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Jose Manuel Barreto Human Rights From A Third World Perspective Critique History and International Law 2013
Jose Manuel Barreto Human Rights From A Third World Perspective Critique History and International Law 2013
Edited by
José-Manuel Barreto
Human Rights from a Third World Perspective:
Critique, History and International Law
Edited by José-Manuel Barreto
All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system,
or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or
otherwise, without the prior permission of the copyright owner.
‘The future demands thinking beyond the Greeks and Eurocentrism’ and ‘a radical
reconceptualisation of the human rights paradigm’
—Walter Mignolo
TABLE OF CONTENTS
Acknowledgements ..................................................................................... x
Introduction ................................................................................................. 1
Decolonial Strategies and Dialogue in the Human Rights Field
José-Manuel Barreto
Chapter One............................................................................................... 44
Who Speaks for the “Human” in Human Rights?
Walter Mignolo
Contributors............................................................................................. 441
The editor and the publishers would like to thank the following for
permission to reprint their material:
The Johns Hopkins University Press for permission to reprint Susan Eileen
Waltz, 2001: “Universalizing Human Rights: The Role of Small States in
the Construction of the Universal Declaration of Human Rights.” Human
Rights Quarterly 23:1, 44-72. © 2001 The Johns Hopkins University
Press.
JOSÉ-MANUEL BARRETO
A dog trained to attack the flesh, and torture, kill, and gorge a man and
a child in front of the mother connects Fernando Botero’s Abu Grahib
with Bartolomé de las Casas’ Short Account of the Destruction of the
Indies. In this scenario of colonial wars a dog is turned into a beast—a
torture dog or a war dog—by the inhumanity of conquistadors and
invaders. The dog becomes a powerful machine for terrorizing and
destroying the body, and for dehumanizing the colonized—and the
colonizer. Five hundred years apart these two images or stories are bind
together by their origin: the history of the advance of modern imperialism,
and the sensibility of their authors for the suffering of the victims. The
violence and dread of these events resonates in the global consciousness
and moral sentiment of our times. It is the drive for survival and dignity,
the consciousness about the imperative for independence and justice, and
the sympathy for the victims what has brought natural or human rights to
bear the force of such a capacity for destruction.
1
Jill Bennett, Empathic Vision: Affect, Trauma, and Contemporary Art (Stanford:
Stanford University Press, 2005).
Decolonial Strategies and Dialogue in the Human Rights Field 3
2
Arturo Escobar centers his analysis of the main features of Decolonial Theory in
the re-conceptualization of the conventional notion of modernity. See Arturo
Escobar, “Worlds and Knowledges Otherwise,” Cultural Studies 21 (2007).
3
Walter Mignolo, “The Geopolitics of Knowledge and the Colonial Difference,”
The South Atlantic Quarterly 101 (2002), 59 & 63-74.
4 Introduction
4
Walter Mignolo, “Philosophy and the Colonial Difference,” in Latin American
Philosophy, ed. Eduardo Mendieta (Bloomington and Indiana: Indiana University
Press, 2003), 85.
5
Walter Mignolo, “The Many Faces of Cosmo-polis: Border Thinking and Critical
Cosmopolitanism,” Public Culture 12 (2000): 739.
6
Balakrishnan Rajagopal has examined the capacity of human rights for working
as a counter-hegemonic force in world politics. See B. Rajagopal, “Counter-
hegemonic International Law: Rethinking Human Rights and Development as a
Third World Strategy,” Third World Quarterly 27 (2006), 767-783. In the same
horizon of questioning see U. Baxi, “What may the ‘Third World’ Expect from
International Law?” Third World Quarterly 27 (2006), 713-725; O. Chinedu,
“Poverty, Agency and Resistance in the Future of International Law: An African
Perspective,” Third World Quarterly 27 (2006), 799-814; I. Mgbeoji, “The
Civilised Self and the Barbaric Other: Imperial Delusions of Order and the
Challenges of Human Security,” Third World Quarterly 27 (2006), 855-869; and
V. Nesiah, “Resistance in the Age of Empire: Occupied Discourse Pending
Investigation,” Third World Quarterly 27 (2006), 903-922. More recently,
Sundhya Pahuja, Decolonising International Law: Development, Economic
Growth and the Politics of Universality (Cambridge: CUP, 2011).
7
James Brown-Scott, The Spanish Origin of International Law: Francisco de
Vitoria and His Law of Nations (Oxford: Clarendon Press, 1934).
8
Carl Schmitt, The Nomos of the Earth in the International Law of Jus Publicum
Europaeum (New York: Telos Press, 2006).
9
David Kennedy, “Primitive Legal Scholarship,” Harvard International Law
Journal 27 (1986), 1-98.
Decolonial Strategies and Dialogue in the Human Rights Field 5
10
Antony Anghie, ‘Colonial Origins of International Law’, in E. Darian-Smith and
P. Fitzpatrick, eds, Laws of the Postcolonial (Ann Arbor: University of Michigan
Press, 1999), 89-90. This debate has been enriched by contributions from scholars
such as Fitzpatrick, Kochi and Koskenniemi, who work from the perspective of the
European Critical Legal Studies. Peter Fitzpatrick, “Latin Roots: Imperialism and
the Making of International Law,” in Law as Resistance: Modernism, Imperialism,
Legalism (London: Ashgate, 2008). Tarik Kochi, The Other’s War: Recognition
and the Violence of Ethics (London: Birkbeck Law Press, 2009). Martti
Koskenniemi, “Colonization of the ‘Indies’: The Origin of International Law?” in
La idea de América en el Pensamiento Ius Internacionalista del Siglo XXI, ed.
Yolanda Gamarra (Zaragoza: Institución Fernando el Católico, 2010), and “Empire
and International Law: The Real Spanish Contribution,” University of Toronto Law
Journal 61 (2011), 1-38. Koskenniemi includes within this tradition the work of
Ernest Nys, in particular his Les Origins Du Droit International (Charleston: Nabu
Press, 2012).
6 Introduction
11
Peter Beardsell, Europe and Latin America: Returning the Gaze (Manchester:
MUP, 2000), 35-37.
12
The question of Eurocentrism has also been seen as a relevant issue for
international law from a European perspective. See Martti Koskenniemi, “Histories
of International Law: Dealing with Eurocentrism,” Rechts Geschichte-Zeitschrift
des Max-Planck-Instituts für europäische Rechtsgeschichte 19 (2011), 152-176.
13
Arturo Escobar, “Imperial Globality and Anti-Globalisation Movements,” Third
World Quarterly 25 (2004): 210.
14
G.W.F. Hegel, The Philosophy of History (Mineola: Dover Publications, 1956),
8-102.
Decolonial Strategies and Dialogue in the Human Rights Field 7
15
Enrique Dussel, “Democracy in the ‘Center’ and Global Democratic Critique,”
in Democracy Unrealized. Documenta 11 Platform 1, ed. O. Enwezor et al.
(Ostfildern-Ruit: Hatje Cantz Publishers, 2002), 274.
8 Introduction
16
Richard Rorty, “Inquiry as Recontextualisation: An Anti-Dualist Account of
Interpretation,” in Objectivity, Relativism and Truth. Philosophical Papers I
(Cambridge: CUP, 1991), 99 & 110. See also Richard Rorty, “Is Derrida a
Transcendental Philosopher?” in Essays on Heidegger and Others. Philosophical
Papers II (Cambridge: CUP, 1991), 127.
17
This is the case with Rorty who states that we live in a Post-Holocaust human
rights culture. Richard Rorty, “Human Rights, Rationality and Sentimentality”,
115. In a similar sense, Costas Douzinas writes that ‘ours is the epoch of massacre,
genocide, ethnic cleansing, the age of the Holocaust’. Costas Douzinas, Human
Rights and Empire. The Political Philosophy of Cosmopolitanism (Abingdon:
Routledge-Cavendish, 2007), 71. For a critique of the Post-Holocaust interpretation
of human rights see José-Manuel Barreto, “Human Rights and the Buried Crimes
of Modernity,” in Critical International Law: Post-Realism, Post-Colonialism, and
Transnationalism, ed. Prabhakar Singh and Vik Kanwar (New Delhi: Oxford
University Press, forthcoming 2013).
18
Jurgen Habermas, The Philosophical Discourse of Modernity (Cambridge: MIT,
1990), 17.
Decolonial Strategies and Dialogue in the Human Rights Field 9
19
Santiago Castro-Gómez, La Hybris del Punto Cero. Ciencia, Raza e Ilustración
en la Nueva Granada, 1750-1816 (Bogotá: Editorial Universidad Javeriana, 2005).
10 Introduction
Unveiling the extended world of modern human rights does not end
here. Areas ripe for a new comprehension of human rights can be found
even inside the West—although in the margins of the established tradition.
This is the case with Heidegger’s critique of Western rationalism and his
inheritors. Woessner counts among them Jan Pato ka and Václav Havel—
leaders of the movements for democracy that put an end to communist
totalitarianisms in Eastern Europe. Charles Malik and Dipesh Chakrabarty
also make use of Heidegger’s concepts, but they do it from the standpoint
of the Third World or the subaltern. Heidegger, the Nazi sympathizer, is at
odds with human rights projects, but his philosophical critique of
modernity and modern thinking has nurtured struggles for rights in all
parts of the world.
20
Upendra Baxi, The Future of Human Rights (Delhi and Oxford: OUP, 2002)
21
Jurgen Habermas, “The Concept of Human Dignity and the Realistic Utopia of
Human Rights,” Metaphilosophy 41 (2010): 464-80.
12 Introduction
22
Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and
Historical Difference (Princeton: Princeton University Press, 2008).
23
Ibid., 16.
24
Ibid., x & xi.
Decolonial Strategies and Dialogue in the Human Rights Field 13
25
William Twining, Globalization and Legal Theory (London: Butterworth, 2000);
William Twining, General Jurisprudence: Understanding Law from a Global
Perspective (Cambridge: CUP, 2009).
26
Twining, Globalization and Legal Theory, 136-173.
27
Ibid., 194-244. Boaventura de Sousa Santos, Towards a New Common Sense
(London: Routledge, 1995).
14 Introduction
time only with those who belong to the same theoretical tradition or those
living and working in the same Western-wide local parish. Twining not
only bears witness to the shortsightedness of Western jurisprudence, but
also points to the futility and inconsistency inherent in an insular thinking
that claims to be universal:
28
Twining, Chapter 9. Aníbal Quijano who, together with Enrique Dussel and
Walter Mignolo set the foundations of “Decolonial Theory”, offers a similar
critical insight: “Nothing is less rational… than the pretension that the specific
worldview of a particular ethnie should be taken as universal rationality, even if
such an ethnie is called Western Europe… [this would be just] to impose a
provincialism as universalism.” Aníbal Quijano, “Coloniality and Modernity/
Rationality,” Cultural Studies 21 (2007): 177.
29
Immanuel Kant, “Idea for a Universal History with a Cosmopolitan Purpose,” in
Political Writings (Cambridge: CUP, 1991). The question of the best translation of
the title of this work can further illustrate the difference between the two possible
meanings of the words ‘cosmopolitan perspective’. There is another popular
rendition into English of the same text that can be misguiding: “Idea of a Universal
History from a Cosmopolitan Perspective”. This title literally suggests that Kant
Decolonial Strategies and Dialogue in the Human Rights Field 15
30
The studies on the works of Yash Ghai and Upendra Baxi are reproduced in this
volume (Twining, Chapter 9), and the collection of all four of them was published
in William Twining, “Human Rights: Southern Voices - Francis Deng, Abdullahi
An-Na’im, Yash Ghai and Upendra Baxi,” Review of Constitutional Studies 11
(2006): 203-279.
31
William Twining, ed., Human Rights: Southern Voices: Francis Deng, Abdullahi
An Na’im, Yash Ghai and Upendra Baxi (Cambridge: CUP, 2009).
32
H.G. Wells, The Rights of Man or What We Are Fighting For (London: Penguin,
1940). See also Roger Normand and Sarah Zaidi, Human Rights at the UN. The
Political History of Universal Justice (Bloomington and Indianapolis: Indiana
University Press, 2008), 144.
33
Marina Svensson, Debating Human Rights in China. A Conceptual and Political
History (Lanham: Rowan & Littlefield, 2002), 26. Wells had a consciousness
about the meaning of empire for the history of violence, and some of his most
known novels can be read as metaphors for the colonial world and wars, among
them The Time Machine, The Island of Doctor Moreau, The Invisible Man and The
War of the Worlds. On the critical import of Wells’ work for Victorian imperialism
see Sven Lindqvist, Exterminate all the Brutes (London: Granta, 1998), 75-81.
Decolonial Strategies and Dialogue in the Human Rights Field 17
34
Susan Waltz, “Reclaiming and Rebuilding the History of the Universal
Declaration of Human Rights,” Third World Quarterly 23 (2002), 437-448.
35
Asian countries: Burma, China, India and the Philippines; African countries:
Egypt, Ethiopia, Liberia and South Africa; Muslim countries: Afghanistan, Iran,
Iraq, Lebanon, Pakistan, Saudi Arabia, Syria, Turkey and Yemen; communist
countries: USSR and Yugoslavia; Latin American countries: Argentina, Bolivia,
Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El
Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay,
Peru, Uruguay and Venezuela. Fifty states in total participated in one way or
another over a two years period proposing drafts of the Declaration, joining the
debates, proposing amendments, wording the articles, voting for and against.
36
Normand and Zaidi, Human Rights at the UN, 144.
18 Introduction
37
Other European philosophers can also be found fractured by a twofold
engagement with rights. While Kant showed ‘enthusiasm’ for the French
Revolution, he kept silent about the Terror unleashed by Robespierre. Hegel, on
his part, denounced the Terror but understood colonialism and colonial genocide as
the materialization of the display and advance of the Spirit. A contemporary case
in point is that of Zizek, who defended the banner of human rights against the
Communist regime in the former Yugoslavia, but declares human rights quasi-
bankrupt now when he is living under capitalism, and who criticises neo-
colonialism as in Iraq, but salutes and commends the Terror and Robespierre—in a
stark inversion of Hegel’s position. See Slavoj Zizek, “Against Human Rights,”
New Left Review 34 (2005), 115-131; Slavoj Zizek, The Obscenity of Human
Rights: Violence as Symptom, http:// www.lacan.com/zizviol.htm; Slavoj Zizek,
Iraq: The Borrowed Kettle (London: Verso, 2004) and Slavoj Zizek, Introduction
to Virtue and Terror, by Maximilien Robespierre (London: Verso, 2007).
Decolonial Strategies and Dialogue in the Human Rights Field 19
38
Costas Douzinas, The End of Human Rights (Oxford: Hart Publishing, 2000),
23-68.
20 Introduction
Carta; the British Revolution and the Bill of Rights39; the US Revolution
and the Declaration of Independence; the French Revolution and the
Declaration of the Rights of Man; the Marxist critique40 and the social
rights proclaimed in the USSR Constitution; the Holocaust and the
Universal Declaration; the emergence of a “genuine” human rights
movement in the 1970s;41 the end of the Cold War, and September 11 and
the War on Terror. The key events of this history remain concentrated
within the borders of Europe,42 or are interpreted from the European
horizon of understanding. Not surprisingly, the standard philosophy of
rights continues to be assumed as “the” theory of human rights, as if no
other possibility for thinking human rights would exist outside the history
of ideas represented by names like Hobbes, Locke, Rousseau, Kant, Hegel,
Marx, Habermas, Lyotard, Derrida, Rawls and Rorty.
39
Among the more recent accounts see A.C. Grayling, Towards the Light. The
Story of the Struggles for Liberty and Rights that Made the Modern West (London:
Bloomsbury, 2007). It should be noted that Grayling dedicates a chapter to the
struggle against slavery.
40
Louis Henkin describes contemporary human rights as 'a kind of twentieth
century synthesis of an eighteenth century thesis [the US Bill of Rights and the
Rights of Man] and a nineteenth century antithesis [the Marxian critique]. Louis
Henkin, The Rights of Man Today (Boulder: Westview Press, 1978), 5.
41
According to Samuel Moyn, the ‘true origins’ of human rights are to be located
in the 1970’s, and would have been brought about by US President Carter and his
foreign policy, the struggle against communist regimes in Eastern Europe, and the
crisis of both socialism and the newly independent states in the Third World.
Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard
University Press, 2010), 5-8.
42
The proper name “Europe” is used here as a shortcut for the philosophical
concept of Europe in a Habermasian sense: not only geographical Europe, but also
the United States, Australia and Japan are part of the world that, because of the
rationalization, democratization and industrialization of their cultures and societies,
has reached an advanced degree of modernization. The term “Europe” also stands
for the “West”.
Decolonial Strategies and Dialogue in the Human Rights Field 21
Above all, this was not only the birth of modern international law. It is
precisely the embracing of the theory of natural law by international law
that gives sense to the claim that this is also the beginning of modern
human rights history, so we can speak of the “colonial origins of human
rights”. This enable us to claim a genesis of human rights in response to
the crisis brought about by colonialism. The foundational stages of human
rights theory and history in modern times are to be found not only in the
Enlightenment, but even before that, in the resistance to the display of the
capacity for destruction of imperialism—the dark side or the other
constitutive pillar of modernity. Modernity cannot be indentified exclusively
with emancipation; plunder and genocide were prior realities of its
formation. The crisis of modernity does not appear with the Holocaust. It
was actualized already centuries ago with the Conquest of America.
43
Anghie, Colonial Origins, 94.
22 Introduction
Lauterpacht traces the history of the law of nature and its role in the
creation of modern international law and the [Rights of Man], noting that
‘each of the three has been, in relation to the two others, the recipient and
the benefactor, the master and the tool, the originator and the product’. 44
a genealogy for human rights that differs from the usual one. It should
begin with the history of conquest and expansion, and must be able to
encompass the debates about how colonies and slave plantations were to
be administered. At its most basic, this agonistic, cosmopolitan enterprise
must incorporate the contending voices of Bartolomé de las Casas and
Juan Ginés de Sepúlveda… The counter-narrative of human rights we
require is evident in opposition to racial orders, in the struggles of
indigenous peoples and in the post- and anti-colonial pursuit of liberation
from imperial domination.46
44
Normand and Zaidi, Human Rights at the UN, 366-367. Lauterpacht’s remarks
were originally published in Hersch Lauterpacht, “The Law of Nations, the Law of
Nature, and the Rights of Man,” Transactions of the Grotius Society 29 (1943): 2.
45
Paul Gilroy, Darker than Blue. On the Moral Economies of Black Atlantic
Culture (Cambridge: Harvard University Press, 2010), 3 & 55-59.
46
Ibid., 57 & 71-72.
Decolonial Strategies and Dialogue in the Human Rights Field 23
47
On the concept of coloniality see Aníbal Quijano, “Coloniality of Power,
Eurocentrism, and Latin America,” Nepantla: Views from South 1 (2000): 3.
48
There already exists a body of research that starts to bring to light the history of
the Third World tradition of human rights –be anti-colonial, liberal, social or
democratic. A long-term historical detour that includes Las Casas, Bolívar and the
constitutions of independence, the Mexican Revolution and the Latin American
contribution to the Universal Declaration can be found in Paolo Carozza, “From
Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of
Human Rights,” Human Rights Quarterly 25 (2003): 2. On Guamán Poma see
Fernanda Bragato, “A Contribuisao do Pensamento de Felipe Guaman Poma de
Ayala para Repensar o Discurso Hegemonico dos Direitos Humanos,” in A
Realizao e a Protecao Internacional dos Direitos Humanos Fundamentais, eds.
24 Introduction
More interestingly, the “conquest of the other by the self” reveals the
“other” to be the victim of imperialism.50 Todorov offers a large-scale
picture of the history of modernity that proceeds from its genesis to the
current situation laying bare the genocidal consequences for America and
the Third World: “What took place in America after 1492, and continues
to happen today, is the virtual obliteration of one cultural world by
another”.51 Positing the colonized or the Third World subject as a victim in
the context of the history of modernity leads to the indictment of Europe
as the land of the barbarians, and holds it responsible for the slaughter
carried out by centuries of colonialism. Auschwitz is revealed to be
nothing new, for in the colonialist depredation of the world since the
Fifteenth century Europe has fully deployed its capacity for extermination.
When the colonized subject abandons the European self to occupy the
place of the Third World self, and recognizes herself us such, the peoples
of the Third World embrace the role of agents of self-emancipation and
humanization. In the words of Fanon, “the native never ceases to dream of
putting himself in the place of the settler not becoming the settler but of
substituting himself for the settler”, so that the colonized embodies “history
in his own person” and creates “a new humanity”.53 The evidence of such
an achievement can be seen throughout the history of the struggles to
restrain imperialist violence, and to gain independence and self-
determination since the times of the Conquest of America.
50
Zvetan Todorov, The Conquest of America. The Question of the Other (Norman:
University of Oklahoma Press, 1999).
51
Ibid., xii.
52
Ibid., 3.
53
Frantz Fanon, The Wretched of the Earth (London: Penguin, 2001), 28, 31 & 41.
26 Introduction
54
Max Horkheimer and Theodor Adorno, Dialectic of Enlightenment. Philosophical
Fragments (Palo Alto: Stanford University Press, 2002).
55
Jurgen Habermas, The Philosophical Discourse, 106-130.
Decolonial Strategies and Dialogue in the Human Rights Field 27
Critical Theory, Broeck states, also fails to realize that “the modern
free subject is the result of slave trading and colonialist practices”. In this
sense, the freedom of the white subject presupposes the non-subjectivity,
reification, objectification or abjection of the colonized and the slave. The
freedom of the white subject is made possible by the ownership of slaves,
which allows for a new definition of “freedom as ownership”—freedom as
negation of freedom, or freedom purchased by slavery. Such a deep gash
in the hull of Critical Theory comes as no surprise, as it re-enacts a flaw
ingrained in the critical tradition—that of thematizing the relationship
between the master and the slave without referring to modern capitalist
slavery, ie colonial slavery. Hegel preferred to think of the dialectics of
master and slave on the basis of the relation between feudal lords and
servants, and the transit to the modern subject.56 Marx, equally blinkered,
followed Hegel’s dialectics in conceptualizing the class struggle. These
immense gaps in Critical Theory’s understanding of modern history takes
Broeck to conclude that not only the Frankfurt School, but also
Foucaultian critique, Psycoanalysis and Feminism, are all characterized by
a theoretical “narcissism” that has not allowed them tracing a genealogy of
the modern subject that includes colonialism and slavery.
56
Susan Buck-Morss’ hypothesis according to which Hegel should have, or might
have, elaborated his master-slave dialectics taking notice of the Haitian Revolution
appears farfetched if we take into account his notion of “world history” from
which Hegel excluded the US revolution of independence, as well as the wars of
independence fought throughout Central and South America in the early
Nineteenth century. See Susan Buck-Morss, “Hegel and Haiti,” Critical Inquiry 26
(2000): 821-865. G.W.F. Hegel, The Philosophy of History, 8-79 & 79-102.
28 Introduction
57
On the concept of “modernity as crisis” see Barreto, “Human Rights and the
Buried Crimes of Modernity.”
58
Richard Rorty, “Human Rights, Rationality and Sentimentality,” in On Human
Rights: The Oxford Amnesty Lectures 1993, eds. Stephen Shute et al. (New York:
Basic Books, 1994).
59
Martin Heidegger, “Nietzsche’s Word, ‘God is Dead’,” in The Question
Concerning Technology and Other Essays (New York: Harper & Row, 1977), 112.
Decolonial Strategies and Dialogue in the Human Rights Field 29
and ethics is no longer tenable. The opposite is the case: these are times
for a “post-rationalist philosophy”. And when rationalism is put into
question, the modern and dominant rationalist discourse in which human
rights are framed becomes the object of suspicion too.
60
On Rorty’s conception of human rights see José-Manuel Barreto, “Rorty and
Human Rights: Contingency, Emotions and how to Defend Human Rights Telling
Stories,” Utrecht Law Review 7 (2011), 93-112. Available at http:// www.
utrechtlawreview.org/index.php/ulr/article/viewFile/164/163
61
Barreto, “Rorty and Human Rights,” 106.
30 Introduction
The outright dismissal of any useful outcome from the familiarity with the
suffering of others should itself be questioned… There are a number of
ways in which strategies premised upon emotional communication,
psychological identification, and the formation of moral communities
might open up possibilities for change achieved through social and
political mobilization… What if Stowe’s structure of feeling was
instrumental in the formation of a moral collectivity and in wining
recognition of the suffering humanity of the slave, whom it was no longer
possible to dismiss as a brute? 62
62
Gilroy, Darker than Blue, 65-66.
63
Baxi, The Future of Human Rights, 126.
Decolonial Strategies and Dialogue in the Human Rights Field 31
64
Upendra Baxi, “Global Justice and the Failure of Deliberative Democracy,” in
Democracy Unrealised. Documenta 11–Platform 1, ed. Okwui Enwezor, et.al.
(Ostfildern Ruit: Hatje Cantz Publishers, 2002), 113-114.
65
On the contribution of Baxi and other Third World scholars like Oswald de
Andrade and Luis Alberto Warat to the critique of the rational understanding of
human rights see Jose-Manuel Barreto, “Human Rights and the Critique of
Rationalism: de Andrade, Warat and Baxi”, Revista de Estudos Constitucionais,
Hemeneutica e Teoria do Direito (Forthcoming 2012).
66
Jean-Francois Lyotard, The Postmodern Explained: Correspondence, 1982-1985
(Minneapolis: The University of Minnesota Press, 1997), 78.
67
Michel Foucault, Discipline and Punish: The Birth of the Prison (New York:
Pantheon, 1979), 27.
32 Introduction
Critical Dialogue
A historiography of human rights that claims to bear witness to the
struggles for human rights and to the contributions to human rights theory
made by the colonized asserts the existence of a history of human rights in
the geography of the colonial world. It also looks for recognition of Third
World theory as a valid interlocutor in any conversation about rights— not
simply as a listener without a voice, or a ventriloquist’s dummy. If human
rights are not a ‘gift of the West to the rest’ it is possible to see that they
are an endowment of the Non-West to the world as well. Above all, this is
not to suggest that the European legacy should be abandoned or rejected.
On the contrary, it calls for the Eurocentric understanding of rights to
escape its soliloquy, and to enter into a dialogue with other visions of
rights. A Third-World human rights theory operates in a dialogic
epistemological ethos that seeks to replace the European monologist and
self-centered culture. This is a call for an exchange of ideas in which the
status of the interlocutors and the terms of the conversation are
transformed by a new geography of knowledge in which all those involved
come from different provinces of the world. The hermeneutics of
provincializing human rights leads to a dialogue between local
conceptions, both those coming from what was the center, as well as those
emerging from places that customarily had been reckoned to occupy the
margins.
universal and the particular always and everywhere in dialogue with each
other”. The universal mentioned here is rather unique: it is a particular
disguised as a universal, or that calls itself universal—the basic
epistemological and power-seeking deception of European thinking.
Above all, European philosophy and the European conception of human
rights form part of the utopian thinking that can contribute both to
resisting and reversing the deeds of imperialism, and to creating a new
“human being”, a “new society” and a “new world”.68 A Third-World
theory of human rights—an exemplar of anti-colonial humanism—cannot
avoid counting among its sources the European humanist tradition.
68
In addition to the possibility of taking the capacity for critique of the Western
thinking, including Marxism, to oppose colonialism, there are other thinkers that
offer specifically targeted attacks on modern imperialism. On Diderot, Kant and
Herder’s contribution see Sankar Muthu, Enlightenment against Empire (Princeton:
PUP, 2003).
69
Anibal Quijano, quoted in Walter Mignolo, “The Historical Foundation of
Modernity/Coloniality and the Emergence of Decolonial Thinking,” in A
34 Introduction
both modernity and its negated alterity (the victims) co-realize themselves
in a process of mutual creative fertilization. Trans-modernity (as a project
of political, economic, ecological, erotic, pedagogical and religious
liberation) is the co-realization of that which is impossible for modernity to
accomplish by itself: that is of an incorporative solidarity that I have called
analectic between centre/periphery, man/woman, different races, different
ethnic groups, different classes, civilization/nature, Western culture/Third
World cultures, et cetera.70
Overview
This book brings together thinkers who are developing an interpretation
of rights from outside Europe, and discourses that develop internal
critiques of traditional Eurocentric understandings of human rights. In this
sense, this is already a contribution to the decolonization of human rights
by fostering dialogue between viewpoints. This collection of articles is
36 Introduction
71
Linda K. Kerber, “We are All Historians of Human Rights,” Perspectives Online
44 (2006). Available at http://www.historians.org/ perspectives/issues/ 2006/ 0610/
0610pre1.cfm
Decolonial Strategies and Dialogue in the Human Rights Field 37
exemplified in the works of Botero and Golup that engage with the
violence of empires and dictatorships exercised on the body.
Part III studies human rights law, with particular attention given to
constitutional and international legal frameworks. Upendra Baxi (Chapter
10) explores the contribution made to the conceptualization of the doctrine
of the Rule of law by “non-Western communities of résistance and
peoples in struggle.” In Chapter 11 Nico Horn revisits Australia’s Mabo
Case—which acknowledged the precolonial rights of the aboriginal
peoples to territories their forebears inhabited in the islands of Mer, Dauar
and Waier, and rejected previous decisions based on the principle of terra
nullius. They had lost the ancestral lands to British colonists when they
settled in Australia in the Nineteenth century. Horn draws the lessons of
this case for urgent land reform in Namibia, examined in the background
of the German colonization and the genocide of the Herero, Nama and
Darama peoples. Finally, Susan Waltz (Chapter 12), Zehra Arat (Chapter
13) and Glenn Mitoma (Chapter 14) unveil the contribution made by Third
World countries to international human rights law, studying particularly
the process that led to the adoption of the Universal Declaration of Human
Rights.
Bibliography
Barreto, José-Manuel. “Human Rights and the Buried Crimes of
Modernity.” In Critical International Law: Post-Realism, Post-
Colonialism, and Transnationalism, edited by Prabhakar Singh and
Vik Kanwar. New Delhi: Oxford University Press, forthcoming 2013.
—. “Human Rights and the Critique of Rationalism: de Andrade, Warat
and Baxi”, Revista de Estudos Constitucionais, Hemeneutica e Teoria
do Direito (forthcoming 2012).
—. “Rorty and Human Rights: Contingency, Emotions and how to Defend
Human Rights Telling Stories.” Utrecht Law Review 7 (2011).
Available online at http://www.utrechtlawreview.org/index.php/ulr/
article/viewFile/ 164/163.
Baxi, Upendra. The Future of Human Rights. Delhi and Oxford: OUP,
2002.
—. “Global Justice and the Failure of Deliberative Democracy.”In
Democracy Unrealised. Documenta 11–Platform 1, edited by Okwui
Enwezor, et.al. Ostfildern Ruit: Hatje Cantz Publishers, 2002.
—. “What may the ‘Third World’ Expect from International Law?” Third
World Quarterly 27 (2006).
Beardsell, Peter. Europe and Latin America: Returning the Gaze.
Manchester: MUP, 2000.
Decolonial Strategies and Dialogue in the Human Rights Field 39
WALTER MIGNOLO
I will not trace the history of losing equality since the origin of the
world as told in the Bible, the Popol Vuj, or by Big-Bang physical
theorists. I will examine how, when, why and which populations of the
Who Speaks for the “Human” in Human Rights? 45
planet were classified and ranked. The classification and ranking was not a
“representation” of a previously existing world already classified and
ranked. Someone did the classification. Who did it and how was it
legitimized? I will also argue that the concepts of “man” and “human”
went hand in hand with the emergence of the concept of “rights.” In other
words, the idea of human and the idea of rights both separately and in
conjunction have been invented by humanists of the European
Renaissance. These ideas responded, on the one hand, to the internal
history of Western Christians in what would become Europe in their long
lasting conflicts with Islam and, on the other hand, to an external history
of Christianity. Indeed this was the beginning of a historical process with
no precedent. The emergence of the New World and new people forced
Renaissance humanists to review their epistemic premises, and forced
indigenous intellectuals in Anahuac and Tawantinsuyu,1 as well as leaders
and thinkers of enslaved Africans in the New World, to make sense of a
history in which they were the real origin. Cut off from African histories,
enslaved Africans had to start anew in the New World. This is the initial
moment in which massive number of people began to lose their equality,
their humanness and their rights.
1
“Anahuac” was the name given to ancient Mexico by the Nahualt civilization,
and “Tawantinsuyu” the name of the Inca empire.
46 Chapter One
I have no doubt that the ones who were labeled by Christians and
humanists did not see themselves as pagans, heathens and Saracens. First
of all because the Arab speaking population in the East of Jerusalem and
in the South of the Mediterranean, and the Latin and vernacular speaking
population in the West of Jerusalem and the North of the Mediterranean,
did not share the same history, memories, subjectivities and experiences.
What we have here is just half of the story—the regional and provincial
history told by Western Christians and Renaissance humanists. However,
it was the Latin and Western vernacular categories that have been
naturalized in a one-to-one correspondence with the designated entity. I
am writing this article inhabiting the Latin and Western vernacular
cosmology, not in its uninterrupted form but in its discontinuity: the
discontinuity of Western classical tradition disrupted by the emergence of
the New World in the consciousness of Western Europeans. Christians
repeated with the population of the New World what they had been
practicing with their undesirable neighbors and far away co-existing
populations. Following Columbus's belief that he had landed in India
(guided by Marco Polo's narrative about what is today South-East Asia),
the people of Anahuac (today’s Mesoamerica) and Tawantinsuyu (today’s
Andean region) were all named "Indians" and dispossessed of their
millenarian identities. In like manner, the diversity of enslaved Africans
captured and transported by force were baptized "Blacks", and were also
dispossessed of their identities and ancient histories. What prevailed were
the memories and identities of Europeans traced back to Greece and
Rome.
It was not quite the same however for the communities and societies
of Anahuac and Tawantinsuyu. Since the first half of the Sixteenth century
they could no longer continue living their lives as it was before that time.
Kingdoms of Africa that were broken by the kidnapping and enslavement
of their young population and Black communities in America had to
rebuild overcoming the differences of their original Kingdom. It was force
and violence from the part of Western Christians and merchants from
Portugal, Spain, Holland, France and England , but it was mainly the
growing power of their own locus of enunciation that allowed them to
assume that there was just one God and that they were His representatives
on Earth. At the top of the species were Western Christians and placed
below the rest: Saracens, Heathens, Pagans, Indians and Blacks. The
assumption here is the belief in the absolute possession and control of
knowledge and the denial of it to all the people classified outside and
below.
Thus, when the idea and the category of man came into the picture, it
came already with a privilege: the privilege of being under the framework
already created by Western Christians. If then, being Christian was for
Christians themselves the ultimate point of reference of civility and the
correct life, being man was the ultimate point of reference of beauty,
morality and knowledge for humanists. Man and Humanities updated the
Roman idea of humanitas in the sphere of learning. Humanitas and
civitas close to the modern idea of citizens presupposed an educated
person. During the European Renaissance man was conceived at the
intersection of his body and his mind, his body proportion and his
intellect. Leonardo da Vinci’s Vitruvian Man translated into visual
language what humanists were portraying in words.2 Man and humanitas
became the frame of reference allowing the enunciator inscribed in Greco-
Latin genealogy of thoughts to decide who belonged not just to
Christianity but to humanity. During the European Renaissance He who
spoke for the human was the humanist.
2
http://leonardodavinci.stanford.edu/submissions/clabaugh/welcome.html.
48 Chapter One
3
On Sylvia Wynter’s ideas on the subject, and bibliography, see Anthony Bogues,
ed., After Man, Towards the Human. Critical Essays on Sylvia Wynter (Kingston:
Ian Randle Publishers, 2006).
Who Speaks for the “Human” in Human Rights? 49
4
Concurrent arguments can be found in Franz Hinkelammert, “The Hidden Logic
of Modernity: Locke and the Inversion of Human Rights.” Worlds & Knowledges
Otherwise Fall (2004): 1–27. Accessible at www.jhfc.duke.edu /wko/ dossiers/ 1.1/
HinkelammertF.pdf.
50 Chapter One
crucial here is not so much the “novelty” within the same classical
European tradition that is, the newness within a uni-linear and uni-versal
idea of history but the discontinuity; the moment in which the Western
genealogy that men of the European Renaissance were attempting to build
upon the legacies of Greece and Rome is dislocated by the emergence of
people totally outside Greek-Roman and Jerusalem legacies. Vitoria
had to deal then with the authority of the Pope and the authority of the
Monarch. Vitoria questioned the authority of the Pope arrogating to
himself the power to “give” half of the New World to the Spaniards and
half to the Portuguese and the Emperor. A second issue Vitoria had to deal
with was the relation between “belief” and “right to property.” He argued
that unbelief does not cancel natural law, and since ownership and
dominion are based on natural law, the right to property is not cancelled
either by unbelief. Indians are not believers, but because of natural law
they have, like the Spaniards, property rights. Vitoria’s openness and
fairness missed a crucial point: he did not stop to ponder whether Indians
cared about rights and whether Indians relationship to land was a relation
of property, like it was for the Spaniards, and not something else. In other
words, as a good humanist and theologian, Vitoria spoke for humanity and
told half of the story without realizing it; assuming, indeed, that he and
his colleagues was dealing with the world as it is, and not as it was for
him/them.
only the rights sanctioned by the former colonialists were accorded to the
colonized, regardless of the needs and demands of the latter […] The
second paradox is that the rules and procedures of decolonization were
determined and controlled by the former colonial power to effect specific
outcome. This is a paradox because the right to self-determination is
generally understood to mean the absolute political authority to create
rights and obligations for oneself […] The rules and processes of
decolonization not only denied African communities the right to the
protection of the law, they failed to recognize African’s need for such
protection.5
There is a straight line to which I will return in the next two sections
in the history interrelating the concept of people, men, citizen, human
and rights, which goes from the colonial revolution of the Sixteenth
century to the de-colonial revolutions of the second half of the Twentieth
century starting with India in 1947. Although Grovogui begins his
argument with Hugo Grotius which is a common beginning for scholars
of International Law in the English and French speaking worlds it is
obvious for most scholars in the Spanish and Portuguese worlds6 that his
two paradoxes are nothing but the two cases of the constitutive and
complementary character of modernity/coloniality. What appears as a
paradox is, and has been, the node, the technological key of the
simultaneity, always simultaneity, between the rhetoric of modernity
announcing salvation, happiness, progress, development, etc., and the
necessary logic of coloniality—appropriation of natural resources,
exploitation of labor, legal control of undesirables, military enforcements
of the law in order to ensure “salvation” through the imposition the
interests and a world view inherent to capitalist economy.
5
Siba N’Zatioula Grovogui, Sovereigns, Quasi Sovereigns and Africans: Race and
Self-Determination in International Law (Minneapolis: University of Minnesota
Press, 1995), 96.
6
With some exceptions, such as German Catholic Carl Schmitt, for whom the
Catholic Spanish intellectual tradition was a necessity, an opinion that also
prompted his polemic with Max Weber.
Who Speaks for the “Human” in Human Rights? 53
foundations of international law—on the one hand and, on the other, the
Bill of Rights and the Rights of Man, was that the latter were no longer
operating in the international arena but, instead, were limited to national
issues. It was indeed the period in which nation-states were being forged
and the advent of the bourgeois ethno-class was being legitimized. Rights
were linked to the construction of nation-states and the coming into being
and the stabilization of an ethno-class commonly known as the European
bourgeoisie. Being human meant to be rational, and rationality was limited
to what philosophers and political theorists of the Enlightenment said it
was.
human, Spain and Portugal and their nationals, were already considered
second class Europeans. Immanuel Kant and G.W.F. Hegel canonized this
view. In short, by the Eighteenth century, those who spoke for the human
were secular philosophers and political theorists in the heart of
Europe France, Germany and England. That vision was adopted by
Creoles from European descent in the United States, South America and
the Caribbean. And that vision became constitutive also of the model of
man and humanity when England and France began their expansion to
Asia and Africa. “The civilizing mission” was nothing else but: a)
imposing a model of man and humanity; and b) assuming after Kant and
Hegel’s canonization that not only non-Christian religions were inferior,
but that people of color speaking languages non-derived from Greek and
Latin were less human. Roman legacy of humanitas and civitas were
rehearsed when European men and citizens appointed themselves to carry
civilization to the anthropos of the planet.7
7
On the distinction humanitas/anthropos see Nishitani Osamu, “Anthropos and
Humanitas: Two Western Concepts of “Human Being,’” in Translation,
Biopolitics, Colonial Difference, ed. Naoki Sakai and Jon Solomon. (Hong Kong:
Hong Kong University Press, 2006).
Who Speaks for the “Human” in Human Rights? 55
was exactly the same. Only the content changed. No more pagans,
heathens or Saracens, but communists, underdeveloped and—still!—
Indians.
The First World was where humanity par excellence dwelled. The rest
was inhabited by different kinds of anthropos. Liberalism and Christianity
set the ideological stage against communism. Humanity par excellence
was surrounded by the dangerous Second World, communism, in the
Soviet Union, in its colonies at the border of Europe the Caucasus,
Belorussia and Ukraine , in Central Europe and the Balkans. And then
the Third World, the farthest away from the model of humanity par
excellence. But, since the Declaration of Human Rights was universal, the
entire population of the planet had the right to have rights. This was the
First World’s gift to the Second and Third Worlds. But it was a gift similar
to stating that all men and women are born equal. People of the Second
and Third Worlds were told that they have the right to have rights.
However, they were also told that they were in the Second and Third
World; that the latter were underdeveloped and that the former were under
a totalitarian regime. And that it was mainly in the land of the anthropos
where, it was expected, human rights would be violated. Human rights
were not expected to be violated in the First World. The First World was
not setting up a Declaration to shoot on their own foot; particularly after
Hitler had been already defeated… but Stalin was still alive and well.
When the Cold War ended, human rights took a new impulse and were
associated with the second wave of development. The first wave took
place between 1950 and 1970 and the labels were “development and
modernization of underdeveloped countries.” The International Monetary
Fund and the World Bank were the two main institutions in charge of
advancing the project. After the fall of the Soviet Union, development
came back under the label of “globalization and market democracy.”
Human rights have been recast since the fall of the Soviet Union, with one
of its consequences being the Washington Consensus and the neoliberal
doctrine. This scenario dominated the 90s and was extended to deal with
the consequences of 9/11’s aftermath. The question of Islam and human
rights then became central.
8
Regarding the Washington Consensus, see www.cid.harvard.edu/cidtrade/issues/
washington.html.
9
Joseph Stiglitz, Globalization and its Discontents (New York: W.W. Norton,
2003).
58 Chapter One
The situation reached a point in which the closed circuit of the rhetoric
of modernity, the apparent collateral damages which indeed are the actual
consequences of the logic of coloniality, prompted the emergence of a
global political society taking destiny in their own hands. In other words,
while NGOs operate in the sphere of civil society repairing the damages of
neoliberal capitalism, the political society came into being with a different
horizon in mind: decoloniality. While NGOs work to help the anthropos,
the political society is the anthropos in arms and thoughts. This very essay
Who Speaks for the “Human” in Human Rights? 59
is located in the sphere of the anthropos and of the political society. Issues
of humanity and rights, for the First and Third World, of developed and
underdeveloped countries, are called into question. Indeed, what is being
called into question is not exactly these categories, but the epistemic locus
of enunciation that created them as if they were uni-versal and good for
all. What is being called into question is the saying behind the said. That
is, it is a call and a process toward de-colonization of knowledge and of
being knowledge and being entrapped by the imperial and modern ideas
of man, the human and the Humanities. If then the Humanities a field of
knowledge since the Renaissance is in part responsible for the creation
and maintenance of the concept of human, the first step is to engage in de-
colonial Humanities. Or if you wish, de-colonizing the Humanities,
tantamount to engaging in practicing de-colonial Humanities.10
What this means is that human and rights are no longer trusted to
Western initiatives and its rhetoric of salvation. Human and rights have
been placed in a different universe of discourse, that of the political
society and de-colonization. And what all of this amounts to, with pros
and cons that should be analyzed in each case, is that everyone is ready to
speak for the human and for rights. The premise is to change the terms and
not just the content of the conversation. To provide a “new” and satisfy
modernity’s desire for newness will be more akin to the task of NGOs
than to de-colonial projects. When, for example, Jamaican intellectual and
10
On “de-colonial Humanities” see www.fb10.uni-bremen.de/inputs/tagungen/
bericht2006.htm.
60 Chapter One
The ideas of the human, humanity and rights became a contested arena.
The “victims” are not always waiting for the “savior,” and the “savior,”
willingly or not, may work to the benefit of the “perpetrator.” Taking their
destinies into their own hands, political society’s diversity of projects
involve actors whose experiences and subjectivities do not match the
expectations of NGOs or of peripheral European economic investments.
Some actors place themselves in the wide array of imperial interests, now
widespread.
11
I am referring to presentations made at the Business School and at the
Rehabilitation and Research Center for Torture Victims, Copenhagen.
www.cbs.dk/content/download/81673/1084891/file/PROGRAMMEFINAL%208.5
.08.pdf.
Who Speaks for the “Human” in Human Rights? 61
Let’s make clear that the political society cannot be subsumed under
de-colonial processes. Many sectors and projects advanced in the political
society have a vision and horizon frame which is not de-colonial: theology
of liberation, progressive and critical liberalism, Marxism, white feminism
and white queer activists. Having said that, it is imperative to remember
that the de-colonial option or de-colonial options if you prefer the
plural is NOT the new and only game in town. It is called “option”
precisely because it is an option among others. The purpose of de-colonial
thinking is not to debunk concurrent projects neither to capture more
converts and became the one and only. Pluriversality, and not universality,
is the horizon of de-colonial thinking.
Under the de-colonial processes projects are under way and are
emerging and proliferating all over the world and de-linking from the
12
This concept has been introduced by Partha Chaterjee. See, for example, Partha
Chaterjee, The Politics of the Governed. Reflections on Popular Politics in most of
the World (New York: Columbia University Press, 2004). I found it appropriate to
refer to a variety of global manifestations such as social movements.
62 Chapter One
13
For an example of how de-colonial Humanities are being thought out in Russia
see www.jhfc.duke.edu/globalstudies/currentpartnerships.html, and ww.jhfc.duke.
edu/ globalstudies/Tlostanova_how%20can%20the%20decolonial%20project.pdf
14
Nishitani Osamu, “Anthropos and Humanitas: Two Western Concepts of
‘Human Being’.” In Translation, Biopolitics, Colonial Difference, edited by Naoki
Sakai and Jon Solomon. Hong Kong: Hong Kong University Press, 2006.
Who Speaks for the “Human” in Human Rights? 63
If these two conditions are fulfilled, no one in particular will speak for
the human because the human will just be taken for granted. And in such
societies, there will be no need for rights, because there will be no
perpetrators violating human and the life rights in the latter case the
15
www.un.org/Pubs/chronicle/2006/webArticles/102006_Khatami.htm.
16
Samuel Huntington, The Clash of Civilizations and the Remaking of World
Order (London: Simon & Schuster, 1997).
17
www.unaoc.org
18
On these issues, see: www.qantara.de/webcom/show_article.php/_c-476/_nr-983
/webcom/show_article.php/_c-478/_nr742/i.html?PHPSESSID= ad16a32480e 888
ca549942f86da5191e).
64 Chapter One
victim being the life of the planet. That is to say, the life of all, including
the species described as humanity. The concept of the human, as it has
been articulated in Western discourse since the Sixteenth century—from
Francisco de Vitoria to John Locke to the Universal Declaration of Human
Rights—went hand in hand with Frances Bacon’s conceptualization of
Nature as something that has to be controlled and dominated by man.
Bibliography
Bogues, Anthony, ed. After Man, Towards the Human. Critical Essays on
Sylvia Wynter. Kingston: Ian Randle Publisher, 2006.
Chatterjee, Partha. The Politics of the Governed: Reflections on Popular
Politics in Most of the World. New York: Columbia University Press,
2004.
Grovogui, Siba N’Zatioula. Sovereigns, Quasi Sovereigns and Africans:
Race and Self-Determination in International Law. Minneapolis:
University of Minnesota Press, 1995.
Hinkelammert, Franz. “The Hidden Logic of Modernity: Locke and the
Inversion of Human Rights.” Worlds & Knowledges Otherwise Fall
(2004):1–27.www.jhfc.duke.edu/wko/dossiers/1.1/HinkelammertF.pdf.
Huntington, Samuel. The Clash of Civilizations and the Remaking of
World Order. London: Simon & Schuster, 1997.
Osamu, Nishitani. “Anthropos and Humanitas: Two Western Concepts of
‘Human Beings’.” In Translation, Biopolitics, Colonial Difference,
edited by Naoki Sakai and Jon Solomon. Hong Kong: Hong Kong
University Press, 2006.
Stiglitz, Joseph. Globalization and its Discontents. New York: WW.
Norton, 2003.
CHAPTER TWO
MARTIN WOESSNER
“Seen in the long perspective of the future, the whole of western European
history is a provincial episode.”1
“So far as human rights are concerned, what matters is what presents itself
in our world, now.”2
For their comments on various portions and versions of this paper, I thank José-
Manuel Barreto, Fred Beuttler, Marlene Clark, Neill Jumonville, Eduardo
Mendieta, Samuel Moyn, Alvaro Eduardo de Prat and Roy Scranton. I would also
like to thank the participants of both the 11th Annual Comparative Literature
Conference at the University of South Carolina on “The Futures of Human
Rights”, and The Historical Society’s 2010 Conference at George Washington
University in Washington, DC, where the earliest incarnations of this paper were
first presented.
1
John Dewey, “From Absolutism to Experimentalism” (1930), in The Essential
Dewey, Volume I: Pragmatism, Education, Democracy, eds. Larry A. Hickman
and Thomas M. Alexander (Bloomington: Indiana UP, 1998), 21. I thank……. for
calling this quotation to my attention.
2
Bernard Williams, “Human Rights and Relativism,” in In the Beginning Was the
Deed: Realism and Moralism in Political Argument, ed. Geoffrey Hawthorn
(Princeton: Princeton University Press, 2005), 67.
66 Chapter Two
No doubt part of the appeal of human rights is that they represent the
age-old desire to actualize normative aspirations, to move from the realm
3
David A. Hollinger, Cosmopolitanism and Solidarity: Studies in Ethnoracial,
Religious, and Professional Affiliation in the United States (Madison: University
of Wisconsin Press, 2006), xv.
4
Linda K. Kerber, “We are All Historians of Human Rights” Perspectives Online
44 (2006). Available at http://www.historians.org/ perspectives/issues/ 2006/ 0610/
0610pre1.cfm
5
See Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge:
Harvard University Press, 2010).
Provincializing Human Rights? 67
of the ought to the domain of the is. In the words of Jürgen Habermas,
human rights represent a “realistic utopia.”6 However real human rights
have become in the contemporary world, though, their origins nevertheless
remain linked to the imaginative, aspirational realm of ideas. Even after
they entered into the concrete world of international legal and political
discourse with the United Nation Universal Declaration of Human Rights
(1948), human rights represented uncharted theoretical and practical
territory. In this sense, the many philosophical and ideological debates that
took place in the wake of the Universal Declaration were, we might say,
struggles over how this new territory should be mapped. They were
attempts to forge a new world, or, at the very least, to unveil an old
world—as Mary Ann Glendon’s influential book has it—“made new.”7
But what, exactly, is the geography of this new world? And who is
responsible for mapping it? If human rights are indeed a constitutive
element of the new, contemporary world, it behooves us to inquire into the
ways in which they emerged out of the fractured geographies of the old
world. Any attempt to outline a geography or even a genealogy of human
rights today must not only limn the contours of the future, but also the
rough edges of the past.
