Introduction: ‘Three generations of rights’

Writing in the UNESCO Courier in 1977, the French jurist and Director of UNESCO's Division of Human Rights and Peace, Karel Vasak, issued the following plea:

Vasak's argument is this. Progress in the implementation of human rights proceeds in three phases (‘three generations’) according to a schema which corresponds to the watchwords of the French Revolution: liberté, egalité, fraternité. According to this schema:

1. (i) ‘first generation rights’ are political, in the sense characterised by what Isaiah Berlin called ‘negative freedom’, e.g. the freedom of the individual from the repressive intervention of the state (Berlin, Reference Berlin1969: 122–31);

2. (ii) ‘second generation rights’ are social in Berlin's sense of ‘positive freedom’, e.g. the freedom to do something which the individual would be unable to do without the intervention of the state (ibid.: 131–4); whilst,

3. (iii) ‘third generation rights’ may be best summed up in Vasak's own words as,

   rights of solidarity. Such rights include the right to development . . . the right to peace and the right to ownership of the . . . heritage of mankind. (ibid., emphasis added)

The notion of first (e.g. freedom of speech) and second (e.g. access to health care) generation rights are wholly familiar, having been embodied in solid juridical forms (e.g. the Declarations of the United Nations). Third generation rights, on the other hand, have been hotly debated and the overall generational schema contested (see Mubangizi, Reference Mubangizi2004). Following Christian Tomuschat, we are bound to observe that the notion of third generation rights is ‘surrounded by deep-going uncertainties’ (Reference Tomuschat2003: 50), which concern their substantive content as well as their apparent lack of legal enforceability (‘justiciability’). For it is not immediately apparent under the jurisdiction of which legal machinery the bearer of a ‘solidarity right’ would pursue a legitimate claim. Faced with this ‘justiciability problem’, it is tempting to invoke Jeremy Bentham's famous lament that:

such that the notion of ‘solidarity rights’ would serve as an example not just of juridical ‘nonsense’ but, more harshly, as Bentham opined, of ‘nonsense upon stilts’ (original emphases).Footnote ¹

Notwithstanding the justiciability problem, I argue that the three generations schema possesses political value. Specifically, I deploy the new notion of an experiential right as an instance of Vasak's solidarity rights. My purpose is to make intelligible a contemporary feature of human rights discourse especially as it relates to the politics of welfare and mental health. I argue that experiential rights assist in the analysis of the inter-relations obtaining between three distinct political fields. These fields are:

1. (i) social movements in mental health;

2. (ii) welfare state provision (e.g. the British NHS);

3. (iii) the discourse on human rights.

A theoretical analysis of these inter-relations is the paper's main aim. One contemporary policy context is, of course, the controversy over the reform of mental health law in England and Wales, a controversy which, notwithstanding the passage of the Mental Health Act (2007), remains unresolved (see Pilgrim, Reference Pilgrim2007). As the accompanying papers in this themed section show, such disputes implicate issues which are not solely ‘justiciable’ but concern also the historical context of human rights discourse (see Carpenter, this volume) plus the ways in which this discourse inextricably relates to such features of mental health politics as psychiatric power, personal identity and the service user's ‘voice’ (see Spandler and Calton, Lewis, Warner, this volume). This paper stresses the role of social theory in illuminating such social policy debates.

The theoretical argument is this. Mental health social movements issue demands in the direction of the welfare state. These demands do not arise ex nihilo, but are rooted in an individual's prior experience of life. In other words, ‘psychiatric survivors’ – the mental health movement specified here – claim to have experienced traumas (interpersonal abuses) which demand reparation from the state in the form of welfare service provision. However, these demands fail to be met via welfare provision, for survivors also claim that far from these traumas being helped via welfare provision, they are often made worse. Institutional trauma, (e.g. maltreatment) is piled upon interpersonal trauma, an exacerbation which results in further demands on the state. The notion of the ‘experiential right’, therefore, signals a double trauma and a double demand: (i) an original interpersonal trauma with a demand for welfare provision; and (ii) a second institutional trauma issuing from welfare provision itself, which results in further demands on the state. In this way, psychiatric survivors and welfare providers relate dialectically via circuits of trauma/demand.

