Universality: recognizing the right to have rights

A starting point of this Article is the dissonance between the idea that human rights adhere on the basis of being human (“universality”), and the lack of access to those rights as a practical reality for many, sometimes resulting in activism and campaigning. It critically explores the political contingency of universality by revisiting Hannah Arendt’s concept of the right to have rights. As a fundamental political act in modernity, the right to have rights is posited as the recognition of politico-legal personhood, which is key to unlocking universal, indivisible, and interdependent rights. Under international human rights law nation states are the key institutions for the recognition and fulfilment of rights. By infusing the political act of the right to have rights with a recognition paradigm, and adding other elements from psychoanalysis, identity theory, and sociology, it is possible to address questions such as – who is recognized as belonging to the rights fulfilling community? The model advanced here applies to those whose key social identity is given meaning by human rights. In addition, by considering human rights identities fleshed out in various recognition spheres (family, society, state), the Article interrogates the consequences of misrecognition, partial recognition, and non-recognition in terms of rights and activism. On the one hand, it sets out a normative account of a properly functioning rights society. But by reading in theory and empiricism from the social sciences, it demonstrates the consequences for rights where these recognition processes fail. In this account, recognition of the individual as a politico-legal person is considered the pinnacle of recognition relations. Moreover, being regarded as belonging to the world of rights opens the horizon of universality. However, the politico-legal sphere of modernity in its current form is presented as highly exclusionary because the intersubjective dimensions of recognition in human rights are not properly acknowledged. If the political contingency of recognition was better understood, this could act as a touchstone for expanded recognition to marginalized groups. Thus, human rights activism and campaigns for universal rights are framed as socially mediated through these recognition relations. Success, measured as “universality” or unlocking the right to have rights, is actually contingent on whether the rights fulfilling body recognizes the claimants in their human rights identities. A new frame for human rights activism could be a simple appeal: the right to be seen as human.