6
Jürgen Habermas, “The Concept of Human Dignity and the Realistic Utopia of
Human Rights,” Metaphilosophy 41 (2010): 464-80.
7
Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal
Declaration of Human Rights (New York: Random House, 2001).
68 Chapter Two
the other, but to call both into question simultaneously.8 In this sense,
human rights really were a utopia, a no-where place from which critiques
of both the West and the East could be launched.
8
Isaiah Berlin, “Two Concepts of Liberty,” in The Proper Study of Mankind: An
Anthology of Essays, ed. Henry Hardy and Roger Hausheer (New York: Farrar,
Straus and Giroux, 1998), 191-242.
Provincializing Human Rights? 69
Over and against these reasons for keeping Heidegger away from
human rights and human rights away from Heidegger, however, it cannot
be denied that his work has shaped the human rights discourse we
currently employ. Implausibly, surprisingly, Heidegger has been an
influence even if a troubling or problematic one on intellectuals and
activists who played instrumental roles in shaping the human rights legacy
9
The latest book to highlight the more dubious aspects of Heidegger’s work is
Emmanuel Faye’s Martin Heidegger: The Introduction of Nazism into Philosophy
in Light of the Unpublished Seminars of 1933-1935, trans. Michael B. Smith (New
Haven: Yale University Press, 2009).
10
See, for instance, the documentary film The Reckoning: The Battle for the
International Criminal Court, 2009, directed by Pamela Yates, which makes this
connection explicit.
11
See, for example, the essays collected in Thomas Cushman, ed., A Matter of
Principle: Humanitarian Arguments for War in Iraq (Berkeley: University of
California Press, 2005).
12
Arnold Schoenberg, Style and Idea, trans. Leo Black (New York: St. Martin’s,
1975), 506.
70 Chapter Two
13
For his son’s efforts to restore his legacy, see Habib C. Malik, ed., The Challenge
of Human Rights: Charles Malik and the Universal Declaration (Oxford: Centre
for Lebanese Studies, 2000).
14
See Leo Strauss, Natural Right and History (Chicago: University of Chicago
Press, 1953); and Peg Birmingham, Hannah Arendt and Human Rights: The
Predicament of Common Responsibility (Bloomington: Indiana University Press,
2006).
Provincializing Human Rights? 71
15
Glendon, A World Made New, 170. The aphorism reads, “We sind zu spat für
die Götter, zu früh für das Sein.” Heidegger’s text was translated into English
many years later as “We are too late for the gods and too/ early for Being,” under
the title “The Thinker as Poet” in Poetry, Language, Thought, trans. Albert
Hofstadter (New York: Harper Perennial, 1976), 4. Needless to say, as Glendon
points out, this is a rather bleak and ominous sentiment for a drafter of one of the
most important human-rights documents in history. But perhaps the next line of
Heidegger’s text puts it into perspective: “Being’s poem,/ just begun, is man.”
16
On the importance of the “philosophical persona” in the writing of the history of
philosophy, see Ian Hunter, “The History of Philosophy and the Persona of the
Philosopher,” Modern Intellectual History 4 (2007): 571-600.
72 Chapter Two
by his own mentor, Edmund Husserl. Increasingly, this task led him to
adopt the persona of the philosopher-as-prophet.
17
Charles Malik, “The Metaphysics of Time in the Philosophies of A. N.
Whitehead and M. Heidegger” (PhD diss., Harvard University, 1937), 241.
18
Ibid., 240. Interestingly, both Stern and Marcuse—drawn to Heidegger for his
seemingly concrete approach—later reproached him for failing to be concrete
enough. See Günther Stern-Anders, “On the Pseudo-Concreteness of Heidegger’s
Philosophy,” Philosophy and Phenomenological Research 8 (1948): 337-71; and
Herbert Marcuse, Heideggerian Marxism, ed. Richard Wolin and John Abromeit
(Lincoln: University of Nebraska Press, 2005), 34-52.
19
Ibid., 247.
Provincializing Human Rights? 73
For the Heidegger of Sein und Zeit, the moment of decision is what
ensured that each and every individual was responsible for his or her own
existence. It was what pulled us out of everyday inauthenticity, and out of
false philosophy as well. The moment of decision was a call to action
more than reflection and it had more in common with Kierkegaard’s leap
of faith than it did with Whitehead’s philosophical formulae, which
translated human existence into so many charts, graphs and numbers.
Clearly, Malik not only agreed with this aspect of Heidegger’s work, but
absorbed it as well. To quote him at length, again from the frank and
revealing chapter “From Cosmology to Existenz”:
20
Ibid., 253.
21
Ibid., 253.
22
Ibid., 253.
23
Ibid., 254.
74 Chapter Two
24
Ibid., 253.
25
Martin Heidegger, “The Self-Assertion of the German University,” in The
Heidegger Controversy: A Critical Reader ed. Richard Wolin (Cambridge: MIT
Press, 1993), 38.
26
Ibid.
27
Martin Heidegger, An Introduction to Metaphysics, trans. Ralph Manheim (New
Haven: Yale, 1959), 38.
Provincializing Human Rights? 75
28
Charles Malik, War and Peace: A Statement made before the Political Committee
of the General Assembly, November 23, 1949 (Stamford: The Overlook Press,
1950), 23.
29
Ibid., 25 and 32. As Mary Ann Glendon has put it, “challenged not only the
members of the Soviet bloc who wanted to subordinate the person to the state, but
also the more individualistic Westerners” in the Human Rights Commission. See
Glendon’s introduction to Malik, The Challenge of Human Rights, 3.
30
Malik, War and Peace, 31.
31
Ibid., 32.
32
Ibid., 32.
76 Chapter Two
As the imagery of souls and ashes makes clear, Malik’s defense of the
West was rooted in a Christian conception of the dignity of the human
person, something that atheistic communism seemed to deny at every turn.
Although Malik may have followed a distinctly Heideggerian path in his
own thought, he was also a committed Christian. In this sense, he was
closer to the Personalism and Neo-Thomism that would later become so
important to other human rights thinkers such as Jacques Maritain.34 We
can see as much in Malik’s 1963 book Man in the Struggle for Peace,
which originated in lectures delivered at The Claremont Colleges in
California.35 At least in 1937, however, Malik was more committed to a
prophetic, decisionistic philosophical position, one which sought to
puncture scientific philosophy’s facile attempts to explain away existence
and at the same time do justice to the full picture of human experience
along the lines of Heidegger’s existential analytic—all without necessarily
relying upon religion. There is little to distinguish him from Heidegger
except for his more humanistic tenor. Perhaps the more explicit
dependence upon Christian teaching in later years was an attempt to rein
in some of the dangerous tendencies in Heidegger’s thought.
33
Ibid., 43.
34
For more on Maritain and human rights, see the provocative working paper by
Samuel Moyn, “Jacques Maritain, Christian New Order, and the Birth of Human
Rights,” available online at
http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1134345.
35
Charles Malik, Man in the Struggle for Peace (New York: Harper & Row,
1963). See also the volume of essays edited by Malik, God and Man in Contemporary
Christian Thought (Beirut: American University of Beirut Centennial Publications,
1970).
Provincializing Human Rights? 77
In the global struggle for the hearts and minds of the so-called Third
World during the era of decolonization, Malik made it clear that Western-
style “modernization” was not enough. Against the “mandarins of the
future”—to borrow the moniker historian Nils Gilman has bestowed upon
the various think-tank intellectuals who so fervently shaped American
foreign policy during these years—Malik sought to shift the Cold War
conversation from matters of modernization and development to issues of
spiritual growth.40 “This is Asia’s and Africa’s deepest challenge to the
West,” he suggested, “what have you to give me, not of your trinkets, but
36
Charles Malik, “The Twin Scourges: Materialism and Self-Sufficiency,” in
Malik, The Challenge of Human Rights, 210. The address was originally presented
at the Carnegie Endowment for International Peace on September 19, 1951.
37
Charles Malik, “Will the Future Redeem the Past?” An Address Delivered at
Williamsburg, Virginia, June 11, 1960 (Richmond: Virginia Commission on
Constitutional Government, 1960), 4.
38
Ibid., 16.
39
Ibid., 17.
40
Nils Gilman, Mandarins of the Future: Modernization Theory in Cold War
America (Baltimore: Johns Hopkins University Press, 2003).
78 Chapter Two
of your mind, not of the external husks of your life, but of the substance
and marrow of your soul?”41
41
Malik, “Will the Future Redeem the Past?,”18.
42
Charles Malik, “The Individual in Modern Society,” in The One and the Many:
The Individual in the Modern World, The Second Corning Conference, ed. John
Brooks (New York: Harper & Row, 1962), 135.
43
Ibid., 136.
44
On the divide between the first and third world in American modernization
theory, see Nils Gilman, Mandarins of the Future, 72-74. For a slightly different
perspective, see Bradley R. Simpson, Economists with Guns: Authoritarian
Development and U.S.-Indonesian Relations, 1960-1968 (Stanford: Stanford
University Press, 2008).
45
Malik, “The Individual in Modern Society,” 145 ff. Malik’s seven different
conceptions of the individual’s relationship to society ascend from the tribalism of
“African society,” through Chinese, Russian, India, Muslim, Latin and Western
European models, with the last serving as the ultimate example of a society
structured around the freedom of the individual.
Provincializing Human Rights? 79
freedom and peace for all.46 The fate of not just the Western individual,
but of all individuals everywhere, was at stake. The Cold War, for Malik,
was not a battle for military supremacy, economic superiority or even
territorial control; it was, first and foremost, a struggle for the hearts and
minds of the unaligned states and peoples of the globe. If the West was to
win the Cold War, it had to confront its own existence in a way that spoke
to the deepest recesses of the human psyche. This much he had already
recognized, with the help of Heidegger, in his Harvard dissertation. Like
his friend and colleague, the American philosopher John Wild, whose
1955 book The Challenge of Existentialism covered similar ground, Malik
remained convinced that the Cold War standoff necessitated an internal
critique of western superficiality more than the establishment of any
external, military posture.47
46
Ibid., 152 and 156.
47
John Wild, The Challenge of Existentialism (Bloomington: Indiana University
Press, 1955).
48
On the ambiguities of the Carter administration’s record on human rights, see,
most recently Iatai Nartzizenfield Sneh’s The Future Almost Arrived: How Jimmy
Carter Failed to Change U.S. Foreign Policy (New York: Peter Lang, 2008).
80 Chapter Two
Havel.49 Pato ka, who had studied with Heidegger and Husserl in Freiburg
around the same time that Malik, provided the philosophical foundation
for the oppositional Charter 77 movement. His writings addressed truth,
authenticity and existence, and became landmarks in the dissident critique
of totalitarian rule, which was no doubt why he was imprisoned and
interrogated by communist authorities, an ordeal that lead to his premature
death on March 13, 1977.
49
“Though the philosophies of Pato ka and Havel incorporated distinctly
Heideggerian themes, their dissident practice in support of human rights is
radically different from Heidegger’s practice.” Aviezer Tucker, The Philosophy
and Politics of Czech Dissidence from Pato ka to Havel (Pittsburgh: University of
Pittsburgh Press, 2000), 12.
50
Tony Judt, Postwar: A History of Europe since 1945 (New York: Penguin,
2005), 568 ff.
51
Václav Havel, “The Power of the Powerless,” in Open Letters: Selected
Writings, 1965-1990, ed. Paul Wilson (New York: Vintage, 1992), 125-214.
52
Ibid., 152.
53
Ibid., 148.
Provincializing Human Rights? 81
that provided and frequently forced on the world all that today has become
the basis of such power: natural science, rationalism, scientism, the industrial
54
Ibid., 274.
55
Malik, “The Metaphysics of Time,” 274.
56
Ibid., 323.
57
Havel, “The Power of the Powerless,” 186.
58
Havel, “Politics and Conscience,” in Havel, Open Letters, 260.
59
Ibid., 263.
82 Chapter Two
60
Ibid., 258.
61
Ibid.
62
Ibid., 260.
63
Ibid., 261.
64
Ibid., 268.
65
Ibid., 267.
66
Ibid., 269 and 271.
Provincializing Human Rights? 83
It is hard not to hear echoes of Malik’s own pleas for recognizing the
importance of “friendship and understanding and truth and love” in the
impassioned paragraphs of Havel’s “Politics and Conscience.” But it is
important to remember that, despite their affinities, Havel’s and Malik’s
contributions to the discourse of human rights do indeed differ, and
sometimes quite significantly. In the name of establishing an authentically
philosophical conception of human rights, Charles Malik was more than
willing, as we have seen, to subject the West to criticism. But he never
entertained the idea that the Western tradition was itself to blame. For
him, the descent into the soulless materialism that dominated the
exclusively economic-centered paradigm of development and modernization
was but a wrong turn for what was otherwise the noble and longstanding
journey of the Western idea of the human person, which had traveled from
the ancient Greek city-states to the hallways of the United Nations. For
Havel, however, it was the Western tradition itself that led to
environmental degradation, impersonal bureaucratization, and, worst of
all, the threat of nuclear annihilation.
67
Ibid., 271.
68
Ibid., 256: “The phenomenon of empathy, after all, belongs with that abolished
realm of personal prejudice which had to yield to science, objectivity, historical
necessity, technology, system, and the apparat—and those who, being impersonal,
cannot worry. They are abstract and anonymous, ever utilitarian, and thus ever a
priori innocent.”
84 Chapter Two
contexts of the local cultural community, and more widely, the natural
environment itself. Malik anchored his notion of human rights in the
authority of a transcendent God, whereas Havel attempted to connect the
abstract, impersonal individuals of the modern world to their increasingly
threatened local communities and regional environments.
Heidegger may have been, as he was for Malik and Havel, a guiding
inspiration for prophetic or existential authenticity. But he was also a
trenchant critic, as both of them realized, of Western rationalism. It was
no coincidence that Malik concluded Man and the Struggle for Peace with
a chapter entitled “The Need for a Western Revolution.”70 In pointing out
the limitations of the West, Malik—and later Havel—was undertaking,
perhaps unwittingly, the painstaking process of dismantling the epistemic
hubris at work in the Universal Declaration of Human Rights. Though
philosophers from around the world weighed in during the initial human
rights debates, evidence of which can be found in the 1949 UNESCO
symposium devoted to the topic, it was all but taken for granted that
human rights, insofar as they were sanctioned and upheld by the United
69
Havel, “The Power of the Powerless,” 207 and 209. On Heidegger and
existentialism and anti-humanism, see of course his “Letter on Humanism,” in
Martin Heidegger, Basic Writings, ed. David F. Krell (New York, Harper & Row,
1977), 213-266. For more on the context of Heidegger’s famous essay, see Anson
Rabinbach, In the Shadow of Catastrophe: German Intellectuals between
Apocalypse and Enlightenment (Berkeley: University of California Press, 2001),
97-128.
70
Malik, Man and the Struggle for Peace, 198-230.
Provincializing Human Rights? 85
Nations, were the purview of the developed, Western world.71 And yet, as
Malik and Havel demonstrated, though the West may have been the home
to great intellectual and spiritual resources, it was also the source of many
dangers as well. This was something that the peoples of the rest of the
globe already knew.
71
UNESCO, Human Rights: Comments and Interpretations (New York: Columbia
UP, 1949). Available at
http://unesdoc.unesco.org/images/0015/001550/ 155042eb.pdf
72
The essay “Human Rights, Rationality, and Sentimentality”, was first presented
as one of the 1993 Oxford Amnesty Lectures, and has been collected in Richard
Rorty, Truth and Progress: Philosophical Papers, Volume 3 (Cambridge:
Cambridge UP, 1998), 167-185
73
Martin Heidegger, “Nietzsche’s Word, ‘God is Dead’,” in The Question
Concerning Technology and Other Essays, trans. William Lovitt (New York:
Harper & Row, 1977), 112.
86 Chapter Two
74
I discuss Rorty’s relation to Heidegger in my Heidegger in America (Cambridge:
Cambridge University Press, 2011). For a critique of Rorty’s antifoundationalist
understanding of human rights see Matthias Kettner, “Rortys Restbegrundung der
Menschenrechte. Eine Kritik”, in Hinter den Spiegeln: Beiträge zur Philosophie
Richard Rortys mit Erwiderungen von Richard Rorty, ed. Thomas Schäfer, Udo
Tietz, and Rüdiger Zill (Frankfurt am Main: Suhrkamp, 2001), 201-228, as well as
Rorty’s own response in the same volume, 229-234.
75
Rorty, “Human Rights, Rationality, and Sentimentality,” 176.
76
Richard Rorty, “Analytic and conversational philosophy,” in Philosophy as
Cultural Politics: Philosophical Papers, Volume 4 (Cambridge: Cambridge UP,
2007), 124.
Provincializing Human Rights? 87
77
Rorty’s attacks on what he called the “American cultural Left” are most pointed
in his Achieving Our Country (Cambridge: Harvard University Press, 1998).
78
See José-Manuel Barreto, “Rorty and Human Rights: Contingency, Emotions
and how to Defend Human Rights Telling Stories,” Utrecht Law Review 7 (2011),
93-112, which makes a much fuller case for this interpretation of Rorty, but also of
wider human rights discourse itself. Available online at http://www.utrecht
lawreview.org/index.php/ulr/article/viewFile/164/163
88 Chapter Two
For Rorty, the discourse of human rights was not an expression of the
fundamental truth of human existence, as both Malik and Havel, working
from Heidegger, would have it. To the contrary, the discourse of human
rights was nothing more than a language of sentimental education that
could be used to inculcate a sense of “sympathy” for the weak and the
oppressed—to get people “to imagine themselves in the shoes of the
despised and the oppressed.”79 More important than working for an
“increased moral knowledge” was the dissemination of “sad and sentimental
stories” that would sway people to the cause of human rights.80 Just as the
later Heidegger turned to the poets for intimations of the “truth of Being,”
Rorty enlisted the help of novelists to make a better world.81 In doing so,
he abandoned the nostalgia for timeless wisdom that still animated the
work of Malik and Havel. Whereas Malik and Havel both held onto
Heidegger as somebody who provides insight into the universal human
condition, Rorty saw him merely as somebody who calls attention to the
limits of rationalism. Rorty’s sympathetic solidarity was a chosen
affiliation, based not on any common, essential humanity or even a
common theory of humanity , but on a shared sentimental rejection of
acts of inhumanity. His “solidarity of the shaken” jettisoned any and all
overarching claims about the existence of “man” or the fate of the West.
For him, human rights represented a form of social hope more than it did
any preordained outcome of human evolution. There was no essential
connection between human rights and the Western tradition, only a
contingent one. As a result, the West could not lay claim to human rights
discourse.
In an essay from the early nineties that invoked the example of Václav
Havel, Rorty lamented that his fellow intellectuals had “grown accustomed
to thinking in world-historical, eschatological terms.”82 What Rorty liked
most about Havel was that he did not try to translate the messy and
unexpected events of the Velvet Revolution into a tidy, predetermined
schematic. Communism’s collapse in Czechoslovakia was the result of
contingent human actions that were rooted in specific human emotions. It
79
Rorty, “Human Rights, Rationality, and Sentimentality,” 179-80.
80
Ibid., 172.
81
On the later Heidegger, see Joseph J. Kockelmans, On the Truth of Being:
Reflections on Heidegger’s Later Philosophy (Bloomington: Indiana University
Press, 1985).
82
Richard Rorty, “The End of Leninism, Havel, and Social Hope,” in Truth and
Progress: Philosophical Papers, Volume 3 (Cambridge: Cambridge University
Press, 1998), 238.
Provincializing Human Rights? 89
83
Ibid., 243.
84
See, for instance, “Solidarity or Objectivity?” and “Science as Solidarity” in
Richard Rorty, Objectivity, Relativism, and Truth: Philosophical Papers, Volume 1
(Cambridge: Cambridge University Press, 1991).
85
Richard Rorty, Contingency, Irony, and Solidarity (Cambridge: Cambridge
University Press, 1989).
86
For Rorty’s optimistic views regarding the prospects of solidarity in the face of
globalization, see his “Globalization, the Politics of Identity and Social Hope,” in
Richard Rorty, Philosophy and Social Hope (New York: Penguin, 1999), 229-239.
87
See, for example, Richard Rorty, Take Care of Freedom and Truth Will Take
Care of Itself: Interviews with Richard Rorty, ed. Eduardo Mendieta (Stanford:
Stanford University Press, 2006).
90 Chapter Two
88
See Fernando Gómez, “Ethics is the Original Philosophy; or, The Barbarian
Words Coming from the Third World: An Interview with Enrique Dussel,”
boundary 2 28 (2001): 19-73.
89
See Fred Dallmayr, “The Underside of Modernity: Adorno, Heidegger and
Dussel,” Constellations 11 (2004): 102-120. See also, Linda Martín Alcoff and
Eduardo Mendieta, eds., Thinking from the Underside of History: Enrique Dussel’s
Philosophy of Liberation (Lanham: Rowman & Littlefield, 2000). More recently,
see also the collected essays in Eduardo Mendieta’s Global Fragments:
Globalizations, Latinamericanisms, and Critical Theory (Albany: SUNY Press,
2007). It is also worth mentioning here Walter D. Mignolo’s Local Histories/
Global Designs: Coloniality, Subaltern Knowledges and Border Thinking
(Princeton: Princeton University Press, 2000) and The Darker Side of the
Renaissance: Literacy, Territoriality, and Colonization (Ann Arbor: University of
Michigan Press, 1995).
90
On Dussel’s connection to Heidegger, see Martín and Mendieta, Thinking from
the Underside of History, 20.
Provincializing Human Rights? 91
For all those who want to disrupt the notion that West is synonymous
with the rest, Heidegger is still, it seems, a useful place to start. As he
explains in the preface to the new edition of his widely discussed 2000
book Provincializing Europe: Postcolonial Thought and Historical
Difference, Dipesh Chakrabarty turned to Heidegger precisely because he
found in his work a trenchant critique of the West. Given that he was
interested in finding out “how thought was related to place,” Chakrabarty
enlisted the help of hermeneutic thinkers like Heidegger to show that
modernization was not a universal process, but a “translational” one.93
Modernity involved not simply the export of the European or Western
tradition to the rest of the world, as Malik and Havel would have it, but the
negotiation, on the ground, of local traditions that came into contact with
this Western legacy. It also involved the struggle between a singular,
universalizing conception of historical progress, which originated in the
West and which Rorty sought to do away with and the multiple and
fragmentary temporalities of cultures that it attempted to subsume.
91
C.L.R. James, “Existentialism and Marxism,” in You Don’t Play with Revolution:
The Montreal Lectures of C.L.R. James, ed. David Austin (Oakland: AK Press,
2009), 103.
92
Ibid., 102.
93
Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and
Historical Difference (Princeton: Princeton University Press, 2008), xiii and xviii.
94
Ibid., 5.
92 Chapter Two
95
Ibid., xiv.
96
Ibid., 18-19.
97
Ibid.
98
Ibid., 254-255.
Provincializing Human Rights? 93
As we can see from this quote, Chakrabarty did not seek to abandon
the West in Provincializing Europe, but only to reframe our view of it—to
see it not from the center, but from the outer limits. For him, “European
thought is at once both indispensable and inadequate,” it must be
“renewed from and for the margins.”99
99
Ibid., 16.
100
See Thomas McCarthy, Race, Empire, and the Idea of Human Development
(Cambridge: Cambridge University Press, 2009), 190: “There is no easy exit from
this predicament.”
101
Dipesh Chakrabarty, “In Defense of Provincializing Europe: A Response to
Carola Dietze,” History and Theory 47 (2008), 95.
102
David Hollinger, In the American Province: Studies in the History and
Historiography of Ideas (Baltimore: Johns Hopkins University Press, 1989), vii.
103
Ibid.
94 Chapter Two
104
Chakrabarty, Provincializing Europe, 254, and “Subaltern Histories and Post-
Enlightenment Rationalism,” in Dipesh Chakrabarty, Habitations of Modernity:
Essays in the Wake of Subaltern Studies (Chicago: University of Chicago Press,
2002), 24. On these issues, it is also worth consulting Chakrabarty’s correspondence
with the novelist Amitav, Ghosh. Amitav Ghosh and Dipesh Chakrabarty, “A
Correspondence on Provincializing Europe,’ Radical History Review 83 (2002):
146-172.
105
Here I am drawing upon José-Manuel Barreto’s “The Decolonial Turn and
Sympathy: A Critique of the Eurocentric and Rationalist Theories of Human
Rights” (PhD diss., Birkbeck College, University of London, 2009).
106
Chakrabarty, Provincializing Europe, 249.
107
Malik, Man in the Struggle for Peace, xxvii.
Provincializing Human Rights? 95
108
On Heidegger’s racism, see Robert Bernasconi, “Heidegger’s alleged challenge
to the Nazi concepts of Race,” in Appropriating Heidegger, ed. James E. Faulconer
and Mark A. Wrathall (Cambridge: Cambridge University Press, 2000), 50-67.
109
See, for instance, Costas Douzinas, Human Rights and Empire: The Political
Philosophy of Cosmopolitanism (New York: Routledge, 2007).
110
Williams, “Human Rights and Relativism,” 67.
111
Ibid., 68.
112
According to Geoffrey Hawthorn, Williams divided the audience for political
theory into two camps, with “the audience” representing theorists and those with
access to power, and “the listeners” representing the supposed recipients of
political decisions made on their behalf. See Hawthorn, In the Beginning Was the
Deed, xv.
96 Chapter Two
age till the present.”113 Perhaps, listening to him and to Rorty, we should
simply abandon the difficult, we might even say impossible, attempt to
ground human rights philosophically—that is, abstractly—and focus
instead on concrete questions of local practice, the kinds of questions
Malik, Havel and Chakrabarty also dare us to ask. We would no longer be
interested in how we might legitimize or theorize rights, but rather, how
peoples at the margins might themselves secure, foster and protect rights
in their own local contexts; best practice, in other words, rather than best
theory. This would be provincial, sentimental education rather than
analytical training, and it would rely upon what Chakrabarty has recently
called “anti-colonial, utopian humanism,” a new humanism that keeps the
universal and the particular always and everywhere in dialogue with each
other.114 If human rights represent the new international solidarity, they
will have to find a home in the places between the center and the margins,
between the geographies of analytical science and hermeneutical empathy,
between what seems universal and what seems local. This third way,
which Chakrabarty calls, after Heidegger, the path of “dwelling,”
recognizes and criticizes both the Romantic nostalgia for particular roots,
particular histories, as well as the need for universal and abstract
aspirations of equality.115 In welcoming the “barbarians” from the
margins, it might also be worthwhile to remember that, as Hannah Arendt,
another Heidegger student, pointed out some time ago, “deadly danger to
any civilization is no longer likely to come from without.”116
113
J. Glenn Gray, The Promise of Wisdom (Philadelphia: Lippincott, 1968), 63.
For more on Gray and Heidegger, see my “J. Glenn Gray: Philosopher, Translator
(of Heidegger), and Warrior,” Transactions of the Charles S. Peirce Society: A
Quarterly Journal in American Philosophy XL (2004): 487-512.
114
Dipesh Chakrabarty, “Humanism in a Global World,” in Humanism in
Intercultural Perspective: Experiences and Expectations, ed. Jörn Rüsen and
Henner Laass (Bielefeld: Transcript Verlag, 2009), 27.
115
Ibid., 35. Fred Dallmayr has also spoken of the importance of establishing a
concept of dwelling that is appropriate for the current historical moment. See, for
example, his Achieving Our World: Toward a Global and Plural Democracy,
(Lanham: Rowman and Littlefield, 2001), and Peace Talks: Who Will Listen?
(Notre Dame: University of Notre Dame Press, 2004). An older and perhaps even
more appropriate discussion of dwelling can be found in the works of one of the
first truly global thinkers, Alexander von Humboldt. On his life and legacy, see
Laura Dassow Walls, The Passage to Cosmos: Alexander von Humboldt and the
Shaping of America (Chicago: University of Chicago Press, 2009).
116
Hannah Arendt, “The Perplexities of the Rights of Man,” in The Portable
Hannah Arendt, ed. Peter Baehr (New York: Penguin, 2000), 44.
Provincializing Human Rights? 97
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98 Chapter Two
SABINE BROECK
White critical theory has not moved far enough beyond an appeal for
supplementation within the logic of the Western subject that has screened
a vexed problematic: because of the gender-raced location white women
and men occupy, their purchase on a subject position comes structurally,
not by a fault within the system, but by fault of the very system itself, at
the expense of un-subjectifying, and thus abjecting what I would like to
call un-whitened people. White critical theory’s centering of the subject as
its locus of analysis and critique has locked that theory into a paradigm of
unacknowledged white discursive hegemony. By way of its reproduction
within a genealogy of the Enlightenment, even if critically reconsidered,
104 Chapter Three
To come into being the white western subject needed its underside, as
it were: the crucially integral but invisible part of the subject has been its
abject, separated by race: African slaves, i.e. unwhitened humans who
were so tied to the emerging subject that—structurally speaking—they
could not even occupy the position of the dialectical Hegelian object as
“Knecht”. Hegel allegorized slavery into a seductive mental model of
longue durée acclaim and mental hold over Western cultures. He did so by
idealizing the opposition, that is, by severing the signifier from any
referent and by creating the modern individual as “former Knecht/slave”
The Legacy of Slavery: White Humanities and its Subject 105
As the popular English hymn has it, Brittania rule the waves, we
Englishmen never shall be slaves. Despite owning slaves became an
instrumental, useful and productive way of ordering affairs, it did not
become a critical issue for European philosophy. The European white
identification with the “slave position”, which the Hegelian allegory has
afforded,1 has conveniently obscured the fact that, in the global scheme of
things, Europeans themselves acted as enslavers. The “Knechte” turned
into “Herren”, ie. into full subjects, by turning themselves into colonial
masters—or at least into potential masters—of humans tied to them as
“belongings”; such a chattel was inextricably and quite un-dialectically
bound to the master subject by being structurally severed from the race of
human subjects.2 Possession—of self and other—was the sine-qua-non for
(white) freedom, which meant that the ones who found themselves
possessed could not, by reverse definition, access subjecthood. Thus, the
Enlightenment, with its impetus for individual self-ownership, self-
responsibility, productive self-realization and subjective and objective
rights to freedom, learned to operate within a system of a large-scale racial
parasitism.
Seen from a post-Middle Passage perspective, that is, from the position
of the enslaved, the modern free subject is the result of slave trading and
colonialist practices. This means in turn that the culture of slavery was
essential to the formation of modernity—not its somehow paradoxical
excess, nor an unwanted, shameful and by now discredited and disowned
by-product. In their basic denial of this constitutive role of transatlantic
slavery, critical philosophies of modernity have been marked by repetitive
configurations of split consciousness and ethical avoidance.
1
See Sabine Broeck, “Never Shall We Be Slaves: Locke’s Treatises, Slavery and
Early American Modernity,” in Blackening Europe: The African American
Presence, ed. Heike Raphael-Hernandez (New York/London: Routledge, 2004).
2
See Francoise Vergès, La mémoire enchaînée: Questions sur l'esclavage (Paris:
Michel, 2006); Sylvia Wynter and David Scott, “The Re-Enchantment of
Humanism: An Interview with Sylvia Wynter,“ Small Axe 8 (2000): 119-207;
Orlando Patterson, Slavery and Social Death: A Comparative Study (Cambridge:
Cambridge University Press, 1982).
106 Chapter Three
Social critique has used the slave trade and slavery in very creative, but
mostly metaphorical ways. Slavery in the abstract provided the modern
symbolic with an intricate apparatus for the formulation and critique of
mechanisms of social inclusion or exclusion, of privilege and liminality. In
Western societies, modernity has constituted itself within a particular logic
of the subject. It has done so by creating a philosophically justified
freedom of the white subject that presupposes the non-subjectivity of
others—a result of the direct or indirect ownership of those others. In the
same way, white Western theory has been developed within a framework
of a modernity innocent of slavery and its emphatic philosophical
foundations of the subject and subjectivity. Critical theory has avoided
searching for the traces of its own historical rootedness within this
philosophical and political regime of freedom as ownership. It entered a
dialogue almost exclusively with the cultural history of European
modernity and postmodernism, rather than with philosophical approaches
generated by Black diasporic critical narratives not always posing as
“theory”—ranging from 18th century slave narratives to recent postcolonial
and African-American interventions—which have questioned the
naturalized universality of the free subject’s epistemological reign by way
of putting enslavement at the center of their investigation of modernity.
Neither psychoanalysis, nor Foucaultian theory, nor the Frankfurt School,
nor poststructuralist/gender theory have sufficiently dealt with the
genealogy of the subject created within social practices of enslavement
and colonization. Such practices were characterized by divisions, as well
as by convergences, across gender and race constellations marked in turn
by the conditions of white ownership—literally, and/or metaphorically—
of un-whitened human beings. The aim of such a thick description will be
to understand the intricate psychic, social and intellectual mechanics of
Western modern culture of control and ownership, and the role the human
subject has played in its formulation and (re)production.
One needs to work through the reasons why we need to enter the
subject once more, or the motives why we need to look at the Western
fascination with the subject in light of what we know about slavery and the
European investments—not just financial—in the slave trade. And through
the rationale behind why is necessary to look at the gendered/raced subject
in the creation of a “master of enslavement”—subjectivity. How to re-
think freedom and human articulation in terms other than self-possession
—undeservedly read as an opposition to humans beings possessed—is a
question that has plagued liberation theory too. This has become urgently
important now that the Enlightenment has become militantly vivified
within the discourses of European/Western superiority, and in the Western
refusal to recognize the problematic of wasted, precarious and unwanted
lives. Critical Theory needs to account for its own groundedness in the
compromised character of the Enlightenment. Otherwise it will not be
productive and useful for reading the post-postmodern global moment.
That moment must be de-colonial, which means that Foucault’s, Bauman’s
and Agamben’s theory lines—but also advanced gender theory like
Butler’s or Braidotti’s—need to be revised by way of making a historical
connection to the early Modern, humanist phase of globalisation: the
transatlantic slave trade and New World slavery. Only a thorough and
patient re-reading of Western postmodern theory—from Adorno to
Bauman and Butler et. al.—from the point of view of Césaire, Spillers or
Wynter—to name a small number of black diasporic theorists
paradigmatically, whom I offer as witnesses and iconographic markers of
my project—can provide the epistemological horizon to re-think global
post-postmodernity in ways that go beyond the human subject, as we
know it in the West, as motor, agent and guarantor of human history.
3
Max Horkheimer and Theodor Adorno. Dialektik der Aufklaerung (Frankfurt:
Suhrkamp, 2002 [1944]).
108 Chapter Three
human subject of history and, on the other, passive beings clearly distinct
from that subject—who figure in the Dialectic as creatures who are able to
“give themselves to” life.4 The authors position those beings within a
costly logic of teleological development in favor of aggressive
instrumental reason, on a scale of before and after—even though for the
Dialectic, of course, both stages of development have been present in the
world at the same time. The text keeps returning to this radical rejection of
instrumental reason as a logic of self-extermination of the human subject
without, however, acknowledging the divisive and violent historical
separation of the modern orbit in its subjects and un-subjects—or abjects,
as it were. It refuses to see that those creatures —who in the
Enlightenment’s logic irrationally surrender to life—by no means predate
the modern subject but share the subject’s modern orbit in a position of
oppressed and abjected by this very subject.
4
Ibid., 36.
The Legacy of Slavery: White Humanities and its Subject 109
5
Ibid., 90.
The Legacy of Slavery: White Humanities and its Subject 111
We need to shift from talking about slavery, and maybe even the slave
trade, in its ossified form that has already taken on the “understood-ness”
of the term “slave” without retaining the scandal of enslavement—to
talking about those white European subject’s early modern social, cultural
and political practices of enslavement. These were the grounds, so to
speak, on which the modern “item” slave came into being, in the first
place, as a movable thing, a monstrous number for cargo, and an object of
investigation and metaphor.
6
Norbert Elias, Ueber den Prozess der Zivilisation. Soziogenetische und
psychogenetische Untersuchungen (Frankfurt: Suhrkamp, 1976 [1939]); Max
Weber, Die protestantische Ethik und der Geist des Kapitalismus (Weinheim:
Belz Athenaeum, 2000 [1904/5]).
7
Sabine Broeck, “Never Shall We Be Slaves”.
114 Chapter Three
Last but not least, white Gender Studies will need to re-write its
genealogy with a sharper focus on how white feminisms—after all the
grounds on which it stands—has historically occupied a crucially double
position: faced with modern patriarchal restrictions of women’s humanity,
their struggle to gain internal recognition as subjects has been from the
beginning implicated in drawing cultural, ideological and political lines
against the slave. Early abolitionist resistance against slavery inevitably
slid into a conceptualization of women’s own subjectivity as “not
enslaved”. This rhetoric has helped to codify the conceptual category of
“the slave” which white woman is not. White feminism has moved to a
rhetorizisation of slavery, which made the term lose its power to figure
New World enslavement and white women’s implications in regimes of
enslavement. In this way, feminism and Gender Studies have supported a
disarticulation of black male and female agency. The space into which
8
See for just one paradigmatic example: Pamela H. Smith and Paula Findlen,
Merchants & Marvels: Commerce, Science and Art in Early Modern Europe (New
York: Routledge, 2002).
The Legacy of Slavery: White Humanities and its Subject 115
9
Simone de Beauvoir, The Second Sex (New York: Vintage, 1989 [1949]);
Marilyn French, The Women’s Room (London: Virago, 2007 [1977]).
10
See Hortense Spillers, Black, White, and in Color: Essays on American
Literature and Culture (Chicago: University of Chicago Press, 2003), 203-229.
11
See Sabine Broeck, “Enslavement as Regime of Modernity: Re-reading Gender
Studies Epistemology Through Black Feminist Critique,” Gender Forum, Special
Issue Black Women’s Writing Revisited, edited by Sabine Broeck, 22 (2008).
Available at http://www.genderforum.org/issues/black-womens-writing-revisited/
enslavement-as-regime-of-western-modernity/
116 Chapter Three
Bibliography
Beauvoir, Simone de. The Second Sex. New York: Vintage, 1989 [1949].
Broeck, Sabine. “Never Shall We Be Slaves: Locke’s Treatises, Slavery
and Early American Modernity.” In Blackening Europe:The African
American Presence, edited by Heike Raphael-Hernandez. New York/
London: Routledge, 2004.
—. “Enslavement as Regime of Modernity: Re-reading Gender Studies
Epistemology through Black Feminist Critique.” Gender Forum,
Special Issue: Black Women’s Writing Revisited, edited by Sabine
Broeck, 22 (2008). Available at
http://www.genderforum.org/issues/black-womens-writing-revisited/
enslavement-as-regime-of-western-modernity/
Césaire, Aime and Joan Pinkham. Discourse on Colonialism. New York:
Monthly Review Press, 2000 [1950]).
Elias, Norbert. Ueber den Prozess der Zivilisation. Soziogenetische und
psychogenetsche Untersuchungen. Frankfurt: Suhrkamp, 1976 [1939].
French, Marilyn. The Women’s Room. London: Virago, 2007 [1977].
Horkheimer, Max and Theodor Adorno. Dialektik der Aufklaerung.
Frankfurt: Suhrkamp, 2002 [1944].
Smith, Pamela H. and Paula Findlen. Merchants & Marvels: Commerce,
Science and Art in Early Modern Europe. New York: Routledge, 2002.
Spillers, Hortense. Black, White, and in Color: Essays on American
Literature and Culture. Chicago: University of Chicago Press, 2003.
Vergès, Francoise. La mémoire enchaînée: Questions sur l'esclavage.
Paris: Michel, 2006.
Weber, Max. Die protestantische Ethik und der Geist des Kapitalismus.
Weinheim: Belz Athenaeum, 2000[1904/5].
Wynter, Sylvia and David Scott. “The Re-Enchantment of Humanism: An
Interview with Sylvia Wynter”. Small Axe 8 (2000).
CHAPTER FOUR
‘MORAL OPTICS’:
BIOPOLITICS, TORTURE AND THE IMPERIAL
GAZE OF WAR PHOTOGRAPHY
EDUARDO MENDIETA
No “we” should be taken for granted when the subject is looking at other
people’s pain.1
The issue is not whether the torture was done by individuals (i.e., “not by
everybody”) but whether it was systematic. Authorized. Condoned. All
acts are done by individuals. The issue is not whether a majority or a
minority of Americans performs such acts but whether the nature of the
policies prosecuted by this administration and the hierarchies deployed to
carry them out makes such acts likely. Considered in this light, the
photographs are us. That is, they are representative of the fundamental
corruptions of any foreign occupation together with the Bush administration’s
distinctive policies.2
The photo cannot restore integrity to the body it registers. The visual trace
is surely not the same as the full restitution of the humanity of the victim,
however desirable that obviously is. The photograph, shown and
circulated, becomes the public condition under which we feel outrage and
construct political views to incorporate and articulate that outrage.3
…as Botero’s Abu Ghraib series reminds us, for the limits of photography
are not the limits of art. The mystery of painting, almost forgotten since the
1
Susan Sontag, Regarding the Pain of Others (New York: Farrar, Straus and
Giroux, 2003), 7.
2
Susan Sontag, At The Same Time: Essays & Speeches (New York: Farrar, Strauss
and Giroux, 2007), 131.
3
Judith Butler, Frames of War: When Is Life Grievable? (London: Verso, 2009), 78.
118 Chapter Four
4
Arthur C. Danto, “The Body in Pain,” The Nation November 27 (2006): 24.
5
Judith Butler, “A Carefully Crafted F**K You: Nathan Schneider interviews
Judith Butler” Guernica, available at http://www.guernicamag. com/interviews/
1610/a_carefull _crafted_fk_you/.
6
Michel Foucault, This is Not a Pipe (Berkeley: University of California Press,
1983), 2.
Biopolitics, Torture and the Imperial Gaze of War Photography 119
7
Sontag, At the Same Time, 214.
8
Hans Jonas, The Phenomenon of Life: Toward a Philosophical Biology (Chicago:
University of Chicago Press, 1982), 171.
9
Ibid., 173.
120 Chapter Four
In the following I want to, first, show the ways in which painting
stands in an intimate relationship to philosophy by considering Foucault’s
relationship to Magritte; second, I will argue, in reverse to the prior point,
that there are painters who can help us see philosophers in a new light. If
you like, if philosophers find painters productive, I want to say that
painters in turn can help us re-think, or think at different level,
philosophers. I will develop the latter point by discussing Fernando
Botero’s painting on the Abu Ghraib torture perpetrated by US soldiers.
Third, as I discuss the ways in which Botero reveals something new about
Foucault, I will bring into discussion Sontag and Butler on the politics and
ethics of photographing torture, as I consider Leon Golub’s own canvasses
of torture, and Arthur C. Danto’s own reflections on Golub’s provocative
elucidation of a ‘moral optics.’
I
After the much quoted preface, with its delightful and loud Borgesian
laughter, Foucault’s The Order of Things (1970) opens with a chapter
simply titled “Las Meninas.” In a way, this famous painting by Velázquez
is the visual representation of the very invisibility of the framing of
representation. If Les Mots et les Choses is about the “positive
unconscious of science”10 that is discerned by Foucault’s tracing the map
of the “epistemological space” that allows for knowledge to be ordered in
a new way, Las Meninas offered us a visual feast of that which enables
seeing that is itself not seen. Foucault writes in this chapter the following:
10
Foucault, The Order of Things: An Archeology of the Human Sciences (New
York: Vintage, 1970), xi.
11
Ibid., 9.
Biopolitics, Torture and the Imperial Gaze of War Photography 121
This is one of the questions that Foucault aims to answer in his essay
on Magritte, which is titled This is not a Pipe (1983), as well as his lecture
on Manet (2009), although I will not discuss this here13. I think that the
heart of this long reflection on Magritte resides in Foucault’s affirmation
that Magritte’s work is the enactment of the dissociation, or uncoupling of
similitude and resemblance. For Foucault, resemblance is at the service of
representation, while similitude is at the service of repetition. Painting
accomplishes its task of constructing a visual field by conjoining
resemblance and similitude, without conflating them. Similitude is utilized
when resemblance has been exhausted. But what Magritte has done is
uncoupling them in order to take similitude to play, rub, question or
challenge resemblance. And it is in this playful resistance that painting
becomes meta-painting. In fact, it could be claimed that Magritte’s work
accomplishes this turn to meta-painting that Velázquez had inaugurated
with his reflexive painting. What Foucault discerns in Magritte, as well as
in Velázquez, is the way in which these two painters unveil the grammar
of representation. In Velázquez’s case, by the way in which he makes
12
Michel Foucault, This is Not a Pipe, 57.
13
Foucault gave a series of lectures on Manet in the late Sixties, while he was still
a professor in Tunis. In fact, according to Nicolas Bourriaud, Foucault drafted a
course on the evolution of painting from the Renaissance to the modern period.
What is noteworthy is that in his lectures Foucault was also interested in the ways
in which Manet made visible the invisibility of both the painter and the viewer by
using a visual grammar that directs our gaze without painting the invisible. See
Michel Foucault, Manet and the Object of Painting, introduction by Nicolas
Bourriaud, trans. Matthew Barr (London: Tate Publishing, 2009).
122 Chapter Four
evident the synthesizing role of the absent painter, who is nonetheless the
absolute possibility of framing. The artist paints only by framing himself
out of the frame. In Magritte’s case, by the way in which he provides x-
rays, so to say, of how it is that paintings do what they do. Two examples
of meta-painting closely discussed by Foucault are Représentation (1962)
and Décalcomanie (1966). In both paintings we have a lateral enactment
of similitude. In one case, a bucolic scene is repeated on the left between
two incongruous and ornamental pillars (a visual neoplasm, if you will). In
the other, the silhouette of a man represented from the back becomes the
cut out on a curtain that reveals an empty sky. The relationship is not one
of resemblance, which relies on mimesis, neither an approximation of it.
What is at work here is similitude dismantling the very act of
representation by repeating without reproducing. Similitude militates
against symmetric and transparent equivalences that would conceal their
artifice behind their naïve mimesis that multiplies objects. Foucault writes:
II
The publication of Michel Foucault’s Collège de France courses from
the seventies through the early part of the eighties is forcing us to
reconsider not just the reception of his work, but also where its
14
Foucault, This is Not a Pipe, 46.
Biopolitics, Torture and the Imperial Gaze of War Photography 123
For the moment, propaedeutically, let me focus on the key last chapter
of La Volonte de savoir, which is titled “Right of Death and Power over
124 Chapter Four
Life.” These few, condensed, but explosive pages, with only two footnotes
to the same text, are probably some of the most generative philosophical
pages of the second half of the twentieth century. For it is in these pages
that in 1976 Foucault announced the project of an analysis of the
emergence of a new form of political power, namely biopolitical power.
This new form of political power, at least since the seventeenth century,
had abrogated for itself the task not of ‘putting to death’ in the name, in
praise, or as exaltation of the might of the sovereign; on the contrary, it
had claimed for itself the power over life, to administer life, ‘to make live
and to let die,’ in the name of everyone, not of the sovereign as the king,
but of the sovereign as a living body, as a population. This new form of
political power, or biopower, has evolved along two axes. Along one axis,
it has developed a series of disciplinary technologies that come to bear
upon the body as a machine. These technologies form an anatomopolitics
that aims to optimize the capabilities of the body by rendering it more
docile and pliable to be inserted within systems of economic and political
control and efficiency. Along the other axes, the body is treated not
singularly but as part of a species, a genera, whose basis is entirely
biological and organic. Here the body is seen as part of a system of life
processes: birth, mortality, health, life expectancy, and anything that
increases or decreases these. The body seen as an instance of a species
falls under the regulatory controls that form a biopolitics of populations.15
It was at the pivot of the two axes along which developed the entire
political technology of life. On the one hand it was tied to the disciplines of
the body: the harnessing, intensification, and distribution of forces, the
adjustment and economy of energies. On the other hand, it was applied to
the regulation of populations, through all the far-reaching effects of its
activity.16
15
Foucault, The History of Sexuality. Volume 1. An Introduction (New York:
Pantheon, 1978), 139.
16
Foucault, The History of Sexuality, 145.
Biopolitics, Torture and the Imperial Gaze of War Photography 125
17
Ladelle McWhorter, Racism and Sexual Oppression in Anglo-America
(Bloomington: Indiana University Press, 2009).
Biopolitics, Torture and the Imperial Gaze of War Photography 127
zombies of the biopolitical state of security that assumed legal status with
the Patriot Act.
Botero’s work has also been the target of dismissal and derision,
notwithstanding its international recognition. Yet, he is a cross over artist,
who has gained acceptance across classes and levels of status alike. His
paintings are reproduced for popular consumption and they sell in galleries
for exorbitant prizes. Botero’s paintings, however, are difficult to
characterize, though prima facie they seem to repeat the same formal
techniques of the venerated masters of painting. While his work has been
dismissed as being naïve, folklorist and repetitive, Botero has also
produced a vast number of paintings that are overtly political and have
gone on to be seen as chronicling the darkest chapters of the last half a
century of Latin American history. Notwithstanding all of this, the works
that concern me here are his paintings and drawings on Abu Ghraib.
128 Chapter Four
The oil paintings are mostly between five by four and seven by five
feet. They are life size and occupy easily a wall. The colors are extremely
vivid and alive and, given their composition, they evoke the staging of
historical events. They monumentalize without celebrating. These
paintings have taken the ephemera of war, terror, violence and
dehumanization and put them on a historical stage. In this way, Botero has
rescued the dignity of those who suffered these acts of terror without
condoning or celebrating the violence done unto them. A photograph is a
shot. It is a frozen frame. It is the blink of the eye. Yet, a photo shot
dissimulates its framing. The evidence of what is seen erases how it is
seen, how it has been surrendered to the eye. A photograph is frozen time
that dissolves its staging. It is a visual shot captured by a chemical reaction
that negates the temporality of all human action. Botero’s paintings are an
attempt to regain the temporal staging of the acts of torture. Torture is not
a moment but a string of actions. It is not an event, or eventuality, but a
procedure, a process that goes on over time within certain institutions.
Torture is sovereign temporality as it performs its violence within its
institutions. Torture is performed within a time frame that is dictated by
the sovereign exception.
The acts of torture are not something that a few did, against some
unknown “unlawful” combatants. The acts of torture correspond to a
frame of action, a policy, an event of force, a staging of military power. By
Biopolitics, Torture and the Imperial Gaze of War Photography 129
As one gets closer to the paintings, the historical frame recedes, and
what comes to the foreground are the details. Botero’s Abu Ghraib
paintings are full of features that return us to the physicality of torture. As
if to underscore this fact, Botero painted two close ups of a hand and a
foot bound by a tightly tied rope. The skin is lacerated, mauled, and blood
is freshly flowing in droplets. Reduced to anonymity by a military system
that racks them in order to extract “vital information,” these bodies are
shown in their irreducible corporeal injurability. These tortured bodies are
human bodies. Human dignity is at base a corporeal dignity. Against the
torture of the biopolitical security state, which tortures to save “our”
society, Botero juxtaposes the embodied humanity of these tormented
bodies. Against the frame of war and official violence, Botero directs us to
the detail of the terrorized gape and the bleeding flesh. Abu Ghraib may be
“us” as Sontag wrote, and Abu Ghraib may become the visual emblem of
the US war against the Iraqi people, but because of Botero, Abu Ghraib
has now become part of the archive of human suffering at the hands of the
violence of lawless sovereigns.
