Over the last year, the Anglo-Saxon model of capitalism, deregulated, free-market, greedy, based on financial gambling, cheap credit and disregard for any value other than profit has come to a crashing end. Bailouts, nationalisation, regulation have delivered a huge blow to free market idolarty. But very little was said about the deeper affinities of these policies with juridical and political strategies or about the wider repercussions of the demise of neo-liberalism.

The rise of neo-liberal capitalism coincided with the emergence of two important trends: humanitarianism-cosmopolitanism and the post-political turn.  Is there a link between recent moralistic ideology, greedy economic policies and bio-political governmentality?  My answer is a clear yes. Nationally, the bio-political form of power has increased the surveillance, disciplining and control of life. Morality (and rights) was always part of the dominant order, in close contact with each epoch’s forms of power. Recently however rights have mutated from a relative defence against power to a modality of its operations. If rights express, promote and legalise individual desire, they have been contaminated by desire’s nihilism. Internationally, the modernist edifice was undermined at the point when the completion of the decolonisation process and the relative rise in the power of the developing world, created the prospect of a successful defence of its interests.  The imposition of economic, cultural, legal and military policies attempted a reassertion of western hegemony.

Economically, when it became clear that the West could not compete in manufacturing because of its labour costs, it turned to the financial markets and the cheapest way of making money: offering loans not for investment but to consumers using their homes as guarantee. The WTO and IMF imposed the ‘Washington model’ globally: they pressurised states to open their financial sector while keeping welfare spending down. A consumer boom followed throughout the world which created super-rich elites which undermined development. The gap between the north and the south and between rich and poor has never been greater. Oxfam reported last year that more than a billion do not have enough food and live in extreme poverty. Life expectancy is close to 80 in the European north, 33 in sub-Saharan Africa. The per capita income annual of a Palestinian is $680, of an Israeli $26,000.

If globalised capitalism united the world economically, political, legal and economic strategies have been constructing a common symbolic, ideological and institutional framework. Renewed emphasis on international law and institutions, NGOs and INGOs, the global civil society accelerated the trend. Human rights are the fate of postmodernity, the ideology after the end, the defeat of ideologies. They unite, on the surface at least, (parts of) the left and right, the north and the south, the church and the state, the minister and the rebel.

In the absence of a political blueprint for this new economic, social and political configuration cosmopolitanism, an ancient philosophical idea, has mutated into cosmopolitics and is promoted as the Kantian promise of perpetual peace. Cosmopolitan capitalism is presented as globalisation with a human face: cosmopolitanism humanises capitalism, softens the side-effects of globalisation, limits oppressive and totalitarian regimes.

And yet many doubts persist. If we have accepted a common world view, have conflicts of class, ideology, nationality ceased? Obviously not: this means that either human rights have no common meaning or that the term describes radically different phenomena.  There is something more: human rights are perhaps the most important liberal institution. Liberal legal and political philosophy however have failed rather badly. Two hundred years of social theory and the three major ‘continents’ of thought do not enter the annals of jurisprudence: Hegel Marx and the dialectic of struggle, Nietzsche Foucault and power, psychoanalysis and subjectivity. As a result, advanced jurisprudence returns to the 18th century and updates the social contract with ‘original positions’, the categorical imperative with ‘ideal speech’, right answers and individuals fully in control of themselves.

The crisis of the economic model gives us a unique opportunity to examine the totality of the post-1989 settlement. The best time to demystify ideology is when it enters into crisis. At this point, it is taken for granted, natural, invisible premises come to the surface become objectified and can be understood for that first time as just that ideological constructs. Every major theme in human rights theory needs to be re-visited. Let me put forward an axiom and seven theses, which re-write the orthodox theory of rights.

The human rights axiom.  The end of human rights is to resist public and private domination and oppression. They lose that end when they become the political ideology or idolatry of neo-liberal capitalism or the contemporary version of the civilizing mission.

1. Humanity has no fixed meaning and cannot act as the source of moral or legal rules.

2. Power and morality, empire and cosmopolitanism, sovereignty and rights, law and desire are not fatal enemies. Instead a historically specific amalgam of power and morality forms the structuring order of each epoch and society.

