Abstract
A number of scholars have recently drawn attention to the law naïveté inherent in much human rights scholarship—i.e., the illusory expectations of the social power and efficacy of human rights law. This is particularly surprising given the anaemic results produced by the internationalisation of human rights law to date. Drawing on sociolegal scholarship, López proposes conceptualising law as a social practice to explore how juridical practices have historically become entangled within the human rights political imaginary. To do so he draws on the pioneering work of Yves Dezalay and Bryant Garth, Michael Madsen, and Anthony Woodiwiss unravelling the surprising and fateful entanglements of the human rights political imaginary with law in the US, Europe, Chile, Canada, and the UN.
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Notes
- 1.
What is curious, as Deflem and Chicoine note, is that while human rights sociology scholars insist that human rights claims should be more broadly defined as “(social) claims for institutionalized protection” (2011, 105), they hold on to a reified and unsociological conception of law itself (2011, 112), in effect making it stand outside of the social.
- 2.
Posner notes that strikingly, the only country that the UN Commission on Human Rights consistently criticized was Israel . While criticism of Israel may have been justified, it is remarkable that other nations should have escaped criticism as there are no shortage of states that have consistently violated human rights (2014, 44).
- 3.
This has led some scholars to argue that individual human right complaints should be handled at a national level under the umbrella of the EC HR, and the ECtHR should move towards a constitutional role (Christoffersen 2011).
- 4.
The Council of Europe should not be confused with the European Council or the Council of the EU. The latter body is the part of the administrative apparatus of the 28-nation EU, while the former is a component of the broader European human rights system.
- 5.
Posner does note that international criminal courts, such as the International Criminal Court (ICC) , are more akin to domestic courts insofar as the content of international law is more concretely specified and does enable courts to issue opinions and decide on punishment. However, he adds “the practicalities and limitations of enforcement in the context of mass atrocities entail that prosecutors be given immense discretion to choose who will be prosecuted. Because there is no ‘neutral’ way to exercise that discretion, states have been extremely reluctant to subject themselves to international criminal courts, and have gone at great lengths to limit their powers, just as they have done for human rights bodies” (2014, 56–57). However, s ee Madsen and Christoffersen (2011) a nd Greer (2006) f or more nuanced readings of the obstacles, but also the successes, of the European human rights system and ECtHR .
- 6.
In many cases, Greer adds, this is because “systemic violations stem from problems which are simply too intractable to be dealt with by executive or legislative fiat, while in others the national and international legal and political costs of violation rank lower than those associated with making the necessary changes” (2006, 278).
- 7.
For an interesting, though not an altogether, successful attempt (Munz 2000) to develop a sociology of philosophy, where philosophical ideas are conceptualized as sacred objects invested with emotional energy along the lines of Durkheim’s collective effervescence , se e Collins (1998). More effective in relating philosophical to social-structural change is the magnificent but insufficiently read, Moral Codes and Social Structure in Ancient Greece , by Joseph M. Bryant (1996).
- 8.
Indeed as Susan S. Silbey argues, “[l]egality is much weaker and more vulnerable where it is more singularly conceived. If legality were ideologically consistent, it would be quite fragile” (2005, 350).
- 9.
Harry W. Arthurs and Robert Kreklewich argue, “[i]t is a cultural artefact, a ‘great code’ which shapes the way we express ourselves, and imprints in our mind an image of social relations which is not easily dislodged, even when neither the state nor its law is present” (1996, 32). Counter-intuitively, the reason for this is probably not because the law is all powerful, but precisely because it is not. As I will describe in more detail below, in my discussion of the pioneering work of Anthony Woodiwiss , the law is “in a certain sense, a ‘secondary force’ in human affairs in that it can only really work when it mobilises pre-existing forces within social structures” (2003, 18).
- 10.
