Making Human Rights Intelligible: Towards a Sociology of Human Rights 9781472566461, 9781849463959

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Preface This book grows out of an effort to rethink the development of the global human rights regime from a sociological perspective. Its proximate cause was a workshop held at the International Institute for the Sociology of Law (IISL), Spain, in which social scientists and socio-legal scholars who all have conducted research into human rights contributed to developing a sociological understanding of the emergence of the international human rights regime and its implementation in various national contexts. The main aim of the workshop was to examine how and by what means sociological theory and research methodology can enrich our understanding of the role of human rights in contemporary society. The book has been on its way for some time. We would like to thank the participants in the IISL seminar and particularly the contributors to this book for both their excellent contributions and patience with the completion of the manuscript. Finally, we extend our gratitude to Hart Publishing as well as the excellent staff at the IISL for their help in making the workshop such a great event. Mikael Rask Madsen Gert Verschraegen Copenhagen and Antwerp 2012

Notes on Contributors Judith Blau is Professor of Sociology at the University of North Carolina, Chapel Hill and Director of the Human Rights Center of Chapel Hill and Carrboro, USA. Quirine Eijkman is Senior Researcher and Lecturer at the Centre for Terrorism and Counterterrorism at Leiden University, the Netherlands. Steven Greer is Professor of Human Rights at the University of Bristol, UK. Nicolas Guilhot is Senior Researcher at the CNRS, Paris, France. Loveday Hodson is Lecturer in Law at the University of Leicester, UK. Lesley A Jacobs is Professor of Law & Society and Political Science, and Director of the Centre for Public Policy and Law at York University, Toronto, Canada. Mikael Rask Madsen is Professor of European Law and Integration and Director of iCourts—Centre of Excellence for International Courts, University of Copenhagen, Denmark. Luke McNamara is Professor of Law and Dean of the Faculty of Law at the University of Wollongong, Australia. Alberto Moncada is Professor Emeritus of Sociology at the University of Madrid, Spain. Rennie Moon is Assistant Professor of Research Methods at the Underwood International College at Yonsei University in Seoul, South Korea. Francisco Ramirez is Professor of Education and (by courtesy) Sociology at Stanford University, USA. Paul Stenner is Professor of Social Psychology at the Open University, UK. Christopher Thornhill is Professor of European Political Thought at the University of Glasgow, UK. Frederik Thuesen is a Researcher at the Danish National Centre for Social Research, Denmark. Gert Verschraegen is Associate Professor in Sociology at the University of Antwerp, Belgium.

1 Making Human Rights Intelligible: An Introduction to a Sociology of Human Rights MIKAEL RASK MADSEN AND GERT VERSCHRAEGEN

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HE AGE OF rights’ was the title of two recent books, both arguing that contemporary society is attaching a whole new importance to human rights (Bobbio 1995; Henkin 1990). Yet, regardless of the growing importance of human rights to the development of society, sociologists have been surprisingly reluctant to engage in human rights research. Indeed, unlike the fields of law, political science, anthropology and history, which have all developed distinct sub-fields of human rights research, the sociology of human rights has only very recently begun to emerge. This is all the more remarkable in light of the fact that a growing global commitment to protect human rights is perhaps one of the most salient societal evolutions of the post-Second World War era. In this opening chapter, which also introduces the different chapters and themes of this book, we begin by explaining why human rights originally were neglected within sociology and then outline how a new sub-field of sociology of human rights is now taking form. In the second section, we examine how a sociological perspective can contribute to a better understanding of human rights. We show how sociology helps to illustrate that the emergence of contemporary human rights has been historically tied to the development of the state and other key institutions of modern society, as well as how human rights take the form of concrete social claims, produced in specific social arenas and promoted by specific sets of actors. In the third section, we link these overall questions of the sociology of human rights to the specific chapters of the book, while at the same time examining some of the leading approaches to the sociological study of human rights. THE DEVELOPMENT OF THE SOCIOLOGY OF HUMAN RIGHTS

An important factor accounting for the late development of the sociology of human rights is likely to be found in the tradition of sociology itself. Most sociologists researching human rights would agree that in sociology a

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certain degree of scepticism exists towards the normative idea of individual rights (Deflem and Chicione 2011; Sjoberg et al 2001; Turner 1993, 2006). The heritage of classical sociologists such as Max Weber, who emphasised the decline of natural law and the concomitant emergence of juridical rationalism, and Karl Marx, who regarded individual rights as mere ideology, has long impeded the development of a sociology of human rights. The idea that one has rights simply because one is human is largely perceived as a philosophical or—worse—an ideological abstraction. Durkheim, Marx and Weber were sceptical about the possibility of and, indeed, the need for a universalistic and normative basis for human rights and, instead, emphasised the roles of law and morality in relation to the development of particular societal structures. Their historicising approach often led them to fundamentally criticise universalist claims about human rights. Moreover, they criticised the liberal individualism associated with human rights. While rights are widely perceived to be pre-social, individual and liberal (serving mainly as protections against coercive state power), Marx as well as Durkheim considered that rights inhere in society and/or the state, rather than in the individual himself or herself. Consequently, they believed that any discussion of human rights should be firmly linked to the capacity of the state and society at large to guarantee the enjoyment of those rights. Against this backdrop, it is hardly surprising that in the post-war period, the sociology of citizenship in many ways came to function as a kind of substitute for a sociology of human rights (Somers and Roberts 2008; Turner 1993). After all, citizenship—defined in the tradition of TH Marshall (1950) as participation in the civic, political and welfare institutions of modern society—provides a theoretically viable and empirically tangible sociological substitute to the abstract and universalist idea of human rights. It is bound up with the modern state as provider of particularistic, state-dependent and territorially limited rights and freedoms. To most post-war sociologists conducting research in industrialised European and Anglo-American societies, such concrete civil and political rights had more significance in the shaping of social life than abstract human rights, which were largely ‘beyond the scope of national sociologies in which the boundaries of the nation-state have been assumed to correspond to “society” ’ (Hynes et al 2010: 812). Although these ‘epistemological obstacles’ (Bachelard 1938) have long impeded the development of a sociology of human rights, the past two decades have seen a surge of sociological interest in human rights. Following the debate on globalisation and the call for a ‘cosmopolitan turn’ (Beck and Sznaider 2006) in the aftermath of the end of the Cold War, by the end of the 1990s, the issue of human rights effectively entered mainstream sociology and developed into more sustained engagement in recent years. While a 2003 panel on the sociology of human rights organised at the European Sociological Association’s congress in Murcia, Spain only attracted a smaller crowd (many of them contributing to this book), today practically all

Introduction to Sociology of Human Rights 3 major scholarly organisations in the field—ranging from the International Sociological Association to the International Studies Association and the Law and Society Association—host panels and special groups on the sociology of human rights. Moreover, courses and modules on human rights are offered in sociology programmes at numerous universities throughout the world. Early and influential work on human rights by sociologists such as Bryan Turner (1993, 2006), Johan Galtung (1994) and Anthony Woodiwiss (2005) has been accompanied by a diverse array of sociological research on human rights. With this growing interest, the research object in focus has also expanded. Contemporary sociological theory and research have increasingly turned to issues such as human rights activism, the worldwide expansion of national human rights institutions, the gradual incorporation of women’s rights, cultural and collective rights, and the diversity of local implementation practices (for example, Blau and Frezzo 2010; Deflem and Chicione 2011; Friedman 2011; Hynes et al 2010; Koo and Ramirez 2009; Morgan and Turner 2009; Morris 2010). Yet, at the same time, ‘uncertainty about precisely where human rights fit into sociology seems to remain’ (Hynes et al 2010: 818). This is hardly surprising, given the diversity of sociological paradigms and varied opinions about the role and tasks of the sociological profession. While some sociologists plead for a normative and political approach in the tradition of ‘public sociology’ (see also the contribution of Blau and Moncada in chapter eight of this book), others argue that sociology should strive for nothing but ‘systematically gathered, well-theorised and well-researched knowledge about social life’ (Deflem and Chicione 2011: 113). As sociological research about human rights has gained momentum, different concerns, methods and perspectives have been called upon. One can find legal sociologists examining the emergence of an international legal field of human rights (Dezalay and Garth 2006; Madsen 2011) and cultural sociologists focusing on the international standardisation of the notion of personhood through the diffusion of rights as an intrinsic feature of citizenship (Eliott 2007; Meyer et al 1997; Ramirez and Boli 1987). Some scholars apply insights gained from the new institutionalist tradition within organisational sociology (Ron 1997), while others incorporate insights from the study of national social movements into transnational human rights movements (Keck and Sikkink 1998). Research has focused on methodological issues surrounding the measurement of human rights as well as on a range of broader theoretical questions; it has included small-N and case-study analysis of the determinants of human rights protection as well as the use of population health, legal and criminological surveys to document the consequences of human rights violations (for example, Hagan et al 2006). In sum, the sociology of human rights in terms of an emerging sub-field of research remains more of a loosely associated set of approaches than a strictly delineated sub-discipline. In that sense, it generally resembles the fairly heterogeneous nature of contemporary sociology.

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A distinct sociology of human rights has sharpened its profile over the past decades; nevertheless, there continues to be debate about disciplinary boundaries in human rights research and about the need or desirability of multidisciplinarity or interdisciplinarity (De Feyter 2008; Hynes et al 2010: 827). After all, human rights are no longer the sole domain of lawyers, but are now on the research and action agendas for many different disciplines (Freeman 2002). Although it is questionable whether true interdisciplinarity exists—in the sense of a genuine synthesis between disciplines—human rights scholars frequently draw upon the insights, methodologies, approaches, questions and data from other disciplines. For instance, international relations scholars have made extensive use of constructivist sociological perspectives by linking human rights implementation to socialisation processes or to the conformation to a set of norms and rules often described as ‘world culture’ (Finnemore and Sikkink 2001; Meyer et al 1997; Risse et al 1999). At the same time, sociology has also borrowed insights from other disciplines such as philosophy, history, political science and law, which have enriched the sociological analysis of human rights (Christoffersen and Madsen 2011; Friedman 2011). Since uncertainty about the disciplinary and sub-disciplinary boundaries of the sociology of human rights persists, we believe it is useful to highlight what we feel are key elements of the sociological approach to human rights. In the next section we will focus on how sociology can develop our understanding of human rights and how the emergence of human rights relates to classical sociological questions such as social change, modernisation or state formation. We emphasise the specificity of the sociological perspective, which we distinguish from more foundational, philosophical or ethical perspectives on human rights. In our view, sociology should not deliver another foundational grounding for human rights, but should focus instead on the societal processes and relations that shape and define how human rights are generated, defined and employed in specific social and political arenas. As Anthony Woodiwiss puts it, human rights are ‘nothing special but simply a sub-set of a much larger set of social relations that produce and enforce behavioural expectations, a subset distinguished by their legal form and their focus on the limitation of abuses of power’ (Woodiwiss 2009: 112). By highlighting the broader societal and institutional context (which is conspicuously absent in many human rights discussions), sociology can shed light on why and how human rights have emerged as a key social product and social force in contemporary society. In particular, we argue that an adequate sociological theory of human rights has to take into account the crucial connection between the modern state, social institutions and rights. The modern state has provided most of the institutional conditions for the emergence of fundamental rights and has for a long time been the main vehicle for the expansion of individual rights. While today there is a broad amount of literature arguing that human rights contribute to a reconfiguration of sovereignty whereby the treatment of citizens (and others) is no longer the exclusive domain of the

Introduction to Sociology of Human Rights 5 state (Levy and Sznaider 2006), the notion of human rights as superseding the nation-state has only very recently been adopted (Moyn 2010; see also Guilhot, chapter six in this book). All contributions in this collection engage, in different ways, with a common set of issues, what we term the state-society-rights nexus. This also generally sets this book apart from other works within the growing field of the sociology of human rights. While most of the contributions originate in sociology and social theory, which have traditionally focused on how societal change should be understood and conceptualised in relation to the state and the individual, some chapters originate from interdisciplinary human rights studies, particularly socio-legal studies, and focus on connections between human rights and key societal institutions, including citizenship and education, the welfare state, the family and the health system. While the last section of this introduction further outlines how the different chapters contribute to the development of various dimensions of the state-society-rights nexus, the next section describes this notion in greater detail by showing how the emergence of human rights goes hand in hand with the construction of the modern state and society. In doing so, we also aim to show how sociological insights are distinct from more established human rights approaches and produce a specific interpretation of human rights as an artefact of modern society.

WHAT CAN SOCIOLOGY CONTRIBUTE TO THE STUDY OF HUMAN RIGHTS?

To provide sharper contours to the sociological approach to human rights, we first emphasise the radical historicity and particularly modern character of human rights and argue that the emergence of human rights is intrinsically bound to the formation of modern states and society. This discussion also leads us to map out what can be viewed as a more institutional approach to rights, while at the same time also shows how such a sociological reading of rights goes well beyond a legal-positivistic approach to human rights. Next, we briefly examine how sociology can help explain the emergence of the international human rights system that has matured since 1945. We review how human rights, in the last four decades, have extended beyond the delineated nation-state framework and discuss how sociology can develop a sociology of international human rights next to a sociology of citizenship.

Human Rights as a Modern Invention A good starting point for discussing human rights from a sociological perspective derives from the alleged universal quality that is often associated with them. Human rights are mostly held to be universal in the sense

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that most societies and cultures have in different ways relied on some notion of human rights throughout most of their histories (Donnelly 2003; Goodhart 2003). This dominant perception has generated a large body of literature focusing on the precursors of human rights and claiming that cultural elements—derived from, for instance, early Christianity or from Classical Greek, Islamic or Chinese-confucian civilisations, for instance— have always been largely compatible with and supportive of the idea of and adherence to human rights (for an overview, see Moyn 2010: 14–24). This type of literature has clear limitations, as it interprets the history of human rights as a progressive, teleological narrative, portraying the contemporary importance placed on human rights as the final result of a gradual burgeoning of the inherent normative-anthropological telos of human rights (see also Nicolas Guilhot’s contribution in chapter six of this volume). Jack Donnelly argues that: [S]uch claims to historical or anthropological universality confuse values such as justice, fairness, and humanity need with social and legal practices that aim to realise those values. Rights—entitlements that ground claims with a special force—are a particular kind of social practice. Human rights—equal and inalienable entitlements of all individuals that may be exercised against the state and society—are a distinctive way to seek to realise social values such as justice and human flourishing. There may be considerable historical/anthropological universality of values across time and culture. No society, civilisation, or culture prior to the seventeenth century, however, had a widely endorsed practice, or even vision, of equal and inalienable individual human rights. (Donnelly 2007: 284–85)

One can find affinities, analogues and precedents for the content of human rights in many religious and cultural traditions, but the actual concept of inalienable legal rights for all human beings on the basis of their humanity is a particular and modern invention, which represents a radical rupture from the predominantly hierarchical and non-egalitarian societies of the past. There is nothing natural, let alone inevitable, about ordering societies around the idea of universally equal and inalienable human rights. In fact, most known human societies did not have conceptions of human rights or even considered basic rights, such as the right to life, as a fundamental norm. Cultural anthropology provides ample evidence of infanticide, cannibalism or ritual headhunting among different varieties of tribes (eg Rosaldo 1989), while European history tells us about the ancient Spartans killing infants who were deemed to be too weak or about the ubiquity of judicially supervised torture to extract confessions until deep into the eighteenth century (Hunt 2007: 77). As Durkheim noted, the assumption of the universality of individual rights ought to be understood historically by focusing on the social conditions which enabled the idea of human rights to become a sacred symbol in the modern world (cf Spickard 2002). Along these lines, the shared valorisation of an idea, ideal or practice only comes about when a specific sociological context and a specific configuration of historical contingencies coexist.

Introduction to Sociology of Human Rights 7 Sociology has argued from its beginnings how the common association of human rights with universal and foundational claims about humanity easily leads to interpretations presuming that human rights can exist without social preconditions, or even beyond the realm of society. However, from a sociological standpoint, human rights cannot be treated as an anthropological or historical universal, but are to be seen as a social and historical achievement that requires sociological explanation. Contrary to most human rights literature, sociological analysis does not aim at the justification of human rights, or at their critique, but rather at reconstructing their societal conditions of plausibility. In other words, it aims at making human rights intelligible. Sociologists critical of the historical and anthropological universality of human rights have frequently asserted the close association between human rights and the structure of modern society (eg Howard-Hassmann 1989; Woodiwiss 2005). Just as with the social sciences themselves, human rights arose in response to the emergence of modern society in Western Europe and to the social disruptions it brought with it. With the advent of modernity, the centralisation of power by the (sovereign, bureaucratic) state and the growing penetration of the (capitalist) market intruded upon the social order of ‘traditional’ local communities. These developments disrupted or radically transformed traditional systems of mutual support and obligation (for instance, the support of the extended family) and hence left large numbers of segmented family units and individuals to face a growing range of economic and political threats alone. At the same time, growing social and geographical mobility, mass literacy and the emergence of mass education created more options for individual choice. Sociologically speaking, the concept of individual, inalienable rights emerged as a response to these new threats and possibilities. Fundamental rights provided the conceptual and institutional tools to help protect individuals from the increasingly invasive powers of state, market etc, while at the same time guaranteeing them free and equal access to modern social institutions such as mass education, public healthcare and labour markets, which provided them with the means—both material and symbolic—to construct their life-projects. In this sense, fundamental rights can be considered institutional devices to uphold protection not only for the individual, but also for the social order of modern societies. This umbilical connection between human rights and the structures of modern society was highlighted by Niklas Luhmann, who argued that human rights serve as a social institution to uphold and protect the functionally differentiated structure of modern society and to protect the inclusion of the individual in modern society. By the immunities and entitlements that individual persons may at any moment assume in their life plans in terms of human rights, the open, functionally differentiated and future-oriented structure of modern society is also protected (see also the contributions

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of Thornhill and Verschraegen in chapters two and three of this volume). In a similar way, John Meyer, Francisco Ramirez and their Stanford colleagues (eg Meyer et al 1997; Ramirez and Boli 1987) have drawn attention to the relationship between human rights and the globalisation of ‘institutionalised individualism’. This has been reflected, for instance, in a worldwide emphasis on education as a human right and as a prerequisite for societal development (see Ramirez and Moon’s contribution in chapter nine of this volume). In a more Weberian fashion, still others have drawn attention to the protection function of human rights against another typically modern invention—that is, the obdurate, complex and, yet, rather efficient bureaucratic organisations (Sjoberg et al 2001). For their general well-being and prospects in life, individuals are highly dependent on complex organisations such as government institutions, large companies, insurance conglomerates, hospitals or universities, and yet they have only nominal ability to control or hold them accountable. Once again, human rights can be seen as institutional tools to help protect individuals from the invasive power of these large-scale bureaucratic organisations and to hold them morally and socially accountable (Sjoberg et al 2001: 25–27). Recent developments in the area of corporate social responsibility (CSR) only accentuate this protective function, but apply it to multinational corporations that are currently pivot forces in modern society.

The Societal Institutionalisation of Human Rights The above discussion on the intrinsic relationship between human rights and the societal process of modernisation and state formation brings us to the question of what sociologists mean exactly when they speak of human rights. Contrary to legal-positivistic approaches to human rights, sociologists often argue that human rights need not be restricted to legal norms (Deflem and Chicione 2011: 104). Rights have to be seen as more than legal norms discerned by judges trained in legal reasoning. For human rights to have social meaning, they must become institutionalised socially and become embedded in people’s mindsets as well as in the day-to-day workings of societal institutions such as the judiciary, the schooling system, healthcare and the family. In this sense, the conceptual identification of human rights with pre-social or ‘natural rights’ does not withstand close scrutiny. These concepts are fundamentally different, as is evident from the fact that many of the rights enumerated in the Universal Declaration of Human Rights and the 1966 Covenants—including the right to a fair trial, the right to participate in government, the right to education or the right to social security—have modern, institutional preconditions (eg the existence of complex bureaucratic organisations such as the state, schools, social security systems etc). They are not simply ‘natural rights’ inhering in individuals

Introduction to Sociology of Human Rights 9 living in a pre-institutional environment (Cohen 2004; Pogge 2002: 57–58). From a sociological standpoint, individual rights are constructed by and in society; the individual and the social are mutually constitutive of one another, rather than the individual being ontologically prior to the social, as is implicitly assumed in the natural rights tradition (Woodiwiss 2009). Human rights are mostly created and protected by public institutions (most obviously including legislatures and courts) and for collective reasons. Even seemingly strictly individual rights such as property rights or the right to free expression are collectively conferred, designed and enforced to promote what are widely seen as collective, societal interests. Property rights, for instance, encourage individuals to improve their property by allowing owners to profit from the benefits of improvement. And this arrangement is, in turn, a social one engineered for social purposes as it has a perceptibly positive effect on a nation’s economic development and accountability structures (De Soto 2000). Individual’s enjoyment of the right to free expression similarly promotes greater social interests by diminishing the risk of ill-considered government action, promoting scientific progress, encouraging the dissemination of knowledge, empowering citizens to place a check on the government by establishing immunity from sanction when speaking out, and by ensuring that government oppression or abuse can sometimes be met by protest (Holmes and Sunstein 1999: 117). This sociological-institutional reading obviously differs from the legalpositivistic approach of human rights. This difference is not insignificant since ‘the whole human rights system has generally emerged from the liberal approach to individual civil rights, as judicially enforceable limitations on the powers of the state in order to protect certain vital interests of the population’ (An-Na’im 2001a: 96). Notwithstanding procedural differences among narrowly conceived legal systems, legal protection comes down to justiciability, which signifies the ability of a court of law to identify an individual victim, a violator and to prescribe a remedy for the violation. This legal paradigm of human rights is essentially based on four different assumptions (Fredman 2006: 48–50). First, rights are individualised: they are granted to individual subjects and are exercisable against other individuals or the state. Second, the correlative duty is generally a restraint on the state, prohibiting it from interfering with individual liberty. This means, third, that it is only when an individual can show that there has been an interference with the right that the remedial structure of the law comes into play. Thus, remedies are retrospective, individual and based on proof of breach, or ‘fault’. Lastly, courts are seen as the primary means of enforcing rights, and it is generally left to the individual to take the necessary steps to enforce his or her right. Although lawyers and human rights activists typically assign a central role to legal processes and justiciability in the protection of human rights, social scientists are more likely to emphasise the limitations of such a legal approach (Freeman 2002: 132). One of the

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significant contributions of socio-legal studies and the sociology of law has indeed been to show that, in practice, a strictly legal approach to the implementation of rights has significant limitations (eg Fredman 2006; Galligan and Sandler 2004; see also Greer, chapter seven in this volume). First, while the legal-positivistic approach assumes that the human rights subject is an autonomous individual whose self-realisation consists of protecting his or her freedom of choice and action, an institutional sociology of human rights will rather highlight the limitations of an individualisation of rights. Legal protection of rights presupposes the willingness and ability of individuals to resort to the courts for the enforcement of rights, while, in fact, recourse to the courts is a highly improbable and socially selective process, involving various facilitating networks. This means that few human rights violations actually lead to action in court. The individualisation of rights also ignores the ways in which breaches of rights operate in a collective and institutional way, and cannot easily be attributed to individual subjects. As judicial procedures deal with specific, individual cases, they only rarely influence society in a more systemic and structural fashion. Second, while the legalistic paradigm of human rights assumes that the state is a threat to liberty, a sociological-institutional reading of human rights emphasises how the state also has positive responsibilities to ensure the delivery of basic rights and collective goods (eg Holmes and Sunstein 1999). The protection of economic and social rights, as well as civil and political rights, requires significant energy and resources from the state and other collective institutions. For instance, to ensure that the police, military and other state organs are run in such a way as to protect citizens from torture, significant amounts of tax revenue and state organisation are needed (Galligan and Sandler 2004: 34; Holmes and Sunstein 1999). Similarly, guaranteeing the right to vote through free and fair elections demands not only prohibiting intimidation and discrimination at the polls, but also well-developed infrastructure, financial support and expert election technology. Less evidently, it also requires equal provision of an adequate level of health, education and income, ‘since high rates of illiteracy and poverty mean the de facto disenfranchisement of large sectors of the population’ (Landman 2006: 10). Generally speaking, ensuring human rights normally requires some level of action and resource appropriation on the part of the state to make those rights effective in a given social setting. Instead of clinging to the well-known ‘false dichotomy’ between negative and positive rights, the social sciences view rights as having both positive and negative dimensions (Landman 2006: 10–11; Shue 1980). Therefore, considering the institutional preconditions of rights makes it possible to see how civil and political rights have key positive characteristics (state funding, training and education programmes etc), as well as how economic and social rights have significant negative characteristics.

Introduction to Sociology of Human Rights 11 Third, whereas the legalistic approach assumes that legal remedies should only be available against the perpetrator of the breach (an individual or any other identifiable legal actor), the institutional approach to human rights and equality deems that failure to ensure rights is not necessarily traceable to any individual agent (Fredman 2006). For instance, it is well known that most failures in assuring human rights are more or less directly related to poverty, something that is also seen in developed countries, but more strikingly in resource-poor countries (Pogge 2002). This relationship is direct when referring to basic social and economic human rights, such as the right to an adequate standard of living ensuring the health and well-being of oneself and one’s family, which includes having sufficient amounts of food and clothing, and available and accessible housing and medical care. However, this relationship is more indirect when referring to civil and political human rights. Desperately poor people, who are often absorbed in the struggle to survive, typically lack an effective means for resisting their rulers, who are therefore likely to rule them oppressively (Farmer 2003; Pogge 2002). To address these kinds of structural issues, legal action will obviously not be sufficient. Another example of the social embeddedness of human rights can be found in the struggle against ethnic and gender discrimination. It is now well known that legal measures against discrimination can only be effective if they are supported by an underlying institutional infrastructure and cultural values (Banakar 2004; Fredman 2002). Fourth, and finally, a belief in the courts system is founded on an underlying assumption of both legitimacy and competence (Madsen 2011). However, well-functioning and legitimate courts are highly dependent on specific political and economic conditions, such as political stability, a low level of corruption, and material and organisational resources for the development of an independent and credible judiciary. These prerequisites are frequently lacking, especially where legal protection is most needed. For example, the legal systems of many African countries suffer from serious shortcomings in terms of legitimacy and accessibility, as well as lack of human and material resources (An-Na’im 2001b). The litigation process itself, depending as it does on individual litigation, is ad hoc and favours those with greater relevant resources (cf Hodson 2011; see also Hodson, chapter 13 in this volume). These various examples show how a sociological conception of (human) rights differs from the legal, individualised and grievance-based approach. Rather than assuming that the law is the only instrument with which human rights violations can be fought, the sociological approach draws attention to the broader societal preconditions for human rights protection. Accordingly, sociological perspectives do not want to restrict human rights to the institutional boundaries of law, but rather see them as a construct which can be used in different types of social arenas—legal as well as political, economic, religious or otherwise.

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A Sociology of the Emergence of Global Human Rights? Until now, our discussion of the sociological contribution to the study of human rights has only indirectly touched upon what is perhaps the most defining feature of contemporary human rights, namely their global scope and nature. The notion that all individuals are entitled to a set of rights by virtue of being human is an old one, dating back to the early modern struggles for religious freedom and the secular works of Kant and Locke. Yet, for the greater part of history, these rights were closely identified and bound up with the state. The US Bill of Rights and the French Declaration of the Rights of Man and of the Citizen cemented this nexus between rights and the state; in practice, the Rights of Man and the Citizen were limited to claims arising in the context of a national political and civil community. What has emerged more recently is the idea that individuals worldwide will and should enjoy the international protection of their individual rights. As recently as 1970, most states and policy-makers still thought that the promotion of human rights was mostly a moral concern of sovereign governments (see Madsen 2010; Moyn 2010). In the course of the last 40 years, however, human rights norms have become part of a global political and civil discourse. This growing global salience of human rights has been accompanied by significant improvements in human rights protection relying on a worldwide system of international law and an increasingly dense transnational organisation of civil society actors. Yet, how does sociology make intelligible the emergence and growth of the global human rights regime? And what does the emergence of global human rights say about sociology as a discipline? A number of sociologists, such as Soysal (1994), Beck (2006) or Levy and Sznaider (2006), have argued that the global institutionalisation of rights has opened up an uncertain terrain of ‘denationalisation’ and ‘cosmopolitanised sovereignty’ or have even called for a full ‘cosmopolitan turn’ which would challenge the ‘container theory’ of society associated with methodological nationalism. We do not share this call for ‘cosmopolitanisation’—which interprets the globalisation of human rights in highly normative terms—yet we agree that the emergence of a global human rights discourse and the growing codification of human rights norms in international law calls for the development of a sociology of international human rights next to a sociology of citizenship. As has already been touched upon, the sociology of citizenship has long functioned as a proxy for a sociology of rights. The classical model of citizenship is bound to the nation-state and entails a territorial relationship between the individual and the state—ie, only Danish nationals are entitled to the rights and privileges that the Danish state affords. In this model, citizenship was seen as a precondition for the enjoyment of civil, political and social rights. The territorial definition of the modern state thus allowed for the construction of boundaries to the outside, to non-citizens. While national

Introduction to Sociology of Human Rights 13 citizens could derive rights and benefits from the state, non-nationals could not enter the legal and solidarity spaces of other states, especially in terms of deriving rights or benefits from them. Citizenship then operated as an instrument of exclusion vis-a-vis the exterior: being a citizen, at least from developed democratic countries, entailed a wide range of civic, political and social rights, yet national citizenship was not easy to obtain for outsiders—at least not on a permanent basis and with full access to rights—nor was it easy to cast aside for insiders (Ferrera 2005). It was only in the post-war era that rights, which used to solely be enjoyed by nationals, were gradually extended to foreign populations, thereby potentially undermining the basis of the classical model of citizenship. Although the institution of citizenship as an instrument of national closure was cemented in the 1950s and 1960s—when the inclusion of the full national population in the legal and redistributive spaces of the democratic nationstate was more or less guaranteed—this period paradoxically also marked its gradual deconstruction. By the 1960s, the classical model of nation-statecentred citizenship was loosening its grip on the Western world because of various processes of cross-national integration (the main example being European integration) and the increasing flow of goods and persons across borders. The globalisation of the economic, political and legal system, and the increasing presence of migrants and asylum seekers in most states challenged and gradually altered the relatively compact and successful institutional configuration of the nation-state. The combination of these factors has resulted in a much looser link between rights, state and territory (eg Sassen 2006). In Europe, states now accept that decisions made by national courts can be overturned by a human rights court independent of their national parliaments and court systems. Fundamental freedoms guaranteed by the European Convention on Human Rights (ECHR), signed in 1950, now afford citizens of European states the ability to appeal to the European Court in Strasbourg (ECtHR) against injustices in civil and state administration (Madsen 2011). New nations seeking entry into the EU accept that they must align their domestic law in accordance with European human rights standards. In most of the developing world as well, ratifying international human rights covenants has become a condition for ‘legitimate statehood’. Nation-states can no longer function as linked, autonomous systems, but are increasingly influenced and regulated by ‘world models’ and ‘world standards’ that set criteria for membership in the ‘family of nations’ (Meyer et al 1997). Even oppressive states feel obliged to engage in rhetorical deference toward human rights (Schirmer 1999). Although not all states that signed the Universal Declaration actually believed that it would constrain their behaviour, human rights instruments have led to the emergence of a multilevel network of governmental and non-governmental organisations (NGOs)—Amnesty International and Human Rights Watch being only among the most famous—to pressure states to ‘practise what they preach’.

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In sum, over the last four decades, the prioritisation of the individual nation-state and the institution of national citizenship as an instrument of national closure have been put under increased pressure. As it is, nationstates can no longer function as autonomous containers, setting strong boundaries to the allocation of individual rights and duties. For the sociology of human rights, this entails that the more dated sociology of citizenship has to be supplemented with and reconceptualised in relation to the sociology of (global) human rights. The works of, for instance, Lydia Morris and Kate Nash take up this torch (Morris 2010; Nash 2009). As explained in the next section, a number of the contributions gathered in this volume also engage in this tension between citizenship rights and the globalisation of human rights. There is little doubt that this continuous tension between the national and the international represents a key area of sociological inquiry into human rights, but, as will be argued, it is not the only one.

OUTLINE OF THE BOOK

In the preceding sections of this introduction, we first explained the initially ambiguous relationship between sociology and the notion of human rights, and, second, articulated the deep interconnections between human rights and the evolution of society and the state. Although we are somewhat sceptical of some of the more essentialist analyses of human rights in philosophy and the social sciences, we do not call for a singular sociological approach to human rights. Rather, we suggest that if we are to realise the full potential of sociology for the understanding human rights, we must employ multiple sociological approaches; this is because, as it is, the phenomenon of society is anything but comprehensible in singular terms. Among sociologists, and dating back to the original debates between Emile Durkheim and Gabriel Tarde, the question of comprehending society has plagued the discipline. Our goal of making human rights intelligible in more sociological terms inevitably hurls these challenges at the very question raised by this book: if human rights are societal, what is then meant by society and, more generally, the social? Another closely related issue to confront is the question of how modern society is organised or, more accurately, what are the main structures that constitute modern society? Again, different classical schools of sociology provide markedly different answers, ranging from Marx to Weber, which in turn raise important issues for the development of a sociology of human rights. In this light, we have structured the book in a way that both provides a distinct sociological view of human rights, yet allows for a plurality of theoretical positions and analyses of different key societal institutions with regard to human rights. More concretely, in the first part of this book, we provide a series of more theoretical sociological understandings of human rights. These range from inquiring into the sociology of human

Introduction to Sociology of Human Rights 15 rights through the lens of a sociology of constitutionalisation (Thornhill), differentiation (Verschraegen), reflexivity (Madsen), tension (Stenner), sovereignty (Guilhot), implementation (Greer) and interrelations (Blau and Moncada). These different ways of rethinking human rights ultimately reflect key theoretical positions in modern sociology, including those from Bourdieu, Foucault, Luhmann and others. In the second part of the book, we turn to the question of the structures of modern society. Here we are inspired by Weber’s seminal analysis of the institutions of modern society in which he famously studied bureaucracy, law, the market, politics and religion. Against this backdrop, yet using a less institutionalist perspective, the second part of the book provides a set of analyses of human rights with regard to key societal institutions, including citizenship and education (Ramirez and Moon), solidarity and welfare (Thuesen), health (Jacobs), family (McNamara), civil society (Hodson) and police (Eijkman). This is, of course, only a limited list of the various relevant institutions which can be studied in this regard. However, when seen in the light of the first part of the book, these specific institutions, as explained through specific socio-legal case-studies, provide an empirical concretisation of the ways in which sociology can provide a very different reading of human rights in society.

Part I: Sociological Understandings of Human Rights As we have already argued, there is a deep interconnection between human rights and modern society. This section’s first chapter, written by Christopher Thornhill, makes this connection explicit by examining the institutionalisation and constitutionalisation of human rights in the formation of modern states. Using an evolutionary approach to modern socio-political formation, the chapter examines the relative position and status of human rights in contemporary society. Evading the rationalist trap of seeing human rights as merely the outcome of deliberative actions, Thornhill suggests that human rights are articulations of societal exigencies which mirror the deeper functional processes intrinsic to the formation of modern societies. Chapter three shares this key observation, yet opens a more general avenue for rethinking human rights using sociology. Written by Gert Verschraegen, it seeks to devise a distinct sociological understanding of human rights by examining the societal role of fundamental rights in modernity, using theories of differentiation and inclusion. By looking at some commonalities and differences among various versions of the theory of societal differentiation (Durkheim, Parsons and Luhmann), Verschraegen shows how the sociological tradition has conceptualised fundamental rights in a distinctive sociological manner, which provides an important contrast to the standard liberal concept of human rights.

