Legitimization in World Society

Aldo Mascareño, Kathya Araujo

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409440888
• eBook ISBN: 9781317105787
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Emerging traits of late global modernity such as transnationalism, multiculturalism, individualization and supranational contexts of action raise the question of what holds society together. Responses have typically made reference to legitimization, but the modern world presents challenges to such responses, for in such a differentiated, globalized setting, legitimization can no longer appeal to the previous national, ideological or religious foundations of early modernity. From a variety of theoretical and empirical perspectives, this book explores the manner in which legitimization can be constructed by people, groups or institutions under the contemporary pressures and possibilities of modern world society. Drawing on cosmopolitan theory, postcolonial sociology, systems theory, and historical sociology, it engages with questions of human rights, processes of individualization and the constitution of transnational spaces in its examination of the challenges to legitimization. As such, it will be of interest to scholars of sociology, political science and social and legal theory, concerned with questions of globalization and the problems of social cohesion and legitimacy.

PART I
Universalism and Legitimacy

Chapter 1

Thoughts on the Legitimacy of Human Rights

Robert Fine

The expanded scope of human rights is a distinctive characteristic of the current stage of development of capitalist society. Human rights are, for better or for worse, part of the world in which we now find ourselves and their growth marks a significant shift in the character of contemporary juridical forms. As with most other social phenomena of our times, the normative significance of the expanded scope of human rights is equivocal. Strong normative reasons have been put forward to affirm its legitimacy, but so too its critics have pointed to the ideological and instrumental functions it performs in the modern world order. Some observers speak of an impending legitimacy crisis of human rights as the conditions of their success erode before our eyes. The turn to normative theory threatens to subsume the facticity of human rights to normative assessments, positive or negative, of their estimated worth. As a result we are faced with two temptations in social theory: one leans toward the idealisation of human rights, the other toward their devaluation or denigration. Both are problematic in obstructing what social theory does best: understanding the dynamics of the modern world and of the various deformations it engenders. I shall argue that the expanded scope of human rights represents a necessary development within the modern system of right as a whole and that we should resist any tendency to nullify it. On the other hand, it brings with it certain deformations we should recognise and learn to resist. The particular deformation I shall explore to illustrate this thesis is best known as the ‘Schmittian’ problem: that of deploying the idea of human rights to dehumanise those who are viewed as its transgressors. I shall suggest that this problem is visible in theory, practice and political argument and that the task of addressing it involves not only the further juridification of human rights, but also the fostering of what I call a critical human rights culture.

Human Rights and Social Reality

At the close of the Second World War, international law still operated largely in terms of treaties and agreements between sovereign states. The idea of sovereign statehood was largely restricted to ‘the West’ and the Soviet Union; most of the rest of the world was under imperial control; and the division of the world into power blocs threatened to make a mockery of national sovereignty.1 In the years since the end of the Second World War much has changed. Old colonial forms of rule have been delegitimised and the old Eurocentrism has been fractured. Legal textbooks now treat international law as a higher and compelling law (ius cogens) and the idea of absolute sovereignty advanced by Western European powers – which once coexisted with absence of sovereignty in the non-European world – has been replaced by sovereign equality under international law. Individuals and civil society organisations, as well as states, are now treated as ‘subjects’ in international law and even the most hegemonically inclined states declare their interest in a politically constituted international community (Habermas 2006: 150). International lawyers are now heard to say that the subject matter of international law has expanded to such an extent that there is no clear nucleus of sovereignty states can invoke against it.2 Non-state or quasi-state actors, such as international courts and non-governmental organisations as well as transnational executives and multi-national companies, have emerged as players in international legal processes. A large variety of regional and global institutions have been constructed from the European Union to the World Trade Organization, from Amnesty International to the International Chamber of Commerce. Social inequalities, though larger than ever at the global level, are no longer perceived exclusively as ‘our own’ problem partly because we need each other more in a world risk society (Beck 2006) and partly because we have a sense of binding obligations to others beyond our own borders (Brunkhorst 2005).

