Law and Cultural Studies: A Critical Rearticulation of Human Rights 2018039632, 9781472414861, 9781315575377, 9781317156222, 9781317156215, 9781317156208

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Law and Cultural Studies

New and unremitting violence linked to state, interstate, and private actors has precipitated a renewal of social movements, many of which act in concert with human rights ethos and legal conceptions. Yet, cultural studies has so far had little engagement or institutional connection with these movements. How can cultural studies as a progressive discipline think with, and make space for, rights-inflected legal and humanitarian practices? This book considers the ways in which cultural humanism and the critical approach to rights, and more broadly between culture and law, can be brought together to open a new intellectual space to allow cultural studies to better engage with the current challenges presented by social and political struggles worldwide. It lays out the central theses essential for constructing a critical view of human rights, and then advances a distinctive critical model of analysis that incorporates insights of postcolonial legal theorists and jurists from the Global South and important cultural theorists from the North, while rethinking law, rights, and social movements as something constituted by multiple legal modernities. Through case studies covering questions relating to sovereignty, citizenship, refugee displacement, human rights defenders, and gender and sexual rights, Law and Cultural Studies develops a means by which the practice of cultural studies can be reinvigorated around the legal spaces, institutions, and movements tied to human rights struggles. As such, it will appeal to scholars of cultural and media studies, critical legal studies, political theory, postcolonial studies, and human rights. John Nguyet Erni is Fung Hon Chu Endowed Chair of Humanics, Chair Professor in Humanities, and Head of the Department of Humanities and Creative Writing at Hong Kong Baptist University. He is the author of Unstable Frontiers: Technomedicine and the Cultural Politics of “Curing” AIDS, coauthor of Understanding South Asian Minorities in Hong Kong: A Critical Multicultural Approach, editor of Cultural Studies of Rights: Critical Articulations and Visuality, Emotions, and Minority Culture: Feeling Ethnic, and coeditor of Internationalizing Cultural Studies: An Anthology and Asian Media Studies: Politics of Subjectivities. In 2017, he was elected President of the Hong Kong Academy of the Humanities.

Law and Cultural Studies A Critical Rearticulation of Human Rights

John Nguyet Erni

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 John Nguyet Erni The right of John Nguyet Erni to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Erni, John Nguyet, author. Title: Law and cultural studies: a critical rearticulation of human rights / John Nguyet Erni. Description: 1 Edition. | New York: Routledge, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2018039632| ISBN 9781472414861 (hbk) | ISBN 9781315575377 (ebk) | ISBN 9781317156222 (web pdf) | ISBN 9781317156215 (epub) | ISBN 9781317156208 (mobi/kindle) Subjects: LCSH: Human rights. | Culture—Study and teaching. Classification: LCC JC571 .E745 2019 | DDC 323—dc23 LC record available at https://lccn.loc.gov/2018039632 ISBN: 978-1-4724-1486-1 (hbk) ISBN: 978-1-315-57537-7 (ebk) Typeset in Times New Roman by codeMantra

I dedicate this book to my parents and siblings.

Contents

Acknowledgments

ix

Prologue: Cultural Studies and Critical Human Rights: An Immanent Encounter

1

1 Who Needs Human Rights? A Renewal

6

2 Eight Theses on Human Rights: A Resource for Critical Engagement 3 The Juris-Cultural: Cases and Perspectives Case 1: Human Rights in the Neoliberal Imagination: Mapping the “New Sovereignties” 72 Case 2: Citizenship Management: On the Politics of Being “Included-Out” 89 Case 3: Negotiating Refuge: Further Thoughts on the Politics of the “Included-Out” 107 Case 4: Queering Laws, Transfiguring Marriage 118 Case 5: A Perspective on the Field of Weiquan 137 4 Legal Modernities Index

23 61

177 223

Acknowledgments

To write this book, I ventured into an amazing array of spaces of advocacy work, conferences, and intellectual/pedagogical discussion in human rights. Many friends and acquaintances made it possible for me to learn and formulate my own thinking in human rights politics, while keeping the writing and teaching of cultural studies close to my heart. Some of the more interesting and eye-opening encounters took place in law schools, where I met community groups, human rights advocates, analysts, legal practitioners, and critically-minded legal scholars and graduate students. Without these encounters, I could not have opened the particular pathway of my own reformulation of both human rights and cultural studies. I would say that there were three important periods that made a lasting impact on me. The visionary Carol Vance gave me the first opportunity to be exposed to critical human rights work when she offered me an inaugural research fellowship in the then newly established Program for the Study of Sexuality, Gender, Health, and Human Rights in 1999 at the School of Public Health of Columbia University, New York. At once exhilarating, challenging, and often frustrating, the fellowship period sparked the thoughts for pursuing various projects that eventually culminated in this book. Then, teachers and mentors of the LLM program in Human Rights at the University of Hong Kong, in which I enrolled in 2003–2005, showed me how to study the law while problematizing it. Yash Ghai, the eminent legal scholar and a skilled mediator of law, introduced me to his critical legal pragmatism as well as his wealth of knowledge about human rights practices and politics in the Global South. I thank him for supervising my thesis. Besides Ghai, Johannes Chan, Robin Emerton, Jill Cottrell, and Kevin May gave me much encouragement. Then, there was my experience immersing in the work of Pink Alliance, one of the oldest nongovernmental organizations (NGOs) serving the sexual minority community in Hong Kong. My fellow advocates and activists offered me the opportunity to be the organization’s Chair in 2013–2015. They taught me many new skills to face situations that no amount of academic experience would prepare me for. Despite the occasional quarreling, I continue to feel privileged to have been alongside them to mount actions and campaigns. The Pink Alliance experience has a

x Acknowledgments considerable impact on my thinking in social movement and its love–hate relationship with human rights. Over a span of more than a decade, many friends have invited me to develop my ideas. They have offered criticisms that helped to sharpen my thinking. Barbie Zelizer at the Annenberg School for Communication offered me the opportunity to be Visiting Scholar-in-residence in 2008. The time spent with Barbie, as well as Katherine Sender, Michael Delli Carpini, Monroe Price, Marwan Kraidy, Klaus Krippendorff, Regina Austin, Lokman Tsui, and others, gave me more confidence to pursue this project. There have also been many other visits to universities and research centers in various places, thanks to friends’ invitations for me to try out ideas through lectures, workshops, and research collaborations. These include Larry Grossberg at the University of North Carolina, Chapel Hill; Rhee Suk Koo, Terry Murphy, Kim Hyun Mee, and others at Yonsei University, South Korea; Andy Wang, and others at Academia Sinica, Taiwan; Chua Beng Huat at the National University of Singapore; Gil Rodman who invited me to lecture at Sorbonne University in Paris and the University of the Free State, Bloemfontein, South Africa; Baden Offord who invited me to lecture at ­IAFOR events and at the Australian Academy of the Humanities; Audrey Yue, Fran Martin, Gilbert Caluya, Dan Edwards, Rimi Khan, and others at the University of Melbourne; Gerard Goggin, Fiona Allon, and others at the University of Sydney; Koichi Iwabuchi and others at Monash University; Laura Grindstaff, Sheldon Lu, and others at the University of California–Davis; Ted Striphas and Phaedra Pezzullo when they were at Indiana University, Bloomington; Raka Shome when she was at Villanova University; Anne Balsamo when she was at the New School for Public Engagement, New York; Toby Miller when he was the University of California–Riverside; Helen Leung, Christine Kim, and others at Simon Fraser University, ­Canada; Jeroen de Kloet at the University of Amsterdam; Chris Lee, Henry Yu, Phanuel Antwi, and others at the University of British Columbia, Canada; and Liu Shih Diing at the University of Macau. In 2017, at the University of Sydney, friends at the Gender and Cultural Studies Department made it possible for me to spend my sabbatical leave to concentrate on finishing this book. I thank Elspeth Probyn, Meaghan Morris, Fiona Allon, Tess Lea, Jane Park, Kane Race, Natalya Lusty, and Astrida Neimanis for their company and encouragement. I also thank the postgraduate students there (past and present) who offered me such a stimulating and hospitable environment to work in, including Daren Leung, ­A lifa Bandali, Rachel Cole, Jan Filmer, Nick Fogarty, Liam Grealy, Christen Cornell, and others. I have been fortunate to be supported by colleagues in the Department of Humanities and Creative Writing at Hong Kong Baptist University, so that I was able to continue to pursue my research and writing while being the Head of the Department. I thank everyone in the HMW family, including Chester Chan, Charles Cheung, Gladys Chong, Chow Yiu Fai, Bonnie

Acknowledgments  xi Fung, Jacky Ho, Louis Ho, Amy Lee, Lucetta Kam, Nikki Lau, Leung Po Shan, Kwai-cheung Lo, Peter Lok, Fiona Lu, Eva Man, Christopher Patterson, James Shea, Jue Sun, Daisy Tam, Tong Yui, Jalal Toufic, Dorothy Tse, and KK Wong. Warm gratitude also goes to former colleagues in the Department of Cultural Studies at Lingnan University, where I worked in 2007–2013. To Stephen Chan, Chan Shun-hing, Ip Iam Chong, Hui Po-keung, Lau Kin Chi, Law Wing-sang, Lisa Leung, Li Siu-leung, Man Shan Shan, Meaghan Morris, Josephine Tsui, and Yau Ching, I thank you for your support and patience, especially when I was Head in 2010–2013. No one’s work can be sustained, especially for a project that lasted over a decade, without the care of many friends from near and far. I am exceptionally blessed with support and encouragement from Ien Ang, Anne Balsamo, Billy Chan, Jachinson Chan, Michael Chan, Xam Chan, ­Connie Cheng, ­Edward Cheung, Chow Yiu Fai, Nigel Collett, Deborah Davis, Jeroen de Kloet, Neal Fan, Anthony Fung, Gerard Goggin, Helen Grace, Laura ­Grindstaff, Larry Gross, Larry Grossberg, Lisa Henderson, Louis Ho, ­Reggie Ho, Ian ­Holliday, Wendy Hui, Mette Hjort, Steven Ko, Christine Kim, ­Katherine Kwok, Mark Latonero, Clara Lee, Francis Lee, Kaman Lee, Michael Lee, Daren Leung, Helen Leung, Lisa Leung, A ­ ngus Li, Kris Li, Angel Lin, Ken Liu, Eason Lu, Fran Martin, Kevin May, Sheila ­McNamee, The Mos (­A lbert, Julia, Edmund, Polly, Pearl, Angie, Linda, Maria, ­Kelvin, and Monnie), Meaghan Morris, Toby Miller, Anna Ng, ­Ricardo Ng, ­Jonathan Ong, Jane Park, Christopher Patterson, Phaedra ­Pezzullo, Johnny Poon, E ­ lspeth ­Probyn, Kelsang Rabten, Gil Rodman, ­Ellen Seiter, Greg ­Seigworth, Jennifer Slack, Anthony Spires, Ted Striphas, Paul Tam, Eric Tsang, Raymond Tsang, Matthew Tsoi, Lokman Tsui, Tony Wan, Greg Wise, Samuel Wong, Stephen Xavier, Audrey Yue, Jackel Yip, Stephen Yip, Barbie Zelizer, Nick Zhang, and many more. Finally, I thank Sanford Sing Li for bringing happiness to my life, and my wonderful, generous, kind, and funny siblings who have been my “bestfriends” for my whole lifetime: Anne, Jackie, Edwardo, Arnold, and Jimmy. Ultimately, I am indebted to my parents, Elias Rosano Erni and Tran Nguyet Siao, who, in their own ways, taught me how to treasure my basic freedoms. Some of the materials in this book have been published previously; most of them have been revised and updated. The author thanks the various publishers for their permission to reprint the earlier version of the following works: 1 Erni, John Nguyet (2009). “Human Rights in the Neo-liberal Imagination: Mapping the ‘New Sovereignties,’” Cultural Studies, 23(3): 417–436. 2 Erni, John Nguyet (2012). “Who Needs Human Rights: Cultural Studies and Public Institutions.” In Meaghan Morris and Mette Hjort (eds.), Creativity and Academic Activism: Instituting Cultural Studies. Hong Kong: Hong Kong University Press, 175–190.

xii Acknowledgments 3 Erni, John N. (2014). “Marriage Rights for Transgender People in Hong Kong: Reading the W Case.” In Deborah Davis and Sara Friedman (eds.), Wives, Husbands, and Lovers: Marriage and Sexuality in Hong Kong, Taiwan, and Urban China. Palo Alto: Stanford University Press, 189–216. 4 Erni, John Nguyet (2016). “Citizenship Management: On the Politics of being Included-out,” International Journal of Cultural Studies, 19(3): 323–340.

Prologue Cultural studies and critical human rights: an immanent encounter

As deeply contested as they are as a genre of political theory and practice, human rights have not vanished from our political life because rights have an unusual capacity to inspire protection for those who need it. I say inspiring protection in order to suggest the immanent character of rights. The historical evolution, philosophical roots, humanistic values, political functions, and cultural/symbolic performances of human rights can all be said to lie on the very plane of immanence, implying an unpredictable abundance that is constitutive of the human rights political project itself. As we know, the vital philosophical notion of immanence has been closely identified with Spinoza and Deleuze, shadowed strongly, of course, by Nietzsche (Mandarini, 2010; Shrift, 2006). Nietzsche’s harsh rejection of the Platonic-Christian foundation of Kantian philosophy, has long cast serious doubts on universal idealism. Yet the allure of universal idealism, broadly expressed in transcendentalist forms, remains today. Various versions of Kantianism continue to dominate the ethical–aesthetic–political landscape, especially in the spaces of progressive human rights work (Skott-Myhre and Tarulli, 2010). Yet the long, drawn-out debate between the politics of transcendence and that of immanence (Perello and Biglieri, 2012; Schutz, 2011) has ramifications on how we think about human rights. Within the domain of state sovereignty, for instance, the unsteadiness of human rights is essentially reflected in the degree of creativity of state craftsmanship. State creativity in governance can involve an exercise of its imperial power to regulate, restrict, or even distort human rights; yet the same governing body can also exercise a creativity that projects an open, flexible horizon of rights dispensation typically couched in the name of freedom, benevolence, and care. It can be said that the state creative imperialism in disciplining human rights corresponds to the axiomatics of transcendence, which is why this kind of imperialism often contains elements of faith, with murmuring echoes of theology. As for state benevolence and flexibility in opening up a movement for human rights, this kind of state creative management can be said to posit a horizon of immanence. While critical scholars of human rights are mired in the debate between transcendence and immanence, state power has long

2 Prologue learned to modify itself so as to envelope both the disciplining of, and opening up of a movement for, human rights. This may explain why, in actual living terms, we often feel precarious about human rights. Rights are often felt to be both liberating and restrictive at the same time. There are many reasons for feeling restricted in our enjoyment of human rights, including chiefly the alienation felt of the overwhelming legalism of rights talk. Yet there are reasons for feeling that there are many moments in liberal societies, our rights are protected too, a feeling derived from forms of sociality and practices of solidarity experienced far beyond the legal world. In short, human rights continue to provide a modestly seductive option for living because rights present a plane of flux that travels from regulation to emancipation and back (de Sousa Santos, 2002), prompting us to find tentative spaces of our own creativity in the face of a mutating state sovereignty that has learned to be both paternalistic and caring, dominating and responsive, and transcendent and immanent. In cultural studies, we too have abided by a sense of modesty about the discipline’s own political possibility. This modesty, according to Lawrence Grossberg (2010), stems from the fact that it “refuses any and all dreams of universal, absolute, complete, and perfect truth, and at the same time, it refuses to give up the dream of truth to the burdens of relativism” (9). Locating, as well as articulating, the truth of our political conditions entails a critical methodology known as radical contextualism, Grossberg (1997; 2005; 2007; 2018) has argued again and again over the years. He puts it, simply, that the critical methodology of radical conjuncturalism is about “tell(ing) the best story that can be told, about any context, within that context” (Grossberg, 2010, 9). In cultural studies, then, the echo of a philosophical rejection of transcendence is clearly evident. Yet more importantly, as a political project, the modesty as claimed by Grossberg reflects an honest and vital tendency of immanence contained in the very notion of radical contextualism: There is no originary context for politics, there is only the best effort to construct, analyze, and narrate the context and, in doing so, produce a context for itself. Whatever knowledge and politics are imagined through this methodology, they tend to appear as a plane of immanence. Grossberg insists on “proving” the political ethos of immanence in cultural studies through his own encounter at the Centre for Contemporary Cultural Studies (CCCS) at the University of Birmingham. Taking us back to the early years of CCCS, he relates a sense of discomfort people then had with dominant disciplinary organizations of the university; they gathered there to want to embark on a quest for critique without a complete or positive vision of a coherent alternative. Meanwhile, CCCS wanted to nurture a kind of epistemological outlook that went against the dominant logics of argumentation within the humanities. It felt uncomfortable with the predominant tendency of negation and binary oppositions and wanted to chart a “middle ground,” not as compromise but as immanence. The middle ground is less a mental or argumentative reference point than a plane of multiplicity

Prologue  3 that ensures that ideas would not be reduced to simple dualisms. In other words, cultural studies wants to create an anti-reductivist sense of complexity in knowledge production and political assessment as an intellectual context for its very own development, upon which it situates itself and through which it inserts itself into the world. I am outlining this brief account of what went on in the CCCS as narrated by Grossberg, not only because I see that there were important institutional memories that helped to explain the intellectual propensity of cultural studies to do anti-essentialist work but also because of how much this propensity echoes the debate over transcendence versus immanence already underway in human rights philosophical debates. Is there a way to retell the story of CCCS by enjoining its intellectual formation with that of rights philosophical inquiry and struggles, so as to work out the conjunctive possibilities raised by an epistemology of immanence when considering biopolitics, knowledge creation, the nature of violence, and social justice? Can cultural studies inject a sense of political modesty into human rights intellectual and political work, through the refusal to believe that one operates in completeness, political essentialism, or confident legal certainty? In turn, can human rights help to build more legal contextualist stories, specifying the relations of complexity in rights struggle that cultural studies tend to overlook or even ignore? No doubt, one of the important problematics that continues to animate much of cultural studies criticism is the study of hegemonic state politics. Over the past few decades of the life of Anglo-American cultural studies as a movement within the university and in various progressive spaces in society, the most visible and large-scale studies that use the CCCS model of conjunctural analysis have to do with the contextualization of the formations of authoritarian populism, on one hand, and popular conservatism, on the other hand, mainly in the UK-US political axis (figurated most strongly in the eras of Reagan and Thatcher, of Bush and Blair, and more recently of a rise of Trumpian populism (see Grossberg, 2018) and the debacle of “Brexit”). Attention is put to the accelerated reglobalization of capitalism, the clash between empire and the movements of the multitude, and the rise of new species of radical conservatism (commonly dubbed the “alt-right” in recent political language). But in this very span of historical period since the 1970s, we have also witnessed the reconfiguration of state sovereignty politics that has not only facilitated massive capital flow but also the realignment of interstate surveillance and securitization, the hardening of state borders to manage the unprecedented number and mobility of migrants and refugees, the troubling commodification of humanitarian work, and the renewed mobilization of street protests and clashes, in small and big scales across city squares and forgotten ghettoes. The trajectory of intellectual evolution of cultural studies, it turns out, has been spread out over the same period when the multiplying crises of human rights have become more and more severe and out of control.

4 Prologue In dealing with capital reglobalization, empire, and radical conservatism, the CCCS model of conjunctural analysis seeks out the spaces of the popular and of common sense, through which a critique of how consent is produced to shore up support for particular forms of state-political and economic alliances can be mounted. This approach—an amalgamation primarily of Gramscian and Althusserian methods—can shed important light on how we understand and contextualize the struggle over state sovereignty realignment, the politics of securitization, management of migrant and refugee rights, questions around the commodification of humanitarianism, and so on. There is, in other words, a war of positions going on in the popular terrain over how states escalate their violation of human rights, or reform the human rights apparatus in an attempt to win international recognition. The attention to the struggle to produce noncoercive ideological consent in the analytical methods that characterize much of cultural studies work can be effective resource for human rights analyses that too often assume complete or totalizing power of the state and its sovereignty. Indeed, human rights are internally fractured; their vagueness, multiplicity, uncertainties, tensions, and contradictions call for a critical anti-foundational method of analysis. One can find such a mode of analysis flourishing under the broad rubric of cultural studies. Surprisingly, even as cultural studies and critical human rights studies share a politics of immanence for understanding the vibrations of power and counterpower from a position of intellectual honesty and modesty, even as they were hailed from an overlapping time–space of threats to democracy and assaults to common good sense, and even as they both theorize the mobilization of the multitude as a potential source of social and political revitalization, the two projects/movements rarely speak to each other. On the philosophical plane, the cultural plane, as well as the plane of lived experience, cultural studies and critical human rights studies, in fact, share a need to co-contextualize knowledge production around social injustices, as well as to co-contextualize the common biopolitical struggles predicated upon the logics of culture, symbolism, and communication. They also share the need to co-contextualize various kinds of identity movements, as well as the capacity of these movements for counter-hegemonic resistance. Cultural studies and human rights practices have different genealogies. While the former is grounded in anti-foundational philosophy, critical sociology, critical theory in the humanities, and interpretive social sciences, the latter is influenced profoundly by Kantian philosophy and ethics, natural law, positivist legal traditions, international political science, and social movement work. While there are philosophical incompatibilities between the two, there are nonetheless intellectual, political, and even methodological synergies. To date, however, interdisciplinary dialogue or institutional alliance, let alone partnering projects and teamwork, remains rare across the two domains.

Prologue  5 I wrote this book in order to attempt to overcome the lack of affinity between cultural studies and human rights studies, with the hope to re-chart each through the other, so as to revitalize the political possibilities for both.

Works cited de Sousa Santos, Boaventura. 2002. Toward a New Legal Common Sense: Law, ­G lobalization and Emancipation. London: Butterworths LexisNexis. Grossberg, Lawrence. 1997. Bringing It All Back Home: Essays on Cultural Studies. Durham, NC: Duke University Press. Grossberg, Lawrence. 2005. Caught in the Crossfire: Kids, Politics, and America’s Future. Boulder, CO: Paradigm. Grossberg, Lawrence. 2007. “Stuart Hall on Race and Racism: Cultural Studies and the Practice of Contextualism.” In Cultural, Politics, Race and Diaspora: The Thought of Stuart Hall, edited by Brian Meeks, 98–119. Kingston, FL: Ian Randle Publishers. Grossberg, Lawrence. 2010. Cultural Studies in the Future Tense. Durham, NC and London: Duke University Press. Grossberg, Lawrence. 2018. Under the Cover of Chaos: Trump and the Battle for the American Right. London: Pluto Press. Mandarini, Matteo. 2010. “Critical Thoughts on the Politics of Immanence.” ­Historical Materialism 18 (3): 175–85. Perello, Gloria, and Paula Biglieri. 2012. “On the Debate around Immanence and Transcendence: Multitude or the People.” Cultural Studies 26 (2–3): 319–29. Schutz, Anton. 2011. “A Quandary Concerning Immanence.” Law & Critique 22 (2): 189–203. Shrift, Alan D. 2006. “Deleuze Becoming Nietzsche Becoming Spinoza Becoming Deleuze: Toward a Politics of Immanence.” Philosophy Today 50: 187–94. Skott-Myhre, Hans A., and Donato Tarulli. 2010. “Immanent Law and the Juridical: Toward a Liberative Ontology of Human Rights.” Communication and Critical/Cultural Studies 7 (3): 247–60.

1 Who needs human rights? A renewal

Reframing cultural studies This book is a collection of reflection essays and case analyses that, in different ways, attempt to forge a linkage between cultural studies of law and critical human rights politics. It is argued that this linkage is important for overcoming the respective blind spots in the analysis of the cultural politics of law, rights, and social justice within the context of an escalating crisis of a modern (legal) sovereignty that seems to both preserve and threaten rights. Therefore, this work is broadly committed to forging an articulation between culture and law in order to better understand the changing and complex political context that continuously shapes contemporary ethical debates. More specifically, in this book, I endeavor to build a closer relation between cultural studies (especially the social movement bend of the field) and human rights (especially critical legal theory as well as the pragmatic practices of the field)—seeing that both share a broad commitment to progressive social justice work—at a time of enormous global uncertainties and egregious erosion of liberties. In order to remap the ethico-political commitments of cultural studies from within a “rights imaginary,” we need to embed the practice of cultural studies inside the legal space of, the institutions associated with, and social movements connected to human rights. As stated in the Prologue, cultural studies and human rights practices have considerably divergent genealogies. The former’s grounding in antifoundational philosophy is different from the latter’s root in Kantian ethics, the former’s proximity to critical sociology is contrasted with the latter’s explicit devotion to social movement practice, and the former’s adherence to critical theory in the humanities and interpretive social sciences diverges significantly from the latter’s commitment to the natural law and positivist law traditions. While there are philosophical incompatibilities between the two, there are nonetheless intellectual and political synergies. To date, however, interdisciplinary dialogue or institutional alliance, let alone partnering projects and teamwork, remains rare across the two domains. In our world today, without having to enumerate wars, killings, brutalities, and all forms of social and economic exploitations that we see in

Who needs human rights?  7 national and international contexts, it is, nonetheless, possible to mark this current conjuncture as “the end of human rights,” as many have already suggested over the past few years (see Holder and Reidy, 2013; Hopgood, 2013; Luban, 2003; Douzinas, 2000). At the same time, however, it is equally possible for us to note a sense of ethico-political renewal of global human rights accountability that has been raised by the refugee problems, extreme environmental crises, the rise of ultra-right-wing populism, deep ethnic and religious conflicts, to name just a few. This renewal has been marked most spectacularly by mass protests and occupy movements everywhere and in less spectacular forms of mobilization (such as in the World Social Forum and in various kinds of community and art-based interventions). At the crossroads between human rights despair and human rights renewal, how should cultural studies respond, assuming that the latter is still a project committed to analyzing the changing contemporary conjuncture and is still supposed to be self-reflexive about its vocational objectives? Political theorist Jean Cohen (2005) observes that as capitalist expansion becomes more and more globalized, she conceives of two choices we have in dealing with a possibly obsolete international human rights system. We could either work to strengthen human rights legal institutions and norms by updating them—that is, by cosmopolitanizing them—or seek to suspend consensually established global rule of law in the name of “saving” human rights from “rogue” nations and fringe groups with the underlying intent of restoring the neoliberal order of “empire” (161). In this book, I am trying to think through how cultural studies can be relocated to meet the current challenges in social and political struggles worldwide and thus to remap the context for the field itself.1 My hope is to take cultural studies somewhere from which it has largely stayed away—the domain of formalized institutional rules of engagement, in general, and international human rights law, in particular—and in so doing, open a door for critical scholarship to flow. To this, Rosemary Coombe’s reminder in her important essay titled “Is There a Cultural Studies of Law?” seems useful: Although legal texts, legal forums, and legal processes have been analyzed as cultural forms, no substantial body of work demonstrating the methodological commitments, theoretical premises, and political convictions that characterize the interdisciplinary field of cultural studies has yet appeared with respect to law. (36) In the last chapter of his 1992 book, Lawrence Grossberg gave a biting critique of the American left’s failure to mobilize an antiwar struggle in the wake of the first Iraq War. There is an interesting section of the chapter that reads, “Politics as the Art of the Possible” (385). Referring to the dramatic dismantling of Apartheid in South Africa, Grossberg argues that what the

8  Who needs human rights? progressive movements did to help bring Apartheid to an end was to “mobiliz[e] popular pressure on institutions and bureaucracies of economic and governmental institutions” (391). He addresses the American left: The Left too often thinks that it can end racism and sexism and classism by changing people’s attitudes and everyday practices … Unfortunately, while such struggles may be extremely visible, they are often less effective than attempts to move the institutions … which have put the economic relations and Black and immigrant populations in place and which condition people’s everyday practices. The Left needs institutions which can operate within the systems of governance, understanding that such institutions are the mediating structures by which power is actively realized … The Left does in fact need more visibility, but it also needs greater access to the entire range of apparatuses of decision making and power. Otherwise, the Left has nothing but its own self-righteousness. (391) Grossberg’s call for an increased institutional visibility of the left, which he made at that time in response to Reaganism, is entirely relevant—if not more so—today in an era shaped by a global regime of military and economic aggression bolstered by the “reactionary Right” in the United States and elsewhere (Trump being merely an inheritance of a long period of a radical Right-moving political landscape; see Grossberg, 2018). Cultural studies and ethics In recent years, many have expressed dissatisfaction about the relevance of cultural studies. The myriad forms of intellectual and political interventions that have been made under the broad rubric of cultural studies, it has been said, have promulgated at best a discourse of general dissent but at worst a space for self-reproduction.2 Whatever “success” there is for cultural studies in engendering new intellectual formations in and outside of universities, it is generally tainted by a nagging lack of clarity or ethical force. Joanna Zylinska (2002) puts it this way some years ago: [W]hile the more overtly articulated political questions shape the cultural studies agenda, ethics seems to be its hidden, unrecognised and uncalled-for other. Whenever ethics does make an appearance in cultural studies, it risks being reduced—even if mainly by press commentators and supporters of the traditional model of “excellence” in education—to either moralism or “victim recognition.” (see also Zylinska, 2005) In ethico-political debates today, is cultural studies that which one cannot not want?

Who needs human rights?  9 I still remember being profoundly struck by a lecture Stuart Hall gave at the 1990 Cultural Studies Now and in the Future conference in Illinois, when he talked about the marginality of critical intellectuals in “making real effects in the world” (1992, 284). At that time, Hall spoke in part in response to the HIV/AIDS crisis in the United States and worldwide. If the crisis, at its deeply despairing moment in 1990, both biomedically and politically speaking, ushered in Hall’s own despair (when he said, “Against the urgency of people dying in the streets, what in God’s name is the point of cultural studies?” (284)), then what are the choices for cultural studies today when confronted by all of the political violations we see in front of us? If Hall explicitly refuses to let cultural studies off the hook (of its political and theoretical obligations), this cannot be explained by any reluctance to recognize the innovations cultural studies has brought to the political field and the enterprise of theory, but it can be explained perhaps by the urgent need to metamorphose the very notion of cultural studies as a type of practice in the world. Put more explicitly, I think the problem is in part how to recharacterize cultural studies after the exuberant proliferation of its own spaces. In academic corridors at least, is cultural studies a newly remodeled humanities discipline, a consciousness-raising flagship operation on behalf of politics in the streets, or a new form of applied research? Or can it be a reformulated type of discipline built on the advancement of pragmatic justice through a tripartite investment in critique, professional training, and public participation? I am certainly not the first person to ask this kind of question but I have in mind a specific way of (narrowly) posing the question, which is this: In the (re)turn to both distributive and recognition justice, how will cultural studies clear a space for a parallel intellectual and political engagement with human rights law as a global professional, interdisciplinary, and pragmatic humanitarian practice? Long before I decided to undertake a formal study of international law, when I believed cultural studies provided me with the impetus for a broad practice for engendering progressive political hopes, I was, in fact, naïve about either politics “in the real” or about progressive hope. I first came into contact with human rights debates through an interdisciplinary program at Columbia University in 1999. In that year, I held a Rockefeller Fellowship that enabled me to participate in Carol Vance’s then newly established Program for the Study of Sexuality, Gender, Health, and Human Rights (the program was discontinued after some years). When I participated in the program, it was conceived as an intellectual enterprise established by Vance to engage with the multiple forms of social, political, cultural, and postcolonial wars against nonnormative genders and sexualities. This enterprise culminated in the weekly seminars, which saw participation from feminists, representatives of community groups, critical-minded staff and graduate students, and human rights advocates, analysts, and practitioners. While very few of those participants directly allied themselves with cultural studies per se, the discussion in the weekly seminars intersected

10  Who needs human rights? tacitly with it by means of a shared critical sensibility, a more or less common academic vocabulary drawn from a broad Marxist, feminist, subalternist, and postmodernist ethos, and, finally, a crypto-critique of the relevance of cultural studies itself. As our discussion began to take shape around a complicated set of concerns brought about by theories of gender and sexuality, the various forms of public health practices that contoured international body politics, and the community-based activist-oriented critique, the discussion was also frequently dominated by a human rights legal perspective. A rights-based discourse in formal legalistic terms, as well as in the more informal terms of oppositional critique of law, was not only leading our discussion, it effectively colonized it. I mentioned earlier the presence of a crypto-critique of the relevance of cultural studies. The inadequacy of cultural studies, in using its analytical tools to speak about the problematics at hand, became a tacitly agreed-upon fact among the participants. The “shame,” if you will, was subtly cast in the form of cultural studies’ lack of institutional knowledge of, or strategic political capital in, either rights-based discourse or legal-based intervention. The tacit or hidden agreement about the seeming irrelevance of cultural studies, while not manifesting in any direct attack on cultural studies, nevertheless silenced it. To me, the experience was one of intellectual reinvigoration via a strange form of (self-)silencing. I found myself troubled by a certain kind of theoretical as well as political reductionism in an intellectual atmosphere dominated by human rights discourse and international law. In this particular context, are human rights discourses and international law that which one cannot not want? Mostly, I remember feeling very uneasy about a certain kind of self-­ assurance of political certainty. I felt that human rights were too easily taken as a rallying point to validate multiple modes of injury, to rehash over and over again the various forms of nationalism that inflict those injuries, or even to self-servingly advance the professional field of human rights itself. Despite the skepticism, I was, however, immensely seduced by the rights discourse and international law. I felt that those were clearly blind spots in cultural studies’ whole theoretical apparatus for thinking through questions of power and politics. The fact that a complicated engagement through an oscillation between skepticism and seduction was conducted via (self-)silencing convinced me that cultural studies somehow must render itself more “relevant” without compromising on its antireductionist stance. Facing the problem of cultural studies’ apparent lack of relevance, we may be compelled to ask what is after cultural studies as we know it today, by abandoning those elements of the field that lead to mere self-­reproduction, thus relinquishing a certain barrier to other critical impulses. Larry Grossberg (2006) has continuously called for a necessary “relocation” of cultural studies in relation to the pressing conjunctural struggles. To do so, he argues, it would require us

Who needs human rights?  11 not only doing cultural studies conjuncturally but also reinventing cultural studies itself—its theories and its questions—in response to conjunctural conditions and demand. It is for this reason, I think, that cultural studies (along with many other critical paradigms and practices) has had surprisingly little to contribute to the analysis of the very significant struggles and changes taking place within many national formations as well as on a transnational scale. Without an understanding of what is going on, cultural studies cannot contribute to envisioning other scenarios and outcomes, and the strategies that might take us down alternative pathways. (8)

Refiguring human rights Let me now briefly sketch an integrated framework of analysis that serves to redirect cultural studies toward a symbiotic convergence with human rights political and legal practices. This is a framework underscored by the notion that human rights are, simply put, a site of “ juris-cultural struggles.” I shall elaborate more on the notion of “the juris-cultural” in Chapter 3, but for now, I designate it to mean three critical dimensions: (1) a conceptual reorientation of human rights as a political representation of modernities-in-struggle, (2) a perspective of human rights as a nodal point of transnational social movements, and (3) a utilization of human rights as a global legal apparatus with notable impact on the discourse of public social justice. In what follows, I introduce these three intertwining dimensions that, in many ways, represent what I propose to be the conceptual framework for refiguring human rights from a critical cultural studies perspective. These ideas will be echoed throughout the rest of this book, with different chapters serving to provide elaborations on these three framing dimensions. Human rights as modernities-in-struggle The genealogy of the modern human rights regime suggests that not only were distinctive states engaged in a search for a common humanity, they were also in search of a common modernity. Those were at least the expressed motivations for constructing a new and peaceful international community in the early twentieth century. The price for peace and stability took the form of an enactment of a moral-juridical discourse of universal rights buttressed by the rational science of international relations. In Chapter 4, I shall provide a thorough discussion of the important question of “legal modernities” that, I shall strongly argue, undergirds the entire conceptual structure of human rights. Returning to the enactment of the moral-juridical discourse of universal rights, it is noted that in this embryonic stage of industrial modernity, there

12  Who needs human rights? were already two signs that powerfully pointed to a fragility of that universalist project. First, the League of Nations formed at the end of World War I instituted a series of minority treaties as soon as a remapping of territoriality was underway in Europe. It was realized that the redrawing of state borders and the creation of new states necessitated the creation of minority treaties and declarations to protect displaced ethnic groups, especially those in Eastern Europe. This was the first sign of a nascent but localized particularism in the world conception of human rights. But a more serious threat to universal rights came in the contentious debate over the question of slavery. The reluctance of many members within the League to abolish slavery, needless to say, seriously called into question the moral foundation of the rights discourse. Despite efforts to address the question of slavery, such as the 1926 Slavery Convention, the notion of a unified modernity was breaking at the seams. With that, the property-based conception of human rights looked all too suspect, and the concern for the plight of workers felt all too phony. Yet at a deeper level, this second sign that punctured the universalism in human rights revealed a larger problem, which is the question about modernities-in-struggle. What the modern system of human rights exposes is a competition of modernities, manifested through rivalry among immutable colonial powers as well as recognition of vestiges of cultural differences around the globe. Western nations formed their own power bloc in order to proffer Enlightenment ideals of human emancipation, while continuing to advance their imperial interests around the globe. Meanwhile, preindustrialized African nations banded together to formulate what an appropriate rights regime might look like for their indigenes. The League of Nations was widely perceived as a failed revolutionary project, since it succeeded neither in banishing armed conflicts nor in inaugurating a new modernity of equality and human emancipation (see Goodale, 2009; Ishay, 2007). The history of human rights leading up to the current moment continues to annex a history of encounter between industrial and postindustrial modernity of the West and alternative visions of modernity embodied chiefly by the colonized others. Agrarian modernity, Islamic modernity, socialist modernity, and subaltern modernity: these are but provisional notations gesturing toward visions of humanity and of rights that are ­excluded from, or made secondary to, colonial modernity. It is, therefore, not by chance that the modern human rights structure under the United Nations saw a stratification of rights into primary and secondary rights or successive “generations” of rights. The second and third generations of rights are those rights that are most closely relevant to non-Western nations, including development rights, cultural rights, indigenous rights, and various forms of social and economic rights. Meanwhile, the imagination of primary or first-generation rights coincides with the political

Who needs human rights?  13 imperative of protecting industrial interests, processes of marketization, Judeo-­Christian rights, and the development of the legal architecture of modern neoliberal governance. One of the most visible and controversial retort to the hegemonic discourse of primary rights linked to Western liberal models of democracy has to be the one that came from industrialized East Asia. With the 1993 Bangkok Declaration on Human Rights, an apparent consensus was reached to oppose the universalizing norms in the Western conception of human rights. The Bangkok Declaration attempted to reframe human rights as a question of sovereignty defense by Asian nations—a kind of putative regional rights platform to plan their own alternative future without interference from the West. Article 6 declares that “all countries, large and small, have the right to determine their political systems, control and freely utilize their resources, and freely pursue their economic, social and cultural development.” Here, an ethno-national argument is clear, when elevated to the status of a political consensus for a regional right of self-determination, emboldening Asian governments to achieve hegemony over an ostensibly “alternative” polity. The consolidated tag of the “Asian values” debate, in fact, exposes the chauvinistic nationalisms of industrialized East Asia, which in many ways mirror the colonial nationalisms of the industrialized West. In fact, right after the Bangkok meetings, in barely three months’ time, the Vienna D ­ eclaration in 1993 saw many nongovernmental organizations (NGOs) from the developing world, including those from Asia, reject the “Asian values” push. Many of the groups still wanting to work toward establishing local human rights commissions in their countries, nonetheless, refused to let the ethno-­nationalism of the Bangkok Declaration go unchallenged (see Durbach et al., 2009).3 Pheng Cheah (2006) takes this kind of sentiment one step further by arguing that the polarization of modernities masks an underlying hegemonic order: [W]hat is at stake in the elaborately media-staged skirmishes between states over international human rights [at the Bangkok meetings] is not really Western or Northern imperializing universalism versus Eastern or Southern cultural difference. The two poles of that binary opposition are complicitous. The fight is between different globalizing models of capitalist accumulation attempting to assert economic hegemony. The coding of this fight in terms of cultural difference diverts our attention from the subtending line of force of global capital that brings the two antagonists into an aporetic embrace against the possibility of other alternatives of development, feminist or ecological-subalternist. (148; his emphasis) Here, Cheah strikes a cautionary note on any sense of statist alterity that captures “culture” as simultaneously a defense and a mask. What is

14  Who needs human rights? ultimately excluded is the possibility of an autonomous politics of human rights in the Global South, the site of a range of emergent modernities that have variously been called indigenous, post-developmental, or post-­socialist. The human rights system as a whole has not adequately responded to these emergent modernities that, despite their marginality in the global geopolitical sphere, must struggle with all forms of political and economic violence brought about by global capitalist expansion. We must ask: How does the modern human rights system move forward to address post-­Enlightenment and postcapitalist rights by considering the rights discourse’s own postcolonial condition? How do we reconceive of an outside to the modern human rights regime, by thinking from within the regime’s configuration of modernities? These are important questions, to which I will provide a detailed discussion in Chapter 4. Suffice it to say, to work through this conundrum, some international lawyers from the Global South have sought to reconceptualize a new, and perhaps more genuine, conception of universalism in human rights. They argue that international law must be “decolonized,” without threatening the universal applicability of international law itself. They have called for a new international economic order and the establishment of the UN Conference on Trade and Development (Korner et al., 1986). They believe that colonial history has already enabled an exchange between the West and the colonized nations over the value of humanity, rights, and indeed universalism. Some human rights law scholars propose that human rights reform entails both an excavation of hidden sources of positive value in the occidental universal value system—a kind of appeal to Kantian peace (Wright, 2001)—and an injection of multiple universalisms drawn from different world traditions and epistemological systems into international law itself (Weeramantry, 2004). Both strategies involve only a partial repudiation of the universalism of international law because they maintain that the universal applicability of international law is essential for the human rights system as a whole. But more importantly, such approaches contend that subaltern cultures in emergent modernities are equally entitled to inform universal values and, even more interestingly, that the process by which cultures were subalternized already involved a colonial exchange that had historically shaped what we now take to be universal values (Pahuja, 2005). What results from our discussion thus far is that human rights and international law together form a political representation of modernities-in-­ struggle. The articulation between a continuous analysis of the colonial origins of rights and the global applicability of international law ensures that no one modernity will forever dominate the rights discourse. At the heart of human rights and international law, there is thus a sense of a productive ontological instability. Among other things, this ontological instability means that we shall continue to have to struggle with universalism and its paradoxes in human rights, from within “legal modernities” (see Chapter 4).

Who needs human rights?  15 Human rights as transnational social movements Importantly, human rights constitute an axis in a transnational range of social movements. The mass organizations today are more likely than their predecessors in the Cold War era to form an intricate collectivity capable of transforming the traditional fixed positions, whether it is the position of the peasant, the unionist, the precariat, the woman, the black, or even the intellectual. With “horizontal networking” as its modus operandi, this collectivity strives to link up various scales of social movements from different locales and regions, generating both planned and impromptu events to lend support to people and groups that have been unjustly treated by the state, raise popular consciousness, oppose repressive policies, and stage direct actions. Interestingly, in the horizontal networks of social movements, human rights occupy an ambivalent position. It is true that some social movements are organized to precisely oppose the liberal logic and a perceived vertical power structure that underpin human rights organizations. Indeed, we must not forget that tension often exists between the broad civil society sector and human rights groups over where to put the appropriate focus of their efforts (e.g. humanitarian, welfare based, or treaty based; see Mertus, 1999) and what kind of relationship they should maintain with the state organs (i.e. whether it is more or less desirable to acquire legal recognition by the state). Moreover, for a long time, a vast part of Latin America saw no organic connection whatsoever between their struggles and human rights, seeing the complicity of, or at least an unfortunate connection between, human rights bureaucracies and state-based power (de Sousa Santos, 2007). Yet, despite the ambivalence, social movements have never strayed far away from the political ethos of rights. The interconnection of rights as a fundamental principle can provide an important political strategy for articulating social movements as a differentiated but interrelated field. International human rights law provides a sufficiently decentered conception of the political sphere to imagine not only individual rights but increasingly also collective rights. For instance, when rights are viewed as always already “inter-rights,” a notion that demands a rigorous juxtaposition and balance among various forms of justice claims, they can become a productive locus for moving beyond individual rights to analyze how best to strategize collective claim-making. In the 1990s, a conception of inter-rights protection was, in fact, a basis for promulgating in international law a new principle of “legal intersectionality,” which began to demand innovative combinations and realignments of rights claim-making in order to redress the blind spots inherent in any singular human rights instrument. Originally conceived on the basis of individual rights, the principle of intersectionality can, nonetheless, be conceived to refigure violence as violence against differentiated but connected groups. In other words, it is a principle that can be expanded to

16  Who needs human rights? cover both intrinsic intersectionality (e.g. in the case of a multiply positioned individual seeking rights) and extrinsic intersectionality (as in the case of a whole group seeking a multitude of interrelated rights; see, for example, Grabham et al., 2009). There is thus an important realization behind the articulation of a technical legal intersectionalism and global social movements, which is the fact that human rights create interpretive communities. A majority of social movements—especially from the Global South—emerged largely as a response to the new, harsh forms of global economy. Yet the same social movements are never contented with a mere economic analysis of their miseries. Social movement actors scrutinize the role that human rights play in people’s everyday struggles and, in turn, the impact of those struggles on rights-based politics and law. A scrutiny of rights can indeed open up an analysis of the dynamics between institutional forms of power and “extra-institutional” aspects of resistance at the global and national levels (Rajagopal, 2003). Collective mobilization occurs at one level based on a reading of interconnected forms of everyday struggle and dissent to form what Rajagopal (2003) calls “texts of resistance” (402). Interpretive acts by individuals and groups in social movements can help to clarify issues of rights; they can also enact contestation to the legal language and practice of rights. To configure social movements as interpretive communities is, first, to repudiate any conception of unitary agency in movement struggles, given the plurality of subject positions and pragmatic motivations behind social movements and, second, to identify actors in nonstate and extrajudicial spaces who are either the perpetrator or the recipient of all forms of violence. This radically contextual understanding of social movements has the potential to forge a new conception of human rights discourse that takes into account the complex relations between its institutional, legalistic, and even ostensibly elitist tendencies, on one hand, and its lived effects as an outcome of nonuniversalizing and even antirationalist consideration of everyday struggles on the other hand. Human rights as a global legal apparatus Social movements politicize and humanize the discourse of rights by paying attention to the life spaces of peoples and their everyday struggles. However, this does not erase the importance of the institutions of law that affect those very life spaces, nor does it suggest that social movements are always and everywhere opposed to the tools of law to effect change. Before we consider the specificity of international human rights law, we need to first reconcile common assumptions, especially among left intellectuals, about law as the hegemonic center of modernity. No doubt it is important to keep a critical stance toward all restrictive forms of power that deny recognition of differences and promote an ideology of state neutrality. On this latter item, it is important to recognize that the kind of authority that can impose its

Who needs human rights?  17 own will on how social, economic, and cultural resources are distributed in society while claiming a transcendent position of neutrality is the kind of authority that must be demystified. Commonly, many of us share an understanding that law is not the same as objectivity, objectivity is not the same as neutrality, neutrality is not the same as fairness, and fairness is not the same as justice. Yet in liberal societies where many of us live, most people, as if in a permanent suspension of belief, accept the law as a more or less coherent process or protocol (Ross, 1998). Many of us are willing to risk our cultural security so as to trade for the possibility of justice and empowerment. And this applies to people of different ideological orientations. Sufficiently numerous liberals and conservatives, including the left and right intelligentsias, invest in the general idea of a judicial process that will produce “legally correct” results (Kennedy, 2002). As to whether this blanket investment in law will lead us to a strengthening of legal competence to effect social change or to a kind of political banality remains an open question. What is important, though, is for us to recognize the overdetermined nature of legal reasoning and the legal process itself. This necessitates rethinking three problematics. First, we need to recognize that the question about the site of legal knowledge, or the assumption that the courts, law schools, and law societies as the singular formation or site of legal knowledge, needs to be replaced by a recognition of the multiplicity of legal consciousness and uses of that consciousness by people that form the social origin of law. It is here that the study of law connects strongly with cultural studies’ commitment to the problem of the politics of “the popular.” Second, the problem of doctrinalism—or the assumption that legal principles are the essence of law, or its only source of value—needs to be replaced by an understanding of the radically contingent nature of legal interpretations in real litigation situations. This connects with the tradition within critical legal studies of “liberal constitutionalism” in which activist liberal law professors, judges, and public-interest lawyers argue that legal interpretivism is something ­already built into law itself, especially in the provisions guaranteeing rights of various kinds (Kennedy, 2002, 180). Third, the question of legal essentialism, or the assumption that there is stable and universal distinction between legal and nonlegal practices and relations, needs to be replaced by the recognition that legal relations are always partly discursive or relationally produced. Here, the “nonlegal” means at least two things. It means all aspects of life that neither express themselves through law nor embody law. But it also means that which is fundamentally important to human life and, therefore, will be incorporated into law and policy. Both meanings of the term render any fixed distinction between law and nonlaw untenable. Understanding this can return us to the antireductionist ethos of cultural studies. In short, the legal determination of the social totality is not any simpler or monolithic than any other levels of determination—be it economic, political, or cultural. The modernist roots of law do not and cannot negate the fact that law is radically contextual and historically contingent. The power

18  Who needs human rights? exercised by law, it must, therefore, be insisted, is a matter of conjunctural struggle, whereby the admittedly absolute constituting power of law enters into an intricate negotiation with the site upon which it is supposed to constitute its own power. It bears reminding that, for instance, in Foucault’s theory of governmentality, the power of law is never conceived of as a total or totalizing sphere (Foucault’s famous phrase about cutting off the king’s head) but as a network implying an intricate interweaving of many micro-events of power and counterpower. As Rosemary Coombe (1998a) reminds us, “If law is central to hegemonic processes, it is also a key resource in counterhegemonic struggles” (35) (see also Golder, 2015). The international regime of human rights law exhibits exactly such a field or network of legal entities. Indeed, when we consider human rights law as consisting of a set of actions—fieldwork, consultation, diplomatic negotiation, drafting of covenants, monitoring, responding to violations, exerting pressure, and prosecuting—then the whole system of human rights presents itself as a critical “apparatus” in the Gramscian sense. It is an apparatus that opens on to a multiplicity of overlapping and contradictory geographies, histories, institutions, and even cultural standards of morality. This global human rights legal apparatus embeds scales (domestic, regional, supranational, and international), actors (states, individuals, groups, and international civil society), processes (documentation, protocols, making of institutions, and debating principles and values), and relations (legal, political, diplomatic, and military). To quickly illustrate, take any legal provision in an international human rights treaty—say, Article 5(a) of the Convention on the Elimination of All Forms of Discrimination Against Women, which reads, State Parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. Putting aside the liberal bias of the provision (which arguably fails to ­enshrine any substantive form of resistance available to women), it is, nonetheless, important to note how the provision encodes an entire apparatus consisting of legal actors (including state parties and ordinary citizens in public and private domains), social institutions (including family and educational institutions), and policy processes (such as legal, educational, technical assistance, even reconciliation protocols) that together act to repudiate the nexus of customs and traditions that subjugate women. More importantly, this encoding of the apparatus sets in motion a whole range of processes for legal redress, processes that are built in through (1) the state parties’ self-ratification procedure, (2) the establishment of a specific treaty body within the United Nations to monitor the condition of

Who needs human rights?  19 women’s rights among the state parties, (3) a complaint mechanism, and (4) an investigative procedure. In other words, international law acts to dis-embed forms of prejudice and violence from the social, and re-embed it with a legal safeguard based on consensual agreement over common moral principles and appropriate forms of legal remedies. Of course, there is no fixed apparatus prescribed here. Any response from the apparatus would also require a rigorous contextual analysis. Yet one thing is clear from the provision: change is mandated. A theory of apparatus is coextensive of a theory of articulation, both pointing to the complexity of a conjuncture. Lawrence Grossberg (2006) reminds us that a conjuncture is “always a social formation as more than a mere context—but as an articulation, accumulation, or condensation of contradictions” (5). Seen in this way, the international human rights regime, as epitomized by the UN structure (though it cannot be reduced to it),4 ­exhibits precisely a contradiction of different mechanisms, procedures, and jurisdictions, each carrying different aims and a wide range of levels of enforceability of international norms. Nonetheless, a common unifying goal is to produce a shift in the conjuncture. Far from guaranteeing human rights as the achievable result, the UN regime, in fact, strives to create a contingent space for the multilateral geopolitical struggle for rights in a legal environment. Most importantly, it is an actionable space.

Conclusion It is counterproductive to separate the intellectual political project of cultural studies from the institutional infrastructures of human rights. A separation would even be an epistemologically untenable assertion, given their shared political commitment to a critique of statism, nationalism, and colonialism; their iterations of identity-based cultural politics; and their shared vision of achieving some sort of social transformation. The task is not to imagine cultural studies and rights philosophy as external to each other or to position the political project of the former and the legal project of the latter as if they were mutually antagonistic. In this opening chapter, I have suggested that I see law as the aspirational space opened up by the processes of human rights reasoning, legislation, and prosecution, which could be a space for cultural studies to theorize the questions of rights, intersubjective claim-making, the performativity of the legal subject in judicial processes, and most importantly to theorize the ­attainment of justice within a formalized institutional setting (see also Fraser, 1997, 2005). My aim is to strengthen our conception of human rights and international law by making explicit the relations between rights and the questions of modernities, social movements, and legal cosmopolitanism. The integrated framework of analysis proposed above, I hope, will not only show us the axes around which human rights and cultural studies intersect but also reinvigorate an engagement with a range of international debates about, and critiques of, human

20  Who needs human rights? rights from a critical institutional perspective. It is time for us to consider the advantages, limitations, and paradoxes brought about by the theoretical and strategic possibilities of inserting human rights legal discourse into cultural studies. To facilitate this, I present in the next chapter a series of reconceptualizations of human rights as something amalgamating various disciplinary writings on human rights with the general thrust of cultural studies. I shall stage these reconceptualizations in the form of “theses” that are seen as critical resources for those researchers and students who seek a critical engagement with human rights.

Notes 1 Some notable works, which attempt to rethink cultural studies critically through political, cultural, sociological, and critical legal approaches, include Brown and Halley (2006), Cheah (2006), Coombe (1998; 2001), Douzinas (2007), Nash (2009), Rodman (2015), Sarat and Simon (2003), Turner (2012), and many more. 2 Examples of the critique of cultural studies’ political relevance include Baetens (2005) and Breen (2005). However, some have challenged the (unreflective) practicality of cultural studies. See Osborne (2006). 3 I thank Meaghan Morris for helping me to clarify this idea. 4 For example, a critique of the United Nations appears in Mégret and Hoffman (2003).

Works Cited Baetens, Jan. 2005. “Cultural Studies after the Cultural Studies Paradigm.” Cultural Studies 19 (1): 1–13. Breen, Marcus. 2005. “US Cultural Studies: Oxymoron.” Cultural Studies Review 11 (1): 11–26. Brown, Wendy, and Janet Halley, eds. 2002. Left Legalism/Left Critique. Durham, NC: Duke University Press. Cheah, Pheng. 2006. Inhuman Conditions: On Cosmopolitanism and Human Rights. Cambridge, MA: Harvard University Press. Cohen, Jean L. 2005. “Whose Sovereignty? Empire Versus International Law.” In Global Institutions and Responsibilities: Achieving Global Justice, edited by ­Christian Barry and Thomas W. Pogge, 159–89. Malden, MA: Blackwell. Coombe, Rosemary. 1998a. “Contingent Articulations: A Critical Cultural Studies of Law.” In Cultural Pluralism, Identity Politics, and the Law, edited by Austin Sarat and Thomas R. Kearns, 21–64. Ann Arbor: University of Michigan Press. Coombe, Rosemary. 1998b. The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law. Durham, NC: Duke University Press. Coombe, Rosemary. 2001. “Is There a Cultural Studies of Law?” In A Companion to Cultural Studies, edited by Toby Miller, 36–62. Malden, MA: Blackwell. de Sousa Santos, Boaventura. 2007. “Human Rights As an Emancipatory Script? Cultural and Political Conditions.” In Another Knowledge Is Possible: Beyond Northern Epistemologies, edited by Boaventura de Sousa Santos, 3–40. London: Verso.

Who needs human rights?  21 Douzinas, Costas. 2000. The End of Human Rights: Critical Legal Thought at the Turn of the Century. Portland, OR: Hart Publisher. Douzinas, Costas. 2007. Human Rights and Empire: The Political Philosophy of ­Cosmopolitanism. London: Routledge-Cavendish. Durbach, Andrea, Catherine Renshwa, and Andrew C. Byrnes. 2009. “‘A Tongue but No Teeth?’ The Emergence of a Regional Human Rights Mechanism in the Asia Pacific Region.” The Sydney Law Review 31 (2): 211–38. Fraser, Nancy. 1997. “From Redistribution and Recognition? Dilemmas of Justice in a ‘Postsocialist’ Age.” In Justice Interruptus: Critical Reflections on the “­Postsocialist” Condition, edited by Nancy Fraser, 11–40. New York: Routledge. Fraser, Nancy. 2005. “Reframing Justice in a Globalizing World.” New Left Review 36: 1–19. Goodale, Mark. 2009. “Human Rights and Anthropology.” In Human Rights: An Anthropological Reader, edited by Mark Goodale, 1–20. Malden, MA: Wiley-Blackwell. Grabham, Emily, Davina Cooper, Jane Krishnadas, and Didi Herman, eds. 2009. Intersectionality and Beyond: Law, Power and the Politics of Location. New York: Routledge-Cavendish. Grossberg, Lawrence. 1992. We Gotta Get Out of This Place: Popular Conservatism and Postmodern Culture. New York: Routledge. Grossberg, Lawrence. 2006. “Does Cultural Studies Have Futures? Should It? (Or What’s the Matter with New York?).” Cultural Studies 20 (1): 1–32. Grossberg, Lawrence. 2018. Under the Cover of Chaos: Trump and the Battle for the American Right. London: Pluto Press. Hall, Stuart. 1992. “Cultural Studies and Its Theoretical Legacies.” In Cultural Studies, edited by Lawrence Grossberg, Cary Nelson, and Paula Treichler, 277– 94. New York: Routledge. Holder, Cindy, and David Reidy, eds. 2013. Human Rights: The Hard Questions. New York: Cambridge University Press. Hopgood, Stephen. 2013. The Endtimes of Human Rights. Ithaca, NY: Cornell ­University Press. Ishay, Micheline R. 2007. “Human Rights: Historical and Contemporary ­Controversies.” In The Human Rights Reader, edited by Micheline R. Ishay, 2nd ed., xxi–xxviii. New York: Routledge. Kennedy, David. 2002. “The International Human Rights Movement: Part of the Problem.” The Harvard Human Rights Journal 15: 101–26. Korner, Peter, Gero Maass, Thomas Siebold, and Rainer Tetzlaff. 1986. The IMF and the Debt Crisis: A Guide to the Third World’s Dilemma. Translated by Paul Knight. London: Zed Books. Leistyna, Pepi. 2005. “Revitalizing the Dialogue: Theory, Coalition-Building, and Social Change.” In Cultural Studies: From Theory to Action, edited by Pepi Leistyna, 1–16. Malden, MA: Blackwell. Luban, David. 2003. “The War on Terrorism and the End of Human Rights.” In War ­ owman & After September 11, edited by Verna V. Gehring, 51–62. New York: R Littlefield. Mégret, Frédéric, and Florian Hoffmann. 2003. “The UN as a Human Rights ­Violator? Some Reflections on the United Nations’ Changing Human Rights ­Responsibilities.” Human Rights Quarterly 25 (2): 314–42.

