1 Introduction

In one of his last exhibits, entitled “Animal Body Worlds,”³⁵¹ shown at the Senckenberg Museum in Frankfurt, among other places, the now famous physician-plastinator Gunther von Hagens³⁵² invited us on a gripping journey in which we contemplated the anatomy of all sorts of animals. Sometime we saw their external appearance, sometimes their inner composition, including the fine red-lace circulatory system. After the sharks, the crabs, the ostrich and bear, the horse, camel, elephant, giraffe, and gorilla, visitors reached the exhibit’s final animal: a man, named “Chatterbox,” skinless, holding a cellphone to his ear. Here was a stunning reminder that humans too are animals. More fragile than many other animals but also the inventor of technologies as powerful as the mobile telephone – strong enough to kill them should they, for example, drive while telephoning – humans belong to a strange species that never stops asking itself questions: about its origins, about the point at which some anthropological fragment can really described as human, about the conditions of its survival, and about what it owes to future generations, about what it is to be human – or inhuman.

If von Hagens’s exhibit ended so strikingly, it is not only because it provided a short cut to the view of humans as a singular animal species but also because it used a cadaver to do so. Why? Certainly, it is banal to say that death and humanity are linked. When we look for what characterizes humankind, we find the following responses: humans are the animals that laugh, that have the ability to reason, that have logos. But we also frequently say: humans are the only creatures who know they are going to die, the only ones who bury their dead. It is therefore equally unoriginal to examine humanity through the lens of death, simultaneously as an abstraction and as a material object – a cadaver. Nonetheless, the point of view becomes slightly more original when a third party joins the picture – the law. That is, the law of cadavers, at least as a case study from a French perspective, seems to us, for two reasons, to be an appropriate entry point for an analysis of the humanity of humans.

First, at the end of the Second World War, and then again in the 1990s, new concepts sprang up in the law, especially the penal law: crimes against humanity, first, and then crimes against the human species. They juridicized, we might say, a concept, humanity, which until then had belonged more to the fields of political philosophy or biology. The advent in international law and then in domestic French law of these two offenses raises a crucial question: what humanity are we talking about? Humanity understood as a cultural, historical, and anthropological process, or as a biological fact? To put it simply: French law has criminalized reproductive cloning and eugenics as injuries to the human species, after having criminalized the acts of those who injured the humanity of humans; it thus draws a parallel between these two behaviors that, at the same time, it distinguishes. Although this demarcation is, we think, justified, it nonetheless establishes two visions of humanity in the law – one pulling toward the biological, the other toward the cultural.

Secondly, French law over the past twenty years has, like society, been fascinated not only by death, but also by cadavers, in precisely the same two dimensions, cultural or social, and biological.³⁵³ Here we are, at the beginning of the twenty-first century, far from the denial of death that is claimed to have characterized the 1950s to the 1980s and about which so many historians, philosophers, sociologists, and anthropologists wrote, including Geoffrey Gorer, Philippe Ariès, Michel Vovelle, Norbert Elias, Jean Ziegler, and Edgar Morin. Two authors have demonstrated both this change and the biases and exaggerations of those arguments.³⁵⁴ In any case, far from being masked or hidden, the cadaver today is offered for viewing and is the object of diverse practices (dressing and presentation of stillborns, dispersion of ashes, restitution by museums of human remains taken from the indigenous populations of other countries, exhibition of plastinated cadavers). In disputes, judges make decisions about these practices, decisions that demonstrate in any case that the cadaver is now an object affecting the balance between the power of the state and individuals’ wishes.

This juridicization of the cadaver takes place logically through the standard categories of the law, although it fits them uncomfortably. Classically, as we know, in the Roman legal tradition, an object that has a legal life is either a person or a thing. For cadavers, which are, after all, dead bodies, things are more complicated. On the one hand, their materiality cannot be doubted; they decompose, can be reduced to ashes, can be (technically and physically, but not legally) dismembered, stolen, purchased, and so on. On the other hand, no one doubts that the cadaver was a person. The question, symmetrically inverse, of whether an embryo must be protected in the name of the person that it might some day become is infinitely more complex. To protect the cadaver, then, are we required to liken it to the person it once was? Ill at ease with the summa divisio (fundamental division) (I), French law tries to cope by likening the cadaver to the human, but we are not sure that doing so tells us anything about the humanity of humans (II).

2 The cadaver – between a thing and a person

Faced with the reification of the cadaver, French law takes an ambiguous position, simultaneously reifying the cadaver and humanizing it. In fact, it embraces the increasingly diverse forms that the disposition of cadavers and human remains now take (see (1), below). Concerned with imposing its vision of public policy, it checks this reifying momentum by surrounding the thing that is the cadaver with a halo of humanity. In so doing, French law seems to establish a third category, between people and thing – the human entity (see (2), below).

1. (1) It is essential to acknowledge that in French law a cadaver is a thing. This qualification is far from recent. The civil law classically held that the legal personality ends immediately with the subject’s death. In contrast to the argument provoked when attempting to fix the moment that personhood begins, everyone agrees today that physical death – and it alone – ends legal personhood.³⁵⁵This is not to say, of course, that the medical or legal definitions of death are settled or unarguable. On the contrary, numerous technical and medical advances – in maintaining patients in a persistent vegetative state, in conserving organs after brain death, in reading the mind of non-communicative patients through various neuroimaging techniques,³⁵⁶ as well as the recent discovery of living stem cells in cadavers – all support the idea that the barriers between the living and the dead, between people and things, are permeable. At this stage, however, we just want to stress that the law, and in particular the civil law, must ensure that a cadaver is a thing, at least insofar as the personhood it previously hosted has disappeared. It would be a contradiction, to say the least, to confer a semblance of personality on remains, on the tangible manifestation of the person now vanished.

Nonetheless, progressively and, today, strikingly, the law’s interest has moved from the conditions of the person’s appearance on the legal scene – the legal personality – towards the very materiality of the cadaver that manifests the subject’s death. In recent years we have witnessed a multiplication of the legal uses of cadavers; I am thinking principally of the legalization of post-mortem organ removal for transplantation or for scientific research³⁵⁷ – which incidentally but significantly has led the legislator to switch from the classical cardiological definition of death to the contemporary brain death criterion – and of the dispersion of ashes in the great outdoors, except on public roads.³⁵⁸ And the law, or, more precisely, courts and judges, have also had to respond recently to strange questions: is a public exhibit of plastinated human cadavers legal?³⁵⁹ Can the neighbor of a person who died during the 2003 heat wave be compensated for the damage that the oozing of the decomposing cadaver produced in her apartment?³⁶⁰

1. (2) Although the uses, serious or weird, of the cadaver are well attested, and even though individual wishes have more effect than they used to have, the domain remains largely imprinted by considerations of public policy. For public health reasons, it is the state that has the priority interest in cadavers, and no one can do whatever he wants with his last remains, his final fleshly home. Cryopreservation thus remains forbidden. The justifications, explicit or implicit, for this limitation have varied: earlier, public hygiene was invoked, or the need to be able to investigate suspicious deaths. Today, to oppose, in particular, the conservation of ashes in private places, the authorities talk about the harmful psychological effect that “privatizing” ashes might have on the needs of the living for consolation. Some authors, very critical of this movement, have gone so far as to link the recent transformation of the destination of ashes, by the law dated December 19, 2008, cited above, with a certain concept of the nation state: the fact that the public authorities do not authorize the maintenance of ashes at home, nor their anonymous dispersion in the great outdoors³⁶¹ is claimed to attest to a “living–dead community” promoted by a nation state concerned with controlling its territory and with taking steps so that no one and nothing, not even fragments of human remains, escapes it.³⁶²

This very critical assertion is perplexing: the law dated December 19, 2008 clearly continues to authorize the dispersion of ashes in natural settings, the major demand of cremationists³⁶³ in the 1970s; there is no inconsistency at all in requiring that this action be reported. It is logical to require information about the location of both births and deaths and to treat all dead bodies equally, both those decomposing underground and those that were cremated. Accordingly, French law requires that the bodies of stillborn children that are not claimed by the parents must be cremated or buried. If the parents claim them, the hospital must return them, but not before recording all the relevant information about the body. “Wandering is now forbidden for children’s cadavers and professional intervention is increasingly codified for this purpose.”³⁶⁴

Nonetheless, it is certainly interesting to seek to understand the new reasons that motivate the state’s regulation of cadavers and, perhaps, especially to pinpoint the legal forms this regulation takes. It seems to me that in recent years the protection of the dead body against violations considered, rightly or wrongly, unacceptable has taken place not by the legally implausible personification of the cadaver but by its humanization, even its overhumanization, demonstrated in both the Penal and the Civil Codes.

Since 1810, the Penal Code has criminalized as an “offense against the laws of burial” the violation of graves, tombstones, etc.³⁶⁵ Since the new Penal Code went into effect on March 1, 1994, the offense has been expanded to concern not only the container – the grave or tomb or tombstone – but also its contents – the cadaver.³⁶⁶ Moreover, the offense is now classified in the section on crimes against the human person, and, more precisely, on injuries to their dignity.³⁶⁷ Certainly, the titles of the Penal Code are not normative but only descriptive. The legislature’s choice could not, however, be any clearer: to protect the cadaver is to protect the dignity of the human being who sheltered/held the dead body and which survives death and the consequent disappearance of the legal personality.

The Civil Code changed too, albeit later. The law dated December 19, 2008, which significantly modified the legal status of ashes, a status created in the section on the body, itself included in the section on persons, Article 16-1-1, para. 2, which states that “[t]he respect due to the human body does not cease with death. The remains of people who have died, including the ashes of those whose body was cremated, must be treated with respect, dignity and decency.”

The Civil Code takes a decisive step here, still more than the Penal Code did, by linking the cadaver and humanity. In the legislative formulation, no words are left to chance: decency is more a moral and social concept than a legal one but the application of common sense makes it easy to understand its use in this context;³⁶⁸ respect is more a legal concept that, while vague beyond its classic use between people,³⁶⁹ has the advantage of transcending the boundary between things and persons, since the term is used to qualify the relation that the law imposes with regard to embryos, human beings that have not been personified.³⁷⁰ What is more surprising is that human remains must be treated with dignity. Nonetheless, jurisprudence has followed the legislature’s footsteps, applying the Article quite notably in the Our Body case.

From February through May 2009, a private museum exhibited a show of plastinated human cadavers (like those of von Hagens although he was not the organizer of this particular exhibition) that had already toured the world. In March 2009, two human rights groups sued to ban the exhibit. Remarkably, from the perspective of artistic freedom, which is an aspect of freedom of expression, the Court approved the ban.

To understand this remarkable decision, it must be placed in its context.

First, remember that the initial plaintiffs were two human rights organizations that claimed, among other arguments, that most of the cadavers thus exposed were those of executed Chinese prisoners or victims of torture, whose consent to plastination and to exhibition might ipso facto be placed in doubt. That was, indeed, the argument that convinced the Court of Appeals, which, without affirming the trial judge’s reasoning based on public order (dead people must be in cemeteries, any other location being indecent and “derealizing”), held that the proof of consent supplied by the organizers was insufficient. Some will probably criticize the fact that the judiciary became a policy arena, but this is neither new nor rare. In this sense, we can understand that the plaintiffs used every available means, even if it meant criticizing here what they defend elsewhere – freedom of expression.

Next, we quote the words of the Court of Cassation: “under the terms of Civil Code, Article 16-1-1, para. 2, the remains of people who have died must be treated with respect, dignity and decency; the exhibition of cadavers for commercial purposes ignores this requirement.”³⁷¹

Accordingly, what the Court condemned was not the exhibition of human cadavers as such but the profit that could be made by such an operation. The Court was clever enough not to rely directly on the principle of non-patrimoniality (Civil Code, Articles 16-1, para. 3 and 16-5), which requires that human body parts and products must only be given, freely and without consideration. From what or where did the Court draw such a principle? By its interpretation of Civil Code, Article 16-1-1, the somewhat vague, not to say incantatory, expression of the respect and decency due to the cadaver takes form: marketing a cadaver violates these principles. Certainly, this decision has been the object of substantial criticism, which has especially underlined the fact that this commercial aim is not easy to determine.³⁷² The Court of Cassation is interpreting; it is not leaving the principle of non-patrimoniality on hold but anchoring it to a text that, otherwise, might appear to be begging the question. This motivation also stems from the spirit of the French bioethics statute, which has clearly replaced the principle of unavailability by that of non-patrimoniality at a time when the latter is sometimes under attack (for example, by the proposal, made repeatedly although until now still rejected, to set up a regulated market in organs or gametes).