3. The post-1989 order combines an economic system that generates huge structural inequalities and oppression with a juridico-political ideology promising dignity and equality. This major instability is leading to its demise.

4. Universalism and communitarianism rather than being opponents are two types of humanism dependent on each other. They are confronted by the ontology of singular equality

5. In advanced capitalist societies, human rights de-politicise politics and become strategies for the publicisation and legalization of (nihilistic and insatiable) individual desire.

6. The bio-political turn makes human rights tools of control under the promise of freedom.

7. Against the cosmopolitanism of neo-liberalism and empire, the cosmopolitanism to come offers the late modern principle of justice.

1.

If humanity is the normative source of moral principles and legal rules do we know what humanity is? Let me have a quick look at four steps in the history of humanity.

a. The concept of humanity is an invention of modernity. Both Athens and Rome had citizens but not ‘men’, in the sense of members of the human species. Free men were Athenians or Spartans, Romans or Carthaginians but not persons; they were Greeks or barbarians but not humans.  The word humanitas appeared for the first time in the Roman Republic. It was a translation of paideia, the Greek word for education, and meant eruditio et institutio in bona artes (scholarship and training in good conduct). The Romans inherited the idea of humanity from Hellenistic philosophy, in particular stoicism, and used it to distinguish between the homo humanus, the educated Roman and homo barbarus. As Cicero put it, ‘only those who conform to certain standards are really men in the full sense, and fully merit the epithet ‘human’ and the attribute ‘humanity’.

b. St Paul’s statement, that there is no Greek or Jew, man or woman, free man or slave (Epistle to the Galatians 3:28) introduced universalism and spiritual equlaity into western civilisation. All people are equally part of humanity; they can be saved in God’s plan of salvation. But only if they accept the faith since non-Christians have no place in the providential plan. This radical divide and exclusion founded the ecumenical mission and proselytizing drive of Church and Empire. Christ’s law of love turned into a battle cry: let us bring the pagans to the grace of God, let us impose the message of truth and love upon the whole world. The classical separation between Greek (or human) and barbarian was based on clearly marked territorial frontiers. In the Christian empire, the frontier was internalised and split the known globe diagonally between the faithful and the heathen. The barbarians were no longer beyond the city as the city expanded to include the known world. They became ‘enemies within’ to be appropriately corrected or eliminated if they stubbornly refused spiritual or secular salvation.

The meaning of humanity was vigorously contested in one of the most important debates in history. In 1550, Charles V of Spain called a council of state in Valladolid to discuss the Spanish attitude towards the Indians of Mexico.  The philosopher de Sepulveda and the Bishop Bartholomé de las Casas debated on opposite sides. Sepulveda argued that ‘the Spaniards rule with perfect right over the barbarians who, in prudence, talent, virtue, humanity are as inferior to the Spaniards as children to adults, women to men, the savage and cruel to the mild and gentle, I might say as monkey to men.’ The Spanish could enslave the Indians and treat them as barbarian savages and slaves in order to civilise and proselytise them.

Las Casas disagreed.  The Indians have well-established customs and settled ways of life, they have the ability to organise families and cities.  They are ‘unwitting’ Christians, like Adam before the Fall. His arguments combined Christian theology and political utility, in an early example of multiculturalism. Respecting local customs is good morality but also good politics: the Indians would convert to Christianity (las Casas’ main concern) but also accept the authority of the Crown and replenish its coffers, if they were made to feel that their traditions, laws and cultures are respected. But Las Casas’ Christian universalism was, like all universalisms, exclusive. He repeatedly condemned ‘Turks and Moors, the veritable barbarian outcasts of the nations’ since they cannot be seen as ‘unwitting’ Christians.

The conflicting interpretations of Sepulveda and las Casas capture the dominant ideology of Western empires, imperialisms and colonialisms. At one end, the (religious or racial) other is inhuman or subhuman. This justifies enslavement, atrocities and even annihilation as strategies of the civilizing mission. At the other end, conquest, occupation and forceful conversion are strategies of spiritual or economic development, of progress and integration of the innocent, naïve, others into humanity.