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Chapter four also directly engages in the development of a sociological understanding of human rights. Written by Mikael Rask Madsen, it argues that a key contribution of sociology to the understanding of human rights is found in its role in helping to construct human rights as a genuine social scientific object of study, moving past the constraints of the still-dominant legal and liberal conceptions of human rights. Following Bachelard, the chapter first argues for the need for an epistemological break with respect to human rights, one which helps define—indeed objectivise—human rights as a research object. Against this background, the chapter turns to the sociological tools developed by Bourdieu and demonstrates how they can help develop a reflexive sociology of human rights which is both relational and integrative. Madsen’s claim is that these research tools provide the necessary heuristic means for situating the object of human rights at its actual social level, that is, not only at a structural level but also, simultaneously, at the level of social practices. Chapter five, written by Paul Stenner, also addresses basic scientific issues with regard to studying human rights. The chapter starts out with a critique of Bryan Turner’s pioneering work on a sociological theory of human rights by calling into question the theory’s foundation in the notion of human nature. Yet, while being critical of Turner’s theoretical grounding, Stenner is also highly supportive of Turner’s ‘ground clearing’, which shows how the sociologisation of human rights has mainly resulted in a reduction of value to fact. This, according to Stenner, is in many respects due to the ways in which sociology—and the sociologisation—of human rights is bound up into the bigger picture of the historical emergence of human rights, which, conversely, has led to downplaying the aspirations of human rights. Essentially, Stenner’s objective is to develop Turner’s inquiry further by strengthening its rather thin grounding. To do so, he introduces the sociology of Alfred North Whitehead, which provides a means for studying the key tension between facts and aspirations in human rights. Chapter six, written by Nicolas Guilhot, examines another key issue of the interface between human rights, the state and society, namely the question of sovereignty. It starts out with a critique of social constructivist accounts of how transnational human rights activism has managed to develop normative constraints on state practices. As Guilhot shows, the prime point of reference provided in this literature on the success of principled transnational activism is found in the ways in which human rights norms have started transforming US foreign policy since the mid1970s. Guilhot demonstrates how this account confuses the object of the activism—limiting sovereignty—with the social practices actually developing around human rights. According to Guilhot, human rights cannot be seen in terms of a normative and external limitation of sovereignty, but have to be reinterpreted, with their full sociological implications, as the internal basis of governmental practices. Thus, rather than situating

Introduction to Sociology of Human Rights 17 contemporary human rights in the liberal legal tradition of sovereignty, they have to be reinterpreted in terms of ‘governmentality’. Chapter seven by Steven Greer seeks to establish more quantitative indications of human rights. It begins with an evaluation of research into human rights and the more recent attempts being made at going beyond the legal analysis of legal institutions, procedures and formal norms for understanding both the achievements and problems of the European Convention on Human Rights (ECHR) and its institutions. As Greer points out, the paradox is that although the Strasbourg human rights institutions, by their legal nature, seem to call for legal analysis, the actual challenges facing these institutions are hardly solved in this manner. It is against this backdrop that Greer suggests a sociologically informed understanding of the effectiveness of the ECHR. As he demonstrates, the ECHR system is deeply socially embedded, which requires turning to sociological inquiry and methods in order to explain its actual problems and constraints. The last chapter of the first half of this book, chapter eight, is co-authored by Judith Blau and Alberto Moncada. Like the previous chapters, it outlines a sociological reinterpretation of human rights in contemporary societies; however, it also provides a more normative critique of the neoliberal reinterpretation of human rights which leaves little—if any—room for society. Arguing against recent political trends, the authors contend that ‘society’s distinctive role is to embed human rights norms and practices into social relations, communities, and social institutions’. This is possible, they argue, because these practices and norms are essentially social. Yet, society is not simply utopian in terms of human rights, but is also embedded with human rights violations. Blau and Moncada’s general claim is therefore that it is precisely by understanding how society embeds both respect for human rights and human rights violations that one can enhance human rights by fighting their violations.

Part II: Human Rights and the Transformation of Key Institutions of Modern Society The second part of this book opens with a chapter written by Francisco Ramirez and Rennie Moon. This chapter engages in the classic sociological take on human rights in terms of citizenship, yet it rephrases the question of rights and citizenship by exploring one of its most important social articulations, that is, mass schooling. Ramirez and Moon argue that schooling has gone from being the privilege of a limited group of citizens to becoming a universal aspiration and even an entitlement. In their analysis, they therefore examine the global institutionalisation not only of mass schooling but also of the nation-state, as the latter is closely linked to the very logic of inclusion behind mass schooling. This analysis is then further linked to the

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emergence of international human rights, ultimately allowing the authors to reinterpret citizenship via human rights education in a ‘world society’. In chapter 10, Frederik Thuesen argues that Emile Durkheim’s classic idea of law being an index of social solidarity can be fruitfully applied to contemporary analyses of globalisation and human rights. A number of contemporary sociologists, ranging from Jürgen Habermas to Ulrich Beck, have pointed to the close links between human rights and solidarity. Thuesen, however, goes beyond the mere abstract sociological argument of, for example, Habermas and Beck, and instead explores the actual effects and implications of international human rights on the welfare state, the key institution of social redistribution and solidarity of modern societies. Using the case of Denmark, he points to the cleavages and tensions between practice and ideology of human rights in the production of solidarity in modern welfare societies. Chapter 11 similarly examines the realisation of human rights. Written by Lesley A Jacobs, it discusses Article 2 of the International Covenant on Economic, Social and Cultural Rights, which states that social rights, including the right to the highest attainable standard of health, might be protected through progressive implementation. Article 2 thus echoes the widespread notion that certain rights are not fundamental in and of themselves, and that their realisation depends on the levels of socio-economic development in the country in question. In other words, what the right to health entails is socio-economically contingent. This raises fundamental dilemmas for evaluating, on a comparative level, the implementation of the right to health. In this chapter, Jacobs develops a framework for examining the progressive realisation of the right to heath, calling for a pluralist approach that is both a ‘non-uniform model of compliance’ and a model which takes local culture seriously. Chapter 12, written by Luke McNamara, presents results from his research on the circulation of human rights discourse in policy and law reform debates with regard to the legal status of same-sex relationships. Departing from the creation of the Canadian Civil Marriage Act of 2005, yet comparing it to developments in other common law countries (the UK, New Zealand and Australia), McNamara explores the impact of ‘legal form’ on the outcome of legislative initiatives in this fiercely debated area of human rights and social and moral policy. The goal is not only to analyse the outcomes of such debates, but also, in particular, to analyse how the ‘respect for human rights’ becomes a reference in such debates and eventually is embedded in domestic political and societal settings. This discussion is followed by chapter 13, written by Loveday Hodson, who explores the role of civil society organisation in the struggle for human rights. Hodson’s empirical object is non-governmental organisations (NGOs) presenting claims before the ECtHR in cases involving gross and systemic human rights violations. Through an in depth examination

Introduction to Sociology of Human Rights 19 of a selection of cases brought before the ECtHR by two key NGOs, the Kurdish Human Rights Project and the European Roma Rights Centre, she identifies the role of these organisations in bringing such situations to the ECtHR’s attention. At the same time, however, she points to the tension between the individualistic starting point of human rights litigation and more collective problems facing human rights, an issue also prevalent in some of the more general sociological accounts presented in the earlier parts of the book. In the final chapter, Quirine Eijkman studies how human rights are used as a strategy for transforming police forces and their practices in Latin America. Focusing specifically on the Costa Rican Police Force, she examines a number of human rights training programmes and evaluates their impact on enhancing police officers’ compliance with human rights standards. However, as she points out, the effect of such attempts at reform through principled standards is relative. To understand the effect—or lack thereof—one needs to situate such strategies in a much broader social and institutional context in order to accurately explain the forms of resistance which are generated against these attempts at social change through human rights.

REFERENCES An-Na’im, A (2001a) ‘Human Rights’ in JR Blau (ed), The Blackwell Companion to Sociology (Malden, MA, Blackwell). —— (2001b) ‘The Legal Protection of Human Rights in Africa: How to Do More with Less’ in A Sarat and TR Kearns (eds), Human Rights: Concepts, Contests, Contingencies (Ann Arbor, MI, Michigan University Press). Arendt, H (1973 [1951]) The Origins of Totalitarianism, 2nd edn (New York, Harcourt Brace). Bachelard, G (1938) La formation de l’esprit scientifique (Paris, Libraire Philosophique J Vrin). Banakar, R (2004) ‘When do Rights Matter? A Case Study of the Right to Equal Treatment in Sweden’ in S Halliday and P Schmidt (eds), Human Rights Brought Home. Socio-Legal Perspectives on Human Rights in the National Context (Oxford, Hart Publishing). Beck, U (2006) Cosmopolitan Vision (Cambridge, Polity Press). —— and Sznaider, N (2006) ‘Unpacking Cosmopolitanism for the Social Sciences’ 57 British Journal of Sociology 1. Blau, J and Frezzo, M (2010) Sociology and Human Rights: A Bill of Rights for the Twenty-First Century (London, Sage). Bobbio, N (1995) The Age of Rights (Cambridge, Polity Press). Christoffersen, J and Madsen, MR (eds) (2011) The European Court of Human Rights between Law and Politics (Oxford, Oxford University Press). Cohen, JA (2004) ‘Minimalism About Human Rights: The Best We Can Hope For?’ 12(2) Journal of Political Philosophy 190.

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De Feyter, K (2008) ‘In Defence of a Multi-Disciplinary Approach to Rights’ in K De Feyter and G Pavlakos (eds), The Tension between Group Rights and Human Rights (Oxford, Hart Publishing). Deflem, M and Chicione, S (2011) ‘The Sociological Discourse on Human Rights: Lessons from the Sociology of Law’ 40(1) Development and Society 101. De Soto, H (2000) The Mystery of Capital (New York, Basic Books). Dezalay, Y (2004) ‘Les courtiers de l’international : Héritiers cosmopolites, mercenaires de l’impérialisme et missionnaires de l’universel’ 151–52 Actes de la recherche en sciences sociales 5. —— and Garth, B (2006) ‘From the Cold War to Kosovo: The Rise and Renewal of the Field of International Human Rights’ 2 Annual Review of Law and Social Science 231. Donnelly, J (2003) Universal Human Rights in Theory and Practice, 2nd edn (Ithaca, NY, Cornell University Press). —— (2007) ‘The Relative Universality of Human Rights’ 29(2) Human Rights Quarterly 281. Eliott, MA (2007) ‘Human Rights and the Triumph of the Individual in World Culture’ 1 Cultural Sociology 343. Farmer, P (2003) Pathologies of Power. Health, Human Rights and the New War on the Poor (Berkeley, CA, University of California Press). Ferrera, M (2005) The Boundaries of Welfare. European Integration and the New Spatial Politics of Social Protection (Oxford, Oxford University Press). Finnemore, M (1996) ‘Norms, Culture and World Politics: Insights from Sociology’s Institutionalism’ 50(2) International Organization 325. —— and Sikkink K (2001) ‘Taking stock: The constructivist research program in international relations and comparative politics’ 4 Annual Review in Political Science 391. Fredman, S (2002) Discrimination and Human Rights: The Case of Racism (Oxford, Oxford University Press). —— (2006) ‘Transformation or Dilution: Fundamental Rights in the EU Social Space’ 12(1) European Law Journal 41. Freeman, M (2002) Human Rights: An Interdisciplinary Approach (Oxford, Polity Press). Friedman, LM (2011) The Human Rights Culture: A Study in History and Context (New Orleans, Quid Pro). Galligan, S and Sandler, D (2004) ‘Implementing Human Rights’ in S Halliday and P Schmidt (eds), Human Rights Brought Home. Socio-Legal Perspectives on Human Rights in the National Context (Oxford, Hart Publishing). Galtung, J (1994) Human Rights in Another Key (Oxford, Polity Press). Goodhart, ME (2003) ‘Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization’ 25(4) Human Rights Quarterly 935. Hagan, J, Schoenfeld, H and Palloni, A (2006) ‘The Science of Human Rights, War Crimes, and Humanitarian Emergencies’ 32 Annual Review of Sociology 329. Henkin, L (1990) The Age of Rights (New York, Columbia University Press). Hodson, L (2011) NGOs and the Struggle for Rights in Europe (Oxford, Hart Publishing).

Introduction to Sociology of Human Rights 21 Hoffmann, SL (2011) Human Rights in the Twentieth Century: A Critical History (Cambridge, Cambridge University Press). Holmes, S and Sunstein, CR (1999) The Costs of Rights. Why Liberty Depends on Taxes (New York/London, Norton). Howard-Hassmann, R (1989) ‘Dignity, Community and Human rights’ in A An-Na’im (ed), Human Rights in Cross-cultural Perspectives. A Quest for Consensus (Philadelphia, University of Pennsylvania Press). Hunt, L (2007) Inventing Human Rights. A History (New York/London, Norton). Hynes, P, Lamb, M, Short, D and Waites, M (2010) ‘Sociology and Human Rights: Confrontations, Evasions and New Engagements’ 14(6) International Journal of Human Rights 810. Keck, ME and Sikkink, K (1998) Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, NY, Cornell University Press). Koo, J-W and Ramirez, FO (2009) ‘National Incorporation of Global Human Rights: Worldwide Adoptions of National Human Rights Institutions, 1966– 2004’ 87 Social Forces 1321. Landman, T (2006) Studying Human Rights (London/New York, Routledge). Levy, D and Sznaider, N (2006) ‘Sovereignty Transformed: A Sociology of Human Rights’ 57(4) British Journal of Sociology 657. Luhmann, N (1965) Grundrechte als Institution (Berlin, Duncker & Humblot). Madsen, MR (2010) La genèse de l’Europe des droits de l’homme: Enjeux juridiques et stratégies d’Etat (France, Grande-Bretagne et pays scandinaves, 1945–1970) (Strasbourg, Presses universitaires de Strasbourg). —— (2011) ‘Legal Diplomacy: Law, Politics and the Genesis of Postwar European Human Rights’ in SL Hoffmann (ed), Human Rights in the Twentieth Century: A Critical History (Cambridge, Cambridge University Press). Marshall, TH (1950) Citizenship and social class, and other essays (Cambridge, Cambridge University Press). Meyer, JW, Boli, J, Thomas, GM and Ramirez, FO (1997) ‘World Society and the Nation-State’ 103(1) American Journal of Sociology 144. Morgan, R and Turner, BS (eds) (2009) Interpreting Human Rights (London, Routledge). Morris, L (2010) Asylum, Welfare and the Cosmopolitan Ideal. A Sociology of Rights (London, Routledge). Moyn, S (2010) The Last Utopia: Human Rights in History (Cambridge, Belknap Press). Nash, K (2009) ‘Between Citizenship and Human Rights’ 43(6) Sociology 1067. Pogge, T (2002) World Poverty and Human Rights (Cambridge, Polity Press). Ramirez, FO and Boli, J (1987) ‘Global Patterns of Educational Institutionalization’ in GM Thomas et al (eds), Institutional Structure: Constituting State, Society, and the Individual (Newbury Park, CA, Sage). —— and Suarez, D (2004) Human Rights and Citizenship: The Emergence of Human Rights Education, CDDRL working paper (Stanford Institute for International Studies). Risse, T, Ropp, S and Sikkink, K (eds) (1999) The Power of Human Rights: International Norms and Domestic Change (Cambridge, Cambridge University Press). Ron, J (1997) ‘Varying Methods of State Violence’ 51(2) International Organization 275.

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Rosaldo, R (1989) Culture and Truth: The Remaking of Social Analysis (Boston, Beacon Press). Sassen, S (2006) Territory, Authority, Rights. From Medieval to Global Assemblages (Princeton, Princeton University Press). Shue, H (1980) Basic Rights: Subsistence, Affluence, and US Foreign Policy (Princeton, Princeton University Press). Somers, MR and Roberts, CNJ (2008) ‘Toward a New Sociology of Rights: A Genealogy of “Buried Bodies” of Citizenship and Human Rights’ 4 Annual Review of Law and Social Science 385. Soysal, Y (1994) Limits of Citizenship (Chicago, University of Chicago Press). Schirmer, J (1999) The Guatemalan Military Project: A Violence Called Democracy (Philadelphia, University of Pennsylvania Press). Sikkink, K (1996) ‘The Emergence, Evolution, and Effectiveness of the Latin American Human Rights Network’ in E Jelin and E Hershberg (eds), Constructing Democracy. Human Rights, Citizenship and Society in Latin America (Colorado, Westview Press). Sjoberg, G, Gill, EA and Williams, N (2001) ‘A Sociology of Human Rights’ 48(1) Social Problems 11. Spickard, J (2002) ‘Human Rights through a Religious Lens: A Programmatic Argument’ 49(2) Social Compass 227. Turner, BS (2006) Vulnerability and Human Rights (Philadelphia, Pennsylvania University Press). —— (1993) ‘Outline of a Theory of Human Rights’ 27 Sociology 489. Verschraegen, G (2002) ‘Human Rights and Modern Society: A Sociological Analysis from the Perspective of Systems Theory’ 29(2) Journal of Law and Society 258. Woodiwiss, A (2005) Human Rights (London, Routledge). —— (2009) ‘Taking the Sociology of Human Rights Seriously’ in R Morgan and BS Turner (eds), Interpreting Human Rights: Social Science Perspectives (London, Routledge).

2 State Building, Constitutional Rights and the Social Construction of Norms: Outline for a Sociology of Constitutions CHRIS THORNHILL

T

HIS CHAPTER EXAMINES the role of human rights in contemporary societies by offering a wide evolutionary analysis of modern sociopolitical formation, while also providing a fully sociological account of human rights from this perspective. In other words, it aims at illuminating the social status of human rights, especially those rights that are positively embedded in state constitutions, by observing rights and constitutions not as the outcomes of rational or deliberative activity, but as articulations of societal exigencies and thus as reflecting the functional processes that underpin and structure the development of modern societies. It hopes to contribute to the sociology of rights by proposing a macro-sociological analysis of political constitutions and constitutional rights, and, in doing so, outlining the parameters for the construction of constitutional sociology as a distinct sub-discipline of sociological inquiry. In pursuing an evolutionary-sociological approach to constitutional rights and their social functions, this chapter further argues that there are a number of established positions in the canon of sociological research that obstruct a sociological comprehension of the role of rights and constitutions in modern societies. This is most particularly the case in the corpus of literature usually categorised as the historical sociology of states. For this reason, this chapter is centred around a critical engagement with the standard preconditions of the sociology of states, arguing that dominant positions in this field have failed to adequately analyse rights, that they have directly impeded an effective examination of the functional motives for the formation of rights in modern politics and that, because of this, they have promoted a reductive and sociologically under-reflected approach to the emergence of political actors in modern societies.

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This chapter suggests that the sociology of states is usually marked by two closely connected presuppositions that give rise to misconceptions regarding rights, constitutional norms and the broader political contours of modern society. First, most influential sociologies of the state are inclined to view the modern state in monistic and highly literal terms: that is, they tend to view the state as a compact executive bloc, which monopolises power and enforces central control over the means of jurisdiction and the means of fiscal extraction in a particular social order and in a particular regional or geographical territory. These analyses usually argue, albeit with differences of emphasis, that modern states are formed through a process in which, in a given society, prepotent or even dominant social agents deploy strategies of coercion and extraction in order to arrogate more or less exclusive power to themselves: this power is then concentrated in the institutions of the state (see Schumpeter 1976: 329–79; Weber 1921: 558–59; see also Levi 1988: 138; Mann 1986: 444–45; Mann 1988: 9, 14; Strayer 1970: 9; Tilly 1975: 3–83; Tilly 1990: 74). On this conventional account, the condition of political modernity specifically depends upon the fact that a state (or actors within the state) produces directives for all members of a society and that, across its sectoral variations, a modern society is inevitably centred around the directive power of the state. Second, sociological analyses of the state are inclined to argue that, as the state is primarily an organ of political coercion and concentration, the precise institutional forms that states elect to legitimise themselves are the results either of instrumental strategy or of highly contingent historical and cultural variations, and, as such, cannot be understood through any normative, deductive or generalisable analysis (see for example Weber 1921: 122–76).1 Generally speaking, the sociology of states only rarely addresses the precise role that legal-normative institutions play in the organisation of statehood; it is widely indifferent to the normative forms, such as rights and political constitutions, that condense around state power and around which state power arranges and legitimises itself; moreover, it devotes little attention to interpreting or accounting for the legitimatising function of normative institutions such as rights and constitutions. Indeed, whilst the broader evolutionary trajectory of modern social reality has clearly tended

1 To be sure, some sociological analysis of states has a pronounced normative bias. However, the most obvious examples of normatively weighted historical sociology, such as the historical elements in the writings of Parsons, suggest that the normative content of states can only be examined not as resting on explicitly justifiable principles, but through reference to variable values embedded in social structure and residual cultural patterns of integration. See Parsons’s discussion of how ‘patterns of normative culture’ are internalised by particular social agents and thus help to build social structure and stabilise the social system as a whole (Parsons 1967: 7–8). See also Merton’s theory of ‘cultural structure’ as an aggregate of general values that promote conformity to institutionalised norms (Merton 1957: 166). See also Robert A Nisbet’s view of norms as internal elements of culture (Nisbet 1970: 223–25).

Outline for a Sociology of Constitutions 27 towards a consolidation of the link between states and rights (especially in the form of constitutional rights), the sociology of states has been largely obdurate in refusing to fix its gaze on this fact, and it has, with some exceptions, persisted in its construction of the state as a coercive order detached from a stable or fundamental normative legal form.2 The sociology of states, which ought to be the sphere of sociological analysis most capable of encompassing the sociology of rights and constitutions, instead forms the line of inquiry that has proved most inimical to the formation of such research, and it has generally failed to construct the normative apparatus of state power as an object for distinctively sociological explanation. Consequently, this chapter seeks to sketch a path for the reformulation of the principles of the historical sociology of states and aims to strengthen the legal-normative focus of historical sociology by integrating a sociology of rights and constitutions into its examination. To this end, it places rights, constitutions and the legal-normative institutions of political legitimacy at the foreground of sociological inquiry, and proposes a general sociological account of the function of rights and constitutions in the political exchanges of a modern society. It argues that objective legal norms, rights and constitutions are structural preconditions of modern politicality and that sociological interpretation, if accurately proportioned to the reality of modern politics, must develop specifically sociological perspectives to both construct and clarify the status of legal norms, rights and constitutions. This chapter seeks to articulate a correlated corrective to these aforementioned presuppositions. In adjusting the sociological perspective on rights, it seeks to provide a framework for an integrated analysis of politics and politicality in modern society that examines the construction of modern politics in its widest societal dimensions, and which observes states not as simple institutions of social domination, but as aspects of a multifaceted and multicausal process of societal evolution. Underlying this theoretical undertaking is the sense that the sociology of states only becomes fully sociological if it renounces the monistic construction of statehood and if it incorporates a sociology of rights and constitutions which is able to understand legal norms and rights as linked to the patterns of social

2 Hence Tilly’s derision of the ‘old liberal conception of European history’, which allegedly sees state building as necessarily leading to the incremental enfranchisement of citizens under rights (Tilly 1975: 37). An important exception to this is Georg Jellinek, whose theory of the state clearly argues that states, simply through their factual emergence, necessarily assume a normative form (see Jellinek 1900: 308). The Parsonian line of historical sociology is less guilty of this than others. Nonetheless, even Parsons clearly sees the political system as the dominant system in society (see Parsons 1969: 361). A further exception to this is Otto Hintze, who provides an outstanding analysis of the evolution of modern constitutional rights from earlier constitutional forms (Hintze 1962: 147).

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causality that give rise to states, and which therefore observes legal norms as internal elements of modern political formation.

A SYSTEMS-THEORETICAL APPROACH TO THE SOCIOLOGY OF HUMAN RIGHTS

In its methodological critique of more common sociological views of the state and its constitutional order, this chapter draws substantially on the functionalist theory of society proposed by Niklas Luhmann, expanding on the implicit sociology of human rights and political constitutions found in Luhmann’s work. At different points in his career, Luhmann wrote extensive commentaries on the social function of human rights and constitutional rights. For Luhmann, rights, especially those positively incorporated into constitutions, are amongst the most important functional preconditions of social modernity, and there exists a close and constitutive link between the construction of rights and the wider process of social differentiation that underlies the evolution of modern society (see Luhmann 1973: 6). In this view, rights do not evolve, in any measurable way, because rational human agents want rights or because rational human minds think that rights are ethically desirable; instead, they evolve because modern societies need rights to describe and reflect themselves and their wider differentiated structure. Although rights are conventionally seen as checks imposed from without onto the political system (see for example Lane 1996: 19), Luhmann claimed that rights are formed from within the political system. He argued that the modern political system is constituted through a process of functional differentiation and specification, and that rights are institutions which the political system, including the state, generates and externalises for itself as it identifies, describes and consolidates its differentiation from other social systems. The political system thus reflexively relies on rights in order to limit the degree to which it must internalise and regulate social exchanges outside its own functional purview. In this way, it is fundamental to rights and to the constitutional arrangements—in particular, the separation of powers emerging from rights regimes—that they obstruct the amorphous politicisation of society, obviate the excessive concentration of power at any one point in the political system and in society as a whole, alleviate the political system of unmanageable and potentially delegitimising social responsibilities, and, more widely, help to delineate functionally sustainable contours for the modern politics of modern society (for background see 1973: 11–12). Rights, in consequence, can be viewed as externalised elements of the intelligence contained within the modern political system itself. On this last point, Luhmann’s analysis turns directly against the first assumption that usually characterises historical sociology and the sociology of states. Indeed, his observations on this point might be seen as offering a more deeply reflected and fully sociological antidote to some of the presuppositions

Outline for a Sociology of Constitutions 29 that characterise these fields. The central implication in Luhmann’s political sociology is that modern states, or modern political systems, are formed not through a process of political convergence or monopolisation, but in fact through a process of social differentiation, in which the political system, together with all other spheres of functional exchange in society, are separated out from each other, and so approach a condition of relative functional autonomy and self-reference. Luhmann’s work also speaks against the second commonplace that normally underpins the sociology of states and implies that, far from acting in indifference to rights and legal norms, states in fact functionally presuppose norms, articulated as constitutional rights, and they generate and necessitate rights as elements of their own sustainable (differentiated) self-construction. On these grounds, Luhmann’s sociology is employed here as a theoretical model that supports a macro-sociological account of the necessary correlation between states, rights and constitutional norms in modern societies, and that consequently permits the sociology of states to find correctives for its established aporia and legal-normative blindness, and fully to integrate an account of the societal function of rights and constitutions.

STATES, RIGHTS AND POLITICAL DIFFERENTIATION: RE-EXAMINATION OF A COMMONPLACE

The common claim in historical sociology that the state is formed as an agent that brings all of society into convergence around monopolistic political directives can be criticised on two distinct, but equally significant, counts. First, it is arguable that the convergent or monopolistic view of the state depends upon a sociologically selective and narrowly focused account of the causes and the functions of statehood. According to this critique, the convergent view of the state too literally accepts the face-value appearance that states develop as institutions exercising a monopoly of power throughout societies, and it fails to analyse the historical formation of states in its relation to more diffuse or submerged processes of social evolution, transformation and causality. Second, it is also arguable that the convergent or monopolistic view of the state shows a pronounced lack of functional discrimination in its approach to the institutions vested with political authority. This deficiency is most particularly the case in the common claim amongst historical sociologists that the structure of modern societies is determined by the jurisdictional supremacy of the state and by the resultant control of the law that the state exerts.3 However, this deficiency is also evident in the related claim, which is typical of most historical 3 As perhaps the most famous retrospective example of this claim, see Weber (1921: 419). This view was also widely proposed in the contemporary literature that accompanied the rise of states; see especially Bodin 1579 [1576]: 122.

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sociology, that the state’s monopoly of fiscal power is of formative significance for the structure of modern societies (Levi 1988; Mann 1986; Mann 1988; Schumpeter 1976; Strayer 1970; Tilly 1975; Tilly 1990; Weber 1921). On this critique, the convergent view of the state naively perceives the structure of society as hierarchically dictated by states, it falsely construes the coalescence of the state with other social functions (especially the law and the economy) as an index of the state’s structural dominance and it fails causally to probe the underlying motives for the interdependence between the state and other functional spheres (especially the law and the economy). For the outlook suggested here, the argument in historical sociology that the modern state acts as a centre of societal convergence reflects two serious misconceptions and methodological weaknesses. These misconceptions and weaknesses are also root causes of the deficiencies of historical sociology in its analysis of society’s legal-normative formations. It is only when these weaknesses have been overcome that the place of legal norms, rights and constitutions in state formation can be more accurately assessed. Set out below are possible preconditions for a reformulation of these elements of historical sociology and, consequently, also for a restatement of the role of rights and constitutions in sociological analysis.

Historical Sociology and the Problem of Social Causality It is not difficult to see why the claim is widespread in sociological analysis that modern societies converge around powerful political centres and that states are originally formed as dominant or even monopolistic actors in society. Indeed, it can be acknowledged, at least in the European context, that pre-modern societies were marked by highly diffuse political resources and were largely lacking a fully articulated political density. These societies attached the form of power to very personalised roles and localised conventions, which often conflated many different modes of veto, sanction and obligation, and they did not possess centrally abstracted repositories of political authority. The transition from the dispersed pre-modern politics of feudalism to the politics of modern society can therefore be seen as a process in which political power was institutionally condensed, detached from natural persons and customary relationships, and transposed into a relatively perennial and regularised organic structure. Central to this transformation was the fact that power became increasingly generalised and inclusive through society, traversing the local and patrimonial divisions that constituted the form of pre-modern social order, and gradually obtaining a positively abstracted and administratively consistent distinction and identity against other social exchanges (for example, against exchanges perceived as pertaining to science, to religion or to the economy). States, then, were first formed as institutions that fostered and reinforced this

Outline for a Sociology of Constitutions 31 distinctively modern, abstracted construction of society’s power,4 and the emergence of states as institutional centres applying positivised forms of power was one of the basic conditions for the evolution of society towards its contemporary form: that is, towards a form in which different media of exchange could be transmitted through society as distinctly generalised and functionally specific and inclusive. Indeed, the formation of a centralised apparatus of state, exercising functionally unique, specified and relatively unchallenged political power within a delineated socio-geographical region, was clearly a primary prerequisite for the early formation and subsequent persistence of a modern society. To this extent, the common account of the state in historical sociology appears accurate and sustainable. However, if examined in a more socially integrative light, the formation of states cannot be adequately understood as reflecting a process of convergence or societal condensation. On the contrary, the emergence of states can be seen as one part of a much wider process of social formation that, in fact, had little to do with the concentration of society around bluntly coercive prerogatives and that articulated an evolutionary societal dynamic that directly countervailed any unifocal societal convergence around the sources of society’s political agency. At a superficially evident level, state building occurred as a process in which political actors assumed accountability for very specific types of regulation, and they pursued and exercised this accountability, to an increasing degree of generality and intensity, across all spheres of society. At a less obvious level, however, this abstraction and generalisation of political accountability did not mean that political actors were able to apply their power in undifferentiated or monopolistic fashion, nor did it mean that they obtained resources of power that allowed them indiscriminately to regulate all exchanges throughout society. In fact, the opposite is true. The abstraction and generalisation of power around emergent states actually formed part of a process in which states developed as institutions that limited society’s political accountability to determinate and discrete societal functions, and that actively curtailed the use of political power in spheres of society that had no immediate requirement for it. Therefore, the abstraction and generalisation of political power around states presupposed a selection of those areas of society to which power could be applied and that were identified as possessing specific political relevance or susceptibility. It was fundamental to the first evolution of states that they acted to withdraw political power from many segments of society and to place prohibitive specifications upon society’s use of power. First, from the outset, states, across national variations, began

4 For a tiny sample of the vast literature on early state building and administrative centralisation and organisation, see Creveld 1999: 128; Reynolds 1997: 39; Strayer 1970: 9.

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to consolidate and explain themselves as states—or even as ‘sovereign’ states—because they were required to differentiate their functions and their authority from exchanges that were specific to religion (Bardoux 1877: 7).5 In this respect, states emerged as institutional orders whose powers were specifically distinct from powers of religious sanction, from the hierarchical structures of religious organisations and from the modes of explanation used to support ecclesiastical organisation. Second, across national variations, states began to consolidate and explain themselves as states as part of a process in which the law and the means of judicial application also approached a high degree of abstraction and formality, so that, in their nascence, states were counterbalanced and limited by exchanges that were autonomously regulated and formalised under law.6 In this respect, states emerged as institutional orders whose powers were distinct from judicial procedures and whose authorisations could not easily be homogenised with principles determining legal application. Third, across national variations, states began to consolidate and explain themselves as states at a time when they also began to respond to and reflect themselves against the increasing extension and autonomy of economic exchanges. In this respect, states emerged as institutional orders whose powers were specifically distinct from patterns of economic exchange and from the principles of transaction, accumulation and expropriation underlying the emergent economy. In each of these cases, the formation of states was correlated with the emergence of other social functions as relatively autonomous social arenas, and the need for states to utilise power as an abstracted resource was determined by the fact that the functional purchase of power was subject to progressive specialisation and functional restriction. Consequently, it can be argued that more standard historical-sociological accounts of the state contain a partial truth. Emerging states were indeed characterised by the fact that they arrogated to themselves something close to a monopoly of political power in a society. Indeed, it might be viewed as constitutive of modern societies that they required an abstracted source of

5 The French monarchy first proclaimed itself as based in the ‘communautez des villes’ during the conflicts over temporal jurisdiction between Philippe le Bel and Pope Boniface VIII. See ‘Lettre des Nobles du Royaume de France’ [1302] (1901): 13. At an earlier stage in European history, the investiture controversies created a legal context in which Italian city-states were able to develop a relatively ordered constitutional structure as their consuls arrogated communal powers that had previously been accorded, under Imperial immunities, to city bishops. For the classic study of this process, see Hegel 1847: 137; see also Bordone 1998: 324; Bosisio 1933: 131; Chiappelli 1930: 17–18; Goetz 1944: 48; Occhipinti 2000: 19. 6 On the formation of the law in England as an independent and positivised body of social functions, see Musson and Ormrod 1998: 32. On the role of written record-keeping in legal organisation as a factor strengthening early statehood, see Clanchy 1979: 46, 50; Musson 2001: 120. For an influential study that identifies the beginnings of the processes described here at an earlier historical juncture, see Lupoi 2000: 271, 285. On similar processes in Italy, see Vallerani 1998: 416; Volpe 1976: 44–50.

Outline for a Sociology of Constitutions 33 political power and that they need to administer political power in a form that can be channelled and generalised from stable institutional centres across the increasingly large temporal and regional spaces that modern societies incorporate. In other words, the ability of a society to obtain and preserve temporal, geographical and sectoral cohesion and consistency through the generalised use of its power can be seen as a distinguishing feature and precondition of its modernity: this precondition is fulfilled by states. However, it is not accurate to suggest that modern societies are marked by the fact that all social power is articulated or concentrated in the institutional body of the state, that all areas of society converge around the directive power of the state or that the state’s exercise of political power requires a coercive colonisation of society as a whole. In fact, it appears demonstrable that the opposite is true. Modern states obtain a monopoly of political power in a society precisely because they do not obtain a monopoly of social power in a society. Modern states consolidate and explain themselves as states because they are able to abstract as their own proper resource that specific type of power (ie political power) which is required to perform those (relatively limited) functions in society that are determinately and uniquely political—that is, to transmit general decisions across society, to regulate matters that resonate uniformly across all societal boundaries and perhaps, à la limite, to resolve problems in one sphere of social exchange that threaten to spill over into other spheres of social exchange or into society as a whole. However, the ability of states to accomplish this and effectively distill and generally apply their political power across society also relies on their ability to exhibit the knowledge that political power is a socially distinct commodity and that the abstracted integrity of this commodity depends precisely on the fact that it is not indiscriminately formed or utilised in society. Consequently, the main condition for states to operate as reliable and generally effective political actors is that they differentiate themselves from other spheres of social exchange, that they allow these spheres of exchange to function in relative independence of politics and that they avoid internalising social exchanges that are not susceptible to political construction. The transition from pre-modern to modern politics, in short, might be seen as dependent on the emergence of states as institutions that disarticulate political power from social power. In so doing, they ensure that political power is applied in a functionally specific yet generally inclusive fashion, as well as preventing the saturation of society with power that is contested or applied in a sporadic, undifferentiated or structurally particular manner. In sum, the cause underlying the political structure of modern societies is not a process of political convergence, but rather a process of political abstraction and political generalisation. Central to this process is an abstracted consolidation of society’s political power in the institutional form of states and a distillation of political power into a resource that is

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generalised above local exchanges and that is authorised (usually through its attachment to law) to regulate a select number of societal phenomena in increasingly consistent, centrally articulated and frequently reproducible form. The basic cause of this process, then, is a wider process of social differentiation, which is not peculiar to politics and results in all spheres of society abstracting and consolidating themselves in relatively discrete functional autonomy. The formation of states is the distinctively political outcome of this overarching process of differentiation: states can be seen originally to have evolved as concerted and abstracted institutions that were specified to regulate the politics of a society as one progressively differentiated realm of social exchange amongst a number of other, equally differentiated realms of social exchange. On these grounds, it can be concluded that conventional positions in the historical sociology of states have allowed themselves to be misled by the immediate appearance that political power is the dominant resource in society and that the concentration of political power in states necessarily entails a consolidation of society’s power tout court. Contrary to this view, the abstraction of political power around states can equally be examined, within a wider analysis of social causality, as an early stage in the sectoral differentiation of society, in which political power was progressively disconnected from other social functions and from the terms of inclusion and compulsion (perhaps religious conformity, scientific orthodoxy or contractual obligation) that were particular to other social functions. Therefore, the formation of states does not reflect a process of enforced social convergence, but is instead a component in a longer process of social evolution, which eventually effected a disaggregation of the haphazardly interlocked functions of pre-modern society and which transformed this society into one based in discrete and specific functional spheres. Far from forcing society to converge around the state or around its political resources, the causal process underlying the evolution of states directly militated against the total structural convergence of society around its political apparatus, and it obviated the possibility that societies might condense around broad experiences of their politicality.