Beyond the decision, what explanations may be found for this upgrading of the cadaver, which, without being a person, has now borrowed the most majestic aspect of the person, its dignity? In France, the massive irruption of the principle of dignity, made constitutional by the Constitutional Council in a very famous decision in 1994,³⁷³ has been the object of inexhaustible controversy: the gap seems insurmountable between those who see in it an unjustified injury to individual freedom, because dignity can be opposed to the individual to prevent him or her from taking up an activity, and those for whom the promotion of the principle of dignity to the rank of an ultimate value signals common membership in humanity.³⁷⁴ As the cadaver is no longer a person and cannot manifest its will, judges can, without offending anyone, proclaim its right to dignity. In this hypothesis, to limit the damage that the cadaver as material thing might experience, we connect it to the person rather than creating a secularly sacred status.³⁷⁵ The idea is simple, almost obvious (the cadaver was a person, unlike an embryo, which may never be), and it is parsimonious (the standard dichotomy between persons and things remains undisturbed).

From the perspective of values, we could ultimately be satisfied with this situation. Is there something to be gained conceptually? Nothing is less certain.

3 The strange nobility of human things

Contemporary French law seems ill at ease with its own construction, which consists not in turning the cadaver into a person but in emphasizing that it belongs to the human, so that the law can attach to it attributes usually attached to people, because they are human. The expression “human remains,” used by Civil Code, Article 16-1-1 is revealing in this regard. The expression is well known to archeologists and museum curators, who have dealt with demands for the restitution of human remains they have held for a long time, but is less used in law. It means exactly what it says: a cadaver is made up of human remains, that is, it is what remains of the person who no longer exists, and these remains are human, a sort of irreducible leftover of the person’s existence.

What we might call the upgrading of the cadaver is in many ways not surprising, as it is part of a characteristic perspective of contemporary French law. We can compare it to the situation of the embryo; when we do, we see that this category of “humanity,” a sort of third category that combines things and persons, makes it possible to escape the embarrassing aspects of the summa divisio. Let us recall that Article 16 of the Civil Code qualifies the embryo/fetus not as a person but as a “human being.” At the other end of the life span, a recent French statute regulating forensic autopsies provides, using wording apparently derived directly from the Civil Code: “Access to the body takes place in conditions that guarantee (to the family and friends), respect, dignity, decency, and humanity.”³⁷⁶ At this stage, we are not even sure which or whose humanity the legislator is talking about: the humanity of the deceased as a person? The humanity of the relatives? The humanity of the remains? At the least, a new legal category is emerging, one that tries to embrace the complex nature of humanity. But it is still, at least for now, difficult to interpret.

On the one hand, we assume that the law, like society, is interested not only in abstractions, not only in individuals, but also in the stuff we are made of and that places us in a culture. Two examples demonstrate this.

The first is the case of the so-called Maori head, held in a museum of Rouen. Maori cultural militants demanded its return. The National Assembly finally³⁷⁷ decided that the object should leave the national collections and be returned to the descendants of the ancestors from whom it had been taken. This dispute, long and complex, illustrates the association between mortal remains, the history of colonization, respect for the dignity of indigenous peoples, and the obligation to bury human remains.³⁷⁸

The second is the entry into effect on December 21, 2010 of the Convention against Enforced Disappearances. It attests, in a rather low-profile way, to acceptance of the need to provide a status and protection to the victims, both direct (the disappeared/disparecidos) and indirect (their families and friends), of these very particular international crimes that are characterized by the fact that the victim’s body cannot be found, either for a period of time or even ever. These particularly horrible crimes plunge family and friends into undefined anxiety because they cannot know the victim’s fate. Moreover, problems of civil law follow (inheritance shares, remarriage, etc.). Outstanding by its absence, the body of the “disappeared” does not prevent the legal person from existing and denies, on the other hand, the existence and identity of the flesh-and-blood person.

Two Articles of the Convention require consideration. Article 15 states that

In the same vein, Article 17, about the conditions of deprivation of liberty, requires each state party to assure the compilation and maintenance of one or more up-to-date official registers that shall include specific information about persons deprived of their liberty and the conditions and circumstances of their detention. The Article also specifies that the register shall include “in the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains.”³⁷⁹

The very close link, due as much to biolaw as to international law, between the materiality of the cadaver and the need to respect the human person or restore the integrity that has been violated is perfectly logical: neglecting the body is, at best, adding disrespect to the violation of integrity, and, at worst, attempting at any cost to hide the wrongdoing. The need to apply to this situation what we have called upgrading of the cadaver is not self-evident.

On the other hand, the humanity that emerges from all these different conflictual situations is not at all homogeneous.

The criminalization of enforced disappearances with all the legal consequences that flow from it, especially relative to the body, whether absent or found, and the more general respect due to the cadaver and its burial, arise from concepts of humanity that I will call cultural. Equally, however, biolaw has become renowned for its questionable temptation to biologize humanity. For example, in considering the criminalization of reproductive cloning, French specialists first wondered if this step should not be designated as a crime against humanity. For a long series of good reasons, this option was finally not chosen. Crimes against humanity must retain their specificity, historic in particular. Moreover, as we know, these crimes are committed against people already born and not beings to be born, as in reproductive cloning; it is curious, to say the least, to place in the same category, birth, however questionable its origin, and extermination.³⁸⁰ Sensitive to these arguments, the French legislature chose not assimilation but juxtaposition. Alongside crimes against humanity, the Penal Code has contained, since 2004, crimes against the human species, specifically eugenics and reproductive cloning.³⁸¹ This separation is praiseworthy, but it has had a harmful effect, as well, through its implication that beyond the value of “humanity,” shared by each of us and that the crimes against humanity aim specifically to abolish,³⁸² there is another socially protected value whose violation is punished by the penal law: the integrity of the human species, supposed to be violated by eugenics, which consists in the selection of the people to have children, and cloning, the selection of identical reproductions as the children to be born. If eugenics and reproductive cloning must both be criminalized, they must nonetheless be clearly distinguished: eugenics was for a long time massively practiced by democratic states; it consists in selecting, according to varied criteria, people who are already born; reproductive cloning is still experimental, and consists in, it is said, making specific people be born. In addition, and this is true for both offenses, to say of the human species that it is a socially protected value is extremely strange: the human species is certainly a biological concept, but from there to make it an object of the penal law! Certainly, the law can construct objects, as it has, for example, normatively constructed humanity, especially via crimes against humanity or, in the field of public international law, the concept of the common heritage of humanity (such as the moon). But the human species is, at the least, a questionable category in law, for it is undefined and vague. This certainly does not mean that we must deny the biological dimension of humanity.³⁸³ Penal definitions, however, must be clear and specific because their normative effect is determinant. It would therefore have been better to say that eugenics is, depending on the methods used, a crime against humanity³⁸⁴ or a crime against reproductive freedom. Similarly, reproductive cloning could be said to infringe personal dignity, understood as including the right to be born by random genetic mixtures. M. Delmas-Marty designates this as the “double refusal” that underlies these criminalizations: “refusal of the inhuman, in other words, respect for otherness, and refusal of the ‘ahuman’ . . . in other words refusal to deliberately change humanity.”³⁸⁵ What is especially interesting in her analysis is that it attempts to build a categorization on the basis of a cultural conception of humanity rather than solidifying legal concepts around a biological conception of it, such as “human species.”

Instead, we have contented ourselves with incantations that are either futile or dangerous.

Finally, and more profoundly, a complete analysis remains to be conducted of the positive features that characterize this newly juridicized “human” status. It must necessarily involve a total challenge to our certitudes: about the frontier between the animal and human kingdoms, about pushing back the limits of death, of sexual reproduction, and more. In attributing to the human thing that is the cadaver the attributes of the person, we put ourselves at odds with certain rules, some of which, by the way, merit criticism, such as those allowing the post-mortem removal of the organs or tissues of a person if he or she did not object during their lifetime. At the same time, we are also going in circles conceptually: if, in 1994, French law endowed the person with these attributes (dignity, non-patrimoniality), it was not because the person is a legal personality (a simple legal technique that creates something subject to rights and obligations) but because he or she is a human being. But then what is being human?³⁸⁶ There is probably something to find in this humanity that is searching for itself through the human in the question of time, suspension, and destruction. In this regard, the fascinating opinion no. 112 published on December 1, 2010 by the Comité consultatif national d’éthique pour les sciences de la vie et de la santé (National Ethics Advisory Committee for the Life and Health Sciences)³⁸⁷ suggests, without taking a position for or against the research, that the community may have a duty not to leave embryos in a kind of suspended time that no longer has anything human about it, and that when the embryo is no longer part of a parental project destruction is basically preferable to the act of omnipotence that decides on the indefinite extension of a biological existence. It is here that we close the circle, for it is the preservation outside any body – possibly indefinitely – that begot this bioethical interrogation in all its depth. Carbonnier said about the cryopreservation of cadavers that the desire for immortality may be contrary to the public order.³⁸⁸ Fifteen years later, although the idea remains the same, its formulation is more concrete and more material: human matter – our clay or stuff or cells – must be able to live or cease to exist and not be suspended for an indefinite duration of technical preservation. We can also look at euthanasia and the question of post-mortem embryo transfer through this prism. It may be that the quintessential human remains, the cadaver, may launch a stream of consciousness that lets us think deeply and thoroughly about these difficult mechanisms and demands. But to do so there is no need to raise it to the rank of a person, either directly by attaching it forcibly to a branch of the summa divisio, or indirectly, in assigning to it all the qualities reserved for the person.

The European Court of Human Rights understood this when it determined that because the quality of human being (in the language of French law: the human person) is extinguished at death, the ban on abuse in Article 3 of the European Convention on Human Rights no longer applies to cadavers.³⁸⁹ In this perspective, the French Penal Code, on the other hand, clouds the issue, since infringements of the respect due to the dead are classified among the violations of the dignity of the human being (again, in French law, the human person).³⁹⁰ Beyond the fact that this is unnecessary, it is also a mistake, because the protection of the person is situated either on the side of the abstraction of the subject of the law or in the field of the universality of the human being. Respect for the cadaver, although universal, is nonetheless combined with promoting cultural diversity. Let us content ourselves, therefore, with a third category, the human thing, marginally consecrated by the French law in reference to the bodies of some stillborn babies, qualified in those specific circumstances, as “human anatomical specimens.”³⁹¹ These many “things” truly human that we have seen here, following in the wake of the things of human “origin or destination” brought to light long ago,³⁹² deserve respect and decency; they must, in their materiality, find their place to reassure, if needed, the living,³⁹³ contribute to the dignity of the person that they were or could have been (or could not be), and, finally, provide their small stone to humanity, all the while remaining clearly separate from the “people” who really matter.

In conclusion, let us return to this notable coincidence of events that occurred in 1994. That was the year that the new French Penal Code came into effect. It defined crime against humanity for the first time and also ranked it highest among the crimes included or modified that year. The same year saw the birth of the so-called Bioethics Law, which for the first time gave a status to the human body and established the principle of the integrity of the human species. The early 1990s can thus be described by four characteristics:

1. general normative enhancement of the person, in particular through recognition of human dignity (constitutionalized);

2. the law’s notable and new attention to the fabric of the individual, the stuff we are made of, at the same time that individual bodies, their integrity and inviolability loudly proclaimed, are legally cut into pieces, stored and used more than ever before;

3. a blurring of boundaries between living and dead, persons and things, animals and humans, and so on;

4. the strengthening of the concept of humanity in an attempt to unite these fragmentary ideas.

The conception of the cadaver that can be inferred from French statutes and case law fits each of these four characteristics. Recent law has reified, humanized (and re-humanized) and even personified the cadaver.