Human rights have been transformed from a set of moral declarations to elements of an enforceable legal system and have become part of the formal structure of international law. They not only claim a ‘soft’ influence over states to take human rights into account, but in some instances demand compliance and declare a duty to obey. The norms of international law increasingly function as a higher law vis-à-vis that of states and there are a number of treaty-based norms that obligate all states whether or not they have signed the treaty in question. These include prohibitions on crimes against humanity (Nuremberg Charter 1945), genocide (the Convention on the Prevention and Punishment of the Crime of Genocide 1948), and disappearances and torture (the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment 1987). In general, the dependence of international law on state consent has declined, as has the state’s degree of freedom in interpreting and enforcing international law. International law is no longer involved only in conflicts between states, but also in conflicts within states, affording it a bigger role in responding to events such as civil wars, the breakdown of government, human rights abuses and humanitarian crimes. The doctrines of ‘humanitarian military intervention’ and now of ‘responsibility to protect’ have made external military intervention potentially legal in the event of very serious humanitarian crimes. To grasp the expanded scope of human rights we only have to think of the formation of the International Court of Justice (1946), the Universal Declaration of Human Rights (1948), the European Convention on Human Rights (1950), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the Vienna convention on the Law of Treaties (1969), the ad hoc tribunals for war crimes committed in the former Yugoslavia (1993) and Rwanda (1994) and the International Criminal Court (2002). To be sure, the norms contained in these treaties, conventions and declarations are frequently broken, but what is new is that they exist.

It no longer sounds totally hyperbolic to speak of a ‘human rights revolution’ since 1945 and of its consolidation since the fall of the Berlin Wall in 1989. Human rights, we might say, are an achievement of our age. To be sure, they can be rolled back and should never be taken for granted, but for the present their legal status within international law and their percolation into other areas of international and domestic law make them, warts and all, an integral part of the world we inhabit. They have emerged as the result of legislation from above and struggles from below. They are both instrumentalised in the service of states and are claimed as a resource for ‘civil repair’ for the wrongs committed by states (Alexander 2006). They are no longer a ‘mere idea’ in the heads of philosophers like Kant, but belong to what Hegel called the ‘objective spirit’ of our age. As part of our world they are external to our consciousness of them and, like all other juridical forms, their normative significance is equivocal.

Beyond Normativity

Strong normative reasons have been put forward to affirm the legitimacy of this development. At the end of a century that has known unprecedented levels of organised violence committed by states or quasi-state bodies, the expanded role of human rights is justified as a necessary response to the state’s loss of innocence. It promises to protect the rights and welfare of vulnerable groups, prevent aggressive wars and colonial conquests, compensate for the side-effects of exclusively national forms of decision-making, generalise norms of democratic legitimacy, and hold the state to account for its actions and its highest officials accountable for their crimes. The expanded scope of human rights is sometimes justified as a supplementary way of addressing the negative consequences of global marketization (Habermas 1998) and above all as embodying the universalism always implicit in the idea of rights, but diverted or corrupted by their insertion in a framework of national competition (Chernilo 2007). At the same time, serious legitimacy problems are visible in the limited capacity of the existing system of rights to redress global social inequalities (Pogge 2002), or to regulate the aggression of big powers (Sands 2006), or to match the democratic validity possible in the case of civil and political rights (Habermas 2006; Chung 2003) or indeed to overcome systematic political bias in their interpretation and application (Habibi 2007). The chasm between the abstract idea of human rights and concrete social practices marked by violence, poverty and exclusion is one expression of what has been described as the ‘legitimacy crisis of world society’ (Brunkhorst 2010). In effect, the modern world order appears increasingly bifurcated between the idealism of human rights and the reality on the ground.

In this context, we find that social theory itself looks in two opposite directions. One is toward the idealisation of human rights, the other toward their degradation. The idealised view of human rights is apparent in a cosmopolitan jurisprudence which speaks of the human rights revolution as transforming law from an instrument of power into the crucible of power’s dissolution, defines the transition from classical international law to contemporary cosmopolitan law as one in which power politics gives way to the authority of international law itself and anticipates a world order in which political judgment is replaced by a wholly legalised order to come (Smith 2007). In its more conservative manifestations this idealisation of human rights tends to justify the existing world order. It offers a more or less accurate empirical description of international human rights and humanitarian law with the aim of uncovering the idea of ‘right’ in every legal form it finds. It fastens on to these elements of international law to prove that it is now rooted in the universal idea of human freedom. This conservatism is not to be faulted for saying that the expanded scope of human rights is normatively defensible, but for treating it in ideal terms as (say) the realisation of the cosmopolitan vision of ‘perpetual peace’ put forward by Kant at the end of the 18th century. In its more critical manifestations the idealised view of human rights aims to transform the existing world order and construct another based exclusively on the idea of human rights. It is proposed that human rights should be legislated through a global parliament, adjudicated through a network of world courts, and enforced through a UN army and police (Cohen 2004). Its vision is of a wholly legalised international order in which human rights finally trump the exercise of power: the politics of human rights is conceived here as an anticipation of a world in which human rights are fully embedded within an international legal framework and all violations are either prosecuted as criminal acts or adjudicated in other ways through the courts (Smith 2007).