Historical Sociology and the Problem of Functional Interdependence It is not surprising that the sociological analysis of statehood has tended to indicate that modern society is determined by states and that it sees states either as absorbing other social functions in their apparatus or at least as assuming a high degree of integrity with exchanges relating to other functions—ie the economy, education or the law. Most particularly, it is easy to see why the view is widespread that states consolidated themselves

Outline for a Sociology of Constitutions 35 by exercising political control over the law (as jurisdictional supremacy) and the economy (via fiscal sovereignty [Finanzhoheit]), and that, in the course of their development, states finally cemented their structure as they acquired the capacity to enforce jurisdictional and fiscal power in relatively uniform legal codes and relatively stable patterns of extraction. To support this view, it can be observed that modern societies, with generalised resources of political power, have the defining features that their political actors can introduce laws as positive laws in the form of centrally enforced statutes,7 that they can assume (with some degree of surety) that all members of a society will heed these positive laws, and that they can maintain their jurisdictional and other activities by raising revenues and imposing taxes. As they obtain full statutory capacities, modern societies acquire the ability to generalise laws that can prevail over or render invalid conventional agreements and freedoms, local sources of law-finding or conflicts over jurisdictional rights, and transmit and apply laws across the expanding sectoral, temporal and regional divides which they integrate.8 The assumption of jurisdictional and arbitrational control by the state is thus a constitutive feature of modern statehood. Analogously, in the case of fiscal arrangements, it can be equally well demonstrated that the need to raise taxation is a primary force in the centralisation and administrative ordering of state power, and that states that cannot do so struggle to operate as states and to stabilise the differentiated political resources of modern society.9 Despite this, however, there is a less obvious dimension to the relation between politics and other social functions in emergent modern societies, and the increasingly dense relation between the state and the law and the state and the economy in such societies also had other, more differentiated foundations. In fact, the primary societal function of the intensifying relation between early states and the law and early states and the economy was that it did not allow the state to annex these functions 7 On the early significance of statutes in generalising political power in England, see Chrimes 1936: 252, 302; Cromartie 2006: 12; Keeton 1966: 76, 78, 204; McIlwain 1910: 42, 44, 356; Musson and Ormrod 1998: 2, 10, 17, 62, 116, 159; Palmer 1993: 24; Thompson 1948: 34–35, 43. Analogously, the earlier positivisation of the legal order of the Italian cities resulted from their ability to assume the ius statuendi by wresting distinct statutory powers from the Empire: see Besta 1930: 184; Pini 1981: 472; Thorne 1936: 454; Vergottini 1977: 497; Zorzi 1994: 89. 8 On the role of personal feuds in creating law as private justice before the centralisation of power, see Brunner 1965; Harding 2002: 33; on the early enforcement of uniform penal codes, in order to prevent feuding and self-help acting as sources of law, see Harding 2002: 69–108; Kaeuper 1988: 145; Klingelhöfer 1955: 221; Najemy 2006: 17–19; for examples of the literature on judicial conflict, see Holzhauer 1986: 276; Leitmayer 1953: 134. 9 It would be rather absurd to completely deny that modern states do not evolve by asserting fiscal control of national economies. For some recent influential literature on the ‘fiscal state’, see Bonney and Ormrod 1999: 2; Schulze 1995: 261–80.

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politically or to evolve in vertically structured integrity with other realms of social exchange. On the contrary, the law originally evolved in conjunction with politics because law made itself available as a medium that simplified and facilitated power’s application through society, formalising and preserving the abstracted political form that power required for its transmission. More precisely, it is arguable that the early interdependence between law and politics gave to power a form in which it could disseminate itself as a distilled and abstracted commodity, one in which it could immunise itself against locally and personally particularised conflicts, and which therefore enabled political actors (gradually concerted as states) to transmit their power with a minimum of social contest and a minimum of political emphasis across different social fissures and variations in a society. Moreover, as, in most national settings, it was articulated in the semi-codified, contextually indifferent and highly transferable principles arising from Roman law,10 that law also offered to power a corpus of easily reproducible references that allowed political actors in society to store a publicly iterable and highly flexible repository of concepts and procedures that could accompany, relatively subliminally, each application of power across society and across the structural divides shaping society’s form. In none of these respects, however, did law interlock with power as an instrument of political coercion, nor did the state’s integrity with the law substantiate the state’s role as a dominant element of social structure. Rather, law acted for power as a co-evolutionary medium, which articulated power’s coercive function at a socially manageable and highly specialised level of abstraction, and which ensured that the societal dissemination of power only rarely or exceptionally required dramatic contest or prohibition. A similar point can be made about the structural relation between the state and the economy in emerging modern societies. Although early states necessarily placed the economy under a regime of extraction, it was of formative significance for European states that they were first constituted in the context of widening or decorporating economies and that, in the course of their formation, states were forced to recognise that they were no longer able, as had been the case in feudal societies, to internalise the economy as an inner element of direct, personal or corporate regulation.11 As a result, nascent states were compelled to produce arrangements for ordering their relation to the economy as a quite distinct and external set of functions, and it is in this context that the origins of

10 See accounts of the context-indifferent constructs of Roman law and their early social function in Radding 1988: 29. See also the account of Roman law as a framework for conferring systematic order on existing custom in Ourliac 1982: 471–87. 11 On the role of economic differentiation, and the resultant processes of defeudalisation, as causes of state formation in different national settings, see Bosl 1972: 178; Calasso 1949: 156; Doren 1969: 29.

Outline for a Sociology of Constitutions 37 modern fiscal systems can be identified. Indeed, the construction of states as distinctively political institutions coincided with the increasing ability of political actors gradually to approach and reflect economic exchanges as a bloc of practices that were not connected to particular persons or private milieux, and to cement a uniform political (public) regime for regulating their interactions with economic (private) exchanges.12 Therefore, in emerging societies, power coalesced structurally with the law and with the economy. But this coalescence was not a sign of any growing universal dominance of states in society. With respect to the interaction between state and economy, the formal organisation of the state’s fiscal powers can be accounted for as the outcome of a functional differentiation between these realms of exchange. And with respect to the even more important interface between politics and the law, the law, and the delegatory processes attached to law-making, also became structurally integral to states because it facilitated processes of political abstraction and political generalisation in society, allowing power to formalise its differentiation institutionally as a distinct and highly articulated commodity (see Spangenberg 1912: 116). In offering a body of general and iterable references for power, law acted to stabilise power in generalisable and effectively usable political form, it served to curtail dramatically the local and personal contests over how to apply power, and it reduced the number of contents in a society that had to be held or communicated at a high degree of politicality. Thus, power’s early coalescence with law was a crucial feature of

12 The necessity of fiscal extraction and the techniques established by early states to facilitate revenue-raising, which are usually seen in historical sociology as indicators of the state’s emergence as a coercive centre of social power, were thus products not of the convergent concentration of society around the state, but of the increasing divergence between state and economy. The instruments of fiscal extraction developed by early states reflected the fact that regents of these states had to address an increasingly generalised economic system that, although uniformly relevant for the state, acquired a high degree of autonomy against the state. This economic system could no longer be regulated by personalised or informal techniques of financial management or pre-modern systems of economic control, and it necessitated the formation of public-consensual mechanisms in the state. Therefore, even in this key respect, the first formation and formalisation of state power cannot simply be accounted for as evidence of society’s increasing condensation around all-powerful political actors. For relevant analysis of early fiscal systems as resulting from the depersonalisation of economic regulation and as such necessitating public arrangements for supporting political power, see Harriss 1975: 3; Hennemann 1971: 306; Mitchell 1946: 351; Mitchell 1951: 234; Wilkinson 1948–58: 11. On conflicts over this process in Italy and the emergence of a public order as a result of stricter fiscal organisation, see Becker 1966: 17; Becker 1967: 71; Stahl 1965: 53; Vesseth 1990: 7. On Spain, see O’Callaghan 1975: 266; Piskorski 1977: 147. On the German territories, see Bosl 1974: 66. For analogies in later processes, see Braddick 2000: 135. We might argue that the theory of corporate—not personal—consent to taxation, which became dominant in some late-medieval societies, distils the process through which fiscal extraction transformed the state from a feudal nexus of relations into generalised institutional order (see Clarke 1936: 255–57). For alternative commentary on the postulated link between fiscal regulation and the formation of public power, see Kirshner 2006.

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power’s formation as abstracted, differentiated and iterably transmissible. Law supplied a formal normative set of categories for power, which allowed states to evolve and to act, in functional abstraction and differentiation, as states (see Rigaudière 1988: 203–36). In short, the structural integrity between law and states in early European societies was not the outgrowth of the societal predominance of political actors or of the convergence of society around the state: it was a precondition of the capacity of political actors to act in a manner proportioned to their specifically differentiated functional (ie political) objectives. In this regard, once again, it is arguable that most sociological analysis of states misinterprets a key element in the formation of modern states, and it far too easily concludes that, through their formation, states act to bring other social functions under political or directly politicised control. In fact, in the most crucially question of the interdependence of power and law, it is arguable that power and law became structurally integrated in the emergence of modern societies because states needed to use laws not to augment their political dominance, but effectively to reduce the volume of society’s politics and to simplify and alleviate the transmission of power (compare Easton 1965: 260–63). When states emerged as abstracted and differentiated social actors, they also encountered the need to depoliticise themselves: indeed, this self-depoliticisation might be seen as a precondition of their ability to fulfil their political objectives positively, efficiently and without excessive impediment by concerns external to their apparatus or their regulatory competence. Responding to incrementally pluralistic and differentiated social terrains, states experienced a requirement to constrain the number of social exchanges that they were forced to register as political. To accomplish this, they were obliged to generate and secure a positive sphere of operative freedom around their internal administrative organs, and so to separate a sphere of pure political administration from other social functions, so that the actors situated in this administrative body were not excessively encumbered by non-political commitments. Law gave crucial assistance to the state in this respect: it provided positively conventionalised forms in which political decisions could be made, approved and disseminated; it ensured that most social issues could be referred to and resolved by the law before they became burdensome for agents in the state administration; and, in doing this, it also created a positively formalised barrier around the administrative structure of emergent states, so that most administrative functions required little open politicisation. Law’s depoliticisation of society, and of the state itself, might thus also be viewed as a key structural precondition of social modernity. Indeed, it is only because law acts to depoliticise society that society can obtain and preserve that specific and abstracted form of politicality that, in its differentiation, is adequate to it.

Outline for a Sociology of Constitutions 39 Political Abstraction, Legal Form and Society’s Rights The first implication contained in the above analysis is that modern societies have a structural need for a formalisation of their political resources. In their condition of differentiation, modern societies are dependent upon an abstraction and an organised restriction of their politicality, and it is only through the formalisation of their politics that they learn to transmit and apply their power through society in appropriately pluralistic, iterable and generalised form. Consequently, modern societies also rely on a constitutive parasitism (often mistaken for structural integrity) between states and other social media, especially positive law. This, in turn, further implies that the politics of modern society necessarily requires and evolves an internal legal and normative apparatus, and it produces a relation to law for itself in order to abstract and positivise itself, to generalise its power across society, to minimise conflict over the enforcement of its power and, crucially, to deflate the potential volatility surrounding its application. In short, the modern political system has an internally formative relation to legal norms, and it evolves and consolidates itself as a modern political system because of this inner correlation with the body of positive law. This point is particularly significant for understanding the role of rights in modern politics. Indeed, the above analysis also implies that, as societies become increasingly differentiated and as they grow to require more reliable devices for their political abstraction, generalisation and relative depoliticisation, the legal/normative dimension of politics tends to elaborate itself in more prominently objectivised institutions. As a consequence, the face of modern political power tends to be closely associated with rights, and the internal legal-normative structure that power presupposes for its transmission is also habitually articulated in institutions taking the form of rights. In this respect, the reflection of rights as the legal form of power might be seen as the moment in the emergence of modern society that induced the most conclusive break with pre-modern social structure. As discussed above, the evolution of states was marked by a process through which state power was both progressively abstracted from other social contents and applied with greater generality and intensity across extensive inner-societal (temporal and geographical) distances. As states developed in this manner, it became impossible for states to presume and maintain sensitivity to particular legal arrangements, or to apply their power as adjusted to the embedded particularity or honoured freedoms of those subject to law. The abandonment of legal particularity and specific immunity or agreement as the basis of the state’s perceived legitimacy meant that states had to develop newly positivised constructs for securing social receptiveness for power and learn to transmit power in a highly generalised and reproducible form across the functional interfaces

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in society.13 More specifically, in order to apply their power, states were required to project positively, and from within themselves, a universal legal account of the recipients of this power (with no, or at least only very few, sector-, locality- or rank-specific attributes) and to internalise a stable description of their addressees in a form that they could employ to accompany, simplify and generalise their use of power. This crucial development in the establishment of modern states was made possible by the fact that power was able to internalise a generalised description of those subject to it as bearers of rights: in learning to refer to those subject to power as generalised rights-holders, the state was able to dispense with recognition of particular or embedded legal status as the grounds for its legitimacy, to pre-form the categories in which legal claims could be expressed and legal decisions enforced, to anticipate the likely outcomes of legal procedure and legal application of power, and thus to abstract power from and immunise power against sporadic, local or structurally situated legal demands. Most especially, however, law’s inclusion of a general account of its addressees as rights-holders signified that a crucially constitutive aspect of law (its point of social purchase) was dramatically simplified and removed from specific political contest, and law thus allowed power to disseminate itself across society with a minimum of emphasised politicality. In incorporating a generalised image of its addressee as endowed with general rights, power was able to explain to itself the preconditions of its dissemination. Moreover, it could always presuppose and include an articulated idea of its addressee as a consistent and uncontroversial terrain for its societal deployment. In this way, the construction of law’s addressees as universally recognised rights-holders was perhaps the decisive stage in the formation of states as political actors adequate to a modern pluralistic and functionally differentiated society. Indeed, the translation of the particular rights of premodernity into general subjective rights might even be seen as the process that enabled states, in the modern sense of the word, finally to assume the determinate features of statehood, and as such finally to act as states (see Monahan 1987: 131). The construction of law’s addressees as bearers of universal rights was consequently in each of these respects an epochal occurrence in the formation of the politics of modern society, bringing the wider evolutionary trajectory of modern politics towards a conclusion. The decisive innovation in the secondary stages of the processes of political abstraction and

13 On the function of immunities as offering exemption from generally applied law and, as such, disrupting the positive form of modern law, see Anton 1975: 1; Kroell 1910: 20. For a recent slight revision of this view, which nonetheless still examines immunities as elements of ‘private jurisdiction’, see Rosenwein 1999: 6, 15. On immunities in pre-modern England, see the still illuminating classic Stubbs 1891: 205. For the analysis of the contest over singular immunities as a process formative of the modern state, see Haverkamp 1971: 300–01.

Outline for a Sociology of Constitutions 41 generalisation underlying modern society was that states gradually learned to transform the private immunities, the transacted privileges and the group rights of pre-modern societies into subjective rights. They also began to envision their addressees as persons having claim to bear general freedoms and entitlements—or rights—under the law. This process of political construction finally culminated in the later decades of the period of European history known as the Enlightenment. The Enlightenment, with its central focus on rational persons as entitled holders of rights, might be viewed as a period in which the processes of political abstraction, differentiation and depoliticisation, which were formative of European society, began to approach a state of completion. The constitutional rights regimes, developed during and after the Enlightenment, acted to grant and stabilise subjective rights (ie rights of free movement, rights of free opinion, rights of free labour, rights of free religious belief, rights of free exchange of contract etc) as universal rights. This made it possible for states to apply laws to agents in society as bearers of highly predictable legal attributes and expectations. This, in turn, supported the abstraction of the state by providing generalisable and routinised channels in which its power could be communicated and reproduced, and it ensured that most exigencies attached to particular persons could be addressed, without undue political emphasis, under appropriate and convenient legal formulae, and often without touching the political resources of the state. Therefore, in each of these respects, the constitutional rights of the Enlightenment served to solidify the boundary exchanges between the political system and other social functions, they established principles to obstruct the convergence of exchanges in different spheres of society around politicisable contents and questions, and they helped to preserve the political system as a socially abstracted and autonomous actor within a differentiated and largely depoliticised society (see again Luhmann 1965: 135). The subjective rights attached to modern persons under law can, in any case, be seen to have originated, at least in part, in the social necessity for an abstracted politics, in the wider dynamic of society’s functional differentiation underlying this abstraction and in the reduction of society’s diffuse politicality, which both these processes presupposed. The ability of states to reflect themselves in a normatively articulated rights structure thus appears to be a (if not the) defining and culminating moment in the evolution of states as autonomous societal agents. One empirical consequence of this analysis is that rights can be seen as normative institutes that are internally produced by states in response to their own exigencies, and that the formation of modern states is difficult to understand without analysis of the evolutionary functions of rights. One theoretical consequence of this analysis is that the tendency in the historical sociology of states to depreciate the rights-based or normative dimension of state power fails to identify the submerged socio-evolutionary forces underlying the formation of states, and it also fails to account for the essential

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correlation between the social functions of states and the institutionalisation of norms and rights. This tendency results from a lack of insight into the broader sociological constellations in which states are formed. A historical sociology that approaches states in an encompassing sociological perspective, in consequence, might observe the formation of states, rights and social norms as intrinsically conjoined or even co-original elements in the process of political abstraction and social differentiation to which states, and modern societies more generally, owe their origins. Indeed, if we analyse states as institutionalised accretions of political power that emerge through a process in which society designates some themes as political and abstracts an autonomous and differentiated apparatus to address these themes, it can be seen, first, that states presuppose a normatively constructed and articulated legal apparatus, tending to assume stable features across intra- and inter-societal boundaries, and, second, that states require a catalogue of rights to stabilise their relation with other sectors of society and to serve the uniform, generalised and uncontroversial dissemination of their power throughout society. In this way, a sociology of states that does not place legal-normative analysis in the foreground of its inquiry does not adequately perform its role as sociology. States, for their own internal functional reasons, necessitate rights, and, in modern differentiated societies, states cannot act as states without a normative apparatus containing an enunciated system of rights. Therefore, the sociology of states must also incorporate a sociology of rights.

FOR AN HISTORICAL SOCIOLOGY OF CONSTITUTIONS

Constitutional History as History of Political Abstraction These analyses of the social processes that determine the formation of rights also provide the underpinning for a sociological analysis of constitutions. Indeed, from the perspective outlined here, constitutions enshrining rights can also be observed as documents that objectively manifest a society’s response to its need for political abstraction, sectoral differentiation and general depoliticisation, and that also play a culminating role in the organisation of a modern society’s power. It is not possible here to discuss in great detail individual constitutions or to extensively examine different periods of constitutional formation in the light of this analysis. Suffice it to say that in each wave of modern constitution writing, there are common factors shaping the formation of constitutions and the sanctioning of constitutional rights, and these factors directly reflect the societal processes described above. In the first instance, therefore, it is suggested here that constitutions (whatever their express and volitional design) normally have the function of formulating objectivised rights regimes in order to support the abstraction

Outline for a Sociology of Constitutions 43 of state power as an autonomous social commodity and, as much as possible under different historical conditions, to ensure conditions facilitating the generalisation of power across society. In serving this purpose, it is also suggested here that constitutions usually provide a sensibilised political mechanism for a society that uses rights to identify and codify the fissures between otherwise interpenetrated social spheres, and that, consequently, underwrites the wider differentiation of all distinct spheres of exchange within society. Numerous cases from different stages in constitutional history can be examined to support these claims. For example, during the very first period of modern constitutional foundation, exemplified in seventeenth-century England, states developed constitutions and constitutional rights as devices that enabled them to outline and stabilise the parameters of the political functions that society accorded them in their quality as states. At this juncture, states used constitutions and constitutional rights, usually focused on sanctions for proprietary freedoms, on concessions of procedural rights for legal subjects and on delegatory rights for members of a designated political class, in order to formalise agreements between established political actors and rising social groups in the economy. These constitutions were designed, as is widely claimed, as documents that instituted a system of countervailing power in the state and that produced counterweights to monarchical authority in order to reflect a change in class alignment throughout society and give legal protection to new class interests.14 However, the rights inscribed in early modern European constitutions also had less explicit and more deeplying functions, which responded to more fundamental transformations in social structure. For instance, in establishing principles of proprietary rights and delegation for members of a small political class, these early constitutions acted to give a predictable shape to the state’s boundaries with other social spheres, especially the economy, formalising guarantees over the state’s monetary resources so that it could focus its activities on a specified set of political objectives without engaging in constant and uncertain conflict with organised groups of economically motivated agitants.15 Moreover, in giving stable legal recognition (through rights) to select private interests, these constitutions made it possible for states, in an increasingly pluralised and functionally specialised societal landscape, to demarcate realms of private

14 As one example of this view, summarising a vast body of literature, see Gordon 1999: 234; for an overview of the debates regarding the role of class in forming the English constitution, see Stone 1972: 26–46. 15 See Carruthers 1996: 119; and also North and Weingast 1989: 805, 817, 819. North and Weingast argue that the emergent constitution of England enabled the state privileged access to reliable sources of finance and thus acted to stabilise its political base. Building on the work of North and Weingast, David Stasavage suggests that the constitutional sanctioning of political parties in early modern England also acted exponentially to solidify the state in its relation to the economy; see Stasavage 2003: especially 173.

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social practice and dispute in which they had only limited need to intervene. This, in turn, allowed states effectively (and publicly) to operate as constitutive political actors, with the ability to ensure that local or private motives could not substantially determine their legal and political functions, and so to supply generally applicable justifications and explanations for the use of their power (see Ashton 1960: 45; Chandaman 1975: 261; Cust 1987: 319; Dietz 1964: 127; Sacks 1994: 55–56). These early constitutions thus created legal and structural preconditions for the first emergence of states as integrally political (categorically de-privatised) institutional bodies: they facilitated and reflected the necessary abstraction of the state as a focus of society’s political power; and they consolidated both the differentiation of power from other social contents and the wider differentiation of society as a whole. In analogy, during the period of revolutionary constitution writing between the 1770s and the 1790s, states developed constitutions, now set in more expansive written form and including printed catalogues of constitutional rights, as instruments for formalising their development as centres of abstracted political agency. These documents allowed states to establish clear and conclusive principles to organise their exchanges with bearers of economic interests. In particular, they placed public spending and taxation under general rights of public approval, to be enforced in a separate legislature. In so doing, they largely eliminated venal privilege as a relevant factor for tax revenue, they decisively rejected principles of privilege and status as criteria of legal recognition, and they finally instituted rights of formal equality before the law, to be guaranteed by an independent judiciary.16 One practical outcome of this was that post-revolutionary states gradually obtained a regular system of public finance, which simplified and conferred relative uniformity on their interactions with the economy and allowed them to administer and obtain adequate credibility in fiscal administration.17 Another general consequence of this was that states were able to legislate and pursue judicial processes without excessive regard for extra-political factors or for particular persons and interests. Indeed, in detaching legal status from privilege and formalising the universal rights of citizens, the revolutionary constitutions reinforced the characteristics of modern statehood expressed in earlier constitutions, and they gave conclusive legal expression to the state as a fully political actor, substantially 16 The relation between the growth of ‘public power’ and the sanctioning of ‘private rights of individuals’ is observed in some historical literature on the American constitution; see Wood 1992: 324. On the process through which the French state obtained legislative independence through granting rights in the years after 1789, see Bosher 1970: 232, 295; Garaud 1953: 131–33. 17 On this tortuous process in France, see White 1995; on the often eccentric connection between venally acquired private status and revenue supply in pre-1789 France, see Sargent and Velde 1995: 485.

Outline for a Sociology of Constitutions 45 distinct from private or diffuse social motives. In general, therefore, these constitutions made it possible for states to organise their societal boundaries in a fashion that allowed them to maximise their distinctive autonomy and positive authority as states (see Esmein 1911: 61), to generalise their laws across particular distinctions of sector and status, and to reflect and preserve their abstracted position in a more generally differentiated societal environment. Much later, the period of constitutional foundation after 1945 can be viewed as an era in which constitutions and constitutional rights consolidated similar processes of governmental abstraction and societal differentiation. The constitutions that were founded at this time were marked by a strong reaction against the crises of statehood caused by the highly interpenetrative, quasi-corporatist constitutional programmes of the 1920s and against the processes of societal colonisation conducted by the authoritarian regimes of the 1930s. As a consequence, these constitutions acted as mechanisms to stabilise realms of private and personal exchange as external to the state, to specify the functions of the state within determinately political constraints and again to constitute and preserve the state as a limited societal actor. In general, these constitutions allocated rights of autonomy and human dignity to private persons under law, they used catalogues of rights in order to mark social agents as inviolable legal subjects and protect such agents from coercive absorption into the functions of state, and they intentionally applied rights as legal titles that traced the sustainable limits of state action and marked the disjuncture between the political and the nonpolitical functions in society.18 Most specifically, these constitutions had the salient distinction that they tended to endorse strong conventions of judicial review and sought to ensure that the political force of the state remained constrained by appointed guardians of human rights, who were entitled by their custodianship of rights to countermand political power through the courts of law (Guarnieri and Pederzoli 2002: 74; Stone Sweet 2000: 40). The recognition, first, of general and, second, of international human rights that were implied under the principle of judicial review in these constitutions is habitually viewed as the inception of an international ethic of human rights. However, in these principles it is also possible, once more, to identify a consummation of the earlier functions of constitutions; that is, these rights again instituted a mechanism in the political apparatus for 18 In Germany, notably, the regional constitutions (Länderverfassungen), which were founded prior to 1949 and contained expansive provisions for economic regulation were rejected by the occupying forces; see Bernecker 1979: 277; Schmidt 1970: 157. For background information on this, see Wells 2002: 146–48. Finally, only a few elements of the material constitutional vision of the Weimar Republic survived in the Basic Law of 1949; see Doemming et al 1951: 144, 154, 157. On the imposition of a rights regime in the Japanese constitution of 1947, see Hellegers 2001: 189, 500, 503; Shoichi 1998: 98–110; and (for a slightly tempered account) Beer and Maki 2002: 83.

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stabilising its social boundaries, for removing social themes from the centre of state control and, as far as possible, for focusing the state on a limited and manageable range of political activities.19 The simplification and abstraction of that aspect of society’s structure that is determined as relevant for political agency, the generalisation of society’s power and the resultant preservation of society’s overall differentiation might thus be viewed as primary objectives of constitutions in each of these different and highly divergent periods of modern constitution writing. Indeed, in each of these historical epochs, constitutions and constitutional rights can be observed as structurally required elements of the politics of modern societies. They put in place a rights structure and a body of legal norms to delineate sustainable forms for the institutions around which a society’s politics assumes a distilled form—that is, states. In each of these instances, constitutions, and the rights that they contained, acted to confer a limited and differentiated organisation on states, and this organisation allowed states to utilise their power in a manner adequate to and sustainable in the pluralistic reality of a modern social order. In each of these instances, therefore, constitutions and constitutional rights can be seen as the externalised preconditions of society’s emergent politics.

Constitutional History as a History of Societal Depoliticisation In addition to these primary sociological functions of constitutions, it can also be argued that modern constitutions and the rights that they enshrine have acted, at different junctures in constitutional history, to satisfy a further requirement for modern societies. In fulfilling functions of political abstraction, generalisation and societal differentiation, constitutions have fulfilled the far-reaching function of exercising a depoliticising influence in particular societies, which, closely conjoined to the societal need for abstraction and differentiation, is also a precondition for the existence of modern society. Once again, evidence of this depoliticising role of constitutions can be drawn from different key periods of constitutional formation. For example, the primary function of the revolutionary constitutions of the late eighteenth century was that they imputed general rights of personal freedom to legal subjects regardless of their political location, and they consequently classified questions of private, personal and economic autonomy as normally external to the political realm. In this respect, these constitutions ensured that questions specific to persons as bearers of private interests did not require endless internalisation within the political system and did not

19 For a recent critique of judicial review, which appears to me to be sociologically underreflected, see Bellamy 2007.

Outline for a Sociology of Constitutions 47 impact formatively on the state’s legislative autonomy, and they selectively constructed a relatively apolitical sphere of transmission around the state (on France, see Fitzsimmons 1994: 12; Kwass 2000: 170; Jones 1995: 156; Marion 1914: 445; on the US, see Ely Jr 1992: 27; Greene 1988: 81–84; Kruman 1997: 87). Additionally, although celebrated as models of proto-democratic governance, it was, in fact, generally fundamental to the revolutionary constitutions of the later Enlightenment that they contained a number of instruments which helped to limit the political system against other social contents, and which precisely filtered those facts and themes in society that could meaningfully become formative of politics. Embedded in the grammar of these constitutions, most particularly, was the fact that they enunciated legal titles which generated legitimacy for states by claiming to include factual persons, as citizens or as constituents, in the political system, but which actually enabled the state to use and consume its power as a narrowly abstracted, positively justified and (to a large extent) societally indifferent commodity. In this respect, these constitutions offered a twofold and dialectical service of depoliticisation to emergent modern societies. First, these constitutions symbolically underlined the connection between the state and the popular will of society (often figured as the nation or even as the sovereign nation). In this respect, they enabled the state to refer to itself as incorporating an abstracted and public source for its power, and to legitimise itself openly, positively and generally throughout society. Second, these constitutions instituted a constitutional system which crystallised the source of power neither in the nation nor in its particular constituents, but in a formal written document. In this way, they instituted an apolitical dimension at the core of the state, allowing the state to use its legitimacy and its power while holding the source of its derivation at a low level of intensity. The constitutions established at this time purported to represent the nation and the interests of its constituents and citizens, yet, in fact, they arranged the concrete application of power around an institutional order—entailing the allocation of subjective rights and the institution of countervailing powers within the state—that specifically eliminated the manifest presence of the people or the nation from government and that allowed its constituents to appear politically relevant only insofar as they were pre-categorised as bearers of subjective rights identified in the constitution. This constitutional system thus enabled the state to explain its power through reference to a formal (and apolitical) text, to offset the concentrated politicisation of any given site of power within the state, and to stabilise itself as specifically distinct both from the factual persons bearing power and from the particular or emergent demands of members of its constituent body.20 Indeed, the fact 20 On this phenomenon in France, see Sieyès 1839: 137. See also Thompson 1952: 48–51. Note Robespierre’s advocacy of a compromise between government by the general will and government by delegated representatives, organised in a constitution designed to ensure that

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that they constructed their constituents as a mass of subjective rights-holders, reflected in a constitution, meant that the constitutional orders of the revolutionary era were able politically to include and exclude their citizens in the same act, to legitimise themselves as political through this act and to effectively (or paradoxically) limit their politicality by claiming inclusivity as the grounds of their legitimacy. The revolutionary constitutions in the US and France thus performed the primary and structurally indispensable feat for emergent modern societies, allowing the power of the political system to reflect and legitimise itself as entirely political (that is, as distinct from private, colonial or dynastic power) and to generalise and positivise itself through this self-reflection. Yet, by situating the legitimacy of power in the constitution and in catalogues of constitutional rights, they also removed the source of power (the people) from ongoing politicisation, or even from manifest political proximity, and they constructed an institutional edifice that strictly limited the volume of claims or desires in society that could become constitutively political or politicised. In short, these constitutions permitted the abstraction of political power as specifically political, allowing the state to explain the sources of its political power positively, and using this explanation to structure and formalise its legislative activities. At the same time, they also enabled the state to maintain and exercise its political power in diminished politicality, and the rights contained in these constitutions ensured that those people who founded its politicality (or the reference for its politicality) could not be easily reintegrated into the political cycle. Similarly, the constitutions that were inaugurated in the Imperial era, after 1870, can also be viewed as objective institutions that contributed to a general depoliticisation of society and that simplified society’s politics on that basis. It was fundamental to these constitutions that they used the concession of limited procedural and proprietary rights in order to steer an elite-consensual or minimally political path towards the establishment of a modern polity.21 Indeed, these constitutions imposed principles of procedural compliance on the state administration and enforced formal legislative deliberations are open to public scrutiny—Robespierre 1956–58: 141–56. For an excellent account of debates around this, see Cowans 2001. On the US, see Wills 1982: 213; Wood 1969: 266. On the early function of the US-American constitution as promoting the ‘establishment and acceptance’ of limits on social politicisation, see Sharp 1993: 13. On the analogous role of the constitution in France, see Douglass 1955: 69; Duclos 1932: 11. Against this background, note the early use of the term ‘anti-Constitutionalists’ to designate Republicans in America: Kruman 1997: 58. 21 As the key example of these ideas in Imperial Germany, see the positivist theory of the Rechtsstaat in Laband 1901. On the limited constitutionalism of Imperial Germany, see Kaack 1971: 52; Mommsen 1990: 17, 64. On limited constitutionalism in Meiji Japan, see also Ando 2000: 138; Halliday 1975; Ike 1969: 53. For further literature on relations between German and Japanese constitutionalism in the late nineteenth century, see Beckmann 1957: 10; Tsuzuki 2000: 108.

Outline for a Sociology of Constitutions 49 rights through society more generally in order to obviate potentials for societal volatility or for a radicalisation of political culture.22 Moreover, like earlier constitutions, the main Imperial constitutions were products of acute fiscal crises. They were intentionally designed to cement and rigidify the positive authority of the state in its determinately political functions (see Grimm 1988: 240; Huber 1969: 335; Banno 1992: 143; Totman 1980: 197– 201; Yamamura 1986: 382–99) and to preserve a sphere of depoliticised administrative freedom around the state that allowed the state bureaucracy to fulfil its statutory functions without encroachment through erratically contested social contents (Silberman 1993: 191–92). Under different historical conditions, the constitutions founded during the transitional decade of the 1970s can also be aligned to a model close to that provided by the main nineteenth-century constitutions. These constitutions were also documents that reacted to problems induced by acute structural density around the state, that sought to limit the interdependence of the state and other function systems, to re-establish sustainable and restricted forms of statehood, and that used constitutional law and formal rights to effect techniques of societal depoliticisation. The constitutions and constitutional rights introduced at this time, often devised and enforced by political elites wary of pursuing one exclusionary set of political objectives, were used to re-privatise societies that had grown accustomed to a high degree of functional interpenetration, especially between the state, the economy and other areas of ‘civil society’. They were further used to divide institutions within the state, especially the executive and the judiciary, that had become integrally fused and whose structural unity had become problematically resonant for society as a whole (the fusion of the state, the military and the judiciary might be seen as a particular hallmark of the regimes undergoing transition in the 1970s; see Ruiz 2005: 53). These constitutions thus created preconditions for government through a relatively limited and securely autonomous political system, and they used catalogues of rights to protect society and agents within society from socio-political re-convergence around the state. In this, they also served to manufacture a realm of positive freedom around the state that liberated it from excessive 22 On Russia in this regard, see Medushevsky 2006: 113. On the minimal parliamentary system established in Spain in 1876, see Agesta 1955: 344; Esdaile 2000: 144–64; Tura and Aja 1977: 70–78. On the minimalism of the rights regime established in the constitution of Meiji Japan, see Bowen 1980: 252–54. This might also be taken as the reason for the ultimate coalescence of republicanism and post-Comtean positivism in republican France after 1870. See for example Émil Littré’s insistence that a republican polity should be seen as nothing more than a social apparatus that serves to ‘maintain the material order and permit spiritual freedom’: Littré 1879: 444. For more general comments on the ultimate, rather undramatic fate of French republicanism after 1875, see also Elwitt 1975: 175; Lehning 2001: 9; Nicolet 1982: 156, 164. See the critique of the central tenets of Republicanism in the brilliant but half-forgotten positivist-sociological reconstruction constitutional law of Léon Duguit, such as in Duguit 1921: 495.

