Having discussed the philosophy, ethics, and implementation of human rights, we shall now proceed to enquire who the subject of human rights is, paying particular attention to the asylum seeker. Three political theorists distinguish themselves by their approach to modern refugee rights in relation to politics, law, and democracy: Hannah Arendt, Jacques Rancière, and Giorgio Agamben. It will be suggested that Arendt and Agamben tend to depoliticise the human rights project, whilst Rancère succeeds in articulating a politics which can be used by refugees and asylum seekers which leads to an open democracy. The analysis of the views of Arendt and Agamben is brief, as the focus will be directed more towards developing Rancière’s proposition for a new form of politics. It is to be noted that anyone who asks for recognition of their rights maintains the possibility of politics proper; not only is this crucial for democracy, but it also represents a way of asserting one’s ipseity (the legitimate sovereignty of a person) (Derrida 2005b:12) to confront state sovereignty.

1. A critique of Arendt and Agamben

The zoé-bíos distinction

Both Arendt and Agamben follow the Aristotelian distinction between ‘forms of life’: bíos (the ‘good life’ of a political community) and zoé (‘mere’, biological life). Although similar in this respect, they envision the potential of the human rights project in oppositional ways. In her idealisation of the ‘political arena’ represented by the existence of a community which protects its members, Arendt conflates a socially-constructed concept (that of the citizen) with the material being of people qua humans. The citizen is viewed as a normative category, caught in a binary dualism with the refugee; she considers that the ‘loss of a polity itself expels (the refugee) from his humanity’ (Arendt 1968:297). In contrast to her advocacy for equality between the citizen and the refugee within the realm of ‘bíos’, Agamben’s position is that everyone, regardless of their status, is equally controlled by the biopolitical power of the state which subjectifies and inscribes identities. Henceforth, human rights are ‘the original figure of the inscription of bare natural life in the legal-political order of the nation-state’ (Agamben 1995:116) – yet another form of control.

The law

Having a positive view of human rights, Arendt advocates for a broadening of the power of political communities’ legislature to include refugees. Arendt’s liberal beliefs can be observed in her problematising of communities’ tendencies to keep the refugee ‘outside the law’. This is because, for her, only through the law can refugees’ rights be recognised. Agamben contends that the refugee is already included within state law in the form of exclusion (1998:21). Thus, everyone is trapped within the frames of the repressive state and/or international law. By conflating Schmitt’s state of exception with Foucault’s biopolitics, he claims that states now have power over the ‘exception of life’ (Rancière 2004a:300), somewhere between zoé and bíos. The paradigmatic locus of this exception is the concentration camp, established by the sovereign. Hence, he sees no escape from the direct control of the state exercised on the so-called ‘mere’ life of the refugee.



A communitarian, Arendt places the source of possibility for politics, ethics, morality, and power within the realm of the community, for the ‘moral standards are much easier kept in the texture of a society’ (1943:116). Thus, everything that falls outside of a group is considered unnecessary, invisible, and illegitimate. Whilst the refugee needs to be recognised by a community, Arendt is unclear about what would motivate a community to offer recognition. The failure to see beyond the law leads her to depoliticise and ignore the everyday struggle in the lives of the refugees, reifying jurisdiction such that everything outside it is ontologically invisible. By essentialising the law, she also dehistoricises modern human rights, overlooking victories won for equality. On the other hand, Agamben is too pessimistic, presenting law as a totalising force, outside of the history or politics, in the form of an inevitable quasi-totalitarianism (Leung 2012:91). Unlike Arendt who believes in human rights’ potential for emancipation, Agamben emphasises the limitation of rights talk and practices, because ‘bodies become the focus of attention, not action and artifice, as Arendt proposed’ (Lechte and Newman 2012:524). Admittedly, Agamben’s politics is what Žižek calls post-political biopolitics, based on fear and victimisation of the ‘living dead’ (2007).


Does the refugee hold any power in relation to the state?

