Justine Lacroix is a professor of political theory at the Université libre de Bruxelles (ULB). Elected member of the Belgian Royal Academy in 2018, she has been an associate or visiting professor in several universities in France (Sciences Po Paris, University Paris 2 Panthéon-Assas in particular) and abroad. She is a member of the academic council of the École Normale Supérieure (Ulm, Paris) and of the editorial board of Esprit, Raison publique and the European Journal of Political Theory. Director of the Center for Political Theory from 2011 to 2016 and from 2018 to 2020, she is currently Vice-Dean of the Faculty of Philosophy and Social Sciences at ULB. She is the author of several books devoted to the debate between forms of liberalism and communitarianism (Libéralisme versus Communautarismes. Quel modèle d’intégration politique ?, Éditions de l’ULB, 2004 ; Walzer. Le pluralisme et l’universel, Michalon, 2001), to the political philosophy of Europe (L’Europe en Procès. Quel patriotisme au-delà des nationalismes ?, Cerf, 2004), and to intellectual debates on European construction (La pensée française à l’épreuve de l’Europe, Grasset, 2018 and, with Kalypso Nicolaïdis, European Stories. How Intellectuals Debate Europe in their National Contexts, Oxford University Press, 2010). Between 2010 and 2016, she led a European Research Council (ERC) project on critiques of human rights.

Jean-Yves Pranchère is a professor of political theory at ULB. An alumnus of the École Normale Supérieure (Ulm, Paris), he was director of the Center for Political Theory (ULB) from 2016 to 2018 and is currently vice-chair of the Department of Political Science at ULB. He is a member of the editorial board of the European Social Science Journal, Esprit and Germinal. He is the author of numerous works devoted to counter-revolutionary and anti-modern traditions (L’Autorité contre les Lumières. La philosophie de Joseph de Maistre, Droz, 2004; Louis de Bonald, Réflexions sur l’accord des dogmes de la religion avec la raison, Cerf, 2012; contributions to the Dictionnaire des anti-Lumières et des antiphilosophes, Didier Masseau ed., Honoré Champion, 2017) and articles devoted to the questions of the nation, secularism, democracy and populism.

In 2016, Justine Lacroix et Jean-Yves Pranchère published Le Procès des droits de l’homme. Généalogie du scepticisme démocratique (Seuil, 2016; english translation: Human Rights on Trial, Cambridge University Press, 2018). In 2019, they also published a small book in defense of human rights (Les droits de l’homme rendent-ils idiots?, Seuil, series: La République des idées, 2019). Since 2017, Justine Lacroix and Jean-Yves Pranchère have been co-directing, with philosopher Thomas Berns, a research project dedicated to the philosopher Claude Lefort (1924-2010) – which has recently led to a special issue of the journal Esprit (Claude Lefort. L’inquiétude démocratique, Esprit, janvier 2019) and the journal Raison publique (Le Travail de l’œuvre – Claude Lefort, Raison publique n° 23, mai 2019).

They have been invited to the EHESS to discuss their book Human Rights on Trial. A Genealogy of the Critique of Human Rights in the context of the Séminaire de Philosophie Politique at CESPRA (CNRS-EHESS). Justine Lacroix, Jean-Yves Pranchère and Luc Foisneau discuss different aspects of the critique of human rights, from Edmund Burke’s critique to the twentieth-century debates around the issue of the “right to have rights,” or the question of whether rights are, or are not, a politics.

This interview was conducted by Luc Foisneau (CNRS – CESPRA) at the Audiovisual Center of EHESS, 96 boulevard Raspail, Paris, the 13^th June 2018, and revised by the authors in May 2021.

Luc Foisneau – Thank you for accepting this invitation to come and talk about your book on the “trial” of human rights. My first question arises from the title. Is there currently a particular trial of human rights? Could you describe it in a few words?

Justine Lacroix – When we began this research project in 2010, the issue of the critiques of human rights seemed relatively marginal. We had been struck by the convergence of many of the grievances levelled at human rights in contemporary political thought on both sides of the Atlantic, in particular the idea that the primacy conferred on human rights was undermining the foundations of collective life. However, since we began writing this book, and even more so since we published it in 20161, this idea has become increasingly common currency, not only in the intellectual sphere but also in the public arena. Everywhere, increasingly powerful currents are now challenging the constraints – especially at the international level – that result from the guarantee of fundamental rights.