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extra-political influence, and selectively filtered the number of contents in society that impacted the political order or demanded political directives (Bonime-Blanc 1987: 158; Coverdale 1979: 130). The transitional rights regimes of this time had the primary outcome that they removed from the political system the unsustainable task of setting and supervising norms for all society, and they created points of normative reference and power outside the executive order of the state to which society’s structural needs could be referred (see Peterson 1996: 189–214.23 Moreover, in granting political rights of expression, participation and association in societies in which political exchanges had previously been articulated within state-integrated organisations, these constitutions alleviated the state, enabling it to escape the over-concentration and the localised over-intensification of the political resources of society, and to create plural fora of political communication in society that were not monistically focused on its own directional power.24 Therefore, even in this near-contemporary context, constitutions and constitutional rights assumed the function that, in reducing the concentration of a society’s politics, they established conditions in which states could operate as fully and securely political actors, and facilitated the establishment of a measured, reliable and generally legitimisable politicality in society. In sum, throughout recent political history, the primary function of constitutions and constitutional rights has been to serve processes of political abstraction and generalisation, and to uphold wider conditions of societal differentiation. These functions are also inextricably linked to the depoliticising status of constitutions, and in each main period of constitutional formation, constitutions, constitutional rights and the objective norms laid down by constitutions have acted specifically to formalise and place checks on the general politicality of a society and to control the amount of social power politicised within the state. The normative apparatus of constitutions and constitutional rights therefore regularises the legal forms in which a society uses its power, it pre-constructs the themes that are exposed to dramatic politicization, it circumscribes certain personal liberties as apolitical and it

23 As a prototype for aspects of Franco’s constitution, Carl Schmitt notoriously argued that legitimate constitutions set total principles of political form [Schmitt 1928: 121]; this seems to me entirely to misunderstand the function of constitutions, that is, to prevent a society’s convergence around total self-descriptions. 24 For example Articles 10, 12 and 16 of Franco’s quasi-constitutional document of 1945 (the Fuero de los Españoles) placed prohibitive restrictions on political activity not endorsed by the state and effectively burdened the state with responsibility for setting all parameters for social politicisation. For commentary on the commitment to pluralism during the transition, see Cotarelo 1992: 169–70; Diaz 1989: 223. Constitutional transitions are usually seen to generate or even presuppose a high degree of social politicisation by permitting and drawing on new modes of affiliation and expression; see Arato 2000. However, it is equally arguable that the societal pluralism stimulated in periods of rapid constitutional change reflects a situation in which the state is encumbered by an excess of regulatory responsibilities and is forced to displace some of its political exchanges. The collapse of Franquismo is a strong example of this.

Outline for a Sociology of Constitutions 51 protects the operative autonomy of the political administration. Additionally, this normative apparatus ensures that questions of a particularly sensitive nature (especially those relating to boundary exchanges between the state and the economy or the state and the judiciary) are—as far as possible—held at a level of differentiated latency so that they do not produce controversies that force society into totalising or destabilising acts of convergence or coercion. Without the depoliticising function of constitutional norms and constitutional rights, it is difficult to envision how societies could sustain their characteristics of political abstraction, generalisation and differentiation on which they are contingent. Therefore, it is specific to modern societies not that they incline towards structural convergence around their politics, but that they minimise their political concentration and totalisation; rights, constitutions and the norms expressed by these are the institutions that specifically countervail and obstruct the tendencies in modern society towards unmanageable political convergence. In short, the structural fabric of modern societies relies on constitutions and the rights and legal norms that they enshrine, and the analysis of constitutions, as repositories of society’s norms, is a crucial component in any wider functional interpretation of modern society.

CONCLUSION

Using these historical-theoretical observations, this chapter has suggested a framework for analysing rights, norms and constitutional provisions within a broad evolutionary reconstruction of modern society and modern politics. It concludes that rights and normatively constructed constitutions emerge as dominant elements in the politics of modern society because they fulfil a threefold requirement for modern society: they serve the requirements for political abstraction and generalisation; for inter-sectoral differentiation; and for general social depoliticisation, which, in conjunction with each other, are formative preconditions for a modern society and its politics. From this general perspective, there are grounds—both factual and methodological—for insisting that the sociology of constitutions and constitutional rights should be established as a distinct line of sociological inquiry. Indeed, the examination of the origins of constitutionality in the evolutionary processes of modern society is a necessary component of any analysis that seeks fully to account for the political functions of a modern society. Additionally, a more reflexively sociological approach to constitutions and constitutional rights is also able to correct certain aporia in the more established sociology of states, and it allows for a more accurate and more integrated account of the formation and the function of modern statehood than is usually provided in sociological research. It was argued in the first section of this chapter that the sociology of states often suffers from

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a traditional weakness in its approach to legal and political norms, as it habitually under-constructs the general normative dimension of statehood and rarely accounts for the propensity of states to arrange their power in the form of constitutions and constitutional rights. However, the above outline of the socio-historical function of constitutions indicates that the normative apparatus usually attached to states is rooted in the evolutionary structure of society itself and that the construction of modern states is inextricably linked to the production of a corpus of constitutional norms. There are clear sociological reasons as to why modern societies tend to evolve political systems that take a reasonably consistent and predictable legal-normative form. The establishment of state constitutions and constitutional rights might even be viewed as a consummation of the processes that originally stimulated the emergence of statehood—that is, of abstracted or differentiated politicality—in modern society. Consequently, this chapter has claimed that states need constitutions and constitutional rights in order effectively to become states or, specifically, to become modern states, and that states that do not assume quite distinctive legal and normative features are likely to malfunction as states. For these reasons, it is at least arguable that the tendency in the historical sociology of states to construct states as coercive, societally convergent, hegemonic or normatively indifferent actors derives from a reductive model of societal causality, from a falsely binary opposition between state and society and from an undifferentiated and sociologically under-reflected construction of society’s politics. However, if the sociology of states is combined with a sociology of rights and a sociology of the constitution, the sociological analysis of states might provide a more nuanced account of the original functions of statehood, it might attach greater weight to the probable normative order of the state and it might pay more attention to the elaboration of norms as a necessary sociological dimension of political evolution. A sociology of the constitution and of constitutional rights is thus of key importance both for understanding the evolutionary form of modern society and modern politics and for correcting the methodological weaknesses in other, more established areas of sociological inquiry. REFERENCES Agesta, LS (1955) Historia del consticionalismo español. La revolucion liberal (Madrid, Instituto de Estudios Políticos). Ando, J (2000) Die Entstehung der Meiji-Verfassung. Zur Rolle des deutschen Konstitutionalismus im modernen japanischen Staatswesen (Munich, Iudicium). Anton, HH (1975) Studien zu den Klosterprivilegien der Päbste im frühen Mittelalter. Unter besonderer Berücksichtigung der Privilegiering von St. Maurice D’Agaune (Berlin, De Gruyter).

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3 Differentiation and Inclusion: A Neglected Sociological Approach to Fundamental Rights GERT VERSCHRAEGEN*

A

LTHOUGH RECENT YEARS have seen an emergent sociological research agenda addressing human rights issues, most pundits agree that by and large, sociologists have not developed a general theory of fundamental rights. The absence of a sociological theory of global human rights is often attributed to obstacles originating in classical social science, such as the inherently value-laden, natural-legal (Max Weber), ideological (Karl Marx) and philosophically speculative (Emile Durkheim) character of human rights (cf An-Na’im 2001; Somers and Roberts 2008; Turner 1993). In contradistinction to this standard view, I aim to show how classical sociological theory contains important resources to elucidate the emergence of human rights and to reflect on the societal functions and causes of fundamental rights norms. My main thesis is that the (classical) sociological theory of differentiation provides a framework for fulfilling the task of analysing the societal role of human rights in modernity. By looking at some commonalities and differences among different versions of the theory of societal differentiation (Durkheim, Niklas Luhmann, Talcott Parsons and Gunther Teubner), it aims to show how the sociological tradition has, from an early stage onwards, conceptualised fundamental rights in a distinct sociological manner. While social differentiation is not sociology’s only paradigm, it is arguably one of the most entrenched and enduring frameworks for conceptualising the specific features of modern society. Ever since the birth of sociology as a separate discipline, the idea of social differentiation has been applied to elucidate key questions of social change and modernisation (eg Alexander and Colomy 1990; Luhmann 1985). In the early functionalist tradition,

* I wish to thank Mikael Rask Madsen and Gunther Teubner for their useful comments on this chapter.

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represented by Spencer and Durkheim, the idea of differentiation of society (or social division of labour) is central for their understanding of modernity in both empirical and normative terms. Also at the turn of the twentieth century, the thesis of the differentiation of modern societies is present in Simmel’s work and it certainly underpins Weber’s understanding of the processes of rationalisation. In post-war sociology, Parsons and Luhmann represent key figures in using differentiation theory for building a general theory of modern society. Although different authors have followed their own path in terms of the internal conceptual development of the theory, its basic premises have been remarkably stable. In all different versions, the conceptualisation of the process of structural or functional differentiation is seen as the master trend of social change. This master process implies the replacement of multifunctional institutions and roles by more specialised units as one of the most theoretically and empirically significant aspects of modern social change. Throughout the course of societal evolution, institutions or even whole spheres of society gradually become more specialised. The idea that modern society is functionally differentiated into several sub-systems, such as politics, religion, economy and so forth, is at the core of the sociological diagnosis of the constitution and evolution of modern societies. By pushing differentiation theory to provide some answers about the emergence of fundamental and human rights, I aim to sketch the contours of a sociological approach to human rights, which can be contrasted with the standard liberal view on rights. Showing how fundamental rights guarantee the differentiation of society in several autonomous social spheres is one potent way to reveal the limits of purely legal and individualistic understandings of human rights and to open up the inherent ambiguity of human rights. This approach thus constitutes a sociological alternative to other, better-known critiques of legal humanism and the Kantian idea of the autonomous individual (for an overview, see Douzinas 2000). Notwithstanding some exceptions (eg Teubner 2012; Thornhill 2008, 2010; Verschraegen 2002, 2006), current literature on human rights has not yet fully explored this line of thinking. This chapter has three main claims. First, it shows how human rights can be conceived as a response to the process of structural or functional differentiation and concomitant individualisation. In contrast with the classical liberal view, assuming that fundamental rights initially emerged in a struggle against the politics of absolutism, it argues that a more general and gradual process of functional differentiation accounts for the institutionalisation of fundamental rights. Second, while classical liberal legal theory predominantly sees fundamental rights as ‘walls against the state’, as shields established to protect vulnerable individuals, differentiation theory also stresses the ‘inclusive function’ of fundamental rights. Human rights not only limit or exclude the government’s interference with personal

Differentiation and Inclusion 63 freedom of action and association, but also guarantee the inclusion of the overall population in the different social spheres of modern society. In other words, the modern state is not only a potential enemy of individual rights, but actually created and sustained fundamental rights to guarantee and regulate the participation of its ‘citizens’ within the main organisations and systems of modern society. Third, the theory of societal differentiation shows how the gradual globalisation of the idea of fundamental rights, evolving into universal human rights also fits into the process of functional differentiation.

DURKHEIM: FUNDAMENTAL RIGHTS, INDIVIDUALISM AND THE STATE

Durkheim’s work can be considered the first and still one of the most powerful applications of differentiation theory within sociology. It elucidates some central consequences of the idea of social differentiation for fundamental rights, but also embodies some typical features and problems of late nineteenth-century social theory, such as an exaggerated role for the state. Nevertheless, Durkheim’s discussion of the process of social differentiation provides a good starting point for articulating why fundamental rights emerged in modern society and how they can be related to broader social structures. From his early work De la division du travail social Durkheim (1930) conceives the development from traditional to modern forms of society as characterised by an increasing degree of specialisation in the division of labour, which can be observed in all sectors of modern society—in government, law, science and the arts. While undifferentiated, ‘mechanical societies’ gradually evolve into ‘organic societies’ made up of functionally different spheres, Durkheim argues that the individual acquires a special status in this process. Because of the growth of the differentiated division of labour, there is a decline in the pervasiveness of the conscience collective which leaves room for an increasing multitude of individual differences. Greater differentiation in the division of labour not only demands a greater self-autonomy but also entails a shift in society’s integrative potential to shape some form of community. When specialisation of occupational function according to talent and capacity is the principal mode in which the (concrete) individual can realise himself or herself, there is a need for generalising or upgrading the former collective morality, hence the increasing differentiation in the division of labour progresses hand in hand with the emergence of what Durkheim frequently refers to as the ‘cult of the individual’, a form of secular humanism based on respect for, and indeed a ‘cult’ of, individual human dignity. Because individuals distinguish themselves from one another by occupation, education, skills and a host of other

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individuating attributes, what unites them can only be symbolised by the empty signifier ‘man’ itself, by a generic belief in the humanity of each person. The individual who is the subject of this moral individualism is thus not a concrete, particular individual, but ‘man’ in general. According to Durkheim, it is this ‘religion’ of the individual, how abstract it may be, that forms the main ligature of modern society. Not surprisingly, Durkheim sees the ideals of this moral individualism best embodied and materialised in the fundamental individual rights. As Poggi notes: Durkheim had a high opinion of the historical significance of such rights. Their proclamation in the American and French Revolutions signalled for him a major, irreversible advance towards the affirmation of the dignity of the human person as a central human value. (Poggi 2000: 118)

Indeed, Durkheim was one of the first sociologists to devote attention to individual rights and to construe them in a sociological way. In contrast with the established natural law thinking or liberal theory, he no longer saw rights ‘as vested in individuals previous to and irrespective of their involvement in society, and grounded them either—as with Kant—in natural law or—as with Spencer—in an understanding of the socio-historical process as resulting exclusively from the individuals’ pursuit of their interest’ (Poggi 2000: 118). Durkheim (1950) wrote that what lies at the basis of individual rights ‘is not the notion of the individual as he/she is, but way in which society treats and conceives, the esteem in which it holds the individual’. In advancing this argument, Durkheim points to the cultural and societal nature of fundamental rights. Underpinning notions of equal liberty and innate individual rights are structural conditions enabling individual autonomy and a set of cultural assumptions about individual liberty and dignity. To have human rights, people have to be able to make their own autonomous decisions, unhindered by ‘communal’ bonds and obligations, and at the same time they have to be considered and treated as separate individuals, possessing their own bodies and feelings. The latter condition is well captured by Durkheim’s idea of the ‘cult of the individual’. In his essay ‘L’individualisme et les intellectuels’, Durkheim famously argued that ‘the human person … is considered to be holy in the ritual meaning of the word’. Indeed, historically the eighteenth and nineteenth centuries saw an elevation of the cultural ideal of ‘the human person’, which was increasingly considered as a self-enclosed individual whose boundaries had to be respected in social interaction. Cultural historians and sociologists have elaborately documented how this evolution was both visible in changing attitudes towards ‘bodily integrity’, ie the increasing sense of the separation and sacredness of human bodies, as well as in the increasing popularity of ‘empathy’, the recognition that others feel and think as we do and that our inner feelings are alike in some fundamental fashion (Elliot 2007; Hunt 2007: 29).

Differentiation and Inclusion 65 Yet, cultural ideals of individual autonomy are not sufficient by themselves. Society also has to install structural conditions which enable individual autonomy. In the Durkheimian framework, this condition is realised and materialised by the state. In his sociology of law (especially in his lectures, first published in 1950 under the title Leçons de Sociologie), Durkheim argued forcefully that the modern state, far from being an enemy of individual rights, actually created and sustained such rights. Referring to ‘natural rights’, Durkheim declares that ‘the State creates these rights, gives them an institutional form, and makes them into realities’ (Durkheim 1950: 96). He insists again and again that there are no inherent individual rights; all individual rights are defined and enforced by the government. In a stateless condition, rights can be imagined, but not experienced. Durkheim further wrote that ‘far from tyrannising the individual, it is the State that redeems the individual from the society’ (Durkheim 1950: 103). By establishing a direct link to individuals conceived as legal personae, as bearers of certain legal claims and obligations, the state progressively liberates the individual from the communal bonds of clans and local communities, and establishes their individual autonomy. In short, Durkheim sees a mutually reinforcing relationship between the state and ‘the cult of the individual’ which is mediated and materialised in the form of ‘individual rights’. The liberating role of the state goes hand in hand with the ‘moral investment of society’ in the idea of the individual. The state must ensure the liberty of its citizens, thereby strengthening the cultural ideal of the human person as a sacred entity. As sacred symbols, innate human rights thus mirror the individualism on which the modern social order is based, and at the same time protect the structural conditions for individual autonomy and individual liberty, without which the modern division of labour would not function. THE AMBIGUOUS RELATION BETWEEN STATE POWER AND INDIVIDUAL AUTONOMY

In advancing this argument, Durkheim developed an important corrective on liberal theory. Fundamental rights, in the view of classical liberal legal theory, are primarily seen as ‘walls against the state’, as shields established to protect vulnerable individuals from arbitrary imprisonment, intrusions on religious freedom, takings of property and other forms of governmental abuse. Consequently, these individual rights can be secured simply by limiting the government’s interference with personal freedom of action and association. This is easily understandable from an historical point of view. Political and civil rights were initially declared in the great democratic revolutions in the seventeenth and eighteenth centuries. Generalising from the English (1688), American (1776) and French (1789) cases, legal and political theorists have conventionally assumed that fundamental rights emerged in a

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struggle against the politics of absolutism, and hence tend to think of rights as limitations upon state power. The relationship between state power and individual autonomy, however, was never so unequivocally antagonistic as the conventional, liberal story has assumed. In many cases, fundamental rights were indeed created and maintained by the state to promote the goals of the state. Chris Thornhill (see also his contribution in chapter two of this volume) has outlined how constitutional rights have been quintessential to the process of state building because universal rights allowed states: [T]o construct the addressees of their power in categories of heightened generality: that is, rights allowed states to identify the addressees of their power as abstracted from their increasingly diffuse life-contexts and as bearers of clearly marked legal status, and this made it possible for states to apply power to them in simplified and reproducible legal terms. (Thornhill 2008: 174)

Assigning rights of property, religious freedom, political participation and so forth enabled the political system ‘to explain itself as a legitimate actor and … peacefully integrate its citizens under laws obtaining recognition and compliance’ (Thornhill 2008: 175). In this respect, fundamental rights allowed for a facile and universal inclusion of the overall population in the political process and ‘facilitated the functions of power transmission and social integration that attached to states’ (Thornhill 2008: 174). At the same time, the designation of fundamental rights helped the state to trace the necessary boundaries between the political system and other societal areas, thereby unburdening the political system from solving all problems of social life. For instance, by the end of the sixteenth century, important political theorists like Jean Bodin advocated the privatisation of religious disputes or the withdrawal of public officials from theological controversies as a technique for strengthening the rule of secular rulers over non-religious matters (Holmes 1995: 102–03). In this respect: [R]ights might be seen to have emerged as institutions that described the contours of what needed to be politicised in a society and that prevented the political system from assuming accountability for contents that, in a functionally pluralised society, it could not regulate and that might undermine its regulatory capacities and legitimacy. (Thornhill 2008: 175)

The conception of fundamental rights as shackles for government is hence one-sided and limited, and especially fails to elucidate the sociological dimension of fundamental rights. In order to capture the diverse meanings and functions of rights in modern society, sociological descriptions have to account for the negative as well as the positive, the limiting as well as the enabling aspect of rights. Although the idea that state power and individual autonomy can support and enforce each other has deep roots in French political theory (Holmes 1995: 103), Durkheim was one of the first to develop this idea sociologically. Whereas the liberal concept of state and law

Differentiation and Inclusion 67 was merely negative, entailing the removal of arbitrary legal impediments, Durkheim also stressed the positive, enabling side of rights. This implies that individual freedom and autonomy can no longer be regarded as a preconstitutional condition (as in natural law theories), but is always the result of social and political processes shaping constitutional rights. Durkheim also points out that the mutually supportive relationship between state power and individual autonomy implies that the evolution of individual rights is open and largely dependent on the growth of the modern state. He writes there is ‘a direct relation of cause and effect between the progress of moral individualism and the advance of the State’ (Durkheim 1950: 103). The individuals protected expectations grow with the expansion of state activity: Individual rights are thus evolving, they advance unceasingly, and it is impossible to assign to them a boundary which they cannot surpass. What yesterday appeared as a kind of luxury will become tomorrow strictly a matter of right. Thus, the task with which the state is charged is unlimited. (Durkheim 1950: 103)

Historically, there is indeed a discernible pattern of extending the catalogue of rights, from early civil rights to the material rights of welfare states. As I have already indicated, the ‘first-generation’ of human rights (the right to security, property, political participation and fair process) arose in a struggle against the politics of absolutism. The modern, liberal understanding of individual rights evolved out of these negative experiences with the state, ‘which as it were by its nature (its possession of a monopoly over violence and its dominant interest in self-preservation) strives to restrict individual freedom’, as Klaus Günther notes: If it was originally especially infringements on religious freedom that whetted the awareness of freedom, later the arbitrariness of the absolutist state (arbitrary arrests, lettres de cachet) and state regulation of the economy down to the smallest detail (mercantilism, the struggle for economic freedom) moved into the foreground. (Günther 2005: 386–87)

Yet, the history of developed, industrial societies has also shown the limitations of such a merely negative understanding of individual rights. This is especially true of the social consequences of the unfettered use of individual property rights and economic rights, producing new risks which could not be controlled by the individual (eg accident, illness, unemployment, age risks and lack of schooling) and hence had to be absorbed by society as a whole. In response to these threats, which grew into sources of social instability, the state became interventionist, establishing social equality through redistribution, so that individual freedom could be not only normatively but also in fact equally exercised. By assigning ‘social rights’ to all its citizens, welfare states aim to guarantee equal chances of inclusion in all important function systems, mainly by insulating or differentiating labour market inclusion from other forms of inclusion (thus ensuring that one’s standing

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in the labour market remains relatively independent from inclusion in other social systems such as education or healthcare) (cf Verschraegen 2010). This evolution obviously mirrors Durkheim’s contention that the state goes from being an opponent of freedom to its guarantor.

LUHMANN: FUNDAMENTAL RIGHTS AS SOCIAL COUNTERINSTITUTIONS

Looking more closely at the evolution of rights, however, also indicates that Durkheim’s elevation of the role of the state conceals a more general, underlying societal evolution. The fact that the semantics of individual rights initially fed on conflict with the state tends to blind us from the later evolution of fundamental freedoms and rights, which were not only won against the political system but also against the intrusive dynamics of other social systems such as the economy, religion, the family, the mass media and so forth. This is one of the main points of the systems theory of fundamental rights, which had first been developed by Niklas Luhmann in his early study Grundrechte als Institution (1965). Luhmann argues more particularly that human rights should be conceived as a response to the general process of functional differentiation. Although he emphasises that the emergence of fundamental rights is directed particularly against the politicisation of society, extending the working of human rights to other function systems as well is supported by the logic of the functional differentiation argument (cf Teubner 2012; Verschraegen 2002). Thus, fundamental rights are not only directed against state action, but protect individual and social autonomy against the expansive dynamics of other social systems as well. This implies that the classical view that fundamental rights are constituted exclusively in the triad of the individual/power/state should be complemented by a more differentiated view that also takes into account other social systems (cf Teubner 2012). Like Durkheim, Luhmann presents a genuinely sociological conceptualisation of fundamental rights by seeing them as a social institution. The important point in his analysis is the social institutionalisation of norms rather than the formal existence of a constitutional document or a court specialising in human rights norms. Constitutional and human rights are thus not a merely creation of the law but are also pre-legal, institutionalised social expectations, which are only afterwards positivised, interpreted and stabilised by the law. According to Luhmann: [T]he core concepts of fundamental rights law, such as ‘liberty’, ‘property’, ‘freedom of speech and expression’, ‘equality’ and the corresponding articles symbolise institutionalised expectations and mediate in their implementation in concrete situations. The institutionalisation of fundamental rights is hence a factual event—that is something which even the inclusion of fundamental rights in the

Differentiation and Inclusion 69 constitution should not make us forget—an event whose function (and thus not only intended normative meaning) has to be examined. (Luhmann 1965: 13)

In contrast to Durkheim, however, the main thrust of Luhmann’s sociological conceptualisation is that fundamental rights not only relate to the state and political power, but that their function should be generalised towards other systems that actually function in society. Within a modern, polycentric society without a central point of observance but only intelligible by multiple second-order perspectives, fundamental rights guarantee the differentiation of society in several autonomous social spheres. It is true that the initial, historical role of basic rights was to protect the precarious results of social differentiation against the colonising tendencies of state power, which was the first to liberate itself from the tutelage of the pre-modern religiousstratified order. This historical beginning is still visible in mainstream legal theory, which sees fundamental rights as shackles imposed on the state. In this respect, Luhmann describes how early constitutional rights emerged as a social counterinstitution which restricts the colonising tendencies of state politics. Via constitutionally guaranteed rights and freedoms, the political system, on the one hand, defined the area of competence of state power and, on the other hand, delineated it from all other, non-political social spheres, thereby preventing a politicisation of the differentiated social order. By preventing the political system from absolutising its own perspective, the fundamental rights protect both the freedom and interests of the individual and the differentiation between politics and other function systems—for example, the rights of religious freedom and freedom of conscience prevent politics from interfering with religion and, at the same time, make the choice and practice of religion an individual decision. However, systems theorists like Günther Teubner who further developed Luhmann’s theory stress that a sociological account of modern fundamental rights should not get caught in an obsession with (state) power and thereby overlook the fact that functional differentiation entails the autonomisation of many different function systems (Teubner 2012). In fact, the slow but cumulative development of different types of rights accounts for the gradual, evolutionary character of the process of autonomisation of different societal spheres. Early rights such as the right to religious freedom and freedom of conscience are indeed responses to the differentiation of politics and religion (as established after the European religious wars in the Peace of Westphalia (1648)). Yet, the later right to engage in a work activity of one’s own choosing, for instance, only emerged later with the full differentiation of the household or family and the economy and the concomitant dismantlement of the rigid guild systems and corporatist protections (Polanyi 1944). The right to education only emerged after mass educational systems were institutionalised and differentiated from the family, state and church. Neil Smelser’s detailed analysis of the emergence of mass-schooling in nineteenth-century Britain is a case in point. Smelser explains how child

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labour legislation in the 1830s and 1840s can be seen as a response to the undifferentiated family economy of the working classes, putting ‘economic and family necessities and interest in partial war with the interests of schoolers’ (Smelser 1990: 171). The tradition of utilising the labour of children, both in agriculture and in the burgeoning industries such as textiles and mining, was at odds with the great nineteenth-century drive for universal education: most parents would not forgo wages that children might be able to contribute to the family wage packet, and girls also had to take care of younger children or help their mothers in various other ways. This conflict between work and schooling created severe problems of irregular attendance and early withdrawal of children from schools. Throughout the nineteenth century, it was gradually solved, partly by the further evolution of the occupational structure, calling for new levels of skill requirement in the industry, which ‘meant that a larger proportion of the working class population could actually regard the education of their children as a source of possible economic and status betterment’ (Smelser 1990: 184). However, the crucial issue for our discussion is that the family–economy complex was also counteracted by fundamental rights legislation concerning the prohibition of child labour and the introduction of free and compulsory primary education. The later introduction and international codification of the ‘right to education’ was thus only made possible by the previous differentiation of the family and the economy, and serves as a counteracting institution to guarantee free and equal inclusion into the schooling system. In short, the different fundamental rights that have over time developed not only reflect the autonomisation of the political system but also underpin and reinforce the broader pattern of functional differentiation. Different types of rights hence work analogously with political rights, delineating an autonomous operational sphere (of politics, education, art, media etc) and at the same protecting individual and social autonomy against the expansive dynamics of communicative media, such as power, money and religion. The fundamental right of ownership, for instance, ensures the autonomy of the economic system against intrusions of various other systems, such as politics, religion or the family; at the same time, it makes economic operations dependent upon the decision to buy or not to buy. The protection of the freedom of research enables the autonomy of the science as a social system and prevents religion, the economy and so forth from interfering with the determination of results of research. A systems-theoretical perspective hence stresses that fundamental rights are not only personal freedoms. It is the task of fundamental rights to secure an independent sphere of action for each societal sub-system, to guarantee—in other words—not only personal but also ‘social autonomy’. The legal guarantee of different, ‘system-specific’ types of rights (freedom of religion, the right to property, freedom of the press etc) can only reach as far as the exertion of these different rights does not encroach upon the

Differentiation and Inclusion 71 activities of the other social spheres. Thus, fundamental rights serve as a barrier against totalitarian tendencies of all societal sub-systems, tending to endanger the autonomy of other sub-systems. Whereas historically the political sub-system had the biggest propensity for simplifying the differentiated social order according to its own political goals (just think of the twentieth-century political totalitarianism), today the sub-systems of the economy, science or religion potentially carry as many risks (cf Teubner 2006, 2011a). A systems-theoretical reading of fundamental rights as a protective device to guarantee functional differentiation applies, for instance, perfectly to recent manifestations of religiously motivated and politically ambitious movements, which aim towards the totalisation of society (cf Ladeur 2009) and hence create ‘boundary conflicts’ between science and religion (eg the religiously motivated refusal of scientific theories), medicine and religion (eg the religiously motivated refusal of blood transfusions), education and religion (eg tensions about the curricula of Muslim or Christian schools) or politics and religion (eg the emergence of religiously fundamentalist political parties). Fundamental rights are therefore required to set up variable demarcations insulating the expansive dynamics of the religious system vis-a-vis other social systems. As Marxist theory has long pointed out, the economic system is another obvious candidate for applying this logic of containment. Theorists in this line have warned repeatedly against blending the market logic with other previously ‘protected’ spheres of society (science, art, education etc), which they view as a step towards commodification. Here again, the symbolism of fundamental rights (freedom of research, freedom of art etc) is called upon to protect the autonomy of specific societal sectors against economic pressures.

FUNDAMENTAL RIGHTS AS MULTIPLE INCLUSION RIGHTS

In a systems-theoretical reading, fundamental rights guarantee the differentiation between social systems; their sociological meaning is consequently not exhausted by their legal status as personal freedoms. Yet, guaranteeing societal differentiation also entails regulating the specific relations that social systems maintain with the individuals in their environment. This is the reason why fundamental rights historically took the form of ‘subjective rights’. In Luhmann’s sociological reading, the ‘subject’ of rights is not the philosophical subject, not the ground of its rights, but rather symbolises a fundamental change in the involvement or ‘inclusion’ of the individual in society (Luhmann 1989). In contrast to pre-modern social orders, social differentiation can no longer be based on dividing ‘whole persons’ into distinct groups (families, tribes, casts, ranks or strata); it is no longer groups of people that are being differentiated but types of communication (thus making visible the irreducible difference between the individual and society,

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between consciousness and communication). It is obviously impossible to distribute people over systems of religion, the economy, science, education and politics, so that every individual lives in one and only one of them. Concerning this, Luhmann writes: What previously seemed normal is now impossible. The singular person can no longer belong to one and only one societal subsystem. He can engage himself professionally in the economic system, in the juridical system, in politics, in the educational system, and so on, and in a certain way social status follows the professionally delineated paths of success; but he cannot live in only one functional subsystem. (Luhmann 1989: 158)

Societal inclusion becomes thus a heterogeneous, even hybrid affair. Rules of access replace the old order, in which persons were divided into distinct groups. Human beings live outside the function systems, yet every individual has to have access to every function system if and so far as his or her mode of living requires the use of the functions of society. Everyone should be able to enjoy legal status and the protection of the law, everyone should be educated in schools, everyone should be able to acquire and spend money, and so on. According to Luhmann, fundamental and human rights are the juridical expression of this structurally new relationship between individual and society. The semantics of subjective, inalienable human rights precludes the possibility that personal identity can be coercively defined through group membership and assures inclusion—or at least the claim to inclusion—in the different function systems. In order to prevent the individual from being summoned and deprived of his or her rights by family, social stratum, the church or the (absolute) state, the rights are being claimed as human rights, indefeasible rights which are attached to the (juridical) subject or the human being as such. Freedom and equality, the central concepts of all fundamental rights declarations, symbolise the legal order which emerges together with the new, modern form of inclusion. The fundamental freedoms indicate that society in general, and different social groups in particular, have to leave it up to the individual in terms of when and why he or she wants to participate in the different function systems of society. Fundamental freedoms guarantee that each individual can decide which political party he or she votes for, which profession he or she exercises, which newspaper he or she is reading etc. The rights of equality symbolise that the individual as a juridical subject is equal to all other individuals, precisely because one’s social position is not being taken into consideration. Before the law, we are first and foremost equal citizens, equally entitled to a range of rights and protections. By giving inalienable rights to the individual, society thus protects the complex and differentiated order of modern society and tries to weaken tendencies towards regression or dedifferentiation. By equipping individuals with rights and claims to participation in politics, economy, law, education

Differentiation and Inclusion 73 and so on, it is made acceptable and even expected that individuals decide themselves upon voting behaviour, the choice of profession, intimate relations etc. Human rights thus ensure that the individual access to different function systems remains open, thereby protecting the high degree of individual mobility and communicative openness upon which modern society is built. The right to work and to free choice of employment, for instance, aims to guarantee that familial expectations concerning the choice of profession can be neutralised, thus ensuring that different individuals can be freely distributed among the various professional roles in modern society. In short, because human rights enable and legitimise the free choice of the individual, they strengthen the dominant structure of modern society, which is based upon free inclusion and individual mobility. This link between fundamental rights and societal inclusion is a central tenet of sociological differentiation theory. Not only Durkheim but also Talcott Parsons connected fundamental rights with structural changes in the involvement or ‘inclusion’ of the individual in society. In Parsons’ view, societies become more ‘inclusive’ by shifting from ascriptive to universalistic and individual achievement-based criteria of membership; participation in society becomes more flexible and mobile and less hampered by ascriptive criteria such as ethnicity or sex (cf Parsons 1971). For instance, in advanced societies with a highly differentiated occupational structure, people are not employed or hired on the basis of specific ascriptive criteria (membership of a particular family, ethnic, linguistic or religious group) but simply because their potential performance satisfies the specific demands of the task to be accomplished. Following the earlier lead of Durkheim, Parsons sees traditional group solidarities as being overruled by a more abstract and generalised form of solidarity which comes into being through the institution of ‘citizenship’ and what Parsons called ‘societal community’. For him, this seemingly paradoxical term aptly describes the modern form of inclusion in that it indicates a plural and differentiated collectivity, which nevertheless ‘maintains the integrity of a common cultural orientation’ (Parsons 1966: 10). The values of such a societal community constitute a cultural framework in which societal and individual diversity is permitted, defended and even promoted. A commitment to individual rights and to the sacredness of the human person is again a crucial element of this modern cultural framework, which, according to Parsons, ‘is couched at a higher level of generality in order to ensure social stability’ (Parsons 1971: 27). It is interesting to note is that Luhmann—in contrast to the Parsonian idea of a ‘societal community’—argues that a functionally differentiated society cannot provide such a generalised form of inclusion. As I have explained, individuals are not included into society as a whole, but are only partially included in the different function systems, organisations or interaction systems in which they partake. In modern society, inclusion and membership are necessarily system-specific. Each social system develops its

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own criteria for inclusion: participating in the education system is regulated by means of assessments of learning achievements, participation in a firm is regulated by the contributions one can make as an employee etc. Accordingly, the notion of ‘citizenship’ should be restricted to inclusion in the political system, which is itself internally differentiated into nationstates. As citizens, individuals are not included in societies in their entirety but merely in a (territorially defined) segment of the political system. The social status and the forms of self-fashioning of individuals are no longer shaped by an overarching form of membership or by a normative core of a ‘societal community’, however generalised this may be. Individuals simply cease to belong to the social systems in which they participate; their roles become partial and multiple; the only thing they share is the possibility of participating and it is exactly this ‘exclusion’ of the individual from society that forms the core of Luhmann’s view of individual human rights.

GÜNTHER TEUBNER: THE GLOBALISATION OF FUNDAMENTAL RIGHTS

From the point of view of system theory, the current, highly differentiated form of social order can no longer be conceived as a territorially bounded unit, but has to be reconceptualised as a ‘world society’ (cf Luhmann 1997a: 145–70; 1997b). This term does not indicate that globalisation can simply be captured as a one-dimensional process towards the development of a homogenised world. Instead, the long, complicated and uneven process of globalisation has led to the gradual establishment of worldwide societal structures and global observation perspectives, which entail a fundamental reconfiguration of societal boundaries. All social systems, be they interaction systems (a pub conversation), organisational systems (a university) or function systems (education), have become sub-systems of ‘world society’ and can no longer be isolated from global processes. In a systems-theoretical perspective, the world society should hence be conceived as a system characterised by new, emergent properties. New structures that transcend ‘inter-nationalism’ occur in the form of world law, world politics and world religions (Stichweh 2000). This is also visible in the realm of fundamental rights: after the Second World War, a truly global legal regime for human rights developed, albeit in a fragmented way. This universalisation of human rights took place via traditional international law-making mechanisms (for instance, under the UN system) but also via the dynamics of transnational civil society and various private actors such as private arbitral tribunals in the sphere of global trade (lex mercatoria), the Internet (Internet Corporation for Assigned Names and Numbers (ICANN)) etc (Bianchi 1997; Teubner 2006, 2011a). Both state and nonstate actors (non-governmental organisations [NGOs], global media etc)

Differentiation and Inclusion 75 participate in human rights law-making and law-enforcement processes, which slowly develop into a worldwide institutionalisation of fundamental rights standards. It should be noted that the development of global human rights norms has not halted the elaboration or softened the impact of local, national and regional jurisdictional authority. Many authors have instead argued for a recursivity in the globalisation of law to suggest reiterating cycles of law making and law implementation at national, regional and global levels (cf Halliday and Carruthers 2007). In classical social differentiation theory, the process of legal globalisation, whereby state-centred fundamental rights are complemented by the emergence of a global regime of human rights, has been conceptualised in a merely normative way. Durkheim, for instance, looked forward to the growth of ‘world patriotism’ (or cosmopolitanism), because he argued that in evolutionary terms, ‘we see the ideals men pursue breaking free of the local or ethnic conditions obtaining in a certain region of the world or a certain group, and rising above all that is particular and so approaching the universal’ (Durkheim 1950: 107). Following Kant’s argument on perpetual peace, Durkheim hence made a plea for universalising the model of a constitutional state which is committed to individual rights. Shaken by the First World War, he deplored the rampant nationalism that many intellectuals had enthusiastically embraced and devoted his own sociology to an early form of cosmopolitanism. In this respect he saw the world divided into two moral positions, namely ‘patriotism’, which associated itself with the national ideal and the state, and a ‘world patriotism’, which identified with the human ideal and humankind in general. Despite his normative cosmopolitanism, however, Durkheim was rather ambiguous concerning the idea of human rights vested in individuals irrespective of their citizenship (Poggi 2000: 119). As I have explained earlier, he claimed that it is only through the state that society confers rights on individuals. As a nineteenth-century European, Durkheim also considered the idea of a world state—or even a regional state, such as a confederation of European states—as utterly unrealistic, at least in the foreseeable future (Durkheim 1950: 107–08). Hence, the ground of protection of fundamental rights was the individuals’ citizenship in a particular state, which had to be normatively counterbalanced by ‘world cosmopolitanism’, a moral commitment towards humanity as a whole. Interestingly, Parsons has also pointed out that his ideas about inclusion in a functionally differentiated society should equally apply to national society as well as to the international realm (Parsons 1966). Like Durkheim, he was never able to show, however, what could serve as the necessary equivalent to the national societal community in the international system (Albert 2007: 175). In retrospect, it is hardly surprising that Durkheim and Parsons were not able to develop a satisfactory conceptualisation of global law and the global human rights regime, which only came into being after the Second World War.

