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HUMAN RIGHTS.
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Contrasting positions.... More...
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Paper Abstract:
Contrasting positions. The universality of rights and dignity of human beings. Human rights as an item of contemporary Western and Capitalist ideology. Based on essays in the book HUMAN RIGHTS: CONCEPTS, CONTESTS, CONTINGENCIES. Prominence of the subject of human rights in international affairs. Discusses various essays that deal with the rights of indigenous communities, cultural choice, evolving societies.
Paper Introduction:
HUMAN RIGHTS, UNCERTAIN BOUNDARIES
Human rights are inherently universal, based on the dignity of human beings, and binding on all governments or other exercisers of authority at all times. Alternatively, "human rights" is an item of contemporary Western and capitalist ideology, useful primarily as a stick with which to beat troublesome Third World states when they offend Western sensibility or (especially) Western interests.
These contrasting positions embody the international dialogue regarding human rights, at least on the level that gets reported in the mass media. The essays in Human Rights: Concepts, Contests, Contingencies, edited by Austin Sarat and
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Collier, an anthropologist with a background of fieldwork in Chiapas,contrasts its society four decades ago with that of the present day.Chiapas in the 196 s was largely isolated from the broader world. In fact, in a cosmopolitan and multicultural society we live in asort of soup -- amniotic, in Bhabha's expression -- in which there are noeither/ors, no clear boundaries of culture. Human-rightsorganizations figure prominently among the NGOs (non-governmentalorganizations) that have gained a sort of amicus curiae standing in theUnited Nations. The case for decolonization was posed largely in terms ofhuman rights; if some Asian political leaders have criticized human rightsstandards as Eurocentric, none would accept that (say) the West had a rightto express its distinctive cultural folkways through a new wave ofimperialism. Both concepts recognize an intermingling of rights with obligations,with spheres and sub-spheres that shade off into one another rather thanbeing sharply bound. (editors) (2 1). Few Africans would dream ofgoing to a judge to ask for a write of habeas corpus, even if it or itsequivalent is written into the law. 98). The question for the law -- whether put to formaladjudication in a courtroom or placed into a political arena -- is how tomanage the endless shadings where one person's or community's most vitalconcerns (that is to say, rights) blur into another's. In Africa as elsewhere, "thecourts follow the election returns," or more broadly the development andalignment of political forces. Thus her "revisiting" of Emile Durkheim; she is concernednot with formal legalism but with the concept of human rights as anoutgrowth of the same liberal tradition as capitalism, thus able as it wereto meet capitalism on its own intellectual grounds. In fact, it touches on arguably the central problem of law ina world at once diverse and increasingly bound together: How does the lawdeal with competing conceptions of what is right and just? In real life, states -- and still less smaller communities claimingrights of self-determination -- have no practical option to stand aside inautarkic isolation from the world. Security forces are scarcely answerable to civilauthorities, and citizens want nothing of the legal system and courts saveto stay as far away from them as possible. 48). The thrust of her argument, however, is much broader,applying potentially not only to the familiar understanding of self-determination as applied to national states, but to the meaning ofindividual rights and freedom as well. (Other obligations are only accepted by entryinto treaties, from which they can withdraw.) Young suggests that in anincreasingly interdependent world this model is no longer reallyapplicable. 41-42). Citing an article by Susan Okin,he raises cases in which defense attorneys have used a "cultural defense"argument on behalf of immigrants or other minority-group members accused ofcrimes such as rape or wife-murder. Cultures are notmonolithic, simply convenient shorthands for patterns of similar but notidentical human behavior. They are soft in that they lack roots, and often haveminimal day-to-day presence in much of their territory. However, as An-Na'im notes, "thereare indications of countertrends in popular resistance and local activismwithin civil society supported by some international actors and factors"(p. In "Two Concepts of Self-Determination" (pp. In these conditions, looking to legalmachinery for the protection of human rights is very largely ineffectual. 99). HUMAN RIGHTS, UNCERTAIN BOUNDARIES Human rights are inherently universal, based on the dignity of humanbeings, and binding on all governments or other exercisers of authority atall times. From the previous two essays, both primarily of general application,the book moves on to two others that deal primarily with particular cases,albeit with broader implications. Alternatively, "human rights" is an item of contemporaryWestern and capitalist ideology, useful primarily as a stick with which tobeat troublesome Third World states when they offend Western sensibility or(especially) Western interests. 72-73). They are "overdeveloped" in that,based on imposed colonial structures, they did not grow out of localconditions and institutions but appeared as a single, already-formedsuperstructure. Even if such states are not deliberately out to violate theircitizens' human rights, suggests An-Na'im, they are thus poorly constitutedto protect them. Choice itself exists in a fluid of time,and by its existence implies the possibility of making a different choiceat some other time. Even culture fails to provide firm boundaries, most obviously in thecases of immigrants, and of anyone living cheek-by-jowl with people ofother cultures, but globally as well, since globalization has placed almosteveryone cheek-by-jowl. Since that Arcadian time, Chiapas has been more integrated into thelarger economy; capital is now the limiting factor of production, so thosewith resources are motivated to obtain capital rather than spread theirwealth around. Status and prestige went to the generous, such as older men whoprovided young men with bride-prices, thus gaining the young men'sassistance in working their land (pp. He suggests forexample (citing Doriane Coleman) that the "cultural defense" argumentimplicitly denies the defendant the ability to choose whether or not toadhere to those parts of a culture that violate the criminal law (p. R. In one form or another, human rights has become a centralfeature of world discourse, and would command our attention for that