It is, I think, essential to channel this profusion of categories, understandable at a time when humanity has not only the desire, which it has had since time immemorial, but also the technical means to create, improve or destroy itself. To be operational, legal categories must be not necessarily impermeable or immutable but at least identifiable. We should be able to discern an animal or a person, an embryo or a corpse, a plant or a stone, in the law designed to protect it. If lawmakers consider the summa divisio of things and people is too narrow, and if they think the law must cover a hybrid category of human entity (applicable to the embryo, to cadavers, either whole or in parts, and to products of the human body), they must subordinate it to the existence of a specific legal framework that does not let the concept of person stain the human entity. Furthermore, the human entity, although corporeal, made up of material, must not be reduced to a biological entity. The human entity will never be a pure biological material, whether it has a history (cadaver, body part) or not (e.g. a frozen embryo that can be destroyed). No human interest is served by assignment to an immutable status or category; on the contrary, we know to what extent crimes against humanity, past and present, have been based on a deterministic concept (biologically or culturally determined) of humanity. If French law’s recent humanization of the cadaver is accompanied by the promotion of a common humanity that might link us in time and space, it will be good news. Otherwise it will be either just a play on words (the person for the human and vice versa) that will accomplish nothing, or the legal recognition of a mere biological category, which will cost us dearly in solidarity.

1 Introduction

These lines, taken from a poem by the Dutch poet H. H. ter Balkt, and read many years ago, have always stayed with me. By ‘falconry’ the poet referred to the art of poetry, which, through excessive writing ‘drenched in smoke and wine’, was on the brink of collapse. According to the poem, falconry is an art demanding the sharpest vision and lightning-fast precision, not drowsiness and intoxication.

Years later, I involuntarily applied these lines again. This time, on the subject of human rights discourse. Are not too many human rights darkening the streets nowadays, with everyone taking every opportunity, whether appropriate or inappropriate, to claim them for themselves or to use them to protect or condemn others, near and far? Are not human rights susceptible to linguistic inflation, which may mean, according to some critics, that their central position in the legal and political organisation of liberal-democratic societies is being undermined?³⁹⁵ And would not someone wanting to continue using human rights to correct the inhuman aspects of our global legal systems take Ter Balkt’s message to heart and have ‘a sharp eye’ and ‘a sharp pen’ rather than seeking to ‘plough the paper roughly’?

The idea that effective use of human rights calls for restraint and subtlety implies a critical distance towards the myriad of human rights discourses, tools, practices and organisations currently existing in the world. This critical attitude is based on the tentative assumption that, in the case of human rights, less is more and, conversely, more is less. By this, I mean that the notion of human rights, as a layered and plural concept, is eroding at different levels, and is consequently losing at least some of its significance in some of these contexts. In the following, I set out to discuss the situation at three different levels at which human rights or discourse on human rights have come under threat.

Human rights can be eroded by:

1. (1) an excessive use of ‘human rights’ as a superior moral standard in political statements;

2. (2) the use of deadly force, including military action, justified by an appeal to ‘human rights’;

3. (3) the tendency to extend the range of ‘human rights’ ad infinitum.

Note that the term ‘human rights’ means something different at each of these three levels. At the first level, that of daily political rhetoric, the concept of human rights is generally underdetermined and loosely used. A politician complains, for example, about the ‘human rights situation’ in a given country and calls it ‘unsatisfactory’. At the second level, using the reference to human rights to justify humanitarian intervention that is not authorised by the UN Security Council is less open-ended. Here, military action is weighed against the current human rights situation and presented as the ‘lesser evil’. That means there must be evidence of such a serious violation of human rights that the use of military force to put an end to this situation is morally justified. Central to the third level is the political struggle for legal recognition of a new human right, being the right to combat social distress or suffering of particular groups.

In this chapter, I first discuss three areas of human rights discourse in which the viability of human rights is at risk, illustrated by some examples. In the second part, I reflect further on the problematic and self-defeating reference to humanity at these levels of discourse. In discussion with Arendt, Scheler, Agamben and Lévinas, I argue that if a right to a community and to organised living is considered to be the most basic human right, we cannot disregard the other’s belonging to a (dynamic) concrete, customary world when we consider that other person’s rights. ‘Thought’ may help us to rediscover the fundamental other-directedness of human rights and the dangerousness of decisionism (the politics of ‘clean slates’), on the one hand, and biological and social determinism, on the other hand. First of all, I briefly allude to the origins of the Universal Declaration of Human Rights (1948). What do the motives behind this Universal Declaration tell us about how human rights in this century may contribute to a more humane world?

2 Past and present

On 10 December 2008, the Universal Declaration of Human Rights (UDHR) was sixty years old, a venerable age for a document that, in times of ups and downs, has never ceased to fascinate and inspire. The interesting thing about the UDHR is that it was not created as a legally binding document, but instead based its universal value directly on its moral content, without any specific foundation in natural law.³⁹⁶ The message of the UDHR is twofold, according to the following words from the famous preamble:

On the one hand, human rights are designed to safeguard the individual from ‘barbarous acts’ and from ‘tyranny’ and ‘oppression’. Here, human rights act as protectors against the greatest injustice, a feature usually associated with traditional civil liberties and political rights. On the other hand, human rights proclaim the coming of a world not yet achieved. In that world we will not only enjoy freedom of speech and belief, but also freedom from fear and want, in a direct reference to Franklin D. Roosevelt’s famous ‘Four Freedoms’ in his State of the Union address on 6 January 1941. In this context, human rights act as incentives, as promising signposts to a better world. In the endless pursuit of a world order in which fear and want no longer exist, it is particularly socio-economic rights, also known as second-generation human rights, that have been developed. These rights, for which developing countries in particular have been urging, call on governments and private parties to create conditions for a world where everyone has the opportunity to be free and happy.³⁹⁷

It is already clear from the passage quoted from the preamble that the UDHR is primarily rooted in the experience of the greatest injustices in the previous two world wars. Among these, for different reasons, the horrors of the Holocaust have a unique place. The philosophers Avishai Margalit and Gabriel Motzkin even described the Holocaust as the ‘negative myth of origin’ of the (Western) world after the Second World War.³⁹⁸ By this, they mean that the Holocaust has undermined Western liberal confidence in the progress and stability of their civilisations:

Human rights may be understood as an attempt to provide the fragile legal order after Auschwitz – both nationally and internationally – with a moral foundation. The legalisation of morality inherent in human rights has been conceived as a means to prevent genocide and other crimes against ‘humanity’ in the future. And it is probably no coincidence that as the commemoration of the Holocaust in Europe and the United States increased in importance, with a peak in the 1990s, so, too, did the self-confidence of the human rights discourse.⁴⁰⁰ The entrance of human rights discourse into the arena of international politics is particularly striking in the years since 1989, after the end of the Cold War, the fall of the Berlin Wall and the end of apartheid in South Africa. Since then, human rights have been everywhere. And they can be everywhere, because they not only have a narrow, legal meaning, but also fulfil an important rhetorical function as ‘universal’ moral–legal values outside the domain of law in a strict sense. Human rights supply moral claims with ‘something extra’. By presenting a moral claim in the form of a human right, it appeals – rightly or wrongly – to universal validity. This makes the moral claim, too, legally relevant. As John Stuart Mill said, ‘[t]o have a right . . . is . . . to have something which society ought to defend me in the possession of’.⁴⁰¹ In other words, those able to translate their moral claim into a universal human right score a double victory: first, they can invoke it anywhere (1), and secondly they can invoke it as a right that each society is theoretically supposed to protect, at least to a certain extent (2). Human rights are even capable of legitimising illegal acts.

3 Human rights and the Bird’s Nest

Rarely has there been so much talk of human rights as during the preparations for the Beijing Olympics in the summer of 2008. In the months preceding the Olympic Games, leaders from virtually the entire Western world criticised the Chinese government for the human rights situation in the country. Their criticisms were often complacent and non-specific. In their appeal to ‘human rights’ they not only meant China’s crackdown in Tibet or its oppressive politics towards the Uighurs, but also the position of China’s minorities in general, the treatment of political dissidents, the lack of democracy and violations of the freedom of religion, freedom of speech, freedom of information, free Internet access and so on. The comprehensiveness of the criticism gave the impression that China was primarily being criticised for not being ‘Western’ enough. In other words, that the incorporation of ideas of democracy, individual freedoms and the rule of law was wrongly failing to keep pace with China’s rapid economic growth. The Chinese leaders remained stoical in the cacophony of allegations and protests. Although the human rights situation in China was reported to have worsened in the run-up to the Olympics, not a single word was uttered on the topic of human rights during the spectacular opening of the Games at the equally impressive Bird’s Nest.

The perfect show put on by the Chinese in the Bird’s Nest, under the watchful eye of almost all Western political leaders, each of whom had good reasons not to boycott the opening ceremony, can be seen as a symbol of a shifting world order on which the Western countries are gradually losing their political and moral grip. That image is confirmed by a report released by the European Council on Foreign Relations (ECFR), a European think tank, in 2008. The report maps the voting on human rights issues within the General Assembly of the United Nations. The result?

The report concludes that Europe’s political influence in the field of human rights has diminished significantly in the past decade. In a time when ‘overall support for its [human rights] positions is eroding, even among previously firm friends’, this suggests that there is a growing need for a different, less-patronising and more moderate tone, beginning with an interest in the viewpoint of the other, in empathy. The ECFR report states that the EU will have to find a new balance between the willingness to engage in dialogue with others about human rights and seeking to remain persistent with regard to its ‘core principles’ which it must continue to defend, if necessary via the UN Security Council.⁴⁰³

The increase in accusatory, comprehensive human rights rhetoric on the eve of the Olympics shows that the Western countries, including EU member states, have not yet adjusted to their new position in the world.⁴⁰⁴ Ironically, the Swiss architectural firm Herzog & de Meuron, which designed the Olympic Stadium in Beijing, seems to have known exactly how to conduct a dialogue with the Chinese.⁴⁰⁵ The creation of the design of what came to be known as the Bird’s Nest was accompanied by an intensive intercultural dialogue, which later enabled the Chinese people to relate to this building from their own culture, language and history and to develop a bond with it. But why should what has been possible for the Bird’s Nest⁴⁰⁶not be possible for the construction⁴⁰⁷ of human rights?⁴⁰⁸

4 Human rights and military force

The ECFR report suggests that the EU needs to become more modest, but simultaneously advocates the use of military force to protect human rights: ‘the EU must stand ready to intervene directly in major humanitarian crises where the UN will not act; a last resort, but an option that it would be immoral to reject’. The authors specifically consider cases of genocide, war crimes, ethnic cleansing and crimes against humanity, but this list is not exhaustive.⁴⁰⁹ It evokes memories of a criterion formulated by Michael Walzer in his classic Just and Unjust Wars, which first appeared in 1977. Walzer considered a humanitarian intervention justified as a response – with a reasonable chance of success – to practices that ‘shock the conscience of mankind’.⁴¹⁰ Walzer seems to derive this moral criterion directly from the passage in the preamble of the UDHR quoted above. Interestingly, the reference in the UDHR to the conscience of mankind is meant to serve the (peaceful) universal foundation of human rights. Further on, the preamble states that ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’.⁴¹¹ Walzer, however, seems to reverse this basic idea: he presents the ‘shocked conscience of mankind’ as a benchmark for a ‘humanitarian war’, without a prior Security Council mandate serving morally to justify illegal international acts.

However understandable the widely felt moral imperative to use military force to intervene, in particular to stop or perhaps even help prevent genocide (thinking particularly of the genocide in Rwanda in 1994, when Western intervention failed to occur, partly because of a lack of interest),⁴¹² the appeal to serious human rights violations (or the Holocaust)⁴¹³ to justify military violence is problematic. Not only because of the vagueness of criteria such as ‘the shocked conscience of mankind’ or ‘a major humanitarian crisis’, or lists such as ‘genocide, war crimes, ethnic cleansing’ that offer no sufficient clarity on whether and when intervention is justified. Nor because of the ample opportunities available to anyone wishing to conduct a war to abuse these criteria.⁴¹⁴ More fundamentally, the problem seems to be that in the past few decades, war rhetoric has been unable to do without its reference to human rights. By extension, it then becomes impossible to distinguish ‘reconstruction missions’ from ‘fighting missions’ when they flow directly over into each other, such as in Iraq and Afghanistan. In the confusion, human rights may turn into their opposite and produce inhumanity. Waging war in the name of humanity may imply fighting against monsters, enemies of humanity, ‘terrorists’ who are out there, disposed to be violent and to ‘shock the conscience of mankind’ whenever they have a chance.⁴¹⁵ If human rights are no longer able to float freely above warring parties, but, in a battle of good against evil, are appropriated and used by parties in the conflict to dehumanise their opponents, it is time to return to the preamble of the UDHR, which states that it is ‘essential . . . that human rights should be protected by the rule of law’ (and not by war).⁴¹⁶ The argument here is not directed against military operations or making war generally; it is about the justification of war. It is directed against the appeal to humanity of warring parties, in their attempts to claim a superior moral position vis-à-vis the ‘immoral’ enemy.

