Concerning Reincarnation and the ‘Human’ in Human Rights Beyond Being-Toward-Death

 

 

1. The Threshold of Bios and Zoe

In this post, I discuss many continental philosophers  in order to argue for conceiving a qualified legal definition of human life in terms of reincarnation as “soft law.”  My exigence here is both to support emerging international human rights and to critique a version of human subject as “merely an animal in front of the market place,” to use some of Alain Badiou’s words from his lecture posted above. Another exigence for such a task arises both from the ongoing humanitarian work of human rights as well as all sorts of recent philosophical and cultural work, where distinctions between qualified life (bios) and bare life (zoe) are dynamic. Put more simply, in the days of genetic engineering and bionic hands, along with increasing developments in artificial technology, genetic-engineering patents, and consciousness storage, legal notions of privacy and personhood are challenged. This creates the need for more rigorous discussions about what constitutes somewhat vague figurations – “the human family,” for example – which the preamble of Universal Declaration seeks to protect, as well as the repercussions for the rest of earthlings. While the western tradition has long sought to distinguish between human and animal, this view has been at the expense of many humans who do not make such hard distinctions between themselves and other earthlings.  Western philosophy’s conception of a “state of nature” has often, in theological-legal notions such as the Doctrine of Discovery for example, reduced these humans to living in a subject-less “state of nature” in order to justify domination. While more posts on indigenous issues will follow, I focus on European philosophers here.

The human potential and ‘post human’ issues with regard to technology are also emergent for nation-states, and they also have global significance. The task at hand in this post is necessarily theoretical, since enforcing legal action against human rights abuses remains in its early stages and tied up with the United Nations and the World Criminal Court.  In the language of the courts, human rights appeals operate in terms of “soft law” and only later form something like a consensual agreement, so it is within the concept of soft law that I want to situate a particular notion of reincarnation as a critique of a vacant subjectivity I associate with capitalism.  Again, in terms of the Badiou lecture above, I am attempting some creative resistance in order to help bring about a new democratic subject.  While Badiou says humans are in a general sense infinite, I advance my conception of reincarnation as an affirmative democratic process for thinking of the current world.

In contrast to soft law, ‘hard’ or positive law deals with persons – not humans. ‘Natural person’ implies not only a real person (as opposed to a corporation) but also someone capable of rights and duties. Throughout Western political history, those deemed less capable of performing duties and claiming rights have been denied full citizenship status, becoming ‘other’ to the political territories or regimes they encounter. A ‘person’ in this context is a ‘qualified’ human (bios) with roots in the liberal tradition. 20^th and early 21^st century thinkers have critiqued subjectivity in order to serve a more transcendent category of “human,” but the articulation of universal human rights is entrenched within a particular version of “capable” subjectivity.

Critiques of this vary in thematic content, but they are often accompanied by recursive gestures – toward nature, the pre-political, etc. – in the feelings of romantic nostalgia or homesickness that accompany modern alienation. Because of such gestures, dealing with a narrative figure that historicizes the process of ‘becoming’ human is essential to balancing the problem of legal representation and protection when it is necessary to exceed personhood and civil citizenship in order to account for the human. A byproduct occurs as emergent scientific and philosophical work pushes the liberally entrenched idea of personhood toward more open conceptions.

Soft law, on the other hand, exists theoretically, yet as we have seen more and more since the 1948 Universal Declaration of Human Rights and its developments throughout the past sixty-five years,[1] it also acts over time, exceeding generations with real-world consequences in terms of moral norms, juridical decision-making, and political rhetoric. That said, positive law and soft law (like national and international) are not necessarily antonymic terms, and the relationship between the two need not be thought of as agonistic but rather as asymmetrical. A balance must be struck between critiques of personhood and the historical emergence of normativity in the nineteenth century,[2] of what Charles Taylor calls the “buffered self” and what Hans Joas calls an “affirmative genealogy.”[3] Each of these thinkers attributes a narrowing focus of self over the past few centuries as contributing to the conditions in which human rights discussions emerged during the twentieth century.[4]

The “self” or “person” acts, according to Joas – who articulates this through an American pragmatist lineage[5] – as the secular version of the theological idea of a soul. No matter how perennial the question of what it means to be human seems, historical contingencies have recently widened the definition of human amid a privileging of self. The task of articulating human rights therefore either deconstructs modernity or affirms an inherent modern nostalgia. Legal attempts to protect human persons must then also account for the embedded adherence to disembodied traces of existence that both precede and exceed one individual’s lifespan.

Etymologies of the word ‘human’ in its nominative form dating to Proto-Indo-European all appear to relate to being “from the earth.” How then are plants and animals not from the earth? The primacy of speech, logos, and symbol use as a definitive aspect of humans has been effectively challenged by the late work of Jacques Derrida, who calls out modern western philosophers from Descartes to Lacan for lack of rigor in thinking distinctions between humans and animals, as if all other earthly beings ought to fall into the same semantic category. With particular regard to human rights and modern philosophers’ attempts to distinguish differences between humans and animals in order to exalt human rights, Derrida follows Adorno’s discussion “of hate and revilement directed by the Kantian toward animality.”[6] Derrida then claims:

One could say, first, that in the end such a bellicose hatred in the name of human rights, far from rescuing man from the animality that he claims to rise above, confirms the waging of a kind of species war and confirms the man of practical reason remains bestial in his defensive and repressive aggressivity, in his exploiting the animal to death.[7]

Derrida does not, however, limit himself to a critique of modernism. For him (and Joas too), critique of a lineage going back through western monotheism is necessary:

I think that Cartesianism belongs, beneath its mechanist indifference, to the Judeo-Christiano-Islamic tradition of a war against the animal, of a sacrificial war that is as old as Genesis. And that war is not just one means of applying technoscience to the animal in the absence of another possible or foreseeable means; no, that violence or war has until now been constitutive of the project or of the very possibility of technoscientific knowledge within the process of humanization or of the appropriation of man by man, including its most highly developed ethical or religious forms. 

