‘Before the Law’: Human Rights from Justification to Solidarity

‘Before the law’ [1915] is a Kafka’s parable published on its own as well as included as a chapter of The Trial (2015 [1925]). Interpreted by Derrida as a source of meta-narrative, it is here taken as a starting point for a reflection on the nature of the law - particularly of human rights and their relation to politics. ‘Before the law’ depicts a paradoxical condition. The subject standing before the law is prevented from entering into it, even though the law has been made ‘for him’. The narration is thought-provoking as it anticipates among other things the current European and international crisis of human rights protection where migrants are persistently impeded from enjoying fundamental legal protections. In the first part of the essay, I investigate the limits and challenges of a justificatory theory of the law and refer to the necessity to move towards a full-solidaristic model. After the presentation of the paradox of human rights, I show the limits of human rights approaches by three traditional narratives reflecting the utopias, dystopias and atopias of human rights. In the second part, I propose an argument to shift from justificatory to solidarity as a principle of law. Solidary conceptions of human rights are already present in some European constitutions even if a cosmopolitan turn is still to be expected. I take stock of current transcendental justificatory radicalism in philosophical accounts of human rights and suggest an alternative explanatory route based on the idea of critical metaethical contextualism: something between transcendentalism and situational interactionalism.