The argument unfolds in the following way. The next section thematises an approach to the inter-relation of ‘social policy’ and ‘social theory’, which permeates the paper. The politics of the psychiatric survivor movement in Britain between 1984 and the present day is then sketched in Section 3. This sketch is not intended to provide an exhaustive empirical account but, rather, through the use of exemplary texts, to develop and support the theoretical argument canvassed. This section, which identifies a dialectical relation obtaining between the experiences of survivors and their political demands, introduces the paper's critical concept: ‘experiential rights’. This then raises a question. How may we understand such rights within the framework of the three generations schema outlined above? That question is addressed in Section 4, which outlines the genealogy of human rights discourse theoretically, focussing specifically on the social theory of Claude Lefort (Reference Lefort1986, Reference Lefort1988) and his dialogue with the Marxist tradition (e.g. Marx, Reference Marx, Marx and Engels1975). Tracking the vicissitudes of human rights in this way clarifies the political value of the experiential right, especially as it pertains to what has been called by Lefort (Reference Lefort1986: 239–72, Reference Lefort1988: 21–44), the ‘adventure of rights’ – the democratic struggle paradigmatic of ‘psychiatric survivors’. The closing section summarises the relations obtaining between the paper's key concepts: experiential rights, the democratic ‘adventure’ and the politics of welfare and mental health.

Social theory/social policy

A word is in order about the approach the paper adopts to the study of ‘social policy’ in the general sense, an approach which foregrounds the theoretical rather than the empirical elements. This analysis is theory-driven, especially the dialogue between Marx and Lefort which constitutes Section 4. Two justifications guide this perspective.

The first I refer to as social policy's ‘conditions of possibility’. By this I mean that ‘human rights’ emerged in modernity under the twin imperatives of capitalism and industrialisation – two of social theory's overarching motifs. By tracing the conditions of possibility of human rights, which I do in Section 4, I try to show not merely the historical origins of the ‘three generations of rights’ but also the possibility of its critique. This possibility is realised in the Marxist tradition. That the notion of human rights may be criticised is not a common-sense intuition. But Marx's critique retains its value today not because it is true – Lefort shows decisively, I think, why it is not – but because it provokes a critical attitude to social policy which is inherently progressive. According to this perspective, social theory is a precondition for social policy critique. A hallmark of the papers in this volume is that they are not merely empirical, they provoke a critique of the discourses of mental health and human rights together with cognate terms such as ‘social inclusion’ (i.e. Carpenter, Lewis, Spandler and Calton, Warner, this issue; also Spandler, Reference Spandler2007).

The second justification of a theory-driven approach is also progressive. It concerns the ‘symbolic’ dimension of human rights. As Lydia Lewis similarly shows in this issue, human rights are not reducible to the codification of justiciable law and its institutionalisation in courts, law firms etc., for they constitute also a symbolic domain. Lewis is concerned with the ‘symbolic violence’ (see also Bourdieu, Reference Bourdieu1992) perpetrated on mental health service users by discourses of ‘user involvement’. It is, of course, not a case of denying the materialisation of legal and psychiatric institutions. But to focus upon the symbolic dimension of rights is to recognise that the role they play in society cannot be explained by these institutions alone; for ‘rights’ function also within what Emile Durkheim (Reference Durkheim1960) once referred to as the ‘conscience collective’ – collective ‘ideas’, if you like – which animate us to engage, like ‘psychiatric survivors’, in struggles for a political cause.

Let me clear about this. I am not saying that: (i) social policy should always be theory-driven, even less that (ii) the theory should be the theory canvassed here – plenty of empirical work and alternative theories (e.g. Lewis's) speak to the contrary. What I am suggesting is that the sort of theoretical concerns associated with the linguistic or cultural ‘turns’ (i.e. the ‘symbolic’ domain) and with what may loosely be called ‘postmodernism’ in social theory – of which Lefort is a notable harbinger – may make a valuable contribution to social policy critique. This is now recognised in standard social policy texts (e.g. Baldock et al., Reference Baldock, Manning and Vickerstaff2003: 637–8). There are future dialogues to be explored between, on the one hand, the theoretical and the empirical in the study of social policy and, on the other, between the sorts of theoretical commitments expressed here and elsewhere in this issue, a dialogue which may open up new paths for exploration.

