Crossing the Boundaries: the place of human rights in contemporary scholarship
Afternoon panel session:
Dr Basak Cali and Dr Saladin Meckled-Garcia
Two disciplinary perspectives on human rights: divergences between law and philosophy
It is often assumed that when lawyers and political philosophers talk about human rights, they talk about the same thing. In this paper we seek to show how the two disciplines, because of their disciplinary commitments, in fact have divergent understandings of the meaning of the term. These divergent understandings have important consequences for the future study and practice of human rights and for interpreting human rights law. If the critiques, defences and investigations into the notion of human rights are to be intellectually rigorous and fruitful, then it is essential to disentangle the divergences in the way the term is understood.
We demonstrate this by looking at four areas which raise human rights issues and on which the two disciplines give different answers. We identify these areas in the form of five questions:
Who can infringe a human right?
Whose rights can be infringed?
When can the rights be infringed?
Where can the human rights be infringed?
How are human rights provisions applied and interpreted?
In each case it becomes clear that the understanding of human rights is fundamentally different. This should alert the two disciplines to the disciplinary commitments which make this so. Given that, especially in the case of international human rights law, other values and principles shape human rights provisions and their application, this is a challenge to the idea that law should be seen as the parent discipline of human rights.
Professor Colm Campbell
Violent frames: law, rights-violations and social movement theory
Official British anti-terrorist legal discourse suffers from theoretical shortcomings and from key gaps in empirical data. At a theoretical level it tends to rely upon a 'crisis-response' paradigm: the response of the democratic state to the crisis of terrorism. The central relationship is conceptualised as uni-directional: terrorism the stimulus, state action the response. Human rights violations tend to be seen as incidental elements of the 'response'. At the empirical level, the absence of primary data in relation to those engaged in political violence leaves a critical gap; a legal ethnography of political violence is almost entirely absent.
To address the theoretical shortcomings, this paper draws on social movement theory to re-model the place of law (particularly legal 'grey zones') and human rights violations in a two-way 'violence-repression nexus' in the self-defined Rechstaat. This modelling of aspects of violent mobilization maps key issues around law and human rights violations onto the three sets of factors which social movement theory emphasizes in explaining the emergence and development of social movements (whether violent or otherwise): 'political opportunity', 'mobilizing structures' and 'framing processes'.
This framework is then applied to data collected in an original qualitative study of formerly violent political actors (members of social movement organizations), released early from prison as part of the Northern Ireland peace process. Analysis of this data suggests a complex role for law in the mobilization process. Indiscriminate repression, typically falling into legal grey zones and constituting human rights violations, should be considered as a resource to the state's challengers, which contribute to the formation of their 'mobilizing structures'. Perceptions of prisoner-ill treatment also emerged as an important resource for challengers. As regards 'political opportunity' law was pictured as having a janus-like quality, opening some aspects of political opportunity while closing others. Law also occupied an ambivalent place in the 'framing processes' of members of the subject group: both as a tool of repression, and paradoxically as a vehicle for capturing political gain.
Dr Lisette Josephides
The archaeology of human rights: the practice of being human
Anthropology occupies an ambivalent place in the human rights debate. While its celebrated relativist approach has provided a rich ethnographic body of cultural diversity, it is also at the root of the discipline's two deep-seated fears: the fear of generalising propositions, as compromising the particular; and the fear of dissolving the difference between 'them' and 'us', as being an imposition of our beliefs and lifestyles on the other. On the one hand, this ambivalence has led to an uneasy reticence in debates dealing with human rights issues; on the other hand, the emotional and moral commitment to their studied peoples has drawn anthropologists into involvement in local struggles. As a result, a default position has developed within the discipline, namely that anthropologists should stick to 'thick descriptions' of those struggles and avoid entanglement in metaphysical debates about the moral or ontological foundations of human rights. This agnosticism becomes impracticable, however, when 'real struggles' come up against the demand to justify interventions which are said to contravene local traditions. Anthropology's concern with the particularity of culture is thus the source of both its strength and its limitations.
Philosophy, on the other hand, is enjoying a period of renaissance, launching itself into a host of 'applied' fields. But in this field at least it would benefit from the cross-cultural input from anthropology, with its painstaking observations of practice in different societies. The aim of my paper is to begin this collaboration by asking philosophical questions about morality and what it is to be human, but using anthropological methodology with ethnographic insights. Thus I enquire into the possible moral basis of human rights, not as an a priori categorical imperative but as an empirical question to be investigated as part of social practice. From my own ethnography in Papua New Guinea, I will contend that claims to human rights have a basis in ideas of what is to be human and what is due to a human being, arising out of the human condition of sociality and linked through everyday experiences to grounding practices. This paper is part of a larger research programme in which I am engaged, which investigates the historical development of legal practices, both tribal and western, from the perspective of ideas of justice, ethics and morality.