Jean-Yves Pranchère – One of the symptoms of this change is the success of the term “human rights-ism”, a pejorative term whose positive antithesis is unclear: a cynical Realpolitik which is in fact, more often than not, merely the mask of political impotence, or even of complicity with horror, as we saw in Rwanda? In short, anyone who thinks that torture is not acceptable and that we must work as much as possible, taking into account the state of the balance of power but to the full extent of our means, on the international level to advance human rights, is accused of human rights-ism. Should we therefore take pride in having allowed the Syrian regime of Bashar al-Assad to massacre hundreds of thousands of people? The unspoken connotations of an expression such as "human rights-ism” can only cause concern. However, its dissemination implies a critique of human rights that is intellectually very well structured. Everything is happening today as if a long process of intellectual undermining has led to a delegitimization of human rights that reveals the ambiguities and dangers of the arguments put in place in the 1980s.

Luc Foisneau – You emphasise in the book, quite rightly, that there are several key moments in this history of human rights criticism. I’d like to know what you think of the last moment you identify, that of the 1970s, which sets the stage for the anti-human rights policies you just mentioned. How would you characterize this later intellectual critique of human rights, comparing it, for example, to the critiques that immediately followed the French Revolution or to critiques heard in the 1930s?

Jean-Yves Pranchère – I would say the most important aspect is its ambiguity: it is formulated in arguments whose political positioning is uncertain and fluid. Take for example the criticism elaborated by Marcel Gauchet, who claims not to be targeting the principle of human rights itself. Marcel Gauchet has said very clearly that there are only two possible ultimate principles of political legitimacy: the rights of God or the rights of man. In this sense, we necessarily live in societies based on human rights. But he also criticizes their contemporary use, which in his view forgets that “human rights are not a politics2”, according to the title of an article published in 1980 which has had a considerable impact. In other words, human rights, because they posit that the source of political legitimacy is human, cannot be a basis for organization of a political entity by giving it a form connected with a unique history. The difficulty with such a position is that it is hard to see how the critique of the “use” of human rights can avoid also affecting the principle: if human rights are a political principle without concrete political scope, then they are doomed by their very principle to have “impolitical” effects. This is why they are accused of harming democracy and of turning it “against itself” by indexing it to an individualistic utopia that arguably renders the formation of a general will impossible. But, as soon as human rights are mistakenly confused with radical individualism, it is indeed their principle that is called into question: the “use” that is made of them derives from the interpretation of their principle. Hence a second ambiguity: it is not clear whether human rights are criticized in the name of a necessary joining of individual and collective autonomy, or in the name of an opposition between individual and the collective autonomy. In his 1980 article, whose register is almost one of self-management, Marcel Gauchet defended an idea of social autonomy that human rights alone could not produce. But in his later texts, the invocation of “the power to govern oneself” loses its social-democratic color and shifts to the fear that contemporary societies are ungovernable. The accusation of human rights is no longer that they have abandoned the social question, but on the contrary that they have contributed to an assistance mentality and a crisis of authority by giving rise to claims incompatible with the capitalist order.

Justine Lacroix – There is another element typical of current times. It is the opposition made, implicitly or explicitly, between today’s “human rights” and the “rights of Man” of 1789 or 1791.  This opposition exists both in the works of an American author such as Michael Sandel and in those of Marcel Gauchet and other French authors. The idea is that human rights were, whether in the Declaration of 1789 or in the Bill of Rights of 1791, linked to a collective life and a national citizenship.  Conversely, our “human rights” according to these authors are merely the rights of private individuals, the expression of claims to personal comfort detached from any common purpose. In this view, they lead to a kind of depoliticization and to unlimited individual desires. This argument allows these authors to claim that their criticism does not target human rights as such, but only the “use” made of them in our societies.

