Human rights law is incoherent without the nation-state it purports to transcend

Evidence

I stress that my concern here is not to ascribe blame—to argue that Southeast Asian governments or Somali civilians were innocent victims of a conspiracy. In this chapter, unlike the previous one, my concern is not with cruelty as such but with how, in a secular system like human rights, responsibility is assigned for it. I point to a basic assumption about “the human” on which human rights stand: Nothing essential to a person’s human essence is violated if he or she suffers as a consequence of military action or of market manipulation from beyond his own state when that is permitted by international law. In these cases, the suffering that the individual sustains as citizen—as the national of a particular state—is distinguished from the suffering he undergoes as a human being. Human rights are concerned with the individual only in the latter capacity, with his or her natural being and not civil status. If this is so, then we encounter an interesting paradox: the notion that inalienable rights define the human does not depend on the nation-state because the former relates to a state of nature, whereas the concept of citizen, including the rights a citizen holds, presupposes a state that Enlightenment theorists called political society. Human rights, including the moral rules that bind humans universally, are intrinsic to all persons irrespective of their “cultural” make-up. Yet the identification and application of human rights law has no meaning independent of the judicial institutions that belong to individual nation-states (or to several states bound together by treaty) and the remedies that these institutions supply—and therefore of the individual’s civil status as a political subject. … The idea of a human being having rights independent of his civil status has a complicated history going back to the idea of natural law in Latin Christendom and its roots in readings of Roman law. The interesting thing about this story is how the essence of the human subject comes to be constituted in terms of inalienable rights, and how that informs the subject’s secular status. — Talal Asad, Formations of the Secular, 626

Categorization

• XREF: Directly parallels Melinda Cooper’s point that seemingly universal secular frameworks quietly depend on specific (Christian, then nation-state) institutional arrangements — here human rights proves parasitic on the state form it claims to rise above.
• DEFINE: Asad defines the distinguishing split between the person’s ‘natural being’ (object of human rights) and ‘civil status’ (object of state law) — a precise conceptual tool for the Cooper bridge.
• QUESTION: If human-rights enforcement must always run through the nation-state, how does that bear on the claim that ‘secular’ humanitarian intervention is sovereignty-transcending?
• DEEPTHINKING: The paradox that a universal, culture-independent set of rights is operationally meaningless without particular judicial institutions is dense and paradigm-relevant — worth sitting with.