III
The title of this chapter comes from a wonderful line that is to be found
in a short essay by Arthur C. Danto, published in The Nation, Nov. 17,
1984. The essay is a review of a retrospective of Leon Golub’s work held
at the New Museum in New York City, when the museum was still on
Broadway. I happen to have seen this exhibition. The canvasses were
gigantic. They were probably between 15 and 20 feet high. They hanged
from the ceiling, unadorned, unframed, like curtains covering some
massive windows. They reminded me of the tapestries depicting wars and
animals hunts that adorned the imperial dwellings of medieval royalty.
You had to step back, way back to get a sense of the scene. Most of the
canvasses depicted scenes of torture, interrogation, and the modus
operandi of death squads. Golub was explicit that these were scenes
referring to the torture that had taken place during the Contra Wars in
Nicaragua and Guatemala, as well as torture scenes in South Africa. The
canvass had a photographic framing, or rather they were painted as if
taking a picture. They depict staged scenes, as if the torturers had posed
for Golub. There is both an intimacy and playfulness that would like to
make mundane the violent acts depicted. This makes them even more
shocking, for they feign a normality that is belied by what is depicted. One
is made to reach for Arendt’s wonderful phrase: “the banality of evil.” But
here, banality is the quotidian and almost pedestrian character of the
132 Chapter Four
18
Arthur C. Danto, “Leon Golub,” in The State of the Art (New York: Prentice
Hall Press, 1987), 20.
19
Butler, Frames of War, 74.
Biopolitics, Torture and the Imperial Gaze of War Photography 133
20
Danto, “Leon Golub,” 21.
21
Roland Barthes, Camera Lucida: Reflections on Photography (New York: Hill
and Wang, 1981), 9.
134 Chapter Four
22
Butler, Frames of War, 67.
Biopolitics, Torture and the Imperial Gaze of War Photography 135
By time Barthes means here the trace of a historical event, of what has
happened. What is important about the photograph is not so much whether
it is accurate and how it delivers the object, but that it framed an event in
history. That a photograph was taken is testimony that it happened. This is
particularly true of the Abu Ghraib pictures, as Philip Gourevitch and
Errol Morris demonstrated in their documentary about the individuals who
were involved in the Abu Ghraib scandal.24 Most of these pictures were
taken by US army specialist Sabrina Harman, who was indicted for
prisoner abuse and military misconduct. As it emerged from extensive
interviews with Morris, Sabrina had been taken pictures to document what
the ‘army’ was doing and letting happen, rather what they themselves
were doing, or being forced to do.25 After Gourevitch and Morris we will
have to learn to distinguish between what the Abu Ghraib pictures
portrayed, and what they documented; between what was intended with
the photographs and what they revealed. Yet, this is one case in which
photography’s power of framing exceeded its power to reveal and
disclose. And this is precisely Butler’s point when she writes commenting
on the Abu Ghraib pictures:
23
Barthes, Camera Lucida, 88-9.
24
Philip Gourevitch and Errol Morris, Standard Operating Procedure (New York:
Penguin, 2008).
25
Philip Gourevith and Errol Morris, “Exposure: The woman behind the camera at
Abu Ghraib” The New Yorker, March 24th, 2008.
26
Butler, Frames of War, 71.
136 Chapter Four
Bibliography
Barthes, Roland. Camera Lucida: Reflections on Photography. New York:
Hill and Wang, 1981.
Bennett, Jill. Empathic Vision: Affect, Trauma and Contemporary Art.
Stanford: Stanford University Press, 2005.
Botero, Fernando. Botero: Works 1994-2007. Milano: Skira Editore, 2007.
—. Abu Ghraib. New York: Prestel, 2006.
Butler, Judith. “A Carefully Crafted F**K You: Nathan Schneider
interviews Judith Butler”. Guernica, March, 2010.
http://www.guernicamag.com/interviews/1610/a_carefully_crafted_fk_
you/
—. Frames of War: When Is Life Grievable? London: Verso, 2009.
27
Jill Bennett, Empathic Vision: Affect, Trauma, and Contemporary Art (Stanford:
Stanford University Press, 2005).
Biopolitics, Torture and the Imperial Gaze of War Photography 137
Danto, Arthur C. “Leon Golub.” In The State of the Art. New York:
Prentice Hall Press, 1987.
—. “The Body in Pain” The Nation, November 27, 2006.
http://www.thenation.com/article/body-pain.
Foucault, Michel. The Order of Things: An Archeology of the Human
Sciences. New York: Vintage, 1970.
—. The History of Sexuality. Volume 1. An Introduction. New York:
Pantheon, 1978.
—. This is not a Pipe. Berkeley: University of California Press, 1983.
—. “Society must be Defended” Lectures at the Collège de France 1975-
1976. New York: Picador, 2003.
Gourevitch, Philip and Morris, Errol. “Exposure: The woman behind the
camara at Abu Ghraib.” The New Yorker, March 24, 2008.
Gourevitch, Philip and Morris, Errol. Standard Operating Procedure. New
York: Penguin, 2008.
Joas, Hans. The Phenomenon of Life: Toward a Philosophical Biology.
Chicago: University of Chicago Press, 1982.
McWhorter, Ladelle. Racism and Sexual Oppression in Anglo-America.
Bloomington: Indiana University Press, 2009.
Michaelsen, Scott and Shershow, Scott Cutler. “Does Torture Have a
Future?” boundary 2 33 (2006): 163-199.
Sillevins, John. The Baroque World of Fernando Botero. New Haven:
Yale University Press, 2006.
Sontag, Susan. Regarding the Pain of Others. New York: Farrar, Strauss
and Giroux, 2003.
—. At The Same Time: Essays & Speeches. New York: Farrar, Strauss and
Giroux, 2007.
Spies, Werner ed. Botero: Paintings and Drawings. New York: Prestel,
2007.
PART II:
JOSE-MANUEL BARRETO
And this Diego de Landa says that he saw a tree from whose branches a
captain hanged many Indian women, and from their feet he also hanged the
infant children.
—Bartolomé de las Casas
silence.1 The history of human rights that currently informs the scholarly
debate and orientates activism is the offspring of a thinking coming out
from a particular geographical context. It conflates a wealth of views on
rights, as well as the limitations proper to the space and time coordinates
that the European standing point carries as epistemic location. The
prevailing account of the saga of human rights is ultimately one among the
various contingent possibilities of their historiography.2 It is also one-sided
because it awards a notorious and unfair weight to events occurring within
the frontiers of Europe, both in the history of ideas and in the history of
the practices of resistance.3 Thus, by framing human rights in narratives
constituted mainly by European signposts, the theory of rights remains
within a Eurocentric horizon of understanding.4 In addition, hiding crucial
aspects of their genealogy, the histories of rights elaborated in the West
give little or no significance to the relations between the colonized world
and modern empires. Being born out of the experience of the bourgeois
revolutions, the Eurocentric theories of human rights deal mainly with the
relations between the state and society, or between governments and
individuals, while putting aside the problematic of the interactions
between empires and colonies.
1
Arturo Escobar, “Imperial Globality and Anti-Globalisation Movements,” Third
World Quarterly 25 (2004): 210.
2
Peter Beardsell, Europe and Latin America: Returning the Gaze (Manchester:
MUP, 2000), 35-37.
3
Upendra Baxi, The Future of Human Rights (New Delhi and Oxford: OUP,
2002), xi.
4
This critique of the Eurocentric theory of human rights draws from the
“geopolitics of knowledge” and the “decolonial turn” elaborated by the Latin
American thinkers Enrique Dussel, Aníbal Quijano and Walter Mignolo, who have
drawn close around the Modernity/Coloniality project of investigation. See Enrique
Dussel, “Eurocentrism and Modernity”, in The Postmodernism Debate in Latin
America, ed. John Beverly et. al. (Durham and London: Duke University Press,
1995). Aníbal Quijano, “Coloniality of Power, Eurocentrism and Latin America,”
Neplanta: Views from the South 3 (2000): 533-580. Walter Mignolo, “The
Geopolitics of Knowledge and the Colonial Difference”, The South Atlantic
Quarterly 101 (2002): 57-96.
Imperialism and Decolonization as Scenarios of Human Rights History 143
inside and constitutes it.5 In this interpretation the events of the Conquest
of America and the colonisation of the world at large are also recognised
as milestones of the modern history of human rights. Human rights are
thought of in the horizon of the world system and in context of the
relationships between modern empires and colonies, placing “the non-
Europeans at the core of the human rights discourse”.6 A Non-Eurocentric
construction of the genealogy of rights can be framed in a long-term
historical horizon. This wider scenario can allow us a glimpse into the
tendencies, changes and discontinuities that human rights have undergone,
and to contextualise the present situation within the dynamics of the entire
history of modernity. From this perspective, the circumstances impinging
human rights today go beyond the present and extend to the whole history
of the modern world since its begginings.
5
Enrique Dussel, “Democracy in the ‘Center’ and Global Democratic Critique,” in
Democracy Unrealized. Documenta 11 Platform 1, ed. Okwui Enwezor et.al.
(Osfildern-Ruit: Hatje Cantz Publishers, 2002), 274.
6
Reza Afshari, “On Historiography of Human Rights. Reflections on Paul Gordon
Lauren’s The Evolution of International Human Rights: Visions Seen”, Human
Rights Quarterly 29 (2007): 47.
7
Edward Said, “Foreword,” in Selected Subaltern Studies, eds. Ranajit Guha and
Gayatri Chakravorty Spivak (New York: Oxford University Press, 1988), v.
144 Chapter Five
8
Upendra Baxi, “Postcolonial Legality,” in A Companion to Postcolonial Studies,
ed. Henry Schwarz et al. (Oxford: Blackwell, 2005), 542.
9
James Brown Scott, The Spanish Origin of International Law: Francisco de
Vitoria and His Law of Nations (Oxford: Clarendon Press, 1934).
10
Carl Schmitt, “The Land Appropriation of a New World,” Telos 109 (1996);
Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum
Europaeum (New York: Telos Press, 2003).
11
Antony Anghie, “Colonial Origins of International Law,” in Laws of the
Postcolonial, eds. Eve Darian-Smith and Peter Fitzpatrick (Ann Arbor: University
of Michigan Press, 1999), 89-90. See also Antony Anghie, Imperialism, Sovereignty
and the Making of International Law (Cambridge: Cambridge University Press,
2005). In the same sense see Peter Fitzpatrick, “Latin Roots: Imperialism and the
Imperialism and Decolonization as Scenarios of Human Rights History 145
The legal tradition used to meet this challenge was the ancient and
medieval doctrine of natural law. The need for providing the Conquest
with legitimacy led to the deployment of natural law within the field of
international law. In this encounter between lex naturalis and jus gentium,
natural rights were first enlisted to validate the crushing of entire cultures
and populations. This insight was developed by Francisco de Vitoria in
order to justify the rule of the Spanish Empire in the territories of
America.13 This task was accomplished by constructing a universally
binding legal framework that was capable of sustaining a jurisdiction
within which the Indians were to be held accountable. With this
undertaking Vitoria actualised Roman law and natural law in modernity.
He defined the relation between jus gentium and natural law as one of
fatherhood or identity adopting one of the canonical text of the Roman
law, the Institutiones Iustinianae I.2.1: “What natural reason has
established among all nations is called the law of nations”.14 As the law of
nations is dictated by natural reason, the guiding principles of international
law that best serve the interest of the just relations between peoples cannot
be other than those of natural law. Thus, the modern understanding of
international law, one capable of sustaining a worldwide jurisdiction, was
created by adopting and incorporating natural law.
in the terms of the modern rationalist spirit that pervades the arguments of
Vitoria, to have use of reason. Considering pros and cons Vitoria soon
arrived to the conclusion he needed regarding the status of the Indians. For
him, the justice of the decisions already adopted by Fernando de Aragón,
Isabel de Castilla and Charles V in relation to the invasion and occupation
of America was not in question. As he declares in his introduction, his
lessons are of a demonstrative nature and only pursue to explain truths
already established.16 In the context of a discussion aimed at establishing
whether or not the “barbarians” had dominion over their possesions and
whether or not they were mad men, Vitoria maintained that they had use
of reason a conclusion deduced from the evidence of the existence
among them of a political and economic organisation, and of a religion.17
However, the impulse behind the recognition of the capacity for reason of
the Indians was not that of the humanistic acknowledgement of the natives
as members of the same species, but rather one of the validation of the
authority of the emperor over his subjects under the principles of natural
law. As Anghie says, “precisely because the Indians possess reason is that
they are bound by jus gentium”.18
16
Vitoria, Political Writings, 234 & 238.
17
Ibid., 250. In this matter Vitoria takes distance from the more wayward
commentators of the time who, like Juan de Sepúlveda, did not recognise the
humanity of the Indians.
18
Anghie, “Colonial Origins,” 94.
19
Homi Bhabha, The Location of Culture (London: Routledge, 1994), 109.
20
Ibid., 89-92.
21
Vitoria, Political Writings, 233 & 251.
Imperialism and Decolonization as Scenarios of Human Rights History 147
of reason he still considers they have a “mental incapacity” that puts them
very close to those mentally ill and even to animals as:
there is scant difference between the barbarians and madmen; they are little
or no more capable of governing themselves than madmen, or indedd than
wild beasts.22
22
Ibid., 290-291. In his comtempt for the Indians, comparisson with animals were
not uncommon, as Vitoria also contennds that they “appear to be little different
from brute animals”. Ibid., 239.
23
Ibidem.
24
There is controversy about the real stand of Vitoria in relation to the Indians.
Acknowledging his at least initial or momentary stance in favour of the rights of
the Indians see William Rasch, Sovereignty and its Discontents. On the Primacy of
Conflict and the Structure of the Political (London: Birkbeck Law Press-Routledge
Cavendish, 2004), 140. In some other cases, those who consider him to be on the
side of the native Americans have incurred in evident misrepresentations: “The
writings of Francisco de Vitoria of the School of Salamanca, defending the claims
of the Indians, and asserting only a slender basis for Spanish imposition of colonial
authority on the heathen peoples of the Americas, put forward political doctrines
which were strikingly liberal in character inasmuch as they asserted the rights of
148 Chapter Five
Since these travels of the Spaniards are (as we may for the moment
assume) neither harmful nor detrimental to the barbarians, they are
lawful.26
the individual conscience against the claims of political power”. Marc Plattner
et.al., The Liberal Tradition in Focus. Problems and New Perspectives (Lanham:
Lexington Books, 2000), 99.
25
Vitoria, Political Writings, 238 & 333.
26
Some lines later Vitoria relies again on his flawed presumptions regarding the
good behaviour of the conquistadors to draw legal conclusions: “But since the
barbarians have no just war against the Spaniards, assuming they are doing no
harm, it is not lawful for them to bar them from their homeland”. Ibid., 278.
27
Ibid., 279-280.
Imperialism and Decolonization as Scenarios of Human Rights History 149
And there are certainly many things which are clearly to be settled on the
basis of the law of nations (jus gentium), whose derivation from natural
law is manifestly sufficient to enable it to enforce binding rights.28
The rights emanating from natural law were for Vitoria precisely the
just titles by which the Spanish empire ruled over the Indians. These
rights, which are possesed only by Europeans, are mainly that “to set forth
and travel” and trade, and that of spreading the Christian religion.29 Any
kind of opposition to the exercise of these pristine rights was to be taken
as an act of aggression and constituted an act of war. The materialisation
of such a hypothesis would provide the Spaniards with the justification to
“defend themselves” and to resort to violence and war. For the war of
conquest was deemed by Vitoria as a just war. In the circumstances of the
Sixteenth century in America this legal framework is to be “inevitably
violated by the Indians” as they were always already “in fault”.30 The
necessary consequence that follows is that the Spanish were always
entitled to fight a just war against the Indians. When the idea of just war
became part of the legal title for the conquest, the legal framework for
legitimizing the massacre of countless peoples of America was completed.
In this way, natural law was transformed into international law of
genocide, and human rights into rights of war, no matter if some caveats
were made regarding the extent to which violence could be exercised:
Once the Spaniards have demonstrated diligently both in word and deed
that for their own part they have every intention of letting the barbarians
carry on in peaceful and undisturbed enjoyment of their property, if the
barbarians nevertheless persist in their wickedness and strive to destroy the
Spaniards, they may then treat them no longer as innocent enemies, but as
treacherous foes against whom all rights of war can be exercised, including
plunder, enslavement, deposition of their former masters, and institution of
new ones. All this must be done with moderation, in proportion to the
28
Ibid., 280-281.
29
Vitoria considers other just titles to rule over the “barbarians in the New World,
commonly called Indians”: the protection of converts, the papal constitution of a
Christian prince, the defence of the innocent against tyranny, true and voluntary
election, for the sake of allies and friends, and the mental incapacity of the
“barbarians”. Ibid., 286-291. Vitoria also contends that the Spaniards can declare
the war to the “barbarians” because they eat human flesh and practice human
sacrifices. He does not consider these practices contrary to natural law, but would
be condemnable because they inflict injustice upon other “men”. Ibid., 225.
30
Anghie, “Colonial Origins,” 95 & 98.
150 Chapter Five
31
Ibid., 283.
32
Ibid., 258-264.
33
In a similar sense see Fitzpatrick, “Latin Roots”. Perhaps the first to assert this
opinion was James Brown Scott, who saw Vitoria as the “founder of the modern
law of nations”. See James Brown Scott, The Catholic Conception of International
Law (Washington: Georgetown University Press, 1934). Above all, Schmitt
negates Vitoria any role as founding father of modern international law, locating
his work within the medieval international law, and considering him a theologian
who “never became a jurist”. However, despite his reservations about Vitoria as a
theologian, Schmitt writes of Vitoria’s approach to international law: “This
allowed theology to become a moral doctrine and in turn (with the aid of an
equally generalising jus gentium), a “natural” moral doctrine in the modern sense –
merely a rational law”. Schmitt, “The Land Appropriation,” 56-57 & 63.
Portraying Vitoria as pre-modern but contending that Nineteenth century
international law was a “return to Vitoria” see China Miéville, Between Equal
Rights: A Marxists Theory of International Law (Chicago: Haymarket Books,
2006), 169-184. See also Martti Koskenniemi, “Empire and International Law: The
Real Spanish Contribution,” University of Toronto Law Journal 61 (2011).
34
The Spanish theory of international law of the epoch has been seen as a
“precursor of currents of thought of natural law in the seventeenth century”. See
Antonio García y García, “The Spanish School of the Sixteen and Seventeenth
Centuries: A Precursor of the Theory of Human Rights,” Ratio Juris 10 (1997): 25-
Imperialism and Decolonization as Scenarios of Human Rights History 151
Las Casas, a Dominican bishop who lived for years among the Indians
in Mexico and witnessed the atrocities committed by the Spaniards,
dedicated most of his life to campaign for putting an end to the abuses.
After travelling to Mexico and being the owner of an “encomienda” a
large portion of land with dominion and possession over its
inhabitants granted by Columbus to his father, Las Casas became a priest
35. See also Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge:
CUP, 2001), particularly the chapter “Imperialism”, and William Rasch,
Sovereignty and its Discontents, mainly the section “Human Rights as Geopolitics:
From Vitoria to Rawls”.
35
The inner ambiguity of the modern subject of law as subjectum and subjectus
has been extensively elaborated by Costas Douzinas. See Costas Douzinas, The
End of Human Rights (Oxford: Hart Publishing, 2000), 216-227.
152 Chapter Five
and later a military chaplain. After the horror of witnessing the treatment
to which the Indians were subjected, he experienced an “awakening of a
dormant sensitivity” and renounced to his own encomienda and slaves.36
Subsequently, Las Casas denounced the carnage caused by the Spaniards,
addressed the Emperor and other authorities, and engaged in public and
scholarly debate. He published detailed accounts of the slaughter of the
inhabitants of the American continent, from Mexico to what today is
Argentina, passing by Cuba and Peru. In some cases he describes what he
saw, while in others re-tells what he heard or read in chronicles written by
witnesses of the events. A single episode happening in a region that later
became Colombia can give us evidence of his engagement with the plight
of the indigenous, as well as a glimpse at the type of despicable acts of
barbarism about which we are speaking about:
It was this same brute who was responsible for the deaths of some fifteen
to twenty leading citizens in a town called Cota. He had them thrown to
wild dogs who ripped them to pieces, and, while there, he also took many
prisoners from among the local people, hacking off the noses of several
women and children and the hands of many men and women. These (and
there must have been some twenty pairs of hands in all) he eventually had
strung up on a pole as a grisly warning to the rest of the town.37
36
Silvio Bedini, ed., Christopher Columbus and the Age of Exploration: An
Encyclopaedia (New York: Da Capo Press, 1992), 408-412.
37
Bartolomé de las Casas, A Short Account of the Destruction of the Indies
(London: Penguin, 1992), 122. See also Bartolomé de las Casas, In Defence of the
Indians (DeKalb: Northern Illinois University Press, 1974).
38
David Stannard, American Holocaust: Columbus and the Conquest of the New
World (New York: Oxford University Press, 1992), ix-x.
Imperialism and Decolonization as Scenarios of Human Rights History 153
destruction of the Indians of the Americas was, far and away, the most
massive act of genocide in the history of the world”.39
The Spaniards rule with perfect right over the barbarians who, in prudence,
talent, virtue and humanity are as inferior to the Spaniards as children to
adults, women to men, the savage and cruel to the mild and gentle, the
grossly intemperate to the continent, I might say as monkeys to men.40
39
Ibid., ix. The significance of the Conquest for the history of genocide has not
been adequately highlighted in the consciousness of our time, and remains hidden
or repressed by the modern moral sense, particularly by that of the European
“civilization”, which continues to profit from it. However, the event of the
Conquest still shapes politically, economically and culturally our present condition
and worldview, paradoxically blurring our understanding of it.
40
Juan Ginés de Sepúlveda, Demócrates Segundo o De las Justas Causas de la
Guerra contra los Indios (Madrid: Instituto Francisco de Vitoria, 1951), 33.
41
Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural
Law, and Church Law, 1150-1625 (Michigan: B. Berdmans Publishing, 1997), 273.
154 Chapter Five
All the peoples of the World are humans and there is only one definition of
all humans and of each one, that is that they are rational…Thus all the
races of humankind are one.42
If we are all humans the jurisdiction of natural law does not operate
only for Europeans but it also extends to the Indians. Contrary to Vitoria,
to be under the jurisdiction of natural law does not lead to the paradoxical
consequences of not having rights, and of being at all times in fault and
deserving of the punishment of war. While Vitoria’s starting point was
that of the right to set forth and travel and trade, Las Casas put emphasis
on the right to liberty to which the Indians would be entitled. At this point,
Las Casas’s theory of natural law advances from a defence against the
violence of the conquerors, to become at the same time a foundation of a
right to self-determination of the Indians. Drawing from Aquinas’
elaborations on natural law, Las Casas states that, as all humans are
rational, they are necessarily endowed with a right to liberty:
As regards humans… they were born free… for liberty is a right (ius)
necessarily instilled in man from the beginning of rational nature and so
from natural law (iure).43
42
Bartolomé de las Casas, Obras Completas, Volume 7. Apologética Historia
Sumaria II (Madrid: Alianza Editorial, 1992), 536-537.
43
Quoted in Tierney, The Idea of Natural Rights, 279.
44
Quoted in Tierney, The Idea of Natural Rights, 280.
Imperialism and Decolonization as Scenarios of Human Rights History 155
Indians.45 The Indians, each one of them and their own rulers, should
necessarily confirm the jurisdiction handed over to the kings as liberty and
consenting on their authorities were rights of the Indians according to
natural law. Should the acquiescence of them not be obtained, or their
negative not respected, the Indians would lose their liberty.46
45
Tierney, The Idea of Natural Rights, 280-281.
46
Ibid., 285.
47
Anghie, “Colonial Origins,” 325.
48
On the contribution of de las Casas to the creation of a modern theory of
universal natural rights see Tierney, The Idea of Natural Rights, 273.
49
Michael Hardt and Antonio Negri, Empire (Cambridge: Harvard University
Press, 2001), 115-116.
156 Chapter Five
British and proclaimed the rights of the citizens of the former colonies.50
This veritable bill of rights fulfiled the function of putting into evidence
the lack of legitimacy of the subjection of the colonies to imperial rule
and, at the same time, it was one of the constitutional pillars for the new
republican political organisation.
The proclamation of rights begins with the motto “all men are created
equal”, which puts equality as the principle that guides the relation
between the British and the inhabitants of the colonies, giving the latter the
same status. In this context the term “all” has a meaning that is different to
that it usually has in the theory of natural law when thinking about the
organisation of society. “All” does not mean here a category
encompassing each one of those individuals belonging to a particular
state to a national political organisation. It alludes instead to a world
jurisdiction, as equality should be predicated beyond Europe to those who
50
The Declaration of Independence enumerated the rights the British should not
have alienated from the inhabitants of the colonies and proclaimed the right to
emancipation. A further declaration of rights, the “Bill of Rights”, was introduced
in 1789 as amendments to the Constitution of 1787.
Imperialism and Decolonization as Scenarios of Human Rights History 157
51
Jürgen Habermas, Theory and Praxis (Cambridge: Polity Press, 1988), 91.
Imperialism and Decolonization as Scenarios of Human Rights History 159
God has equally conceded to men certain natural rights, essential and
imprescriptible, like those to defend and keep their lives, acquire, enjoy
and protect their properties, seek and obtain their security and happiness.
These rights are summarised in four principles, namely: legal freedom and
equality, security and property.52
52
http://www.cervantesvirtual.com/servlet/SirveObras/0133838643313706186768
0/p0000001.htm#I_3
53
In addition, it could be said that the conception of human rights developed
around the relation between individuals and the state counts among its
predecessors and sources a practise and interpretation of human rights rooted in the
struggles between the colonies and colonial rule. This is derived from the fact that
the US Declaration of Independence influenced the French Assembly of 1791, an
historical episode that is well documented but has not been properly thematized.
158 Chapter Five
between Europe and the rest of the world or what is the same, between
empires and colonies.
54
Jean-Paul Sartre, “Preface,” in Franz Fanon, The Wretched of the Earth
(London: Penguin, 2001), 17.
55
Bonny Ibhawoh, Imperialism and Human Rights: Colonial Discourses of Rights
and Liberties in African History (Albany: SUNY, 2007), 2-3 & 6. Ibhawoh’s work
is one of the first to explore the role rights performed during the process of
decolonisation of Africa, a task that is longly overdue.
56
Cited by Hannah Arendt, The Origins of Totalitarianism (San Diego: Harvest
Book, 1976), 221.
57
Afshari, “On Historiography of Human Rights,” 46.
58
Ibid., 48.
Imperialism and Decolonization as Scenarios of Human Rights History 161
When the new independent African and Asian nations were admitted
as members of the United Nations in the 1950’s and 1960’s, the
international human rights instruments were enhanced and taken into a
different direction. In contrast to classical human rights, the right to self-
determination is a right residing in a collective identity, the people. The
UN Declaration on Decolonisation adopted in 1960 established that “all
peoples have the right of self-determination” and sanctioned that foreign
domination of peoples contradicts human rights standards, the UN Charter
and world peace. Some years later the 1963 Declaration on the
Elimination of All Forms of Racial Discrimination condemned racism as
contrary to human dignity and to the principle of equality of all human
beings, and reiteratively mentioned apartheid as a practice that should end
immediately. The right to self-determination was made the first article of
two of the key human rights treaties, the 1966 International Covenants on
Civil and Political Rights and on Economic, Social and Cultural Rights. It
was also after colonisation faded that the right to self-determination of
indigenous and tribal peoples was internationally recognised by the 1989
International Labour Organisation Convention No. 169, and more recently
in the 2007 UN Declaration on the Rights of Indigenous Peoples.
59
Quoted in Balakrishnan Rajagopal, “Counter-hegemonic International Law:
Rethinking Human Rights and Development as a Third World Strategy,” Third
World Quarterly 27 (2006), 770.
60
Theo van Boven, Human Rights from Exclusion to Inclusion: Principles and
Practice (Leiden-Boston: Martinus Nijhoff, 2000), 391.
162 Chapter Five
By the same token, the emergence of the rights of peoples within the
international law of human rights was not free of such ironies. The taxing
struggle against colonialism and the quest for stability of the new
governments conspired to use the right of self-determination as an
ideological pretext to curtail the civil and political rights of the citizens of
the new liberated nations, particularly in Africa, the Middle-East and
Asia.62 This phenomenon was accompanied by a lack of interest in human
rights other than the right to self-determination in international
organisations created by Third World governments to press for a change in
the configuration of world power relations and for a new economic order,
as in the cases of the Movement of the Non-Aligned Countries and the
Group of 77,63 as well as the Organisation of African Unity (OUA).64 In
61
David Andress, French Society in Revolution 1789-1799 (Manchester: MUP,
1999), 1.
62
In Latin America, where by the mid 1950,s independence was already more than
hundred years old, the thread to individual rights and to the international human
rights commitments signed by civil governments came instead from right wing
elites and military dictatorships which, supported by the US imperialist foreign
policy, eroded democracy and systematically violated human rights.
63
Afshari, “On Historiography of Human Rights,” 53-55.
64
Gino Naldi, “Future Trends in Human Rights in Africa: The Increased Role of
the OAU?,” in The African Charter on Human and Peoples’ Rights: The System in
Imperialism and Decolonization as Scenarios of Human Rights History 163
Practice, 1988-2000, ed. Rachel Murray and Malcolm Evans (Cambridge: CUP,
2002), 1.
65
Afshari, “On Historiography of Human Rights,” 42-65. On the case of the
Middle-East see Reza Afshari, “An Essay on Islamic Cultural Relativism in the
Discourse of Human Rights,” Human Rights Quarterly 16 (1994): 235-236.
66
Afshari, “On Historiography of Human Rights,” 51.
67
Paul Gordon Lauren, The Evolution of International Human Rights: Visions
Seen (Philadelphia: University of Pennsylvania Press, 2003), 192.
68
Niall Fergusson thinks in this direction, quoted in Afshari, “On Historiography
of Human Rights,” 51.
164 Chapter Five
69
To move from the sphere of the nation-state to the “post-national constellation”
is not only the consequence of thinking of human rights from the perspective of the
Third World but, as in the case of Habermas, it is also the logical response to the
process of globalisation. Lasse Thomassen, “Introduction” in The Derrida-
Habermas Reader, ed. Lasse Thomassen (Edinburgh: EUP, 2006), 5.
Imperialism and Decolonization as Scenarios of Human Rights History 165
By the same token, constitutional law and the theory of the state have
been assumed to be the disciplines that functioned as intellectual nests of
modern human rights. The debates about the type of political system that
should replace the ancient regime after the English and the French
revolutions, and about how to organize the new polity through a social
contract were made in connection with discussions about bills of rights
and their foundations. Nevertheless, it is not sufficiently known that a
similar intellectual agitation around natural law took place some centuries
before when the Spanish Empire sought to legitimise the Conquest, and
when the indigenous peoples of America and their legal and philosophical
sympathizers, attempted to organize resistance to the slaughter of
millions.70 Francisco de Vitoria and Bartolomé de las Casas’ theories of
natural law were made within the field of international law, the realm in
which it was possible to set out the norms able to rule the relations
between the Emperor and the colonized. These facts allow us to say that
human rights are not only the offspring of constitutional law and the
theory of state, but also the progeny of Sixteenth century international law.
70
In 1559 Bartolomé de las Casas, together with Domingo de Santo Tomás and
Alonso Méndez, were granted legal power from a group of Indians chiefs of Perú
to represent them before the Spanish Crown when a decision about
“encomiendas” a system of distribution of land by which the emperor gave
complete authority to Spanish colonist over vast portions of land and their
inhabitants in exchange of economic compensation was to be taken. Luciana
Pereña and José Manuel Pérez, “Estudio Preliminar,” in Bartolomé de las Casas,
De Regia Potestate o Derecho de Autodeterminación (Madrid: Consejo Superior
de Investigaciones Científicas, 1969), ci-cix.
166 Chapter Five
This Third World perspective also changes the balance within the
standard conception of the so-called “generations of rights”. According to
the commonly held interpretation, in the Eighteenth century the French
Revolution enacted the first generation of rights, that of the civil and
political rights. Economic and social rights the second generation are
associated with early Twentieth century events like those of the Russian
Revolution, the implementation of the agenda of the Social Democracy in
Europe and the creation of the International Labour Organization. Lastly,
the second half of the Twentieth century in which the process of
decolonisation was paramount would have given birth to a third
generation of collective rights, including the right to self-determination,
the right to development, environmental rights and the right to peace.
Imperialism and Decolonization as Scenarios of Human Rights History 167
Concluding remarks
An adequate comprehension of the way in which human rights operate
today requires a consideration of their history from the very beginning of
modernity. A long-term perspective allows us to see the vicissitudes that
human rights have endured and to understand that the current is just the
more recent expression of a dynamic extended throughout the entire
history of modernity. In order to gain such a broad perspective, an attempt
at re-writing the history of human rights has been advanced in this chapter.
In this narrative of the moments in which human rights have played a part
168 Chapter Five
in the political and social upheavals of modernity, the theories of rights are
subjected to a re-contextualisation in a Post-Conquest interpretation of
history. In this different framework, human rights are thought of in the
horizon of the world system and in context of the relationships between
empires and colonies. This alternative history highlights the resistance of
the colonised against the violence of the empires in which natural and
human rights have been an emancipatory force throughout centuries and
alongside the immense geography of the Third World. If this is true, we
should relate the history of human rights not only to European thinkers
and events, but also to all those who are part of the lineage commenced by
Las Casas, whose defence of the rights of the native Americans was “the
first counter-discourse of modernity”.71
While the core of the human rights theory comes from the Greek,
Roman and Medieval doctrines of natural law, such an ancient European
tradition has a number of modern incarnations, not only in Europe but also
in the struggles and theories advanced outside Europe. With the advent of
modernity the ancient doctrine of natural law turned into a body of
theories that flew in the opposite direction from the colonised peoples
towards the European empires. Human rights are not a gift of the West to
the rest of the world.72 The agency and authorship of human rights is also
to be found in the peoples resisting colonialism. These peoples have been
historical subjects or agents of human rights since the Sixteenth century
and will play a similar role in the future. This reframing of the
contemporary understanding of human rights can destabilise and
supplement the hegemonic Eurocentric history and theory of human rights,
which has failed to show their imperial and counter-imperial origins.
Bibliography
Afshari, Reza. “An Essay on Islamic Cultural Relativism in the Discourse
of Human Rights.” Human Rights Quarterly 16 (1994).
. “On Historiography of Human Rights. Reflections on Paul Gordon
Lauren”s The Evolution of International Human Rights: Visions
Seen.” Human Rights Quarterly 29 (2007).
71
Enrique Dussel, “Philosophy in Latin America in the Twentieth Century.
Problems and Currents,” in Latin American Philosophy. Currents, Issues, Debates,
ed. Eduardo Mendieta (Bloomington and Indianapolis: Indiana University Press,
2003), 32.
72
Baxi, The Future of Human Rights, vi.
Imperialism and Decolonization as Scenarios of Human Rights History 169
ENRIQUE DUSSEL
1
Our line of argument presupposes a clear difference between “claim (pretensión,
Anspruch) of truth” and “claim of validity”. See Enrique Dussel, Etica de la
liberación en la edad de la globalización y la exclusión (Madrid: Trotta, 1998), 153;
and Enrique Dussel, “Wahrheitsanspruch und Toleranzfähigkeit”, in Zur Logik
religiöser Traditionen, eds. B. Schoppelreich and S. Wiedenhofer (Frankfurt:
Verlag für Interkulturelle Kommmunikation, 1998), 267-295. This distinction is
impossible in consensualist theories of the truth like those of K.-O. Apel and J.
Habermas.
2
We will demonstrate the way in which Bartolomé de las Casas manages
philosophically to articulate a just and universal claim of truth in accordance with
the dissidence of the Other, dissidence which the Other has a right to, and as such a
just duty (obligación) to defend their position even with arms (a “just war” of
defense of the Indians against the Spanish Christians) taken as far as the “Final
Judgment.” As far as I know, there hasn’t been a position more coherent and
critical.
174 Chapter Six
(which manifests itself vis-à-vis the Muslim world) and the “new world”
as a “world system” (manifest vis-à-vis extra-Mediterranean cultures,
those of the Atlantic and later the Pacific).
In 1552 Bartolomé writes the Tratado sobre los indios que se han
hecho esclavos,3 arguing on the injustice of enslaving the Indians, which
would only be justified if there had been cause for a just war, a matter on
which Juan Ginés de Sepúlveda would in some ways be in accord:
That there has not been just cause [... arises] neither because of offences
done by the Indians, nor because they persecute, impugn, and torment the
Spanish (for the Indians had never seen or encountered them), as do the
Turks and the Moors of Africa4; nor because they possessed lands which in
another time had belonged to the Christians (they never did, or at least it
has never come to light, as it did in Africa in the time of Saint Augustine,
and the reign of Granada, and as it has in the Empire of Constantinople
and the kingdom of Jerusalem5); nor because they are natural adversaries
or mortal enemies6 [...] Well then, solely by the preaching and the
dissemination of the faith among the races of heathen lands [...] has there
never been divine or human law which consents to and permits war, for it
would be totally condemned [...lest] it should be introduced as Mahomet
introduced his.7
3
Bartolomé de Las Casas, Obras escogidas de Fray Bartolomé de las Casas
(Madrid: Real Academia Española, 1957), vol. 1, 258.
4
“Because they never encountered them” is a reference to the extreme novelty of
the occurrence. Furthermore, his suggestions relate to the Mediterranean, to
Southern Europe, as is obvious. The most developed countries were in Southern
Europe; nothing of geopolitical importance to the “world system” could have come
from Northern Europe at that moment.
5
Again all of his references have to do with southern Christian Europe, with the
Mediterranean, from Augustine to Granada, to Constantinople or to the crusaders
in Jerusalem. Later, Descartes, Spinoza or Hobbes will no longer refer to the
South, the Mediterranean, but to the West, the Atlantic, the “new world.” They will
be protagonists of a “second” moment of Early Modernity (which passes for being
the “absolute beginning” of Modernity for European philosophy even to the
present.)
6
Explicit reference to two kinds of antagonists, already indicating the theme that
will occupy C. Schmitt.
7
Las Casas, Obras escogidas, 258-259.
Las Casas, Vitoria and Suárez, 1514-1617 175
8
The situation of this ethical change in favor of the liberation of the Indians can be
seen very clearly in his autobiographical account: “The priest Bartolomé de Las
Casas [...] was going along busily and very carefully in his enterprises [business
we would say today] like the others, sending the Indians to parcel the mines, to dig
out gold and sow the fields, taking advantage of them as much as he could [...But
one day] on Pascua de Pentecostés (Whitsuntide) [...] he began to consider [...]
Ecclesiastes [Ben Sira] chapter 34: Whomsoever offers something in sacrifice that
was stolen is guilty [...] To offer sacrifice with that which belongs to the poor is
the same as killing a child in the presence of his father [...] He began, I say, to
consider their misery.” Bartolomé de las Casas, Historia de las Indias (Caracas:
Biblioteca Ayacucho, 1956), Book III, ch.79; Las Casas, Obras escogidas, vol.2,
356.
9
See Dussel, Etica de la liberación en la edad de la globalización y la exclusión
(Madrid: Trotta, 1998), ch. 4.
176 Chapter Six
misery to which the conquest had reduced the Indian, the “original
negativity”10:
From the moment the Spanish laid eyes on them [Bartolomé metaphorically
presents the Indians as sheep] they pounced on them like ravenous wolves,
or tigers, or lions made cruel from many days of hunger. And they have
done nothing else for the past forty years, to the present day, and they do it
still, nothing save mangle, kill, terrorize, flog, torture and destroy them
with the strangest and most varied means of cruelty, never seen nor read
nor heard of before.11
God made these people, many and varied as they are, the most guileles—
without wickedness or duplicity, extremely obedient and faithful to their
native masters, without dissension or unrest—of any people in the world.
They are likewise the most delicate people, thin and tender in complexion,
the least able to endure labors, and who easily die from any infirmity.12
It has been written that they were not rational enough to govern themselves
in a humane and orderly fashion [...] I have compiled the data in this book
to demonstrate the contrary truth13 As far as politics, I say, not only have
10
See the sense of “original negativity” in my work, Dussel, Etica de la liberación,
1998, 209.
11
Las Casas, Obras escogidas, vol. 5, 136.
12
Ibid. The text continues abounding in the qualities of the Indians: “They are also
extremely poor people and possess almost nothing, nor do they desire to possess
temporal goods [...] They are likewise of pure and free and lively understandings,
very receptive and obedient to all good teaching; they are extremely apt at
receiving our sancta fee [...] These tame sheep, are endowed thus by the Maker and
Creator with the above-mentioned qualities [...]”. The terms “so meek”, “patient”,
“humble” occur often. Las Casas, Obras escogidas, vol. 3, 3.
13
Here Bartolomé enumerates the territorial organization, the cultural, religious
and ethical structure of the American peoples, all of it constituting an immense and
authentic Apología (hence its name: Apologética historia), in two enormous
volumes and in two large format columns. Las Casas, Obras escogidas, vol. 4, 470
Las Casas, Vitoria and Suárez, 1514-1617 177
they shown themselves to be very wise and clever and possessed of clear
understandings, prudently tending and providing for their republics… and
with justice that allows them to prosper [...]14
There are two main ways in which those who have travelled to this part of
the world who call themselves Christians15 have uprooted these pitiful
peoples and wiped them from the face of the earth. Firstly, by unjust,
cruel, and bloody wars.16 Secondly, they have murdered anyone who
might yearn or even think of freedom,17 or of wishing to escape the
torments from which they suffer, as is the case with all the native leaders
and the adult males18 (given that the Spaniards normally spare only women
and children in war),19 crushing them with the harshest, most horrible and
brutal servitude 20 that man or beast has ever been subjected to.21
& 472. The work culminates with a description of that which is “barbarous,” and
the four ways of being such, indicating that the unique title of barbarism would be
that of “infidel” or one lacking of knowledge of the Christian faith. But this type
of barbarism is not culpable nor does it merit any penalty, nor a “just war.” Las
Casas, Obras escogidas, vol. 4, 434.
14
Las Casas, Obras escogidas, vol. 3, 3-4.
15
Notice how Bartolomé points out how they “call themselves Christians,” but in
truth they are not. Rather they are the very contradiction of this great critic’s
understanding of Christianity.
16
If the “master” kills the Other the dialectic is not initiated, it is the simple
annihilation of the exteriority. Thus, the Other is murdered.
17
For Bartolomé the indigenous rebellions are originated among those who are
able “to think freely”. Only under the fear of death can they have liberty of
thought. Once they are assassinated the “Colonial Order” is inaugurated.
18
Anticipating by centuries the talk of “male mankind” to distinguish from “female
mankind.”
19
This illustrious text recognizes the economic-political domination of the Indian,
the sexual violation of women, and the pedagogy of domination of children. See
Enrique Dussel, Para una ética de la liberación latinoamericana (Buenos Aires:
Siglo XXI, 1973), vol. 2, intro. In effect, Las Casas’ text inspired me to develop a
political, erotic and pedagogical reading in this work of mine of 1973. Ibid., v. 3, 4
& 5.
20
He deals explicitly with the “slave” for life.
21
Las Casas, Obras escogidas, vol. 5, 137.
178 Chapter Six
b. When two cultures come face to face, as in the case of the invasion
of America, it should be recognized that the other culture, its participants
and its totality alike, also holds this universal claim of truth. To deny this
right to the other is “bad faith.” The honest participant of the European or
Christian culture may in his internal judgement consider the “claim of
truth” of the other culture’s participant as an “insurmountable ignorance,”
by which he cannot be considered culpable.
d. At this point of the argumentation, the Indian not only has the right
to still affirm his beliefs as truths (given that they haven’t been falsified),
but moreover he has the obligation to observe them. Bartolomé goes so far
22
For a believer—Christian, Nahuatl or Muslim—divine revelation can be
affirmed as infallible, but its reception, its interpretation, its applications are
human, and therefore fallible.
Las Casas, Vitoria and Suárez, 1514-1617 179
e. Bartolomé then departs from the premise by which the Other, the
other culture, has the freedom by natural right to accept or not accept
arguments. To wage war or violence in order to force acceptance (a matter
of consensus or procedural regulations23) of the content of the European
conqueror’s truth (of his “universal claim of truth”), is irrational
theoretically and unjust ethically, because nobody can or should “accept”
the truth of the other without reasons (by sheer violence, fear, or the
timidity to oppose him).
f. The only rational and ethical solution for one who has an honest and
responsible universal claim of truth (whose criterion is the production,
reproduction and development of a humane way of living24) is by
argumentation and by giving ethical examples coherent in their praxis.
For if one resorts to violence he demonstrates that he doesn’t have a
“universal claim of validity,” because validation is that which is freely
accepted by the Other—if the Other’s freedom is denied, then a supposed
truth, without validity, is imposed on him. One’s actions thus demonstrate
the contradiction of claiming, on the one hand, to have the free and
rational consent of the other and, on the other hand, negating that consent.
The claim of validity becomes doubtful and the dogmatism, the fanaticism
and the confusion of attempting to “make the other accept” one’s own
truth without persuasion becomes manifest; it becomes, by contradiction,
an invalidated truth. For Bartolomé, however, the time period of non-
acceptance of the truth is thereby “opened,” whereby which one’s honest
and responsible “claim of validity” knows how to wait for the historical
maturation of the Other.
23
See Dussel, Etica de la liberación, ch.2.
24
See Enrique Dussel, Hacia una filosofía política crítica (Bilbao: Desclèe de
Brouwer, 2001).
180 Chapter Six
Against Ginés and those who hold that human sacrifices are against
natural law, and by extension that there is justification for waging a just
war to save the innocents, Bartolomé writes the following. “Men, by
natural law, are obligated to honour God by the best means at their
disposal, and to offer Him, in sacrifice, the best things.”25 “Now then, it
has fallen to the lot of human law and positive legislation to determine
what things should be offered to God; the latter is already entrusted to the
entire community.”26 “Nature itself suggests and instructs[...] that lacking
a positive law prohibiting the contrary, they should27 even immolate
human victims as an offering to the true God, or false ones considered to
be true,28 so as to offer Him the most precious thing, so that they might
appear especially grateful for the benefits received.”29
That is to say, the offering of sacrifices is not derived from natural law;
rather it is a practical decision which the members of a culture are able to
make rationally, but it is not contrary to natural law. In other words, “the
act of immolating men, although they be innocent, when it is done for the
well-being of the republic, is not contrary to natural reason [...] Thus this
error may have its origin in natural reason.”30 Accordingly Bartolomé
establishes the right to a “lengthy period of dissent”:
25
Las Casas, Apología (Alianza, Madrid: 1989), 155-156.
26
Ibid., 157.
27
Observe that here he speaks not yet of a “right” but of “obligation” (they
should...).
28
Here Bartolomé concedes the “claim of truth” to the other, as long as it cannot
be falsified, as well as the universal “claim of validity” in its respective cultural
universe.
29
Ibid., p.160. If there is no argumentative recourse to disposition in a given
culture “we are obliged to offer Him that which seems to us the most important
and precious possession, that is, human life.” Ibid., p.161.
30
Ibid., 166.
Las Casas, Vitoria and Suárez, 1514-1617 181
Given that they maintain [...] that in worshipping their idols they are in fact
worshipping the true God [...], and in spite of the assumption that they
suffer from an erroneous conscience, until we reveal the true God to them,
by preaching with better, more believable and more convincing
arguments,34 above all by the example of Christian conduct, they are,
without a doubt, obligated to defend the cult of their gods and their
religion and to turn their armed forces out against anyone who intends to
deprive them of their cult [...]; they are thus obligated to fight them, kill
them, capture them, and otherwise exercise all the rights commensurate
with a just war, in accordance with the rights of man.35
31
Ibid., 154.
32
If the “false” has not been falsified by the historical impossibility of available
argumentative resources the “claim of truth” continues being universal, honest
and responsible.
33
Las Casas, Obras escogidas, vol. 5, 471.
34
The position of a critical universalist rationalism remains clearly in evidence. It
must be coherent and not hinder (counter to Rorty, avant la lettre) recognizing the
total liberty of the Other.
35
Ibid., 168.
36
Ibid., 166.
182 Chapter Six
37
Bartolomé always gives the Other, in respect to his Alterity, the right to a “claim
of truth,” which is the counterpart of the “universal claim of validity,” in which he
proposes to honestly and responsibly convince the Other with reason (not with
violence). If the “claim of truth” is not conceded to the Other, but rather he is
posited as a subject of “culpable ignorance,” it is possible to impose “the”
truth our “truth,” which we “possess” with infallible certainty on him by
violence. In this case the European would not have the “claim of truth” but
dogmatic knowledge, and as such, having surpassed the limits of the possibilities
of “finite” reason, he would be able to affirm his truth as infallible, as “absolute”,
thus inevitably containing a completely erroneous position: the incapacity to
evolve, to learn the new, to advance historically. It would therefore be unjust with
respect to the dignity of the Other as a subject for argumentation to have him
placed “asymmetrically”. Therefore the “coincidence,” not the free and rational
“agreement” with the Other, obligated by violence, would not be rational but
merely “affirmation” external to the Other in regard to that which is imposed on
him with neither conviction nor intersubjective validity. Power and violence do
not produce reasons in favor of the truth; they only impose an “untruth” for the
Other.
38
Las Casas, Obras escogidas, vol. 5, 471.
Las Casas, Vitoria and Suárez, 1514-1617 183
Bartolomé was not the innovator of all this; rather he applied the
ancient tradition of Roman and medieval laws in the defence of a new and
modern “political actor”, the indigenous Americans, (conditional) citizens
on the colonial periphery of a nascent Modernity. Given the illegitimacy,
not only of the intended sale of the indigenous lands in the encomiendas of
Peru, but of the entire conquest as such, Bartolomé begins a true political
campaign for the “restoration of the Empire of the Incas to the Incas”; that
is to say, a strategic action to effect the act of restitution demanded by
historical justice. Everything was based on the fact that legitimacy
requires the “consensus of the governed people,” who have full power
over their property and their dominions. It is the “first principle” from
which the Tratado de las Doce dudas (1564) is worked out. He expresses
it thus:
All of the infidels, of whatever sect or religion they may be [...] in regard
to natural and divine right, and that which is called the rights of man, justly
have dominion over their things [...] And by the same justice they also
possess their principalities, kingdoms, states, offices, jurisdictions, and
39
Bartolomé de las Casas, De Regia Potestate o Derecho a la Autodeterminación
(Madrid: CSIC, 1969), I, §1, 16.
40
Ibid., § 8, 47.
41
Ibid., § 8, 49.
184 Chapter Six
domains [... The] regent or governor may not act otherwise save that the
whole society and community has first decided he may [...]”42
42
Las Casas, Obras escogidas, vol. 5, 486-487.
43
Bartolomé de las Casas, De Thesauris (Madrid: CSIC, 1958), 101.
44
Ibid.
45
Las Casas, Obras escogidas, vol. 5, 492.
46
Las Casas, De Thesauris, 218.
47
Ibid., ch. 36.
Las Casas, Vitoria and Suárez, 1514-1617 185
The existence of this colonial world would generate the same debate in
Spain that had already begun in Latin America itself. In its most progressive
aspect it had two sides: that of the Dominicans, earlier and more
theoretical; and that of the Jesuits, later and more practical.
48
See Enrique Dussel, History of the Church in Latin America (Grand Rapids:
Eederman, 1981).