Luc Foisneau – To clarify the nature of this critique, we can say that it is opposed to the thought of Claude Lefort, for whom human rights constitute the cardinal vector of a truly democratic politics. The politics of human rights, which is rooted in subjective rights, constitutes a politicization of man’s subjective rights according to Lefort. You seem to be saying that Marcel Gauchet’s critique is a reaction against a positive conception of the politics of human rights inherent in many social and political movements, and that these movements have suffered from the idea that human rights are not a politics. Could you clarify the terms of Lefort’s position? Does he assert an intrinsic link between democratic politics and the demand for rights?

Justine Lacroix – In French political thought, the contestation of the primacy of human rights followed almost immediately from the rise in their political significance. Claude Lefort is one of the authors who, from the end of the 1970s, has contributed most to highlighting the properly political dimension of human rights, notably in “Human Rights and politics3”. In this article, he opposed both the Marxist and the liberal conception of human rights which both suffer from an inability to conceive of human rights except as the rights of individuals, without realizing that they have always contained a social meaning. The emergence of ‘society as such’ and that of individual rights are two indissociable facets of inventing a ‘political society’. Human rights, according to Lefort, are not a “moral sanctuary”, but the generating principles of democracy. In other words, the struggles for the conquest of new rights – whether for women, workers, homosexuals or immigrants – are a way of constructing a public space which liberates communication between citizens. This ‘political’ defense of human rights was immediately exposed to the objections raised, in particular, by Marcel Gauchet in his famous article “Les droits de l’homme ne sont pas une politique” (“Human Rights are not a Politics,” 1980). For Gauchet, the mistake would be to destroy the political landmarks that have given substance to the modern political process by putting the individual, his interests and his rights first. In fact, this criticism does not really do justice to Lefort’s theses, which constantly emphasize that the conquest of new rights presupposes a public recognition carried by a collective debate. Lefort’s argument was indeed that human rights cannot be reduced to the rights of the individual because they have, from the beginning, a social meaning that links the subject to others in a shared public space. Nevertheless, Gauchet’s critique does not stand in isolation: others take up the argument that struggles over rights lead us into a kind of spiral of demands that loses sight of the point of view of society as a whole in favor of a multiplicity of individual points of view.

Jean-Yves Pranchère – The strength of Lefort’s position is that he does not think of human rights as ‘subjective rights’, an expression and an idea subsequent to the declarations of the 18^th century, but as the founding rights of a democratic social space. These rights are, he continues, a “symbolic matrix of social relations”4. As Justine Lacroix has just said, they are therefore the rights of social relations, from which are born subjective rights that are both their effect and their condition. The essence of these rights is not simply ‘individualistic’: if it were, it would be incomprehensible that they could, like a ‘suction vacuum’, have instigated the revolutionary process and fed its democratic and social radicalization. It seems to us that Lefort’s analyses are those that have best captured the democratic dynamic of human rights, both historically and conceptually. This dynamic has always outstripped attempts by conservative social actors to lock human rights into ‘proprietary’ or narrowly ‘individualistic’ formulations (in the limited and highly contestable sense of a refusal of any social ontology linking individual freedom to collective solidarity). Lefort stressed that individual rights and social rights must be thought as inseparable, and that they must be conceived not starting from the inverse myths of the individual preceding society or of society absorbing the individual by closing on itself, but rather in light of the original nature of social division, of which the class struggle is one expression. The criticism of human rights as an “alienating dynamic of individualism” hides what Lefort showed, namely that human rights are not the expression of an individualist ontology, but conditions, forms and vectors of social relations proper to democracy, that is to say relations which acknowledge social division. This is what puts Lefort at odds both with a socialist critique that maintains the Marxist dream of abolishing the division of labor and political institutions, and with a conservative critique that seeks to cancel the class struggle into a stabilized order. Lefort is at the same time a philosopher of ‘wild democracy’ – he underlines that human rights are intrinsic to the wild character of democracy, which by its nature generates claims – and imagines a society which would not close in on itself in self-organization or a ‘sovereignty over itself’. The “democratic indeterminacy5” of human rights marks the limits of autonomy, not in the sense that those rights are opposed to collective decision or to the possibility of the position of a common good, but in the sense that democracy is that regime which is constantly shaken by an ‘experience of the other’, an experience of the otherness which goes hand in hand with social division, and therefore with a moment of irreducible heteronomy since we experience our limitation by the other – which may also take the form of living or natural ecosystems.