The question of a legal definition of human is therefore an inherently political-theological question. In addition to the murky and unsettling assumptions distinguishing humans from other earthlings, traditional rights distinctions – natural, civil, and political or legal versus ‘natural’ – also become hazy when thinking of human rights, requiring more rigorous descriptions of the ‘human’.

Where rights are concerned, we speak in terms negative freedoms (generally civil and political rights) and positive duties or entitlements (generally economic and social rights): freedom from and the right to… for that reason, in addition to the qualified notion of persons, we cannot define human life in biological terms alone. However, we also cannot exclude the fact that from abolition movements to post-holocaust endeavors to the civil rights movements and ending apartheid, biological perspectives have been helpful in widening the concept of human based on biological rationales.

While thinkers like Jens-Martin Eriksen and Frederik Stjernfelt have articulated similar tensions between race and culturalism with respect to UNESCO and Claude Levi Strauss’s change in perspective toward less of a culturalist stance over a period of decades,[8] human rights discussions are by definition anthropocentric. Derrida’s (and others’) attention to animality challenges anthropocentrism itself. In a stunning critique of Emmanuel Levinas’s ethics of the Other, he critiques an anecdote in Levinas’s work during the context of the holocaust, where a dog’s recognition of prisoners as human inspires Levinas to describe him as “the last Kantian in Germany,” appealing to a biological fact that National Socialism ignored. Undoubtedly, Levinas prioritized this line of argument because it was the greater threat to his person, his family, religion, ethnicity, etc. When in a later interview with John Llewelyn, Levinas is confronted with his inherent and perhaps archaic humanism with the question, “Does the animal have a face?” he answers, “I don’t know if a snake has a face. I can’t answer that question. A more specific analysis is needed.”[9] This rather generous admission to a lack of knowledge again points the historical exigency at hand.

I believe, however, that what Derrida glosses over in his claim that in Levinas’s “declaring that he doesn’t know where the right to be called “face” begins means confessing that one doesn’t know at bottom what a face is,”[10] is a kind of poetics of persona that could be viewed differently from Derrida’s own notion of differance. Levinas uses the term ‘face’ in the phrase rapport de face à face as opposed to visage, but both appeal to looking or to looking through, as suggested in the term persona, which of course connotes a mask which the voice passes through. As the word face from facere (to make) suggests, a kind of making or poetic action is at work. With respect to a legal definition of ‘human’ distinct from that of ‘person’ arises not only the very problem of representation, but also more subtly the placement that allows voice to move through.

Here it is not yet a question of logos but an apparatus capable of transmitting a call. What Levinas continually argues is the ability to perceive the call of the other, the face, etc. as the moment of the “Here I am” that announces my prior responsibility to the hither-to unrecognized Other who always precedes me. The call resounds above both my physical presence and another whom I recognize. Taking Derrida’s critique of Levinas to heart, as well as Levinas’s want for more subtle analysis, an account of ‘human’ must push beyond biological distinction of species to recognize and be responsible to, perhaps even protect, all beings capable of transmitting a call. The word ‘body’ hovers here as an apparatus for transmitting the call, but such a move risks oversimplifying the issue by placing it in a binary of immanence and transcendence or ‘physis’ and ‘psyche.’ As Giorgio Agamben notes in Homo Sacer: “Western politics has not succeeded in constructing the link between zoe and bios, between voice and language, that would have healed the fracture.”[11] Because of the body’s (or logos’s?) decomposition, the ancient term, ‘soma’ may provide a more fluid conception while still invoking the necessary sacrifice of any representation. In any case we have expanded beyond the genus homo.

Considering the capability of perceiving a call, one immediately thinks of dogs, of owls, even of Alice’s troublesome cats who mew and purr for both ‘yes’ and ‘no’ in Lewis Carroll’s Through the Looking Glass, of which Derrida makes much. One might add to his analysis interpretations of Jack London’s Call of the Wild and White Fang to accentuate modernity’s nostalgia for the return to nature and the hazy space between domestication and wildness, for it is in that space that law must arise. With respect to law, Giorgio Agamben’s Homo Sacer is certainly informative here, particularly his analysis of the werewolf. For he claims:

The life of the bandit, like that of the sacred man, is not a piece of animal nature without any law to the city. It is, rather, a threshold of indistinction and of passage between animal and man, physis and nomos, exclusion and inclusion: the life of the bandit is the loup garou, the werewolf, who is precisely neither man nor beast, and who dwells paradoxically within both while belonging to neither.[12]

Agamben then relates this to the Hobbesian “state of nature,” claiming that such a state does not so much designate a prior time period but one existing within the city itself, and “in this sense, therefore, the state of nature is something like the state of exception.” Thus, the degree to which the definition of the human’s distinction with regard to nature will invariably overlap with friend-enemy distinctions as they relate to bare and qualified life. Agamben nods to the current exigence, claiming “[a]ll societies and all cultures today (it does not matter whether they are democratic, totalitarian, conservative or progressive) have entered into legitimation crisis,”[13] which amounts to a crisis of sovereignty, but where sovereignty importantly

presents itself as an incorporation of the state of nature into society, or, if one prefers, as a state of indistinction between nature and culture, between violence and law, and this very indistinction constitutes specifically sovereign violence. The state of nature is therefore not truly external to nomos but rather contains its virtuality. (35)