186 Chapter Six
proper sense of the word.49 One should still study that which was
“modern” in the philosophy of the Second Scholasticism in sixteenth
century Europe. For example, Thomas de Vio Cayetano (1469-1534)50
was entirely modern in his theory of analogy—he didn’t simply repeat the
medieval theses. In politics, he opposed the theocratic conception of
Bonifacio VIII in the papal edict Unam Sanctam of 1302. This edict,
however, contained nothing new theoretically, since it simply expressed
the position of Aegidius Romanus (1316), an Augustinian like Luther, in
the tradition of Bernardo de Claraval (1090-1153). Aegidius wrote De
eclesiastica potestate, following Agustin de Hipona in the notion that one
had to respect the necessary “order” of things, since “if the kings and
princes were subject to the Church only in spiritual matters, one sword
would not be subordinate to another [...and] there would be no order to the
powers that be.”51 From here Aegidius deduces that the Popes have
temporal power over the believing kings, the Christian kings—the inverse
position to that of Thomas Hobbes, for whom the Anglican Church would
be entirely subject to the King of England. Marsilio de Padua (1275-
1343),52 and William of Ockham (1290-1350),53 who died in Munich
49
Which, evidently, assumes the positive aspect of a great new global development,
but, at the same time, according to Heidegger, also that of the post-moderns and
anti-Eurocentrics, the negative aspect of the “coloniality of power.”
50
For Cayetano there are three kinds of pagans, infidels, non-Christians or
barbarians terms frequently taken for synonyms: a) the Jews, heretics, and
Muslims who are subjects of the Christian princes (as in Castilla); b) those who
occupy territories which once were Christian, and who are “enemies” of Christians
(i.e. the Turks); and c) those who were never subjects nor occupied Christian
territories (like the Tartars). Regarding the latter, “no king, emperor, nor even the
Roman Church should make war against them.” (Commentary on Saint Thomas'
Summa Theologiae (1540), II-II, q. 66, a. 8). As is evident, the Amerindians
would be classified as the third kind.
51
Aegidius Romanus, De ecclesiastica potestate (Weimar: Bölaus, 1929), Book I,
ch. 4, 13.
52
In the Defensor Pacis, understanding the elective experience of the “Great
Council” with respect to the Venetian Doge, he points out that power emanates
directly from the people, who is able to choose the king (Marsilio de Padua,
Defensor Pacis, (Hannover: R. Scholz, 1932), Dictio I, ch.9, § 2, 40), and
therefore no place remains a universal Emperor, and even less for a universal
power of the Pope, nor even for power of the other bishops (Dictio III, ch.2, § 17,
606), since, in the latter case, a universal council would have to exercise it (Dictio
II, ch.18, § 18, 382). This nominalist tradition, influenced by the Castilian and
Spanish experience in general, would be adopted and developed by Vitoria and
Suárez, for example.
Las Casas, Vitoria and Suárez, 1514-1617 187
53
He did not accept the universal power of the emperor, much less the temporal
power of the Pope, who ruled only with “spiritual power.” William de Ockham,
Dialogus (Frankfurt: Melchior Goldast, 1614), Pars. III, tr. II, Book. I, ch. 25, 896.
54
It is well-known that Venice likewise claimed its liberty before the Empire,
given its geopolitical position of semi-subordination to the Byzantine Empire, the
same as Genoa.
55
See Juan Botella et al. eds., El pensamiento político en sus textos. De Platón a
Marx (Madrid: Tecnos, 1998), 143. Alain Guy, Historia de la Filosofía española,
Barcelona: Anthropos, 1985), 96. Guillermo Fraile, Historia de la Filosofía (Madrid:
BAC, 1966), 313. Teófilo Urdanoz, “Introduction to De Indis”, in Obras de
Francisco de Vitoria, Francisco de Vitoria (Madrid: BAC, 1960), 549.
56
See for example Beuchot: “Bartolomé de Las Casas attempts to follow Vitoria
and Soto [...] even seeming to be unworthy in comparison with those two masters.”
Mauricio Beuchot, Historia de la Filosofía en el México Colonial (Barcelona:
Herder, 1997), 67. The position of Las Casas ends up being radically divergent
from those two Spanish thinkers.
57
In contrast with our opinion, Urdanoz states when considering all the
Relecciones dictated between 1527 and 1541: “In the face of this union of
disparate themes” (Urdanoz, “Introduction”, 82).
58
These are referred to in the following Relecciones: De potestate civili, De
potestate Ecclesiae prior and posterior, De potestate Papae et Concilii, among the
first six.
188 Chapter Six
But along with many reasons for invalidating the conquest, Vitoria
promptly gives other arguments whose “contents” are completely
“modern,” certainly commercially oriented, which, in my opinion, have
been promulgated rather naively, if not cynically. In essence, returning to
a principle whose more than four thousand year existence is rooted in the
Semite deserts of the Middle East, the argument hinges on the “duty of
hospitality” which one is obliged to show to the foreigner, the stranger, the
pilgrim—as written, for example, in the “Law of Hammurabi”63—but in
this case it is subsumed within the horizon of Modernity. “If there are any
things among the barbarians which are held in common both by their own
people and by their guests (hospitibus), it is not lawful for the barbarians
to prohibit the Spaniards from sharing and enjoying (communicatione et
59
De homicidio, De matriomonio (referring to the English problem, in defense of
Spain and, finally, the Papacy), De temperantia.
60
De Indis y De iure belli. The remaining Relecciones, De augmento caritatis, De
eo ad quod tenetur, De simonia and De magia, refer indirectly to some other
aspects, but remain outside of our consideration.
61
In the first part of De Indis, Relección Primera, “by what right have the
barbarians come under the dominion of the Spanish”, one reads that the Indians
were “publicly and privately in peaceful possession of things” (Vitoria, Obras., I,
5, 651), and there is no reason in the conquest for the claim of an irrational
condition, of heresy, etc. In the “second part”, “Unlawful titles...”, he rejects as
reason for the conquest giving the emperor some privilege (Ibid., II, 667), or the
Pope (Ibid., II, 2, 676); by being in a condition of “insurmountable ignorance”
(Ibid., 9, 690); because they are “obligated to believe in the faith of Christ” (Ibid.,
10, 692); and their not accepting it being a reason to make war on them (Ibid., 11,
693), and still more contradictory reasons for the legitimacy of the war against the
Indians are given.
62
Ibid., II, 16, 698.
63
“I have done justice to the foreigner”. See Dussel, Etica de la Liberación, 6.
Las Casas, Vitoria and Suárez, 1514-1617 189
It might seem that these rights were simply universal, proper and just,
but given the situation in the Indies in 1539—the conquest of the
Caribbean, Mexico and Peru (by Pizarro and Almagro) had already been
realized—such affirmations, as mentioned earlier, are either naive or
cynical, given that nobody “passed through” the Indies on pleasure tours,
contemplating the beauty of the scenery or bringing about an equitable
commercial exchange. Las Casas described the unjust violence of the
colonial situation much more adequately. With Vitoria, are we actually
beholding the discovery of “international rights,” on the level of the
“public” or “private subjective” among States? I think, on the contrary,
what we see in Vitoria is the ius gentium of medieval Christianity (of a
secondary and peripheral culture particular to the Muslim world) evolving
into the foundation of an ius gentium europaeum—as Schmitt explains it
in his work Nomads of the Earth —the first framework of the law, not
“international” in any symmetrical sense, but rather strictly a “metropolitan
law”, imperial, colonial, Eurocentric. The rights of those who travel,
conduct commerce, or are capable of being transformed into citizens with
full rights—according to the ius solis—belong only to the Europeans, the
metropolitans. These rights are called in name the “rights of all the
people,” but only the Europeans can avail themselves of them. Vitoria is
not referring to Indians. It is a euphemism to speak, for example, of
“commerce” in the system of the “encomienda,” where the Indian had to
contribute with unpaid labour, receiving nothing in return; and the gold
and silver they mined simply became the private property of the
metropolitan subject or of the crown, without any kind of interchange with
64
Vitoria, Obras, III, 4, 709.
65
Ibid., 2, 705.
66
Ibid., 3, 708.
67
Ibid., 5, 710.
190 Chapter Six
the Indian. The Indians, obligated by the mining system of the “mita” to
spend their lives at the bottom of the mines, were considered to be paying
the tax of colonial rule, without receiving any salary. Vitoria doesn’t
recognize the “right” the indigenous people have—which Bartolomé de
Las Casas confers on them—to refuse these commercial, travelling and
other so-called rights of the citizenry, when the cruel and unjust actions of
the Europeans demonstrate that they carry no benefits at all for the invaded
peoples, but rather, quite the contrary, produce only death, insults,
violations, and domination of every kind. Vitoria denies that the Indians
have the right to oppose the violent Spanish presence.
Disgracefully, like Locke in later years, Vitoria will even recognize the
Spaniard’s right (though not the Indian’s) to “indemnify ourselves with the
property of the enemy [the Indians] for the expenses of the war and for all
the damages unjustly caused by them.”68 In other words, once “victory is
achieved, our property recovered, and the peace and tranquillity [of the
conquest] secured, we can avenge the injuries received [on the Spanish
side] from the enemies [the guilty Indians, and] teach them a lesson,
punishing them for the injuries inflicted.”69 Vitoria concludes that “if the
barbarians attempt to deny the Spaniards in these rights which I have
described as belonging to the law of nations (a iure gentium), that is to say
from trading and the rest, the Spaniards should (debent)70 [...] give every
reason at their disposal, [and] if reasoning fails to win the acquiescence of
the barbarians, and they insist on replying with violence, the Spaniards
may defend themselves, and do everything necessary for their own safety
[...] and exercise the other rights of war.”71 As is evident, Vitoria
legitimates the conquest when he takes for his point of departure or his
perspective of “observation” the European merchant “in” America.
68
Ibid., 18, 827.
69
Ibid., 19, 829.
70
Notice that it is a “duty”, correlative to the “duty” that Bartolomé confers to the
Indians to make sacrifices to their gods and to defend these customs against
strangers.
71
Ibid., III, 6, 711-712.
Las Casas, Vitoria and Suárez, 1514-1617 191
72
José de Acosta, Obras del P. José de Acosta (Madrid: Biblioteca de Autores
Españoles, 1954), 391.
73
Ibid., 392. Evidently they think of “man” as universally European. As always,
one is dealing with a decided Eurocentrism.
74
This and all the following texts are found in Acosta, Obras, 392-394.
75
Ibid., 392.
192 Chapter Six
same philosopher [Aristotle], on the just war against the barbarians who
refuse to serve, it is more confusing and instils suspicions that the
argument is not derived from philosophical reason, but from popular
opinion.”76
It is important to point out that for Acosta, who in the sixteenth century
would already have known of the experiences of his Jesuit brothers in the
Far East—fully developed civilizations and in many ways superior to
Europe—it was necessary to establish differences when comparing China
and India with other cultures. “All these nations [China and Hindustan]
should be called to the Gospel in a way analogous to when the Apostles
preached to the Greeks and Romans [...] Because they are powerful and
not lacking in human wisdom, they have to be humbled and subdued by
the Gospel, by its very reason [...]; if you wanted to subdue them by force
of arms, nothing would be gained but to make them avowed enemies of
the Christian name.”77 Alonso Sánchez, a Jesuit missionary in the
Philippines who understood the methods of “peaceful cultural adaptation”
of the priests Ruggieri, Ricci (in China) and Nobili (in India), would
nonetheless be in opposition to Acosta, recommending the use of arms
against China and India, as in America. This Eurocentrism, shared by the
Roman authorities, would ultimately have terrible consequences.78 We
have seen that on this point Bartolomé de Las Casas was the most radical,
since it was his opinion that not even in America should they have had the
right to the violent use of arms.
76
Ibid., book II, ch. V, 437. He then accuses Ginés here of being more of an
ideologue than a philosopher.
77
Ibid., 392.
78
Acosta wrote his opinion in 1586 in a work untitled Parecer sobre la guerra de
la China, and in another Respuesta a los fundamentos que justifican la guerra
contra la China.
Las Casas, Vitoria and Suárez, 1514-1617 193
as the Scottist (the notion of the “concept”79) and the Thomist (the analogy
of Being) positions, from the modern experience of subjectivity—in the
sense of that which is positive and can be criticized. It is one of the first
“modern” syntheses serving as a bridge between the beginning of the
sixteenth century, which confronts the problems of the “discovery” of the
New World (the absolute alterity of the Indian) and the new experience of
the individual subjectivity of European Modernity, the same Jesuitical
movement undertaken to develop traditional southern Europe.80 For this
reason, Suárez will be the great master of European rationalism in the
seventeenth and eighteenth centuries. There were nineteen editions of his
Disputationes Metaphysicae printed between 1597 and 1751 (eight in
Germany alone). His political writings were praised by Grotius as
“without equal”; Descartes, as a Jesuit student in La Fleche, indicated that
he had carefully read Suárez (“he is justly the first author who fell into my
hands”); Spinoza was inspired by him to read the works of Revius, Franco,
Burgersdijk and Heereboord (the latter calls Suárez: “metahpysicorum
omnium papam atque principem”); Leibniz meditated on him in his
youth; Vico dedicated an entire year to studying him81; still more could be
said of Christian Wolff82 or A. G. Baumgarten.83 Suárez made the
philosophical thinking of Northern Europe possible, under the theologizing
influence of Lutheranism,84 giving autonomy to the secular level of
79
See Parthenius Minges, “Suárez und Duns Scotus,” Philosophisches Zeitschrift
der Goerres-Gesellschaft 32 (1919): 334-340.
80
The “test of conscience” which Suárez experienced each day, would have given
him sufficient subject matter for a metaphysic on the conscientiousness of his own
subjectivity. It is not extraordinary that Descartes, who likewise effected this daily
practice of the “test of conscience,” begins his philosophical discourse with a
conscientious self-reflection on his own “ego,” ego cogito, stating: “I am
conscientious about being conscientious” while still being somewhat objective.
The “individuality” of the subjectivity of the “test of conscience” was the initial
ontological philosophical moment. The subject has been amply studied by Etienne
Gilson.
81
See Fraile, Historia de la Filosofía, v.3, 468.
82
It is well-known that his Philosophia Prima sive Ontologia of 1729 was
structured explicitly on Suárez. See The Encyclopedia of Philosophy (New York:
Macmillan, 1967), v. 8, 340-341.
83
His Metaphysica of 1739 still shows the Suarezian influence.
84
On the influence of Spanish philosophy, especially Suarezianism, on Seventeenth
century German philosophy see K. Streitcher, “Die Philosophie der Spanischen
Spaetscholastiks and den deutschen Universitaeten des siebzehnten Jahrhunderts’,
in Gesammelte Aufsaetze zur Kulturgeschichte Spanien (Münster: Aschendorff
Verlag, 1928), and Karl Eschweiler, “Die Philosophie der Spanischens
194 Chapter Six
90
This “active intellect” of Aristotle and Thomas Aquinas would remain
subsumed in modernity in the productive and creative capacity of human reason in
the “constitution” of the “object” until Husserl or Heidegger. It would be
“subjectivity” as activity. The “passive genesis” of a Husserl would ascertain the
“material” assumptions of subjectivity.
91
Suárez writes: “It is not that in which (in quo) knowledge is produced [...], but
it is that by which (id quo) the object itself (ipsum objectum) is known as the
formal concept of the known thing (conceptus formali rei cognitae), since in order
for the thing to be grasped intellectually it is necessary that it be vitally (vitaliter)
formed in some way in the intellect.” Suárez, De Anima, IV, 5,11. Unfortunately
the thinking of Suárez has been compared with that of Thomas Aquinas, in intra-
scholastic transcendental disputes, or it has been used to distinguish him from Kant
or Heidegger by Marechal or Rahner, for example , but the much more
important historical work of explaining the central philosophical themes of the
Seventeenth and Eighteenth centuries already intuited and initiated by Suárez has
not been done. This is crucial to my attempt to show how philosophical modernity
began in Spain in the Sixteenth century, and is formulated at the end of that
century by Suárez and many others.
92
Suárez’ Defensor Fidei, published in 1613, as we shall see, was a work burned
in England and condemned in France, for showing that kings did not receive their
power (potestas) directly from God. It also denied, as it was usual in Spanish
political philosophy, that the Pope had any temporal power.
93
In Spanish America, the fact of the imprisonment of the King of Spain,
Fernando VII, a Bourbon, at the hands of Napoleon in 1809, unravels the entire
process of emancipation deriving from Suarezian juridical rationality and even
from Vitoria , but not of the enlightened French philosophy. Having the king
imprisoned has no effect on the “pact” of the community with the sovereign, and
as such the “communities” recover their “principatum” (sovereignty).
196 Chapter Six
94
“Dicemus enim primo de lege in communi et deinde ad singulas species
descendamus.” Francisco Suárez, De legibus, Prologue. It is interesting to note
what Marx methodically wrote “from the abstract arises the concrete”, but the
abstract for Marx was the singular, and the concrete was the universal the all
from which it subsequently had to “descend” to the singular. Suárez likewise
ascends inductively, first, from the singular conceptual to the universal
constructed and from this he then “descends” to the singular the point from
which he inductively began , in order to verify the universal description in its
specific difference.
95
Suárez, De legibus, Prologue.
96
Kant would comment, in the Suarezian tradition, that in the “factum” of the
moral law was included an “obligation.” This “obligation” is possible in the
ethical subject not by physical or natural necessity if he is autonomous,
demanding to affirm his “liberty” which as “noumenon” is empirically
unknowable for Kant by a fundamental, practical postulate, by one of the four
“Ideas.” All is founded on the “obligatority” of the law.
97
For Suárez, in the final analysis, it was the will of God, and afterwards the will
of the human legislator. For us it will be the political community itself,
“sovereign” (“principata”) as such, which, by communal legislative will, gives the
law legitimacy, and therefore one ought to obey it, in other words, oblige it.
98
“Imponendo moralem necessitatem operandi.” Ibid., I, 1.
99
Therefore “law may be called the inclination towards concupiscence (fomitis
propensio) [...] because law inclines to the moral flaw. Ibid., I, 1, 4.
Las Casas, Vitoria and Suárez, 1514-1617 197
of “advice,” but rather the domain of the just “precept.”100 As such one
has to distinguish between “common rights” and those that are
“individual” or particular, the latter being those which “each person has
over that which is his or that which is owed to him,”101 which in a certain
way is anterior to (promulgated) rights, though different from common
rights. Let us look at a description of all the types of “differential” rights:
100
In Latin “necessitudo” indicates a coercive kind of necessity, that of the
“debtor” from deudo comes debitum, “debitor”. In Mexican Náhuatl “mazehual”
means, precisely, the “worthy debtor” debtor of the life worthy of the god.
101
Ibid., I, 2, 5.
102
Suárez goes beyond the universal concept of the construct of rights, as such in
De legibus, Book I, to his “differentia”, in the first place as eternal law, in Book II,
ch. 1-4.
103
As natural law. Ibid., II, 5-16.
104
As positive divine law. Ibid., IX and X.
105
Ibid., II, 17.
106
As the rights of man (Book II, ch.17-20), as unwritten or customs (Book VII) or
as written.
107
In Suárez “reipublicae” in general is “the public thing” or “the public” or
communal, not the distinct form of government of the monarchy; it is synonymous
with community.
108
Ibid., III, 1, 1-2. The written civil or positive political law would occupy
Suárez for all of book III. Furthermore, he would still write on canonical law
(Book IV), penal law (Book V) and meritocratic law (Book IX). The work is one
of the most systematic ever written on the theme. It is the first in all of Modernity.
It is similar, in its logical constitution as a modern “treatise”, to his Disputaciones
Metafísicas. At four moments in his life Suárez was intensively occupied in
reflection on the theme of rights and the law: in 1561-1562 as a student in
Salamanca; in Rome as a professor between 1582-1584; in Coimbra between
1601-1603, and on his work on De legibus around 1612.
109
Unlike Aristotle, for example, Suárez is thinking about a “community
(comunitas)” that “can grow until it changes into a kingdom or possesses the
principatum for the association (societatem) of various cities.” Ibid., III, 1, 3.
Suárez is thinking about Castilla or Aragón, modern nations.
198 Chapter Six
110
“The domination of one human being over another does not proceed from a
fundamental institution of nature” (Ibid., III, 1, 12).
111
Against metaphysical individualism which was already established in northern
European Modernity.
112
It is interesting to note the present actuality of his terminological expression.
113
Observe again the almost Habermasian expression. We have already made note
of this theory of “consensus” in Bartolomé de Las Casas, as early as 1536 in the
De unico modo. See Enrique Dussel, The Invention of the Americas. The Eclipse of
“the Other” and the Myth of Modernity (New York: Continuum, 1995).
114
Suárez, De legibus, III, 3, 6-7. Suárez’s position, like that of Las Casas and
Vitoria, is clear: “By nature all human beings are born free, and therefore no one
has political jurisdiction over another.” Ibid., III, 3, 3).
Las Casas, Vitoria and Suárez, 1514-1617 199
one has to consider it [...] in so far as they are united by a special will
(speciali voluntate) or common consensus (communi consensu) in a body
politic (corpus politicum) with a link to society”115; “[...] not without the
intervention of the collective will (voluntatum et consensuum) of the
human beings by virtue of which the self-governing community was
constituted.”116 The human being is not naturally and primarily an
individual being. He is always already in a community. Although “by
nature the human being is born free,”117 he is always “subjectibilis”:
subjectable or capable of being a member of a political body.118 As in Ch.
Peirce or K.-O. Apel, the community is the point of departure, but the
particular subject is not dissolved, neither before the original reflexive
consensus, nor by a subsequent pact with the governing body, which may
be called to account by the community’s never-violated freedom and
power.
Having said that, one deduces that the self-governing communities, those
not governed by kings but by themselves (per se ipsa), also develop this
115
Ibid., III, 2, 4. Like Kant in his Critique of Pure Reason who drew inspiration
from Leibniz, who in turn refers to Suárez Suárez says “they form a mystical
body (corpus mysticum) which morally (moraliter) may be called a body per se.”
For Suárez, however, this “mystical body” is the empirical political body. For
Leibniz and Kant the “ethical community” moraliter says Suárez is
transcendental; it is the “Kingdom of the Spirits.” Consider moreover that this a
posteriori ratifying consensus unlike the a priori pact of isolated individuals, as
in Hobbes explicitly constitutes the “link of society” (societatis vinculo) as such.
Ibid.
116
Ibid., III, 3, 6.
117
“Ex natura rei homines nascitur liberi.” Ibid., III, 2, 3.
118
Ibid., III, 1, 11.
119
Ibid., III, 1, 2.
200 Chapter Six
120
This “reserving” of the right of reason or the revocation of the pact rests on the
“final petition” of power, which the free subjects of the political community
possess. A complex and more interesting solution than many later reductionist
positions.
121
Ibid., III, 9, 6.
122
There is then a first reflexive consensual moment of wanting to form part of a
community first consensus , and the second consensual act of transferring the
original power, conditionally, to a particular authority be it the Doge or the
King the political pact proper. There are not any Levites here.
123
The concept of “legitimacy” in Suárez has a classically conceptual clarity: it is
the power which depends on the consensus of the people, or which adequately
fulfills the pact contracted in accord with the conditions of the consensus.
124
Ibid., III, 4, 2.
125
Ibid.
Las Casas, Vitoria and Suárez, 1514-1617 201
126
Suárez, Defensor Fidei, III, 2, 8-9.
127
One can understand the anger of the Scottish king when, in Defensor Fidei,
Suárez writes: “The power of the king comes [...] by a certain natural consequence
which shows natural reason; by the same token, [political power, even the king’s]
is immediately given by God only to that subject in whom it is found by force of
natural reason. Well then, this subject is the people themselves, and not some
person inside of them.” Ibid., III, 3,2.
128
This gift is effected by election, by the consent of the people, by just war, by
legitimate succession, or by some donation. “When the community is self-
governing it voluntarily chooses the king, to whom it transfers its power.” Suárez,
De legibus, III, 4, 1.
129
The communities which effected the pact with the King of Spain were not only
in Spain, or Castilla or Aragón, but also in the “Kingdoms of the Indies.” When
Fernando VII was taken prisoner by Napoleon, the “Kingdoms of the Indies”
recovered their power, their autonomy, their liberty equal to that of the other
“Kingdoms” on the Spanish Peninsula in 1809. This was rejected by James I of
England, by whom Suárez’s Defensor Fidei was burned in the public square of
London. Anglican Christianity was still more royalist, more conservative
Hobbesian than Spanish Christianity.
130
Suárez, De legibus, III, 3, 6.
202 Chapter Six
131
Ibid., III, 3, 11. In the case of the Roman “senate,” for example, Suárez
recognizes that the community is of one of those kinds of republics “which are in
fact free since they have reserved for themselves the supreme power” and who are
only “in charge of promulgating the laws to the senate.” Ibid., III, 3, 12.
132
Ibid., III, 19, 2.
133
Ibid., III, 19, 7-13.
134
Suárez, Defensor Fidei, III, 3, 3.
135
Ibid., VI, 4, 15.
136
Suárez, De legibus, III, 21, 6.
137
Ibid.
138
Ibid., III, 21, 7.
Las Casas, Vitoria and Suárez, 1514-1617 203
139
Ibid., III, 12, 2. It is interesting to note that he has a normative sense of
political action, against the simple strategy of modern politics, successful “for a
brief time.”
140
Ibid., III, 13, 2.
141
Ibid., III, 3, 9.
142
Ibid., III, 21, Title. Note the “modernity” of the terminology. The Jesuits are
the masters of the “test of conscience,” which Descartes would practice daily in La
Fleche, as we have already indicated. Nevertheless, although he defines the
legality in the external law-code like Kant he shows that civil law has an
equally imperative internal capacity, aspiring to a politically strong normativity,
greater than the Habermasian—only discursive.
143
Ibid., III, 21, 2.
144
Ibid., III, 21, 8. The theme would require an extensive treatment not possible in
this brief survey.
204 Chapter Six
In fact, the Jesuits of the eighteenth century, who were creoles, would
return to their indigenous origins in order to define themselves against the
absolutist Bourbon Europeans. It is amazing to discover a great
generation, with such eminent intellectual figures as José Gumilla, Vicente
Maldonado, Juan de Velasco, Juan Ignacio Molina, Francisco Xavier
Clavijero, Francisco Xavier Alegre, Andrés Cavo, Andrés de Guevara,
Diego José Abad, Rafael Landívar and so many other Jesuits. Exiled by
the Bourbon expulsion of 1767 in Spanish America (and 1759 in Brazil),
in a number approximating 2500 priests, they wrote in Europe, in Italy and
other countries, not only the colonial history of America, but principally
occupying themselves recounting the indigenous life and cultures before
the European invasion of the fifteenth century.
145
Mariano Picón-Salas, De la Conquista a la Independencia (México: FCE, 1965),
185. See also Andrés Cavo, Los tres siglos de Méjico durante el gobierno español
(México: J. R. Navarro, 1852); Gerard Decorme, La obra de los jesuitas mexicanos
durante la época colonial (México: Porrúa, 1941); Guillermo Furlong, Los jesuitas
y la cultura rioplatense (Montevideo: Urta y Curbelo, 1933); Francisco Xavier
Las Casas, Vitoria and Suárez, 1514-1617 205
mind of the creoles who recall the Indians’ most agreeable phase-
against the enlightened Bourbon absolutism which was unpopular and
oppressive for its colonial conception of politics. Andrés Cavo points out
that the indigenous Mexicans had a “state of culture which exceeded, in
impressive ways, that of the Spanish themselves when they were
encountered by the Greeks and the Romans.”146 Clavijero147 doesn’t write
a history of the creoles, but of the Aztecs, as a defence against the
ignorance of de Pauw148 on matters concerning the indigenous Americans.
Pedro José Márquez, another of them, writes an aesthetic on the Mexican
art of the Aztecs, 149 and being in Europe the distance allows him to better
appreciate the stature and personality of the indigenous American cultures.
The affirmation which had been nullified since the conquest at the end
of the fifteenth century had thus begun in the eighteenth, as a new
recognition of Alterity.
Bibliography
Acosta, José de. Obras del P. José de Acosta. Madrid: Biblioteca de Autores
Españoles, 1954.
Alegre, Francisco Xavier. Historia de la provincia de la Compañía de
Jesús de Nueva España. Roma: Institum Historioum, 1956.
Beuchot, Mauricio. Historia de la Filosofía en el México Colonial.
Barcelona: Herder, 1997.
Botella, Juan, Carlos Cañeque and Eduardo Gonzalo, eds. El pensamiento
político en sus textos. De Platón a Marx. Madrid: Tecnos, 1998.
Cavo, Andrés. Los tres siglos de Méjico durante el gobierno español.
México: J. R. Navarro, 1852.
Cayetano, Thomas de Vio. Commentary on Saint Thomas' Summa
Theologiae (1540).
ANTHONY BOGUES
Freedom is a must
Babylon try to enslave us…
You know dem have a nerve
Freedom is a ting everyman dem deserve
—Bounty Killer
Introduction
There are several conventional ways in the history of Western liberal
political thought in which the story of freedom is told. However two of
these continue to frame the freedom story. The first frame is Isaiah Berlin's
famous 1958 lecture, “The Two Concepts of Liberty."1 In this frame
*
This essay is a revised version of a paper presented at a conference on slavery
held at the University of the West Indies, at Mona, Jamaica, in 2007.
1
See Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press,
1969).
The Dual Haitian Revolution and the Making of Freedom in Modernity 209
The second major frame for the discussion about freedom is the rich
debate about the shaping influences of Roman conceptions of liberty on
18th century Atlantic political thought.4 This story proposes that freedom
"may be realized through membership of a political community in which
those who are mutually vulnerable and share a common fate may jointly
be able to exercise some collective direction over their lives… freedom is
related to participation in self- government and concern for the common
good."5 This sounds similar in many ways to Constant’s freedom of the
“ancients.” However the matter is complicated by the notion of the
“common good,” as a primary purpose of political association. It has
been successfully argued by J. Pocock that this story of freedom draws
from both Roman and Greek political thought and was readapted in the
Atlantic world in a form of civic humanism that meshed with Lockean
2
Benjamin Constant, “The Liberty of the Ancients and the Liberty of the
Moderns,” in Political Thought, ed. Michael Rosen and Jonathan Wolf (Oxford:
Oxford University Press, 1999), 123.
3
For a succinct and able discussion of liberalism as a political philosophy see John
Gray, Liberalism (Minneapolis: University of Minnesota Press, 1995).
4
A very good summary of these arguments can be found in Iseult Honohan, Civic
Republicanism (London: Routledge, 2002.) The key thinkers in this stream are J.
Pocock, Phillip Pettit and Quentin Skinner.
5
Honohan, Civic Republicanism, 1.
210 Chapter Seven
6
See J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and
the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975).
7
For a discussion of this see Quentin Skinner, Liberty before Liberalism
(Cambridge: Cambridge University Press, 1998).
8
Frantz Fanon, Black Skin White Masks (New York: Grove Press, 1967), 217.
9
The story of Frederick Douglass confrontation with his master Covey tells this tale.
See Frederick Douglass, My Bondage and My Freedom (Penguin: New York, 2003).
The Dual Haitian Revolution and the Making of Freedom in Modernity 211
It is therefore clear that the primary focus of the two major narratives
of freedom is on the ways in which the individual relates to the political
community and its various organs. In the first version, freedom is defined
as a freedom from interference, a freedom in which the state and political
authority place minimal force upon the individual. In this version it is the
individual's private goals and private space which are of primary concern.
In the second version freedom is tied to a close affinity with the political
community. The model here is Aristotle’s dictum that “man is a political
animal.” The issue which one has to ask about both these versions of
freedom is this: why the preoccupation with political authority and the
political community? There is as well another issue to which we have
already alluded, i.e., what effect did this preoccupation have upon the
practices and meanings of freedom? Both questions are central because we
know that the study of political thought requires us to think about the
meanings of political vocabularies and their contextual surroundings.
10
The major contemporary theorist of this position is Giorgio Agamben who
develops Carl Schmitt’s idea about the nature of sovereign power. See Giorgio
Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford
University Press, 1998).
11
Ibid., 17-18.
12
For a discussion of this process see Anthony Bogues, Empire of Liberty: Power,
Desire and Freedom (Lebanon, NH: Dartmouth College Press, 2010).
212 Chapter Seven
From this ground within Western political thought two issues arise in
the study of political thought and freedom. The first is: what meanings of
freedom emerged from the historic practices of liberalism and from civic
republicanism? The second becomes the focus of our essay: what
alternative practices and conceptions of freedom emerged from the ideas
and actions of those who were, in Fanon’s words, "objects amongst
objects?” Since this story of freedom is typically ignored in the history of
political thought bringing it to the fore may open new vistas about human
possibilities, about the ways in which domination and power can be
resisted. Importantly the slave and ex-slave freedom story suggest to us
that freedom is not a normative ideal but rather that its meanings are
embedded within a series of practices and our reflections about these
practices. As such a normative political concept of freedom may really be
a political grammar which obscures rather than illuminates our social
world. So how do we tell the freedom story of the enslaved? In this regard
it may be important to pay attention to the historic dual Haitian Revolution
of the 18th and early 19th centuries.
13
Cited in Robert H. Webking, The American Revolution and the Politics of
Liberty (Baton Rouge: Louisiana State University Press, 1989), 116.
The Dual Haitian Revolution and the Making of Freedom in Modernity 213
In point of fact the rights of the native population were set aside in
concrete practices of brutality during the Spanish conquest, as well as
discursively in a series of arguments which relocated the indigenous
population in a schema of natural history classification from being a
mirror of “natural man” a state which Europeans thought was then a
lower form of human existence in almost Eden-like conditions to one of
natural servitude. In their state of so called naturalness natural man the
native population could claim some natural rights, since God created them.
Certainly when they were Christianized, natural rights might be bestowed
since in the early period of colonial modernity humanness was affirmed
through Christianity what Sylvia Wynter has called in her schema of Man,
“Christian Man.” However the dictates of Spanish conquest quickly
shifted the parameters of the debate about the rights of the indigenous
population. As this occurred, the indigenous population became fallen
natural man and, therefore could be conceived of and treated as Aristotle’s
natural slaves.
This fall made the native population idolaters and subsequently located
them outside the pale of Christendom, making them another species life
14
This book was recently translated. See Jose de Acosta, Natural and Moral
History of the Indies (Durham: Duke University Press, 2002).
15
Cited in Anthony Pagden, Lords of all the World (New Haven: Yale University
Press, 1995).
214 Chapter Seven
form. It was within this context of conquest, of the setting aside of rights
and the fall of natural man, that Bartolomé de Las Casas wrote his defense
of the indigenous population, A Short Account of the Destruction of the
Indies. For Las Casas, the native populations had reason and were
therefore creatures of God. The duty of the Spanish imperial power was to
Christianize them. Las Casas proclaimed that:
The people with whom the New World is swarming are not only capable
of understanding the Christian religion, but amenable, by reason and
persuasion, to the practice of good morals and the highest virtues. Nature
made then free… our holy religion adapts itself equally as well to all the
nations of the world; it embraces them all and deprives no human being of
his natural liberty under pretext or color that he or she is servus a natura.16
Two things about the Las Casas position should be noted. In the first
place he granted the native population natural liberty, thereby making
them creatures of God, and secondly he argued that they could be trained
into Christian morals. What is also interesting about this position was his
understanding that the formal political structure of the native population
was one of worth. In his polemic against the brutal treatment of the
indigenous population and imperial Spain’s organization of native
servitude, Las Casas wrote:
By what authority have you made such detestable wars against these
people who lived peacefully… on their own lands? Are these not men? Do
they not have rational souls?17
This was the crux of the matter and was/is one overarching theme of
contestation in the history of Caribbean, and I would argue Atlantic,
political thought—the preoccupation with humanity or its lack of for those
who were enslaved and placed in bondage in slave and colonial societies.
The deliberate setting aside of rights for the indigenous population
resulted in the first genocide of colonial modernity. It also shaped the
political grammar in which freedom could be constructed alongside
various forms of servitude and conquest. The political origins of
Caribbean society were therefore in conquest, and more importantly for
our essay, its origins were framed by the practice of the setting aside of
rights. So when African slavery was introduced into the region the
16
Cited in Gordon Lewis, Main Currents in Caribbean Thought (Kingston:
Heinemann Educational Books, 1983), 52.
17
Bartolomé de Las Casas, A Short Account of the Destruction of the Indies
(London: Penguin Books, 1992), xxi.
The Dual Haitian Revolution and the Making of Freedom in Modernity 215
discursive ground was already fertile. Indeed, this is one of the grounds on
which Caribbean political thought differs significantly from that of
conventional Western political thought.
The question of the humanity of the enslaved stands at the heart of the
Caribbean slave colonial society. The Caribbean historian Elsa Goveia in
her study of Eighteenth century Caribbean slave laws makes the point that
the slaves “were a special kind of property that is property in person.”18
Joan Dayan taking up this argument in the Atlantic world argues that the
distinction between civil body and legal slave in Western thought is one
where the civil body is “the artificial person who possesses self and
property, and the legal slave, the artificial person who exists as both
human and property.”19 However to be a “property in person” required
making the slave less than human, creating both in legal and social terms a
non–person. It is a situation that Orlando Patterson has called “social
death.”20
18
Elsa Goveia, “West Indian Slave laws of the 18th century” in Chapters in
Caribbean History 2, ed. Douglas Hall, Elsa Goveia, F. Roy Augier (Barbados:
Caribbean Universities Press, 1970), 21.
19
Joan Dayan, “Legal Slaves and Civil Bodies,” in Materializing Democracy:
Toward a Revitalized Cultural Politics, ed. Rus Castronovo and Dana Nelson
(Durham: Duke University Press, 2002), 55.
20
See Orlando Patterson, Slavery and Social Death: A Comparative Study
(Cambridge: Harvard University Press, 1982).
216 Chapter Seven
However, much less attention has been paid to the political ideas of the
revolution and when this has occurred it has been done with specific
references to Western political thought. It is as if the activities of the
21
For James’s assessment of the book see Small Axe 8 2000. For other assessments
see Anthony Bogues, Black Heretics, Black Prophets: Radical Political
Intellectuals (New York: Routledge, 2003) Chapter 3, and David Scott, Conscripts
of Modernity (Durham: Duke University Press, 2005).
22
David Patrick Geggus, who has spent a great deal of time examining the
revolution, has made a recent study of the major histories of the revolution. He
argues that for 60 years The Black Jacobins dominated the field of study of the
Revolution in English. See David Patrick Geggus, Haitian Revolutionary Studies
(Bloomington: Indiana University Press, 2002), especially Chapter 2.
23
Sybille Fisher, Modernity Disavowed (Durham: Duke University Press, 2004).
24
For a discussion of these literary texts, in particular the plays of Derek Walcott,
see Gordon Collier, “The ‘Noble Ruins’ of Art and Revolution,” in Fusion of
Cultures? ed. Peter O. Stummer and Christopher Balme (Amsterdam: Rodopi B.
V.. 1996), 269-328. There is of course Madison Smart Bell impressive three
volume historical novels on the revolution.
The Dual Haitian Revolution and the Making of Freedom in Modernity 217
enslaved do not merit the status of thought.25 The Haitian scholar Michel-
Rolph Trouillot has made the point that the revolution was “unthinkable.”
He further states that “by necessity, the Haitian Revolution thought itself
out politically and philosophically as it was taking place.”26 Two
important texts have made efforts to examine some of the ideas which
animated the revolutionary slaves. Carolyn Fisk’s The Making of Haiti
strongly argues that the slaves “agricultural egalitarianism had more to do
with their own African origins and the desire to define their lives through
their relationship to the land than to French bourgeois revolutionary
notions of liberty and equality.”27 For Fick the revolutionary slaves were
peasants and their hostility to the labor regime of Toussaint L’Ouverture
was one based on the impulse of this social type. Joan Dayan in a
remarkable literary and historical study of Haiti asks us to examine
Haitian history through grappling with vodou as a “project of thought”.
She writes:
Using the 1805 Haitian Constitution and one period of the revolution I
wish to examine the dual Haitian Revolution as a project of freedom in the
Atlantic world that demonstrated practices of freedom different from those
of either the American or the French Revolutions. Importantly, I would
suggest that this dual revolution was perhaps the most significant
revolution in what has been called by some historians “The Age of
Revolution.”
25
An example of this is the recent work of Nick Nesbitt. Universal Emancipation :
The Haitian Revolution and the Radical Enlightenment (Charlotte: University of
Virginia Press, 2008)
26
Michel-Rolph Trouillot, Silencing the Past: Power and the Production of
History (Boston: Beacon Press, 1995), 89.
27
Carolyn E. Fick, The Making of Haiti (Knoxville: University of Tennessee Press,
1990), 250.
28
Joan Dayan, Haiti, History and the Gods (Berkeley: University of California
Press, 1998), xvii.
218 Chapter Seven
29
This is very ably examined in Jean Fouchard, The Haitian Maroons: Liberty or
Death (New York: Edward W. Blyden Press, 1981).
30
The story of Makandal is a heroic one in Haitian history. It is the story of a
prophet and tells us about another dimension of Caribbean political thought the
role healers/prophets in radical political thinking and action. Alejo Carpentier in
his lyrical and evocative The Kingdom of this World has imaginatively explored
the influence and profound symbolic important of Makandal to the Haitian
revolution. Fick does so in Chapter 2 of The Making of Haiti. Perhaps the most
acute representation of Makandal is the 1991 painting by Wilson Anacreon titled
Makandal the rebel slave with magic powers jumps out of the bonfire.
The Dual Haitian Revolution and the Making of Freedom in Modernity 219
Formulated in 1685, the Code Noir became the slave laws that
governed master–slave relationships in the colony. Elsa Goveia argues that
the code was not established with metropolitan France in mind but with
the conditions of the colonies firmly fixed.33 The code was a mixture of
political control and explicit disciplinary measures for slave control.
Precise and concrete, these measures shaped the everyday life of the
slaves. For example, the code stated how much food a slave was to get and
how many suits of clothes per year s/he was allowed. Although in the
code’s early years its so-called protective aspects were emphasized,
Goveia points out these aspects were increasingly forgotten as the
31
All citations are taken from “American Declaration of Independence” in Michael
Rosen and Jonathan Wolff, Oxford Reader in Political Thought (Oxford: Oxford
University Press, 1999).
32
Ellen Meiksins Wood, “The State and Popular Sovereignty in French Political
Thought: A Genealogy of Rousseau’s “General Will,” in History From Below:
Studies in Popular Protest and Popular Ideology, ed. Frederick Krantz (Oxford:
Basil Blackwell, 1988), 83-84.
33
Elsa Goveia extensively reviews the different clauses of the code in “West
Indian Slave laws of the 18th century,” in Chapters in Caribbean History 2, eds.
Douglas Hall, Elsa Goveia and F. Roy Augier (Barbados: Caribbean Universities
Press, 1970), 35-50.
220 Chapter Seven
objective of the control of the slave population came to the fore.34 The
sources for the code were Roman slave law, but also the requirements of
slave practices in the New World. Thus its overriding framework was to
confirm the inferior status of the slave and to maintain public security
under the control of the planter colonial class. By 1771, the French Crown
issued the following edict:
34
For a discussion of the so called protective aspects of the Code see Gwendolyn
Midlo Hall, Slave Control in Slave Plantation Societies (Baltimore: Johns Hopkins
University Press, 1971).
35
Pierre de Vaissiere, St Dominique, 1629-1789 (Paris, 1909) cited in Goveia,
“The West Indian Slave Laws,” 44.
36
For Foucault’s discussion on power see Michel Foucault, Power: The Essential
Works of Foucault 1954-1989 Vol. 3), ed. James D. Faubion (New York: The New
Press, 2000), especially the essay “The Subject and Power.”
37
This phrase is David Scott’s. See David Scott, Refashioning Futures (New
Jersey: Princeton University Press, 1999), Chapter 3.
The Dual Haitian Revolution and the Making of Freedom in Modernity 221
African soldiers may well have provided the key element of the early
success of the revolution. They might have enabled its survival when it
was threatened by the reinforced armies from Europe. Looking at the rebel
slaves of Haiti as African veterans rather than as Haitian plantation
workers may well prove the key that unlocks the mystery of the success of
the largest slave revolt in history.38
38
John K. Thornton, “African Soldiers in the Haitian Revolution,” The Journal of
Caribbean History 25 (1991): 74.
39
Thornton has further developed these arguments in his “‘I am the subject of the
King of Congo’: African Political Ideology and the Haitian Revolution,” Journal
of World History 4 (1993): 181-214.
40
The matter is actually even more complex, as the European translation of such
words tends to assign the gender male, where the African language often does not.
The Kongo and Ngola polities abound in Nzingas, both King and Queen, for
example. (I am indebted to Professor Geri Augusto for these observations).
222 Chapter Seven
some Bantu languages, the word king comes from Kani and is tied to the
verb gan, which means to tell stories or pronounce judgment. The
conception of kings therefore seems to be organized around questions of
the origins of “kingdoms,” as well as around the performance of the
function of a ritual mediator within communities. Of course, all of this is
but a small slice of the story, since on the African continent there were
myriad forms of political practices. However for the Kongo kingdom, at
least, the notion of king as mediator—and one whose powers were
mediated by the existence of other aristocrats and a set of indigenous
political practices—seems to have been dominant.41
These understandings seem to have been influential in Haiti when we
observe that during the course of the revolution itself there were vigorous
attempts to establish free black communities, and that such communities
were politically organized around African conceptions of kingdoms. One
important community was the Kingdom of Platons organized in the
southern part of the island. Studies on this community show that the ex-
slaves developed a civil government and chose a king as formal titular
leader.42 What is important to note about this form of civil government
was that it also seemed to contain the tensions present in 18th century
Kongolese political thought in which kings could either govern as absolute
monarchs, or had to govern by rules within the framework of consensual
arrangements with the governed.
The second thing which may help us to grapple with the meanings of
the titles has to do with the ways in which many of the revolutionary
leaders advocated a political position that would use political power
abolish slavery in the Caribbean and Africa. In the 18th and 19th century
worlds of racial slavery and colonialism the invasion of an island or
colony for the major purpose of the abolishment of slavery was of a
different order from the enterprise of colonial conquest, which first
established racial slavery and plantation societies in the New World. So,
there are other possible meanings to the ways in which “imperial” and
“emperor” were generally thought about in the early 19th century.
41
For an examination of this see Christopher Ehret, The Civilizations of Africa: A
History to 1800 (Charlottesville: University Press of Virginia, 2002), as well as
John K. Thornton, The Kingdom of Kongo, Civil War and Transition, 1641-1718
(Madison: University of Wisconsin Press, 1983).
42
For a discussion of this community see Carolyn E. Fick, “Dilemmas of
Emancipation: From Saint Domingue Insurrections of 1791 to the Emerging
Haitian State,” History Workshop Journal 46 (1998), 1-13.
The Dual Haitian Revolution and the Making of Freedom in Modernity 223
As well in our name as in that of the people of Haiti, who have legally
constituted us faithfully as organs and interpreters of their will, in the
presence of the Supreme Being, before whom all mankind are equal and
who has scattered so many species of creatures on the surface of the earth
for the purpose of manifesting his glory and his power by the diversity of
his works in the presence of all nature by whom we have been unjustly and
for long time considered as outcast children…43
There are here of course echoes of the political discourses which were
prevalent in the French Revolution. But there are quite a few things as
well at work which overturned the foundations of Western political
thought of the period. The section that addresses the conception of will
was clearly influenced by the political discourse of Jean-Jacques Rousseau
and his ideas about contract theory and the “general will.”44
43
Imperial Constitution of Haiti (1805) translated by Jiminie Ha. I wish to thank
her for the translation of the entire document.
44
See for current discussion about Rousseau’s political thought, Susan Dunn, ed.,
Rethinking the Western Tradition: The Social Contract and the First and Second
Discourses, Jean-Jacques Rousseau (New Haven: Yale University Press, 2002).
For a interesting contextual view of Rousseau’s genealogy of general will see Ellen
Meiksins Wood, “The State and Popular Sovereignty in French Political Thought:
A Genealogy of Rousseau’s ‘General Will’,” in History from Below: Studies in
Popular Protest and Popular Ideology, ed. Frederick Krantz (Oxford: Basil
Blackwell, 1988).
45
Jean-Jacques Rousseau, “The Social Contract,” in Rethinking the Western
Tradition, ed. Susan Dunn, 155.
224 Chapter Seven
All the major revolutionary documents of the late 18th and early 19th
centuries addressed the issue of the equality of mankind. The American
declaration of 1776 stated that “these truths to be self-evident, that all men
are created equals…” The French 1789 declaration proclaimed that “Men
are born and remain free and equal in rights...” But we know that neither
declaration applied to slaves. Slavery was not abolished in the United
States until 1865 and even though the French National Assembly
abolished slavery in 1794, it was reinstated under Napoleon Bonaparte in
1802. On the other hand, the 1805 Haitian Constitution formally
confronted the “great chain of being”46 conceptions of human beings that
undergirded Western thought during this period. It did so by arguing that
God had scattered human species all over the world to show both his glory
and diversity, and that people of African descent had been considered
outcast because of slavery. Its explicit opposition to Africans as inferior
was the recognition by the revolutionary slaves of one dimension of racial
oppression. It was a dimension that was never recognized by any other
revolution of the period. The preamble therefore shattered racialized
thinking of the period. What is also intriguing is its appeal to a “supreme
being.” All the revolutionary declarations of the period made the same
appeal. However what was different in the Haitian case is how that appeal
made God an active being.47
Central to all political life are the role of symbols and the naming of
entities. The Haitian revolutionary slaves recognized this when in one of
their first acts after the war of independence they renamed the previous
French colony of St. Domingue as Haiti, its early Amerindian name. Such
a symbolic reordering of the island’s name was central to the revolutionary
46
For a discussion the this idea and its seminal influences in racist thinking see
Winthrop D. Jordan, White Over Black: American Attitudes Toward the Negro,
1550-1812 (Chapel Hill: University of North Carolina Press, 1969), Chapter 13.
47
It is interesting to speculate upon the similarities of this conceptualization and
some of the views of ancestors and a Supreme Deity in many African indigenous
religions, but that is a matter for another paper.
The Dual Haitian Revolution and the Making of Freedom in Modernity 225
There are major political and social ideas embedded in the above
statements which suggest a different track than the common revolutionary
ideas of the French and American Revolutions. In the first place there is a
distinction between liberty and independence. In the Haitian 1805
Constitution, liberty is a clear reference to the condition of the ex-slave, a
condition in which they were no longer property. This was different from
the liberty of radical Western political thought of the period. In the
American declaration liberty was understood as an “unalienable right.”
This right was one amongst two others, the right to life and the right to
pursue happiness. In this sense of right, liberty was tied to conceptions of
Lockean natural law and natural liberty. Locke had defined the latter in the
following way: “The Natural Liberty of Man is to be free from any
Superior Power on earth, and not to be under the Will or Legislative
48
Cited in David Patrick Geggus, Haitian Revolutionary Studies (Bloomington:
Indiana University Press, 2002), Chapter 13.
226 Chapter Seven
Authority of Man, but to have only the Law of Nature for his Rule.”49 This
form of natural liberty depended upon issues which revolved around
political authority. Its thrust was common to the political idea of the Free
State governed by general public participation. It is accurate to say that for
Locke, this “legislative authority” was in his words one that had to be
established by consent,” again confirming the ground for the definition of
liberty as a political one.
It has been argued that it was not possible on the grounds of the French
declaration of liberty to have a social system constituted upon the “property
of the person.” Therefore as Shanti Singham argues this section of the
declaration was the cause of conflict amongst the French revolutionaries as
it related to black slaves, Jews and women.51 However it should also be
noted that the French National Assembly did not abolish slavery until
1794, when the Haitian Revolution forced the question.52
49
John Locke, Two Treatises of Government (Cambridge: Cambridge University
Press, 1988), 283.