22  Who needs human rights? Mertus, Julie. 1999. “From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transnational Civil Society.” American University ­International Law Review 14 (5): 1335–89. Nash, Kate. 2009. The Cultural Politics of Human Rights: Comparing the US and UK. Cambridge: Cambridge University Press. Osborne, Peter. 2006. “‘Whoever Speaks of Culture Speaks of Administration as Well’: Disputing Pragmatism in Cultural Studies.” Cultural Studies 20 (1): 33–47. Pahuja, Sundhya. 2005. “The Postcoloniality of International Law.” Harvard ­International Law Journal 46 (2): 459–69. Rajagopal, Balakrishnan. 2003. “International Law and Social Movements: Challenges of Theorizing Resistance.” Columbia Journal of Transnational Law 41 (2): 397–433. Rodman, Gilbert. 2015. Why Cultural Studies? Chichester: Wiley Blackwell. Ross, Andrew. 1998. “Components of Cultural Justice.” In Law in the Domains of Culture, edited by Austin Sarat and Thomas R. Kearns, 203–28. Ann Arbor: University of Michigan Press. Sarat, Austin, and Jonathan Simon, eds. 2003. Cultural Analysis, Cultural Studies, and the Law: Moving Beyond Legal Realism. Durham, NC: Duke University Press. Turner, Graame. 2012. What’s Become of Cultural Studies. London: Sage. Weeramantry, Christopher G. 2004. Universalising International Law. Leiden: Martinus Nijhoff. Wright, Shelley. 2001. International Human Rights, Decolonisation and Globalisation: Becoming Human. London: Routledge. Zylinska, Joanna. 2002. “‘Arous[Ing] the Intensity of Existence’: The Ethics of Seizure and Interruption.” In The Ethics and Politics: The Work of Alain Badiou Conference, Centre for Critical and Cultural Theory, Cardiff University, UK, May 25–26. Zylinska, Joanna. 2005. The Ethics of Cultural Studies. London: Continuum.

2 Eight theses on human rights A resource for critical engagement

Introduction Over the years, there have been many critical insights that reveal the weaknesses of human rights. Many of them stem from a general dissatisfaction toward the normative conceptual apparatus of the entire human rights global project and not merely toward the latter’s facile universalism. How do critical researchers and students alike approach these critical insights, when they are hailed from so many different disciplinary viewpoints? It is worth reiterating the primary question that animates this book: how are the concurrent ideas about the “death” and “renewal” of human rights related to the range of critical concerns proper to cultural studies? This central question prompts me to write this chapter, with an agenda of providing a survey of a wide range of theoretical and empirical studies, so as to produce an interdisciplinary set of resources for critical engagement. It is underwritten with a belief that today, despite the problems inhered in human rights, we need them more than ever. I hope the eight theses on human rights below can provide a useful resource for facilitating a renewed philosophical engagement on the subject. Needless to say, if asked, other authors might come up with a different set of theses. To me, the eight theses presented in this chapter by no means comprehensive, although I believe they do capture much of the core conceptual and research insights in this field. Readers are invited to read them as a guide—not the guide, of course—to the complex landscape of rights. 1 Human rights are, by definition, fragile. 2 No human rights discourse can afford to ignore the complexity of “rights talk” when the latter is muddled in the problems of globalization, universalism, cultural particularism, and cultural relativism. 3 Human rights ascended as a totalizing world moral discourse after “failure” of other utopian world projects. 4 Human rights legitimacy requires the legalization of human rights, chiefly through positivist international law. 5 No human rights theory can afford to ignore the question of “the human,” and the constellation of discursive constructions around it,

24  Eight theses on human rights including that of identity, subjectivity, the legal personality, individuality versus collectivity, multiplicity, “the inhuman,” and so on. 6 Human rights’ aesthetic attributes as narratives, visual spectacles, and symbolism help to spread its influence. 7 There is a love–hate relationship between human rights and social movements. 8 Intensified by neoliberal ideology of professionalism, human rights systems exhibit a strong tendency toward bureaucratization of care and commodification of compassion.

Human rights are, by definition, fragile In The Heart of Human Rights, political philosopher Allen Buchanan (2013) claims a robustness of human rights law as something that amounts to “international law that claims the authority to regulate matters once considered to be the exclusive concern of the state, including the state’s treatment of its own citizens” (224). The specific problem at stake is that Buchanan believes that international human rights law claims supremacy over states’ norms. He calls it “the problematic supremacy of international human rights,” in which international human rights norms are said to be capable of invalidating domestic norms that have been (mostly) legally and democratically introduced. To this and many other similar claims, critics have rebuked that human rights law is not robust and its practice “lacks shape and strength” (Zucca, 2016, 491). There is a common truism that says that in world governance, the unity of human rights was achieved through a very delicate balancing act of mounting a moral and political will upon the defensive sovereignty of states (Cohen, 2005). This act can be excruciating. The truism clearly reveals the fragility of human rights. So long as human rights are unified under the control of the state sovereignty system, which is itself fractured along ideological and economic lines, they will always be subject to the fluctuating calculations of costs and benefits in accordance with the self-interests of governments. An indication of this fragility was already evident during the drafting of the Universal Declaration of Human Rights (UDHR) in the 1940s. Numerous accounts of the drafting of the UDHR exist (e.g. Moyn, 2014b; 2018; Waltz, 2002; Morsink, 1999). Stéphane Frédéric Hessel, one of the main drafters of the UDHR, provides his own account in an interview: Mind you, the twelve authors had preoccupations of a very different kind. Those from the East were mainly preoccupied with economic and social rights. Those from the West were mainly preoccupied with civil and political rights. The success of putting the two together and even declaring them inseparable was achieved thanks to Mrs. Roosevelt and René Cassin. It was agreed that civil and political rights could not be addressed without also addressing economic and social

Eight theses on human rights  25 rights. Thus, this unifying of the preoccupations of the West and the East corresponded to a very particular moment in history, i.e., to those three or four years after the war. Had creating this text been put off, and had we in the meantime had the Korean War, the wall between the East and the West, Churchill’s Iron Curtain Speech, it would have become almost impossible to motivate the East, the West, and the South to work together. As matters stood already at the time, there were abstentions. There were eight abstentions: the Soviet Union and their satellites, as well as Saudi Arabia. Why? Apparently, because the civil and political rights were demanding energies of the states, which the Soviet Union did not like, and because the equality of men and women did not suit Saudi Arabia. But in spite of this, no one voted against it. And at that time, the abstentions were not considered to compromise its adoption. Hence it was established that the adoption of the Declaration had been unanimous, in other words, without any contradicting vote. (cited in Krapf, 2013, 758) Indeed, as Hessel and many others have attested, the core instability of the whole UDHR lies in the split ideologies between social and political rights, on one hand, and social and economic rights, on the other hand. Arguably, to this day, the bifurcation, stemming from the deep ideological division between broadly capitalist and socialist regimes, continues to threaten the very foundation of human rights law and practice. Historians, such as Samuel Moyn, Susan Waltz, Joe Hoover, and others, have all maintained the view that for the UDHR, consensus was simply a myth. Hoover (2013), for instance, emphasizes that [a]cknowledging [the] ambiguous history [of the UDHR], I argue, opens the way to an understanding of human rights as an ongoing politics, a contestation over the terms of legitimate political authority, and the meaning of “humanity” as a political identity. (217) Another reason that causes the fragility of human rights law is its lack of enforceability. A descendent of the “soft law” tradition, international law, in general, and human rights law, in particular, often evokes ideas of self-­ regulating, organic efficiency and autonomy in the pursuit of legal integration and pluralism. The soft law “tools” employed by international human rights law include diplomatic protocols and negotiations, decisions to enact new laws, and drafting of the law, which then hopefully lead to engagement through the state actors signing common treaties and taking them back to their own countries to widely propagate civic and legal discussion, finally resulting in formal ratifications by localizing the internationally agreed upon treaties into the domestic legal systems. In examining the historical

26  Eight theses on human rights genealogies of soft law, Anna Di Robilant (2006) expresses her skepticism toward these procedures: Rhetorical emphasis on organic spontaneity eclipses the fact that, at a merely instrumental level, soft law tools often prove deficient as to implementation and effectiveness, at times triggering unpredicted and counterproductive effects. At the level of policy objectives, celebration of pluralistic participation obscures the fact that soft law mechanisms, while involving a plurality of actors, are prone to reinforce entrenched power hierarchies, privileging visible and influential actors, and failing to take into account more marginal agendas. (553) Lorenzo Zucca (2016) adds that the very multiplication of treaties is a sign of weakness and fragility: one clear universal declaration of human rights is not enough to make human rights salient. In fact, no declaration is likely to succeed if it is not backed up by an institutional architecture that is capable of sanctioning the breaches of human rights law. (499) In a study of domestic judicial enforcement of international human rights agreements, Yonatan Lupu (2013) finds that two important factors significantly affect enforceability, namely, the cost of producing legally admissible evidence of abuses and the applicable legal standards of proof. The higher the cost and standards for the courts, the less likely they are able to prosecute offenders and bring governments into line with their international commitments (see also Rosenberg, 1991). In addition, foreign policy experts who subscribe to the legal realist approach point out that measuring enforceability of international human rights law reinforces the state-conception of rights by centralizing standard compliance and positivist solutions. In fact, critics such as Leila Hilal and Raul C. Pangalangan (1999) have argued that the enforcement itself is often based on a historical agenda that prioritizes certain abuses over others. She writes, “The individual/victim—state/­perpetrator paradigm has customarily determined which forms of human suffering the international community addresses as ‘human rights’ problems, and which remain in the ambit of politics, or at least outside human rights” (243). She mentions the case of Iraq, where massive violations inflicted under U.S.-led sanctions … have killed upwards of one million people, but have yet to be conceptualized as human rights abuses. Because the sanctions are horizontally imposed and legitimated, the civilian deaths in Iraq have gone unaccounted for in human rights terms. (243)

Eight theses on human rights  27 In short, even when enforced, international human rights agreements are costly to domestic courts and often rely on formulaic definitions of harm that end up failing to account for certain human rights situations. Critical legal studies scholar Costas Douzinas (2007) goes so far as to raise the question: “[A]re human rights an effective defensive tool against domination and oppression or are they the ideological gloss of an emerging empire?” (7). In other words, the question to raise is whether human rights, while operationally weak and fragile and, therefore, falling short of fully embracing humanity’s struggles, turn out to be part of an ideological world order that relegitimizes strong states to exercise their socio-legal subjection of weaker states and their constituents.

No human rights discourse can afford to ignore the complexity of “rights talk” when the latter is muddled in the problems of globalization, universalism, cultural particularism, and cultural relativism Interestingly, throughout the history of the rise of human rights as the high-order moral and political discourse of modern life, what it most wanted to achieve turned out to be what haunted it the most. The critique of its rampant globalism and universalism animates much of the writing on the subject. Students of human rights are introduced to the subject through the common narratives of human rights as a global and universalistic world order. Yet almost as soon as it is introduced, it is quickly challenged and contained. The one key political capital accorded to human rights to make it a viable project of modernity is possibly its aspirational power, the power to set in motion the potentiality of “civilization” for all of humanity. This power is guaranteed insofar as an aspirational imaginary is invented as the propeller of a project for a world becoming civil, cosmopolitan, and compassionate. Globalism and universalism are the two main variants propelled by an aspirational framework that seeks to reanimate international relations, the law, and civic life in general as part of a desirable common human destiny. They are the two leading theses for bringing the world together around a common philosophical and political orientation. Of the globalism thesis of human rights, the proponents tend to emphasize the establishment of a global legal infrastructure whose main goal is to hold states accountable for human rights abuse. For instance, in his account of the history of human rights, Aryeh Neier (2012), the founding Executive Director of Human Rights Watch, comments that “the most significant practical contribution of international human rights law … has been its role in providing a basis for citizens’ groups to monitor the practices of states, to document abuses, and to call attention to the discrepancies” (112). Indeed, for human rights lawyers, “rights talk” has often proved to have significant mobilizing potential: It is a powerful way of framing issues in public debates everywhere. The language of rights has provided us with a technique for

28  Eight theses on human rights conceptualizing the global defense of minorities and indigenous peoples, for instance. Yet, political scientist Deborah Mabbett (2008) calls this approach “aspirational legalism,” which, in her own study of equality laws and policies developed under the Human Rights Commission of the UK government, often ends up producing “mere box-checking: the adoption of procedures with no substantive content” (46). The perfection of legal arguments that would make global logical sense does not necessarily equip human rights to engage effectively with bureaucratic politics of governments, let alone its violent intent. Human rights’ global legalism often falters at the hands of local administrative and judicial politics. Of the universalism thesis of human rights, the proponents turn on the notion of a “common heritage of humanity.” Historian Herbert J. Muller, for instance, makes the point loud and clear in his Freedom in the Ancient World (1961) that early law codes, written or unwritten, confer a sense of freedom achieved through following common obligations of respect for religion and authority, property ownership of the bourgeoisie, protection of the weak, and so on. In these codes of conduct, of course, obligations were demanded through systems of penalties. What is important to note is that these early conceptions are said to foreshadow democratic principles of justice. Universalism, when couched in the framework of the common heritage of humanity, advances a rather thick archaeology that traverses the diverse religious and philosophical traditions, from ancient Egyptian scriptures; the Code of Hammurabi of ancient Babylon; the hymns of the Vedic religion in the Middle Kingdom; the pantheistic religions of India; the scrolls of writing by early Jewish prophets; the doctrines of Islam; and the many philosophical teachings of the Greeks, the Arabs, the Chinese, and so on. Historians of human rights are, therefore, quick to acknowledge that what is often presented as the “first great Western human rights statement,” the Magna Carta of 1215, is in fact an inheritance of that thick archaeology. A political settlement of its time, the Magna Carta made it possible to subject the king to the law and curb his royalty powers. Its rules are summarized in Chapter 39, stating, No free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgment of his peers or by the law of the land. According to Ralph Turner, a historian of the Magna Carta, emphasizes that whatever the twists and turns of the doctrine through endless political struggles in and outside of parliament from medieval England to ­modern-day UK and the US Congress and judiciary, the Magna Carta retains its genealogy of good governance stemming from venerated religious ideals (Turner, 2003; see also Holt, 1992). The point is that modern human rights historians, jurists, and political proponents often see themselves as the ones who salvage the heritages that furnish the principles, guidelines, and inspirations in

Eight theses on human rights  29 support of a long evolution into the establishment of modern human rights for all humanity. Put in another way, what is presented as universalistic, in fact, descends from a long windy road of universalization. Defenders of human rights’ universalism would not be avert to acknowledge that a history of “pan-culturalism” is one of the hallmarks of human rights aiming to find the connections among Judaism, Buddhism, Islam, Hinduism, Confucianism, Catholicism, and Christianity (see, for example, Ramcharan, 2015; ­Laqueur and Rubin, 1989; Muller, 1961). From connectivity to commonness to universalism, this reading of human rights, once again, helps to explain its distinguishing ethos as an aspirational humanist project. However, as explained before, this aspirationalism is precisely the basis for haunting human rights. Critics charge human rights as masquerading its political domination and imperial violence under the guise of the narrative of pan-culturalism, of the so-called common heritage of humanity. They argue that even when human rights are understood as the inheritance of religious diversity and heterodox political practices, they end up shoring up Eurocentrism that tramples upon other modernizing projects outside of Western modernity. In this light, the pan-cultural heritage is seen as the pretext for a radical compression of humanity into a uni-cultural imaginary, that of a particularistic European cultural and political order. This is why, as Boaventura de Sousa Santos (2007) interestingly puts it, “[t]he question of the universality of human rights betrays the universality of what it questions by the way it questions it … [because] the question of universality is a particular question, a Western cultural question” (12). The charge of this by those governments in some parts of Asia in the “Asian values debate,” is well known. I will not rehash the Asian values debate here (although I have engaged with it in Chapter 1); nonetheless, readers can find copious writings on the ways in which the debate stirs up, among other things, the endless quarrels surrounding the questions of cultural particularism and cultural relativism. How and when cultural particularism and cultural relativism are used as weapons against universalism, for what political ends, and against whose cultures are leveraged: These are but some of the entanglements of human rights cultural politics today. The political consequences of these entanglements are hard to predict, for there is a wide spectrum of so-called political settlements in specific cultural debates of rights, between progressive tendencies of anti-imperialism on one end and regressive tendencies of re-imperialization on the other end. There are many necessary questions to reflect on. Here, I turn to just one source of inquiry to help me raise some of these questions, the one by Boaventura de Sousa Santos in his lucid essay “Human rights as emancipatory script? Cultural and political conditions” (2007). How do we engender human rights cultural relativity without it being degraded into human rights cultural relativism? How do we achieve, and grapple with, a certain sense of “balance” between a global, aspirational, and universalistic validity of rights and a local, nuanced, and sociologically grounded legitimacy of rights? What would a sense of “comparative cultural

30  Eight theses on human rights isomorphism” look like, one that, when given enough hermeneutical procedures, may render some common human rights concerns translatable, and, therefore, legible, across different cultural and political systems?

Human rights ascended as a totalizing world moral discourse after “failure” of other utopian world projects This statement draws our attention to the controversy and complexity surrounding human rights historiography. When the first systematic analysis of the emerging historiography of human rights was undertaken by the late Kenneth Cmiel in 2004, he surveyed a field that was, to him, “refreshingly inchoate” (119). Devin Pendas (2012) puts it plainly: Like any new subfield of historical inquiry, there is a clear lack of consensus among leading historians of human rights about even the most elementary contours of the subject. What are human rights? When and where did they emerge? How and why did they spread (if, indeed, they spread at all)? Who were the crucial agents in this history? Few historians working in the field seem to agree in their answers to any of these questions … As is often the case, differences of interpretation in the history of human rights frequently derive from differences in methodology. Intellectual historians tend to view the field differently from political or legal historians, while social historians (relative latecomers to the field) bring yet another different perspective to the table. Added to this is the fact that the geographic scope of human rights history is both uncertain and enormous. There are a myriad of regional and national histories of human rights, as well as more global ones. Can they be successfully integrated? Do they even need to be? … What are the relevant archives and sources? In what languages? How does one acquire the necessary local knowledge to write transnational histories of multiple locations? Given the striking diversity of the field, it is difficult to give a “state of the field” report, because the state of the field is in many ways fragmented and fragmentary. (95–96) Despite the difficulties, broadly speaking though, of realizing human rights’ entanglement with multiple spheres of historical, legal, political, social, and cultural realities, a line has been drawn between a teleological view of human rights history, on one hand, and a discursive view of it, on the other hand. As can be expected, there are virtues as well as limits in constructing a normative, teleological, and, therefore, linear, historical development of rights. In doing so, this type of historiography often pays due attention— and often awe—to the heroic events of history leading up to the present through the resilience and persistence of the moral fortitude of rights. This dimension, which I call the “causal” or “consequentialist” normative human

Eight theses on human rights  31 rights history, places high importance to the questions of origin and periodization. An origin explains, while periods of evolution encompass. An origin of human rights, when historians can identify it, celebrates the foundations of ancient liberties that gave rise to modern political legitimacy. Meanwhile, human rights historical periodization gives rise to a portrait of political resilience, encompassing a tale of progressive transformation of the polity. As suggested by others, Paul Gordon Lauren’s (2003) The Evolution of International Human Rights: Visions Seen is often discussed as an example of this kind of causal or consequentalist view of human rights history. “Despite all the formidable odds and forces aligned against them,” Lauren argues, “these [human rights] visions could not be extinguished and those visionaries who saw them refused to be silenced” (2). Rights persisted despite being routinely neglected and violated; those who persistently uphold them help to realize the “visions seen” long time ago. This type of historiography of human rights often casts its eyes on what works in the present, as evidence of the successful and hard-earned political ratification of human rights visions. Normative as it is, this kind of history, nonetheless, helps to perform important functions in pushing governments to join the well-­ regarded project. Another kind of human rights historiography is much more discursive, emphasizing the selective unfolding of immanent potentials of public morality, duties, and obligations embodied in the state, as well as potentials that were diffused in the populace locally and globally. A few key examples of recent historiographic treatments of human rights would suffice. Micheline Ishay’s (2008) The History of Human Rights: From Ancient Times to the Globalization Era champions a Hegelian view of historical contradictions, so that there has always been battles among different versions of history developed from liberal, socialist, or Third World political discourses. Lynn Hunt’s (2007) Inventing Human Rights: A History locates the progression of human rights in the cultural sphere of public picture exhibitions, epistolary novels and the publicity surrounding the campaign against judicial torture. For Hunt, these were not only about a cultural dissemination of ideas but also about cultural experiences of empathy that moved people. Ever since the eighteenth century, rights were taken to be self-evident because of a set of assumptions about individual autonomy, which, in order to become politically meaningful, in turn, stimulated people to empathize with others. Elizabeth Borgardt’s (2005) A New Deal for the World: America’s Vision for Human Rights enshrines the United States as playing a key role to inaugurate the modern human rights political culture in the 1940s. Hers is both an account of postwar restoration and the beginning of US-led domination of the discourse of human rights. The main figures in her historical account, in fact, are Roosevelt, Churchill, and Mandela. Borgardt tells us about the joint communiqué called the Atlantic Charter, which was the political settlement bearing the liberal promises of Roosevelt and Churchill (on self-­ determination and economic security), and resonating with the anticolonial

32  Eight theses on human rights ideals of the young Mandela. To these interconnected events and sentiments, Borgardt reads as the internationalization of Franklin D. Roosevelt (FDR)’s New Deal vision, which subsequently secured the United States’ role in a series of major international institutional undertakings (including Bretton Woods, the United Nations (UN), and Nuremberg). She concludes, “Human rights are a response to human wrongs, as the saying goes, but also a product of the domestic political culture within the promulgating nations, especially the Unite States” (Borgardt, 251). Perhaps, no other historiographic accounts of human rights have received ­ topia: as much attention or controversy than Samuel Moyn’s (2010) The Last U Human Rights in History. A pragmatist writing on utopia, Moyn begins by reminding us that in any historical account, what we really have is a tangled mess of citizens, states, social actors, community, purpose, and rights. What we have been referring to as “human rights” is necessarily mired in a state of confusion. Notwithstanding the confusion as to whether human rights are powerful or ineffective due to the entanglement of too many moving parts, writing a history of human rights often amounts to sorting out competing consciousness in a social and political terrain. Moyn does just that and produces a historical account that refutes many common beliefs: In real history, human rights were peripheral to both wartime rhetoric and postwar reconstruction, not central to their outcome. Contrary to conventional assumptions, there was no widespread Holocaust consciousness in the postwar era, so human rights could not have been a response to it. More important, no international rights movement emerged at the time … The ideological ascendancy of human rights in living memory came out a combination of separate histories that interacted in an unforeseeable explosion. Accident played a role, as it does in all human events, but what mattered most of all was the collapse of prior universalistic schemes, and the construction of human rights as a persuasive alternative to them. (2010, 7) Determined to set himself apart from other historians of human rights, Moyn refutes the notion that human rights ascended from the ashes of World War II (WWII). What he finds instead is the prospering of other utopian visions during the 1960s crisis of superpower order, visions that “called for community at home, redeeming the United States from hollow consumerism, or ‘socialism with a human face’ in the Soviet empire, or further liberation from a so-called neocolonialism in the third world” (3). Yet within one decade, leaders across the developed world would begin to invoke human rights. Moyn’s ultimate assessment of this history is this: [H]uman rights emerged historically as the last utopia—one that became powerful and prominent because other visions imploded …

Eight theses on human rights  33 [O]n the brink of their ascendency, human rights would have to win or lose on the terrain of the imagination, first and foremost. And for them to win, others would have to lose. In the realm of thinking, as in that of social action, human rights are best understood as survivors: the god that did not fail while other political ideologies did. If they avoided failure, it was most of all because they were widely understood as a moral alternative to bankrupt political utopias … [W]ithout the transformative impact of events in the 1970s, human rights would not have become today’s utopia, and there would be no movement around it. (4–6) In contrast to Lynn Hunt’s account that does not attend to waves of historical ideologies, or Elizabeth Borgardt’s account that too easily presses the international sentiments of rights and human dignity in the 1940s to ­A merican moral leadership, Samuel Moyn makes a case that many postwar belief systems that promised a free way of life and emancipation from empire and capital, ended up in neocolonial tragedies. The tipping point for Moyn is both the frustration felt at the Tehran conference which marked the twentieth anniversary of the Universal Declaration. Observers witnessed little at the event to suggest that the global political drive of human rights as contained in the UDHR had even been understood, let alone implemented. The conference was, in Moyn’s words, a “catastrophe” (127). All prior utopias, be they state-based, UN-led, popular internationalist, or even faithbased, collapsed in the face of an alluring ideology of “individual rights.” Moyn calls it a “pure” ideology (8), in distinction from other ideologies that had betrayed people’s expectations. His account dovetails with ­Micheline Ishay’s Hegelian view of historical contradictions, especially when he evokes the future: [N]o one knows whether, if they were found wanting, another utopia can arise in the future, just as human rights once emerged on the ruins of their predecessors. Human rights were born as the last utopia—but one day another may appear. (9) Despite Moyn’s forceful thesis, his book has attracted many criticisms. There are roughly two groups of critics. One group charges Moyn for his sweeping dismissal of the momentous events in the immediate aftermath of WWII, including the role of Franklin Roosevelt, the human rights ideology of the organizers planning the UN, the thinking of the UDHR’s drafters, and the different ways in which a new world political order was being organized politically (and not so much around the notion of “utopia”; e.g. Cargas, 2016; McCrudden, 2015; Pendas, 2012; Scheuerman, 2011). The other group of critics take a more philosophically robust approach to the questions of “history,” “utopia,” and “human rights politics.” In a lively exchange with

34  Eight theses on human rights Moyn, Antony Anghie, Pheng Cheah, and Seyla Benhabib engage The Last Utopia from the perspectives of international law, postcolonial studies, and political theory (Anghie, 2013; Benhabib, 2013; Cheah, 2013; see Moyn’s ­response: Moyn, 2013). Briefly, Anghie argues with Moyn on his dismissal of anticolonial political alternatives campaigned by Third World intellectuals and activists in the 1950s and 1960s, especially those who worked on an alternative politics of development. Cheah charges Moyn for not having a biopolitical view of human rights, in that rights are less about utopias than about much larger processes of biopolitical governmentality and domination. Finally, Benhabib strongly opposes to what she considers to be Moyn’s apolitical account of rights, arguing that The Last Utopia is symptomatic of a broader “amoral turn in our understanding of the political.” Drawing on Hannah Arendt’s much-cited assertion of the “right to have rights,” to which she contrasts sharply with Moyn, Benhabib suggests that any historical account of human rights as unfulfilled promise should think deeply about the problem of democratic self-determination and political procedures of self-governance and collective autonomy. The perplexing historiography of human rights will surely continue to be a subject of intellectual debate, before, that is, the ideals of rights have been exhausted and replaced by ­another set of ideas, that of violence and persecution.

Human rights legitimacy requires the legalization of human rights, chiefly through positivist international law In this statement, our focus is cast on an understanding of the jurisprudence of positivist law as it is nestled in the regulation–emancipation continuum, more than on the general legal infrastructure or enforceability of human rights. The latter point has been discussed in statement one above. Still, it is important to say that the history of human rights has witnessed the subjection of moral and political ideals to the imperious influences of positivist legal discourses and practices. As Conway Blake (2008) puts it, There are indeed sound and practical reasons, as well as theoretical justifications for resorting to law in advancing human rights. However, law has often been given a privileged position without being explicitly defended in theoretical terms, or, at least its full implications being worked out. (243) In the world of human rights as an international legal system, “legalization” is generally described as a particular form of institutionalization, which, according to political scientists Alexander Dukalskis and Robert C. Johansen (2013), carries a set of institutionalized legal characteristics with three components: obligation, precision, and delegation. A legal obligation is about norm conformity, and it can range from abiding by an expressly

Eight theses on human rights  35 nonlegal norm to exercising a binding rule. Precision is a matter of producing exactitude according to legal principles, which can vary from vague to highly elaborated rules. Delegation refers to how much states may transfer authority over matters of legal interpretation, monitoring, and enforcement to other institutions. The delegation can be directed to a range of actions, from diplomacy as the least legalized action to an international tribunal or a court to secure a binding arbitration as the most legalized action. In all, legalization engages with questions about why, when, and how states would bind themselves in a legal process and how, in doing so, it would influence state conduct. It is what the editors of a volume to investigate the problems of and promises in the “legalization of human rights” call the “ingredient view” (Çali and Meckled-García, 2006, 1). That is, a number of features and facets of the life of law must be configured in order to underwrite the protections, guarantees, and modes of lawful behavior associated with human rights aims. Taking the International Criminal Court (ICC) as an exemplar of a legal body, Dukalskis and Johansen (2013) point out that the ICC represents what might be considered nearly maximal legalization in the current historical era. The operation of the ICC requires high obligation based on explicit rules sustained by jus cogens norms, thereby applying to all, even without formal ratification of a treaty specifying a law; (2) high precision in the sense that carefully elaborated rules specify permissible conduct in honoring the prohibitions of war crimes, genocide, and crimes against humanity; and (3) high delegation insofar as an independent international legal institution, the ICC, can hold individuals criminally accountable to international law if their domestic legal systems do not. If the Security Council makes a referral, a state’s nationals may be brought before the ICC even without the consent of their own state, an unusually high degree of delegation of authority. (573; emphases added) In this quick snapshot of the various components of normative positive law, we witness the primacy given to norms, procedures, and infrastructures. Legally logical operationality forms the first basis of international positive law of human rights. The second basis as widely recognized by legal scholars emanates from “general social facts.” To the early legal positivists, such as Hobbes, Bentham, and Austin, the relevant kinds of social facts that determine what law is are the “facts” about political sovereignty and how it is communicated to the populace. What these early legal positivists accomplished was a decisive departure from the natural law tradition, a tradition inspired from ancient Greece or Rome, or scholars of Christianity, which had long held that divinity was the principle “general social fact” through which legality was to be understood. To this day, the natural law doctrine continues to underwrite the notion of the existence of “natural and

36  Eight theses on human rights inalienable human rights,” a notion habitually held by the high rhetorics of governments and many activists alike. Later, legal positivists in the twentieth century emphasize social rules, which generally determine what the law is, how it is to be created and modified, and so on (Marmor, 2006; see also Butculescu, 2006). But there is a third basis of positive law, one that is most contentious in human rights debate. Widely known as the “separation thesis,” it is believed that “determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations about what the law ought to be in the relevant circumstances” (Marmor, 2006, 686). Law and morality are said to be “separated” when determining what law is and does. Indeed, for the law to be logically strong and operationally clear, it needs to be “instrumentally good” (Marmor, 687). Yet, even staunch defenders of positive law today would not deny the “reference to morality”; they just do not believe that ­recognition of what a law is and performing the duty of law (e.g. by judges) necessarily stems from moral considerations. Marijan Pavčnik (2017) reminds us that “[l]egal positivism can be considered corrupt if it justifies just any positive law irrespective of its possible lack of morality. Actually, this is not legal positivism as a science, but an apologetic legal positivism as a servant of politics” (112). And it bears reminding that positive law is not one thing; it has had two centuries of protracted deliberations on the complex entanglement that law has with morality, ethics, religion, civility, government, and so on. It is my view that the legalization of human rights for the purpose of ­securing political legitimacy for multiple human rights actors is a process that combines all three bases of positive law in a conceptual balance. That is, the adjudication of violation of rights links operational procedures with social norms, allowing a space for thinking through an ethical continuum of legality from “the instrumental” to “the moral.” How these two facets in the continuum refer to the ends or means of law—that is, whether the conceptual arc spans from the “instrumental means” to the “moral ends” or whether it does so from the “moral means” to the “instrumental ends”— remains a subject of rigorous debate in the scholarship of legal positivism. One thing is sure, legal positivism has been a powerful paradigm with which the legal bodies, prominently the bodies of the state, the legislature, the judiciary, and the military, secure their political legitimacy. In stating so, we must realize the double role of positive law: It bestows political legitimacy upon a government, and it limits the government’s arbitrary power. And when taking a further analytical step, we realize that the law has been conceptually construed as that which lies outside politics. The same logic is applied to human rights law. As Çali and Meckled-García (2006) put it, Human rights can be seen as limits on the exercise of arbitrary political power. That is, their protection is taken to be an expression of good governance because it limits the powers of governments. If they

Eight theses on human rights  37 are in this way counter-posed to political power, their natural place must be outside of politics, yet constraining politics. The law, as a separate power capable of reviewing political decisions, seems a natural place for these provisions. If this is indeed the impetus for making law the natural home of human rights aims, one should notice that it is based on a particular understanding of political power: a certain theory where politics and individual rights are neatly separated only to be joined together in the courtroom. It presumes that law is not political, and that a legal culture capable of upholding these aims can exist even when a political culture (and political will) does not—which is to hugely over-simplify matters. (4; emphases added) In a way, this is another “separation thesis” of positivist law. And like the first one (the separation of law from morality), might there be a conceptual arc, a continuum of “the political” under which positivist law operates? Might a proper understanding of legal positivism consist of a view that this legal methodology enables the realization that rights are differently moral, while a government is differently political? I suggest that all considerations of positive law’s virtues and limitations, its protective power as well as its power to harm, begin with asking those questions, thereby ensuring an understanding of the law’s dynamism and responsiveness to questions of rights and governance.

No human rights theory can afford to ignore the question of “the human,” and the constellation of discursive constructions around it, including that of identity, subjectivity, the legal personality, individuality versus collectivity, multiplicity, “the inhuman,” and so on Just as positive law has the capacity to produce rights that are differently moral, and governments that are differently political, it also possesses the capacity to render the “subjects” of rights as “differently human.” From a sociological perspective, this is plainly evident. A whole social sphere of “humans” is patently opened up on display in the International Bill of Rights, comprising the UDHR, International Covenant on Civil and Political Rights (ICCPR), and International Covenant on Economic, Social and Cultural Rights (ICESCR): Article 2 of UDHR: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

38  Eight theses on human rights Article 2.1 of ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 2.2 of ICESCR: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Lest these high-sounding provisions lead us to feel that the notion of “the human” is reduced to mere repetitions of vacuous terms, it bears reminding that every such term that is associated with “the human” is legally codified and thus carries consequences in litigation or other legal rights-claiming actions. It also bears reminding that the recitation of “the laundry list,” as mechanical as it may seem, has been adopted in almost all democratic countries’ constitutions, embedded firmly especially in their clauses for activating the right to self-determination, personal integrity, privacy, and to be protected from discrimination. Still, the question of “the human” continues to animate much political, philosophical, and policy argumentation. Essentially, the fundamental axiom of human rights discourse prescribes a transcendent position for “the human,” who is reconceived as a being capable of rationality; is free and possesses dignity; and, therefore, is the bearer of inviolable rights. The same axiom installs frameworks and instruments whose aims are to regulate the relations among “the humans” so that each person’s freedom for self-­interest does not deprive others of the same freedom on a plane of equivalence (everyone is equally human). Pheng Cheah (2006) calls this a “proscription of instrumentality” (4), suggesting that the very existence and maintenance of the state, its sovereignty, and its laws makes humanity possible from within the field of instrumentality. In a word, “the human” is instrumentally humanized through state-based human rights discourses. ­Joseph Slaughter (2006) concurs, “[H]uman rights are not the natural rights of human beings as presocial creatures but the positive rights of citizens as incorporated creatures of the state” (1408). Interestingly, Cheah deems this instrumental humanization a “contamination” of humanity, to an extent that the latter can all too easily slip into “inhumanity.” By the “inhuman,” Cheah refers to … a finite limit of man, a defective feature of human existence that is not proper to the true end of man but that we have thus far failed to control, for example, commodification, technology, totalitarian domination, and the

Eight theses on human rights  39 like. We quite properly compare such phenomena to animals or ghosts, associate them with death, and characterize them as subhuman precisely because they are improper to us but also reducible to us and must be overcome or transcended if we are to actualize the freedom that is our due. (2–3; emphasis his) Cheah reads this dialectical relation between humanity and inhumanity through Hannah Arendt’s political theory; Foucault’s theory of biopower; and, more implicitly, Julia Kristeva’s notion of the “abject.” These sources instill a sense that the problems of totalitarianism, governmentality, or the underlying disavowal of existence, orchestrate a human–inhuman dynamism. Most political, philosophical, and even policy discussions of human rights today seem to converge around this understanding of a conceptual human–inhuman dynamism (see DeGooyer, Hunt, Maxwell, and Moyn, 2018). In other words, their concerns have been around the ways in which “the human” is crafted, “how humanity and all its capacities are not primary, original, and self-originating but product-effects generated by forces that precede and exceed the anthropos” (Cheah, 2006, 10; emphasis his). This conception is in line with much of poststructuralist readings of human rights. Costas Douzinas (1996), for instance, notes, Human rights come into existence through their proclamation. To have human rights, which in modernity is synonymous with being human, you must claim them. The proclamatory nature links human rights claims with the “man” of human rights, an empty vessel, and ever-­present but undifferentiated and indeterminate attribute of human identity which awaits to be assigned predication, characteristics, a time and a place. The “man” of rights functions as a floating signifier. (123) However, that human rights discourses and claim-making produce the floating instability of “the human” as something residing between freedom and abjection, an appropriate bearer of rights and the “improper” contaminated vessel of biopower, does not mean we give up on the project of human rights. Cheah insists that there is a certain sense of normative rights, “contaminated” as they may be, that is worth preserving: “normative change should be thought in terms of the inscription of universal norms within a global field of forces, their repeated generation from an infinite textile back into which they are repeatedly woven” (8, emphasis his). As for the transformation of “the human” into a “legal personality” recognized by the law—before it can be bestowed the enjoyment of rights—the same human–inhuman dynamism can be observed. Law’s regulatory presence or its constitutive absence defines the shape of someone’s rights and their legal identity. As Costas Douzinas puts it,

40  Eight theses on human rights The legal recognition of a particular category of rights, say women’s rights, is at the same time the partial recognition of a particular type of identity linked with these rights. Conversely, an individual recognized as a legal subject in relation to women’s rights is accepted as the bearer of certain attributes and the beneficiary of certain activities and, at the same time, as a person of a particular identity which partakes amongst others of the dignity of human nature. The identity of a particular woman is not exhausted, of course, in her identification as a subject of women’s rights or in her recognition as the beneficiary of the equality and freedom of human nature … What is crucial, however, is that … the legal subject and legal rights act as unified conceptions of “human nature” through which the law assigns categories and fixes identities and tries to stabilize the proliferation of social meaning. (Douzinas, 1996, 127) Crucially, it is upon such a basis that we can say that in human rights legal instantiation, each human is differently legal. Posited in a discursive field—from the law’s calculation, schematization, and synchronization, to the whole extralegal field of social meanings about rights, justice, and ­legality—“the human” acquires different legal meanings and carries varying legal (in)capacities. Yet the law functions to “halt” the openness of the social by fixing the chain of meanings about the “legal human” in specified cases, domains, institutions, and procedures of law. An example of a specific domain of law that is established to promote and protect rights is in the area of sexual health laws. By the 1970s, the World Health Organization (WHO) has crafted the shape of “the human” in sexual health, which is defined as “the integration of the somatic, emotional, intellectual and social aspects of sexual being, in ways that are positively enriching and that enhance personality, communication and love” (WHO, 1975). WHO embeds this particular iteration of “the human” in the ambit of “positive” sexual health, thereby excluding other ways by which “the human” becomes sexual. Still, such “sexual humanization” sets in motion a series of laws and regulations to accentuate the rights of people who are humanized through WHO’s definition. This includes, for instance, the right of access to health services, the right to privacy and confidentiality, and the elimination of discrimination in access to health services, especially for marginalized populations (see WHO, 2010; 2015). Another example in which “the human” is constituted in law points to the darker side of legal modernization, namely, the development of colonial and postcolonial juridical systems to reconfigure “the human,” often with consequences of political subjection and violence. In her book Juridical ­Humanity (2012), Samera Esmeir argues that in colonial Egypt, “the human” emerged as a juridical category, an effect and outcome of modern law, which sought “to humanize Egyptians by declaring them subjects of the rule of law” (4). In asking how historical intersections and entanglements instantiated a

Eight theses on human rights  41 particular juridical figure of “the human” in Egypt, Esmeir demonstrates how juridical humanity has always been a technology of colonial rule in its quest for political legitimacy and domination. “Modern positive law,” Esmeir contends, “colonized Egyptians by turning their humanity into law’s own teleology” (11). A particularly illuminating discussion in Juridical Humanity concerns the colonial Egyptian rulers’ designation of cruelty against animals to be unlawful. Here, the rulers considered that cruelty against the nonhuman turned the perpetrator into a dehumanized class. Therefore, modern law sought to rehumanize people through a sacralization of the nonhuman. The motif of a legal recognition of humanity requiring a detour, as it were, has also appeared in other human rights studies, for instance, in cultural rights investigations concerning the “humanization” of indigenous peoples via circuitous legal maneuvers around aspects of land, animals, water, and nature in general (e.g. Bulkan, 2012; Poirier and Schartmuelle, 2012; Harris, 2001). Perhaps, no other work has spoken more profoundly—and agonizingly— about the legal and political constitution of “the human” than Hannah Arendt. Scholars have been drawn to Arendt’s sharp and painful diagnosis of the “crisis of human rights” through The Origins of Totalitarianism (1958). In the often-cited chapter titled “The Decline of the Nation-State and the End of the Rights of Man,” Arendt presents a genealogy of the modern mass phenomenon of the refugee-human, who is simultaneously the stateless-­ human, which emerged in the aftermath of the two world wars, and with the rise of imperialism and totalitarianism. Arendt’s affected writing on refugees helps to explain the mortal and existential limits of “the human” in the face of the breakdown of human rights. Exiled, deported, stripped of citizenship, excluded from any form of political participation, the figure of the refugee, according to Arendt, brings about the end of human rights. Arendt writes, The conception of human rights based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships—­ except that they were still human. (297; emphasis added) Arendt’s locution “still human” is most peculiar, suggesting perhaps that the loss of “all other qualities and specific relationships” is the very moment in which the barely human, the merely human, the rightless human, is salvaged. The figure of the refugee is thus one that is precariously found at the edge of the distinction between the human and the nonhuman. And at that edge, the refugee becomes “still (barely) human.” Hence, in Arendt’s words, the paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in

42  Eight theses on human rights g­ eneral—without a profession, without a citizenship, without an opinion, without a deed by which to identify and specify himself. (297) Ian Balfour and Eduardo Cadava (2004) deduce the consequences of this paradox: [H]uman rights do not precede political ones; instead, political rights— without which there could be no concept or confirmation of citizenship— are what determine the recognition and definition of “human rights,” even beginning with the most elementary ones—those of survival, or of what Giorgio Agamben, following Walter Benjamin, has called “bare life.” (281) Returning to the “laundry list” of qualities through which the International Bill of Rights inaugurates “the human,” we need to acknowledge the precariousness of those designations. Perhaps, in the end, one way to formulate the question of “the human” in human rights is to consider it as a contradiction in the form of a substantive void.

Human rights’ aesthetic attributes as narratives, visual spectacles, and symbolism help to spread its influence Arts and writing have long been powerful tools for expressing human suffering, documenting social and political cruelty, and articulating community resilience. A great deal of what goes on in the world of human rights that have been felt by many, are tied to narratives, visual spectacles, and symbolism. Indeed, Adorno’s and Horkheimer’s critical rejection of the “coldness” of the Enlightenment has given us a foundation for thinking through atrocities and human suffering through an ethics of sympathy (see Barreto, 2006). While Adorno and Horkheimer do not explicitly extend their reflection on ethics to the field of human rights, Richard Rorty (1994) bridges them by considering what he calls “sentimental education,” which he argues is an effective strategy to foster human rights culture, with the aim of binding together the philosophical traditions of moral sentiment and contemporary struggles for human rights. Jose Manuel Barreto (2006) writes that Rorty takes the idea of an ethics of sympathy to the realm of public culture, maintaining that an ethics of emotions as ethics of human rights constitutes a valid possibility to think not only the theoretical and scholarly topic of human rights, but also to tackle the historical problem of the abuse of power by strengthening the human rights culture. (Barreto, 100)

Eight theses on human rights  43 Sharing the same historical horizon of the post-Holocaust era, Adorno, Horkheimer, Rorty, and others associated with the Frankfurt School, built a philosophical discourse that would “warm up” post-Enlightenment culture and connects it with the aesthetic discourse of human rights crafted as shared human sensibilities. Narrativity is particularly suitable for building a sentimental education of human rights. In fact, literary scholar Joseph Slaughter (2010) discovers that human rights and social justice turn out to be the convergent points in the narrative turn of the social sciences that occurred in the 1990s and the ethical turn of the humanities that has gone on for some time. The ethics and the torturous uncertainties around human rights: These are something that we narrate. Slaughter goes so far as to claim that there are historical, ideological, and formal interdependencies of the novel form and human rights, in that the twentieth-century rise of “world literature” and international human rights law are related phenomena. “Human rights are a culture and a legal regime, as much a matter of literature as of legislation,” notes Slaughter (2006, 1419). In particular, the Bildungsroman, the class of novel that deals with the coming-of-age process, fills out the image of the notion of “free and full development of the human personality” as scripted in the UDHR (in particular, Article 29). The German word Bildungsroman means “novel of education” or “novel of formation.” Focusing on this literary genre, Slaughter examines specifically the ­recent postcolonial versions of the coming-of-age story, showing how the promise of human rights becomes legible in narrative and, more importantly, demonstrating how the Bildungsroman novels and the law are often complicit in contemporary projects of colonialism, humanitarianism, and neo-imperialism. Today, literature and poems penned by prisoners, refugees, and political exiles; political art exhibited in galleries; and novels and memoirs written by those involved in humanitarian efforts have kept human rights struggles visible in public culture (see, for example, Bruce and Hollows, 2007; Busby, Muller and Woolford, 2015; Carter, 2018; Carter and Orange, 2012; Duffy, 2003; Sandell, 2017; Silverman and Fairchild, 2007; Sodaro, 2018; Wu and Livescu, 2011”Moore and Goldberg, 2014; Livescu, 2013; Trapp, 2011; Slaughter, 2010; Goldberg, 2007; Schaffer and Smith, 2004). In addition, international, city-based, and school-centered human rights film festivals and curricula are a mainstay of rights advocacy today. They are typically accentuated around specific human rights concerns, such as disability; racism; genocide; war and memory; lesbian, gay, bisexual, and trans (LGBT) representations; the violence of militarism; and so on (Human Rights Watch, n.d.). Indeed, like the novel form, film has emerged as a mainstay of human rights education due to its unique representational capacities. Without a doubt, central to the formation of human rights awareness are evocative descriptions and detailed visual illustrations depicting human suffering in

44  Eight theses on human rights the hands of various forms of violence perpetrated by the state or others (Sliwinski, 2011). As many film scholars have pointed out, rights are most clearly comprehensible when they are seen being violated, because seeing can give concreteness to the one-dimensionality of human rights documents (e.g. Swimelar, 2014; Tascón, 2012; 2015; Lucas, 2008; Goldberg, 2007; ­Freitas, 2005; Bronkhorst, 1997; 2003). Sarah Hamblin (2016) reminds us that the founding of the Human Rights Watch International Film Festival in 1988 “firmly established film as a principle medium for human rights advocacy and as an avenue for the broad dissemination of the values and ideals of human rights discourse” (38). Since then, a lively public culture of both documentary and fiction films proliferate in cities and nations to represent and promote the urgency of human rights issues. It is accompanied by numerous online directories and databases of human rights films, many of which come with lesson plans, discussion guides, and links to related resources. In addition, documentaries and feature films are appearing with increasing frequency on high school and college syllabi. Many campuses follow in the footsteps of major human rights organizations such as Amnesty International, ­Witness, and Human Rights Watch, to hold film screenings as one of the ways students and youth are hoped to become active in engaging with human rights civic participation. Finally, human rights documentary films have attracted mainstream Hollywood attention; at the Oscars, for example, the awards given to human rights–themed documentary films, or melodramas that treat human rights–related issues, give the impression of the Hollywood industry’s global social commitment and its general left-­ leaning proclivities. In this wide range of cultural representational works on human rights, primacy is given to “telling the truthful story,” although imaginative/creative representations are encouraged. In an effort to prevent zealous filmmakers from turning a human rights story into sensationalism, the Charter of the Human Rights Film Network, which is a body that partners with over forty independent film festivals around the world, contains a description of what properly constitutes a “human rights film”: Human rights films, in our view, are films that reflect, inform on and provide understanding of the actual state of past and present human rights violations, or the visions and aspirations concerning ways to redress those violations. Human rights films can be documentary, fiction, experimental or animation … Human rights films may be harshly realistic, or highly utopian. They may offer gruesome pictures, or show the bliss of peaceful life. They may report, denounce or convey an emotional message. They may forcefully present the views of one group or individual only, or try to convey the opinions of as many of those involved as possible. They may be a highly accurate

Eight theses on human rights  45 report of facts, or offer surreal provocation. We believe that human rights films, whatever their format, contents or character, should be “truthful.” That is, they should inform the viewers on human rights issues and aspirations, and should not intentionally misrepresent the facts or the views or words of those portrayed. They should not be so biased as to invoke hatred and discrimination against groups and individuals, or serve political or commercial interests only. They should be explorative of the issue rather than propagandistic, and not reproduce stereotypes. (Human Rights Film Network, n.d.) Despite the good intentions behind using arts to promote human rights consciousness, there are some deep-seated questions about the relationship between the aesthetics of truth and the ethics of “truth-making.” Human rights conflicts can produce a dizzying array of images of suffering. As a conflict unfolds, filmmakers, writers, and photojournalists often scramble to capture this “perfect image” and that “perfect narrative” to represent the human rights violations that are occurring in a local context (see Golob, 2013). However, what of the role of the filmmakers and so on who tend to occupy the position of a “non-active voyeur”? Would that position inadvertently become a contributing factor to the suffering being witnessed? How do they handle the contradictions between telling a human rights story, and telling it for the sake of or in the name of art? Moreover, at what point does the pursuit of the “perfect” image/narrative override one’s ability to see the event as a naked human occurrence? Because human rights artistic representations straddle the border between art and ethics, it is not hard to deduce that that images of suffering can be used in both positive and negative ways in the process of fostering a cultural consciousness around human rights. The aesthetics/ethics conundrum was raised exactly by Amia Srinvasan, winner of the The Elie Wiesel Prize in Ethics in 2006. In her winning entry, “The Sun Once Shone on Auschwitz: Ethics and the Threat of the ­Aesthetic,” she began with a moving reflection: The sun should not shine on Auschwitz, and yet that day it did. At the time—the beginning of my freshman year of high school—I was briefly disturbed by the incident, but found myself soon overtaken by other thoughts and concerns, as happens when one is fourteen. The memory was recorded and wrapped away into the past, between lined sheets in an old notebook. The recent re-discovery of my observations at the Polish death camps has not left me so easily this time. What my younger self took at the time for a sort of meteorological inappropriateness, I now realize is a touchstone for a tension that I believe is fundamental, troubling, and too often overlooked in our contemporary ethical discourse. And yet, it is a problem with a long tradition of philosophic and

46  Eight theses on human rights literary investigation, and that is subtly pervasive throughout modern popular culture. And it is a problem that is embodied, for me, in the fact that one day, I thought Auschwitz—the site of the grossest monstrosities ever committed by mankind against ­itself—almost looked beautiful. (1) She was alluding to what she calls the “threat of the aesthetic,” by which she defines as “[t]he possibility that even the most heinous ethical acts and situations can be redeemed by their beauty” (2). The paradox is that art is so often used to transcend the human condition, so much so that “the impulse towards aesthetization of suffering has … motivated the most valuable creations of mankind: the great operas, poems, novels, paintings, memorials, films and symphonies” (2). Yet the ability to “turn the painful into the beautiful,” Srinvansan reminds us, can be the same ability to “motivate a wholesale abandonment of the ethical outlook” (3). Raising the question of the threat of the aesthetics does not mean we negate the powers of voice and representation to give public shape to violence that is usually obscured from us. Yet it does mean we need to carefully track the contexts and the manner with which human rights production is consumed.

There is a love–hate relationship between human rights and social movements Needless to say, civil society involvement is vital to the advancement of human rights. At the UN, civil society is recognized as the “third sector” of society, along with government and business. It comprises civil society organizations and nongovernmental organizations (NGOs). The UN expressly recognizes the importance of partnering with civil society, because there are UN mechanisms for NGOs to formally participate in the work of the UN. There are two ways: either through consultative status with the Economic and Social Council (ECOSOC) or association with the UN Department of Public Information (DPI). The NGO Relations Section of the DPI links the UN with approximately 1,300 NGOs that are associated with the UN and support its efforts to disseminate information to the grassroots on priority issues such as women’s rights, sustainable development, antipoverty work, and so on.1 Yet, seen from the perspective of popular struggles over human rights protection at the grassroots level, those formal UN mechanisms may be experienced as secondary and limiting at best, and helping to shore up the UN’s hegemonic power of global governance at worst. Besides, formal recognition by the UN requires that the civil society groups be scrutinized on organizational efficiency, professional values, and so on. Often, the role

Eight theses on human rights  47 of civil society groups in those fora is limited to being “collaborative partners” rather than being able to directly influence human rights policy. And collaborative partnering often translates into doing the frontline “dirty work” at the grassroots level that human rights officials are not willing to engage in, thereby rendering the NGOs in a subordinating servicing role (see Ruhlman, 2015). In fact, in Martens’ (2006) empirical analysis of the connection between the UN and NGOs, she concludes that a theoretical understanding of a corporatist approach better fits the realities of UN/ NGO relations. In her study, she emphasizes the various modes and mechanisms of NGO incorporation into the UN system and the overall frame of governmental activities. In the end, this type of relation raises a variety of questions concerning NGOs and their role in international relations. Martens asks, with NGOs directly shaping political processes from the inside of the official arenas, questions of their legitimacy need to gain in significance as NGO participation at IGO level has reached a new dimension of intensity. To whom are NGOs accountable? Whom do they represent? And how is their representation internally organised? (698) In Transnational America, cultural critic Inderpal Grewal (2005) examines how circulations of social movements have created new transnational subjects who manage the continuing crisis of social inequalities. She concludes that unfortunately many NGOs have become transnational instruments of governmentality; their use of the discourse of human rights turns out to assist in the instrumentalization of new regimes of “good governance.” One of the ways in which this is achieved is through producing new subjects in need of rescue, compassion, and charity. In a similar way, legal scholar David Kennedy’s scathing book The Dark Side of Virtue (2004) details the intentions behind, and consequences from, many of the well-intentioned humanitarian projects and endeavors. Through his own participation in a number of liberal programs, Kennedy “had come increasingly to feel these projects could be as much part of the problem as of the solution” (xiii), because “routine professional practices and vocabularies can limit and misdirect the humanitarian policy maker’s best efforts to make the world a better place” (xvii). In other words, much as humanitarian NGOs might want to believe that they still hold up the virtue of truth to the vice of power, the reality is that the very vocabulary of virtue has been appropriated in the service of power. There may no longer be definitive differences between humanitarian activists and human rights policy makers. Kennedy argues that if the humanitarian project is to be renewed, humanitarian practices must embody two ideas: “realism about power and clarity about commitment” (328). For cultural critic Pheng Cheah (2006), he goes so far as to argue that human

48  Eight theses on human rights rights NGOs have been “contaminated” by normative global governance frameworks. Lacking autonomy and confined to working within the purview of state-based agendas, human rights NGOs: … have to negotiate with shifting interstate relations within an unequal global economic order. Their claims are thus irreducibly susceptible to co-optation by competing states on both sides of the North-South divide the very moment they are articulated. In fighting against state violations of human rights, NGOs from the South are precariously balanced between, on the one hand, relying on Northern states for funding and the risk of co-optation by the international media and the expansionist economic interests of wealthy postindustrial countries and, on the other hand, criticizing statist models of development in the South without jeopardizing the ambivalent need for the nation-state as an agent of accumulation in defense against transnational capital. Simply put, NGOs are always part of the linkages of global capital as they invest state-­formations and are effective only by virtue of being so. (Cheah, 2006, 166) Cheah’s idea of “contamination,” therefore, refers to the way NGOs are entrapped in global capitalist processes that are themselves underwriting state-based human rights policy. Their ideals are “always already conditioned by the force field within which they are invoked” (166). Operational blind spots and unforeseen negative consequences notwithstanding, NGOs might, in fact, constitute an open risk to progressive human rights goals. Speaking of the North-South divide, many human rights advocates and analysts from the Global South, in fact, want to hold on to civil society social and humanitarian movements. Here, a sharp demarcation is made between international NGOs that are incorporated into the global governance frameworks and popular grassroots movements. For instance, postcolonial legal scholar Balakrishnan Rajagopal (2003) argues for the importance of new social movements in postcolonial societies as alternative sites of resistance. His emphasis is placed on the ways in which those grassroots resistance movements can provide new models of social justice outside of state-controlled human rights agendas. To make known the emancipatory power of the grassroots resistance movements, Rajagopal suggests that we first need to decolonize international law, for in his view, much of international human rights law has been developed so as to contain resistance movements and their challenge to Western domination of the developing world. By pluralizing the rights field, he hopes that new and alternative understanding of development, territory, and autonomy can be developed. Like Rajagopal, law and society scholar Lynette Chua (2015) is optimistic about the ways in which social movement activists in the South,

Eight theses on human rights  49 especially those who operate under repressive regimes, to “vernacularize human rights” through translation and adaptation of the global language of human rights for local practice (300). Based on fieldwork in Myanmar and its restrictions on LGBT rights organizing, Chua’s research show how vernacularization activities, such as human rights workshops, can help to cultivate oppositional consciousness among social movement leaders, producing them a sense of efficacy and willingness to take up collective action despite difficult political conditions and risks. Chua explains the broader significance of her approach: “Vernacular mobilization of human rights” is conceptualized at the intersection of law and society’s cultural study of human rights and social movements scholarship. According to law and society research, human rights have the potential to achieve social justice … and actualize human dignity … however, they often lack cultural resonance … and political legitimacy, especially under repressive conditions … Nevertheless, local activists frequently turn to human rights’ ideas of dignity, respect, and equality to persuade others to join their cause or recognize their claims … and construct their claims as human rights to secure funding and other assistance from international non-governmental organizations (INGOs) and foreign governments … To understand the complex interplay between the universalism of human rights and their local mobilizations, law and society scholars have begun to examine vernacularization as cultural processes. (Chua, 2015, 300–1) Legal anthropologist Sally Engel Merry and her colleagues (2010) go so far as to say that “as a discourse and set of practices for asserting claims, the human rights system is surprisingly open to relatively powerless groups” (101). They advocate seeing social movement actors’ capacity to develop “human rights from below.” Theirs is also based on empirical research on women NGOs in New York city, showing in their findings the fact that for movement activists, human rights are simultaneously a system of law, a set of values, and a vision of good governance. Each of these dimensions of human rights offers resources for grassroots social movements, but in quite different ways. Distinguishing them allows a clearer understanding of the way human rights work as law from below. (102) To date, Neil Stammers’s 2009 book Human Rights and Social Movements offers the most comprehensive sociological study of the subject. This accessible book emphasizes that the disillusionment of human rights stems from the fact that past and contemporary literature on the subject does not

50  Eight theses on human rights often show the powerful connection between human rights and social movements. Consequently, the literature on human rights creates what Stammers terms a “hall of mirrors” (39) in which observers, even sometimes human rights social movement actors, see reflections but not their realities or their practical effects on the constituents they fight for. He emphasizes the ways in which, as far back as the nineteenth century, industrial actions (not yet framed as human rights actions at the time) had already laid claim on collective rights and global self-determination struggles. However, Stammers does acknowledge what he calls the “paradox of institutionalism” (102), which occurs when something that was once a social or grassroots movement becomes institutionalized. Despite treating institutionalization as a paradox, Stammers stresses that it is a necessary aspect of social relations we cannot live without: [A]ccepting that institutions are indeed a social necessity, it looks as if we must learn to understand and live with the paradox of institutionalization. If this is the case then the apparently paradoxical impulse of extra-­institutional activism demanding human rights be institutionalized begins to look like a quite ordinary, almost routine, aspect of social and historical change. If this, in turn, is right then close study of the social processes involved would surely advance our understanding of human rights. (109) Stammers proceeds to analyze two related forms of institutionalization of human rights social movements: the institutionalization of particularity and that of universality. The “institutionalization of particularity” refers to the historical fact that when human rights advocacy reaches a point of legal institutionalization (through natural law conceptions), the state’s desire to exclude is triggered: Having asserted particular notions of collective identity and collective right, usually in the form of “we the people” during the struggles for social transformation, it was at the point of institutionalization that definitions were made and decisions taken as to who was “in” and who was “out” of any particular “we.” Today, we are broadly familiar with the results of those processes. Whole categories of human rights living within the geographical areas of these political and juridical communities were excluded. Full citizenship was variously denied to women, indigenous peoples, slaves, the propertyless or poor and a range of minorities. (110) Also triggered in this process is what Stammers calls “embourgeoisment” (112–13). Elites benefit from movements that successfully fight for rights, by framing property rights as the quintessential natural rights.

