Human Rights in Global Perspective

Anthropological Studies of Rights, Claims and Entitlements

Jon P. Mitchell, Richard A. Wilson

• Publisher: Routledge
• Year: 2003
• ISBN:
  9781134409747
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Droits civiques en politique

In the West we frequently pay lip service to universal notions of human rights. But do we ever consider how these work in local contexts and across diverse cultural and ethical structures? Do human rights agendas address the problems many people face, or are they more often the imposition of Western values onto largely non-Western communities?
Human Rights in a Global Perspective develops a social critique of rights agendas. It provides an understanding of how rights discussions and institutions can construct certain types of subjects such as victims and perpetrators, and certain types of act, such as common crimes and crimes against humanity. Using examples from the United States, Europe, India and South Africa, the authors restore the social dimension to rights processes and suggest some ethical alternatives to current practice.

Chapter 1
Representing the common good

The limits of legal language

Kirsten Hastrup

The last decade has witnessed an intensification of a global process that might best be termed a ‘legalization of culture’, implying that the law is becoming the predominant and most articulate standard of value in many societies. Consequently, ever more social, political and cultural values are expressed in or measured by legal terms at the expense of other normative systems and public moral debates. The US, of course, is in the lead here. The law has become the centre of gravity in the American sense of ‘belonging’; it has replaced culture(s) as the means of inclusion or exclusion par excellence (Karst 1989). What is more, in the US the law literally has become soap opera, fuelling popular culture to an unprecedented extent (Porsdam 1999).

At an international level, this trend is also gaining momentum; public international law is now a standard by which one may measure the relative ‘quality’ of particular nation-states. Among other things, ‘belonging’ to the international community (of states) means endorsing human rights; human rights, therefore, are illustrative of the (global) process of legalization, and the inherent schisms between morality and law. They also demonstrate that, for all the power at addressing issues of right and wrong, the explication of justice and ethics in legal terms leaves out vast areas of moral agency. The aim of this contribution is to investigate some of the implications of legalizing the moral discourse with a view to a larger question of how to represent the ‘common good’, and how to link representation with practice. If the argument is of a rather general or abstract nature, other chapters in this volume (notably by Cowan and Ross) add ethnographic substance to my claims.

A global culture of human rights?

It has been claimed that we are now living in an ‘age of rights’ (Bobbio 1996); with this claim goes an image of a ‘global culture of rights’. We encounter this increasingly strongly articulated notion of a culture of rights in most recent statements made by the UN High Commissioner for Human Rights (1997–2001), Mary Robinson, as well as by academics of various kinds (e.g. Rorty 1993). From an anthropological perspective it is a peculiar culture in the sense that it is declared rather than lived, and that it is future-oriented rather than based in tradition (see Hastrup 2001c).

Attempts have been made at establishing a tradition by tracing the history of international human rights standards through a series of (western) declarations (e.g. Winston 1989; Hufton 1994). Allegedly, the human rights were in the making for centuries as ‘natural rights’, ‘rights of man’ and ‘rights of citizens’; this genealogical construction has a remarkably western bias that is not only counter-productive but also to some extent seems to belie the nature of the actual drafting of the Universal Declaration of Human Rights in 1948 (see Lindholm 1999). This declaration has been hailed as the first truly international document on human rights; as Vaclav Havel has said:

A number of diverse texts have played fundamental roles in human history. The Universal Declaration of Human Rights differs from all the others primarily in one respect: its impact has not been meant to remain confined within one culture or one civilization. From the very outset, it has been envisaged as a universal, so to speak planetary, set of principles to govern human coexistence, and it has gradually become the point of departure for countless successive guidelines defining the rules of a worthy life together for the people and nations of this Earth. Texts of such fundamental nature are not easily born.

(Havel 1999: 331)

In this particular case, the text was born out of the Second World War and, like all later documents, was deeply embedded in history. Even claims to universality are historical in this sense (see Hastrup 2001a). This also applies to a recent attempt at constructing a global genealogy for the Universal Declaration by way of insisting that human rights have multiple sources. As Mary Robinson had it in 1998:

Today the Universal Declaration of Human Rights stands as . . . one of the great documents in world history. The travaux préparatoires are there to remind us that the authors sought to reflect in their work the differing cultural traditions in the world. The result is a distillation of many of the values inherent in the world’s major legal systems and religious beliefs including the Buddhist, Christian, Hindu, Islamic and Jewish traditions.

(Symposium on Human Rights in the Asia-Pacific Region, January 1998)

We might want to argue that the ‘distillation’ of religious beliefs cannot be sustained historically, and that it simply sidesteps the issue of cultural diversity. Even so, it points to an ever present tension in human rights thinking between transcendent and historically embedded values; this tension should not simply be glossed over in a pragmatic insistence on the impossibility of grounding human rights philosophically and, therefore, to eschew their universality by reference to anything but their practical and sentimental value (e.g. Rorty 1993). Rather, the tension itself should be explored for the insight it provides about human life itself, likewise unfolding between a sense of shared knowledge and individual experiences. From our own discipline, anthropology, we know that the only way to make sense of cultural difference is to assume a shared humanity and a basic intelligibility (Hastrup 2002c). Instead of being trapped in the stale discussion between universalism and relativism as logically opposed and mutually exclusive, we have moved on to seeing universality and relativity as mutually implicated. This also goes for human rights.