This emphasis on the virtual inclusion of nature in the city importantly removes the temporal and narrative elements of a state of nature as existing prior to civilization, a narrative Agamben attributes to Hobbes and the Sophists[14] before him. What Agamben is seeking to do then, in his “new way”[15] of considering political culture of the West, even if inadvertently, is to remove the nostalgic element introduced by modern philosophers into political foundations articulated as apart from nature, an element that collapses the notions of violence and justice into the law of the sovereign. In this collapse the state of exception comes into full view, which Agamben characterizes as deterritorialized. It is:

not so much spatiotemporal suspension as a complex topological figure in which not only the exception and the rule but also the state of nature and law, outside and inside, pass through one another. It is precisely this topological zone of indistinction, which had to remain hidden to the eyes of justice, that we must try to fix with our gaze.[16]

Important in the phrase “had to remain hidden” is the fact that this ‘new’ reading is not a dehistoricized reading of politics. The emergence of the state of exception is, for Agamben, like the invention of the concentration camp, a product of modern democracy. As he writes in State of Exception, “it is important not to forget that the modern state of exception is a creation of the democratic-revolutionary tradition and not the absolutist one.”[17] With respect to human rights, democratic agreement is always a precondition, for better or worse, so long as the politics of nation-states figure representationally as deciding entities on behalf of “subjects.”

Agamben’s more recent work widens into an aesthetic investigation of the “archaeology of glory” in The Kingdom and the Glory, where the future task becomes to determine how “glory covers and captures in the guise of ‘eternal life’ that particular praxis of man as living being that [Agamben has] defined as inoperativity …beginning from the inoperative disarticulation of both bios and zoe” (259). The term inoperativity, which Agamben identifies as emerging from Kojev, Blanchot, and Nancy is described in Homo Sacer as follows: “The only way to understand inoperativeness is to think of it as a generic mode of potentiality that is not exhausted (like individual action or collective action understood as the sum of individual actions) in a transitus de potential ad actum”(62). It is in this passage toward potential action that I wish to present this post’s focus as it concerns the “end” of human life and how the notions of death and reincarnation affect our conceptions of rights.

Specifically, I want to affirm that a version of reincarnation as inoperativity (in the sense Blanchot & Nancy together imply), existing in soft law, may hover as a less aestheticized and spectacular conception of what Agamben calls glory – that is, as a way of determining how glory covering and capturing “in the guise of ‘eternal life’ that particular praxis of man as living being.” This entails defining human life beyond being-toward-death, and yet that “beyond” would not be an afterlife, but something that remained worldly, even if virtual in a legal sense.

2. Reincarnation

Let me be clear that, by ‘reincarnation,’ I do not mean a metaphysical or religious description, nor do I mean to conjure up lay notions of karma or cosmic justice.  Moreover, while the scientific work done regarding past lives is to a degree compelling, I also do not mean to imply a notion of reincarnation where a stable subject or consciousness re-emerges in a future human body despite the emergent possibility of perhaps uploading one’s consciousness to a computer.

What I find compelling about reincarnation exists in its ability to challenge traditional notions of subjectivity as well as in accounting for traces left behind by subjects who have departed. The concept helps to get at traces that exceed a life and inform others’ lives without delving into the possibility of an afterlife. It also helps get at something more porous and less vertical than culture. In terms of universality, death is perhaps the closest one can get – though it may not be particular to humans, but humans in some ways exceed death. The term reincarnation in the specific context of 2014 gets at a way of thinking human life that exceeds the lifespan of individuals and yet is inevitably affected by them. My use of the term stands alongside Joas and others’ historically constructed “self” emerging out of the theological notion of the soul and existing in a post-secular setting.[18] This means that I do not aim to create a “secularized version” of reincarnation, nor do I aim to re-enchant reincarnation. I advance a post-secular idea.  In terms of law and governance, it resonates with Agamben’s methods his claim that “[a]s should be evident today, people-nation and people-communication, despite differences in behavior and figure, are two faces of doxa that, as such, ceaselessly interweave and separate themselves in contemporary society.”[19] Such a fluid matrix with regard to representation articulates the inherently dynamic relationship between subjectivity and “belief” (doxa), even if such belief is acquired only through enculturation. In order to help clarify this matrix with regard to communication and human rights, let me turn to the work of Hans Joas.

The concept of reincarnation may work best as an instance of what Hans Joas calls a “value generalization.” Joas’s term helps articulate the post-secular, shared space of theological conceptions of the soul and self / subjectivity as a specific entity merging with the more general ‘human’ of human rights. Critiquing Jurgen Habermas’s narrower view of the possibility for universalization of values as only emerging either “in the spheres of law or normative morality,”[20] Joas localizes universalist values, building off of Robert Bellah, as emerging “in connections with transcendence in the axial age.” This broad historical move – like Agamben’s and Derrida’s – allows Joas to claim three specific features concerning the communication of values versus more normative discourse claims, as well as to qualify a conception of universalism broader than a notion of rights emerging out of renaissance humanism. And while some might still question any appeal to universalism, Joas’s “value generalization” does help at least to maneuver into a postsecular discussion. First, he says, concerning values, we must “take account of the affective intensity of our commitment to them”; second, Religious convictions are not to be negated on the basis of, or reduced to, their “cognitive-proposition elements”; and third, “[v]alues cannot simply be discussed in an atomistic way, as if they were no more than discrete, self-contained opinions.”[21] Without nostalgia for the pre-political, Joas gives an historical account that destabilizes Enlightenment claims to rational subjectivity. Having described these communicative features, Joas builds (from the work of Talcott Parson’s “social dynamics”) a definition of value generalization as being: “the inclusion, under a single legitimizing value pattern, of components which are not only diverse and differentiated from each other, but many of which have, historically, claimed some sort of an ‘absolutist’ monopoly of moral legitimacy.”[22]

