On Humanities and Human Rights

Paul W. Kahn

Teaching in a law school, I am surrounded by colleagues who understand themselves to be social scientists. They pursue inquiries in economics, psychology, history, and regulatory administration. Their work usually begins with collecting data in forms that can be measured, and they use that data to formulate testable hypotheses. The ambition of their work is to propose legal reforms. A typical human rights inquiry for these social scientists of the law would be to gather data on whether there is any relationship between signing a treaty and State behavior. The reform ambition would be to tell us what should be done, if there is no such relationship, or how to strengthen it, if there is. Of course, I am not the only humanist working in the building, but all of us suffer from the sense that we are only ornamental: We are tolerated in order to make the school more attractive to the rest of the university.

My colleagues frequently ask me, “What is the evidence to support your claims about the nature of law or the legal imagination?” They expect me to cite polling data or perhaps to design social psychology experiments. How else can we “know” what people think? I respond that there is no reason to prefer a poll to a film, and that we learn what people think by looking at the products of their imaginations—books, poetry, films, political rhetoric, judicial opinions, performances, and practices. The evidence for my claims, I argue, is all around them. To understand it, however, one has to give up measurement and take up interpretation.

Often, I work through a sustained engagement with a text: for example, Marbury v. Madison, King Lear, Genesis, or Carl Schmitt’s Political Theology. My social scientist friends cannot understand why this could be a useful way to go about studying modern law or politics. They are even more puzzled when I tell them I am not trying to discover what it was that the authors of these texts thought. In my book on political theology, I put it this way: I am not trying to think about, but rather to think with, Schmitt. When I claim not to care what Schmitt thought, my colleagues do not see how my work is an interpretation at all. They think that without such an object of inquiry—something objective—there is no way to measure the truth of a proposition. About this they are right: Truth is not something measurable that stands apart from the interpretation any more than beauty stands apart from a work of art. One interpretation can only be met by another interpretation.

What I have called “thinking with” is what the humanities have always taught. It is a kind of conversation, the aim of which is not to discover authorial intent but rather to create something new: an interpretation. If there is anything exceptional in my work, it is only in the place from which I work and the subjects I take up. I have explored that set of beliefs, practices, expectations, and habits of mind that create and sustain the horizon of understanding—the social imaginary—within which law works. I have been less concerned with the content of legal rules than with the world of meaning within which those rules operate. These inquiries have led me to emphasize aspects of political experience that do not appear to the social scientist—for example, sovereignty and sacrifice, as well as love and faith. To my colleagues, this approach makes little sense.

The dispute here goes to the very heart of the disciplinary divide between the social sciences and the humanities. A lot is at stake in this divide—not just what we ask and how we answer, but what we learn of ourselves when we reflect on the process of inquiry. It is this second point that I want to focus on in the rest of this essay, for thinking about humanistic inquiry may help us to begin to fill the empty space at the foundation of human rights law.

There is an idea of the relationship between human rights and the humanities that goes something like this: Reading a novel or watching a film creates a sympathetic connection to those who are different from ourselves. We see people who are not members of our families or communities, political, ethnic, or religious. We learn that we share the same ambitions, concerns, and values. They too have children, parents, and friends; they too struggle with power and subordination. Their triumphs and defeats are like our own. Most of all, we learn that their pain is like our own. Pain is a universal currency that cuts across all other sources of division: We suffer pain as individuals. Confronting the other’s pain in these imaginative works, we learn that all people deserve our sympathy, and out of that sympathy comes respect for their human rights.

Sometimes, this claim is packaged within a historical narrative that looks to new forms of aesthetic production in the modern era. Efforts are made to trace human rights law to an eighteenth-century sensibility cultivated by new works of imaginative production. A global legal order expresses the juridification of a morality that was already operating in these creative works.

I do not think there is much to this view, at least in its historicized form. It borrows too much from the conventional story of civilization’s progress. It drafts Facebook into the same enterprise as Rousseau. More importantly, we did not have to wait for the modern novel to confront the message of universal sympathy. This idea is as old as the West. It is already present in the book of Genesis. It is the message of Christianity. It was there when Las Casas debated Sepúlveda on the recognition of Native Americans.

The problem is that this idea of universal sympathy has never been the only value put forward. Our moral history is complicated because our values and beliefs are not well ordered under a single guiding principle of universal recognition. Christianity was not just a narrative of love, but also of sacrifice. We simply cannot say whether the religion of universal love brought us more peace than war. Nineteenth-century sensibilities in the United States, even among university graduates, led us to pursue ideas of manifest destiny at home and empire abroad. Europeans of the early twentieth century were not differently situated with respect to these values, yet they willingly gave up two generations of young men to slaughter. The graduates of our humanities programs have never had any trouble entering into positions of responsibility and power in a society divided along lines of class, gender, and wealth. Training in the humanities long seemed compatible with support for both Jim Crow laws and a subordinated working class. More recently, our humanities graduates have had no trouble taking up careers in global finance. They may defend human rights even as they benefit from the gross inequalities that perpetuate the conditions that lead to violations of those rights. What exactly did they learn from us?

The problem is not that the study of texts in the humanities ignores values of recognition and dignity. Rather, there is no single message in these texts. Great works are, almost by definition, morally complex. At the center of the Western imagination is not just the peaceable kingdom of love, but the act of sacrifice for the sake of love. Inclusion is never without boundaries, and thus it is unavoidably tied to exclusion. Violence is as much an act of meaning creation as lawmaking is. Contemporary aesthetic productions frequently take up the question of what we will give for love. When we read violence as sacrifice, we begin to approach the complex character of the modern, political imaginary.