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Their classical theories of society were developed with a national society in mind (be it France or the US) and operated on the assumption that society forms an integrated whole, with ‘integration’ being asserted variably on the grounds of common norms or values, a national identity, territorial demarcation etc. It is no surprise, then, that they found it hard to see beyond the nation-state. From the point of view of contemporary differentiation theory as well, it is clear why classical social and political theory has had difficulties disconnecting global human rights from the state and accounting for the fact that human rights have developed outside the realm of the inter-national politics and law. For centuries, the nation-state governed by democratic politics has had the power to delineate the boundaries of all other functional areas in society. Individual states tried to contain the divergent autonomous function systems under the roof of one political constitution, trying to counter the adverse effects of functional differentiation. By establishing social rights, for instance, modern welfare states tried to contain the logic of the economic system and counter it by national corporatist systems. More generally, in each national context, political, legal, educational and scientific systems are structurally coupled to each other in many different ways, which creates a context where different systems develop strong limitations to each other’s autonomy. The territorial construction of the nation-state also allowed functional systems to develop in a restricted national context and to diffuse slowly on a global level. The path to modern global and universal science, for instance, has occurred via an intermediate phase of strong nationalisation of science; the institutional infrastructures of the modern system of science, such as universities, disciplines etc, were first realised in a national setting (ie Germany) and were later taken over in other countries and finally diffused on a global level (Stichweh 1996). With globalisation, however, different function systems quite rapidly started liberating themselves from the tutelage of the territorial state. Contemporary systems theory reflects this evolution by arguing that modern, functionally differentiated society can impossibly be seen as an organic, territorial entity. Functionally specialised systems have a universal and global reach and cannot be contained in a territorial form. Territorial forms of internal differentiation, in the form of nation-state sub-systems, emerged as stabilising elements in early modernity, but from the point of view of global function systems, they have increasingly become obstacles to further evolution. Consequently, it is only in globalised society that the full force of functional differentiation has become visible. When function systems go global and liberate themselves from the dominance of state politics, there are fewer possibilities of counteracting their expansive, self-referential dynamics or regulating boundary conflicts between them. Because not all sub-systems globalise simultaneously and with the same intensity, this is especially the case with fully globalised systems such as the economy or science.

Differentiation and Inclusion 77 The existence of an established global functional differentiation obviously raises the question of how to conceptualise the validity of fundamental rights in a world where states no longer have the power to define the rules of the game. Over the last centuries, as I have explained, state-centred fundamental rights aimed to guarantee the ‘inclusion’ of the individual in the different communicative sub-systems of society. Globalisation has made this model partly obsolete. According to Gunther Teubner, one of the more prominent and innovative contemporary differentiation theorists, global function systems should therefore be able to develop their own fundamental standards and rules regarding system-specific access conditions without recourse to the national level (Teubner 2006, 2010, 2011a, 2011b, 2012). In the absence of a global state, it is up to the autonomous systems—or ‘matrices’ as Teubner likes to call them—to formulate fundamental rights standards to which both state and non-state actors can be held accountable and specify system specific conditions in such a way that free and equal inclusion is permitted. Good examples are essential services in the economic system, compulsory insurance in the health system and guaranteed access to the Internet; both states and private actors (like health insurers, universities, Internet providers etc) are to be held accountable for refraining from exclusion; Teubner (2011b) writes they ‘can no longer dispose of access by the overall population’. In short, at the global, transnational level, the problem of fundamental rights as a protective and limiting institution becomes more visible because it has become much more difficult to count on the primacy of politics and political constitutionalism. There is no equivalent for the state at the global level, and despite attempts to replace the state with different actors from the global political community, we will have to account for the fact that the constitutionalisation of global autonomous matrices can only take place through ‘auto-constitutionalisation’, as Teubner argues (Teubner 1997, 2004, 2006, 2010, 2012). The self-limitations of the various global systems can only work if they are developed within and not outside the logic specific to a sub-system. Teubner sees a beginning of such ‘global constitutionalisation’ at work in the different private global regimes, where concrete standards of fundamental rights are being developed incrementally. Through various, interconnected channels such as arbitral tribunals of official regulatory institutions (ICANN, World Intellectual Property Organization, World Trade Organization etc), contracts between private actors or public pressure from NGOs and the media, fundamental rights are being positivised in transnational regimes, beyond and above existing international politics and law (Teubner 2010, 2012). Analogous to the fundamental rights in the context of the nation-state, these fundamental rights are Janus-faced. On the one hand, they have to enable the autonomisation of each function system, enabling free and equal access for everybody. On the other hand, they have set boundaries for the totalising tendencies of autonomised communicative media.

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According to Teubner, the classical, political model of fundamental rights, which is oriented towards politics and the state, has long concealed what he calls ‘constitutional pluralism’, with each autonomous sphere developing their own system-specific rights (Teubner 2011a: 212). Yet, the problem of ‘societal constitutionalism’, the need to contain and protect the high degree of differentiation upon which modern society is built, was already obvious to early representatives of differentiation theory within sociology such as Durkheim. Through a reading of different, successive versions of the theory of societal differentiation, this chapter has argued that fundamental rights indeed play a crucial role in upholding the functionally differentiated structure of modern society. Despite the differences we have witnessed within this group of authors, they all subscribed to the claim that fundamental rights emerged as a response to the process of functional differentiation and concomitant individualisation. By outlining this argument in more detail, I have tried to argue that differentiation theory provides a clear sociological alternative to political and legalistic concepts of basic rights as defensive rights of individuals against state power, as it makes it possible to describe the broader societal structure in which human rights are embedded. From this vantage point, the significance of human rights is not exhausted by the legal protection of individuals against the misuses of political power, but is part and parcel of the broader problem of protecting societal differentiation and offsetting the external, negative consequences of function systems for broader society. Outlining this sociological reading of fundamental rights hence indicates how the various meanings and ambivalences surrounding human rights can be better understood by attending to the larger societal structures and processes that contributed to the institutionalisation of human rights. In many respects, the best of legal-sociological and ‘law and society’ scholarship on human rights has done this (see also Madsen, chapter four, this volume). However, an advantage of the perspective of social differentiation is that it provides an integrative framework to build on the classical foundations of the sociology of law while also elaborating theoretical structures that are flexible enough to rethink the place of fundamental rights in a global context. While classical social theorists like Durkheim and Parsons developed their idea of the relationship between social differentiation and fundamental rights by using the nation-state as the implicit ‘unit’ of analysis, contemporary versions of differentiation theory point to the contingencies of historical state forms and try to adapt this sociological account of fundamental rights to the emergence of worldwide social structures. Obviously, the current process of globalisation of fundamental rights is itself dynamic, open-ended and to a certain extent controversial; it takes place in a variety of settings, involves various actors and hence leads to multiple outcomes. In the highly dynamic field of global norm-making, however, the paradigm of systems differentiation provides a suitable framework to think

Differentiation and Inclusion 79 through why fundamental norms play a crucial role in multiple sectors of world society and can also emerge outside the existing centres of lawmaking (states, intergovernmental agreements, global legislative institutions, regional parliaments etc). The acknowledgment of a gradual ‘social institutionalisation’ of fundamental rights in various autonomous function systems, only loosely coordinated and interacting with each other, may very well collide with the canons of legal positivism and classical liberal theory, yet arguably it is better equipped to deal with the highly fragmented nature of contemporary world society.

REFERENCES Albert, M (2007) ‘Globalization Theory: Yesterday’s Fad or More Lively than Ever?’ 1 International Political Sociology 165. Alexander, JC and Colomy, P (eds) (1990) Differentiation Theory and Social Change (New York, Columbia University Press). An-Na’im, A (2000) ‘Human Rights’ in JR Blau (ed), The Blackwell Companion to Sociology (Malden, Blackwell). Bianchi, A (1997) ‘Globalization of Human Rights: The Role of Non-state Actors’ in G Teubner (ed), Global Law Without a State (Aldershot, Dartmouth). Douzinas, C (2000) The End of Human Rights. Critical Legal Thought at the Turn of the Century (Oxford, Hart Publishing). Durkheim, E (1930) De la division du travail social (Paris, Presses Universitaires de France). —— (1950) Leçons de Sociologie (Paris, Presses Universitaires de France). —— (1969) ‘Individualism and the Intellectuals’ XVII Political Studies 14. Eliott, MA (2007) ‘Human Rights and the Triumph of the Individual in World Culture’ 1 Cultural Sociology 343. Günther, K (2005) ‘World Citizens between Freedom and Security’ 12 Constellations 379. Halliday, TC and Carruthers, BG (2007) ‘The Recursivity of Law: Global NormMaking and National Law-Making in the Globalization of Corporate Insolvency Regimes’ 112 American Journal of Sociology 1135. Holmes, S (1995) Passions and Constraints. On the Theory of Liberal Democracy (Chicago, Chicago University Press). Hunt, L (2007) Inventing Human Rights. A History (New York/London, Norton). Ladeur, KH (2009) ‘The Myth of the Neutral State and the Individualization of Religion: The Relationship between State and Religion in the Face of Fundamentalism’ 30 Cardozo Law Review 2445. Luhmann, N (1965) Grundrechte als Institution: Ein Beitrag zur politischen Soziologie (Berlin, Duncker & Humblot). —— (ed) (1985) Soziale Differenzierung. Zur Geschichte einer Idee (Opladen, Westdeutscher Verlag). —— (1989) ‘Individuum, Individualität, Individualismus’ in N Luhmann, Gesellschaftsstruktur und Semantik. Studien zur Wissenssoziologie der modernen Gesellschaft, vol 3 (Frankfurt am Main, Suhrkamp). —— (1997a) Die Gesellschaft der Gesellschaft (Frankfurt, Suhrkamp).

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—— (1997b) ‘Globalization or World Society? How to Conceive of Modern Society’ 7(1) International Review of Sociology 67. Parsons, T (1961) ‘Order and Community in the International Social System’ in BS Turner (ed), The Talcott Parsons Reader (Oxford, Blackwell). —— (1966) Societies: Evolutionary and Comparative Perspectives (Englewood Cliffs, Prentice Hall). —— (1971) The System of Modern Societies (Englewood Cliffs, Prentice Hall). Poggi, G (2000) Durkheim (Oxford, Oxford University Press). Polanyi, K (1944) The Great Transformation (Boston, Beacon Press). Smelser, NJ (1990) ‘The Contest between Family and Schooling in NineteenthCentury Britain’ in JC Alexander and P Colomy (eds), Differentiation Theory and Social Change (New York, Columbia University Press). Somers, MR and Roberts, CNJ (2008) ‘Toward a New Sociology of Rights: A Genealogy of “Buried Bodies” of Citizenship and Human Rights’ 4 Annual Review of Law and Social Science 385. Stichweh, R (1996) ‘Science in the System of World Society’ 35 Social Science Information 327. —— (2000) Die Weltgesellschaft. Soziologische Analysen (Frankfurt, Suhrkamp). Teubner, G (1997) ‘“Global Bukowina”: Legal Pluralism in the World Society’ in G Teubner (ed), Global Law Without a State (Aldershot, Dartmouth). —— (2004) ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory?’ in C Joerges, IJ Sand and G Teubner (eds), Transnational Governance and Constitutionalism (Oxford, Hart Publishing). —— (2006) ‘The Anonymous Matrix: Human Rights Violations by “Private” Transnational Actors’ 69 Modern Law Review 327. —— (2010) ‘Fragmented Foundations: Societal Constitutionalism Beyond the Nation State’ in P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (Oxford, Oxford University Press). —— (2011a) ‘Constitutionalising Polycontexturality’ 20 Social and Legal Studies 210. —— (2011b) ‘Transnational Fundamental Rights: Horizontal Effect?’ Netherlands Journal of Legal Philosophy, www.bjutijdschriften.nl/tijdschrift/ rechtsfilosofieentheorie/2011/3/RenR_1875-2306_2011_040_003_002. —— (2012) Constitutional Fragments. Societal Constitutionalism and Globalization (Oxford, Oxford University Press). Thornhill, C (2008) ‘Towards a Historical Sociology of Constitutional Legitimacy’ 37 Theory and Society 161. —— (2010) ‘Niklas Luhmann and the Sociology of Constitutions’ 10 Journal of Classical Sociology 315. Turner, BS (1993) ‘Outline of a Theory of Human Rights’ 27 Sociology 489. Verschraegen, G (2002) ‘Human Rights and Modern Society: A Sociological Analysis from the Point of View of Systems Theory’ 29 Journal of Law and Society 258. —— (2006) ‘Systems Theory and the Paradox of Human Rights’ in M King and C Thornhill (eds), Luhmann on Law and Politics: Critical Appraisals and Applications (Oxford, Hart Publishing). —— (2010) ‘Re-embedding Capitalism? Reflections on the Role of Welfare in the Construction of European Societies’ in H Koff (ed), Social Cohesion in Europe and the Americas. Power, Time and Space (Brussels, Peter Lang).

4 Beyond Prescription: Towards a Reflexive Sociology of Human Rights MIKAEL RASK MADSEN*

T

HE PLACE OF human rights in society is far from being settled. Distinguishing the prescriptions and idealism of human rights from their actual empirical properties as a social scientific object of study remains, to this day, a real challenge in the social sciences. There is little doubt that the relative ambiguity of human rights is indeed one of their major strengths conceptually, politically and sometimes even legally. Making up an integrated part of the human rights research object, this ambiguity calls for reflexivity in the scientific encounter with human rights in terms of treating human rights as both an object of political mobilisation and an object of research. In practice, the cries for freedom from tyranny and arbitrary abuses of power are intrinsic to the interests and mobilisations around human rights. Although institutions have been developed and international and national legal codes drafted, respect for human rights is wanting for many and probably most: for example, victims of violations, activists, statesmen and other agents involved in the promotion of a better society or in the fight against what they see as gross injustice. Yet, these normative stakes in the issue of human rights are not only important in and of themselves but are also a fundamentally part of the research object of any sociology of human rights. Human rights are indisputably both a normative idea and a social practice, as well as a precept alluding to some anthropological fundamentals of human dignity. However, they are far from being normatively settled. Although human rights activists tend to

* Parts of this chapter have appeared as a journal article in International Political Sociology (Madsen 2011). Permission to reprint has been obtained by Wiley Rightslink online, 1 July 2012. I would like to thank Gert Verschraegen for his valuable comments on the original conference paper.

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form an epistemic community (Haas 1992), their ‘episteme’ is perpetually challenged by other actors. Current examples include Western governments seeking tacitly to balance liberty with security or, in the Chinese case, limiting liberty in favour of stability and solidarity by inferring a distorted version of Durkheimian sociology. Yet, the objective of a sociology of human rights cannot be to simply further or denounce any of these principled ideas and practices, even if one feels politically, morally and humanely convinced by some positions and appalled by others. This is in many ways not a new question in sociology. Weber’s distinction between ‘value judgment’ and ‘value reference’ was directed precisely at this problem (Weber 1980). Following Weber’s logic of inquiry, the objective of the sociology of human rights is to study human rights as a specific ‘value’ that had been reshaped by social conflicts and contests and that relates to larger social, legal and political developments. It is thus not this ‘value’ of human rights as the major players conceive of it that is the object in question; nor is it human rights as the researcher would like them to be realised. Most social scientists would of course agree on this at a principal level. However, navigating the many issues related to the often competing notions and conceptualisations surrounding human rights is, in practice, both a highly complicated and delicate manoeuvre. And this dynamic is due precisely to the social, political and legal importance assigned to human rights in today’s society. In more contemporary scientific terms, the difficulty lies in objectivising human rights into an object of research—in being able to study human rights as a more autonomous scientific object and avoid being swayed by the many readily available prescriptive discourses related to the subject area, including, most obviously, one’s own (cf Bourdieu et al 1991). However, more generally speaking, human rights are also a societal phenomenon (Verschraegen 2002; see also Madsen and Verschraegen in the introduction to this volume). Historically, the notion of human rights derives from the great philosophical and societal innovations of the Enlightenment. This notion has found supreme realisation first in the legalpolitical symbiosis of constitutional democracy (Thornhill 2008) and later in the internationalisation of the legitimacy of the state, most notably in the case of the European human rights regime (Madsen 2010). In functionalist terms, human rights concern the functional integration of modern society and perhaps even a form of solidarity necessary for the coherence of late modern society (cf Frederik Thuesen in this volume). In other words, rights—and particularly human rights—are one of the fundamental pillars of modern society. Consequently, the study of human rights, as a sociological object of inquiry, necessarily also implies addressing the structural societal transformations prompted by the evolution of human rights. This includes examining the simultaneous differentiation of human rights law and politics, nationally as well as internationally, and exploring the

Towards a Reflexive Sociology of Human Rights 83 far-reaching impact of these forms of differentiation, rationalisation and integration on society. These are, however, not macro-societal phenomena only suitable for grand theorising. Indeed, irrespective of the level of analysis— historical, philosophical or sociological—one crucial first step in delving into human rights research is perhaps to accept that the area of human rights is not by definition different from other social fields or systems. Viewing human rights as part of the general structuring of society seems to offer a means for understanding human rights at its actual societal level. It certainly reveals that idealist and prescriptive discourses are not free-standing but are produced within society and influenced by both macro- and meso-level social structures (socio-economic stratification, social institutions and networks, power etc). All these issues raise the basic question of how to study the multiple political, legal, moral and human dimensions of human rights mobilised in society in combination with a more structural analysis of the human rights of society. In the following, I shall argue in favour of a reflexive sociology of human rights, which I claim is both more adequately ‘societal’ and analytically more revealing of the social scientific object of human rights. I further claim that this approach, which I base on an international reading of Pierre Bourdieu’s sociology (cf Bigo and Madsen 2011; Dezalay and Madsen 2006, 2012), is suited for an analysis of the crucial dialectics of agency and structure in the development of human rights in and of society—how mobilisations and societal structuring interplay in the formation of human rights. Against this backdrop, the first part of this chapter argues for an ‘epistemological break’ in human rights research and the development of a reflexive sociology of human rights. It emphasises the need to reconsider both the realisation and reality of human rights in and of society more carefully and, with this in mind, to develop an approach that examines the interdependence between societal structuring and the political, moral, legal and, more broadly, social practice of human rights. The goal is not epistemological exegesis but instead the development of a reflexive sociological approach to human rights to be employed in empirical research. Following a brief outline of some of the major concepts of such a field approach, I further refine the approach by confronting it with some of the main currents in human rights scholarship. I first tackle the question of human rights at the agency level, confronting scholarship on the state and non-governmental organisations (NGOs) with the notion of a field of human rights made up of multiple and conflicting actors. Then, at the semantic-theoretical level, I compare the philosophy of human rights with a sociological account of the historical construction and reconstruction of human rights as a symbolic device. Finally, I delve into human rights at the level of legal discourse and legitimation. In conclusion, I sum up the defining elements of a reflexive sociology of human rights by briefly outlining the emergence of human rights in post-war Europe.

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Mikael Rask Madsen HUMAN RIGHTS AS RESEARCH OBJECT: THE NEED FOR AN EPISTEMOLOGICAL BREAK

The issue of human rights is indisputably one of the great contemporary discourses. However, as such, any attempt at a social-scientific analysis of human rights implies—paradoxically perhaps—entering into the sphere of ‘symbolic violence’ of human rights. By this I mean the pre-constructed visions and divisions specific to the social world of human rights (cf Bourdieu 1991). While prescriptive discourses are numerous, challenging the doxa of human rights with the objective of better describing and analysing human rights seems a necessary scientific prerequisite. This perception is also found in various contemporary structuralist and constructivist sociologies, ranging from Pierre Bourdieu to Niklas Luhmann, who both suggest devising an approach which, as a scientific preliminary, seeks to venture beyond the immediate questions and discourses surrounding human rights (Bourdieu 1986; Luhmann 1974). Using markedly different approaches, they both suggest examining the deeper social relations underpinning human rights as a societal phenomenon; that is, exploring the changing modes of production of human rights and society with the objective of respectively understanding the dynamics and functions of human rights in society. Thus, rather than blindly accepting the many predefinitions of human rights, these approaches seek to challenge the ‘self-presentations’ of the subject by tracking how the subject area came to be using a constructivist approach, but with the goal of defining the field or system in more structural terms. The goal is to not fall into the trap of viewing the object on the basis of intuitive readings and spontaneous classifications—all of which are readily available—and, instead, to seek to construct a scientifically more autonomous human rights research object (Bourdieu et al 1991). This preliminary operation is, however, not limited to the object itself, but also involves a critical examination of the dominant academic pre-constructions of the specific subject area in question by critically analysing the research tradition and the application of that tradition. What I am alluding to here is what Bourdieu—via Gaston Bachelard— termed the ‘double rupture’: a break with both the object and the research(er) in question. This basic scepticism is at the very heart of not only Bourdieusian-styled ‘field’ studies but also what has developed into a more general attempt at developing a reflexive sociology.1 One key component of such a reflexive sociology is the ‘double historicisation’ of both the object and the academic construction of the object. The booming contemporary engagement in human rights, both as activism and research, 1 It should be mentioned that both Luhmann and Bourdieu share a common basis in Bachelard and the fundamental obstacle of sociology, which is devising society as a scientific object of sociological inquiry beyond mere naturalist or humanist expressions of society.

Towards a Reflexive Sociology of Human Rights 85 only highlights the need for such an appraoch. Due to the increase of human rights discourses and their normative aspirations, set against the proliferation of actors studying human rights, there is a growing need to ‘step back’—or even ‘out’—and critically examine these pre-constructions before attempting to approximate the object on more objective grounds. This entails developing a genuine sociological inquiry guided by sociological systemisation and questions, and not by the political, legal or moral stakes of the subject in question. Essentially, the ‘double break’ serves as a tool for opening the ‘black box’ of human rights, recasting them as a genuine sociological object. Because of the long and specific history of human rights, as well as their historically numerous and divergent applications, the object of human rights is at all levels marked by a series of wide-ranging impensés. In other words, structures were and are inscribed and concealed in the subject, which further—by the means of the relative ambiguity of human rights—facilitates the realisation of different and often very well-camouflaged interests in the object (cf Bourdieu and Wacquant 1992). However, ‘objectivising’ human rights as a research object calls for somehow situating them beyond these stakes and interests, yet in a way that allows them to be taken seriously. One way of achieving this is by deploying the research tools of the ‘field’ and associated concepts of Bourdieusian sociology, such as ‘capital’ and ‘habitus’ (for conceptual clarification, see below). Together, these analytical concepts provide a sociological tool kit for understanding society as social practice and human rights as a differentiated societal practice. Using such an approach by no means downplays the social and moral importance human rights but rather examines human rights at a sociological level. The Bourdieusian view differs from a systems theory approach by attempting not only to abstract human rights from its practical political, legal and ideational practice into a structural functionalist account, but also by seeking to establish the link between the actual practices of human rights and the structures in which they appear and which they help to form, such as the structures and structuring of the field of human rights. More concretely, while this facilitates analysing human rights as differentiated legal, political or moral phenomena, the underlying goal is to explain the interrelationships and interdependencies of these forms of differentiation within human rights practices and thus their dynamics. This approach therefore differs from systems theory inquiries into human rights by employing a different notion of the ‘social’. Whereas systems theory tends to abstract the societal level to a higher level of systems and communications (Luhmann 1997), a sociology of practice, as is propounded here, situates the ‘social’ differently and at the level of the interdependence of agency and structure (Bourdieu 1980). In the context of human rights studies, a sociology of practice has the important heuristic advantage of precisely integrating the various human rights practices in the structuring

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of society and vice versa. It thus emphasises the dynamics of human rights rather than their integrative functions. Such an approach builds off of the premise that human rights are a symbolic instrument valorised differently in different social fields, and also develops within a specific field of human rights. Drawing on Bourdieu’s famous essay ‘On Symbolic Power’ (Bourdieu 1991: 163–70), human rights are a modus operandi providing symbolic forms for constructing and making sense of the world in terms of structuring structures. At the same time, human rights are an opus operatum of more objective forms of meaning, a structured structure in a more structuralist sense. However, understanding the function of human rights in terms of these two very different symbolic devices requires relating them to power and domination (without committing to Marxist reductionism): to see human rights—and human rights practices—as part of a set of power relations which produce symbolic power, for example, divisions of labour (law/politics) and the battle over the legitimate form of production. These three elements, as I will try to demonstrate below, are not mutually exclusive—regardless of their clearly dissimilar functions and theoretical origins—but rather provide precisely the means for an integrative approach to the position of human rights in society that takes the practice of human rights seriously.

FIELD ANALYSIS OF HUMAN RIGHTS

In the following section, I will further explain the usage of the core Bourdieusian notions in human rights research set against the backdrop of the above more abstract and epistemological discussion of the problem of human rights in the social sciences. As argued elsewhere (Madsen 2010), the field of human rights is generally characterised by a number of core dynamics, most notably the ongoing interplay of ideology, politics, law and power. In terms of agents, the field can also generally be circumscribed by the interdependent input coming from law (and jurists), civil society organisations and state practices, and these agents’ both distinct and overlapping engagements in the politics, ideology and law of human rights. While this delimitation is empirically uncontroversial as far as general human rights are concerned (see, however, Buchanan 2009: 123), the fundamental challenge still remains: to construct an operative model of analysis which can somehow relate these different actors and stakes to one another in a single structure. I would argue that the concept of ‘field’, developed by Bourdieu, provides an appropriate tool for doing exactly this (Madsen 2006). Using this approach, the object of study becomes the symbolic space which exists as a set of objective relations between positions and which is continuously being transformed by their constant interplay over the domination and control of the subject of human rights (Bourdieu 1986; Bourdieu and Wacquant 1992: 101).

Towards a Reflexive Sociology of Human Rights 87 Conceptualising the ‘playing field’ in such a way, through a relatively open-ended analytical notion, seems particularly suitable for an analysis that necessarily has to consider both long-term and short-term processes of the object of study. Human rights in the longue durée is marked by great social continuities—evident in the significant historical legacy of human rights in Western democracy—and, in the courte durée, by the continuous emergence of new human rights discourses and practices as a product of interdependent political and social transformations in which human rights are increasingly mobilised (on this notion of history, cf Braudel 1980). The field approach offers a tool for situating the diversity of the subject in question within a single analytical framework: from the diverse set of actors to the many and conflicting normative discourses and their different temporalities. Examining the rise of modern human rights using this approach is in fact addressing multiple and overlapping social fields—national and international.2 Rather than accepting the existence of an ‘international super field’ of human rights, Bourdieusian reflexive sociology functions in this regard as a tool to establish the many international and national practices of human rights in their ‘own right’, that is, beyond the legal dichotomies of national-international or law-politics, which traditionally, and often implicitly, have largely shaped studies of modern human rights. Besides seeking to establish the objective relations between a set of ‘positions’, the analytical model proposed further centres the analysis on the circulations of knowledge, concepts and savoir-faire between the more competitive and complementary producers (Bourdieu 2002). In this view, the various national, European, international and transnational levels, and their respective more specific centres of production, form a structure—a field—of both semi-autonomous and semi-interdependent positions. What is suggested here is not a form of network approach such as the model developed by Manuel Castells for conceptualising international society and global exchanges (Castells 2000; Madsen 2002). Instead, the objective is to use Bourdieusian sociology on the international and transnational levels. On the one hand, the model draws on Christophe Charle’s field-inspired analysis of inter-war Europe in which the international level is seen as the product of competitive national projections and productions (Charle 2001). On the other hand, the model integrates the findings of Yves Dezalay and Bryant Garth on the growing interdependence of the producers and receivers in a globalising internationalised society and the resulting path dependence of changes in the global North and South (Dezalay and Garth 2002). Such ways of examining international interplays implicitly build on a conceptualisation of the state as a more disaggregated entity

2 In this chapter, I refer to modern human rights as the post-Second World War internationalisation and relaunch of human rights.

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than as a more institutionally fixed structure, as is suggested in mainstream political science and law (on the disaggregated state, see Slaughter 2002). The national and international politics of the state are obviously central to the examination of human rights. Therefore, this way of reconceptualising the state is a way of facilitating an analysis of the many actors operating in and around the state, including NGOs, foundations, professional societies and individual entrepreneurs. Of course, this is not to say that the state equals the field, but simply to emphasise the state’s role as both a key battlefield and as an agent in the overall game—and field—of human rights. This conceptualisation of the notion of field as the playing field of both national and international positions and structurally constrained strategies will be explored further below. At this point, I will only make a few additional remarks with respect to the link between the ‘field’ and the two other core notions of capital and habitus. Conceptually, Bourdieu defines the ‘field’ as a social space made up of objective relations between agents which exist beyond individual consciousness and will (Bourdieu and Wacquant 1992: 101). Furthermore, the field is understood as a place for struggle between different agents, a sort of marketplace if you will, where different positions are held based on the amount of capital (economic, cultural, social, symbolic etc) that agents possess and which determines their potential influence on the functioning of the field. This struggle or conflict is what gives the field its dynamism, but what also maintains it as a field. The agents constantly challenge each other, but generally not the field itself—a fact attributable to the habitus of the agents and their trajectory towards the field. Habitus refers to the shared set of dispositions that orient the agents in a particular field and with regard to other fields. From schemes of perception, of appreciation and action, habitus is, in other words, the internalised schemes that guide the players’ behaviour (Ansart 1990: 41). This internalisation, in turn, takes place through a dialectical process in the sense that habitus both produces and is produced by the social world. Habitus is therefore neither due to a mechanical reaction to external constraints nor to a subjective, conscious intention on the part of the agent. It is a practical sense—a socially founded ‘sense of the game’—which is constructed throughout the agent’s particular and individual trajectory (Bourdieu 1980). As I will further argue below, this ‘sense of the game’ is structured over time and reflects different social configurations and, thereby, historically different sets of ‘rules of the game’ or nomos which form a common illusio of the agents of a field (Bourdieu 2000: 96). In that sense, the analysis of human rights in terms of a field very much seeks to explore how micro practices are written into the structural changes of the arena and vice versa. The approach thus seeks to analyse the gradual emergence of a more structured field of human rights on the basis of the practices of a series of agents and institutions, which, during different historical stages, have helped define

Towards a Reflexive Sociology of Human Rights 89 this social space and its overriding logics. Such a study becomes an analysis of the different nomos, illusio and eventual doxa of the field, and the ways in which these have influenced the logic of practice of the agents. In other words, it becomes an analysis which, by means of sociology, studies the Realpolitik of reasoning human rights and how this structures the space of action, perhaps most strikingly in terms of institutions and law.

REFLEXIVE SOCIOLOGY AND THE STATE OF THE ART OF HUMAN RIGHTS RESEARCH

Although departing from a somewhat different starting point from the majority of human rights studies, the approach I have been outlining is not in contradiction, as such, to mainstream research in the area of human rights. As with any other research tradition, it builds and rebuilds upon existing work within the subject area. Its main difference from some of the major traditions in human rights research is the objective of introducing a genuine sociological dimension to the study of human rights, in this case via Bourdieusian reflexive sociology. To better explain and situate this approach, in what follows, I will compare it to a selection of mainstream studies of human rights. Among the ever-growing literature on human rights, there are at least three traditions which are relevant in this regard: the approach of ‘transnational advocacy networks’ developed in international relations studies; the political-philosophical approach concerned with the ideal of human rights; and, not least, the institutional and legal doctrinal approach deployed mainly by international legal scholars and political scientists.

Network and Field In her pioneering study of the rise, consolidation and transition of the Latin American human rights network, Kathryn Sikkink has analysed the various stages of the politics of human rights in respect of Latin America since the late 1960s. She demonstrates how the issue of human rights, in the 1970s, was created as a problem, a shared category of concern between the South and the North, by a number of pioneering human rights NGOs, including, in particular, Amnesty International. In the second stage (1981–90), she argues that an expanding ‘network’ between these groups increasingly, and more effectively, used the symbolic power of human rights in their common struggle. This period was marked by the launch of Americas Watch, which took human rights to a new level by professionalising and ‘mediatising’ the subject. Influenced by the beginning of the democratisation of Latin America, as well as more generally by post-Cold War diplomatic practices,

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the third stage (1990 to the present) forced this network to reorganise and aim at a set of new issues related to the consolidation of democracy and human rights (Sikkink 1996). Together with Margaret Keck, Sikkink has more generally theorised this variation of ‘epistemic communities’ (Haas 1992) in terms of ‘transnational advocacy networks’ (Keck and Sikkink 1998). This analysis, which has gained much attention in international studies, poses a set of key questions regarding the way in which advocacy networks form essential infrastructures for transnational symbolic politics such as human rights activism. Even if the approach propounded in this chapter is in many ways indebted to the insights of Keck and Sikkink, it differs substantially in its basic framework. However, both approaches concur with the observation that NGOs and other civil society mobilisations have a significant impact on the area, as well as that a human rights movement emerged benefiting from a transnational communicative network. Where the two diverge is on the question of whether this development somehow represents the whole area and idea of modern human rights or simply a set of important yet specific producers of human rights. More precisely, should these civil society engagements in human rights be seen as an all-encompassing social movement and as somehow independent from concurrent state strategies or other competing strategies? Essentially, when compared to the approach outlined above, the network model highlights an important communication structure, yet downplays the internal conflicts and skirmishes that the notion of ‘field’ takes as a starting point. This can be exemplified further by highlighting another central feature of Keck and Sikkink’s analyses, namely how a set of actors and institutions came to subscribe to a more or less common ideology and utopia of human rights. The critique raised by the field approach is that such accounts do not sufficiently accentuate the actual competition at play in forming this common utopia: how competitive and conflicting ideals and practices are in fact at the core of the definition and transformation of the concept. Even within the ‘NGO network’, the competition, for example, between Amnesty International, Human Rights Watch and La fédération internationale des droits de l’homme (FIDH) has not only been central to the transformation of the idea of human rights but has also—over time—differentiated the positioning of these (co-)producers of this field. In the view of the approach advocated for in this chapter, this ongoing competition in fact provides an important dimension for understanding the pervasiveness of contemporary human rights activism as not only the product of its political success in general but also the product of the increased differentiation of this area of politics in terms of law and institutions. In approaching the rise of modern human rights as a field, the positioning of the actors relative to the other main actors (the state, international institutions, academia, civil society etc) is central. It is the basic claim that

Towards a Reflexive Sociology of Human Rights 91 the game of positioning reflects different social histories and ultimately different social and political outlooks. In addition to outlining these parallel and competitive engagements, the model seeks to understand these different actors’ positions in the field from the point of view of the social history of each of these positions, rather than only their attachment to a specific cause. With regard to this positioning of civil society actors, this does not devalue the impact of various NGOs and social movements, but it underscores their individual characteristics and how these are linked to both the ongoing competitions in the field and its more general history. Accordingly, rather than taking the self-presentations of these organisations as objects of study, what is interesting in this regard are the actors themselves who formed these presentations and infused them with specific conceptions and visions. Mapping the field by the input of these more objectively (as well as subjectively) positioned agents and institutions, the analytical starting point becomes the structural dimensions of the progressive and competitive development of the field, including, obviously, the construction and reconstruction of the idea and ideal of human rights (Dezalay and Garth 2006; Guilhot 2005; Madsen 2005). To sum up, contrary to a network approach, the field approach seeks to add a structural dimension to the study of human rights by positioning the producers of human rights in the broader social context of an increasingly more structured field.3 Therefore, the approach does not necessarily exclude the idea of network analysis; however, it suggests that such an analysis should be carried out as part of a more structural description of the field, that is, within the structural matrix of the field of human rights practices. The Ideological Divides of Human Rights The basic imperative of the specific sociological analysis advocated for here can be further explained by situating it in respect of the political philosophical research tradition in the area of human rights. Modern human rights have generally been marked by two great disputes: first, the dispute concerning the struggle between the protagonists of social and economic rights and those of civil and political rights; and, second, the more philosophical dispute over the question of universalism versus relativism of human rights—a conflict which has been political, moral and academic in scope (Aron 1965; Wilford 2003: 126, quoting Bertrand Russell). The field approach argues for viewing these conflicts concerning the definition of human rights as part of the research object itself and as empirical evidence of the—only relative—structural stability of the area. In other words, the 3 A similar critique, using reflexive sociology, could also be raised against other related theories of ‘the power of ideas’ and norm politics, for example (Risse et al 1999).