Like Agamben’s archaeology of glory, Joas’s genealogy of the sacred person situates a more porous subject as historically contingent upon the unique development of modernity. Following both Agamben and Joas, I suggest the introduction of reincarnation into soft law discourse as an affirmative value pattern (or value generalization) in order to move away from a dominant – if unacknowledged – assumption that by human life, we often mean being-toward-death. Such absurdity already exists legally in sentences of multiple life terms. Reincarnation does more than critique modern subjectivity; it returns subjectivity from obliteration. A postsecular conception of reincarnation need not compete with beliefs in an afterlife, nor does such a concept seek to deny the event of human death. Reincarnation is not resurrection, (although one could imagine the Christian Noli me tangere scenario or even the parousia as perhaps a kinds of reincarnation if one were not being strictly literal).[23] The term reincarnation – and not metempsychosis or transmigration – emphasizes the fleshy aspects of this world, which is the concern of human law. As a legalistic and not a metaphysical argument, monotheistic religious people need not reject the idea outright as archaic or adhering to one particular set of religious beliefs. Human rights law must be ecumenical in the sense of the Greek he oikoumene ge – the inhabited earth or the economy of the world. One only need to consent to the idea that the world continues on in spite of one’s own death and that it may bear traces of one’s life.

3. Beyond Being-toward-death

The notion of being-toward-death invokes Martin Heidegger’s Being in Time. His articulation of Dasein remains important to Agamben’s homo sacer, particularly in the way that Heidegger’s thought diverges from Nazism’s determination of homo sacer “in a biological and eugenic key”:

In Heidegger . . . homo sacer – whose very own life is always at issue in every act – instead becomes Dasein, in the inseparable unity of Being and ways of Being, of subject and qualities, life and world, “whose own Being is at issue in its very Being.” If life, in modern biopolitics, is immediately politics, here the unity, which itself has the form of an irrevocable decision, withdraws from every external decision and appears as an indissoluble cohesion in which it is impossible to isolate something like a bare life. In the state of exception become the rule, the life of homo sacer, which was the correlate of sovereign power, turns into an existence over which power no longer seems to have any hold.[24]

Before getting to the implications of this passage for human rights and reincarnation, a brief explication of being-toward-death is necessary.

Heidegger’s being-toward-death constellates Dasein through the uniqueness of “Being towards one’s “ownmost” potentiality-for-Being, which is non-relational and not to be outstripped”;[25] in other words, death arrives as that instance or event in my life where no one can substitute himself or herself for me. This unknown future end establishes part of the temporal nature of existence, which Heidegger calls ‘care’ or ‘concern’ [Sorge]: “this ‘ahead-of-itself’ is what first of all makes such a Being-towards-the-end possible.”[26] Dasein is the being which concerns itself with the meaning of its own being, as Agamben points to above. One exists more authentically, according to this analysis, to the extent that one can face one’s own death against the tendency to fall toward “the They” [Das Man], with whom one exists alongside [mitsein]. Death, in this analysis, individuates beings in Being.

Dasein qualifies human life with a degree self-reflection, but it still remains ambiguous with regard to angst, the will and the quality of authenticity – an ambiguity that may be seductively reduced to a mythological or heroic consubstantiation with ideals of the Third Reich, and a tendency to fetishize the individual will in critiques of Heidegger quickly bleed into his biography. As Eriksen and Stjernfelt argue, Heidegger’s thought has often contributed to a culturalist perspective, which, in its seduction to authenticity destroys even the best aspects of civilization and liberal society.[27] Indigenous peoples less concerned with defending liberal society may have a quite different such a critique.  So far as law and human rights are concerned, as a term, ‘human life’ must be concerned both with what qualifies life as human as well as legitimacy and law. In other words, thinking legally with respect to human rights, “the They” of law must show concern for Dasein above and beyond its own authentic death. Must this necessarily be a falling away toward the inauthentic and an attempt to “outstrip” Dasein?

In one sense, Heidegger’s Dasein is always mitsein, and Levinas has critiqued at length the emptiness with regard to the Other in Heideggerian thought, telling one interviewer: “The Heideggerian being-with-one-another [das Miteinandersein] appears to me always like marching together. That is not for me; there is no face there.”[28] While I am sympathetic to Levinas’s critiques of Heidegger, we can see with respect to Derrida’s critique of Levinas and the face above that we need a bit more of an account of being-with, but also of history and facticity with regard to history. In addition, Mark Tanzer has argued that Heidegger’s own self critique of human-animal distinction: “in Dasein’s thrownness, then, lies the possibility of suffering; it is, precisely, as thrown that Dasein suffers. And, Heidegger claims, to characterize the animal as poor in world, as deprived, carries this same implication” and, moreover, “Heidegger’s suspicion of this conception of animality, then, could well be grounded in his attempt to reserve the realm of suffering, of finitude, for the human being.”[29] Such lack of compassion is accentuated by anthropocentrism is exacerbated by defining humans as being-toward-death.

Heidegger engaged the ancient question of being or ontology as “first-philosophy,” and Levinas’s critique of Heidegger was that ethics precedes ontology as first philosophy. Levinas recounts the famous encounter between Martin Heidegger and Ernst Cassirer in 1929. Heidegger was presenting

being understood starting from its verbal form as the event of being and as that which is an issue for men. A necessary meaning to the understanding of all beings. For Heidegger, science is certainly one of the modalities of the intelligible, but a modality that is already derivative. He sought the origin in the human being, whose being consists in understanding being and thus the point where the being of beings acquires meaning.[30]

Heidegger’s thinking as perceived by Levinas and his peers signified the overturning of modern European philosophy. He says, “For a young student the impression was of being present at the creation and the end of the world” and that “Cassirer presented an order that was going to be undone.” Whether we call such historical ruptures “postmodern” or – as cosmopolitan human rights discourse has opted – “modernity two,” we recursively see the attempt to mark time, to carve a teleology of cause and effect, even when we know that to be only a partial truth. The problem is in the modern ‘break’ with antiquity, and it is significant that the stylistic variant of this break has been called the Renaissance or “rebirth” – re-emergence. While Heidegger challenged such subjectivity with his ontological turn, he also emphasized in the conception of being-toward-death the individual’s “ownmost” possession.