Psychiatric survivors and experiential rights

Space restricts all but an adumbrated analysis of the psychiatric survivor movement in Britain from 1984 onwards – so-called in that the main social movement organisation associated with it was Survivors Speak Out (SSO) founded in 1986 (see also Crossley, Reference Crossley2006). However, I want to approach this clarification of ‘experiential rights’ via a particular ‘discursive analytical strategy’ (see Andersen, Reference Andersen2003) which hones in on the exemplary texts of one survivor activist only. This is the activist Peter Campbell, founder member of SSO and a prolific writer and commentator on the politics of mental health. It was Campbell who summed up the very experience of being a ‘survivor’ back in 1992:

Note, here, the presence of what I refer to as the ‘double trauma’ above: (i) ‘we survive in societies which devalue . . . our personal experiences; (ii) ‘we have survived an ostensibly helping system’ and the way in which that temporal movement (i]>ii]) is inextricably linked with the experience of being a ‘survivor’. Campbell's texts are ‘exemplary’ precisely in the sense that that ‘temporal movement’, the regular occurrence of which is such an homogenous feature of the psychiatric survivors (see Cresswell, Reference Cresswell2005a and Reference Cresswellb, Reference Cresswell2007), is an ever-present in Campbell, providing a grid of intelligibility through which to survey an otherwise heterogeneous field.

Campbell's activism, in fact, pre-dates the formation of SSO by some years (e.g. Campbell, Reference Campbell1983). A long-term ‘recipient’ of psychiatric services,Footnote ² Campbell had been active in mental health movements in the early 1980s and was also a volunteer with mental health's prominent ‘third sector’ (voluntary) charity, MIND. That fact is significant, for SSO's activism must be seen as Janus-faced: certainly, it looks, with a transformative eye, towards psychiatry as a public sector provider; but it also looks back towards MIND with the aim of problematising its status as a ‘voice’ of representation. Campbell had expressed this perspective vis-à-vis MIND as early as 1985:

Such comments inaugurated a 20-year plus commitment to the survivor-perspective, considered always as the survivor-perspective, not as a disembodied ‘voice’ to be represented by third-parties, but as primarily an experience of which third parties possessed no experience.

What are the central features of that identity-defining experience? I schematise it in the following way:

1. (i) As an original experience of trauma, conceptualising ‘trauma’ in its most general sense as a psychical wound (see Herman, Reference Herman1994) which propels the individual into the circuits of welfare service providers. Survivor testimonies of the period in question (see Cresswell, Reference Cresswell2005a and Reference Cresswellb, Reference Cresswell2007) bear witness to a range of childhood (e.g. sexual abuse, deprivation) and adult (e.g. domestic violence, unemployment) interpersonal traumas, which propel the individual into the circuit of psychiatry.

2. (ii) Once there, the survivor encounters a loss of control, nothing less than an experience of institutional trauma, which Campbell has recounted at depth. This ‘loss of control’ arises through psychiatry's singular features, which it is argued elsewhere (Cresswell, Reference Cresswell2008) separate out entirely psychiatric from general medical practice. According to this view, psychiatry deploys coercion, diagnostic and treatment procedures, plus claims to scientificity, the cumulative effect of which provokes that pervasive ‘loss of control’:

   [t]he idea of [mental] illness is not a . . . liberating force . . . If I am to be confined to a category of person whose experience is devalued . . . then it is scarcely possible to expect that my control over my life will ever be more than extremely circumscribed. (Campbell, Reference Campbell and Heller1996: 57, emphasis added)

3. (iii) Now, Campbell closes the passage directly quoted above with the following line:

   [i]f my experience is not valued I cannot be whole (ibid., emphases added),

   a lament which would appear to align him with certain aspects of 1960s ‘anti-psychiatry’ (e.g. Laing, Reference Laing1990). It is true, of course, that R.D. Laing also posited the notion of an experiential ‘split’ within a putative ‘wholeness’ of human experience (ibid.: 19), which ‘split’ psychiatry was unable to suture (ibid.: 31), a failure which Laing indicted. Campbell clearly acknowledged a debt (e.g. Reference Campbell1993: 10–11). Yet, he nonetheless maintained that Laing's legacy for SSO was to be understood as ‘emotional and spiritual’ only ‘rather than programmatic and practical’ (Campbell, Reference Campbell and Heller1996: 221). It was not, in other words, to be considered a political debt.