Legality , following the pioneering work of Ewick and Silbey , is understood “as a structural component of society. That is, legality consists of cultural schemas and resources that operate to define and pattern social life. At the same time the schemas and resources shape social relations, they must also be continually produced and worked on – invoked and deployed – by individual and group actors. Legality is not inserted into situations; rather, through repeated invocations of the laws and legal concepts and terminology, as well as through imaginative and unusual associations between legality and other social structures, legality is constituted through everyday actions and practices” (1998, 43).
- 11.
This is of course an analytical distinction, as I noted above in my discussion of law naïveté, despite an impressive human rights legal apparatus in the form of international texts and institutions; ultimately the ability to deliver remedy for human rights violations derives from moral suasion and political pressure. If the remedy is in most cases not the outcome of the law’s self-execution, it is the product of the political pressure that convincingly and, in some instances, effectively draws attention to the responsibility that governments or agents have to enforce human rights law.
- 12.
As I pointed out in a number of instances in the previous two chapters, bearing witness is an enormously complex and fragile mode of social recognition powered by specific forms of ethico-political labour.
- 13.
Robert van Krieken (2004) how ever identifies some thought-provoking and productive intersections between these two very different approaches. Nonetheless, I am ultimately not convinced by the abstract rationalism and overreliance on the category of modernity in Luhmann’s approach that attempts to account for much, too much one might say, by understanding modernity as a process of communicative and functional differentiation. As Anthony Woodiwiss has persuasively shown in a number of perceptive arguments, the category of “modernity ” is rarely subject to critical sociological reflection, enabling it to account for much and explain little (Woodiwiss 1993, 1997, 2001, 2005b). For a treatment of human rights from an autopoetic perspective , see Verschraegen (2013). A n interesting deployment of some aspects of Luhmann’s framework is to be found in the work of Chris Thornhill ’s sociology of constitutions (Thornhill 2011, 2013). He presents an interesting critique of the generalized acceptance by political sociologist of the presupposition “that modern states are formed through a process in which, in a given society, prepotent or even dominant social agents deploy strategies of coercion and extraction in order to arrogate more or less exclusive power to themselves: this power is then concentrated in the institutions of the state” (2013, 26). One of the hitches to such an approach is that it understands law, rights, and constitutions as an apparatus of rule deployed instrumentally by state elites. Thornhill ’s historical overview of constitutions in modernity leads him to argue that “constitutions, and the rights that they contained, acted to confer a limited and differentiated organisation on states, and this organisation allowed states to utilize their power in a manner adequate to and sustainable in the pluralistic reality of modern social order. In each of these instances, therefore, constitutions and constitutional rights can be seen as the externalized preconditions of society’s emergent politics” (2013, 46). While I have qualms about the explanatory force of modernity , certainly such a cogent argument for the relative autonomy of constitutional norms and rights is certainly to be welcomed.
- 14.
- 15.
This of course is not to discount other practices that contribute to the circulation of the law, such as the legal consciousness embedded in other spheres of social practice, even in the absence of the direct mention of the law (Ewick and Silbey 1998), or the concatenation of discourses, official and unofficial, that produce the effect of the law (Valverde 2003a, b). However, these practices, though not completely determined by, do, to a certain extent, depend on the effect of autonomy produced by jurists.
- 16.
American legal realism explored how judicial decisions were underdetermined by the letter of the law and the formalism of legal reasoning , drawing attention to the political, economic, historical, and ideological context of legal decisions (Fisher et al. 1993), not a particularly fertile ground for the normative aspirations of the UDHR .
- 17.