The indefinite ‘war’ against terrorism, framed as a war on behalf of all mankind, not only has Guantánamo Bay, Bagram and Abu Ghraib as its dark side. The discussion about the lack of rights of prisoners at Guantánamo Bay,⁴¹⁷ albeit relevant in this context, conceals the rights of which many millions of victims of war and violence in Iraq, Afghanistan and elsewhere have been deprived. War by definition disrupts, dispels and destroys. In this regard, I agree with Hannah Arendt, who in 1950 described ‘the deprivation of a place in the world’ (from which one can meaningfully act and form opinions) as ‘the fundamental deprivation of human rights’.⁴¹⁸ Arendt argued for a ‘right to have rights’, a right to a community and to organised living (in which one is judged on one’s actions and views), and found simultaneously that millions of displaced people around the globe were deprived of that most basic right, a situation which still holds today.⁴¹⁹ If wars, because of their disruptive nature, are (apart from natural disasters) the greatest threat to people and their rights, it may be prudent not to seek to justify the use of military force by referring to ‘humanity’ or ‘human rights’ in the absence of a UN mandate or in cases of ill-defined wars with an indefinite character. Note that this approach does not contain a categorical exclusion of any appeal to humanity or human rights in the context of a military operation. It still leaves room for the legitimacy of a well-defined, limited military intervention for the sake of ‘humanity’ in exceptional circumstances.⁴²⁰

But it is already very difficult to disconnect the reference to humanity and human rights from everyday war rhetoric, to return to the preamble of the UDHR and to seek the peaceful realisation of the most basic human rights of nameless millions by restoring their place in the world. For this requires patience, a sense of plurality and historicity, awareness of the inevitability of conflict and the provisional suspension of judgment.

5 Human rights and moral demands

Why is it that the unwritten constitution of Britain prima facie inspires more confidence than the South African Constitution, with its impressively long list of human rights in the second chapter? Perhaps because when human rights can remain unwritten, it tells us something about social trust in the stability of the legal system and the extent to which it is anchored in society.⁴²¹ The explicit formulation of human rights in treaties and constitutions, en vogue since the French Revolution, is still expanding, and seems to express mutual distrust. We require codification of a fundamental right because we no longer trust the other party: the prince, the parliament, the police, the neighbour and so on. The more specific and comprehensive our catalogue of human rights, the less leeway to the unspeakable mutual trust, and the more legalised our sense of morality.

A profusion of human rights might express the same kind of nihilism that Margalit and Motzkin discerned in the Western world after Auschwitz.⁴²²We cling fast to our fundamental rights because we only confide in our social morality when it is translated into law. In such an environment, a moral claim acquires social status only if it takes the established form of a legal right. This phenomenon has its roots in modern history: the successful struggle for emancipation of slaves, women, workers, blacks, homosexuals and other groups each time took the form of a legal battle for recognition of equal rights and focused on extending the scope of fundamental norms by abolishing restrictions based on race, gender, income, sexual orientation and the like.⁴²³ Since the twentieth century, partly because of the horrors of the two world wars and partly as a consequence of the expansion of the welfare state in post-war (Western) Europe, the struggle for legal recognition of rights has become the preferred means by which groups of victims of all kinds manifest themselves.⁴²⁴ Terms such as ‘victim rights’ and ‘animal rights’ are only of recent date, but they mark the provisional end of a constantly accelerating process in which every conceivable moral desire seems to want to translate itself into a fundamental right. This trend, which has repercussions for the relationship between public and private, has already led to critical reflections on the indulgence of Western consumerism.⁴²⁵ As Costas Douzinas, for example, writes:

The proliferation of fundamental rights – usually in the form of a claim that the government will somehow have to try to honour – leads in different ways to a further erosion of human rights discourse. It is easy to see that, by definition, a government with limited resources will never be able to accommodate the surplus of rights. This undermines social confidence and widens the gap between government and citizens. Furthermore, conflicting moral claims, once they become settled in legal language, may provoke a hardening of positions and growing competition between different interest groups comprising stakeholders in a specific fundamental right. In the ensuing political and legal battles, it is reasonable to expect the stronger social groups to be much better placed to gain victory than the weaker groups, such as the dispossessed, the displaced and the deracinated (the list is not exhaustive).⁴²⁷ In a limited view of human rights, such moral claims would aim to support ‘only’ people who are deprived of most basic goods⁴²⁸ – those whose world in which it is meaningful to act and express oneself has been lost or seriously threatened, in Arendt’s terms – by offering them a minimum level of accessible legal protection and thus a perspective of a return to an active position in the world.

The rise of ‘animal rights’ shows that nowadays human rights are even claimed on behalf of beings who are totally unable to relate to their environment through law – and to whom, for the same reason, legal subjectivity remains alien. In this regard, it is interesting to take note of the failed attempt by the Dutch MPs Ineke Van Gent and Femke Halsema (both in the Green Left Party) to include animal rights in the Dutch constitution. After criticism from the Dutch Council of State, which commented that the term ‘animal rights’ was constitutionally undesirable because, under Dutch law, animals are not legal persons, but instead ‘a special kind of legal objects requiring special care’,⁴²⁹ the MPs focused their efforts on an amended bill seeking a governmental duty of care for the welfare of animals to be included in the constitution. Somewhat surprisingly, the authors described this government duty in the explanatory memorandum yet again as ‘the right of animals to have a government [sic] who does its utmost to safeguard animals from unnecessary suffering, pain, etc.’.⁴³⁰ According to the memorandum, a constitutionally enshrined duty of care to prevent animal suffering is not enough: animals deserve a fundamental social right, a human right not to suffer, even though they are not legal subjects (and not human beings).

Following a similar logic in Frontiers of Justice (2006), the legal philosopher Martha Nussbaum played down the distinction between human beings and animals as she considers this to result in a persistent source of injustice against animals. According to Nussbaum, both ‘human’ and ‘non-human animals’ (the terminology is Nussbaum’s) are ‘legal persons’ entitled to all the amenities they need to flourish and to optimally develop according to their different capabilities. Remarkably, Nussbaum also wishes to encourage ‘non-human animals’ to lead decent, non-violent lives. In this context, she has difficulties with animals still in the wild, where they can commit atrocities. The utopian ideal shining through Nussbaum’s argument is that of a benevolent zoo, in which both human and non-human animals have multiple rights to harmonious, fair and well-resourced living conditions.⁴³¹ In this vision the ‘humanisation’ of the animal stays apace with the ‘animalisation’ of the human⁴³² in a biopolitical twist that Nussbaum seems to ignore.⁴³³

6 Losing humanity in current human rights discourse

So far, I have briefly explored three levels of human rights discourse. At each of these three levels, the invocation of human rights is problematic and (at least to a certain extent) self-defeating. At the first level, that of the strong political rhetoric in the West concerning the human rights situation in the East (China, for example, but also the Islamic world), what has been lost is the idea that context matters. In other words, that it is gratuitous to condemn China for innumerable violations in the field of human rights, without even trying to relate the values at stake to the languages, cultures, histories, philosophies, traditions and customary orders of this enormous country and the continent in which it is located. In other words, human rights discourse cannot afford to be indifferent to the cultural world of the other. Borrowing terms from the philosopher Emmanuel Lévinas, every interest in the rights of the other should always start with non-indifference, with (paradoxically) a breaking away from a closed and self-referential human rights discourse.⁴³⁴ Persisting in its own right, such a self-centred discourse may become oppressive, whereas it claims to be liberating. Appeals to human rights may end up in dehumanising others by ignoring, threatening or – by contrasting Western ‘civilised’ human rights to non-Western ‘barbaric’ cultures⁴³⁵ – degrading cultural worlds in which individual lives become meaningful.⁴³⁶

An alternative human rights approach would reject the assumption that particularly non-Western cultures largely consist of self-contained, immutable, often oppressive practices from which individual victims can only be ‘liberated’ by elimination or destruction of these practices.⁴³⁷ The starting point is that each cultural praxis is constantly changing and that moral change can best be achieved through an internal development in the direction of the values at stake.⁴³⁸ In other words, a translation is needed in which human rights are explicitly connected to the languages, histories and background values of the particular culture. This can be stimulated by an intercultural dialogue and other forms of external pressure that bring internal struggles and discussions forward: ‘Through cross-cultural dialogue, external actors can support and influence internal discourse, but they must take care not to undermine internal discourse.’⁴³⁹ What needs to be prevented is a framing of the situation as a dilemma in which members of a certain community are forced to choose between preserving their own (‘inferior’) culture or having access to a different culture based on (‘superior’) human rights, as if these are two variables which are mutually exclusive. That would be a lose–lose situation.⁴⁴⁰

Translating human rights discourse into the other’s language and culture implies that one should be able to break away from identifying human rights with one’s own particular culture.⁴⁴¹ As the South African judge Albie Sachs once pointed out, every nation should have the right to be proud of its own connections between its particular cultures and universal human rights. In this respect, Western countries are not particularly convincing as ambassadors of universal human rights:

At the second level, that of ill-defined or indefinite military intervention on behalf of human rights, the abstract banner of humanity is used in a utilitarian fashion to justify the (collateral) destruction of people’s homes, lives and livelihoods.⁴⁴³

At the third level, endless proliferation of human rights may lead to growing dissensus on what exactly human rights are meant to protect or to foster. The idea of extending rights to all that suffers owes a great deal to the philosophical concept of conatus – the (not exclusively human) striving for self-preservation, culminating in a natural right to persist into one’s own being – as developed by Spinoza and others, and also to the utilitarian philosophy of Jeremy Bentham.⁴⁴⁴ In our time, advocates of victim rights and animal rights justify their claims by pointing to biological proof of human and non-human suffering.⁴⁴⁵ Grounding rights in biology enables these activists to ignore the specific, diverse and complex social and cultural worlds in which people are living potentially meaningful lives.⁴⁴⁶ Thus, the fragmented wisdom of a plurality of concrete worlds is bypassed by a structure of rights that inscribes itself directly in the biological propensities of human and non-human animals.

What goes wrong at all these three levels takes the form of a negation: the negation of Arendt’s idea of ‘the deprivation of a place in the world’ as ‘the fundamental deprivation of human rights’.⁴⁴⁷ If a right to a community, to organised living, is considered to be the most basic human right, we cannot disregard the other’s belonging to a concrete world when we consider that other person’s rights. Arendt’s intuition that the humanity of the human being somehow resides in her ‘worldliness’ is firmly rooted in the phenomenological tradition in which she stands. According to Max Scheler in 1928, what separates man from animals is his spiritual ability to be ‘open to the word’. ‘Such a being has a “world”’⁴⁴⁸ – as opposed to other animals, which are immersed in their environments:

Inspired by Scheler, Arnold Gehlen presents man in Der Mensch (1940) as a biological ‘special problem’, a deficient being (‘Mängelwesen’), an ‘unfinished’, imperfect animal. Man’s nakedness, his prolonged dependency, the upright position of his body and his inability instinctively to protect himself against a multitude of potential catastrophes make him ‘by nature a cultural being’ (‘von Natur ein Kulturwesen’). Unlike other animals, man is ‘open to the world’ and in need of complex institutions to feel at home in this world.⁴⁵⁰

7 Nature, custom, stipulation

Closely related to the ‘worldliness’ of man is the distinction between three types of good order, already known in antiquity but still present in current legal thought. Aristotle distinguished between the natural order (eukosmia), the customary order (eunomia) and the deliberately stipulated order (eutaxia).⁴⁵¹James Bernard Murphy, who recently analysed these orders in the works of Aristotle, explains that these orders are closely interrelated and form a ‘nested hierarchy’, in which custom (or nomos) presupposes nature (or kosmos) and stipulation (or taxis) presupposes custom:

Murphy presents custom as a complex phenomenon, oscillating between nature (custom as a bodily habit, or ‘second’ nature) and stipulations (custom as a social convention or unwritten law). On the one hand, custom is related to and dependent on nature, as can be shown within education, where implied and explicit knowledge is transmitted by training the innate (natural) faculties and cultivating bodily movements, ‘ethos’ and habits. Custom, in a broad sense, also transforms nature, as can easily be seen in the landscapes in which we work and live. On the other hand, our deliberately stipulated, enacted legal order is dependent on and connected to custom. Laws are not promulgated ex nihilo, but instead are dependent upon the customary and natural orders they intend to supplement, reinforce or revise.⁴⁵³

The recurring idea in this chapter is that ‘humanity’ somehow resides in our having access to a plurality of (dynamic) concrete social worlds of habits and conventions which enable us to live and breathe as multiple ‘cultural beings’, as embodied, though free creatures, necessarily in between (moving back and forth) the ‘rigidities’ of biological nature and the ‘freedom’ of the powers of reason. Dehumanisation occurs when people are forcefully deprived of these protective, intermediate worlds. The temptation to ignore or erase custom altogether and to establish a society de novo solely by stipulation is characteristic of totalitarianism,⁴⁵⁴ and tantamount to the human disasters in Europe, the Soviet Union, China, Cambodia, and elsewhere in the twentieth century.