Eight theses on human rights  51 By contrast, the “institutionalization of universality” refers to the historical adoption of the UDHR, which institutionalizes not only the moral framework of rights but also the social movements themselves. In this way, social movements get incorporated into the state-centric international system. Here, Stammers echoes Cheah, Grewal, and Martens whose views are discussed above; their convergence of argument should convince us about the dangers of older forms of social movement and their institutionalization. Stammers makes a clear distinction between older forms of social movements and the newer ones. The former were those that attempted to advance class interests in the late nineteenth and early twentieth centuries. Here, Stammers focuses on the fight to form labor unions or the formation of socialist political parties. In contrast, he claims that at the end of the twentieth century, there were indications that a new manifestation of social movements to combat the centralization of international “power over” was developing. This development of new social movements culminated in the antiglobalization movement that took on the institutions and practices of global capitalism. The anti-World Trade Organization (WTO) protests, the World Social Forum, and the Zapatistas are discussed as prime examples of what Stammers calls “expressive” struggles, meaning that they are not bound by the formal–legal rationality of states, the UN, or organizations that attain formal recognition by states or organizations comprised of states. Instead, these movements are open, participatory, antihierarchical and focused on a holistic understanding of human rights. In the end, the ambiguous relations between the world of human rights and the world of social movements—variously characterized by relations of “corporatism,” “contamination,” and “paradoxes of institutionalization”— place the two worlds in a love–hate configuration. Ultimately, the promise of social movements lies in their capacity to straddle between the institutions and the everyday life worlds of struggles, common and particular, global and local, big and small.

Intensified by neoliberal ideology of professionalism, human rights systems exhibit a strong tendency toward bureaucratization of care and commodification of compassion The language of professionalism has long been employed to describe human rights work (O’Flaherty and Ulrich, 2010; Bell and Coicaud, 2007). It has become commonplace to describe human rights advocacy as a professional calling; the individual human rights worker is considered to have a distinct professional identity. In the broadest sense, “human rights professionals” refer to researchers, strategists, advocates, and experts: the international class of educated and experienced specialists who are well equipped to make an impact on international and domestic human rights policy. O’Flaherty and Ulrich (2010) draw on well-established qualities of professionalism to

52  Eight theses on human rights examine human rights field-workers, qualities such as having a set of shared values, possessing a body of scientific knowledge, and knowing the procedures and systems to apply that knowledge to the field. The question they pose is: What is at stake in the process of professionalization? Their observations are worth noting: Professionalization … could render human rights field work simply a job like any other—and moreover a source of comparatively lucrative employment that stands in stark contrast to the plight of the local communities suffering violations of their human rights. This, certainly, would be a cause for concern. Typically, work in the human rights field is driven by passionate personal commitments and some element of personal sacrifice, and even as work procedures become better regulated and standardized, it is essential to retain this. It is for this reason that the focus on the underlying ethical commitments of human rights professionals is so important to the overall process of professionalization. (8–9) Yet in a field of work that is typified by volatility and risks, how are one’s ethical commitments balanced with the more neoliberal urges of professional and career advancement? There is no question that professionalism in human work remains vital. Yet, the broader changes of the human rights field, especially the scale of its bureaucratization, can be a cause for concern. How does a human rights professional possessing a strong passion for social justice work navigate a field that is getting increasingly bureaucratized? The UN is an institutionally complex body, which continuously expands through a constant proliferation of committees, councils, and commissions in the field of human rights since 1945. In Kevin Boyle’s (2008) New ­Institutions for Human Rights Protection, the various contributors all wrestle with the overarching question: Does the creation and further development of human rights institutions make any difference in the real world? In Gerd Oberleitner’s (2010) review of Boyle’s book, he puts a sharper focus on the same question: Does the multiplication of institutions and procedures lead to more protection or are we moving towards a situation where the implementation of human rights is not only hindered by the political unwillingness of states to commit themselves to human rights (and the human rights supervisory machinery) but also by an ever-growing human rights architecture, the various pillars and buildings of which do not correspond to the real needs of victims, thereby standing tall as isolated empty shells rather than constituting an effective and interlocking set of mechanisms? (766)

Eight theses on human rights  53 No doubt, skepticism on the ballooning bureaucratization of the human rights system abound. At its seventieth anniversary in 2015, the UN was said to encompass seventeen specialized agencies, fourteen funds, and a secretariat with seventeen departments employing 41,000 people. Even accounting for inflation, annual UN expenditure was forty times higher than it was in the early 1950s (McGreal, 2015). Meanwhile, there has also been a proliferation of human rights groups in various sizes, influence, and degrees of professionalization. Human Rights Watch, for instance, is made up of roughly 400 staff members around the globe, who are country experts, lawyers, journalists, and academics of diverse backgrounds and nationalities. Furthermore, more and more countries have established their own national human rights institutions. A broad and diffused network of human rights bodies results in one of the world’s largest bureaucratic superstructures (see Donnelly and Whelan, 2017; Oberleitner, 2007). To this, Costas Douzinas (2007) draws a connection between human rights bureaucracies and the advancement of empire: … it looks like an imperial officer corps and bureaucracy is emerging … a new professional class, the “humanitarians” or “internationals” … The group includes the usual suspects: human rights activists, lawyers, international civil servants, NGO operators and assorted do-gooders and all those who task is now to consolidate and generalize this project of osmosis between humanitarians, the military and politicians and turn it into a world ideology. (64–65) Douzinas’ largely theoretical remarks are supplemented by Jean Bricmont’s analysis of military interventionism (2006) in his Humanitarian Imperialism: Using Human Rights to Sell War. Bricmont contends that human rights rhetoric often feeds into a militarism that ends up damaging the cause of human rights worldwide, for every regime claims altruistic, humanitarian motives for its actions, however self-interested or malicious they may be. Ironically, this work often results in human rights professionals (from the dominant powers) colluding with military professionals, deploying human rights rhetoric in a selective and self-serving manner, ignoring their own abuses and those of allies while using the wrongdoing of unfriendly regimes as an excuse to justify intervention. The question is: How does the bureaucratization of human rights, to use Douzinas’ metaphor, reach “osmosis” so much so that human rights are turned into an indispensable part of military empire-building? There are, however, researchers who defend the necessity of human rights bureaucracies. For instance, Cardenas (2003) reviews the role of the UN in creating and strengthening national human rights institutions around the world. According to Cardenas, it does so by means of four mechanisms:

54  Eight theses on human rights standard setting, capacity building, network facilitating, and membership granting. Her descriptive statistics suggest that other actors, including government agencies, human rights nongovernmental organizations (NGOs), and international organizations like the Organization for Security and Cooperation in Europe (OSCE), have contributed to these activities, especially in terms of capacity building; but only the UN has been equipped to coordinate and legitimate the global diffusion of these national institutions. (24) Similarly, Kanninen and Piiparinen (2014) argue that due to the general fact that bureaucracies are undergoing a transformation from the rigid and hierarchical institutions of an earlier time to more “network-oriented and delayered entities,” these structures “allow middle-level officials in international organizations to wield considerable new bureaucratic powers” (46). They provide detailed empirical evidence of the efficiency of the UN, especially through the office of Boutros Boutros-Ghali, the General Secretariat at the time, in creating and implementing a multilateral mandate known as An Agenda for Peace in 1992. They go on to prove that the mandate made a significant contribution to the UN’s early warning and conflict prevention mechanism. The key to success in a bureaucratic milieu, according to Kanninen and Piiparinen, lies in developing strategic interdepartmental and interagency teams, as the UN did. Their study, therefore, challenges the conventional wisdom according to which international bureaucracies are unviable and undesirable in the age of globalization. Another problem of the human rights system, which correlates with Gerd Oberleitner’s point about the ever-growing “human rights architecture” standing tall as “isolated empty shells,” stems from the relation between human rights and the processes of capital. Upendra Baxi (2002) is perhaps the best-known human rights thinker for suggesting that human rights violations “must be constantly commoditized to be combated,” just as successful outcomes need to be “ledgered, packaged, sold and purchased on the most ‘productive terms’” (124–25). Such commodification of human rights is quite evident, it has been argued, in the global human rights film market. No doubt, since the 1990s, human rights film festivals have been faced with the pressure to reconcile a globalizing mission with local politics. Programmers wrestle with the funders’ request for more cosmopolitan films, pushing programming toward the industrial models associated with “global art cinema” and “world cinema.” For instance, this tension has been discussed in the controversy surrounding the by-now infamous global tour of the 2004 film Born into Brothels, a film showing the harsh conditions of life for kids who had had to meander through seedy spaces of commercial sex in Calcutta, India. The main controversy has to do with the very question of the entanglement between human rights work and processes of capital to

Eight theses on human rights  55 co-construct the disadvantaged minorities of society. In analyzing the film, Sarah Brouillette (2011) puts the issue sharply: I read the 2004 film Born into Brothels as a paradigmatic instance of an increasingly prevalent and transformative intertwining of the human rights market (which packages and sells causes to potential donors, investors or consumers) with the human rights culture (which produces and consumes texts and images depicting struggles and movements, often narrating the experiences of individual beneficiaries of actions and organizations). Interlinked with media companies and aid agencies, and attended by websites, exhibitions, books, postcards and calendars, the film reveals some of the defining ways these markets operate, while evincing considerable nervousness about directly addressing their potential ethical implications. (169) Brouillette goes on to point out that perhaps the “nervousness” found in the increasing capitalization of human rights advocacy work lies in the ethics of framing and promoting an outside (white) hero performing a rescue narrative on film (as in the role of Zana Briski in Born into Brothels). The ethical pressure is also on the promotion of victims’ self-representation as consumables in the international art market. Many human rights campaigns, especially when they enter into the international arts circuits, are increasingly about the inception of a larger, transnational humanitarian program that is often intertwined with the processes of humanitarian consumerism. In sum, bureaucratization and marketization are the twin processes that may have weakened the credibility of the human rights systems. In a more positive note, though, an awareness of these processes would prompt human rights advocates and activists to identify and work in the gap between their idealism or universal abstractions and real people’s problems.

Note 1 Besides joining the ECOSOC and DPI, civil society groups can participate through other UN mechanisms, such as the UN Democracy Fund, the Integrated Civil Society Organizations (iCSO) System, the United Nations University, and the UN Foundation. See www.un.org/en/sections/resources/civil-society/.

Works Cited Anghie, Antony. 2013. “Whose Utopia? Human Rights, Development, and the Third World.” Qui Parle 22 (1): 63–80. Arendt, Hannah. 1958. The Origins of Totalitarianism. Cleveland and New York: Meridian Books. Balfour, Ian, and Eduardo Cadava. 2004. “The Claims of Human Rights: An Introduction.” The South Atlantic Quarterly 103 (2/3): 277–96.

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3 The juris-cultural Cases and perspectives

Introduction: culture and (the resistance to) law Law is never lived as pure abstraction, because it must be possible for us to identify its conceptual specificity to be able to say anything about it at all. No doubt, law is text, speech, practices, system, ideology, institutions, and social order all at once. In the context of this book, law is specifically approached from the critical perspective of culture. Indeed, there are many good reasons for saying that it is simply preposterous to separate law and culture conceptually. Law is not something that is external to, and therefore inserted into, culture. Rather, law is a culture, a set of experiences, and a cluster of institutions and practices that cannot be detached from the wider formations from which they emerge. Yet in some ways, the very idea of culture, especially as it is formulated in cultural studies, is particularly pliable to stand apart from, scrutinize, and critique, law. If cultural studies describes how people’s everyday lives are articulated by and with culture through the fluid unpredictability of lived experiences (Grossberg, 2010), then law’s often doctrinal status and the often fixed and immutable processes generated from that doctrinalism, are inimical to cultural experiences. If cultural studies is politically focused to understand the construction of life contexts as that which are entangled in the matrices of power, then law’s normative power to subjugate life under its austere authority should be struggled over, resisted, and even changed. In this chapter, I build on the belief of the inseparability of law and culture and consider different ways of conceptualizing the mutual constitution of law and culture through a series of case studies. These cases—most of them are projects that I have engaged in given my location of working in Asia—will be discussed to help us think about the politics of challenging law in various manifestations, such as challenging human rights law.

The legalization of law I want to first tackle a peculiar question: Human rights require the enactment of an operation that concerns the legalization of law. This blatant

62  The juris-cultural tautology, in fact, serves to supply the foundation of legitimation of an otherwise incoherent political idea known as human rights. But how do you legalize the law? Is not the very constitution of the rules, orders, and contracts the self-same act to found their very own authority and legitimacy? The short answer to this, I suggest, is that there is a distinction between law and the institutionalizing, norming work of legalization. The working-out of processes and procedures of social regulations that govern life is of paramount significance for the accretion of principles, values, and beliefs that command a common order, which we call law. As Foucault would famously have it, there is an important distinction between power and the technology of power, or more precisely the various technologies of the body, architecture, and professional institutions that give rise to (bio)power. And to follow through with this Foucauldian line of logic, what ties power and the technologies of power together is often the work of discipline. In a similar manner, what is perceived as a tautology when we speak of the legalization of law, in fact, points to a whole host of disciplinary conduits at work, whereby legalization gives birth to the law through institutional mechanisms and discursive interventions. It also points to something else that Foucault is most concerned with regarding the field of biopower, which is sovereignty. Just as how Max Oelschlaeger (1991) examines the agri-technical sovereignty of “scientific progress” that inaugurates the wilderness as an “ecology,” how Laura Kipnis (2004) scrutinizes the moral sovereignty of “loyalty” that turns unruly human intimacies into something called “love,” social scientists of various sorts have turned our attention to the ways in which the sovereignty of “rationality” takes regulations and norms and transforms them into “law.” It should be obvious that human rights arose from a disciplinary conceptual apparatus, in the specific sense of it belonging to a species of the sovereignty of (legalistic) rationality that facilitates the turning of moral ideals into the expression of rights. Talks of moral ideals imply that the definition, specification, formulation, and interpretation of rights are not merely a legal process. As Baş ak Çali and Saladin Meckled-García in The Legalization of Human Rights (2006) explain, a moral ideal … is not a legal ideal, that is, unless one believes legal codification is the only, or principal, way to express these moral aims, and that legal interpretation is merely the working out of these aims on a case-by-case basis. (1) In other words, while there is no necessary correspondence between rights and rights law, no necessary reason why all human rights, or all aspects of human rights, are most appropriately advanced through legal means, there is the sovereign dominion of functional rationality that offers efficiency, stability, and confidence to human rights. In Foucauldian parlance, human rights are disciplined into/as human rights law; the tautological relation is not

The juris-cultural  63 only necessary, it is vital to understand human rights legality as a specific kind of disciplining productivity. Human rights legality stems from the codification of international law, a practice that employs functional rationality for the need for interstate negotiations, diplomatic compromise, and the accommodation of nonrights goals and values (such as market goals and values). The process is largely state-driven, albeit with independent recommendations. Moreover, the distinctions that have been made between civil-political and socioeconomic rights, and the categories of first, second, third, and so forth, “generations of rights,” are taken for granted as categorical problems of independent importance in human rights scholarship (Tomuschat, 2003; Ife, 2001). The whole ideological and military confrontation in the Cold War, and the whole history of decolonization in the mid-twentieth century, are downplayed, occluding an understanding of the split between civil-political and socioeconomic rights as a political split (see Woodiwiss, 2002). As a result, Çali and Meckled-García (2006) remind us, the nonlegal discussion of rights suffers from what can be described as the “footnote” phenomenon: “the idea that so long as the putative non-legal foundations for rights are cursorily stated, one can quickly move on to the important discussions of specification and implementation, which are primarily legal” (2). In this way, the legal mandate folds human rights under its wings, and in doing so, relegates the nonlegal or extralegal dimensions of rights as mere appendices, as afterthoughts. Yet, the explicit legal focus in human rights allows for activists to be vigilant about demanding the duties of implementation, institutional development, protection, and monitoring, such as urging states to ratify international treaties and incorporate them into domestic laws, making calls for constitutional and legal reform, petitioning for improvement of domestic legal institutions, insisting on better administration of the criminal and civil justice systems of states, and so on. Legalism also shapes the dispensation of resources and encouragement given to the training of judges and lawyers on the legal concepts and of more general educational campaigns that focus on legal entitlements, states’ legal duties, and mechanisms of redress. Clearly, the permeation of law in the human rights world has given rights work the undisputed necessity of an infrastructure, even as this permeation limits our imagination of rights. But there is a longer, more wide-ranging, answer to the question of the legalization of law that I would like to attempt here. Suffice it to say that internal to the autonomous historical progression of modernity, in its Western incarnation that many of us know how to speak about, are processes that were so contradictory that self-same legitimacy must be sought in order to manage the crisis of modernity itself. Broadly speaking, modernity has been about the interplay of elements that try to stabilize the immense variability of contradictory aspects of the state; the market; the community; the ­aesthetic-expressive rationality of the arts and literature; the moral rationality of ethics; and, most important of all, the instrumental rationality

64  The juris-cultural of science and technology (de Sousa Santos, 2002). Modernity, crisis, and rationality form a knot or a loop, and through it, produce the paradigmatic expectations and promises of enlightenment, alongside the experiences of perpetual transitions and failure of emancipation. In the final chapter of this book, I will venture into an elaborate discussion of “legal modernity” that I believe is so important for situating human rights in the dominion of law.

The “juris-cultural” Speaking in genealogical terms that have become household ideas in cultural studies, Raymond Williams (1983) famously called culture “one of the two or three most complicated words in the English language” (87). Equally notably, Clifford Geertz (1988) added that “culture is a deeply compromised idea I cannot yet do without” (10). Being sensitive to contexts, signifying meanings, and practices, culture is essentially an ever-changing concept. The same can be said of law: It is complicated and deeply compromised. In Peter Fitzpatrick’s (2005) words, law is “a moving horizon—the horizon both as a condition and quality of law’s contained existence, and the horizon as opening onto all that lies beyond this existence” (9). Put in another way that would be more congenial to cultural applications, we can say law is at once determinate of social order and in constant response to it (see Davis and Knox, 2014). Perhaps, it is because of the elusiveness in law and culture that ­Rosemary Coombe (1998) insists that “[t]he relationship between law and culture should not be defined … An exploration of the nexus between law and culture will not be fruitful unless it can transcend and transform its initial categories” (21) (see also Coombe, 2011). Naomi Mezey (2003) uses the interesting phrase “law as culture as law” to emphasize “the mutuality and endless recycling between formal legal meaning-making and the signifying practices of culture, demonstrating that, despite their denials and antagonisms, these processes are always interdependent” (51). From the perspective of legal scholarship, Menachem Mautner (2011) lists nine types of entanglements between law and culture, including the historical school in seeing law as national culture, law as constitutive of social relations, the legal system as a distinct cultural system, the law and anthropology approach, the legal culture approach, the legal consciousness approach, the law and popular culture approach, intellectual property law, law and multiculturalism, legal branches/doctrines that constitute the law/culture nexus, law and development, and law as an autopoietic system (that considers law as a unique constructivist epistemology). To this list, one would add the law and literature approach, law and social movement approach, and law and cultural studies approach. Across these variants—which obviously overlap—scholars and commentators may take a normative, critical, or dialectical stance on the law/culture relation.

The juris-cultural  65 Let me now briefly sketch what can be called the “cultural turn” in legal scholarship, in order to ascertain the conditions, especially those within the judiciary and legal education institutions, under which both the categories of “law” and “culture” had undergone transformation as a result of the “cultural turn.” In his classic book that in my mind helped to inaugurate the “cultural turn” in legal scholarship, The Cultural Study of Law: ­Reconstructing Legal Scholarship (1999), Yale law professor Paul Khan explains an “epistemic crisis” dating back to the first half of the twentieth century in US legal studies, which seriously challenged the traditional doctrinal approach to law and the legitimacy of its knowledge claims. Khan’s most important point is his observation of how quickly and successfully legal studies absorbed and coopted the crisis. The legal realist movement, which broke the myth of the autonomy of law, introduced an epistemic crisis through the rise of a new empirical social science of law. The two major strands of legal realist practice, according to Khan, were the modern paradigms emerging from the law and economics movement and the critical legal studies movement. By attacking the knowledge claims of the ­doctrinalists— championed by both judges and law academics—these two movements forced a new understanding of law through a different vocabulary and a different set of explanatory rules from those deployed by the practitioners themselves. In this way, law became epiphenomenal, and the tools and concepts of some other disciplines outside of law were brought to bear on the revelation of the “underlying truth.” Khan (2001) states, Legal decisions and legal rules, the legal realists taught us, have to be understood in a social/political context that is not captured by the categories and descriptions of law. Law satisfies none of the normative criteria of autonomy: it is not objective, neutral or coherent. (145–6) However, Khan reminds us that because those very normative criteria of the law’s autonomy serve an important legitimating function, they cannot be easily discarded: Despite the victory of legal realism, the power of [the] epistemic norms remained … Nevertheless, they had to find a new footing apart from the traditional science of law. Precisely as a result of the success of the legal realists at simultaneously colonizing the academy and the bench, this battle today is waged on two fronts at once—within the judiciary and within the university. (146) Challenged by the legal realists, the modern law school has been living with the burden of establishing the form of knowledge appropriate to law.

66  The juris-cultural However, the legal realists could not simply dismiss the implicit norms behind claims for the autonomy of legal knowledge, since those norms were the basis of the legitimacy of legal decision-making. The more they introduced external epistemological frameworks as the alternative legitimating ground of legal reasoning, the more they were being appropriated: [T]he capacity of the practice of law’s rule to co-opt the scholars’ claims to knowledge proved to be much stronger than the legal realists had imagined possible. Within a very short time, professors who alleged a loyalty to legal realism were themselves occupying the bench. Legal realism was no longer outside of legal practice looking in, but a dominant form of reason operating within the rule of law itself. (144) When the law school operates as a kind of funnel through which other disciplines are fed into the law itself, what happens is that the intellectual expertise of the legal left actually facilitates the movement of the left from being critics to participants. The realist challenge, it turns out, brings the legitimacy of law and the critique of law into an embrace that may seem strange initially but actually become normalized over time. Khan suggests that this is so because both normative self-legitimating liberal law and critical Marxist, feminist, and race theories of law want to get to the “truth” of the matter, as it were, believing that having reached that truth, legal reform would follow. In other words, it turns out that critical legal realist work can have a stabilizing function for legal reform, so that the latter is not merely about the creation and distribution of “law forms” (rules, norms, and manners of governmentality) through autonomous practices; it is also sustained by the strategic incorporation of “antilaw.” Antilaw, which is not the same as the opposition or even wholesale abandonment of law, refers to ideological and organizational strategies that seek to politicize the legal order and brings it to recognize the multifarious social, intercultural, and transnational political dimensions of law. Prominent examples of antilaw movements include antipositivist theory of law and globalization aimed at ending colonial forms of law; Third World Approaches to International Law (TWAIL) aimed at challenging the very legitimacy of “hegemonic international law,” subaltern postdevelopment theory of law, and so on. Antilaw strategies often deploy a common political language informed by feminism, Marxism, and Third Worldism. Which of these elements in the law/antilaw spectrum is the more powerful in any given context will depend on a range of circumstances; for example, the types of spaces of enunciation in legal fora or in more informal environments, the kinds of moments for legal pedagogy or for public legal reform work, the balance of forces within and between different legal actors and stakeholders, and so forth. For instance, anticolonial law movements and activism, characterized by a high level of resistance to normative law, will

The juris-cultural  67 tend to limit the truth claims of formal law. Conversely, legal reform that involves enacting points of actions and decisions, such as in a constitutional legal debate, will tend to lessen the reformists’ tendency to resort to the construction of antilaw, as they are forced to innovate legal argumentations that can help them compete with their rivals and adversaries in a legal debate. In fact, following the trajectory of argument that runs from Marx through to Negri and Baxi, it is possible to see that the energy and creativity that give rise to a rethinking of law is not directly engendered by formal legal innovations within the judiciary and law schools but is always partly the result of sociocultural and political interactions outside of the circuits of those legal institutions. From this perspective, formal legal knowledge must always feed on this energy and creativity and work to transform itself into legitimate legal capital, but it is not a direct source of legal value in itself. This is perhaps why law must to some extent allow the zones of antilaw to exist; the former needs the great laboratories of change led by the latter to thrive. Formal law cannot always capture what comes out of the contestation, although it will try. When it cannot, because the antilaw movements become connected to other forces, progressive legal change can follow. Consider, for instance, what took place for two decades now when various indigenous cultural groups and local peasantries in the Americas, the most well-known being the Zapatistas in Chiapas, made legal evocation of culture in order to gain control to create place-based alternative development pathways. Their battles for cultural preservation were a product of the interaction between elements of national constitutional and international laws protecting indigenous cultural rights and decades of anticolonial, antineoliberal, and subaltern campaigning. Rosemary Coombe (2005) presents the case of the Zapatistas and similar struggles in ­Colombia, Ecuador, B ­ olivia, and Peru as practices akin to what we might call “antilaw” campaigns aimed at delinking development from globalized capital and the hegemony of neoliberalism: Drawing creatively upon human rights and indigenous rights discourses in international law, peoples who have been historically marginalized by the state and have retained subsistence livelihoods are making demands for collectively-held land, control over resources and local political autonomy in cultural terms that stress the vital role of traditional knowledge and institutions in enabling them to assume their proper place in newly democratic states. The struggle to include traditionally-defined collectivities in the Mexican constitution includes claims “to bilingual education, the right to local and regional autonomy and to communal land as the basis for the cultural reproduction of the group”  … With the help of international NGOs and creatively deploying resources drawn from the Convention on Biological Diversity and international human rights vocabularies, these subaltern groups challenge capitalist

68  The juris-cultural development and “enact a cultural politics of difference as they struggle to defend their places, ecologies and cultures.” (49–51) Therefore, it took the strategic coordination of the indigenous groups and local peasantries to recapture the potential for cultural preservation and survival and amplify it in legal democratic directions. No doubt, there is a fine line, and the difference lies in the function of law to capture and direct the energy and creativity of the antilaw constituents. There is always a level of risk inherent in the kinds of antilaw activities, but the law must permit them if it is to keep moving forward. Another example comes closer to home. During the preparation for mobilizing what became the “Umbrella Movement” seeking democratic change in Hong Kong in 2014, Benny Tai, one of the key architects of the movement and a specialist in constitutional law, exemplifies the aspirations of a kind of antilaw politics by explaining his view on the various “levels” of governance by law. According to Tai, the “low levels” consist of a basic recognition of the law and an absolute obedience to the law (Tai, 2014). These two strata are built upon minimal elements, such as the clarity and transparency of the law and the proper institutionalization of legal practice. Tai considers these “low” levels because they are generally “beginning-stage governance by law” that lacks an effective means to restrict power. To leap toward a higher level of governance, the law would have to be transformed from functionalities (as the tool of the powerful) to a system of checks and balances (affording a restriction to power), which can then lead to the actualization of legal purpose (the chief purpose of the law is to practise justice). (Tai, 2014, A37, author’s translation; see also Erni, 2015) Tai’s legal realist view is set in normative terms. Without straying from basic legal theory, he, nonetheless, rejects blind adherence to predetermined law. Besides, during the Umbrella Movement, there was a plethora of human creativity expressed individually and collectively, from artwork, songs, and slogans to the ad hoc mobilization of medical and other services provided in make-shift tents. Benny Tai’s legal reasoning and those street-level creativity evidenced a discursive sphere that must be recognized as constituting “antilaw” patterns of order and civility, restraint from violence, peaceful collective formation, and self-respect. Once again, in hindsight, we see the ways in which the law permitted the existence of civil disobedience and captured its energy and creativity. Nonetheless, this interactive process still constitutes what I shall term “juris-cultural” struggle whereby the constitutive power of law enters into an intricate negotiation with the sites of antilaw through which it attempts to secure its legitimacy.

The juris-cultural  69 By “juris-cultural,” I refer to an object of critical cultural analysis that investigates the mutually constitutive nature of law and culture, through dissecting “law as culture” in which cultural signifying practices are traceable to the presence or absence of legal norms, as well as through “culture as law” in which the contested meanings of cultural communities, their practices and politics, can shape or even dictate social norms and regulations. Similar to Naomi Mezey’s “law as culture as law,” the designation of the “­juris-cultural” hopefully presents a language that avoids separating law and culture but confronts their uneasy entanglements. It is hoped that there is value in this theoretical jargon, as it is worth thinking about what this theorizing might mean for legal scholarship that undertakes the task of tackling the complexity of society, history, economics, and culture and worth asking what cultural studies might do for legal studies. A “juris-­cultural studies” is possible, which can help to capture the varieties of cultural studies of law (see Erni, 2009, 2010; Sarat, 2004) In what follows, I hope to survey those varieties more or less inductively through a series of case studies involving “juris-cultural struggles” over rights. These case studies are not in any particular order; they are presented in this way so that they can serve as independent samples of critical juris-cultural studies for the readers. Seemingly without any order, these cases, nonetheless, engage in “big ticket” questions of rights that have been particularly vibrant over the past ten years, such as questions of immigration; sovereignty disputes; rights of the refugees; lesbian, gay, bisexual, and trans (LGBT) rights; legal education; and the plight of human rights defenders (HRD). The first case on the question of the “new sovereignties” investigates the mutation of human rights through the onset of an intensifying economy of trade in world order, rendering the United Nations (UN) and the World Trade Organization (WTO) key advocates for a neoliberal transformation of human rights. There has been an ominous pronouncement of the so-called end of sovereignty in the chorus of global political and human rights analyses aimed at reformulating a post-Cold War configuration of world power. In cultural studies, the same pronouncement is more likely made through a mix of theoretical exuberance and ambivalence toward a postnationalist and cosmopolitan imaginary. In this case study, however, I take as a point of departure the rise of “new sovereignties”—a fractured Westphalianism—as a rubric for understanding the political imagination about the international community today. It asks: to what dimensions of the regime of the new sovereignties can the human rights legal discourse as we know it today still exert influence, given the new configurations of globally disaggregated power? With human rights today reemerging as a bifurcation, how can cultural studies reconcile a theory of rights as subaltern claim-making with that of rights as an all-englobing tool in the neoliberal order of world justice? Through a mapping of the moral-juridical and political forces that shape the regime of the new sovereignties, I will attempt to illuminate why rights as international deontological politics is inadvertently

70  The juris-cultural complicit with the reproduction of rights as something constitutive of empire and neoliberalism. In the second case, I put forth the call for a renewed theoretical engagement with immigration rights and immigration laws. Here, my focus is on the “right of abode” crisis of Hong Kong that has plagued the local judicial order and complicated popular demands at the grassroots level ever since Hong Kong’s sovereignty return to China in 1997. In the past twenty years since the handover, many in Hong Kong have identified the city as “half-sovereign” or “conditionally sovereign,” as postcoloniality has brought about new ruptures and shifting boundaries of citizenship in economic, cultural, and legal terms. The work of deciphering questions of belonging is still ongoing and has, in fact, intensified in recent times. Increasingly, who qualifies as a citizen and where their sense of home is have become vital questions for two visible groups: the Chinese Mainlanders whose personal and cultural fortunes have been transformed by opportunities presented by the permeability of the city-border, and the foreign domestic helpers whose right of belonging has been caught up in discriminatory immigration laws. I shall argue that over the past twenty years, the immigration crisis of the Hong Kong Special Administrative Region (HKSAR) exemplifies an underlying ruling construct that seems to be spreading everywhere: a construct that I term the politics of being “­i ncluded-out.” My argument will be that the fate of the Chinese Mainlanders and the foreign domestic helpers are conjoined by the state of being “included-out,” something augmented by nebulous doctrines of citizenship rights as well as by legalized and informal forms of cultural racialism. Through an analysis of the landscape of human rights struggles concerning the right of abode for people caught in half-sovereignty, I hope to outline the biopolitical continuum of those “included-out” in Hong Kong’s citizenship management regime. This kind of theoretical proposition, which refuses to dichotomize inclusion and exclusion in cross-border human rights matters, is extended out into a third case, which will be a broader contemplation on the vast cultural reconstitution of place-based refugee processing centers around the world. In this extension, I shall attempt to bridge the notion of the included-out with the notion of “refuge” as enshrined in human rights discourse. If the included-out represents a form of existence and even of modern identity per se as it is produced out of what seems like a vast condition of what can be called “im/mobility on the periphery,” I want to suggest that because its very nature is that of indistinction (especially indistinction between inclusion and exclusion), this category can be useful and productive in helping us to reassess the politics of “taking refuge.” Theorizing refuge, when taken as an aspiration, as moral-juridical protection afforded by human rights, and as spatial politics and spatial rights in city edges where refugees and other displaced populations move around, can have implications for different forms of identity politics.

The juris-cultural  71 In the fourth case of this chapter, I return to Hong Kong as a site where a groundbreaking judicial event took place over 2010–2013 regarding the question of transgender rights. In October 2010, a highly publicized court case was heard in Hong Kong’s Court of First Instance, concerning a transsexual woman’s right to marriage. Miss “W,” as she was known in the case and in the media, sought recognition in Hong Kong’s marriage laws an inclusion of postoperative transsexuals as legitimate “man” or “woman” in a matrimonial union. She also sought declaration from the Court that should such a recognition be denied, the existing marriage laws should be pronounced unconstitutional. The Court, unfortunately, ruled against “W.” Subsequently, she sought appeal but the Court of Appeal in its November 2011 ruling once again refused to grant her the right to marry. But she eventually won by a small margin at the Court of Final Appeal (CFA) in 2013. A mundane case of marriage rights—between a man and a woman—escalated into a major case in which the subject in question fought her way all the way to the Final Court, because “she” was a biological male. Various incompatible discursive folds of the marriage laws in Hong Kong led to considerable confusion on the bench and in popular debates regarding the legal standing and rights of the transgender person. In discussing this case, I shall attempt to critically unpack the rulings in W v. Registrar of Marriages in both Courts and analyze their broader social and discursive implications. The case study has three sections. To date, the influence of the groundbreaking ruling of this case continues to ripple around courts everywhere. In the fifth case, I focus on the riveting problem faced by HRD in authoritarian regimes. A notorious problem, many would say, when an authoritarian government turns right defenders into the enemy of the state. Yet this perspective often lacks a nuanced cultural investigation into the moral universe of those rights defenders and how it shapes them as easy scapegoats of state attack on rights. Focusing on the general rise of rights consciousness across China in recent years as a backdrop, this case study explores how such a rise in rights awareness is related to the specific, and rather contested, practice of the “weiquan” (or “rights defense”) lawyers within the larger historical context of China’s legal reform. The arrest of several hundred Chinese weiquan lawyers has been widely reported since 2015. Here, I shall propose a critical discussion of the figure of the weiquan lawyers as both the symbol of popular struggles in China today and, interestingly, also as members of the legally educated class groomed by the state as a constitutive part of its post-Mao modern legal reform. In offering a reading of the dynamic meanings of weiquan as an emerging discursive and political construct, I hope to provide a necessary basis for a critical engagement with a highly particularistic and expansive human rights polity under a framework of what many have increasingly called “Chinese exceptionalism.” ­Ultimately, this case study hopes to deliver a more balanced analysis between state sovereignty rights and the rights of the HRD in a legal and political system that often link the two sides structurally, not the least through these defenders’

72  The juris-cultural pathway to become professionalized in the first place, through the state-led legal education system. Once again, these case studies aim at raising a variety of critical legal-­ cultural perspectives, exemplifying a range of possible analytical works that are made possible within the terrain of the juris-cultural. No doubt, others would have better cases to offer, and there would be more pressing human rights violations to examine, and I welcome them, especially from outside the Asian region that, one way or another, has limited my own purview of possible analytical projects over my years of preparing for this book. Yet I will not call these mere “Asian cases,” for each case is destined to reverberate beyond any national, regional, or cultural boundary, let alone the fact that many of the legal materials being examined in these cases are already of multiple jurisdictional spread.

Case 1: Human rights in the neoliberal imagination: mapping the “new sovereignties” Because of globalization. Because of the explosive popularization of new communication technologies. Because of world capitalist restructuring aimed at flexibilizing capital, labour, geography, and politics. Because of the shifting political nature of inter-state relations between the North and the South brought about by the end of the Cold War. Because of reform in international law in its effort to better coordinate compliance and enforcement of world security. We have been hearing for quite some time about the erosion of state sovereignty. Why has the system of nation-states been weakened, and the concept of sovereignty been endangered? The shorthand answers above represent some of the responses offered by sociologists, neoliberal economists, researchers in international relations, and scholars and practitioners in international law. As we all know, for critics of the left, a highly nuanced and critical amalgamation of those perspectives arrived with the work of ­Michael Hardt and Antonio Negri, whose Empire (2000) and Multitude (2004) were historically situated squarely between the first and second Gulf Wars, which they rightly postulated as the paradigmatic cases not about the death of sovereignty but about its violent rebirth. The same historical moment has also forged an urgent reassessment of human rights and international law. To what dimensions of the “new sovereignty” can the human rights discourse as we know it

The juris-cultural  73 still exert influence, given the new configurations of global power? If we begin by acknowledging that the human rights movement has always been a mixed blessing in international politics, then where is its new tipping point, as it were, from being a global moral-juridical force aimed at human emancipation to being a platform for powerful states to launch their pursuit of war and exploitation? To put it concisely, what is the relationship between human rights and the politics of ­Empire? Needless to say, there has been an abundance of responses to Hardt and Negri’s works. However, few of them connect the visionary intensity of those works (and many say, their equally robust flaws) to the politics of human rights. It is to the current reconfiguration of the “human rights imaginary” by the transformation of state sovereignty power that this case study turns. It is concerned with two central problematics: (1) How do we think about the forms of international politics through a new assessment of the question of legal state sovereignty, capable of illuminating the articulation of various levels of legal and extralegal determinations of power? (2) How do we rethink the form or the underlying discursive structure of human rights that has had to respond to the changing forms of state sovereignty? Primarily, I want to offer a theoretical proposition: As the legal and economic forms of global sovereignty are being remapped today, we are witnessing an appropriation of human rights, politically and epistemologically speaking, that seems to render the reproduction of human rights as something constitutive of neoliberalism. Neoliberalism, or what I call the regime of the “new sovereignties,” never disavows human rights. My proposition is about the curious relation by which human rights are included as an outsider, as it were, to the new sovereignties. Human rights are at a crossroads: Rights-based political work has had to decide its destiny differently at a moment of profound humanitarian crises and distress. Stating this also means stating an objection to the notion of the so-called end or death of human rights. This seems to be a popular mantra these days. However ambivalent one may feel about human rights, especially among critical circles, whatever we think about how enforceable international law can be, we should not confuse contingency and contradiction with total failure, crossroads with dead end (see Erni, forthcoming). Legal sovereignty: a “limit concept” The conception of sovereignty as an interactive configuration of the relationship among nation-states has always been a concern of international law, since sovereignty posits not a simple transactional kind of interaction among rulers. Instead, this interaction is governed by

74  The juris-cultural the legal designation of each state as an independent entity equal to all other states. According to the classical Westphalian conception, sovereignty was the juridical order that organized the supremacy of a state to claim exclusive territoriality as well as absolute property rights of that state’s subjects. A sovereign is supreme or preeminent; its power is always already above power. In other words, to be sovereign is to be subject to no higher authority. Of course, this absolutizing of (a theologically derived monarchic) power to claim “private” ownership of territories and people—what is known as internal sovereignty—was predicated upon the threat of a breach of territory by other states (see Douzinas, 2007, 269–90; Brown, 2006). Westphalianism, therefore, recognizes the necessity of forming “equal” and “friendly” relations among states, resulting in a codification of the principle of external sovereignty as a key doctrine in shaping international politics. Such a legal doctrine asserts three principal aspects of sovereignty: (1) a prima facie exclusive jurisdiction over a territory and the permanent population living there, (2) a duty of nonintervention, and (3) a duty of international obligations arising from customary law as well as treaties on the participating states’ consent. On the first aspect, the claim of exclusive territorial jurisdiction is prima facie valid because the claimant must first be recognized and accepted as a state by other states and a juridical equal to them. This entails establishing the claimant as a political entity in the international system or what is known as “international legal sovereignty” (Krasner, 1999). It is the relation between the second and third aspects of Westphalian sovereignty—the duty of nonintervention and that of complying with international obligations—that deserves our attention. This is a relation fraught with tension. How does the right of nonintervention wrestle with the duty of international obligations (which often necessitates intervention)? How do internal and external forms of sovereignty reconcile with each other? In other words, how do we understand the structure of sovereignty in symbolic discursive terms, which inscribe in the body of a nation-state a diacritical relation that preserves both the inside and the outside, through legal codes that both protect and violate the interiority of sovereignty? Article 2(7) of the Charter of the UN is a display of this diacritical relation. It reads, Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll. (my emphasis)

The juris-cultural  75 A deliberately elliptical reading of the provision sheds light on the symbolic structure of modern state sovereignty: “Nothing … to ­intervene … shall not prejudice … enforcement.” Here, in the abstract form of the law, the absence of a cause justifying intervention—an empty ­signification—is curiously the very cause that cannot be prejudiced against. “Nothingness” is the very force that must be respected; it is that which authorizes the relation to the potentiality of intervention. To borrow Derrida, the law of nonintervention “keeps itself without keeping itself, kept essentially by a logic of [gatekeeping] that keeps nothing”1 (quoted in Agamben, 1998, 49). Nonintervention does not present us with a shut door but an open one that lets us linger in a zone of “potentiality” (in this case, the “open door” is literally deposited in Chapter VII of the Charter). Here, we encounter a very interesting legal situation regarding the nature of sovereign power. Imagine if the Article were written differently: “There exist some potential concerns or reasons in the present Charter that may authorize the United Nations to intervene … and this principle shall authorize the application of enforcement measures under Chapter VII.” As law, this alternative legal construction would radically attenuate the law’s power ironically by maximizing signification, which is to say, by minimizing potentiality.2 But let us not forget that it was the rise of human rights that made vivid the tension inherent in the legal structure of sovereignty law. ­Sixty-plus years of modern human rights development have essentially punctured state sovereignty and its treasured notion of self-­ suppositional jurisdiction and autonomy.3 As Derrida (2005, 157–8) puts it succinctly, [I]n the name of the universality of human rights, or at least their perfectibility … the indivisible sovereignty of the nation-state is being more and more called into question, along with the immunity of sovereigns, be they heads of state or military leaders, and even the institution of the death penalty, the last defining attribute of state sovereignty. The modern subject has a new chance to withstand state violence, because he or she has been recast as both the victim of sovereignty and the beneficiary of human rights. Human rights use law against law, so as to institute and proliferate legal spaces of contestation within the body of the nation-state. But it has never been human rights law alone; more powerful international organizations aimed at restructuring parts of a local economy through loans and other economic schemes have also undermined state sovereignty. There exists an entire political economy

76  The juris-cultural of state interference undertaken by the Bretton Woods institutions (see, for example, Medenica, 2004). For instance, the conditionality agreements issued by the International Monetary Fund (IMF), which carry direct weight due to attachment to funding provisions, is one of the most acute forms of interference. Yet they also carry indirect weight derived from the IMF’s claim to “technical expertise” which positions the international funding body as the ideological arbiter of “universal” values and norms of development and modernity (see Head, 2004; Lee, 2003). In short, Westphalian sovereignty is not dead today, but it has gradually evolved into a limit concept that holds at bay three essential components, namely, territorial proprietorship, world capitalism, and humanitarian politics. Moreover, the difference among property, money, and rights is becoming less and less distinct today, when the line between human rights politics and predatory forms of neoliberalism is increasingly blurred. I shall return to this later. New sovereignties With the war on terror (still) looming large, it is easy to collapse an understanding of state sovereignty in the new world order into the specters of firearms, martial orders, and bombs. But let us not forget that the scope of new sovereignties is never limited to the political or the militaristic. Rather, what characterizes the new sovereignties is a paradigmatic reorientation of power into the form of networked legal and economic governance. Today, legal scholars have updated Westphalianism by turning our attention to the new and variegated forms of linkage enacted between sovereign states. Increasingly, absolute sovereignty has given way to networked sovereignty. As Gopal Balakrishnan (2003, ix) puts it, “The term ‘Empire’ … refers not to a system in which tribute flows from peripheries to great capital cities, but to a more Foucauldian figure—a diffuse, anonymous network of all-englobing power.” Before Hardt and Negri, political theorists Abram Chayes and Antonia Handler Chayes (1995) have already offered in their book The New Sovereignty a new vocabulary of state power that postulates a high level of interpenetration of world economic and political relations. They offer the by-now familiar assertion that “sovereignty no longer consists in the freedom of states to act independently, in their perceived self-interest, but in membership in reasonably good standing in the regimes that make up the substance of international life” (Chayes and Chayes, 1995, 27). If international standing is the norm, then the operational logic of the new sovereignty is derived from

The juris-cultural  77 the active role of the [new sovereignty] regime in modifying preferences, generating new options, persuading the parties to move toward increasing compliance with regime norms, and guiding the evolution of the normative structure in the direction of the overall objectives of the regime. (Chayes and Chayes, 229) I pluralize Chayes and Chayes’ term—from “new sovereignty” to “new sovereignties”—because understanding this new formation means grasping the complex relations or articulations of various overlapping modalities as well as techniques of sovereignties. What are those overlapping modalities and techniques, spreading while consolidating the political, economic, cultural, legal, and human dimensions of the new sovereignties? Let me offer three propositions to illustrate the main themes of the new sovereignties: 1 The regime of the new sovereignties intensifies a renewed apparatus of flexible capital accumulation beyond borders. This much is obvious. Nonetheless, it is important to note that such flexibility is understood in both positive and negative terms. On one hand, the new sovereignties intensify the network apparatuses that facilitate capital accumulation via speculative free-flowing of finance and assets. This apparatus is networked, not anarchic. States are involved in this apparatus, albeit in a transborder structure and in a process of perforating their sovereignty. Yet on the other hand, such a multilayered apparatus can accrue considerable risks, depositing potentially infinite points of vulnerability as capital jumps and is traded from locale to locale, financial system to financial system, political environment to political environment. While this retains the shadow of “interdependence sovereignty,” it does magnify the potential of a loss of control over transborder movements and, by extension, a loss of balance in the rights/duties matrix of state sovereignty. It is important to realize that a flexible sovereignty regime does not—in fact never could—imply the end of state sovereignty. 2 The regime of the new sovereignties forges a managerialist reconfiguration of interstate and supra-state relations. A fundamental issue underpinning this reconfiguration of international relations is that there has evolved among government elites a new way of doing business, so to speak. World governments see the need to transform the international society of states into a decentered form of global governance. Empirical evidence suggests that where previously unitary states

78  The juris-cultural were the key actors in the global political system, now we have new institutions and forms of international relations that represent components of the state armed with a corresponding set of techniques and protocols in their exercise of transnational governance. Finance ministers, securities commissioners, environmental agencies, armed forces representatives, and other para-governmental representatives are now forming units of transgovernmental operatives. The horizontal operatives link what Anne-Marie Slaughter (2004) calls the “new diplomats” in functional transnational channels who work more or less independently without representation of the state as a singular body. Meanwhile, the vertical networks of national and their supranational counterparts, such as judges, antitrust regulators within a regional bloc (e.g. the European Union (EU)), and other legal professionals, are increasingly entering into various forms of “international judicial negotiation” at a functional level, again with no required reference to the state as a unitary artifice.4 As a result of the horizontal and vertical linkages involving the transnational technocratic professional class, [t]he network structure of interaction is allegedly based on the disaggregation of the state and its sovereignty: it enables officials in each domain to solve common problems, share information, harmonize rules, generalize normative expectations, coordinate policy, and punish violators of global law without claming to do so in the name of the state as a whole. (Cohen, 2005, 164) What emerges, therefore, is a powerful global matrix of networked units made up of new actors in a system of perforated sovereignties. The Foucauldian analytic expands governmentality into a planetary project. 3 The regime of new sovereignties produces new forms of decentered legal cosmopolitanism. As underscored in 2, the regime of new sovereignties is, in part, formed through vertical networks of legal professionals who have the capability to enact new jurisprudence, without embedding it in local or national courts or referencing it in domestic laws (see, for example, Habermas, 2001). This amounts to an acute reinvention of legal Westphalianism; a “society of equal states” is no longer perceived as the necessary basis for law making. Replacing it is a global political constitutionalism involving various levels of communication and exchange, such as a partnership between national

The juris-cultural  79 courts and a supranational tribunal. “Global law,” “global legal resolves,” “constitutional cross-fertilization,” and “cosmopolitan justice”: these are some of the terminologies underwriting the new decentered legal sovereignties (see Slaughter, 2004, 65–103). To the network of supranational judiciaries, this amounts to a trend of developing a “global political constitution.” Jean Cohen (2005, 167–8) explains, [There is] the thesis that we have entered a postsovereign, decentered world order—namely, the claim that a cosmopolitan legal system regulating global politics actually exists and that is already constitutionalized … The global political constitution is produced not by legislation but through decentered legal self-­reflection and through a global community of courts, which ascertain legal validity and legal violations. The emphasis here is on the emergence of a global political constitution and a global legal system through polycentric, plural, autological processes that produce valid legal norms that regulate actors connected through complex networks bounded not by territory but by functions, communicative codes, and particular practices. (emphasis hers) But there are two difficulties associated with this regime. First, legal cosmopolitanism is difficult to achieve given the holding power of national constitutions that can still circumscribe law making within the confines of the state. Unlike cultural cosmopolitanism, the hybridization of law which might lead to some kind of global constitution, while not impossible, takes a much longer time to evolve (see Fischer-­ Lescano and Teubner, 2004). It is also much harder to enforce. Second, the very idea of a “global rule of law” has been endangered in recent times. After 9/11, an overzealous claim of legal transcendence under the new sovereignties regime has played into the hand of unilateralist politics disguised as cosmopolitan global law. Profoundly skeptical of the transcendent view of legal cosmopolitanism, Jean Cohen (2005, 169) warns, The risk is that of “symbolic constitutionalism”—that is, the invocation of the core values and legal discourse of the international community to dress up strategic power plays, self-­ interested regulations, and interventions in universalistic garb. The Bush administration’s justification of its invasion of Iraq as an enforcement of human rights law and Security Council resolutions, despite the failure to win Security Council authorization for this action, is a case in point. (emphasis hers)

80  The juris-cultural In other words, the global enforcement networks buttressed by some kind of nebulous “global law” may be exactly what Empire needs to assert its global authority. With these propositions, I hope to have outlined a tentative framework for grasping the regime of the new sovereignties in neoliberal economic, legal, spatial, and political terms. With this outline, let us now consider how the new sovereignties regime and the human rights regime interact. How might we think about the impact that the networked sovereignties have on the equally networked apparatus of international human rights? Moral efficiency When considering the direct and indirect forms of interface between new sovereignties regime and human rights, we are indeed posing a key question about global governance in the contemporary epoch. Many in the human rights organizations today are positing a “global civil society” as their ultimate political and humanitarian model for cosmopolitanizing international politics. However, arguably, any form of enmeshment that those organizations have with the new sovereignties of Empire might mean a tacit agreement that the two networks are co-exercising a postgovernmental kind of governance at a global scale. The result is an even denser web of networks, interconnecting global capital formation and humanitarian movements. The often celebrated notion of global governance as a regime of networked practice through which we can articulate collective interests on the global plane, establish rights and obligations, and mediate differences, may entail imagining a new theory of human rights as a component of the new sovereignties. Here, I suggest that global neoliberal governance allows not only capital assets to operate across borders but also a second of thing: What I call “rights assets” to be produced and distributed across borders. Global neoliberal governance opens economic markets as well as what can be crudely called “humanitarian markets.” A “rights asset” is something a state or a group of networked states can invest in, such as setting up interstate environmental protection agreements, cooperative HIV prevention schemes, or coordinated programs to accept and accommodate refugees. The rights asset so accumulated is thus a result of enmeshment between the dominant players of the new sovereignties and human rights bodies and other monitoring organizations, committees, or nongovernmental organizations (NGOs), even as those human rights actors work to resist the power of the new sovereignties. As such, the norm of international standing as a primary element in any form of

The juris-cultural  81 sovereignty becomes something that can be measured according to the level of rights assets held. Examples of how the new sovereignties networks increase their holding of rights assets are numerous. Turning to the global humanitarian field, networks of finance ministers and central bankers have positioned themselves as the efficient responder to global and regional economic crises. The networks of finance ministers who form the G-8, for instance, are the ones who make key decisions on debt relief for poor countries. Even the G-20, composed of finance ministers of twenty developed and developing states, can be said to be doing “humanitarian work” by setting up policies to prevent future collapse of markets. Needless to say, networks of national officials have also worked to coordinate environmental protection policies across borders. In addition, virtually every interstate trade compact today would include a provision for setting up an environmental enforcement network across trade partners, which endeavors to build the capacity of individual nation’s environmental protection agency, provide technical assistance, exchange emission figures, and sponsor training.5 On the judicial front, there have been national constitutional judges as well as parliamentarians who liase with their counterparts across borders to adopt and publicize common positions on free speech, the death penalty, religious freedom, and other rights issues (Slaughter, 2004, 290). The production of rights assets should ideally correspond with an increase in humanitarian actions and a decrease in violence. Charting the relationship between the two, especially on a global scale, will not be easy. There is no map, graph, or chart that has yet quantified rights assets and showed their global spread; rather, there are only cross-­border events and decision-making points. What we can postulate is that the networked powers of the new sovereignties present their human rights concerns as if they were properties that can be traded among partners in the network. There arises a new human rights imaginary whereby economic capital and “rights capital” form a trade nexus and that what mediates this trading are various practices of collective learning, technical knowledge transfer, and rule-making. Let us imagine this scenario: A young person is hoping to become a pianist.6 She practices her piano every day, which is really very tentative music-making. She lives in an apartment of a residential building. Because she is only playing at an entry level, her piano practice generates noise to her neighbors. In trade terms, she is causing “externality” if she is not paying some form of damage to the neighbors. Let us assume, for the moment, that a certain kind of amateur piano playing does constitute a negative social capital which we commonly call noise. Let us also assume that the noise so generated does cause

82  The juris-cultural nuisance, or a kind of “environmental pollution,” to her neighbors. In other words, for the moment, let us bracket from our discussion the creative potential and subtle aesthetic or any other socially affirmative qualities of amateurism in the artistic pursuit. The residents of this building have already formed a homeowners’ management association, which has clearly stated that excessive and perpetual noise is a nuisance and that residents have a right not to be disturbed. If the “right to peace and tranquility” has clearly been established, then the young pianist must either stop practicing or voluntarily pay “money” to the neighbors to purchase the right to generate noise. Piano practice, therefore, becomes expensive due to this purchase, the number of practice sessions will thereby likely decrease, and thus noise decreases as well until it reaches an economically efficient level. It is noted in this scenario that “money” here need not refer to the everyday currency we use; it can be in the form of service, neighborly congeniality, even manners of self-restriction. Yet if the homeowners’ association also states clearly that practicing musicians have the right to generate noise, then it means the neighbors must either move to another building to live or voluntarily pay the pianist so that she may purchase some kind of noise reduction device. In either manner, the sum effect of noise will decrease to an economically efficient level. And if there are many aspiring pianists and other noise-generating amateur musicians there are in the building, they can form a network to either pool their money to pay their neighbors or to collectively assert their right by demanding their neighbors to pay them. Of course, this same network logic can, of course, be similarly adopted by the nonmusic playing, tranquility-defending neighbors. The hypothetical scenario above presents to us an analogy to what Jeffrey Dunoff and Joel Trachtman (1999) call the “international political market.” The utilitarianism underscored in the scenario shows that networked states can trade their properties in order to maximize their development or minimize externalities. Piano playing is analogous to state interest, as typified by security interests, capital accumulation, and military interests. The externality of noise is analogous to the social, political, or moral cost brought about by capitalist advancement. The musician, acting alone or in a network, pays her neighbor to purchase the right to play: Her money is analogous to a state’s, or networked states’, asset. In international politics, human rights performance can be thought of as an important type of state asset—what I have earlier dubbed the “rights asset.” In order to establish national security, maximize capital accumulation, or advance military interests, powerful networked states must deal with externalities. The new sovereignties must, therefore, produce a vicissitude of

The juris-cultural  83 human rights assets, by improving the environment, releasing poor states’ debt, reducing the rate of capital punishment, providing humanitarian aids, and so on. What needs to be noted is that international human rights institutions may well have occupied a key role in helping to sustain the new sovereignties regime. Their role is threefold. First, international human rights agencies often provide the networked states with technical assistance and training, in order to help the latter achieve a better balance between market goals and humanitarian interests. In other words, they help the networked states to realize harmonization between capital gain and rights asset gain. Second, they are the monitoring agencies of the level of externalities, both internal to the states concerned and external in the global field. Third, much like the role played by the management association in our hypothetical scenario, the UN and other supranational human rights agencies define the normative rules and rights and then get the constituent parties to respect those rules. It is an open assumption that even though human rights abuses cannot be totally eliminated, but through interstate negotiations, they will someday be reduced to what might be deemed a “morally efficient” level. In short, a utilitarian view of international law under the rubric of an international political market will work to ensure that (1) there will not be an undersupply of “human rights goods” and (2) the distribution of those human rights goods will be “morally optimal” in the global political market. What we are witnessing is essentially a blending of the juridical model of new sovereignties with one of the most basic models in neoclassical economics underpinning the new sovereignties regime. The way that human rights are weighed into the purview of global capitalism confirms what Richard Steinberg (2004) calls the model of “behavioral sovereignty.” This model suggests first that there is a scale or gradation to the way states transact political and rights assets with one another. The decision to comply with human rights regulations, how much effort goes into the compliance, and what level of human rights “output” to produce: These are forms of state behavior that have bearing on their relative sovereign power. Yet this notion of behavioral sovereignty also suggests something else. To use our hypothetical scenario again, in the transaction between the young musician and her neighbors, it is quite possible that they are negotiating the noise level on unequal footing with respect to interapartment relations. The young pianist’s length of residence might be longer than the other residents; she may be occupying a larger apartment and thus paying a larger share of the building’s management fee; she could be successful in forming an “amateur pianist’s club” with other fellow noise-making

84  The juris-cultural young musicians living in the building; or even more powerfully, her parents may well be the elected officials running the building’s management association. Under any combination of these forms of leverage, she will be in a more powerful position to set the terms of noise control regulation favorable to her interest. Because of these factors, she may even brand other types of noise, such as dog barking from another resident’s apartment, as “true noise.” “Rogue residents,” she calls them.7 In the end, the amount of money transacted becomes a matter of behavioral leveraging according to the relative differentials in residential status and power among neighbors. Righting trade? Trading rights? There is no better paradigmatic example to illustrate the phenomenon of the economic rearticulation of human rights, than in trade laws under neoliberal globalization today. What we need to point out first is that in the literature on trade laws today, there is a lack of moral agreement over whether there is a positive correlation between free trade and improvement of human rights. But this has not halted the suffusion of both the North and the South with a generalized logic of market rationality over all matters that tie the North and the South together. In other words, the lack of moral convergence over the good or bad value of free trade, nonetheless, leaves open the door for a structural convergence in the form of a global governmentality that tends to recompute all values in terms of market rationality, choice, tradeoffs, and so on. In global trade laws, neoliberalism routinely trumps unadulterated humanitarianism, even as the former includes the latter into its fold. Human rights analysts commonly conceive of the entanglement between global trade and human rights through the figure of a troubled “interface,” implying separation and conflict. Frank Garcia (1999, 53), for instance, argues that [t]he regulatory framework which international economic law provides for globalization operates according to a view of human nature, human values and moral decision-making fundamentally at odds with the view of human nature, human values and moral decision-making which underlies international human rights law. This view about the normative conflict between two regimes of international law, however, easily obscures the symbolic merger of the two at a more fundamental level. Insofar as real disputes do occur between trade laws and human rights laws, it is vital for our analysis of those disputes to not falsely treat the two planes of law as if they

The juris-cultural  85 were of equal preeminence. Both the broad regulations over development issues in the Global South, as well as economic growth issues in the North, fall under the jurisdiction of global institutions such as the WTO and the World Bank and not international human rights or labor organizations. The fact is that with trade being advanced as the neoliberal raison d’etre of global stability and growth, the moral imperative of human rights has been recalibrated vis-à-vis trade. As Wendy Brown (2005, 39–40) reminds us, Neo-liberal rationality, while foregrounding the market, is not only or even primarily focused on the economy; it involves extending and disseminating market values to all institutions and social action, even as the market itself remains a distinctive player … The political sphere, along with every other dimension of contemporary existence, is submitted to an economic rationality, or put the other way around, not only is the human being configured exhaustively as homo economicus, but all dimensions of human life are cast in terms of a market rationality. (emphasis hers) Brown adds that there is more than a classical Marxian analytic here, where capital is said to penetrate and reorganize every aspect of life in its image and then subject all values and activities to its cold calculation. In addition to that, the reality is that, however, much neoliberal rationality produces all sorts of social and economic stratifications, the general cloak of liberal democratic rights still exist to challenge the social harm brought about by neoliberal capitalism. The difference is that liberal rights-based values are now made Janus-faced visà-vis neoliberal capitalism. Human rights appear to consent to and oppose neoliberal trade values simultaneously. It is more and more difficult to distinguish an order of rights that is linked to economic well-being (imagined along a utilitarian line of thinking) from an order of rights that is articulated to noneconomic, deontological values (see Garcia, 1999). The crucial question, it seems, is to understand the nature of this indistinction, and how it is operationalized in the neoliberal order today. Frank Garcia (1999, 64–65) suggests that the global neoliberal imperative today reconstitutes trade laws with a particular vision of justice linked to a certain view of human nature and privileging a particular approach to moral reasoning: [T]rade law is exclusively concerned with the twin values of economic efficiency and welfare. The goal of trade law is to improve the economic well-being of human beings through the facilitation of efficient exchanges. This approach has several important

86  The juris-cultural implications for the viability of human rights law within a tradebased regulatory regime. First, there is a marked tendency for other values besides efficiency and welfare to be viewed as outside the scope of trade law, and even inimical to its purposes … Second, economic analysis and methodology will exert a dominant, if not overweening, influence on trade and non-trade policy formed or implemented within trade institutions operating on an Efficiency Model. Taking Garcia’s first point, we are left with the impression that human rights law is external to the scope of trade law. Yet taking his second point, we are reminded of the existence of a presumptive order exerted by the logic of economic computation that extends from the empire of trade into the nontrade legal and social spaces. Garcia’s split vision illustrates an important point: In considering “the viability of human rights law within a trade-based regulatory regime,” the insolent logic, concepts, reasoning, and models of trade may externalize human rights institutionally and operationally, it enfolds human rights by redefining them epistemologically. Within the ambit of trade laws, the epistemological redefinition of human rights is demonstrated in international economic laws as they are revised by the WTO. Through a series of enhanced operations, the WTO has installed a regime that is capable of defining the condition of possibility for articulating rights-related concerns in global trade. For instance, important aspects of the global economy are increasingly regulated through treaty-based rules that subject human rights to the service of neoliberal trade. Treaty rules spell out when and how human rights interests are permitted to be raised in the event of trade disputes and when and how they are, by doctrine, rejected from view. Trade rules also define the very terms under which human rights are conceived. Arguably, trade has become the epistemological source for rights. Andrew Lang (2007, 393) offers an insightful analysis of the concrete reality in a trade negotiation of human rights: [In international fora,] it is common to talk as if human rights are in some sense the source of … ultimate policy prescriptions … that human rights rules provide the criteria by which to arbitrate between alternative policy proposals. In fact, it takes only a moment’s thought to realize that precisely the opposite is occurring: human rights commentators are drawing on work produced by trade policy experts in the context of contemporary trade policy debates as a source of policy ideas and arguments … When it comes to the analysis and evaluation of concrete policy proposals

The juris-cultural  87 … the discussion invariably tends to reproduce and rehearse precisely the same kinds of arguments which characterize trade policy discussions in other arenas and which are perfectly familiar to trade policy experts. At this point, the human rights language recedes into the background, and we are presented with a series of argumentative steps, sets of data, and ultimately policy prescriptions, which almost exactly reproduce those emanating from more traditional trade policy circles. In other words, human rights actors lobby for the inclusion of rightsbased provisions in trade rules by deploying the type of professional expertise that is not only recognizable and familiar to, but also discursively mandated by, trade doctrines and the neoliberal ideology underwriting those doctrines (see also Aaronson and Zimmerman, 2006; Dommen, 2002; Dunoff, 2001). The point is that the argumentative gymnastics undertaken in formulating treaty-based rules is not sourced by human rights norms. Ironically, neoliberal debates about the benefits and potential harm of global trade do not need human rights actors to state the importance of the protection of rights. Neoliberal trade is more than capable of generating its own concern for human rights. But the human rights concerns so generated do not emanate from human rights law or ideology. For instance, trade rules do recognize the need for private providers of essential services, such as food and health care, to be subjected to strict regulatory oversight. But the technical calculation for that regulatory oversight is a built-in feature of trade and not a specialized feature of human rights norm. Moreover, when there is recognition that domestic agricultural subsidies ought to be reduced so as not to disadvantage smaller nations in agricultural trade, the foundation of that recognition is derived from the econometric models inherent within the trade logic, and has little to do with the justice-based human rights logic. Similarly, in Trade Related Aspects of Intellectual Property Rights (TRIPS) agreements, the establishment of what is called “flexibility rules” that allow developing countries to bypass patent laws in times of public emergency (such as the case of Thailand or Brazil to develop generic HIV drugs), resulted from the technical calculation of permissible profit thresholds more than from altruistic humanitarian motives (see Ho, 2007; Joseph, 2003). As a result, human rights norms have a radically minor role to play in the formulation of trade laws. Instead, replacing human rights norms and obligations are broad and nondescript “human rights issues” erected, ironically, through a disconnection from human rights ethos.

