Fighting for Rights

From Holy Wars to Humanitarian Military Interventions

Tal Dingott Alkopher

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781409445395
• eBook ISBN:
  9781317135364
• Topic: Politics & International Relations
• Subtopic: Comparative Politics
• Index: Politics & International Relations

In the light of NATO's humanitarian war in Kosovo is it possible to understand or explain wars as an outcome of perceptions of rights? How did rights, be they divine rights in the Middle Ages, territorial rights in the eighteenth century, or human rights today, become something that people are willing to fight and die for? To answer these questions, this book explores the linkage between concepts of rights and the practice of war in the international arena. Alkopher describes how normative structures of rights have shaped different practices of war from medieval to modern times, through the lens of social constructivism. From the eleventh to the thirteenth century, concepts of divine rights and institutionalized practices of the Crusades to the Holy Land fostered the prevailing ideas of international rights and war. In the eighteenth century, the institutionalization of states' rights and territorial wars shaped international conflict. This view held until the late twentieth century when the institutionalization of human rights coupled with the emerging practice of humanitarian war, particularly NATO's war in Kosovo, engendered new norms of international conduct. The author concludes that rights have the power to constitute an international order that will be either cooperative or conflictual and the choice of outcome is very much in our hands. This book will be essential reading for international relations and political science scholars and students but also philosophers, legal and sociological historians and international lawyers.

1 The Role of Rights in Shaping International Wars

DOI: 10.4324/9781315582320-2

This chapter constructs a conceptual schema and coherent concept of rights as conceived from the constructivist standpoint. It also offers a general definition of rights containing an essentialist logical element that is relevant to any concept of rights, whether human rights, the rights of states, or divine rights. The schema also includes definitions and assumptions about rights, and connects and distinguishes between rights and other variables. It examines the implications of various ideas relating to rights and rights practices. The discussion will focus on constitutive connections, on different levels, between rights internationally defined and international wars. These connections are present at the social structures level, the social-emotional level, and the international-institutional level.

The Constructivist View of Rights

In the academic rights literature, there is no consensus regarding the definition of rights. In other words, no consensus over what we mean if we say that someone has a right to something. As Pierre Schlag writes, rights do not allow for “easy identification” (Schlag 1996 : 263–4). This chapter defines the general concept of rights as that which grants a right-holder positive power in the form of benefits and negative power in the form of a responsibility or obligation toward those from whom the right is claimed (Onuf 1998 : 68). Obligations and duties are of course only negative in the semantic sense as counter-correlatives of rights, and are not necessarily negative in the normative sense. For example duties can be positively perceived as the right to help others (Dagger 1989 : 303). The power of rights is mainly due to the entitlement associated with them, and although rights may differ, what they all share and what renders them unique is the idea of entitlement (McCloskey 1965 : 116, Martin and Nickel 1980 : 169–70, Kratochwil 1989 : 170).

The linkage of situation or attribute to a right or entitlement has a unique cognitive, affective, and discursive impact that separates this ideational variable from others. The cognitive ¹ element of entitlement concerns the judgment that a person or category of people is entitled to certain outcomes because of who they are (Lerner 1991 : 13). Here the perception of rights relates to the deeper structure of identity ² on which people’s rights are based, depending on who they think they are (Wenzel 2000 : 157). The converse can also be true, and perceptions of entitlement may involve processes of self-definition and identity (Kratochwil 1994 : 486, Wenzel 2000 : 159). In other words, although perceptions of rights strengthen social identities, when new conceptions of rights develop in a society they can engender new identities.

¹ “Cognitive orientations” refers to a structure of expectations that people have about themselves and their environment reflecting organized beliefs about social and physical situations. These determine encoding, interpretation, memory, and correction regarding people and events in the external environment (Rabbie and Lodewijkx 1991 : 283). ² According to Wendt, identities are intersubjective traits of actors that create behavioral tendencies caused by both actors’ self-understanding and understanding of others (Wendt 1999 : 224).

The Role of Rights in the Social Construction of Reality

This section will argue that the entitlement side of rights facilitates the construction of events in the world. This view is based on the constructivist conception of human reality generally and international relations in particular. According to the constructivist approach, reality, or at least certain aspects of it, depends on social agreement and acceptance. This is because the way that the material world shapes and is shaped by human action and human interaction is an outcome of people’s dynamic normative and epistemic interpretations of the material world (Adler 1997 : 322). People’s expectations of what they can and should do and of what they need are largely shaped by their ideas of rights. And it is those expectations that influence human action and constitute human reality (Hart 1954 : 48).