2

By the end of the 18th century, the foundation of humanity was transferred from God to (human) nature, the concept of ‘man’ came into existence and soon became the absolute and inalienable value around which the whole world revolved.

The great 18th century declarations pronounced natural rights inalienable because they were independent of governments, temporal and local factors and expressed in legal form the eternal rights of man. Yet, the tradition of humanism which eventually led to the contemporary human rights culture repeats the classical gesture.

The French Declaration is quite categorical as to the real source of universal rights.  Let us follow briefly its strict logic. Article 1 states that ‘men are born and remain free and equal of right’, Article 2 that ‘the aim of any political association is to preserve the natural and inalienable rights of man’ and Article 3 proceeds to define this association: ‘The principle of all Sovereignty lies essentially with the nation.

Here we have the typical action of the performative declaration. It creates what it claims simply to announce. Rights are declared on behalf of the universal ‘man’, but it is the act of enunciation that creates them and that of a new type of political association, the nation and its state, to become the sovereign law-maker and secondly, of a particular ‘man’, the national citizen, to become the beneficiary of rights. From that point, statehood, sovereignty and territory follows a national principle and belongs to a dual time. If the Declaration inaugurated modernity, it also started nationalism and all its consequences: genocides, ethnic and civil wars, ethnic cleansing, minorities, refugees, the stateless.  The constitutions introduced a historical teleology, which promised the future unification of nation and humanity. The two variants opened at the time of the Roman empire were evident: imperialism, in the Napoleonic wars in which the nation claimed to be the expression of humanity and to spread through conquest and occupation its civilising influence to the world, and the beginnings of a new cosmopolitanism, in which slavery was abolished and colonial people were given political rights for a limited time after the Revolution. The aspiration here is that humanity will overcome national differences and conflicts in a global civil society.

‘Man’ functions as the ontological principle of modernity as an imaginary foil for the national citizen, the real beneficiary of rights. The nation-state comes into existence through the exclusion of other people and nations. The modern subject reaches her humanity by acquiring political rights of citizenship, which guarantee her admission to the universal human nature by excluding from that status others.  The alien as a non-citizen is the barbarian.  He does not have rights because he is not part of the state and he is a lesser human being because he is not a citizen.  One is a man to greater or lesser degree because one is a citizen to a greater or lesser degree. The alien is the gap between man and citizen. In globalised world not to have citizenship to be a refugee is the worst fate. Human rights do not exist: if given on account of humanity and not membership of some intermediate group then refugees or those in Guatanamo in your detention centres and our high security prisons should have them. They have none they are bare life, homines sacri of the new world order.

These two definitions of (in)humanity are still active. The ‘axis of evil’, the ‘rogue states’, the ‘indecent regimes’, the ‘butcher of Baghdad’, the ‘beast of Belgrade’, the ‘bogus refugee’ are contemporary heirs to Sepulveda’s ‘monkeys’, epochal representatives of inhumanity. At the other end, the helplessness, passivity, under-development of the victims of natural and man-made disasters that crowd our humanitarian campaigns turns them into the infants of humanity, ourselves in a state of nascency. They are victimized and sacrificed by their own radical evil; they are rescued by us who help them grow, develop and become our likeness.

3

Why and how did this combination of neo-liberal capitalism and humanitarianism emerge?  Human rights and their dissemination are not simply the result of the liberal or charitable disposition of the West.  Global moral and civic rules are the necessary companion of the creation of world neo-liberal capitalism. Over that last 30 years, global legal rules regulating investment, trade, aid and intellectual property.  Robert Cooper, an adviser to the British government, has called it the voluntary imperialism of the global economy. ‘What is needed then is a new kind of imperialism, one acceptable to a world of human rights and cosmopolitan values.’

We can find parallels with the emergence of early capitalism. The legal system first developed the rules necessary for the regulation of capitalist production, including the protection of property, contract and the development of legal and corporate personality. Only later did civic rules emerge, mainly with the creation of civil and political rights, which led to the creation of the modern subject and citizen. Similarly today the rules of the new voluntary imperialism are supplemented by various rights treaties which prepare the world citizen, highly moralised and regulated, but also highly materially differentiated despite the common rights that everyone should enjoy from Helsinki to Hanoi.