Interestingly, within totalitarian thought, the desire to found a new order based on stipulation and clean slates (‘decisionism’) is accompanied by the urgent need to fixate the ‘human’ directly in a natural or biological category. As Lévinas remarked in his essay on ‘the philosophy of Hitlerism’, within totalitarian (i.e. National Socialist) thought:

In the totalitarian mindset, the intermediate (and ipso facto irrevocably dense and plural) customary order, with its unwritten codes and loyalties, habits, conventions, rituals, religions, heresies, exceptions, superstition and ancient wisdom, is considered a threat to the system. Thus, the sense of human belonging should be located elsewhere. It cannot be transplanted to the empty space of sovereign decisions; therefore, it must be petrified in nature, in race, ethnicity, eugenetics, vitality, nativity or blood (see

).

Figure 8.1

A fear that haunts the work of Giorgio Agamben is that it is precisely the rise of human rights in the Age of Enlightenment that contributed to the removal of the customary order (bios) from the sphere of politics (and thus prepared the ground for the totalitarian catastrophes of the twentieth century):

Agamben’s (traumatic) fear can be supported by the dry observation that, since John Stuart Mill launched his famous attack on the stupidity of custom in the introductory chapter of his groundbreaking On Liberty (1859),⁴⁵⁷ custom and law have not got along together very well within Western legal traditions. In his essay on custom, Murphy notes that, nowadays, ‘custom is widely neglected in legal theory and legal philosophy’ and states that:

However, whenever human rights are used as a stick blindly to chase customs as irritating stumbling blocks along the route to progress and purport to fixate the human in its biological nature, the very humanity they proclaim to protect may become irretrievably lost.⁴⁵⁹

8 Not in our name!

Can we go beyond human rights? Agamben’s way out of the predicament takes the form of an anarchic ‘exodus from any sovereignty’. He is seeking ‘a political life directed towards the idea of happiness’ that is cohesive with ‘a form-of-life, a life for which living itself would be at stake in its own living’, a project that he associates with ‘thought’.⁴⁶⁰ Earlier in the century, Scheler declared that to be human meant ‘to oppose [the] reality with an emphatic “No”’.⁴⁶¹ In his latest work, Scheler located the difference in kind between the animal and the human being in the latter’s spiritual side, which is accessible through complex mental acts of cancelling all manifestations of life, by suppressing and repressing ‘his own vital drives and deny[ing] them the nourishment of perceptual images and representations’.⁴⁶²

In the same vein, within the philosophy of Lévinas, thought is the way by which we can escape from the sense-driven self-centredness of human coexistence. As Ad Peperzak notes in an essay on transcendence in the work of Lévinas:

Thinking beyond and against human rights as rights that affirm our own humanity, rights that proclaim a common (our) ethos for all humankind or rights that are meant to foster the biological propensities of the human species, Lévinas discovers other human rights, truly inalienable rights that protect the uniqueness of the other human being. In his text ‘Les Droits de l’homme et les droits d’autrui’ (1985), he states that these rights precede all granting of rights, that they are the expression of the absolute uniqueness or alterity of each human being, suspending all reference to the determinism of the natural order and the social body in which everyone is implicated. The incomparable alterity of each human being somehow refers to the being’s belonging to the human species, but this reference ‘annuls itself’ in order to leave each human being ‘unique in its kind’. According to Lévinas, the uniqueness of the other human being transcends the being’s belonging to the human species: the human being’s alterity goes beyond the individual differences of members of the same species or members of the same social body.⁴⁶⁴

Common to these three (very different) thinkers is their desire to save the world by meta-physical retreat. Accompanied by a silent ‘not in our name!’ their ‘exodus’ can be seen as a means of saving humanity (and current human rights discourse) from its totalitarian tendencies. ‘Thought’ may help us to rediscover the fundamental other-directedness of human rights and the dangerousness of biological and social determinism. Being truly ‘open to the world’ is a highly difficult, if not impossible human endeavour. However, the ultimate success of human rights is dependent on their passivity and their patient receptiveness to the infinite plurality of our social and natural worlds. This receptivity is not just a philosopher’s dream: it can be detected in the European Court of Human Rights’ doctrine of margin of appreciation and in the dialectics of human rights and customary law in the case law of the South African Constitutional Court.⁴⁶⁵

9 Humanity as a people (epilogue)

In a short text entitled ‘Signature’, Lévinas writes his ‘biography’ in a few sentences. This ‘biography’, Lévinas writes in guise of a conclusion, ‘is dominated by a premonition of the Nazi terror and the memory of it’. In one of the earlier sentences of this mini-autobiography he mentions another, much more positive, source of personal inspiration, when he alludes to his coming to France, his studies and intellectual encounters at the University of Strasbourg, and the ‘for a newcomer blinding vision of a people that is equivalent to humanity and of a nation to which one can be attached just as strongly by spirit and heart as by descent’.⁴⁶⁶ In the life and work of Lévinas, the domineering premonition and memory of the Nazi terror is juxtaposed to a blinding vision of humanity as a nation to which one can adhere just as strongly by heart and mind as by birth or descent. This nation is France.

There is a lot to say about the utopian vision of humanity as equivalent to a nation or a people. It seems to oppose the more cosmopolitan vision of humanity as a concept that necessarily transcends the level of nation states and particular peoples. There is also a lot to say about the equivalence between humanity and a particular country, France. What does it mean, when a nation understands itself as pays des droits de l’homme (country of human rights) or is understood as such by newcomers?

One of the things it appears to say is that humanity somehow resides in a very specific experience of arriving somewhere – especially of strangers, or newcomers – i.e. the experience of homecoming. If the concrete experience of coming home has something to do with humanity – and Lévinas refers to the concept of humanity in this very specific context – the association between humanity and a particular place is by no means accidental. On the contrary, if we connected the concept of humanity to the world at large, that is, to an indefinite space we cannot enter and from which we cannot escape – a non-place, in other words, in which we will never feel at home – we would lose this association between humanity and homecoming. In the context of my reading of Lévinas’s autobiographical note, humanity is a concept that primarily opens up a particular space or concrete world in which it is possible to ‘come home’. In this light, the actual existence of a particular country that understands itself (or is understood as such by outsiders) as pays des droits de l’homme is important, as it permanently reminds us of the connection between humanity and the possibility of homecoming at a particular place.

In the context of this understanding of France as ‘country of human rights’, it is interesting how French politicians and lawyers struggle with the notion of humanity on a daily basis. ‘French law seems quite unique in how it uses the notion of humanity’, Xavier Bioy argues somewhat paradoxically in a paper presented in 2011 at the conference ‘The Concept of Humanity’ at VU University Amsterdam.⁴⁶⁷ The concept of humanity – and the related notion of human dignity – in French political and legal life is multilayered, ambiguous and affluently used for different purposes. The well-known dwarf-tossing case may illustrate this French approach. The dwarf’s right to be tossed has been limited by French courts, with the argument that his human dignity, bestowing upon him the duty not to let himself be tossed, trumped his personal freedom of choice. In this approach, human dignity imposes certain ‘objective’ limits on the use of the human body: human dignity is understood as a burden, a social responsibility not to make use of the human body in reputedly degrading ways.⁴⁶⁸ The dwarf’s possible reply ‘my body is not a temple, it is an amusement park’, would not have helped him any further.

What is remarkable in this case is not so much the outcome but the framing of the case as a human rights issue, in which solemn concepts such as human dignity and humanity have served as tools in determining the result. From an outsiders’ perspective, the dwarf-tossing case has nothing to do with ‘human dignity’, it is a case of French local morality, bonnes mœurs in the sense of the French Civil Code, which, as a matter of fact, always puts certain limits on the individual’s freedom of choice.⁴⁶⁹ The ponderous reference to human dignity can be read as a complicated French way of saying: ‘in our particular community, we do not accept this behaviour which we consider to be degrading and therefore immoral’. It is not very difficult to imagine a different social world in which the right to be tossed around, under certain safety regulations, would make perfect moral sense or would not raise any moral questions.

Conceived as a clear example of morality of a specific community, and thus belonging to local custom or to local law, this specific limit on human behaviour must be clearly distinguished, as has been done since antiquity, from certain fundamental norms supposedly shared by all human beings (belonging to the so called ius gentium or ius naturale).⁴⁷⁰ For certain reasons, in the dwarf-tossing case, French local morality has been filled with equally local notions of humanity and human dignity. However, when, as a result, these notions are used as vehicles of typical French morality and culture, the openness or receptivity of these concepts towards other, different social worlds and possibilities of being human may be lost or threatened.

In this context, it is more than interesting that in Lévinas’s approach to human rights the common concept of ‘human dignity’ does not exist. That is because, for Lévinas, human rights should exist independently ‘from any distribution of privileges, dignities or titles, from any consecration by a will which abusively pretends to be reason’.⁴⁷¹ Lévinas seems to refer to dignity primarily as dignitas, a typical culturally subjective social good, that is something that can be bestowed upon you but also taken away from you by local powers and authorities. If dignity as an ostensibly universal but in reality inherently local, customary concept presupposes ‘bestowal’, deprivation of dignity as a social possibility can never be excluded. Following this line of thought, the Kantian ‘inviolability of human dignity’⁴⁷² is a problematic, if not misleading, concept, in which the professedly universal promise shields local customs, powers and interests.

A similar point can be made regarding other examples of the way the concepts of humanity and human dignity are currently used, in France and elsewhere. We can draw attention to new technologies in the field of biogenetics, such as genetic manipulation of human and non-human material, which put pressure on legal and philosophical notions of humanity and human dignity. These matters raise profound moral and ethical questions on the limits of human interference with the material, biological world. A natural limit will be reached when human intervention in our natural and biological habitats (including interference in human and non-human DNA structures) will affect the planet at large in such a way that it jeopardises the survival of the human ‘race’ in some parts of the planet, or destroys – instead of enhances – a range of possibilities of being human.

However, it appears that currently the destruction of biodiversity in general, climate change and the exhaustion of natural resources are much bigger threats to the viability of a plurality of dynamic human worlds (in which it is possible to live and breathe) than developments in human biogenetics.⁴⁷³ Therefore, these biogenetic questions are important, but they are only a subcategory in a much larger set of threats to the material and biological preconditions of a natural environment in which a plurality of dynamic human worlds can coexist peacefully. Besides these threats that directly affect the so-called human condition, it does not seem particularly helpful to attach the concept of humanity to a particular moral stance in the debate on the manipulation of human genes, on similar grounds to the dwarf-tossing example. It is perfectly legitimate to oppose dwarf-tossing or genetic manipulation on specific moral (secular and or religious) grounds, but in that case you should plainly say so, leaving humanity and human dignity – concepts, which, as I have argued, in order to be effective, should always embrace a plurality of human worlds and therefore a plurality of possible value-systems – out of the equation.