Even where some legal expertise was developed in “human rights” as in the case of the International Commission of Jurists (ICJ) , the or ganization’s inaugural concern was with the promotion of the rule of law, particularly to “mobilize the forces – in particular the juridical forces – of the free world for the defense of our fundamental legal principles and in doing so to organize the fight against all forms of systematic injustice of the Communist countries” (Tolley cited in Dezalay and Garth 2006, 234). The I CJ was created by establishment lawyers with strong links to the Council of Foreign Relations and with funds and administrative staff provided by the CIA (Dezalay and Garth 2006, 234) and should be understood, in its early years, as an ideological component of a Cold War strategy rather than a precursor to contemporary human rights organizations. This, however, does not prelude continuities in terms of personal relations between the IC J and Amnesty . As Dezalay and Garth write, “The majority of the founders of Amnesty were leaders of Justice, the British chapter of ICJ , which publicly supported the new organisation. Indeed, Sean McBride [who played a prominent role in ICJ ] later became Amnesty’s president” (Dezalay and Garth 2002, 71). What is more significant, to my mind, is the fact that Amnesty International defined itself in terms of its radical neutrality and its minimalism in opposition to the broader Cold War strategies espoused by the ICJ in its early days. Subsequently, in the late 1960s, as a result of the rising moral authority of human rights and in an attempt to recover from the sting of the public exposure of the role played by the CIA in its founding, the ICJ became a human rights organization in the contemporary sense. See Howard B. Tolley ’s (1994) extremely informative, yet, at times, insufficiently critical account of the ICJ .
- 18.
- 19.
In the context of the US, as elsewhere, the structure of the national political field of power, as Barbara J. Keys ’ study persuasively shows, limited the impact of the initial forays of Amnesty International (2014, 91).
- 20.
This is exemplified, at the level of the individual biography, by a key figure in both fields: Aryeh Neier went from being the director of the ACLU to becoming a founding member of Helsinki Watch and subsequently leader of the Human Rights Watch (Neier 2012). The ACLU experienced a strong decline in its membership: from 270,000 in 1974 to 185,000 in 1978 (Dezalay and Garth 2002, 279 n. 13).
- 21.
This and cognate statements inevitably resonate with the “sense of heated exaggeration, suspiciousness, and conspiratorial fantasy” that historian Richard Hofstadter associated with The Paranoid Style in American Politics , the title of his widely read Harper’s Magazine article in 1964 (1964a, 77), and leading essay in the book by the same title (1964b). However one need not resort to conspiracy theories in order to account for the shared worldview among liberal elites, which can sociologically be explained as a result of common career trajectories through prep schools, a passage through Harvard or Yale, and positions in Washington or Wall Street (Dezalay and Garth 2002, 66).
- 22.
As Dezalay and Garth note, “In this ideological counteroffensive, these ‘outsiders’ skilfully managed to gain support through marketing and media promotions. The task was to produce messages that would be simple, readily identifiable, and easy to diffuse: in other words, ‘sound bites’. According to its director, the Heritage Foundation , established in 1973, specializes in ‘marketing’ and ‘packaging’ university ideas for mass consumption. The conservative policy entrepreneurs from the Heritage Foundation were put at the disposal of the press in order to organize ideological debates. These debates permitted them to put in question the image of neutrality and scholarly objectivity on which a good part of the authority of the eastern establishment rested. In addition, the emerging journalistic scene allowed them to place themselves on an equal footing with their opponents – despite the inequality of forces on the terrain of learned production” (2002, 80).
- 23.
- 24.
This was tremendously consequential: the Reagan presidency “brought to power a very conservative coalition that rejected social programs and political approaches that had long been the center of the federal government” (Dezalay and Garth 2006, 245).
- 25.
It is worth keeping in mind that the mathematical techniques in economics preceded the pure economic theory of the Chicago School . The consecration of Keynesianism went hand in hand with the investment in mathematic techniques such as modelling and economic measurement, which were considered essential for the management of the economy (Dezalay and Garth 2002, 75).
- 26.