The (implicit) promise to the developing world is that the violent or voluntary adoption of the market-led, neo-liberal model, of good governance and limited rights will inexorably lead to Western economic standards. This is fraudulent. Historically, the Western ability to turn the protection of formal rights into a limited guarantee of material, economic and social rights was based on huge transfers from the colonies to the metropolis. While universal morality militates in favour of reverse flows, Western policies on development aid and Third World debt, indicate that this is not politically feasible. Indeed, the successive crises and re-arrangements of neoliberal capitalism lead to dispossession and displacement of family farming by agribusiness, to forced migration and urbanisation. These processes expand the number of people without skills, status or the basics for existence. They become human debris, the waste-life, the bottom billion.

As Immanuel Wallerstein put it, ‘if all humans have equal rights, and all the peoples have equal rights, then we cannot maintain the kind of inegalitarian system that the capitalist world-economy has always been and always will be.’ When the unbridgeablility of the gap between the missionary statements on equality and dignity and the bleak reality of obscene inequality becomes apparent, human rights — rather than the elimination of war — will lead to new and uncontrollable types of tension and conflict. Spanish soldiers met the advancing Napoleonic armies, shouting ‘Down with freedom!’ It is not difficult to imagine people meeting the ‘peacekeepers’ of the New Times with cries of ‘Down with human rights!’

Human rights and humanitarianism become tools for the biopolitical operation of power best captured in a Swiftian modest proposal of our times presented in a recent article in the Harvard Journal of Human Rights: ‘individuals may be killed intentionally if their expected death is compensated [sic] by more than an equivalent expected increase in enjoyment of human rights.’ In this humanitarian calculus, enjoyment trumps death; the target of power is precisely life. You are killed in order to live happily everafter;

Social and political systems become hegemonic by turning their ideological priorities into universal principles and values. In the new world order, human rights are the perfect candidate for this role. Their core principles, interpreted negatively and economically, promote neo-liberal capitalist penetration. Under a different construction, their abstract provisions could subject the inequalities and indignities of late capitalism to withering attack. But this cannot happen as long as they are used by the dominant powers to spread the ‘values’ of a nihilistic ideology. The critique of injustice cannot be formulated in the terms of a discourse that supports the arrangements producing injustice.

Despite differences in content, colonialism and the human rights movement form a continuum, episodes in the same drama, which started with the great discoveries of the new world and is now carried out in the streets of Iraq: bringing civilisation to the barbarians.  The claim to spread Reason and Christianity gave the western empires their sense of superiority and their universalising impetus. The urge is still there; the ideas have been redefined but the belief in the universality of our world-view remains as strong as that of the colonialists. There is little difference between imposing reason and good governance or between proselytising for Christianity and human rights.  They are both part of the cultural package of the West, aggressive and redemptive at the same time.

4

Today the debate about the meaning of humanity as the ground normative source is conducted between universalists and communitarians. The universalist claims that cultural values and moral norms should pass a test of universal applicability and logical consistency and often concludes that if there is one moral truth but many errors, it is incumbent upon its agents to impose it on others.

Communitarians start from the obvious observation that values are context-bound and try to impose them on those who disagree with the oppressiveness of tradition.  In Kosovo, Serbs massacred in the name of threatened community, while the allies bombed in the name of threatened humanity. Both principles, when they become absolute essences and define the meaning and value of humanity without remainder, can find everything that resists them expendable. Both positions exemplify, perhaps in different ways, the contemporary metaphysical urge: they have made an axiomatic decision as to what constitutes the essence of humanity and follow it with a stubborn disregard for opposing arguments.

The individualism of universal principles forgets that every person is a world and comes into existence in common with others, that we are all in community. Being in common is an integral part of being self: self is exposed to the other, it is posed in exteriority, the other is part of the intimacy of self. My face is ‘always exposed to others, always turned toward an other and faced by him or her never facing myself.’