88  The juris-cultural Conclusion An analysis of the structure of the global instrumentalization of human rights suggests that international law designed to constrain state conduct appears publicly to champion a moral-juridical ethos, but in reality, it has inadvertently instituted a fundamental reconfiguration of human rights as network effects of market forces. Human rights, therefore, incorporate at their heart a secret relation to capital which they claim to oppose. Former WTO Director-General Mike Moore (2003, 249–50) asserts that democratic global trade will lead to “longer and more sustained peace, longer and more sustained economic growth, and a fairer and better society.” As a result, [t]here is no outside to this harmonious whole, no need or desire that can or should disrupt the workings of the WTO as a “linkage machine.” Human rights can be conceived as just one more link in a chain made larger to accommodate this set of interests. (Orford, 2006, 158) Similar to Foucault’s assertion of how the biopolitical project of the modern state places life at the center of the state’s administrative calculations, the networked and disaggregated states of today seem to institute a tie uniting capital and rights. We must interrogate the new mode of articulation of human rights as a possible telos of capital. Moreover, we must also ask a more fundamental question: What is the conceptual structure of the new sovereignties, in which human rights present themselves as simultaneously included in and excluded from networked capitalism? Is it not by chance, then, that the notions of security, freedom from arbitrary arrest or detention, due process, freedom of movement, self-­determination, and so on are pledged by means of a possible disavowal, guaranteed via a foreseeable derogation, included through a potential exclusion?8 If it is true that human rights dwell in a structure of speculative, behavioral governmentality, then justice must be rethought. To gesture toward Agamben here, justice has a new curious epistemological location: It is something that dwells within the sphere of the new sovereignties as a potential exception. Justice, as the public objective of human rights, settles inside the space of the new sovereignties as an outsider. From this perspective, the structure of neoliberal biopolitics is necessarily a violent structure, because it manages to put human rights into play in the very predicament that marks the subjection of human rights (see, e.g. Puar, 2017). Behind the new sovereignties that lead to more and more allegedly rights-based policies, programs, and initiatives stands a new image of humanity that possesses a strange double

The juris-cultural  89 quality: A humanity whose lingering sense of dignity and justice (however defined) must always be enshrined, yet may, nevertheless, be sacrificed. To become conscious of this strange doubleness of humanity is not to belittle the aspirations and accomplishments of the human rights movement. It is, rather, to try to understand why the global human rights movement, at the very moment in which its moral and juridical authority around the world is being mainstreamed, cannot seem to save humanity from unprecedented ruin. To speak about this predicament with another register, it seems to me that one of the fundamental questions today is that if the international counter-sovereignty activist movement is indeed rising (e.g. WTO protests and the World Social Forums), and international law can indeed be more eagerly enforced than ever before (e.g. establishment of the International Criminal Court), how will human rights abusing states and nonstate actors alike calculate the market transaction cost needed to protect their interests in the face of resistance? When the transaction cost, that is, the international market price for morality and peace, is higher than the cost of violence, is it any wonder that so many states choose violence? And is it any wonder that this calculation of rights versus capital is so often enacted in, and targeting, what are called second-generation rights, which are precisely social, economic, and cultural rights (the weakest point in the human rights structure)? In this picture, human rights are indeed at a crossroad. They are indeed a mixed blessing. On one hand, there are a lot of them. On the other hand, there are a lot of them.

Case 2: Citizenship management: on the politics of being “included-out” The focus of this case study lies in the notion of citizenship management, or more broadly migration or movement management in general. Critics and theorists of migration studies of floating subjects, from the social sciences, through the law disciplines, to cultural studies, do not always mean the same thing or draw the same inference from statements about the precarious situations of citizenship when they make them. What is more, the idea that citizenship might be described as an unsettling political experience of being “included-out,” is not one which has penetrated into our common sense understanding of citizenship in our everyday life today. After all, many of us are still deeply attached to the liberal democratic ideals of citizenship rights.

90  The juris-cultural First off, by “citizenship management,” I am referring to two particular regimes of governance. The first regime concerns the managing of the degree of elasticity of the border in the regulation of the flow of people and goods. In the world today, borders are indeed elasticized all the time, as the regulation of the in- and outflow of people and things are administered through the mediation of historical relations (e.g. from colonial to neoliberal economic arrangements); cultural and political negotiations (e.g. sovereignty mapping and remapping across time and space); and, of course, the application of legal codes and doctrines governing multiple forms of migrant movements. Needless to say, proponents of globalization continue to emphasize the unfixity of borders, seeing that the various terms of political, economic, cultural, historical, and legal negotiations between nations have become more and more frequent. The second regime of citizenship management, derived from the first, concerns the managing of other people’s desire for settlement. Plainly, every citizenship or border management apparatus begins with the imagination of an other, whose desires are the very target of regulation. And just as there are many different forms through which the desire for settlement takes, there are equally multiple sub- or para-systems of citizenship management augmented by various branches of immigration laws (e.g. refugee laws, visas regulations, and marriage laws). These two aspects of citizenship management, it seems, hinge on the core questions about inclusion and exclusion. The subject of this chapter is to consider how those twin questions can be imagined in a new way. Problematizing citizenship by nativity and/or cosmopolitanism So, what do I mean by the politics of being “included-out”? Citizenship is one of those major concepts that operate in our society through producing, categorizing, and prioritizing differences, identities, and varying structures of belonging. To say that it is a perpetually unsettling machinery of the state, which brings into being a constant state of precarity for both citizens (i.e. those who are “included” into the body of the nation-state) and denizens alike (ranging from the resident aliens, the temporary migrants, the asylum seekers, to the wholly undocumented other), is to recognize that all attempts to stabilize this concept of citizenship in terms of birth rights, on the grounds of human rights, or by way of humanitarian impulse have largely been shown to be inadequate, if not flawed. One of the suggestions I make in this case study is that we should replace the conceptions of nativity and cosmopolitanism—the twin weapons often

The juris-cultural  91 used in the fight for citizenship rights—by a more technique- and practice-based analysis of citizenship management. As critical legal scholar Thanos Zartaloudis (2013) has said, “[A]n adequate understanding of the fluid practices of inclusion and exclusion in a postsovereign world can only be reached by an approach that keeps in mind the whole array of governmental techniques of controlling people on the move” (661). Frankly, the locution “inclusion-out” is not novel at all. All I am trying to do here is to follow the theoretical instincts of many critical thoughts, most closely, of course, those of Derrida, Bauman, Bahktin, Badiou, Foucault, and Agamben. For some time now, the indistinction of in and out has been understood as banal enough to render my position quite straightforward: That is, if we look at the various functional techniques of citizenship management such as the control of borders, of the right of abode, of ID cards, and so on and examine the social and economic effects of those techniques on the vast number of the newly arrived, then we are actually detecting a situation of what can be called general “inclusion-outness.” This is not to say that inclusion is purely imagined or fake for the incorporated persons who have successfully claimed or counterclaimed their citizenship papers from the perspective of the law. It is to say, rather, that for some time now, citizenship management has been practiced through the state of general inclusion-outness, and this changes everything that used to be called politics (as well as anything we may understand as looking at citizenship rights through/ and politics and vice versa). This transformation, well-evident today, can be described as a move away from the multiverse of restricted citizenship and border control to a general social economy about the instability of “belonging” as such, as a structure of felt, lived, and often feared reality. I simply want to suggest that the model being proposed here is close to a description of how ideas move in speech through formulated disruptions. Like in a (stammered) flow of sentences, citizenship or movement management works through the use of various punctuation marks in order to denote the borders between ideas in the speech. Punctuation marks permit a formulated commotion of ideas, whose sense and meaning are made possible through a regime that is endeavored to produce and link meaning-clusters, paradoxically, through punctuational devices. In other words, what the syntactical regime does is to allow linkage and delinking, conjoinment and separation, to coexist in the very constitution of belonging-meaning. I found this metaphor from the work of a couple of American anthropologists Alan Smart and Josephine Smart, who had spent time in Hong Kong

92  The juris-cultural and observed our city’s border regime and limits of mobility. Smart and Smart (2008) put their concept of border control in this way: Punctuation conventionally identifies arbitrary symbols that break up the flow of speech. Here we extend this idea to other arenas. The world is punctuated by barriers, the most important of which are national borders. For some people and things, borders act as periods, full stops denying legal entry. For others, they are like semi-colons, requiring visas and work permits. For the global elite, by reason of their citizenship status or their assets, borders are like commas, slightly slowing movement at various checkpoints, particularly if they have access to VIP lanes and private jet facilities at ports of entry. The metaphor can be extended. In these post-9/11 days, certain people move around the world with the equivalent of asterisks attached to them, having been placed on “no-fly” or other watch lists. Others, such as guest workers, move with parentheses, allowing their presence only under certain conditions, such as continual employment with an approved employer. (175–6) Some readers may now be imagining what punctuation marks are hanging over their heads, given that self-recognized full and legal citizens, people on visas and work permits, guest workers, global elites, and even people on governments’ watch lists may be among us! I assure you that your basic rights of existence are in full working order: Some of us are indeed inside and included in a border marked out by the state, some of us are quite clear about our temporary existence of surviving a border regime that never fails to remind us of our temporary status with expiration dates, while some of us reading this may be disgustingly outside and excluded in the light of immigration and citizenship laws. There is nothing wrong with your recognition of how your identity is currently being managed by the state’s citizenship regime, but I want to insist to you that nevertheless, the argument that I want to make to you is that citizenship works like mundane and familiar markers in the flow of mobility, semi-mobility, and immobility, all encapsulated within, and supported by, the logic and politics of being included-out. Our structure of belonging, therefore, gains its meaning not because of absolute and stable dichotomies of in and out, as if the possessors of citizenship are in a permanent state of bliss, those in limbo will always be defined that way, and those denied entry are forever seen as unwelcomed and kept out. Instead, as a general discursive state, our structure of belonging is in the shifting relations of difference, which are tested, refined, and incarnated by techniques of control in the field of citizenship management.

The juris-cultural  93 Nevertheless, there does exist a gray line of capture that is drawn between citizens and noncitizens, so that surviving your sense of home and belonging increasingly becomes the condition for both the included and excluded, in what Zartaloudis (2013) calls “a generalized perilous inclusion that excludes and vice versa within the biopolitical continuum of a global civil war” (662). I am not sure what he means by a global civil war, but given his many years of writing and advocacy work on behalf of refugees and asylum seekers, I can discern that there is, in fact, a global war going on over nationality and the right of migration. This may well be the defining political and legal-­ administrative characteristics of liquid modernity (Bauman, 2000). Moving the punctuation marks: citizenship and (un)belonging Since our concern here is not merely with abstract theoretical critique but with an attempt to unlock the real secrets of the techniques in the modern citizenship regime, let me turn to the question of how indeed one sees this functioning around two realist positions, which argue that either citizenship is a matter of governmental decision according to the rule of law or it is a matter of the power politics of governance with or without democracy. The former position, derived from administrative and legal theories, has been copiously written about, explained, and adjudicated in the vast terrain of constitutional law and human rights law. The latter one extends from T. H. Marshall’s (1950) classic formulation of democratic citizenship (and hence his liberal idealism) to lodge a critique of state governance through a triangulation of state colonial power with that of the market, resulting in the enforcement of an often restrictive and antihumanitarian control of citizenship. I consider these as realist positions, merely as a marker against the more discursive position that I want to advance around the notion of understanding citizenship as the articulation of the politics of being included-out, in law as much as in state politics and market forces. Let me now illustrate those analytical strands by the example of Hong Kong and its own regime of citizenship management. The “right of abode” cases: Hong Kong’s constitutional crisis By all accounts, historians of Hong Kong, especially those who blend with a journalism and legal background, have observed that throughout the territory’s colonial history and into the tumultuous years of transition into a semi-sovereign city-state, nothing trembles its constitutional foundation more than the issue of citizenship

94  The juris-cultural management. When all the other differences have been raised and exhaustively critiqued, there seems to be a sort of irreducible, ineradicable minimum there, the differences, which are most palpable at our borders to Mainland China and other borders with neighboring Asian countries enacted for economic and labor transactions, which we call the “right of abode.” It is no exaggeration to say that this question of the right of abode has single-handedly made us realize that in Hong Kong, there has been a fundamental shift underway in the concept and practice of governance by law. One local democrat likened this situation of handling the deep ambiguities embedded in the administrative dictum of “One Country, Two Systems” to a perpetual standoff where one side has seized the high ground, cocked their rifle, but not yet fired the shot (cited in Davis, 1999).9 Barely two years into the transition of colonial Hong Kong into HKSAR, a considerable number of persons and families straddling across the Hong Kong–China border, whose right of abode in Hong Kong had been formerly denied, had returned to ask the Hong Kong courts to adjudicate their residence rights. The history of why these persons and families were relegated to split existence in precarity across the border dates back to the 1960s and requires a political, and not merely legal-administrative, analysis. I shall return to this later. For now, I will put Hong Kong’s right of abode crisis in this way: At the core of the intense political battle is not just the question of the right of abode as something to be handled through domestic legal measures (which is merely an administrative crisis), but it is also a problem of the right to “the right to handle it” (which is a much more complex constitutional and cultural crisis). To understand this terrain (and the realist analytical position being advanced from it), let me first lay out a few crucial discursive notes: 1 Legally speaking, a “permanent resident” as a recognized subject is materialized through Hong Kong’s Basic Law (effective on July 1, 1997), especially its Article 24 (hereafter “BL24”), which defines permanent residency according to two main criteria: nativity (before or after July 1, 1997) and fulfillment of legal and continuous residency requirements (of seven years).10 2 Also legally speaking, someone’s right of abode is co-regulated by the Immigration Ordinance (cap 115; hereafter “IO”). But the comanagement by BL24 and IO is not without discursive conflict. Changes were made to the IO within the first two weeks of the transition in 1997, which stipulated new requirements for those seeking the right of abode. The amendments stated that (1) only children whose parents had the right of abode at the child’s birth

The juris-cultural  95 were eligible for their right of abode and (2) those children in (1) were required to obtain a “Certificate of Entitlement” and a oneway permit (providing exit approval) issued from the Mainland Chinese authorities. Those amendments are not in harmony with BL24. As a result, the subject seeking the right of abode is discursively split. 3 Such a split of the subject seeking right of abode has spawned a discursive instability, as evident in legal challenges lodged in the courts. The constitutionality of the newly enacted immigration ordinances was challenged in two major cases in 1999: Ng Ka Ling v. Director of Immigration and Chan Kam Nga v. Director of Immigration. Specifically, those applicants argued that the two ordinances unconstitutionally restricted their right as Mainland-born children of Hong Kong permanent residents to emigrate under BL24. Exercising its power of judicial review under the Basic Law—and in some way, testing the tolerance of the Mainland authorities—Hong Kong’s CFA held in the applicants’ favor in January 1999. 4 Seeking to stabilize this shaky ground, the HKSAR government, taken by utter surprise by the CFA rulings, enlisted imperial power. More concretely, it made a request to the Standing Committee of the National Peoples’ Congress in Beijing (hereafter “NPCSC”) to reinterpret the Basic Law. (This is pursuant to Article 158 of the Basic Law (BL158), which stipulates the requirement of seeking NPCSC interpretation on matters concerning the responsibility of the Central government, or concerning the relationship between the Central Authorities and the Region.)11 In its interpretation, the NPCSC essentially restricted the right of abode not only to the nativity and/or residency requirement of the applicants themselves but also that of their parents (see “Standing Committee,” 1999). Therefore, in judicial discursive terms, the domestic doctrine of jus soli (or the “right of the soil,” meaning the right of citizenship by birth in the territory) was forced to incorporate an imperial (national) demand of a doctrine of jus sanguinis (or “the right of blood”). 5 Domestic self-rule falters under the dominion of imperial power. Because of the NPCSC reinterpretation, the CFA formally overturned its own Ng Ka Ling ruling, holding that the provisions declared unconstitutional in that judgment were, in fact, constitutional. Furthermore, the CFA turned around to support the argument that the NPCSC indeed had power to interpret the B ­ asic Law and noted that such interpretations were binding on the courts of Hong Kong.

96  The juris-cultural 6 But as with any struggle for self-rule, the local courts gasped for any seizure of opportunity to exercise its autonomy. In 2001, the CFA yet again reversed its stance in subsequent cases, when more applicants came forth to challenge the constitutionality of the “Beijing hand.” Most prominent of the cases was the ruling in Director of Immigration v. Chong Fung Yuen, which received wide media coverage as a case that adhered to BL24(2)(1) without the need to invite NPCSC interference. The CFA also stressed that there was no indication its decision would result in an immediate influx of a large number of people from the Mainland, which stood in stark contrast to the government’s “mass inflow” predictions made in the Ng Ka Ling case. 7 To complicate this further, side by side to the Chong Fung Yuen ruling, the CFA denied another claim of the right of abode on the ground of residency requirements. In Fateh Muhammad v. Commissioner of Registration, the applicant was a Pakistani national who had resided in Hong Kong since the 1960s and argued that he had the right of abode under BL24(4). But Mr. Muhammad had been in prison for three years at the time of his application for judicial review. Seeing this, the CFA held that the term “ordinarily resident” from the IO could not be stretched to include time spent in prison. The CFA also held that the seven continuous years must come immediately before the time when an application for permanent residence was made. In this sense, the CFA bypassed BL24(4) to align with the IO, the disharmony of the two has been the core conflict from the beginning. 8 The terrain of struggle for the right of abode was expanding, amounting to a kind of humanitarian crisis for the small city. Throughout the period of the right of abode crisis, thousands of litigants, many of whom were overstayers with temporary permits, held wide protests and hunger strikes. Between 1999 and 2002, hundreds of lawyers joined the claimants in silent marches, while legislators and activists held candlelight vigils and student leaders organized protests and campaigns. Some pro-rights groups took the situation to the Human Rights Commission of the United Nations (see Ku, 2001). Despite these efforts, in the end, the majority of claimants were deported. 9 In 2012, the Chong Fung Yuen case returned to the media limelight, at the time when the social debate intensified about the control of the influx of pregnant women from the Mainland into Hong Kong’s hospitals to deliver their children. New legislative proposals were made to revisit the right of abode privileges of Hong Kong-born children of nonresident Mainland parents, and

The juris-cultural  97 those proposals included a suggestion to once again seek NPCSC interpretation (see Ip, 2012; see also Chan, 2012). Without a doubt, Hong Kong’s right of abode crisis doubles as its crisis of autonomy. The discursive notes above, in this light, present not only judicial and other facts but also an analytical landscape within which the politics of being included-out is played out. And to be sure, the laws that spawned widespread insecurity for those seeking the right of abode and family reunion became the very same laws that destabilized the political border originally set up to ensure Hong Kong’s autonomy. This has been the widespread conclusion made about the right of abode saga, as echoed by legal scholar Anne Fokstuen (2003): “After the ‘right of abode’ controversy, it was clear that China would get involved when it felt its authority was being threatened, but that it would maintain a more hands-off approach in other areas” (272). It is in this crucial sense that we recognize that a critique of the administrative and legal restriction of autonomy to understand the border regime of Hong Kong is inadequate. The literature on the traumatic constitutional crisis of Hong Kong has been dominated by a consensus that the trauma produces only a trapdoor, locking Hong Kong’s present and future in a terrifying suffusion of rights into heavy-handed, top-down subjection. But I suggest that what the right of abode controversy demonstrates is far more complex. In the strict sense, what is curbed is not a simple restriction as such, not a wholesale denial of the rights of abode for the persons and families involved or of the right of judicial autonomy for the Hong Kong courts. The political genre with which to explain this, I suggest, is the genre of expressing the political conditions of being included-out. As a political concept, inclusion-outness is not something that severs but something that bridges: a sense of inclusion that is in very close proximity to the sense of exclusion, perhaps a sense of the double take in relation to what happens in experiencing, or sensing, our citizenship or right of autonomy. Implied in Fokstuen’s comment is an understanding of the incipient state of being included-out, of a city-state whose very own constitution grants its own autonomy through an exceptionalist logic. And this changes everything about the way we come to grips with the legal hegemony that writes the rights—of both those seeking the right of abode and those domestic legal institutions seeking independent judiciary powers—in close proximity with a write-off. Living in such a border regime, mobility is interrupted, bodies are confused, and identities drift. This is why inclusion-outness resembles a trauma, in the specific sense that around it there is always a

98  The juris-cultural surplus of signification. But crucially, this makes citizenship possible, not impossible, but not in the sense that the subject still has a conventional relation with the state and the hegemon as either inclusion or exclusion, optimism or dejection, from which to derive a foundation of self-possessed identity of citizenship. Instead, citizenship is made possible in the sense that as the state of being included-out shatters the polis (one’s political life) that was a foundation for what gets taken for granted about its historical self-continuity, it transforms the work of surviving citizenship. Survival is at the heart of the machine producing infinite states of being included-out. But I want to be clear about what kind of survival that inclusion-outness engenders. At one level, we may understand survival in such a confusing citizenship management regime of ins and outs as a political subtraction, leading only to mere survival. The precarity that the citizenship laws subject to those seeking belonging and family reunion, as well as the precarity that that same legal machinery subjects the city that seeks autonomy, may well provide plenty of scenarios of reduction of political power into the infinite production of mere survival. In this regard, Thanos Zartaloudis (2013) provides a convincing description: When only survival remains at stake, post-sovereign biopolitics no longer attempts to manage life in order to better it or simply to exclude its more undesirable parts, but aims to reduce both the included and the excluded to their respective degrees of a bare minimum. Survival as the lowest common denominator, before long—if it had not done so already—will unite, under conditioned degrees of minimum states of being, the majority of the included with the excluded. (662–3) As convincing as this specter of “bare life” may be, by echoing Agamben, surviving citizenship, nonetheless, remains an intricate work. Enclosures, temporary statuses, unreliable hopes, interim disillusionments, and threats of deportation may be instants of “reduction,” but they may also allow us to mark the forces of inclusion and exclusion and to track the transitory dynamics of blockage and relief involved in its circulation. Can there be a new habitation of subjectivity pressed-up by proximate lines of opposite forces? This is an important theoretical question that any consideration of the state of inclusion-outness must seriously consider. Like many other critics, I insist that the law is contingent. It remains a form of power where subjection pulsates, modulates, and fluctuates, rather than a totalizing force.

The juris-cultural  99 Whose home?: The crisis of belonging in Hong Kong What we have discussed so far centers on the legal terrain of citizenship rights. I have wanted to indicate that the legal regime of citizenship rights in Hong Kong is better understood as the law’s capacity to produce a “double take” that makes citizenship possible, to insinuate exclusion in the promise of inclusion, or to allow for inclusion in the threat of exclusion. The CFA’s vacillating rulings between the Ng Ka Ling and Chong Fung Yuen cases show us how that biopolitical continuum works itself out. But this legal machinery of governmentality cannot provide us with the full explanation of the precarity of citizenship survival in Hong Kong. There is in addition a social and historical explanation of how the evolving citizenship management regime in Hong Kong governs the borders that regulate the inflows and outflows of persons and families. This regime, which dates back to colonial times and extending into the posttransition period, nevertheless, depends on a material conjuncture of housing and social welfare policies. In performing this conjunctural analysis, as many others have done, we enact the second realist position. I want to proceed by highlighting the essential dimensions of this conjuncture, in order to suggest that most of the existing political and historical analysis of the conjuncture pays insufficient attention to the “included-out” and its discursive range. The first essential historical feature of Hong Kong’s citizenship regime has to be the virtual production of “scarcity,” which has been used for many years to justify the management of population flow, home construction, land use, and utilization of public resources. Scarcity, a construction commonly used by many governments across Asia, Europe, and Latin America, carried a functional weight in the case of Hong Kong’s early colonial history. Between 1945 and 1956, the population of the colony increased fourfold, many of them new arrivals from Mainland China. Among them, 70 percent were identified as refugees (Leung, 2004, 101). The quota system implemented by the colonial government to regulate population flow was quite leniently implemented, leaving a legacy of a laissez faire immigration policy. But by 1956, the early form of a discourse of scarcity began to take shape, when the government wrote in its annual report with an opening chapter titled “A Problem of People.” Commenting on it, Chi-kwan Mark (2007) writes, Simply put, the problem was about the consequences of excess population on finance, housing, education, medical services, social welfare, industry, commerce and even political relations and the law … In essence, the “problem of people” did not emerge out of the blue in 1956, for the chapter (which was reprinted several

100  The juris-cultural times as a separate pamphlet) was actually a review of the refugee problem in the past ten years. (1146) An accumulated weight of unregulated population growth prompted the colonial government to realize the permanent nature of the problem and to search for a lasting solution. Official public discourse began to substitute the term “illegal immigrants” for “refugees”; they were then deemed illegal because they were crossing the border into Hong Kong as mainly economic, and not political, refugees and thus should not be allowed to stay (Mark, 1148). By May 1962, the government implemented a policy of “turning back” all illegal immigrants from China, a stark contrast to the two decades earlier of open door policy. We may describe that period as a nascent stage of immigration control, with a fairly clear-eyed vision to keep out excess population. But what happened to those who were allowed to stay, despite an administrative policy framed by the rhetoric of scarcity? In many ways, the great fire in 1953 at the Shek Kip Mei squatter village, and the subsequent building of massive resettlement housing for thousands of homeless people, had raised new concerns about the immigrant residents. They were again seen as problems for the government. Poverty, public health threats (such as tuberculosis), and overcrowdedness had given the colonial government second thoughts about letting them stay in the territory. As a result, as Leung Hon-chu (2004) puts it, “the disenfranchised majority of residents in Hong Kong were little more than colonial subjects allowed the ‘privilege’ of living in a ‘foreign’ territory” (102). Because “The Problem of People” in the mid-1950s had extended from the trouble of population excess into one of population resettlement in the 1960s, the discourse of scarcity also changed from one that aimed at coping with the unwanted others from without to one that had to actively manufacture the marginalized from within. This leads to the second major historical features of Hong Kong’s citizenship regime. After the social unrest and rioting in the mid-1960s, a new discourse of sheltering and of a sense of home was advanced by the colonial government as part of its effort to update its colonial policy. Because its old colonial institutions were largely premised upon sojourner communities with only transient interests in the territory, they failed to allow the citizens to imagine that they could claim their place in the territory. Sheltering and homeliness—especially in the forms of building a legitimate European-style legal culture and of enlarging the role of the government as a provider of welfare and public services—were deemed necessary to meet the needs of the coming

The juris-cultural  101 generation of young people born in Hong Kong at that time. By the 1970s, public housing schemes, public health services, labor laws, access to free education for nine years, and assistance programs to the poor had been implemented. Most historians of Hong Kong mark this as the period of “benevolent” governance in the colony (see, for example, Munn, 2001). The third core feature of the citizenship regime in Hong Kong arises as a result of benevolent governance. With it came what Ku and Pun (2004) have aptly termed the re-creation of the citizen-subject as the “enterprising individual.” The compassionate form of governance, Ku and Pun suggest, corresponded with the production of a docile but hardworking enterprising population. When the residents were provided shelter and various public welfare services, they were gradually transformed into a new class of citizens. Yet Ku and Pun argue that far from having the kind of dream that T. H. Marshall championed as civic and political citizenship, benevolent governance brought about a systematic depoliticization of everyday life within the colony. By the “enterprising individual,” they refer to … someone who is always on the lookout for resources and new opportunities to enhance their income, power, life chances and quality of life in order to take advantage of the rapid changes of economy and society. It is a conception of an ideal citizen-subject emphasizing self-enterprise and self-help … [He or she] embodies certain personal qualities such as “intelligence, determination and adaptability,” which can motivate and enable him or her to strive after continual “self-improvement,” and to “rise to the occasion” even in times of adversity. In a nutshell, the hegemonic state project … requires a specific ethic of self and citizenry—an apolitical and yet productive economic subject—to live up to the project. Yet, the question is, where does this project lead us with respect to the issue of citizenship? (Ku and Pun, 2004, 1–2; emphasis added) As someone hailed from the generation of rapid economic growth in the shadow of a fading Cold War environment in Hong Kong, and someone brought up in a middle-class immigrant family, I find it hard to refuse this narrative of the citizen-subject. Most authoritative historical accounts of Hong Kong have talked about the apolitical nature of the common populace, but I find the description above most convincing. But while these dominant accounts regarding the apolitical nature of the citizens may have oversimplified the situation, Ku and Pun, in turn, emphasize that this apolitical condition was, in fact, buttressed by a highly productive self-reproduction as the economic

102  The juris-cultural citizen-subjects. In addition, Ku and Pun add that benevolent governance managed to suture this capitalist subject with the popular idealization of Hong Kong as a home, one that was ostensibly inclusive of anyone who was able to shed poverty and dependency on public resources to climb the economic ladder, as it were, to metamorphosize themselves into new economic citizen-subjects. By the early 1980s, catch phrases such as “Hong Kong is My Home” (香港是我家) had been popularized by the government—for many settlers who had experienced hardship before, the construction of Hong Kong as their “home” offered an ideological cradle or base for social and economic advancement. Echoing Ku and Pun, Leung Hon-chu (2004) emphasizes that [t]he choice of the word “home” represents a very strategic use of language, as it avoids the thorny issues of the colonial status of Hong Kong and the exclusion of the majority from channels of political participation, while promoting a sense of belonging to the territory. A depoliticized and private form of citizenship based on rights derived from residence in Hong Kong arrived. (103) To me, the insight of the enterprising citizen-subject cradled by the idealization of homeliness is critical. It is a notion that shows us how the logic of being included-out was vividly at work. Put simply, with this hegemonic social consensus in place, Hong Kong had become a “gated” city. Gone was the era of a lenient immigration policy: By 1980, the government had abandoned the so-called touch base ­policy12 and began to implement a rigorous deportation program of all illegal immigrants caught at the border. However, the exclusionism at work did not only take place at the border; it worked more subtly through a combination of immigration and housing policies that practiced the exclusionism from within the social body itself. For instance, the immigration policy was designed to block migration of whole families from Mainland China into Hong Kong; Mainland wives and children of men settled in Hong Kong could not join him because of the quota system. At the same time, these men, now categorized by the immigration department as “single,” were not eligible to apply for low-income housing (the public housing policy systematically disadvantaged single individuals). When families were eventually reunited in Hong Kong, they still had to wait in line for public housing because of residency requirements (the seven-year continuous residency eligibility requirement). In this formation of a gated city, those who were “inside” Hong Kong—the “single” men, split families, and newly arrived/reunited families—suffered from various

The juris-cultural  103 forms of exclusionism. As Hong Kong became more and more affluent in the 1980s and 1990s, the notion of the enterprising individual chasing after their economic dreams gradually turned into a nightmare of class and economic disparity. The “included-outs”—as real people and as a historical discursive category of subjectivity—quite literally emerged in the ideological system of Hong Kong’s citizenship management approach. But what of those Hong Kong residents who partook of the city’s economic success? What is the relationship of this vast middle class who reaped the benefits of an increasingly neoliberalized ideological economy and those captured as the “included-outs”? The last essential feature of the colonial citizenship regime in this gated city concerns the rise of a distinctively gendered and racialized migrant labor economy. Consistent with the enduring discourse of the “enterprising individuals,” the middle class showed increasing agitation toward those who were dependent on public assistance, those who did not make it to the professional class, those who failed to display the right kind of work ethos to overcome all obstacles. By the 2000s, two classes of the included-outs, so to speak, had clearly emerged in the press and in the agitated discourse of the middle class. There were the “new immigrants” (“新移民”) which is an ideologically loaded term to refer to the subeconomic class from culturally backward Mainland China, claiming questionable familial lineage with those living in Hong Kong). And there were the ethnic minorities. Over time, those two classes of people from within the same social body as the enterprising class are increasingly marginalized. We have seen how this marginalization was fully played out in the right of abode crisis discussed earlier. The key link between the right of abode seekers and the “new immigrants” clearly lies in the colonial legacy of splitting up familial ties in the process of transforming Hong Kong into a neoliberal economy. As for the ethnic minorities, the key link that explains their marginalization is the rise of the Hong Kong Chinese middle-class formation, whose ascendancy depends on the assistance of a menial domestic labor class. As a gendered and racialized working class, the ethnic minorities were brought in as outsiders. Studies of the migrant workers (legal or illegal) have repeatedly shown us how the state and the entrepreneurial middle class need them in sectors of the economy that the locals are either incapable of or unwilling to participate in. According to Simmel (1971), the classic sociologist who studied the rise of “strangers” in European cities, ethnic minorities are the “strangerson-the-inside” whose function is to do to the “dirty jobs,” thereby fortifying their symbolic outsiderliness (see also Erni, 2012b).

104  The juris-cultural In 2013, there was a spate of widely reported judicial review cases heard in the Hong Kong courts concerning foreign domestic helpers who were denied their right of abode despite continuous employment and uninterrupted residency in Hong Kong for a long time. The most visible case was that of appeal case of Vallejos v. Commissioner of Registration. The applicant, Ms. Evangeline Banao Vallejos, is a native of the Philippines. She came to Hong Kong in 1986 as a foreign domestic helper, while the city was still a British colony. She approached the Immigration Department for verification of eligibility for permanent residence in April 2008. In November that year, the Immigration Department turned out her application, citing the fact that she was not considered to be “ordinarily resident” in Hong Kong by reason of Immigration Ordinance Article 2(4)(a)(vi). She then approached the Registration of Persons Office to apply for a Hong Kong permanent ID card, for which she was also rejected. A subsequent appeal to the Registration of Persons Tribunal also failed. At that point, Vallejos applied for legal aid to lodge a judicial review. She turned out to be one of five Filipino nationals who filed applications for judicial review around the same time. The presiding judge ruled against Vallejos’ appeal, because he reasoned that she did not meet the main criterion for gaining the right of abode as laid out in the Immigration Ordinance, namely that the applicant concerned must be “ordinarily resident” in Hong Kong. The judge disqualified Vallejos by comparing the situation of all foreign domestic helpers to that the refugees and prisoners. He first reasoned that his court had no difficulty in concluding that section 2(4)(b) [of the Immigration Ordinance] which applies in a blanket way to exclude all periods of imprisonment or detention from the expression “ordinarily resident” regardless of the facts of individual cases, is constitutional. (Vallejos, CFA, para. 89) In other words, in adjudicating who qualifies the “ordinarily resident” requirement of the law, the judge hijacked the Vallejos case to the context of imprisonment, likening the contractually defined restricted resident life of foreign domestic helpers to the prisoner’s life of confinement. On this basis, the judge ruled that In my view, the exclusion of foreign domestic helpers under section 2(4)(a)(vi) does not encroach upon the central characteristic of the term “ordinarily resident.” It is a category of exclusion not different in kind, but only in degree, from the preexisting categories

The juris-cultural  105 of excluded persons, for instance, Vietnamese refugees and imprisoned or detained persons. (Vallejos, CFA, para. 116; emphasis added) At the time of this writing, the case is undergoing the last round of appeal at the CFA. Unfortunately, many legislators from different political parties, including some from the pro-democratic parties, welcomed the ruling, for the fear that any hint of support of the right of abode of foreign domestic helpers would offend their middle-class constituents. The theorization I undertake in this case study surrounding the politics of the included-out, I want to suggest now, materializes more and more in the curious lives of the “new immigrants” from the Mainland and South and Southeast Asian minorities. I want to suggest that while Smart and Smart’s metaphor of the “punctuation marks” mentioned earlier is used in this case study to remark on a fairly general condition of governmentalist management of people on the move, the notion of the included-out seems to speak more narrowly to the conditions facing new immigrants and ethnic minorities, whose experience of and struggle around “insiderly exclusion” are most profound and unique. Conclusion Let me conclude this case study. Although the two conventional forms of critiques of Hong Kong’s citizenship management regime—what I have called the realist positions—cannot fully explain the contingent and precarious nature of the existence of the migrant other, they are the critiques many of us adhere to. My concern here has been whether the realist positions, while valuable, are constructing a type of politics that arises from the foundation of a binaristic difference between inclusion and exclusion. It is difficult to imagine a language of governmentality without some kind of guaranteed dichotomy. I have suggested that the critique of the administrative and legal restriction of autonomy to understand the border regime of Hong Kong is inadequate because that critique seems to fail to see the “bridging” possibility of the trauma. It fails to grasp that the legal form of governmentality creates a sense of inclusion that is, in fact, in very close proximity to the sense of exclusion, and how this does not undo citizenship but, in fact, makes citizenship possible, the kind of citizenship-by-survival that is edgy, testy, and self-reflective. Similarly, the historical and political economic critique (the second realist position) outlines a hegemony of exclusionism, whereby citizenship is rendered a one-way hardship of fighting for state recognition, of gaining in from the fixed position of

106  The juris-cultural out, so to speak. It is the search for that dichotomy, in the politics of antineoliberalism, antiglobalization, and antigovernmentality, which makes us, which addicts us, to the preservation of a theoretical genetic code in which inclusion and exclusion are made into permanently incompatible genes. I want the open-ended option of the discursive position to be the right political choice. I want the discursive force that realizes the trauma of citizenship in the form of the included-out to open up another kind of future, one that sees citizenship as politics as such, in its most originary meaning: that is, politics without guarantees. No doubt, the techniques of law, of the immigration police, and of softer kinds of social and economic engineering are indispensable for the border regime that regulates citizenship. But we tend to forget the contingency of everything that appears. We forget that the distinction between inclusion and exclusion, utilized as a guaranteed marker of what qualifies political existence (or not), can act as the trigger for its own transgression, that is, as an indicator of a possibility for politicization, but the kind that, to echo Stuart Hall, does not come with guarantees. In Logics of Worlds, Alain Badiou (2009) coins the state of “the inexistent” to mark the contingency of everything that appears. He writes, “Every object, considered in its being as a pure multiple, is inexorably marked by the fact that in appearing in this world it could have also not appeared” (322). By that he means the inexistent is, in fact, a type of (political) existence, not its negation, whose essence is that it appears as a “reserve of being” withdrawn from naked appearance (322). And that marks a necessity of contingency for every existence (Bosteels, 2011, 244). Every existence, therefore, when singularized, reveals the specific elements that mark its inexistence in reserve. And Badiou insists that this state of inexistence is not permanent. Rather, it is imminent, carrying the potential to traverse the continuum from inexistence to actual political existence (Badiou, 2008). Badiou himself uses the examples of the “Indians” as the inexistent proper to the world of “Quebec-between-1918-and-1950” and the workers as the inexistent belonging to the world of the Paris Commune. They were the ones who reveal the contingency of the objective order of the civil and political rights secretly reserved for the Quebecois and the bourgeoisie, respectively (see Bosteels, 2011, 245). Every refugee, every migrant, every member of a split family across borders, and every ethnic immigrant, when captured by a specific legal apparatus of control, a specific economic movement acting as a disciplinary force, in fact, marks their existence in the form of the

The juris-cultural  107 inexistent (or what I call the included-out). While they are the semicolons, the asterisks, and the parentheses that are constitutive of an ongoing speech whose destiny is yet to be inscribed, I suggest that they are better understood in the more dynamic light of the ­included-out or of imminent inexistence. By the same token, every member of the national body, every citizen who settles, who has “made it,” so to speak, can trace their existence by way of measuring the degree of their existence within the national body, that is to say, by marking the extent of their inexistence. What might it be like to conduct that kind of politics of citizenship, one which can allow us to imagine mobile subjectivity pressed-up by proximate lines of opposite forces of belonging and unbelonging? With the realization that the structure of belonging can never be fully or trans-historically fixed, we recognize that there is always a certain sliding of the symbolic border, always a margin not yet stabilized in the punctuated flow of people and things, and always a potentiality. There is always something about citizenship left unanchored, always someone who is constitutively included-out, whose very existence the identity of a people on the move depends on, and which is absolutely destined to return from their excluded position outside the management field of governmentality to trouble the dreams of those who are comfortably inside.

Case 3: Negotiating refuge: further thoughts on the politics of the “included-out” In this case study, which is an extension of Case 2 above, I want to attempt to bridge the notion of the included-out with the notion of “refuge” as enshrined in human rights discourse. If the included-out represents a form of existence and even of modern identity per se as it is produced out of what seems like a vast condition of what can be called “im/mobility on the periphery,” I want to suggest that because its very nature is that of indistinction (especially indistinction between inclusion and exclusion), this category can be useful and productive in helping us to reassess the politics of “taking refuge.” Theorizing refuge—a central theme of this talk—is taken as an aspiration, as moral-juridical protection afforded by human rights, and as spatial politics and spatial rights in city edges where refugees and other displaced populations move around.

108  The juris-cultural Who are the included-outs and what is the politics of being included-out? We are mainly speaking about the politics of indistinction, as captured by the condition of bare life. In the previous case study, my motivation was to forge a reinvigorated analysis of citizenship management in the Hong Kong context, by tracing two trajectories of development in the local citizenship management system. Because of my background in human rights legal studies, I became interested in the 1999 right of abode crisis in Hong Kong. As a direct result of the chaos brought about by the 1997 reintegration of Hong Kong with the People’s Republic of China (PRC), a legal wrangling was fiercely waged over who belonged, who had the right of abode, who were formerly split up across the border and were seeking reunification under the aegis of a newly fused territoriality. Hong Kong’s right of abode crisis, which lingers on today, showed us that all attempts to stabilize the concept of citizenship in terms of birth rights, on the grounds of human rights, or by way of humanitarian impulse, have largely been shown to be inadequate, if not flawed. We have to begin to look for an alternative political language to talk about a border space and a bordered people in a blurred zone, where it is hard to distinguish between who is in and who is out, between inclusion and exclusion. Immigration laws became an important site of struggle for interpretive clarity and biopolitical analysis. “Indistinction” became a ruling trope that governs a legalized polity and a culture along the border of people on the move. Here, I made an explicit claim that under liberal laws, for some time now, citizenship management has been practiced through a general condition of inclusion-outness, enacting a border imaginary that is no longer about a multiverse of restricted citizenship and border control to a general social and spatial economy generating a strong sense of instability of “belonging” as such, as a structure of felt, lived, and often feared reality. Our structure of belonging, therefore, gains its meaning not because of absolute and stable dichotomies of in and out. Instead, our structure of belonging in an age in which human rights and humanitarianism manage to remain a universalized liberal standard of justice—human rights have not died!—appears to be in the shifting relations of difference and not in fixed positions, either teleologically or ontologically. Human rights—in this case the right of citizenship—become something that are tested, refined, and incarnated by techniques of liberal control in the field of citizenship management.

The juris-cultural  109 It is little wonder, therefore, that Giorgio Agamben’s revision of Foucault’s biopolitics by the postulation of “bare life” has become so important across the varied debates over immigration and refugee issues. For Agamben, the conditions and practices of mobility and the politics of bare life are fused. And it is through Agamben that I argue that understanding the included-out is tantamount to enacting a new political understanding appropriate to the urgency posed by bare life. To be included-out is to be captured by bare life, and in reverse, to validate a system of human rights that is complicit with bare life is to enact the indistinction known as inclusion-outness. All the theoretical tools in Agamben’s apparatus flow into the formulation regarding the included-outs. Carl Schmitt, a major inspiration for Agamben, would have considered the included-out as a logical outcome of the state of exception, because it is only through exception that the included is simultaneously, exceptionally, excluded. Agamben’s other preoccupation that flows from exceptionalist politics is the concentration camp. To Agamben and thinkers like him, the European experience of the concentration camp continues to be a hauntingly depressing social paradigm of control. When someone is camped only to wait for execution, that is, when a sense of life is in very close proximity to a sense of imminent death, what happens to this bare life is a double take, a formulated disruption whose constant modes of existence are instability, precarity, and punctuated mobility. I wish “campology” were a real word. If it exists, it can capture a general field of knowledge that can talk about how the camp represents a new kind of political genre for the expression of the political conditions of being included-out. As a political language, the genre of campology would suggest not a severance of life but a bridging, however traumatically, of bodies and identities. The most prominent institutional form of campology is the variety of detention facilities. From Mexico to the Bahamas, Turkey to Saudi Arabia, South Africa to Indonesia, and, of course, in the United States, EU, and Australia, detention has become an established modus operandi that relies on dedicated facilities and burgeoning institutional bureaucracies. Matthew Flynn (2014) points out that before the 1980s, detention appears to have been largely an ad hoc tool, “employed mainly by wealthy states in exigent circumstances and typically making use of prisons, warehouses, hotel rooms, or other ‘off-the-shelf’ facilities” (4). Detention policies and practices have rapidly matured and grown in major detaining countries over the past few decades.

110  The juris-cultural If campology suggests not a severance of life, but a bridging of bodies and identities, then I want to suggest that the detention regime is the materialization of the fusing of overlapping spaces and scales of border production, introducing exclusionary practices through affixing bodies and locales together. The detention regime is about the production of borders and not dichotomies of inside and outside, because what the detention regime allows through creating mini-­ neighborhoods, checkpoints, confined spaces of interaction, and limited mobility is a continuum of social and subjective sense of belonging. It operates within and around geographical boundaries but has the same intent of constructing zones of exclusion. Detention facilities create differential zones where bodies are differently policed; the emphasis is always on the processual practices of surveillance, temporary release, anticipatory deterrence, reconfinement, and so on. Therefore, the scales across which immigration detention functions range from the intimate to the geopolitical (Mountz et al., 2011, 534), crosscut by everyday mixing of a range of actors. All of them are indeed marked by the forces of securitization, but no one is permanently inside or exactly outside. As a result, the prime rigorous activity in detention facilities is the fortification of borders or scales of borders. It is important to emphasize that this type of panoptic space is about the creation of permanent zones of exception, normalizing the permanent control of a designated group of outsiders by residence. The housing of asylum seekers in detention centers, the proliferation of international waiting zones, or offshore islands, to receive foreigners caught at sea or at the border, the confinement of terrorists suspects in Guantanamo Bay, and the growth of the gated neighborhood to provide shelter to migrant workers: all represent the permanent exclusion (or human rights violation) that is paradoxically a part of liberal governmentality. Places such as Guantanamo Bay, or Christmas Island (famous for housing detainees during former Australian Prime Minister John Howard’s controversial “Pacific Solution” in the mid-2000s), have become the sites for the exercise of biopower through secrecy. The permanent bordering between inclusion and exclusion in these zones represents nation-states’ exploitation of the legal ambiguity, economic dependency, and partial forms of citizenship and political status in those islands (Mountz, 2011). Those remote sites demonstrate an effort to “disorient, isolate, and confuse migrants both geographically and legally in their attempts to struggle against their predicament” (Flynn, 2015, 6). Allison Mountz (2011) calls this security tactic “haunting” to breed and sustain the uncanny form of sovereign power of exclusion through inclusion.

The juris-cultural  111 Thinking refuge Besides “campology,” I also wish “refugeeism” were a real word. If it exists, it can expand our narrow attention to the refugee as a human as such, to reach a more encompassing understanding of the conditions and obstacles of refuge itself. The word refuge conveys a zone of ambivalence, because taking refuge suggests a simultaneity of being inside and outside vis-à-vis the society, the law, territory, or government. The refugee is a “stranger” in Simmel’s sense, being close to and detached from the context in which he or she “comes today and stays tomorrow” (1971, 143). The law excludes them but simultaneously subject them to its dominion—refugees are outside of sovereign borders but are also “radically internal to the processes of ordering” (Diken and Laustsen, 2005, 80). Furthermore, the taking of refuge, when it is elevated to a human right, nonetheless, conveys a political sense of undecidibility—we seem unable to decide whether the asylum seeker is the true subject of human rights, inviting recognition that he or she is the quintessential sacred holder of rights or suspicion that they are “bogus,” “queue jumping” economic migrants looking to exploit the system, or worse, to spawn terrorism. Sovereignty, therefore, works in mysterious ways: While the ambiguities of the asylum seeker are subjugated to processes of ordering, so as to purge the ambivalence, the politics of the sovereign is one of the oscillations between treating the asylum seeker as the sacred or framing them as the criminal. For instance, in Australia, the government has infamously used its “crimmigration” policies of deterrence to subject unauthorized migrants to the harsh treatment of mandatory detention and offshore processing. Cast with suspicion, the refugees are commonly portrayed in this and many other countries as fake and dishonest looking not for bona fide protection but for economic gains by illegal means. Long before Tony Abbot’s current treatment of the Rohingya refugee crisis, he was already deploying exclusionary rhetorics in his campaign trail for the 2013 Australian federal elections: The overwhelming majority of the people who are coming to our country illegally by boat have come via other countries where they could readily have claimed asylum. The fact that they are determined not to stop until they come to Australia means that they are overwhelmingly economic migrants not genuine asylum seekers. (Tony Abbot, 2013, 2–3) For all the merits of seeing this image of outright exclusion in the case of the Australian government, we should not be led to think that this is representative of most sovereigns around the world today.

112  The juris-cultural As egregious as the Australian case, Abbot, like his predecessor Julia Gillard, still operates a mode of sovereignty that is arguably in keeping of the gray zone of inside/outside. In 2011, Julia Gillard’s “get tough” policy of deterrence of unauthorized refugees worked by a system of swapping between “genuine” and “fake” refugees between Australia and Malaysia (Foster, 2011). Known as the “Malaysian Solution,” whereby the Gillard administration used force to make asylum seekers comply with their relocation, the policy, nonetheless, relies on an intricate system of negotiation and brokering of deals with other governments and private agencies to keep detention centers running, to make decisions, and to process applications (see Welch, 2014). In other words, the refugee as “excess” is internalized as the captive of the state and its sovereign laws through panoptic confinement. Detention centers, refugee camps, and processing sites, therefore, continue to stand as zones of exception where the negotiation between “us” and “them” must go on. In simpler terms, these hybrid zones are never merely sites of total exclusion because the sovereign power—and its liberal laws in the age of humanitarianism—must appear to adhere to international human rights demands. I regularly teach a course on race, ethnicity, and migration. I want to take a brief detour to a specific moment of that experience, which turned out to provide some conceptual framework, and inspirations, to my current thinking on the included-outs. In a session midway in the semester, we were discussing gender and migration, especially in the Asian context. We read Apichai Shipper’s conceptual piece on transnational gendered migration, and Sara Friedman’s work on foreign brides in Taiwan. After a discussion of the gendered politics that explain why men and women flow, traffic, and enter into marriages through a largely economic network of exchange, it became clearer and clearer to the class that within the story of migration, there emerge specific places and spaces that are of critical importance. There exists a type of space in which the migrants have already arrived, even stayed within the border of a sovereign nation, but they are kept to a periphery, often for a long time, and always to the brink of exclusion and deportation. So, we quickly reviewed the legacy of places such as Ellis Island in Upper New York Bay, the iconic gateway space that stores the historical legacy of state processing and inspection of millions of immigrants to the United States from 1892 until 1954. By housing “inspection facilities, hearing and detention rooms, hospitals, cafeterias, administrative offices, railroad ticket offices, and representatives of many immigrant aid societies,” Ellis Island resembled a small-sized city (Smith, 2015). Infamously dubbed “the island of hope, the island of

The juris-cultural  113 tears,” Ellis Island (and many other similar setups around the world) processed much more than visas and work permits but also a diabolical mix of “threats” posed by those who have “on the inside” on the national border. The threats range from public health concerns, to threats to the welfare system, schools, the job market, to even more complicated threats posed by the problem of racial/ethnic conflicts, the fate of mixed-race children, and the specter of “silent invasion” through family reunification. This last aspect of family reunification of immigrants came to the center stage of our attention of our class, when I showed to the students a short documentary piece by Taiwanese filmmaker Chen Chieh-jen (陳界仁). In his piece Empire’s Borders I, Chen reenacts the discriminatory treatment encountered by eight Taiwanese applicants for American visas and nine Mainland Chinese who have immigrated to Taiwan on marriage visas. Through utilizing a blog, Chen collected many individual accounts that he then crystallized into a collective narrative portrayal. The specially constructed space used in the filming resembles a processing center. Chen Chieh-jen’s piece documents the isolation, scrutiny, distrust, and control imposed upon people who are the included-outs, since they occupy the space at the border of empires. Rights assets, camps, refugeeism Taking refuge, with all of its political and psychic ambivalence of self-othering, has a relation with global humanitarianism. This should be somewhat obvious. Today, global governance is often hailed as the success of states to loosen up sovereign rights to compel a regime of networked practice. Through network practices, we can articulate collective interests on the global plane, establish rights and obligations, and mediate differences. In turn, global governance entails imagining a new theory regarding humanitarianism and human rights as a component of new conception of sovereignty. In Case 1 above, I have suggested that global neoliberal governance allows not only capital assets to operate across borders but also a second of thing: What I call “rights assets” to be produced and distributed across borders. Global neoliberal governance opens economic markets as well as what can be crudely called “humanitarian markets.” A “rights asset” is something a state or a group of networked states can invest in, such as setting up interstate environmental protection agreements, cooperative HIV prevention schemes, or coordinated programs to accept and accommodate refugees. The rights asset so accumulated is thus a result of entanglement between the

114  The juris-cultural dominant players of flexible sovereignties and human rights bodies and other monitoring organizations, committees, or NGOs. As such, the norm of international standing as a primary element in any form of sovereignty becomes something that can be measured according to the level of rights assets held. Once again, examples of how the new sovereignties networks increase their holding of rights assets are numerous. For instance, turning to the global humanitarian field, networks of finance ministers and central bankers have positioned themselves as the efficient responder to global and regional economic crises. The networks of finance ministers who form the G-8, for instance, are the ones who make key decisions on debt relief for poor countries. Even the G-20, composed of finance ministers of twenty developed and developing states, can be said to be doing “humanitarian work” by setting up policies to prevent future collapse of markets. Needless to say, networks of national officials have also worked to coordinate environmental protection policies across borders. In addition, virtually every interstate trade compact today would include a provision for setting up an environmental enforcement network across trade partners, which endeavors to build the capacity of individual nation’s environmental protection agency, provide technical assistance, exchange emission figures, and sponsor training. The production of rights assets should ideally correspond with an increase in humanitarian actions and a decrease of violence. Charting the relationship between the two, especially on a global scale, is not easy. There is no map, graph, or chart that has yet quantified rights assets and showed their global spread; rather, there are only cross-border events and decision-making points. What we can postulate is that the networked powers of the new flexible sovereignties present their human rights concerns as if they were properties that can be traded among partners in the network. There arises a new human rights imaginary whereby economic capital and “rights capital” form a trade nexus and that what mediates this trading are various practices of collective learning, technical knowledge transfer, and rule-making. We can now tie this back to campology and refugeeism. There seems to be a scale or gradation to the way states transact political and rights assets with one another. The decision to comply with human rights regulations, how much effort goes into the compliance, and what level of human rights “output” to produce: these are forms of state behavior that have bearing on their relative sovereign power. Sovereignty is a behavioral matter, through exercising campology and the proliferation of refugeeism. The camp represents

The juris-cultural  115 the infrastructural instrumentalization of human rights, given that all of the humanitarian and human rights laws designed to constrain state conduct appear publicly to champion a m ­ oral-juridical ethos, but in reality, they have inadvertently instituted a fundamental reconfiguration of human rights as network assets, mirroring the sovereign’s capital assets in global governance. Human rights, therefore, incorporate at their heart a secret relation to capital which they claim to oppose. I have suggested previously that we must interrogate the ways in which human rights present themselves as simultaneously included in and excluded from networked capitalism. I have suggested that human rights dwell in a structure of speculative, behavioral governmentality; because of this, we need to rethink justice. Justice, understood in the perspective of campology, has a curious epistemological location: Justice, as the public objective of human rights, settles inside the space of the new sovereignties as an outsider. Conclusion—toward surviving citizenship Let me come back to the problem of taking refuge, to move toward a conclusion. I wish to say how crucial it is to recognize that the form of the camp; the hybrid; the border; and, more broadly, the indistinct spatiality of new urbanism actually makes citizenship a negotiating possibility, not impossibility, but not in the sense that the subject still has a conventional relation with the sovereign as being placed either inside or outside, as exhibiting optimism or dejection, from which to derive a foundation of self-possessed identity of citizenship. Instead, citizenship in this sense is a potentiality, made possible through shattering the polis (one’s political life) that was previously thought to be the actual foundation for what gets taken for granted about its historical self-continuity. As convincing as the specter of “bare life” may be, surviving citizenship remains an intricate work. Enclosures, temporary statuses, interim occupation of land, the alternating fleeting of hopes and disillusionments, and experiences of various management techniques such as repatriation, temporary stay in processing outposts, and even deportation: all of these call for an intricate understanding of citizenship and belonging as survival. Not bare, wretched survival, because the kind of biopolitics that produces the included-outs creates a sense of inclusion that is, in fact, in very close proximity to the sense of exclusion. In this way, citizenship-by-survival becomes edgy, testy, and self-reflective.