The formative influence of rights on expectations is extremely important since the structure of social expectations can change our dispositions. Expectations define the situations we encounter and in which our actions occur (Rummel 1975–81 : 22). Our perceptions of rights give rise to specific, concrete, and reasonable ideas about possible and essential behavioral options and outcomes: reasonable because behaviors that might otherwise seem arbitrary may be seen as reasonable when they seek to actualize rights (Waldron 1981 : 28); and essential because rights also construct perceptions of needs that people perceive as legitimate. In other words, our conception of rights shapes our perception of legitimate needs (Miller 1976 : 123).

But rights not only make a reality possible; they also limit possibilities. Indeed, the constitutive attribute of the ownership of rights obliges the Other to constrain himself and accept the powers of the right-holder (Wendt 1999 : 280). In other words, the ownership of rights gives the right-holder the power to determine how others act (Gewirth 1986 : 336, Steiner 1994 : 55). Sarat and Kearns explicitly discussed the constitutive effect of rights on human action: “Examining their [rights’] constitutive effects means inquiring into the way rights call into being, and enable, particular forms and expressions of personhood, as well as the way they disable others” (Sarat and Kearns 1995 : 3).

This leads to the conclusion that social relations are also based on definitions of rights (and duties) (Kratochwil 1994 : 500). It also means that rights facilitate and encourage the perceptions, norms, rules, institutions, and arrangements that we call “social” (Flathman 1976 : 5); in other words, they determine social order. In so far as rights involve the exclusion of some actions and the acceptance of others, they also involve the constraints that influence social choice (Jacobs 1993 : 35). Theories that explore the reciprocal relations between rights and duties highlight this idea and many studies on rights have argued for the correlative nature of rights and duties.³ Where these studies differ is in their understanding of how rights and duties are linked. Some believe that every duty necessarily entails a right, and every right a duty (Martin and Nickel 1980 : 166–7). Wesley Hohfeld makes the important point that every legal right is constructed by a complex bundle of freedoms, claims, powers, and immunities that he maintains are linked to legal duties because every legal right imposes one or more legal duties on one or more sides.⁴

³ Note that not all researchers assume this. According to McCloskey, a subject is “entitled” to an outcome regardless of a relational Other, or duty bearer. However, the latter also admits that a right does not necessarily entail a duty—but it might, especially when violated (1965 : 117). ⁴ We should note Hohfeld’s contribution to the discussion and development of the discourse on the correlation between rights and duties. Hohfeld analyzes far more complex issues than the ones here, which involve exposing the internal structure of complex legal situations using his thesis of fundamental legal concepts. According to Hohfeld, legal claim means that one side, X, has a legal claim against a certain other side, Y, that Y will perform act A if and only if Y has a legal obligation to X to perform A. legal freedom means that one side, X, has legal freedom vis-à-vis a certain other side, Y, to perform act A if and only if X has no obligation to Y to refrain from doing A. Legal power means that one side, X, has legal power over a certain other side, Y, to impose specific legal consequences C on Y if and only if a certain willful act by X will be legally recognized as having these consequences on Y. Legal immunity means that one side, X, has legal immunity vis-à-vis another side, Y, from a certain legal outcome C if and only if Y has no legal power to perform a certain act that will be recognized by the law as having consequences C on X. In Hohfeld’s view, only when the content of each legal right is expressed in terms of these basic legal concepts will there be a full legal reality and will it be characterized by sufficient precision. For elaboration, see Hohfeld and Cook (1964), Wellman (1997), and Perry (1977).

A number of researchers have tried to prove that not every right has a correlative duty and vice versa. What is particularly relevant here is the argument found in all these studies that a right involves some sort of normative guidance of the behavior of others, not just right-holders (Martin and Nickel 1980 : 166–7). In that sense we could also say that, similar to rights, duties provide reasons for action (Montague 1988 : 363).

Finally, rights not only have a constitutive effect on our relations with others, they also constitute the actors themselves by promoting the power of some actors and negating that of others. Three sides are involved in questions of rights: the right-holder; the duty-holder from whom rights are claimed; and sometimes also a third party, which intervenes to assist the right-holder in realizing or defending their right. So, rights invite previously unknown actors into the international game (such as individual people and international organizations nowadays) while eliminating others (God, for example, nowadays) (Wellman 1985 : 192, 216).