It is no coincidence, therefore, that anthropologists do not feel the need to take a stand for or against human rights, as they used to do, favouring either universalism (often interpreted as Eurocentrism) or cultural relativism (seen as solidarity with the weaker populations of the globe). Anthropology itself, by insisting on and substantiating the fundamental intelligibility of all humans across cultures, has contributed immensely to paving the way for a universal standard of morality. In a recent discussion of the creation of a universal morality, Zygmunt Bauman draws the attention to the point once raised by Roland Barthes that the substance of myth is to represent history as nature, that is to cast the human-made as the unquestionable, and Bauman suggests that ‘the myth of universal human rights is no exception’ (Bauman 1999: 9).

This particular myth is very much a symptom of the historical process of globalization that has itself become naturalized along with the general diagnosis of a postmodern time–space compression. Allegedly, due to this compression people have come to experience worldwide suffering at close range; this has not led to more compassion for fellow humans, however. This apparent paradox is related to the creation of new techniques of distancing; as we know distance always carries its own moral implications (see Ginzburg 1995; Hastrup 2002b). In actual fact, globalization not only connects but also disconnects people from each other. Somewhat paradoxically, the satellite-borne images of sufferers elsewhere on the globe tend to fix them as eternal ‘others’ rather than ‘like us’, to take an example that is partly explicable in terms of the contrast between visual and textual representation (Hastrup 1992).

Intellectuals likewise contribute to the dehumanization of the global space by repeatedly referring to the process of globalization as if devoid of human agency, and we might be well advised to thoroughly consider the conceptual responsibility of intellectuals with respect to the implications of globalization (see Hastrup 2002a). It seems to me that globalization has turned into a kind of ‘globalism’ among intellectuals that leaves the old notion of Orientalism (Said 1979) nothing wanting. Like Orientalism, globalism remains an external perspective upon the world, sustained by metaphysical realism and denying people both history and agency. This contributes negatively to the sense of a shared human responsibility, and thus, arguably, to the increasing propagation of the global culture of human rights. There are no responsible human agents in the globalist world-view; only states (and now increasingly multinational firms and corporations) are responsible actors in the world of human rights. There are decisions made somewhere in the world that have effects elsewhere; there are collapses in the stock exchange that affect prices worldwide; there are cybercities and internetworks, satellite communication and commerce in futures; and there are international courts of human rights taking states to task for their performance vis-à-vis their citizens. All this, I would argue, contributes to the distancing of people from their own histories, much in the same manner as the imperial topography did.

Thus, we should be careful not to equate globalization with an idea of global compassion; likewise, to proclaim a global culture of human rights may actually alienate people from their own horizon of a truly moral agency. Anthropologists have attempted to add life and texture to the human rights discussion by reverting to local experiences of injustice and violence (e.g. Wilson 1997 and various contributions to this volume). There is another lesson to take, however, namely that the idea of a transcendent culture of human rights is an integral part of the historical moment; it both expresses a global outlook and reacts against its obvious inequalities. Expression and reality are not simple reflections of each other, as the modernists would have it, to express a global culture in legal terms not only jeopardizes a sense of agency, it is also to accept a very ‘thin’ description of morality and human values. This shall now be substantiated further.

Speaking law

In modern legal thinking, dating back to Montesquieu, whose work The Spirit of the Laws (first published in 1748) has been extremely influential in Europe, there is a latent schism between natural and positive law. Montesquieu defines laws, in the broadest sense, as ‘the necessary relations deriving from the nature of things’ (1989: 3), and he goes on to define natural laws as those that derive uniquely from the constitution of our being, listing the quest for peace as the first natural law, the seeking of nourishment as the second, the entreaty between the sexes as the third, and, finally, the desire to live in society as the fourth natural law (ibid.: 6–7). Once this last desire is fulfilled the need for positive laws arises:

As soon as men are in society, they lose their feeling of weakness; the equality that was among them ceases, and the state of war begins.

Each particular society comes to feel its strength, producing a state of war among nations. The individuals within each society begin to feel their strength; they seek to turn to their favor the principal advantages of this society, which brings about a state of war among them.

These two sorts of states of war bring about the establishment of laws among men. Considered as inhabitants of a planet so large that different peoples are necessary, they have laws bearing on the relation that these peoples have with one another, and this is the right of nations. Considered as living in a society that must be maintained, they have laws concerning the relation between those who govern and those who are governed, and this is the political right. Further, they have laws concerning the relation that all citizens have with one another, and this is the civil right.