This is not to say that there were not some “Academic idealists” (Dezalay and Garth 2006, 240) attempting to interpret the UDHR and other treaties as binding law; however, for the most part their arguments were largely marginal to the juridical fields where they were made (Moyn 2010, 176–211). It is worth pointing out that Dezalay and Garth distinguish between three moments in the development of human rights in the US: the first, spanning the 1950s and 1960s, coincides with International Commission of Jurists (ICJ) and corresponds to the deployment of the “rule of law” as a strategy to criticize the communist countries in the Cold War. The second, from the 1960s to the late 1970s, coincides with the emergence of Amnesty International and its highly moralistic and universalized conception of human rights. The last moment, taking off as the decade of 1970s was concluding, is represented by the emergence of Helsinki, later to become Human Rights Watch ; it is at this point that elite lawyers begin to invest in human rights and consequently the latter begin to become juridified (Dezalay and Garth 2006). To my mind, the inclusion of IC J in its early days, when the I CJ was a Cold War tool, blurs the significance of the emergence of what are properly speaking, contemporary human rights. In the 1970s, the IC J broke with its Cold War modus operandi and adopted the representations, social technologies, modes of subjectivity and of action, and the social organizational features associated with what we have come to identify as contemporary human rights.
- 27.
A key indicator of their rise to prominence in foreign policy is the Neoliberal Washington Consensus .
- 28.
Despite Amnesty International ’s ban on taking a position on foreign aid, and Amnesty International USA ’s charity status, in principle preventing it from lobbying the government, the reality is that behind the scenes, Amnesty International USA did contribute significantly to the legislative efforts in the 1970s, and “worked closely with the State Department’s human rights officers” (Keys 2014, 208–9).
- 29.
Dezalay and Garth report that Human Rights Watch relied on Theodor Meron , of NYU Law School, and Robert Goldman , at American University. According to one of their respondents, “They guided us through the complex set of commandments and got us comfortable in dealing with something [laws of war] that was really not considered a human rights issue” (2006, 249).
- 30.
Today, the idea that human rights is tightly intertwined with law forms part of our everyday legality . However it is important to note that absent the right conditions, this might not have been so. In this respect, it is worth quoting one of Dezalay and Garth ’s respondents, a lawyer at Human Rights Watch, “If you have a functioning legal system [,] you can call on organizations that looks more like the ACLU where there is a prominent role for lawyers. But most of the countries where we work … have much more rudimentary if any legal systems [,] and so the challenge of the human rights movement is to create surrogate forms of protection pending the establishment of legally based rights [,] and the process of doing that doesn’t require a law degree. I mean a law degree is very helpful but if you look at sort of our employees, maybe a third of them are lawyers but the rest are journalists, they are regional experts” (2006, 251–52).
- 31.
Much has been written about the relationship between contemporary human rights and neoliberalism , with left critics arguing that human rights should be understood as an ideological tool in the neoliberal repetoire, while advocates argue that human rights may yet come to curb the worst excesses of neoliberalism (Moyn 2014a). Moyn argues, both neoliberalism and contemporary human rights emerged and developed at the same historical moment and were united in their shared suspicion of state power. However, he claims, rightly to my mind, that the most that can be said about their relationship is that they have travelled together, and have become intertwined, without one necessarily being the cause of the other (Moyn 2014a). Critics and advocates alike ascribe excessive power to human rights, whether this is by alleging that they secure the conditions of possibility of neoliberalism or that they have the power to clip the wings of global capitalism, respectively. Neither of these positions questions the social-relational conditions that have given rise to human rights in order to inform our understanding of the role human rights might (not) play in the struggle against the injustice and inequality produced by contemporary global capitalism. Were one to see human rights as political imaginary, perhaps more individuals would concur with Moyn , namely, that human rights has been a “powerless companion” in “the age of neoliberalism ” (2014a).
- 32.
Underpinning Dezalay and Garth ’s analyses of the globalization of law is the insight that “the force of law is constructed in elite contests, but also that law has little force until elite lawyers construct it” (Munger 2012, 477). Illuminating as this approach is, it nonetheless disregards another aspect of the efficacy of law that arises from, as we will see below in my discussion of Anthony Woodiwiss ’ work, the compatibility of law and the prevailing social-structural arrangements. Moreover, as Frank Munger convincingly argues, because of the focus of elite lawyers and their networks, “[w]e do not learn about what may have happened outside their networks, or when law is imported by other means, or in contexts where other beliefs about law or justice enter the field of state power […] In sum, their exploration of the ‘field of state power’ leaves them with an incomplete map, with large gaps and patches of uncharted political terrain” (2012, 489).