Being born, of course, in addition to dying, is a constitutive ‘non-experience,’ where no one may be my substitute; it exists as an experience that exceeds recognition or memory of it. Legal definitions of personhood and advocates for euthanasia and women’s rights owe much to such distinctions.  (I do consciously distance myself from thinkers like Christian Smith and uses of personhood to give legal status to fetuses, however). Although one may not remember being born, the temporality of one’s life distinguishes itself as unique in its finitude, and according to Heidegger it is my concern for my unknown death that positions me as ‘thrown’ into the world. Time establishes a bind for my life to exist and become a narrative through recognition of my lot. Yet my “being,” however unable to be substituted, does not exist in isolation – in fact cannot come to exist in isolation without genetic memory – and this is too easily glossed over in analyses of being-toward-death. Community takes on a heightened quality, especially as genetics becomes poetics.

Being there (Dasein) is always being-with (mitsein), and as Jean-Luc Nancy points out, “[d]eath irremediably exceeds the resources of a metaphysics of the subject” and “[a]ll of Heidegger’s research into ‘being-for (or toward)-death’ was nothing other than an attempt to state this: I is not—am not – a subject.”[31] “I” exceeds what the “I” can experience. As Nancy says, Heidegger undoes the modern idea of self-contained subject, not just by pointing to something more porous, but also by opening up the communal and social aspects constitutive for subjectivity. It is certainly in the radical nature of this communion that a tendency to merge with a “national socialism” is more dangerous than any “will-to-power” conceived as an extension of an individual.

Nancy argues that community is also maintained by being-toward-death. This is true both for the “I” and for community. But for Nancy, community is not part of a Eucharistic mythology, not communion, and not dialectical: “Community … occupies a singular place; it assumes the impossibility of its own immanence, the impossibility of a communitarian being in the form of a subject.”[32] Community refracts to its members the ability to comprehend the community’s mortality:

A community is the presentation to its members of their mortal truth (which amounts to saying that there is no community of immortal beings: one can imagine either a society or a communion of immortal beings, but not a community). It is the presentation of the finitude and the irredeemable excess that makes up finite being: its death, but also its birth, and only the community can present me my birth, and along with it the impossibility of my reliving it, as well as the impossibility of my crossing over into my death.[33]

Nancy conceives of community as a singularity and recognizes with the complexity regarding Heidegger’s personal life the fact that the more radical implications of Mitsein remain to be thought. This recognition pushes Nancy toward a nuanced reading of Georges Bataille:

Bataille is without doubt the one who experienced first, or most acutely, the modern experience of community as neither a work to be produced, not a lost communion, but rather as space itself, and the spacing of the experience of the outside, of the outside-of-itself. The crucial point of this experience was the exigency, reversing all nostalgia and all communal metaphysics, of a “clear consciousness” (in fact the Hegelian self-consciousness itself, but suspended on the limit of its access to self) of the fact that immanence or intimacy cannot, nor are they ever to be, regained.[34]

Community, for Nancy, is neither the dissemination of an identity into a “collective,” nor is it the realization of an identity as part of a larger whole or organism. Community is not the overcoming of a kind of transcendent sovereignty by way of collective identification with immanent sovereignty: “it is not the unconscious – that is to say it is not the reverse side of a subject, nor its splitting. It has nothing to do with the subject’s structure as self: it is clear consciousness at the extremity of its clarity, where consciousness of self turns out to be outside the self of consciousness.” More positively: “community is the ecstatic consciousness of the night of immanence, insofar as such a consciousness is the interruption of self-consciousness.”[35] In this interruption, Nancy actually points toward a being beyond being-toward-death, accomplished through an exploration of the limit-experience and his notion of literary communism. Following his explication of Bataille, he asserts:

I am trying to indicate, at its limit, an experience – not, perhaps, an experience that we have, but an experience that makes us be. To say that community has not yet been thought is to say that it tries our thinking, and it is not an object for it. And perhaps it does not have to become one.[36]

The question with respect to human rights law and human justice is in the possibility of accounting for and witnessing the ‘non-experience’ that no one individual can make an object. This is what soft law and aesthetics attempts to do – and sometimes do – over multiple generations.

4. Rights

Soft law’s effects are slow, moving over multiple generations, similar to the ways consciousness is sustained through the gradual replacement of all material cells in a human body over the course of an individual’s life. As Charles Taylor has argued with respect to western self-identity, the term “construct” does not adequately account for the long process of shaping enculturated values over time because the term overly implies preconceived design; yet it is just such a process, taking place over many generations, by which European modernity articulated a sense of right as attached to the notion of a liberal self. A distinct difference between ancient and modern democracies becomes manifest in the development of rights articulated in terms of negative freedom. This aligns with David Sidorsky’s distinction between classic theories of natural rights and later, more positive (freedom to) theory of rights that led to the Universal Declaration. Rights.[37] The term ‘universal’ undoubtedly glows with connotations from Enlightenment political fashioning, and Sidorsky is quick to point out that the newer, more socially-oriented, rights have been the most contested, and this must in part be for their tendency to objectify humans in terms of human capacity, even if as a result of an implied taxonomy of human-ness. What is at stake is not just a question of individual versus social, or even a matter of individual will; rather, it is a question of a “constructed” idea of individuality with a reflectively searchable and capacious interior that becomes superimposed on, and giving form to, the idea of universal human rights.

