Identity, Recognition, Rights or What Can Hegel Teach Us About Human Rights?
| Author | Costas Douzinas |
| Date | 01 September 2002 |
| Published date | 01 September 2002 |
| DOI | http://doi.org/10.1111/1467-6478.00225 |
JOURNAL OF LAW AND SOCIETY
VOLUME 29, NUMBER 3, SEPTEMBER 2002
ISSN: 0263-323X, pp. 379–405
Identity, Recognition, Rights or What Can Hegel Teach Us
About Human Rights?
Costas Douzinas*
Rights play a crucial role in shaping identity by organizing the
recognition of self by others and by legal and social institutions. For
Hegel, legal rights lead to an abstract type of recognition based on the
universality of the law. The concreteness of the person, alongside the
respect bestowed by legal recognition, calls for the acknowledgment of
honour and esteem. Human rights move in this direction, by validating
both the similarity of claimants with abstract humanity and their
difference and uniqueness. But law’s necessary generality cannot meet
the demands for the full recognition of the postmodern self with its
polymorphous desires and its complex struggles for recognition as a
unique individual.
HEGEL’S THEORY OF RECOGNITION
The voluminous literature on rights has paid scant attention to the role legal
rights play in constructing identities. Legal philosophers discuss classifications
of rights, the internal consistency of rights discourse, the social effects of rights
or the goods rights guarantee. But on the subjective side, the operative
assumption is that rights express, uphold, and guarantee pre-existing
characteristics, their task typically being to promote free will. The
characteristics, elements, and traits of human personality exist prior to rights
and other public institutions, which are treated as tools facilitating the public
expression of pre-formed and complete selves. These assumptions are part of
liberal theory’s impoverished view of the subject as a closed and monological
entity and, of the social bond as an atomocentric collection of individuals
whose relations to each other are external, superficial, and interest-driven.
The shortcomings of the liberal theory of rights have been attacked from
many perspectives and in particular by American critical legal scholars.
Critical academics have faced some difficulty in reconciling their
379
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* School of Law, Birkbeck College, University of London, Malet Street,
Bloomsbury, London WC1E 7HX, England
occasionally scathing theoretical critique of rights with the practice of
radical lawyers who, consistently and often successfully, mobilize rights
discourse to protect the underprivileged and oppressed. This conflict has
been in strong evidence in the writings of critical race theorists and
exemplified in Patricia Williams’s statement that rights are ‘a symbol too
deeply enmeshed in the psyche of the oppressed to lose without trauma and
much resistance’.
1
In seeing rights as ‘symbols’ which have important
psychological effects, Williams invites us to abandon the liberal theory
which approaches rights as external to the self and to examine the ways in
which rights are ‘enmeshed’ in the psyche. It is possible that by changing
focus and emphasizing the constitutive role of rights in building human
identity, the apparent conflict between critical theory and practice will
disappear.
For rational natural law, the tradition that led to the great declarations of
right of the eighteenth century, human rights aim to acknowledge and protect
the central and immutable characteristics of human nature. These attributes
may differ from philosopher to philosopher, from the need for self-
preservation in Hobbes to rational freedom and moral responsibility in Kant,
but their uniform and absolute character makes them universal, establishes
the priority of rights over duties, and determines the content of legal rights.
While this approach has a number of followers in moral and legal
philosophy, particularly amongst contemporary social contractarians, the
social theory of subjectivity owes more to Hegel’s critique of Kant’s
conception of morality and of the person as separate from others and the
world. Indeed, the theories of recognition, central to identity politics and
communitarian political philosophy and, as misrecognition, to Lacanian
psychoanalysis, are direct descendents of Hegel’s understanding of identity-
formation. The first part of this essay aims at introducing the concept of
recognition by placing it within the general framework of the Hegelian
dialectic before moving to an examination of its specific legal elements and
of its contemporary relevance for human rights.
Kant’s Critiques gave philosophical expression to the modern obsession
with the separation between subject and object and between self and the
world. Hegel’s main task was to heal this rift and to reclaim the unity of
existence. The early German romantics had tried to overcome the separation
by successively prioritizing one or the other pole. Hegel’s answer was more
radical: the split was internalized and historicized and the fragmentation of
modernity was seen not a catastrophe but as a necessary stage in the odyssey
of spirit or reason towards its own self-consciousness. For Hegel, thought,
consciousness, and the spirit are active forces, caught in a continuous
struggle, in which the spirit fights its own alienation in the external world,
recognizes objectified existence as its own partial realization, and returns to
380
1 P. Williams, The Alchemy of Race and Rights (1991) 165.
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