- 33.
Nash , drawing on the cultural politics approach I described in Chap. 5, analyses the “justifications which explain and attribute value to human rights in different ways according to different institutional settings” (2009b, 62). She analyses the legal challenges to the status of prisoners in Guantanamo Bay and the corresponding debates that ensued in the mediated public sphere. She concludes, “International human rights have virtually no legal purchase in US courts, and nor have they proved effective in rousing public outrage or creating the political will to put pressure on the Bush Administration to act within international norms in granting prisoners a fair trial.” Moreover, she adds, “Even where human rights are invoked in the mediated public sphere in the US they tend to be understood as ‘special rights’ for non-citizens, a set of second-class rights of last resort rather than the framework of universal principles of global justice within which the business of state should be conducted” (2009b, 92–93).
- 34.
The ECJ is tasked with implementing EU rather than ECHR law. This said, as scholars have remarked both courts have begun to reference each other’s jurisprudence, the consequences of which are yet to be determined (Douglas-Scott 2006).
- 35.
As Duranti writes, “[n]o other international tribunal, including the various Hague courts and the Inter-American Court of Human Rights , possesses a similar capacity to act on an application from a private individual concerning a violation of his or her human rights. Nor has any UN body tasked with punishing human rights offenders handled more than a fraction of the Strasbourg court’s caseload. The International Criminal Court of The Hague , for example, issued its first judgment in May 2012, nearly a decade after its creation. By comparison, the European Court of Human Rights issued 1,093 judgments in 2012 alone” (2016, 1).
- 36.
For instance, the philosopher and legal scholar James W. Nickel refers to the ECHR as the “progeny” of the UDHR (1987, xi).
- 37.
Drawing on the Bachelardian-inspired Bourdieusian conception of the “double rupture ”, Madsen understands sociological reflexivity as “the ‘double historicisation’ of both the object and the academic construction of the object. The booming contemporary engagement in human rights, both as activism and research, only highlights the need for such an approach. Due to the increase of human rights discourses and their normative aspirations, set against the proliferation of actors studying human rights, there is a growing need to ‘step back’ – or even ‘out’– and critically examine these pre-constructions before attempting to approximate the object on more objective grounds” (2013, 84–85).
- 38.
The creation of the École nationale d’administration (ENA) in 19 46 as the institution for the training of high-level bureaucrats signalled the relative marginalization of juridical knowledge as la science d’état with respect to political science and economics in the context of the postwar welfare state (Madsen 2010, 57–58).
- 39.
This is not to ignore that some of the cross-political consensus on the welfare state was linked to a political strategy to limit the rise of communist parties in France , England , and Scandinavian countries (Madsen 2010, 138).
- 40.
See note 17 above.
- 41.
In 1966–1967, it was revealed that Amnesty International had cooperated with the Foreign Office and British Intelligence in the context of two former colonies, Rhodesia and Aden, implicating Peter Benenson , the organization’s founder, Robert Swann , its Secretary General, and Sean MacBride , the chair of International Executive Co mmittee (IEC) . Through some swift manoeuvres, the IE C was able to regain control of a spiralling situation. It “stressed that Amnesty would remain politically and financially independent, and would ‘resist any attempt to influence Amnesty International … directly or indirectly whether by infiltration, financial grant, or any other means’” (Buchanan 2004, 286). This “re-launch of Amnesty International marked the rise of human rights as a broad social movement fighting for a relatively clearly defined objective” (Madsen 2012, 258–76).
- 42.
As Duranti has noted, “[b]eginning in the 1950s, the role of conservative politics in launching the transformation of international law and organizations in Europe would be effaced through the construction of another set of invented traditions, ones that still retain their hold on official narratives of the birth of European institutions today” (2016, 212).
- 43.