This point is apposite insofar as a close comparison of ‘anti-psychiatry’ and SSO evinces discontinuities at the level of practice vis-à-vis the apparently continuous concept of the split experiential whole. For if Laing's lament of the fractured ‘whole’ constituted only a transient ‘radical trip’ (see Sedgwick, Reference Sedgwick1982), Campbell's lament constituted a political practice of a radically different kind.

Everything turns here upon the way in which ‘experience’ relates dialectically to the imperative of ‘making political demands’ upon, as Peter Sedgwick remarked, ‘the health service facilities of the society in which we live’ (Sedgwick, Reference Sedgwick1982: 40). In the contrasting perspectives of Campbell and Laing, neither is the ‘experiential’ nor the ‘demand’ side of this dialectic equivalent. Without having space to dwell here on Laing, we may say that the experiential component, for him, related precisely to a ‘split’ of which he had no experience but which he nevertheless represented in the most philosophical form; whilst the ‘demand’ side, expressed its most radical form, not in terms of demands for collective welfare provision but, transiently, as Sedgwick observed, ‘outside the bureaucratic compass of the state’ (Reference Sedgwick1982: 252) in the singular form of the ‘therapeutic community’ at Kingsley Hall (see Barnes and Berke, Reference Barnes and Berke1971).

Now, contrast Campbell's practice to Laing's. First, the experiential ‘side’. Clearly, survivors are concerned with experiences of which they have ‘direct experience’ (Pembroke, Reference Pembroke1994: 3–4) and in support of which third parties may function only as allies. Survivors represent that experience, not via such allies, but directly; that is to say, through practices of individual and collective self-representation (see Campbell, Reference Campbell, Brackx and Grimshaw1989, Reference Campbell and Fransen1991). However, the fact that third parties may function as ‘allies’ is not without consequence; it bears directly upon the issue of ‘making political demands’, which survivors pursue not only in the direction of putative ‘allies’ but, simultaneously, in the process of making them ‘allies’. This impulse towards alliance-formation is both directly political, in that it aims to transform, contra Laing, both collective welfare provision (e.g. the NHS) and third-sector providers (e.g. MIND), but also pedagogic – it proselytises the professional worker towards the movement's statements and norms (see Cresswell, Reference Cresswell2005a).

What relation obtains, then, between these ‘political demands’ and the trauma of the ‘split experiential whole’ canvassed above? At this point Karel Vasak's ‘three generations of human rights’ notion swings back into view. How? Because the demands advanced by survivors assume the paradigmatic form of an assertion of rights and this claim is not deployed for juridical content alone but, rather, for the legitimacy which it accords survivor-experience itself, which Campbell et al. (1999) defined as nothing less than the ‘madness-experience’. This singular assertion of a right to the ‘madness-experience’ is one for which I am proposing a name: the ‘experiential right’.

In procuring that right, it is clear how the function of the professional ally assumes a political value. For, in asserting the experiential right, in insisting that legitimacy be accorded the madness-experience, the survivor politicises circuits of welfare provision for the sake of procuring that right. In this way is the fate of the ‘split experiential whole’ tied to the legitimacy accorded the madness-experience by the professional ally. The survivor asserts that experience and, in simultaneously announcing that claim, demands a relation of solidarity with the professional, the purpose of which is to re-claim the ‘wholeness of human experience’. And it is with this relation in mind that we need to return to Vasak's three generations schema outlined above. For I hold that the notion of the experiential right introduced here is neither a first generation political right, nor a second generation social right, but, rather, a third generation solidarity right which functions precisely to revalue a formerly devalued experience and does so via a solidarity forged within circuits of welfare provision.