Indeed being in community with others is the opposite of common being or of belonging to an essential community. Most communitarians, on the other hand, define community through the commonality of tradition, history and culture, the various past crystalisations whose inescapable weight determines present possibilities. The essence of the communitarian community is often to compel or ‘allow’ people to find their ‘essence’, common ‘humanity’ now defined as the spirit of the nation or of the people or the leader. We have to follow traditional values and exclude what is alien and other. Community as communion accepts human rights only to the extent that they help submerge the I into the We, all the way till death, the point of ‘absolute communion’ with dead tradition.

From our perspective, humanity cannot act as a normative principle, nihilistic or mythological. Humanity is not a property shared. It is discernible in the incessant surprising of the human condition and its exposure to an undecided open future. Its function lies not in a philosophical essence but in its non-essence in the endless process of re-definition and the necessary but impossible attempt to escape external determination. Humanity has no foundation and no ends, it is the definition of groundlessness.

5

Rights are the terrain on which people are distributed into rulers, rules and excluded. Power’s mode of operation is revealed, if we observe what people are given or deprived which rights at a particular place or point in time. In this sense, human rights have only paradoxes to offer. Marx was the first to realise this paradox. Natural rights emerged as a symbol of universal emancipation, but they were at the same time a powerful weapon in the hands of the rising capitalist class, institutions securing and naturalising dominant economic and social relations. They were used to take out of political challenge the central institutions of capitalism such as property, contractual relations, the family, religion thus providing the best protection possible. Ideologies, private interests and egotistical concerns appear natural, normal, in the public good when glossed over by the rights vocabulary.

But at the same time, the spaces, the liberties and the rights won by individuals in their conflicts with state power prepared a tacit but increasing inscription of individuals’ lives within the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves.’

If classical natural rights protected property and religion by making them ‘apolitical’, the main effect of human rights is to de-politicise politics itself.   Let us introduce a key distinction in recent political philosophy between politics (la politique) and the political (le politique). Philippe Lacoue-Labarthe and Jean-Luc Nancy. According to Chantal Mouffe, politics is the terrain of routine political life, the activity of debating, lobbying and horse-trading that takes places around Westminster and Whitehall. The ‘political’, on the other hand, refers to the way in which the social bond is instituted and concerns the deep rifts in society.  Politics organises the practices and institutions through which order is created, normalising social co-existence in the context of conflict provided by the political.

The political as the dimension of antagonism constitutive of society follows Carl Schmitt. It is the ineliminable antagonism serv[ing] as the condition of possibility for the limited and channelled struggles of both domestic and international politics.’ Alain Badiou too argues that two possibilities of action exist in each political situation: ordinary politics is the realm where established interests, accepted differences and approved knowledge give recognition to identities and sanction existing distributions and hierarchies. But every situation includes a ‘void’, the possibility of radical break.  These breaks or singular innovations are called ‘events’. The sites where these truths might emerge are close to the most anonymous and vulnerable of the people, places considered as empty or void by the dominant forces.

The French philosopher Jacques Rancière, draws a similar distinction. Normal politics (or ‘policing’ as he calls it) aims at (re)distributing benefits, rewards and positions without challenging the overall social balance. This type of politics has two dominant approaches. The economic: here politics is the field where negotiation and compromises between competing forces are worked out, accounted and aggregated. Individuals and groups act as rationally driven pursuers of interest and politics turns into an activity resembling the market-place.   In the deliberative model, politics follows argumentative and communicative ethics and becomes the field where rational consensus about public goods can be reached. They become an approximation of the Habermasian ‘ideal speech situation’.

If however conflict and strife are inescapable condition of life, the attempt to subject politics to moral principles or to determine them purely according to instrumental rationality is descriptively inaccurate and politically suspect. The replacement of conflict by a collaboration of enlightened bureaucrats and liberal multiculturalists has dire effects. The state becomes the muscleman for the market internally and a superficially tolerant enforcer of humanitarianism externally. But when the political is foreclosed from the symbolic realm and departs politics, it returns in the real as radical evil, racist violence, extreme and destructive fundamentalism.