116  The juris-cultural To borrow a passage from Etienne Balibar (2014), in his context of talking about how “all political practice is territorialized” (68), in which he writes, The empirical, historical, phenomena of territorialization and deterritorialization (such as the displacement of populations, migrations, the fortification of borders, barriers to communication) are transformed into regimes of rights and access to rights … Here we have touched upon the fundamental epistemological fact that spatial categories such as territory, residence, ownership of land, but also, correlatively, travel, nomadism, and sedentaries, are also constituent determinations of citizenship. To me, the latter part of the passage presents the very stuff of survival called citizenship and belonging, which, in turn, activates the stuff of rights. I think we should understand rights as something derived from survival and not from some divine or moral sources. In its most general definition, rights are border things. An “external” border is mirrored by an “internal” border, so that exclusion from rights is projected within the political space of inclusive rights, creating an alterity, a form of otherness that is neither in nor out, a form of citizenship that can exist only through surviving the ambiguities of belonging. Do you see what I have in mind with this awkward term of the ­i ncluded-out? Survival is a mobile form. Stripped of political and even epistemological certainty, survival in this sense is a second-­ degree phenomenon, a more dynamic one than either pure belonging or an absolute ban of access or rights. Losing the stranglehold of a fixed dichotomy of inclusion and exclusion, the orientation of the included-outs sets sail, albeit often in the register of alienation and violence, a kind of political community that exists not only in relation to themselves as a community moving on and along the periphery but also in relation to a much broader spatialization of urban citizenship writ large, encountering and encapsulating all kinds of edgy identities and movements in the undercurrents of urban life. In other words, there seems to be an affinity between the logic of the included-out and today’s modernity, especially urban modernity. There is a decisive amount of contemporary urban spaces and structures, especially slums, boarding spaces for migrant workers, half-way shelters, processing centers for the newly arrived, temporary outposts to keep refugees rescued from boats, and so on, that repeat in their organization and spatial ideology the logic of the included-out.

The juris-cultural  117 I will end this case study with a story in Singapore. When I visited Singapore a couple of years ago, I had the opportunity to visit a village in the Jerong East area at the outskirt from the city center. It was a village built to provide housing for temporary migrant workers. ­Westlite is a facility that provides workers quarters to about 8,600 workers, who are all men. Inside the compound, there is a gymnasium, a clinic, a grocery store, a salon, and so on. Westlite organizes excursions and entertainments for the migrant labor. Westlite is quintessentially a camp for the included-outs. Operating as a business, the mother company of Westlite—Centurion Corporation Limited—is a prominent real estate conglomerate in Singapore who operates several large-scale workers’ accommodation sites in ­Singapore and Malaysia. Every man who stays there comes with proper papers, has work contracts, pays rent, goes to the in-house clinic to have regular body checks, follows the house regulations, and belongs to a semblance of a community. While all this was obvious, what was also crystal clear was the existence of “camp mentality,” which, to recall Paul Gilroy (1999), is an ideological demonstration of racism that relentlessly translates and sorts heterogeneity into racialized homogeneity. But do not forget that this kind of orderliness edges on disorder, of unruly masculinity and irregular subjectivities influenced by the stress of being camped, by injuries on the job, and sometimes even by ethno-nationalist xenophobia displayed among the dwellers who come from many different countries. I have discussed earlier how the included-out practices survival as a mobile form, allowing for movement on and along the periphery. By bringing up the example of Westlite, I hope to also demonstrate how this mobility is at the same time camped mobility, taking place in the intertestial spaces between order and disorder, in and out, lawfulness and violence. To all this, Agamben captures with the term “potentialities.” Allow me to directly cite from Agamben, who was himself quite direct when he wrote, “I could state the subject of my work as an attempt to understand the meaning of the verb ‘can’ [potere]. What do I mean when I say: ‘I can, I cannot?’” (Agamben, 1999, 177). He then draws on his strongest source of inspiration, Aristotle, by saying, The potentiality that interests [Aristotle] is the one that belongs to someone who, for example, has knowledge of an ability. In this sense, we say of the architect that he or she has the potential to build, of the poet that he or she has the potential to write poems. It is clear that this existing potentiality differs from the generic potentiality of the child. The child, Aristotle says, is potential in the sense that he must suffer an alteration (a becoming other) through

118  The juris-cultural learning. Whoever already possesses knowledge, by contrast, is not obliged to suffer an alteration: he is instead … a “having,” on the basis of which he can also not bring his knowledge into actuality … by not making a work, for example. Thus the architect is potential insofar as he has the potential to not-build, the poet the potential to not-write poems. (179; emphases his) So, by virtue of potentiality, “having,” as in having knowledge or having a place to dwell in, is negativity. By the same token, being included, or having inclusion, is negativity too, in the sense that the insider (the knower and the haver) carries the equivalent potentiality as the outsider. This is a potential not to pass into actuality, or to be more faithful to Agamban qua Aristotle, it is a potential that must not pass into actuality, so as to survive itself, to preserve itself as such, as what both Agamben and his teacher called “a potentiality to not-be” (183). I think the included-out as a political genre speaks to this aporia, one that makes no distinction between potentiality and actuality. The included-out is a condition, or even a someone, who “can” and “cannot.”

Case 4: Queering laws, transfiguring marriage In this case study, I address a legal case of a transgender person living in Hong Kong who sought to marry through the Hong Kong legal system. In 2010 and 2011, the Hong Kong Court of First Instance and Court of Appeal, respectively, rejected the appellant, a “Miss W,” who, as a certified male-to-female transgender person, wished to marry her boyfriend, a biological male. However, with strong determination, Miss W took this case, W v. Registrar of Marriages, to the CFA, which overturned the previous judgments and declared the obstruction of a transgender person’s right to marry unconstitutional. By the time the CFA issued its ruling in May 2013, this first-ever transgender marital rights case in Hong Kong’s legal history had already stirred considerable debate in society and among legal circles. W v. Registrar of Marriages has become a landmark case, legally and socially speaking, for the struggle of transgender rights in particular and for our understanding of the de-­i nstitutionalization of normative marriage at large. I wish to use the W case to examine the powerful meanings derived from legal efforts to define

The juris-cultural  119 “marriageability” in terms that put public ordering (in the name of “societal consensus”) in conflict with autonomous private choices. An analysis of the discourse that was mobilized in the lower courts to block transgender marital rights remains vital today because it can shed important light on future debates concerning sexual minority rights at large. A strong declaration made by the judges in the CFA ruling was that its judgment was to be strictly confined to transgender marriage rights and, therefore, was not to be applied to, or confused with, same-sex marriage rights (W, CFA, para. 2). Pitting one kind of rights against another kind, this distinction raises questions about the implications of this “exceptionalist” logic for the long-term struggle for the rights of all sexual minorities. It is in this spirit that this case study largely confines itself to analyzing the W case as it was debated in the lower courts. I will, however, conclude with a coda that returns to the CFA ruling to provide readers with a summary and a critical review of its approaches. Very little is known about Miss W directly, and even the Courts admitted that their order for nondisclosure of W’s identity reflected the stigma attached to being a transgender person in Hong Kong (W, CA, para. 24). It is not my purpose to attempt to fathom W’s private world.13 Instead, this case study focuses on the public milieu of social and legal phobia in Hong Kong toward alternative forms of private intimacy. In October 2009, after being refused permission to register their marriage by the Registrar of Marriages, W and her boyfriend sought legal action to demand from the Hong Kong Court: (1) a recognition that both the Marriage Ordinance and the Matrimonial Causes Ordinance should include in the purview of the definitions of “man,” “woman,” “male,” and “female” an “updated” inclusion of postoperative transsexual persons in their acquired sex and (2) a declaration that a denial of such recognition constitutes a violation of the freedom and right of marriage as expressly provided by both the Basic Law and the Hong Kong Bill of Rights. A year later, on October 5, 2010, the Court of First Instance, which heard the case, squashed W’s judicial challenges; the judge held that Hong Kong laws would not permit— more precisely, did not enjoy the “societal consensus” to recognize— the marriage right of a transgender person. Disappointed but determined, W took her case to the Court of Appeal. In the appeal, her legal team raised several legal challenges to the decision of the Court of First Instance, including the latter’s use of (1) an outdated 1970 court case (Corbett v. Corbett) as a primary statutory reference,14 (2) a view of gender that did not keep up with advances in medical technologies, and (3) a view of marriage that was in discordance with advances in international family and marriage laws.

120  The juris-cultural Unfortunately, the Court of Appeal argued against these challenges and handed down a judgment on November 25, 2011, to uphold the original decision. In what follows, I want to offer a reading of the court’s legal reasoning as a case that did not challenge transsexuality as such (nowhere in the judgment was W’s transsexuality mis- or unrecognized) but that forcefully exposed the historical and legal anachronism and thus discursive instability of conventional marriage itself. In the first section of this case study, I begin by providing a brief contextual discussion of marriage laws in Hong Kong, as well as changing trends in marriage, divorce, and household formation. Next, I turn to the social and cultural realities faced by transgender people in Hong Kong. Special attention will be paid to the legal dimensions of “transphobia” both in general and as it has emerged in Hong Kong to lay the ground for a close reading of the lower courts’ judgments and their ramifications for marriage rights. Socio-legal contexts In Hong Kong, marriage is governed by the Marriage Ordinance, which was first enacted in 1875. It remains statutorily in force today, despite vast historical, social, and medical changes since its framing. According to its preamble, the Ordinance is to provide for “the celebration of Christian marriage or the civil equivalent thereof, and for matters connected therewith.” Part 2 of Section 40 goes on to clarify that this form of marriage “implies a formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others.” Legally, the introduction of Christian marriage or its civil equivalent into Hong Kong at the time of British colonial rule (known as “registry marriage”) is “particularly natural given that otherwise, in those days, marriages were mostly conducted according to Chinese customary law” (W, CFI, para. 114). Traditional marriage up to the early twentieth century was commonly known as “Chinese customary marriage,” which was likely to be an outcome of parental arrangement and often was polygamous in nature. After the introduction of the 1931 Civil Code in the Mainland, people in Hong Kong contracted marriages by following the marriage provisions contained in the Code, and those marriages, when formalized in Hong Kong (which was, of course, outside the scope of application of the Civil Code), became known as “Chinese modern marriages.” No registration was required of a Chinese modern marriage, but an open ceremony was necessary. And unlike a Chinese customary marriage, a Chinese modern marriage was bound by the code of monogamy.

The juris-cultural  121 Reforms in 1970–1971 did away with both Chinese customary marriage and Chinese modern marriage in Hong Kong, and with the enactment of the Matrimonial Causes Ordinance (a direct adoption of the United Kingdom’s Nullity of Marriage Act), a marriage that took place after June 30, 1972, would be void on the ground that “the parties are not respectively male and female” (see Pegg, 1994, 8). The restriction of marriage to a heterosexual relationship (monogamous in nature) is a direct inheritance of dogmatic stipulations by the Church of England. Judge Andrew Cheung, who heard the W case, made the following forceful assertion: According to the doctrine of the Church of England, marriage is in its nature a union permanent and life-long, for better or for worse, till death them do part, of one man and one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity … The 19th century case of Hyde v Hyde and Woodmansee (1866) … gave a shorter definition of Christian marriage, a definition adopted in section 40(2) of the [Hong Kong] Marriage Ordinance, that is to say, “the voluntary union for life of one man and one woman, to the exclusion of all others.” … Whilst this shorter definition does not, by comparison, expressly refer to procreation, the traditional significance of procreation in Christian marriage, when viewed in the relevant religious and historical context, cannot be doubted. And procreation is, by definition, a matter for members of the opposite biological sex. (para. 116) A whole discursive landscape of Judeo-Christian dogma thus was laid out by the judge, in which marriage was put in lockstep with heterosexuality, monogamy, procreation, even the preferred form of intimacy. But he did acknowledge this: “There is, however, no relevant definition of ‘man’, ‘woman’, ‘male’ or ‘female’ in either of the Ordinances [Marriage Ordinance and Matrimonial Causes Ordinance]. The matter is, therefore, left to the interpretation of the court” (para. 54). Over the years, there was no legal challenge to the restrictive gender provisions of the two marriage ordinances (that is, until the groundbreaking W case), although there have been many challenges to inheritance rights and challenges arising from disputes between traditional customary marriage and modern registry marriage (see, for example, Leung Lai Fong v. Ho Sing Ying, 2009). Neither has there been policy

122  The juris-cultural change to update those statutes to reflect changes brought about by new understandings of gender, family, and marriage. But, in fact, vast changes have occurred in Hong Kong outside of the court. In Hong Kong, as in Taiwan and Mainland China, age at first marriage has risen, marriage rates have declined, and the crude divorce rate has spiked upward.15 At the same time, the percentage of households with five or more members has fallen while that with only two persons has substantially increased.16 Changes in household size and composition raise important questions about what types of people are sharing these households and how we should characterize the relationships among household members. To date, the Hong Kong government has proven reluctant to attribute changes in marriage and household patterns to new norms of sexuality and sexual difference. For example, even when the government predicts that two-person households will be the modal household size and that the proportion of these will increase steadily over the next ten years (from 25.6 percent in 2009 to 28.3 percent in 2019), it states that “large family size ceases to be a norm owing to delay of marriage and low fertility” (Census and Statistics Department, 2011, 19). The government, in other words, is unable to imagine shared household arrangements or even family patterns without marriage or fertility. The importance of Miss W’s case, therefore, lies not only in challenging the established marriage laws by possibly setting a legal precedent but also in exposing underlying cultural biases against nonheterosexual and/or nonprocreative intimate relationships, including those involving transgender people.17 Transgenderism per se pushes for a specific kind of “de-­institutionalization” of marriage, one that goes well beyond normative gender definitions and conventional notions of marital intimacy. In the face of these alternate intimacies, how do we explain the lack of governmental and legal imagination about the growing diversity of gender, family, and marriage in society at large? Legal and cultural imaginations of transsexuality Records show that the first sex change surgery for a transgender person in Hong Kong was performed in 1981 by an ad hoc group of doctors in a government hospital. In the following years, more transgender patients came to government hospitals to ask for the surgery. To treat these patients according to consistent and internationally acceptable standards, a gender identity team (GIT), composed of psychiatrists, clinical psychologists, medical social workers, geneticists, gynecologists, surgeons, and lawyers from both the public and private sectors, was formed in 1986 within the sex clinic of Queen Mary Hospital (see

The juris-cultural  123 Ma, 1997). Between 1991 and 2001, thirty-four persons were assessed by the GIT (Cheung, 2010). However, despite the GIT’s achievements, the Hospital Authority in Hong Kong closed the unit in 2005, citing budget deficits. As a result, transgender patients turned to private clinics, where many of the doctors they saw had little or no experience treating transgender patients (see Cheung, 2010). Legal mis-readings In the legal imagination, transgender or transsexual persons are not yet legible subjects; rather, they are an abject class. US transgender ­scholar-activists Currah and Minter have written that it is “not possible to identify any single doctrinal error or logical mistake that will account for—and thus provide a simple means of remedying—the historical exclusion of transgender people from equal protection in the Courts” (2000, 37–38). Transgender plaintiffs convey their injuries in a legal system that either does not recognize them at all or draws a line in such a way as to render them strangers to all of the laws that were supposed to protect them. Legal scholar Abby Lloyd goes so far as to say that at a systemic level, the law fails to recognize liminal subjects; faced with a transgender person who challenges traditional categories of normalcy, the law makes his or her identity so impossible, invisible, and monstrous as to be outside of the law’s protection. (2005, 152) Palpable here is the hint of legal dehumanization reminiscent of the colonial treatment of racial minorities. Lloyd cites Ashlie v. ­Chester-Upland School District (1979), a US court case that held that Jenell Ashlie, a male-to-female transgender schoolteacher, may not seek protection under the privacy doctrine from a state government employer’s job discrimination clause. In what that court said, there was a stunning analogy made by the judge: It might just as easily be argued that the right of privacy protects a person’s decision to be surgically transformed into a donkey. The transformation, by its very happening, would lose the quality of privateness. Certainly, those who had known the donkey as a man would detect the change, even though those acquainted only with the donkey might never have occasion to remark upon it. In addition, the change from man to beast might be just as devoutly wished, as psychologically imperative, and as medically appropriate as the change from man to woman, but the Constitution, I fear, could not long bear the weight of such an interpretation. (Ashlie, 160–61)

124  The juris-cultural Lloyd goes on to argue that “beastly analogies” can, in fact, be found in many legal judgments of the transgender person’s legal personality. More misreadings As an increasing number of jurisdictions worldwide have protected same-sex marriage rights, we have seen a lesser degree of explicit “transphobia” in law. Yet, for transgender persons, courts extend protections most readily insofar as transgender people “humanize” their identities by twisting them to fit into such recognizable legal domains as sex discrimination laws, psychiatry-supported disability laws, and sexual orientation laws. In other words, a transgender person fares better in court if she or he identifies as a biological woman (in the case of a male-to-female transsexual); a disabled person (purportedly “scarred” by surgical procedures that incapacitated some of their biological abilities); or, more commonly, a queer person (with unconventional bodily fantasies and sexual object choice). While there is no question that advancements in women’s rights and samesex antidiscrimination and equality laws have brought about many political benefits,18 these advancements are a double-edged sword for transgender people because the transgender person’s very existence defies and repudiates the gender-sexuality system as we know it (see Gordon, 2009). Another problem in the way the law reads transgender people is that typically the latter are codified by a legal discourse dominated by a psychomedical model of transsexuality. It is only recently that activists have been able to redefine the term in a more psychosocial and anthropological sense. This redefinition challenges the courts’ tendency to rely on crude physiological markers and conditions of psychiatric disorder, most commonly with such medical labels as “gender dysphoria” and “gender identity disorder” as professionally defined by the psychiatric standards established in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Activists have asked the courts to adopt the more preferred word transgender.19 To date, however, courts around the world continue to give preference to the psychomedical labels of “gender identity disorder” and “gender dysphoria.” In other words, transgender people do not yet have a liberty interest in defining their own sex; the courts still have not officially held that they had a universal right to self-identify their own legal sex. Moreover, the switch from a restrictive biopsychiatric understanding to a more cultural one has introduced its own dilemmas as culture becomes another source of cruelty.

The juris-cultural  125 Transphobic culture in Hong Kong In Hong Kong, two primary terms commonly call forth the transgender person in public discourse: bin tai (變態) and yan yiu (人妖). The term bin tai is a common lexicon referring to all real or imagined perversions designated as a deviation from or subversion of reproductive, heterosexual, family-centered norms of the body, gender, and sexuality. Yet the term’s basic meaning is rather innocuous: bin refers to change, whereas tai means a state of affairs, a condition, or a position. But when transposed into an insult to the cross-dresser, the pedophile, the polygamist, the same-sex lover, the masculine woman, the sissy boy, or the transgender person, bin tai exposes its epistemological foundation in reproductive, heterosexual, family-centered normativity. As such, it achieves cultural ubiquity in a conservative society like Hong Kong. Arguably, diverse forms of symbolic and anatomical gender and sexual boundary crossings have produced a sweeping “trans” cultural sensibility in Chinese contexts. This is evidenced by a long history of exquisite queer performativity in the Chinese popular imagination, a tradition that makes it very difficult to distinguish among homosociality, homosexuality (同性戀), cross-dressing, and bodily alterations (see, for example, Lim, 2006; Li, 2003; Martin, 2003). Yiu (妖) is possibly the unifying term that refers to the “transifying” gender and sexual economy, something that the term queer has always tried to approximate in more global contexts. Seen in this way, yan yiu (literally translated as “human ghost,” “human monster,” or “freak”) is a term that arguably exceeds a narrow reference to transgender people. Like the term queer, yan yiu seems to gesture toward a larger realm of liminal sociosexual practices: All queerly sexed subjects are members of the “yan yiu family.” However, in Hong Kong, no cultural celebration or political positivity is in store for queerly sexed subjects such as transgender people. Terms such as bin tai and yan yiu do not usually carry with them a direct indictment of biomedical or religious pathologization. They do not need to. Rather, they command a kind of cultural ubiquity that produces a sensation of shame and humiliation strong enough to induce self-policing. Put differently, they are a language that pierces through the body, gender, and sexuality to perform a deeper social degradation of one’s “personal character.” This explains why bin tai and yan yiu can mortify an individual into withdrawing from sociality. In Josephine Ho’s (2007) ethnographic study of transgender persons in Taiwan, she delineates how transgender people are trapped between two difficult choices: to endlessly craft a self-narrative that they hope will yield

126  The juris-cultural social acceptance or to withdraw into aloofness so as to preemptively block contact with other people. Ho suggests that this acute project of daily self-management is an attempt to defend one’s personal character in the face of a Taiwanese social atmosphere steeped in “gender policing” as well as a general erosion of social trust (2007, 348–9). Much of Ho’s essay can apply to Hong Kong. Despite the fact that the government of Hong Kong has been providing counseling and sex reassignment surgery (SRS) since the mid-1980s, and despite the existence of a growing transgender rights movement since the early 2000s, transgender people are almost entirely invisible in Hong Kong.20 However, as is the case in Taiwan and many other countries, transgender visibility typically arrives as a shock after the (sensationalized) death of a transgender person. In 2004, this happened in Hong Kong when, within a single week, two transgender women—Louise Chan and ­Sasha Moon—committed suicide. The circumstances of their deaths rehearse the cultural and political tragedy of a city plagued with routine social disregard and degradation, as well as institutional dismissal of transgender people in employment, education, housing, prison, and the media (see Erni, 2013; Winter, 2009a; Winter et al., 2008). Before her suicide, Louise Chan had been stalked and outed as a transgender person by the local press, costing her her job as a hairdresser. And when Sasha Moon leaped from her high-rise apartment to her death, her plunge was captured in a morbid sequence of photographs published in the following morning’s local newspapers. “The media used to treat us like a freak show. Today, we’re seen as a genuinely good story,” laments a friend of Sasha Moon and a member of Transgender Equality and Acceptance Movement (TEAM quoted in Watkins, 2004, 20). Rampant transphobia in Hong Kong has also been recorded by Mark King in his small-scale study of secondary schoolteachers. His study confirms a significant level of fear and pathologization of transgender people among schoolteachers: Among the 183 teachers, 54% thought that TG’s are mentally ill and need treatment, 16% thought that TG’s are promiscuous, also 54% thought that TG’s are likely to have diseases requiring treatment. Of the sample teachers, 45% would not be happy leaving their own children alone with a GID [gender identity disorder]/ TG individual, 16% thought that they should not be allowed around any children. (King, 2003) Besides attributing such biases to a general lack of sex knowledge among the populace, King further shows that transphobia in Hong

The juris-cultural  127 Kong is, in fact, mixed with racial phobia, which produces a belief that transgenderism must be rare among ethnic Chinese. King (2003) writes, “The local conceptualization of transgender may also have been conflated with images and ideas of transgender from neighboring Southeast Asian nations, particularly Thailand, Malaysia, and Singapore.” It should be noted that transgender people in Hong Kong do not fully lack legal rights in the civil law domain. In Emerton’s (2004) study of transgender rights in Hong Kong, she discusses the administrative concessions that the Hong Kong government offers to transgender persons in an attempt to comply with international legal trends. The concessions include a transgender person’s ability to change his or her name and sex identification on his or her identity card, driver’s license, passport, and education certificates once that person has provided adequate evidence of a successful transition. The reissuance of the identity card is important because Hong Kong residents are required to produce their identity card at all times, even though the card does not establish a person’s sex for legal purposes. The latter can only be established by one’s birth certificate. Unfortunately, current laws in Hong Kong do not allow for the alteration of the birth certificate for postoperative transgender persons, a legal restriction that has an impact on the right to marriage, custody of children, and use of public spaces (e.g. a public toilet or changing facility). With this discussion of the legal and cultural contours that shape the way we understand marriage and transgenderism in mind, I now return to W’s case. The law is not part of society: reading the case of W Miss W’s legal team, who had previously won a groundbreaking gay rights case in Hong Kong,21 laid before the Court a two-step demand: First, provide legal recognition of transgender people in their postoperative acquired sex as a full “woman” or “man,” and, second, if that fails, charge that the laws of Hong Kong, by restricting or denying Hong Kong residents the right of marriage, are unconstitutional. In the proceedings, the appellant made clear that hers was not a same-sex marriage right litigation, so that the very core institution of heterosexual marriage was never the point of the legal challenge. Rather, they were determined to break open the rigidity and outdated meanings of sex and gender in the context of the institution of marriage. In his ruling, the judge positioned his thinking on transgenderism in a middle ground between two conflicting understandings of what transgenderism is and who has the right to define it. On one side is

128  The juris-cultural the “expert-based stereotyping” of medical professionals that defines transsexualism as a medical condition, even a disability. On the other side is a position of total ignorance and passivity. The judge took the middle road between the two extremes, positioning the court in a space ostensibly identified by rational, scientific, and tolerant discourse. And at the heart of this space was the question of deciding who and what a transgender person is. The law has never bothered to define such plain words as man/male and woman/female. But the Court did construct transgender people as incapable of achieving the full or complete status of “man/male” or “woman/female.” The middle-speaking position invented by the judge has helped to cloak him in a veneer of tolerant liberalism, but the real discursive work that his position accomplished was the sculpting of transsexuality as a wounded, less-than-complete, half- or even subhuman identity.22 In the eyes of the court, W was reduced to something neither here nor there. The legal minefield To position the court as a civilized space, Judge Cheung dutifully examined the prevailing international views on transgender people’s right to marriage. As in any similar exercise in a judicial review, this canvassing of established international practice and prevalent legal opinions was necessary to lay the foundation of a court’s judgment. In the legal picture painted by the judge, we were informed of several crucial facts. First, the Hong Kong Marriage Ordinance was first enacted in 1875, following nineteenth-century UK laws of the same kind. In addition, Section 20(1) of the Matrimonial Causes Ordinance states that a marriage shall be void on the ground that “the parties are not respectively male and female” (paras. 50, 51, 62, 109, 116). Second, the imperative to nullify a marriage if the married couple is found not to be a man and a woman was derived from the landmark case of Corbett v. Corbett decided in 1970. In Corbett, the decision to nullify the marriage—a decision that amounted to a rejection of the right of transgender people to marriage—was ultimately based on the importance the Court placed on the capacity for “natural heterosexual intercourse” (paras. 58–60). Third, as influential as Corbett has been around the world in similar and relevant litigations, its reception has been mixed. Importantly, it was not followed in jurisdictions including Australia and New Zealand.23 Some US cases also came to a different conclusion from Corbett, whether after referring to Corbett or not (paras. 65–72).

The juris-cultural  129 Fourth, the landmark case decided by the European Court of Human Rights of Goodwin v. United Kingdom (2002), affirmed the transgender person’s right to marriage. Commenting on the Corbett criteria, the European Court was not persuaded that, in 2002, “it [could] still be assumed that the right of a man and woman to marry must refer to a determination of gender by purely biological criteria” (para. 76–81). As a result of Goodwin, at least 54 percent of the Contracting States of the European Convention have permitted postoperative transgender people to marry those of the opposite sex to their assigned gender. All forty-seven Member States of the Council of Europe are now required to give full legal recognition to a change of gender and to respect the right to marry of a postoperative transgender person in his or her acquired sex (para. 96). Fifth, in the same year as Goodwin, the UK case of Bellinger v. Bellinger (2002) held a ruling that continued to adhere to the Corbett criteria. The Bellinger Court pointed out that legal recognition of marriage is a matter of status and is not for the spouses alone to decide; it affected society and was a question of public policy for Parliament (para. 74). Sixth, around the world today, other countries that hold the positive view as in Goodwin include Canada; South Africa; Israel; the United States (except three states); and in Asia, Japan, South Korea, Malaysia, Singapore, Taiwan, and Mainland China (paras. 97–103). What one gains most from this picture of the legal landscape is the simple realization that marriage is a constantly evolving institution. The biologistic restrictions of marriage of the bygone era—restrictions based on chromosome, gonads, genes, and procreative capacities— can no longer define the contemporary shape of marriage. Sweeping medical, social, and cultural changes in marriage also abound: On one hand, genetic engineering research, prosthetics, and artificial insemination have altered the traditional understanding of “human”; on the other hand, changing notions of family, the practice of cohabitation, childless marriage, and so on have given us a new image of marriage as practiced in real life (see also Wan, 2010). Moreover, from the facts already mentioned, there seems to be a harmonization of the scientific, sociocultural, and legal arenas to recognize the evolving nature of marriage, leaving any view that wants to remain or dwell in outdated definitions and practices less and less acceptable. Cases such as Corbett are, therefore, seriously outdated. In fact, the challenge of Corbett as a reliable reference arose in the appeal proceedings for the W case. The International Court of Justice (ICJ) issued an intervention by way of written submissions to the Court of Appeal and argued that Corbett should not now be regarded

130  The juris-cultural as good law in Hong Kong because it had been overturned by the ­European Court of Human Rights in Goodwin. The ICJ submits, Internationally, there is a strong trend toward recognition of an individual’s new gender by changing the gender indicated on birth certificates and other identity documents. The change of official identity documents is closely linked, in turn, with an ­individual’s ability to marry a now opposite sex partner … Most Asian countries permit a transgender individual to marry in his or her acquired gender or have erected no legal barrier. (W, CA, paras. 147–49) Thus, the international legal consensus clearly challenges the relevance of the Corbett decision to the contemporary social landscape of gender and marriage. How to “change” without change Despite the many rulings around the world that have favored transgender people’s right to marriage, the judge chose to establish his judgment through the Bellinger case—the rare instance in the international legal landscape that adhered to the 1970 Corbett decision—to raise an argument that Corbett still represented the present state of the law. He writes, Given the close resemblance between Hong Kong and the United Kingdom in terms of the law of marriage, and the close link between the common law in Hong Kong and the common law in England, at least prior to 1997, it is unrealistic to suggest that ­Corbett did not represent the state of Hong Kong law prior to 1997 or, that it does not represent the present state of the law here, subject to any possible change thereto. (para. 121) With regard to the “possible change thereto,” the judge decided to ignore evidence of undeniable and widespread changes in marriage laws and practices and argued that there is a limit to what an updating construction can do. What is not permitted is to alter the meaning of the words used in the enactment in ways which do not fall within the principles originally envisaged by the enactment. (para. 127) and “interpretation is ultimately a matter of construing the relevant text according to its plain meaning” (para. 134).

The juris-cultural  131 Two constructions by the judge regarding the need to subject an outdated legal view to “possible change” must be noted. First, his idea of “change” is, paradoxically, regressive. To him, an “updating construction,” which is a legal device used to reframe a law as time passes, falls on “originally envisaged” principles. In this way, the original ­nineteenth-century principle of marriage-for-procreation, enshrined in Corbett in 1970, is used by the judge to assess the need for updating the meaning of marriage in the twenty-first century.24 In the appeal court, the judges upheld this decision to allow the statute as “always speaking,” meaning that “the court should construe it in accordance with the need to treat it as continuing to operate as current law” (W, CA, para. 73). Second, the judge’s idea of “interpretation” is, paradoxically, denotative. Charging the court with the responsibility to interpret the law afresh is a primary objective of a judicial review. In essence, what was presented to the Cheung court was an opportunity to consider the legal ground for a reinterpretation of the meanings of sex, gender, and marriage. Yet the path of reasoning taken by the judge is one of searching for “plain meaning” in the face of mammoth linguistic, social, cultural, and legal changes to the words “man,” “woman,” and “marriage” since the drafting of the relevant marriage laws in the nineteenth century. Again, in the appeal judgment, the Court refused to budge on this point, arguing that The fact that a post-operative transsexual is generally known as a “sex-changed male/female” suggests that the persons is not regarded, as a matter of ordinary language, as having truly acquired his or her post-operative sex. That this may be a prejudiced view, and one which should no way be encouraged, is not to the point. The simple fact remains that the contemporary meaning of the words “man” and “woman” has not shown to have expanded in ordinary, everyday usage to include a post-operative transsexual man or woman respectively. (W, CA, paras. 92, 93) We may thus describe the various judges’ “method” of adjudicating “change” as backward referencing and linguistic de-connotation. If this is a permissible and legitimate legal method, then a strict, unwavering, and dogmatic adherence to the plain words and constructions of doctrines should be tried. The law is not part of society In his finding, Judge Cheung reiterated his commitment to public reasonableness by diverting the question of the constitutional validity of

132  The juris-cultural the current marriage laws in Hong Kong to the broad and difficult to define sphere of “societal consensus.” Yet he proceeded to pen a statement that, nonetheless, reveals his own assumption about what that “societal consensus” in Hong Kong might be The all important question is, therefore, whether we have, in Hong Kong, reached a point where the type of transgender marriage under discussion is no longer regarded as repugnant to our society’s understanding of the institution of marriage and its essence. (para. 206) Although it would be difficult to argue against the fact that transprejudice is rampant in Hong Kong, the court, by lifting itself away from the social sphere, became either complicit with the implied uneducated ethos of the masses or outright indifferent to it. Again, by positioning the court, and the fact of its power, as insufficient to effect change, the judge redirects attention away from the Court’s duty: The versatility of the constitutional right to marry does not give the Courts a judicial licence [sic] to engineer a fundamental social and legal reform of the institution of marriage. In other words, what is constitutionally guaranteed is the right to participate in the institution of marriage as informed by the contemporary societal consensus, everything else being equal. Absent any compelling reasons, the constitutional guarantee does not mean that a Hong Kong resident can ask a Court to construe the right to marry in such a way that does not enjoy contemporary societal consensual support, and, in substance, to effect a fundamental social and legal reform of the current institution of marriage to accord with the resident’s idea of what it ought to be. Nor does the guarantee give the Court a judicial licence to bring about a fundamental social and legal reform by interpreting (or re-­interpreting) the right to accord with the Court’s own notion of what the institution of marriage ought to be. That, it must be emphasized, lies outside the Court’s constitutional remit and institutional capability. It is a function that properly belongs to the Government and the Legislature, which, as mentioned, is at liberty to relax or otherwise liberalise the existing marriage law in accordance with its view of the public good. (para. 192) Repeatedly, the judge followed the normative approach prescribed by the Department of Justice to defer responsibility to the legislature and government and assigned them the moral duty to ascertain the majority’s view to determine whether a restrictive or a more

The juris-cultural  133 generous statutory interpretation of the marriage laws should be made ­ ossible.25 Justifying this approach, the judge reasoned: p I have not forgotten that fundamental rights are an exception to the democratic principle of majority rule. Some rights are considered to be so fundamental that even the majority of a society cannot, or cannot without justification, take them away from the minority. However, one is not here concerned with determining whether a fundamental right may be restricted according to the wishes of the majority. Rather, one is here to discover the present day boundary of the social institution of marriage as is understood by society or a majority thereof, and to give the fundamental right to marry a contemporary context or meaning that conforms to the social institution as it is understood now. (para. 217) How do we reasonably make a hairsplitting distinction between the need to discover the present-day boundary of acceptability as “understood by society or a majority thereof,” on one hand, and the necessity of “determining whether a fundamental right may be restricted according to the wishes of the majority,” on the other hand? How is the deferment of judgment to the general public not a way to “let the majority rule in by the back door” (Emerton, 2010)? How much could the right to marry possibly mean if it resorts to seeking public approval, in the denial of a person’s wish to choose whom to marry? If we follow the judge’s logic, in historical terms, how could a groundbreaking human rights case such as the US Supreme Court case of Loving v. Virginia (1967) legalizing interracial marriage ever arise under the prevailing “societal consensus” of 1960s racist ­A merica? In the Court of Appeal, the judges concurred with the original ruling, adding that a change of the law of the nature sought by the appellant raises issues of public policy and is not for the court to effect such a change by statutory interpretation. It is a task which, if it should be undertaken, should be left to the legislature. (W, CA, para. 112) It is important to reiterate that W’s case was not one of attacking the binary heteronormative nature of marriage, the consanguinity contract, or any of the other gatekeeping provisions of the marriage laws. Judge Andrew Cheung’s inability to conceptually differentiate same-sex marriage from W’s wish for a heterosexual marriage notwithstanding, he resorts to the fear tactic derived from erroneous inferential logic:

134  The juris-cultural One must recognise the potential breadth of the applicant’s argument, which essentially downplays the significance of procreation and emphasizes on the aspect about affording mutual society, help and comfort. The same logic, and the same argument, would appear to justify also a pre-operative transsexual person marrying in his or her preferred sex, as well as other forms of same sex marriage and even polygamous marriages (whether same sex or heterosexual). (para. 206) One of the rhetorical partners to the argument supporting the “tyrannical majority rule” is the “slippery slope” projection. By confirming the boundary-setting power of the majority, the argument deduces that any force that manages to chip away at the boundary of the majority would embolden, rouse, and sanction other unruly forces to do the same, leading to total social collapse. The lethal power of the majority rule, therefore, lies in its ability to produce and escalate the fear of the minoritized other.26 Conclusion In this case study, the critique of the lower courts’ triangular defenses of marriage to the exclusion of minority rights—that is, back-­ referencing to outdated originary meanings of legal constructions, reliance on “plain meanings” that backfire, and divergence of judicial responsibility to the realm of “societal consensus” (a divergence plainly antithetical to the basic ethos of rights thinking)—shows how the courts were out of step with the prevailing international view that has granted recognition of transgender people’s rights of marriage. Robyn Emerton (2010, 12) is correct in suggesting that “the [CA] ruling seems to have tapped into the public conscience, arguably igniting a general sense of injustice in denying W the right to marry.” It is not hard to imagine that as feelings of injustice grow in the populace out of their sympathy with Miss W’s plight, public debates will arise. In fact, they have (see, for example, Collett, 2010; 2011; “Readers’ comments,” 2010; Siu, 2010). Such debates may help illuminate the moral argument that recognizing the right of a transgender individual to marry another person in a voluntary hetero-union will not diminish the validity or dignity of conventional marriage, any more than recognizing the right of an individual to marry a person of a different race or nationality devalues the marriage of a person who marries someone of his or her own race or nationality. On the surface, marriage is reaffirmed through uncomplicated public sympathy. But, in fact, the

The juris-cultural  135 definition of marriage, including the definition of who is worthy of getting married, has opened up considerably. It might appear that Miss W’s legal case could be traced to her own claim of normativity, that is, by positioning herself as an “ordinary” woman, she in no way challenged an “ordinary” heterosexual marriage institution. One might intuit that Miss W’s case was built on gender, sexual, and institutional conservatism. Yet, when reading the politics of the case more subtly, we find that the challenges that Miss W sought represent precisely a form of political interruption through a radical redefinition of “woman” and “heterosexual marriage.” Hers is not a simple politics of resistance-by-substitution (i.e. substituting genders in a marriage act) nor is it a politics of discursive inversion (i.e. claiming discursive supremacy of the term of transgender to topple and denigrate normative gender terms in the normative ideology of marriage). Rather, the transgender challenge to marriage is the politics of subversion par excellence. It works not by substituting or inverting the centers of power but by insinuating into the discursive field an internal reconfiguration of power itself. In this view, the claim that Miss W’s case is merely an attempt to enact a “new normal” is untenable because this linguistic configuration still retains the normativity of the normal. Coda How was the Miss W case “won” in the CFA, a judgment that was handed down on May 13, 2013? Chief Justice Ma and his colleagues on the bench did not refute the validity of Corbett but ruled that its approach to confine transgenderism to merely biological realities reinforced by the fulfillment of “Christian duties”—to the exclusion of social and psychological facets of transgenderism—was inadequate for the purpose of determining the marriageability of a transgender person. Supplementing this was another agreement of the court to allow for the preservation of the statutory construction of marriage as involving “a man and a woman.” Yet the court rebuffed the argument that the meanings of man and woman be read merely through “ordinary, plain meanings.” The court, in other words, refused to accept what I earlier called a “de-connotative” approach to understand those categories. In short, these two positions advanced by the CFA—­ affirming the applicability and legitimacy of Corbett to the Hong Kong situation and affirming the union of two genders in marriage— nonetheless, sought to rework the statutory constructions of transgenderism to encompass sociopsychological and cultural-interpretive

136  The juris-cultural dimensions. This brought about a major blow to the statutory framework advanced in the lower courts. But the W case was finally won not on the court’s reworking of statutory constructions: The CFA ruled the position of the Registrar of Marriages unconstitutional, that is, counter to fundamental rights as guaranteed in Hong Kong’s Basic Law (specifically Article  37) and in the Hong Kong Bill of Rights (specifically Article 19(2)). In other words, the Court took a legal essentialist approach, which preserved the unadulterated fundamental freedom to marry (see Chan, 2007). While this essentialist approach allows for restrictions, such as the requirement of monogamy, legal age of marriage, and the like, it cannot do so by reducing that freedom to such an extent that its very essence is impaired (W, CFA, para. 65). In a case in which the impairment of fundamental rights has been camouflaged by the requirements to adhere to outdated understanding of marriage, to the “de-connotative” meaning of a person’s lived gender, and to “societal consensus,” it seems that the CFA held its ground by examining closely whether those requirements went too far and threatened the rights concerned. In doing so, the court has addressed the key criticisms advanced in this case: 1 That marriage has to a certain extent been deinstitutionalized (i.e. answerable only to the state power of regulation) to encompass vast changes brought about by medical technologies, as well as men’s and women’s concepts of cohabitation, reproduction, divorce, and so on (see W, CFA, paras. 84–89); 2 That a postoperative transsexual woman has not only not deviated from “womanhood” as a necessary category in marriage but has also transformed its meaning from the inside out. Aside from the legal recognition of her female identity as bestowed by the state (e.g. issuance of a new identity card and legal acceptance of her using a public toilet for women), Miss W is a woman in otherness. Her lived gender asserts her womanhood as a new sign fit for marriage (cf. W, CFA, para. 99); 3 That reliance on “societal consensus”—that is, to allow the will of the majority to dictate who can and cannot enjoy fundamental freedoms—is inimical to minority rights doctrines and adjudicative responsibility (W, CFA, paras. 113–16). By taking these positions, the court has sent a strong message of antidiscrimination to society. Yet, as indicated at the beginning of this case study, this was accomplished, unfortunately, through an

The juris-cultural  137 ideological divide that continues to negate same-sex couples’ equal right to marriage. Nonetheless, the legal team’s approach of disarticulating Miss W’s case from being a gay marriage case has set in motion new legal thinking. It is hoped that the abandonment of legal anachronism, the reexamination of rigid definitions of gender and sexual intimacy, and the striking down of the tyranny of majoritarianism as seen in the CFA ruling will produce a ripple effect that will coalesce with the larger struggle for legislation against all forms of discrimination, a movement that is already underway in Hong Kong.

Case 5: A perspective on the field of weiquan This case study is about the rise of “rights consciousness in China.” As we can imagine, it is a nascent field of research, for all sorts of conceptual and practical access reasons at the individual, professional, and political levels. It is an emerging field also for the reason that the rise of human rights sensibilities among the citizens of the PRC who have gone through successive waves of social upheavals under a Leninist one-party polity for more than half a century, is a fairly recent development in the context of the rapidity of legal reform in the country. My focus is to move us from some of the material political conditions of the “rights defence movement” in China—or weiquan (維權) ­movement—to considering the more cultural-symbolic dimensions that can speak to the intricate links between China’s legal reform, on one hand, and rights defense practices, on the other hand, or between structures and agencies. At the center is the class of lawyers known as weiquan lushi, or rights defense lawyers. I am particularly interested in the peculiar connections among “sovereignty,” “moral efficacy,” “citizens’ rights,” and the problem of “sacrifice” (and “self-sacrifice”), and how weiquan lushi is configured in that assemblage. Agents of lawful resistance Let us begin with what is widely perceived as a paradigmatic scene in Chinese political life at the grassroots level today. Today, the scene of volatile popular unrest staged by villagers, farmers, migrant workers, homeowners, small investors, families of natural disasters, victims of industrial catastrophes, and ostracized ethnic minority groups across China can be said to be emblematic of the economic

138  The juris-cultural and political fissure opened, such as collective wounds, by the country’s rapid economic development (see Hess, 2010; O’Brien, 2009; Michelson, 2007; 2008). To what extent is the law central to grassroots uprising in recent years? Is the disorderly scene of popular protest, punctuated by the image of a crowd of villagers or workers in a chaotic jumble of motions and altercations against the police’s blockade, a scene of lawlessness? Or, as Kevin O’Brien and Lianjiang Li (李連江) (2006) in their book Rightful Resistance in Rural China have starkly put it, the villagers and workers have been “driven to protest” after they have duly exhausted all legal remedies afforded by the array of so-called rights protection laws in the country (see also Li, 2006; 2010). Or, as Merle Goldman (2007) implies through his apt phrase “from comrade to citizen,” grassroots organizing in China arose chiefly through the self-­ interpellation of citizenship awareness and not boorish gangsterism (see also Perry and Goldman, 2007; Cai, 2005). The right to petition, to engage in mass demonstrations, to utilize administrative lawsuits, to assemble and form associations, and to use elections to throw out corrupted officials: There is indeed a plethora of legal rights recognized by the CCP. However, O’Brien and Li’s analysis reveals the hollowness of those rights and suggests the ways in which the very rights system, in fact, deepens inequality. Sun Liping (孫立平), a sociologist at Tsinghua University, puts the rising number of popular unrest across China to be over 180,000 in 2010 alone (Orlik, 2011). The number of “mass incidents” has likely since increased. The Chinese Academy of Social Sciences defines “mass incidents” as incidents involving more than 100 protesters— some have involved more than 10,000 (see Hou, 2014). In this large number of episodes of volatile unrest, the staking of a variety of public claims by the masses is bolstered by the growth of a relatively new class of lawyers who are outfitted with strong legal knowledge, a passion for social justice, and as Fu Hualing and Richard Cullen (2011) say, tough skin (see also Xing, 2014). In China (as in Hong Kong and Taiwan), they are often called “weiquan” (or rights protection) lawyers. But in the international arena, they are usually dubbed “HRD.”27 The separation of the two labels, in fact, marks a real political difference. We should see the act of “weiquan” and that of “human rights defense” as two poles in the same ideological field that responded differently to the legal reform within China itself. Clearly, the insistence on the label of “human rights” by international human rights NGOs and China watchers abroad to name the work of the Chinese weiquan lawyers is to put ideological pressure on the PRC to recognize the (Western) liberal democratic conception of civil and political rights. Yet far from

The juris-cultural  139 being something coming from the outside, this ideological assertion has also arisen from within the PRC’s legal reform process, which has given a proper emphasis on citizens’ rights. While we have reasons to believe that the state prefers “rights protection” over “human rights defence,” we must see that by now the latter, less politically pleasant, term has, in fact, been incorporated into the idiom of legal rights consciousness among ordinary Chinese citizens. After all, by April 2009 when the PRC issued a national human rights action plan, it became one of only twenty-six countries that responded to the UN’ call to establish a national human rights plan (a call that dated since 1993). In August 2016, the State Council of the PRC issued its third national human rights plan for the period of 2016–2020 (the previous two covered the periods from 2009 to 2010 and 2012 to 2015). Like seeds in a crop, the consciousness of “human rights defense” sprouts from the soil of legal reform (see Benney, 2007). The significance of seeing human rights as a growing domestic idiom is that it allows for variance in the understanding of freedom and justice available to the vernacular imagination. Weiquan is characterized mainly by actions of legal dispute in the interest of protecting citizen rights against the state or against corporate bodies (see Fu and Cullen, 2008; Kelly, 2006). Its political objective goes beyond advocating the rights interests of specific classes of people and the injustices they sustain, to reach a deeper level of structural reform of the law to force the state to recognize citizen rights. From the various approaches and tactics adopted by the weiquan lawyers, we can see that they cannot be regarded as absolutely antagonistic to the Party or corporate bodies. In fact, as David Kelly (2006) reminds us, in modern China, the attorneys, and previously the intellectuals and economists, have all had their hour in the sun because of the strategic assets they command. Briefly, the 1990s saw a shift in the center of intellectual influence from philosophy—with which Mao had had a lifelong romance—to the rise of economics. Gaining favored access to government and international funding, and by setting up important think tanks, Chinese economists emerged as key spokespersons in public affairs. However, being alienated from ordinary people’s suffering and blind to genuine conflicts of interests, the appeal of their academic thinking was waning by the end of the decade. Socialist economics gave way to the prominent rise of socialist law, especially in areas of constitutional and criminal procedure laws, culminating in the explicit inclusion of human rights legal protection in the country’s revision of its Constitution in 2004. All of this set the stage for a powerful new class to emerge in the intellectual arena: legal scholars and, increasingly, practicing

140  The juris-cultural lawyers. Lawyers, like economists and philosophers, are part of what Kelly calls a “status system” shaped by a hierarchy of property forms politically imposed by the state. To the extent that this hierarchy has been preserved, key segments of the intellectual stratum remain beholden to it: “The habitus or default behavioural and attitudinal stylization of most intellectuals thus remains ‘in tune’ with the officially ordained models handed down from the past” (Kelly, 2006, 199–200), even as being “in tune” does not necessarily mean that the intellectuals are playing the same piece of music as the state. To the legal class, since the area of constitutional law has always been a powerful vehicle of legal reform program, there has been an increasingly visible promotion of jurists into the formal political apparatus. (In fact, some weiquan lawyers have worked for government legal departments or received recognition from the state on their weiquan work, such as Xu Zhiyong, Zhang Xingshui, and Zhang Lihui.) Weiquan lawyers are, therefore, the ones who help to project the legal profession into the practical struggles for rights defense, whose intellectual politics is actually receiving powerful impetus from citizen movements, which are, in turn, encouraged by the state eager to implement popular legal education, including the education of the masses about their property rights, rights to expose and report police abuse, and so on. Furthermore, in the cultural sphere among intellectuals, these lawyers who work within the cultural parameters set by the reform program can be considered revivers of the Republican ideals of “tianfu quanli” (heaven-endowed rights and benefits; 天賦權利)—here echoing such intellectual figures as Chen Duxiu (陳獨秀) and Liang Qichao (梁啟超)—and also “minquan” (people’s rights; 民權)—referencing Sun Yat-sen (孫中山) and Hu Shi (胡適). At any rate, new action spaces have been opened up for the lawyer class, allowing them to speak as educated citizens and as counsel of citizens, rather than as elite advisers or detached professionals (Kelly, 2006, 200). Hong Kong-based legal scholars Fu Hualing and Richard Cullen (2008) argue that weiquan is a court-centric approach to conflict resolution, through which lawyers choose and exploit individual cases and use legal and extralegal means to pressure decision-makers to maximize the rights and benefits of a client and at the same time achieve a larger objective. Therefore, a key characteristic of weiquan lawyering is that lawyers, by and large, accept the existing political system and seek justice and rights within the constitutional constraints and legal framework of the PRC. Weiquan lawyers cannot be regarded as absolutely antagonistic to the Party or corporate bodies, even as they mobilize public interest litigation as political resource to challenge the

The juris-cultural  141 authority (see also Erni, 2011; Fu and Cullen, 2011; Su and Xin, 2010; Feng, 2009; Hand, 2006; Harris, 2002). Legal education in China I believe that it is instructive to take a brief detour here to look at the history of legal education practices in China, in order to give us a proper background to understanding how certain elements of that history had given rise to the idea of weiquan among the Chinese law students. The question of university legal education in China has become crucial through the telltale scene of citizens’ collective mobilization catalyzed by weiquan politics. But first, a brief chronology of the development of law in modern China would be necessary here. Consistent with many other legal historians, Chinese legal scholar Gao Quanxi (2012) offers such a chronology in five periods: 1 1949–1953: Abolition of the legal system of the Kuomintang (Nationalist Party) cleared the way for establishing an early ­Soviet-styled socialist legal system at the dawn of the PRC. 2 1954–mid-1957: Marked by the promulgation of the first constitution of the PRC in 1954, this period has been regarded as “the golden age of legal development in China.” 3 1957–1965: The breakdown of the Sino-Soviet relationship led to the abandonment of the Soviet legal model and the consideration of introducing Western legal concepts into China. But the “­anti-rightist movement” of 1959 halted the reform efforts. 4 1966–1978: With the Cultural Revolution starting in 1966, “[l]aws were overthrown, the Ministry of Justice (MOJ) was disbanded, law schools were closed, and members of the Chinese legal profession had to seek new non-legal careers” (Gao, 205). 5 1978–the present: Advancement of the “rule of law” reform under the leadership of Deng Xiao Ping and beyond, which was marked by the passing of hundreds of new laws, revival of the MOJ, restoration of the national court and lawyering systems, and the rapid increase of law schools. The reform of the current legal system began in the late 1970s, which has been guided by a complex combination of factors: a socialist polity; the historical inertia of various institutions built on that polity; the rapidly emerging market economy requiring a modern, stable, and coherent legal system; the differentiated impact of imported legal knowledge and practices; and, finally, the difficulties of a one-party

142  The juris-cultural political system that grants limited independence to the legal apparatus and so on (see He, 2005; Wald, 2008). Steeped in a long historical tradition that regards the law as largely a set of doctrinal and moral principles, China has only in recent years begun to install changes to improve administrative law, due process, clarity of the roles of procuratorates, judges, and lawyers, and other practices for establishing judicial legitimacy. While these features are taken for granted in the positive law tradition of the West, they have been expressly formulated in a China that faces the daunting task of having to rebuild key legal institutions and procedures that were entirely destroyed during the Cultural Revolution. Currently, there are nearly 600 law schools and law departments in the country’s universities, training more than 300,000 law students. Yet the more legal education in the PRC has undergone reform, the more it exposes the highly disputed meaning of “rule of law” in a ­single-party state that still dominates the entire judicial apparatus. This has resulted in an increasingly ambiguous, if not perilous, role of law professionals, especially in the field of public interest justice. Two major questions underline this section. First, what role does higher legal education play in the PRC’s national legal reform process, when legal education falls under the jurisdiction not only of the Ministry of Education but also of the Ministry of Justice? Second, how do we make sense of the connection between legal education and the rise of rights consciousness among the masses? In other words, in what ways are the university law schools and their educational practices connected to weiquan politics? Is there such a connection at all? And when the pedagogy of “clinical legal training” began to enter China in the early 1990s, was it able to articulate its concerns to the citizens’ rights-based movements?28 Due to space limitations, this section remains largely diagnostic. University legal education in the PRC Weiquan legal practices operate on a highly slippery terrain of C ­ hina’s legal reform and do not seem to bear any significant relationship to legal education. There are three interlocking reasons for the failure of articulation between legal education and weiquan politics. First, China’s university legal education, even its clinical programs, is insufficiently politicized around rights-based teaching and learning. Although the devolution of power from the state has granted law schools semi-­autonomy to shape their own curriculum, the teaching of law in China has yet to move beyond the discourse of intellectual complexity

The juris-cultural  143 to a practical consideration of the legal and political relationship among law ( fa), public interest (gongyi), and rights (qun). Instead, the triangulation of these three central concepts has been very rare in China’s law schools. Second, the capacity of university law schools to respond to social change remains unclear, particularly in conjunction with episodes of citizen unrest. We have yet to assess whether the growing popular rights consciousness in the country can be translated into legal precepts that can be taught and discussed in law schools and, therefore, have some impact on legal pedagogy. Third, and this seems to be the most important reason, Chinese law students are caught in what I call a twin trap, a combination of a “capital process” of China’s economic reform and a “professionalization process” of its legal reform. This twin trap evinces a fundamentally economic logic of legal education that is incompatible with weiquan politics. It may, therefore, be premature to think that weiquan legal practices are coterminous with the ethos of rights in law school training beyond the limited concern for property interest rights. Following the restoration of the nation’s legal system in 1978, legal education in China experienced something of a renaissance. The expansion of law schools and the popularity of the law major have been dramatic. In 1977, the law departments at Beijing University and Jilin University were the only two places offering legal education in China (Mo and Li, 2002, 190). At that time, there were only 600 law students in the entire country (He, 2005, 145). From 1979 to 1989, China’s law departments in universities and other nonuniversity institutes had produced 191,160 law graduates. In the 1990s, law has become one of the most popular subjects in universities and law teaching institutes. Between 1994 and 1998, for instance, the undergraduate law student population mushroomed by 75 percent, jumping from 45,000 students nationwide to 79,000 (Chen, 2004, 194). A survey carried out in 1999 stated that the legal profession ranked thirty-seven out of fifty most popular professions in terms of employment opportunity (Mo and Li, 2002, 190). Catching up with this enormous popularity, various universities quickly established their law departments, schools, and faculties. By 1999, it was estimated that the country had more than 300 such law teaching establishments (Mo and Li, 190). By the end of 2001, there were law schools and law departments in as many as 25 percent of all higher education institutions in Mainland China (excluding Hong Kong and Macau; Chen, 194). In 2006, the estimated number of law schools and law departments in the country’s universities ranged from 400 to 600, training between 200,000 and 300,000 law students (see Hou, 2006, 260; Irish, 2007, 250). This latter figure stood for about

144  The juris-cultural one in sixty of the total Chinese university student population (Hou, 2006, 295). Today, to be a member of the professional legal class also means carrying a sense of honor and dignity in helping to transform the Maoist legacy of legal instrumentalism—even legal anarchy—into a respectable, modern, and rule-based system of law. Young idealists often regard public accountability to be the primary significance of the legal system, specifically by restricting corporate and Party corruptions. Yet this fervor must not be overstated—observers have repeatedly noted that the legal education system in China today is not primarily aimed at producing fighting lawyers. Idealistic students are a minority in China’s law schools; many law students, in fact, study law to aspire toward acquiring a middle-class income through private practice or a government administrative job.29 Hou Xinyi, a professor at Nankai University Law School, spoke openly about the pragmatic motivations among young Chinese to study law: good income and more employment opportunities. While he does note that students acquire legal knowledge to “contribute their share to China’s democracy, law, and justice,” it is no secret that “law graduates are among the few groups of graduates who can guarantee desirable employment and a good income” (Hou, 2006, 295). In China, law graduates often choose to become state public servants and managers in corporations. Thus, the link between obtaining a law degree and serving in the legal profession as attorneys or procurators is unclear. If one looks at the entire structure of formal, university-level legal education in China, one finds two major types of institution where law is taught. One is the elite political–legal institute (only about five or six in the entire country); the other is the public state-owned university (about 1000 in the country). While the first type, which is under the jurisdiction of the Ministry of Justice, focuses on education of future judicial talents, the second type, administered by the Ministry of Education, mainly prepares law students for careers as future faculty members, research fellows, and public servants (Hou, 295; Chen, 195). As a result, the emphasis of the majority of legal education establishments is not on training practitioners to serve in courts, law firms, procuratorates, or organs of judicial administration. Coupled with law students’ pragmatic desire for middle class, secure employment, China’s legal education, spectacular as it has been in terms of demand, is disjointed from the world of professional law practice. It, therefore, goes without saying that the legal profession in China has had a negligible influence on legal education. Returning to the idea of the influence of the “capital process” in legal reform, it seems clear

The juris-cultural  145 that the robust rise of popularization of legal education—itself a sign of market orientation in legal training—has only a weak connection to fighting for social justice or the politicization of legal work. Meanwhile, with chronic underfunding from the government in legal aid services, a gap has been created for law schools in China to seriously develop clinical legal education. Clinical legal education is not simply a pedagogical method but concerns the philosophy about the role of lawyers in society. It is a liberal, reformative method of teaching and learning in law schools, in which law students perform pro bono public work so that they can provide services to communities through public interest lawyering. In this way, it sensitizes them to a view of legal education as a vehicle for social change. The clinical legal education movement in China: the perils of professionalization? In China, experimentation with university-based clinical legal training began in 1992, with the establishment of the country’s first clinical program at the Wuhan University Center for the Protection of Rights of Disadvantaged Citizens (“Adopting,” 2007, 2139). Two years later, once again as part of a national legal reform effort, the Ministry of Justice initiated the building of a national legal aid system in 1994. Since then, under the jurisdiction of the Ministry of Justice as well as the direction of mass organizations such as the All-China Federation of Trade Unions and the Women’s Federation, the number of legal aid centers nationwide has grown to over 3000. Moreover, between 2000 and 2002, support from the Ford Foundation has resulted in the explicit emulation of US clinical legal education programs in about a dozen universities, which have formally integrated clinical training and service learning into their law school curricula. Together, those universities founded the Committee of Chinese Clinical Legal Education (CCCLE) in 2002 to promote and coordinate the development of clinical legal education in China.30 In all, clinical legal education has advanced significantly in the course of a single decade. By 2007, it was reported that more than sixty-four programs of clinical legal education have been integrated into law school curricula throughout China (“Adopting,” 2155). Today, the Ford Foundation continues to be the main sponsor of clinical legal education in China. What does clinical legal education entail in an environment with a state mandate, a tremendous demand for legal aid services ( falu yuanju) among the poor, the migrant workers, women, and the disabled (collectively known as roushi tuanti, vulnerable groups, in China) and

146  The juris-cultural even a political climate increasingly agitated by the weiquan movement? To begin with, consider the basic picture of clinical legal education in China. A typical clinical program in China is often embedded in the law school curriculum as an elective taken by students, typically in their last year of undergraduate study. While many students are interested in the clinical program, the actual proportion of law students who are selected into the clinical option is low. In one case in the Sichuan University Law School, only twenty-six students were selected to attend the clinical elective of 191 third-year students in 2003 (Abramson, 2006, 322). Supervisors teach clinical methodologies as well as acting as consultants in the in-house legal aid center built as part of the law school itself. The center is staffed by upper-level undergraduate and graduate student volunteers, who provide free legal aid services to clients deemed in need of help. In this set up, students typically face three kinds of problem: insufficient and unstable funding due to overreliance on foreign sponsorship; a lack of credibility in facing clients and of formal legal representativeness when they work in a precertified capacity; and a threat to their independence that comes from so-called government supervision, through which the National Legal Aid Center under the Ministry of Justice coordinates and standardizes all clinical legal education programs across China (Phan, 2005). Notwithstanding pressure felt by students, clinical programs themselves face lukewarm support from the law school or department, which often sees them as a “luxury item” made available only to a select group of the brightest students and a space that invites additional government interference (“Adopting,” 2148). Although some success has been felt by clinical programs, which are able to provide an ambitious education through multidimensional forms of community-based engagement with socially disadvantaged groups, this success is often limited to elite law schools in the country. For instance, Beijing University established a partnership with the Qianxi County government in 2001 to open the Qianxi Community Clinic as an experimental site for students to explore models of public interest law, access to justice, and self-governance at the rural grassroots level. Students participating in the clinic exercise multidimensional engagements: Their pro bono services include “litigation, legal consultation and training, mediation in civil disputes, publicizing laws and raising legal awareness, and mobilization of citizens for collective representation of their interests” (“Adopting,” 2153–4). Yet this exemplary case is rare; most clinical programs fail to reach the rural communities to offer basic legal aid services, let alone helping to raise villagers’ capacity in self-representation or building grassroots institutions.