Let us pause to consider this claim. It may be granted validity insofar as it is hard to deny that such solidarities proliferated in the period Campbell chronicles. Equally, it is hard to deny the democratic status of such solidarities as manifested in the practices of such organisations as SSO and, later, the Hearing Voices Network (HVN) (see James, Reference James2001) and the National Self-Harm Network (NSHN) (see Pembroke, Reference Pembroke1995) for which, as the names suggest, activism depends upon solidarity-networks of survivors and professional allies. Such ‘networks’ have stimulated ‘new understandings’ (Campbell, Reference Campbell and Newnes1999) of trauma whilst democratising aspects of bureaucratised welfare provision.

Yet, hereabouts some objections emerge. These bear closely upon those ‘deep-going uncertainties’ (Tomuschat, Reference Tomuschat2003: 50) which surround Vasak's notion of solidarity rights; for, it may surely be argued that the revalorisation of survivor-experience is not at all ‘where the action is’ with regard to the politicisation of mental health. There have, indeed, been noisier theatres of action, in respect of which experiential rights appear at best epiphenomenal and, at worst, trivial. Thought turns here towards the controversies surrounding such clearly justiciable issues as the applicability of anti-discriminatory legislation in psychiatry (see Sayce, Reference Sayce2000) and the struggle over Mental Health Act reform within which another ‘network’, the Mental Health Alliance, assumed such a prominent role (see Carpenter, this issue; also Pilgrim, Reference Pilgrim2007). Compared to such controversies, the fate of the ‘split experiential whole’ may sound apolitical or over-psychologised. To echo Bentham, it seems that the experiential right here advanced is at risk of becoming not only juridical ‘nonsense’ but also, worse, faced with struggles for justiciable rights, non-justiciable ‘nonsense upon stilts’.

I contest that objection. Rather, I argue for a conceptual reversal; that is to say, for a reversal in the order of prioritisation which underpins the historiography of Vasak's conception. Notwithstanding the imperative of social and political rights, I argue for the political value of the ‘experiential right’. That is not a value quickly established; it requires the application of a cognitive ‘switch’ – what psychologists have referred to as the gestalt-switch, characterised perceptually by such phenomena as the ‘Rubin vase’ (see Rubin, Reference Rubin1949; cf. Lewis, this issue). The ‘switch’ here suggested is this: rather than cognizing the emergence of solidarity rights, as Vasak perceived them, as resting upon the prior advancement of social and political rights, I argue, on the contrary, that the advancement of such rights is constituted by the assertion, a priori, of the experiential right. The experiential right, in gestalt terms, is rather the ‘ground’ upon which is perceived the ‘figure’ of human rights.

To sum up concisely: this section has advanced the theoretical notion of the ‘experiential right’ as evidenced in the exemplary texts of a psychiatric survivor. The penultimate section clarifies the political value of that right within the context of the three generations schema outlined above. And it is with that clarification in mind that I turn now to the work of the French social theorist, Claude Lefort (Reference Lefort1986, Reference Lefort1988).

Claude Lefort and the ‘adventure of rights’

Lefort takes as his point of departure Marx's critique of 1844 apropos the discourse on human rights. Marx argued that, far from advancing a beneficent juridical claim, the discourse on the ‘rights of man’, as embodied in the Declaration of the French Assembly of 1789, in fact instated a capitalist ideology at the heart of the modern state. Why? For Marx, the discourse on rights was ideological precisely in that it presupposed that very ‘individualism’ upon which is simultaneously predicated capitalist social relations. Such ‘individualism’ contrasted with what Marx would later call our essentially ‘social being’ (Reference Marx, Marx and Engels1968: 182). Against the backdrop of this new awareness of rights, Marx argued canonically that:

– an indictment of human rights as an ideological smokescreen which remains recognisably Marxist today (e.g. ŽiŽek, Reference ŽiŽek2005). However, this was not a conception Lefort shared. As John Thompson has noted, Lefort's analytical strategy is measured to the extent that he ‘acknowledges Marx's insight as well as his blindness, the strengths . . . as well as . . . the simplifications’ contained in his thought (Thompson, Reference Thompson and Lefort1986: 2). According to this view, Marx's critique of human rights is one such ‘blindness’, so that what becomes imperative for Lefort is the need to ‘extricate ourselves from Marx's framework if we are to give the notion of . . . rights its full meaning’ (Reference Lefort1986: 245, emphasis added).