For similar reasons I am reluctant to confide in international committees, organisations or tribunals when they are speaking with self-assurance in the name of humanity, which, at the end of the day, appears to be nothing more than a reference to a fragile, infinite plurality of possible and forever changing human worlds. Attributing symbolic legal properties to humanity as such⁴⁷⁴ might lead to an erroneous reification – and, in its wake, a fragmentation – of the concept. Humanity is not a people, even if, paradoxically, the concept only makes sense in its intricate connections with particular places and peoples: humanity as a people or nation, committed to universal grace or openness.

To conclude this epilogue, humanity as a French phenomenon may lead us in both directions: on the one hand, it reminds us of the necessary connection between the concept of humanity and the openness and preconditions of particular places in which it is possible to come ‘home’ (it is also in this context that human rights become meaningful); on the other hand, French politics and adjudication do not escape the widespread tendency to translate particular and provisional moral convictions into universal truths and symbols by identifying their own ways with the ways of humanity as a reified whole.

Human dignity as an expression of humanity

The connection between “humanity” and “human dignity” is fairly intuitive. Human beings have an inherent value (their “dignity”), which depends not on some sort of legal recognition but is rather a given – somehow pre-legal. Violating this essence, this “humanness,” is then an action “against humanity.” Such a connection is made evident in the interconnection between humanity and biogenetics. Indeed, Article 1 of UNESCO’s 1997 Universal Declaration on the Human Genome and Human Rights establishes that the human genome underlies the “fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity.” Moreover, the principle of humanity in international humanitarian law is also presented in terms of “dignity” of the human being: common Article 3(1)I of the 1949 Geneva Conventions prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment,” Article 75 of Protocol I prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault,” Article 85 of Protocol I prohibits “practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination,” and Article 4 of Protocol II prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.”

The connection between humanity and dignity has also been developed in the context of international criminal law. In the Alekovski Case (1999), the International Criminal Tribunal for the former Yugoslavia made the move of understanding humanity in terms of dignity, and held:

It is important to note that, despite its intuitiveness, the connection between humanity and dignity made in the instruments referred to above denotes in fact an important philosophical choice, which is better understood in reference to the matrix of human agency in the context of human rights (meaning here by “agency” the ability of humans to take action and influence the context in which they live).⁴⁸⁵ Indeed, on the one hand, there is the view according to which human agency is the necessary correlation of rights; that is (human) rights exist because they allow the rights bearer to achieve her vision of the good. This is Hart’s “choice-theory” of natural rights.⁴⁸⁶ Rights exist only inasmuch as they presuppose the only natural right: the right to liberty.⁴⁸⁷ Others reject such a view, and argue that human rights derive from human dignity; that is, human rights exist inasmuch as they guarantee a basic threshold of dignity for the human being. Raz or MacCormick can be understood thus.⁴⁸⁸ Human rights have nothing to do with human agency; instead, “an individual is capable of having rights if and only if either his well-being is of ultimate value or he is an ‘artificial person’ (e.g. a corporation).”⁴⁸⁹

As has been hinted, the idea of humanity as a normative standard heavily relies on the second (dignity), and not the first (agency), philosophical premise. A quick perusal of instruments and judicial practice shows that the common understanding today is that the protection of human beings is warranted by the inherent dignity of the human person.⁴⁹⁰The Preamble to the UN Charter, the Preamble to the 1948 UN Universal Declaration of Human Rights (UDHR), as well its Articles 1, 22 and 23(3), all refer to dignity.

This choice of language can be explained. Dignity, as a philosophical premise, allows for a basic agreement that provides the political basis for human rights; however, it allows such basic understanding because it is empty of concrete meaning, thus allowing a formal agreement among people who, in fact, disagree. In this sense, it is enlightening to look at the history of the “dignity” language in Article 1 of the UDHR, which shows its role of dignity as a catch-all expression to replace other normative bases for human rights that proved too controversial among the delegates. It remains a mystery how the notion of dignity actually came to be included in the Preamble of the UN Charter, though several fingers point to South African General Jan Smuts as the driving force behind the idea.⁴⁹¹ Be that as it may, in the case of Article 1 of the UDHR, the main character was certainly René Cassin, who redrafted John Humphrey’s proposal,⁴⁹² and included the reference to dignity in his own draft.⁴⁹³ As the debate on the provision continued, the notion of dignity seemed to be useful to address a dual necessity: on the one hand, it was required to have some kind of normative basis for human rights; and yet, at the same time, the other options that delegates put forward (for example, “God,” “Nature,” and “Human Nature”) were too controversial and rapidly rejected by other members.⁴⁹⁴

This approach has eminent contradictors. Jan Joerden’s contribution to this volume starts off from the same methodological premise of the argument made here, in the sense that dignity and humanity should be explored as conceptually linked. However, from Joerden’s perspective, an exploration of dignity reveals that there is, indeed, a core meaning to it: human autonomy, which cannot be infringed. Thus, while I propose that humanity’s link to dignity has the effect of emptying the former of any significant substantive content, Joerden’s argument is that it is precisely this link that provides humanity with its substantive value (namely, human autonomy). In my view, while this is the view in German constitutional law,⁴⁹⁵ and is, in fact, also the view held in several Latin-American systems as well,⁴⁹⁶ the same certainty cannot be proclaimed of the international legal system: in the absence of a global constitutional court that gives ultimate meaning to humanity, we shall remain tied to it as a watered-down consensus for a normative basis of human beings. Indeed, this role of dignity can be gleaned in several international instruments where the concept is invoked, be it the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, or the Convention on the Elimination of All Forms of Racial Discrimination, all of which refer to dignity in their Preambles as source and inspiration of the rights provided therein. The same can be said about the Preambles of the Convention on the Elimination of All Forms of Discrimination against Women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.⁴⁹⁷ Furthermore, dignity also appears in Articles 28, 37 and 40 of the Convention on the Rights of the Child, in Articles 1, 3, 16, 24 and 25 of the Convention on the Rights of Persons with Disabilities, and in Article 19 of the International Convention for the Protection of All Persons from Enforced Disappearance, among many others. And there are references to dignity in the Preambles of most regional human rights instruments, including the American Convention on Human Rights, the Inter-American Convention on Forced Disappearance of Persons, the 2004 Revised Arab Charter on Human Rights,⁴⁹⁸ Protocol III to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, and the Charter of Fundamental Rights of the European Union.⁴⁹⁹ And the European Court of Human Rights has, in turn, also accepted the notion that human dignity is the ultimate source of the protection of human beings, even if confronted with the right to life.⁵⁰⁰

In all these instruments, dignity plays the role of a catch-all normative concept, devised to serve as the basis for the human being when such a basis was required, and useful in turn because of its being void of any actual substance. At the end of the day, as McCrudden has put it, “the significance of human dignity, at the time of the drafting of the UN Charter and the UDHR (and since then in the drafting of other human rights instruments), was that it supplied a theoretical basis for the human rights movement in the absence of any other basis for consensus.”⁵⁰¹

The notion of dignity is exceptionally placed to be a plausible point of consensus, and still remain completely devoid of any substantive meaning. As Kretzmer and Klein put it, “[w]hile the concept of human dignity now plays a central role in the law of human rights, there is surprisingly little agreement on what the concept actually means.”⁵⁰² Humanity as a normative standard relies on dignity because when it rejects the underlying logic of human agency it is left with a void in its definition of what humanity actually means, and it systematically relies on that void to reach consensus among radically different world views.

Humanity and the empowerment of humanitarian institutions

The default connection between humanity and dignity implies that humanity is something rather more important than the individual’s own free will. Consider whether dignity can be waived by the concerned individual. For the German Constitutional Court, the answer is fairly straightforward: “human dignity means not only the individual dignity of the person but the dignity of man as a species. Dignity is therefore not at the disposal of the individual.”⁵⁰³ This means that the whole point of humanity as a normative standard is not human agency but the protection of the individual – even from herself.

It is in that context that one finds a new dimension to what David Kennedy said years ago: human rights generalize too much, because “to come into understanding of oneself as an instance of a pre-existing general – ‘I am a “person with rights”’ – exacts a cost, a loss of awareness of the unprecedented and plastic nature of experience, or a loss of a capacity to imagine and desire alternative futures. We could term this ‘alienation’.”⁵⁰⁴ This “plastic nature experience” is defined by human agency: it is the way we experience life and our surroundings actively, and not as mere spectators. This perspective is lost in humanity as a normative standard: the individual here is a passive, helpless entity that requires protection: a human being in need of a mediator between her and the world.

Humanity as a normative standard is an empty container, which is to be filled as desired whenever the political consensus so requires. That is perhaps one of its biggest assets. Instead of strict rules that tell us what is, or is not, appropriate in a given context, humanity allows a contextual assessment of situations, and permits flexibility while still invoking a certain normative authority.

Such indeterminate nature of human dignity empowers humanitarian institutions and bureaucracies in the process of defining the normative standard known as “humanity.” Given the inconclusive nature of dignity, any effort to give a more concrete meaning to it will imply the empowerment of those who interpret it. Consider, for example, the debate on humanitarian intervention: the continuities between colonialism and the deployment of the “humanitarians” has become a staple in international legal scholarship,⁵⁰⁵ while the absence of such continuity between contemporary humanitarianism and the Enlightenment has been explored forcefully by Alain Finkielkraut.⁵⁰⁶ Ultimately, these contributions seem to suggest, humanity as a normative concept means whatever humanitarian institutions say humanity is. How does this effect come about? What remains of this chapter will explore the bureaucratization of humanitarianism and its impacts on the notion of humanity as a normative standard.

The bureaucratization of humanitarianism

Part of the ethos of humanitarianism is action. When everything fails, when the Security Council or the legal departments of Foreign Offices are entangled in discussion of vetoes, or arcane treaty provisions, the ethical imperative of humanity seems to trump all discussions. Humanity is out there, not in an office in Geneva or New York – but in Colombia, or Sudan, or some other place where the dignity of human beings needs to be protected by the international community as a whole.

And yet, this is hardly the case. The political battle over whether humanity is indeed a valid normative standard is over. Schmitt’s doubts have been ignored. Humanitarianism is today the default approach to international policy. And this, as Jarna Petman has explained in the European context, has been

Inevitably, after the revolution, bureaucracy follows. As humanity becomes a normative standard akin to human rights, a whole culture of bureaucratic humanitarianism emerges. This includes, to be sure, the logistics machinery deployed in order to do “humanitarian work”: thousands of people working in international organizations, international courts, nongovernmental organizations, whose work can be loosely defined as “humanitarian.” However, it also implies a specific process by which humanitarianism becomes a specific field of expertise, expressed in legal language, whose main task is to define the meaning of “humanity” in a given context. Indeed, humanity as a normative standard triggers a specific process of bureaucratization in the Weberian sense of the expression.

Bureaucratization is linked to Weber’s idea of rationalization in modern societies, the former being a symptom of the latter. Weber conceived an ideal type of bureaucracy, defined by (1) very strict distribution of competences (jurisdictions); (2) strong hierarchy; (3) management based in files or documents; (4) professional training; (5) full-time work of the officials; and (6) the existence of rules, which are more or less comprehensive and may be learned.⁵⁰⁸ In what follows, this chapter will focus on the professional aspect of the bureaucrat (4), as it is through professional training that humanity as a normative standard empowers bureaucracies.

Although intimately related, Weber’s account of professions has attracted much less attention than his ideas on bureaucracy; this due, perhaps, to the fact that the profession was not as neatly drawn through an “ideal type” as was bureaucracy.⁵⁰⁹ The idea of professions and professionalism is pivotal to the Weberian construct of bureaucracy. Weber understood the relation between rationalization and professions as one of multi-causation: the professional, the “man of vocation” (Berufmensch), was himself an example of Calvinist asceticism,⁵¹⁰ and contributed to the rationalization of bureaucracies, which in turn contributed to the development of professions.⁵¹¹ The relation between professionals and bureaucracies is, thus, one of rationalization and the predictability of outcomes.