The autonomous, rational subject remains rooted in the classical conception of freedom, liberty, and sovereignty. The historical development of a distinction between classical liberal notions of rights and the more recent, socially-oriented forms can however be traced interestingly through Jacques Maritain’s descriptions of natural rights arising from natural and eternal law, which hold on to pre-Kantian notions of epistemology. For Maritain, Enlightenment thought glosses over the important concept of connaturality as derived through Aristotelian and Thomist philosophies. His argument is partly historical, regarding the way western humans made sense of their world; yet significantly, his argument gestures toward more than the West. Maritain also sees connaturality emerging in the Indian bhakti philosophy of Ramanuja,[38] which, even if all too briefly, opens the discussion to aspects of mysticism. Despite this quick gesture, however, Maritain is essentially Thomist, and he describes connaturality as

knowledge through union or inclination [where] … the intellect is at play not alone, but together with affective inclinations and the dispositions of the will, and is guided and directed by them. It is not rational knowledge, knowledge through the conceptual, logical and discursive exercise of Reason. But it is really and genuinely knowledge, though obscure and perhaps incapable of giving an account of itself, or of being translated into words.[39]

For Maritain, “judgments in which Natural Law is made manifest to practical Reason do not proceed from any conceptual, discursive, rational reason,” but rather from inclination or connaturality.[40] Natural Law “deals only with principles immediately known,” and “the precepts of Natural Law are known in an undemonstrable manner.”[41] Maritain’s descriptions of Natural Law resonate with more recent descriptions of soft law.

For Maritain, thinkers like Henri Bergson and William James, who were both interested in notions of intuition and experience, neglect to consider Aquinas’s “connaturality,” where knowledge exists only as analogue to Eternal law. For him, eternal law does not exist in humans and Natural Law is “unwritten”[42]; nevertheless, Natural Law can only be known intuitively or by inclination. In contrast, positive law and “[t]he law of nations is known, not through inclination, but through the conceptual exercise of reason. This is the specific difference distinguishing the law of nations from the Natural Law. The Natural Law is known through inclination.”[43] This does not make such an inclination “unreasonable”; it is not an antonymic relationship. Maritain’s point is that there is a kind of reason that exceeds human experience but to which humans may only have partial access, and it is easy to see the Bergsonian influence of consciousness as a filter, making navigation possible by means of separating consciousness from the world. The excess of consciousness here is not, however, something present at hand; humans are, in Heideggerian terms, impoverished.

Maritain’s push back toward Aquinas is ultimately a political-theological move promoting more than a mere physical description of how consciousness works by adhering to an intelligence accessible only by analogy and inclination. If we sidestep, for the present, this argument’s reliance on divine intelligence, we can see something that works very similarly to soft law. The existence of the ability to enforce such laws, like the existence of a supreme deity, is external to the rhetorical and ethical weight that laws themselves carry. In a sense, it is simply not a question of existence at all (the existence of God, etc.). Secularism and the post-Kantian notion of autonomous subjectivity appear to intensify a ‘break’ with the question existence at the expense of analogy and inclination by favoring the autonomously constructed, as well as the visual over the aural that is a product of document-centered literacy and legitimacy. Inclination itself might be negatively defined as precisely that which cannot be visualized but nevertheless heard, emphasizing a different capacity. Similarly, soft law acts as a law more to be attuned to than enforced.

Individual will and belief remain important factors for Maritain, and he goes on to distinguish between the Natural Law of “objects” (which for him includes animals) and humans. Natural law becomes moral with humans because they are “free agents,” which constitute the ontological element in Natural Law:

For man, the natural law is a moral law because man obeys or disobeys it freely, not necessarily, and because human behaviour pertains to a particular, privileged order which is irreducible to the general order of the cosmos and tends to a final end superior to the immanent common good of the universe.[44]

Natural law itself is then “something both ontological and ideal,”[45] and humanity occupies a “privileged” status with regard to the cosmos. After the first ontological element is described, narrative time then enters into Maritain’s description of Natural law: because “the Natural law is an unwritten law, man’s knowledge of it has increased little by little as man’s moral conscience has developed.” Maritain goes on to invoke the parousia, and while his thought becomes especially Christian-centered here, what he really hits on is the deliberative character of articulations of Natural laws in the sense that they intend toward a possible future, one made better or more complete but necessarily built on free agency and (re)cognition. With development, Natural law is as much emergent as it is preceding action. It is not the revelation of the end of history, nor is it the will-to-embrace such becoming so much as it appears a to be political agreement made over time through the revealing of what humans are capable of recognizing as Natural and unwritten law. Natural law exists in time and intends toward enchanted revelation, but by itself it is not necessarily messianic. Realization of Natural law involves a will exceeding itself as such, but this developmental idea, when combined with modernity’s emphasis on progress and the construct of emerging away from a state of nature when taken to its extreme risks historical and cultural relativism, hence the more recent turn in philosophical discourse toward aspects of sovereignty, the sacred and broadened conceptions of ‘human.’ That said, the “state of nature,” even in legal conceptions like a Rawlsian “veil of ignorance” has situated destructive interpretations of natural law, partly perhaps out of an attempt to produce secular law. The binary between secular and sacred has certainly been challenged lately both within and without of liberalist societies.

Following Jean-Luc Nancy, Roberto Esposito and Gerald Bruns have given much attention to Georges Bataille’s work concerning sovereignty and the sacred. Like Nancy, Esposito contrasts Bataille’s argument of anthropological development with Heidegger’s over-emphasis on language. In Bataille, “[a]gainst every originary logos what the grottos of Lascaux reveal is the unbreakable interweaving of humanity and animality produced precisely by the civilizing hand of man.”[46] He goes on to say,

What comes to light in [Bataille’s] text is certainly another and extreme mode for breaking the identity of the subject through its violent rootedness in that animal that at one time men ‘loved and killed’; something as well in close proximity of friendship and death refers to that same communitas that constitutes us without belonging to us.