The juris-cultural  147 So, what do we take away from this brief foray into the history of development of legal education in China? Today, the debate among Chinese clinical legal educators is centered not on citizen access but on the question of clinical students’ professionalization. While the legal clinicians have been touted as “activist academics” or “socially conscious scholars” who engage in “street law” (Phan, 2005), they have not produced a consensus as to whether legal pedagogy or methodology should be knowledge centered or skill oriented. Yet the demand for professionalization has been so strong that clinical programs have been transitioning from lecture-centered commentary (focusing on the exposition of black-letter laws and related expression of legal doctrines) to skills-oriented and interactive style teaching and learning (aimed at creative problem-solving practices). This shift has two obvious ideological consequences. First, clinical pedagogy has been effectively depoliticized as the discussion of law and politics, as well as social justice theories, have given way to the development of practical, service-oriented, lawyering skills. Second, clinical students, now thinking that they are equipped with practical skills, have been more and more attracted to the professional fee-based legal services industry, leaving only a minority of law graduates to enter into the legal aid world. It is in this second consequence that we see a convergence of the capitalization process and the professionalization process at work in legal education. Pressure is thus weighing against attempts to inspire students to sustain public service commitments beyond graduation. The difficulty is directly linked to the phenomenon of weiquan legal practice. Insofar as the weiquan movement of the past decade and a half entails engagement by the legally educated, such an engagement has been limited only to a subculture of legal academics and university clinicians. Weiquan lawyers indeed hailed from public interest legal training: As law school students, they were most likely active in the legal aid clinics, and later, as legal academics, they devoted their research to social justice theories, civil society formation, and human rights politics. To be sure, the broad legal reform aimed at modernizing the polity has been a somewhat risky project, because it illuminates rights abuse while raising rights consciousness among citizens. We can say that the weiquan lawyers emerged from within this opening. This explains why, from the perspective of the state, weiquan lawyers are both anticipated and rejected by the central command of legal reform. Anticipated because the court and legislative reform not only increasingly encourage and recognize the legitimate practice of positivist law, including that of procedural law and legal representation, but also mandate the raising of legal consciousness among what was perceived

148  The juris-cultural as the unruly masses. Yet the same legal reform regime despises the embattling spirit of the weiquan lawyers, especially those who choose to represent “sensitive interests” deemed to destabilize the state—for example, the Falun Gong or the case of Liu Xiaobo.31 Reformers also are weary of the international visibility of weiquan lawyers in the foreign press and on the Internet. Weiquan practice in China goes beyond the practice of shaming the state; it installs into the heart of the state’s legal reform machinery a serious political ambiguity. The “709” incidents When talking about rights consciousness in China, one cannot help but to think about the protracted, interminable, even banal global discourse on “the human rights situation in China.” Many have pointed out that this popular global discourse, which has animated copious writings and moral and political musings especially from the liberal West for several decades, has spawned too little actual political use. Gloria Davies (2010) puts it well when she notes, [T]he sheer weight of … [the] body of critical commentary [on the human rights situation in China]—which generally bifurcates into positive or negative responses to that initial question—has an unfortunate tendency to reduce to a caricature the actual complexity and unevenness of life under Party-state rule in present-day China. (59) We are all too familiar with the annual mutual finger pointing by the US State Department and China’s State Council on “the human rights situation” in each country. Evidently not designed for the purpose of productive dialogue, the annual human rights reports from both countries detailing each other’s human rights violations, followed by a period of media propaganda, are created, in Gloria Davis’ words, “to pursue the purely polemical goal of occupying the higher moral ground in a tit-for-tat annual round-robin of judging the ‘other’ for their human rights transgressions” (59). Nonetheless, the language of human rights clearly continues to carry substantial weight to command the discourse of international relations in our times. One of the pressure points in the more recent round of bewilderment over the human rights situation in China concerns the plight of human rights lawyers. On July 2015, reports in the international arena began to surface of a series of sudden arrests of human rights lawyers across China. In the early hours of the morning on July 9, 2015, about a dozen Beijing-based lawyers and their assistants were arrested. It was reported that after July 9, over 360 lawyers and citizens around

The juris-cultural  149 the country were summoned and subjected to interrogations. The family members of lawyers and rights activists were also implicated and allegedly subjected to threats and intimidation. About forty lawyers were prevented from leaving China.32 Known as the “709 Incident,” the mass arrest resulted in many human rights lawyers detained and charged with subverting, or inciting subversion of, state power. In early August 2016, the Tianjin Second Intermediate Court began rapidly prosecuting and pronouncing pro forma sentences against Hu Shigen (胡石根), Zhou Shifeng (周世锋), Gou Hongguo (勾洪国), and Zhai Yanmin (翟岩民) on charges of “subversion of state power.” The four were given prison sentences of between three and seven years. In November 2016, lawyer Jiang Tianyong (江天勇), who had been working to try to rescue the 709 detainees, was himself put under secret detention in the Changsha First Detention Center. In April 2017, Li Heping (李和平) was given a suspended sentence for “subversion of state power.” In May 2017, Xie Yang (谢阳) was released on probation. Meanwhile, nothing at all has been heard from Wang Quanzhang (王全璋) since his arrest two years ago; the lawyers hired by his family have yet to see him, and no one knows whether he is dead or alive. The Hong Kong-based China Human Rights Lawyers Concern Group (2017) issued a statement upon the second anniversary of the “709 Incident.” In it, it states, In the post 709 Crackdown period, some people believe that the community of human rights lawyers had been dealt with a destructive blow. Some have been delighted at that prospect, some withdrew, and others have changed course. The 709 Incident itself, however, has become the occasion for a number of human rights lawyers to shine through. Those who stuck through when besieged with crisis and danger on all sides are benchmarks for legal professionals in China—they’re the group who most care, most pursue, and are most willing to exert themselves for freedom, democracy, rule of law, fairness, and justice in China. In all, the human rights defense movement in China suffered a serious blow. Fear circulated among the legal circles, including law students in the country’s law schools who might have aspired to practice public interest law (see also Mosher and Poon, 2009). China, as in some other nations, has developed its own approach to human rights, which is clearly bound up with the political and legal defense of its doctrines of sovereignty and self-determination. The human rights defense movement in China, known popularly as the weiquan movement, should be read against this political reality of state sovereignty defense, within the tempestuous history of Chinese

150  The juris-cultural judicial modernity. In the PRC, the legal determinations of everyday life—and everyday rights—are intimately bound up with a grand and long-standing vision of the nation to construct a particular conception and an operating apparatus of legal science adequate to a socialist economy reinforced by an underlying ethos of socialist revolution (Qi, 2011; Huang, 2007; Hou, 2006; Killion, 2005). We are talking about the Party-state’s forty-year “rule of law” reform, which is consisted of the restructuring of the judicial sector’s relation to common people’s struggle for justice, big and small; the making of socialist economic laws; the transformation of legal education; and, of course, the reshaping of international geopolitics (see Clarke, 2007; Cohen, 2006; Weidong, 2004; Alford, 1993). My interest is in the articulation of rights consciousness in China and its critical relation to the emergence, about fifteen years ago, of a network of weiquan movement actions, specifically the actions of a class of lawyers, within the larger machinery of China’s post-Mao legal reform. I suggest that the iconic figure of the weiquan lushi (rights defense lawyers), a figure which is now circulating more and more widely within and well beyond China, especially after the “709 Incident,” should be placed within the legacy of intellectual discourses of rights and morality that have existed in China for well over a century, dating back to the intense deliberations in the May 4th era. A comprehensive understanding of the “weiquan complex” of China, I believe, requires us to understand a certain discursive chain that links the May 4th intellectual discourse on freedom and emancipation, with the revolutionary legacy of Mao and his attack on human rights as bourgeois sloganeering and imperial domination, with the steadfast legalization of civil and political life in post-Mao times, with the sparkling of massive debates about state violence against human rights in the aftermath of the ­Tiananmen events, with the extensive revision of the country’s Constitution in 2004, and finally with the current moment of global and nationalist triumphalism in China. This is the form of political analysis that I am hoping cultural studies and philosophy of communication can bring to bear. In a word, it is about the significance of a conjunctural analysis of a good old problem—that of hegemony—of mapping out what is going on through looking at an assemblage of historical factors, competing discourses and forces, an array of actors and agents, and so on, and of deciphering the intricacies of symbolic and political relations. The dynamic meanings of weiquan With the background sketched above, let me get a bit more specific about the dynamic meanings of weiquan. Modern constitutional and

The juris-cultural  151 administrative law in China present “rights” as something embedded in a fairly eclectic range of frameworks. “Basic rights” ( jiben quanli) is articulated through the civil (gongmin), the legal (hefa), the constitutional (xianfa), and the natural as it is bestowed by heaven (tianfu). Rights (quanli) are, therefore, artifacts binded to these various domains, so that the protection or defense of rights (weiquan) importantly implies the recognition of the civil, legal, constitutional, and heavenly as co-constituting rights and their bearers—“the ­human”—which is the other artifact that moves into the realm of weiquan (see Ding, 2010; Teng, 2009; 2012). Yet the very existence in the Chinese language of the concoction “weiquan” (protection of rights), which is a contraction of weihu (protect) and quanli (rights), and never “weirenquan” (protection of human rights), renders the human somewhat slippery and precarious. The Constitution of the PRC uses “citizen” as the natural coordinating instrument with which the enjoyment of rights is linked. Article 35 of the Constitution, which states, “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration,” inaugurates the subject in the most unobstructed sense as the possessor of a legal life world of voice, mobility, and agency. The word “citizen,” as we shall see, will become fundamentally integral to the weiquan movement. In the various types of public actions conducted by the weiquan activists, “citizen”—not “human” or “people”—has been their central discursive rallying point. Their collective emphasis is on “gongmin” (公民), the direct translation of it being “civil citizen.” Aware of the discursive centrality of citizenship, the weiquan movement is dependent on the official apparatus while attempting to carve out an alternative sense of citizenship within it. In 2003, for instance, a small organization called Gongmeng (公盟) successfully registered as an NGO. Gongmeng refers to “Citizen’s Alliance,” and it rose to some international fame through its work on rights defense cases including the petitioning system, extralegal detention and black jails, forced evictions, migrant workers’ rights, and so on (see Pils, 2015, 259). Its leader Xu Zhiyong later was accused of tax evasion, and the Civil Affairs Bureau used it as the reason for closing down Gongmeng in 2009. (The charges against Xu were later dropped.) This and other incidents illustrate how contentious the expression “citizen” has been. The political threat of the weiquan movement to the state lies somewhere in the movement’s insistence to demand human rights as something directly stemming from a Constitutional basis that enshrines the citizen as the unadulterated bearer of rights (see also Kelly, 2006; He, 2005).

152  The juris-cultural Weiquan and the logic of sacrifice No doubt, in global geopolitics today, the very notion of weiquan has been used to cast suspicion over China’s rise. When seen from a global perspective (especially one dominated by Euro-American hegemony), the rise of the weiquan movement in China signifies that a toll must have been exacted in the process of China’s extraordinary development. In other words, the perception of the rapid rise of the nation as a hegemonic power is associated with a certain degree of restriction of citizen’s rights in the country. It is in this sense that I am speculating that the acts of rights violation tend to lend themselves to what I call “sacrificial characterizations.” For instance, a considerable number of recurring cases of alleged violation of citizen rights in China concern the problem of forced eviction. During the days leading to the 2008 Olympics, for instance, more than 1.5 million families have been “sacrificed” for the nations’ Olympic dreams. New expropriation and eviction laws were quickly passed to help materialize new neighborhoods and lands for building the Olympics infrastructures, after residents and communities have been forcibly removed (Pils, 2016). Weiquan lawyers, civil society critics, and international agencies have described the sacrifice as the epitome of China’s perpetual “crisis of displacements.” In the context of discussing law and punishment, Melissa Ptacek (2011) remarks on how “law ritualizes human activity on numerous levels, prescribing (though with varying degrees of stringency) a range of ritual or ritual-like activity that organizes space, time, procedures, and powers in authorized and precise ways” (33). The most visible example of legal ritualism in punishment is the death penalty, or more accurately, the ritual aspects of trials and of the preparation for and meticulous implementation of the execution process. If forced eviction is seen as a type of punishment, justified on the ground that resistance to removal was taken by the state as an illegal act, then the range and order of the processes of eviction in terms of the procedures of communication, the speed, rhythm, logistics, and experience, do constitute elaborate sacrificial rituals (see, for example, Pils, 2016; Hankins et al., 2014). Yet interestingly, Ptacek (2011) points out that the ritualized sacrifice very often works to downplay the act of violence. The ritualistic aspects work to organize a delicate balance between the enactment of violence or power, on one hand, and the necessity of hiding the violence, on the other hand. She argues that, for instance, in the case of capital punishment, the constitutive concern is “to banish acts of murder and savagery from what is human” (34). This explains why the person receiving the execution is said to be “put to” death; the

The juris-cultural  153 elaborate precision of a sacrificial ritual of “putting to death” of a person can serve to detract, obscure, or even deny the fact of killing. I offer this bit of insight—a detour really—on the relation between the taking away of citizens’ rights and the putting to them the ritualized sacrifice, in order that we may recall Kenneth Burke’s (1935) study of the “scapegoating mechanism,” which he sees as the origin of sacrifice and the foundation of human culture. Extending from Burke, the French historian and literary critic René Girard (1972) outlines in his book Violence and the Sacred that human competition for same desires, such as security and stability, pushes the desiring parties to a maximal point of conflict, at which point the scapegoating mechanism is triggered. At this point, one person or group is singled out as the origin of the disequilibrium, who would then need to be expelled, even killed. However, the sacrifice of the surrogate victim, while violent, paradoxically atones, because the social order of desires has been restored, at least until the next point of conflict reaches another maximal point, triggering the next wave of scapegoating. Curiously, sacrificing or scapegoating is taken by the community itself as a social contentment for a solution to their problems. In Girard’s view, it is society, not some divine power, who needs—and ordains—that egregiously complex zeitgeist known as atoning violence, a violence that redeems. In other words, in times of social disequilibrium, the state’s authorization of violation of citizens’ rights can be said to owe its adherence to scapegoating, which serves the same substitutional function as sacrifice, shares the latter’s elaborate rituals, and ultimately brings about a restoration of the social equilibrium. Violence is, then, both pernicious and lethally “beneficial.” I suggest that it is on this slightly neurotic conceptual terrain that we may derive an initial comprehension of the weiquan complex in modern China today. Weiquan social and legal actors, whoever they may be, are the whistleblowers on state negligence. They also act as protectors of citizens from undue sacrifice. Yet, all the same it is striking that they, nonetheless, position themselves, and are often positioned by others, as the very locus of sacrifice/scapegoating. The sentiment that the ones who practice weiquan are the very people who need weiquan is best articulated by lawyer Gao Zhisheng (高智晟), one of the central figures in China’s weiquan lawyers’ movement, when he said, “You cannot be a rights lawyer in this country without becoming a rights case yourself” (cited in Human Rights Watch, 2008, 1). Here, Gao speaks of a doubleness distinguished only by a temporal difference: the citizens whose rights are violated are “put to punishment,” as it were, because they disturb the state’s agenda for political stability or desire for economic development, which then activates the

154  The juris-cultural weiquan agents whose action results in a second instance of perceived social disturbance. This sequence brings both the weiquan agents and their ­weiquan objects, the protector and the protected, to a chain of sacrificial or scapegoating events. Put yet in another way, the logic of sacrifice/scapegoating, which lays bare the narrative of state violence, returns repeatedly within the logic of weiquan itself, so that the weiquan figure sacrifices for the sacrificed. In a complex situation in which difference, mimesis, and repetition are copresent, the scapegoating mechanism of the state reveals its sinister side, because the weiquan actors are more and more impelled toward a peculiar imagination of the risks they bear as their “right to self-sacrifice.” It is little wonder that many of the narratives about the weiquan lawyers are expressed in deeply personal terms characterized by the pathos of disillusionment, personal burden, loneliness, and hopelessness, all affectively encircled in ethical indignation (see Pils, 2015, 35–36; 90; 129; 131–2; 159). The point is that this transformation of the logic of sacrifice in state punitive politics into an enactment of an offering through the act of “rightful resistance” (O’Brien and Li, 2006) can easily activate a dangerous desire for self-scapegoating. Let me be clear, I am only conjecturing that the whole practice of weiquan may be inadvertently entrapped in that paradox of the state’s “atoning violence,” the violence that redeems through rituals. Because weiquan arose to oppose state maintenance of social and political stability (weiwen), this desire to reverse an atoning violence may end up eliciting a contorted opposite: from atoning violence to a violent atonement, a redemption that violently lures one to be “put to” self-sacrifice or even self-scapegoating. Weiquan as moral exemplarity I now want to turn to another dimension of the meaning of weiquan. Given the strong sense of altruism that lends itself to weiquan ethos, it is not surprising that both inside and outside China today, weiquan individuals (維權人士) are bestowed an iconic status of moral exemplarity. In the book A Sword and a Shield (2009) produced by the Hong Kong-based China Human Rights Lawyers Concern Group, legal scholar Albert Chen pronounces, China has not only entered an “Age of Rights” … but also an Age of Rights Defence Lawyers. By using peaceful, lawful and constitutional channels to fight against injustice, China’s “rights defence lawyers” have become the heroes of our time and living exemplars of the Chinese people’s quest for the Rule of Law and human rights. (front page)

The juris-cultural  155 Hong Kong-based human rights barrister Philip Dykes speaks about the contributors to the book, a book that has surely been banned in the Mainland: [C]ourage [is] the greatest of all virtues because, without it, a man had no security with which to preserve any other virtue … Lawyers reading this book will ask themselves the stern, but necessary, question of whether they would, or could, display the same courage if they were in a similar situation. In trying to answer it, they will be forced to question, perhaps for the first time what it really means to be a lawyer. (front page) Chen’s and Dykes’ praises clearly position the self-sacrificial weiquan lawyers as the moral benchmark for the profession, if not for society as a whole. Interestingly, in discussing the intellectual legacy of “the human” in Chinese conception of human rights, Gloria Davies (2010) points out that a certain reverence for exemplarity has always been part and parcel of the Confucian legacy of self-­ cultivation: an ancient but enduring legacy that edified people on how to model themselves on eminent and virtuous persons, whether of the present or of antiquity, in their words and deeds. Of course, by no means is this unique to China: We can find this kindred discourse of moral exemplarity in Western humanism and elsewhere. As Davis reminds us, In any society, exemplarity is commonly ascribed to the brave few who are portrayed as risking their lives in confronting perceived injustice and oppression. In dynastic China, Confucian scholarship endorsed precisely this type of heroic resistance, encapsulating it in the axiom that one must “cleave to the true path, and not to the sovereign” (重道不重尊; cong dao bu cong jun). In other words, it behooves one to think independently of the state. (72) There is no space here to review the long legacy of reverential respect for exemplary moral heroes in Chinese history. The important point is that for all of the adulations bestowed upon weiquan fighters by Chen, Dykes, and no doubt, many others who quarrel with China on human rights, the question of the exemplar returns those very altruistic, self-sacrificing actors into the bosom of Chinese moral hagiography. We can trace how the discourse of weiquan may be reflecting an internal desire for positive self-cultivation, which, in turn, sustains the enduring Confucian moral teachings, as well as dovetailing quite

156  The juris-cultural closely with the Maoist legacy (see Michelson, 2007). For one thing, weiquan echoes Mao’s revolutionary call of courage, which billed the ordinary proletariat as the exemplary class with these words: “Bigness is nothing to be afraid of. The big will be overthrown by the small. The small will become big” (cited in Žižek, n.d.). The same kindred Maoist spirit has been repeated and amplified over many years whenever there were battles between “the big” and “the small” in China. Notable are two episodes that, when considered from this per­ resent-day spective, seem to belong to the same discursive lineage of p weiquan movement. I am thinking, first, about the episode of student demonstrations in Tiananmen. In the 1995 documentary film The Gate of Heavenly Peace (天安門), there is a scene of a hunger strike staged on May 13, 1989, when the demonstrators wrote out a manifesto that deliberately placed Mao as their exemplar and echoed his appeal: “This country is our country, this people our people: If we don’t speak out, who will? If we don’t take action, who will?” The second episode, which again suggests a fairly direct inheritance of the exemplarity of Mao as an iconic moral force, points to Hu Jia (胡佳), the prominent weiquan activist who defied the state’s censorship on speaking out on the sensitive problem of AIDS and HIV infection in the country and was sentenced to three-and-a-half years’ imprisonment in 2008.33 In late December 2007, he reportedly told his mother shortly before he was arrested, “If I don’t shed blood for the country, who will? If I don’t go to hell, who will?” (quoted in Yardley, 2008). In China, of course, Mao is one in a very long line of revered exemplars who advocated a moral rectitude and a fighting spirit of “the small” against “the big.” The present-day weiquan activists, insofar as they are increasingly pushed up to the status of the moral exemplar, can be said to be descendants of an internally derived moral, cultural, and political legacy. Weiquan and “bare life” Once again, let me be clear, there is a temptation to suggest that there seems to be rhetorical continuity between official discourse and the discourse of weiquan dissidents. One is easily led to conclude that no matter how diverse their political goals, state representatives, and dissidents share a common intellectual ancestry in the Confucian and revolutionary language of moral exemplarity. I wish instead to take a different track. Here, I want to turn to Agamben, who embraced Hannah Arendt’s political thinking around totalitarianism and was critically aware of the fact that his work could easily be approached through the notion of sacrifice. To this, he took pains to distance

The juris-cultural  157 himself from the sacrificial logic. Agamben’s major exemplar of totalitarianism is, of course, the Holocaust and the brutality of the concentration camp. In those situations, Agamben questions how a conceptual political stability can be maintained in a symbolization of the victims of the Holocaust as both the profane and the holy. In Homo Sacer, Agamben (1998) writes, The wish to lend a sacrificial aura to the extermination of the Jews by means of the term “Holocaust” was … an irresponsible historiographical blindness … The truth—which is difficult for the victims to face, but which we must have the courage not to cover with sacrificial veils—is that the Jews were exterminated not in a mad and giant holocaust but exactly as Hitler had announced, “as lice,” which is to say, as bare life. (114) To this, Rey Chow (2006) raises a compelling question: “what if the notion of sacrifice is subscribed and adhered to by the victims and their community, as an inalienable part of their belief?” (134). Chow charges Agamben for presuming the all-encompassing nature of sovereign power to determine human existence and demise. His focus on “bare life” throughout Homo Sacer is expressed through a repetition again and again of a predicament: Bare life is “life that may be killed but not sacrificed.” Here, Agamben wants to negate any religious or transcendental underpinning of the sacrificial logic in his search for a political language of a completely secularized bare life governed entirely by sovereign power. Chow’s compelling question indicates that sacrifice may be an integral part of a violated subjecthood, because to her, sacrifice can be imagined as a peculiar type of political force. In briefly outlining the differences between Agamben and Rey Chow here, I want to suggest that I am prescribing more to Chow’s position, for it allows us to take into account the mimetic echoes that travel in-between sovereign power and bare life. Earlier, I have already indicated my own ambivalence toward the tendencies of self-sacrifice or self-scapegoating among weiquan actors. It is an ambivalence registered less around weiquan lawyers’ altruism than on sovereign power’s shrouding of violence under ritualistic and normalizing performances of sacrifice, through which a whole culture of threat against the weiquan movement has sprung. Self-sacrifice can be seen as a dangerous political and personal entrapment, because it seems to be structured by a mimetic construction that returns it as a knotted component of bare life, an indispensable part of victimhood.

158  The juris-cultural Whether as Confucian intellectual and moral heritage or as Maoist revolutionary legacy, self-sacrifice seems to permeate through intersubjective echoes. Conclusion: Chinese exceptionalism Let us be reminded that in China, weiquan politics has played an amplificatory role in exposing the structural disjuncture between educational ideals and the legal actualization of social justice goals. It casts a harsh spotlight on the crisis of mission in China’s law schools, a crisis marked by a difficult conundrum: namely that the more law students, especially the idealistic ones, are asked to professionalize themselves, the less their training will end up in social justice arenas of struggle. This crisis is heaped onto a more general, pervasive crisis of a structural loss of legal talent in the public interest field as a result of the market capitalization of legal services. The twin engines of law schools—capitalization and professionalization—now appear to be a foreclosure: a preemption of the weiquan ideology in the preservation of state power. In other words, the shape of legal reform remains the prerogative of the state, which satisfies—through capitalization and the professionalization of legal training—international demand for an upgraded legal education in China but disconnects it from the cause of justice or rights advancement. By foreclosing weiquan ideology, what results is the rebirth of a new class of “state legal workers.” They are a new class because, in contrast with the old kind of lawyers cum administrative cadres during the Mao years, law school graduates of today are modern, compliant with an international legal ethos, professionalized, market-savvy, well versed in social justice issues, spirited and liberalized as semi-autonomous. Yet they remain distanced, or disenchanted, from the human rights politics and its related legal work. Zooming out, what we see at present is that China is definitely erecting a legal modernity with its own characteristics, one that allows for an increasing rhetorical scope for human rights, resists wholesale legal transplantation seen as foreign intrusion into the state’s domestic legal reform process, facilitates the capital process to influence and even govern legal education of judges and lawyers, and proffers new modern Chinese legal subjects whose rights awareness is not only tolerated but actively cultivated. It is here that I want to suggest that these are ingredients in the making of a “Chinese exceptionalism,” not as understood commonly as a branch of Chinese political thought (Ho, 2013; Ho, 2015; Callahan, 2012), foreign policy concept

The juris-cultural  159 (Wang, 2012; Alden and Large, 2011; Zhang, 2011; Lieberthal, 2001), or a monetary policy (Bowring, 2009) but as a cultural and legal notion internal to China’s continuous reformism and regulatory framing of human rights. Chinese exceptionalism is something quite unlike American exceptionalism: The former frames itself as a defensive pathway to economic and legal modernization, while the latter builds upon a mythical foundation of “Manifest Destiny” that offensively advances its interest across the globe. To be sure, Chinese exceptionalism manifests a profoundly statist approach to grappling with social complexity. Its latest political mantras are that of “harmonious reformism” and “peaceful rise.” As a contrast, American exceptionalism, especially as revived in the “Age of Terror” over the last decade, represents a new globalist approach to international relations; financialization of world economies; and, of course, the preemptive militarization and securitization of American sovereignty (something that was formulated by George Bush junior, and now Trump). Yet rather ironically, despite their differences, these two forms of exceptionalism converge around a broad self-legitimating principle: the moral principle of rights protection (see also Peerenboom, 2005; 2006). Notoriously, the United States holds up human rights not only as the shield for its liberal democracy but also a sword for governing, criticizing, and even eliminating adversaries said to be violators of human rights. But as for China, its human rights exceptionalism seems to be centered on a legal humanism released on a progressive path that starts with economic development, especially wealth accumulation, as the precondition for other forms of rights attainment. This legal humanism is currently sustained by a backward-looking appeal to the cultural legacy of state benevolence (ren; 仁) and appropriate justice (yi; 義), as well as a forward-looking creation of a “harmonious society” (和諧社會) and “peaceful rise” (和平崛起; see Chou, 2008). You may ask: How does a state fraught with alleged human rights violations possibly claim to be benevolent and just? There are two ways to think about this. First, China, like its many counterparts that fell on the opposite side of the Cold War against the Western bloc or found themselves having to deal with grave poverty and underdevelopment, has for decades argued for what is known as “second order” or “second generation” rights governance. This is a conception of rights governance that rejects political absolutism and its demand for immediate change. In contrast to Western liberal idealism, it supports a materialist conception of rights improvement especially in the spheres of food

160  The juris-cultural production, housing, health care, sports, and education and emphasizes these as the material preconditions for a progressive attainment of a fuller range of rights. In the February 2012 visit of China’s thenVice President, Xi Jinping (習近平), to the United States, he reiterated this humanist progressivism when once again pressed to respond to an American audience about human rights problems in China, by saying that for human rights, “there is no best, only better” (“沒有最好, 只有 更好”; see “Xi attends luncheon,” 2012).34 In this way, China’s exceptionalism is not only against liberalist absolutism in general but also against any nonmaterialist conception of humanity. The echo of the long-standing cliché that says “You have to feed the mouth before you can free the soul!” is, of course, apparent in this strand of Chinese exceptionalism. Second, as Gloria Davis (2010) has reminded us in her study of the figure of the human in China, the word “human” (ren; 人) in human rights and the word “benevolence” (ren; 仁) are homonyms (i.e. words or characters that share the same spelling and the same pronunciation but have different meanings). This intricate linguistic double allows for a dovetailing of rights thinking with the state’s preference for “feeding the mouth” first. In other words, Chinese particularity in rights governance can be thought of as a framework that combines the cultural legacy of benevolence with the political provision of human rights. We are talking here, then, about a long-term humanist tendency and not about teleological destination: “There is no best, only better.” Benevolence, and its homonymic double “human,” can be said to occupy the same discursive plane as the initiatives for building a “harmonious society” in, and a “peaceful rise” of, China. Within this discursive convergence, rights (or quan) as always already subordinated to its holder, “human,” becomes a derivative of the double valences of benevolence/human, a discursive configuration that can then supply a symbolic displacement of renquan (human rights; 人權) by renquan (benevolent rights; 仁權). This is, at the very least, an ambiguity made possible by an exceptionalist ideology that mixes the politics of rights with the cultural legacy of state compassion. So, in light of all this, what is the future of the weiquan movement? Is the exceptionalist ideology hegemonic? As Stuart Hall (2011) has reminded us, “[h]egemony is a tricky concept and provokes muddled thinking. No project achieves a permanent ‘hegemony.’ It is a process, not a state of being. No victories are final. Hegemony has constantly to be ‘worked on,’ maintained, renewed and revised” (727). To be sure, weiquan politics in China is ensnared in the complex web of a benevolent exceptionalism as the present historical project.

The juris-cultural  161 In the depths of a modernizing imperative, in the ambition for global governance, in the degree of continuity with the past, and in the impact on legal and administrative restructuring, yes “China 3.0” does constitute something of a hegemony. However, with respect to the varieties of common everyday expectations for freedom and fairness, this formulation is increasingly felt to be over-exceptionalizing. Popular feelings and the systems of calculation in daily life do offer friction, therefore opening up the space for the weiquan movement to continue to produce the desire for agitation and struggle. At the moment, weiquan is too politically sensitive; it has certainly touched the “high voltage point” (高壓點). But there is no telling how or when it may be appropriated as human rights politics continues to evolve in China, just as no rights-based movements anywhere in the world can guarantee that they will not one day become part of the machinery of rights-associated governmentality buttressed by a cluster of sacrificial, mimetic, and exceptionalist logics.

Notes 1 Chapter VII of the UN Charter contains the specific provisions that simultaneously allow and limit intervention, with the effect of rendering the very notion of state sovereignty into a “limit concept.” 2 Giorgio Agamben (1998, 51–52) argues that the awesome force of law is derived from it “being in force without significance.” 3 Matthew Weinert (2007) has an opposing view. He argues that a model of democratic sovereignty allows for the compatibility between sovereignty and human rights. 4 For instance, Anne-Marie Slaughter (2004, 67) discusses the distinct doctrine of “judicial comity,” which is “a set of principles designed to guide courts in giving deference to foreign courts as a matter of respect owed judges by judges, rather than of the more general respect owed by one nation to another.” 5 The North American Free Trade Agreement (NAFTA), for instance, has been touted as the pioneer agreement that links trade with sustainable development (see Chinn, 1999). In 2018, Trump administration ended NAFTA and replaced with another trade pact that, Trump claims, can better protect American economic interests. 6 This hypothetical scenario is inspired by Pae (2006). See also Maassarani (2005). 7 “Rogue” here is not merely a reference to the Bush administration. It has another reference to Derrida (2005), who suggests that sovereignty is “rounded sovereignty,” meaning that sovereignty includes the figure of a “rogue,” whose lawlessness comes before democracy but, precisely for that reason, grants democracy the possibility of autonomous self-determination (see Minkkinen, 2007, 46). “Rogue,” after all, is not absolute otherness to be rejected from view. 8 Article 4(1) of the International Covenant on Civil and Political Rights states, In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present

162  The juris-cultural Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. And Article 4(2) states, “No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.” This means that under the Article, there are many provisions that can be derogated, including freedom from arbitrary arrest or detention, due process, freedom of movement, self-determination, and so on. 9 In June 2014, the ominous situation lodged in the metaphor of a “cocked but not-yet-fired rifle” materialized in the form of a White Paper titled The Practice of the “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region issued by the State Council of the Central government. The document was widely seen as the Central government’s response to public demand in Hong Kong for Beijing to loosen its tight control over the fate of universal suffrage, and broader political reform, in the territory. But it backfired, as the document drew public ire, resulting in a historic march of over 51,000 people on July 1, 2014. (Each year on that date, there is a march to mark the handover and public dissatisfaction of governance since the handover.) The full text of the White Paper is available at: www.scmp.com/news/hong-kong/article/1529167/ full-text-practice-one-country-two-systems-policy-hong-kong-special. 10 The full text of Article 24 of Hong Kong’s Basic Law is as follows (available at: www.basiclaw.gov.hk/en/basiclawtext/chapter_3.html): Residents of the Hong Kong Special Administrative Region (“Hong Kong residents”) shall include permanent residents and nonpermanent residents. Article 24: The permanent residents of the Hong Kong Special Administrative Region shall be 1 Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region; 2 Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region; 3 Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2); 4 Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years, and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region; 5 Persons under twenty-one years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; 6 Persons other than those residents listed in categories (1) to (5), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only. The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

The juris-cultural  163 The nonpermanent residents of the Hong Kong Special Administrative Region shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode. 11 Article 158 of the Basic Law: The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress. The Standing Committee of the National People’s Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region. The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People’s Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected. The Standing Committee of the National People’s Congress shall consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation of this Law. 12 The Hong Kong colonial Government adopted the “Touch Base Policy” in November 1974 as an attempt to halt the influx of immigrants from Mainland China in the late 1960s and early 1970s. The policy allowed immigrants from Mainland China who reached the urban areas and met their relatives to register for a Hong Kong Identity Card. Those who were intercepted at the border would be repatriated back to the Mainland immediately. However, the policy failed to halt the influx of immigrants and was abolished by the Hong Kong Government in October 1980. 13 Journalist Nigel Collett’s (2010) report was one of a small handful of media reports that gave us a glimpse of Miss W’s determination to fight: Ms W describes herself as “a shy girl, not able to handle the pressure of the media” … “This case is important to me and my partner,” she told me, “but it’s also important for the TG [transgender] community. Everyone should have the right to marry.” So she is fighting. “I don’t want the Government to treat us as TG,” she added. “I want the Government to treat us as male or female in our reassigned gender. There’s lot of discrimination in this world, and I want to rid our society of it.” 14 In the Corbett case, the court was asked by a husband to grant a declaration that the marriage was null and void on the ground that his “wife” was, in fact, a postoperative male-to-female transsexual person who was, additionally, incapable of consummating a marriage (because she had only an artificial vagina). The court, which was able to rely only on the (limited) medical evidence of the time, restricted “sex” to chromosomal, gonadal, and genital factors (to the exclusion of psychological, social, or cultural factors) and thus construed the validity of a marriage as dependent only on biological criteria.

164  The juris-cultural 15 The standardized percentages of never-married population in Hong Kong increased steadily from 1981 to 2011, reflecting the tendency toward marriage postponement if not refusal for both men and women. 16 Between 1981 and 2011, the percentage of households with five people and above declined from 36.8 percent to 9 percent, while the percentage of two-person households rose from 15.4 percent to 25.2 percent (Census and Statistics Department, 2011). 17 Transgender Equality and Acceptance Movement (TEAM) estimates that there are far more transgender persons in Hong Kong than the approximately 3,000 reported by the government, especially given that only 10 percent of those eligible for gender reassignment surgery have actually undergone the procedure (cited in Shamdasani, 2004, 4; see also Winter, 2009b). 18 On June 26, 2013, the US Supreme Court in United States v. Windsor handed a judgment to overturn the 1996 Defense of Marriage Act (DOMA) that denied equal rights to same-sex couples who are legally married. The ruling means that several thousand legally married gay and lesbian couples will be able to take advantage of tax breaks, pension rights, and other federal benefits that are available to other married couples. 19 Darren Rosenblum argues that transgender … reflects [a] shift away from the historical primacy of medical treatment, toward a growing awareness of the psychological element of gender identity … “Transgender” grew into a useful umbrella term, including and not subordinating the proliferation of transgendered people who avoid medical treatment. “Transsexual” refers to “sex” rather than “gender,” a biological emphasis that excludes psychological gender identity. “Transgendered” recognizes the extrabiological nature of gender. (2000, 507) 20 For a discussion of the transgender movement in Hong Kong, particularly the history and practices of the transgender rights group TEAM, see Emerton (2006). 21 Chief counsel for Miss W, Mr. Philip Dykes, had led a victory in Leung TC William Roy v. Secretary of Justice in Hong Kong in 2005, in which both the Court of First Instance and the Court of Appeal found sections of the Crime Ordinance specifying age of consent inconsistent with the equality and nondiscrimination provisions of the Basic Law and the Hong Kong Bill of Rights. 22 Wendy Brown argues that one of the characteristics of tolerant discourse in contemporary times is to shore up what liberalism perceives to be its own inadequacies, and this often diverted liberalism’s attention from its duty to protect or promote justice: Tolerance can function as a substitute for or as a supplement to formal liberal equality or liberty; it can also overtly block the pursuit of substantive equality and freedom. At times, tolerance shores up troubled orders of power, repairs state legitimacy, glosses troubled universalism, and provides cover for imperialism. (2006, 9–10) To critique the judge’s sympathies is not the same as saying that the sentiment was totally useless. Rather, it is to help us see through the innocence of liberal tolerance as a political practice. In a similar vein, legal scholars Otto, Morgan, and Walker (1995, 206) argue that tolerance is used as a mechanism of containment. It is portrayed as beneficial to the tolerated subject, but in fact the language of toleration is the language

The juris-cultural  165 of subordination; it reinforces the subordination already experienced by those it claims to protect. 23 In the New Zealand case, Attorney-General v. Otahuhu Family Court (1995), the court refused to follow Corbett and argued that what mattered was not the transsexual person’s ability to function sexually (“Where two persons present themselves as having the apparent genitals of a man or a woman, they should not have to establish that each can function sexually”; W, CFI, para. 68) (see also, Rishworth, 2007). Even more crucially, in an Australian case, Kevin v. ­Attorney-General (Cth; 2001; also widely known as the “Kevin and Jennifer” case), the judge also refused to follow Corbett because he believed that sex, for the purposes of marriage, should be determined by considering all relevant matters beyond biological determinations. Ultimately, the court granted that the postoperative transsexual man involved in the case (Kevin) was indeed a “man” for the purposes of marriage and held that the marriage between the transsexual man and a woman (Jennifer) was valid. This case successfully expanded the ordinary contemporary meanings of “man” and “woman” to include postoperative transsexuals as men or women in accordance with their sexual reassignment (para. 69–71). 24 See Macnamee (2004) for a useful critique of Corbett, especially the formal construction of the judgment in this case and how legitimacy was sought for an eventual pronouncement on sexual identity, in order to lay bare the founding moment of law on transsexuality in the United Kingdom. 25 According to the Department of Justice’s normative view of the common law tradition, While [the common law] is flexible and adaptable, the doctrine of precedent often makes it difficult for judges to change well-established legal doctrines. If significant, rather than incremental, changes need to be made to the law, it is usually necessary to achieve these by way of legislation. (2014) 26 In a major case of victory for privacy rights of sexual minorities delivered by the US Supreme Court, Lawrence v. Texas (2003), Judge Scalia in his dissenting opinion deployed the same flawed “slippery slope” rhetoric by arguing that the decriminalization of homosexuality would interfere with state laws that enforced the prohibition of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” (Lawrence per Scalia J. (dissenting opinion), 2003, 533). 27 Witness the standardized use of the term “human rights defender” across the world as a result of the establishment of the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (commonly known as the Declaration on Human Rights Defenders), which was adopted by the UN General Assembly in December 1998 after fourteen years of negotiation. See Fact Sheet No. 29, Office of the United Nations High Commissioner for Human Rights (OHCHR): http://olddoc.ishr.ch/hrdo/documents/FactSheet29.pdf. 28 Clinical legal education is often the service-learning arm of a law school. Its typical institutional form is that of a legal aid center staffed by student volunteers who provide free legal services to the poor and the disadvantaged. 29 For an empirical study of law students’ career aspirations at the Tsinghua Law School, a top law school in China, see Eli Wald, “Notes from Tsinghua: law and legal ethics in contemporary China,” Connecticut Journal of International Law 23, 2008, 369–415. Wald’s study provides evidence regarding the law graduates’ largely commercial aspirations.

166  The juris-cultural 30 The mission of the CCCLE is to bring all clinical legal educators, administrators and others together to perform theoretical and practical research of foreign and Chinese clinical legal education programs, cooperate and carry out exchange of clinical legal education activities with counterparts abroad and at home, and promote the growth of clinical legal education in China. (see “Adopting,” 2139) 31 Liu Xiaobo, the key author of “Charter 8,” a spirited but benign document calling for democratic reform of the Chinese government, was arrested in late 2008 and sentenced to eleven years’ imprisonment in late 2009 on the charge of subversion. He died in 2017. 32 The Hong Kong-based China Human Rights Lawyers Concern Group maintains the most updated information resource on the issue of the PRC’s crackdown on human rights lawyers: www.chrlawyers.hk/en. 33 At the point of this writing in October 2017, I learn that Hu Jia has been critically ill, suffering from pancreatic cancer. 34 Xi Jinping’s comment was made in conjunction with the following relevant remarks: Given China’s huge population, considerable regional diversity and uneven development, we are still faced with many challenges in improving people’s livelihood and advancing human rights. The Chinese government will always put peoples’ interests first and take seriously people’s aspirations and demands. We will, in light of China’s national conditions, continue to take concrete and effective policies and measures to promote social fairness, justice and harmony and push forward China’s course of human rights. Xi added that China was ready to conduct candid, constructive dialogue and exchanges on human rights with the United States and other countries on the basis of equality and mutual respect, so as to enhance understanding, bridge differences, learn from each other and make improvements together (excerpted from “Xi attends luncheon,” 2012).

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The juris-cultural  173 Minkkinen, Panu. 2007. “The Ethos of Sovereignty: A Critical Appraisal.” Human Rights Review 8 (2): 33–51. Mo, John, and Weidong Li. 2002. “Legal Education in the PRC.” Journal of the History of International Law 4 (1): 176–203. Moore, Mike. 2003. A World without Walls: Freedom, Development, Free Trade and Global Governance. Cambridge: Cambridge University Press. Mosher, Stacy, and Patrick Poon, eds. 2009. “Profiles of Prominent Chinese Rights Defence Lawyers.” In A Sword and a Shield: China’s Human Rights Lawyers, 2–33. Hong Kong: China Human Rights Lawyers Concern Group. Mountz, Alison. 2011. “The Enforcement Archipelago: Detention, Haunting, and Asylum on Islands.” Political Geography 30 (3): 118–28. Munn, Christopher. 2001. Anglo-China: Chinese People and British Rule in Hong Kong, 1841–1880. Richmond: Curzon Press. O’Brien, Kevin J. 2009. “China since Tiananmen: Rural Protest.” Journal of Democracy 20 (3): 25–28. O’Brien, Kevin J., and Lianjiang Li. 2006. Rightful Resistance in Rural China. Cambridge: Cambridge University Press. Oelschlaeger, Max. 1991. The Idea of Wilderness: From Prehistory to the Age of Ecology. New Haven: Yale University Press. Orford, Anne. 2006. “Trade, Human Rights and the Economy of Sacrifice.” In International Law and Its Others, edited by Anne Orford, 156–96. Cambridge: Cambridge University Press. Orlik, Tom. 2011. “Unrest Grows as Economy Booms.” The Wall Street Journal, September 26. www.wsj.com/articles/SB100014240531119037036045765870706005 04108. Otto, Dianne, Wayne Morgan, and Kristen Walker. 1995. “Rejecting (in)Tolerance: Critical Perspectives on the United Nations Year for Tolerance.” Melbourne University Law Review 20 (1): 190–217. Pae, Joon Beom. 2006. “Sovereignty, Power, and Human Rights Treaties: An Economic Analysis.” Northwestern University Journal of International Human Rights 5 (1): 71–95.Peerenboom, Randall. 2005. “Assessing Human Rights in China: Why the Double Standard?” Cornell International Law Journal 38 (1): 71–172. Peerenboom, Randall. 2006. “Law and Development of Constitutional Democracy: Is China a Problem Case?” The Annals of the American Academy of Political and Social Science 603 (1): 192–99. Pegg, Leonard. 1994. Family Law in Hong Kong. 3rd ed. London: Butterworths. Perry, Elizabeth J., and Merle Goldman, eds. 2007. Grassroots Political Reform in Contemporary China. Cambridge, MA: Harvard University Press. Phan, Pamela N. 2005. “Clinical Legal Education in China: In Pursuit of a Culture of Law and a Mission of Social Justice.” Yale Human Rights & Development Law Journal 8 (1): 117–52.Pils, Eva. 2015. China’s Human Rights Lawyers: Advocacy and Resistance. New York and London: Routledge. Pils, Eva. 2016. “Assessing Evictions and Expropriations in China: Efficiency, Credibility and Rights.” Land Use Policy 58: 437–44. Ptacek, Melissa. 2011. “Remarks on Sacrifice and Punishment.” Law, Culture and the Humanities 7 (1): 32–47. Puar, Jasbir K. 2017. The Right to Maim: Debility, Capacity, Disability. Durham and London: Duke University Press.

174  The juris-cultural Qi, Duojun. 2011. “The Review of the Development of Legal Science in China (1949– 2009).” Frontiers of Law in China 6 (2): 180–91. doi: 10.1007/s11463-011-0124-6. Quanxi, Gao. 2012. “Zhengzhi Xianfaxue de Xingqi Yu Shanbian.” Jiaoda Faxue 1: 22. “Readers’ Comments.” 2011. Fridae.Asia. 2011. www.fridae.asia/hk/gaynews/2011/11/28/11351.setback-to-transgender-rights-in-hong-kong. Rishworth, Paul. 2007. “Changing Times, Changing Minds, Changing Laws: Sexual Orientation and New Zealand Law.” The International Journal of Human Rights 11 (1–2): 85–108. Rosenblum, Darren. 2000. “‘Trapped’ in Sing-Sing: Transgendered Prisoners Caught in the Gender Binarism.” Michigan Journal of Gender & Law 6 (2): 499–571. Sarat, Austin, ed. 2004. “The Blackwell Companion to Law and Society.” Blackwell Reference Online. Blackwell Publishing. www.blackwellreference.com.libezproxy.hkbu.edu.hk/subscriber/uid=263/book.html?id=g9780631228967_978063 1228967&authstatuscode=202. Shamdasani, Ravina. 2004. “Victory of Woman in Sex Bias Dispute.” South China Morning Post, October 14.Simmel, Georg. 1971. “The stranger.” In: On Individuality and Social Forms, edited by Levine D.N., 143–150. Chicago, IL: University of Chicago Press. Siu, Wing-sum. 2010. “Transsexuals Face So Much Discrimination.” South China Morning Post, August 23. Slaughter, Anne-Marie. 2004. A New World Order. Princeton, NJ and Oxford: Princeton University Press. Smart, Alan, and Josephine Smart. 2008. “Time-Space Punctuation: Hong Kong’s Border Regime and Limits on Mobility.” Pacific Affairs 81 (2): 175–93. Smith, Marian. 2015. “INS—U.S. Immigration and Naturalization Service History.” U.S. Citizenship and Immigration Services. www.uscitizenship.info/ ins-usimmigration-insoverview.html. Standing Committee National People’s Congress. 1999. “The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and 24(2) (3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China.” www.elegislation.gov.hk/hk/A106!en.assist.pdf. Steinberg, Richard. 2004. “Who Is Sovereign?” Stanford Journal of International Law 40 (2): 329–45. Su, Yang, and Xin He. 2010. “Street as Courtroom: State Accommodation of Labor Protest in South China.” Law and Society Review 44 (1): 157–84. Sydney Morning Herald. 2013. “Tony Abbott Keeps up Attack on Kevin Rudd over Asylum Seeker Plan,” July 22, 2013. Tai, Benny. 2014. “Reflections on Civil Disobedience and the Rule of Law.” Ming Pao, November 12. Teng, Biao. 2009. “What Is Rights Defence?” In A Sword and a Shield: China’s Human Rights Lawyers, edited by Stacy Mosher and Patrick Poon, 122–8. Hong Kong: China Human Rights Lawyers Concern Group. Teng, Biao. 2012. “Rights Defence (Weiquan), Microblogs (Weibo), and the Surrounding Gaze (Weiguan): The Rights Defence Movement Online and Offline.” China Perspectives 3 (91): 29–41. Tomuschat, Christian. 2003. Human Rights: Between Idealism and Realism. Oxford: Oxford University Press.

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4 Legal modernities

In considering human rights, we inevitably encounter an oscillation between the aspirational potentials and limitations of legal science. Notwithstanding the long-standing dispute between political theorists and moral philosophers on the nature of human rights—the former generally centers the law in rights theory, while the latter insists on extralegal experiences and sensations of rights—there are, in fact, important implications for grasping a broad conjuncture from which, I want to argue, human rights in all of their legal and moral manifestations, arise. In this chapter, I want to move our discussion, finally, away from the debate over the virtues and limits of law and legalization of rights, to a more fundamental consideration of the broad historical contour of what I shall call, lacking a better name, “legal modernity.” Philosophical discussion, especially when it is germane to cultural studies, leads me to close this book with a meditation on “legal modernity,” because many of the central questions that frame cultural studies, such as the analysis of the overlapping determinations in the social formation, the proliferation and ubiquity of power, the contingent relations among power, hegemony, and everyday life, the mechanistic versus vitalist forms of domination, and so on, are constitutive of the contour of modernity undergirding everyday life, to which cultural studies is committed to problematize (see Grossberg, 1997, 2010; see also Lefebvre, 2011, 2016, 2018). My attention to the question of legal modernity, in some ways, resorts to telling a well-known ancient story as well as a new modern one. Legal historians would be quick to point out that law long predated the configurations of modernity. Premodern in form and function, law existed before such monumental categories as “civilization”; “society”; “nation”; and, of course, “science” and “social sciences” came to define modern life. Long before we have social history, theories of government, and some even argue intellectual history, we had codes and treaties—mainly civil codes and treaties for warfare and punishment—decreed by emperors, religious leaders, and kings. Legal historians have helped us trace the existence and development of these antiquities in ancient Egypt, the Roman Empire, the Middle Ages, the Islamic world, the ancient Indian philosophical traditions, the Chinese dynastic courts, and so on.