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normative definition of human rights remains an important front line in the overall dynamic of the human rights field. This is not to say that these skirmishes over principles and definitions do not contain morally, politically and legally highly pertinent insights, but that these are very much a part of the broader object of study. Moreover, maintaining a certain analytical distance to these normative discourses helps to avoid being trapped within a set of boundaries and categories of a subject that, notwithstanding these important discourses, remains marked by the fact that the struggles over its boundaries and content are not close to being resolved. This is basically viewing conceptual and normative controversy not as an essentialist question but as an essential question for understanding the dynamics of human rights (cf Bourdieu 2000). The question of the universalism of human rights is, with its heritage in the work of some of the most prominent philosophies of modernity, unquestionably at the heart of the post-war internationalisation of human rights. Yet, the opposing view, the relativism of human rights, became equally central in the post-war transformations undergone in the human rights arena: The fall of the colonial order opened up space for the critique of the imperial tradition of exporting Western universals under the flag of ‘the universal’ (Donnelly 1989; Gosepath and Lohmann 1998; Renteln 1990; Wilson 1997). Of course, these ideals and theories are far more sophisticated than this blunt description gives them credit for. In respect of a study of modern human rights, these theories are for many reasons interesting, one reason in particular being that they are central to explaining the legitimation of the different discourses of modern human rights. Consequently, in this approach, the research object is not limited to these philosophical explorations per se but also includes how these scientific and political theories and justifications have, to various extents, been integrated in the production and legitimation of human rights. A similar approach is deployed with respect to the other great dividing line of human rights, the clash between the different ‘generations’ of rights, notably social and economic rights vis-a-vis civil and political rights. Even if the Vienna Summit (1993) and the European Charter of Fundamental Rights (1999) famously equalised these two sets of rights, from an empirical view, it remains questionable whether they, de facto or de jure, are fully equalised. On the contrary, a tension, albeit a changing one, continues to exist between these different groups of rights. This is currently most strongly expressed in the claims put forward by so-called altermondialistes fighting for alternative forms of globalisation. The altermondialistes are in many ways directly challenging the artificiality of the grand, typically state-sponsored, discourses on human rights that mainly call for the equality of rights in order to realise a number of more or less well-concealed diplomatic interests (cf Douzinas 2000). Generally speaking, a reflexive sociology of human rights suggests integrating these tensions over the definition of human rights into the research

Towards a Reflexive Sociology of Human Rights 93 object. The rationale is that the area of human rights, more so than many other policy areas, has sought justification in political philosophy and of the highest order and grandest kind: going from the perpetual peace to the universality of humankind. In this way, this runs a real risk of philosophically depoliticising and desocialising human rights. Due to this danger, an analysis is called for that restructures and contextualises these discourses in respect of the host of actors and organisations practising and producing human rights. In other words, it calls for an analysis which examines the correspondence between positions and position-takings, as well as how the different positions have been constructed over time. To reach this end, the approach therefore explores the emergence and transformation of human rights by applying the notion of field in a dynamic fashion: rather than a static representation of human rights, the objective here is to trace the gradual structuring of the subject area in terms of field. As a function of the scale and diversity of the terrain of study, such an approach is by definition inductive and exploratory, and thus should avoid applying—at least initially—a very fixed, delineated definition of human rights. Conversely, this approach ideally seeks to follow the agents and their involvement in the ongoing reconstructions of the subject and to use this in the delimitation of the object and field. The research approach suggested basically seeks to explore the expansion of human rights and the processes of the structural ‘hardening’ of the human rights discourse, ie the systematisation, legalisation and other forms of differentiation and structuring of the human rights field. More precisely, by tracing the emergence and growth of the subject, one can study those agents and practices that contributed to the adoption of the set of norms that subsequently were established as human rights by international or national legal or quasi-legal codification. The approach is by all means historical, but is perhaps best described as an historical sociology or sociological history. Following Robert Castel, the objective is neither to rewrite nor revise history but to reread history, on the basis of both historical and sociological sources, with a sociological narrative and lens (Castel 1995: 17). It is a selective history, like any history, centred on a set of sociological questions, which ultimately reflect the analytical objective of tracing the object and how it was defined and more generally structured over time by the competing input of a host of actors.

Sociology of the Juridification and Legitimation of Human Rights These processes of structuring and categorisation, which are central to a reflexive sociology of human rights, make the question of the role and position of law important. Undoubtedly, law—and jurists—have played a major role in the emergence of modern human rights as a structured field of

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practice (cf Blau and Moncada 2007; Hagan and Levi 2007). Because of the way in which the issue of human rights is inherently a concern of the state, law is inevitably at play. This is also evident in human rights research by the long-dominant role of legal scholarship. In particular, international legal scholars have, since the birth of modern human rights, engaged in describing and proscribing the normative and institutional build-up of the subject (cf Bourdieu 1981). Legal and quasi-legal analysis unquestionably provides an important contribution to understanding the normative and institutional aspects of human rights (for example, Steiner and Alston 1996). However, despite its many virtues, this school of research tends to make light of a series of basic issues related to power, conflict, legitimacy etc, for example, basic sociological forms of inquiry. In other words, the gradual emergence and expansion of human rights (law) tend to be presented from an insider view mainly concerned with the legal effectiveness and expansion of these doctrinal regimes rather than any form of sociological analysis of the social processes related to the breakthrough and relative autonomisation of these legal regimes (an example is Buergenthal 1997). This often leads to very little emphasis placed on the social and historical context of these legal and institutional innovations. As in the case of the transnational networks, I would argue that the analysis of the legal and institutional aspects of human rights might equally benefit from an analysis which instead departed from the adversarial nature of this social space: how this space was—and continues to be—produced at the crossroads of a set of different agendas and actors and how human rights law and institutions are gradually formed by these stakeholders (an example is Madsen 2007). Although it takes law and jurists as one point of departure for understanding the emergence of modern human rights, this approach remains distinctly sociological, not legal. While legal doctrinal insights and institutional descriptions can be used to elucidate and substantiate the analysis of certain social and legal shifts, the basic framework for understanding law and jurists in this regard is a sociological analysis of the interface between the emergent field of human rights and the legal field. Following the general notion of field, the ‘legal field’ is understood as an historical construction influenced by the way jurists seized a powerful doubleposition in contemporary society as both insiders and outsiders to the state (Dezalay and Madsen 2012; Kantorowitz 1961). In Bourdieusian terms, by being ingrained in the social processes related to the emergence of the modern democratic state, jurists not only gained high social standing but also developed a specific objectified and codified symbolic capital, ‘juridical capital’, granting them a specific resource of societal power. The specific social power of jurists is further linked to the rise of the modern law faculty. As a way of making itself both indispensable and self-sustainable, the modern law faculty invested heavily in a formalisation of law which helped counteract the fact that its main function was to be the professional

Towards a Reflexive Sociology of Human Rights 95 (and social) training ground for the state elite. The investment in legal formalism, often accompanied by a hint of legal universalism, essentially allowed jurists to present themselves as autonomous experts on the functioning of state and society, yet at the same time to maintain a close relationship with the state. The most striking outcome of the construction of modern law in the shadow of the state was the production of the double role, though not neccessarily double identity, of jurists, enabling them to both be the guardians of tradition and order as well as advocates of postrevolutionary liberalism (Halliday and Karpik 1998; Karady 1991). And this eventually allowed them to present themselves in mainstream politics and, in certain instances, become a dominant force in international relations (Dezalay and Garth 2010; Dezalay and Madsen 2012; Sacriste and Vauchez 2005). It is on the basis of this historical understanding of law and jurists that we, in more structural terms, can understand the influence of legal expertise in the area of human rights. Considering the prominent role played by legal academics in the construction of modern human rights, an important issue in this regard is the power that legal expert knowledge exerts on human rights. As just described, modern legal science first emerged as part of les sciences de l’État, being the very vehicle for the production of knowledge on the state and for the state, that ultimately served to justify and extend state power. Similarly, human rights, despite seemingly limiting state power, also contributed to this progression of the state and its social justification.4 Making this link between the historically acquired social position of jurists and the relative power of the (quasi-)legal human rights discourse is central to the analysis of human rights for a number of reasons. First of all, legal human rights academics, despite being marginalised for an extended period of time within the hierarchy of law, have, more than any other sub-group of human rights academics, impacted the debates of modern human rights. Reflecting the only gradual and contested conquest of human rights as a serious legal matter and a scientific discipline, many of the interventions by legal human rights academics have been marked by a notable blend of legal analysis accompanied by the agents’ visions—de sentia ferenda—on how human rights ‘should be’, that is, the Kelsian Sollen rather than the Weberian Sein. A whole genre of human rights literature has in practice developed importing the normative method of writing ‘recommendations’ from human rights consultancy and activism in combination with

4 The rise of an independent, professionalised bureaucracy was further linked to an overall centralisation process which was bolstered by the build-up of internal protocols, doctrines and other forms of bureaucratic knowledge and expertise. This bureaucratisation process did not restrain the power of the state, but rather, paradoxically, provided the foundation for the expansion of its powers. Human rights provided in this regard an important means for legitimisation (Bourdieu 2012; Bourdieu et al 2000).

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straightforward legal doctrinal and institutional analysis. This very specific blend of law and more or less discrete legal and political idealism is intrinsic to the field in question and is ultimately a part of the object of this study. In fact, examining these key producers’ multipositioning between academia, NGOs and national and international organisations provides important empirical evidence of the interfaces of the more social worlds involved in producing the field of human rights. Applying the historical and structural constructivist approach outlined above, the analysis of these key agents thus concerns both the structural position of legal human rights experts, ranging from academics to practitioners, and their professional contributions. In other words, their practices not only provide central evidence for analysis of the progression of the subject area, but they also supply specific and individual trajectories towards the field. When combining the social properties and trajectories of the actors with their expert contributions, it becomes possible to also interpret legal discourse as part of a broader social history of human rights. Furthermore, when analysed in the context of a legal field differentiating and autonomising legal knowledge, the practices of human rights experts using a hybrid formula of interventions is indeed highly illustrative of the way in which the field, to a certain extent, has been constructed using the legitimacy of legal expertise to further the political cause of human rights. A deconstruction of the role and impact of these experts also reveals that these human rights actors’ interface with the legal field has been far from straightforward. Paradoxically, one of the major obstacles hindering the creation of an autonomous human rights area came from the resistance initially thrown up against this allegedly ‘politicised subject’ by the elite of the legal field (Madsen 2005). Although law and human rights are closely linked, it is an ambiguous relationship, which is revealing of an ever-changing interface of law, politics and power. And it is by understanding this tension that it becomes clear why legal actors to a large extent have become the couriers— though not to say the brokers—of the national and international law and politics of human rights (Dezalay 2004; Dezalay and Garth 2002).

IN SEARCH OF HUMAN RIGHTS

The fundamental objective of this chapter’s mainly theoretical and epistemological examination of the construction of the research object of human rights has been to elucidate why human rights have acquired such a central position in contemporary law, society and politics. The textbook explanation of the contemporary rise of human rights tends to paint human rights as more or less the inevitable product of the transformations of Western European society in particular following the Second World War. The atrocities committed by the Nazi regime in the context of impotent and insufficient

Towards a Reflexive Sociology of Human Rights 97 international law and humanitarian ideology as well as the more generally speaking inert Western European civilisation certainly appear as more than sufficient reasons for the far-reaching post-war human rights project. However, on closer inspection, the modern history of human rights provides a considerably more multifaceted narrative, which conversely calls for a much more nuanced conceptual framework. Undoubtedly, the memory of the powerlessness of European civilisation when confronted with fascism and Nazism played a pivotal role in instigating the project of international human rights and to a large extent explains its initial drive (Lauren 2003). However, the history of Europe since the Second World War can hardly been seen as a one-way ‘process of civilisation’. It is my belief that understanding the processes beyond the transient utopia of universal human rights at the establishment of the United Nations requires relating the nascent practices of human rights to some of the other dominant issues of the time. The political, intellectual and legal polarisations around, for example, the competing orthodoxies of the Cold War as well as the question of the discontinuation of colonialism quickly stalled international progress on human rights. Tensions, which already existed in European societies in the battles over fascism during the inter-war period, were in many ways exacerbated after the Second World War, making many European states—and particularly France and the UK—key elements in a larger, highly destructive, geopolitical framework during the period (Madsen 2010). Moreover, although Europe became a central site for both Cold War politics and decolonisation, the simultaneous but equally radical project of integrating European states in a common political and legal order was spared these geopolitical constraints (Madsen 2012). One might go so far as to argue that this second process was very much stimulated by the concurrent geopolitical issues of the Cold War and decolonisation. The substantially different initial fates of the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR) certainly bear witness to these divergent international and European developments of the post-war period. As argued elsewhere, the making of the ECHR was in many ways a Cold War master plan, yet it became the backbone for an unprecedented development of unique European human rights law (Madsen 2007). These combined issues not only contributed to the construction of the idea of European integration, but later also considerably changed national political and legal practices in the area of human rights. European human rights gained particular momentum when the first Cold War had been substituted with détente politics and the most violent conflicts of decolonisation were over. The breakthrough of more autonomous human rights activism inspired by, for example, the British organisation Amnesty International, as well as the official crowning of the human rights milieu throughout the 1970s, also provided significant moral support for ECHR institutions

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(on Amnesty, see Buchanan 2002). The ensuing high-profile clashes first with the British legal system and later with the French judiciary exemplified the effective rise of a new European human rights doctrine. Even the countries that quantitatively could claim to be more in compliance with these new normative instruments—by having only a low number of cases in Strasbourg—were unable to escape its effect of normative legal harmonisation in the area of human rights. Although the legal ‘micro-revolution’ instigated by the institutions in Strasbourg provides a key narrative with respect to human rights in Europe, an analysis that is even limited to the rise of modern human rights in Europe cannot restrict itself to this specific research path. In fact, understanding even the seemingly limited object of the ECHR necessitates a broader analysis of the concurrent stakeholders in the manufacturing of the wider subject of modern human rights in Europe. As suggested above, one obvious supplementary—indeed complementary—path to consider in this regard is the many and divergent civil society investments in the subject area, from the rival Cold War organisations of the International Commission of Jurists (ICJ) and the Association internationale des juristes democrates (AIJD) to the emergence of more neutral sites of activism such as Amnesty International and, later, the many NGOs forming the democratisation movement during the 1990s (on the Cold War NGOs, see Tolley 1994). Yet another element of central interest in this regard is the changing state practices in the area of human rights. State interventions in this area are for a number of reasons pivotal for understanding the progress of the broader subject. As indicated above, this is first of all due to the very construction of human rights in respect of the state. As both the non-negotiable entitlements of citizens and the legitimation and justification of the modern state, human rights have always concerned, in one way of the other, the state. Moreover, the demand for the protection of human rights nearly always involves changing state practices. By being the direct target of NGO activism, the state has intrinsically been a part of the rise of modern human rights. Moreover, the state, acting both as a political entity and, through its differentiated departments, in a more disaggregated fashion, has also been a key player in and of itself. International state strategies—from formal foreign policies to more subtle state interventions—have had a very considerable impact on the area of human rights. Not only did the state hand over sovereignty— often reluctantly—to these international bodies and conventions, but it also provided the manpower and legitimacy to do so. On the internal level, the struggle over human rights was manifest as a traditional political contest also engaging NGOs, as well as a struggle within the state itself between institutions and other state actors seeking to adopt and control the changing and increasingly powerful subject of human rights (Simpson 2004). These characteristics—the historically constructed position of human rights in the state and human rights’ standing in the constant struggle over the definition

Towards a Reflexive Sociology of Human Rights 99 of the state—clearly make the object of study practically inseparable from an analysis of the transformation of the state. Yet, as argued above, any attempt at understanding the interdependency between state and non-state practices in the area of human rights almost immediately raises the question of the role and position of law and jurists as both the means and the agents of the rise of modern human rights. By being the officialised experts of the law, as well as political actors particularly well situated with respect to the specific forms of politics and ideology inherent to human rights, jurists have carved out a central intermediary position for themselves, situated precisely between the state and civil society. Further underlining their distinct position in this regard, jurists’ preferred means of action, the law, has instigated a twin effect on the structuration of the subject area: they have long acted as political advocates of human rights, yet at the same time their practices have contributed to a neutralisation and autonomisation of this form of politics and quasi-law by their attachment to the rule of law. In socio-legal terms, jurists have helped differentiate and transform the political discourses of human rights into legal discourse and eventually law, as well as having used their specific legal savoir-faire to continuously enlarge and promote the political subject of human rights.

CONCLUSION

With this empirical outline of some of the key dynamics relating to the rise of the field of human rights, I have illustrated how these processes generally took place within an increasingly specific social space, which was marked by a set of particular positions and forces, many of which pre-dated the modern momentum of human rights. In other words, the history of human rights reveals the deeply societal embeddedness of the mobilisations in the area and how these structures greatly influenced the evolution of the field. The objective of the reflexive sociology of human rights presented here is precisely to provide the analytical framework for rethinking relationally the social field of human rights with regard to both its internal functioning and its relationships to other fields. Such an analysis identifies the objective relationships between the positions and their properties by constructing a cartography of the field, and then employs more extensive research methods for analysing them in depth, that is, carrying out an analysis of the field’s general structures and the particularities of the positions within them. Distinct from most other forms of research in the area, such an analysis does not prescribe the contents of the field of human rights but provides a reflexive matrix for exploring them empirically. Its only slant is that the study of human rights has much to gain from a dose of sociological imagination and systematisation. However, this entails asking the usual, and for some trivial, questions of sociology, not only including questions of power and legitimacy

100 Mikael Rask Madsen but also of social class, identity and other basic social structures. If human rights are part of society, they will inevitably also be influenced by such issues. However, steering clear of mere ‘sociological reductivism’, the aim is a more specific social analysis, one that is focused on the field in question as a particular social sphere. As argued above, this is achieved, in part, by investigating the researcher’s own spontaneous classification(s) and, more generally, by ‘black-boxing’ the academic (pre)construction of the object. A similar critique is raised regarding the dominant practices in the field by essentially viewing them as contenders for defining the dominant logic and thus ‘speaking the truth’, which is often uncritically imported into academic analysis. Therefore, by objectivising the object, the aim is to construct an object of inquiry that is not only empirically solid but also sociologically coherent.

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5 Human Rights between Brute Fact and Articulated Aspiration PAUL STENNER

It could well be that our society is the outcome of a structural and semantical catastrophe in the sense meant by René Thom—that is, the result of a fundamental change in the form of stability that gives meaning to states and events. If this is so, the deconstruction of our metaphysical tradition is something that we can do now. But if so, it would be worthwhile to choose the instruments of deconstruction with sufficient care so that by using them we could gain some information about our postmetaphysical, postontological, postmodern—that is, postcatastrophical condition. (Luhmann 1993) Thus two types of character must be excluded from those effectually promoting freedom. One type belongs to those who despair of attaining any measure of truth, the Sceptics. Such temperaments can obviously have no message for those who hold that thought does count. Again the pursuit of freedom with an intolerant mentality is self-defeating. (Whitehead 1933/1935)

FRAILTY AND HUMAN RIGHTS

I

N 1993 BRYAN Turner outlined a sociological ‘theory of human rights’ (Turner 1993). There is something disarmingly quaint about this theory. Who, in a world defined by the attribute of contingency, would think of substituting a sociological foundation for the long-redundant natural law tradition (Turner 1993: 500)?1 Who, after Quine and Kuhn, Piaget and von Glaserfeld, Gödel and Spencer-Brown, Mannheim and Bourdieu, Derrida and von Förster, would try to establish as their point of departure for a sociological theory of human rights a grounding in some predetermined and incontrovertible fact about ‘human nature’? Furthermore, whilst it might be imagined that setting oneself such an improbable task would lead to the

1 ‘[N]atural law theory in its pristine form cannot easily be resurrected, but a claim about the universality of rights which is based on some theory of human nature requires a substitute for the certainties of natural law.’

106 Paul Stenner consideration of innumerable depths and complexities, and would demand intellectual gymnastics of the highest order (see, for example, Teubner 2006a), in fact Turner offers us something disarmingly ‘thin’ and ‘minimal’: something which, a little like a fashion model, ‘is thin because it avoids rich theories of human culture’ (Turner 1993: 505). Turner’s theory comes down to this: human beings are frail; social institutions are precarious; a sympathetic orientation to others follows as a consequence of this frailty and precariousness. Compared to the complexity and depth of argumentation typical of natural law theory, this gives the appearance of thin gruel indeed. This impression is not altered when human frailty is elaborated upon in terms that lead us away from the philosophical anthropology that inspired Turner (Gehlen 1988) and towards propositions that apply, it seems, to anything that lives. Thus, people are frail ‘because their lives are finite, because they typically exist under conditions of scarcity, disease and danger, and because they are constrained by physical processes of ageing and decay’ (Gehlen 1988: 491). One wonders which infinite beings, unconstrained by physical processes and free of disease and danger, Turner had in mind as a contrast case. Even given a contrast case that might give this concept of frailty meaningful content, we are still left with a theory that does not specify how one deduces from this ‘human nature’ a set of rights that is held by all people at all times whether they know it or not and whether they like it or not. And yet there is also something remarkably valuable about Turner’s offering. The value does not lie in the sociological grounding that he supplies to human rights, since, after his efforts, rights remain as conceptually grounded as moss. Rather, it lies in his avowed mission to clear the ground: ‘My purpose in this account’, he concludes, ‘can be regarded as a groundclearing exercise’ (Turner 1993: 508). In fact, his paper ends by claiming merely to contribute to a preparation of this ‘ground’ for an anticipated ‘genuinely sociological account of human rights’ (Turner 1993: 508). There is a world of difference between ‘grounding’ and ‘ground clearing’. Turner wishes to clear away the rather negative view of rights that he attributes to mainstream sociology and wishes to reopen the issue of relativism and the knotty distinction between fact and value. In Turner’s analysis, following that of Leo Strauss (Strauss 1950), sociological theory, since its inception, has conceived itself in more or less stark contrast to the normative and metaphysical tendencies of classical social theory. Marx, Durkheim and Weber, for all their differences, shared a scepticism towards such accounts and a broadly social constructionist orientation towards the concept of rights. In this sense, sociology, for the most part, is oriented towards describing and explaining rights sociologically rather than justifying them. Thus, Turner discusses: (a) Marx’s famous response to Bruno Bauer on Jewish emancipation in Germany in which he articulates his critique of ‘human rights’ as a bourgeois masking of

Human Rights—Brute Fact and Articulated Aspiration 107 economic exploitation; (b) Durkheim’s positivistic focus upon a functional analysis of social facts and rejection of the normative dimensions of justice and fairness; and (c) Weber’s descriptive account of the erosion of natural law (and loss of ‘metaphysical dignity’) through a process of positivisation which rendered obsolete any universal normative foundation for law. Under such influences, it is not surprising if the concepts ‘human’ and ‘rights’ have come to be sociologised; that is, if they came to be viewed as contingent and historically occasioned resources deployed pragmatically in various communicative settings in the context of a broader social field of power relations. Putting the two concepts together is unlikely to yield a product sociologists might, as it were, ‘believe in’ rather than describe and explain. Subsequent developments such as Mannheim’s sociology of knowledge might well reopen issues of normativity and value, but only through description and explanation of, for example, ‘utopian belief systems’ (for example, as springing from subordinate social locations) (Mannheim 1954). Likewise, adopting a Bourdieuian perspective, Madsen (chapter four, this volume) underscores the paramount importance of observing and challenging value-based predefinitions of human rights, stressing by use of Weber’s value judgement/value reference distinction that it is not the researchers’ own value of human rights that is at issue. With sociologisation, the question of ideals is thus converted from motivational impulse to factual description, albeit with all sorts of reflexive provisos. In short, the core value of Turner’s theory is arguably its tacit re-evaluation of the role of value in sociological theory (see also Habermas 1998). He wishes to ‘weed out’ that tradition of social science ‘which attempts to avoid any engagement with normative debate by aiming at a causal analysis or descriptive account of values’ (Turner 1993: 491). For Turner, this state of affairs is both scientifically unstable (since values are demonstrably at play in sociological descriptions anyway) and politically and ethically undesirable (since it is ‘unlikely to approach problems of justice within a framework of human rights discourse’). Weber, as Turner points out, recognised both ‘ideal’ and ‘material’ factors in motivation, but was also acutely aware that the plausibility of normative criteria was under attack from the positivistic, relativistic and evolutionary scepticism of the late nineteenth-century intelligensia. In the remainder of this chapter, I wish to push a little further towards the articulation of Turner’s ‘genuine sociology of human rights’. I will do so by scrutinising the fact/value distinction in various ways, and this will require a certain amount of historical and theoretical groundwork. By way of some historical observations concerning the genealogy of the sociologising tendency, I will make the case that sociologisation to date has indeed typically entailed the reduction of value to fact. I will suggest that this tendency is in fact tightly bound up with the big picture of the historical emergence of human rights. In this sense, the sociologising tendency is a key

108 Paul Stenner and strongly evaluative part of the sociological history of human rights, which therefore needs to be understood in this broader unfolding context. Finally, I will suggest that Turner’s ‘thin’ account should be considerably ‘widened’ and ‘deepened’, and to this end I will briefly introduce the littleknown sociology of Alfred North Whitehead. Based on his philosophy of process, Whitehead’s sociological observations might prove useful in articulating a broadly constructivist account which allows for the role of structurally ordered brute facts and more or less consciously articulated ideals.

FACT AND VALUE IN THE EMERGENCE OF THE RIGHTS OF MAN

The first observation about the ‘fact/value’ distinction concerns the ‘big picture’ narrative in which human rights, at least to some extent, were a reformulation of the modern ‘rights of man’. The rights of man were in turn a reformulation of the older ‘natural law’. Notwithstanding the continuities, it is the reformulations that are pertinent here. In the old European tradition (at least as summed up by Thomas Aquinas), natural law concerned the participation of the ‘rational creature’ in the perfect divine telos of creation. The various duties ascribed to variously positioned social actors were understood and justified in relation to a dominant consensus or comprehensive telos considered not just as inherently valuable, but (as God’s ‘design’) the source of all value: good is to be done and evil is to be avoided. Natural law is thus dependent upon the notion of an ‘inclusive good’ (on this notion of inclusive good and human rights, see Gamwell 2000). This is all very well so long as agreement can be reached. In Harding’s (1955) account, however, the ‘age of natural law’ collapsed in the sixteenth century following the protracted period of revolution and counter-revolution that culminated in the wars of religion (1618–48). European society was all but decimated. The religious divisions, as well as generating fanaticisms, introduced widespread doubt concerning the possibilities of a reasoned agreement about an ‘inclusive good’. This rather potent example of ‘value relativism’ thus contributed to the destruction of the plausibility of social governance based on values derived from ‘natural law’. The seventeenth-century advances in the physical sciences added to the death throes of natural law, and its rebirth in relation to a completely different and increasingly materialistic concept of nature (ie the mechanical universe associated with Isaac Newton). This transformed concept of nature illustrates the difference between the old natural law tradition and its modern equivalent, the tradition of the ‘natural rights of man’. As Niklas Luhmann puts it, ‘already in the sixteenth and seventeenth centuries protection against a direct consequence of theological controversies was sought with the help of the concept of nature’ (Luhmann

Human Rights—Brute Fact and Articulated Aspiration 109 1998: 55). One key advantage of a materialistic conception of nature, then, is the possibility that answers to any questions put to it can be interpreted objectively and in terms of cause and effect rather than overarching ‘shared values’. The modern conception of the relationship between law and nature is thus a key moment at which ‘factual’ descriptions of causality were championed against reasoned agreements about ‘value’. More importantly, modern natural rights emerged precisely as part of the pressing task of identifying common values and principles that do not depend upon agreement concerning a higher ‘inclusive good’. It is thus no surprise that one of the key origins of modern natural rights lies in Hugo Grotius’ writings on international conflicts (see Gamwell 2000; Outler 1955; Schneewind 1998). The problem of this ‘modern’ natural law was how to define the mutual obligations necessary for peace given the assumption of differing inclusive values and interests. Are there moral qualities of personhood that we can expect to be respected even in the absence of a shared higher good? Hobbes, of course, developed this position by arguing that we can all agree on basic issues of self-preservation (this is thus the only ‘natural right’), and laws can then be derived from this minimal starting point. To the extent that metaphysics was associated with the task of deciding upon questions of the overarching telos of nature and its relation to an inclusive good, it was destined to become increasingly irrelevant to issues of power and governance. The cost, of course, is a lack of attention to broader issues of inclusive good and a fixation on the liberty of the freely willing individual. Something is ‘good’ merely to the extent that it allows individuals to pursue what they think is ‘good’ without interfering with others. As such, following Locke and Kant, if there is an overarching value, it is the ultimate value of reasoning out one’s values for oneself. In other words, if we cannot agree on an inclusive good, at least we can agree to disagree, and ‘carry on’ on that basis. Thus, in the modern period, natural rights indicated a ‘minimal’ morality identified with a notion of human nature defined outside of any given social and political system of shared values and aims. In this somewhat paradoxical definition, rights are precisely not social values designed for the purpose of coordinating collective life as such, but ‘pre-social’ qualities that any given polity must—if it is to be considered convincingly modern—be seen to take into account. At stake in this new ‘precondition’ is thus not simply a new definition of nature, but also of human nature within nature. Already in Hobbes’ Leviathan, for example, we see the human being described as a causally determined force of nature (Hobbes 1946: part 1, chapter six). What was previously known as ‘will’ is described as ‘the last appetite in deliberating’, and reason is cast as the worldly calculations of a desire-machine. This description of the essential characteristics of human individuality in isolation from sociality can be contrasted with the older tradition in which individuality signified the indivisibility of one’s essential

110 Paul Stenner substance (ie the soul) from a broader religiously defined unity. Thus, in the older European context, human beings were thought of as fundamentally social beings whose nature was dependent on a political community (Aristotle’s zoon politikon, for instance), and natural law concerned the just coordination of the entire hierarchically structured field of the social order. This notion of a ‘minimal’ morality and politics continues to apply in the context of twentieth- and twenty-first-century human rights ‘proper’. Today, it is arguably the source of much criticism. Authors such as Wendy Brown and Slavoj Žižek, for instance, have criticised the ‘anti-political’ stance of human rights activity that presents itself as a pure defence of the innocent and powerless against power (Brown 1995). As Žižek puts it: ‘The purely humanitarian, anti-political politics of merely preventing suffering thus amounts to an implicit prohibition on elaborating a positive collective project of socio-political transformation’ (Žižek 2006: 12). I am suggesting that this tension between a minimal ‘anti-political politics’ (Teubner 2006a: 337)2 (or perhaps ‘extra-societal sociality’) and a fully blown value-based project of social and political coordination has its source in the rejection of teleology (and ‘inclusive good’) at play in the ‘fact/value’ distinction that characterises the modern concept of natural rights. Indeed, it seems that the disqualified and hence repressed overarching telos has returned in sinister form in Giorgio Agamben’s now-famous argument that the West is journeying, via the concentration camps, towards an horrific telos of ‘unprecedented bio-political disaster’ (Agamben 1998). In this horror story human rights are not just obstacles, but are fundamental to this disastrous teleology.

FACT AND VALUE IN THE EMERGENCE AND CONTINUATION OF SOCIOLOGY

The next historical observation regarding the ‘fact/value’ distinction concerns the early development of the social sciences and their replacement of the forms of classical social theory that had given rise to the modern concept of natural rights. Here, a definitive trope has been to contrast a high-blown ideal (to be associated with a pre-scientific and hence premodern past) with a practical material reality that flatly contradicts it. The distinction between value and fact implicit in modern natural rights is thus duplicated by a value-laden discourse which pours scorn upon accounts based on ‘ideals’ and praise upon accounts based on causal ‘materiality’.

2 ‘Fundamental rights demarcate from politics areas of autonomy allotted either to social institutions or to persons as social constructs.’

Human Rights—Brute Fact and Articulated Aspiration 111 The French Utopian socialist Charles Fourier (1772–1837), for example, repeatedly satirised the ‘ideals’ of the Enlightenment philosophers by juxtaposing their high-minded phrases and their dazzling promises of a society ruled by reason and grounded in the inalienable rights of man with the pitiful reality of remorseless material misery engendered in practical reality by the bourgeois world of his time (Franklin 1901). For Engels, writing in 1880 on Socialism, Utopian and Scientific, there was a similar sharp contrast to be drawn between the ‘the splendid promises of the philosophers’ and the ‘disappointing caricatures’ that were the actual social and political institutions born from Enlightenment philosophy. The following quotation is from the introduction: We know today that this kingdom of reason was nothing more than the idealized kingdom of the bourgeoisie; that this eternal Right found its realization in bourgeois justice; that this equality reduced itself to bourgeois equality before the law; that bourgeois property was proclaimed as one of the essential rights of man; and that the government of reason, the Contrat Social of Rousseau, came into being, and only could come into being, as a democratic bourgeois republic. (Engels 1980: Part I, Utopian Socialism)

The solution of Engels and Marx, of course, was to offer the strictly ‘scientific’ account of social development that they called Historical Materialism. This was made possible by the further nineteenth-century revolution in the concept of nature and, more specifically, human nature, associated with Charles Darwin. Namely (and also following Hegel’s lead), ‘for the first time the whole world, natural, historical, intellectual, is represented as a process—i.e., as in constant motion, change, transformation, development’ (Engels 1980: chapter II) Historical materialism takes explicit inspiration from the ‘English’ materialism of Duns Scotus, Bacon and Hobbes (including Locke’s supposed proof of the sensational origin of all knowledge) (Marx and Engels 2002). Following Darwin, however, it throws the static Newtonian machine into the surging river of change and process. Engels is thus quite clear that Historical Materialism designates a view of history: [W]hich seeks the ultimate cause and the great moving power of all important historic events in the economic development of society, in the changes in the modes of production and exchange, in the consequent division of society into distinct classes, and in the struggles of these classes against one another. (Engels, 1980: 1892 English Issue Introduction)

In short, if the Enlightenment philosophers had stood the world upon its head by using heady reason to challenge the unreasoned social orders of the past (ie they had emphasised values and ideals), then Marx and Engels, at least in this aspect of their work, hoped to stand the world on its head by attending exclusively to the lawful unfolding of matters of fact (‘the process of evolution of man himself’) (Marx and Engels 2002).