Although Esposito and Nancy are similar in their articulations concerning community, Nancy emphasizes non-nostalgic aspects of the inoperative community and moves on to discuss the potential of literary communism to exceed the primacy of subjectivity and normative, procedural discourse. Esposito, like Derrida, complicates the category of human as being distinct from animals. Yet he still claims:

community is no longer understood as a residual phenomenon with respect to the sociocultural forms that modernity assumes, but rather as a response to the insufficiency of modernity’s individualistic-universalistic model. It is the society of individuals, who were already a destructive force for the organic ancient community, that now generates new communitarian forms as a posthumous reaction to its own entropy.[47]

It is by combining Esposito’s depiction of this “posthumous reaction” with the non-nostalgic aspects of inoperativity emphasized by Nancy that I now situate my call for a conception of human as beyond being-toward-death.

 

5. The Poetics of Reincarnation

Legality requires history; it relies on forensic, epideictic, and deliberative rhetoric – a sequential process of logic and narrative. The entrance of temporality is a poetic gesture generated by humans, enacted in various incarnations of human thought. The emphasis on the poetics exists in Maurice Blanchot’s “Great Refusal.” Poetics enters with the abdication of the divine, but also as the last point of access:

There is, however, defeat in this victory; in this truth of forms, of notions and of names, there is a lie, and in this hope that commits us to an illusory bond, to a future without death or to a logic without chance, there is, perhaps, the betrayal of a more profound hope that poetry (writing) must teach us to affirm.[48]

The hope maintained in this narrative rests on the continued project of poiesis or making.[49] Even here the “profound hope” seems faintly pastoral. The divinatory emphasis at first seems to contest this – but what does a shepherd do but impose order through the gaze?

Later, in The Writing of the Disaster, Blanchot claims, “In the work of mourning, it is not grief that works: grief keeps watch.”[50] The feeling of loss constellates; the desire that knows itself to be alone and incomplete constitutes the libido. A traumatic rupture opens the spatial dimension for the articulation of the modern self; there must be an unknown Other, uncontained and mysterious by definition that metaphysically grounds the articulation of that self, even if the articulation is freedom from the mystery. The liberation of modernity then is a twofold contradiction: it supposedly breaks from a perceived subjection to dogmatic authority often figured as “the church,” while simultaneously formulating a liberal existence (freedom) from the state of nature. In this context, the figure of “the church” mediates the pre-modern, state of nature and modern liberal. Inherent in this modern break from the enchantment of the church has traditionally been the ascription of autonomous “disenchantment.” Religion thus becomes figured as a means toward a given end but conceptually atavistic to progressive modernism, and herein resides the ethnocentric condition that separates the “modern” west from all whom it others – in the poetic figure that narrates a becoming of autonomous individuals as erupting from a state of nature that never existed and yet continues to fuel the flame of a nostalgic lamp. Poststructuralists move this from modernity to the violence of representation itself and a regard for the ancient, using genealogy to avoid ahistoricism.

More recently, the question of the continuance of religious enchantment has emerged in discourse that continues the modern project, what Jurgen Habermas has referred to as “an awareness of what is missing.” A cognitive-affective piece of the puzzle of what humans need that is provided by religion or spirituality becomes, in this context, not an atavistic regression but a fundamental condition for the sustaining an attachment to humanity itself amid the conditions of the sequel to modernity. In a sense, then, re-enchantment itself serves as a sustaining function for the project of modernity.

A concept of reincarnation emphasizes that the core aspects of such re-enchantment operate in the way that Blanchot articulates the “Great Refusal” – as the possibility for a postsecular divinatory poetics. This refusal exists as a being beyond being-toward-death; for it is in the will of the refusal itself that the self articulates its place or origin. It is not ordered by some semantic regime; it is rather a willingness to adhere to an emergent yet ongoing truth that such a regime would disavow, a will that is more than a mere Heideggerian gathering of angst into authenticity.

Reincarnation is not a denial of death or a saving from death. The modern hubris that Blanchot gestures toward would deny that death could happen, would think that in a nuclear war or a suicide bomb that it would pass unscathed, through transcendence. Nor is reincarnation an articulation of a return to the same subjectivity. Even Tibetan lamas do not claim to be the same “person” through different incarnations. One must accept the twentieth century philosophers’ exhaustive attempts to confront modern subjectivity and articulate why humanity is more than that. And only on the flipside of subjectivity as it merges with and is indistinguishable from sovereignty in a state of exception can we discuss the “end” of humanity. In Ceasing to be Human, and again with reference to Bataille, Gerald Bruns defines “Sovereign Man” accordingly: “someone free of identity – someone no one nor any system can track down or confine: and perhaps no longer human or nonhuman but a figure of alterity without reference to the same.”[51] Bruns asks how we might deal with such an entity.

As so much western (especially American) culture – in both media and law – fascinates itself with the violent collapse of human and monster, with a nostalgic mythological adherence to homo sacer in vampires and werewolves and ghosts, it denies its own mortality by ravaging the world in fear of its own demise. One must be careful not to be seduced by a re-enchanted critique that remains merely a dialectical consubstantiation to reaffirm one body. To “get” at what humanity – the “end” of humanity as Gerald Bruns puts it – is to move beyond spatiality, beyond coordination and beyond negation or anarchic decentralization. It is to get to an obliteration of will without willing or intending. It is not the experience itself of ecstasy (ek-stasis), not a canceling out, but a capacity to be obliterated and so fully illustrated by our technology of destruction that exhibits this capacity. Nor must such a capacity be employed in order to somehow achieve a “fuller” humanity, because only an individual can “achieve” in this sense. It is the community as obliteration of self – a justice unobservable by humans except over many generations, even if it is a justice of their own creation – that performs any such “achievement.”

This becomes an important distinction with regard to human rights. Individual rights ought to grant access to human capacity, while human rights must protect the community in its inoperativity – not that the two forms of rights are in any way mutually exclusive. Capacity itself – to have “at hand” in the Heideggerian sense – demands space. How can such capacity be protected if the space is obliterated? Only through a standing reserve – not just of technology as a “standing reserve” – but a recognition that technology is always in a sense biotechnology – a standing reserve of human potentiality in the beyondspace of community where humans are animals too. It is with imaginary regard for that (for it cannot be directly looked at) that a conception of reincarnation ought to pulse and resonate as a defining element of human rights soft law. Perhaps this is itself the face in the moment just before the smile of grace would appear, that glance whose power is to obliterate what can never be willed.

