What if the prescription of “equality” and “human rights” was wrong for a situation? What if the prejudices and idiosyncrasies of the place disallowed it?
But of course, the question is never simply “human rights or not”, but human rights for who. Who will be included, and who excluded, from the equality of the privileged? The same problem confronts us in many circumstances – in the context of the no-borders movement, the prescription of equality and freedom of movement is applied to all, against any form of exclusionary citizenship. In the Palestinian context it applies to the who of return, who is to be allotted the right to live on his or her homeland in equality and peace with those already living there? It is said that you can’t negotiate over human rights, but notice the implication: if you can’t negotiate over it, then you must fight over it. And this is exactly the way rights are thought of since the French revolution – as revolutionary prescriptions, prescriptions which must be applied to a situation, and which therefore need to motivate combat in order to force their application.
The trouble, of course, is that those who fight often lose, there is no guarantee when you take up arms against an immoral law. Both because the ability of states to combat those who use violence against them is strong, but also because the use of combat by groups opens the possibilities of various social pathologies, racism, tribalism, belief that one is the chosen – various ideologies that might motivate a group to fight for the cause, for the prescription, but which undermine that prescription’s universality. The human right for which you fight can pervert the prescription itself. What’s revealed here is that prescriptions only have thin-content, it is not that they don’t motivate social desires at all, but rather that the way they are instituted can vary wildly depending on the political, national and economic forces that condition their emergence. For instance, you might be fighting for human rights, but if in the context of the struggle you change to a rhetoric of vilanizing your enemy, we might say that the struggle itself was a source of your own counter revolutionary education. On the other hand, struggle can sometimes have a liberating effect, it can help a partisan to see the other side, to see the humanity and resolve in the enemy.
So if combat is to be questioned, and a political solution must exist, what kind of compromises can be made? First, we must make a distinction between demands which will be thought of as legal, versus demands which will be thought of as political. Impossible demands, no matter how legally based must be dealt with politically if the context of the trial clearly favours one party over another. The impossible demands must not disappear, however, they must be reconstituted as political struggles, there must be a reasonable alternative, a way that the struggle could still be achieved by way of rather than by continuing the war.