Ironically, however, notes Madsen , it was precisely the ability of jurists to adjust the Convention to diplomatic exigencies and national interest that carved up some autonomy for the ECHR and the ECtHR : “the ECHR system appeared to pose no significant threat to the specificities of the national ways of securing human rights and justice – as long as they were justified. Progressively, these early dynamics translated into the ECHR jurisprudence. Most notably, the (national) margin of appreciation, which provided a sophisticated legal response to the built-in conflict between the (European) universalism of human rights and the safeguarding of the national particularities of the protection of human rights, was produced on the background of this initial approach” (2007, 151).
- 44.
Having analysed a list of candidates for the first selections of judges for the ECtHR , Madsen deduces, “the preferred candidates were all jurists with top academic degrees – typically doctorates – as well as an acquaintance with international politics and diplomacy. In other words, the nominees who were selected were not one-dimensional actors in terms of pure judges, academics, practicing lawyers, etc. but, rather multi-dimensional in the sense of having knowledge of more fields of relevance. Jurists who appeared formally independent – typically academics or jurist with an academic career background – and could exhibit somewhat of a track record in international politics and law were in practice to be selected over other candidates” (2011b, 47).
- 45.
Overall, Madsen draws attention to three important innovations in jurisprudence in the late 1970s that would set the ECtHR on a new course: (1) “a notion of fundamental rights”, (2) “a dynamic approach to the understanding of the ECHR ”, and (3) “on obligation on the Member States to protect the rights of the Convention effectively and practically” (2011b, 54–55).
- 46.
Of course, as Madsen notes, this was also driven by the national production of human rights and the contribution of pioneering human rights centres, contributing to the “‘scientificization’ and systematization of human rights” (2007, 154).
- 47.
This of course raises important questions with respect to the progressive reading of postwar European human rights that underwri tes Soysal’s (1994) postnational thesis.
- 48.
Moyn argues that there is evidence that the ECHR is now being used as a civilizational shield against Muslims in the same way that it was used in the past as a defence of Western civilization against communists, while Gündoğdu suggests that the ECtHR fails “to provide effective guarantees against [the condition] of rightlessness, especially in the case of migrants without a regular status, including rejected asylum seekers and undocumented migrants” (2015, 109).
- 49.
Philanthropic foundations such as the Ford Foundation , as Dezalay and Garth report, were initially reluctant to invest in human rights activism as they perceived it as being too politically partisan (2002, 148). In response to the Cuban Revolution, the Ford Foundation s had launched programmes in Latin America with the aim of building up “‘friends of America’ while exporting US learning – especially but not only economics. These investments were directed toward building a new technocracy of development that was both competent and reformist and could be counted on to avoid polarizing the political field between an ultraconservative right and a radicalized left acting like revolutionaries” (Dezalay and Garth 2002, 65). Successes in Chile , and the desire to protect its earlier investment in social sciences, eventually encouraged the Ford Foundation to promote human rights strategies throughout Latin America (Dezalay and Garth 2002, 148).
- 50.
This is not to say that human rights organizations have disappeared in Latin America, that lawyers are no longer involved in them, or that significant legal investments in human rights might not yet take place in the future. Rather, unlike in Europe and the US, law’s entanglement within the human rights political imaginary did not get elite buy-in, deflating its value in the juridical and the broader field of political power.
- 51.
- 52.
Yet, even in this case, his accounts of human rights in (2008, 2009) appear, to my mind, to be pushing back the origin of human rights to the 1950s. This is because he distinguishes between civil liberties and human rights by positing the latter as including both civil rights and advocacy of economic, social, and cultural rights, which the former did not embrace (2008, 7). This philosophical rather than sociological distinction when used in a historical context produces, perhaps unwittingly, a sense of continuity, that to my mind is unwarranted, between earlier civil liberties and the more recent international human rights movements that the political imaginary model tries to conceptually capture and empirically render.
- 53.
Moreover, subsequent attempts to use Justice MacKay ’s judgement were generally unsuccessful (Bruner 1979, 245–46).
- 54.