Conflict does not disappear. Antagonism is the result of the tension between the structured social body, where every group has its role, function and place, and what Rancière calls ‘the part of no part’.  Such groups have been radically excluded from the social order; they are invisible, outside the established sense of what exists and is acceptable. Politics proper erupts only when an excluded part demands to be included and must change the rules of inclusion to achieve that. When they succeed, a new political subject is constituted, in excess to the hierarchised and visible group of groups and a division is put in the “common sense” about what is given, about the frame within which se see something as given.’

Let me give some examples of this process which involved the radical challenge and change of the ‘regime of visibility’ of a particular society and epoch: the proletariat in Marxist theory(the political organization of the working class), feminism, the black struggle in South Africa. Last December something similar happened in the Athens insurrection. When the radically excluded protest the wrong they suffer, they present themselves as representatives of the whole society, as stands-in for the universal. We, the nobodies, they proclaim, are everything against those who stand only for their particular interests. Political conflict brings together the structured whole and the excluded representative of the universal into one place and rewrites the rules of inclusion and exclusion. Before the transformation, political change is a matter of policing and consensus.  After the change, politics returns to normality; its terrain has modified, however, through the inclusion of the new group or subject and the re-definition of the rules of political legitimacy.

The role of right-claims can be seen as a reinforcement rather than challenge of the status quo. First, it accepts the established power and distribution orders. The political claim is transformed into a demand for admission to the law. The role of law is to transform social and political tensions into a set of solvable problems regulated by rules and hand them over to rule experts. Rights work in their daily routine operation as tools for expressing and promoting established political arrangements and socio-economic distributions. The rights claimant is the opposite of dissidents and revolutionaries, whose task was to change the overall design of the law. To this extent, his actions abandon the original commitment of rights to resist and oppose oppression and domination. Those ‘excessive’ subjects, who stand for the universal from a position of exclusion, have been replaced by social and identity groups seeking recognition and limited re-distribution.

In the new world order, however the access of the excluded to rights is foreclosed by political, legal and military means. Economic migrants, refugees, prisoners in the war on terror, torture victims, inhabitants of African camps, these ‘one use humans’ are the indispensable precondition of human rights but at the same time the living, dying rather, proof of their impossibility. Successful human rights struggles have undoubtedly improved the lives of people by marginal re-arrangements of social hierarchies and non-threatening re-distributions of the social product. But their effect is to de-politicise conflict and remove any possibility of radical change.

We can conclude that human rights both conceal and affirm the dominant structure but they can also reveal inequality and oppression and help challenge them. This double operation refers us back to the distinction between the ontological level (the political) and the ontic (routine politics). Following Jean-Luc Nancy, the political is where Being opens and reveals itself, ‘the site where what it means to be in common is open to definition.’ In this sense, the political is another name for the ontological togetherness of people, the being together of community (to come). Politics, on the other hand, is the ‘play of forces and interests engaged in a conflict over the representation and governance of social existence.’

Politics both opens a gap and builds a bridge; it is where representations conceal and reveal Being in the dealings, negotiations and justifications of routine daily transactions. This approach allows us to understand the error of Carl Schmitt and his followers.  His emphasis on the relationship between friend and enemy is extremely perceptive as regards the international stage. But the emphasis on the relationship to the external enemy forecloses the understanding of domination and permanent struggle within the social body.  The modern sovereign asserts and tries to acquire omnipotence (the power to suspend the law) precisely because the domination it represents and supports is under threat from internal social forces. The constitution of the political is involved with inherent antagonisms, both revealed and concealed in daily politics.

Isn’t this precisely the operation of human rights too? Human rights claims and struggles bring to the surface the exclusion, domination and exploitation and the inescapable strife that permeates social and political life.  But at the same time, they conceal the deep roots of strife and domination by framing struggle and resistance in the terms of legal and individual remedies which, if successful, lead to small individuals improvements and a marginal re-arrangement of the social edifice. Can the politics of human rights open the particular to the claims of the empty universal? The intrinsic link early natural rights with (religious) transcendence opened the possibility. It is still active in parts of the world not fully incorporated in the biopolitical operations of power. But only just. The metaphysics of the age is that of the deconstruction of essence and meaning, the closing of the divide between ideal and real, the subjection of the universal to the dominant particular.  Economic globalisation and semiotic monolingualism are carrying this task out in practice; its intellectual apologists do it in theory.  The political and moral duty of the critic is to keep the rift open, to discover and fight for transcendence in immanence.