Luc Foisneau – Since your book is organized around two main figures – Claude Lefort, whom you have just mentioned, but also Hannah Arendt, I would like to talk now about the latter and the place you give her in your analyses. It seems to me that, from the perspective that you propose, Arendt’s stance is more ambiguous than that of Claude Lefort: her position on human rights has given rise to interpretations, which may ultimately have led to obscuring some of the issues at stake in the question of human rights. I am thinking in particular of the interpretation of a famous chapter of the second volume of the Origins of Totalitarianism6. Could you clarify this point, and the specificity of your reading of Hannah Arendt?

Justine Lacroix – I would not say that Arendt’s position on human rights is more ambiguous, but that it is less immediately readable than that of Lefort. On the one hand, there is an important difference in historical context. Arendt’s main text on human rights, “The Decline of the Nation-State and the End of the Rights of Man”, was published in 1951, at the end of the second volume of the Origins of Totalitarianism, i.e. in the aftermath of the Second World War. Arendt analyzed the case of stateless people between the two world wars in order to show that human rights, so-called ‘natural’ rights because they were supposed to be independent of any form of collective belonging, proved powerless to protect those who were no longer recognized as full members of a political community. She was analyzing the political catastrophe which led to what she called “the annihilation of the juridical person7”, that is, to the abolition of the legal rights of entire human groups. Lefort’s text was published, almost thirty years later, in a political context marked as much by campaigns for the extension of rights (those of women, workers, homosexuals, etc.) within so-called ‘Western’ democracies as by the struggles of dissidents in Central and Eastern Europe. This explains his much greater enthusiasm for the political potential of the discourse of human rights. For all that, Arendt’s position on this question is not ambivalent. Reading The Origins in its entirety, and in particular her analysis of the Dreyfus Affair, we find that she repeatedly praises the action of those men who, like Bernard Lazare or Georges Clemenceau, mobilized in their struggles those ‘abstract’ ideas that are the principles proclaimed in 1789. When she analyzes what she calls the “collapse” of France in the interwar period, she attributes it to the fact that there was no longer anyone to mobilize “the old revolutionary passion for human rights8”. Above all, as the writings of the late Étienne Tassin have shown9, Arendt’s text on “The Decline of the Nation-State and the End of the Rights of Man” has often been misunderstood, especially in France, where it was believed that Arendt’s insistence on the necessity of belonging to a political community, what she calls the “right to have rights10”, meant that she reduced human rights to those of nationals. On the contrary, its purpose is to underline the contradiction behind the simultaneous proclamation of universal rights and the affirmation of an absolute national sovereignty. At the heart of her analysis lies the idea that it is the conquest of the State by the nation, and thus the reduction of human rights to those of nationals, that has proved catastrophic. In fact, although Arendt rejects the language of ‘natural’ rights, she opens the way to a so-called ‘political’ conception of human rights that is close to Lefort’s insofar as, in both cases, it is the actors themselves who generate their freedoms by declaring their rights and recognizing each other as equals. But it is true that Arendt’s text is not simple because of a strong aporetic dimension in her reflection. Lefort himself, in a rare allusion to Arendt’s writings on this question, reproaches her for considering human rights as a mere “fiction11”. However, Arendt’s conception of rights seems to us to resonate directly with that of Lefort.

Jean-Yves Pranchère – Lefort said that Arendt was the author to whom he felt closest. There are certainly ambiguities in Arendt’s work, but they are not so much related to the question of human rights and democracy as to the critique of modernity that she inherited, in part, from Heidegger. Our conviction is that this Heideggerian dependence – which remains, it must be stressed, partial, critical and complex – does not undermine her conception of human rights, her defense of democracy and her critique of the nation-state, which oppose her head-on to Heidegger. I would even say that Arendt’s ambiguities are part of what makes her thought interesting and open. In our book, which follows the dialectics of human rights critiques through the matrix of nineteenth-century authors, the last two chapters on Schmitt and Arendt sketch the outlines of these critiques. To put it bluntly, there is what might be called the zone of collapse, which corresponds to the thought of Carl Schmitt: it is the authoritarian outlet of radical critiques that assume a refusal of human rights with no remainder. And then there is what we could call the turning point, which corresponds to the thought of Arendt, who is very much aware of these criticisms which also fed into her thought, but who shows, through the formula of the “right to have rights”, that there is a sort of unbreakable core, a limit beyond which the criticisms of human rights cannot go. This is the point from which, it seems to us, it is possible, not to retrace the route in the opposite direction, but to try to recover a conception of human rights enriched by its criticisms. And from this point of view, Arendt is a resource, even in her ambivalence.

