ISSN 1062-7421
Vol. 11 No. 11 (November 2001) pp. 556-558.
HUMAN RIGHTS: CONCEPTS, CONTESTS, CONTINGENCIES by Austin Sarat and Thomas R. Kearns (Editors). Ann Arbor:
The University of Michigan Press, 2001. 124 pp. Cloth $39.50. ISBN: 0-472-11192-2.
Reviewed by Richard J. Maiman, Department of Political Science, University of Southern Maine.
The language of human rights is being spoken loudly, if not always clearly, in the post-Cold War world. Actually
it might be more accurate to refer to the languages of human rights, since meanings and understandings of the concept
are so widely divergent. As editors Austin Sarat and Thomas R. Kearns point out in their introduction to this volume
of essays, "The allure of human rights persists because they can, and do, mean many things at once" (p.
6). The cacophony of rights talk now includes the voices of many scholars as well as those of political activists.
This is because, in the words of Sarat and Kearns, "[h]ere with unusual vividness and force some of the most
important debates in the field [of law] are being played out, debates in epistemology and ethics, in hermeneutics
and social theory" (p. 7). The four essays in this collection, along with Sarat and Kearns's introduction,
make a provocative contribution to the human rights discourse. The particular strength of this book, which is part
of The Amherst Series in Law, Jurisprudence, and Social Thought, lies in the different disciplinary perspectives--philosophy,
law, anthropology, political science, humanities--that the authors bring to bear upon some of the major intellectual
questions in the field of human rights.
Perhaps the best-known strand of the contemporary human rights debate pits universalism against cultural relativism.
Are human rights based on universal standards, applicable in all times and places, or are they merely western constructs
lacking any inherent superiority over other cultural values with which they may clash? Although this argument is
not absent from these pages, the authors share an interest in moving beyond it, in reducing its importance by offering
new ways of thinking about human rights.
For Iris Marion Young, a University of Chicago political scientist, a means to this end lies in a new understanding
of "self-determination," one of the animating political ideals of the postcolonial era, especially as
it applies to indigenous peoples. Drawing on feminist and neorepublican theory, she sets out in her essay, "Two
Concepts of Self-Determination," to uncouple the concept of self-determination from that of sovereignty, or
independence. Young argues that self-determination should be understood as freedom not from interference, but from
domination. Noninterference, she argues, is based on a faulty understanding of personhood (or statehood), which
does not take into account the constitutive importance of individuals' "communicative and interactive relations
with others" (p. 33). However different their cultural make up, the groups that co-exist within any sovereign
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state are not autonomous; their actions unavoidably affect one another. To Young, self-determination as nondomination
means that a state ought to defer to the right of indigenous peoples to govern themselves. At the same time indigenous
groups must recognize that their decisions may have impacts on those outside their community. Disputes based on
competing claims ought to be negotiated by the parties acting as equals or, if necessary, resolved by neutral third
parties, rather than by having the state simply assert authority over the indigenous group.
Anticipating an objection that granting such autonomy to a group might legitimize local practices that discriminate
against some group members, Young
points out that the principle of nondomination would apply as well to relations between the group and its own members.
She even concedes that outsiders may have a responsibility to intervene in the group's internal affairs to protect
individuals from violations of their rights, provided that the group itself is represented in the forums that decide
what those rights should be.
The relationship between the individual and the group also concerns Homi K. Bhabha in "Cultural Choice and
the Revision of Freedom," the most abstract essay in this collection. Bhabha, a professor of humanities at
the University of Chicago, focuses particularly on the condition of immigrants in multicultural societies who exercise
what Bhabha calls "cultural choice" not just once, but continually, by revising their self-identifications
over time and in different contexts. Bhabha observes that as a result of "cultural defense" cases in
which minority group members seek an exemption from legal norms, "[m]inorities are too frequently imaged as
the abject 'subjects' of their cultures of origin, huddled in the gazebo of group rights, preserving the orthodoxy
of their distinctive cultures in the midst of the great storm of
Western progress" (p. 46). Bhabha urges a redirection of attention from "the familiar opposition between
'individual' and 'group' that haunts the discourse of cultural rights" (p. 49) to an understanding of "culture
as a medium of betweenness" (p. 56).
In her essay "Durkheim Revisited: Human Rights as the Moral Discourse for the Postcolonial, Post-Cold War
World," Stanford University anthropologist Jane Collier makes the useful point that the supposed contradiction
between universal rights and respect for cultural differences "makes sense only within a discourse of rights
that grants peoples the right to self-determination" (p. 74). Today that discourse is so all-consuming that
those claiming to be exempt from its standards regularly invoke its language. However, rather than dwelling on
this irony, Collier is interested in examining whether human rights--which she sees as "a Western discourse"
and not "universal in the sense of being common to all cultures" (p. 71)--can nevertheless be used as
an effective protection for indigenous peoples against the excesses of another product of Western culture, global
capitalism. Collier is skeptical of the utility of such standards, arguing that capitalism has thus far run ahead
of the capacity of international organizations to regulate on behalf of human rights. Capitalism has also hastened
the demise of cultures like the one Collier has studied in Chiapas, Mexico, that are based on obligations rather
than rights. She suggests that, "[i]nstead of trying to develop ways to punish violators, those who hope to
promote universal human rights might do better to look for ways
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of rewarding ... those whose actions promote more equitable social relations" (pp. 87-88).
The efficacy of applying international human rights standards locally is also the concern of Abdullah A. An-Na'im
in his essay, "The Legal Protection of Human Rights in Africa: How to Do More with Less." An-Na'im, a
law professor at Emory University, questions the capacity of legal rules to provide adequate protections to citizens
of postcolonial African states. Such protections require strong state institutions, including courts, that are
mostly absent in such regimes. Furthermore, since state sovereignty itself is "the practical manifestation
of the collective human right to self-determination" (p. 96), the protection of human rights is left to states
themselves. An-Na'im calls this "the paradox of self-regulation" (p. 97). His proposed alternative to
reliance on legal protections administered by the state "is to address the structural, cultural, and other
root causes of violations in order to implement human rights in a more systematic and comprehensive manner"
(p. 97).
This effort, An-Na'im believes, must proceed both globally and locally. Although advocating a major international
commitment to addressing Africa's financial instability, An-Na'im would also reduce the role of international human
rights organizations and empower local organizations that better understand the "cultural, economic, or political
root causes of human rights violations" (p. 115).
These essays taken together will provide readers with a better understanding of some of the failures, limited successes,
and unintended consequences of international human rights practice. Although none of these authors explicitly advocates
abandoning the dominant legalistic approach to enforcement of human rights, the message that emerges most clearly
from this collection is the need for much more productive interplay between global human rights standards and local
cultural values. Just how such interactions might play out is beyond the scope of any of these essays. Although
the authors are obviously knowledgeable about human rights "on the ground," this is decidedly not a practice
manual. Departing as they do from conventional wisdom, some of the suggestions here would require sea changes in
the ways human rights are thought about in the West. However, unless one believes that the record of the last half-century
of human rights practice cannot be improved upon, it is hard to argue that new paradigms should not be carefully
considered.
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Copyright 2001 by the author, Richard J. Maiman.