As noted earlier, rights also have a unique affective and discursive impact which accounts for social and political behavior in general and wars in particular. Social theory, and especially international relations research, is based almost exclusively on the cognitive component of explanations. However, there is growing awareness recently that emotions have a constitutive role in constructing social reality. As Kratochwil sees it, by ignoring the emotions that lie behind thoughts—for example, sympathy, solidarity, as well as hatred—international relations research not only neglects a crucial aspect of human behavior, it also falls short in understanding of social reality. And Neta Crawford wishes us to consider that examining the impact of fear on the security dilemma is more interesting than analyzing the latter’s structural attributes or how the offense–defense balance affects it. She also suggests that fear and other emotions are not only the attributes of agents but also play a part in the structures and processes of international politics (Crawford 2000 : 119). Emotions may be internal, but the meanings and behaviors we ascribe to them and our awareness of others’ emotions are cognitively and socially structured (Crawford 2000 : 125). In other words, they are intersubjective. Emotions are generated by attitudes based on beliefs, judgments, and desires which do not arise on their own but are influenced by social belief, values, and morality. Emotions and their associated behaviors, such as aggression, are not natural but learned, and become more intense during social interaction (Crawford 2000 : 128). This shows a link between emotions and cognition. Cognitive activities like perceptions, obligations, and values cause emotional reactions. For example, the sense that justice or rights have been violated can generate anger and a desire for retribution/revenge. But, emotions also affect cognition. Humanitarian intervention, for example, shows how emotional responses affect the way people perceive, think, and act (the response to genocide for example) (Crawford 2000 : 152). Another example is entitlement, where feelings that certain actions and outcomes may be imperative or necessary, may be described in terms of entitlement. The affective element mainly arises in cases of a perceived violation of entitlement. Here the emotional reactions stem from perceiving these cases as unreasonable and objectionable and take the form of frustration or disappointment, which can develop into anger and aggression (Vermunt and Steensma 1991 : 16, Kriesberg 1998 : 67, Mikula, Scherer, and Athenstaedt 1998 : 769–70, Wenzel 2000 : 161).

Rights also have a unique discursive ⁵ effect. People use the language of rights, and claim entitlement to attract the attention of their target audience to what they believe they deserve, even though these perceptions have not been formally and legally recognized or approved. People argue for rights in different ways, using declaration, insistence, protest, justification, and explanation, which are all types of rights talk (Vincent 1992 : 254).

⁵ The term “discursive” comes from the word “discourse.” It relates to specific groups of texts, as well as social practices to which the texts are linked. The linguistic and behavioral aspects of the social practices form a whole, or “discourse.” The discursive practices that construct discourse include writing, speech, and practices, which often are perceived as “behavioral” and are linked to institutions (Doty 1996 : 126).

The views above point to a general awareness of the importance of discourse and language, which are not only regarded as epiphenomena of people’s activities but also as determinants in their activities. Stated most basically, a system of rules, perceptions, and meanings cannot exist without thoughts and must be linked to other words or signs; this is because the rules, perceptions, and so forth only exist due to collective agreements (Searle 1995 : 69). The expression of a claim in terms of rights by a party that is entitled to claim rights gives that claim more power—or, some would say, operative power. Actually, even if the claim does not lead to practical social measures, its entry into discourse has substantive implications in itself and symbolizes a deeper phenomenon. Moreover, Wittgenstein believed that even if someone uses the language of rights but is not involved in rights in a relevant way—in other words, even if they only use the language instrumentally—it does not mean they are completely outside the practice of rights (Tushnet 1989 : 416–18). Thus, the language of rights is important not only because of the fact that it is being used, but also because it testifies to a more general practice of rights and political behavior.

The Intersubjective Dimension of Rights

The Encyclopedia of Philosophy defines rights as “something that must be socially accepted, recognized, and protected … they are practices that are socially constructed” (Rex 1998 : 326–7). Coleman (1993) defines rights as rules that are socially created, and Wendt de...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Introduction
• 1 The Role of Rights in Shaping International Wars
• 2 Divine Right and the Crusades
• 3 The Rights of States and the Territorial Wars of the Eighteenth Century
• 4 NATO’s Military Humanitarian Intervention in Kosovo
• Conclusions: Rights and Wars in the Twenty-First Century
• Bibliography
• Index