178  Legal modernities In the wide-ranging historical research presented in H. Patrick Glenn’s prize-winning book, Legal Traditions of the World: Sustainable Diversity in Law (2010), Glenn places law in a triangular relationship with two other terms: tradition and information. He illustrates the differences in legal cultures, from ancient to modern times, by showing whether and to what extent those cultures develop legal and social norms that incorporate tradition as informational, that is, as communicative. But communicative of what? Glenn focuses on the problem of corruptions, including criminal corruption, institutional corruption, and intellectual corruption. Without going into his discussion of these various forms of corruption, for our purpose here, it is sufficient to point out that Glenn sees law as having the obligation to embody tradition before the substantive value of law can be ascertained. More precisely, law’s embodiment of tradition can help law to determine its normative attitude to corruptions. Law ought to be communicative of tradition, so as to decipher the manner and degree of tolerance in society toward crimes of corruption. The linkage of law, tradition, information, and crimes of corruption, according to Glenn, can be found in many of the world’s legal traditions. In his historical study, he canvases many of the major legal traditions that legal history encompasses, including those of chthonic (or indigenous) law, Talmudic law, civil law, Islamic law, common law, Hindu law, and Confucian law, in order to examine how they speak to the substantive and institutional dimensions of tradition. Not surprisingly, each legal tradition is set within the context of a particular religious or spiritual worldview. Obligations to the cosmos, responsibility to the king and nation, and commitment to individuals in society: these relations of law can be traced by looking at the religious conceptions of different civilizations. Of the central tenets in the theories of modernity, the significance of secularization is often emphasized. The secular and the modern are near synonyms, especially when both terms are buttressed by a foundation of instrumental rationality. No doubt this is a dominant story told about modernity. Yet what legal historians such as Glenn and others have pointed out is that religion and law have been co-constitutive of each other in many of the surviving systems of law. A notable example is the heritage of Judeo-­ Christianity in shaping common law today. In Latour’s (1991) somewhat mischievous proclamation that “We have never been modern,” he posits that due to the inseparability of nature and society, of the nonhuman and human constituents of the world, claims of modernity that posits their separation, in fact, defies the designation of “being modern.” Never been “de-­natured,” our society thus has never been “modern.” To analogize Latour, the inseparability of religion and law might also render the presumptive secular claims of legal modernity facile. When Bryan Turner (cited in Kahn, 2001) describes what he calls the “Hegel-Marx-Weber” heritage of modernity, he designates the process of modernization as a development by which “the social world comes under the domination of asceticism, secularization, the universalistic claims of

Legal modernities  179 instrumental rationality, the differentiation of the various sphere of the lifeworld, the bureaucratization of economic, political and military practices, and the growing monetization of values” (459). He is, of course, right in many respects. Yet in trying to imagine a legal modernity of human rights, I find claims of secularization to be a hasty assertion. Human rights, as a kind of legal historical artifact, are shaped by a continuous entanglement of natural law, which is steeped in religiosity, and positive law, which helps to constitute the authority and legitimacy of the state and its sovereignty. The “­Hegel-Marx-Weber” heritage used to explain the rise of Euro-modernity tends to occlude the lingering religious influences still detectable in much of the underlying religio-humanitarian impulse of human rights. To continue to tell the story of legal modernity, I now turn to another aspect of its constitution, which concerns the different facets of a modernity that produce successive legal effects or “movements.” In his Boaventura de Sousa Santos’ book Toward a New Legal Common Sense (2002), he places legalism squarely at the center of the “sociocultural paradigm of modernity.” In essence, de Sousa Santos, a Marxist sociologist of law and one of the important intellectual figures of the World Social Forum (WSF), believes that Western modernity carries grand historical promises with it, yet they remain unfulfilled. Pointing out the ever-widening discrepancy between social experiences of modernity and social expectations for it, he writes, In modernity, for the first time in Western history the current social experience of vast social groups—and not just of the elites as before—no longer coincides with their expectations concerning their future experience … Expectations exceed experiences, as excess that is measured by the dimension of the promises of modernity rendered credible by the idea of progress. (2) For our purposes here, I focus on de Sousa Santos’ claim that the destabilizing situation of Western modernity stems from three interlinked movements in the “legal common sense.” I am interested in what he has to say, because his intimate involvement with Third World liberation movements as well as the WSF has allowed him to take a close scrutiny of the role of the legal common sense in the grand narratives of Western modernity. According to de Sousa Santos, the notion of the “legal common sense” is derived from three interlinked movements in law. The first is the “pillar of regulation,” a wide and deep permeation of the force of legality as norms, institutions, and practices that guarantee the stability of social expectations, by “establishing a politically tolerable relation between present experiences, on the one hand, and expectations about the future, on the other” (2). In this way, legal regulations and norms are seen as social expectants, paving a more or less predictable social trajectory between the present and the future. According to de Sousa Santos, this pillar of

180  Legal modernities regulation is constituted by a kind of triangulation of Hobbes, Adam Smith, and Rousseau, that is, a triangulation among the state, the market, and the social community. The stability of the social trajectory between the present experiences and future expectations, in essence, comes from the stability of the state (ensured through legitimacy and coercion), the stability of the market (obtained through minimal state interference as well as a “universal promotion of self-interest in the market place” (3)), and finally the stability of the community (developed through horizontal criteria of nonstate and nonmarket belongingness). Such is the legal common sense anchored upon the pillar of regulation in Western modernity. De Sousa Santos is particularly concerned about what he calls the “overfulfillment” of some promises-qua-regulation, a kind of built-in distortion in legal modernity itself. From a less sociological standpoint, this pillar of regulation can be said to arise from the foundationalism of brute force. To call it regulation is only to accord it a more modern practical meaning. In fact, according to Benjamin (1996) in his “Critique of violence,” regulation originates from two kinds of force: the force creating law and the force maintaining law. For the former, Benjamin tells us, acts of war and the death penalty determine the very scope, depth, and brutality of law. As for the latter, institutional force by the military and the police would sustain and perpetuate the law. Discussing the views of Benjamin, Mahlmann (2003) writes, [T]here is only one criterion for the establishment of law: force. It is not a question of material accordance with some standard of justice, nor some utility calculation according to standards of technical rationality. None of these is a precondition of the creation of law. Nor does force have to be legitimate; it has only to be victorious. Victory creates the entitlement of force to create law. (22) The second movement in the legal common sense has to do with the “pillar of emancipation,” which de Sousa Santos designates as a set of oppositional aspirations inherently skeptical of the promises of modernity. Emancipation is seen as a kind of legal conceptual movement as well as practices that challenge that extant political nexus aligning social experiences and social expectations through the pillar of regulation. As with regulation, emancipation is constituted by several underlying logics of rationality. Here, de Sousa Santos turns to Weber and suggests that emancipatory aspirations stem from “the aesthetic-expressive rationality of the arts and literature, the cognitive-instrumental rationality of science and technology, and the moral-practical rationality of ethics and the rule of law” (3). Weber’s famous thesis of “the disenchantment of the social” is here reworked to suggest an oppositional set of aspirations stemming, precisely, from disenchantment. Arts, science, and ethics form a nexus of emancipation, because they oppose

Legal modernities  181 the over-enchanting promises of the state, the market, and the community. Arts, science, and ethics are, therefore, taken as realist rationalities that can destabilize the horizon of possible expectations “by expanding the possibilities of social transformation beyond a given regulatory boundary” (3). Here, de Sousa Santos gets fairly utopianistic: Just as the aesthetic-expressive rationality, the cognitive-instrumental rationality creates possible futures by freeing human beings from the chains of circumstance and established limits, but it does so through the potentially infinite succession of technological revolutions … [T]he moral-practical rationality creates possible futures by transforming new ethical demands of liberty, equality, and fraternity into political imperatives and juridical demands. (de Sousa Santos, 2002, 4) In grafting these ideas onto our understanding of the legal modernity, I am drawn to de Sousa Santos’ dialectical thinking about how those two pillars of regulation and emancipation are prone to producing social excesses as well as deficits. In other words, they can never seem to be able to manage a balance between social experiences and social expectations, between the present and the future. This dialecticism, it turns out, stems from the imbalances inherent within the two logics. Within the logic of regulation, the market principle tends to be overdeveloped to the detriment of the principle of the state and the principle of the community. Similarly, within the logic of emancipation, de Sousa Santos argues, the overdevelopment of science and technology has overshadowed the arts, ethics, and the rule of law. As a result, modernity has been fueled by the market and the sciences, the two primordial productive forces. This leads us to the third, and most interesting, movement in the legal modernity being mapped out here. This third movement is, in fact, about the collapse of the pillar of emancipation into the pillar of regulation. The reduction of emancipation through the collapse of the arts and ethics into scientism, de Sousa Santos argues, strips emancipation of its oppositional impetus and has become, troublingly, “the double of regulation” (10). Consider this passage: The collapse of emancipation into regulation brought about by the hyperscientificization [sic] of emancipation combined with the hypermarketization of regulation, while effectively neutralizing the fears that were once associated with the prospect of fundamental social transformation and alternative futures, has produced a new sense of insecurity stemming from the fear of uncontrollable developments likely to occur here and now … At a deeper level, this sense of insecurity lies in the growing asymmetry between the capacity to act and the capacity to predict. (10)

182  Legal modernities In this disturbing account, we are presented with the worries of scientism as the very source of the originary discrepancy between social experiences and social expectations. With everything else losing prominence—community, arts and culture, ethics, even the state as manager of the gulf between experience and expectation—scientism becomes the predominant, and only, pillar of modernity. And for our purposes here, this very scientism also explains the crisis of law, as the latter becomes overwhelmingly subjected to the cognitive-instrumental rationality of modern science and becomes scientific itself. Thus, H. Patrick Glenn’s account of the legal traditions and Boaventura de Sousa Santos’ account of the crisis of law give us two contrasting reference points for an understanding of legal modernity. Glenn’s emphasis on the lingering religious influences of law, on one hand, and de Sousa Santos’ stress on the role scientism plays in law, on the other hand, may be providing us with the clue about the persistent paradigmatic character of law. Murphy (1997) calls law “the oldest social science,” and one wonders if this register is, in fact, pointing to the continuously anxious position of the law in modern life as it repeatedly tries to manage the discrepancy between social experiences and social expectations. Calling it the oldest social science accords it with a certain sense of primordialism, as a prototypical anxiety machine, closing in and widening the gulf between social experiences and social expectations in successive waves without end. Yet while it is tempting to accept law’s primordialism, it is equally inviting to think about the capacity of this “oldest” enterprise to possess the capacity to renew itself, within the boundary and limit of its own primordial anxiety. To this, I want to propose: Law is neither regulation in the simple originary instance of vertical coercion nor emancipation as the opposite of regulation through horizontalist practices. Understood now as a hybrid nexus of religiosity and scientism, law has become mutated regulation, an internal alteration or self-repair, producing changes under the skin, so to speak. In other words, I want to think about law as a particular species of regulation with promises of emancipation contained within it, that is, regulation with an exception, in the form of an open-ended enclosure. Marshaling both the religious and scientific impulses, law has never ceased to try to manage the discrepancy between social experiences and social expectations, between the present and the future. Yet if some of the philosophical diagnoses discussed earlier are good indications, I wish to suggest that within this kind of configuration of legal modernity, law’s self-repair capacity continues to operate under the dominant principle of regulation (hence, law’s violence), yet doing so with the promise of freedom (hence, its capacity to still engage with issues of equality, fairness, and justice). This dynamic mutation may render some of the changes in law undiscernible, because law-as-regulation still dominates. Yet different types of changes within the spectrum of possibilities are occurring. Moreover, this mutated regulation, like all mutations, plays a part in both the normative and nonnormative

Legal modernities  183 social and political processes, altering the way law reconfigures the social and technical legal spheres, as well as the fields of experiences and expectations. Mutated regulation by law, for instance, can play a part in legal evolution, including the production of legal pluralism and legal diversity. To attempt to map the substantive dimensions in the three interlinked movements in law, I extend de Sousa Santos’ analysis using Table 4.1. I wish to use this table to outline the different operational terms that appear in the field of legal modernity within the religious and scientific nexus of law. Some of the terms in this table, especially those in the third column, have been unfolded in previous chapters. Both Chapter 2 (on the eight theses) and Chapter 3 (the cases and perspectives) contain varied discussions of legal polycentrism, mediated ethics, and the politics of the “included-out.” In fact, various legal research studies have provided us with many empirical examinations of these three movements of law. There are simply too many examples, so I can only give a few that I know. For instance, in the field of law-as-regulation, modern media law stands out to be exemplary in my mind of the kind of urge of the state for legitimation and coercion in controlling the nature and flow of information in liberal societies (see, for example, Feintuck and Varney, 2006). Another huge area of study of how the law is employed to produce epistemic violence concerns legal codifications that result in racialized subordination and dispossession of various people of color, indigenous population, migrants, and refugees (see, for example, Posner, 2009; Brown and Halley, 2002). As for the theme of lawas-­emancipation, various studies of civil liberty laws, legal activist movements, and even studies of legal participation in liberation theology in many Table 4.1  Three interlinked movements within the field of legal modernity Prototypes in the Legal Modernity

Law as Regulation Law as Emancipation Law as Mutated Regulation

Operational terms

Legitimation

Resistance

Monopolistic statutory law Coercion

Socio-legal plurality Re-enfranchisement

Violence

Compassion

Marketization of rights Totalitarianism

Ethics of rights

Political form Corrective

Juridical activism

“the right to have The right to rights” (Arendt) participatory parity (e.g. Fraser)

Tolerated opposition Polycentric jurisprudence Practices of dispute resolution Reconstructive ethics Situational rights Politics of inclusive exclusion Mediational rights (e.g. de Sousa Santos)

184  Legal modernities non-Western contexts, have animated what can be called the celebratory side of oppositional law (see, for example, Ziccardi, 2013; Boyle, 2006). As for the theme of law as reregulation, mutated from the simple top-down coercive model to include promises of freedom and emancipation, we can turn to the legal realist movement for a variety of approaches as examples. The classical legal realist approach, dated back to the 1930s in the United States, challenges the view that orthodox legal institutions and doctrines provide an autonomous and self-executing system of legal discourse untainted by politics. Indeed, one of the hallmarks of legal realism is a reluctance to accept anything as dogmatic: Empirical results need to be confirmed and reconfirmed. Empirical work here refers primarily to the use of social scientific methods to help us understand the law’s operation in the real world, as well as to guide legal reform (Lang, 2015). This empiricism would befit the view that law, in its realist dispensation, jostles between the compulsion to regulate and the promise of liberation. Some legal thinkers, such as Richard Posner, a US law professor and a federal judge, professes an economic analysis of law to explain judicial behavior (see Ostas, 1998). Besides the lawand-­economics-inspired scholarship, critical legal studies have also been important in opening up vistas that would otherwise remain closed. Skeptical of the deterministic view of legal rules, critical legal studies scholars working on international law, such as Kennedy’s (1987) classic work, International Legal Structures and Koskenniemi’s (2006) From Apology to Utopia, have been influential in approaching law’s impact through hard empirical verification. So far, in our account of the trajectory and substance of Western legal modernity, we have turned to the critical theoretical sociology of de Sousa Santos for inspiration. Indeed, he is among the few European legal ­scholar-activists who occupy an important intellectual position in the contemporary discussion of law and modernity. It bears reminding that his work bends heavily toward a modernist conception of law, with him denying having any, for lack of a better term, postmodern impulse (de Sousa Santos, 2002, 19–20). For instance, he explicitly rejects the radical philosophical influence of the Freudian, Derridian, Foucauldian, or Deleuzian view of law—the constellation of theoretical resources for a generally critical interpretive turn in legal studies—even as these thinkers and their many followers have opened up an entirely different window for seeing Western legal modernity. For the reason of thinking through the trajectory of Western modernity from the widespread foundationalism of the past to the antifoundationalism of the postmodern present, I want to make a brief stop below, as it were, to take a look at those interpretivist philosophical influences in shaping our understanding of law’s modernity.

Legal modernism For many radical legal thinkers, the collapse of practical reason and, more generally, of the project of Enlightenment, is often the starting point of their

Legal modernities  185 reflection on modernity. Beginning with the view of a shattered Enlightenment, they explore foundations of law beyond normative legitimacy. Reflecting on the various reflections on law by continental thinkers, such as Benjamin, Schmitt, Luhmann, and Derrida, Swiss legal philosopher and sociologist Mahlmann (2003) emphasizes that those philosophical challenges are at once radical and directed at political hopes, once the conviction of radical uncertainty in all normative matters is mobilized in the thinking. In David Luban’s (1997) Legal Modernism, he starts out by saying that legal theory lacks a paradigm. By that he means that the very nature of law is still murky, as “[e]conomists and feminists, sociologists and doctrinalists, centralists and pluralists, positivists and purposivists, are unable even to agree on the boundaries of the object they are studying, let alone the propositions that are true of that object” (12). Luban argues that this murkiness strongly suggests that law is in a modernist predicament. Likened to artistic modernism, law enters into the dilemma of having to search for a “legal theory of artistic quality” (12). Unable to illuminate the meaning of legal phenomena, Luban continues to say, the whole world of law has unfortunately been taken over by science and dictated by its compulsion. What is relevant for us here is the rather suggestive idea that law has an “artistic quality” and that the scientification of law robs it of a fundamentally cultural character. Not surprisingly, Luban’s outline of legal modernism turns to narrative theory. Common sense tells us that law is built of stories. No one is more succinct than Cover (1983) in describing law’s modernist narrative property: No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each Decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live. (4–5) Clearly, the repositioning of law as culture, and away from science, introduces one or two core terms that would eventually lead to many subsequent streams of culturally inflected legal theories, terms such as the disenchantment with tradition, mistrust of doctrinal coherence, the significance of perspectivalism in law, and so on. Perhaps, one of the most forceful texts through which to elaborate on the profound modernist distrust of the ideas of tradition, coherence, and especially “presence,” is Derrida’s majestic essay “Force of Law.” As we know, Derrida develops his thoughts relentlessly, even irritatingly, on the border between form and content. His well-known diverse, experimental ­procedure—deconstruction—that aims at subverting knowledge itself, gets applied to the law and legal text in that essay. Throughout the 1980s and 1990s, Derrida was becoming more and more obsessed with the question

186  Legal modernities of ethics, from an ontological point of view situated on the border between ethics as form and ethics as content. Therefore, it makes sense for us to contextualize “Force of Law” as his meditation on the ethics of legality, deploying his deconstructive methodology. It is even more self-evident that Derrida would turn to the question of the ethics of law in his later writing, given his set of inquiries in the 1990s that seem to converge around the ethical encounter with the Other (e.g. his writings on “promise,” “witness,” “hospitality,” “friendship,” and “justice”; see Gehring, 2005). Ontologically, law is not justice, Derrida assures us. The very founding of law, that is, law’s own self-legitimization, precludes the possibility of justice. The very form of law preserves its own applicability to issue force. Put in another way, law is based on the enduring fact of force to constellate itself as norm and rule and then to enforce; hence, the generalizing, self-conserving violence of law. Gehring (2005) explains this point: [Derrida writes about] violence that founds … What is meant is that all law is based on violence inasmuch as there is no original law, but rather all law was instituted at some time. Inasmuch as the law presupposes the legitimacy of its own origin, it ultimately refers to an extralegal act, to an originating act of violence; and this unnameable instituting violence constitutes the groundwork of the authority of law whenever the law … explicitly appeals to the “legitimacy” of its own institution. This historically equivocal dimension of the establishment of law is an obscure foundational secret which recurs in the performative character of legal speech … Derrida calls it “mystical” in Force de loi. (155–156; emphasis added) Because law is fundamentally a mythical self-constitution and self-­ preservation, there is no outside order against which to resist its force or to examine its very ethics. “Ultimate insolubility of all legal problems,” ­Derrida famously decries, because of law’s “original sin” of self-grounded legitimacy. In this situation, where and how is justice possible? To this, we should not be surprised that to Derrida, the ultimate answer lies in deconstruction. To him, this is the only possible way to pull the ontological rug off the feet of law. Against the “pure means” of law’s self-grounded legitimization, Derrida proposes the “pure negativity” of deconstruction. For our purposes here, I take Derrida’s distinctly idiosyncratic assertions about law to be indicative of a certain key conception of legal modernity, which is to recognize and honor the undecidability of justice. The common understanding among critical circles that law is not justice finds a powerful orator. To speak of a Western legal modernity entails speaking of law’s aporia—the aporia of experience, the undecidability of justice, and the ethics of endless questioning. It goes without saying that, in advancing the

Legal modernities  187 deconstructive thesis of undecidability, Derrida ultimately preserves deconstruction as the only available horizon of knowability, which is, of course, unknowable (see Dokic, 1998; see also De Ville, 2011). Another figure whose philosophical writings are concerned with the ontology of law—obsessed, at it were, with the question of law’s origin and foundation—is the British legal philosopher Peter Fitzpatrick. His important book, Modernism and the Grounds of Law (Fitzpatrick, 2010), is similar to Derrida in the sense of having a shared vital urge to theorize the originating force and ground of law. I read this text and found astonishing conceptual convergence with the notion regarding the profound instability of law with respect to its relation to ethics and justice. Yet Fitzpatrick does not rely only on deconstruction. Instead, he turns to Freudian psychoanalysis in search for the origin and ground of law, adopting Freud’s view of the savage, the rule, and the originary societal transition to lawful civilization. Fitzpatrick’s is another approach cognate to the Derridian postmodernism without collapsing into it, due to his fascination with the savagery/­ civilization template on social origin. While Derrida’s operative word in thinking about law and justice is “undecidability,” Fitzpatrick’s is “irresolution.” Yet the impulse is similar: Fitzpatrick’s wide-ranging thinking on law leads him to focus on law’s ontological state of irresolution between determination and responsiveness. This irresolution is, according to Fitzpatrick, the very entry point of law; it arises in-between the need to originate the origin (a peculiar circularity that he calls “determination”) and the need to move beyond the origin (an energy that he calls “responsiveness”). The tale of savagery told by Freud in Totem and Taboo is crucial for understanding the site of origin (the brother’s savage determinate desire for power) and the site of the appearance of law (the brother’s killing of the father as a responsive creation of social order). These two sites need to be apart, yet paradoxically they originate each other, together. To this, Freud intimates the reason why savagery always comes back—law drives it away, yet law, as law, creates savagery. The only thing left to say about law, therefore, is its productive in-betweenness, to be determinately different and to be responsively the same. To quote ­Fitzpatrick on his interpretation of Freud, In Freud’s fecund myth [Totem and Taboo], law could only emerge once an all-encompassing determination by the primal father had been eliminated. Then, circumstance and possibility entered the world. To bring these infinities within the prospect of determination, the sons invented an authority figure, one which was determinant yet on an infinitely extensive range: that is the father restored, the dead father who combines and moderates death’s determining finality and its indeterminate ­beyond—the father of the law, in short. (Fitzpatrick, 2001, 102)

188  Legal modernities As we can expect, under this endless deconstructive cycle, oppositional dualisms can never be held stable: inclusion/exclusion, universal/particular, global/local, national/international, civilization/savagery, law/violence, and so on, are both instances of difference and sameness plus determination and responsiveness. Yet this “and” is not a conjunctive in the simple sense; it is more like an “and” that already contains an “or” inside its fold. Not the proverbial “and/or” (as dualistic determination), but a responsiveness to switch from “and” to “or,” from “or” back to “and,” and so on. Fitzpatrick puts it this way: “Law comes from and returns to position. But this cannot be a position which would ever contain law’s responsiveness. It must itself be liable and protean to an infinite extent” (102). Moreover, to Fitzpatrick, this aporetic double demand of law—to be indeterminate and ever-­responsive— explains the fundamental character of nationalism, imperialism, and globalism, the three sites of “application” of his theory of law in his Modernism and the Grounds of Law. Importantly, it also explains law’s “objective” and “rational” justification to exercise various conduct of exclusion and violence (as well as inclusion and citizenship) in the formation of nationalism, imperialism, and globalism. To Fitzpatrick, this objectification and rationalization is, actually, law’s “muted ground,” its own silencing, occlusion, veiling of its self-grounded origin, irresolution, and the oscillation between savagery and civilization. To connect back to David Luban’s discussion of legal modernism, where he likens law to artistic modernism, and that law needs to enter into the dilemma of having to search for a “legal theory of artistic quality,” what legal deconstructionists such as Derrida and Fitzpatrick offer us may, in fact, be ways to think about the “aesthetics of law.” I have already mentioned the turn to narrative theory in legal modernism. But when considering the aesthetics of law, we need to also attend to emotions and perceptions of law, dimensions that are not merely textual or linguistic. For our purposes here, legal modernity as it is constituted by aspects of artistic modernism, deconstruction, and aesthetics, points to a fundamental assertion of law’s entanglement with rationality and arationality (Fischer-­ Lescano, 2016). After all, aesthetics is the discipline that thematizes relationships and contrasts, harmony and correspondence, counterpositions or analogies in a way that avoids an artificial split between the rational and the arational. Precisely such an approach seems to be particularly fruitful when it comes to developing a theory of legal knowledge. (Fischer-Lescano, 2016, 4) Already in the 1930s, German legal scholar and politician Gustav Radbruch called upon jurisprudence not to neglect the connection between law and art, calling for the realization that law is a supple field displaying “the peculiar mixture of coldness and passion” (Radbruch, 1932/1999, 106). Today, a

Legal modernities  189 whole field of “law and aesthetics” exists to explore how legal methodology and legal decision-making practices make use of the forms of rhetoric, art, and dramaturgy. The production, justification, and consequences of legal decisions have arational as well as rational dimensions. The conventional understanding of law truncates the legal process to its objectifiable and rational moment and hence takes account of only one segment of the law. In contrast, law and aesthetics analyses address law as a spectacle (i.e. visual strategies of legal discourse and forensic practices), law and theatrical performativity, law and film and new media, and so on. This field of legal aesthetics has had a vital and visible presence in legal studies, as exemplified by the presence of the important journal, Law, Culture and the Humanities (edited by Austin Sarat, one of the most visible names in legal humanities scholarship). This journal, as well as the professional association linked to it, has carved out a space for lively debates on legal history, legal theory and jurisprudence, law and cultural studies, law and literature, law and the performing arts, and legal hermeneutics (see www.lawculturehumanities. com). I will hasten to add that the strength of the humanistic–aesthetic engagement with law makes an important contribution toward a theorization of legal modernity as a legally pluralistic and cosmopolitan state of affair. A certain contour of legal modernity, I hope, is beginning to take shape through the discussion above of two major trajectories, namely, the philosophical strand of the ontology of law and the humanistic strand of the aesthetic essence of law. I now would like to briefly stitch these conceptual strands back to the sociology and politics of the history and consciousness of modernization. Typically, in looking primarily from the perspective of European modernization, some important contemporary thinkers (such as Anthony Giddens, Marshall Berman, and Charles Taylor) who write on what I will call the “mainstream view of modernity” point to a number of social and political transitions and crises. Once again, most prominent, of course, are the transitions and crises brought about by (a) industrialization and urbanization; (b) a move from absolute power to democracy, constitutionalism, and creation of various publics; (c) reorganization of sociality to allow for a profound proliferation of strata of identities and identifications; and (d) reconfiguration of power that is no longer centralized (most famously, of course, Foucault’s assertion of governmentality and biopower as new modes of control). The interaction among these elements—­disappearance of agrarian society, promulgation of constitutional democracy, fragmentation of identities, and decentralization of power—has become unpredictable; or to put it differently, these elements have become relatively autonomous sociological, political, and cultural processes. In the sphere of law, the sort of unpredictability discussed above results in a crisis of faith in the foundational value and objectivity of legal science. Legal scholar Peter Goodrich (1986) points out that the last major instance of such a crisis, at least within the common law world, dates back to the end of the nineteenth century and to a movement within legal education that became

190  Legal modernities later to be known as (American) legal realism. The ushering of legal science into modernity in the context of the industrial revolution, threw up a mildly apocalyptic sense that everything was up for grabs, that one could not tell if the world would soon be lost or saved. In its historical origin, therefore, legal realism was something that reacted to, and conjoined, a more general social pessimism, insecurity, and radical doubt associated with the fin de siècle of the nineteenth century (Goodrich, 546). The legal realists turned to the pragmatists and encouraged students of law to turn away from blackletter law and instead focus on the institutional practice of law and the empirical effects of everyday legal routines more generally as an instrument of discipline and control. Goodrich puts it this way: Legal studies have been infected by modernity and the legal educational institutions have unwillingly begun to come to terms with the need to debate, if not yet to teach, the rhetorical status of law, the political character of legal discourse and even the relation of nihilism (of the refusal to believe in absolute values) to the exegetical exposition of law as a system of rules. (547–8) Here, he makes an explicit connection between legal modernity and nihilism. Recalling Nietzsche, Goodrich points out that nihilism was and is a particular realization of, and response to, rationalist state ideology. He concludes that the orthodox and highly legalistic definitions of truth have outlived their purpose, which is to say these definitions are absurd when placed in the context of modernity. Thus, nihilism was the source for the historical and political consciousness of legal modernity. Through Nietzsche, we can say that the law was both the source of weariness and despair in the face of a decaying Christian moral order, and the hedonistic possibility of displacing that order and value system in order to create new forms of community and virtue. The emergence of a “Nietzschian legal realist school of thought,” as it were, forms the foundation and radical energy of critical legal studies from mid-twentieth century onward. There is a clear convergence between Peter Goodrich’s legal history and Boaventura de Sousa Santos’ critical sociology. To both of them, since there seems to be no solution at all to deal with the crisis brought about by the broken promises of modernity, we need to reckon with the view that legal modernity is in the moment of transition, which is another way to say that it is incomplete. There are variations within the stance of critical legal studies that deal with the transition in search for renewal, including, for instance, the transition into legal pluralism, repoliticization of law, the strive toward legal cosmopolitanism, etc. The one variation that many critics have been quite interested in lies in the question of “multiple modernities.” Although proponents of this notion of multiple modernities tend to confine themselves to considering the cultural varieties of modernities

Legal modernities  191 (e.g.  alternative arts, literature, and cultural practices from the Global South), this concept can be productively used to help us think about “multiple legal modernities.” I used the term “mainstream view of modernity” earlier, and it should be clearer now that a distinction was made between the mainstream singular European modernity and the idea of a multiplicity of modernities that has been flourishing far beyond the Western cultural and political centers.

Multiple legal modernities The consideration within critical legal studies to refuse an unreflective ideal of Western legal modernity has a dual significance. On one hand, it represents an endeavor to open the law for debate. As discussed earlier, the strong tendencies of poststructuralism and deconstruction, abstract as they are, serves to challenge the shallow orthodoxy of a determinate system of legal science. Here, critical legal studies makes a plea for a narrative of modern law that will take into account more than a singular internal logic of legal source and authority. On the other hand, the thinking around a multiplicity of legal modernities injects a healthy doze of skepticism to those who practice the law. It exposes the contingency, choice, and subjectivity that enter into the application of law. In short, the sense of multiple modernities in legal development, which refuses the narcissism of Western law and politics, can engender a sense of empowerment within the legal profession and legal academy alike. In this context of professional empowerment, legal skepticism, as it is oriented in legal pragmatism and legal realism, arrives as an essentially optimistic force bent upon recharging the humanity, the language, and roles of public life. Here, I am thinking rather specifically of legal thinkers and jurists from the Global South, who move away from acting as mere technicians of the Western legal canon in their search for alternative juristic argumentations. Some of them have argued for the compatibility between broad humanistic aspirations for justice (yes, found in universalistic legal beliefs, such as the beliefs of human rights) and specific heritage of local belief systems. Others have worked directly on Islamic law through modernizing it and bringing it into dialogue with the common law world. Still others are skeptical of universal legal traditions but see them as useful framing devices for negotiating social justice in complex social and political atmosphere. I call these thinkers and practitioners “Southern legal skeptics,” capable of speaking to the possibility of more diverse public languages of legal modernity and of debating about the alternative futures of public life resulting from a more cosmopolitan practice of the law. Before I discuss some of these Southern legal skeptics, I should first briefly talk about the broader context of discussion regarding a contemporary legal world that forms part of a more general multiplicity of heritages, institutions, and systems of representation.

192  Legal modernities I want to begin, as many others would, with Shmuel N. Eisenstadt. I am interested in the fact that for Eisenstadt, the question of “multiple modernities”, while general and civilizational in scale, grew out of quite specific lines of thought and unique historical experiences. We do too often speak about multiple modernities as a critical framework for a comparative cosmopolitan ideal centered on the endeavor to decenter European dominance in modernization theory. But for Eistenstadt, his own biographical details as well as unique intellectual training give us a distinctive context for understanding his specific view on multiple modernities. As a Jew and a Zionist intellectual, the Israeli thinker Eisenstadt had developed his own view of civilizations out of a long and expansive historical view of the Jewish predicament. He seeks to “modernize the Jewish people,” which to Eisenstadt meant removal from Europe in a long promised “return to history,” which is, in turn, another way of indicating modernization (Troen, 2014). It was out of his own professional and political commitment that he began to read widely and wrote about plural civilizations, the nature of generations and revolutions, and the place of religion in society, through offering comparative insights. Troen (2014) adds that Eisenstadt embarked on an intellectual development at Hebrew University in Jerusalem in the 1940s where he concentrated on reading Jewish history and thought, as well as critique of European homogeneity. Troen observes, Eisenstadt was nurtured in a relatively small institution that was endowed with intellectuals who thought very widely, indeed globally, over long expanses of time and place … That synthetic and ambitious mode of thinking, as well as the messages it contained, left an impact. It may be the very compactness, intimacy, intensity and perhaps isolation of that institution that stimulated comparison. (146) Eisenstadt had developed a rich set of ideas on civilizational comparativism, long before he came up with the notion of multiple modernities. In commemorating the legacy of Eisenstadt, sociologists Preyer and Sussman (2016) in their recent book Varieties of Multiple Modernities: New Research Design, speak about Eisenstadt’s span of work over five decades as “research programs.” For instance, Eisenstadt developed his “Research Program of Comparative Civilizations” in the 1960s and 1970s, as a basis for his continuous thinking that eventually led to his “Research Program of Multiple Modernities” in the 1980s, that most telltale time when development theories came to maturation especially in economics and political science disciplines (e.g. Eisenstadt, 1966; 1986a, b; 1988; 2002; 2003). In his comparative civilization analysis, in which he analyzed the processes of the social division of labor, the regulation of power, the construction of trust (solidarity) and of meaning, and so on in crystallizing social formations,

Legal modernities  193 Eisenstadt redefines the relations between agency (creativity), culture, and social structure. Preyer and Sussman (2016) tell us that Eisenstadt’s “First Research Program 1986” focuses on a critique of the convergence theory of socio-structural change. This initiated the multiple modernities perspective, a reevaluation of the so-called classical theory of modernization. They cite Eisenstadt: The notion of “multiple modernities” denotes a certain view of the contemporary world—indeed of the history and characteristics of the modern era—that goes against the views long prevalent in scholarly and general discourses. It goes against the view of the “classical” theories of modernization and of the convergence of industrial societies prevalent in the 1950s, and indeed against the classical sociological analyses of Marx, Durkheim, and (to a large extent) even of Weber, at least in one reading of his work. They all assumed, even if only implicitly, that the cultural program of modernity as it developed in modern Europe and the basic institutional constellations that emerged there would ultimately take over in all modernizing and modern societies; with the expansion of modernity, they would prevail throughout the world. (Eisenstadt, 2002: 1) The “Second Research Program 2003” focuses on the weakening of the function of the national state, on cultural dominance and, at the same time, on diasporas (Muslim, Chinese, Russian minorities in the new Baltic and Asian republics), minorities, and new types of social movements (feminist, ecological … peace movements … found in the non-Western sphere but simultaneously in Europe and the United States. (Preyer and Sussman, 13) The “Third Research Program 2015” extends the work further to focus on “the change in the self-description of societal communication from the distinction of universalism-particularism to hybridization, glocalization and global mélange” (25). These successive research programs on multiple modernities give us a glimpse into Eisenstadt’s long-term thinking on why modern life represents a structural change that continuously modifies its belief systems in a process of translation and social interaction. To say there are multiple modernities is also to say there are multiple temporalities. Yet to Eisenstadt, he did argue that although Western patterns were not the only authentic modernities, they “enjoy historical precedence and continue to be a basic reference point for others” (he calls this reference point by the name “Axial civilization”; 2003, 536). Stuart Hall (n.d.) would

194  Legal modernities reframe the translational and ruptural relation between Western modernity and other modernities in temporal terms: There is … no “empty, homogenous (western and global) time.” There are only “the condensations and ellipses, the endless discrepancies and displacements” … which arise when all the different temporalities … are also over-written … in relation to … the overdetermining effects of western temporalities, systems of representation and power. Hall’s rewriting of multiple modernities as multiple temporalities was in the context of speaking about diasporic black art. The emphasis, I surmise, is on the realization that modernity is neither singular nor plural, neither universal nor particular, but lies in the communication, interaction, and creative agency of members from various societies and their formal organizations. Talking in this way makes the fairly popular notion of “alternative modernities,” which is really a theory about hybridity, a bit problematic. Does hybridity guarantee the production of alterity, say, to European societies, constitutional arrangements, or even European art? To both Eisenstadt and Hall, multiple modernities are more like coexistence in different spatial and temporal orders, a collection of open-ended translational processes rather than a hybridization of different elements resulting in the obsfucation or even elimination of contradictions. When thinking about multiple modernities in the sphere of law, I propose that we follow two major lines: One is on the formulation of understanding of the “globalization of law,” and the other is on the constellation of juristic thinking and practices in the Global South, supported by the conception of counter-hegemonic international law. Before I embark on these two lines of discussion, I want to insert a small framing thought into the discussion. The discussion of the formulation of understanding of the “globalization of law” and of juristic thinking and practices in the Global South might seem that they fall roughly along the dividing line between positivist legal tradition and critical legal studies, respectively. However, the reality is much more mixed. There are legal voices of the North, who, with their tendency to focus on the elaboration of global law, also question the (still) dominant tradition of legal positivism in legal scholarship. Similarly, legal thinkers and jurists from the Global South tend to amalgamate positivist common law frameworks and alternative, postcolonial legal thoughts, especially when dealing with the economic and human rights interactions between the North and the South. As a result, the implications of the whole complex globalization of law are such that the whole paradigm of traditional Western jurisprudence has been encountering severe challenges from within and without for well over sixty years. Yet interestingly, the legal circles and law schools that are steeped in that paradigm of traditional Western jurisprudence are remarkably resilient in facing the challenges to their authority and beliefs in legal positivism. In some elite

Legal modernities  195 law schools, for instance, the response to the dizzying impact of globalization on law has been slow.

Globalization of law Needless to say, of the whole array of laws, international law occupies the center of attention when thinking about the impact of globalization on the mobility, diffusion, transplantation, and hybridization of law. International law, being what it is, is fundamentally about geography. In a world carved up into geographical units, thinking of international law would conjure the international trade regime; intellectual property rights; disputes over oceanic sovereignty under the Law of the Sea; the list of International Court of Justice cases about borders; and, of course, warfare, the International Criminal Court, the Geneva Conventions, and human rights law. Like international law, the reality of and discourses about globalization spring from the fundamental notion that no society, community, or nation is autonomous or self-contained. In the field of law, therefore, few scholars today can afford to be strongly parochial in respect of either their research focus or the sources that mobilize their imagination. In law, more and more debates have engaged with the complex phenomena of legal pluralism, multiple levels of ordering, and interlegality. Speaking generally about the problematic of globalization and more specifically on the “global legal common sense,” de Sousa Santos (2007) famously offers us a useful distinction between the processes associated with what he calls “globalized localism,” whereby specific local or national elements are taken up in wide circulation and, therefore, given global prominence, and those processes associated with what he calls “localized globalism,” in which local conditions, structures, and practices change under the influences of transnational forces. De Sousa Santos (2002) suggests that “core countries” of the world tend to specialize in globalized localism, while the “peripheral countries” are often imposed the choice of localized globalism. These respective tendencies form the two extremities of globalization, as it were, within which a spectrum of global–local, North–South interactions would take place. Recalling S. N. Eisenatadt’s later research program on multiple modernities, one can find many correspondences in the field of law that similarly want to examine the change in the self-­description of law from the fraught distinction of universalism–­ particularism in order to move to legal hybridization, glocalization, and even global mélange of various elements of legal interaction. There are many possible works on the globalization of law that one can turn to. But I am most interested in staying with the positivist-critical divide when discussing the ways in which law is globalized and, thus, how it enters into the dynamics and contradictions of multiple modernities. Here, I propose exploring briefly the works of five major legal thinkers and jurists: Anne-Marie Slaughter, William Twining, Boaventura de Sousa Santos, Balakrishnan Rajagopal, and Yash Ghai. There are, of course, many other

196  Legal modernities important thinkers who have contributed to our understanding of the multiplicities in legal globalization. So, the choice reflects my own likings (and ignorance), mainly for the reasons of their distinctive viewpoints, national and international standing, the impact of their work, the immanent possibility of comparison and convergence among their frameworks, and even their respective biographies. Anne-Marie Slaughter, an American lawyer and legal scholar specializing in international relations, develops her thinking on globalization and international relations alongside her work as a legal practitioner and her involvement in American foreign policy think-tank. Her involvement led to an appointment within Hillary Clinton’s State Department in 2009–2011. Her thinking on globalization and law has a distinctive American liberal flavor, bridging international relations as statist politics and international law as diplomacy and transjudicial communication. I consider her a liberal policy-oriented positivist. William Twining, a British scholar of jurisprudence, has been an influential thinker and legal educator in analytical jurisprudence and intellectual history of law. He shares a similar orientation of practicing positivist international law as Slaughter. In contrast though, he strongly recognizes the limitations of the Western juristic canon. Most relevant of his work to our discussion here is his long-term advocacy to cosmopolitanize Western traditions of academic law, by taking into account the nature and impact of globalization and non-Western legal traditions on legal theory at large. Having taught for seven years in Sudan and Tanzania, Twining, despite his adherence to the elite British law tradition, is an avid proponent of adding subaltern “Southern voices” to the rigorous rethinking of positivist law and human rights. I consider him a cosmopolitan positivist in the sphere of law and globalization studies. Boaventura de Sousa Santos, whose work I have been referencing through­­ out this book, has been an influential source in the sphere of thinking with Marxist international law in Latin America, Europe, and to a lesser extent, North America. Born in Portugal and educated in Germany and the United States, de Sousa Santos developed his nonpositivist sociology of law, proposed the notion of “parallel legality” as part of his theory of legal pluralism, and championed his notion of “another knowledge is possible” in influential left legal and activist circles. As a key figure of the WSF, he writes about counter-hegemonic globalization of law through his powerful concept of the “epistemologies of the South” (de Sousa Santos, 2004; 2006). I consider him a critical Marxist academic-activist. Balakrishnan Rajagopal, an Indian-born legal thinker, is one of the central figures in the network of scholars in Third World Approaches to International Law (TWAIL) and is widely recognized as a leading global commentator on issues concerning the Global South. He developed his scholarly thinking on law and globalization largely through on-the-ground experience of doing human rights work. After serving for many years in the

Legal modernities  197 United Nations High Commissioner for Human Rights in Cambodia, he refined his ideas about “international law from below” for a critical Third Worldist framework on development issues, social movements, and political resistance from the Global South. I consider him a critical subaltern thinker of law and practice. Yash Ghai, a Kenya-born of Asian descent, Oxford- and Harvard-­ educated legal scholar who, besides writing prolifically in international public law and constitutionalism in Commonwealth countries, is a well-known legal adviser to governments and agencies, especially in the South Pacific and East Africa. His academic and legal work over a span of fifty years has been in the areas of peacekeeping, anticolonial and antiracist constitutional development, and more prominently drafting of new constitutions for postindependent countries to ensure full integration of human rights principles. In 2000–2004, he was full-time Chair of the Constitution of Kenya Review Commission, traveling back and forth Kenya and Hong Kong. (I studied international law with Ghai at the University of Hong Kong during this period.) As a skilled mediator of law, Ghai is known for being able to win the trust of rival political leaders in order to broker sensible bills of rights. Ghai is ambivalent about human rights, yet he never abandons his belief in them. Instead, he works to inject his Marxist view into his commitment to parliamentary democracy, judicial independence, and the rule of law. I consider Ghai a critical legal pragmatist. With Slaughter and Twining on one side, representing in different ways the Western positivist legal tradition in law and globalization, de Sousa Santos on another side, representing the critical legal studies orientation, and Rajagopal and Ghai on yet a third side, representing in different ways the critical Third Worldist perspective, I hope to constellate some sort of terrain within which to think about law, globalization, and multiple modernities. This terrain would map a more contemporary context of legal theory of modernity that incorporates the perspective and politics embedded in the theory of multiple modernities. In their different ways, in different degrees, and with different political aspirations and impact, all of the five figures endeavor to challenge the dogmatic continental canon of legal theories that shape so much of the modern legal modernist project. Anne-Marie Slaughter: a liberal policy-oriented positivist position If globalization makes the more abstract notion of the multiplicity of modernities legible (especially to many dominant disciplinary discourses such as that of international relations, international political economy, and international law), then looking at and dissecting the various components of globalization is key to understanding the material operations of globalization. Within modernity, we have been living for a while with the sense that the old Westphaphian conception of states confronts a new geography of power. We have also been living with the tale that tells us the changes in

198  Legal modernities the very state of the state have led to an overall decline in the state’s significance, especially the decline in its regulatory capacities. Economic globalization, for one, shows us the strongest evidence of such a decline, thanks to the pressures for market deregulation and privatization of public sector firms and operations. Yet against these common tales, political economist Saskia Sassen (2000) has long ago argued that this new geography of power confronting states entails a far more differentiated process than notions of an overall decline in the significance of the state suggest. And it entails a more transformative process of the state than is indicated by the notion of a simple loss of power. These transformations inside the state and in the state’s positioning are partial and incipient but strategic. (109) As a liberal legal thinker and practicing lawyer of international relations, Anne-Marie Slaughter did not set out to write A New World Order to explain the changes of nation-states in economic globalization. As with any liberal thinker, especially American liberal thinker, economic globalization is a given; it is the unquestioned underlying drive of a globalized modernity. Saskia Sassen would call this a “new normativity” that originates from “the world of private power yet installs itself in the public realm and in so doing contributes to denationalizing what had historically been geared toward national state projects and goals” (2000; 111). For Slaughter, the global spatialized economic privatization is the historical bottom-line. Her concern is still with the process of denationalization, yet her primary representation of this change can be described in this way: The main object of change is not nation, but “government,” and the key process is not distributive privatization but distributive communication and rule-making. Herein lies a fairly dominant model today of explicating the multiplicity of governmental modernities in global times. Slaughter represents a generation of legal scholars who are less keen on general international jurisprudence, or the power relations inhered in the global reconfiguration of state power, than on figuring out a science of international relations amenable to new forms of governance. The most important of her works, in my view, is her 2004 book A New World ­Order. In it, she presents a highly persuasive account of what can be called ­democracy-enhancing multilateralism in global governance (see also ­Keohane et al., 2009; Sajo, 2005). Of course, hers is an account of how the specific species of democracy—American liberal democracy—that, upon entering into the global sphere, exercises a new model of global governance capable of engaging with multilateral partners and even adversaries. In this way, we can describe her project as one of updating American foreign policy in accordance with the highly complex, fractured global state of affairs. In cultural-theoretic terms, this kind of foreign policy discourse reconceives

Legal modernities  199 “multiple modernities” as networked modern machineries of governance. This discourse pays little attention to power differentials in the global field. Instead, its liberal pragmatism dictates a focus on the role played by functional agents in international relations and international law engaged in multilateral communication and diplomacy. I first proceed with a brief descriptive account of Slaughter’s “new world order” and then I focus on two significant theoretical and political implications of her approach for our understanding of multiple legal modernities. According to Slaughter, globalization has indeed decentered the significance of states. But her operative concept is “disaggregation.” We have reached a highly rational moment of modernity, Slaughter would say, in which different states are seeking cooperation, coordinating activities, and exchanging vital information, so as to combat “common problems,” such as global terrorism, financial crime, and human trafficking. Networks of government officials, including police investigators, financial regulators, legislators, and even judges, have formed communicative nodes—via both securitized communication networks and face-to-face diplomacy conferences. Slaughter produces the truism of our day: “Networked threats require networked response” (2). The key operators of the network are government elites; yet interestingly, Slaughter reframes these agents as nongovernmental. It is not that they do not belong to the governmental machinery; yet it is more true that they are “components” of a previously conceived totality called the state or government. The disaggregated components, therefore, acquire their own autonomy. One way of theorizing this scenario is the notion of governance-­withoutgovernment. Empirical evidence suggests that where previously unitary states were the key actors in the global political system, now we have new institutions and forms of international relations that represent gears and apparatuses of the state armed with a corresponding set of techniques and protocols in their exercise of transnational governance. Finance ministers, securities commissioners, environmental agencies, armed forces representatives, and other para-governmental representatives are now forming units of transgovernmental operatives. The “new diplomats,” Slaughter calls them, work more or less independently without representation of the state as a singular body. The same applies to legal agents such as legislators and judges. One of the more interesting discussions provided by Slaughter concerns the notion of a “global community of courts.” Here, she talks about domestic court judges whose adjudication work has brought them to close multilateral communication with one another across national boundaries. Indeed, in their everyday practice, judges (in common law traditions) reference previous legal decisions and, in so doing, reproduce a juristic canon. Equally common is “cross-referencing” with foreign courts across the boundaries of nation-states. Slaughter (2004) observes that courts taking part in this “new world order” are characterized, inter alia, by a “conceptual shift … from two systems—international and domestic—to one” (192). She holds that

200  Legal modernities the institutional identity of all these courts, and the professional identity of the judges who sit on them, is forged more by their common function of resolving disputes under rules of law than by the differences in the law they apply and the parties before them. It stretches too far to describe them all as part of one global legal system, but they certainly constitute a global community of courts. (192) While critics who perform empirical studies of judges have refuted Slaughter’s claim of the convergence of a “global community of court” (see, for example, Wiener and Liste, 2014), what Slaughter does is to effect an important conceptual shift. In committing what may be called an error of misrecognizing transportation as translation—that is, communicative cross-referencing without consideration of contextual reinterpretation—Slaughter is, I think, asking, nonetheless, whether and how new “epistemic communities” emerge in a historical framework characterized by multiple legal modernities. The notion of “epistemic communities” is not new to the literature on international relations. The works of Adler (1997) and Haas (1992) have discussed epistemic communities as consisting of professionals and elites sharing, among other things, a “set of normative and principled beliefs … shared notions of validity … intersubjective, internally defined criteria for weighting and validating knowledge in the domain of their expertise … [and] a common policy enterprise” (Haas, 1992, 46). Slaughter’s “judicial networks,” therefore, exemplify new epistemic communities through social construction. Whatever global legal normativity is produced in the process, it is grounded in social actors, their motivations, knowledge, interests, values, and beliefs; in short, their network of social practices. Notably, Slaughter’s framework is about outlining a broader understanding of normativity in the global realm within and for a global community assumed to be marked by fundamental norms such as democracy, human rights, and the rule of law. In other words, her framework does not take into account the question of power within the multiplicity of legal modernities. For our purposes, I want to go on to unpack the politics of Slaughter’s “new world order.” In her framework of “governance-without-government,” the explicit goal is to “enhance” American-inflected liberal democracy across the world (Howse, 2007). But how is this achieved? I propose looking at two specific problematics. Discussion of the first problematic can be brief, as it has to do with the problem of the “privatization of governance.” I say brief because we have commonly understood that in any form of ­globalization, modern states are primarily interested in shifting governance from public to private operations or at least to a hybrid of p ­ ubic–private operations. Slaughter’s vision of a “new world order” pushes a “governance-­ without-government” framework and, therefore, implies an assignment of primacy to private actors who are not only subgovernment representatives but also nongovernmental organizations (NGOs), legal associations, and

Legal modernities  201 even corporations. Political scientist Rudder (2008) calls these players, who perform government-like duties, members of “private governance.” She argues that despite their varieties, the characteristic that unifies these groups is that they make decisions which bind not only their members but also others. These others are the wider public who have no opportunity, no ability, and in many cases no apparent inclination to participate in choices that may have a significant impact on them. (899) Rudder concludes that It is important to understand the workings and implications of private governance for the polity at large. Questions of whose interests get served, who gets to make decisions, how these participants view the world and their tasks, whether conflicts of interest are built into schemes of private governance, and how a larger public is affected by privately made decisions are ones that should be of particular interest to political scientists. To the degree that the constitutional order, its protections and forms, are eclipsed by private and public-private governance, political science must pay attention. (909) The second problematic in Slaughter’s model of legal modernity amounts to what I call an “institutionalization of history.” As someone working in at the intersection of international relations theory and international law, Slaughter’s concern is to center the role of institutions and agents, disaggregated as they are from the singular totality of the state. By “disaggregation,” Slaughter refers mainly to decentralization processes. A state begins to “dissolve” into various functional components. Yet a political game is underway, and in the process, it redefines “global history” as a network of moving archives of actions that form global (disaggregated) institutions. Global history, or global modernity for that matter, is constituted by micro, calculative, rational, and distributive institutional actions/games. State legal representatives—law-enforcement officials, legislators, and judges— become political actors who calculate their stakes in their immediate settings, ascertain the nature of the constraints under which they operate and then make options. Every such option is conditioned by earlier ones. Network operations, therefore, become a building up of micro-temporalities. By the “instutionalization of history,” I am thus thinking of how liberal regimes construct a specific understanding of history as micro-­temporalized actions and games. Whatever feasible prospective option is superior—that is, more efficient, less costly—will be ranked higher to guide decisions. But this is done so according to point-to-point comparisons; state agents in

202  Legal modernities multilateral settings balance new decisions with those made in the past. This “institutional turn” in global law stresses the processes of actions/gaming that can shape up power relations in the longer term, by way of temporally accumulated decision points. This can apply to multiple domains of global relations, including finance, trade, development, and even war and peace. For our purposes here, it is important to understand how a liberal ­policy-oriented legal positivism, like that of Slaughter’s, presents a particular version of legal globalization. In this version, “enhancing democracy” is its global political agenda, and “governance-without-government” is its modus operandi. Through the “privatization of governance” and the “institutionalization of history,” a particular (American) agenda of legal globalization is achieved. William Twining: a cosmopolitan positivist position In contract to Anne-Marie Slaughter, William Twining is a cosmopolitan positivist. After receiving legal training from his teacher H.L.A. Hart, who is a major figure in Western legal theory of the 1950s and 1960s Oxford, Twining began to marshal wide-ranging sources to build his teaching and scholarship around analytical jurisprudence. For our purposes here, we focus mainly on the thinking around the questions of globalization and law in Twining’s general jurisprudence. Interestingly, with a conventional background in legal studies, Twining was keenly aware of the importance of cultural cosmopolitanism to inform a legal thinker’s view of law. In a moment of self-consciousness, he writes, I was born in Uganda of an English father and a mother of Welsh-­ Huguenot descent. I had a colonial childhood, a neo-colonial adolescence and a post-colonial start to my career. I married an Irish wife. My daughter was born in Khartoum and my son in Dublin. I have just returned from India … Yet in style, residence, outlook, accent, and prejudices, I am irredeemably English. At best I am … a rooted cosmopolitan. And it is as a cosmopolitan, rooted in London and Oxford, that I want to share with you some thoughts about the local implications of globalization for Jurisprudence as a subject and for the institutionalized discipline of law in this country. (Twining, 1996, 1) As a “rooted cosmopolitan,” Twining would naturally see the world as interdependent. Yet he discredits social and legal theories that argue that the world was moving inexorably toward centralization or homogenization. “The global does not exclude the local, but rather they interact in very complex, sometimes contradictory, ways,” writes Twining (3). He also points out that many modern disciplines have indeed learned to challenge their own propensity to overemphasize the importance of boundaries, treating states,

Legal modernities  203 societies, and tribes as self-contained, decontextualized entities. Using the examples of the internal and external relations of such groupings as major religions (the Islamic world, the Catholic Church, and Judaism), the Commonwealth, Organization of the Petroleum Exporting Countries (OPEC), the European Union, North Atlantic Treaty Organization (NATO), and so on, Twining shifts the study of global jurisprudence toward attention to the different patterns and levels of relations, including nonstate relations across frontiers (which he calls transnational relations) and the operation of the global system as a whole (which he designates as global relations). Having no simple geographical divisions, global law produces a wide variety of significant actors who are relevant to analysis of patterns of legal relations in the modern world. Twining argues, Can one, for example, give an adequate account of law in the modern world which does not give some attention to the significance of transnational non-governmental organizations (Amnesty International, Greenpeace, the Catholic Church, international women’s movements, international trade union organizations), to peoples that are nations without states (the Maoris, the Scots, gypsies, the native peoples of North America and Australia), to organized crime, liberation movements, multinational companies, transnational legal practices, and significant classes such as the vast herds of displaced persons (both refugees and the internally displaced)? The concept of legal personality, an old favourite in Austinian analytical jurisprudence, may be ripe for a revival in a global context. (1996, 6) Particularly important for our purpose here is Twining’s emphasis on the “non-legal orderings.” Something is emerging, albeit in an unstable and nascent state, alongside the conventional legal order, whether at the domestic or international levels. In other words, Twining charts a parallel legal universe and theorizes legal “systems” that are nonstatist. According to Twining, notwithstanding the variety of “non-state law,” including the transnational lex mercatoria (corporate laws), Islamic Law, and transnational humanitarian and human rights law, there exist “non-­ legal orderings.” Referring to de Sousa Santos’ doctoral study of the favelas in Brazil, in which he investigates an alternative universe of local and fractured forms of governance and social order, Twining joins him to champion the study of subordinated modes and sites of law that operate in parallel with the normative order of the political state. By attempting to enlarge the agenda of legal theory so as to embrace cross-cultural analytical concepts and problems, he has the objective of constructing “a workable normative basis for co-existence and co-operation in the context of a world characterized by pluralism of beliefs and dynamic multiculturalism” (Twining, 2009, xi).