But how does Marx's ‘blindness’ arise? And how are we ‘to give the notion of human rights its full meaning’? Lefort provides a twofold response.

First, it is not only a question, as Vasak implies, of attaching a progressive historiography to the discourse on rights. According to that schema, solidarity rights are predicated upon ‘changing patterns of society in recent years’ (Reference Vasak1977: 30, emphasis added). Of course, Lefort is quick to acknowledge that Vasak's plea is historically grounded; as he remarks, ‘Marx's framework has been overtaken by the events of our time’ (Lefort, Reference Lefort1986: 248). Lefort was fully aware of the emergence of politicisations variously subsumed beneath the rubric of ‘new social movements’ (Crossley, Reference Crossley2002: 149–167) which, like psychiatric survivors, advanced characteristic identity-claims. Yet, Lefort's objections cut deeper than the post-modern mantra that Marx is passé. Lefort's strategy consists precisely in reading Marx against Marx, a strategy which bears upon the paradigmatic Marxian claim concerning the ‘ideology’ of human rights. With perspicuity, Lefort detects a ‘blindness’ in Marx: at one and the same time he (Marx) denounces the ‘bourgeois revolution’ (Lefort, Reference Lefort1986: 250) which subsumes both the discourse on rights and capitalist social relations; yet he is only able to do so by means of the self-same gestalt. This is Lefort's critique:

This announces his second point. Cognizing the ‘full meaning’ of rights, for Lefort, necessitates, not the ideology-critique at which ‘Marx excels’ (Lefort, Reference Lefort1988: 33), but, rather, an analysis rooted in the material practices of life, practices which contain also a symbolic dimension. In this sense, whilst he nevertheless reads Marx against Marx, Lefort remains true to the thesis of ‘social being’. To repeat: we must examine human rights ‘in practice’ if we are to approach Lefort's ‘full meaning’; if we are to truly appreciate the ‘profound changes they bring to social life’.

What are those changes? The emergence of rights constitutes what Lefort christens the ‘adventure of rights’ (Reference Lefort1988: 24/28/37). That ‘adventure’ is an ‘adventure’ of ‘social being’, or, better, to give it a historiographical thrust, an ‘adventure’ in ‘social becoming’ (see Crossley, Reference Crossley1996). How? We have to reckon with the ‘historical mutation’ of what Lefort dubs the ‘democratic revolution’, of which the discourse on human rights is a singular feature (Lefort, Reference Lefort1988: 36). This ‘mutation’ inscribed a series of ‘separations’ into the political field far more profound than the ‘separation of powers’ thesis familiar from liberal discourse. Rather, the ‘separations’ to which Lefort refers signify,

In the wake of the ‘democratic revolution’ the concept of ‘right’ is no longer isomorphic with ‘power’; no longer is it embodied in the ‘privileged space’ of Sovereign and State. Power has become, as Lefort observes, ‘deprived of a fixed point’ (ibid.: 256), propelled beyond the boundary of ‘privileged space’ to some place ‘new’; to a ‘public space’ for which ‘power’, far from being ‘fixed’, necessarily partakes in a ‘theatre of contestation’ (ibid.: 259).

Democratic consequences attend this ‘mutation’. For into that ‘gap’ between ‘power’ and ‘right’ flood a range of claims and assertions, based not on a power that is ‘fixed’ but on ‘new modes of thought and action’ (Lefort, Reference Lefort1986: 240, emphasis added), the ‘newness’ of which heralds the ‘adventure of rights’. True, these claims take the form of justiciable rights fully in accord with Vasak's generational schema. In a sense that should satisfy Bentham, these are, indeed, ‘real rights’ borne of ‘real laws’. But beyond these formal concerns (1988: 31/32), Lefort is at pains to reveal the discourse on rights as a discourse of ‘social becoming’; which is to say, he reveals it as it appears ‘in practice’ in a newly political field.