In the same year, fair practices legislation was also passed in New Jersey ; subsequently similar legislation was adopted in Massachusetts in 1946, Connecticut in 1947, and New Mexico , Oregon , Rhode Island , and Washington in 1949 (Bruner 1979, 237, fn 4); see Bamberger and Lewin (1961) fo r a n overview of early anti-discrimination efforts in the US.
- 55.
“Anti-Discrimination” was replaced by “Human Rights” in 1961, the reason for which is not entirely clear. What is not in doubt however is that the Ontario Human Rights Code was an attempt to incorporate all the existing major fair practices statutes rather than an attempt to comply with international human rights legislation (Eberlee and Hill 1964, 448). T. M. Eberlee was Assistant Deputy Minister of Labour and D. G. Hill was the first Director of the Ontario Human Rights Commission, in their article providing an overview of the Ontario Human Rights Act ; their referent is the anti-discrimination legislation in the US (1964, 450).
- 56.
In 1993 the UN General Assembly approved the Paris Principles that provide guidelines and an international accreditation procedure for National Human Rights Institutions (NHRI) , whi ch includes NHRCs (Hafner-Burton 2013, 171).
- 57.
Other authors understood the Charter as being rooted in the Magna Carta and the English Bill of Rights (La Forest 1983, 21–22) or saw the rights enshrined in the Charter as already “protected by statute or common law prior to 1982” (Morton 1987, 31), the Charter only adding a tier of judicial review by judges (Morton 1987, 51).
- 58.
- 59.
More recently the political scien tist Elin Skaar (2011) has argued in her analysis of Chile , Argentina , and Uruguay that the potential of human rights-inspired post-transitional justice processes in the countries under study have been limited by the lack of independence of the judiciary. Despite the mobilizations of human rights organizations, and some activist judges, prosecution for human rights violations has only taken place when the political executive has been favourably predisposed. Absent a structural transformation in the legal field of each of the countries, in other words, a real rather than a mere formal independence of human rights from the executives, it is unlikely that a legally entangled human rights will thrive. Equally, in an analysis of ethico-political claims of victimized excluded others in contemporary Argentinian politics, Humphrey and Valverde have argued that rather than activating state enabled rights, such claims are producing a moral economy where the state’s response has been to “produce a hierarchy of victims ranked according to innocence and correlated with rights. The more innocent, the more rights; the less innocent, less rights” (2007, 194). This said, the human rights political imaginary, in Latin America, appears to have been more securely entangled with the politics of memory as attested by Lessa and Druliolle (2011), Ros (2012), and Van Drunen (2010).
- 60.
Recent doctoral research by Andrea Chisholm suggests that human rights remains marginal in Canadian law faculties, “Other courses such as human rights, poverty law, aboriginal law, social justice issues and ethics are offered as electives or injected peripherally into the core curricula” (2008, 67).
- 61.
The political scientist Charles Epp notes that interest group activism, governmental financial support for litigation, and transformations in the legal profession and education occurred before the Charter came into effect, and better explains the transformation of the Canadian Supreme Court into a “major constitutional policymaker, focus[ing] much of its attention on civil rights and liberties” (1996, 775).
- 62.
In actual fact, Woodiwiss draws on the metaphor of human sacrifice to convey the entanglement of property and individual rights under the halo of natural rights in capitalism, writing, “in the case of ‘natural’ rights, what was made sacred was not the whole person but rather certain aspects of their lives – the freedoms to own property, to work and make contracts, for example – as well as, of course, capitalist production relations in general. And the major sacrifice was, again, not of whole human beings but of other aspects of their lives such as their labour power and therefore any expectation of economic security. Thus ‘natural’ rights, like the rites associated with human sacrifice , represent an assertion of state power rather than an antidote to it with the result that the protections and/or support they promise come at a price” (2005a, 9).
- 63.
Woodiwiss (2005a) convincingly illustrates that though the Western rights tradition is monomanically associated with autonomy, there is also minor tradition of reciprocity capable of accommodating “socialist” social and economic rights.
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Julián López, J. (2018). Beyond Human Rights Law Naïveté. In: Human Rights as Political Imaginary. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-74274-8_6
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