204  Legal modernities In these endeavors, however, Twining never moves too far astray from positivist law; he even attempts to salvage cosmopolitan elements in the legal thinking of the so-called top eight jurists representing the Western mainstream of taught jurisprudence, including H.L.A. Hart, Ronald Dworkin, John Rawls, John Finnis, John Austin, Jeremy Bentham, Hans Kelsen, and Karl Llewellyn (see Twining, 1996, 2000, 2004, 2005). His point is that these canonical legal positivists are relevant to the modern globalized world, only if their legal theories can be retooled. For instance, Twining is of the view that proponents of natural law theory, such as John Finnis, are “clearly directly relevant to questions about Humanitarian Law, human rights and related matters at global, transnational, and other levels” (1996, 22). Those who developed a general science of positive law can be updated with modern analytical tools. Other dogmatic thinkers of traditional jurisprudence can be used as negative cases against which to advance a refutation of the monistic view [that can be] one of the most powerful strategies for building up a case for maintaining that a global jurisprudence needs to depict the phenomenon of law in the modern world as to a large extent disorderly, unsystematic, and serendipitous. (22–23) To his critics, Twining remains too conservative, logocentric, and institutional in scope (e.g. McDonald, 2009). He only makes passing comments about social or critical theory of law. Norrie (2010) is more direct in his critique of Twining’s General Jurisprudence: “The intellectual tradition that includes Hegel, Marx, Nietzsche, Weber, Schmitt, Adorno, Arendt, Habermas, Foucault and Derrida is very quiet in General Jurisprudence” (236). Even with publication of his important volume, Human Rights, Southern Voices: Francis Deng, Abdullahi An-Na’im, Yash Ghai, Upendra Baxi (2009), critics such as Relis (2011) charge that the project is still among the “topdown textual and theoretical analyses relating to human rights practice [that] cannot adequately capture the textured realities and complexity of factors involved [e.g.] bottom-up perspectives from local actors … at grassroots levels” (511). Alan Norrie is more pointed about the problem of Twining’s positivist legal view, which generates unwarranted optimism regarding law and global development: [I]f we take Ghai and Baxi as examples, I think they would provide a much more “difficult” account of the relationship between development, government and law than Twining. Whatever their thoughts on the MDGs [Millennium Development Goals], the essence of their positions is to consider either how, within a broadly materialist frame of analysis, law can be used pragmatically to achieve certain constitutional or human rights arrangements (Ghai), or how the voice of the most impoverished sectors of society is excluded and needs to be heard

Legal modernities  205 in human rights talk (Baxi). Now from either position, there is I think an interesting contrast with Twining’s more optimistic account of law and the possibility of development. The possibility of, but more importantly the structural limits on, practical legal reform of law based action in an often hostile environment, or of redressing systematic, structural exclusion operates as a stern warning to Benthamite reformism. It suggests a world where unintended consequences and deflected purposes are the norm rather than the departure from it, and where successful reform is the historical equivalent of moral luck. (238) As a “rooted cosmopolitan,” Twining struggles to lift law and legal theory out of the Western juristic canon. Ultimately, what he introduces is a disruption of law’s ontology by bringing in an epistemological view of law, globalization, and multiple legal orderings. His work also underscores the need for a greater recognition and articulation of Southern juristic views and traditions and incorporation of them into the discourses on human rights within any legitimate international order. Boaventura de Sousa Santos: a critical Marxist academic-activist position Boaventura de Sousa Santos is an influential figure in the discourse of multiple legal modernities, especially through what I think are three of his most important books, Toward a New Legal Common Sense (2002), Another Knowledge Is Possible (2007), and Epistemologies of the South (2016). He is discussed here with the explicit purpose to turn away from the positivist orientations of Slaughter and Twining. As will be discussed below, de Sousa Santos looks at the globalization of law as a critical problematic because of how globalism reifies divisions and hierarchies, and more importantly, globalism reinvigorates the colonial consciousness. De Sousa Santos practices a kind of “radical sociology” in his theoretical and ethnographic work on broad questions of justice between North and South in various colonial and postcolonial contexts, including Brazil, Colombia, India, South Africa, and Mozambique. In an interview, he spoke about the time when he studied law in the 1960s and then Philosophy in Berlin, was also the time of the Portuguese dictatorship and the height of the Cold War. In that period, Marxism was an important influence. But so was his concrete research experience in the favelas of Brazil. The work was the real source of his radicalization. Against the dominant sociological analyses of his time, de Sousa Santos developed a profound distaste for positivism: For me positivism was often the most violent way of taking and gaining knowledge, involved as it is in forms of epistemicide—in the killing of

206  Legal modernities other knowledges in order to monopolise the whys of understanding the world in narrow ways. (Phipps, 2007, 92) He calls positivism “the philosophical consciousnesss of knowledgeas-regulation. (2002, 41) arguing that [s]ystematic knowledge and systematic regulation are the two sides of order. Systematic knowledge is the knowledge of observed regularities. Systematic regulation is the effective control over the production and reproduction of observed regularities. Together they constitute the positivistic effective order, an order based on certainty, predictability and control. (41) I cite his strong view against positivism because the intellectual convulsion one senses from his remarks helps to explain his strong motivation to disrupt and decenter Western epistemologies and legal positivism. In our context, I want to discuss de Sousa Santos for the purpose of delineating a nonpositivistic view of law and globalization. It is, first, worth repeating de Sousa Santos’ influential view on globalization. He starts by stressing that there is no genuine globalism. This is so because of the nonlinear, asymmetric, and contradictory processes of globalization, which, nonetheless, produces globalism as “the successful globalization of a given localism” (2002, 177). With this, he went on to develop the by-now familiar distinction between “globalized localism” and “localized globalism.” Here, I cite him at length for clarity: The first one I would call globalized localism. It entails the process by which a given local phenomenon is successfully globalized, be it the worldwide operation of TNCs, the transformation of the English language into lingua franca, the globalization of American fast food or popular music, or the worldwide adoption of American copyright laws on computer software. The second form of globalization I would call localized globalism. It entails the specific impact of transnational practices and imperatives on local conditions that are thereby altered restructured in order to respond to transnational imperatives. Such localized globalisms include: free trade enclaves (e.g. export-processing zones in semi-peripheral states); deforestation and massive depletion of natural resources to pay for foreign debt; use of historical treasures, religious sites or ceremonies, arts and crafts, and wildlife for tourism; ecological dumping; conversion of sustainability-oriented agriculture into export-oriented agriculture as part of “structural adjustment” programmes; and the ethnicization of the workplace. In this context,

Legal modernities  207 the international division of the production of globalism assumes the following pattern: the core countries specialize in globalized localisms, while upon the peripheral countries is imposed the choice of localized globalisms. The world system and, more specifically, what in it is designated as globalization consist of a web of localized globalisms and globalized localisms. (de Sousa Santos, 2002, 179) Understanding of his theory of globalization would not be complete if we ignore the two additional processes under globalization. First, there is the reality of complex interdependencies among elements of globalization that allows subordinated nation-states, regions, classes, or social groups to organize globally in defense of perceived common interests. De Sousa Santos calls this subaltern cosmopolitanism. The organizing utilizes the capabilities of transnational interaction and infrastructures created by the world system (e.g. international labor organizations, human rights NGOs, international networks of alternative legal services, etc.). Second, there is the whole process that speaks of the whole planet as the common heritage of humankind and mobilizes knowledge and awareness that can only be addressed at the global level (e.g. nuclear weapons, the Antarctica, global warming, etc.). De Sousa Santos reminds us that while subaltern cosmopolitanism is developed out of civil society activities, the articulation of the common heritage of humankind originated from public international law (e.g. environmental laws). The broad set of ideas mentioned above form the crux of de Sousa Santos’ critical Marxist belief in the global dynamics trapped in the perpetual contradictions between social regulation and social emancipation. Globalized localism and localized globalism speak to hierarchies of social regulation, whereas subaltern cosmopolitanism and common heritage of humankind create possibilities for social emancipation. When these broad ideas are translated into sociological investigation, de Sousa Santos turn to more tangible categories of comparison, including the position of a particular country in the hierarchy of the world system, the historical trajectory of the country up to and through modernity, and the  ­h istorical family or families of law and legal culture dominant in the country (2002, 187–188). In other words, grasping one’s “pecking order” in the world system, one’s experiences of becoming modern, and one’s framework of legal culture, these provide a set of baseline markers for a sociological investigation of globalization. Moreover, they permit a combination of a political economic analysis and a cultural political analysis of legal comparison (193). In my view, herein lies de Sousa Santos’ unique contribution to the theoretical discussion around multiple legal modernities: His main operating unit is a country; his framework of analysis is one of comparison of orders in the world hierarchy, historical experiences, and legal cultures; and his commitment is a well-rounded, nonpositivistic epistemological understanding of grounded legal modernities. This would mark what he himself calls a work of “poetic activism” meant to counteract legal science with

208  Legal modernities provocations, surprise, and creativity that, in de Sousa Santos’ view, are the foundational characters of law (see Phipps, 2007, 94). Throughout his work, the emphasis on “interculturality” has grown by prominence over the year. He derives this commitment primarily through his involvement in the WSF and other global left formations. Interestingly, besides performing intellectual analysis, he encounters the WSF as an emotional universe, where an “inexhaustible interculturality” can be encountered for participants to take risks, to be open toward the other, to “imagine other worlds,” and so on (see Phipps, 95–97). The same ethos would inform his wide-ranging work to fight the “dispossession of knowledge” and “cognitive injustice” in what he calls “epistemicide” throughout the long history of colonialism (de Sousa Santos, 2016), and his effort to reframe human rights by turning the discourse and practice of rights away from political and legal positivism and into radical interculturality (de Sousa Santos, 2015). I shall return to these two important strands of de Sousa Santos’ work later in this chapter. De Sousa Santos and Twining share a common desire to cosmopolita­­ nize the law; yet de Sousa Santos presents a much more complex theory because his view of cosmopolitan law is strongly entangled with social life forms and experiences. Twining’s project of cosmopolitan jurisprudence, however, resides mostly in the legal circles, even as he attempts to radically expand those circles. De Sousa Santos and Slaughter also share something in common, namely, an attention to the transnationalization of nation-state regulation and to the changes of law and international relations through regional interaction. However, a clear difference between the two is how de Sousa Santos institutes a set of counteractive knowledges of law in the global settings, which he broadly frames as the legal consciousness and practices of emancipation. In this way, he endeavors to make a rigorous comparison between the changes in transnational and regional laws and legal operations (“governance-without-government” as a hegemonic approach) and the changes in the law of “people on the move,” the law of indigenous peoples, human rights, and the law of the global commons (“subaltern cosmopolitanism” as a counter-hegemonic approach). Balakrishnan Rajagopal: a critical subaltern position At the ninety-fourth Annual Meeting of the American Society of International Law, Makau Mutua, a Kenyan-American legal scholar, delivered his speech called “What is TWAIL?” The opening line of the published script of his lecture was “The regime of international law is illegitimate” (Mutua, 2000, 31). He went on to explain, It is a predatory system that legitimizes, reproduces, and sustains the plunder and subordination of the Third World by the West. Neither universality nor its promise of global order and stability make international

Legal modernities  209 law a just, equitable, and legitimate code of global governance for the Third World. The construction and universalization of international law were essential to the imperial expansion that subordinated non-­ European peoples and societies to European conquest and domination. Historically, the Third World has generally viewed international law as a regime and discourse of domination and subordination, not resistance and liberation. This broad dialectic of opposition to international law is defined and referred to here as Third World Approaches to International Law. (TWAIL, 31) At that time, Professor Mutua was teaching law at the State University of New York in Buffalo and was Director of the Human Rights Center there. “TWAIL” is a historically located left intellectual and political movement. Mutua would be among the network of TWAIL scholars who dates the birth of TWAIL as contemporaneous to the Bandung events (see, for example, Mickelson, 2008; Chimni, 2006). The Bandung spirit that emphasizes, among other things, the comparative but conjoined experiences of oppression across the developing world is reflected in TWAIL scholars Anghie and Chimni’s (2003) statement here: For TWAIL scholars, international law makes sense only in the context of the lived history of the peoples of the Third World. Two important characteristics of TWAIL thinking emerge from this. First, the experience of colonialism and neo-colonialism has made Third World peoples acutely sensitive to power relations among states and to the ways in which any proposed international rule or institution will actually affect the distribution of power between states and peoples. Second, it is the actualized experience of these peoples and not merely that of states which represent them in international fora, that is the interpretive prism through which rules of international law are to be evaluated. (78) In the same vein, Balakrishnan Rajagopal mounts his critique of international law from a Third Worldist political perspective. The importance of Rajagopal’s counter-hegemonic critique of international law for our understanding of multiple legal modernities should be understood within the history and political significance of his involvement in the TWAIL network. TWAIL scholars’ speaking position as seen above is representative of diasporic left legal intellectuals from the developing world who endeavor to completely reconstruct international law. Like Mutua, Anghie, Chimni, and many others, Rajagopal is widely recognized as a member of the list of global commentators on international law issues concerning the Global South. His scholarly thinking on law and globalization, which is drawn from on-the-ground experience of doing human rights work, led him to serve for

210  Legal modernities many years in the United Nations High Commissioner for Human Rights in Cambodia. Rajagopal’s main diagnosis of international law is that it faces a triple threat of globalization, global fundamentalist networks, and the imperial position of the United States in terms of its hegemonic control over global norms and institutions. Combined together, these developments of the current historical conjuncture raise the specter of a return to imperial international law. Legal anthropologist Rosemary Coombe (2011) comments on Rajagopal’s critique: Protesting international law’s promotion of human rights as the only appropriate route to emancipation and social justice, he shows how international human rights law has repeatedly developed so as to contain resistance movements and challenges to Western hegemony while enabling and extending new forms of governance over Third World masses envisioned through colonial tropes of fear and loathing. (234) To this situation, Rajagopal (2006a) asserts: “The Third World has burst out of the seams of the Westphalian structure, if ever it was wholly within it” (768). This means the very notion of the “Third World,” even in declining use, should be seen as the radical political locus for a counter-­ hegemonic international law. According to Rajagopal, to do this requires that, first, “the Third World’s reliance on the traditional sources of cosmopolitan discourses in international law, such as human rights or development, needs to be seriously rethought” (768) and, second, “the discourse of development, which has provided the political basis for Third World engagements with international law, needs to be seriously rethought” (768–9). Rajagopal’s reformism does not seek a complete reconstruction of international law, but it requires an effort to recognize preexisting imperial tendencies in both world politics (e.g. the UN body, see Rajagopal, 2007) and domestic judicial governance (e.g. the Indian court system, see Rajagopal, 2006b). Importantly, this aligns with the Marxist legacies in left international law. Soviet law, for instance, has largely been seen as the historical locus for forging the international struggle for self-determination in 1945. Yet Soviet legal legacy has also produced many troublesome episodes of oppression. Yet, on the whole, international law on the left keeps states and international lawyers on the toes, as it were, with questions about the influence of economic materialism on law; with problems of ideology and hegemony; and, most importantly, with the political–military–legal complex of imperialism (see Marks, 2008). Perhaps, some of the more visible impact of left critique and political intervention into international law was those that took place in the 1970. After decolonization and the oil crisis of 1973, the newly decolonized states were able to attain some measure of

Legal modernities  211 parity and collaboration under the slogan of “The New Economic order.” The Group of 77 caucused in General Agreement on Tariffs and Trade (GATT) to push for better trade benefits, and so on. Drawing on this legacy, Rajagopal sees the two important sites of protection—human rights and ­development—as displaying aspects of hegemonic international law, but at the same time, as the very sites where counter-hegemonic reform must take place. He comments, The Third World, in all its complexity, needs to internalise the uncomfortable fact that the human rights discourse is part of the problem of global hegemony and the absence of global justice. However … this should not lead to the dismissal of human rights, but rather to a search for the radical democratic potential in human rights that can be appreciated only by paying attention to the pluriverse of human rights, enacted in many counter-hegemonic cognitive frames. In this new approach, official and sanctioned human rights discourse becomes one of many languages of resistance, enacting a cultural politics at many scalar levels. (Rajagopal, 2006a, 768) If human rights are reconceptualized as pluriversal and scalar, what would be the scope and substance of the new approaches to human rights and international law from a TWAIL perspective? Among Rajagopal’s suggestions is the possibility of establishing coalitions of smaller states, social movements, and cities, forming tactical scales of alliances with larger political entities (e.g. states, transnational NGOs, and transnational progressive social movements) in particular negotiations, while increasing the prominence of substate actors in international law more broadly (781). As for counter-­ hegemonic approaches to development issues, Rajagopal points to the discussion among TWAIL lawyers on how to reposition international law for a tighter embrace with development. For instance, Rajagopal recalls a redefinition of the field of security by the UN, a field that has been enmeshed with the field of development, as evidenced from the 2005 report of the UN Secretary-General on the notion of “larger freedom” (cited in Rajagopal, 2006a, 778). The notion of “human security” has had a major impact on the redefinition of security and led to consequences in the field of development law. Rajagopal believes that the radical democratic possibilities revealed by the “post-development” critics, such as Serge Latouche, Majid Rahnema, James Ferguson, and Arturo Escobar, could strengthen a new global politics that leads to a reformulation of existing international law along cosmopolitan lines. Of Rajagopal’s work, it is the strong push for reform through subaltern social movements of the masses that most characterizes his theoretical contribution to international law. He insists that “resistance” should be a proper analytical category in international law, reminding that

212  Legal modernities [s]ome leading scholars … have attempted to construct a broader approach to international law, mainly by identifying non-state actors as “international actors” and by arguing for a right to personal identity that would permit international law to accommodate a plurality of social agents (on the basis of class, gender, race, ethnicity, etc.). Despite this attempt, much of what occurs in extra-institutional spaces in the Third World remains invisible to international law. (Rajagopal, 2003, 406) Speaking of social movements of the masses, Rajagopal is disillusioned with the legacy of Marxism. He asks, “What is the role of Marxist theory in the new forms of Third World mobilization?” (413). His answer, which he puts bluntly, is that “social movements in the Third World emerged substantially as a response to the failure of Marxism as a discourse of liberation” (413). ­Rajagopal argues that Marxism’s obsession with the singularity of class categories in social struggles, its misrecognition of the state as a unified political space, and its inability to comprehend new and complex forms of global economy beyond industrialized forms renders it marginal to the important contemporary struggles in the Third World. Rajagopal (2005, 2013) advocates a theory of resistance in social movements as “cultural politics.” For all movements, he asserts, identity is strongly associated with survival strategies. And he understands the latter as “cultural” in the sense of it being a part of “a decentralized phenomenon that encompasses power struggles enacted in private, social, economic, and cultural arenas, in addition to the formal arenas” (2003, 416). Drawing on Foucault, Fanon, Gramsci, and Chatterjee, Rajagopal constellates a theoretical arena capable of articulating the political arguments for the insertion of mass resistance into international law. The same theoretical apparatus would inform his attempt to rearticulate human rights and development politics. It is in these ways that Rajagopal and de Sousa Santos share a great deal of common political ideals. They both figure the Global South at the center of their counter-hegemonic projects and as the rich source of sociocultural as well as legal diversities. Both are occupied with empowering new classes of social agents for resistance not only in the cultural political arena but also in the legal arena. This repositioning of the marginalized, subaltern social subjects as the proper inheritors and actors of law and rights is contrasted with the legal positivists’ preoccupation with state agents and textual laws as the primary subjects of law. Yash Ghai: a critical legal pragmatist position Yash Ghai specializes in constitutional law and political economy and acts as an advisor to governments. Born and raised in Kenya as an ethnic ­African-Asian, Ghai saw through his study of constitutional law the importance of articulating clearly the politics of multiethnic identities, especially

Legal modernities  213 in countries ravaged by war and independence struggles. Reflecting on his teaching experience in the law school in Dar-es-Salaam in the 1960s, Ghai expresses his ambivalence toward those who either champion the law or weaken it unreflectively: My experience seemed to point to the problems when fidelity to the law weakens—the arrogance of power, the corruption of public life, the insecurity of the disadvantaged. I was not aware, of course, of other purposes of the law which served the interests of the rich and the powerful … I retained my ambivalence about the legal system, and was not attracted to the attitudes of many private practitioners I met (or the interests they served). At the same time I knew the evasion of the law or the dilution of its safeguards harmed many of the people the radical lawyers were championing. (cited in Twining, 2009, 25) When I took law studies with Yash Ghai at the University of Hong Kong, I observed that when he disagreed with a certain viewpoint, he did so patiently, but only to clear the ground to slowly mount his critique. When he spoke about injustice, he did so with a firm tone but only to explain and to place things in context. Ghai’s temperament lends him a high degree of credibility and respect, allowing him to negotiate competing claims effectively in tough situations concerning human rights violations or constitutional reform. In William Twining’s important book Human Rights, Southern Voices (2009), he anthologizes Yash Ghai’s work as representing one of the major sources of juristic thoughts and professional practice in human rights from the Global South. As a public lawyer, Ghai seeks to work through the practical elements on the ground in close details. He honed his skills to become an effective negotiator in front of repressive regimes. His specialty, if you will, is to broker sensible peace deals but not in ad hoc agreements but through reforming the constitutions of the countries concerned. In the early 2000s, when he served as full-time Chair of the Constitution of Kenya Review Commission, he would travel up and down the country, met politicians, opinion leaders, religious leaders, community gatekeepers, and citizens of all class and ethnic backgrounds. The many consultation sessions, small or big, contentious or congenial, provided him with many diverse kinds of opinions and ideologies and prepared him for his work in negotiating human rights protection in the country’s constitutional reform. He disavows the belief that governments in repressive regimes are monolithic and rigid, partly because those regimes are often constituted by multiple ethnic groups with competing interests in power. Regimes, therefore, often need to negotiate from within and without. To Ghai, multiculturalism is the concrete, lived reality for many countries, including many in the Global South. He puts his energy to rework the system of human rights protection in a given country, by searching spaces of vagueness,

214  Legal modernities ambiguities, and flexibility in the legal concepts in governance. For the multicultural states that he has served in the capacity of a lawyer and legal scholar, from Fiji to South Africa, India to Kenya, he was able to find common social and legal norms and use them as resources for local arguments and negotiations in the process of achieving a constitutional settlement. Importantly, Ghai disavows the idea that the support for universal rights solely comes from Western democracies (Twining, 27). Ghai (1998) writes, “there is very considerable support for rights in Asia, among parliamentarians, judges, academics, trade unionists, women’s groups, and other nongovernmental organizations” (169). Yet he fully comprehends the range of cultural relativisms operating in multiculturalist settings, resulting in many different ways in which opportunities for rights negotiation are opened up, mystified, or totally limited. He writes, Simple polarities, universalism/particularism, secular/religious, tradition/ modernity do not explain the complexity; a large measure of flexibility is necessary to accommodate competing interests … What is involved in these arrangements is not an outright rejection of either universalism or relativism; but rather an acknowledgment of the importance of each, and a search for a suitable balance, by employing, for the most part, the language and parameters of rights. (Ghai, 2000, 1139–1140) With the wide-ranging practical experiences of negotiating rights, Ghai stresses that in the process, all categories of knowledge get interrogated, including what are meant by “culture,” “claims of justice or rights,” “collective versus individual rights,” and “resistance.” Rights are frames or tools for negotiation purposes; this is why there is no absolutism of rights. The pragmatic need to find a suitable balance of rights claims also often engenders new opportunities for reconceptualizing, even interrogating, the very meaning of cultures, identities, multiethnic nationalism, and rights of the people.1 I hope to have established the idea that the legal modernity inheritance, dating back to several hundred years ago since the onset of natural law and emergence of statehood in Europe, has been fractured. The dominant Western legal canon has been developed largely without reference to other legal traditions and alternative waves of legal movements. The age of legal universality proceeds uneasily, as other legal discourses from the Global South exert their presence through a variety of epistemological, judicial, and cultural means. Members of the left legal intelligentsia, such as Rajagopal, Ghai, de Sousa Santos, and many more, have made possible diverse interventions into the Western legal modernist project through different critical approaches. Even legal positivists, such as Slaughter, Twining, and many more, have sought to retool what they perceive to be static legal paradigms of the West, paradigms which they see to be incapable of responding to the escalating crises of the state, its laws, and the multitude they govern.

Legal modernities  215 The discussion of the five selected legal thinkers and/or legal practitioners above represents a modest attempt to assemble some sort of conceptual framework for advancing a preliminary inquiry of “multiple legal modernities.” Of course, they cannot be a representative sample, nor can they claim to speak for the various intellectual and disciplinary lines of thought of which they are a part. Many other towering figures should be discussed, such as Mahmood Mamdani, Enrique Dussell, Makau Mutua, Issa Shivji, Samir Amin, Walter Mignolo, Neelan Tiruchelvan, Arturo Escobar, F ­ rancis Deng, Abdullahi An-Na’im, Upendra Baxi (the last three of which were also anthologized in Twining’s book on the Southern voices of human rights), and so on. Some, like Julia Nyerere, Ellen Johnson Sirleaf, Amartya Zen, Nelson Mandela, and so on, are already in the popular consciousness. I have selected the five figures largely because of their differences, in legal epistemologies, and for some, their different legal practices in the world. This diversity is important so as to pull in different imaginations and mappings. At the risk of oversimplification, Table 4.2 is presented as a sketch of their individual approaches for comparison. In this book, I hope that the terrain that I have traversed can provide readers with sufficient tools for thinking at the critical crossroads we face in the state of human rights today. I characterized the critical crossroads at the beginning of this book as the disjunctive point between the “death” and “renewal” of human rights. I have also characterized cultural studies as the intellectual movement that can no longer be coy about its commitment to human rights. More pointedly, I take the critical intellectual paradigm of cultural studies as uniquely befitting to address that disjunctive state of human rights today. One of the preoccupations of cultural studies has been that deceptively simple question: What does the future look like? It is obsessed with “alternative” futures. The intervention made in this book is to reframe that question into: What are the futures of rights and the associated problems of power, sovereignty, and justice? Facing the fact of the disjunctive crossroads of human rights that suggests that no singular form of the political will resolve the problem of the impasses over human rights, what remains for remaking the material and symbolic infrastructure of our rights, individually and collectively, in the national, transnational, and subnational spheres and in political–aesthetic terms? Indeed, throughout this book, what I have done is to throw up several core essential questions that I believe to be vital for this remaking. One question is about how to reacquaint ourselves with the intellectual and political currents of human rights analyses from a wide spectrum of perspectives. And I have stressed over and over again that one way or another, these perspectives orbit around the legal, or more accurately as I have insisted, the discursive question of the legalization of the legal (Çali and Meckled-García, 2006). I have insisted that for cultural studies to encounter the problem of human rights, the question of the legalization of the legal is central. Cultural studies has long skirted around the problem of law; it has mostly avoided it!

Table 4.2  Selective interlocutors in consideration of “multiple legal modernities” Speaking Position

Intellectual and Disciplinary Orientation

Key Operating Concepts

Relation to the Question of “Multiple Legal Modernities”

Goals and Impact

Anne-Marie Slaughter

A liberal policyoriented positivist position

International relations

Disaggregation of the state; global networked communication

Conception of functional communicative networks scattered across different substate and extrastate bodies

William Twining

A cosmopolitan positivist position

Analytical Legal cosmopolitanism; jurisprudence nonstate laws

Conception of plural comparative legal traditions

Boaventura de Sousa Santos

A critical Marxist academicactivist position

Marxist sociology of law

Conception of “radical interculturality” and “alternative epistemologies” for new legal assemblages

Enhancing liberal democracy by a heightened awareness of micro and disaggregated networks of legal liaison, diplomacy, and negotiations Cosmopolitanizing the Western juristic canon, attending to non-Western legal frameworks and nonlegal orderings Building alternative, nonpositivist epistemologies of law and practice

Balakrishnan Rajagopal

A critical subaltern position

Postcolonial international law

Yash Ghai

A critical legal pragmatist position

Constitutional law

Discrepancy between social experience and social expectation of modernity; paradigmatic transition of legal orders Counter-hegemonic international law; Third World approaches; resistance as law/movement Human rights as benchmarkable framework and instrument for practical political negotiations

Conception of subaltern Reframing of human materiality of rights and development oppression and calls international law to de-imperialize through instituting international law mass movement of resistance as legal force Negotiating Conception of constitutional reform nonbinaristic legal for postconflict maneuvers across multiethnic societies multiple stakeholders of law and rights

Legal modernities  217 But many varieties of turning away from the political future that entangles the law might have constituted a kind of becoming-banal for cultural studies. It is time cultural studies stopped avoiding the law! By reacquainting ourselves with the intellectual and political currents of human rights analyses from a wide spectrum of perspectives (as seen in Chapter 2), by enacting critical legal realist analyses in order to develop a sense of what can be done if cultural studies and legal analysis join hand (as seen in Chapter 3), and by pulling together a critical mapping of the conjuncture of legal modernities underlining rights discourses (as provided in this chapter), I hope to have charted one particular way for us to imagine a political future of rights. Boaventura de Sousa Santos has written brilliantly of the “new legal common sense” that has been growing out of the ever-­widening discrepancy between social experiences of modernity and social expectations for it. In his work, the new legal common sense involves the force of legality as norms, institutions, and practices that is supposed to stabilize social expectations. But this stability, which comes through a triangulation among the state, the market, and the social community, turns out to be “over-­ promising.” So, de Sousa Santos turns to an evaluation of the new legal common sense through another kind of stability, one which is provided by the expectation of emancipation by law. Emancipation is seen as a kind of legal conceptual movement as well as practices that challenge that extant political nexus aligning social experiences and social expectations through the pillar of regulation. Its stability is said to derive from the aesthetic-­expressivity of arts, the ­cognitive-instrumental rationality of science, and the moral-­ practicality of ethics. However, the promise of emancipation turns out to be overreaching as well. In all, I am attracted to de Sousa Santos’ critical work because it advances a different sense of the law that embodies the possibility of repair within law itself. Possible futures can be imagined through this reparative capacity of the law, as long as the latter keeps its potential for legal realignment according to the realist chains of circumstances and established limits. As long as law is expressive, practical, and even strategically instrumental, new horizons for ethical demands of liberty, equality, and justice are possible through new political imperatives and juridical demands. By emphasizing the interplay between legal and cultural intensities, I hope to have attempted to expand our political language to help us learn to reinhabit the law at the critical crossroads of despair and hope evident in our human rights situation today. Yet this analytical path (a new methodology for a “juris-cultural studies”?) might look minor because it is not formed through the gestures of grand action we commonly associate with the political work of human rights. Yet precisely because it turns rather toward a plane of thinking broadly characterized by such political attitudes as valuing immanence, contingency, and multiplicity (Mandarini, 2010; Perello and Biglieri, 2012), this particular analytical pathway resonates well with the modest politics evinced by cultural studies. Yet, finally still, I yearn for a different kind of cultural studies, one that is capable of engaging critically

218  Legal modernities with the legal field—its interpretive vitality; forms of repair and potentiality (that always already entwine regulation with emancipation); and, most importantly, actionability.

Note 1 A quick mention of another important figure who is very similar to Ghai, is warranted. Upendra Baxi is an Indian jurist and public advocate of human rights from a Southern perspective. A leading commentator and critic of the Indian Supreme Court, Baxi pioneered the development of social action litigation and the “epistolary jurisdiction” that gave disadvantaged people direct access to appellate courts. His work mainly covered women’s rights issues, and issues of justice for victims of catastrophes. More broadly, Baxi has arisen to become an iconic legal figure in the law and development debates internationally. Like Yash Ghai, Baxi is ambivalent about human rights. He is well known for arguing that human rights discourse is neoliberalized, hijacked, and commodified by powerful groups, rendering rights a highly compromised enterprise. I consider Baxi a critical Third-worldist legal advocate, in a way quite similar to Ghai’s trajectory (see Baxi, 2002, 2007; Twining, 2009).

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Index

709 Incident 148–50 Abbot, Tony 111–12 abjection 39, 123 actionability 218 Adler, Emanuel 200 Adorno, Theodor W. 42–3, 204 aesthetics 24, 42–6, 188; discourse 43; ethics conundrum 45; -expressive rationality 63, 180–1; law and 189; legal 189; of law 188–9; of truth 45; suffering 45–6; threat of the 46 Agamben, Giorgio 42, 75, 88–91, 98, 109, 117–18, 156–7 All-China Federation of Trade Unions and the Women’s Federation 145 altruism 53, 87, 154–7 American exceptionalism 159 Amin, Samir 215 Amnesty International 44, 203 Anghie, Antony 34, 209 An-Na’im, Abdullahi 204, 215 anti-law 66–8 Arendt, Hannah 34, 39–41, 156, 183, 204 Aristotle 117–18 Ashlie v. Chester-Upland School District 123 Asian values 13, 29 aspiration 19, 27–9, 44–5, 68–70, 89, 107, 197; -alism 29; emancipatory 180; for justice 191; humanist project 29; imaginary 27; legalism 28; oppositional 180; potentials and limitations 177; power 27 assemblage 137, 150, 216 asylum seeker 90–3, 110–12 Atlantic Charter 31 atoning violence 153–4 Auschwitz 45–6

Austin, John 203–4 Australia 109–12, 128, 203 authoritarianism 3, 71 authority 16–17, 24, 28, 25, 61–2, 74, 80, 97, 141, 186–7, 191–4; and legitimacy 62, 179; delegation of 35; juridical 89; legitimate political 25; of law 186 autonomy 14, 25, 48, 65–7, 96–8, 105, 195, 199; collective 34; crisis of 97; individual 31; judicial 97; jurisdiction and 75; legal knowledge 66; of law 65; of Hong Kong 96–7; right of 97; semi-142, 158 Badiou, Alain 91, 106 Bahktin, Mikhail 91 Balakrishnan, Gopal 76 Balfour, Ian 42 Balibar, Etienne 116 Bandung spirit 209 Bangkok Declaration on Human Rights 13 bare life 42, 98, 108–9, 115, 156–7 Barreto, Jose Manuel 42 Bauman, Zygmunt 91–3 Baxi, Upendra 54, 67, 204–5, 215, 218 Bellinger v. Bellinger 129–30 benevolence 1, 159–60 Benhabib, Seyla 34 Benjamin, Walter 42, 180, 185 Bentham, Jeremy 35, 204–5 Berman, Marshall 189 Bildungsroman 43 bin tai (Cantonese) 125 biopolitics 3, 34, 109, 115; analysis 108; continuum 70, 93, 99; governmentality and domination 34; neoliberal 88; post-sovereign 98; struggle 4 Blake, Conway 34

224 Index Borgardt, Elizabeth 31–33 Born into Brothels 54–55 Boutros-Ghali, Boutros 54 Boyle, Kevin 52 Bretton Woods 32, 76 Bricmont, Jean 53 Brouillette, Sarah 55 Brown, Wendy 85 Buchanan, Allen 24 Burke, Kenneth 153 Cadava, Eduardo 42 Çali, Başak 36, 62–3 campology 109–11, 114–15 capital: accumulation 77, 82; assets 80, 113, 115; process 143–4, 158 capitalism: global 51, 83; neoliberal 85; networked 88, 115; reglobalization of 3; world 76 capitalization: and professionalization 158; of human rights advocacy 55; of legal services 158; process 147 Cardenas, Sonia 53 Centre for Contemporary Cultural Studies (CCCS) 2 Chan Kam Nga v. Director of Immigration 95 Chatterjee, Partha 212 Chayes, Abram and Antonia Handler 76–7 Cheah, Pheng 13, 34, 38–9, 47–8, 51 Chen Chieh-jen 113 Chen Duxiu 140 Chen, Albert 154 Chimni, B.S. 209 China (PRC): Constitution of 150–1; Ministry of Justice (MOJ) of 141–2, 144–6; Ministry of Education 142, 144 Chinese Academy of Social Sciences 138 Chinese: customary law 120; customary marriage 120–1; modern marriage 120–1 Chinese exceptionalism 71, 158–60 Chow, Rey 157 Christmas Island 110 Chua, Lynette 48–9 Church of England 121 Churchill, Winston 25, 31 citizenship 41–2, 50, 70, 89–110, 115–16, 138, 151, 188; alternative sense of 151; antihumanitarian control of 93; -by-survival 105, 115; laws 92, 98; management 70, 89–94, 99, 103, 108;

politics of 101, 107; precarity of 89, 98–9; regime 92–3, 99–105; rights 70, 89, 91, 99, 108; surviving 98, 115 civil: disobedience 68; law see law; rights see rights; society 15, 18, 46–8, 55, 80, 147, 152, 207 civilizational comparativism 192 clinical: legal education/training 142, 145–7; methodologies 146; pedagogy 147; programs 142, 145–7 Cmiel, Kenneth 30 Code of Hammurabi 28 Cohen, Jean 7, 78–9 Cold War 15, 63, 72, 101, 159, 205; post-69 collective identity 50 colonialism 19, 43, 208–9; anti-31, 34, 66–7, 197; neo-32–3, 202, 209; post-9, 14, 34, 40, 43, 48, 70, 194, 205, 216 Committee of Chinese Clinical Legal Education (CCCLE) 145 commodification 38; of compassion 24, 51; of human rights 54; of humanitarian work 3–4 common heritage of humanity/ humankind 28–9, 207 concentration camp 109, 157 condition of possibility 86 Confucianism 29, 155–8, 178 conjuncture/conjunctural analysis 2–4, 7, 10–11, 18–19, 99, 150, 177, 210; of legal modernities 217 constitutionalism 189, 197; liberal 17; political 78; symbolic 79 contamination 38–9, 48, 51 Convention on the Elimination of All Forms of Discrimination Against Women 18 Coombe, Rosemary 7, 18, 64, 67, 210 Corbett v. Corbett 119, 128–31, 135 corruption 144, 178, 213 cosmopolitanism 7, 27, 54, 78, 80, 90, 189–92, 196, 202, 204, 208, 210–11; cultural 79, 202; imaginary 69; jurisprudence 208; justice 79; law 79, 208; legal 19, 79, 190; nativity and 90; positivist 196, 202, 216; rooted 202, 205; subaltern 207–8 Cover, Robert 185 critical legal studies/theory 6, 17, 27, 65, 184, 190–1, 194, 197 critical theory 4, 6, 204 Cullen, Richard 138–41

Index  225 Cultural Revolution 141–42 cultural studies 1–5, 6–11, 17, 19–20, 23, 61, 64, 69, 89, 150, 177, 215–17; and ethics 8; and critical human rights studies 4–5, 19; Anglo-American 3; and human rights practices 4, 6; inadequacy of 10; irrelevance of 10; law and 64, 189; of law; juris-69, 217; of law 6–7, 69; relevance of 8–10 Davies, Gloria 148, 155 de Sousa Santos, Boaventura 2, 29, 179–84, 190, 195–7, 203, 205–8, 212, 214, 216–7 death penalty/capital punishment 75, 81, 83 152, 180 decolonization 14, 48, 63, 210 deconstruction 185–8, 191 Deleuze, Gilles 1 Deleuzian 184 denationalization 198 Deng Xiao Ping 141 Deng, Francis 204, 215 denizen 90 depoliticization 101–2, 147 Derrida, Jacques 75, 91, 184–8, 204 detention 88, 104, 109, 111, 149, 151; facilities/centers 109–10, 112, 149; policies 109; regime 110 Di Robilant, Anna 26 Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) 124 diaspora 193–4, 209 Director of Immigration v. Chong Fung Yuen 96, 99 disaggregation 78, 199, 201, 216 Douzinas, Costas 27, 39–40, 53 Dukalskis, Alexander 34–5 Dunoff, Jeffrey 82 Durkheim, Emile 193 Dussell, Enrique 215 Dworkin, Ronald 204 Dykes, Philip 155 Economic and Social Council (ECOSOC) 46 economic citizen-subjects 102 Eisenstadt, Shmuel N. 192–4 Ellis Island 112–13 emancipation 2, 12, 33–4, 64, 150, 180–4, 207–8, 210, 217–18; by law 217; human 73; law as 183; pillar of 180–1; social 207

embourgeoisment 50 Emerton, Robyn 127, 134 empire 3–4, 7, 33, 53, 70, 72–3, 76, 80, 113 Empire’s Borders I (Taiwan) 113 empiricism 184 Enlightenment 12, 42, 64, 184–5; post14, 43 enterprising individuals 103 environmental protection 80–1, 113–14 epistemicide 205, 208 Escobar, Arturo 211, 215 Esmeir, Samera 40–1 essentialism: anti-3; legal 17, 136; political 3 ethics 1, 4, 6, 8, 36, 42–3, 45–6, 52, 55, 63, 154, 180–3, 186–7; aesthetics 45; as form 186; as content 186; Kantian 4, 6; of emotions 42; of human rights 42–3; of law 186; of legality 186; of rights 183; of sympathy 42; of truth-making 45; practicality of 217; rationality of 180 Eurocentrism 29 European Court of Human Rights 129–30 European Union (EU) 78, 109, 203 everyday life 51, 89, 101, 150, 177 externalities 82–3 Falun Gong 148 Fanon, Frantz 212 Fateh Muhammad v. Commissioner of Registration 96 feminism 9–10, 13, 66, 185, 193 Ferguson, James 211 fin de siècle 190 Finnis, John 204 Fitzpatrick, Peter 64, 187–8 floating signifier 39 Flynn, Matthew 109–10 Fokstuen, Anne 97 force 180–1, 185–7 Force of Law 185–6 Ford Foundation 145 foreign domestic helpers 70, 104–5 Foucault, Michel 18, 39, 62, 76, 78, 88, 91, 109, 184, 189, 204, 212; biopower 39, 62, 110, 189; discipline 62, 188, 190; power 18, 39, 62, 76, 189, 194, 212; technologies of power 62; technologies of the body 62

226 Index foundationalism 180, 184, 186, 189, 208; anti-4, 6, 184 Frankfurt School 43 Freud, Sigmund 184, 187 Friedman, Sara 112 Fu Hualing 138–40 Gao Quanxi 141 Gao Zhisheng 153 Garcia, Frank 84–6 Geertz, Clifford 64 Gehring, Petra 186 gender dysphoria/identity disorder 124 General Agreement on Tariffs and Trade (GATT) 211 General Jurisprudence 202, 204 Geneva Conventions 195 Ghai, Yash 195, 197, 204, 212–14, 216, 218 Giddens, Anthony 189 Gillard, Julia 112 Gilroy, Paul 117 Girard, Rene 153 Glenn, Patrick H. 178, 182 global commons 208 Global South 14, 16, 48, 85, 191, 194–7, 209, 212–14 globalism 27, 188, 205–6; localized 195, 206–7 globalization 23, 27, 31, 72, 84, 90, 195–200, 205–7, 210; age of 54; anti-51, 106; economic 198; for Jurisprudence 202; law and 66, 196–7, 202, 206, 209; legal 196, 202; neoliberal 84; re-3–4; studies 196; of law 194–5, 205 globalized: capital 67; localism 195, 206–7; modernity 198; world 204 Goldman, Merle 138 gongmeng (Citizen’s Alliance) 151 Goodrich, Peter 189–90 Goodwin v. United Kingdom 129–30 Gou Hongguo 149 governance; benevolent 101–2; global; global neoliberal 80, 113; (public-) private 201; regimes of 90; -withoutgovernment 200, 202, 208 governmentality 18, 34, 39, 47, 66, 78, 84, 99, 105, 107, 110, 122, 161, 189, 199; anti-106; behavioral 88, 115; modernities 198 Gramsci, Antonio 4, 18, 212 grassroots 46–8, 70, 137–8, 146, 204; resistance/social movement 48–50 Grewal, Inderpal 47, 51

Grossberg, Lawrence 2–3, 7–8, 10, 19, 177 Guantanamo Bay 110 Haas, Peter M. 200 Habermas, Jürgen 78, 204 habitus 140 Hall, Stuart 9, 106, 160 193–4, 197 Hamblin, Sarah 44 Handler, Antonia 76 Hardt, Michael 72–3, 76 Hart, H.L.A. 202, 204 Hegel, Georg W.F. 31, 33, 178–9, 204 hegemony 3, 13, 16, 18, 46, 98, 101–2, 150, 152, 160–1, 177, 208, 210; counter-4, 18, 194, 196, 208–12, 216; Euro-American 152; global 211; international law 66, 194, 210–11; legal 97; of exclusionism 105; of neoliberalism 67; Western 210 Hessel, Stéphane Frédéric 24–5 Hilal, Leila 26 HIV/AIDS 9, 80, 87, 113, 156 Ho, Josephine 125 Hobbes, Thomas 35, 180 Holocaust 32, 43, 157 homo economicus 85 Hong Kong: Basic Law of 94–6, 119, 136; Bill of Rights 119, 136; Court of Final Appeal (CFA) of 71, 95–6, 99, 104–5, 118–19, 135–7; Immigration Ordinance of (IO) 94–6, 104; Marriage Ordinance of 119–21, 128; Matrimonial Causes Ordinance of 119–21, 128 Horkheimer, Max 42–3 Hou Xinyi 144 Hu Jia 156 Hu Shi 140 Hu Shigen 149 human: in-24, 37–9; legal 40; rights see human rights; still 41; the 38–42, 129, 151–2, 155, 160 Human Rights Film Network 44–5 Human Rights Commission of the United Nations 13, 28, 96 Human Rights Watch 27, 44, 53, 153; International Film Festival 44 human rights: accountability 7; advocacy 44, 50–1, 55; agencies 83; architecture 52, 54; bodies 53, 80, 114; bureaucracies 15, 53; bureaucratization 53, 55; campaigns 55; crisis of 41; culture 42, 55;

Index  227 defenders 69; defense (HRD) 138–9; defense movement 149; despair 7; discourse 10, 16, 23, 27, 38–9, 44, 70, 72, 107, 211; discursive structure 73; documents 44; eight theses on 23, 183; ethics of 42; film 44–5; film festivals 43, 54; film market 54; fragility of 24–5; from below 49; global legalism of 28; global project 23; goods 83; historiography 30–1; imaginary 73, 81, 114; institutionalization of 50; institutions 52–3, 83, 86; instrumentalization of 88, 115; international 7, 13, 15–16, 18–9, 24–7, 31, 43, 48, 67, 80, 83–5, 112, 138, 210; international positive law of 35; language 87; law 7, 9, 14–18, 24–7, 36, 43, 48, 61–2, 75, 79, 84, 86–7, 93, 115, 195, 203, 210; lawyers 27, 148–9, 154; legal apparatus 18; legality 63; legalization of 23, 34–6, 62; legitimacy 23, 34; market 55; marketization of 55; organizations 15, 44, 80; policy 47–8, 51; politics 6, 14, 33, 73, 76 147, 158, 161; professionalism 24, 51–2; professionals 51–3; regime 11, 14, 19, 80; renewal 7; reports 148; scholarship 63; situation 27, 148, 217; story 44–5; system 7, 14, 24, 49, 51, 53–5; transgressions 148; universalism of 49; vernacular mobilization of 49; violations 44–5, 54, 72, 110, 148, 159, 213 humanitarian 3, 9, 15, 43, 47, 53, 55, 80–1, 83, 90, 108, 114, 179; activist 47; anti-93; commodification; consumerism 55; crisis 73, 96; field 81, 114; imperialism 53; -ism 4, 43, 53, 108, 112–13; laws 115, 203–4; markets 80, 113; motives 53, 87; movements 48, 80; NGOs 47; politics 76; practices 47; projects 47; unadulterated 84; work 81, 114 humanity 11–12, 14, 25–9, 35, 38–41, 89, 160, 191; common heritage of 28–9; in-38–9; juridical 41 Hunt, Lynn 31, 33, 39 hybridity 194 immanence 1–4, 217 immigration 69; control 100; cr-111; crisis 70; detention 110; laws 70, 90, 92, 108–9; police 106; policy 99, 102; rights 70

imperialism 1, 13, 41, 53, 188, 209–10, 216; anti-29; neo-43; re-29 included-out/inclusion-out/inclusionoutness 70, 89–93, 97–9, 102–3, 105–9, 112–13, 115–18, 183 inexistence 106–7 inhuman see human institutionalization 34, 50–1, 62, 68, 202; de-118, 122, 136; of history 201–2 interdependencies 43, 64, 77, 202, 207 International Bill of Rights 37, 42 International Court of Justice (ICJ) 129–30, 195 International Covenant on Civil and Political Rights (ICCPR) 37–8 International Covenant on Economic, Social and Cultural Rights (ICESCR) 37–8 International Criminal Court (ICC) 35, 89, 195 International Monetary Fund (IMF) 76 international relations 11, 27, 47, 72, 77–8, 148, 159, 196–201, 208, 216 international tribunal 35 international law 9–10, 14–15, 19, 24–5, 34–5, 48, 66–7, 72–3, 83, 88–9, 184, 195–9; 201, 207–12; applicability of 14; codification of 63; counterhegemonic 194, 216; critique of 209; from below 197; hegemonic 66, 210–11; Marxist 196; positivist 23, 34, 196; postcolonial 216; regimes of 84; universalization of 14, 209 inter-rights 15 intersectionality 15–6 Ishay, Micheline 12, 31, 33 Jiang Tianyong 149 Johansen, Robert C. 34–5 judicial networks 200 juridical humanity 40–1 juris-cultural 11, 61, 64, 69; struggles 11, 68–9; studies 69, 217 jurisprudence 78, 188–9, 196, 202–4; analytical 196, 202, 216; cosmopolitan 208; general 204; global 203–4; globalization for 202; international 198; of positivist law 34; polycentric 183; traditional 204; traditional Western 194 jus cogens 35 jus sanguinis 95 jus soli 95

228 Index justice 15, 17, 19, 28, 40, 68, 85, 87–9, 108, 115, 139–40, 142, 144, 146, 149–50, 158–9, 180, 182, 186–7, 191, 205, 211, 214–5, 217; cosmopolitan 79; in-4, 134, 139, 154–5, 208, 213; pragmatic 9; recognition 9; social 3–4, 6, 11, 43, 48–9, 52, 138, 145, 147, 158, 191, 210; system 63; world 69 Kant, Immanuel 1, 4, 6, 14 Kelly, David 139 Kelsen, Hans 204 Kennedy, David 17, 47, 184 Khan, Paul 65–6 King, Mark 126–7 Kipnis, Laura 62 Koskenniemi, Martti 184 Kristeva, Julia 39 Ku, Agnes 101–2 Kuomintang 141 Lang, Andrew 86 Latouche, Serge 211 Latour, Bruno 178 Lauren, Paul Gordon 31 Law of the Sea 195 law: administrative 138, 142, 151; aesthetics of 188; and aesthetics 189; and culture 6, 61, 64, 69; and cultural studies 64, 189; and economics 65; and globalization 66, 196–7, 202, 206, 209; and international relations 208; and literature 64, 189; and modernity 184; and morality 36; and politics 147, 191; and religion 178; and society 48–9; and the performing arts 189; as a spectacle 189; as culture 64, 69, 185; as emancipation 183; as regulation 182–3; as reregulation 184; autonomy of 65–6; brutality of 180; capacity of the 217; common 130, 178, 189, 191, 194, 199; constitutional 68, 93, 140, 212, 216; corporate 203; cosmopolitan 208; crisis of 182; critique of 10, 66; culture as 64, 69; customary 74, 120; environmental 207; equality 28, 124; formal 67; global 78–80, 194, 202–3; globalization of 194–6, 205; history of 196; humanitarian 204; hybridization of 79, 195; international 9–10, 14–15, 19, 24–5, 34–5, 48, 66–7, 72–3, 83, 88–9, 184, 195–9; 201, 207–12; instability of 187; Islamic 178, 191, 203; legalization of 61–3; legitimacy

of 66; movement 66–7, 216; natural 4, 6, 35, 50, 179, 204, 214; non-state 203; normative 66; ontology of 187, 189; oppositional 184; positive 35–7, 41, 142, 179, 204; positivist 6, 34, 37, 147, 196, 204; repoliticization of 190; responsiveness of 37, 187–8; rule of 7, 40, 66, 79, 93, 141–2, 149–50, 154 180–1; school 17, 65–7, 141–7, 158, 194–5, 213; scientification of 185; same-sex antidiscrimination 124; self-repair capacity of 182; sex discrimination 124; sexual health 40; sexual orientation 124; social science of 65; soft 25–6; Soviet 210; trade 84–7; violence of 186 League of Nations 12 legal: aid 104, 145–7; anarchy 144; apparatus 11, 16, 18, 106, 142; codification 62, 183; common sense 179–80, 195, 205, 217; cosmopolitanism 19, 78–9, 190, 216; cultural turn 65; decision-making 66, 189; delegation 34–5; diversity 19, 183; education 18, 65, 69, 72, 140–7, 150, 158, 189–90; essentialism 17; hermeneutics 189; humanism; ideal; institutionalization of; interpretivism; legalization of the; methodology; movement 159; obligation 34–5; pedagogy 66, 143, 147; pluralism 183, 190, 195–6; positivism 36–7, 194, 202, 206, 208; positivist 35–6, 204, 212, 214; practice 11, 17, 66, 68, 142–3, 147, 203, 215; pragmatism 191; precision 34–5; profession 78, 140–44, 149, 191; realism 65–6, 184, 190–1; realist 26, 65–8 184, 190, 217; reform 63, 66–7, 71, 132, 137–50, 158, 184, 205; ritualism 152; skepticism 191; studies 17, 27, 65, 69, 108, 184, 189–91, 194, 197, 202 legalism 2, 28, 63, 179 legitimacy 47, 62–3, 65–6, 68, 135, 179–80, 186; human rights 23, 34; judicial 142; normative 185; of law 66; of rights 29; political 31, 36, 49 Leung Hon-chu 100, 102 LGBT 43, 49, 69 Li Heping 149 Li Lianjiang 138 Liang Qichao 140 Liu Xiaobo 148 Llewellyn, Karl 204

Index  229 Lloyd, Abby 123–4 Loving v. Virginia 133 Luban, David 7, 185, 188 Luhmann, Niklas 185 Lupu, Yonatan 26 Mabbett, Deborah 28 Magna Carta 28 Mahlmann, Matthias 180, 185 majority rule 133–4; tyranny of 134 Mamdani, Mahmood 215 Mandela, Nelson 31–2, 215 Mao Zedong 71, 139, 144, 150, 156, 158 Mark, Chi-kwan 99 marriage: -ability 119, 135; institution of 127, 132–3; laws 71, 90, 119–20, 122, 130–3; rights 71, 119–20, 124 Marshall, T.H. 93, 101, 189 Martens, Kerstin 47 Marx, Karl 10, 66–7, 85, 178–9, 193, 196–7, 204–5, 207, 210, 212, 216 Mautner, Menachem 64 May 4th 150 MDGs (Millennium Development Goals) 204 Meckled-Garcia, Saladin 36, 62–3, 215 Merry, Sally Engel 49 Mezey, Naomi 64, 69 Mignolo, Walter 215 migration studies 89 minquan (Mandarin) 140 mobility 3, 70, 92, 97, 107, 109–10, 117, 151 195; camped mobility 117; im-70, 92, 107; semi-92 modernity/modernities; agrarian 12; alternative 194; colonial 12; emergent 14; Euro-179; globalized 198; in-struggle 11–12, 14; Islamic 12; legal 11, 14, 64, 158, 177–201, 205, 207, 209, 214–7; multiple (legal) 190–200, 205, 207, 209, 215–6; pillar of 182; socialist 12; subaltern 12; unified 12; urban 116; Western (legal) 29, 141, 179–80, 184, 186, 191, 194, 214 modernization 178, 189, 192; European 189; legal 40, 159; theory 192–3 moral: convergence 84; efficacy 137; exemplarity 154–6; ideal 62; -juridical 11, 69–70, 73, 88, 107, 115 Mountz, Allison 110 Moyn, Samuel 24–5, 32–4, 39 Muller, Herbert J. 28–9 multiculturalism 64, 203, 213–14 multitude 3–4, 16, 72, 214

Murphy, Tim 182 Mutua, Makau 208, 215 narrativity 43 National People’s Congress (NPCSC) 95–7 nationalism 10, 19, 188; chauvinistic 13; colonial 13; ethno-13; multi-ethnic 214 nations without states 203 nativity 90, 94–5 Negri, Antonio 67, 72–3, 76 Neier, Aryeh 27 neoliberalism 7, 13, 24, 51–2, 69–70, 73, 76, 80, 84–90, 103, 113; anti-67, 106; capitalism 85; hegemony of 67; imagination 72; rationality 85 network assets 115 networked 76–88, 199, 216; apparatus 77, 80; capitalism 88, 115; legal and economic governance 76; powers 81, 114; practice 80, 113; sovereignties 76, 80; states 80, 82–3, 88, 113 new diplomats 78, 199 Ng Ka Ling v. Director of Immigration 95–6, 99 NGOs 13, 46–9, 53–4, 67, 80, 114, 138, 151, 199–200, 207, 211, 214 Nietzsche, Friedrich 1, 190, 204 nihilism 190 normalcy 123 normativity 125, 135, 200; global legal 200; new 198 Norrie, Alan 204 Nyerere, Julia 215 Oberleitner, Gerd 52–4 O’Brien, Kevin 138, 154 Oelschlaeger, Max 62 Olympics 152 One Country, Two Systems 94 Organization for Security and Cooperation in Europe (OSCE) 54 pan-culturalism 29 Pangalangan, Raul C. 26 particularism see universalism Pavčnik, Marijan 36 Pendas, Devin 30 polis 98, 115 politicization 16, 66, 106, 142, 145; de-101–2, 147; re-190 politics of transcendence 1 politics without guarantees 106 popular conservatism 3

230 Index positivism 185, 194–6, 206; anti-66; law see law; legal 36–7, 194, 202, 205–6, 208; non-196, 206–7, 216 Posner, Richard 183–4 postmodernism 10, 184, 187 poststructuralism 39, 191 potentiality 27, 75, 107, 115, 117–18; generic 117; of intervention 75 precarious 2, 15, 41–2, 48, 89–90, 94, 98–9, 105, 109, 151 Preyer, Gerhard 192–3 primordialism 181–2 pro bono 145–6 professionalization 52–3, 72, 143, 145, 147, 158 Ptacek, Melissa 152 public interest 17, 140–9, 158 Pun, Ngai 101–2 Radbruch, Gustav 188 radical: conjuncturalism 2; conservatism 3–4; contextualism 14 Rahnema, Majid 211 Rajagopal, Balakrishnan 16, 48, 195–7, 208–12, 214, 216 rationality 38, 62, 64, 84, 180, 188; aesthetic-expressive 63, 180–1; cognitive-instrumental 180–2, 217; economic 85; formal-legal 51; functional 62–3; instrumental 63, 178–9; moral-practical 180–1; neoliberal 85; of ethics 63; sovereignty of 62; technical 180 Rawls, John 204 reformism 67, 159, 210; Benthamite 205 refuge 70, 107, 111, 113, 115 refugee 3–4, 7, 41, 43, 69–70, 80, 90 93, 99–100, 104–7, 109, 111–12, 113, 116, 183, 203; -ism 111, 113–14 regulation 2, 34, 40, 62, 69, 79, 83–5, 90, 114, 117, 136, 179–82, 192, 206–8, 218; de-198; law as 182–4; mutated 182–3; pillar of 179–81, 217; with an exception 182 relativism 2; cultural 23, 27, 29 Relis, Tamara 204 reverence for exemplarity 155 right of abode 70, 91, 93–7, 103–5, 108 rights: access to 116; absolutism of 214; assets 80–3, 113–14; basic 92, 151; birth 90, 108; capital 81, 114; citizen 139, 152; collective 15, 50; consciousness 45, 71, 137, 139, 142–3,

147–50; constitutional 132; cultural 12, 37, 41, 67, 89; development 12; defence movement 137, 149; defense 71, 137–40, 149–51; discourses 10–16, 23, 27, 38–9, 44, 67, 70, 72, 107, 211, 217; economic 12, 25, 63, 89; generations of 12, 63; human see human rights; imaginary 6, 73, 81, 114; inclusive 116; indigenous 12, 67; individual 15, 33, 37, 214; interconnection of 15; inter-rights 15; legalization of 177; legitimacy 23, 29, 34; minority 119, 134, 136; normative 39; regimes of 116; political 24–5, 37, 42, 106, 138; political ethos of 15; primary 13; property 50, 74, 87, 140, 195; protection 15, 46, 52, 138–9, 159, 213; regime 11–14, 19, 80; secondgeneration 89; same-sex marriage 119, 124, 127; social 12, 24–5, 89; talk 2, 23, 27, 62, 205; transgender 71, 118, 126–7; transgender marital 118–19; universal 11–12, 124, 214; validity of 29; women’s 19, 40, 46 124; work 1, 49, 51, 54, 63, 196, 209 Roosevelt, Eleanor 24 Roosevelt, Franklin D. (FDR) 31; New Deal 32 Rorty, Richard 42–3 Rousseau, Jean-Jacques 180 Rudder, Catherine 201 sacrifice 52, 89, 137, 152–7; self-137, 154, 157–8; ritualized 152–3 Sarat, Austin 189 Sassen, Saskia 198 savagery 152, 187–8 scapegoating 71, 153–4; mechanism 153; self-154, 157 scarcity 99–100 Schmitt, Carl 109, 185, 204 scientism 181–2 secularization 157, 178–9 securitization 3–4, 110, 159, 199 Security Council 35, 79 sense of belonging 102, 110 separation thesis 36–7 Shipper, Apichai 112 Shivji, Issa 215 Sichuan University Law School 146 Simmel, Georg 103, 111 Singapore 117, 127, 129 Sirleaf, Ellen Johnson 215

Index  231 Slaughter, Anne-Marie 78–81, 195–202, 205, 208, 214, 216 Slaughter, Joseph 38, 43 Smart, Alan and Josephine 91–2, 105 Smith, Adam 180 social equilibrium 153 social: experiences and expectations 179–82, 217 social movement 4, 6, 15–16, 19, 24, 46–51, 64, 193, 197, 211–12; activists 48; actors 16, 49–50; grassroots 49; human rights see human rights; practice 6; subaltern 211; transnational 11, 15 societal consensus 119, 132–4, 136 solidarity 2, 192 sovereignty/sovereignties: absolute 76; behavioral 83; counter-89; external 74; global 73; inter-dependence 77; internal 74; law 75; legal (state) 1–4, 71–9; networked 76, 80; new 69, 72–3, 76–83, 88, 114–5; of loyalty 62; of rationality 62; post-79, 91, 98; Westphalian 74, 76 Soviet: empire 32; law 210; legal legacy 210; Sino-141; -styled socialist legal system 141; Union 25 Spinoza, Baruch 1 Srinvasan, Amia 45 stability 11, 62, 85, 153–4, 157, 179–80, 208, 217; in-14, 25, 39, 91, 95, 108–9, 120, 187; of the community 180; of the market 180; of the state 180 Stammers, Neil 49–51 state: asset 82; benevolence 1, 159; compassion 160; craftsmanship 1, creative imperialism 1, creative management 1; creativity 1; legal representatives 201; negligence 153; neutrality 16; sovereignty 1–4, 71–7; sovereignty defense 149; rights 71; sovereignty politics 3; sovereignty power 73; sovereignty realignment 4; sovereignty system 24 statism 19 Steinberg, Richard 84 subaltern 10, 12–14, 66–9, 196–7, 207–8, 211–12, 216 Sun Liping 138 Sun Yat-sen 140 survival 33, 42, 68, 92–3, 98–9, 105, 115–18, 178, 212 Sussman, Michael 192–3

Tai, Benny 68 Taylor, Charles 189 temporalities 194; micro-201; multiple 193–4 The Elie Wiesel Prize in Ethics 45 The Gate of Heavenly Peace 156 Third World Approaches to International Law (TWAIL) 66, 196, 208–9, 211 Third Worldism 31–2, 34, 66, 179, 197, 208–12, 216, 218 Tiananmen 150, 156 tianfu quanli (Mandarin) 140 Tiruchelvan, Neelan 215 totalitarianism 38–9, 41, 156–7, 183 Trachtman, Joel 82 Trade Related Aspects of Intellectual Property Rights (TRIPS) 87 tradition: and information 178; as infor­ mational 178; as communicative 178 transgender/transsexual 71, 118–36 transphobia 120, 124, 126 treaty rules 86 Troen, Ilan 192 truism 24, 199 Turner, Bryan 178 Turner, Ralph 28 Twining, William 195–7, 202–5, 208, 213–16 Umbrella Movement 68 undecidability 186–7 United Nations (UN) 14, 19, 22, 32–3, 46–7, 51–4, 69, 74–5, 83, 139, 210; Charter of the 74–5; Department of Public Information (DPI) 46; High Commissioner for Human Rights 197, 210; Human Rights Commission of the 96 Universal Declaration of Human Rights (UDHR) 24–6, 33, 37, 43, 51 universalism 12–14, 23, 27–9, 32, 49, 79, 178, 191, 193, 195, 214; facile 23 utilitarianism 82–3, 85 utopia 23, 30, 32–4, 44, 181, 184 Vallejos v. Commissioner of Registration 104–5 vernacularization 49 violence 3, 14–16, 19, 29, 34, 40, 43–4, 46, 68, 81, 89, 114, 116–7, 152–4, 157, 182–3, 186, 188; atoning 153–4; cost of 89; critique of 180; epistemic 183; of law 186; state 75, 150, 154

232 Index W v. Registrar of Marriages 71, 118–21, 129, 135–6 Wang Quanzhang 149 war of positions 4 Weber, Max 178–80, 193, 204 weiquan (Mandarin) 71, 137–41, 150–7, 160; activist 151, 156; agents 154; dissidents 156; ethos 154; fighters 155; ideology 158; lawyers 71, 138–40, 147, 152, 154–5, 157; lushi 137, 150, 153; legal practices 142–3, 147–8; movement 137, 146–7, 149–53, 156–7, 160–1; objects 154; politics 141–3, 158; work 140 Western legal canon 191, 214 Westlite, Singapore 117 Westphalianism 69, 74, 76, 78, 210 Williams, Raymond 64 Witness 44 Womanhood 136 World Bank 85 World Health Organization (WHO) 40

World Social Forum (WSF) 7, 51, 89, 179, 196, 208 world system 207 World Trade Organization (WTO) 51, 69, 85–9 Wuhan University Center for the Protection of Rights of Disadvantaged Citizens 145 Xi Jinping 160 Xie Yang 149 Xu Zhiyong 140 yan yiu (Cantonese) 125 Zapatistas 51, 67 Zartaloudis, Thanos 91, 93, 98 Zen, Amartya 215 Zhai Yanmin 149 Zhou Shifeng 149 Zucca, Lorenzo 26 Zylinska, Joanna 8