Second-generation rights as biopolitical rights

Abstract

This chapter is a preliminary attempt to grapple with the implications posed by the proliferation of different regimes of human rights – commonly described as second- and third-generation human rights – to the concept of human rights itself, especially its normativity. One common argument is that the proliferation of different types of human rights attests to the genuinely infinite and open-ended normativity of human rights as an ideal project because it shows a prodigious capacity for accommodating multiple universalisms that contest and compete with each other. This would lead to a gradual refining of human rights so that they can attain the greatest degree of universality possible in a current historical conjuncture. In this chapter, I suggest that regimes of human rights that focus on positive duties to fulfill human needs radically put into question the rational–normative structure of human rights because it puts their juridical form into communication with something else – the biological or natural dimension of human life – that deforms and even explodes this juridical form. We see this deformation in some of the negative consequences that mark the implementation of second-generation rights. I suggest that we can better account for these consequences by understanding these rights in terms of biopolitics. Second-generation human rights: the mistaken opposition of sovereignty and human rights Despite the clear indication of the structural connection between universal human rights and positive law in the stipulation of the preamble of the Universal Declaration of Human Rights that “human rights should be protected by the rule of law,” the juridical form of modern human rights has often been called into question on the grounds that their normative validity is extra-legal and precedes and transcends sovereign states because they are “equal and inalienable rights of all members of the human family” that are grounded in “the inherent dignity” of all human beings. Accordingly, it is customary to point out that modern human rights are influenced by ideas about natural liberties from the modern philosophy of natural rights, whereby rights are liberties ( jus ) that are prior to laws ( lex ), which imply obligation and, therefore, coercion and compulsion from a sovereign authority.