6

The biopolitical organization of power is evident in all important political phenomena, from the war on terror to mass migration and refugee policies, from public health initiatives to demographic interventions; from security and insurance policies, the famous risk society we supposedly live in, to emergency legislation and the so-called securitization of international policies.

Biopower is the exercise of power on bios, life, the disciplining of the social body through the control of life processes. It extends from the depths of consciousness to the bodies of the population, to the collective existence of social groups specified in terms of race, ethnicity, religion or gender. These technologies of power are supplemented by technologies of self, or modes of subjectification, in which individuals can be made to work on themselves through practices and technologies of self in the name of individual or collective life or health.

Early human rights were historical victories of groups and individuals against state power; but as Wendy Borwn put it, they ‘simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves.’ With the proliferation of bio-political regulation, the endlessly multiplying rights paradoxically increase power’s investment on bodies. These developments are reflected in the operation of the legal system. In a complementary process, areas of private activity are increasingly regulated, while public services and utilities have been released from their re-distributive aims and given over to the disciplines of private profit and the market. As a result, the modern legal system abandons the unrealistic claim that it forms a consistent system of norms and starts resembling an experimental machine ‘full of parts that came from elsewhere, strange couplings, chance relations, cogs and levers that aren’t connected, that don’t work, and yet somehow produce judgements, prisoners, sanctions and so on.’

The parallel processes of juridification and de-regulation mean that the formal sources of normativity are being seriously weakened. Rules no longer express democratic sovereignty or the liberal formalization of morality. They are treated by legislators and citizens in a purely utilitarian way. Laws are frameworks for organizing private activities, reducing market uncertainties and lowering transaction costs. Even Jurgen Habermas, despairs: ‘In this postpolitical world the multinational corporation becomes the model for all conduct. The impotence of a normatively guided politics…is only a special case of a more general development. Its vanishing point is a completely decentered world society that splinters into a disordered mass of self-reproducing and self-steering functional systems.’  According to the World Bank, the rule of law is necessary in developing states ‘to create a sufficient stable setting for economic actors – entrepreneurs, farmers and workers – to assess economic opportunities and risks, to make investments of capital and labour, to transact business with each other, and to have reasonable assurance or recourse against arbitrary interference or expropriation.’ This is a sad remnant of the honourable tradition of the rule of law always a little overblown in its substantive claims but useful in its formal organisation.

All key themes of legality are being undermined. The law is expanding but at the price of becoming open, decentred, fragmented, nebulous and multiform. Outside the trappings of central power, law is increasingly law because it calls itself law.  Its legitimacy at street level is based on its ability to mobilise the icons of legality and the force of the police.  Detailed regulation emanating from local, national, supranational and international sources penetrates all areas and aspects of life. From the most intimate and domestic relations to global economics and communication processes, no area is immune from state or market intervention. Everything, from the composition of tinned food to the liberation of Iraq and torture finds its way in (public or private) law. But this is a law that has force but no validity.

Let me give you a few examples from international economic law. The World Bank uses human rights for bio-political intervention in the former communist states and the Third World. ‘Education packages’ aim to teach the ‘cultural, political, national values’ of market capitalism and to train in the skills of efficiency and compliance.  Reproduction, health and sanitation, nutrition, youth development, population control, HIV/AIDS bring together international economic institutions, NGOs and human rights activists in a huge operation of bio-political control of the poor. In Third World states, ‘whole populations are policed, the criterion of selection being whether one’s community or demographic group has been targeted for an aid project.’ Human rights reinforce the process of normalisation by subjecting all aspects of bodies to political control, from private and intimate to public life and work.

