contribution focuses on the crisis of human rights as a crisis that only becomes manifest in the recent states of emergency which interrupt the “normal” course of the liberal-democratic state. Starting from the conceptual history of the concept of human rights in their specific constellation that includes the nature of the “power” that has to protect them and the “subject of rights” as their bearer, I stress the specific modern-european origin of human rights. Therefore they share the same aporetic horizon with the modern concept of state: not only the power that has the task to guarantee human rights may always suspend or even abolish them, but the individual subjects do not have any legitimate qualification to resist against the same power. The logical presuppositions of human rights qua the conceptual basis of the modern state make impossible resistance against the power that violates them. Insofar as the concepts of the individual liberty and equality have been raised to metahistorical values, they have strengthened the european claim to be the only possible modernity. Yet, other modernities were and are possible. The condition of “bare life” that human rights have come to be associated is not suprahistorical but the result of the process of de-juridification of the subject of rights. Instead of pursuing an analysis of the increasing of the juridification of human rights on a worldwide scale, I suggest the necessity to shift our perspective: to examine critically the consolidated concepts of our representation of european political modernity, particularly of rights and law. In order to open a field of possibilities of rethinking modernity, this articles suggests a new perspective on human rights that allows us to reconsider the question of justice in a political constellation that forclosed it, and moving beyond that constellation, to re-situate human rights in a horizon of the “just life” beyond “bare life.”