Luc Foisneau – Since we started this talk by referring to the end of your book, I would like to come back to your project and its genealogical nature. The subtitle of the book is “Genealogy of Democratic Skepticism”. I won’t ask you to comment on this reference to skepticism, but I would like you to go back to the beginning of this history of the critique of human rights, to Burke’s critique, which is contemporary with the French Revolution. Why is this critique so important, as shown by the fact that the arguments developed by Burke in 1790 were very often taken up again after him? In other words, what do you think is the strength of this first critique?

Justine Lacroix – It is a critique whose importance cannot be underestimated: it is the first radical attack on the Declaration of the Rights of Man and of the Citizen, launched in 1790, and which would go on to serve as a model for most of those that came later. Edmund Burke made powerful arguments that would go on to influence thinking in Germany and France and would be widely taken up by counter-revolutionary thought. However, we have tried to show in our book that the critique of human rights is not reducible to a conservative or counter-revolutionary posture. This is why we have also made room for the ‘progressive’ critique of human rights formulated by that ally of the French Revolution, Jeremy Bentham. At the same time, it is striking that, although it starts from opposite political premises, Bentham’s critique ends up attributing to human rights the same evils as those identified by Burke: an increased risk of anarchy, despotism and violence. Marx’s critique of human rights, on the other hand, is clearly at odds with Burke’s. Burke criticizes the Declaration for destabilizing the principle of property, whereas Marx sees it as a sacralization of private property. It is therefore fair to say that Burke introduces a real caesura in the history of political ideas, and that most subsequent critiques of human rights would be situated in relation to his initial critique, even if to take the opposite view.

Jean-Yves Pranchère – What is fascinating about Burke, in addition to his flamboyant writing, is that he is very close to the Scottish Enlightenment tradition. He is on the side of Adam Smith, and in many ways his political thought simply repeats Montesquieu. He thus turns a whole ‘liberal’ current of modernity against democracy. And he does it with a real acuity: he sees very well the contradictions that shape the revolutionary process, in particular at the economic level, and gives rather a prophetic description of them. He announces, as early as 1790, that the process will lead to terror and will end with the seizure of power by a popular general. One cannot say that this was wrong. On the other hand, his thought is incredibly overdetermined: he produces a polyphonic argument, which draws on anti-modern, naturalistic themes, but also liberal and utilitarian themes. This is why, in many respects, Burke can be seen as a sort of ancestor of the thought of Friedrich Hayek, for example. Hayek has nothing but praise for Burke. We already find in Burke what we later find in Hayek, namely, this kind of alliance between a moral conservatism, concerned with preserving community ties, and an inegalitarian liberalism that advocates measured tolerance and sees the market as a means of selecting natural hierarchies. In much the same way that the rights of man are the crucible of divergent political tendencies, since they would go on to feed into rights liberalism, Jacobinism and Babouvist proto-socialism at one and the same time, we have in Burke a sort of bubbling crucible from which will emerge quite different intellectual configurations, romantic as well as anti-romantic.

Luc Foisneau – I would like to return to the specificity of the utilitarian critique of human rights. Wouldn’t it be fair to say that this critique would subsequently call for a return critique in the 1960s and 1970s, in the form of Rawls’ Theory of Justice? Would you agree that the Theory of Justice is a critique of the utilitarian critique of human rights?

Justine Lacroix – In the field of English-speaking political thought, it is indeed only in the last four decades that the notion of human rights has emerged from a long period of indifference or contempt. The publication of John Rawls’ Theory of Justice in 1971 marked the rebirth of major political theories that aimed to evaluate social demands in terms of individual rights rather than in terms of social utility. Rawls thus distances himself from utilitarianism, which he criticizes for not being a form of individualism. Even if utilitarianism takes the individual as the unit of account for calculating general utility, it does not take seriously the uniqueness, the singular character, of each individual who cannot be sacrificed to collective interests. This explains his insistence on ‘equal basic freedoms’ for all, which form the first principle of justice chosen under a veil of ignorance. Rawls’ work undeniably opened the way for a broad renewal of philosophical work on human rights.