(Montesquieu 1989: 7)

The extensive quotation from Montesquieu goes to show how, in fact, his (dual) legal programme still seems to govern present-day human rights thinking, equally spanning from the right of nations to civil rights, and legitimizing the positive legal ruling by reference to a natural law principle. The latter is a precondition for the claim to universality as expressed for instance in the Universal Declaration of Human Rights:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

(UDHR, Article 1)

This Article is well known, and my point in quoting it here is simply to show how the human rights instruments point to a transcendental human nature expressed in terms of social values that are thereby naturalized. This is not the only instance of natural law surfacing in the positive legal instruments. The schism between natural law and positive law has divided human rights thinkers in two major groups, both of which find support in the human rights documents themselves. While the articles of the various conventions generally tend to stress the aspect of positive law, the preambles more often than not provide the philosophical or moral underpinnings of these.

Whether natural or positive, Montesquieu saw the law as the mouth or the voice of society, i.e. the means by which the implicit relations and values were externalized. This also seems to be one of the driving forces of human rights talk; it has even been claimed that ‘human rights only exist because they are talked about’ (Dembour 1996: 22). The important point is that any discourse, including the legal discourse, is a creative speech which may bring into existence that of which it speaks. Language produces existence by producing the collectively recognized, and thus realized, representation of existence (Bourdieu 1991: 42). Moreover, language, including legal language, still has a distinct quality of address that should not be overlooked; the arbitrary signs derive their signification from actually being addressed (Lyotard 1993: 137). Human beings are bound together in a speech community; there can be no sense of self or of worth outside a conversational community by which a moral horizon is established (Taylor 1989). From this perspective, ‘speaking the law’ may actually take us part of the way towards a realization of the values of human dignity and equality inherent in the human rights conventions. The South African Truth and Reconciliation Commission is a case in point (see Ross, this volume)

It does not take us there by itself, of course. It must be addressed both in the right places and in the right way. And here we face a new problem in that the international legal language, including the language of human rights, translates social, cultural and economic differences into differences in ‘linguistic’ competence. In the process of producing a legitimate, standardized language, sociologically and historically pertinent differences of various kinds are expressed in different uses of the same language and are evaluated accordingly. People will show more or less competence of expressing their rights within the idiom of international legal language, which now functions as the legitimate representation of a global moral economy.

This is where social scientists should become more aware of the nature of language itself. Language never directly represents the social, nor is it simply the handmaiden of reason. It has its own logic and rules of operation that have their own symbolic effects on society. As Bourdieu has reminded us:

language is the exemplary formal mechanism whose generative capacities are without limits. There is nothing that cannot be said and it is possible to say nothing. One can say everything in language, that is, within the limits of grammaticality. We have known since Frege that words can have meaning without referring to anything. In other words, formal rigour can mask semantic freewheeling.

(1991: 41)

Legal language and rights talk may externalize implicit values and potentially bind people together in a speech community, but the possibility remains that the language spoken is semantically empty, because the words refer to no actual experience. The language remains form without substance. The (possible) lack of substance may persist and may even pass unnoticed because the process of externalization implied in the speaking of the law is never a simple process of representation. As Bourdieu (once again) reminds us:

[M]oving from the implicit to the explicit, from one’s subjective impression to objective expression, to public manifestation in the form of a discourse or public act, constitutes in itself an act of institution and thereby represents a form of officialization and legitimation: it is no coincidence that . . . all the words relating to the law have an etymological root meaning to say. And the institution, understood as that which is already instituted, already made explicit, creates at one and the same time an effect of public care and lawfulness and an effect of closure and dispossession.

(Bourdieu 1991: 173)

Thus, the mere fact of voicing the law is also an act of instituting it and of demarcating right from wrong. In the process, people and acts are included or excluded from a particular social space and its instituted legitimate language. To fill in the empty space of the common good with meaning, we shall pursue the discussion of legal representation.

Representing morality

Any culture in some ways rests on representation; for it to be conceivable as a whole, it must be demonstrated as such. In a ‘legal culture’, such as the international culture of human rights, the representation becomes of a particularly reductive kind, because the experiences, by being represented as if on permanent trial in a courtroom, become subjected to an unavoidable process of reduction, or a ‘skeletonization of fact, the reduction of it to the genre capacities of the law note’ (Geertz 1983: 172).

The limiting genre capacities are accompanied by a feature of specialism. Legal language is a language of specialists; as such it is marred by a feature of distortion that goes with all specialist languages. As Bourdieu has it:

The specialized languages that schools of specialists produce and reproduce through the systematic alteration of the common language are, as with all discourses, the product of a compromise between an expressive interest and a censorship constituted by the very structure of the field in which the discourse is produced and circulates.

(Bourdieu 1991: 137)

Both expressive interest and the feature of censorship are found within the increasingly self-righteous human rights discourse, where the appeal to rights sometimes leads ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contributors
• Acknowledgements
• Introduction
• Chapter 1: Representing the common good
• Chapter 2: Two approaches to rights and religion in contemporary France
• Chapter 3: This turbulent priest
• Chapter 4: Legal/illegal counterpoints
• Chapter 5: Anthropologists as expert witnesses
• Chapter 6: Voices from the margins
• Chapter 7: The uncertain political limits of cultural claims
• Chapter 8: Using rights to measure wrongs
• Chapter 9: Reproduction, health, rights
• Chapter 10: Rights and the poor
• Chapter 11: The rights of being human