50
Declaration of the Rights of Man and Citizens (1789) in Michael Rosen and
Jonathan Wolff, Political Thought (Oxford: Oxford University Press, 1999).
51
For a good discussion of this see Shanti Marie Singham, “Betwixt Cattle and
Men: Jews, Blacks and Women and the Declaration of the Rights of Man,” in The
French Idea of Freedom: the Old Regime and the Declaration of Rights of 1789,
ed. Dale Van Kley (Stanford: Stanford University Press, 1999), Chapter 3.
52
What is also interesting in the general debates in political philosophy about the
elements of the declaration is how the discussion ignores racial slavery. See for
examples of this Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life
(Stanford: Stanford University Press, 1998), Part 3.2, and Etienne Balibar, Masses,
Classes and Ideas: Studies on Politics and Philosophy before and After Marx
(New York: Routledge, 1994), Chapter 2.
The Dual Haitian Revolution and the Making of Freedom in Modernity 227
we are not asking you to restore to French blacks those political rights
which alone, nevertheless, attest to and maintain the dignity of man; we are
not even asking for their liberty… we ask only that one cease butchering
thousands of blacks regularly every year in order to take hundreds of
captives.54
53
Phillip D. Curtin, “The Declaration of the Rights of Man in Saint-Domingue,
1788-1791,” The Hispanic American Historical Review 30 (1950), 157-175.
54
Address to the National Assembly in favor of the Abolition of the slave trade,
February 5th, 1790, published in Lynn Hunt, The French Revolution and Human
Rights: A Brief Documentary History (Boston: Bedford/St Martin’s, 1996), 107-
108.
228 Chapter Seven
and created the conditions for human equality of laws, which were
unconditional.
55
Pierre Manent, An Intellectual History of Liberalism (Princeton: Princeton
University Press, 1995), 3.
56
We should recall here the mighty efforts of Napoleon Bonaparte to make his
emperorship a hereditary one. For a discussion of this see the magisterial work by
Francois Furet, Revolutionary France, 1770- 1880 (Oxford: Basil Blackwell,
1988). Of course there is no serious mention in this major historical study of the
Haitian Revolution.
The Dual Haitian Revolution and the Making of Freedom in Modernity 229
57
For a very good discussion of this period of Haitian history and the emergence
of these groups see, Mimi Sheller, Democracy after Slavery: Black Publics and
Peasant Radicalism in Haiti and Jamaica (Gainesville: University Press of
Florida, 2000).
230 Chapter Seven
beings. Secondly, the Constitution stated that white women who “have
been naturalized Haytians by the Government… [and] the Germans and
Polanders naturalized by government” were Haitians and could also own
property. This was central to the conception of Haiti as a black republic,
particularly since no “Whiteman of whatever nation he may be shall put
his foot on this territory with the title of master or proprietor, neither shall
he in future acquire any property therein.” For the Haitian revolution
therefore citizenship was linked to the capacity to own property, and a
positive identification with blackness. This notion of blackness removed
its biological basis and made it a political construct.
In terms of rights, all Haitian male citizens were given the same rights
and were to be treated with equality under the law. There was masculinity
to the Constitution which we should note as article nine declared: “No
person is worthy of being a Haitian who is not a good father, a good son,
good husband and especially a good soldier.” It is once again clear that the
military arts were held in high esteem as a central value of citizenship.
Again given the context such a value was not surprising. Before leaving
the 1805 Constitution we should note that the document allows for the
freedom of religion, recognizes the right of every citizen to have a legal
defense, and secures the privacy of a citizen’s household. Divorce was
also permitted.
In what ways can we say that the 1805 Constitution differed from the
declarations of the French Revolution? Alexis de Tocqueville makes the
point that the achievement of the French Revolution was that it replaced
the political institutions of European feudalism “with a new social and
political order, based on the equality of all men”.58 This equality was
folded into a set of rights both political and civil, and became defined as
natural liberty. In the Haitian Revolution the achievement was
freedom the creation of a form of society in which persons were no
longer property. Such a dynamic did not negate rights and equality but
instead folded them into a notion of freedom larger than that of mere
natural liberty. This version of freedom, one in which rights and equality
all tumble together, continues to animate radical Caribbean political
thought. This is why in the mid-Nineteenth century Haitians could ask
“What kind of free is this?”
58
Alexis De Tocqueville, The Old Regime and the French Revolution (New York:
Anchor Books, 1983), 20.
The Dual Haitian Revolution and the Making of Freedom in Modernity 231
We can turn now to our final question about the Haitian revolution. In
what ways did the Haitian Revolution’s abolition of slavery differ from
that of other abolition movements of the period, particularly in the French
colonies? Here again de Tocqueville might be a useful guide. In a 1843
series of essays on slavery and its abolition he argues that:
However important the position of the blacks may be, however sanctified
their misfortune must be in our eyes, the costs of emancipation are
distributed that seems equitable among all those who have interest…
complete freedom is to be granted after then years until then, a series of
measures [must be undertaken] to morally improve and civilize the
Negroes.61
59
For an excellent discussion of some of these actions please see Fick, The Making
of Haiti.
60
Cited in Fick, The Making of Haiti, 179.
61
Alexis de Tocqueville, Writings on Empire and Slavery (Baltimore: John
Hopkins University Press, 2001), 221.
232 Chapter Seven
62
For a discussion of this see Anthony Bogues, “J.S. Mill , the Negro Question and
the Ladder of Civilization,” in Race and Modern Philosophy, ed. Andrew Valls
(Ithaca: Cornell University Press, 2005).
63
James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity
(Cambridge: Cambridge University Press, 2002), 60.
The Dual Haitian Revolution and the Making of Freedom in Modernity 233
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Collier, Gordon. “The ‘Noble Ruins’ of Art and Revolution.” In Fusion of
Cultures?, edited by Peter O. Stummer and Christopher Balme.
(Amsterdam: Rodopi B. V. 1996.
Constant, Benjamin. “The Liberty of the Ancients and the Liberty of the
Moderns.” In Political Thought, edited by Michael Rosen and Jonathan
Wolf. Oxford: Oxford University Press, 1999.
64
One of the failures of the revolutionary leadership of the Haitian revolution is
that it did not grasp the ways in which the revolutionary ex-slaves had a view of
freedom, which did not entail wage labor. This is important because it is only in
the mid-19th century with the work of Marx that questions of freedom begin to be
discussed in relationship to wage labor.
234 Chapter Seven
VINCENT W. LLOYD
There is no question that Martin Luther King, Jr. has a prominent place
in the Twentieth century history of human rights. Not only is he
recognized for the role he played as an activist in, and symbol of, the
movement that improved the treatment of African Americans, but his work
and words also inspired a broad range of what could be called human
rights movements, particularly in the global South. Yet the canon in which
King is placed is often that of human rights in practice, as opposed to
human rights in theory. The implication is that human rights are an
assumed end; King mobilizes the means. His oratory receives more
attention than his thought. He is taken to be a rhetorician, not a
philosopher, and his ideas are of little interest. Those who take the
enactment of social justice as primary also are not particularly interested in
King’s ideas. For them “human rights” sounds like a highfalutin notion, a
phrase used to mobilize a certain class educated white liberals to
support a grassroots social movement. For them, human rights in theory is
human rights as ideology, and King is concerned with the only sort of
human rights that matters the practice of protesting injustice.
King’s rhetoric of natural law is particularly potent and has often been
ignored. The dismissal of natural law language as “mere” rhetoric betrays
an allergy to religion, to taking religious language seriously, endemic
amongst academics and the cultural elite at least until recently. Under
the ideology of secularism, the only logical possibility is that religious
language is “mere” rhetoric: speculation about what it would mean if it
were anything more is only suited for seminaries and divinity schools.1 As
the obvious limits of the ideology of secularism have become evident with
the increasing in-your-face, in-the-news presence of those who take their
religion seriously, this has begun to change. The conservative legal scholar
Robert George has suggested that the divorce of human rights and natural
law is itself a product of secularist ideology, and that once secularist
dogma is abandoned a continuous, the robust tradition in which human
rights and natural law are deeply intertwined, will come into view.2 For
George, King is a pillar of this tradition. Tantalizing as this conclusion is,
it also elides the all too obvious differences between, say, King and the
conservative U.S. Supreme Court Justice Clarence Thomas, whom George
also associates with this tradition. An examination of King’s views of
natural law in a post-secularist context avoids this pitfall.
There is no easy starting point. The very question of what natural law
is brings with it so many answers that we are tempted again to throw up
our hands and slouch towards an easy dismissal of natural law language as
“mere” rhetoric. Contemporary debates in the philosophy of law treat
Thanks to Owais Khan and José-Manuel Barreto for helpful comments on this text.
1
For a criticism of secularist ideology and gestures towards an alternative, see
Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford:
Stanford University Press, 2003); Dipesh Chakrabarty, Provincializing Europe:
Postcolonial Thought and Historical Difference (Princeton: Princeton University
Press, 2000).
2
Robert P. George, The Clash of Orthodoxies: Law, Religion, and Morality in
Crisis (Wilmington: ISI Books, 2001), Chapter 9.
Love, Justice and Natural Law 239
During his first civil rights campaign, the Montgomery bus boycott,
King would employ the language of natural law in a call for social justice.
3
Daniel J. Elazar, Covenant & Constitutionalism: The Great Frontier and the
Matrix of Federal Democracy (New Brunswick: Transaction Publishers, 1998).
4
Barbara Allen, “Martin Luther King’s Civil Disobedience and the American
Covenant Tradition,” Publius 30 (2000): 71-113.
Love, Justice and Natural Law 241
King read widely, and he was no one’s disciple. His own views were
decidedly eclectic, so much so that the distinctiveness of King’s own
theological voice has become a matter of scholarly debate the discovery
of widespread plagiarism in his dissertation made this question all the
more troublesome.6 While some scholars have attempted to discern a
system in King’s thought to claim a place for him amongst U.S.
Twentieth century systematic theologians this effort seems to rest on a
certain forgetfulness of King’s vocation.7 He was first and foremost a
preacher, and a persuader. He knew his audiences: what they believed,
what would affect them, and what would move them, whether his audience
5
Martin Luther King Jr., The Papers of Martin Luther King, Jr., ed. Clayborne
Carson, Ralph Luker and Penny A. Russell (Berkeley: University of California
Press, 1992- ). For a recent assessment of King’s theological influences, see
Richard W. Wills, Martin Luther King Jr. and the Image of God (Oxford: Oxford
University Press, 2009).
6
Martin Luther King, Jr., Papers Project, “The Student Papers of Martin Luther
King, Jr.: A Summary Statement on Research,” The Journal of American History
78 (1991): 23-31.
7
In contrast to Richard W. Wills, Timothy Jackson begins with the premise that
King is not a systematic theologian. Timothy Jackson, “Martin Luther King, Jr.
(1929-1968),” in The Teachings of Modern Christianity on Law, Politics, and
Human Nature, Vol. 1, ed. John Witte, Jr. and Frank S. Alexander (New York:
Columbia University Press, 2006).
242 Chapter Eight
was his theology school professors, his black congregants, or white liberal
supporters.
8
Martin Luther King Jr., A Testament of Hope: The Essential Writings and
Speeches of Martin Luther King, Jr., edited by James M. Washington (San
Francisco: HaperSanFrancisco, 1986), 293.
Love, Justice and Natural Law 243
9
See S. Jonathan Bass, Blessed Are the Peacemakers: Martin Luther King, Jr.,
Eight White Religious Leaders, and the “Letter from Birmingham Jail (Baton
Rouge: Louisiana State University Press, 2001).
10
Martin Luther King, Jr., Stride towards Freedom: The Montgomery Story
(Boston: Beacon Press, 2010).
11
Ibid., 51.
244 Chapter Eight
necessarily following the letter of the law, would be peaceful and would
not undermine the rule of law in general.
At that first meeting of the black protesters, the idea of the boycott was
still inchoate. The grand ideals of faith and love did not immediately
translate into a call for equality, or even an awareness that the higher law
to which the protesters were committed might be in conflict with the law
of the land. Three demands were put forward at that first meeting, and they
were far from revolutionary. The protesters would end their boycott when
they were assured of “courteous treatment”, when the bus company
employed black bus drivers, and when “passengers were seated on a first-
come, first-served basis Negroes seating from the back of the bus
towards the front while whites seated from the front towards the back.”13
In other words, there was no initial demand for desegregation, just a
demand for gentler segregation. Moreover, the boycotters at first argued
that they were demanding nothing more than compliance with existing
law; the bus drivers had been going beyond the law by not only
segregating buses, but allowing whites to sit in seats that should have gone
to blacks if segregationist law was implemented correctly.
12
Ibid.
13
Ibid., 97.
Love, Justice and Natural Law 245
However, these moderate demands soon grew into a demand for fully
desegregated buses. The tension between the “highest principles of law
and order” invoked by King and the actually existing laws, manipulated by
the white-dominated city government to criminalize the boycott, became
too great. Further, the boycotters learned the degree to which the meaning
of the law of the land would be manipulated by its authorized interpreters
in order to justify the status quo. In early negotiations to conclude the
boycott, King and his associates presented their argument that the
boycott’s demands required no change in the law. While one city official
agreed with the boycotter’s interpretation of the law, another dissented,
offering not a legal basis for his dissent but a political one. “If we granted
the Negroes these demands,” the bus company’s attorney argued, “they
would go about boasting of a victory that they had won over the white
people”14. From this the protesters discovered that injustice and law could
be entangled much more thoroughly than they had imagined and the
higher law to which they appealed seemed all the more distant. Those
“highest principles” were not to be found in Montgomery, at least not until
the intervention of the United States Supreme Court.
14
Ibid., 100.
15
Martin Luther King, Jr., Strength to Love (Philadelphia: Fortress Press, 1981),
37.
16
Ibid., 38.
246 Chapter Eight
17
Ibid.
18
Martin Luther King, Jr., Stride towards Freedom, 110.
19
Ibid., 111.
Love, Justice and Natural Law 247
associated had little to say about natural law, and what they did say was
often derogatory. Paul Ramsey, an influential Protestant ethicist, dismisses
natural law together with the law codes of the Old Testament in a section
of his Basic Christian Ethics entitled “What the Christian does without a
Code” the answer, in short, is love.20 Paul Tillich, a towering figure of
mid-century U.S. theology and a subject of King’s dissertation, associated
natural law theory with the Roman Catholic Church’s legalistic explication
of the Ten Commandments and the Sermon on the Mount. While he
affirms the values of equality and freedom he finds in natural law theory,
Tillich argues that these concepts, when applied to the existing world
“become indefinite, changing, [and] relative,” with the result that “natural
law theory cannot answer the questions of the contents of justice”
Tillich finds the answers to those questions in love, and power.21
Reinhold Niebuhr, a renowned public intellectual and theological proponent
of “Christian realism,” pointedly writes of “the perils of moralism and
self-righteousness in the rigidities of the natural law.”22
If not from the theological giants of his day, where was it that King
picked up the idiom of natural law? It is tempting to speculate that
haunting the caesura in the evidence is a vernacular African American
idiom of God’s law and a higher law. It is tempting to imagine that this is
a vocabulary that King picked up, say, from the country preaching of his
father, or from other black churches he visited as a child in Georgia. And
it is tempting to build this idiom into a tradition, stretching to other civil
rights activists, such as those students arrested in Lynchburg, Virginia,
who stated that their actions were in accordance with “a Higher Law than
the law of governments”; to stretch this tradition forwards to Clarence
Thomas who writes of picking up the idiom of higher law in his childhood
in rural Georgia; and to stretch the tradition backwards, to Frederick
Douglass, whose speech opposing the Dred Scott decision appeals to a
heavenly court of justice higher than the Supreme Court.23 Even W. E. B.
20
Paul Ramsey, Basic Christian Ethics (New York: Charles Scribner’s Sons,
1950).
21
Paul Tillich, Love, Power, and Justice: Ontological Analyses and Ethical
Applications (London: Oxford University Press, 1954), 82.
22
Reinhold Niebuhr, The Nature and Destiny of Man: A Christian Interpretation,
Vol. 1 (Louisville: Westminster John Knox Press, 1996 [1941]), 221.
23
Davis W. Houck and David E. Dixon, eds. Religion, Rhetoric, and the Civil
Rights Movement (Waco: Baylor University Press, 2006), 426; Clarence Thomas,
My Grandfather’s Son: A Memoir (New York: Harper, 2007); Frederick Douglass,
“Speech on the Dred Scott Decision,” in African-American Social and Political
248 Chapter Eight
26
King, Testament of Hope, 49.
27
Ibid.
28
Ibid.
29
King, Stride towards Freedom, 92-95.
250 Chapter Eight
While King’s natural law language changed over time, and depending
on which sort of audience he was speaking to, it never vanished. In his
final book Where Do We Go From Here?, published in 1967, King brings
together the topics for which he is best known, love and justice, on the one
hand, and natural law, on the other. Dramatically, King suggests that even
more troublesome than the white supremacists of the Ku Klux Klan is the
“white liberal who is more devoted to ‘order’ than to justice, who prefers
tranquility to equality.”30 If the crux of natural law for King is an
opposition between law and justice, here it seems as though “order” is a
proxy for law, and the great shortcoming of the white liberal is that he
refuses to acknowledge natural law. In other words, the white liberal
knows only worldly law, shutting himself off the higher law, God’s law.
King no longer writes of justice as defined merely by the absence of
tyrannous law, by the absence of “difference made legal.” Instead, King
writes, “justice at its best is love correcting everything that stands against
love”.31 The higher law is the law of love. It is not a law at all in the sense
that it does not inflict punishments; it corrects through love. Worldly laws
that stand against this higher law are to be corrected in this very way:
through love. This is the story of the civil rights movement from King’s
perspective: unjust worldly laws being disobeyed not out of malice or hate
or violence but out of love. And, if we are to allow for God’s agency in
history, as King would have us do, the disobedience of civil rights
movement protesters clearly shows God’s workings in the world because
God is love.
30
Martin Luther King, Jr., Where Do We Go From Here: Chaos or Community?
(Boston: Beacon Press, 2010), 93.
31
Ibid., 38.
Love, Justice and Natural Law 251
32
Ibid., 107.
33
George, Clash of Orthodoxies.
34
A recent example in political theory is Sharon R. Krause, Civil Passions: Moral
Sentiment and Democratic Deliberation (Princeton: Princeton University Press,
2008), but the work of, for example, Eve Sedgewick, Martha Nussbaum, and
Simon Blackburn are also relevant. For an interesting attempt to link human rights
and affect, see José-Manuel Barreto, “Ethics of Emotions as Ethics of Human
Rights: A Jurisprudence of Sympathy in Adorno, Horkheimer and Rorty,” Law and
Critique 17 (2006): 73-106.
252 Chapter Eight
Such a grand undertaking is well beyond the scope of this chapter. Let
us return to Montgomery, to that first meeting to discuss the bus boycott.
In his unscripted speech to the packed church, King followed his appeal to
“the highest principles of law and order” with a call to be guided by love
as a “regulating ideal.” In between, he told his listeners: “Our method will
be that of persuasion, not coercion. We will only say to the people, ‘Let
your conscience be your guide’.”35 The phrase at first seems trite, but
perhaps it grows profound when its juxtaposition with love and law is
taken seriously. King was extolling his audience not to think but to feel
to feel the love of God and to feel love for those who would mistreat
them. It is through this feeling of love that they could access the “highest
principles of law.” And this feeling of love would be contagious: that their
position was just would be evident to everyone allowing themselves to feel
rightly, to love, to empathize. This is what would stir in the conscience of
those they sought to persuade, near and far: right feeling, no longer
clouded by the impurities sedimented by years of segregation. And it was
this right feeling that King himself transmitted so effectively, so
powerfully, to those in the church that evening, and to many others, near
and far. Perhaps the example of King suggests that the ancient division
between rhetoricians and philosophers must be transformed. A rhetorician
is said to persuade that an arbitrary position is correct, and one technique
of persuasion is arousing the emotions of his listeners. A philosopher is
said to reason, arguing logically to a conclusion that is good and true.
Might it be that what King does is to arouse the emotions of his listeners in
such a way that the result is not some arbitrary position but what is
necessarily good and true? If the higher law, the law within, may be
accessed through affect, might it also be contagious the empathizing,
loving soul spontaneously becoming silver-tongued, radiating the
goodness, the truth, and the beauty of his conscience?
No doubt this line of questioning pushes much too far. But the
direction that it pushes is one that becomes possible when the assumptions
of secularist ideology are set aside, when we take seriously religious
language, and religious ideas, and religious practice. In this direction may
be other resources for reflection on human rights that refuse the comforts
of secularism, so central to the self-identity of the West. Also in this
direction, when human rights and natural law have ended their forced
estrangement, we may find human rights to be more than an empty
35
King, Stride Towards Freedom, 62.
Love, Justice and Natural Law 253
Bibliography
Allen, Barbara. “Martin Luther King’s Civil Disobedience and the
American Covenant Tradition.” Publius 30 (2000): 71-113.
Asad, Talal. Formations of the Secular: Christianity, Islam, Modernity.
Stanford: Stanford University Press, 2003.
Barreto, José-Manuel. “Ethics of Emotions as Ethics of Human Rights: A
Jurisprudence of Sympathy in Adorno, Horkheimer and Rorty.” Law
and Critique 17 (2006): 73-106.
36
Cf. Costas Douzinas, The End of Human Rights: Critical Legal Thought at the
Turn of the Century (Oxford: Hart Publishing, 2000).
37
This, as it happens, is a language to which Henry would assent. See Michel
Henry, I am the Truth: Toward a Philosophy of Christianity, trans. Susan Emanuel
(Stanford: Stanford University Press, 2003), which offers rich resources for
reflection on affect, religion, ethics and politics.
254 Chapter Eight
Bass, S. Jonathan. Blessed are the Peacemakers: Martin Luther King, Jr.,
Eight White Religious Leaders, and the “Letter from Birmingham Jail.
Baton Rouge: Louisiana State University Press, 2001.
Chakrabarty, Dipesh. Provincializing Europe: Postcolonial Thought and
Historical Difference. Princeton: Princeton University Press, 2000.
Douglass, Frederick. “Speech on the Dred Scott Decision.” In African-
American Social and Political Thought, 1850-1920, edited by Howard
Brotz. New Brunswick: Transaction Publishers, 1992.
Douzinas, Costas. The End of Human Rights: Critical Legal Thought at
the Turn of the Century. Oxford: Hart Publishing, 2000.
Elazar, Daniel J. Covenant & Constitutionalism: The Great Frontier and
the Matrix of Federal Democracy. New Brunswick: Transaction
Publishers, 1998.
George, Robert P. The Clash of Orthodoxies: Law, Religion, and Morality
in Crisis. Wilmington: ISI Books, 2001.
Henry, Michel. I am the Truth: Toward a Philosophy of Christianity, trans.
Susan Emanuel. Stanford: Stanford University Press, 2003.
Hopkins, Dwight. “W. E. B. Du Bois on God and Jesus.” In The Souls of
W. E. B. Du Bois: New Essays and Reflections, edited by Edward J.
Blum and Jason R. Young. Macon: Mercer University Press, 2009.
Houck, Davis W. and David E. Dixon, eds. Religion, Rhetoric, and the
Civil Rights Movement. Waco: Baylor University Press, 2006.
Jackson, Timothy. “Martin Luther King, Jr. (1929-1968).” In The
Teachings of Modern Christianity on Law, Politics, and Human
Nature, Vol. 1, edited by John Witte, Jr. and Frank S. Alexander. New
York: Columbia University Press, 2006.
King, Jr., Martin Luther. Strength to Love. Philadelphia: Fortress Press,
1981.
. A Testament of Hope: The Essential Writings and Speeches of Martin
Luther King, Jr., edited by James M. Washington. San Francisco:
HarperSanFrancisco, 1986.
. The Papers of Martin Luther King, Jr., edited by Clayborne Carson,
Ralph Luker and Penny A. Russell. Berkeley: University of California
Press, 1992.
. Stride towards Freedom: The Montgomery Story. Boston: Beacon
Press, 2010.
. Where Do We Go from Here: Chaos or Community? Boston: Beacon
Press, 2010.
Krause, Sharon R. Civil Passions: Moral Sentiment and Democratic
Deliberation. Princeton: Princeton University Press, 2008.
Love, Justice and Natural Law 255
WILLIAM TWINING
*
This is a shortened version of the published text of the Annual MacDonald
Lecture, delivered at the University of Alberta on March 31st, 2005 and published
in Review of Constitutional Studies 11 (2006): 203-279. The substance of this
article is reproduced here, with minor changes, by kind permission of the copyright
holders. The original text also included discussions of the work of Dr Francis
Deng and Professor Abdullahi An-Na’im. A reader containing selections of the
writings of all four jurists has now been produced as William Twinning, ed.,
Human Rights: Southern Voices: Francis Deng, Abdullahi An Na’im, Yash Ghai
and Upendra Baxi (Cambridge: Cambridge University Press, 2009). In addition to
being an anthology of the works in the authors’ own words, this book contains
comparisons of their lives and works and a discussion of a number of issues, such
as the meanings of “Southern” and “voice” in this context, unheard voices, and
who else might be included in future volumes of this kind. The text of this chapter
was completed in 2005; since then all four authors have continued to write with
their usual ebullience a few of their more recent publications are referred to in
the footnotes.
1
Ahdaf Soueif, The Map of Love (London: Bloomsbury, 1999), 6.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 257
Yash Ghai and Upendra Baxi have both been prominent as activists as
well as scholars. Ghai has played a major role in post-independence
constitution-making and reform, especially in the South Pacific and
Kenya. Baxi has been an influential publicist and campaigner in India and
on the international stage, as well as serving as Vice-Chancellor of two
Indian universities. For the last twenty years he has campaigned and
litigated on behalf of the victims of the Bhopal disaster. As theorists they
have related, but contrasting perspectives. Both were born in 1938, they
were educated in English, studied law in the common law tradition, and
2
William Twining, Globalization and Legal Theory (London: Butterworth, 2000);
William Twining, General Jurisprudence: Understanding Law from a Global
Perspective (Cambridge: Cambridge University Press, 2009).
258 Chapter Nine
Here we are concerned only with their views on human rights. Ghai is
skeptical of most claims to universality that are made for human rights;
however, adopting a pragmatic materialist stance, he reports that he has
found through practical experience of post-colonial constitution-making
that human rights discourse provides a workable framework for
negotiating political and constitutional settlements among politicians and
leaders claiming to represent different majority, minority, and ethnic
interests in multi-ethnic societies. It also facilitates popular participation in
constitutive processes. Baxi argues that as human rights discourse
becomes commodified, professionalized by technocrats, and sometimes
hijacked by powerful groups, it is in grave danger of losing touch with the
experience of suffering and the needs of those who should be the main
beneficiaries the poor and the oppressed. They are the main authors of
human rights. To take human rights seriously, is to take suffering
seriously. Ghai and Baxi make a fascinating study in contrasts. Although
they differ, they probably do not disagree on most fundamentals. How far
they complement each other is for the reader to judge.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 259
3
Yash Ghai’s writings on human rights are only one part of his very extensive list
of publications. The biographical section draws on publicly available sources,
personal knowledge, and (i) “Legal Radicalism, Professionalism and Social
Action: Reflections on Teaching Law in Dar-es-Salaam” in The Limits of Legal
Radicalism, ed. Issa Shivji (University of Dar-es-Salaam, 1986), 26. The section
on negotiating claims in multi-ethnic societies draws heavily on two of his
publications: (ii) “Universalism and Relativism: Human Rights as a Framework for
Negotiating Interethnic Claims”, Cardozo Law Review 21 (2000): 1095, and (iii)
Yash Ghai, ed., Autonomy and Ethnicity: Negotiating Competing Claims in Multi-
Ethnic States (Cambridge: Cambridge University Press, 2000). The section on the
Asian Values debate is based mainly on (iv) “Human Rights and Asian Values”,
Public Law Review 9 (1998): 168, and (v) “The Politics of Human Rights in Asia”
in Frontiers of Legal Scholarship, ed., Geoffrey Wilson (Chichester: Wiley, 1995);
(vi) “Asian Perspectives on Human Rights” Hong Kong Law Journal 23 (1993):
342-57; (vii) “Rights, Duties and Responsibilities” in Asian Values: Encounter
with Diversity, eds. J. Caughelin, P. Lim and B. Mayer-Konig (London: Curzon
Press, 1998); (viii) Asian Human Rights Charter: A People’s Charter (Asian
Human Rights Commission, 1998); (ix) “Rights, Social Justice and Globalization
in East Asia” in The East Asian Challenge to Human Rights, eds. Joanne R. Bauer
and Daniel A. Bell (Cambridge: Cambridge University Press, 1999). The section
on the role of judges in implementing rights is mainly based on Yash Ghai and Jill
Cottrell, eds., Economic, Social and Cultural Rights in Practice: The Role of
Judges in Implementing Economic, Social and Cultural Rights (London: Interights,
2004). Ghai’s views are further developed in recent papers on the right to
development, constitutionalism and reflections on constitution-making: “A Journey
Around Constitutions,” South African Law Journal 122 (2005): 804; “Redesigning
the State for Right Development” in Development as a Human Right: Legal,
Political and Economic Dimensions, eds. B-A Andreassen and Susan Marks
(Cambridge: Harvard University Press, 2006); “Understanding Human Rights in
Asia” in International Protection of Human Rights: A Textbook, eds. Catarina
Krause and Martin Scheinin (Turku: Institute for Human Rights, 2008) . On his
bleak assessment of the state of human rights in Asia see Twining, Human Rights:
Southern Voices, 120-50. Other writings are cited as they arise.
260 Chapter Nine
Almost all of the constitutions that Yash Ghai has helped to design and
introduce have included a Bill of Rights.4 They have generally fitted
broadly liberal ideals of parliamentary democracy, judicial independence,
and the Rule of Law. He has been an outspoken critic of governmental
repression, especially detention without trial and torture; but there is a
discernible ambivalence in his attitude to human rights. For example, he
was editor and principal draftsman of an important report by the
Commonwealth Human Rights Initiative, entitled Put Our World to
Rights,5 published in 1991. Yet in 1987 he was co-editor (with Robin
Luckham and Francis Snyder) of The Political Economy of Law: A Third
World Reader which presented a distinctly Marxian perspective and which
contains no mention of rights, human rights, or constitutional rights in the
index, except a few references to habeas corpus.
4
The most influential model has been the Nigerian Bill of Rights (1959/60), which
in turn was heavily influenced by the European Convention on Human Rights. The
Independence Constitution of Nigeria represented a change of attitude by the
Colonial Office in London, who until then had been lukewarm about bills of rights.
Thereafter the Nigerian Bill of Rights became a model for many Commonwealth
countries in the period of decolonization. The story is told in A.W.B. Simpson,
Human Rights and the End of Empire (Oxford: Oxford University Press, 2001),
862-73. However the constitutions with which Ghai has been associated generally
involved extensive participatory constitutive processes and are to some extent
“home grown”.
5
Ghai was the main author of Put Our World to Rights (London: Commonwealth
Human Rights Initiative, 1991).
6
e.g. Issa Shivji, The Concept of Human Rights in Africa (London: Codesria,
1989).
7
This essay appears in a volume commemorating the twenty-fifth anniversary of
the Law Faculty of Dar-es-Salaam University: Issa Shivji, ed., The Limits of Legal
Radicalism (Dar-es-Salam: University of Dar-es-Salaam, 1986).
262 Chapter Nine
“My experience seemed to point to the problems when fidelity to the law
weakens the arrogance of power, the corruption of public life, the
insecurity of the disadvantaged. I was not unaware, of course, of other
purposes of the law which served the interests of the rich and the powerful.
But the fact was that it did increasingly less and less so; a whole body of
statutory law since TANU (the ruling party) came to power had begun to
tip the scales the other way. I retained my ambivalence about the legal
system, and was not attracted to the attitudes of many private practitioners
I met (or the interests they served). At the same time I knew the evasion of
the law or the dilution of its safeguards harmed many of the people the
radical lawyers were championing.” 9
8
Ibid., 27.
9
Ibid., 29-30.
10
Ibid., 31.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 263
In the early years of his career, Ghai wrote about many topics mainly
from a public law perspective. He joined in East African debates about the
arguments for and against Bills of Rights12 and he addressed particular
topics, such as habeas corpus, racial discrimination and the position of
ethnic minorities.13 However, it was not until about 1990 that he focused
his attention regularly on human rights as such. This is perhaps due to “the
increased salience” that human rights discourse achieved during this
period.14 Even then, he has consistently viewed Bills of Rights and the
international human rights regime as one kind of means among many that
11
Ghai’s evaluation of this paradox ends with a lament: “Comparative constitutional
law has been mired in formalism and pseudo-universalism and the wonderful
multiplicity of the constitution has been lost.” Ghai, “A Journey around
Constitutions”, 831.
12
Yash Ghai and Patrick McAuslan, Public Law and Political Change in Kenya
(Nairobi and London: Oxford University Press, 1970), at c. XI & XIII. At
Independence Kenya opted for a weak bill of rights, while Tanganyika—later
Tanzania—decided against one at this stage of development and nation-building.
See Julius Nyerere, Freedom and Unity (Uhuru na Umoja): A Selection from
Writings and Speeches 1952-65 (Dar-es-Salam: Oxford University Press, 1966)
passim, esp. c. 62. Ghai and McAuslan argued that even a limited Bill of Rights is
one way of making a government publicly accountable, but after the disillusioning
experience of the Kenya Bill of Rights in the immediate post-Independence period,
they reluctantly concluded that “an ineffective Bill is worse than no Bill at all, as it
raises false hopes… [t]he total effect of the Bill of Rights in practice is
occasionally to require Government to do indirectly what it cannot do directly—a
strange mutation of its normal role.” Ibid., 455-56. This theme is echoed in his
more recent writings, for example Yash Ghai, “Sentinels of Liberty or Sheep in
Woolf’s Clothing? Judicial Politics and the Hong Kong Bill of Rights”, Modern
Law Review 60 (1997): 459. For a subsequent assessment of the Kenyan Bill of
Rights, see Yash Ghai, “Creating a New Constitutional Order: Kenya’s
Predicament,” in Governance, Institutions and the Human Condition, ed.
Elizabeth Gachenga, et al. (Nairobi: LawAfrica & Strathmore University Press,
2009), 13-30. On the post-Independence history of human rights in Tanzania, see
Jennifer A. Widner, Building the Rule of Law: Francis Nyalali and the Road to
Judicial Independence in Africa (New York: Norton, 2001).
13
See especially Yash Ghai, “Independence and Safeguards in Kenya”, East
African Law Journal 3 (1967): 177; Yash Ghai and D.P. Ghai, eds., Asians in East
and Central Africa (London: Minority Rights Group, 1971), and Ghai and
McAuslan, Public Law.
14
See especially Ghai, “Universalism and Relativism”, 1095.
264 Chapter Nine
may serve to protect the interests of the poor and the vulnerable as well as
satisfying majority and minority interests.15 As we shall see, his approach
has generally been more pragmatic than idealistic and it is only quite
recently that he has devoted much space to writing about human rights
theory. Rather than try to attempt to trace his intellectual development or
summarize his general constitutional theory, I shall here focus on three
papers which illustrate more general aspects of his approach to human
rights: the role of human rights discourse in reaching constitutional
settlements in multi-ethnic societies; his critique of the Asian values”
debate of the early 1990s; and his exchange with Abdullahi An-Na’im
about the justiciability of economic and social rights. In considering these
particular pieces it is important to bear in mind that Yash Ghai is primarily
a public lawyer for whom Bills of Rights are only one aspect of
constitutionalism and human rights discourse is but one aspect of
constitutional and political theory.
15
For example, in discussing issues and prospects for constitution-making in post-
war Iraq, “full respect for the principles of universal human rights” is only one of
nine principles to be accommodated in a settlement likely to be acceptable to the
Shia and other groups.” Yash Ghai, “Constitution-making in a new Iraq” in
Building Democracy in Iraq, eds. Yash Ghai, Mark Lattimer and Yahia Said
(London: Minority Rights, 2003), 27.
16
For the main sources of this section, see supra note 3.
17
Ghai and Ghai, Asians in East and Central Africa.
18
Ghai, “Universalism and Relativism.”
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 265
19
Ibid., 1099.
20
“By the ‘framework of rights’ I mean the standards and norms of human rights
reflected in international instruments and the institutions for the interpretation and
enforcement of rights. This means that no permissible policies are arbitrary.
Instead, they must be justified by reference to a recognized right, the qualifications
that may be lawfully imposed on the right, or a balance between rights. The
procedures and guidelines for the balance and tradeoffs must be included within
the regime of rights. The notion of framework also refers to the process of
negotiations or adjudication which must be conducted fairly within certain core
values of rights. There must also be the acceptance of the ultimate authority of the
judiciary to settle competing claims by reference to human rights norms.” Ibid.,
1103-04.
266 Chapter Nine
Ghai uses his four case studies to explode a number of myths: First, he
challenges the assumption that culture is the salient element in
determining attitudes to rights, a matter of significance when “cultural
relativism” is invoked to undermine the case for human rights.22 "Culture”
is not irrelevant, but it operates in complex ways. Culture is not
monolithic, but protean; no community has a static culture;23 cultures
change and intermix; homogeneity of culture within a nation state is
nowadays exceptional, and indeed much state effort is devoted to
artificially creating a common culture as a prop for national unity.
Questions of the relation of rights to culture arise within communities, as
when women or minorities have invoked rights to challenge or interrogate
“tradition”. As Santos and others have suggested, cross-cultural discourse
can generate new forms and enrich the culture of rights.24 Perhaps, most
21
Ibid., 1102.
22
In respect of the four case studies he concluded: “ ‘Culture’ has nowhere been a
salient element determining attitudes to rights. It has been important in Fiji,
Canada, and South Africa, but it has been important in different ways… With the
exception of the Canadian first nations [‘the Aborigines’], the proponents of the
cultural approach to rights were not necessarily concerned about the general
welfare of their community’s cultural traditions. They were more concerned with
the power they obtain from espousing those traditions… The manipulation of
‘tradition’ by Inkatha is well documented. Fijian military personnel and politicians
who justified the coup were accused of similar manipulation by a variety of
respectable commentators.” Ibid., 1135-36.
23
cf. Fishbayn’s insightful paper on judicial interpretations of “culture” in family
cases in South Africa: Lisa Fishbayn, “Litigating the Right to Culture: Family Law
in the New South Africa,” International Journal of Law, Policy and the Family 13
(1999): 147.
24
Ghai, “Universalism and Relativism,” 1098, citing Boaventura de Sousa Santos,
Towards a New Common Sense (London: Routledge, 1995). See Jeremy Webber’s
thesis that aboriginal rights in Canada are best understood to be the product of
cross-cultural interaction rather than as the result of some antecedent body of law.
Jeremy Webber, “Relations of Force and Relations of Justice: The Emergence of
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 267
Second, Ghai attacks as a myth the idea that the origins and current
support for universal rights are solely Western. Historically, the sources of
the international regime are quite diverse, with different “generations”
having different supporters.26 During the colonial period, for example, the
British were among the strongest opponents of rights talk, especially in
relation to self-determination or local Bills of Rights. At that time,
nationalist leaders were strong supporters of human rights, especially the
right to self-determination, but that enthusiasm did not always survive
beyond Independence. Bentham, Burke, and Marx were among the critics
of rights within the Western tradition. During the Cold War the Eastern
bloc generally championed social and economic rights, the Western
powers individual civil and political rights. In South Africa it was the
whites, who historically opposed universal human rights, and, after the end
of apartheid, it was the black majority who were the most committed to
them.27 In modern times political leaders have invoked “the right to self-
determination” as a defense against external criticism of internally
repressive regimes and at the same time dismiss “rights discourse” as a
form of Western neo-colonialism as in “the Asian values” debate.
29
The Universal Declaration of Human Rights includes social, economic and
cultural rights as well as civil and political rights, and recognized the importance of
duties. Ibid, 170.
30
Ghai, “Universalism and Relativism”, 1095-99. The formulation in the text is
mine. Ghai’s categories are recognizable, but some writers distinguish between
many more positions. On the ambiguities of “relativism” see Susan Haack,
Manifesto of a Passionate Moderate (Chicago: University of Chicago Press, 1998),
c. 9.
31
A prominent modern example is Alison Dundas Renteln, Relativism and the
Search for Human Rights (London: Sage, 1990). See also Alison Dundas Rentelm,
“Relativism and the Search for Human Rights”, American Anthropologist 90
(1988): 64. This continues a tradition that can be traced back to the search for
cultural universals by George P. Murdock and the attempts by Father Thomas
Davitt SJ. to find empirical support for natural law in universal values and norms
in preliterate societies e.g. Thomas Davitt SJ., "Basic Value Judgments in
Preliterate Custom and Law", Council for the Study of Mankind, Conference on
Law and the Idea of Mankind (Chicago, 1963/4) (unpublished paper). Apart from
problems of the “naturalistic fallacy”—deriving ‘ought’ propositions from ‘is’
premises—, such efforts tend to encounter two main lines of objection: (i) that
general prescriptions of the kind “killing is condemned in all known societies” are
so hedged with exceptions and qualifications as to have virtually no content and
(ii) such accounts tend to play down or pass over in silence unattractive near-
universals such as aggression and the subordination of women. Ghai cites Charles
Taylor arguing that, although human nature is socially constructed there is often
sufficient overlap to ground a workable common core of human rights. Ghai,
“Rights, Social Justice and Globalization”, 241.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 269
On the basis of these four case studies, backed by his wide practical
experience, Ghai suggests some further general conclusions: First, rights
provide a framework not only for cross-cultural discourse and negotiation,
but also “to interrogate culture” within a given community, as when
women have used them to challenge traditionalists in Canada, India, and
South Africa.34 Second, “in no case are rights seen merely as protections
against the state. They are instruments for the distribution of resources, a
basis for identity, a tool of hegemony, and they offer a social vision of
society. Rights are not necessarily deeply held values, but rather a mode of
discourse for advancing and justifying claims.”35 Third, in multicultural
societies, balancing of interests requires recognition of collective as well
as individual rights, including rights connected with being a member of a
group, as with affirmative action in India.36 Fourth, where rights are used
for balancing interests, there is no room for absolutism of rights. They
have to be qualified, balanced against each other, or re-conceptualized.37
Fifth, a stable settlement in a multi-ethnic society often involves
32
See Twining , “Human Rights, Southern Voices”, c. 3.4.
33
Ghai, “Universalism and Relativism”, 1139-40.
34
Ibid., 1137.
35
Ibid.
36
Ibid., 1138.
37
Ibid.
270 Chapter Nine
38
Ibid.
39
Ibid.
40
Ibid. 1138-39. See, however, his caveats about the role of the judiciary in
relation to economic and social rights, discussed below.
41
For sources of this section see supra note 3.
42
Amartya Sen, “Human Rights and Asian Values: What Lee Kuan Yew and I
Peng don’t understand about Asia”, The New Republic, July 14, 1997, 40.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 271
united front against growing Western hegemony. Lee Kuan Yew (and the
Government of Singapore) and Muhathir Mohamed (and the Government
of Malaysia), who could hardly be considered representative of the whole
of Asia, framed this North-South confrontation in terms of a fundamental
conflict between “human rights and Asian values”.43
The Asian values debate has rumbled on for over a decade and has
surfaced in a number of different contexts, of which one of the most
interesting and important is the positions taken by China both internally
and externally in response to western criticism.44 Yash Ghai was one of a
number of “Southern” intellectuals who jumped to the defense of ideas
about human rights and democracy as not being peculiarly Western. In a
series of papers published between 1993 and 1999, he sharply criticized
the arguments and positions adopted by the leaders of Singapore and
Malaysia and in the process developed his own general position on human
rights.45
We need not enter into the details of Ghai’s criticisms of the Singapore
and Malaysian versions of the “Asian values” position, which he treats as
43
Accessible documents include The Bangkok Governmental Declaration (1993),
online: www.unhchr.ch/html/menu5/wcbangk; Government of Singapore, Shared
Values (Singapore: Government Printers, 1991), and a useful symposium in
Foreign Affairs 73 (1994): 109-26, including an interview of Lee Kuan Yew by
Fareed Zakaria, and the response by Kim Dae Jung, "Is Culture Destiny?". See also
Bauer and Bell, The East Asian Challenge.
44
See, e.g., Ann Kent, China, the United Nations and Human Rights: The Limits of
Compliance (Philadelphia: University of Pennsylvania Press, 1999) and Rosemary
Foot, Rights Beyond Borders (Oxford: Oxford University Press, 2000). .
45
In the version of “the Asian values position” advanced by Lee Kuan Yew and
the Government of Singapore the core of the argument is summarized by Ghai as
follows: (1) The West is decadent lawless, amoral, and in economic decline. This
decadence is due to its emphasis on democracy and human rights based on extreme
individualism. “Rights consciousness has made people selfish and irresponsible
and promoted confrontation and litigiousness.” (2) Asian societies have
maintained social stability, economic progress, and a sense of moral purpose on the
basis of a culture and ethos that emphasizes duties and subordinates individual
interests to the welfare of the community. (3) There is a Western conspiracy to
subvert Asian political independence and economic success by imposing decadent
alien values on Asian culture. Ghai challenges all of these positions. Ghai, “Human
Rights and Asian Values”, 176-77; cf. the more detailed critique in Ghai, “The
Politics of Human Rights in Asia”.
272 Chapter Nine
both insincere and confused.46 He suggests that the true motive for their
campaign was to justify authoritarian regimes at a time when they were
being subjected to criticism both internally and internationally for
repression of dissent and civil liberties. However, participating in the
debates sharpened Ghai’s focus on the connections between culture, the
market, and human rights. Here it is sufficient to quote his own summary
of his treatment of one phase of the debate as it surfaced before and during
the Bangkok meeting in March-April 1993 in the run up to the Vienna
World Conference on Human Rights:
46
Ghai tended to dismiss the Bangkok Declaration as an incoherent and self-
contradictory document, a political compromise that was hardly worth
deconstruction (e.g. Ghai, “The Politics of Human Rights in Asia”, 209, and Ghai,
“Human Rights and Asian Values”, 174) and to concentrate on the arguments of
Lee and Muhathir, about whom he was equally scathing: “To draw from their
pretentious and mostly inconsistent statements a general philosophy of Asian
values is like trying to understand Western philosophy of rights and justice from
statements of Reagan and Thatcher.” Ibid.
47
Ghai points to the highly selective presentation of Asian values by some
protagonists, glossing over the hierarchical structures of relationships,
subordination of women, the exploitation of children and workers, nepotism and
corruption based on family ties, and the oppression of minorities. Ghai, “Human
Rights and Asian Values”, 177.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 273
To start with Ghai was quite dismissive of arguments that human rights
represent a form of cultural imperialism the imposition of values that are
atomistic, confrontational and self-seeking on a culture that emphasizes
harmony, consensus, hard work, and solidarity. This argument, in his
view, exaggerated the homogeneity of “Asian” cultures, distorted the
nature of human rights, and over-emphasized the place of culture in
economic success. However, in a later paper on “Rights, Duties and
Responsibilities” he decided to take more seriously the argument that
some Asian traditions, notably Hinduism and Confucianism, emphasize
duties rather than rights and that this is a superior way to organize
society.49 “Duty” in this context is more abstract than the Hohfeldian idea
of duty; it refers to obligations or responsibilities attached to office or
status or class, rather than merely being the correlative of claim rights.
Such responsibilities prescribe right and proper conduct in respect of a
given role or relationship, like father-son, husband-wife, friend-friend, and
most important, ruler-subjects. On one interpretation of Confucianism
such duties could be said to be less self-regarding than rights, more
communitarian, oriented to harmony rather than conflict, more informal,
emphasizing honor, peace and stability. “The key duties are loyalty,
obedience, filial piety, respect, and protection.”50 Ghai acknowledges that
in some societies this version of Confucianism can be attractive:
48
This is based on the Abstract of Ghai, “Human Rights and Asian Values”.
49
Ghai, “Rights, Duties and Responsibilities”.
50
Ibid., 29.
51
Ibid., 37-38.
274 Chapter Nine
“I believe that rights are historically determined and are generally the
result of social struggles. They are significantly influenced by material and
economic conditions of human existence. It is for that reason unjustified to
talk of uniform attitudes and practices in such a diverse region as Asia.
Rights become important, both as political principles and instruments, with
the emergence of capitalist markets and the strong states associated with
the development of national markets. Markets and states subordinated
52
Ibid., 38, citing W.T. de Barry, The Trouble with Confucianism (Cambridge:
Harvard University Press, 1991). Ghai also points out that traditional
Confucianism placed more emphasis on the individual than has generally been
recognized, citing Yu-Wei Hsieh, "The Status of the Individual in Chinese Ethics,"
in The Chinese Mind: Essentials of Chinese Philosophy and Culture, ed. Charles
Moore (Honolulu: University of Hawaii Press, 1967), and Tu Wei-Ming,
Confucian Thought: Self-hood as Creative Transformation (Albany: State
University of New York Press, 1989).
53
Ghai, “Rights, Duties and Responsibilities”, 34.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 275
The validity of the distinction has long been a matter of contention and
the claim that “human rights are interdependent and indivisible” is widely
supported by the human rights community.56 At the start of the
Millennium the debate became sharply focused within Interights, an
influential London-based NGO, by the responses to a memorandum
prepared by Yash Ghai that was intended to focus the program of
Interights on ESCR:
54
Ghai, “Human Rights and Asian Values,” 169. Pressure of space precludes my
doing justice to Ghai’s analysis of the complex relationship between economic
globalization and human rights in Asia, on which see Ghai, “Rights, Social Justice
and Globalization in East Asia,” and Twining, “Human Rights: Southern Voices,”
131-48.
55
Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, 213 U.N.T.S. 222 (entered into force 3 September 1953).
56
On Baxi’s criticism of this “mantra”, see Baxi, The Future of Human Rights
(Delhi: Oxford University Press, 2002).
276 Chapter Nine
57
Jill Cottrell and Yash Ghai, “The Role of the Courts in the Protection of
Economic, Social and Cultural Rights,” in Yash Ghai and Jill Cottrell, eds.,
Economic, Social and Cultural Rights in Practice: The Role of Judges in
Implementing Economic, Social and Cultural Rights (London: Interights, 2004).
Part of this argument is transcribed in Twining, Human Rights: Southern Voices,
152-54.
58
Ibid.
59
Abdullahi An-Na’im, “To Affirm the Full Human Rights Standing of Economic,
Social and Cultural Rights,” in Ghai and Cottrell, eds., Economic, Social and
Cultural Rights in Practice, 7.
60
Lord Lester of Herne Hill and Colm O’Cinneide, “The Effective Protection of
Socio-Economic Rights” in Ghai and Cottrell, eds., Economic, Social and Cultural
Rights in Practice,16-22.
61
For example, “within the European system, ESCR has been relegated to non-
binding charters and optional protocols.” An-Na’im, “To Affirm the Full Human
Rights Standing,” 11.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 277
62
For example, a right to freedom of expression is not much use to the vulnerable
without a right to education; conversely implementation of a right to education is
dependent on freedom to research and communicate freely. Ibid.
63
Ibid. [emphasis added].
64
Ibid., 8.