reasonif no other. These contrasting positions embody the international dialogueregarding human rights, at least on the level that gets reported in themass media. Essentially, his essay is an argument that protection of humanrights must come ultimately and primarily out of the political processrather than through legal mechanisms as such. 63-88) deals with the role of "human rights" discourse in theevolving society of Chiapas, Mexico. At once, two quite reasonable propositions of rights wereplaced in conflict: that of the Goshutes to use their land in their ownbest interest, and that of their Utah neighbors not to be subjected to theunpredictable hazards of nearby nuclear-waste storage. Homi Bhabha, in "Cultural Choice and the Revision of Freedom" (pp. & Kearns, T. Whatever else can be said of human rights, the subject has becomeincreasingly prominent in international affairs. Her goal is less toend specific abusive practices as to use the language of human rights torestore the prestige of generosity in social relations to something likethe status it enjoyed in precapitalist Chiapas. The greater relevance of human-rights discourse, in Collier's view, is asthe appropriate corrective to a capitalist tendency toward selfishness andexploitation. 47). In addressing this problem, Young argues in essense that thetraditional understanding of self-determination, as originally applied tonation-states, is an atomistic one. Young is quite aware of thesebroader implications, but it is useful to start with the specific exampleshe uses. Collier views the formal politics of human rights in Chiapas withsome skepticism. The people of Chiapas seem in her account to view it in ahighly practical way; with only one exception, human-rights petitions in1966 involved asking help in getting people released from jail (pp. The role of immigrant, as Bhabha suggests, is an ambiguous one; is a"good" immigrant one who preserves his or her own culture, or who adoptsthat of the place immigrated into? Human Rights: Concepts,Contests, Contingencies, Ann Arbor, MI: University of Michigan Press.----------------------- 1 The issue here goes far beyond themere entanglement of liberals caught in a conflict of two cherishedprinciples. The outlook thus seems dismal. Kearns (Ann Arbor: University ofMichigan Press, 2 1), all seek in various ways to go beyond this simple(and simplistic) dichotomy to address the more complex realities of what wemean in speaking of human rights, and what role the human-rights discourseplays in international affairs and in the evolution of law. 82-83). In the late 199 s, the Skull Valley Band of Goshute Indians, in Utah,asserted that its communal right of self-determination allowed it to acceptpayment in turn for permitting a nuclear-waste storage site on Goshute land(pp. The pure sovereign state is as fictive asthe pure sovereign individual; in practice we all intrude on one another'sspheres all the time. Even if this were not the case, the firmness ofcultural boundaries would be largely illusory. Definingthis is obviously a matter of endless complexity, but the principle maycompactly be called one of federalism, and is closely akin to theconception of an individual's citizenship in republican theory. Indeed, it might be said that law itself arises todeal with such shadings-off; a world of isolate Robinson Crusoes, or onewith a single absolute despot, has no need of law. 25-44), Iris Young isconcerned not directly with the rights of individuals, but with those ofcommunities -- most specifically, the rights of so-called indigenouscommunities (such as Native American Indians on reservations) to self-determination. Associated with this premise is an argument that while the languageof human rights discourse may be distinctive to the post-EnlightenmentWest, the impulse toward individual and social justice is universal. Thelaw (at least liberal law) deals with choice; we do not sanction actionswhose consequences could not have been reasonably foreseen. In "The Legal Protection of Human Rights in Africa: How to Do Morewith Less" (pp. Neither individual human rights norcollective rights of self-determination can in the real world be taken asdefined in terms of impenetrable spheres within which individual (or group)freedom of action is absolute. Jane Collier, in "Durkheim Revisited:Human Rights as the Moral Discourse for the Postcolonial, Post-Cold WarWorld" (pp. As a result, argues Collier, social and economicinequalities have increased. In this culture, everyone has"the freedom to choose a cultural affiliation, the right to be free toconstitute or preserve a culture, or indeed to oppose it by exercising themoral 'right to exit'" (p. The essays in Human Rights: Concepts, Contests, Contingencies,edited by Austin Sarat and Thomas R. A state can do whatever it wisheswithin its territory, without outside interference, with no fundamentalobligation under traditional international law save to refrain fromattacking its neighbors. African states tend to be, as an-Na'im quotes Patrick Chabal,"both overdeveloped and soft" (p. Moreover, political and economic pressures inMexico have led the state to take a larger -- and largely repressive --role in Chiapas. Alongside this basic problem is another, the question of choice. Pigs are nolonger convicted and hanged, as being incapable of making bad choices aswell as any others. With well-publicized repression has come the attention ofMexican and international human-rights agencies. If any one proposition binds together the essays considered above, itis the haziness of boundaries. The task and fate of human-rights law, as of alllaw, is to wrestle in the uncertain zone where rights collide, seeking thebest resolution where it can and the "least worst" where it can find noother. But in the amniotic soup of modernsociety we are all immigrants, all drifting through and among ranges ofcultural options. Bhabha's essay (by far the densest and most abstractin the book) deals primarily with this question of choice. Thus,An-Na'im has less interest in the formal legalisms of human rights inAfrica (and by implication elsewhere) than in the social and politicaldevelopment that makes it possible for peoples to articulate their wish forjustice, in whatever language arises from their circumstances, and then toact on that desire. Reference Sarat, A. 45-62) begins with an arresting instance of the conflict between two liberalideas, human rights and multiculturalism. 89-116), Abdullahi An-Na'im address the problem ofsupporting the protection of human rights in weakly constituted Africanstates. In itssubsistance agriculture, the greatest shortage was of labor, with theresult that "workers' rights" had social support without ever being definedas such. Thus, suggests Young, self-determination should be understood not as absolute freedom fromnoninterference, but as freedom from dominating interference.
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