In this context, Weber takes a special interest in the legal profession, dedicating one section of the text that was posthumously published as Economy and Society to “The Role of Law Specialists.”⁵¹² Law specialists, according to Weber, play a crucial role in shaping the legal system where they act. Specifically, in Weber’s account, it was their education as legal specialist that had that effect: professional legal specialists are formed by, and a rational legal system is tailored in, specialized schools where the law is taught through legal theory as “legal science,” and where “concepts” are passed on to students. Ritzer argues that Weber went even further, and considered that legal professionals are the decisive factor in developing a rational legal system; that is, “where professionals are in a position to shape the development of law, that law is likely to be rationalized.”⁵¹³ This impact should be then connected to the idea of bureaucracy presented above: if legal professionals are the determinant variable for rationalization of the law, then their role as professionals is the medium through which the law becomes subject to bureaucratic rationality. In other words, bureaucratization of adjudication implies legal professionalization, as it is legal professionals who create a rational legal system.⁵¹⁴ From Weber’s perspective, bureaucratization is a way of formalization that permits predictability. The role of legal professionals is to implement that predictability; hence, the importance of teaching law as a series of concepts, which are then applied uniformly to specific factual circumstances.

The problem is that in stark opposition to Weber’s view the bureaucratization of humanitarianism actually occurs in the context of extreme deformalization; indeed, as we have seen, humanity as a normative standard is radically indeterminate, and fosters no predictability. This, in turn, opens a wide leeway for bureaucrats to have the final word in what, exactly, humanity means. Beyond Schmitt’s critique that the notion of “humanity” is likely to be used by states for imperial purposes, the indeterminacy of the concept permits the empowerment of the humanitarian bureaucrat.

This move is illustrated in Edwin Bikundo’s description of the politics of humanity at the International Criminal Court, also featured in this volume. From his perspective, humanity is instrumental to safeguard the collective that is affected by the international criminal. It is useful to point the finger at the criminal, as the individual who is responsible for inhuman behavior, thus saving the community where the criminal lived and acted from being subject to such assessment. This need, though, is not one of the community, and neither is it a need of the criminal: the need not to blame a whole community, a whole continent (in the case of Africa) is one that is felt by the humanitarian bureaucrat, who is deciding what humanity is – and seems ill at ease with the idea that his or her definition of humanity entails that a whole community/country/continent acts inhumanly.

The question, however, is not whether lawyers should have a lesser say in the definition of humanity. Humanity has been constructed as a legal concept, and it does not exist outside that framework – at least not for the purposes of human rights. Even if other professions would take the lawyers’ place (say, for example, development experts) then those professionals would have to start thinking and arguing as lawyers – humanity and law have become inextricable partners.

Rediscovering humanity

Is there no limit to the definition of humanity? Does this mean that we should drop the concept for good? I believe not. There seems to be an interesting way forward, which is suggested by Bartha Knoppers and Vural Özdemir’s study on biogenetics, included in this volume. One option is to hold our ground and defend the idea of humanity as inherently normative, per se. To do this, we would focus on the inherent characteristics that make us human; that is, we would search for objective elements that may be found in all humans, which define the very essence shared by all of us. Biogenetics proves to be an important inspiration for such line of reasoning and, as Knoppers and Özdemir explain, providing the framework to think of bio-identity around three different axes: (1) membership in humanity (where dignity plays a crucial role), (2) genetic identity and (3) species integrity. Constructing the notion of humanity would require the interplay between each of these perspectives – all of them based on genetics.

The challenge, though, is that each of these perspectives needs to be interpreted and pondered in order to make it into the whole that the concept of humanity requires. Genetics will only get us so far: scientific developments that contribute to each of these perspectives pose a difficult ethical question to the person who is making the decision on humanity. Enter thus the problem of interpretation and expertise. When defining humanity, science in itself only provides the starting point to an exercise of expertise which is similar to that made by lawyers in the context of human rights and legal humanitarianism.

Knoppers and Özdemir propose that the discussion may be advanced if we turn to ethics – anticipatory ethics, in particular. The challenge, in their view, is that the ethical discourse in science has been reduced to react to new technologies, whereas ethics should anticipate such developments, and intervene:

This point is well taken. Their call is for an a priori ethical intervention in the development of the very technologies that define humanity.

This turn to ethics could be extremely useful in the context of the bureaucratization of humanitarianism discussed above. Indeed, part of the challenge in the empty-vessel notion of humanity is that we lack a workable theory of the limits to such notion. In other words: if we accept that humanity is an empty vessel, does that mean that everything and anything that humanitarian experts say counts as “humanity”? Is there no limit? My proposal for a limit is to turn to those very experts, and unpack their expertise as a matter of ethics. Just as the question of science is only the beginning of the discussion in the biogenetical implications of humanity, the question of expertise is only the beginning of the discussion of the definition of humanity in the context of bureaucratized humanitarianism. The issue is, therefore, not whether there are some inherent characteristics that define us as humans, but rather whether there are ethical limits to the definition of humanity by humanitarian bureaucrats.

How to start thinking about this challenge? It seems fairly well established that moral philosophers traditionally understand ethics in reference to two models.⁵¹⁵ The first is a deontological model, according to which morality is based on external values, applied to concrete circumstances. Kant’s Categorical Imperative is the prime example. From this perspective, assessments of human action consist of contrasting acts with an external norm; in essence, if behavior fails to comply with the norm, it will be immoral. The second model is consequentialism, according to which behavior should be evaluated not in accordance with antecedent ready-made laws but by assessing social consequences.⁵¹⁶ Thus, if behavior fails to enhance the well-being of human beings, it cannot be considered moral.

Humanity as a normative standard falls short of providing a deontological threshold because, as we have discussed extensively, the very notion is an empty vessel that uses dignity as a proxy to obscure the radical disagreement that underlies it. Moreover, if the goal is to limit in some credible way the definition of humanity by experts, the project of developing a utilitarian definition of humanity seems self-defeating: after all, the standard of welfare (utility) in defining humanity will be in turn established by the very experts we are trying to control.

This is where the approach from biogenetics becomes valuable. It implies a way out of the ethical dichotomy of deontologic/consequentialist models, and opens the possibility of thinking along the lines of virtue ethics. Virtue ethics seeks to escape from the “law conception of ethics” that fails to make sense without a belief in divine commands.⁵¹⁷ Moreover, it features itself also as an alternative to consequentialism. The basic idea behind virtue may be perhaps be better grasped if one drops the label “virtue” (which is often misleading in contemporary language) and frames it as “good-sense ethics.”⁵¹⁸ From that perspective, the question that needs to be answered is: has this person acted in good sense? And acting in good sense is fundamentally a matter of practical wisdom: how should one behave in a given context, to live in excellence?⁵¹⁹ This view helps us go beyond the language of rights and legal duty, and allows us better to unpack decision making as part of the human experience. We have to live with the fact that international law decided to invest all its capital in the empty vessel of humanity as a normative concept – there is no changing that. Perhaps turning to the good sense of those defining humanity is the only road left.

Conclusion

This chapter has explored the difficult challenge posed by the concept of humanity in international law. One of the main advantages of humanity as a normative standard is its flexibility, which in turn entails the downside of its indeterminacy. This, in turn, empowers bureaucracies that decide, within that framework, what humanity is. Such empowered humanitarian bureaucracies are formed by professionals: mainly legal professionals who, according to Weber, are pivotal for advancing formalization and predictability of the law. And yet, legal professionals in humanitarian bureaucracies are expected to do the exact opposite of the Weberian idea: they are expected to advance a deformalization agenda, and to use humanity as a flexible standard. They are indeed expected to undertake contextual, deformalized policy analysis in order to decide what is “humane.”

Humanitarian bureaucracies do not lead to formal rules that would, as it were, “speak law to power.” Humanity is far from being useful as a constitutional limit to global power, as some contemporary proponents argue,⁵²⁰ but is rather instrumental to contextual assessments that define what is humane in any given moment – taking, of course, into consideration the powers that be at that given moment. Such is the advantage of the humanitarian bureaucrat: to draw the line between humanity and inhumanity after knowing what is expected of her, after being able to perform a cost–benefit analysis of her decision. Humanity as a normative standard is not a “rationalized law,” in Weberian terms, but a law that implements political goals.⁵²¹ The result is that humanitarian bureaucrats are empowered to influence global politics, and define a powerful normative standard to assess it, without any significant constraint. After all, if humanity is an empty vessel to be filled by humanitarian institutions, and such institutions are in turn defined by a paradoxical bureaucratization process where the result is even more deformalization, then one conclusion is that the power of such bureaucrats is the driving force behind humanity – a disturbing conclusion indeed. One possible way forward is to focus on the good sense (the “virtue”) of those that are empowered by this move. By focusing on the expert and their ethical dimension, we may begin to develop the vocabulary to make humanity a platform for emancipation and justice, beyond its current form of an agreement to disagree.

1 The protection of human dignity as a promise

“You are nothing, your nation is everything” (Du bist nichts, dein Volk ist alles). Slogans like these and the mindset connected to them were characteristic of Germany during the time from 1933 until its collapse in 1945. They express a state’s creed according to which the state is not there for its citizens’ sake, but rather the citizens were only allowed to exist for the state’s sake. How little these citizens were considered to be worth was clearly seen in the inhumane extermination of whole demographic groups within their own state, and in the wastage of “human material” by fighting unjustified wars. After the state based on this concept collapsed, a radical new beginning was needed. Even though it was possible, to a certain extent, to depend on the experiences from the Weimar Republic, it was not sufficient simply to return to “business as usual,” i.e. the time before 1933, not least because the Weimar Republic and its constitution were not able to prevent the rise of the so-called “Third Reich.”

Article 1, Basic Law (Grundgesetz, the German Constitution),⁵²² which came into force in Germany in 1949, can be interpreted as a promise by the newly formed state to its citizens, and also to all people living within its territory: the state will no longer see itself as an end in itself but rather sees every single person as an end in itself, thus turning the relationship between the state and its citizens through 180 degrees. This may well be described as a Copernican Revolution in the understanding of what a state is. No longer should the citizen be there for the state, the state should now be there for the citizen.⁵²³ If the proposition in Article 1, Basic Law, which is often – and not for nothing – referred to as the guarantee of human dignity (Menschenwürdegarantie) is interpreted as such as a promise by the state to its citizens,⁵²⁴ it also establishes the juridical bindingness of the guarantee of human dignity. For a promise that is accepted (and this may be assumed, if the general acceptance of the Basic Law in Germany is taken into account) must be kept: pacta sunt servanda.

Besides the fact that this promise given by the German⁵²⁵ state to every person within its state territory⁵²⁶ is legally binding, the content it had, and still has, must be explored. It does not appear too far-fetched that the guarantee of human dignity is unsubstantial in the end.⁵²⁷ This is true to a certain extent, as this guarantee must be filled with content. As will be shown, this content (in Germany) consists primarily of the human rights’ guarantee which is found in Article 1(2), Basic Law.

The guarantee of human dignity, therefore, appears to be merely a “hull” that needs to be filled; however, even this “hull” itself includes a lot, by providing the outline for future developments in the area of constitutional law. For at least it brings across the idea that no longer should “the people,” as an amorphous crowd, or the state itself, but rather every human being as an individual, form the centre of the constituted society.

2 Formative principles of the protection of human dignity

The promise of human dignity is not a promise of individuals’ rights (these rights are needed, however, properly to fulfill the definition: see (3), below), but primarily the formative principles necessarily connected to such a promise given by the state to all individual persons within its territory in order for a constituted society – as described above – to exist. These formative principles can – at least practically – be characterized, speaking with Kant, as conditions of the possibility of a political system designed completely differently and new in such a way. The principles are formative because they must already be recognized (in this case: by the state) before any promise (and, here, in particular, that of human dignity) that is worthy of this name can be made at all.⁵²⁸

The first formative principle is the above-mentioned principle of pacta sunt servanda, or, in this case, referring to the promises given by the state: promises must be kept. For the fulfillment of this duty (i.e. to keep a promise that itself cannot be promised), the duty must always be assumed as a precondition of making a promise. If that precondition was not met, no promise – at least no promise meant seriously – would exist: in the same way as the rule pacta sunt servanda cannot be agreed upon but must already be recognized before entering any agreement.