112 Paul Stenner The heavily ironised contrast between the ‘ideal’ and the ‘material’, and the tacit association of philosophy with the former and science with the latter is thus famously decisive in the thought of Engels and Marx. It is reflected in the foundational claim that it is social existence that determines consciousness and not the other way round, and it results in a split between fact and value that ensures their separate treatment (in this case, an exclusive focus upon the senseless agency of brute fact). The materialistic conception of history and the discovered ‘secret’ of the mechanism of surplus value would together make a science of socialism: From this point of view, the final causes of all social changes and political revolutions are to be sought, not in men’s brains, not in men’s better insights into eternal truth and justice, but in changes in the modes of production and exchange. They are to be sought, not in the philosophy, but in the economics of each particular epoch … These means are not to be invented by deduction from fundamental principles, but are to be discovered in the stubborn facts of the existing system of production. (Engels, 1980: Part III, Historical Materialism)

Marx could thus proclaim that the ‘so-called’ rights of man are, as a matter of brute fact, merely the rights of that ‘egoistic man’ of civil society who has separated himself from the community. This distinct tendency to construe ideals and values in a contrast with materiality and fact leads inevitably to the notion that the former are never real causal factors in history, whether natural history or social history. If they have a role to play, it is merely to conceal the real factors, which are always brute material facts. This way of thinking, I have suggested, rests upon an evolutionary reformulation of the distinctly modern picture of nature that rose to prominence in the proto-natural sciences of the seventeenth century before being swiftly incorporated into the proto-human and social sciences. One might imagine this tendency to have been emphatically rejected by more recent poststructuralist thinkers such as Michel Foucault and Niklas Luhmann, but a quick overview of their approaches to rights suggests otherwise. Notwithstanding the complexity and subtlety of his various writings, Foucault’s critique and study of the sciences, for example, was not offered in the name of ‘values’ over ‘facts’, but took the form of a reinvigorated positivism. As he put it in his The Archaeology of Knowledge: If, by substituting the analysis of rarity for the search for totalities, the description of relations of exteriority for the theme of the transcendental foundation, the analysis of accumulations for the question of the origin, one is a positivist, then I am quite happy to be one. (Foucault 1972: 125)

Although Foucault famously took issue with the ‘economism’ that characterised Marxism and raised the concept of ‘discourse’ to a new theoretical status, this should not be mistaken as a reopening of the fact/ value distinction. On the contrary, he operated in much of his work with a quasi-‘Darwinian’ (not forgetting Darwin’s influence on Nietzsche) notion

Human Rights—Brute Fact and Articulated Aspiration 113 of the exercise of power as a continual war in which the only role for ideals and values concerns the strategic concealment of the actual battle tactics (Atterton 1994). Foucault’s statements concerning rights are quite striking in this respect. In a lecture from 1976, he summarises his general project as having been: [I]n essence, to reverse the mode of analysis followed by the entire discourse of right from the time of the Middle Ages. My aim, therefore, was to invert it, to give due weight, that is, to the fact of domination, to expose both its latent nature and its brutality. (Foucault 1980: 95)

Right, for Foucault, is quite simply the ‘instrument of domination’ and ‘should be viewed, I believe, not in terms of a legitimacy to be established, but in terms of the methods of subjugation that it instigates’ (Foucault 1980: 96). The real business of the modern period is not some idealistic debate over sovereignty, but the introduction of forms of disciplinary power that deal with the materiality of bodies and their activities. In other words, what really occurs is a perpetual war of domination and subjugation, and if the notion of sovereignty has survived, this is only because it has allowed a system of right to be superimposed upon the mechanisms of discipline to ‘conceal its actual procedures’ (Foucault 1980: 105). Foucault’s writings, of course, were themselves thoroughly strategic, and where there is a strategy, there is some more or less articulated telos and hence some form of value (if only to ‘subvert power’). Foucault cannot be understood as operating in a ‘representational’ register where one might compare a statement of ‘fact’ to some state of affairs in the world, but, nevertheless, social processes are clearly understood in relation to the ‘facticity’ of material forces, and any telos is left implicit and restricted to a minimum. The ‘human’ has no place in this scheme, except as a discursive token used to increase or decrease anonymous and non-localisable power. Luhmann’s work on rights provides a particularly clear summation of the points at issue and provides an extreme contrast to that of Turner, who neglected this approach (Luhmann 1986 and 2004). Once again, we are dealing with a modification of social theory grounded in a new concept of nature and humanity’s place in it. Writing in the name of a sociology grounded in the radically constructivist account of nature provided by the theoretical biology of autopoietic systems, Luhmann was concerned precisely with avoiding the attempt to ground and legitimate social systems by way of arguments about the essence of the human being. Luhmann used the autopoietic notion of operative closure to make clear distinctions between organic, psychic and social system types, each of which is seen to operate—qua system—with distinct and incommensurable elements. The sociological observation is that attempts to deduce the nature of society from the logic of a supposedly essential human nature or rationality are typical characteristics of the semantics of the Aufklärung

114 Paul Stenner or Enlightenment. Whilst such propositions can be empirically observed in the historical archive, Luhmann, much like Foucault, insists that the sociologist should not take them seriously as anything other than more or less sociologically revealing propositions. Indeed, Luhmann proposes a Soziologische Aufklärung (Sociological Enlightenment) according to which the evolution of society will be understood strictly in terms of an internal logic proper to social systems themselves, and this means precisely not a logic of psychic or organic systems (ie of qualities pertaining to ‘human nature’). Social systems operate in the medium of communication, meaning that communications are the elements at play in their operations. An analysis of society must distinguish between the ‘semantics’ (‘discourse’ in Foucault’s terms) that characterise different epochs or phases (such as a mutation from medieval conceptions and communications of natural law to modern concepts of the rights of man) and the forms of social structure that condition the evolution of these semantics. More specifically, Luhmann links the semantics of Grundrechte, or modern basic rights, to the ‘catastrophic’ shift in social structure that many argue occurred around the second half of the eighteenth century (Verschraegen 2002). Luhmann perceives this in terms of a shift from the hierarchically differentiated social structure associated with feudal Europe towards a modern functionally differentiated mode of social structure. In the former arrangement, social structure is achieved through the differentiation of people into vertically ordered aggregates with fixed roles and status positions. In the semantics associated with such a structure, relations of duty are paramount, as when liegemen and the king swear reciprocal bonds of mutual commitment. Such a structure is positively inhospitable to a semantic notion of natural rights applicable—qua ‘human being’—to an individual regardless of their position in the structure. If and when reciprocal duties were not met in feudal Europe (as happened in the events that led up to Magna Carta in England), the injured party would feel demeaned not merely as an ‘individual’, but precisely as a person of a certain rank representing a specific estate (Harré 2004). Rights, when they were invoked at all, referred to an objectively given social order and were intimately connected with the notion of doing justice according to the distinct standings and contributions of distinctly situated social actors to the ‘inclusive’ social good (Stenner 2004a). A functionally differentiated social structure, by contrast, constitutes a very different milieu for the generation and circulation of semantics. Here, social structure is, for the most part, achieved not by stratification into ‘types’ of person but by way of different forms of communication. In short, society differentiates into functions systems such as law, politics, economy, science, art and education. Each sub-system is a distinct form of communication characterised by its own way of coding the world for functional purposes. Perhaps the key difference between these two tendencies of social structure

Human Rights—Brute Fact and Articulated Aspiration 115 is that, in the former, human beings are assigned more or less fixed roles, whilst a structure differentiated by communicative function arguably requires that any given individual can move freely between multiple forms of communication and can be totally defined by none (each person must be educated, buy things with money, draw upon the law when necessary etc). What reinforces one form of social structure (eg a semantics of free ‘individuality’) undermines another. This argument allows Luhmann to specify a sociological function of ‘subjective rights’ and subsequent human rights as the institutionalisation of a societal expectation of individualism. Such rights thus symbolise the new and more personalised mode of social inclusion required by the modern social structure. Gert Verschraegen explains Luhmann’s position as follows: Freedom and equality, the central concepts of all human rights declarations, symbolize the legal order which emerges together with the new, modern form of inclusion. The fundamental freedoms indicate that society in general, and different social groups in particular, have to leave it up to the individual when and why he or she wants to participate in the different function systems of society. Fundamental freedoms guarantee that each individual can decide which political party he/she is voting for, which profession he/she exercises, which newspaper he or she is reading, and so on … The rights of equality symbolize that the individual as a juridical subject is equal to all other individuals, precisely because one’s social position is not being taken into consideration. Before the law, we are first and foremost equal citizens, equally entitled to a range of rights and protections … (Verschraegen 2002: 269–70)

Luhmann thus provides an excellent example of a sociological relativisation of human rights based upon a thorough rejection of the plausibility of ‘grounding’ them in human nature. He provides a powerful reiteration of the refrain that the historical emergence and subsequent effects of rights are to be considered purely in terms of the contingencies of matters of (social) fact. If social change occurs, the sociological systems theorist will not pontificate on whether this is ‘for the better’ or ‘for the worse’, since they have already decided that any such transition is a matter of pure contingency (Teubner 2006b: 41–64). Luhmann advocates an explicitly neo-Darwinian evolutionary framework whereby any change must be observed as the outcome of the three blind Darwinian principles of variation, selection and retention. The only place for values and ideals in such a system is as facts operatively at play in the system. As Laermans and Verschraegen put it, ‘systems theory … does not want to enlighten or to advocate a more “appropriate” view … [it] only stresses the variability and principal contingency, the thorough constructivist nature of what we commonly assume as common human nature’ (Laermans and Verschraegen 2001: 121). For Luhmann, what we call ‘human beings’ have little or nothing to do with this (social) system and thus should be kept out when trying to explain or justify it. This, he argues, ‘is not to deny that we are all

116 Paul Stenner human. But to want to be human has no scientific basis. It amounts to sheer dilettantism’ (Luhmann 1986: 323). At this level, Foucault and Luhmann paint the same ahuman picture: a picture that Foucault kicks and screams at, whilst Luhmann makes wry and witty second-order observations.

FACT AND VALUE IN WHITEHEADIAN SOCIOLOGY

However, according to Alfred North Whitehead, a firm sociological grasp of the changes that make up human history requires attention to both the ‘senseless agencies’ of matter of fact and the articulated ideals of more or less conscious aspirations. Without assuming a clear-cut fact/value, object/ subject separation, Whitehead’s little-known sociology is nevertheless based upon the idea that, together, senseless agencies and formulated aspirations ‘co-operate in the work of driving mankind [sic] from its old anchorage’ (Whitehead 1933/1935: 7). A town sacked by invading hordes of barbarians or struck by a flash-flood is likely to change for the worse as a result of the violence and compulsion of these ‘senseless agencies’,3 just as an individual run down by a bus will fare badly with the matter of fact of this brutal encounter. But as well as being more or less passively subject to senseless agencies, people in cooperation can also build buses, create art from scenes of destruction and convert flows of water into forms of irrigation and energy. To use Canguilhem’s vocabulary, it is a question of being normed by the laws of others (including physical laws) or of being normative (Greco 1998). To be normative is to set one’s own norms. Typically we are presented with a fragmentary mixture of both. For Whitehead, this emphasis on formulated aspirations should never be lost sight of, since it is fundamental to what he refers to as the art of life. Any reality involving human beings—especially including societal reality—is thus likely to be the result of both of these factors. Inorganic, non-living nature, by contrast, characteristically accepts the brute compulsion of matter of fact (the sugar will dissolve in the coffee), but unlike the soil in which it rests, even the root of a plant actively selects the sources of its nourishment. In human existence—particularly that characterised by flashes of reflexive consciousness—such active selectivity is enormously 3 To pre-empt an all-too-obvious objection, Whitehead (1933/1935: 8–9) is far from naïve about relativity: ‘even the senseless side of history refuses to accept its own proper category of sheer senselessness. The rainfall and the trees are items in a majestic order of nature: Attila’s Huns had their own intellectual point of view in some respects surprisingly preferable to that of the degenerate Romans … But finally, with all this qualification, rainfall and Huns … represent brute necessity … urging forward mankind apart from any human conception of an end intellectually expressed. Fragmentary intellectual agencies co-operated blindly to turn apes into men, to turn the classic civilization into mediaeval Europe, to overwhelm the Renaissance by the Industrial Revolution. Men knew not what they did’.

Human Rights—Brute Fact and Articulated Aspiration 117 amplified, leading to the possibility of conspicuous novelty. Human beings are thus driven by thoughts, desires and dreams as well as by molecules in their bodies, legal suits delivered to their doors and guns at their heads. For Whitehead, the art of living is precisely the active modification of one’s environment. The more sophisticated the organism, the more actively and creatively it transforms its surroundings. When it comes to we human beings, this transformation and creation of the environment becomes the most prominent fact in our existence. For Whitehead, this ongoing activity is oriented by the threefold urge that goes well beyond evolutionary survival (or, for that matter, Turner’s emphasis on escaping frailty): namely: ‘(i) to live, (ii) to live well, (iii) to live better’ (Whitehead 1929/1958: 8). Aware of the spectre of senseless agency, we nevertheless strive to acquire an increase in satisfaction. Whitehead thus does not shy away from articulating a novel account of human nature in relation to nature in general (with respect to normativity, his approach can be likened in its ‘impartial partiality’ to Wiethölter’s legal theory as described by Teubner 2006a: 63). Although I cannot go into detail here (but see Stenner 2008), it is an account that rejects and replaces the old materialistic and mechanistic notions that formed modern natural rights discourse, and that designates a clear place for ‘value’ in the general concept of nature. In line with Luhmann (and indeed with a Deleuzian interpretation of Foucault), Whitehead develops an account of nature (including psychology and society) based not on brute matter but on the self-creativity of coordinated and concatenated series of operations or events which he terms actual occasions or actual entities (see especially Whitehead 1927–28/1985). In line with Luhmann, Whitehead does make distinctions between physical, organic, psychic and language-based regimes of order, but unlike Luhmann, he emphasises the relevance of the always fuzzy boundaries between such forms (on this, see also Stenner 2004b). The Whiteheadian concept of human nature does not involve defining the human being against nature as some sort of essentially rational creature, or as the product of culture or society rather than nature. On the contrary, for Whitehead it is a: [F]alse dichotomy to think of Nature and Man. Mankind is that factor in nature which exhibits in its most intense form the plasticity of nature. Plasticity is the introduction of novel law. The doctrine of the Uniformity of Nature is to be ranked with the contrasted doctrine of magic and miracle, as an expression of a partial truth. (Whitehead 1933/1935: 99)

As with many of his contemporaries, the concept of civilisation is central to Whitehead’s concerns, and for him civilisation was precisely associated with the ongoing and collective pursuit of the art of life. In the sociological section (ie Part one) of Adventures in Ideas, Whitehead thus takes on the task of examining some of the formulated ideals and energising aspirations ‘whose

118 Paul Stenner effective entertainment constitutes civilization’ (Whitehead 1933/1935: 9). He pays particular attention to the growth of what he calls ‘the idea of the essential rights of human beings, arising from their sheer humanity’ (Whitehead 1933/1935: 15). Whitehead associates the idea of human rights with a ‘humanitarian ideal’. Consistent with his philosophy of process, the emergence of this ideal is construed as a slow temporal development, surrounded on all sides by brute facts, which enable or constrain its formation and entertainment, and by competing ideals. This evolutionary process is particularly slow when it comes to the most general of concepts, which are not well served by ordinary everyday language. The notion of the supreme value of human life is one such general notion that ‘cannot be grasped singly, only one by one in isolation’ (Whitehead 1933/1935: 29). Its emergence is part of a process that takes millennia rather than minutes. Furthermore, the actualisation of any such slowly developed idea into widespread practical sociological reality must also be conceived of as a gradual and uneven process. If progress is to be successful, it must ‘creep’ ‘from point to point, testing each step’ (Whitehead 1933/1935: 24). This is not a matter of imagining that a great ideal such as humanitarianism must simply wait until enough able people are prepared to put it into practice. This, Whitehead insists, ‘is a childish view of the history of ideas’. Rather, ‘the idea in the background is promoting the gradual growth of the requisite communal customs, adequate to sustain the load of its exemplification’ (Whitehead 1933/1935: 26). Only in this manner can intellectual agencies play a role in the modification of epochs. I have laboured on these issues in order to stress that, in arguing for the real importance of ideals, Whitehead was no naïve ‘idealist’. He agrees with the Marxist proposition that the ‘plain economic facts of life’ are a decisively important ‘governing force in social development’ (Whitehead 1933/1935: 85). He does not fail to appreciate the ‘massive habits of physical nature’—the facts of birth and death, heat, cold, hunger and disease, which ‘determine the scene for the sufferings of men’ (Whitehead 1933/1935: 84). Thus, included amongst the four factors which shape the fate of human collectives are the ‘iron compulsion of nature’, and the strict necessities for a coordination of social activities and hence for some form of the ‘dominion of men over men [sic]’ (Whitehead 1933/1935: 108). Progressive societies limit the extension of such dominion to what is strictly necessary for this coordination and hence emphasise a further factor: persuasion. The most important factor, however, is the ‘inexorable law that apart from some transcendent aim the civilized life either wallows in pleasure or relapses slowly into barren repetition’ (Whitehead 1933/1935: 108). Such aims include the aspiration to replace force with persuasion and the growth of an understanding of nature which might modify its rigid limits and permit the interplay between people and natural environment to be favourably adjusted. Nevertheless, Whitehead

Human Rights—Brute Fact and Articulated Aspiration 119 warns against the tendency to ‘over-intellectualise the various types of human experience’, stressing that ‘Mankind is the animal at the head of the Primates, and cannot escape habits of mind which cling closely to habits of body’ (Whitehead 1933/1935: 58). Moments of intellectual lucidity are neither a starting point for human activity nor a continuous feature, but are more like partial flashes which illuminate a background of habitual, routinised and ‘instinctive’ repetition (what Bourdieu, following Elias and William James, called ‘habitus’). This is not a sociology based on the myth of a lucid and self-contained consciousness; on the contrary: Our consciousness does not initiate our modes of functionings. We awake to find ourselves engaged in process, immersed in satisfactions and dissatisfactions, and actively modifying, either by intensification, or by attenuation, or by the introduction of novel purposes. (Whitehead 1933/1935: 58)

It is in this spirit that Whitehead traces the emergence and diffusion of this ideal through what are now the usual suspects of Ancient Greek philosophy, the Stoic lawyers of the Roman Empire, the emergence of Christian ethical ideals, the Protestant Reformation, the humanitarianism of the eighteenth century, the modern democrats of the nineteenth century, the Wesleyan Protestant revival and the Quakers. Although Whitehead was acutely aware of some of the conservative aspects associated with those who articulated the humanitarian ideal (the brutality of Greek slavery, the backward-looking force of established religious institutions and so on), his main emphasis was on the role of this ethical ideal in shaping and energising social change. Core to the idea is the notion of the essential importance, greatness and dignity of human nature or the human soul: [T]his general idea, whether expressed or implicitly just below the surface of consciousness, embodies itself in special expression after special expression. It condescends so as to lose the magnificence of its generality, but it gains in the force of its peculiar adaptation to the concrete circumstances of a particular age. It is a hidden driving force, haunting humanity, and ever appearing in some specialized guise as compulsory on action by reason of its appeal to the uneasy conscience of the age. The force of the appeal lies in the fact that the specialized principle of immediate conduct exemplifies the grandeur of the wider truth arising from the very nature of the order of things, a truth which mankind has grown to the stature of being able to feel though perhaps as yet unable to frame in fortunate expression. (Whitehead 1933/1935: 19)

For Whitehead, this idea has served to articulate an expression of critical discontent with existing circumstances. In ethical ideas, he suggests, ‘we find the supreme example of consciously formulated ideas acting as a driving force effecting transitions from social state to social state’ (Whitehead 1933/1935: 21). The humanitarian ideal, he suggests, has provided a ‘programme for discontent’. As ‘gadflies of civilization’ (Whitehead 1933/1935: 13), such ideals have irritated people out of complacent acceptance of unjust

120 Paul Stenner circumstances, and as ‘beacons luring’ they have led the way to progress in the development of favourable order. The ideals that we cherish thus enter into the character of our actions. Rather than ‘explaining’ such ideals by recourse to some supposedly determining matter of fact, Whitehead draws attention to the ways in which ideals are implicated in the determination of what becomes matter of fact. It is less a question of being dictated to by natural laws and more a matter of gradually and painstakingly forging those laws in the furnace of the art of life: These inter-actions within society modify the social laws by modifying the occasions to which those laws apply. Impracticable ideals are a programme for reform. Such a programme is not to be criticised by immediate possibilities. Progress consists in modifying the laws of nature so that the Republic on Earth may conform to that Society to be discerned ideally by the divination of Wisdom. (Whitehead 1933/1935: 53)

Throughout the Hellenic and Hellenistic civilisations, for example, slavery was a presupposition of political theory in that it was taken for granted that a civilised social apex required the services of a large slave population. Feudal Europe is not to be confused with a slave-based society, but its civilised apex did require a large stratum of agricultural labourers whose position occasionally degenerated into de facto slavery. The presuppositions of modern political theory, by remarkable contrast, are freedom and equality, even if this has required an ‘admixture of subsequent lame qualification’ (Whitehead 1933/1935: 15). The notion of essential rights of human beings is evidently central to such modern politics and expresses the principle of equality that was part of the bourgeois revolutionaries’ rebellion against gross distributive injustices between the estates (Teubner 2006a: 331). Thus, although we can and must tell the Luhmannian story of the unprecedented (and perhaps catastrophic) novelty of modern society and of the historically specific role of human rights in this very particular social structural context, this need not prevent us from recognising that a key ingredient in that shift (other ingredients were, of course, also at play) were ideals that had long been in the process of gestation. Furthermore, their growth was a slow and painstaking process that could only begin as a thoroughly impracticable moral ideal. Plato’s writings on the fundamental value of the human soul, for example, would lead any sensitive reader to be rather critical of forced labour. And yet, as an Athenian aristocrat, Plato would have owned slaves. The standard he set may have been only the ‘dream of an un-realized world’, but it nevertheless provided a measure of the defects of society and so helped to ‘spread the infection of an uneasy spirit’ (Whitehead 1933/1935: 21). To give a second example, slavery reached a culmination of barbarism at the height of the Roman Empire, and yet the Stoic lawyers were gradually introducing legislation ‘motivated by the principle that human

Human Rights—Brute Fact and Articulated Aspiration 121 nature has essential rights’ (Whitehead 1933/1935: 17). These ideals were impracticable in the sense that, had slavery been abolished during the days of Augustus, the Empire—already sagging under the weight of its contested expansion—would surely have collapsed. As Whitehead puts it, ‘it might be better that the heavens should fall [ie that the Empire should collapse], but it is folly to ignore the fact that they will fall’ (Whitehead 1933/1935: 26). A third example is provided by that most ‘precious instrument of progress: the impracticable ethics of Christianity’ (Whitehead 1933/1935: 20). These ethics were forged in the context of a belief that the end of the world was at hand and hence that ‘practicality’ had little value compared to the ‘higher’ aims: ‘as society is now constituted a literal adherence to the moral precepts scattered throughout the Gospels would mean sudden death’ (Whitehead 1933/1935: 18). In the European context, the humanitarian ideal thus established itself based on the combined influence of philosophy, law and religion. Energising for centuries, philosophy thus contributed its generality of scope, law its constructive ability and religion its moral energy. Paradoxically, shortly after action, partly motivated by these impracticable ideals, had yielded unprecedented concrete social changes (such as the abolition of slavery), the basic humanitarian ideals flowing from these three sources were for the first time called into serious question qua ideals. Three strands of thought that were ‘in direct opposition to the humanitarian ideal’ (Whitehead 1933/1935: 35) include the doctrines of Hume, Malthus and Darwin, particularly as these were taken up into nineteenth-century social theory. Whitehead’s own value orientation is not concealed here. He systematically demolishes Malthus’ so-called ‘iron law’ and, after acknowledging that Darwin’s own work cannot be reduced to the principle of natural selection, he remarks that its uptake into social theory has given rise to a situation where ‘Instead of dwelling on the brotherhood of man, we are now directed to procure the extermination of the unfit’ (Whitehead 1933/1935: 45). If Hume’s account of the human psyche as a mere flux of impressions provided his readers with no obvious reasons why one such flux should not relate to another as a master to a slave, then Malthus and Darwin were read as supplying positive reasons precisely for the domination of the unfit by the powerful. These anti-humanitarian influences were part of an epoch in which the theme of coordination that was the keynote of the social theory of the European Middle Ages was rejected and replaced with the keynote of competition. Nations engaged in it internationally, trade was thought to flourish by way of it, nature was thought to evolve through it and limited resources were to be competed for at pain of extinction. On this point, Whitehead’s normative inclination is not dissimilar from that of Marx. He points to the ‘interests’ served and the ‘widespread misery’ produced by unconstrained industrial capitalism, and he suggests that the ‘mere doctrines of freedom, individualism, and competition, had produced a

122 Paul Stenner resurgence of something very like industrial slavery at the base of society’ (Whitehead 1933/1935: 42). Likewise, in evaluative language comparable to that of Foucault, he dismisses the legal doctrine of sovereignty based on the ‘fiction of the “Original Contract”’ as merely the state fighting behind its ‘last ditch’ (Whitehead 1933/1935: 71). The doctrine of the sole sovereignty of the state, he suggests, is both ‘shocking and unworkable … a mere way to provide policemen for the counting-houses of merchants’ (Whitehead 1933/1935: 76). Furthermore, like Luhmann, he wishes to take seriously the novel challenges posed by the distinctive structure of modern society. He does so in terms of a contrast between the ‘fixed order of … a feudal system’ in which ‘each order had its rights and duties’ (Whitehead 1933/1935: 33) and in which attachment to the land formed the basis of social recognition, and the ‘modern social system with its variety of indispensable, interlocked avocations’ (Whitehead 1933/1935: 34). Indeed, Whitehead’s conception of modern society as a ‘co-ordination of professions’ (Whitehead 1933/1935: 73) can be considered a striking anticipation of Luhmann’s notion of operatively closed sub-systems. Whitehead thus writes of the ‘clear-cut novelty’ (Whitehead 1933/1935: 79) of the modern emergence of ‘autonomous institutions limited to special purposes’, and he specifically discusses the emergence of modern science, medicine, education, law and economy. Even the notion of autopoiesis is anticipated in his philosophy of self-creating occasions that underlies the notion of the ‘organization of professions by means of self-governing institutions’ which ‘places the problem of liberty at a new angle’ (Whitehead 1933/1935: 73). He writes of the novel emergence of the legal notion of the ‘corporate person’4 and in this general context discusses the collapse of individualistic liberalism: ‘the whole concept of absolute individuals with absolute rights, and with a contractual power of forming fully defined external relations, has broken down’ (Whitehead 1933/1935: 80). It is thus important to stress that for Whitehead, individualistic liberalism is not to be identified with the humanitarian ideal, but is to be starkly contrasted with it: The self-sufficing independent man, with his peculiar property which concerns no one else, is a concept without any validity for modern civilization. Unfortunately,

4 An interesting comparison here can be made with Teubner’s recent argument in Teubner 2006a cited above. Where Whitehead called for coordination, Teubner stresses the need for an ecological concept of fundamental rights capable of coordinating the different societal subsystems, and this is in contrast to the ‘impoverished rights talk’ that effectively limits itself to the state/person relationship. A key problem in the background here is the increasing role of private transnational actors (especially multinational corporations) in gross human rights violations—ie exactly the ‘corporate persons’ that Whitehead draws attention to here. From a Whiteheadian long-term perspective, Teubner’s novel impracticable ethics ought not to be too swiftly rejected as ‘idealism’.

Human Rights—Brute Fact and Articulated Aspiration 123 this notion has been embodied in ancient moral codes applicable to Syrian deserts, and has reappeared tingeing western political theory in the commercial epoch immediately succeeding the decay of mediaeval feudalism. But it is not a practicable alternative to a slave society. The problem of social life is the problem of the co-ordination of activities, including the limits of such co-ordination. (Whitehead 1933/1935: 34)

CONCLUSION

Against the trend of modern sociology, however, Whitehead does not relinquish the sociological importance of ideals, whether in his analysis of society or in his own impartially partial stance. If our values have lost the ‘security of intellectual justification’ (Whitehead 1933/1935: 45), then Whitehead’s response is to redouble the effort to grasp our situation intellectually. Amongst other things, this requires a re-engagement with the concept of human nature and its relationship to nature and society in general, since, as I have suggested throughout this chapter, this concept shapes our activities whether we are aware of it or not. Bryan Turner has indeed reopened this question, but its re-engagement demands more than a minimal theory of human frailty: it demands no less than an account of the art of life. Furthermore, we need to critically scrutinise the association of human rights discourse with the forms of liberal individualism that can powerfully undermine it, and to reflect on the need for forms of social coordination that go well beyond the minimal ethics of human rights. Since Whitehead’s death just one year before the adoption by the UN of the Universal Declaration of Human Rights, the need for this re-engagement has taken on a new urgency. I suggested above that the moral high ground of criticality has been grasped precisely by those who wish to smash the ideas of progress, civilisation and human nature as no more than dirty tricks in an endless and meaningless game of exploitation. Sadly, such arguments are more than justified by an ever-expanding pool of examples of cynical abuses of humanity, even in the name of humanitarianism and human rights. Perhaps we ought not to be surprised if the humanitarian ideal takes up an uneasy residence in a discourse of anti-humanism when notions of ‘human nature’ are used to rationalise programmes of eugenics, when the concept of ‘civilisation’ is used to malign exploited Others, when ‘progress’ is used to legitimate the economic rape of the ‘Third World’ and when ‘human rights’ are used to justify the violent destruction of the world’s poorest countries by the most powerful. But a humanitarian ideal dressed in anti-humanist clothing risks becoming indiscernible from that which it parodies. The question is, in choosing our instruments of deconstruction, and in formulating our programmes for reform, can we

124 Paul Stenner be radical critics without drifting into scepticism and without dreaming the dream of the barbarian?: A Barbarian speaks in terms of power. He dreams of the superman with the mailed fist. He may plaster his lust with sentimental morality of Carlyle’s type. But ultimately his final good is conceived as one will imposing itself upon other wills. (Whitehead 1933/1935: 65)

REFERENCES Agamben, G (1998) Homo Sacer: Sovereign Power and Bare Life (Stanford, Stanford University Press). Atterton, P (1994) ‘Power’s Blind Struggle for Existence: Foucault, Genealogy and Darwinism’ 7 History of the Human Sciences 1–20. Brown, W (1995) States of Injury (Princeton, Princeton University Press). Engels, F (1880) Socialism, Utopian and Scientific. Available at: www.marxists.org/archive/marx/works/1880/soc-utop/index.htm. Foucault, M (1972) The Archaeology of Knowledge (London, Tavistock Publications). —— (1980) ‘Two Lectures’ in C Gordon (ed), Power/Knowledge: Selected Interviews and Other Writings by Michel Foucault (New York, Harvester Press). Franklin, J (1901) Selections from the Works of Fourier (London, Swan Sonnenschein). Gamwell, FI (2000) ‘The Purpose of Human Rights’ 29 Process Studies 322. Gehlen, A (1988) Man: His Nature and Place in the World (New York, Columbia University Press). Greco, M (1998) ‘Between Social and Organic Norms: Reading Canguilhem and “Somatization”’ 27 Economy and Society 234. Habermas, J (1998) Between Facts and Norms (London, MIT Press). Harré, R (2004) ‘An Ontology for Duties and Rights’ in NJ Finkel and FM Moghaddam (eds), The Psychology of Rights and Duties: Empirical Contributions and Normative Commentaries (Washington DC, APA Books). Hobbes, T (1946) Leviathan (Oxford, Blackwell). Laermans, R and Verschraegen, G (2001) ‘Modernity and Individuality: A Sociological Analysis from the Point of View of Systems Theory’ in A van Harskamp and AW Musschenga (eds), The Many Faces of Individualism (Leuven, Peeters). Luhmann, N (1986) ‘The Individuality of the Individual: Historical Meanings and Contemporary Problems’ in TC Heller, M Sosna and DE Wellbery (eds), Reconstructing Individualism: Autonomy, Individuality and the Self in Western Thought (Stanford, Stanford University Press). —— (1993) ‘Deconstruction as Second-Order Observing’ 24 New Literary History 763. —— (1998) Observations on Modernity (Stanford, Stanford University Press). —— (2004) Law as a Social System (Oxford, Oxford University Press). Mannheim, K (1954) Ideology and Utopia: An Introduction to the Sociology of Knowledge (London, Routledge).

Human Rights—Brute Fact and Articulated Aspiration 125 Marx, K and Engels, F (2002) The Holy Family (Honolulu, Hawaii, University Press of the Pacific). Outler, AC (1955) ‘Human Rights and Obligations’ in AL Harding (ed), Natural Law and Natural Rights (Dallas, Southern Methodist University Press). Schneewind, JB (1998) The Invention of Autonomy: A History of Modern Moral Philosophy (New York, Cambridge University Press). Stenner, P (2004a) ‘Psychology and the Political: On the Psychology of Natural Right and the Political Origins of Modern Psychology’ 12 International Journal of Critical Psychology 14. —— (2004b) ‘Is Autopoietic Systems Theory Alexithymic? Luhmann and the SocioPsychology of Emotions’ 10 Soziale Systeme 159. —— (2008) ‘AN Whitehead and Subjectivity’ 22 Subjectivity 90. Strauss, L (1950) Natural Right and History (Chicago, University of Chicago Press). Teubner, G (2006a) ‘The Anonymous Matrix: Human Rights Violations by “Private” Transnational Actors’ 69 Modern Law Review 327. ——— (2006b) ‘Dealing with Paradoxes of Law: Derrida, Luhmann, Wiethölter’ in O Perez and G Teubner (eds), On Paradoxes and Inconsistencies in Law (Oxford, Hart Publishing). Turner, BS (1993) ‘Outline of a Theory of Human Rights’ 27 Sociology 489. Verschraegen, G (2002) ‘Human Rights and Modern Society: A Sociological Analysis from the Perspective of Systems Theory’ 29 Journal of Law and Society 258. Whitehead, AN (1927–28/1985) Process and Reality (New York, The Free Press). —— (1929/1958) The Function of Reason (Boston, Beacon Press). —— (1933/1935) Adventures in Ideas (London, Cambridge University Press). Žižek, S (2006) ‘Against Human Rights’ Revol68. Available at: http://libcom.org/ library/against-human-rights-zizek.

6 International Human Rights versus Democracy Promotion: On Two Different Meanings of Human Rights in US Foreign Policy NICOLAS GUILHOT*

H

UMAN RIGHTS HAVE become a topic of choice for scholars eager to emphasise the ‘power of ideas’ to discipline and civilise states. This trend has been given some visibility by a sociology of international activism that insists on the role of transnational networks in the development of global legal norms (Burgerman 1998; Keck and Sikkink 1998a, 1998b). It is also at the core of a self-proclaimed ‘social constructivism’ in international relations theory, which reasserts against the traditional realism of the discipline the importance of norms as qualifiers of power relations (Goldstein and Keohane 1993; Risse et al 1999). Indeed, human rights seem to provide an appropriate case study if one wants to suggest that principled transnational activism contributes to reinforcing the normative constraints that bear upon the state. Most works falling within the ‘social constructivist’ area generally invoke the same example: the penetration of human rights norms in US foreign policy starting in the mid-1970s. They tell a story that can be roughly summarised as follows: 1) during the 1970s and the 1980s, the ‘idea’ of human rights is promoted by networks that coalesce around principled ideas instead of interests; 2) open towards social activists, in particular those involved in the civic rights movement, but also characterised by a certain religiosity that translates into a desire to ‘moralise’ politics, the Carter administration provides a receptive environment for the human rights agenda; 3) the ‘idea’ of human rights is thus

* This chapter has benefited from the stimulating environment I found at the Centre for the Study of Human Rights of the London School of Economics, in particular from inspiring conversations with Conor Gearty. It is a slightly revised version of an article published in (2008) 15(4) Constellations: An International Journal of Critical and Democratic Theory 502.

128 Nicolas Guilhot institutionalised, both in legislative and discursive form, to the extent that it becomes a central reference of political discourse; 4) while it certainly did not show much interest in human rights, the Reagan administration sought to use the rhetoric of human rights in order to legitimise its foreign policy and to subordinate human rights to its Cold War objectives; 5) yet, in doing so, it found itself increasingly constrained to show consistency between its words and its deeds and to operate under the constraint of institutionalised human rights norms, under the pressure of ‘issue networks’:1 this ‘rhetorical entrapment’ purportedly illustrates the ‘power of ideas’. Even in its more elaborate versions, this type of explanation has two limitations. The first is typical of what British historian Herbert Butterfield has called the ‘Whig interpretation of history’: it misconstrues the past as a teleology leading to, and justifying, the current state of affairs (Butterfield 1959). The contemporary importance of human rights is immediately viewed as the result of a successful form of activism which collapses into a linear process what is actually a heterogeneous history (Moyn 2010). The recent history of human rights, from this point of view, is nothing more than the struggle between transnational, ethical, non-state actors driven by values, and state institutions led by interest calculations, and the victory of the former. The second limitation is more serious. What is implicit in this type of explanation is the idea that human rights are a set of principles capable of constraining politics from outside, without being themselves political—or, more appropriately, because they are not political. This way of understanding human rights, in turn, overlaps with an implicit political position clearly located in the tradition of liberalism: human rights are seen as natural rights given outside the political sphere and therefore as limits of this sphere. But this is only one way of conceiving rights. In the Republican tradition, and even more so in what Skinner has called the ‘Neo-Roman’ tradition, rights are seen as a product of democratic deliberation, not as a limitation of its reach.2 It is not a coincidence if the most far-reaching methodological efforts to resituate political and juridical concepts in the buzz of the public sphere and to emphasise their historical nature are to be found in the work of historians of classical republicanism (Pocock 1985; Tully 1988). This chapter draws methodological inspiration from these

1 See, for instance, the criticisms formulated by the different ‘Watch committees’ (America Watch, Asia Watch and Helsinki Watch) regarding the deliberate distortions of the annual accounts published by the State Department on the human rights situation across the world (Watch Committees/Lawyers Committee for Human Rights 1987). 2 According to Skinner, the ‘Neo-Roman’ view of liberty shares with liberalism a highly juridical conceptual lexicon, but still views political liberty as independence resulting from the active exercise of or participation in government (Skinner 1998). This tradition runs from the utilitarian or materialist critiques respectively formulated by Bentham and Marx to Hannah Arendt’s political philosophy. For a recent attempt at a synthesis, see Habermas 1998. For a thorough discussion of the tension between human rights and democracy, see Gearty 2006.