278 Chapter Nine
One senses that Ghai may have been somewhat impatient with a
debate, which seems to have been based largely on mutual misunderstandings
of the seemingly conflicting viewpoints. No one denied that courts had
some role to play in this area, while An-Na’im was not asking that they
should be seen as the only relevant mechanism. However, the debate
stimulated Ghai to develop his own ideas about the nature of ESCR and
the role of human rights discourse in framing state policies. Without
claiming to do justice to a rich and detailed analysis, one can perhaps
pinpoint three key ideas underlying his position.
65
“Reliance on international norms brings in all of the difficulties of hegemony
and alleged imposition; and it ignores the national character of the constitution as a
charter of the people themselves to bind their rulers … and it ignores the critical
importance of local action, democracy, etc.” Yash Ghai, introduction to Ghai and
Cottrell, eds., Economic, Social and Cultural Rights in Practice, 2. Interestingly,
Baxi makes a similar criticism of Ghai in a different context. See below n. 97.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 279
fine balance here, for there is always a risk that courts may cross the line
between indicating failures of policy and priorities and indicating so
clearly what these priorities ought to be that they are actually making
policy.” 66
Second, Ghai and Cottrell point out that issues about justiciability cannot
turn on the difference between CPR and ESCR, nor on some untenable
distinction between negative and positive rights.69 They distinguish
between two aspects of justiciability that are often confused:70 (a) explicit
non-justiciability when a constitution or law explicitly excludes the
jurisdiction of the courts, for example the Directive Principles of State
Policy in the Indian Constitution; and (b) non-justiciability as a matter of
appropriateness, a more delicate and complex matter. This may be based
on arguments about separation of powers, or legitimacy, or the
competence of courts, or some concept of what is a “political” question or
a combination of them. These are contested matters in which no clear
consensus has emerged in the case law, except a tendency to reject sharp
distinctions.71
66
Cottrell and Ghai, “The Role of the Courts”, 86. They cite with approval dicta in
the South African case of Government of the Republic of South Africa v
Grootboom and Others [2000] ICHRL 72 (4 October 2000), 2000 (11) BCLR
1169 (CCSA) (QL), and of Canadian Justice Louise Arbour as she then
was dissenting in Gosselin v Québec (Attorney-General) [2002] 4 S.C.R. 429,
2002 SCC 84, where she draws a distinction between recognition of the kinds of
claims individuals may assert against the state, and questions of how much the
state should spend and in what manner: “One can in principle answer the question
whether a Charter right exists in this case, to a level of welfare sufficient to meet
one’s basic needs without addressing how much expenditure by the state is
necessary in order to secure that right. It is only the latter question that is, properly
speaking, non-justiciable” (at para. 332).
67
Ibid., 89.
68
Ibid., 87.
69
Ibid., 70-71.
70
Ibid., 66-70.
71
“Courts are considered an unsuitable forum where there may be no clear
standards or rules by which to resolve a dispute or where the court may not be able
280 Chapter Nine
Third, the discussion of the role of the courts throws light on the nature
of ESCR. Ghai rejects any sharp distinction between ESCR and CPR, but
nevertheless argues that there are certain tendencies that characterize
ESCR and suggest a more limited role for the courts in relation to many,
but not all of them.72 For example, in many domestic and international
instruments there is a tendency for ESCR provisions to be drafted in terms
that allow considerable discretion in respect of standards, timing, and
methods of enforcement.73 Such notions as “progressive realization”,
“margin of appreciation”, and “to the extent of its available resources”
further limit the role of courts. No human rights are costless, but all
implementation of all human rights depends on “a complex interaction of
policies in numerous sectors, institutions, and entitlements.” 74 However,
as the Indian and South African cases have shown, there is scope for
courts to define what is the minimum core of any given right (a
notoriously difficult and contentious matter), to sanction state violation of
established rights, and to point out that “progressive realization” implies
that the state has a constitutional duty to start implementation and a further
duty to ensure that there is no deterioration of standards. Ghai’s essentially
evolutionary and pragmatic argument is consistent with An-Na’im’s
insistence that what are appropriate mechanisms of implementation should
be decided on the merits in respect of each right in particular contexts
rather than by reference to abstract categories. But in light of the
experience of the case law, there may be a considerably more significant
role for courts in the long run than An-Na’im suggests.
to supervise the enforcement of its decision or the highly technical nature of the
questions, or the large questions of policy involved may be thought to present
insuperable obstacles to the useful involvement of courts”. Ibid., 69. The case of
Upendra Baxi v State of Uttar Pradesh (1986) 4 SCC 106 is cited as an example of
the courts getting involved in an unsuitable activity here the court supervised a
home for women for five years.
72
See the excellent discussion by Ghai and Cottrell of the way these considerations
affect rights to education, medical treatment, housing, environment and social
security. Cottrell and Ghai, “The Role of the Courts”, 76-82.
73
But there are exceptions: for example, the right to free and compulsory primary
education. Ibid., 61.
74
Ibid., 62.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 281
75
Ibid., 61.
282 Chapter Nine
“It is easy for the Central Authorities, if they were so minded, to bypass or
undermine the Basic Law, and they would presumably always find people
who are willing to collaborate with them in this enterprise. However,
China stands to gain more from a faithful adherence to the Basic Law, to
keep promises of autonomy, to permit people of all persuasions to
participate in public affairs, to respect rights and freedoms, and to let an
independent judiciary enforce the Basic Laws and other laws. This is a
more effective way to win the loyalty of Hong Kong people. An adherence
to legal norms and consultative and democratic procedures would ultimately
benefit the Central Authorities as they grapple with the difficult task of
managing affairs on the mainland as economic reforms and the movement
for democracy generate new tensions.” 76
76
Yash Ghai, Hong Kong’s New Constitutional Order (Hong Kong: Hong Kong
University Press), 500.
77
For example, “naturalists” believe that human rights embody universal values;
and cultural relativists might argue that he is too dismissive of the core of truth in
the idea that there are strong communitarian traditions in Asia that are far less
individualistic than Western ideologies of individual rights; and his views are
likely to be anathema to free-market “liberals”. He has also been attacked from the
left by Upendra Baxi for too readily taking the international regime of human
rights as the starting-point for constitutionalism and for failing to emphasize how
human rights discourse can obfuscate “the real historical struggles” of “subaltern”
peoples. (See further below n. 97).
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 283
Upendra Baxi 78
For hundreds of millions of “the wretched of the earth”, human rights
enunciations matter, if at all, only if they provide shields against torture
and tyranny, deprivation and destitution, pauperization and powerlessness,
desexualization and degradation.79
78
This section is based mainly on Upendra Baxi: (i) The Future of Human Rights
(2002a) (hereafter FHR I); a second edition (FHR II) was published in 2006, but as
the first edition is more readily available references to it have been retained, except
where there is a significant change; (ii) an article, ‘Voices of Suffering,
Fragmented Universality and the Future of Human Rights,” Transnational Law
and Contemporary Problems 8 (1998): 125 (hereafter VS 1998); (iii) ‘Voices of
Suffering, Fragmented Universality and the Future of Human Rights’ in Burns H.
Weston and Stephen P. Marks, eds. The Future of International Human Rights
(Ardsley: Transnational, 1999) (hereafter VS 1999). This 1999 version contains a
succinct restatement of Baxi’s basic ideas. For many it is probably the best place to
start, even though there are many more recent writings. It is reproduced in full in
Twining, Human Rights: Southern Voices, c. 5.2); and (iv) a draft introduction to
Upendra Baxi & Shulamith Koenig, The People’s Report on Human Rights
Education (New York: The People’s Movement for Human Rights Education,
2002) (hereafter HRE). A revised version was published years later as Upendra
Baxi, The Human Right to Human Rights Education? Some Critical Perspectives
(New Delhi: Universal Law Book Co, 2006). Reference will also be made to a
number of articles and to three books published in 1994: Inhuman Wrongs and
Human Rights: Some Unconventional Essays (New Delhi: Har Anand);
Mambrino’s Helmet: Human Rights for a Changing World (New Delhi: Har
Anand) and, with O. Mendelsohn, The Rights of Subordinated Peoples (New
Delhi: Oxford University Press). Some of Baxi’s later writings are collected in
Human Rights in an Inhuman World (New Delhi: Oxford University Press, 2007).
The biographical information is based in part on an interview and correspondence
with Professor Baxi.
79
Baxi, “Voices of Suffering,” 103.
80
Baxi, The Future of Human Rights, xii.
81
Baxi, “Voices of Suffering,” 102.
284 Chapter Nine
82
Upendra Baxi, “What Happens Next is Up to You: Human Rights at Risk in
Dams and Development”, American University International Law Review 16
(2001): 1507.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 285
83
Upendra Baxi, Mass Torts, Multinational Enterprise Liability and Private
international Law (The Hague: Martinus Nijhoff, 2000).
84
Baxi has written a great deal about the uses and limitations of law in furthering
the interests of the worst off, but his views on human rights extend beyond law to
include ideas, discourse and praxis.
85
“It was ‘heaven to be alive’ those days! To go to the Greek Amphitheater
adjoining the International Student House and to hear Joan Baez stringing protest
melodies. To read the classic text Soul on Ice, the first to utter the now heavily
jargonized phrase: ‘When confronted with a logical impossibility, you have the
choice to be part of the problem or part of the solution’ Before Berkeley, I never
marched with the processions carrying placards. ‘Radicalization’ occurred on a
wholly different learning curve as well as when I attended… Professor David
Daube’s seminars on the notion of impossibility in Roman and Greek law!
Professor Daube’s charismatic problematic of course was the situation when a
horse was sworn as a Roman Senator!… David taught me memorably long
before the Derridean/ postmodernist vogue the ways in which the law makes the
impossible possible.” (Communication to the author).
86
Upendra Baxi, “From Human Rights to Human Flourishing: Julius Stone,
Amartya Sen and Beyond?” (The Julius Stone Lecture 2001, University of
Sydney), in Baxi, Human Rights in a Posthuman World.
87
While there is a distinct Marxian strain in Baxi’s thought, especially through
Gramsci, he has been as critical of Soviet ideology and praxis as of free market
capitalism: “Both the triumphal eras of bourgeois human rights formations and of
revolutionary socialism of Marxian imagination marshaled this narrative
hegemony for remarkably sustained practices of the politics of cruelty.” Baxi, The
286 Chapter Nine
Since the early 1990s most of Baxi’s work has concerned human
rights. Much of what he writes is critical of discourses of human rights, the
complexities and compromises involved, and the misuses to which the
discourses have been put. The tone is passionate, polemical and radical,
but the style is learned, allusive and quite abstract.90 Some of the
distinctions that he emphasizes have occasioned puzzlement: for example,
the distinction between the politics of human rights and politics for human
rights,91 between human rights movements, human rights markets, and
market-friendly human rights,92 between justified and unjustifiable human
suffering,93 and between “modern” and “contemporary” human rights94
all of which need explication. While much of his argument is complex,
dialectical, and often ironic, one clear message rings out: taking human
rights seriously must involve taking human suffering seriously.
Future of Human Rights, xiv, 35 and 137-38. Anyway, Baxi is far too eclectic
intellectually to be categorized as a Marxist.
88
Ibid. 78-80 and 97-100.
89
Baxi, “From Human Rights to Human Flourishing”; cf. Baxi and Koenig, The
People’s Report on Human Rights Education, 50.
90
He moves smoothly from his Indian intellectual heritage (Gandhi, Ambedkar,
the Supreme Court of India) to Western, especially Anglo-American, jurisprudence
(he has written about Bentham, Kelsen, Rawls, Dworkin and Stone) through
Marxian theory (Marx, Gramsci, Benjamin) and Natural law (Aquinas, Gewirth),
drawing on contemporary sociology (e.g. Beck, Bourdieu, and Castells) and
Continental European philosophy (Foucault, Derrida, Laclau, Levinas), engaging
with but distancing himself from post-modernism (especially Rorty) and Critical
Legal Studies, and dealing more sympathetically with Nussbaum and Sen.
91
E.g. The Future of Human Rights, x-xi, 13-14, 42-44 et passim.
92
Ibid., vi, 121-31
93
Ibid., 17-18.
94
Ibid., 27-28.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 287
his account relates “to the narratives of unrealized and even unattainable
human rights”.95 Rather than accept this as ambivalence, he recalls
Gramsci’s distinction between pessimism of the intellect and optimism of
the will.96 Although he writes about human rights futures, Baxi is more
concerned with struggle than with prediction.
95
Ibid., xii.
96
In writing about attempts to develop “enlightened” policies for the construction
of major dams, rather than ceasing their construction as inevitably involving major
human rights violations, Baxi comments: “Human rights violations urge us,
however, to profess pessimism of will and the optimism of intellect. We need to
hunt and haunt all erudite discourses that seek to over-rationalize development. We
need to defend and protect people suffering everywhere who refuse to accept that
the power of a few should become the destiny of millions.” Baxi, “What Happens
Next is up to You”, 1529.
97
Baxi criticizes Ghai for taking the international regime of human rights as his
starting-point for comparing four constitutional narratives, without mentioning that
the Indian Constitution preceded and went further than the Declaration, and
without emphasizing sufficiently the extent to which human rights are the product
of struggles rather than benign “top down” problem solving. Upendra Baxi,
“Constitutionalism as a Site of State Formative Practices,” Cardozo Law Review
21 (2002): 1183.
98
Chapter 6 of “The Future of Human Rights” is entitled “What is Living and
Dead in Relativism?”
288 Chapter Nine
99
Baxi makes interesting points that I cannot pursue here about the intellectual
history of who counts as “human”, Baxi, The Future of Human Rights, 28-29; the
Hegelian idea of concrete universality what it is to be fully human, Ibid., 92-97;
and the implications of biotechnology for ideas of “human dignity”, Ibid., 161-63.
Baxi distances himself from strong relativist positions, while acknowledging that
post-modernists and anti-foundationalists have usefully problematized ideas of
universality, Ibid., 97-118. cf. Ghai, “Universalism and Relativism”. Baxi
concludes: “The universality of human rights symbolizes the universality of the
collective human aspiration to make power increasingly accountable, governance
progressively just, and the state incrementally more ethical.” Baxi, The Future of
Human Rights, 105.
100
Like me, Baxi does not think that human rights discourse can adequately
capture the concerns of distributive justice; unlike me he is surprisingly kind to
John Rawls’ much-criticized The Law of Peoples (Cambridge: Harvard University
Press, 1999); cf. Twining, Globalisation and Legal Theory, 69-75; Twining,
General Jurisprudence, 153-72.
101
Baxi criticizes Ghai from a “subaltern perspective on constitutionalism” for
masking the suffering involved in human rights struggles, for “a wholly utilitarian
construction of rights”, and for accepting too readily the views of political elites at
the expense of ordinary people. Baxi, “Constitutionalism as a Site”, 1191. Some of
this criticism is, in my view, unduly harsh. The sharp tone may have spilled over
from his criticism of Kenneth Karst in the same symposium for painting an
idealized picture of American constitutional history without even mentioning
slavery.
102
This theme is developed at length in Upendra Baxi, “The War on Terror and the
War of Terror: Nomadic Multitudes, Aggressive Incumbents, and the ‘New’
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 289
International Law. Prefatory Remarks on Two ‘Wars’,” Osgoode Hall Law Journal
43 (2005): 7.
103
Baxi, “Voices of Suffering,” 116. A longer version adds “Some activists
celebrate virtues of dialogue among the communities of perpetrators and those
violated (what I term human rights dialogism).” Baxi, The Future of Human
Rights, 51. Baxi is sympathetic to “moderate forms of dialogism”, exemplified by
Truth and Reconciliation Commissions and the writings of Abdullahi An Na’im,
Ibid, 58-59, but warns that dialogue with the worst kinds of perpetrators of
violations may delegitimize the idea of human rights in the eyes of the violated,
Ibid. 60. For example: “The idea that a handful of NGOs can dialogue with a
handful of CEOs of multinationals to produce implementation of human rights is
simply Quixotic”. Ibid, 58. Cf. Baxi’s more pragmatic approach to the UN’s
proposed Norms on Human Rights Responsibilities of Transnationals and other
Business Corporations, arguing for a pragmatic negotiated compromise between
the competing ideologies of business and international regulation. Upendra Baxi,
“Market Fundamentalisms: Business Ethics at the Altar of Rights,” Human Rights
Law Review 5 (2005): 3.
290 Chapter Nine
Baxi’s aim in The Future of Human Rights is: “to decipher the future
of protean forms of social action assembled by convention, under a portal
named ‘human rights’. It problematizes the very notion of ‘human rights’,
the standard narratives of their origins, the ensemble of ideologies
animating their modes of production, and the wayward circumstances of
their enunciation”.106
104
Baxi, Future of Human Rights. These ideas are developed at greater length,
often more concretely, in lectures, speeches, articles, and pamphlets scattered
around websites, learned journals, and activist magazines that are spread widely
both geographically and intellectually. Some take the form of detailed
commentaries on particular reports or draft texts. Among the most substantial of
these are: Upendra Baxi, “‘A Work in Progress?’: The United Nations Report to
the United Nations Human Rights Committee,” Indian Journal of International
Law 38 (1996): 34; Upendra Baxi, “‘Global Neighbourhood’ and the ‘Universal
Otherhood’: Notes on the Report of the Commission on Global Governance,”
Alternatives 22 (1996): 525; and Baxi, “Market Fundamentalisms.” Short extracts
from these are reproduced in Twining, Human Rights: Southern Voices, 204-09.
105
This formulation is constructed from several passages in Baxi and Koenig,
Human Rights Education.
106
Baxi, The Future of Human Rights, v.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 291
107
Baxi and Koenig, Human Rights Education.
108
Baxi, The Future of Human Rights, xiii.
109
Ibid., c.1.
110
Boutros Boutros Ghali, “Human Rights. The Common Language of Humanity”
(1993) cited in Baxi, “Voices of Suffering,” 101.
111
Cf. “But politics of cruelty continue even as sonorous declarations of human
rights proliferate”. Baxi, “Voices of Suffering,” 102.
112
Baxi, The Future of Human Rights, viii.
113
This outline is based on Baxi, The Future of Human Rights, Baxi, “Voices of
Suffering,” and a talk given by Baxi at the University of Essex in May, 2003.
114
Baxi focuses mainly on human rights discourses, but he insists that “the non-
discursive order of reality, the materiality of human violation, is just as important,
if not more so, from the standpoint of the violated.” Baxi, The Future of Human
Rights, 14.
292 Chapter Nine
115
Ibid.
116
See notes 142-144.
117
“Gender equality makes patriarchs suffer. The overthrow of apartheid in the
United States made many a white supremacist suffer… People in high places suffer
when movements against corruption gain a modicum of success”. Baxi, The Future
of Human Rights, 17.
118
A vivid example of this thesis is Peter Linebaugh and Marcus Rediker, The
Many–Headed Hydra: Sailors, Slaves, Commoners and the Hidden History of the
Revolutionary Atlantic (London: Verso, 2000), which argues that freed slaves
were among the main originators of Western human rights ideas.
119
Baxi, The Future of Human Rights, c. 8. Cf. Baxi’s satirical “Draft Charter of
the Human Rights of Global Capital”. Ibid., 149-51. Compare the more pragmatic
tone of Baxi, “The War on Terror and the War of Terror.”
120
The former serves the ends of Realpolitik, with “the latter seeking to combat
modes of governance (national, regional, or global) that command the power to
cause unjustifiable human suffering and impose orders of radical evil.” Baxi, The
Future of Human Rights, ix, 40-41.
121
To the powerful the World Food Summit goal of halving the number of starving
people by 2015 appears ambitious, even unrealistic; to the poor it appears remote
and “rather callous”. Baxi, The Future of Human Rights, vii. Baxi regularly
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 293
contrasts the glacial pace of response to the misfortune of poverty and hunger with
the urgency for pursuing the war on terrorism after the injustice of 9/11.
122
“Human rights education symbolizes a secular, or multi-religious equivalent of
‘liberation theology’”. Baxi, Human Rights Education, 18.
123
Baxi, The Future of Human Rights, 14.
124
Ibid., 71.
125
Ibid., 121; Baxi, “Voices of Suffering,” 144.
126
Ibid., 145.
127
Baxi, The Future of Human Rights, c. 8 and 125-29. Committed supporters of
human rights have objected to this economic analogy. Baxi concedes that non-
governmental human rights praxis can be interpreted analytically in terms both of
social movements and “quasi markets”, but he maintains that the comfortable
language of “networks” and “associational governance” glosses over the
contradictions and complexity of human rights movements. Ibid., 121.
294 Chapter Nine
to feed off the drips from the alleged trickle down effects of capitalist
prosperity). 128
Post-modernism, ethical and cultural relativism, and skeptical
critiques of rights discourse draw attention to some genuine
difficulties, but they fail to provide constructive strategies for action
to alleviate suffering and, however well-intentioned, they make
possible toleration of vast stretches of human suffering.129
The politics of difference and identity views human rights as having
not just an emancipative potential but also a repressive one.130
Globalization and the development of techno-scientific modes of
production threaten to make contemporary human rights discourse
obsolescent.131
Rights have several different uses as symbolic resources in politics
for human rights: (i) as markers of policies testing whether policy
enunciations recognize, respect, or affirm human rights); (ii) as
constraints on policy implementation (self-conscious restraint and
positive disincentives); (iii) as resources for policy processes and
structures of policy implementation legitimated by reference to
specific human rights regimes; (iv) as providing access to effective
legal redress; (v) as resources for collective action e.g. to mobilize
(discontent with policy or its implementation).132
128
Ibid, c. 8.
129
See note 90.
130
Baxi, “Voices of Suffering,” 103. This is the converse of Santos’ argument that,
even though law is often repressive, it has the potential to be emancipator. Santos,
Toward a New Common Sense, c. 9. The difference is mainly one of emphasis.
131
Baxi, The Future of Human Rights, 156. This means that the increasing
dominance of science and technology, as a mode of production and as an ideology
that presents itself as progressive, “threatens us all with the prospect of rendering
human rights language obsolescent”, e.g. in civilian use of nuclear energy,
expanding information technology and development of new biotechnologies. Ibid.
See Upendra Baxi, Human Rights in a Posthuman World (New Delhi: Oxford
University Press, 2007.
132
This formulation is a paraphrase of a passage on “the place of rights” in policy
making and implementation. Although written specifically in the context of a
discussion of population policies in India, it has a broader significance. Upendra
Baxi, “Sense and Sensibility,” India Seminar 511: March, 2002. http://www.India-
seminar.com/semsearch.htm. In respect of international law Baxi emphasizes that
the strategic aims should include enforcing positive law, expanding the range and
refining the content of ius cogens, and moving beyond positive law to address the
processes of norm formulation and using the discourse of rights to “write against
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 295
To make sense of human rights, Baxi argues, one must see the basic
ideas not as emanating from Christian natural law nor the liberal
Enlightenment nor the reactions of Western Governments to the horrors of
World War II. The main context of the production of human rights has
been local communities in struggle against the diverse sources of
suffering; the main impetus has been direct experience of suffering; the
main authors have been those involved in grass-roots struggles137 some
have become well-known, the great majority have been unsung:
“After all it was a man called Lokmanya Tilak who in the second
decade of this century gave a call to India: swaraj (independence) is my
birthright and I shall have it, long before international human rights
proclaimed a right to self-determination. It was a man called Gandhi who
challenged early this century racial discrimination in South Africa, which
laid several decades later the foundation for international treaties and
declarations on the elimination of all forms of racial discrimination and
apartheid. Compared to these male figures, generations of legendary
women martyred themselves in prolonged struggles against patriarchy and
gender inequality. The current campaign based on the motto “Women’s
Rights Are Human Rights” is inspired by a massive history of local
struggles all around.”138
the significance of social movements, but he would no doubt concede that the state
would still be a major player in any history written from below.
135
Baxi, The Future of Human Rights, vi.
136
See Linebaugh and Rediker, The Many–Headed Hydra.
137
“Almost every global institutionalisation of human rights has been preceded by
grassroots activism.” Baxi, “Voices of Suffering,” 124.
138
Baxi, “The Reason of Human Rights and the Unreason of Globalization” (A. R.
Desai Memorial Lecture, Bombay, 1996), cited in Baxi, “Voices of Suffering,”
124-5 n. 76. See also Baxi, Human Rights in a Posthuman World, 97-103.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 297
example, human rights doctrine preceded the abolition and often condoned
slavery. The right to property and the right to govern were used to justify
various forms of colonialism and imperialism. Only very recently in the
long history of rights talk has there been reason to celebrate the maxim
that “Women’s Rights are Human Rights”, but this does not mark the
beginning or the end of women’s struggle for equality.139
139
Like other ‘Southern’ jurists like Francis Deng, Abdullahi An Na’im and Yash
Ghai himself, Baxi is unequivocal in his assertions that women’s rights are human
rights. He sees the phrase “the rights of man” as an example of the logic of
exclusion in human rights discourse; and he is cautious of the rhetoric of some
claims about progress: e.g. “The near-universality of ratification of the CEDAW,
for example, betokens no human liberation of women; it only endows the state
with the power to tell more Nietszchean lies.” Baxi, The Future of Human Rights,
87. He is a friendly critic of the feminist movement in India. Upendra Baxi,
Memory and Rightlessness (Delhi: Centre for Women’s Development Studies,
2003). See also “Gender and Reproductive Rights in India: Problems and Prospects
for the New Millenium” (Lecture Delivered for the UN Population Fund, New
Delhi, 2000).
140
Baxi, The Future of Human Rights, 27-28. Baxi’s labels can be confusing.
“Modern” here refers to modernity with its associations with the Enlightenment,
liberalism, and rationality; “contemporary” is associated with, but deliberately
distanced from, post-modernism. This distinction seems to me to be quite close to
Boaventura de Sousa Santos’ contrast between “regulatory” (modern) and
“emancipatory” forms of law. Santos, Toward a New Common Sense, c 1, 2 & 9.
141
Baxi, The Future of Human Rights, 34-35; Baxi, “Voices of Suffering,” 114.
298 Chapter Nine
This passage needs some unpacking. Baxi presents the two paradigms
in terms of four main contrasts:
Modern Contemporary
1. Logics of exclusion 1. Inclusiveness
2. Right to govern 2. Radical self-determination
3. Ascetic (a thin conception of rights) 3. Exuberant (proliferation of
rights)
4. Rhetoric of “progress” 4. Voices of suffering
142
Ibid., 109-110; Baxi, The Future of Human Rights, 29.
143
All human beings are included, but it is “an anthropomorphic illusion that the
range of human rights is limited to human beings; the new rights to a clean and
healthy environment… take us far beyond such a narrow notion”. Baxi, “Voices of
Suffering,” 104-5.
144
Ibid., 110. Cf. Baxi, The Future of Human Rights, 29-30. “The construction of a
collective right to colonial/ imperial governance is made sensible by the co-
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 299
Third, “modern” human rights are state-centric and ascetic, treating the
state as the only legitimate source of rights and limiting their scope.146 The
sources of “contemporary” human rights are ebullient, leading to “a
carnival of production”, though this in turn creates problems. They extend
not only to discrete minorities but also to “wholly new, hitherto
unthought-of, justice constituencies”:147
optation of languages of human rights into those of racist governance abroad and
class and patriarchal domination at home.” Ibid., 31.
145
Ibid.
146
e.g. in the conventional discourse torture, cruel inhuman and degrading
treatment are classified as violations of human rights, but starvation and domestic
violence are not. Ibid., 13 n. 21.
147
Ibid., 32.
148
Ibid.; Baxi, “Voices of Suffering”, 112.
149
Baxi, The Future of Human Rights, 32. Baxi also uses this idea to attack
technocratic justifications of dams and population control in the name of
“progress”. For example: “Policy-makers as well as human science specialists are
not persuaded, on available evidence, by the rights approach. The reasons for this
‘benign neglect’ of rights vary. Malthusians and neo-Malthusians are wary of a
rights approach, in general, because they perceive ‘over-population’ as a social
scandal and menace; the hard core among them are not perturbed by excesses in
‘family planning’ programs and measures implementing these. In their view,
‘man’-made policy disasters are as welcome as ‘natural’ disasters that in net effect
300 Chapter Nine
reduce population levels.” Some argue that reduction in population levels may
serve better futures for human rights. Baxi, “Sense and Sensibility”.
150
Baxi, The Future of Human Rights, 33.
151
Ibid., 34.
152
“By a social theory of human rights I wish to designate bodies of knowledge
that address (a) genealogies of human rights in “pre-modern”, “modern” and
“contemporary” human rights discursive formations; (b) contemporary dominant
and subaltern images of human rights; (c) tasks confronting projects of
engendering human rights; (d) exploration of human rights movements as social
movements; (e) impact of science and high-tech. on the theory and practice of
human rights; (f) the problematic of the marketization of human rights; (g) the
economics of human rights.” Ibid., 32 n. 18. The whole of FHR could be said to be
a contribution to such a social theory in that it comments briefly on most aspects of
this agenda, but mainly in a preliminary and very general way, with very little
empirical basis or relationship to mainstream social theory. Baxi cites a number of
general books by Santos, Unger, Shivji and others that mark “beginnings” of such
an enterprise, but he acknowledges that we are a long way from achieving the kind
of “grand theory” that he thinks is needed. Ibid.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 301
153
E. P Thompson, Whigs and Hunters (Harmondsworth: Peregrine, 1977), and
The Making of the English Working Class (Harmondsworth: Peregrine, 1963);
Linebaugh and Rediker, Many–Headed Hydra, and George Rudé, The Crowd in
the French Revolution (Oxford: Clarendon Press, 1959). See also Balakrishnan
Rajagopal, International Law from Below (Cambridge: Cambridge University
Press, 2003), c. 1 & 2. Like Baxi, Rajagopal locates much of the history of human
rights in resistance to colonialism.
154
A.W. Brian Simpson, Human Rights and the End of Empire: Britain and the
Genesis of the European Convention (Oxford: Oxford University Press, 2001).
155
E.g. Eric Hobsbawm, Age of Capital 1848-1875 (New York: Vintage Books,
1996), The Age of Empire 1875-1914 (London: Abacus, 1994), The Age of
Extremes 1914-1991 (London: Abacus, 1995); Immanuel Wallerstein, The
Capitalist World Economy (Cambridge: Cambridge University Press, 1979); and
Patrick Glenn, Legal Traditions of the World (Oxford: Oxford University Press,
2004); cf. Lauren Benton, Law and Colonial Cultures: Legal Regimes in World
History 1400-1900 (Cambridge: Cambridge University Press, 2002).
302 Chapter Nine
Conclusion
A just international order and a healthy cosmopolitan discipline of law
need to include perspectives that take account of the standpoints, interests,
concerns and beliefs of non-Western peoples and traditions. The dominant
scholarly and activist discourses about human rights have developed
largely without reference to these other perspectives. Claims about
universality sit uneasily with ignorance of other traditions and parochial or
ethnocentric tendencies.
156
Baxi, “Voices of Suffering”, 156.
157
E.g. Makau Mutua, Mahmood Mamdani and Balakrishnan Rajagopal.
Human Rights, Southern Voices: Yash Ghai and Upendra Baxi 303
believe that their ideas need to be better known. So the case studies in this
chapter are part of a quite narrow project intended to illustrate one
potential route to a broader perspective on human rights discourse and
action.
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304 Chapter Nine
DECOLONIZING CONSTITUTIONAL
AND INTERNATIONAL HUMAN RIGHTS LAW
CHAPTER TEN
UPENDRA BAXI
A New Discourse?
The Rule of Law (as a set of principles and doctrines -hereafter ROL)
has a long normative history that privileges it as an inaugural contribution
of the Euro American liberal political theory. ROL emerges variously, as a
“thin” notion entailing procedural restraints on forms of sovereign power
and governmental conduct, which may also authorize Holocaustian
practices of politics1 and as a “thick” conception involving the theories
about the “good”, “right”, and “just”.2
1
G. Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford
University Press, 1995). See also G. Aderni, “Legal Intimations: Michael
Oakeshott and the Rule of Law” Wisconsin Law Review (1993): 838; U. Baxi,
“The Gujarat Catastrophe: Notes on Reading Politics as Democidal Rape Culture”
in The Violence of Normal Times: Essays on Women’s Lived Realities, ed., K.
Kababiran (New Delhi: Women Unlimited and Kali for Women, 2005), 332-384;
U. Baxi “Postcolonial Legality”, in A Companion to Postcolonial Studies, eds., H.
Schwartz and S. Roy, (Oxford: Blackwell, 2001) 540-555; B. Fine, Democracy
and the Rule of Law: Liberal Ideals and Marxist Critiques (London: Pluto Press,
1984); M. Galanter, Competing Equalities (Delhi: Oxford University Press, 1984);
M. Hidyatuallah, The Fifth and Sixth Schedules of the Constitution of India
(Gauhati: Ashok Publishing House, 1979); C. Schmitt, Political Theology: Four
Chapters on the Concept of Sovereignty (Cambridge: The MIT Press, 1985); A.
Sen, Development as Freedom (Oxford: Oxford University Press, 1999) and J.
Stone, The Social Dimensions of Law and Justice (Sydney: Maitland, 1966), 797-
799.
2
See, for this distinction variously elaborated, L. Fuller, Morality of Law (New
Haven: Yale University Press, 1964); N. McCormick, “Natural Law and the
Separation of Law and Morals” in Natural Law Theory: Contemporary Essays,
ed., R. P. George (Oxford: Clarendon Press, 1992), 105- 133; J. Finnis, Natural
Law and Natural Rights (Oxford: Oxford Clarendon Press,1980) and G. Q.
The Rule of Law in India 313
7
Differently presented, for example in J. Braithwaite and P. Drahos, Global
Bussines Regulation (Cambridge: Cambridge Univeristy Press, 2000), M.
Chibundo “Globalizing the Rule of Law: Some Thoughts at and on the Priphery,”
Indiana Journal of Global Legal Studies (1999): 79-116 and B. S. Chimni, “Co-
option and Resistance: Two Faces of Global Administrative Law,” New York
Journal of International Law and Politics 4/5 (2005): 799-827.
8
See S. Gill, “Toward a Post-Modern Prince? The Battle in Seattle as a Moment in
the New Politics of Globalization,” Millenium 1 (2000): 131-141, and D.
Schneiderman, “Constitutional Approches to Privatization: An Inquiry into the
Magnitude of Neo-Liberal Constitutionalism”, Law and Contemporary Problems 4
(2000): 83-109.
9
See U. Baxi, “‘The War on Terror’ and the ‘War of Terror’: Nomadic Multitudes,
Aggressive Incumbents and the ‘New International Law’”, Osgoode Hall Law
Journal 1/ 2 (2005): 1-36. See also M.L. Satterthwaite, “Rendered Meaningless:
Extraordinary Rendition and the Rule of Law”, New York University Public Law
and Legal Theory Working Papers, 43 (2006), and Asociation of the Bar of the
City of New York and Centre for Human Rights and Global Justice, Torture by
Proxy: International and Domestic Law Applicable to “Extraordinary Rendition”
(New York: ABCNY and NYU School of Law, 2004).
10
Baxi, Future.
The Rule of Law in India 315
Fifth, human rights and social activism practices contribute more than
ever before to a multitudinous re-articulation of the rolled-up ROL
notions. Human and social rights activism needs to contest the hyper-
globalizing ROL talk, promoting the reach of the communities of direct
foreign investors, often personified by the new sovereign estates of
multinational corporations (MNCs), and more generally by their normative
cohorts, principally international financial institutions, and development
assistance regimes. At the same time historically situated activist agencies
also remain confronted with the need to reinvigorate some proceduralist
and some “thick” ROL conceptions.
11
But see R. Peernbohm, “Let One Hundred Flowers Bloom, One Hundred School
Contend:
Debating Rule of Law in China,” Michigan Journal of International Law 23
(2002): 471.
316 Chapter Ten
12
Ben Brewster, trans., Althusser, Montesquieu, Rousseau, Marx: Politics and
History (London: Verso, 1982).
13
Indeed, the separation of powers invests the executive with sovereign discretion
in the realms of macro and micro development planning, arms production
(inclusive of weapons of mass destruction), decisions to wage many types of
(covert as well as overt) war, or management of insurgent violence. Our ROL talk
unsurprisingly, but still unhappily, more or less, ends where the militarized state
begins-the “secret” state-to evoke E. P. Thompson. See E.P. Thompson, Writing by
the Candlelight (London: The Merlin Press, 1989).
The Rule of Law in India 317
The ROL message that those in power should somehow construct and
respect constraints on their own power is surely an important one. But the
importance of this sensible requirement is not clear enough. To be sure,
rulers as well as ruled ought to remain bound by the law (conceived here
as a going legal order, an order of legality) regardless of the privilege of
power. But it is never clear enough whether they ought to do so
instrumentally (that is in Max Weber’s terms “purpose rational”, even
expedient rule following conduct) or intrinsically (legality as an ethical
value and virtue.) Instrumentalist compliance negotiates ROL languages in
ways that perfect pathways of many a hegemonic and rank tyrannical
credential. To follow ROL values because they define the “good”, the
right, and the “just” law and state conduct is to develop a governance
ethic. It is at this stage that massive difficulties begin even when we may
want to consider the ROL tasks as those defining the “rule of good law”.
14
J. Raz, “The Rule of Law and its Virtue”, Law Quarterly Review 93 (1977): 208.
15
See J. Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999)
and Political Liberalism (New York: Columbia University Press, 1993). See also J.
Habermas, Between Facts and Norms: Contributions to a Discourse Theory of
Law and Democracy (Cambridge: The MIT Press,1996).
318 Chapter Ten
These “oughts”, far from constituting any fantastic wish-list, define the
terrain of ongoing contests directed to inhibit unbridled state power and
governance conduct. The question is not whether these “oughts” are
necessary but whether they are sufficient. It is here that we enter the realms
of the ROL facilitative languages which leave open a vast array of choices
for the design and detail of governance structures and processes. These
choices concern the processes of composing legitimate political authority,
The Rule of Law in India 319
16
See J. Morgan Kouseer, Colorblind Injustice: Minority Voting Rights and the
Undoing of the Second Reconstruction (Chapel Hill: University of North Carolina
Press, 1999).
320 Chapter Ten
Finally, without being exhaustive, how may ROL address its Other? A
multitude of mass illegalities often historically generate forms of citizen
understandings that eventually redefine interpretations of the ROL.
Inflected by indeterminate notions of popular “sovereignty”, these
divergent insurgencies signify terrains of struggle of the Multitudes
against the Rule of the Minuscule.17 What space may we, and how, may
“we”, (the ROL “symbol traders”) provide for these militant particularisms
in our narratives?
17
I invite your attention to such diverse phenomena as May 1968, the campus
protest in the
United States against the Vietnam War, massive peoples demonstrations against
the Uruguay
round and the WTO, the Tiananmen Square, the struggles against apartheid
regimes in the United States and South Africa, against perversions of the East and
Central European socialist legality and more recently the protests against the
invasion of Iraq and the various ‘velvet’ and ‘orange’ revolutions. For befittingly
amorphous notions of ‘multitudes’ see, A. Negri, Insurgencies: Constituent Power
and the Modern State (Minnesota: University of Minnesota Press, 1999); A. Negri
and M. Hardt, Empire (Cambridge: Harvard University Press, 2000); and in a
rather dissimilar genre see P. Virno, A Grammar of the Multitude. For an Analysis
of Contemporary Forms of Life (Los Angeles and New York: Semiotext(E), 2004).
The Rule of Law in India 321
18
G. Austin, The Indian Constitution: The Cornerstone of Nation (Delhi: Oxford
University
Press, 1964); G. Austin, Working a Democratic Constitution —The Indian
Experience (Delhi: Oxford University Press, 1999), 540-555. U. Baxi, “The
Colonialist Heritage” in Comparative Legal Studies: Traditions and Transitions,
eds., P. Legrand and R. Munday (Cambridge: Cambridge University Press, 2003),
6-58.
19
Jawaharlal Nehru captured this relationship by insisting that the “rule of law”
must not be divorced from the “rule of life”.
20
The Indian constitutionalism makes normative impact on postcolonial
constitutionalism, illustrated most remarkably and recently by the post-apartheid
South African Constitution. So inveterate, however, are Euroamerican habits of
heart that the dominant, even comparative, discourse represents the Indian and
related Southern forms of constitutionalism as merely mimetic.
322 Chapter Ten
Governance
The Holocaust of the Partition of India furnishes the histrionic moment
in which the Indian constitution stands composed. The establishment of
frameworks for collective human security and order was considered as a
crucial ROL resource in the same way that today the making of a new
global ROL remains affected by the two “terror” wars. The notion that the
radical reach of self-determination ought to be confined merely to the end
of the colonial occupation furnishes a new leitmotif for Indian governance;
integrity and unity of the new nation redefines Indian ROL to authorize
vast and ever proliferating powers of preventive detention and eternal
continuation of many colonial security legislations as laws in force.21
Since its birthing moment, the Indian ROL itineraries are shaped by both
the doctrine of the reason of the state and the accentuated practices of
militarized governance. No ROL value consideration in general, overall, is
allowed to intrude upon state combat against armed rebellion aimed at
secession from the Indian Union. In this the Indian experience is scarcely
unique.
21
The Indian Supreme Court has thus constructed a magnificent edifice of
preventive detention jurisprudence subjecting acts of detention to strict scrutiny,
while sustaining legislative constitutionality of such measures. But see U. K.
Singh, The State, Democracy, and Anti-terror Laws in India (New Delhi: Sage,
2007).
22
See, for more recent perspectives, R. Samaddar, The Politics of Autonomy (New
Delhi: Sage, 2005).
The Rule of Law in India 323
23
Such as, for example, the Inter-State Development Council, the Planning
Commission, Human Rights Commission, the Minorities and Women Commissions,
the Scheduled Castes and Tribes Commission, the Central Vigilance Commission,
The Indian Law Commission.
324 Chapter Ten
Rights
The Indian ROL notions remain deeply bound to the ways in which
fundamental rights stand conceived. Far from reiterating either the liberal
or libertarian theologies of rights as corpus of limitation on state
sovereignty and governmental conduct, the Indian ROL conceptions also
empower progressive state action. Thus, for example, the following
constitutional rights enunciations authorize legislative and policy action
manifestly violative of some liberal conceptions of rights:
24
For example, the extraordinary power to impose the President’s Rule,
suspending or dismissing state governments/legislatures once liberally exercised
has now been attenuated to a vanishing point by various decisions of the Supreme
Court. The power to declare and administer the states of constitutional emergency
in situations of armed rebellion and of external aggression that result in wide-
ranging suspension of human rights under Part 111 of the Constitution, have been
steadily brought under judicial scrutiny and human rights-friendly constitutional
amendments.
The Rule of Law in India 325
The Indian ROL stands here normatively conceived not just as a sword
against state domination and violation and historic civil society norms and
practices but also as a shield empowering an encyclopaedic regime of
“progressive” state intervention in the life of civil society. In so doing, it
engages in simultaneous disempowerment and re-empowerment of the
Indian State in ways that makes more complicated governance, politics,
and constitutional development. In terms of social psychology of the
yesteryear, the Constitution thus inaugurates “cognitive dissonance” in
ways that necessarily marks its rather schizoid course of development.
25
The reference here is to a variety of Directives reinforcing structures of
governance –structures such as the Commission for the Scheduled Castes and
Tribes, the Planning Commission, the Finance Commission, the Election
Commission, and some recent national human rights institutions such as the
National Human Rights Commission and the National Commission for Women,
some also replicated in state governance. Although explicitly declared non-
justiciable, the Directives cast a “paramount” duty of observance in the making of
law and policy. Because of this, Indian courts have deployed the Directives as a
technology of constitutional interpretation: they have favoured interpretation that
fos ters , rather than frustrates , the Directives. This “indirect” justiciability has
contributed a good deal towards fructification of the substantive/“thick” versions
of the Indian ROL.
326 Chapter Ten
Justice/Development
An extraordinary feature of the constitutionalism that informs Indian
ROL is posed by the question of justice of rights. I have recently
elaborated this in some anxious detail27 suggesting further that the
problematic of justice of rights may not be grasped by conceptions of
Indian development, or the constitutionally imagined/desired social order.
In the moment of making the constitution at least three salient justice- of-
rights type questions stood posed. First, if promotion and protection of
26
I do not burden this article with references and sources that testify to this
achievement. Interested readers may find it useful to consult treatises on Indian
constitutional and administrative law, notably by D. Das Basu, H. M. Seervai,
M.P. Jain, S.N. Jain, S.P. Sathe, I.P. Massey, R. Dhavan, among eminent others.
27
U. Baxi, “Justice of Human Rights in Indian Constitutionalism: Preliminary
Notes” in Modern Indian Political Thought, eds., T. Pantham and V. R. Mehta,
(New Delhi: Sage, 2006), 263-284.
The Rule of Law in India 327
In the early years, the Court took the view that although the Directives
cast a “paramount” duty of observance in the making of law and policy,
their explicit non- justiciability meant that the rights provisions overrode
the Directives. This generated high –intensity conflict between Parliament
and the Court, resulting in a spate of constitutional amendments. In the
process, much constitutional heat and dust has also been generated, in the
main over a “conservative” judiciary that seemed to frustrate a
“progressive” Parliament committed to agrarian reforms and redistribution
leading to Court “packing” Indian – style.28
28
See S. P. Sathe, Judicial Activism in India (New Delhi: Oxford University Press,
2002). Also U. Baxi, The Indian Supreme Court and Politics (Lucknow: Eastern
Book, 1980) and Courage, Craft and Contention: The Indian Supreme Court in
the Eighties (Bombay: N.M. Tripathi, 1985).
29
C. Raj Kumar, “International Human Rights Perspectives on the Right to
Education: Integration of Human Rights and Human Development in the Indian
Constitution” Tulane International and Comparative Law 12 (2004): 237.
The Rule of Law in India 329
performance. The executive may make rules that bind; but courts made it
their business to interrogate, and even invalidate, specific exercises of
administrative rule-making. A stunning array of judicial techniques over
the review of administrative action has been evolved.
another way, the Supreme Court assumes the tasks of national governance,
otherwise appropriately assigned to democratic governance. Second, the
frequently disappointed SAL litigants cry foul when the SAL fails to
deliver its promises. The expectational overload here remains diverse and
staggering, respecting no limits of the capacity, opportunity, and potential
of judicial power as an arm of national governance. Thus, the apex Court
often falters and fails in addressing, let alone redressing, contentious
politics concerning ways in which the Judiciary may:
30
The various constitutional amendment bills providing reservation for women in
national and state legislatures have yet to materialize. Their chequered
contemporary legislative histories remain mired, in socially significant ways, over
the issue of “reservations within reservations”. That is the issue whether this
device should be stratified so as to enable/ empower women doubly/multiply
oppressed by state and civil society, through provisions for a representational quota
for women belonging to “underclasses”.
332 Chapter Ten
But it is to literature rather than to law that we must turn to realize the
full horror of the betrayal of the Indian “Rule of Law”. Mahasweta Devi’s
Bashai Tudu speaks to us about the constitutive ambiguities of the
practices of militarized ‘rule of law’ governance and resistance in
contemporary India. Rohintoon Mistry’s A Fine Balance educates us in the
constitutional misery of untouchables caught in the ever-escalating web of
“constitutional” governance. These two paradigmatic literary classics
abundantly invite us to pursue a distinctively Indian law and literature
genre of study, outside which it remains almost impossible to grasp the
lived atrocities of Indian ROL in practice.
These also make the vital point (with the remarkable Indian Subaltern
Studies series) that the pathologies of governance are indeed normalizing
modes of governance as a means of controlling (to evoke Hannah Arendt’s
favourite phrase) “rightless” peoples. The jurispathic attributes of the
Indian Rule of Law at work can be described best in terms of social
reproduction of rightlessness. Indian judicial activism begins to make and
mark a modest reversal.
The authentic quest for renaissance of the Rule of Law has just begun
its world historic career. ROL epistemic communities have choices to
make. Our ways of ROL talk may either wholly abort or aid to a full birth
some new ROL conceptions now struggling to find a voice through
multitudinous spaces of people’s struggles against global capitalism that
presage alternatives to it.
31
Baxi, “The War on Terror”.
The Rule of Law in India 333
We need after all, I believe, to place ourselves all over again under the
tutelage of Michael Oakeshott.32 He reminds us, preciously, that far from
being a “finished product” of humankind history, the Rule of Law
discourse “remains an individual composition, a unity of particularity and
generality, in which each component is what it is in virtue of what it
contributes to the delineation of the whole”. That virtue of the “whole”
may not any longer legitimate Euro American narratology. Rather the task
remains re-privileging other ways of telling ROL stories as a form of
participative enterprise of myriad “subaltern” voices.
Bibliography
Aderni, G. “Legal Intimations: Michael Oakeshott and the Rule of Law.”
Wisconsin Law Review 4 (1993): 838.
Agamben, G. Homo Sacer: Sovereign Power and Bare Life. Stanford:
Stanford University Press, 1995.
Association of the Bar of the City of New York and Centre for Human
Rights and Global Justice. Torture by Proxy: International and
Domestic Law Applicable to “Extraordinary Rendition.” New York:
ABCNY and NYU School of Law, 2004.
Austin, G. The Indian Constitution: The Cornerstone of Nation. Delhi:
Oxford University Press, 1964.
—. Working a Democratic Constitution—The Indian Experience. Delhi:
Oxford University Press, 1999.
Baxi, U. Courage, Craft and Contention: The Indian Supreme Court in the
Eighties. Bombay: N.M. Tripathi, 1985.
—. The Indian Supreme Court and Politics. Lucknow: Eastern Book,
1980.
—. “Postcolonial Legality.” In A Companion to Postcolonial Studies,
edited by H. Schwartz and S. Roy. Oxford: Blackwell, 2001.
—. “‘The War on Terror’ and the ‘War of Terror’: Nomadic Multitudes,
Aggressive Incumbents and the ‘New International Law’.” Osgoode
Hall Law Journal 1/ 2 (2005): 1-36.
—. “Justice of Human Rights in Indian Constitutionalism: Preliminary
Notes.” In Modern Indian Political Thought, edited by T. Pantham and
V. R. Mehta. New Delhi: Sage, 2006.
32
M. Oakeshott, On Human Conduct (Oxford: Oxford University Press, 1975), 1-
31.
334 Chapter Ten
NICO HORN
The acts and events by which that dispossession in legal theory was carried
into practical effect constitute the darkest aspect of the history of this
nation. The nation as a whole must remain diminished unless and until
there is an acknowledgment of, and retreat from, those past injustices. In
these circumstances, the Court is under a clear duty to re-examine the two
propositions. For the reasons which we have explained, that re-
examination compels their rejection. The lands of this continent were not
terra nullius or "practically unoccupied" in 1788. The Crown's property in
the lands of the Colony of New South Wales was, under the common law
which became applicable upon the establishment of the Colony in 1788,
reduced or qualified by the burden of the common law native title of the
Aboriginal tribes and clans to the particular areas of land on which they
lived or which they used for traditional purposes.1
What does the small Murray Islands Mer, for the natives in the
Torres Strait off the Queensland coast of Australia, with a total land area
of hardly nine square kilometers, have in common with Namibia? Surely
not geography, neither their history of occupation. Unlike the bloody
German/Herero and Nama wars, no shot was fired when Her Majesty’s
administration in Queensland declared the Murray Islands a Crown colony
of the British Empire. The governor of Queenstown exercised some power
over the islands since 1870, although they were not part of the colony. In
1878 Queen Victoria signed Letters Patent to include the Murray Islands
with others in the Torres Straight in the colony of Queenstown. The
1
High Court of Australia, Eddie Mabo and Others v. The State of Queensland (No.
2), [1992] HCA 23 (1992) 175 CRL 1, F.C. 92/014, Judges Deane and Gaudron’
Declaration, point 56.
