Claiming Human Rights: The Reflexive Identity of the People

• In this chapter I try to discern the shape of a phantom. The phantom is the people in a democracy. The first argument which will be put forward is that democracy cannot exist without such a phantom. But this phantasmagorical presence of the people in society can threaten the very democracy which it makes possible, in two ways. First, the phantom can prove to be no more than that – a mere figment of the imagination, a fantasy without any substance. If that were the case, then any claim that law could be legitimated as popular rule would be a fraud. Second, the phantom could acquire a concrete existence in society. As any reader of ghost stories will know, where a ghost becomes flesh, becomes incarnated in the land of the living, things do not turn our well for those affected.There is another fate possible for this phantom – drawing on the theory of Claude Lefort, I will set out how ‘the People’ can remain in the transcendental realm, and act as a symbol, a symbol to which all can refer by no one can possess. It is only when the people is so understood that democracy is possible. The central argument presented in this chapter is that it is the act of claiming human rights which makes possible this symbolic existence of the people. In a democracy, constituent power is exercised not by those who invoke ‘the people’ in order to claim authority, but by those who invoke it by claiming their rights as equal members of the that people, in order to challenge authority’s claim of legitimacy.

Subject headings

SAMHÄLLSVETENSKAP  -- Juridik (hsv//swe)

SOCIAL SCIENCES  -- Law (hsv//eng)

Keyword

Human Rights

Constituent Power

Democracy

People

Claude Lefort

Public international law

Mänskliga rättighter

Folkrätt

Publication and Content Type

kap (subject category)

vet (subject category)