The hierarchisation of the roles citizen/refugee by Arendt is at fault for Arendt’s dismissal of refugees’ power to challenge structural violence. In both Arendt and Agamben’s writings, the refugee embodies an invisible role, appearing as a spectre without agency. Thus, Arendt adopts a structuralist perspective by assuming that the decline of the state coincides with the erasure of modern human rights because, so her argument goes, the loss of citizenship leads to the loss of identity and government protection (Arendt 1968:287;294). The refugees who commit suicide are criticised by her for their ‘individualism’, whereas those who decide not to end their lives but to resist assimilation to retain their identity, are allegedly ‘stubborn’. Further justification for state actions against refugees arises in her statement that the Jewish refugees in her time were ‘prisonniers volontaires’ (Arendt 1943:115, emphasis in original). Further, she makes clear that the ‘confusion in which we live is partly our own work’ (Arendt 1943:116), so national exclusionary politics is only ‘natural’ (Arendt 1968:282). In her conceptualisation of human rights, Arendt falls into the trap of reifying them, and considering refugees as completely defenceless. Agamben takes an oppositional stance, blaming ‘sovereign power’ which cannot be distinguished from ‘biopolitical power’. Additionally, the binary dualism which he adheres to, that is, citizen/noncitizen, takes the form of an ontological destiny (Rancière 2010:66). As there is no real escape from the biopolitics of human rights, Agamben is mostly pessimistic, and for that matter, indifferent to the debate on the reliability of the human rights project, reducing power to the power of the sovereign (Darling 2009:660) to determine life itself (Passavant 2007:153). There is little possibility for conceiving a difference between the advancement of human rights, and their abolition altogether.  


Identities and the trap of a politics of exclusion in Agamben and Arendt

Despite his quasi-nihilist and structuralist stance, Agamben places the refugee at the centre of the debate about his ideal community: ‘the coming community’. Here resides ‘a life over which sovereignty and right no longer have any hold’ (2000:114-15). This identification of subjects is problematic because it does not leave open the possibility for disidentification and desubjectivation. It must be remembered that the ‘perplexities of the refugee’ only started to occur a century ago. Furthermore, Agamben does not discuss the political praxis needed for change to occur (Passavant 2007:147). On the other hand, Arendt suggests that the identity of the refugee should disappear through assimilation, which might lead to the creation of other hierarchies between identities. Furthermore, for Agamben, ‘the citizen’ is an illusory identity, or as he calls it, ‘artificial’; for Arendt, the human as such is illusory, because their humanity can be defined, granted or denied by the community.


2. Re-politicising the subject of human rights: The litigiousness of political names

Rancière takes a radically different stance on the subject of the rights of man from Agamben and Arendt’s, problematising any attempt to define particular identities or communities, his account of human rights being one that, according to Ingram, ‘fully honours human rights’ emphasis on autonomy’ (2008:402). Rancière does not fundamentally oppose the project of modern human rights; instead, he is concerned with how existing rights can be enacted to change relations of power and the distribution of social categories within the realms of the visible, sayable, and hearable. The primary reason for his opposition to the identification of subjects stems from his dismissal of a politics of consensus which seeks to ‘get rid of politics’ (a certain form of politics, as we shall see later) ‘by ousting the surplus subjects and replacing them with real partners, social groups, identity groups, and so on’ (2004a:306). Moreover, political names are litigious names, and political subjects are ‘surplus names’ (Rancière 2005:289) – entailing that refugees are subjects of a law which had already been decided for them, leaving little possibility for them to challenge its bureaucratic and violent contingencies. To counteract this exclusionary practice, Rancière proposes a politics of dissensus which assumes that democracy is a process of ‘doing’ agonistic politics, that is, a politics of disagreement. He works with the existing rights framework, as they can be used to signal ‘wrongs’ (1999:13) and to verify the reality of radical equality (Lechte and Newman 2013:116). This way, possibilities for recognition of those who ‘do not count’ are left open.

He takes a more historical approach of the genealogy of human rights, stating that after the collapse of the Soviet Union, human rights have become the rights of those with no rights. Considered as powerless and in need of help, asylum seekers became represented by states and organisations which undertook the responsibility to speak on behalf of non-citizens. This allows for a top-down approach to human rights, in the manner advocated by Arendt and Mill. Rancière criticises Arendt for equating the apparent ‘“abstractedness” of “Men’s Rights” with the concrete situation of those populations of refugees’ (2004a:298). He traces this fallacy to her distinction between the political sphere and the realm of necessity (the social sphere), which has led to the argument that the problem of the rightless is ‘not that they are oppressed, but that nobody wants to oppress them’ (Arendt, cited by Rancière 2004:299). Accordingly, Agamben’s theory, according to Rancière, stems from Arendt’s archipolitics, that is, the separation between the political, moral life and the apolitical, social life.