Notes

[1] Christine Min Wotipka and Kiyoteru Tsutsui, “Global Human Rights and State Sovereignty: State Ratification of International Human Rights Treaties, 1965-2001,” Sociological Forum, (Vol. 23, No. 4 (Dec., 2008), pp. 724-754.

[2] Hacking, Ian. The Taming of Chance, (Cambridge: Cambridge UP, 1990).

[3] Hans Joas, The Sacredness of the Person: A New Genealogy of Human Rights, (Washington D.C.: Georgetown UP, 2013,). p. 97.

See also: Hans Joas, “Human Rights and Universal Values,” YouTube, (Berkeley Center, Sept. 27, 2012).

[4] Ibid., p. 146.

[5] Ibid., p. 153.

[6] Jacques Derrida, The Animal Therefore That I am, Ed. Marie-Louise Mallet, Trans. David Wills, (New York: Fordham UP, 2008), p. 101.

[7] Ibid.

[8] Jens-Martin Eriksen, and Frederik Stjernfelt, The Democratic Contradictions of Multiculturalism, (New York: Telos Press, 2012).

[9] Jacques Derrida, The Animal Therefore That I am, Ed. Marie-Louise Mallet, Trans. David Wills, (New York: Fordham UP, 2008), p. 107-108.

[10] Ibid. p. 109.

[11] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Trans. Daniel Heller-Roazen, (Stanford: Stanford UP, 1998), p. 11.

[12] Ibid., p. 105.

[13] Ibid., p. 51.

[14] Agamben situates the Sophists with respect to Plato and his intentional “misremembering” of a phrase of Pindar’s in Gorgias (p. 30-34). In Plato’s Laws, he importantly does not want to separate nature and law or justice, especially if by law we mean the right to inflict violence, which for Plato would be unnatural. Involved here is Plato’s conception of soul, which I eventually would like to return to in my discussion of reincarnation.

[15] Ibid., p. 35.

[16] Ibid., p. 37.

[17] Giorgio Agamben, State of Exception, Trans. Kevin Attell, (Chicago: U of Chicago P, 2005), p. 5.

 

[18] I agree with Habermas’s description of the postsecular: See Jurgen Habermas, “A postsecular world society?: An interview with Jürgen Habermas,” The Immanent Frame. http://blogs.ssrc.org/tif/2010/02/03/a-postsecular-world-society/.

[19] The Kingdom and the Glory: For a Theological Genealogy of Economy and Government, Trans. Lorenzo Chiesa, (Stanford: Stanford UP, 2011), p. 258.

[20] Hans Joas, The Sacredness of the Person: A New Genealogy of Human Rights, (Washington D.C.: Georgetown UP, 2013,). p. 176.

 

[21] Ibid., p. 177-178.

[22] Ibid., p. 179.

[23] See Jean-Luc Nancy, Noli me tangere: On the Rising of the Body, (New York: Fordham UP, 2008).

 

[24] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Trans. Daniel Heller-Roazen, (Stanford: Stanford UP, 1998), p. 153.

[25] Martin Heidegger, Being and Time. Trans. John Macquarrie and Edward Robinson, (New York: Harper Perennial, 1962), p. 299.

[26] Ibid., p. 303.

[27] Jens-Martin Eriksen, and Frederik Stjernfelt, The Democratic Contradictions of Multiculturalism, (New York: Telos Press, 2012), p. 267.

[28] Emmanuel Levinas, Is it Righteous to Be? Interviews with Emmanuel Levinas, Ed. Jill Robbins, (Stanford: Stanford UP, 2001), p. 137.

[29] Mark Tanzer, “Heidegger on Animality and Antropocentrism.” Unpublished paper used with the author’s permission, p. 14.

[30] Emmanuel Levinas, Is it Righteous to Be? Interviews with Emmanuel Levinas, Ed. Jill Robbins, (Stanford: Stanford UP, 2001), p. 35.

[31] Jean-Luc Nancy, The Inoperative Community. Ed. Peter Connor, Trans. Peter Connor et al, Minneapolis: U of Minnesota P, 1991), p. 14.

[32] Ibid., p. 15.

[33] Ibid.

[34] Ibid., p. 19.

[35] Ibid.

[36] Ibid., p. 26.

[37] David Sidorsky in Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, 2^nd ed., (Oxford: Oxford UP, 2000), p. 328.

[38] Jacques Maritain, Natural Law: Reflections on Theory and Practice, Ed. William Sweet, (South Bend: St. Augustine’s P, 2001), p. 14.

[39] Ibid., p. 15.

[40] Ibid., p. 20.

[41] Ibid., p. 21.

[42] Ibid., p. 32, cf. p. 56.

[43] Ibid., p. 49.

[44] Ibid., p. 29.

[45] Ibid., p. 31.

[46] Roberto Esposito, Communitas: The Origin and Destiny of Community, Trans. Timothy Campbell, (Stanford: Stanford UP, 2010), p. 134.

[47] Ibid, p. 137.

[48] Maurice Blanchot, “The Great Refusal,” The Infinite Conversation, Trans. Susan Hanson, (Minneapolis, U of Minnesota P, 1992), p. 33-34.

[49] Herbert Marcuse quotes this essay at length at the end of One Dimensional Man.

[50] Maurice Blanchot, The Writing of the Disaster, Trans. Ann Smock, Lincoln: U of Nebraska P, 1980, p,

[51] Gerald Bruns, On Ceasing to Be Human, (Stanford. Stanford UP, 2011), p. 29.