The American legal imagination, like many of our works of aesthetic creation, occupies a space of reason and love, of law and violence. This is a field of political practice in which sacrifice is always a possibility. Our basic narrative offers us law—the Constitution—as the product of an originary act of sacrificial violence by the popular sovereign—revolution. This structure is re-created whenever we imagine an act of sacrifice for law.

The humanities can and should explore the complex ways in which law gains meaning from representation of our collective identity. There is no way to carry out this inquiry except by interpreting the works of the imagination. We should not, however, assume that such an inquiry will make us or our students advocates of human rights law. Indeed, I think the opposite may be more likely: We will come to understand better why human rights law has so little traction as law in the United States. Exploring the relationship between popular sovereignty and law, we will understand better why, for many if not most citizens, international law, including human rights law, does not appear to be law at all. In simplest terms, Americans are not prepared to sacrifice for this law. A law that cannot support sacrifice is one that lacks a connection to the popular sovereign, and that seems not to be law at all. From this comes much of American exceptionalism, including our preference for civil rights over human rights. We can put the same point another way: Human rights law envisions a world without violence, but in such a world there is no place for sacrifice. Whatever we might think of that as a political ideal, the humanities are not about to move us away from the sacrificial imagination.

I am, then, a skeptic with respect to any claim that the study of the humanities will lead us from exceptionalism to universalism, from sacrifice to contract. That, however, is not the end of the story. For unlike the social sciences, the humanities invite us to take up an attitude of self-reflection. What does the act of interpreting tell us about ourselves? While the humanities cannot easily turn us from civil rights to human rights, perhaps they can offer us a way to think about the foundation for a belief in human rights.

Human rights law has long been haunted by the fear that in the absence of a common faith, the project lacks a foundation adequate to the claims of the skeptic. Practitioners tend to rely on positive law, but that will not do much work against the State that rejects a treaty—the United States has rejected many. Apologists claim that human rights emerged from a collaboration among individuals representing all of the major faiths. That is doubtful on its face, but hardly an answer to those who claim no religion but politics or who read their faith differently. I suggested above that efforts to ground human rights law in sympathy for the pain of others cannot work so long as the political imagination values sacrifice. What is left?

Working in the humanities, one always labors in the face of a mystery: There is a gap between what we know and what we create. There is no formula to be followed in painting a picture or writing a novel. There are no rules to be applied. Creation is not production. This leads to a particular existential anxiety. Because the artist cannot explain how she produced her past work, she can never know whether she can do it again. She looks at her own work with the same wonder that you or I might, for she cannot claim possession of it. Rather, she is more likely to say that the work claimed her. We speak of writer’s block, but the same experience is true in all the arts.

This sense of the wonder at creation is characteristic of work in the humanities. This, I think, is what we are really trying to teach our students: a sort of humility before the power of creation that is revealed through the subject, but is not possessed by the subject. We teach them this by asking them directly to take up the task of creation, for the process of interpretation is no less a creative act than that of aesthetic production. Every creative work is an interpretation, and every interpretation is a creation.

Asked to interpret some work, I do not know what I will say until I say it. I cannot apply a rule; I cannot simply make the work speak in its own voice. Instead, I engage in a kind of conversation. I think with it. As in any conversation, I hold open the future and expose myself to a sort of risk. The largest risk is silence; the wonder is that something that had been unimaginable before comes into existence. The humanities, in other words, do not just take up creative work as their object of study; they are in themselves a process of creation.

This is why we often structure our pedagogy around asking students to compare two works: The assignment asks the students to create something new. Putting the texts in a common space is an act of creation, and the student must say something new. He cannot look up the answer and cannot simply repeat what the texts say. There is nothing there to be discovered; rather, a common world is to be made. The student must make the works speak to her, but can only do so by speaking to them.

Our experience of ourselves as free is this experience of creating a common world. Once we begin creating/speaking, there is simply no end to it. Every text creates the possibility of such an endless conversation. We do not ask of that conversation whether it is making progress; rather, we ask if it is still interesting. The conversation never ends of its own, but rather it ends because we cannot physically sustain it. We learn then of the weight of the body on the soul—that is, we experience from within another version of the gap between our finite and our free selves.

Creation and interpretation are both free acts. They are not free in the sense of without constraint, but free in the sense of without causal explanation. They are, therefore, beyond the reach of the social scientist. The social scientist’s demand for the facts separates him from the world that he studies. The humanities are in the business of transgressing this line of separation, which is only another way of saying that the truth of an interpretation is not separate from the act of interpretation. This is what I meant when I said that one interpretation can only be met by another interpretation.

This experience of free creativity, which goes to the heart of who we are but remains a mystery, is as close to the sacred as many of us are likely to get. It was once explained by speaking of the muses, or inspiration, or grace. When we look at any great work, we simply cannot imagine how the artist did this. Or rather, we can imagine it but cannot explain it. We can imagine it because in our own way we are constantly discovering our own freedom. Shakespeare is a mystery, but so then is my writing of this little essay. I do not know now how I will answer the questions to come, but I act with the faith that our engagement will bring something new into the world. Indeed, it will re-create the world, for every conversation offers a new starting point from which to see the whole. Implicit in this faith is the belief that every person stands within this same mystery of creation, and this is worthy of our respect.

If we take this to heart, if we teach this to our students, we may arrive at the foundation of a belief in universal dignity. Here, we can begin to locate an idea of dignity that does not rely upon sympathy for the suffering body. In place of the body in pain, we find an experience of self-transcendence. To link dignity to freedom and freedom to creation is to recover the link of human rights to revolution. We might, however, think of this as the humanities’ reading of revolution, which does not wait for the extraordinary political event, but reminds us that the same free imagination is at work in every discursive exchange. The humanities are not likely to change our political beliefs and practices, but thinking within the humanities may still tell us something about why every person deserves our respect.