Eddie Mabo and Namibia: Land Reform and Precolonial Land Rights 337
For the Namibian people occupation was a bloody affair. The boundaries
of Namibia were, like most African countries, drawn by the European
colonial powers at the end of the Nineteenth century. Before the arrival of
the German occupation forces, Namibia was populated by some twelve
tribes with very different customs, and vaguely demarcated areas over
which the tribal kings had jurisdiction. Between 1884 and 1890 Namibia
stretched from the Orange River at the southern border with South Africa,
to the Kunene and Okavango Rivers in the north, and from the Atlantic
Ocean in the West to the 21st parallel in the East. The German colonial
authorities later obtained a finger of land next to the Zambezi River.
Walvis Bay was not included in Namibia, since it was occupied by Britain.
European mission societies started working in Namibia in the 1840’s. In
1890 the German forces in Namibia started a vigorous crusade to subject
the native tribes. This resulted in the extermination of 75% of the Herero
population, and 50% of the Nama and Damara populations.
2
This principle was confirmed by the Crown courts for more than hundred years,
beginning with the case of Attorney-General v. Brown (1847) 1 Legge 312. See R.
v. Kidman (1915) 20 CLR 425; Liquidators of Maritime Bank of Canada v.
Receiver-General (New Brunswick) (1892) AC 437; The Commonwealth v. New
South Wales (1923) 33 CLR 1.
3
See Judges Masson and McHugh’s Declaration, in High Court of Australia, Mabo
and Others, point 20: “Without pausing to enquire into the legal support for the
‘system of self-government’ instituted by Douglas or for the jurisdiction of the
338 Chapter Eleven
Island Court, it appears that the Meriam people came peacefully to accept a large
measure of control by Queensland authorities and that officials of the Queensland
Government became accustomed to exercise administrative authority over the
Murray Islands. Formal annexation had been followed by an effective exercise of
administrative power by the Government of Queensland.”
4
The decree of General Lothar von Trotha is well-known: “The Herero people will
have to leave the country. Otherwise I shall force them to do so by means of guns.
Within German boundaries, every Herero, whether found armed or unarmed, with
or without cattle, will be shot. I shall not accept any more women or children. I
shall drive them back to their people – otherwise I shall order them to be shot.
Signed: the Great General of the Mighty Kaiser, von Trotha.”
5
Elizabeth Evatt, “The Acquisition of Territory in Australia and New Zealand,” in
Studies in the History of the Law of Nations, ed. Charles H. Alexandrowicz (The
Hague: Martinus Nijhoff, 1968), 16.
6
Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied
to the Conduct and Affairs of Nations and Sovereigns Book I (1797), 100-101. See
also Alex C. Castles, An Australian Legal History (Sydney: Law Book Co., 1982),
16-17, quoted in High Court of Australia, Mabo and Others, Judges Masson and
McHugh’s Declaration, point 33.
7
This argument is often raised in Namibia. See Nico Horn, “Land Claims and
History” (paper presented before the Seis Farmers Community, March 2003).
However, while the land was not developed in a Western sense of the word, the
Herero and Nama people were known to be cattle farmers, an activity in which
they were extremely successful.
Eddie Mabo and Namibia: Land Reform and Precolonial Land Rights 339
However, no matter how illogical the theory may sound, it gave rise to
another legal fiction in British colonial law: all the colonial land acquired
by subjects of colonial powers in Europe belonged to the sovereign or
Crown of the colonial power. This possession, the courts further ruled,
included both land title and sovereign government. In other words, after
colonization, in whatever form, the European sovereign became the
political sovereign and the de facto owner of all the land of the country. It
further meant that the representative of the sovereign started with a clean
slate, as if the land he had taken over was indeed res nullius.
Consequently, only the property rights acknowledged by him were valid.
8
See Mark F. Lindley, The Acquisition and Government of Backward Territory in
International Law (London: Longmans-Green, 1926), c III and IV, quoted in High
Court of Australia, Mabo and Others, Justice Brennan’s Declaration, points 33 and
39.
9
Johnson v. McIntosh (1823) 8 Wheat 543, at 573 (21 US 240, at 253).
10
William Blackstone, Commentaries on the Laws of England Book II (London:
Sweet & Maxwell, 1830), 7.
340 Chapter Eleven
British and colonial courts followed the fiction of the supreme power
and title over property in colonized countries for more than hundred
years.12 Although England occupied Walvis Bay and administered it as
part of the South African colonies, no indigenous land claims by
Namibians were ever made against England in Southern African courts.13
The closest case to Namibia was possibly the Rhodesian case of 1919.14
In this case the court, not unlike the courts in other parts of the
Commonwealth, worked from the premise of the irreconcilability between
the tribal and colonial systems:
Consequently, the issue was not so much if the indigenous people had
land rights, but if those rights were close to the British legal understanding
of land and possession. If the indigenous people failed the second part of
the test for whatever reason, they have no entitlement to land. The Lords
judges rejected the claim of the applicants that they “were the owners of
the unalienated lands long before either the Company or the Crown
11
See Attorney-General v. Brown (1847) 1 Legge 312, for an example of how the
British controlled courts dealt with challenges to the Crown’s authority over land
in the colonies.
12
See New South Wales v. The Commonwealth (1975) 135 CLR 337; Wade v.
New South Wales Rutile Mining Co.Pty. Ltd. (1969) 121 CLR 177; and Randwick
Corporation v. Rutledge (1959) 102 CLR 54, for judgments appreciative of
Attorney-General versus Brown (1847), more than a hundred years later.
13
Jeremy Sarkin points out that only in 2001, eleven years after Namibia’s
independence, the Herero People’s Corporation filed the first case relating back to
colonial days, against Deutsche Bank, Terex Corporation and Woermann Line for
the atrocities suffered under colonial rule. Jeremy Sarkin, “The Coming of Age of
Claims for Reparation for Human Rights Abuses Committed in the South,” SUR
International Journal on Human Rights 1 (2004): 88-89.
14
In re Southern Rhodesia (1919) AC 211.
15
Ibid., 233-234.
Eddie Mabo and Namibia: Land Reform and Precolonial Land Rights 341
became concerned with them and from time immemorial... and that the
unalienated lands belonged to them still” because the maintenance of those
rights was inconsistent with the white settlement of the country and the
system that caused the development in the country.16 As a result, another
system replaced the aboriginal one. The irreconcilability of native rights
with Western legal understanding of title remained the standard for more
than a hundred years, especially in British common law and the laws of
the colonies.
Forerunners of Mabo
While the Commonwealth courts virtually ignored the radical changes
in the international community that started with the formation of the
United Nations after the Second World War, and gained momentum with
the independence of the colonies of Africa and Asia in the 1950’s and
1960’s, international law took the first steps to evaluate the meaning of
decolonisation. With this panorama in the background, the High Court of
Australia took cognizance of the advances in international law, especially
of the advisory opinion of the International Court of Justice on Western
Sahara.17 There the majority judgment defined terra nullius as a territory
not belonging to anyone.18 The court stated that only then a legal
occupation can take place, other than by cession or succession.19 The
judges were unanimous in their ruling that Western Sahara was not res
nullius when it was occupied by Spain in 1884.20 Judge Brennan in the
Mabo case summarizes the Western Sahara opinion as follows:
Whatever differences of opinion there may have been among jurists, the
State practice of the relevant period indicates that territories inhabited by
tribes or peoples having a social and political organization were not
regarded as terrae nullius. It shows that in the case of such territories the
acquisition of sovereignty was not generally considered as effected
unilaterally through 'occupation' of terra nullius by original title but
through agreements concluded with local rulers. On occasion, it is true,
the word 'occupation' was used in a non-technical sense denoting simply
acquisition of sovereignty; but that did not signify that the acquisition of
sovereignty through such agreements with authorities of the country was
16 Ibid., 234
.
17
Western Sahara, Advisory Opinions, I.C.J Reports, 1975.
18
See also Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser.
A/B) No. 53., 44f and 63f.
19
Western Sahara, Advisory Opinions, I.C.J Reports, 1975, 39.
20
Ibid., 86.
342 Chapter Eleven
21
High Court of Australia, Mabo and Others, Justice Brennan’s Declaration, point
40.
22
The text of the judgment reads as follows:
(1) that the land in the Murray Islands is not Crown land within the meaning of that
term in s.5 of the Land Act 1962-1988 (Q.);
(2) that the Meriam people are entitled as against the whole world to possession,
occupation, use and enjoyment of the island of Mer except for that parcel of land
leased to the Trustees of the Australian Board of Missions and those parcels of
land (if any) which have been validly appropriated for use for administrative
purposes the use of which is inconsistent with the continued enjoyment of the
rights and privileges of Meriam people under native title;
(3) that the title of the Meriam people is subject to the power of the Parliament of
Queensland and the power of the Governor in Council of Queensland to extinguish
that title by valid exercise of their respective powers, provided any exercise of
those powers is not inconsistent with the laws of the Commonwealth.
23
High Court of Australia, Mabo and Others, Justice Brennan’s Declaration, Points
40 and 41, and Judge Toohey’s Declaration, point 19.
Eddie Mabo and Namibia: Land Reform and Precolonial Land Rights 343
This amounts to a denial of the very concept of terra nullius in the sense of
a land which is capable of being appropriated by someone who is not born
therefrom. It is a condemnation of the modern concept, as defined by
Pasquale Fiore, which regards as terrae nullius territories inhabited by
populations whose civilization, in the sense of the public law of Europe, is
backward, and whose political organization is not conceived according to
Western norms.25
Judges Deane and Gaudron pointed to the fact that even in conservative
Commonwealth jurisprudence there are indications that at least some
property rights of the native people were not only recognized, but also
protected by the new colonial powers:
24
Western Sahara, Advisory Opinions, I.C.J Reports, 1975, 85-86.
25
Ibid.
26
In re Southern Rhodesia (1919) AC 211, 233-234.
27
High Court of Australia, Mabo and Others, Justice Brennan’s Declaration, point
41.
344 Chapter Eleven
28
High Court of Australia, Eddie Mabo and Others, Judges Deane and Gaudron’
Declaration, point 10.
29
(1957) 1 WLR 876, 880
30
High Court of Australia, Eddie Mabo and Others, Judges Deane and Gaudron’
Declaration, point 4.
31
Ibid., point 30.
32
Ibid., point 48f.
Eddie Mabo and Namibia: Land Reform and Precolonial Land Rights 345
33
In re Southern Rhodesia (1919) AC 211, 233-234.
34
Mark Cooray, “The High Court In Mabo Legalist or L'egotiste”, accessed June
29, 2011, http://www.ourcivilisation.com/cooray/mabo/ index.htm.
35
The judge allegedly stated that a Bill of Rights would bring the courts into the
political process as a new and dominant force: “Once the right is defined, the Court
must weigh the collective interest against the right of the individual. This is the
stuff of politics, but a Bill of Rights purports to convert political into legal debate,
and to judicialise questions of politics and morality.” Justice Brennan, quoted in
Mark Cooray, “The High Court In Mabo.”
346 Chapter Eleven
South Africa under apartheid the beneficiaries were a tiny majority and the
deprived constituted the vast majority.36
Galligan accuses the High Court of making law, but adds that it has
always done so.37 Marchant criticizes the judges and accuses them of
being dishonest with history.38 His main concern is that a decision on a
group of farmers in the Murray Islands was made applicable to the
Aborigine people of the Australian mainland. It is Cooray, again, who
echoes the typical paternalistic view that the indigenous people should be
thankful for their dispossession, since the conquerors brought with them
the advantages of Western civilization:
How would Aborigines live if Australia had not been conquered? Would
their economic standards of living be any better? Would their tribal law
and customs be superior to the Common Law and statutory mix which
prevail today? Would they have developed the land, in the way it has been
developed? A negative answer to the latter three questions spring to my
39
mind from common sense and logic.
36
Mark Cooray, “The High Court In Mabo.”
37
B. Galligan, “The Power of Seven,” The Weekend Australian, July 17-18, 1993.
38
Marchant quoted in Galligan, “The Power of Seven.”
39
Mark Cooray, “The High Court In Mabo.”
Eddie Mabo and Namibia: Land Reform and Precolonial Land Rights 347
On the other side of the issue, the white farmers have emphasized its
Constitutional rights in terms of Article 16. However, none of the parties
have thus far attempted to place their points of departure in a historical
context. For the government, the original inhabitants of the land are
synonymous with the previously disadvantages. The white farmers, on the
other hand, have thus far not made an effort to consider the possibility of
the other rights that may exist on their farms. The idea that more than one
right can exist over a farm is not unknown to both common law and
statutory law in Namibia. For example, the rights of a farmer on his or her
land can be restricted by a lease contract that is in place at the time of the
40
Article 16. The text reads:
(1) All persons shall have the right in any part on Namibia to acquire, own and
dispose of all forms of immovable and movable property individually or in
association with others and to bequeath their property to their heirs or legatees:
provided that Parliament may be legislation prohibit or regulate as it deems
expedient the right to acquire property by persons who are not Namibian citizens
(2) The State or a competent body or organ authorized by law may expropriate
property in the public interest subject to the payment of just compensation, in
accordance with requirements and procedures to be determined by Act of
Parliament.
41
Ibid. The South Western African People’s Organization, SWAPO, was the
political party of Sam Nujoma, who was the first President of Namibia after
independence from South Africa. He was sworn in 1990 and remained in office
until 2005, after being re-elected for a third term.
348 Chapter Eleven
Once a claim has been proved, the government can take the process
over and deal with it in terms of a pre-determined program, while
42
The common law dictum huur gaat voor koop lease takes preference to
purchase is enforced by the Namibian courts on a regular basis.
43
I generally agree with Jeremy Sarkin and Carly Fowler that although the term
genocide was not known in 1904, it is possible to evaluate the acts of the German
forces and the communications of their commander, General Lothar von Trotha,
with the definition than became part of international law. Jeremy Sarkin and Carly
Fowler, “Reparations for Historical Human Rights Violations: The International
and Historical Dimensions of the Alien Torts Claims Act Genocide Case of the
Herero of Namibia,” Human Rights Review 9 (2008): 3f. See also Jeremy Sarkin,
“The Coming of Age” and Manfred Hinz, “One Hundred Years Later: Germany on
Trial in the USA The Herero Reparations Claim for Genocide”, Namibian
Human Rights Online Journal 1 (2003).
44
The presumptions are based on preliminary discussions with traditional
authorities from the Nama and Herero people at workshops in Windhoek and
Keetmanshoop held in 2004.
Eddie Mabo and Namibia: Land Reform and Precolonial Land Rights 349
If government and the present owner can reach an agreement, the only
issue will be the money to pay for the farm. Since the claims will be of an
individual or sometimes tribal nature, they will possibly fall outside the
present budget provisions of government. However, several donor
countries and even the European Union can be requested to assist in the
financing of this part of the process. Both the European Union and
Germany have in the past expressed its willingness to assist Namibia with
the financing of the programmed land reform.
Conclusion
The principles of the Mabo case are surely not the only ones that will
take land reform forward, but the acknowledgement of pre-colonial rights
will have several advantages. It will create a mechanism to deal with one
of the saddest pages in the history of Namibia. It will also bring justice to
peoples who almost suffered extinction at the hands of European colonialism.
350 Chapter Eleven
And it will restore the land rights of second and third generation
descendants of the pre-colonial owners of the land.
Bibliography
Blackstone, William. Commentaries on the Laws of England Book II.
London: Sweet & Maxwell, 1830.
Castles, Alex. An Australian Legal History. Sydney: Law Book Co., 1982.
Cooray, Mark. “The High Court In Mabo Legalist or L'egotiste.”
Accessed June 29, 2011. http://www.ourcivilisation.com/cooray/mabo/
index.htm.
45
See Jeremy Sarkin, “The Coming of Age,” 92-93.
46
Since the programme is still in a planning stage, one will have to wait until
government has either defined national interest or start with the process before
commenting on the pros and cons thereof.
Eddie Mabo and Namibia: Land Reform and Precolonial Land Rights 351
Commonwealth Cases
Adeyinka Oyekan v. Musendiku Adele (1921) 2 AC 399.
Amodu Tijani v. Secretary, Southern Nigeria (1957) 1 WLR 876.
Attorney-General v. Brown (1847) 1 Legge 312.
The Commonwealth, versus New South Wales (1923) 33 CLR 1.
In re Southern Rhodesia (1919) AC 211.
Johnson v. McIntosh (1823) 8 Wheat 543.
Liquidators of Maritime Bank of Canada v. Receiver-General (New
Brunswick) (1892) AC 437.
Eddie Mabo and Others v. The State of Queensland (No. 2), [1992] HCA
23 (1992) 175 CRL 1, F.C. 92/014.
New South Wales v. The Commonwealth (1975) 135 CLR 337.
R. v. Kidman, (1915) 20 CLR 425.
Randwick Corporation v. Rutledge (1959) 102 CLR 54.
Wade v. New South Wales Rutile Mining Co. Pty. Ltd. (1969) 121 CLR
177.
352 Chapter Eleven
SUSAN WALTZ
In the fifty years that have passed since the United Nations General
Assembly approved the Universal Declaration of Human Rights (UDHR),1
literally hundreds of books on the subject of human rights have come to
fill the shelves of major university libraries in the United States and
around the world. Human rights has claimed the attention of scholars in
several disciplines, and the notion is alternatively approached as a
philosophical idea, a legal concept, or a political project. Human rights
readily finds a home in Western political philosophy, where theories of
natural rights and social contract are well-anchored and help elaborate the
modern concept of human rights. Human rights has also been discussed in
comparative philosophical frameworks.2 Human rights as a legal concept
is part of the bedrock of contemporary international law, and neither legal
scholarship nor discussion of the international implementation mechanisms
(and their flaws) is wanting. The study of international human rights as a
political project, however, has been relatively neglected. A political
project refers to concerted efforts to build a public and worldwide
1
Universal Declaration of Human Rights, Adopted 10 Dec. 1948, G.A. Res. 217A
(III) U. N. GAOR, 3d Sess. (Resolutions, Pt. 1) At 71, U.N. Doc A/810 (1948).
2
Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell
University Press, 1989); Johan Galtung, Human Rights in a Different Key
(Cambridge: Polity Press, 1994); Ann Mayer, Islam and Human Rights: Tradition
and Politics (Boulder: Westview Press, 1995); Abdullahi Ahmed An-Na'im, ed.,
Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia:
University of Pennsylvania Press, 1991) and Michael Freeman, “The Philosophical
Foundations of Human Rights” Human Rights Quarterly 16 (1994): 491.
354 Chapter Twelve
3
I have borrowed this term from Tony Evans, whose usage is similar. Tony Evans,
US Hegemony and the Project of Universal Human Rights (New York: St.
Martin’s Press, 1996).
4
The evolution of this literature can be traced over several decades through
publications in journals such as International Organization, World Politics,
International Studies Quarterly and Millennium-Journal of International Studies.
5
Donnelly, Universal Human Rights; R. J. Vincent, Human Rights and International
Relations (Cambridge: Cambridge University Press, 1986) and David C. Forsythe,
The Internationalization of Human Rights (Lexington: Lexington Books, 1991).
Also see Henry Shue, Basic Rights: Subsistence, Affluence, and U. S. Foreign
Policy (Princeton: Princeton University Press, 1980); Lars Schoultz, Human Rights
and US Foreign Policy toward Latin America (Princeton: Princeton University
Press, 1981) and David C. Forsythe, Human Rights and US Foreign Policy:
Congress Reconsidered (Gainesville: University of Florida Press,1988).
6
The Universal Declaration of Human Rights together with the International
Covenant on Civil and Political Rights and the International Covenant on Social,
Economic and Cultural Rights comprise the "International Bill of Rights." For
many months between 1946 and 1948 there was active debate about whether or not
to have a single document and the exact form any document(s) should take. After
Universalizing Human Rights 355
the declaration was acclaimed in 1948, debate continued as to whether there should
one or two main treaties. Largely due to pressures from the United States–whose
own internal political landscape had changed dramatically from 1945 to 1952–the
covenants were split. See Evans, US Hegemony, 89-92. In this chapter, the term
“International Bill Of Rights” has two meanings: (1) When capitalized this term
refers to the three documents, namely the UDHR, ICCPR and ICESCR; and (2)
when not capitalized, it refers to the entire political project before it was known
that there would be three, not one, document.
7
M. Glen Johnson, “The Contributions of Eleanor and Franklin Roosevelt to the
Development of International Protection for Human Rights,” Human Rights
Quarterly 9 (1987): 19.
8
Roosevelt's speech proclaimed freedom of speech, freedom of religion, freedom
from fear and freedom from want.
9
For additional insights into Eleanor Roosevelt’s role, see Tony Evans, US
Hegemony; A. Glen Johnson, The Contributions; John P. Humphrey, Human
Rights and the United Nations: A Great Adventure (New York: Transnational
Publishers, 1984); David Gurewitsch, Eleanor Roosevelt: Her Day (New York:
Interchange Foundation, 1973). As the chair of the Commission of Human Rights,
Eleanor Roosevelt was invited to introduce the draft UDHR to the Third
Committee for formal debate. See U.N. GAOR, 3d Sess., 3d Comm., Pt. 1, At 32-
33 (1948) [Hereinafter Third Committee Records].
10
See, e.g., The Eleanor Roosevelt Story (Richard Kaplan, 1966); Eleanor Roosevelt:
A Restless Spirit (A&E Home Video, 1994); The American Experience: Eleanor
Roosevelt (PBS, 1999).
356 Chapter Twelve
From this side of the Atlantic there are few challenges to a view that
the Roosevelts shaped and molded the human rights story, and indeed,
many consider the human rights project was no more and no less than
an American project.11 Alternative views persist, however, and there are
variations to challenge even this most basic story. The fact that the
UDHR was finalized under the shadow of the Eiffel Tower allows
France to call itself the birthplace of universal human rights. The
version of the story commonly told in France puts renowned legal
scholar Rene Cassin at center stage. Cassin had great influence over the
final draft text and was awarded the Nobel Peace Prize for his role in
fostering the UDHR. As part of their own political legacy, the French
recall that the Rights of Man manifesto arose from the French
Revolution. When the freshly created United Nations Economic, Social
and Cultural Organization (UNESCO) decided in 1946 to conduct an
international survey on the multicultural basis of the philosophical idea
of human rights, French philosopher Jacques Maritain was among those
chosen to participate in the study. That UNESCO investigation had no
appreciable impact on the political project of human rights (which was
carried out by the Commission on Human Rights, under the aegis of the
Economic and Social Council, ECOSOC), but Maritain's active
participation nevertheless buttresses the French claim to sponsorship of
the human rights project.12
11
Evans, US Hegemony.
12
Jacques Maritain, “On the Philosophy of Human Rights,” in Human Rights:
Comments and Interpretation: A Symposium, ed. UNESCO, (London-New York:
A. Wingate, 1949), 72.
13
Gurewitsch, Eleanor Roosevelt.
14
Eleanor Roosevelt, The Autobiography of Eleanor Roosevelt (Cambridge: Da
Capo Press, 1992). For an account based in part on a review of Eleanor
Roosevelt’s private papers, see Tony Evans, US Hegemony.
15
Humphrey, Human Rights.
Universalizing Human Rights 357
Finally, there has also been scholarly scrutiny of the drafting process
16
Evans, US Hegemony.
17
Richard Davies, Defender of the Old Guard: John Bricker and American Politics
(Columbus: Ohio State University Press, 1993) and Duane Tananbaum, The Bricker
Amendment Controversy: A Test of Eisenhower's Political Leadership (Ithaca:
Cornell University Press, 1988).
18
William C. Korey, NGO's and the Universal Declaration of Human Rights (New
York: St. Martin’s Press, 1998).
19
Korey, NGO's, 36.
20
J. Herman Burgers, The Road to San Francisco,” Human Rights Quarterly 14
(1992): 465.
21
Paul Gordon Lauren, The Evolution of International Human Rights: Visions
Seen (Philadelphia: University of Pennsylvania Press, 1998), 72-138.
358 Chapter Twelve
22
Asbjorn Eide, Gudmujndur Alfredsson, Goran Melander, Lars Adam Rehof and
Allan Rosas, eds., The Universal Declaration of Human Rights: A Commentary
(Oslo: Scandinavian University Press, 1992). See also Nehemiah Robinson, The
Universal Declaration of Human Rights: Its Origins, Significance, Application and
Interpretation (New York: Institute of Jewish Affairs, Louvain-Paris: Editorial
Nauwelaerts, 1958), and Albert Verdoodt, Naissance et Signification de la
Declaration Universelle des Droits de l'Homme (1963).
23
Johannes Morsink, The Universal Declaration Of Human Rights: Origins, Drafting
and Intent (Philadelphia: University of Pennsylvania Press, 1999).
Universalizing Human Rights 359
Well before the opening of the San Francisco conference that was to
create a United Nations, the idea of establishing an international human
rights standard was in the air. The concept of a worldwide declaration of
human rights can be traced back at least as far as the 1920's, soon after the
360 Chapter Twelve
It seemed natural that the idea of a human rights declaration would find
its way into proposals for a new worldwide organization of United
Nations. It did, but barely. Papers prepared by the US in preparation for
meetings at Dumbarton Oaks referenced human rights, but support was at
best lukewarm. Though it will seem ironic today, of the four Sponsoring
Powers, it was China that was most supportive of the idea.29 The Chinese
argued that a central purpose of the UN should be to enforce justice for the
world. To that end they were prepared "to cede as much...sovereign power
24
FIDH Homepage (2010), http://www.fidh.org
25
H. G. Wells, “War Aims: The Rights of Man,” The Times October 25, 1939. For
the original draft of his Declaration Of Rights and additional commentary on
human rights see H. G. Wells, The Rights of Man or What Are We Fighting for?
(Harmondsworth-New York: Penguin, 1940).
26
For a discussion of Wells’ work, see Burgers, Road, 465-468, and Lauren,
Evolution, 152-153 and 329. Lauren notes that Wells' declaration was
translated into Chinese, Japanese, Arabic, Urdu, Hindi, Bengali, Guajarati,
Hausa, Swahili, Yoruba, Zulu and Esperanto. Wells also circulated his declaration
among European and North-American intellectuals. For the broad range of Well's
political concerns during this period, see Michael Foot, The History of Mr. Wells
(London: Doubleday, 1995), 253-307.
27
The document commonly known as the Atlantic Charter was initially released as
the “Declaration of Principles Issued by the President of the United States and the
Prime Minister of the United Kingdom” on 14 August 1941.
28
Lauren, Evolution, 161-162.
29
Ibid., 166. The four sponsoring powers were the United States, Great Britain, the
USSR and China. These were the four states that met at Dumbarton Oaks,
producing the proposal for the United Nations, which was then discussed in San
Francisco.
Universalizing Human Rights 361
As the curtain rises on our story, there was no reason at all to expect
that the nascent United Nations would focus rhetorical attention on human
rights. There was nothing inevitable about the Universal Declaration,
much less the human rights treaties that followed. Certainly, the Great
Powers did not advance the idea. Once it was loose, their concern was to
manage the process and ensure at least that the results did not run counter
to their interests. They quickly seized leadership roles in the crafting of the
human rights project, but the smaller powers also participated actively. In
many regards the story of the UDHR belongs to them. Some of the ideas
advanced by smaller powers were incorporated into the final product.
Some were not. Sometimes they supported the larger powers; sometimes
they did not. Sometimes they were divided among themselves. In several
instances, their concerted efforts prevented the larger powers from having
their way.
30
Ibid.
31
Ibid., 148-149,166-171 and 331-332.
32
Farrokh Jhabvala, “The Drafting of the Human Rights Provisions of the UN
Charter,” Netherlands International Law Review 64 (1997).
33
Lauren, Evolution, 165.
34
Jhabvala, Drafting, 32.
362 Chapter Twelve
The Nazi holocaust was frequently evoked, but it was not by any
means the only point of reference for participants in the Third Committee
debates. During these debates, Soviet bloc delegates regularly pointed out
the human rights shortcomings of their Western counterparts. They noted
35
See Third Committee Records, passim.
36
Morsink, Universal, 38-43.
Universalizing Human Rights 363
the Swiss denial of the political franchise to women,37 and the British
empire's denial of the franchise to the vast majority of its subjects
worldwide.38 They noted the US Congress' ignominious failure to approve
a proposed federal law against lynching.39 Delegates were witness to many
attacks on South Africa, where the Afrikaner Nationalist Party had just
come to power on a platform of racist and segregationist promises they
intended to keep.40
Some of the issues hit very close to home. An emergency report from
UN envoy Ralph Bunche on the crisis of Palestinian refugees was the
only issue allowed to interrupt the concentrated focus on the UDHR
during the two-month session of the Third Committee in 1948.41
Delegates from Egypt and Iraq seized the opportunity to point out that
there was nothing abstract about that particular human rights crisis. Less
far-reaching, but with its own measure of drama, the Chilean delegation
brought its grievance about the Soviet Union's restrictions on emigration
to the deliberating body.42 Just as the Third Committee debates were
opening in Paris in September 1948, the USSR had denied an exit visa to
a Soviet member of the Chilean ambassador's family. In the resulting
imbroglio, Chile broke off diplomatic relations with the USSR, and for
several tense days each country held the other's ambassador in custody.43
The UDHR was constructed with great deliberation. At all stages of the
drafting, delegates understood what they were about, even if they could
only imagine the ultimate significance of their work. No participating
delegation could reasonably claim to have been unaware of its content, or
its relevance.
37
Swiss women received the right to vote only in 1971. See Third Committee
Records, 461.
38
Ibid
39
Ibid., 142.
40
Ibid., 57, 92 and 131.
41
Bunche was replacing Count Folke Bernadotte of Sweden, who served in 1948
as the Security Council's mediator in Palestine. Count Bernadotte had been
negotiating a ceasefire between Arab and Jewish leaders in Palestine when he was
assassinated by Zionist extremists, less than two weeks before the Third
Committee convened in Paris. See Ralph Hewins, Count Folke Bernadotte: His
Life and Work (London: Hutchison & Co, 1950).
42
Third Committee Records, 316.
43
“Human Rights Questions at the Third Regular Session of the General Assembly:
The United States Position”, Foreign Relations of the United States 1948 1,
(1975): 289, 293-299. [hereinafter Human Rights Questions.]
364 Chapter Twelve
44
Morsink, Universal, 32-33. Morsink identifies by name approximately forty
"second-tier" delegates who in his estimation made significant contribution during
the drafting phase.
45
Third Committee Records, Annexes, 9-58.
46
Ibid., Appendix.
47
Ibid.
48
Shaista Ikramullah, From Purdah to Parliament (Karachi-Oxford: Oxford
University Press, 1998), 182-192 and 202-208.
Universalizing Human Rights 365
example of the oral exchange, on the text that eventually became Article
21, some twenty-eight voices joined the debate, including delegates from
Belgium, Uruguay, the United States, Greece, Brazil, Venezuela, Iraq,
China, Haiti, Cuba, Sweden, the former Soviet Union, Lebanon,
Philippines, and Saudi Arabia.49 In their interventions, small powers
engaged substantive issues, and they engaged each other. During the
debate on what would become Article 5 (prohibiting torture), for example,
the Philippine Republic objected to a proposal by Cuba to insert provisions
for cultural differences. The Philippine delegate argued that with such a
provision in place, Nazis might have claimed that their torture chambers
were customary and therefore legal in Nazi Germany.50 In the debate on
what would become Article 16, the Pakistan delegation resisted efforts by
Saudi Arabia to change the provisions for marriageable age from "full
age" to "legal marriageable age." Mrs. Shaista lkramullah argued that the
original draft language more clearly conveyed the intent to prevent child
marriages, and non-consensual marriages.51 Emile Saint Lot of Haiti
voiced reservations about voting by secret ballot–where citizens were
predominantly illiterate.52 The Mexican delegation paid homage to
Thomas Jefferson but went on to argue for inclusion of socio-economic
rights, compatible with the ideals of the Mexican Revolution. And as
Morsink has documented, throughout the entire two-year process of
constructing the Declaration, the oft-repeated debate over natural rights
was of great concern to delegates from a wide range of countries, and not
least of them Lebanon, Brazil, Uruguay, Chile, Cuba, and China.53
Small states were active and engaged participants in the process that
produced the UDHR. Some Western powers, in fact, might have preferred
less participation on their part. Minutes from meetings of the US
delegation to the Third Committee indicate that the United States was
committed to moving the draft UDHR through the General Assembly as
quickly as possible, initially hoping that debates could be finished within a
few days.54 They were soon brought to realize not only the futility, but the
political inadvisability, of attempting to limit debate. Charles Malik, who
chaired the Third Committee sessions, informed the US delegation that
49
Third Committee Records, 448-473.
50
Ibid., 214.
51
Ibid., 374.
52
Ibid., 466.
53
Johannes Morsink, “The Philosophy of the Universal Declaration,” Human
Rights Quarterly 6 (1984): 310-316.
54
“Human Rights Questions,” 289-291.
366 Chapter Twelve
many states were attached to the idea of examining the draft text in detail,
and some of the smaller US allies argued that states that had not
participated in the drafting phase should have opportunity to express their
views on the draft Declaration.55
55
Ibid., 290-291.
56
Third Committee Records, 37-51.
57
U. N. GAOR, 3d Sess., Pt. 1, 180th Plenary Meeting., (1948), 860 [Hereinafter
U.N. GAOR, 180th Plenary Meeting.]
58
Forty-eight states voted for the UDHR in the General Assembly plenary
convened on 10 December 1948; eight states abstained. A handful of those states
did not participate in the Third Committee Debates. See Ibid., 934.
Universalizing Human Rights 367
Rene Cassin is often credited with authoring the UDHR, but that
acclaim also appears to be misplaced. With the status of chief legal
adviser to Charles de Gaulle during the war and with experience drafting
the constitution of the Free French, Cassin was indeed an active, vital,
and respected participant in all stages of the discussion and debate.59 As
to the question of authorship, however, Morsink has established that
Cassin "did not enter the room until the baby was born." 60 Cassin did edit
an initial draft of the UDHR which had been prepared by the UN
Secretariat, but careful comparison of the two documents shows that at
least three-quarters of Cassin's text flowed directly from the UN draft.61
His most brilliant contribution to the political project of international
human rights arguably came after 1948. According to Morsink, "more
than any other drafter, Cassin spent the post-adoption years interpreting
the Declaration to the larger world." 62 Cassin developed and promoted an
elaborate and inspiring presentation of the architecture of the UDHR, a
portico leading to a world where human rights are respected.63
59
In retrospect, it is difficult to assess Cassin's precise contribution to the process.
He clearly annoyed Humphrey, who claimed that few were persuaded by Cassin's
arguments (See Humphrey, Human Rights, 24). Eleanor Roosevelt does not
mention Cassin's contribution–though she mentions many others.
60
Morsink, The Universal, 29.
61
Ibid., at 8.
62
Ibid., at 29.
63
Mary Ann Glendon, "Knowing the Universal Declaration of Human Rights,"
Notre Dame Law Review 73 (1998): 1163, citing Marc Agi and Rene Cassin,
Fantassin des Droits de l'Homme (Paris: Plon, 1979): 317.
368 Chapter Twelve
64
Humphrey, Human Rights, 32. Also see comments by Charles Malik before the
UN General Assembly session on 9 December 1948, in Third Committee Records,
858. Morsink's Findings are reported in Morsink, Universal, 6. The American Law
Institute was composed of jurists from all over the Western hemisphere, and was
heavily influenced by Latin jurists. Lauren, Evolution, 158.
65
Morsink, Universal, 7.
66
1947-1948 United Nations Year Book, 1075.
Universalizing Human Rights 369
Malik was forty years old when he took up work with the Human
Rights Commission. He was teaching philosophy in Beirut when he was
asked to join Lebanon's delegation to the UN. Biographic sketches
emphasize his career as a diplomat, but he preferred to think of himself
as a philosopher and a scholar. Humphrey identified him, along with
Zhang, as one of the two most gifted intellects on the Commission.67
Some delegates–most notably the British Lord Dukeston–found his
attachment to Thomist legal doctrine68 too dogmatic, and on several
occasions his proposals were defeated. Malik was educated at the
American University of Beirut and at Harvard, but he was widely
recognized and respected as a product of his Mediterranean and Middle
Eastern culture.
67
Humphrey, Human Rights, 23.
68
Ibid., 25. Thomas Aquinas (1226-1274) posited and differentiated four kinds of
law, including natural law and positive law. Attachment to natural law, of which
Malik was a proponent, presumes that rational beings can recognize and will obey
certain principles "by nature." Aquinas suggested that positive law could be
derived from natural law, and it is just this argument that led Malik into deep
debate with his colleagues in the Human Rights Commission. See Ibid., 23. As an
aside, it is perhaps interesting to note that Thomist doctrine provided a Christian
medieval synthesis of contending traditions then represented as Christian (drawing
on Augustine and Plato) and Muslim (Aristotle by way of Averroes). See Norman
F. Cantor, Western Civilization: Its Genesis and Destiny (Gleenview: Scott &
Foresman, 1969), 351 and 463.
69
Zhang was born in Tientsin in 1892 and was educated at Nankai Middle School.
After earning a doctorate in education he returned to China and became dean of
Tsing Hua College. Zhang was a member of the Peoples' Political Council of
China under Chiang Kai-shek. He served as minister to Turkey and to Chile before
becoming representative to the UNGA in 1946. See 1947-1948 United Nations
Year Book, 1055.
70
Humphrey, Human Rights, 29, and Roosevelt, Autobiography, 316-317.
370 Chapter Twelve
71
Third Committee Records, 177.
72
Humphrey, Human Rights, 40
73
Not all of Zhang's suggestions have been applauded. Morsink holds Zhang
responsible for "damage" to the UDHR that resulted when in the final days of the
Commission's work, Zhang successfully advocated moving the article on duties to
the end of the Declaration, far away from its early position as the second article.
Morsink speculates as to whether this late suggestion from Zhang was colored by
his preoccupation with events in China. On the day the change was made, the New
York Times carried two stories about China on its front page–one concerning
delays in a US-China aid bill and one about Mao's drive to Shanghai and Nanking.
See Morsink, Universal, 246.
74
Humphrey, Human Rights, 40.
Universalizing Human Rights 371
academies. Santa Cruz had supplied one of the initial drafts with which
Humphrey worked, and he was particularly attached to provisions about
socioeconomic rights. Particularly in the drafting stages, Santa Cruz was
vigilant in his defense of these rights and stepped in with persuasive
arguments when North Atlantic nations sought to trim them back.
Morsink credits Santa Cruz' intellectual attachment to socioeconomic
rights as one of the important reasons why the 1948 Declaration ultimately
transcended eighteenth century Enlightenment philosophy.75
75
Morsink, Universal, 30. Santa Cruz would later lead the fight for a single human
rights covenant to enact the Declaration and in so doing would earn the label of
"mischief-maker" from Mrs. Lord, who replaced Eleanor Roosevelt as the US
representative on the Commission on Human Rights. See “United States Policy
Regarding the Draft United Nations Covenants on Human Rights: The 1953
Change”, Foreign Relations of the United States, 3 (1979): 1952-1954, 1536 and
1579.
76
Eleanor Roosevelt recounts one speech by Pavlov that referred to a Mississippi
statute regarding the length of an ax handle that a man could use to beat his wife.
She had an advisor telephone Washington for advice and was chagrined to learn
that, indeed, such legislation remained on record. Roosevelt, Autobiography, 311-
312.
77
Morsink, Universal, 30-31.
372 Chapter Twelve
78
Lawrence O. Ealy, The Republic of Panama in World Affairs: 1903-1950
(Philadelphia: University of Pennsylvania Press, 1951), 125.
79
Less than two years later a Panama-US dispute over the Panama Canal would be
referred to the UN Trusteeship Council. Along with Chilean jurist Alejandro
Alvarez, Panama's Foreign Minister (and former President) Ricardo Alfaro had
participated in the elaboration of the American Law Institute's Draft Bill of Human
Rights, upon which Humphrey based his own first draft. See Ibid., 154-157 and
Humphrey, Human Rights, 32.
80
Lauren, Evolution, 188.
81
Jhabvala, Drafting, 9.
82
In November 1946 Cuba, India and Panama asked the UN Secretary General to
include this item in the UNGA agenda, but it was instead referred to the UNGA
Sixth Committee. "The United Nations Convention on the Prevention and
Punishment of the Crime of Genocide," Foreign Relations of the United States
Universalizing Human Rights 373
oppression.83
America, Asia, and the Middle East. Early in the work of the Commission
(Phase II) many of the provisions were collapsed or diluted, and it was
only through concerted efforts of nongovernmental organizations, small
states, and the Soviet bloc that most were restored. Extending provisions
of several Latin American constitutions that set out social and economic
rights, Article 25 of the UDHR establishes that a decent standard of living
depends upon adequate food, clothing, housing, and medical care. The
inclusion of clothing in that list is a direct result of comments, and
arguments, by the Philippine and Chinese participants in the Commission's
work (Phase II).87 In the Third Committee debates (Phase III), such voices
were joined by the Saudi delegate, who reminded other participants of the
Muslim tenet of zakat (regular alms-giving) and by the Syrian delegation,
which argued –unsuccessfully –for a broader language of "social
justice.”88 Thanks to such efforts, the UDHR establishes the right to food,
clothing, shelter, and medical care as well as social security, education,
and decent working conditions.
87
Ibid., 192-199.
88
Third Committee Records, 504 and 515.
89
Humphrey, Human Rights, 24.
90
Gurewitsch, Roosevelt, 22.
91
Morsink, Universal, 119-120.
92
UDHR, Art. 1.
Universalizing Human Rights 375
93
Lauren, Evolution, 91; Humphrey, Human Rights, 32 (noting his regret that the
UNGA decided to remove reference to minorities from his earliest draft). On
several occasions, Eleanor Roosevelt reminded delegates that issues of
discrimination would be taken up with a separate protocol on minorities, no doubt a
political concession in which the United States and the United Kingdom had equal
interest.
94
Lauren, Evolution, 169-170.
95
“The United Nations, V ‘The Question of the Treatment of the People of Indian
Origin in South Africa’," Foreign Relations of the United States 1950, 11 (1976),
559-575 (document originally classified "secret"). In 1950 South Asian states took
the question of the treatment of Indians in South Africa to the General Assembly.
Over several months, the US delegation analyzed the situation as "a case of discord
among two non-Communist governments" and in efforts to avoid exacerbating the
conflict and thereby provide opportunities for the Soviets to exploit, they
discouraged the initiative. Ibid., 561. The delegation was sent into a tailspin when
Senator Henry Cabot lodge briefly joined the delegation and forcefully disagreed
with the position. As the delegate responsible for the item "he was surprised at the
innocuous Indian resolution, and he thought the United States should vote for it...
To him this item provided a great opportunity for the United States to build
strength to overcome some of the grave disadvantages under which our country
labored because of the civil rights question." Ibid., 565. Following extended
discussion, Lodge did make a statement before the UN's Ad Hoc Political
Committee, but the US position remained an equivocal one, ultimately settled by
Secretary of State Dean Acheson. Ibid., 575.
376 Chapter Twelve
Last, but far from least, many small state delegations sought an end to
colonial rule. Just as the great powers deployed human rights as a
rhetorical weapon in the Cold War, many small states saw and seized
opportunity to use the human rights projects to advance the cause of
independence and self-determination. They argued pointedly that human
rights should apply to all people everywhere–irrespective of the political
status of their country. As with many other issues that rankled the colonial
powers, this issue was pursued most cleverly and most relentlessly by
Soviet bloc delegates.97 The charge was readily joined by states with clear
and poignant memories of colonial tutelage, including Syria, Haiti, and
Pakistan. Omar Loufti of Egypt, for example, supplied the phrase that
eventually found its way into the opening paragraph of the UDHR
Preamble, mandating that rights were to be upheld "both among the
peoples of the Members States themselves and among the peoples of
territories under their jurisdiction.” 98
96
See generally, Third Committee Reports.
97
Ibid.
98
Morsink, Universal, 98 (emphasis added by author).
99
Third Committee Records, 740-746, 853-863; U.N. GAOR, 180th Plenary
Universalizing Human Rights 377
"Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, color, sex,
language, religion, political or other opinion, national or social origin,
property, birth, or other status.
Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or
under any other limitation of sovereignty.100
Meeting., 932.
100
UDHR, Art. 2.
101
Third Committee Records, 745.
102
“The United Nations, II. ‘Proposals for the Right of Peoples and Nations to
Self-Determination’," Foreign Relations of the United States 1951, 2 (1976), 775.
103
Declassified documents reveal a discourse that was largely disingenuous, turning
on procedural questions and oblique concerns. Ibid. At one point an apparently
bemused Assistant Secretary of State with regional responsibilities queried how the
US had come to stand in "opposition to a resolution relating to a peculiarly
American concept [self-determination]." Ibid, 784. Previous passages make clear
that the underlying concern was how to avoid alienating the French delegation,
378 Chapter Twelve
First, the UDHR never had a single author–at any stage. This
observation is most significant for those who, fifty years later, either claim
or question ownership of the document. Over the years numerous sources
have credited Cassin with authorship, but with benefit of archival
materials and close scrutiny of contemporaneous documents, it is now
clear that while this noted legal scholar participated actively in the debates,
his main contribution toward "authoring" the declaration was to copy it, by
hand, and make minor adjustments to the text.104 In a fundamental sense,
the UDHR is a composite and negotiated text.
which was "very much worried about the inclusion of any kind of article on self-
determination, no matter how carefully drafted the language might be.” Ibid., 787.
104
In a footnote, Morsink traces some of the events and publicity that led to a
widespread belief that Cassin provided the initial draft. See Morsink, Universal,
343 n. 59.
Universalizing Human Rights 379
105
Korey, NGOs, 39 (emphasis added by author.)
106
Defending hegemonic stability theory, Robert Gilpin writes: "[a]n international
system is established for the same reason that any political system is created; actors
enter social relations and create social structures in order to advance particular sets
of political, economic, or other interests. Because the interests of some of the actors
may conflict with those of other actors, the particular interests that are most favored
by the social arrangements tend to reflect the relative powers of the actors involved."
Robert Gilpin, War and Change in World Politics (Cambridge: Cambridge
University Press, 1981), 9. In a pertinent discussion of these matters as they pertain
to human rights, several years ago David Forsythe challenged Jack Donnelly's
assertion that dynamics within the American regional human rights regime,
centered around the Organization of American States, could be attributed to the
dominant power of the United States. While acknowledging the importance of
Donnelly's contribution, Forsythe's examination of dynamics within the OAS
regime suggests that US influence can be overestimated, and that a number of
regime developments came about despite US opposition or passivity. See Jack
Donnelly, "International Human Rights: A Regime Analysis," International
380 Chapter Twelve
111
“The United Nations, I. ‘The Draft International Covenant on Human Rights’,”
Foreign Relations of the United States 1951, 2 (1976): 740-742 [Hereinafter The
Draft International Covenant on Human Rights.]
112
For additional information about Holman’s role in this era, see Davies,
Defender, 145-191.
113
As suggested in note 104, realist approaches do help explain the United States'
abrupt -but 1ittle remembered- change of heart about international human rights.
Cold War concerns abroad and the defense of states' rights at home easily eclipsed
the Second World War rhetoric of human rights and fundamental freedoms.
Almost immediately following Roosevelt's death–and just two weeks before the
opening of the meeting in San Francisco that chartered the United Nations–the US
began to backpedal on its commitment to human rights. Korey is correct to claim
that nongovernmental organizations played a heroic role at San Francisco. Their
intensive lobbying of the US delegation was instrumental in persuading the United
States to maintain its initial commitment (Korey, NGOs, 35; Lauren, Evolution,
246-248). Eleanor Roosevelt, once appointed to the Commission, did become an
ardent and formidable champion of human rights, but she had her own battles to
fight with the US State Department. Roosevelt, Autobiography. See also The Draft
International Covenant on Human Rights.
382 Chapter Twelve
114
Dominic McGoldrick, The Human Rights Committee: Its Role in the
Development of the International Covenant on Civil and Political Rights (Oxford:
Clarendon Press, 1991), 16-18.
115
For an approach to evaluating counterfactuals see Philip E. Tetlock and Aaron
Belkin, eds, Counterfactual Thought Experiments in World Politics: Logical,
Methodological and Psychological Perspectives (Princeton: Princeton University
Press, 1996).
116
Morsink, Universal, 8, and Humphrey, Human Rights, 39.
Universalizing Human Rights 383
included explicit provisions of universality and its name might in fact have
remained the International Declaration rather than the Universal
Declaration of Human Rights. The Soviet bloc, or even certain Western
delegations, would in any event have pressed some of these issues, but the
critical votes were delivered by small states subsequently recognized as
the "Third World." Their contributions are among the features of the
UDHR that permit people from all sorts of backgrounds to embrace the
Declaration "out of their own normative heartland.”117
In the history of the modern state, the drafting and ratifying of treaties
has rarely been subject to public scrutiny, in any country. Approval
processes for the UDHR and human rights treaties over the second half of
the twentieth century have generally conformed to the historical practice.
At the end of the twentieth century, and into the twenty-first, new
sensibilities about "democratic deficits" are challenging that established
practice, and it may change someday.118 This chapter is not intended to
defend a reification of the Declaration approved in 1948. Like most
foundational texts of its kind, the Universal Declaration is a living
document, subject to interpretation and elaboration. As new understandings
of human rights problems and challenges develop, the need may arise to
amend or supplement the document that for several decades has
benchmarked the practice of good governance.
117
Morsink, Universal, 96.
118
That prospect, however, should give some pause to human rights
activists, for it was concern about just such a democratic deficit–expressed in the
language of the day as "states rights"–that fed the most serious domestic challenge
to US participation in the international human rights regime. The proliferation of
foreign agreements during the Roosevelt administrations inspired Senator John
Bricker and his cohorts to propose a constitutional amendment to prohibit a
president from entering treaties and agreements without express consent
from the federated states. Bricker's initiative failed by only one vote in the US
Senate. Conceding defeat after a decade of ardent campaigning, American Bar
Association President Frank Holman wrote to console Bricker: "[a]lthough a
constitutional amendment was not achieved, the fight for it exposed and stopped the
attempt by Mrs. Roosevelt and her do-gooders to superimpose upon our own Bill of
Rights so called 'human rights' covenants, pacts, conventions and treaties." Davies,
Defender, 191.
384 Chapter Twelve
The birth of the UDHR was nothing less than a political event, and its
legitimacy as a standard for good behavior by states derives not so much
from its intellectual lineage as from the political recognition of its birth.
As the more obscure parts of the UDHR history are reclaimed, perhaps
disputes over parentage can be set aside. Whatever the future holds for the
elaboration of human rights standards, the UDHR is a legacy that all of us
can rightfully claim.
Bibliography
Agi, Marc and Cassin, Rene. Fantassin des Droits de l'Homme. Paris:
Plon, 1979.
An-Na'im, Abdullahi Ahmed, ed. Human Rights in Cross-Cultural
Perspectives: A Quest for Consensus. Philadelphia: University of
Pennsylvania Press, 1991.
Burgers, J. Herman. “The Road to San Francisco.” Human Rights
Quarterly 14 (1992).
Cantor, Norman F. Western Civilization: Its Genesis and Destiny.
Gleenview: Scott & Foresman, 1969.
Cox, Robert W. “Gramsci, Hegemony and International Relations: An
Essay in Method.” Millennium. Journal of International Studies 2
(1983).
Davies, Richard. Defender of the Old Guard: John Bricker and American
Politics. Columbus: Ohio State University Press, 1993.
Donnelly, Jack. "International Human Rights: A Regime Analysis."