Again, reading Marx against Marx, Lefort re-reads the French declarations to disclose, not the Marxian critique, but the Marxian ‘blindness’; in each and every case for which Marx detects an ideological function – the rights to liberty, opinion etc. – Lefort counterposes a democratic demand. The point is ‘not so much what Marx sees . . . as what he is unable to find’ (1986: 249); namely, ‘the fact that any human action in the public sphere . . . necessarily links the subject to other subjects’ (ibid., emphasis added). According to this view, what subtends the adventure of rights is nothing less than a ‘new mode of access to the public sphere’ for which ‘freedom of opinion’ has not an ideological function, as it had for Marx, but is, rather, a ‘freedom of relationships’ (ibid.: 250, emphasis added); for it is ‘our right’, our ‘most precious right’ (ibid.), Lefort asserts, ‘to step out’ of ourselves ‘and to make contact with others through speech, writing and thought’ (ibid.: 250–1). Moreover, this ‘making contact’, this ‘circulation of thought and opinion . . . falls outside the authority of political power’ (ibid.) taking form in ‘centres that power cannot master’ (ibid.: 259).

Should we assert, then, with Bentham, that these are ‘real rights’ borne of ‘real laws’ – and that that exhausts the meaning of rights? Lefort disagrees. For him it could not be the case that justiciable law alone exhausted the meaning of rights. Of course, it is true that the ‘democratic revolution’ is a historical ‘fact’; it may be dated, named and its institutionalisations ‘listed’ (ibid.: 259–60). Yet, what this fails to subsume is an irreducibly symbolic dimension to the discourse on rights (Reference Lefort1986: 259; Reference Lefort1988: 38). Here, the ‘symbolic’, as Lefort deploys it, bears two meanings. It refers to the level of language and to the wider compass of ‘signs’ (see Cresswell, Reference Cresswell2005b) – hence, the centrality Lefort always assigns to the conjuncture of ‘communication’ and ‘right’ in the public sphere. What matters is not just the existence of rights, but their declaration ‘in practice’:

But, in a second sense, the ‘symbolic’ refers to a ‘theatre of contestation’, which is, frankly, ‘imaginary’. This meaning is not pejorative but refers, rather, to that element of ‘signs’ which, even in the presence of justiciable law, cannot be literally captured. Lefort's thinking is subtle on this point, but his meaning is clear. The ‘imaginary’ elements of a political regime contain elements which function as ‘generative principles’ (ibid.: 259–60). These are not in themselves justiciable and may even resist clarification: Lefort calls them ‘indefinable entities’ (ibid.: 272) and the examples he gives include ‘State’, ‘Society’, ‘the People’, ‘the Nation’ and, of course, ‘Human Rights’. The reason why such principles are ‘indefinable’ is that, for Lefort, the ‘public space’ which they occupy is simultaneously an ‘empty space’ (ibid.: 256, emphasis added) – in the ‘theatre of contestation’ their defining features are precisely that over which the contest is fought.

The upshot of Lefort's analysis is to erect a distinction between the ‘positive institutions’ (Reference Lefort1986: 260) associated with rights – the legal system backed by the state – and the symbolic dimensions which ‘animate’ (ibid.) them. These symbolic dimensions must be considered a priori in that they have ‘become a constitutive element of political society’ (ibid.: 259, emphasis added) and a ‘generative’ principle of rights (ibid.: 260). In short, we cannot have justiciable rights without the a priori ‘awareness of rights’ (ibid.). And that ‘awareness’ is not in itself justiciable, but is part of an adventure which is as much ‘symbolic’ as ‘real’. As Lefort concludes: the democratic adventure itself is not justiciable, ‘it is bound up with a way of being in society’ (ibid.: emphasis added).

Democracy and the claims of ‘experience’

The argument may now be concluded by returning to those ‘exemplary’ texts of the psychiatric survivor Peter Campbell in light of the social theory outlined above. The task is to incorporate into this analysis the theoretical concerns of Lefort and the ‘adventure of rights’. What does Lefort's ‘original account of the political forms of. . .society’ (Thompson, Reference Thompson and Lefort1986: 2, emphasis added) add to Vasak's three generations of rights schema and to our understanding of the politics of welfare and mental health? My conclusions will be both specific and general.