Jean-Yves Pranchère – I would add that the renaissance of human rights also came as a result of political and social movements that, in the 1970s, rejected both Soviet totalitarianism and the US-backed torture regimes in Latin America. If Rawls represents one of the possible elaborations of human rights, these can also be the object of more radical social elaborations, more ‘Durkheimian’ if you like, but also of elaborations less social than those of Rawls.

Justine Lacroix – More libertarian, without being neoliberal.

Jean-Yves Pranchère – Absolutely.

Luc Foisneau – We might also underline a parallelism, or, if you prefer, an almost perfect historical coincidence between the criticisms of utilitarianism in the English-speaking world and the criticisms of Marxism at least on this side of the Atlantic, and the fact that these two criticisms both clear intellectual ground for a renewal of thought about human rights. What do you think of this coincidence? Does it constitute a form of convergence?

Justine Lacroix – This twofold phenomenon can partly explain the revaluation of human rights from the 1970s onwards: on the one hand, the loss of influence of Marxism, certain strands of which had fuelled a sort of contempt for bourgeois freedoms, and on the other hand objections to utilitarianism, which was the dominant philosophy in the English-speaking world. However, to my knowledge, this second dimension has not played any role in France, where the utilitarian tradition has remained little known and little used.

Jean-Yves Pranchère – This parallelism is real, though we should not forget that there were heterodox Marxists who were ready to make room for the affirmation of rights, like Ernst Bloch in Natural Law and Human Dignity, published in 1961 and translated in France in 197612. The place of utilitarianism was occupied in France, in a certain sense, by the sociological tradition stemming from the thought of Auguste Comte, in whom we see a kind of social utilitarianism, the utility that serves as a principle for the critique of human rights being the utility of society as an organism, and not the aggregation of individual utilities. With Durkheim, Duguit and Mauss, this sociological tradition had been transformed to the point of incorporating (or being integrated into) the human rights tradition, as can be seen in Gurvitch’s “declaration of social rights13”. But even as this powerful tradition had far-reaching effects in inspiring the construction of the social State, it was rendered invisible by the ideological hegemony exercised on the left by Marxism, which reduced the social state to an ideological apparatus in the service of social reproduction.

Luc Foisneau – As a last question, I would like to know what your plans are, and if you have shared research projects at the Université Libre de Bruxelles where you both teach?

Justine Lacroix – We will continue to write together... at least, if Jean-Yves agrees. When we manage to do it – it’s not always possible – writing together is extremely fruitful, our thinking expands, the dialogue with ourselves and the authors we read is complemented by the meeting with someone else’s writing and reflection, which we each have to respect and integrate without evading potential points of tension. It is a fascinating exercise.

Jean-Yves Pranchère – I can confirm. To write as a pair is to write as more than two: to the two authors is added a third author which is the duo itself, and this duo transforms the initial authors in the writing work – which makes at least five authors.

Justine Lacroix – As far as our projects are concerned, we are first of all working on a small book that attempts to respond to certain criticisms expressed today in the French intellectual space against human rights14. It is in a more activist vein and is aimed at a wider audience than Human Rights on Trial, which was primarily aimed at an academic readership; the challenge is to clarify the political concepts attached to ‘human rights’. Beyond this ‘committed’ and immediate gesture, it seems to us that there is fundamental work to be undertaken in the history of political thought as well as in normative theory in order to elucidate both the inadequacies and the resources of human rights when it comes to connecting democracy, the social question and the ecological question. We are currently reflecting on this.

Jean-Yves Pranchère – A first step in this reflection is the collective project conducted at the Centre for Political Theory (CTP) with Thomas Berns, three PhD students and a post-doctoral fellow from the CTP at the University of Brussels, entitled “Why Lefort Matters”. The aim is to test the resources offered by the thought of Claude Lefort, never one to dissociate historical analysis from normative reflection15, against the key issues of today.