This omnivorous – public or private – regulatory activity means that some legal statements take a normative – ‘ought’ – form; most are descriptive following some scientific or policy expertise. If modern law claims to regulate the world, postmodern just mimics it.  In a Borges’ story, the mythical cartographers of empire asked to produce the most accurate possible map ended with one the same size as the territory it mapped. The law repeats the enterprise; it has undertaken the most accurate mapping of society, a process that will end up with law and the natural life of society or, with order and desire becoming co-extensive and in perfect synchrony.  Modern law (and the metaphysics of modernity) opened a distance, occasionally small almost nothing, between itself and the order of the world.  Now this distance is fast disappearing in the vast expanse of law-life. But this is a law with force but without value or normative weight, a law that constitutes and constraints but does not signify. ‘Nothing is more dismal’ writes Giorgio Agamben ‘than this unconditional being-in-force of juridical categories in a world in which they no longer mirror any comprehensive ethical content: their being-in-force is truly meaningless.’

Despite the illusions of liberals, both citizenship and autonomy are on the retreat and no alternative global vision appears on the horizon. Citizenship was defined in the context of the nation-state through limited participation in the exercise of sovereignty. Autonomy had a moral element, which linked the person to the public sensus communis of similar rational and moral beings. Today people are increasingly detached from the solidarity national democracies offered and autonomy has become a-moral, a synonym for private freedom of choice. Law appears at its most imperialistic at the precise moment when it starts losing its specificity.  Rights as much as regulatory norms abandon their normativity in order to normalise. The legal rule of empire: everything that happens is potentially legal; if nothing happened that would be legal too.

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Against imperial arrogance and cosmopolitan naivety, we must insist that global neo-liberal capitalism and human-rights-for-export are part of the same project. The two must be uncoupled; human rights can contribute little to the struggle against capitalist exploitation and political domination.  Their promotion by western states and humanitarians turns them into a palliative: it is useful for a limited protection of individuals but it can blunt political resistance.  Human rights can re-claim their redemptive role in the hands and imagination of those who return them to the tradition of resistance and struggle against the advice of the preachers of moralism, suffering humanity and humanitarian philanthropy.

Liberal equality as regulative principle has failed to close the gap between rich and poor. Equality must become an axiomatic presupposition: People are free and equal; equality is not the effect but the premise of action. Whatever denies this simple truth creates a right and duty of resistance. The equality of legal rights has consistently supported inequality; axiomatic equality (each counts as one in all relevant groups) is the impossible boundary of rights culture. It means that healthcare is due to everyone who needs it, irrespective of means; that rights to residence and work belong to all who find themselves in a part of the world irrespective of nationality; that political activities can be freely engaged by all irrespective of citizenship and against the explicit prohibitions of human rights law.

The combination of equality and resistance projects a generic humanity opposed both to universal individualism and communitarian closure. This is the promise of the cosmopolitanism to come.  In the era of globalisation, of global communications, of mondialisation (worlding) we suffer from a poverty of the world. Each one of us is a cosmos but we no longer have a world only a series of disconnected situations. Everyone is a world, a point of knotting of past events and stories, people and encounters, desires and dreams. This is also a point of ekstasis, of opening up and moving away, immortals in our mortality, symbolically finite but imaginatively infinite.

The cosmopolitan capitalists promise to make us citizens of the world under a global sovereignty and a well-defined and terminal humanity. This is the universalisation of the lack of world, the imperialism and empiricism to which every cosmopolitanism falls. We must remain vigilant against the Stoic, Roman, Christian filiations with their patriarchal and colonial legacies. But we should not give up the universalising impetus of the imaginary, the cosmos that uproots every polis, disturbs every filiation, contests all sovereignty and hegemony. We must invent or discover in the European genealogy of cosmopolitanism whatever goes beyond and against itself, the principle of its excess.

The cosmopolitanism to come is not the terrain of nations not an alliance of classes although it draws from the treasure of solidarity. Dissatisfaction with nation, state and international comes from a bond between singularities, which cannot be turned either into a community or into a state. The cosmos to come is the world of each unique one, of whoever or anyone; the polis is the infinite encounters of singularities. What binds me to an Iraqi or a Palestinian today is not membership of world state or community but a protest against citizenship, against membership in community or political entity, a bond that cannot be contained in traditional concepts of community or cosmos or of polis or state.