Rights in Context

Law and Justice in Late Modern Society

Reza Banakar

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317062943
• Edition: 1
• Topic: Jura
• Subtopic: Rechtswissenschaft

This volume offers snapshots of how rights are debated and employed in public discourse to reshape legal and political relations at the beginning of the twenty-first century. It explores how rights are used to challenge the state of affairs by individuals and groups who seek justice, and the strategies devised to defy the existing rights by those who wish to recast the social and political order. This volume discusses rights, firstly, in relation to actual events and issues faced by policy-makers, courts, international agencies, or ordinary people. These range from the demands of minority groups living in the West to freely practice their culture and/or religion, to the threat of terrorism, the regulation of asylum rights, the investor's rights to disclosure and the rights of artists to freedom of expression. Secondly, rights discourse is examined in relation to attempts to redefine the form and content of rights, for example, by banning the right to wear religious symbols in public institutions or detaining terrorism suspects without trial. Thirdly, rights discourse is explored in connection with the attempts to develop new notions of rights, such as 'human security', which can more effectively respond to the challenges of late modern societies. Finally, the statuses of rights in sociological theory and socio-legal research are briefly discussed and analysed.

Chapter 1
Law, Rights and Justice in Late Modern Society: A Tentative Theoretical Framework

Reza Banakar

The rights discourse is an integral part of the highly dynamic social process through which the content and boundaries of social norms are negotiated, and social relations, practices and institutions are created over time. These norms, relations, practices and institutions are parts of the interconnected networks of socio-cultural communications, economic exchanges and political and military interdependencies that transcend the traditional national and cultural boundaries and spaces of sovereign states. Various chapters in this collection bear witness that the rights discourse is no longer contained by local conditions and factors belonging to one society, one culture or one nation state. Today, states no longer hold the monopoly on regulating many of the social and economic relationships that traditionally fell within their jurisdiction,1 which has long-term implications for the way we conceive of, define and study the relationship between law (in terms of the sovereign state) and society (in terms of locally constructed relationships, practices, cultures and institutions).2 As William Twining points out, we can no longer offer an adequate account of law in the modern world without paying ‘some attention to the significance of transnational nongovernmental organisations […] to people that are nations without states […] to organised crime, liberation movements, multi-national companies, transnational law firms and significant classes such as herds of displaced persons […]’.3

The chapter by Hanne Petersen, in which she suggests that responsibility to others outside our own locality, community and country should replace the traditional forms of rights, and the discussions by Emma McClean regarding human security, provide clear examples of how rights are used to reconstruct new global societies or, to put it differently, to globalize societies internally. Similarly, the rights of terrorism suspects, the right to wear the hijab in public institutions or the need to protect victims of genital mutilations, discussed in several chapters, bring into sharp focus the cross-cultural and cross-national aspects of many of the moral and political issues in our contemporary societies. Under late modernity, most locally debated political and moral issues have global dimensions, which require taking into consideration other people with divergent socio-political systems in other places. This does not mean that any conversation about rights is necessarily of global or international character, but that the intensification of interrelationships, the growing interdependence of people living in different parts of the world and the changing character of the nation state influence and shape the way in which rights are debated and employed. Neither does this imply that universal solutions can be devised to tackle social problems at local levels. Instead, as this collection demonstrates, the rights discourse needs to be socio-culturally contextualized.

Notwithstanding the importance of the notion of rights in potentially linking the spheres of law, politics and justice, the sociological studies of law have traditionally been hesitant in conceptualizing and exploring rights as a normative construct.4 The sceptical attitude of sociology towards rights is demonstrated in Chapter 2, where Max Travers examines the debate between Turner and Waters, and further illustrated in Chapter 10, where Sarah Dreier describes social structures and existing interests and relationships, rather than a consideration of normative claims raised by rights, as the primary justification and motivation for decision making. Sociology might, as it is argued by Travers, run into difficulties when constructing an ontological theory of rights, but it remains in need of a general theory that explains the varying functions of rights in the global settings of late modernity.