International Organization 40 (1986).
119
U. N. GAOR, 180th Plenary Meeting, 922.
Universalizing Human Rights 385
1
U.N. Charter, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153
(entered into force 24 Oct. 1945).
2
Ibid. art. 1.
3
Ibid. art. 55.
4
Ibid. art. 56. It would not be wrong to claim that despite the wording of Article 1
of the UN Charter, the member states have treated human rights as inferior to the
goals of maintaining peace and security. The recognition of human rights as a goal
and normative framework for international affairs gained a momentum later and
largely as a result of the dedicated work of individuals and non-state actors.
5
Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A
Forging a Global Culture of Human Rights 389
(III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, U.N. Doc. A/810 (1948).
6
International Covenant on Economic, Social and Cultural Rights, adopted 19 Dec.
1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc.
A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976); International
Covenant on Civil and Political Rights, adopted 19 Dec. 1966, G.A. Res. 2200
(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999
U.N.T.S. 171 (entered into force 23 Mar. 1976).
7
Robert F. Drinan, The Mobilization of Shame: A World View of Human Rights
(New Heaven: Yale University Press, 2001); Richard Falk, Human Rights
Horizons: The Pursuit of Justice in a Globalizing World (New York & London:
Routledge, 2000); David P. Forsythe, Human Rights in International Relations
(New York: Cambridge University Press, 2000); David P. Forsythe, American
Exceptionalism and Global Human Rights (Lincoln: University of Nebraska Press,
1998); Adamantia Pollis & Peter Schwab eds., Human Rights: New Perspectives,
New Realities (Boulder & London: Lynne Rienner Publishers, 2000); Tim Dunne
and Nicholas J. Wheeler eds., Human Rights in Global Politics (Cambridge: CUP,
1999); Jack Donnelly, International Human Rights (Boulder: Westview Press,
1998); Tony Evans, “Introduction: Power, Hegemony and the Universalization of
Human Rights,” in Human Rights Fifty Years On: A Reappraisal, ed. Tony Evans
(Manchester: MUP, 1998); David Gillies, Between Principle and Practice: Human
Rights in North-South Relations (Montreal & Kingston: McGill-Queen’s
University Press, 1996); Michael H. Hunt, Ideology and the U.S. Foreign Policy
(New Heaven: Yale University Press, 2009).
390 Chapter Thirteen
This chapter contests the argument that the International Bill of Rights
is grounded in Western culture but carries the debate beyond the well-
known arguments of the universalism-relativism controversy. Employing
historicism, it shows that: (1) the Universal Declaration and the
subsequent international human rights treaties have been issued as
responses to violations and constructed through negotiations by state
representatives who had different cultural backgrounds and philosophical
dispositions; (2) as critics of human rights violations, which have been
allowed within all prevailing cultures, the international human rights
instruments attempt to change local cultures and replace them, at least
partially, with one that upholds equality and human dignity; and (3)
although the Universal Declaration ushered in a new international culture,
this new cosmopolitan subculture is still evolving and struggling against
other dominant cultures--national and international.
8
Norberto Bobbio, The Age of Rights (Cambridge: Polity Press, 1996), xi.
Forging a Global Culture of Human Rights 391
9
The American Anthropological Association (AAA) argued against the possibility
of universal human rights and warned the drafting UN Committee about the futility
of its efforts. For a brief review of challengers who have considered the notion of
human rights or the Universal Declaration as based on Western culture see the
Introduction to Johannes Morsink, The Universal Declaration of Human Rights:
Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press,
1999). It should be noted that the AAA has later changed its position in favor of
universalism; its 1999 declaration defines the Universal Declaration of Human
Rights and related international law as the baseline of human rights, which are
evolving. See AAA, “Declaration on Anthropology and Human Rights.”
Committee for Human Rights, American Anthropological Association. June 1999.
http://www.aaanet.org/stmts/humanrts.htm (accessed September 10, 2011).
10
Micheline R. Ishay, The History of Human Rights: From Ancient Times to the
Globalization Era (Berkeley: University of California Press, 2004); Paul Gordon
Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia:
University of Pennsylvania Press 1998); Micheline R. Ishay ed., Human Rights
Reader: Major Political Essays, Speeches, and Documents from the Bible to the
Present (New York & London: Routledge, 1997); Abdullahi An-Na’im ed.,
Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia:
University of Pennsylvania Press, 1992).
392 Chapter Thirteen
comprise a far shorter list than that of the Universal Declaration, and they
treated some “humans” as not full adults who can claim and exercise these
rights. John Locke’s conceptualization was not only sexist and classist, but
also justified slavery:
It is, perhaps, hardly necessary to say that this doctrine is meant to apply
only to human beings in the maturity of their faculties. We are not
speaking of children, or of young persons below the age which the law
may fix as that of manhood or womanhood. Those who are still in a state
to require being taken care of by others, must be protected against their
own actions as well as against external injury. For the same reason, we
may leave out of consideration those backward states of society in which
the race itself may be considered as in its nonage.12
The Medieval Church, which revived the Stoic notion of natural rights,
was not only notorious for repressing religious freedom but justified
hierarchal systems and various forms of discrimination. St. Thomas
Aquinas wondered why God would even create a “misbegotten or
defective” creature like woman in the first production of things,13 and
others questioned if women had souls (if they were fully human). In the
early modern era, when Western imperialist expansion was on the rise,
such “soul searching” was extended to the aboriginals.14 Colonialism, with
11
John Locke, The Second Treatise of Government (New York: The Liberal Arts
Press, 1952), 47-48 & 85.
12
John Stuart Mill, On Liberty (London: Penguin Books, 1975), 69.
13
Thomas Aquinas, Summa Theologicae, Question XCII, art. 1, Whether Woman
Should Have Been Made in the First Production of Things, available at
http://www.newadvent.org/summa/109201.htm.
14
See Lauren, The Evolution, 1-36. On the continuation of the dehumanization of
“the other” in our age of human rights (e.g., the Serbian treatment of Muslims in
Forging a Global Culture of Human Rights 393
The practice of human rights in the West lagged far behind the theory,
and all forms of abuse, ranging from torture to starvation, were common,
even during the “Age of Enlightenment.” The subsequent centuries
witnessed a gradual expansion of some rights to some members of nations,
but discrimination on the basis of sex, race, ethnicity, and sexuality largely
prevailed. Even in the mid-twentieth century, when the drafting of the
Universal Declaration was in process, all participating states could be
charged with state-sanctioned violation of human rights, which were to be
included in the Universal Declaration. The Western philosophy and
history, when examined critically, provides no support for the argument
that the member states of the UN were trying to produce a document that
would be modeled after the Western culture and practices. Moreover, the
entire project was largely facilitated by the atrocities of the Nazi Germany,
a Western society; it can be viewed as an attempt to prevent the similar
atrocities in the future, as well as other violations.15 Even Louis Henkin, a
famous student of international human rights law who sees the origin of
human rights in Western philosophy, takes an exception:
the 1990s) and its philosophical implications, see Richard Rorty, “Human Rights,
Rationality, and Sentimentality,” in On Human Rights, eds. Stephen Shute and
Susan Hurley (New York, Basic Books, 1993).
15
John P. Humphrey, Human Rights and the United Nations: A Great Adventure
(Dobbs Ferry: Transnational Publishers, 1984); Morsink, The Universal Declaration,
ch. 1. Susan Waltz accepts the Nazi Holocaust played a role but, by pointing out
that there were various episodes of international human rights discussions that
predated the Second World War, she objects to the notion that the Universal
Declaration was a response to the Holocaust and calls this prevailing notion “a
myth.” Susan Waltz, “Reclaiming and Rebuilding the History of the Universal
Declaration of Human Rights,” Third World Quarterly 23 (2002): 437- 440.
16
Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990),
27-18.
394 Chapter Thirteen
It is true that a good portion of the world population was still subject to
colonial rule and had no voice in these debates, but the presence of a
significant number of non-Western states, whose representatives made
their views known,22 should suffice to discredit at least the claims about
17
The eighteen-member Commission would include five Great Powers (USA,
USSR, UK, France and China) and thirteen other UN members that would rotate at
three-year intervals. The first Commission, which was established in 1946,
included delegates from Australia, Belgium, Byelorussia, Chile, China, Egypt,
France, India, Iran, Lebanon, Panama, Philippines, Ukraine, USSR, UK, USA,
Uruguay, and Yugoslavia. Mary Ann Glendon, A World Made New (New York:
Random House, 2001), 32.
18
The third influential person was René Cassin from France. The core of the
drafting group included also Eleanor Roosevelt (the chair of the Committee), John
Humphrey (the appointee from the UN Secretariat), and the delegates of Australia,
Chile, UK and USSR.
19
Glendon, A World Made New, 17; Morsink, The Universal Declaration;
Humphrey, Human Rights.
20
Susan Waltz, “Universalizing Human Rights: The Role of Small States in the
Construction of Universal Declaration of Human Rights,” Human Rights Quarterly
23 (2001): 44, 47. Reprinted in this volume.
21
Glendon, A World Made New, 143-144.
22
The fifty-eight members of the UN at the time were Afghanistan, Argentina,
Australia, Belgium, Bolivia, Brazil, Burma, Byelorussia, Canada, Chile, China,
Colombia, Costa Rica, Cuba, Czechoslovakia, Denmark, Dominican Republic,
Forging a Global Culture of Human Rights 395
In fact, when the draft Universal Declaration was debated at the Third
Committee, some delegates expressed interest in specifying the spiritual or
theoretical foundations of the rights, but others, including P.C. Chang
(China), Mrs. Lakshmi Menon (India), and Salomon Grumbach (France),
argued against such an effort. It is reported that Grumbach “reminded the
group of Jacques Maritain’s conclusion (in the UNESCO philosophers’
committee) that the nations should and could reach practical agreement on
basic principles of human rights without achieving a consensus on their
foundations.”28
27
Bobbio, The Age of Rights; T. H. Marshall, Class, Citizenship and Social
Development (New York: Doubleday, 1964); Seymour M. Lipset, “Some Social
Requisites of Democracy: Economic Development and Political Legitimacy,”
American Political Science Review 53 (1959): 69.
28
Glendon, A World Made New, 147.
29
Ibid., 165.
Forging a Global Culture of Human Rights 397
Thus, the advocacy of each additional right has meant acknowledging new
offenses, demanding cultural changes, and taking steps toward transforming
societies. For the advocate of human rights, all values, norms, and
practices that sanction or reinforce discrimination and violation of human
dignity, become targets of criticism and change.
30
Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 2000), 5.
31
I will address the selective treatment issue in the next section of the chapter.
However, I would like to briefly address a neglected, or deliberately ignored,
398 Chapter Thirteen
32
Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton: PUP, 1999).
400 Chapter Thirteen
33
Kemal Karpat, “The Ottoman Rule in Europe From the Perspective of 1994,” in
Turkey Between East and West: New Challenges for a Rising Regional Power, eds.
Vojtech Mastny and Craig Nation (Boulder: Westview Press, 1996), 1; Benjamin
Braude and Bernard Lewis, eds., Christians and Jews in the Ottoman Empire
(Teaneck: Holmes & Meier Publishers, 1982); Roderic Davison, Reform in the
Ottoman Empire, 1856-1876 (Princeton: PUP, 1973); Arnold Toynbee and
Kenneth P. Kirkwood, Turkey (London: Ernest Benn, 1926).
34
Reeva Spector Simon and Eleanor H. Tejirian, Creation of Iraq, 1914-1921
(New York: Columbia University Press, 2004).
Forging a Global Culture of Human Rights 401
35
The current treatment of globalization as an economic phenomenon is both
narrow and a-historical. Globalization entails the development of common norms,
as well as integrated markets, and it has been an ongoing process that peaked at
certain junctures as a result of technological advancements in transportation and
communication, as well as socio-political developments such as colonialism or the
end of the Cold War. See Zehra F. Kabasakal Arat, “Human Rights and
Globalization: Is the Shrinking World Expanding Rights?” Human Rights &
Human Welfare 5 (2005): 137.
36
Evans, “Introduction”; R.W. Cox, “The Crisis in World Order and the Challenge
of International Organization,” Cooperation & Conflict 29 (1994): 99.
37
Michael W. Doyle and Anne-Marie Gardner, “Introduction: Human Rights and
International Order,” in The Globalization of Human Rights, eds. Jean-Marc
Coicaud, et al., (Tokyo: United Nations University Press, 2003), 1 and 9.
38
Donnelly, International Human Rights.
402 Chapter Thirteen
a. Positive versus negative rights and the tradeoff between liberty and
equality
39
Vienna Declaration and Programme of Action, U.N. Doc. A/CONF. 157/23, 12
July 1993.
40
Bernard Mayo, “What are Human Rights?,” in Political Theory and the Rights of
Man, ed. D.D. Raphael (Bloomington: University of Indiana Press, 1967), 68;
Maurice Cranston, “Human Rights, Real and Supposed: A Reply to Professor
Raphael,” in Political Theory, ed. D.D. Raphael, 43, 95; R.S. Downie, “Social
Equality,” in The Philosophy of Human Rights: International Perspectives, ed.
A.S. Rosenbaum (Westport: Greenwood Press, 1980), 127.
Forging a Global Culture of Human Rights 403
Tony Evans, who aptly insists that the assessment of human rights
should involve the analysis of interests and power, points out that the
United States not only formulated “an American conception of rights,”
which is based on ideas of individualism, freedom and laissez-faire
economics, but also used human rights as a justification of projecting this
particular conception of rights across the globe to assert its hegemony and
gain access to world markets.44 He notes that the concerns over preserving
its hegemonic status and self-interest led the United States to take a status
41
D.D. Raphael, “The Rights of Man and the Rights of the Citizens,” in Political
Theory, ed. D.D. Raphael, 101; D.D. Raphael, “Human Rights, Old and New,” in
Political Theory, ed. D.D. Raphael, 54; Peter Schneider, “Social Rights and the
Concept of Human Rights,” in Political Theory, ed. D.D. Raphael, 81; Henry
Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton:
PUP, 1980); John Charvet, “A Critique of Human Rights,” in Human Rights:
Nomos XXIII, eds. J.R. Pennock and J.W. Chapman (New York: NYUP, 1981),
31; Frithjof Bergmann, “Two Critiques of the Traditional Theory of Human
Rights,” in Human Rights, eds. J. R. Pennock & J.W. Chapman, 52; Susan Moller
Okin, Is Multiculturalism Bad for Women? (Princeton: PUP, 1999); Michael C.
MacMillan, “Social Versus Political Rights,” Canadian Journal of Political
Science 283 (1986): 19; Ruth Gavison, “On the Relationship between Civil and
Political Rights, and Social and Economic Rights,” in The Globalization, eds.
Jean-Marc Coicaud, et. al., 23.
42
Philip Alston, “The Importance of the Inter-play between Economic, Social and
Cultural Rights, and Civil and Political Rights,” in Human Rights at the Dawn of
the 21st Century (Strasburg: Council of Europe, 1993), 59 and 61.
43
Zehra F. Kabasakal Arat, “Human Rights and Democracy: Expanding or
Contracting,” Polity 32 (1999): 119.
44
Evans, “Introduction,” 6-7.
404 Chapter Thirteen
Unlike the United States, other Western states do not flatly reject social
and economic rights. Most Western European countries have developed
comprehensive welfare programs that are partially based on a
philosophical acceptance of social and economic rights. Moreover, the
European Human Rights regime includes a Social Charter that recognizes
a set of social and economic rights, along with the European Convention
for the Protection of Human Rights and Fundamental Freedoms, which
embodies mainly civil and political rights. Nevertheless, the separation of
rights into two different contracts and the time lapse between the
Convention, which was opened for signatures by the Council of Europe in
1950, and the Social Charter, started to be signed in 1961, illustrates the
differential treatment of the two sets of rights by the European states.
Furthermore, including a procedure of filing complaints about the
violation of the provisions of the Convention and creating the European
Court of Human Rights to enforce the implementation of the Convention,
the Convention enjoys the support of a judicial system that the Social
Charter lacks.
Civil and political rights or social and economic rights have been also
subject to preferential treatment by those who considered liberty and
equality as essentially irreconcilable values that can be achieved only at
each other’s expense. By associating civil and political rights with liberty,
and social and economic rights with equality, the inevitability of a tradeoff
between the two sets of rights is defended both by the followers of liberal
schools and those who try to justify the need for authoritarian rule, at least
during the period of transition to a society of equals. These two positions
were demonstrated clearly by the super powers during the Cold War years,
both in their domestic and foreign policy formulations. Now, in the post-
Cold War era, the United States, as the only super power, has been able to
exercise an unusual influence and help neo-liberalism to triumph in
international finance and politics. Thus, social and economic rights will
continue to be placed on the back burner. Nevertheless, the close
45
Ibid., 7.
Forging a Global Culture of Human Rights 405
Subject to criticisms about the state repression of civil liberties and use
of corporal punishment, the authoritarian leaders of some East Asian
countries have presented a certain conceptualization of Asian values in
their defense. They argue that Asian values are incompatible with some
aspects of the International Bill of Rights, which were shaped by Western
values; and as the leaders of Asian societies that favor community welfare
and order over the individual’s rights, they would emphasize economic
development and political stability.47
46
See, e.g., Gavison, “On the Relationship”; Amartya Sen, Development as
Freedom (Oxford: OUP, 1999); Amartya Sen, Inequality Reexamined (Cambridge:
Harvard University Press, 1992); Susan Moller Okin, “Liberty and Welfare: Some
Issues in Human Rights Theory,” in Human Rights, eds. J.R. Pennock and J.W.
Chapman, 230. United Nations Development Programme, Human Development
Report (2002); United Nations Development Programme, Human Development
Report (2000).
47
Lynda S. Bell, et al. eds., Negotiating Culture and Human Rights (New York:
Columbia University Press, 2001); Joanne R. Bauer and Daniel A. Bell eds., The
East Asian Challenge for Human Rights (Cambridge: CUP, 1999); William Korey,
NGOs and the Universal Declaration of Human Rights: “A Curious Grapevine”,
(New York: Palgrave: 1998).
48
Morton E. Winston, “Introduction: Understanding Human Rights,” in The
Philosophy of Human Rights, ed. Morton E. Winston (Belmont: Wadsworth, 1989), 1
and 15.
406 Chapter Thirteen
49
Ronald Dworkin, “Taking Rights Seriously,” in The Philosophy of Human
Rights, ed. Winston, 104.
50
Ibid., 105.
51
While government officials in Singapore, Malaysia, China, and Indonesia tend to
adhere to the cultural relativist position, the leaders of Taiwan subscribe to
universalism. See e.g., Lee Teng-hui, “Chinese Culture and Political Renewal,” in
Consolidating the Third Wave Democracies: Regional Challenges, eds. Larry
Diamond, et. al. (Baltimore: The Johns Hopkins University Press, 1997), 192.
52
Bell et al., Negotiating Culture; Bauer and Bell, eds., The East Asian Challenge;
Diamond, et al., eds., Consolidating, ch. 2 and 3.
53
Tatsuo Inoue, “Human Rights and Asian Values,” in The Globalization, Coicaud,
et al., eds. For a discussion of individualism within Islamic religion which is also
often treated as a communitarian tradition that rejects individualism see Zehra F.
Kabasakal Arat, “Women’s Rights in Islam: Revisiting Qur’anic Rights,” in Human
Rights: New Perspectives, eds. Pollis and Schwab, 69.
Forging a Global Culture of Human Rights 407
54
For a methodological analysis of this document and its comparison to the UN
approach, see Ann Elizabeth Mayer, “Universal Versus Islamic Human Rights: A
Clash of Cultures or a Clash with a Construct?,” Michigan Journal of International
Law 15 (1994): 307; Ann Elizabeth Mayer, Islam and Human Rights: Tradition
and Politics (Boulder: Westview Press, 1999).
55
Cairo Declaration of Human Rights, adopted 5 Aug. 1990, Islamic Conference,
19th sess., art. 6.
56
Ibid.
57
Ibid.
58
Ibid. art. 12.
59
Ibid. art. 25.
408 Chapter Thirteen
60
Convention on the Elimination of All Forms of Discrimination Against Women,
adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46,
U.N. Doc. A/34/46 (1980) (entered into force 3 Sept. 1981), 1249 U.N.T.S. 13;
Zehra F. Kabasakal Arat, “Promoting Women’s Rights against Patriarchal Cultural
Claims: The Women’s Convention and Reservations by Muslim States,” in Global
Human Rights and Diversity: Area Studies Revisited, eds. David Forsythe and
Patrice McMahon (Lincoln: Nebraska University Press, 2003), 231.
61
The diversity in interpretation and the different applications of religious beliefs
to human rights surfaced when the draft Declaration was debated by the Third
Committee of the UN General Assembly in 1948. It should be noted that
representatives from different Muslim countries took positions that were different
from each other’s on the articles that maintained the equality of sexes in family
relations and the freedom to change one’s religion. Glendon, A World Made New,
153-55, 168; Waltz, Universal Human Rights, 813-819.
62
Sheikh Rached Al-Ghannouchi, “Panel Discussion,” in Islam and Justice:
Debating the Future of Human Rights in the Middle East and North Africa, eds.
Lawyers Committee for Human Rights (US) (New York: 1997); Abdullahi An-
Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and
International Law (Syracuse: SUP, 1990); Mahmud Muhammed Taha, The Second
Message of Islam (Syracuse: SUP, 1987); Amina Wadud, Qur'an and Woman:
Rereading the Sacred Text from a Woman’s Perspective (Oxford: OUP, 1999);
Anne Sofie Roald, “Feminist Reinterpretation of Islamic Sources: Muslim
Feminist Theology in the Light of the Christian Tradition of Feminist Thought,” in
Women and Islamization: Contemporary Dimensions of Discourse on Gender
Relations, eds. Karin Ask and Marit Tjomsland (Oxford: Berg, 1998); Barbara
Stowasser, “Gender Issues and Contemporary Quran Interpretation,” in Islam,
Gender, and Social Change, eds. Yvonne Yazbeck Haddad and John Esposito
(Oxford: OUP, 1998), 30; Nimat Hafez Barazangi, “Muslim Women’s Islamic
Higher Learning as a Human Right,” in Muslim Women and the Politics of
Participation: Implementing the Beijing Platform, eds. Mahnaz Afkhami and Erika
Friedle (Syracuse: SUP, 1997), 43; Reza Afshari, “An Essay on Islamic Cultural
Relativism in the Discourse of Human Rights,” Human Rights Quarterly 16
(1994), 235; Asghar Ali Engineer, The Rights of Women in Islam (New Delhi:
Sterling Publishers, 1992).
Forging a Global Culture of Human Rights 409
63
Bobbio, The Age of Rights; Marshall, Class; Lipset, “Some Social Requisites”.
64
Falk, Human Rights Horizons, 62-63.
65
Convention concerning the Protection and Integration of Indigenous and Other
Tribal and Semi-Tribal Populations in Independent Countries (ILO No. 107),
adopted 26 June 1957 (entered into force 6 February 1959). This convention was
revised in 1989 by the Convention concerning Indigenous and Tribal Peoples in
Independent Countries (ILO No. 169), adopted 27 June 1989, (entered into force 5
September 1991).
66
Falk, Human Rights Horizons.
410 Chapter Thirteen
67
UN Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc. No.
E/CN.4/Sub.2/1994/2/Add.1, 20 Apr. 1994.
68
Russell Barsh, “The Fortunate Unmeasurability of Human Rights” (paper
presented at the Conference Towards an Indicators System in Human Rights,
International Institute for the Sociology of Law, Oñati, Spain, September 16-17,
1999).
69
For a variety of arguments on this last point, see Moller, Is Multiculturalism Bad
for Women?
Forging a Global Culture of Human Rights 411
Conclusion
Despite the rhetorical triumph of human rights during the last sixty
years, people’s ability to enjoy them has been disheartening, and the
situation may change for the worse. The current trend of corporate-led
globalization, concentration of power and wealth,71 and the hegemony of
70
Karen Engle, “From Skepticism to Embrace: Human Rights and the American
Anthropological Association from 1947-1999,” Human Rights Quarterly 23
(2001): 536.
71
United Nations Development Programme, Human Development Report 6 (2000)
reports that “the distance between the incomes of the richest and poorest country
412 Chapter Thirteen
the United States, which has constantly refused to recognize social and
economic rights, are likely to increase the number of people struggling
against the misery of poverty and for their dignity. After 11 September
2001, the US government has shown that it has been willing to undermine
civil and political rights as well, in the name of security and war on
terrorism.
Moreover, since human rights are about power (they reject discrimination,
promote equal treatment and involve capacity building), and power is
distributed and maintained by cultural traditions, in each society, those
who are in privileged positions will continue to resist the use of human
rights treaties by their disenfranchised and marginalized citizens. The
noble notions of cultural autonomy and national sovereignty can be also
used as convenient tools of manipulation. In other words, while the
international human rights culture attempts to influence and change the
state and individual behavior in favor of recognizing and respecting
human rights, the states (more accurately, people in power), which
approach the international relations from their own cultural perspectives,
attempt to curb the content and reach of universal human rights.72
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Forging a Global Culture of Human Rights 417
MODE D’ASSUJETTISSEMENT:
CHARLES MALIK, CARLOS ROMULO
AND THE EMERGENCE OF THE UNITED
NATIONS HUMAN RIGHTS REGIME
GLENN MITOMA
1
Alfred Sauvy, “The Third Worldist Movement,” Current History 98 (1999): 360.
Sauvey comments appear in their original French in Alfred Sauvy, “Trois Mondes,
Une Planète,” L’Observateur, August 14, 1952, 14.
2
See, for example Susan Waltz, “Reclaiming and Rebuilding the History of the
Universal Declaration of Human Rights,” Third World Quarterly 23 (2002);
Upendra Baxi, The Future of Human Rights (Oxford: Oxford University Press,
2002), and Mark Goodale, Surrendering to Utopia: An Anthropology of Human
Rights (Stanford: Stanford University Press, 2009).
Mode d’assujetissement 421
If this is true, and there are reasons to think that it may be, then the
project of understanding human rights from a Third World perspective
must include an excavation of the historical processes by which
individuals in the Third World have constituted themselves as ethical
subjects under the authority of human rights. The methodology for such
an excavation would be necessarily biographical, approaching the history
of “how we constitute ourselves as moral agents” through a close reading
of the specific lives of actually existing historical figures. I return briefly
to some of the methodological assumptions and implications of this
approach in the conclusion, but undoubtedly part of what this focus on
human rights as a mode d’assujettissement means is an analytic frame
open not only to the impersonal functions of structures and the
determinative power of discourse, but also to the intervention of human
actors.4
3
Michel Foucault, The Use of Pleasure: The History of Sexuality Volume 2, trans.
Robert Hurley (New York: Vintage Books, 1990), 27; Michel Foucault, “On the
Genealogy of Ethics: Overview of Work in Progress” in The Foucault Reader, ed.
Paul Rabinow (New York: Pantheon Books, 1984), 351.
4
This approach is particularly important, I think, for a genealogy from a Third
World perspective because too much has been made of the “Muslim” or “Asian” or
“African” perspective on human rights as if there were no internal diversity or
dissent, or as if the “Asian” or “African” perspective emerged like mangroves from
the tropical saline swamps rather than through the concrete, lived, historical
experiences of particular human beings.
422 Chapter Fourteen
These two were among the most prominent Asian advocates for a robust
UN human rights program, and their work was historically influential and
conceptually significant to the development of human rights from a Third
World perspective. This work, however, must be understood in relation to
an educational experience in which particular aspects of their subjectivities
emerged in relation to a set of material and intellectual practices rooted in
different colonial circumstances. Thus while their educations cannot and
should not be understood as indoctrination—whether into a human rights
ideology or any other—the negotiated development that took place under
American sponsorship was the essential component in their subjectification
to human rights.
5
Waltz, “Reclaiming and Rebuilding”, passim; Zehra F. Kabasakal Arat, “Forging
a Global Culture of Human Rights: Origins and Prospects of the International Bill
of Rights,” Human Rights Quarterly 28 (2006): passim. (Included in this collection
as Chapter Thirteen).
Mode d’assujetissement 423
This work began as early as the 1945 founding of the UN, where Malik
and Romulo, along with a coalition of other “small powers” delegates and
US civil society organizations, worked to ensure the UN Charter contained
a broad mandate to protect and promote human rights internationally.
Charles Malik, who only weeks before had been teaching philosophy at
the American University of Beirut, arrived at the San Francisco Conference
convinced of the necessity of the international protection, at the very
minimum, of universal rights to freedom of conscience and thought.
Delivering his country’s opening address, he called for the “military and
political aspects” of the new international organization to be balanced by a
robust commitment to “international justice” as a condition of world
peace. Once the work of drafting the Charter began, Malik helped to
ensure such a balance by supporting both the inclusion of the promotion of
“human rights and fundamental freedoms” as an express purpose of the
UN under Article 1, and the creation of a Human Rights Commission—the
only such commission specifically authorized by the Charter—under the
auspices of the Economic and Social Council. For Malik and many other
delegates, particularly a number from Latin America and the British
Commonwealth, these amendments were essential for the pursuit of a
“dynamic and positive conception” of peace.6
6
The United Nations Conference on International Organization, San Francisco,
California, April 25 to June 26, 1945, Selected Documents Vol. 1 [hereafter
UNCIO], (United States Government Printing Office, Washington, 1946), 251-53.
424 Chapter Fourteen
7
Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and
the Search for Postwar Security (Chapel Hill: University of North Carolina Press,
1990), 58-59; Glenn Mitoma, “Civil Society and International Human Rights: The
Commission to Study the Organization of Peace and the Origins of the UN Human
Rights Regime,” Human Rights Quarterly 30 (2008): 607-30.
8
UNCIO, Vol. 1, 292-293; Vol. 8, 138; Carlos Romulo to Sergio Osmena, 14 June
1945, Box 1.1, Folder 15, Papers of Carlos P. Romulo, Manuscript Collection,
University of the Philippines, Diliman, Manila.
Mode d’assujetissement 425
Romulo and other anti-colonial advocates to align their cause with the
Allied war aims and the emerging postwar US ascendancy. It also ensured
that the effort to specify and institutionalize the general commitments to
human rights in the UN Charter would be divided not only along the
border between First and Second Worlds, but between First and Third
Worlds as well. This latter fault line became apparent in one the first
attempts to define and protect a specific set of human rights, an effort
Romulo initiated. During the first session of the UN General Assembly,
Romulo proposed a conference with the aim of drafting an international
convention on freedom of information. Arguing that “the voice that is
raised in the name of freedom [i.e. colonial liberation] must be free,”
Romulo pressed for the international protection of free speech and the
“unimpeded transmission” of news and information as a way of ensuring
the international visibility of colonial peoples, as well as a more open
global public sphere.9
9
Carlos Romulo, “Human Rights as a Condition of Peace in the Far East,” Annals
of the American Academy of Political and Social Sciences 243 (1946): 9-10;
United Nations, Plenary Meetings of the General Assembly, Verbatim Record, 23
October – 16 December 1946 (Flushing Meadow: United Nations, 1948), 820-21;
United Nations Document A/C.3/76 (1946).
426 Chapter Fourteen
10
Ibid.; Kenneth Cmiel, “Human Rights, Freedom of Information, and the Origins
of Third-World Solidarity,” in Truth Claims: Representation and Human Rights,
eds. Mark Bradley and Patrice Petro (Piscataway: Rutgers University Press, 2002),
108.
11
United Nations Document E/CN.4/SR.1 (1947); John P. Humphrey, Human
Rights and The United Nations: A Great Adventure (Dobbs Ferry: Transnational
Publishers, 1984), 23; Johannes Morsink, The Universal Declaration of Human
Rights: Origins, Drafting and Intent (Philadelphia: University of Pennsylvania
Press, 1999), 30.
Mode d’assujetissement 427
12
United Nations Document E/CN.4/SR.37 (1948); Mary Ann Glendon, A World
Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights
(New York: Random House, 2001), 117-18; Morsink, The Universal Declaration,
281, 294-95; United Nations Document E/CN.4/SR.42 (1948); Charles Malik, The
Challenge of Human Rights: Charles Malik and the Universal Declaration, ed.
Habib C. Malik (Oxford: The Charles Malik Foundation, 2000), 149 and 223-25.
428 Chapter Fourteen
13
United Nations Document E/CN.4/AC.1/SR.38 (1948); United Nations Document
E/CN.4/SR.14 (1947); Morsink, The Universal Declaration, 123; Malik, The
Challenge of Human Rights, 95.
Mode d’assujetissement 429
Mode d’Assujettissement
This aggressive advocacy on behalf of human rights by Charles Malik
and Carlos Romulo was rooted not only in the postwar political dynamic
that saw small and medium powers pursue international law as a way of
constraining the great powers, but also in the biographical experiences
they brought to the UN. Indeed, both men regarded their human rights
efforts as personal crusades, and each was given wide latitude by their
respective governments in determining and pursuing policies in this area.
Of course, this was not true of the majority of their diplomatic work, and it
was certainly not typical of many individuals involved in the construction
of the UN human rights regime. Nevertheless, these exceptional cases
provide an opportunity to analyze what, given the rapid and expanding
diffusion of human rights discourse over the past six decades, is
undoubtedly a broader phenomenon: the recognition, on the part of a
14
United Nations Document E/CN.4/AC.2/SR.9 (1947); United Nations Document
E/CN.4/SR.50 (1948); Malik, The Challenge of Human Rights, 108; Morsink, The
Universal Declaration, 297.
15
Morsink, The Universal Declaration, 24; Glendon, A World Made New, 153-55;
Vratislav Pechota, “The Development of the Covenant on Civil and Political
Rights,” in The International Bill of Rights: The Covenant on Civil and Political
Rights, ed. Louis Henkin (New York: Columbia University Press, 1981), 48-49.
430 Chapter Fourteen
diverse range of individuals, of the self in the human rights subject. Thus,
it is of critical import to examine the way in which these two individuals
came to inhabit this political-ethical discourse, and to consider the ways in
which it relates to their development as particular subjects.
Of the same generation, Romulo was born in 1899 and Malik in 1906,
both men shared a similar background and set of experiences despite being
from the opposite ends of Asia. Both were eldest sons of Christian,
provincial, agrarian families of some local prominence. Romulo’s family
was the more prosperous, controlling a number of tenant farms in the rice
growing area of central Luzon, where they exercised a degree of political
influence—his father eventually became governor of Tarlac province—
that granted the young Carlos a variety of privileges. Malik’s family was
professional, but economically vulnerable. His father, Habib Malik, was a
physician, but not a particularly successful one who had to sell much of
the family land by the time Malik entered college. Habib Malik was,
however, convinced of the importance of modern education and made sure
all of his children—two daughters and three sons—went to university. For
their part, both Malik and Romulo were precocious and gifted students,
and most importantly, both pursued educations under the auspices of
colonial or para-colonial American systems—Romulo in the broad system
of public education established in the wake of the US annexation of the
Philippines, and Malik in the more limited, although older, system of
Protestant missionary schools in the Near East.16
Both systems taught the two boys to read, write and speak English at
an early age, and both gave them frequent access and exposure to
sympathetic and earnest Americans, who, for the most part, were
genuinely committed to the education and welfare of their charges. But
there are a number of critical differences. The system into which Romulo
entered in 1906 had been established in 1901 and was part of a larger
effort on the part of the US colonial administration first to complete
“pacification” of rebel areas, and later to transform Filipino society root
and branch. As such, the system was far broader, enrolling some 610,493
students during the 1910-11 school year, and more integrated with the
other structures of the colonial administration. By contrast, a 1924 report
listed the number of students in all the schools administered by the Syrian
16
Carlos Romulo, I Walked with Heroes (New York: Holt, Rinehart, Winston,
1961), 12-13, 70-71; Diary [of Habib Malik], 7 July 1914, Folder 5, Box 278,
Papers of Charles H. Malik, Manuscript Division, Library of Congress,
Washington, DC [hereafter: Malik Papers].
Mode d’assujetissement 431
17
About Filipino numbers see Glenn Anthony May, Social Engineering in the
Philippines (Westport, Greenwood Press, 1980), 121; For Lebanese numbers see
“Institutions Under Care of the Syria Mission of the Board of the Foreign Mission
of the Presbyterian Church in the U.S.A.” 30 January 1924, Box 8, Folder 11, RG
115, United Presbyterian Church in the U.S.A. Syria Mission, Records, 1808-1967
(Bulk 1823-1959), Presbyterian Historical Society, Philadelphia, PA.
18
May, Social Engineering,104; Benjamin Fortna, “Education and Autobiography
at the End of the Ottoman Empire,” Die Welt des Islams 41(2001): 3.
432 Chapter Fourteen
19
Romulo, I Walked with Heroes, 44-50, 72-73, 125-29, 140.
Mode d’assujetissement 433
20
Charles Malik, “A Near East Witness to Christian Missions,” Today 5 (1949):
527-28; Charles Malik to Asadollah [?], 26 May 1931, Folder 7, Box 53, Malik
Papers; Charles Malik to James K. Quay, 14 Apr. 1937, Folder 9, Box 38, Malik
Papers.
434 Chapter Fourteen
21
The village welfare program is described by Malik’s childhood friend and
classmate Afif Tannous in his memoir, Village Roots and Beyond (Beirut, Dar
Nelson, 2004), 116-20. Tannous would go on to do rural development work for
the US State Department. Carlos Romulo, I Saw the Philippines Fall (New York:
Doubleday, Doran & Co., 1943), 19.
22
. Carlos Romulo, Mother America (New York: Doubleday, Doran & Co., 1943),
78-79; Charles Malik, “Freedom of Thought,” 1944, Folder 4, Box 208, Malik
Papers; Charles Malik, “The Idea of the School of Arts and Sciences of the AUB,”
1942, Folder 4, Box 124, Malik Papers.
Mode d’assujetissement 435
Malik and Romulo achieved not only a ‘subjectivity’ capable of moral and
political action, but also the kind of ‘personality’ implied by Articles 22,
26 and 29 of the UDHR, which call for an international order dedicated to
the “free and full development” of the “human personality.”
analysis of individual human lives as they are and have been lived. And
while reconstructing these lives may require a return to a more empirical
and narrative form of history, it will also of necessity engage a broad
range of theories that provide insight into the opacities of global systems
and structures, cultural patterns and politics, and individual agency and
interiority. A tall order, to be sure, but one that offers the possibility,
particularly important for considerations of human rights and the Third
World, of productively disengaging from the perennial impasse between
universalism and cultural relativism by eschewing the abstract
essentialisms of “culture” and “humanity,” in favor of the contextualizing
contingencies of specific lives lived as particular bodies, in particular
places, at particular times.
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438 Chapter Fourteen
But this Description, I confess, doth by no means affect the British Nation,
who may be an Example to the whole World for their Wisdom, Care, and
Justice in planting Colonies; their liberal Endowments for the Advancement of
Religion and Learning; their Choice of devout and able Pastors to propagate
Christianity; their Caution in sticking their Provinces with Peoples of sober
Lives and Conversations from this the Mother Kingdom; their strict Regard to
the Distribution of Justice, in supplying the Civil Administration through all
their Colonies with Officers of the greatest Abilities, utter strangers to
Corruption: And to crown all, by sending the most vigilant and virtuous
Governors, who have no other Views than the Happiness of the People over
whom they preside, and the Honour of the King their Master.
Zehra F. Kabasakal Arat is Juanita and Joseph Leff Professor and Chair
of Political Science at Purchase College, State University of New York.
She is the author of Democracy and Human Rights in Developing
Countries (iUniverse, 2003), Human Rights Worldwide: A Reference
Handbook (ABC-CLIO, 2006) and Insan Haklarý ve Demokrasi Üzerine
Tezler (Boyut Yayýnlarý, 2007).
291, 292, 293, 294, 295, 296, 297, Brennan, 339, 341, 342, 343, 345
298, 299, 300, 301, 302, 303, 304, Bricker, 357, 383, 384, 386
307, 308, 312, 313, 314, 321, 326, Broeck, 26, 27, 36, 102, 105, 113,
328, 332, 333, 420, 437 115, 116
Beardsell, 6, 38, 142, 169 Brown Scott, 4, 39, 144, 150, 169
Beauvoir, 115, 116 Buck-Morss, 27, 39
Beck, 286 Bunche, 363
Bedini, 152 Burgers, 357, 360, 380, 384
Beecher Stowe, 30 Burgersdijk, 193
Begtrup, 374 Burke, 24, 39, 267
Beldini, 169 Butler, 107, 117, 118, 120, 129, 132,
Belkin, 382, 386 134, 135, 136
Bell, Madison, 216 Cabot, 375
Bell, Daniel, 259, 303, 306, 405, 413 Cano, 181
Bell, Lynda, 405, 413 Cantor, 369, 384
Benjamin, 118, 119, 286 Cápac, 184
Bennett, 2, 39, 136 Caravaggio, 129
Bentham, 267, 286 Carozza, 23, 39
Benton, 301, 304 Carpentier, 218
Bergmann, 403, 413 Carson, 241, 254
Berlin, 67, 68, 97, 208, 233 Carter, 20, 79, 100, 403
Bernadotte, 363, 385 Cassin, 17, 356, 367, 368, 370, 378,
Bernardino, 374 384, 394, 428
Bernasconi, 95, 97 Castells, 286
Beuchot, 187, 205 Castles, 338, 350
Beverly, 142, 169 Castro-Gómez, 9, 39
Bhabha, 146, 169 Castronovo, 215, 234
Birmingham, 97 Caughelin, 259, 305
Blackstone, 339, 350 Cavo, 204, 205
Bobbio, 390, 396, 409, 413 Cayetano, 186, 205
Bodin, 198 Césaire, 107, 116
Bogues, 23, 24, 37, 39, 48, 64, 208, Chakrabarty, 11, 12, 13, 32, 34, 35,
211, 216, 232, 233 36, 39, 65, 68, 90, 91, 92, 93, 94,
Bolívar, 23 96, 97, 98, 238, 254
Bonifacio VIII, 186 Chakravorty Spivak, 143, 171
Botella, 187, 205 Chamoiseau, 208
Botero, 1, 2, 37, 117, 120, 127, 128, Chapman, 403
129, 130, 136, 137 Charles V, 146
Boukman, 233 Charvet, 403, 414
Bourdieu, 286 Chatterjee, 61
Bourriaud, 121 Chibundo, 314, 334
Bradley, 426 Chimni, 314, 334
Bragato, 23, 39 Chinedu, 4, 39
Braidotti, 107 Churchill, 360, 361
Braithwaite, 314, 334 Cicero, 19, 48, 251
Braude, 400, 413 Claraval, 186
446 Human Rights from a Third World Perspective
Falk, 389, 409, 412, 414, 416 Gaudron, 336, 343, 344
Fanon, 23, 25, 32, 39, 160, 171, 210, Gavison, 403, 405, 415
212, 234 Geertz, 72, 397, 415
Farer, 373, 385 Geggus, 216, 225, 234
Faubion, 220 George, 238, 312
Faulconer, 95, 97 Gewirth, 286
Faye, 69, 98 Ghai, 16, 37, 42, 256, 257, 258, 259,
Fergusson, 163 260, 261, 262, 263, 264, 265, 266,
Fernando de Aragón, 146 267, 268, 269, 270, 271, 272, 273,
Fernando VII, 195, 201 274, 275, 276, 278, 279, 280, 281,
Fick, 217, 218, 222, 231, 234 282, 287, 288, 295, 297, 303, 305,
Findlen, 114, 116 306, 307, 308
Fine, 312, 334 Ghali, 291, 306
Finnis, 251, 312, 334 Ghosh, 94, 98
Fiore, 343 Giacometti, 118
Fishbayn, 266, 305 Gill, 314, 334
Fisher, 216 Gillies, 389, 415
Fitzpatrick, 5, 40, 144, 150, 151, 169, Gilman, 77, 78, 98
170 Gilpin, 379, 385
Foot, 271, 305, 360, 385 Gilroy, 22, 30, 40
Forgacs, 380, 385 Gilson, 193
Forsythe, 354, 373, 379, 385, 389, Glen Johnson, 355, 385
408, 414, 415 Glendon, 67, 70, 71, 75, 98, 367, 385,
Fortna, 431, 437 394, 395, 396, 408, 415, 427, 429,
Foucault, 10, 31, 40, 46, 107, 118, 437
120, 121, 122, 123, 124, 125, 126, Glenn, 301
130, 136, 137, 194, 206, 220, 234, Glenn Gray, 95, 96, 101
286, 420, 421, 436, 437 Golub, 120, 129, 131, 132, 133, 136,
Fouchard, 218, 234 137
Fowler, 348, 351 Gómez, 90, 98
Fraile, 187, 193, 206 Goodale, 420, 437
Franco, 193 Gourevitch, 135, 137
Freeman, 353, 385, 398, 415 Goveia, 215, 219, 220, 234
French, 115, 116 Goya, 129
Friedle, 408, 413 Gramsci, 285, 286, 287, 380, 384, 385
Fuller, 312, 334 Gray, 209, 234
Furet, 228, 234 Grayling, 20, 40
Furlong, 204, 206 Grotius, 4, 22, 41, 52, 53, 54, 144,
Gachenga, 263 166, 193
Galanter, 312, 334 Grovogui, 51, 52, 64
Galligan, 346, 351 Grumbach, 396
Galtung, 353, 385 Guantánamo, 56
Gandhi, 23, 141, 160, 241, 285, 286, Guattari, 24
296 Guevara, 204
García y García, 150, 170 Guha, 143, 171
Gardner, 401, 414 Gumilla, 204
448 Human Rights from a Third World Perspective
Marx, 20, 27, 34, 92, 140, 187, 196, Morsink, 358, 362, 364, 365, 367,
205, 226, 233, 241, 267, 285, 286, 368, 370, 371, 373, 374, 376, 378,
316, 334 382, 383, 386, 391, 393, 394, 395,
Massey, 326 416, 426, 427, 428, 429, 438
Masson, 337, 338 Moyn, 20, 41, 65, 66, 76, 100
Mastny, 400, 416 Munday, 313, 321, 334
May, 431, 438 Murdock, 268
Mayer, 259, 305, 353, 386, 407, 416 Murray, 163, 170
Mayo, 402, 416 Muthu, 33, 41
McAuslan, 263, 306 Mutua, 302
McCarthy, 34, 93, 99 Naldi, 162, 170
McCormick, 312, 334 Napoleon, 195, 201, 218, 224, 228
McGoldrick, 382, 386 Nariño, 158
McHugh, 337, 338 Nartzizenfield Sneh, 79, 100
McMahon, 408, 415 Nation, 400
McWhorter, 126, 137 Negri, 155, 170, 320, 334
Mehta, 326, 333, 374 Nehru, 321, 424
Meiksins Wood, 219, 223, 235 Nesiah, 4, 41
Melander, 358, 385 Niebuhr, 241, 247, 255
Menchú, 23, 141 Nietzsche, 28, 40, 85, 98
Mendelsohn, 283 Nobili, 192
Méndez, 165 Noriega, 425
Mendhelson, 307 Normand, 16, 17, 21, 22, 41
Mendieta, 1, 2, 4, 34, 36, 39, 41, 65, Nujoma, 347
89, 90, 99, 100, 117, 168, 170 Nussbaum, 251, 286
Menem, 58 Nyalali, 263, 309
Menon, 374, 396 Nyerere, 261, 263, 307
Mgbeoji, 4, 41 Nys, 5, 41
Michaelsen, 137 O’Cinneide, 276, 277, 307
Midlo Hall, 220 O’Hagan, 412, 416
Miéville, 150, 170 Oakeshott, 312, 333, 335
Mignolo, 3, 4, 14, 33, 36, 41, 44, 90, Ockham, 186, 187, 207
100, 142, 170, 233 Osamu, 54, 62, 64
Mill, 18, 209, 232, 233, 392 Osmena, 424
Minges, 193, 206 Ovid, 148
Mistry, 332 Pagden, 213, 235
Mitoma, 18, 38, 419, 424, 438 Pahuja, 4
Mohamed, 271 Paine, 166
Moi, 260 Pantham, 326, 333
Molina, 204 Pato ka, 11, 29, 36, 79, 80, 82, 100
Moller Okin, 403, 405, 416 Patterson, 105, 215, 235
Montesinos, 175, 185 Pavlov, 368, 371
Montesquieu, 316, 334 Pechota, 429, 438
Moore, 274 Pedro I, 204
Morelli, 204 Peernbohm, 313, 315, 335
Morris, 135 Peirce, 96, 101, 199
Human Rights from a Third World Perspective 451
Peng Chen Chang, 270, 308, 367, 368, Robinson, 358, 386
369, 370, 394, 396, 426 Romulo, 18, 419, 421, 422, 423, 424,
Pennock, 403, 405, 413, 414, 416 425, 426, 428, 429, 430, 431, 432,
Pereña, 170 433, 434, 435, 436, 438
Pérez, 165, 170 Roosevelt, Franklin Delano, 17, 355,
Petrarca, 48 381, 382
Petro, 426 Roosevelt, Eleanor, 67, 98, 355, 356,
Pettit, 209 366, 367, 368, 369, 371, 374, 375,
Picasso, 118 381, 385, 386, 394, 426, 427, 437
Picón-Salas, 204, 205, 207 Rorty, 7, 8, 20, 28, 29, 34, 35, 36, 38,
Pizarro, 189 39, 41, 68, 85, 86, 87, 88, 89, 91,
Plato, 118, 369 96, 97, 99, 100, 172, 181, 251,
Plattner, 148, 170 253, 286, 393, 417
Pocock, 209, 210, 235 Rosas, 358, 385
Pollis, 389, 406, 415, 416 Rosen, 209, 219, 226, 233, 235
Poma, 23, 39, 141 Rosenbaum, 402, 414
Pound, 285 Rousseau, 20, 140, 158, 166, 219,
Prescott Burrows, 431 223, 234, 235, 316, 334
Prince Hassan, 63 Roy Augier, 215, 219, 234
Pufendorf, 4, 166 Rudé, 301, 308
Quezón, 434 Rüsen, 96, 97
Qugoano, 23, 24, 39, 141 Ruggieri, 192
Quijano, 14, 23, 33, 41, 142, 170 Russell, Bertrand, 71
Rabinbach, 84, 100 Russell, Penny, 241, 254
Rabinow, 421, 437 Ryle, 72
Rahner, 195 Said, 143
Raj Kumar, 328, 335 Saint Just, 162
Rajagopal, 4, 41, 161, 170, 301, 302, Saint Lot, 365
307 Sakai, 54, 62, 64
Raphael, 402, 416 Samaddar, 322, 335
Raphael-Hernandez, 105, 116 Sánchez, Alonso, 192
Rasch, 147, 151, 171 Sánchez de Lozada, 58
Rauschenbusch, 241 Santa Cruz, 368, 370, 371
Rawls, 20, 140, 151, 286, 288, 307, Santos, 13, 42, 266, 294, 297, 300,
317, 335 308
Raz, 317, 335 Sarkin, 340, 348, 350, 351
Reagan, 57, 272 Sarton, 432
Rediker, 292, 296, 301, 307 Sartre, 118, 160, 171
Rehof, 358, 385 Sathe, 326, 328, 335
Revius, 193 Satterthwaite, 314, 335
Rey, 425 Sauvy, 419, 420, 439
Ricci, 192 Schacherreiter, 24, 42
Ricouer, 34 Schäfer, 86, 99
Rivera, 129 Scheinin, 259, 306, 307
Roald, 408, 417 Schmitt, 4, 42, 52, 144, 145, 150, 171,
Robespierre, 18, 42, 162 174, 189, 211, 312, 335
452 Human Rights from a Third World Perspective