Rancière seeks to overcome the ‘ontological trap’ posed by Arendt and Agamben, by focusing on the ‘subject’ of the Rights of Man as a political being; this way, he introduces in the agency of the oppressed actor. He brilliantly points towards the tautology existent in Arendt’s conceptualisation of the Rights of the Citizen, as opposed to the Rights of Man. As it has already been mentioned, she ultimately advocates for the right of all to become citizens, but the way in which she arrives to this conclusion is paradoxical. It is worth quoting the following point in its entirety:

either the rights of the citizen are the rights of man—but the rights of man are the rights of the unpoliticised person; they are the rights of those who have no rights, which amounts to nothing—or the rights of man are the rights of the citizen, the rights attached to the fact of being a citizen of such or such constitutional state                                           

(Rancière 2004a:302).

This paradox resembles Nancy’s critique of the self-foundation of right within the realm of the law, in a way that ‘ontology falls under juris-diction’ (Nancy 2003b:166); to go further, a right can be recognised as such in legal terms, based on an already established logic of the law.

Rancière develops his own definition of human rights: ‘the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not’ (2004a:302). In other words, rights are the inscription of those with no part (2005:289), who are included in the community, without belonging to it. It is important to state that Rancière does not make the case that the mere existence of human rights is enough in itself for the recognition of rights, or that rights are absolute. Rather, he asserts that rights can be used as tools in order to verify equality.

As such, for Rancière, the rights of man are not void – they can be used, therefore they simply exist. According to him, there are two types of rights. Firstly, there are written rights, ‘inscriptions of the community as free and equals’ found in documents, policies, treaties; they are real and can be demanded (2004a:302). This aspect of rights corresponds with Derrida’s view that writing ‘conforms with the logic of the supplement’; written rights, then, add to speech ‘only to replace’ (Derrida 1997:145), as writing is a supplementary mediation with a double role of adding itself but also substituting speech at the same time. In other words, writing represents a ‘supplement of speech’ (Derrida 1997:155). Because of this, human rights have the capacity of being available for use and reference by claimants. However, writing becomes ‘dangerous from the moment that representation there claims to be presence and the sign of the thing itself’ (Derrida 1997:144) – as an example, the law becomes dangerous when treated in a positivistic way.

Secondly, ‘the rights of man’ are the rights of those who make something of the inscription mentioned above, of those who decide to use and create new situations to verify and enact them (Rancière 2004a:302-3). Written rights can then be used both from a bottom-up and a top-down approach, as a sign (of equality) which breaks with contexts and maintains the possibility for an ‘infinite’ number of new contexts to occur (Derrida 1977:12). The written sign ‘is not exhausted in the present of inscription’ (Derrida, cited by Đokić 1998:452) but is ‘proffered in the absence of the receiver’ (Derrida 1977:7). This argument shows precisely the limitations which the legal sphere creates through its validation of certain legal contexts within which one can claim a right.

As stated by Rancière, human rights should not presuppose or define subjects entitled to claim them, in order to avoid exclusionary differentiation. There would be no need to define the subject of the rights of man in an ideal, non-exclusionary politics of an open democracy. Indeed, ‘there is no man of the Rights of Man, but there is no need for such a man’ (Rancière 2004a:305). Any instrumental reasoning for granting human rights is flawed, as equality between humans cannot be denied as a mere construct, or as part of a particular sphere. Expressed more directly, ‘there is no other reality of equality than the reality of equality’ (2012:79). Therefore, the subject of the rights of man does not coincide with a constructed sphere or identity, as claimed by political and legal institutions. Rights can be negotiated and used as a reason and tool for dissent, verifying the reality of the ‘written rights’ through political praxis. Precisely in Rancière’s remark that the bearers of human rights do not have rights in actuality, but they act as if they had them (to show the possibility of implementation), Rancière goes beyond Arendt’s ‘right to have rights’, whilst also formulating an emancipatory theory for enacting equality. In doing so, political subjects demonstrate, on the one hand, the reality both of their equality as speaking animals, and on the other, their inequality within the social order.