What follows is an attempt to produce a tentative theoretical framework for situating and interpreting the various debates we encounter in this collection. This chapter starts by introducing the notion of late modernity as the second stage in the development of modern society, when the foundations and the structural makeup of industrial society are transformed and a radical form of modernity is born. At this stage, many relationships and their corresponding rights and duties, which are defined and regulated traditionally by the nation state, are undermined by the intensification and expansion of economic, political and cultural interrelationships across the globe. It then goes on to argue that since social systems such as law, polity and economy can no longer fully respond to the moral diversity in their environments, rights are increasingly invoked through law to replace the discourse on moral issues that question the foundations of our form of social organization. However, rights employed through law become ‘juridified’, losing their emancipatory power and moral significance for reconsidering social relationships. The chapter ends by returning to various discussions in this volume, demonstrating the need to study the rights discourse in the context of ongoing political resistance and struggles in society.

As pointed out in the introduction, ‘late modernity’ is employed here in a narrow sense to explore the consequences of the conquest of neo-liberalism and the spread of global market economy. Our focus will be on how globalisation brings about higher levels of uncertainty and gives rise to new forms of inequality, while transforming the ostensibly solid and timeless social structures of early modernity (those of the state in particular). This chapter recognises the growing ‘liquidity’ in society and the dissolution of certain (but not all) social relationships and structures of early modernity, but does not assume that ‘liquid society’ provides an adequate description of the present society where many social institutions retain their apparent ‘solidity’ and durability.

Late Modernity and its Threats

The collection of chapters in this volume reflects, momentarily as it might be, how policy-makers, lawyers, journalists and citizens negotiate and renegotiate the normative content, boundaries and forms of rights in political and legal settings, which are characterized by increased cultural diversity, the social breakdown of traditional social class structures and identities, and the changing role of the nation state. One way to examine and understand these negotiations in their totality is to place them in the context of late modernity, when territorially-based social relations, networks and communications distinctive of a nation state are undermined by ‘a new kind of capitalism, a new kind of economy, a new kind of global order and a new kind of personal life’.5 Late modernity draws our attention to the socio-political consequences of the world economy’s shift from local manufacturing economies to global service economies. This shift is made possible by two apparently unrelated events: the advancements in electronic technology that facilitate and enhance communications across national borders and cultural boundaries; and the collapse of the East European socialist economies, which gave free reign to market economy forces. Worldwide marketplaces have, thus, emerged over the last few decades, as national policies restricting the movement of capital and labour across borders have been either removed or liberalized, allowing firms to base ‘individual productive activities at the optimal world locations for the particular activities’.6 The globalization of production has, in turn, triggered off several interrelated processes at the local level, transforming many of the operations performed by nation states.

As transnational and global forces emerge and reshape political and legal landscapes across nations, we observe a move from the welfare-oriented social and legal policies of the 1960s and 1970s, when an excessive ‘juridification of the social sphere’7 was carried out in many Western countries in order to reform social conditions, to legal forms of regulation more concerned with managing risks than addressing the causes of social problems. The shift to risk management strategies is often explained by reference to the inability of late modern social systems and institutions (such as law, economy and polity) fully to respond to and control the increasing complexity of moral conflicts arising out of the ‘unforeseen consequences of functional differentiation’ by further functional differentiation.8 Parallel to this development, we witness the rise of global problems such as environmental pollution, climate warming, war, terrorism, famine and pandemics, to mention a few. These are caused by anonymous transnational forces that do not lend themselves to simple risk calculations or policy regulation and, as pointed out by von Wright, lack an obvious unity or purposeful coordination – ‘do not form a unified system or order’ – and are subsequently difficult to identify.9 Hence, for Bauman, they represent the ‘new world disorder’:

[N]o one seems to be in control. Worse still – it is not clear what “being in control” could, under the circumstances, be like. As before, all ordering initiatives and actions are local and issue-oriented; but there is no longer a locality arrogant enough to pronounce for mankind as a whole. Or to be listened to and obeyed by mankind when making the pronouncements. Neither is there a single issue which could grasp and telescope the totality of global affairs while commanding global consent.10

