Human Rights and the Institution of Modern Democracy: A Lefortian Perspective

The paper attempts to explore how Claude Lefort’s theory of democracy can provide a fresh perspective on the justification of human rights. For Lefort, human rights constitute democracy as a “form of society” which, in turn, establishes their moral and political significance: it is only against the background of the democratic configuration of the political-legal order that human rights become a meaningful enterprise. This does not mean to identify human rights with a specific system of institutions and procedures, but aims to explain why human rights function as a mechanism for ethical disagreement and as placeholders for political conflict. Although Lefort, who is outspokenly hostile towards the idea of basic rights qua common property of human beings, provides no ultimate justification for human rights, his historical (or “meta-sociological”) account is well suited to explain a variety of features that we associate with claims about human rights without collapsing into a merely functionalist understanding. The focus on what human rights (enable to) do rather than what they are is not incompatible with a view that treats human rights as general moral rights (as for example in Feinberg). Nevertheless, to perceive human rights first and foremost in terms of their political subjectivity tends to overshadow the egalitarianism of human rights. I argue that whereas Lefort’s own remarks fall short in this dimension, the justification of human rights as democratic practice allows to address crucial aspects of human right’s egalitarian nature. At the same time, his account of the dynamic relationship between human rights and the political-legal order points to a fruitful starting point for investigating the ways in which the current transnationalization of law and politics affects human rights practice.