The two faces of ideal thinking give to the cosmopolitan account of human rights an ambiguous appearance: either one of endorsing the age in which we live or of striving for a radical, perhaps Utopian, transition (Hirsh 2003; Fine 2007). Either way, the fact that the enlargement of international law has occurred in a radically asymmetrical political economic order suggests that the expanded scope of human rights should not be viewed through this rose-coloured lens as the final culmination of the displacement of power by right, but rather as a necessary stage in the conflict-ridden development of the system of rights as a whole. The legitimacy of human rights lies both in supplementing the functional capacities of nation-states and in resisting the temptation of nation-states to imagine themselves as quasi-divine bodies, but this does not mean that human rights can substitute for the protective functions of nation-states or that they do not suffer their own legitimacy problems. Such a stance would break the sense of continuity we need to retain between the challenges our predecessors faced in the past and the problems and tasks we inherit today (Johnson 2008).

The other direction social theory looks toward is one that is deeply contemptuous of or indeed hostile to the very idea of human rights. A hermeneutics of suspicion has been constructed in which human rights are presented as little more than a global hypocrisy, an ideological smokescreen behind which interests and power operate with temerity, a fraud designed to stigmatise enemies and reward friends, or a device intended to make national borders vulnerable to intervention by imperial powers. Sometimes in the name of ‘Marxism’ or Carl Schmitt or ‘decoloniality’, we hear it said that it is naive to think the real world operates on human rights principles (Balibar 2004; Zolo 1999) and ‘orientalist’ to impose what is a ‘Western’ idea on the rest of humanity (Mignolo 2000). Such antinomian radicalism is prone to reduce human rights to an ideology of US power and associate it with the moral mission the US undertook to combat ‘evil’ in the world. More abstractly, the idea of human rights is seen as a top-down imposition on human beings who have been reduced to ‘bare life’, deprived of any capacity to enact their own rights and made dependent on others to intervene on their behalf (Agamben 1998, 2000; Ranciere 2006).3 The gap between the abstract idea of human rights and an underlying inhuman reality tempts this radical consciousness to view human rights through a lens darkly.

There is a current of critical thought that argues that the expanded scope of human rights is expressive of the degradation of international law that has occurred since the halcyon days of the period of decolonisation when its focus was on the establishment of the right of peoples to self-determination. It has been claimed that the right of nations to self-determination was the ‘revolutionary kernel of international law’ and that the development of human rights has basically functioned as a displacement of this right (Bowring 2008; Harvey 2005; Miéville 2005). This critical perspective is rooted in the normative requirements of decolonisation movements, but does not address the normative deficits that gave rise to the expansion of human rights in the first place. The dark side of the right of nations to self-determination was the supremacy of the will of the nation over legal and abstract institutions; that is, the transformation of the state from an instrument of the law into an instrument of the nation. Its practical effect, as Hannah Arendt understood, was that ‘only nationals could be citizens, only people of the same national origin could enjoy the full protection of legal institutions’ (Arendt 1979: 275). The right of nations to self-determination functioned to delegitimise empires, but also to create a class of people (refugees, stateless persons, asylum-seekers) who, in losing rights of national belonging, were deprived of the right to have any rights at all. In this context, the enlarged scope of human rights may be viewed as a necessary supplement (though not a substitute) for the right of self-determination.

In the face of this negativity we should recognise that universal rights are not a ‘mere semblance’. Formal freedom is not the same as no freedom and rights do not become a fiction because one can point to material interests behind them. Universal human rights have an efficacy of their own which leaves traces in the materiality of social life. Just as the idea of formal freedom in the French Revolution set in motion all manner of political demands far beyond the original conception containe...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Acknowledgments
• Introduction On Legitimacy Once Again: New Challenges in World Society
• PART I UNIVERSALISM AND LEGITIMACY
• PART II SYSTEMS AND LEGITIMACY
• PART III DIFFERENCES AND LEGITIMACY
• Index