Article 79(3), Basic Law, the so-called “eternity clause” (Ewigkeitsklausel) of the Basic Law, can be interpreted as an affirmation that the promise of human dignity is essential for the newly founded state, and therefore is permanently binding.⁵²⁹ This provision, which excludes any amendments to the Basic Law affecting (inter alia) the guarantee of human dignity, has sometimes been criticized as self-referential and thus in a way a paradox. In particular, one might ask whether or not Article 79(3), Basic Law itself may be changed in a first step, in order to abolish Article 1, Basic Law in a second step. This question can only be answered by taking the spirit and purpose of such an “eternity clause” into account. For the present context, it is necessary to realize that the constitutional power, by means of this so-called “eternity clause” (Ewigkeitsklausel) in Article 79(3), Basic Law, has clarified how serious it was about the promise of human dignity, and that there should be no option of taking back this promise later (at least not within the context of this constitution). If the state had said in substance: I promise to guarantee human dignity but this may be changed at a later date, this promise would not have been one from the outset.

Furthermore, the concept of a promise already implies that the state sees its citizens as individuals that can be addressees of a promise. This assumption, too, is a necessary condition for giving a promise, regardless of the content of such promise. For the promisee must already be recognized (as a person) because otherwise it would be senseless to give him or her any promise. Every promise needs an addressee (who is qualified and recognized as such). A tree, for example, cannot be promised anything. As a condition of the possibility of any promise, the recognition of the citizens as persons is therefore also a matter of the promise of human dignity.⁵³⁰ The German Federal Constitutional Court, also well aware of the fact that human dignity is an empty hull which must be filled, consistently uses the so-called “object formulation” (Objektformel) to express this.⁵³¹ According to this formulation, which can be seen as an, albeit not undisputed,⁵³² attempt to clarify human dignity and is still used in German legal practice,⁵³³ the promise of human dignity prohibits the state from treating humans as mere objects instead of persons.

In addition, the promise of protection of human dignity evidently is made towards all citizens (and beyond that, all humans within the state’s territory; cf. above) equally.⁵³⁴ That means that this promise at the same time includes the principle of equality, according to which all humans must be treated equally by government bodies in relevant equal situations, i.e. in this case: before the law. This, therefore, is also a necessary condition for promising a group (of people) something if the promisor does not differentiate in any way. For it would be contradictory to promise all humans (without any further specification) the protection of their dignity, but on the other hand keep back this protection from an individual (or from some individuals) belonging to this group. Thus, the principle of equality is also a formative principle of the promise of human dignity, independent of the question when certain situations must in fact be seen as “equal” or “unequal” to each other.

To promise someone something also means fundamentally to respect the promisee’s will (neminem laede). If this was not a precondition, any promise would be senseless because one could (mis)treat the other person according to one’s own will (in this particular case: the state’s will) anyway and would not have to promise anything at all. Every promise as such, therefore, rests upon the idea that the promisee must be able to demand that the promise is kept – once again, irrespective of what the material content of this promise is. Accordingly, a promise gives the promisee a legal right (or claim) that the promise is kept. Here lies the basis of the so-called prohibition to instrumentalize (Instrumentalisierungsverbot),⁵³⁵ prohibiting that the state (in the words of Kant) uses its citizen merely as a means and not as an end. For each citizen’s right that his will is investigated and respected is necessarily connected to the (permanent) promise of human dignity.

Nevertheless, this is a right that all citizens have equally (cf. above on the principle of equality). This, however, means that the execution of an individual’s will is limited by the others’ will. The state’s task and meaning is to ensure that these mutual limitations are respected.⁵³⁶ This means that instrumentalization, or, put more exactly, the use of state force, is only allowed if it can be justified by securing other citizens’ (potential) rights. Only insofar as it is necessary (this is often referred to as the “principle of proportionality”), in this sense can it legitimately be considered to be “legal force.”

Two further general legal principles that reflect long-understood rules in jurisprudence are connected to the promise of any right: Volenti non fit iniuria and vim vi repellere licet. The first rule is fundamental because there can be no legal claim if the right concerned is explicitly (and voluntarily) waived. For the right to waive one’s own right is a direct consequence of the (state’s) respect for one’s will (which is also included in the promise; cf. above). The second clause expresses the right to self-defense.⁵³⁷ It means that a right that is (unlawfully) attacked may be defended (if and insofar as the state is not able to use its monopoly on the use of force and thus ensure the defense of this right). The right to self-defense is therefore also fundamental for the legal system because if it were missing every right would become practically worthless, as it could not be protected in case of an attack (i.e. in the absence of government bodies prepared to offer protection). Otherwise, anyone attacking a legal right would only have to contrive that the state’s protection would arrive too late in order legally to infringe someone else’s rights.

3 Content of the protection of human dignity

While the above-mentioned principles (pacta sunt servanda, recognition, equality, neminem laede, volenti non fit iniuria, vim vi repellere licet) can be seen as formative principles of every promise, as they must be generally accepted as valid for every promise, determining the content of the promise of human dignity requires an interpretation: the concrete meaning of the protection of human dignity in the Basic Law (and also what is not meant by this clause) must be clarified. For such an interpretation, it is relevant, first, what the promisor wanted to promise, and also secondly, what the promisee was able to understand (or was reasonably allowed to understand; cf. the so-called “objective horizon of the recipient” (objektiver Empfängerhorizont)).⁵³⁸

The constitutional legislature itself, however, delivered an essential guide to interpreting the content of the promise of human dignity by giving the acknowledgement of human or basic rights as reason for this promise. By doing so, this bill of basic rights becomes a legal specification of the term “human dignity,” so that the latter can very well be understood as the source of the basic rights. In other words, although the “following basic rights” are not identical to the promise of human dignity (this promise can be seen as the broader term and must include more than the basic rights enumerated in the Basic Law), they are a valuable source of interpreting what the constitutional legislature meant by its promise of human dignity. At the same time, this opens the opportunity of “developing” further basic rights per analogiam up to now not explicitly mentioned in the Basic Law by interpreting the spirit and purpose of the protection of human dignity (ratio legis). One example for such a “developed” basic right is the (basic) right to informational self-determination which the Federal Constitutional Court derived from Article 1, Basic Law in conjunction with Article 2(1), Basic Law.⁵³⁹

Reflections of the formative principles mentioned above at section 2 can also be identified within the canon of basic rights. For example, a guarantee of the principle of equality is found in Article 3(1), Basic Law.⁵⁴⁰The perpetuation of the promise, and thus its seriousness, is (as mentioned) guaranteed by Article 79(3), Basic Law. The recognition of the promise as personal, as well as the rule volenti non fit iniuria, can be recognized – beside other content of this clause – in Article 2(1), Basic Law (free development of personality).⁵⁴¹Self-defense, at any rate the basic idea behind this concept, can be found in Article 20(4), Basic Law, as this provision stipulates a right to resistance against acts aiming at abrogation of basic rights (and the constitutional order).⁵⁴² This rule is a particularly good demonstration of how seriously the constitutional legislature took the protection of human dignity. Would it otherwise have granted the individual a right to use force even against state organs?

Finally, the content of the promise of human dignity can be understood as including the citizen’s right to securing his existence. For the constitutional legislature itself interprets the protection of human dignity, among others, as the right freely to develop one’s personality (cf. Article 2(1), Basic Law). This possibility no longer exists if the minimum conditions for securing one’s existence are not met. One might even interpret the state’s promise of the possibility of free development of one’s personality widely, namely as a duty on the state’s side to strive for maximizing the possibilities of free development of personality. This duty is then limited by its capability and functionality (here, as for every duty, ad impossibilium nulla est obligatio applies), as it has undertaken a duty towards all citizens equally and accordingly must ensure that it is actually able to fulfill its duties.

By interpreting the guarantee of human dignity as a state’s promise, however, at least one thesis is excluded: namely, the thesis that the notion of human dignity can also lead to a citizen’s duty to behave in a certain way. Of course, the establishment of a legal order must allow delimiting each individual’s rights (interests) from those of all other citizens in the state. This is, so to speak, the “inner limit” of the promise of human dignity given to all citizens, and a condition of the possibility of realizing it. Apart from that, no other duties arise from the promise of human dignity, simply because imposing duties cannot be interpreted as consequence of a promise. A duty is only placed on the promisor (namely, to fulfill his promise) but not on the promisee (except possibly the duty to accept the promised service if he has accepted the promise; but never a duty to own services). In other words, only rights, never duties, can derive from a promise for the promisee. Wherever the state wishes to place obligations it must do so explicitly (cf., e.g. the regulation on Compulsory Military Service in Article 12a, Basic Law), obligations by all means do not result from the promise of human dignity. However, this also means that no duties of citizens to the state can be drawn from the promise of human dignity, even if it is attempted to pave the way for such duty by constructing “(legal) duties to oneself.”

4 Unbalanceability and inalienability

From the fact that the promise of human dignity implies the above-mentioned formative principles, the conclusion can be drawn that at least these formative principles are unbalanceable (from the state’s perspective). For every kind of balancing or weighing up these principles against others would contradict their character as conditions of the possibility of the promise of human dignity. At least in principle this thesis corresponds to the German Federal Constitutional Court’s (Bundesverfassungsgericht) concept according to which basic rights cannot, at any rate not for the sake of other persons’ interests or for any other reason, be limited so strongly that they practically completely lose their protective function; this idea is generally referred to in Germany as “Wesentlichkeitstheorie” (essence theory) of basic rights (cf. the corresponding constitutional interpretation of Article 19(2), Basic Law, according to which the “essence” of a basic right is an uncrossable limitation for any possible constraint of basic rights). At best, it is permissible mutually to limit the exercise of different persons’ basic rights in the sense of practical concordance (Praktische Konkordanz).

With that said, it seems reasonable to distinguish between at least two degrees of (state-led) infringements of human dignity. On the one hand, there are infringements of the exercise of basic rights that do not touch the “essence” of this right; such infringements may be justified (with a respective reasoning). On the other hand, there are infringements of the exercise of basic rights that lead to a complete extinction of this basic right for the person concerned; these infringements can under no circumstances be justified, as they already negate the above-mentioned formative principles of the protection of human dignity. There is some indication that the “crimes against humanity” mentioned in the Rome Statute fall within the scope of the latter kind of violations of human dignity, of course, without scoping out this field.⁵⁴³

A further consequence of the theses presented above in section 2 is that the notions of inalienability of human dignity, and basic rights (cf. Article 1(2), Basic Law), respectively, can only be interpreted in such a way that the state may not deprive its citizens of their human dignity (and must protect its citizens from corresponding infringements by third parties; cf. the “theory of indirect third-party-effect” (mittelbare Drittwirkung)).⁵⁴⁴ In any other event, the state would not keep its promise of human dignity. On the other hand, nothing is said about the possibility of the citizen’s self-renunciation of his/her human dignity (or, more precisely, his/her waiver of the right of the protection of his/her human dignity). Insofar as the rights of other persons are not involved, the clause volenti non fit iniuria must apply even here. Anything else cannot be drawn from the promise to protect human dignity. And any other thesis requires additional arguments, for example, the assertion of a duty to protect one’s dignity. However, there is no persuasive reasoning which supports such a duty; at least not as a legal duty (this may be different for moral duties or other purely ethicalduties).

5 Consequences of the promise of human dignity for medical (criminal) law

In the following paragraphs, some consequences of the concept of a juridical term of human dignity, as set out above, for medical (criminal) law will be outlined. This can only be an outline and thus only a few selected cases, problematic or worthy of discussion, are singled out.⁵⁴⁵

6 Conclusion

After the Second World War, the notion of human dignity was placed at the beginning of the new German Constitution to underline its importance, especially after the Nazi era, during which humanity, both of individual victims and of mankind altogether, was completely set aside (section 1). Although human dignity may appear only as a “hull,” the fact that it was promised by the state to all citizens already implies the recognition of every human being as a person (and not as a mere object, or part of a certain group), respect for the individual’s will, and the principle of equality (section 2). Basic rights – for example, the right to free development of one’s personality – and their interpretation are helpful to understand the term human dignity (section 3). As an unconditional promise, human dignity cannot be set aside by any unilateral state action; it is an unbalanceable and inalienable right (section 4). With this aforementioned interpretation of human dignity, answers to selected questions of medical criminal law can be given (section 5). Of course, this interpretation can apply to other areas of law too: crimes against humanity, for example, violate human dignity because the victim’s humanity is negated by not protecting their right to live and also by disrespecting their will to live. Interpreting human dignity as a promise (which is additionally connected to the basic rights) may be seen as the result of violations of human dignity in the past. However, for the future, this promise and its immanent formative principles, allow the answering of completely new questions raised by new technologies and societal developments.