A decade after Bauman wrote these lines, we could witness the unfolding of one aspect of this ‘new world disorder’ in the events leading to the recent global economic meltdown, the so-called ‘credit crunch’, discussed by Joseph Tanega in Chapter 16. In Fool’s Gold,11 Gillian Tett, a social anthropologist working as a financial journalist who was given access to the inner circles of the elite bankers, describes how the ‘tribe’ of young traders at JP Morgan unleashed forces that caused the near collapse of the global financial system. This young group of investment bankers was largely responsible for engineering a sophisticated financial product that came to be known as the credit derivative, which enabled them to reduce the capital reserves required for lending money to investors. The innovative use of derivatives took risk off their books, packaged it as ‘securities’ and then sold it on in the market for high fees, thus dispersing the risk of financial system excesses around the globe. Derivatives were a form of financial instrument capable of bringing security to global finance. However, as their application spread across the sector and other banks such as Citigroup, USB, Deutsche Bank and Merrill Lynch also adopted them, this instrument inevitably got into the wrong hands and was perverted by arrogant, reckless, deluded and greedy investment bankers. The largest application of derivatives was in sub-prime mortgages, which allowed the repackaging of loans to homeowners who failed to meet the usual requirements into bonds for sale on an industrial scale. What was started by a group of young traders at JP Morgan quickly cascaded into a full-scale financial crisis of global dimensions, a crisis no one had any control over, least of all the governments of the US and West European countries. They could only step in once the international economic crisis was in full bloom to bail out the investment banks with hundreds of billions of dollars of taxpayers’ money to avoid a collapse of their national economies.

The notion of late modernity as it is employed in this chapter refers to this new sense of (dis)order, the realization that no single nation state or specific interest group is any longer in charge. No single nation state was in control under the first stage of modernity either, but ideological polarization at international level, confrontation between the socialist and capitalist models of economy that united and divided many countries under one or the other ideological banner, together with locally-based production and policy-making, gave the appearance of direction and purpose to national and international forces.12 It is this sense of direction, purpose and control over one’s jurisdiction that has been lost under late modernity.

The nation state has not withered away and national borders continue to pose obstacles to the movement of people, yet their operations have changed qualitatively; they impede the movement of migrants from the South while facilitating the movement of labour, capital and tourists. How the nation state changes in response to the emerging international and transnational forces it partly promotes (for example, in the cases of trade, movement of capital and labour) and partly impedes (in the cases of anti-globalization movements, terrorism and migration from the South) is discussed in several chapters in this volume. Hanne Petersen discusses, for example, the inability of the Danish state to continue guaranteeing the welfare rights of its citizens; Emma McClean criticizes the inadequacy of nation states in protecting individuals from fear and want, and Joxerramon Bengoetxea and Niilo Jääskinen examine how, under certain conditions, EU directives circumvent the authority of member states, regulating the rights and legal positions of the citizens of EU member states.

At the local level, late modernity marks and explains the failure of welfare ideology, which originally required an omnipotent nation state to realize its vision of a better society, that is, a welfare society that guaranteed a minimum standard of living, education, health care and employment for all its citizens. At the risk of oversimplification, the modern welfare state was characterized by governmental regulation, often carried out by introducing legal measures aimed at enhancing social integration through a fair allocation of resources, duties and responsibilities. The state was seen as a potential force for good, capable of reorganizing social conditions for the better by legally regulating social and economic relationships. In contrast, late modernity is characterized by governmental deregulation and system integration through the market economy, which is achieved by facilitating two apparently separate, but on closer inspection interrelated and corresponding, processes. These are achieved at global and local levels by: 1) promoting the rise of tr...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• List of Contributors
• Acknowledgements
• Introduction: Snapshots of the Rights Discourse
• 1 Law, Rights and Justice in Late Modern Society: A Tentative Theoretical Framework
• PART I THE CRITIQUES OF RIGHTS
• PART II THE CHALLENGES OF RIGHTS
• PART III THE STRATEGIES OF RIGHTS
• PART IV THE RECONSTRUCTION OF RIGHTS
• Index