To be specific: the politics of mental health could not be cognized if we perceive that politicisation only as a contest over justiciable rights. Of course, it is that, and few would be so rash as to deny that the ‘theatre of contestation’ which in the field of mental health should include concerns with such matters as employment discrimination against ‘mental patients’, the protection of ‘patients’ against coercive treatment, the rights of access to health care etc. Psychiatric survivors need all the defences, all the opportunities provided by first and second generation rights, and they need them as any other citizen.

But, in this respect, Peter Campbell's texts are not only exemplary but salutary. What he calls the ‘madness-experience’ is not a justiciable right. It may be legitimised but this legitimation is not itself a question of law, it is a question of the politicisation of the mental health field. It is a solidarity forged through the alliance of those called ‘sane’ and those called ‘mad’ that legitimises the madness-experience and not the formulation of justiciable law. Spandler and Calton (in this issue), for instance, build a convincing case for what they call ‘psychiatric pluralism’ – alternative non-medical perspectives on the ‘madness-experience’ – based precisely upon solidarities forged between ‘critical practitioners’Footnote ³ and psychiatric survivors.

Lefort, for his part, saw equally clearly the role that legitimation plays within the more ‘symbolic’ dimension of rights. What he calls the a priori ‘awareness of rights’ is a game that is staged in a ‘theatre’ of language and signs, for which the stake of the game is precisely the contest over what is not now, but what may yet become, ‘legitimate’. The game is an adventure in social becoming; the outcome is unpredictable:

Now, this is, of course, a general point, and, in general, it tends to problematise the schema of the three generations of rights. This is not the same as saying that Vasak was wrong. It agrees with Tomuschat's and Bentham's concerns about the justiciability of the solidarity right. Solidarity is not a justiciable right. But whoever thought that it was? Solidarity is a political practice; it is a manifestation, as Lefort argued, of ‘a way of being in society’ (Reference Lefort1986: 260, emphasis added), a way of ‘being’ which is a priori to the justiciability of rights. All the papers in this issue argue, each in its own way, that psychiatry needs to discover a new way of ‘social becoming’ if it is to realise the democratic potential of ‘rights’.

In claiming this, I am not advancing an ahistorical thesis, much less an essentialist one. I am not saying that Vasak got his history wrong or that a human nature exists as a foundation upon which such rights may be based. Of course, the ‘rights of man’ were proclaimed then; later, the welfare state. And these, as Vasak knew, are progressive. We know very well the exclusionary practices of those original rights and the subsequent struggles for their reclamation (see Scott, Reference Scott1996; also Williams, Reference Williams1991), not least, as recent controversies over legislative reform in England and Wales demonstrate, in the field of mental health. What I am saying is that we get our historiography wrong if we assert that the claims of ‘experience’ are only emergent, that they emerge as the terminal-point of a teleological adventure. In this sense, the historiography of first, then second, then third generations is not so much false as misleading. Lefort's return, rather, to that zero-point of the discourse on rights, and to the dialogue with Marx, is salutary. His distinction between the ‘real’ of the institutionalisation of rights and the ‘symbolic’ domain for which an a priori ‘awareness of rights’ grants us the ‘right to have rights’, was always already present in that zero-point. It was not an ‘origin; but the historiography is inseparable from a more ‘symbolic’ domain.

The specific and the general entwine. We mislead ourselves if we believe that Campbell's concern with the ‘split experiential whole’ is paradigmatically post-modern. The lament of the fractured whole also was always already present in that zero-point. Both the ‘split’ and its desired reclamation is a constitutive moment in the democratic adventure. Campbell was protesting specifically – ‘[i]f my experience is not valued I cannot be whole’ – the general goal of a movement. But the fracture and the lament are always there, a symbol, as Lefort says, which ‘haunts’ democracy (Reference Lefort1986: 272) and a fracture which a politics of mental health has to progressively try to repair.