Human Rights v Democracy Promotion 129 works in order to question the standard narrative of the rise of human rights in a globalised world of transnational issue networks. Rather than an unquestionable yardstick by which politics can be judged, human rights are a political artifact. In particular, I want to suggest that the success of human rights today is the result of a long series of contested appropriations, distortions, translations and semantic shifts of this concept, resulting in a transformation of its meaning and its domain of application. What selfproclaimed ‘social constructivists’ seem to ignore, paradoxically, is that the legal and political lexicon is made up of ‘essentially contested concepts’, whose definition is at stake in a number of social and political struggles, and that their meaning can never be taken for granted, for it is constantly reshuffled by a variety of actors.3 The point is not to deny that the available normative vocabulary is indeed a constraint bearing upon political behaviour. As Skinner writes, the agent who wants to legitimise his actions must make sure that he ‘can plausibly be described in terms of a vocabulary already normative within his society’; the problem he faces, then, is that of ‘tailoring his projects in order to fit the available normative language’ (Skinner 1978: xii–xiii). But this has to be qualified further. For the same reason, the manipulation of this language becomes a crucial political stake. Skinner continues: any ‘innovating ideologist’ must indeed ‘show that a number or existing and favourable evaluative-descriptive terms can somehow be applied to his apparently untoward actions’ (Skinner 1988: 112). This transforms the referential universe of the concept and therefore its meaning. In the case of human rights, the 1980s saw such ‘innovating ideologists’ challenge the monopoly of the human rights movement over this normative vocabulary and adopt it in order to designate a set of essentially different problems. Indeed, the neoconservatives managed to detach human rights from the legalistic ground on which they had been developed and to snatch them from the grip of international law (and international lawyers). Far from being given in advance, therefore, the meaning and the content of human rights outline a semantic space laboured from within by political struggles, the stake of which is the capacity to impose a legitimate definition of human rights and therefore to derive symbolic benefits from the possibility of plausibly subsuming given policies under this label. This chapter provides a sketch of these struggles for the appropriation and the definition of human rights, and of the different political projects which sought to capitalise symbolically on human rights. This way of proceeding considerably changes the picture. Instead of having an opposition between human rights activists on the one hand and state power on the other hand, what takes shape is an internally differentiated field of human rights within which different groups of actors, including state actors, try to

3

For a definition of ‘contested concepts’ see the classical work by Connolly (1983).

130 Nicolas Guilhot establish their hegemony over the production of human rights discourse. What the smooth and seamless ‘social constructivist’ narrative does not see is that human rights provided a common language in which two antagonistic projects have been formulated: the first consisted in turning to law, and in particular international law, as a tool for limiting sovereignty, while the second equated human rights policy with the production of democratic governance. This latter project, developed as a neoconservative reaction to the liberal human rights movement, considerably transformed our understanding of human rights. However, the approach developed here takes some distance with liberal internationalist and socio-legal approaches (eg Ikenberry et al 2008). By resituating legal constructs and discourses within specific social configurations, it also critically mobilises the sociology of law developed in the wake of Bourdieu’s programmatic guidelines for a sociology of the legal field (Bourdieu 1986). Bourdieu’s seminal formulation has opened important perspectives for the sociology of law, in particular by emphasising the role of the social form of legal discourse and by locating in the specific structures of the legal field the principle explaining the development of law. But in seeking to counter a juristic representation of law as autonomous from social forces (derived from Kelsen’s theory of pure law, which Bourdieu reductively considers as the essence of the juristic vision per se), Bourdieu has been led to emphasise the social conditions for the autonomy of law. As a result, the Bourdieuan sociology of law has been set on a course that focused chiefly on the social functions of the legal form, often leaving aside the specific contents of law itself and tending to conflate the sociology of law with the sociology of jurists. More often than not, it has focused on the positions of jurists within the wider field of state power rather than on the specific efficacy of juridical constructs. Last but not least, the difficulties involved in the sociology of international law proper (analysed in Madsen 2006) have further contributed to the perpetuation of this divide and to the deficiencies of this sociology when it comes to the substance of legal doctrines. Yet, this course was not unavoidable. In fact, Bourdieu himself adumbrates the fact that the internal logic of juridical doctrines has a force of its own in determining the range of possible juridical positions at any given moment (Bourdieu 1986: 4). Rather than the superficial veneer of a specific form of social domination and of symbolic power, law must also be apprehended in the variety of its conceptual and doctrinal formulations, to the extent that they have an efficacy of their own and present various constraints to social action in the legal field. The import of doctrinal issues for the sociology of law becomes even more obvious in the case at hand: with human rights, the juristic representations have been constantly vying for supremacy with more socio-cultural and political conceptions of these universal entitlements. In fact, when the Universal Declaration of Human Rights was promulgated in 1948, international law had fallen from its inter-war

Human Rights v Democracy Promotion 131 pedestal and the Declaration was widely read as a moral statement that did not so much mobilise the language of (individual) rights as it pointed to Christian notions of humanity and equality, and therefore at a European cultural identity marker (Moyn 2009). As a result, the struggles over the meaning and the articulation of human rights are also struggles over the extent and the boundaries of the legal field itself. What is clear, however, is that these debates over ‘universal’ rights reflect specific, local contexts: the story told here focuses on the theoretical and doctrinal debates over human rights as they have been deployed in the US in the 1970s and 1980s. They mesh a specific tradition of legal activism with cultural self-images shaped by American exceptionalism that have made possible this strong tension within the field of human rights between juristic and non-juristic strategies. It would be interesting (but impossible within the confines of this chapter) to contrast this story with the development of a field of human rights in Europe on a more legalistic basis and around different sets of legal institutions, in a context deprived of such an exceptionalist imaginary (for a comparison, see Madsen 2005). The purpose of an inquiry into debates that are now 20 or 30 years old is not merely historical. By studying these two versions of human rights—human rights as international law versus human rights as democracy—before they subsequently merged, we understand better the genealogy of contemporary syntheses that seek to contain within the limits of international law the ambiguous practices of regime change and democracy promotion, and in particular the new legal ideologies of US foreign policy such as the ‘emerging right’ of humanitarian intervention or the ‘emerging democratic entitlement’, which will be analysed in the last section of this chapter. Ultimately, this genealogy of contemporary human rights allows me to conclude by formulating an hypothesis: far from pointing to an increased role of international law in international politics, human rights have actually allowed for a smooth transition between juridical and constructivist (or interventionist) conceptions of international politics. In the latter case, interventions in the name of democracy—or humanitarian reasons—are no longer constrained by law but, on the contrary, become a new source of normative production. Human rights, as paradoxical as this may sound, have thus contributed to the withering away of international law.

LIBERAL HUMAN RIGHTS: A (VERY) BRIEF SKETCH

In many ways, the second half of the 1970s was an important moment in the history of human rights. Amnesty International was awarded the 1977 Nobel Peace Prize, a significant achievement for a pioneering institution whose strategy was built upon the mobilisation of public opinion. Yet, this triumph also heralded the end of an era and of a certain activist tradition.

132 Nicolas Guilhot The field of human rights was going through a considerable evolution, as it became increasingly dominated by professionals, and in particular lawyers, who contributed to the emergence of a new generation of activist institutions, such as Helsinki Watch (1978), later transformed into Human Rights Watch (Dezalay and Garth 2002). The victory of Jimmy Carter in the 1976 US presidential elections paved the way for a relatively good—if uneven—working relationship between human rights organisations and an administration eager to close the Vietnam parenthesis and normalise US politics by reasserting the importance of international law, and whose ranks drew largely from the civil rights movement.4 Finally, human rights emerged as a truly international language as dissidents across the Soviet Union and Eastern Europe began to wield human rights against authoritarian bureaucracies in the 1970s, turning human rights into a weapon against the politicisation of everyday life or, to borrow a famous expression from the time, as a form of ‘anti-politics’ (Moyn 2010). The human rights doctrine that took shape in this particular historical constellation tended to emphasise, unsurprisingly, the most legalistic aspects of human rights. As they were defended, discussed or debated, human rights were essentially seen as a matter of international law. This predominantly legal articulation of the human rights concept certainly owes a great deal to the major role played by the American Civil Liberties Union (ACLU) in the social structuration of the field of human rights in the US. Established in 1920 as a splinter from the American Union Against Militarism, the ACLU initially reflected an activist milieu permeated by socialist and libertarian ideas. Despite these radical beginnings, the ACLU subsequently toned down its radicalism and progressively came to favour legalistic over political strategies. As the Cold War set in, it reinterpreted the defence of liberties in a way that allowed it to embrace Cold War liberalism and transformed itself into an organisation made up of professionals that entertained close relations with state institutions (Kutalas 2006). The important role the ACLU played in the civil rights movement and in the defence of anti-war protesters turned the organisation into an important provider of human rights militants. Indeed, most of the leaders of the human rights movement that took shape in the 1970s came out of the ACLU. This was true in the case of Patricia Derian, the first Assistant Secretary of State for Human Rights (1977), who was a member of the national executive committee and a former civil rights activist in Mississippi (Damico 1999), but also of Aryeh Neier, for a long time the Director of the ACLU, who founded Helsinki

4 Even though it was a convenient way to embarrass the Soviet Union, Carter’s human rights policy must however be analysed in the context of détente. By contrast, the 1974 Jackson-Vanik amendment, considered as a pioneering measure in favour of human rights, was essentially aiming at the Soviet Union and, to a lesser extent, China, since it targeted the restrictive emigration policies of socialist countries.

Human Rights v Democracy Promotion 133 Watch in 1978 and later Human Rights Watch (Neier 2003). Human rights provided a political outlet for the convergence of civil rights and pacifism into an emerging form of legal activism. This specific constellation appears clearly when one considers the social and political trajectories of the individuals staffing the first Bureau for Human Rights and Humanitarian Affairs, established in 1977 within the State Department, in particular the Deputy Assistant Secretaries. Roberta Cohen, for instance, came from the International League for Human Rights—an institution that in many respects operated as an extension of the ACLU into international affairs.5 Mark Schneider was a former Peace Corps volunteer in Salvador (1966–68) who also worked in the team of Senator Edward Kennedy (1968–77). Educated as a lawyer, Stephen Cohen was active in peace and disarmament campaigns: after graduating from Amherst, he joined the staff of Eugene McCarthy, who represented the anti-war platform at the Democratic Party primaries against Lyndon Johnson. He worked on the Moratorium to End the Vietnam War and the National Citizens Committee Concerned About the Anti-Ballistic Missile System. He joined the Policy Planning Staff in 1976, where he dealt with arms control, before joining the Bureau in 1978 (US Congress 1979: 465). These characteristics shed some light on the ideological underpinnings of institutional human rights activism in the late 1970s—proximity with the peace movement, activism in favour of development, critique of US imperialism—and explain why this new breed of diplomats was at odds with the traditional realism of the foreign service officers of the State Department. In this context, law occupied a very particular position, which further set these human rights activists apart from other foreign policymakers. Their past activism predisposed them to see law as the best weapon against abuse of power and to link progress in the field of human rights to the limitation of sovereignty through law. In a rather Kelsenian fashion, human rights was thus based upon the primacy of international law over state power (Kelsen 1992 [1934]: 122–23). This link between international law, anti-imperialism and human rights appears even more clearly in the doctrinal productions of some jurists close to the human rights movement. Richard Falk, writing in 1980, considered, for instance, that the struggle against imperialism was ‘the principal arena for realizing (or thwarting) human rights in the years ahead’. He went on to add that ‘the anti-imperial struggle must be waged to completion so as to set the stage for the subsequent realization of human rights within the state’ (Falk 1981: 7). The human rights doctrine implicit in the work of these jurists considered state 5 The International League for Human Rights (ILHR) was indeed created in 1942 by Roger Baldwin, who was the founder and the first Director of the ACLU (1920). The ILHR was created in particular because Baldwin did not manage to convince the board members to extend the activities of the ACLU at the international level (Cottrell 2000).

134 Nicolas Guilhot sovereignty as the main obstacle to the universal enforcement of human rights, and therefore considered international organisations (such as the UN) as the obvious site for developing human rights. The human rights policy that flowed from these premises was essentially a policy aiming at conforming US foreign policy to the human rights standards enshrined in international treaties and to the spirit of the UN Charter. Even though the Carter administration tried in vain to have the Senate ratify some international human rights treaties, it took a number of concrete legislative steps to subordinate foreign policy to human rights norms (Mower Jr 1987). Through a series of legal provisions or amendments to existing Acts, a number of human rights conditionalities were introduced in the field of international trade, development assistance (the 1976 Amendment of s 502B of the 1961 Foreign Assistance Act), agricultural exports, arms exports and the operations of the Import-Export Bank. The administration also established the Bureau of Human Rights and Humanitarian Affairs within the State Department, and initiated the publication of annual country reports on human rights. This liberal conception of human rights can be briefly characterised by three salient features. First, human rights are seen as a matter of international law; that is, human rights are immediately international human rights, and the two expressions are used interchangeably by most of the administration’s human rights spokespersons. As Patricia Derian observed, ‘our definition of human rights is dictated by international law’ (US House 1978: 170). These legal standards, in turn, are valid only to the extent that they are elaborated through a multilateral and consensual process: the State Department acknowledges that ‘human rights as defined by the Administration are based upon an international consensus’ (US Department of State 1978). Secondly, human rights law is fully-fledged law. With the entry into force in 1976 of the two 1966 covenants on civil and political rights, and economics, social and cultural rights, high hopes were placed in the emergence of an international human rights regime that represented a higher form of legality than national jurisdictions and that seemed increasingly enforceable. Among lawyers and activists, the dominant impression was that of a ‘positivization’ of human rights, to quote Karel Vasak, the head of the UNESCO’s Division of Human Rights and Peace (Vasak 1982). Finally, to the extent that they are universal and premised on international law, human rights recognise the juridical equality of states. In other words, human rights do not discriminate between political regimes: they are ideologically neutral. The point is to denounce human rights violations wherever they occur, independently of the nature of the political regime in place or from its geostrategic value. This strategy of ideological neutrality had been successfully employed by Amnesty International, which based its campaigns on ‘trials’ of political prisoners coming respectively from the Western bloc, the Soviet bloc and the Third World. The ‘juridicisation’ of human rights

Human Rights v Democracy Promotion 135 only exacerbated this tendency, to the extent that it contributed, at least superficially, to detaching human rights from any given political context and to endowing them with the legitimacy of international law.

BEYOND JURIDICAL FORMALISM: SOCIO-ECONOMIC RIGHTS AND DEMOCRACY

This liberal position, buttressed by an implicit ‘pure’ theory of law, was perhaps defining the mainstream, but it was also targeted by different critiques coming from its right or from its left that called into question the juridical formalism of human rights. While these critiques differ a great deal in their ideological outlook, what they have in common is a derivative conception of human rights, whereby human rights are seen as the byproduct of pre-existing structures, respectively socio-economic and political. Although it will not be addressed in this chapter, it is worthwhile to mention quickly the first of these two critiques. It took shape within the UN Human Rights Commission and reflected its changing composition: in 1967, a number of recently decolonised countries entered the Commission and were eager to assert their right to development. These new members of the Commission were instrumental in articulating what is often called the ‘second generation’ of human rights, concerned with socio-economic progress, living conditions, dignity etc, and in providing the non-aligned bloc in the General Assembly with an ideological platform (Tolley Jr 1987). While this position was sometimes close to the liberal position, in particular when it denounced imperialism and unequal power relations, it remained substantially different to the extent that it was fuelled by a critique of juridical formalism. In fact, this socio-economic understanding of human rights was based upon a materialist interpretation of law that enjoyed a degree of visibility as long as the political coalition that supported it managed to act as a coherent bloc within international institutions. It also benefited from the support of some leading human rights jurists close to the Commission, such as Philip Alston, who was at the time one of the consultants of the Human Rights Commission. Alston argued against the ‘structural blindness’ of the traditional legal approach to human rights: ‘human rights initiatives have foundered because they have sought to treat the symptoms of repression without paying adequate regard to the deeper structural problems which gave rise to the symptoms in the first place. In many instances these problems are rooted in underdevelopment or maldevelopment’ (Alston 1981: 33). This conception did not only extend human rights to social and economic rights but actually insisted that the improvement of socio-economic conditions was a prerequisite for any progress in terms of civil and political liberties. The removal of ‘structural obstacles’ and international ‘inequalities’ was thus considered as the first item in any serious human rights agenda. Yet,

136 Nicolas Guilhot starting in 1980, this brand of human rights ‘developmentalism’ rapidly declined when a number of Western delegates became new members of the Commission and struck a de facto alliance with moderate members of the non-aligned bloc and some Latin American delegates, which secured their effective control over the Commission. However, in the late 1970s, the promoters of economic development were not the only ones suggesting that human rights should be resituated in the context of deeper societal structures. The election of Ronald Reagan as President in 1980 brought to Washington a new administration, and in particular a new political cadre whose success was largely due to a deep ideological renewal of American conservatism. While it is often assumed that neoconservatives were not interested in human rights (a view that, in retrospect, appears to be completely wrong), these changes affected the field of human rights deeply, to the extent that it was now including new players and new institutions. In this respect, the reshuffling of the Bureau of Human Rights and Humanitarian Affairs is quite significant. While certain positions were left vacant, others came to be occupied by foreign service officers coming from other branches of the State Department. More significantly, however, the lead position—that of Assistant Secretary of State—was given to influential neoconservatives—first Elliott Abrams, and then Charles Fairbanks—who represented the two ‘souls’ of the neoconservative movement (the socialist and the Straussian respectively).6 At the same time, the US delegation to the UN was also taken over by a new team. Here too, the changes were very significant, in that the delegation is the institution where the relations between the US and the rest of the world are literally staged. The new team was headed by Jeane Kirkpatrick and it included a number of neoconservative ideologues and bureaucrats, such as Carl Gershman or Marc Plattner.7 Under this new leadership, the delegation became an important institution in the production of an alternative human rights doctrine. Very tellingly, with the exception of Allan Gerson, who was an international jurist and a legal counsel for Kirkpatrick at the UN, lawyers were largely absent from this political milieu. This new personnel was culturally, politically and intellectually remote from international law, and was much more at ease with ideological and political campaigns, largely shaped by the context of the Cold War. As a result, the field of human rights was not only considerably enlarged but also diversified and polarised. Besides such organisations as the ACLU or Human Rights Watch that had traditionally structured the field and defined human rights along legalistic lines, the Reagan-era Bureau of Human Rights, the US delegation and other institutions of ideological production such as the American 6

Source: US Congress (1981: 461; 1983–84: 513). On the US delegation to the UN under Reagan, see, for instance, Finger (1988) and Gerson (1991). 7

Human Rights v Democracy Promotion 137 Enterprise Institute contributed to displace the human rights debate onto a more explicitly ideological plane. The human rights doctrine that took shape within this new institutional and cultural environment reflected these changes in the social composition of the field. As legal activism was replaced by a more political activism, rooted in the culture wars of the 1960s, a more ideological understanding of human rights took shape. In neoconservative discourse, the notion of ‘human rights’ came to designate a very different set of problems. Against the liberal view of human rights as stemming from the legal formalisation of international consensus, the neoconservatives developed a fundamentally anti-juridical understanding of human rights; human rights, for them, pointed to de facto, not de jure issues. This was first and foremost a discourse of opposition to Carter’s foreign policy. It was pitted against the attempts at limiting US power by multiplying international commitments and by re-equilibrating diplomatic relations. At a deeper level, this counterdoctrine was part of a wider programme that sought to close the traumatic post-Vietnam parenthesis and to reassert US power. Finally, the new direction in human rights was also a discourse of ideological combat, in a context made tense by the intensification of the Cold War following the Soviet invasion of Afghanistan. What was at stake in the neoconservative reformulation of human rights was, in the end, the reassertion of the primacy of the national interest over the formal constraints resulting from international law. In contrast with a human rights policy that sought to use legal instruments in order to limit sovereignty, this alternative human rights doctrine was first and foremost a defence of national sovereignty.

LEGAL POSITIVISM WITH A MORAL TWIST

What do neoconservatives mean when they talk about human rights? First, they suggest that human rights refer to factual rather than normative issues. Just like the Marxists and the developmentalists, they consider that human rights are ‘rooted in structures’. But, contrary to Marxists and developmentalists, they consider that these structures are not economic but social, cultural and political. For them, fundamental rights do not exist outside a given political community, specific governmental institutions and positive—ie national—law. Human rights, in this sense, are rooted in specific dispositions and are fostered by specific institutional contexts: they are about ‘access to institutions’. Therefore, talking about ‘human rights’ ‘is to invoke a specific intellectual history, a specific set of philosophical and theological presuppositions, a specific set of historical institutions, and a specific set of interests and parties able to contend in defence of their rights and so to make them effective in the public sphere’ (Novak 1982: 81). Jeane Kirkpatrick goes even further when she writes that they are based upon ‘stabilized patterns

138 Nicolas Guilhot of human behaviour’ and that such patterns are ‘inextricably bound up with [the] identity’ of a political community (Kirkpatrick 1982: 89). Thus, institutions have a pedagogical function. Human rights, in other words, define routinised social practices: they are a matter not of international courts, for instance, but of how the police treat people; not of empty proclamations of the freedom of expression, but of the effective practice of pluralism etc. This discourse is also an explicit critique of legalistic understandings of human rights. It constantly mobilises realist critiques of legal formalism to emphasise the legal deficit of international law and to extend it to human rights. To the extent that it is deprived of secondary norms and of centralised mechanisms of enforcement, ‘the content of international law is uncertain’, as Joshua Muravchik writes (Muravchik 1986). At this level, legal validity is entirely dependent upon the consent of those who recognise it: in other words, international law is hardly law. At best, it is a ‘positive international morality’, as Austin famously suggested (Austin 1998: 127, 140–41). If liberals tended to understand human rights in a Kelsenian perspective, as a grandiose legal Stufenbau, neoconservatives usually used arguments borrowed from the tradition of legal positivism: because the existence of fundamental rights cannot be ascertained (contrary to the national rights of, say, American or French citizens), the proclamation of such rights lies outside the scope of rational discussion and ‘human rights’ can only express subjective preferences. Deprived of a rationally justifiable reference, ‘universal’ rights are bound to be politically instrumentalised by virtue of their very nature. This politicisation of human rights is precisely what neoconservatives denounced in the pretence of socialist states to justify authoritarian modernisation by reference to socio-economic rights, in the ‘double standards’ policy allegedly followed by Carter8 or in the critique of American foreign policy by the human rights movement and liberal elites. If human rights mean anything, neoconservatives argue, it is only as a presupposition of positive law—which is exactly the thesis defended by Hart after the Second World War (Hart 1955). If legal-positivistic arguments are a favoured weapon against the human rights establishment in the rhetorical arsenal of neoconservatives, it is also because this tradition tends to circumscribe law within the limits of state sovereignty—whether law depends upon the possibility of the sanction (Austin) or upon a system of primary and secondary norms that implies the existence of a national legal establishment (Hart 1997). In any case, the existence of rights is tightly subordinated to a pre-existing political community. Human rights are not formal declarations or international treaties: they essentially designate specific forms of political organisation that characterise primarily Western democracies.

8

As formulated by Kirkpatrick (1979).

Human Rights v Democracy Promotion 139 This use of legal positivism should not deceive us, for it is purely tactical. The main concern of neoconservatives is not to keep legal discussions within the limits of analytical rationality by evacuating the spectre of universal rights. Nor is it to defend the sober realism that, in the 1950s, was used by the founding fathers of international relations theory to oppose the liberal faith in law and social science—in other words, a realism intrinsically suspicious of moral crusades and confining ethics and rationality to the limited extent of the national interest. On the contrary, the point is to make explicit that human rights can only be a moral discourse, not a legal one, and more specifically the moral discourse of Western democracies. The neoconservative discourse on human rights essentially sought to relate the use of power to morality and to bypass the issue of legality. It is an anti-juridical discourse: political virtue produces its own law. What are the consequences of this shift? What are the implications of a conception of human rights that does not ground them in international law, but in concrete political communities, in positive law or in the legal foundations of existing political systems? What does it mean to say that human rights are nothing else, in the end, than a specific form of governance that characterises democratic regimes? The first consequence of this is as follows: there can be no contradiction between the preservation, the defence or the extension of such forms of governance and human rights, since the latter depend on the former. In other words, the defence of the national interest of democracies is not only compatible but also equivalent to the defence of human rights. This ‘nationalisation’ of human rights is a recurring theme of neoconservative discourse. As early as 1980, in a document of the Reagan team drafted by Charles Fairbanks (a disciple of Allan Bloom, who would later become Assistant Secretary for Human Rights 1982–84), this idea is already clearly formulated: ‘We have a right to say: what increases the power of the United States and the respect in which they are held is good for human rights’ (Fairbanks 1980). In the same spirit, Jeane Kirkpatrick writes that ‘there is no conflict between a concern for human rights and the American national interest as traditionally conceived’ (Kirkpatrick 1981: 42). Although not strictly speaking a neoconservative, Huntington added his own contribution: ‘any increase in the power or influence of the United States in world affairs generally results … in the promotion of liberty and human rights in the world’ (Huntington 1981: 38). And vice versa, ‘any victory for freedom is a victory for America’ (Muravchik 1986: 68). These are only a few examples, but they could be easily multiplied. What is important is the conceptual displacement: while human rights were theretofore considered as a bulwark against state power, they are now equated with it. The second consequence is that human rights cannot be politically or ideologically neutral—as liberals argue—since they formulate a question that touches upon the organisation of power in society and the forms of

140 Nicolas Guilhot governance, that is, upon the political regime: ‘The struggle for human rights, far from being, as Carter and his aides proclaimed, indifferent to political systems, is fundamentally a struggle about political systems’ (Muravchik 1986: 68). To the extent that human rights designate specific political practices, institutional mechanisms, positive jurisdiction, modes of governance, administrative functions etc, a human rights policy can only be a policy of regulation and transformation of governmentality. This is precisely what is outlined in the first Human Rights Report published by the Department of State under the Reagan administration: ‘It would narrow the range of action of our human rights policy excessively to limit it to responding to individual violations of human rights when they appear. This “reactive” aspect of human rights policy is essential. But it must be accompanied by a second track of positive policy with a bolder long-term aim: to assist the gradual emergence of free political systems.’ Human rights policy cannot be a policy in support of international law; it must be a policy in support of democratic governance. Its object is not the formal instance of ‘rights’, but the concrete setup of democracies. In other words, a human rights policy can only take the form of democratic engineering: it is a set of political rather than legal technologies. This is also suggested in the same document: ‘The development of liberty is, in turn, encouraged by the emergence of areas within a political system where free choice and free expression can become familiar and respected, even while they are not permitted in other parts of the political system. Among these areas where freedom can develop are labour unions, churches, independent judicial systems, bar associations and universities. Where we do not have leverage over the shape of an entire society, we can nourish the growth of freedom within such institutions’ (US Department of State 1981: 5). A human rights policy can only be a policy of democracy promotion. Far from being ‘entrapped’, as social constructivists would suggest, in the rhetoric of human rights, neoconservatives have been active interpreters of this lexicon. The human rights policy they developed is a policy that aims at shaping forms of governance in which human rights are no longer a normative, formal or external constraint, but the internal premise of governmental practices. Viewed in this light, human rights become constitutive of the political and civil order. They are to be found not in legal but in practical norms of government; they belong to specific institutional contexts and political traditions. They are inscribed in constitutional setups; they inform judiciary, legislative, governmental and societal practices. Their repository is not international institutions but the concrete thickness of governmentality—the practical organisation of power. In short, they are modes of governance, political technologies and concrete social practices that ensure the upholding of such ‘rights’ even outside the sphere of government. Promoting human rights means disseminating and institutionalising such democratic forms of governance.

Human Rights v Democracy Promotion 141 DEMOCRACY PROMOTION AND THE WITHERING AWAY OF INTERNATIONAL LAW

The emergence and rapid development of democracy promotion policies in the 1980s thus appears as the natural outgrowth and the logical consequence of the anti-juridical interpretation of human rights elaborated by the neoconservatives in power (Guilhot 2005; Hartmann 2001). The real novelty, though, does not lie in the nature of these political technologies of regime change (previously honed in the ‘cultural diplomacy’ of the Cold War, a number of development policies, international trade union cooperation or international philanthropy); rather, these technologies are, for the first time, systematised and implemented by ad hoc, specialised institutions, such as the National Endowment for Democracy, which was created in 1982. The transformation of these transnational practices into a coherent strategy has important consequences for the nature of foreign policy itself. These consequences can be expressed as follows. First, they can be described as a redefinition of foreign policy. While foreign policy traditionally dealt with states, it now deals with political regimes. It no longer addresses juridical entities, but concrete power configurations. In other words, the smooth and impermeable surface of sovereignty is replaced by the complex layering of institutions, power relations and political actors. The ‘material constitution’ of the state replaces its juridical shell. Second, the nature of international relations themselves is changing. While international law guaranteed the formal equality of states and did not carry out any discrimination based upon the characteristics of these states, at least in theory, the new course in foreign policy clearly discriminates between regimes, for example, tyrannies, illiberal democracies, failed states, liberalising democracies, rogue states etc. The formal equivalence of states is thus replaced by the open-ended and fine-grained taxonomy of modes of government, which, in turn, results in differentiated treatment. Third, democracy promotion policies mean that political regimes are targeted through political technologies aiming at achieving ‘regime change’. In other words, such policies are regulated by specific techniques, not by the protocols of international law. International relations cease to be comprised of sovereignties relating to each other through legal rules, and become instead a continuous space where different governmentalities overlap in the absence of legal mediations. The result of this ongoing transformation is paradoxical: once they are equated with ‘democracy promotion’, human rights become one of the main factors accounting for the contemporary withering away, or at least the crisis, of international law. The question that is raised by human rights is no longer that of the juridical codification of inter-state relations, but that of the flexible coordination between governmentalities. This question has taken the form of a debate about ‘global governance’, which is clearly an

142 Nicolas Guilhot issue of regulation rather than an issue of law and normativity. ‘Democracy promotion’ has much less to do with an international legal architecture than with the capillary diffusion of administrative and governmental techniques in a variety of fields, ranging from the economy or property rights to minorities. The repertoire of international law is replaced with a sort of political constructivism that appears clearly in such expressions as ‘state building’, ‘capacity building’, ‘empowerment’ etc. Therefore, it is not surprising that the emergence of democracy promotion policies has overlapped with an anti-juridical discourse. The rise of democracy promotion has indeed coincided with the suggestion that American power should not be bounded by international law, or that it is too limited by its international commitments, and that it should be able to emancipate itself from such commitments and find within itself the principle of its legitimate use. What makes democracy promotion a legitimate form of policy is certainly not the respect or the strengthening of international legality, but its beneficial intervention upon political regimes and its capacity to regulate modes of government. There is a second paradox here, since what is suggested is that the ideals of international law (and in particular the pacification of conflicts, as the ‘democratic peace thesis’ suggests) can be realised precisely by ignoring international law. The shift from human rights to democracy promotion suggests that US power should be legibus solutum: it revives the old notion of the state of exception and hybridises it with the notion of American exceptionalism.9 Of course, describing a ‘withering away’ of international law does not mean that such a process is achieved; rather, it points at a tendency that is emphasised here for the sake of argument. However, if international law has not been abolished, it maintains itself by trying to integrate, as best it can, the increasingly legitimate norm of regime change. It does so in particular by acknowledging the redefinition of human rights as an issue of state–society relations and of configuration of political power. Eroded by a half-century of anti-formalist critiques, ranging from reactionary legal scholarship (Schmitt) to its development in the US under the form of a ‘realist’ discipline of international relations (Morgenthau), international law has faced these challenges by increasingly acknowledging its deformalised, open-ended nature and its relationship to politics. International law has maintained itself by adopting what Koskenniemi has aptly described as a liberal-democratic legitimism (Koskenniemi 2002: 488–89), which is the contemporary face of a dynamic, transformative law that seeks to distinguish itself from a formalism increasingly perceived as a conservatism.10 9

On the notion of exception, see Agamben (2003) and Hardt and Negri (2004). Reacting against positivism, the ideal reconstruction of international law proposed by Rawls was already premised on the fact that the limit of law overlapped with the borders of liberal regimes (Rawls 1999). On the problems raised by the democratic entitlement thesis, see Roth (1999). 10

Human Rights v Democracy Promotion 143 As a result, international law has now assimilated as a fundamental norm the discrimination between political regimes. This phenomenon emerges as early as the 1980s, with the cross-hybridisation of the concepts of human rights and the rule of law, to the extent that both notions seem to imply each other (Lochak 2002). But the most significant attempt at defusing the tension between international law and the interventionist practices of democracy promotion has been the progressive redefinition of state sovereignty and the current attempt at conceptualising democracy as a fundamental individual right. In the first case, sovereignty has been made conditional on the state’s ‘responsibility to protect’ its own population (interestingly, the elaboration of this concept took place in the context of a request of specification of the rules for military humanitarian intervention). In the second case, the increasing acceptance of democracy promotion, even in its more robust forms, is seen as constituting a new jurisprudence, an ‘emerging norm’ of international law. This right to democratic governance, according to Thomas Frank, is about to become ‘a global entitlement, one that increasingly will be promoted and protected by collective international processes’. The configuration of the political regime at the national level is not only becoming a legitimate subject of concern for international law but, more significantly, the nature—democratic or not—of the regime defines the boundary of international law. Democracy thus becomes ‘a requirement of international law, applicable to all and implemented through global standards, with the help of regional and international organizations’ (Franck 1992: 46–47). The tendency indicated by the development of the droit d’ingérence, of humanitarian intervention and of the democratic entitlement suggests that the new political technologies associated with the promotion of human rights have become sources of normative production. In other words, they are practices that are constitutive of international law but are also the symptoms of a deep-seated transition in the nature of international law: to the extent that international law is no longer limited to the external relations between states, since it includes now considerations of their internal structures, it ceases to be international law proper and becomes, as some jurists have suggested, imperial law.

CONCLUSION: AN AMERICAN IDEAL?

This transformation has been made possible only because the repertoire of law and that of governmentality have been merged. If human rights have played a crucial role in this process, it is precisely because they has been able to span these repertoires, to overcome their heterogeneity and to conflate them. Human rights have the capacity to refer both to the normative system of international law and to concrete sets of governmental and institutional practices. The notion of human rights has thus evolved by integrating the

144 Nicolas Guilhot realist critique of universal rights. The legal deficit of international law and the indetermination of its norms have provided this critique with its main targets and with an easy way to reinterpret human rights as the empirical outcome of context-specific institutional and political practices—or, in other words, of concrete instances of good government. This critique is not new and it did not emerge with the neoconservative movement. On the contrary, it is as old as human rights and it developed in parallel with their legal elaboration. Shortly after the proclamation of the Universal Declaration of Human Rights, the same critique inspired Hannah Arendt, for instance, or the anti-juridical mood of the nascent discipline of international relations theory. In many respects, this critique is the outcome of the pessimistic mood and the bleak realism that characterised some intellectual milieus in the aftermath of the Second World War. Many thinkers and intellectuals who had experienced the collapse of the inter-war liberal order saw the legal utopia pursued by the League of Nations as the root cause of disaster. For them, the naïve idea that international law could be a bulwark against totalitarianism should be strongly resisted. Only the cold appraisal of power could produce stability (international relations theory), and only the democratic nature of national constitutional orders were in position to secure fundamental rights (positive critique of human rights). ‘We do not need to insist’, wrote Hannah Arendt: [O]n the perplexities inherent in the very concept of human rights nor on the sad inefficacy of all declarations, proclamations, or enumerations of human rights that were not immediately incorporated into positive law, the law of the land, and applied to those who happened to live there. The trouble with these rights has always been that they could not but be less than the rights of nationals, and that they were invoked only as a last resort by those who had lost their normal rights as citizens. (Arendt 1963: 149)

Looking at international law with a fair share of suspicion, Arendt’s vision of human rights contains in a nutshell all the elements that would later be developed as a challenge to the liberal-legalistic conception of human rights. In this vision, human rights come to reflect the material reality of given social relations on a delimited territory; they become a grounded nomos. Their purpose is no longer to limit sovereignty from outside by ensconcing it in legal guidelines, but to generate governmentality from within, to produce a self-limited form of government: no longer constraint, but restraint; no longer human rights, but democracy promotion. The project of establishing the rule of international law has thus been replaced by a project aimed at producing a new kind of state. Looking back at the intensity of the human rights debate in the US, it is possible to suggest that it was closely related to the core political imagination of the country itself. Indeed, if the US has managed to formulate the question of human rights as a question of democracy, it is because this formulation was largely influenced by its own constitutional experience. As Arendt reminds

Human Rights v Democracy Promotion 145 us, the question that drove the constitutional process in America was not ‘how can we limit power?’ but ‘how can we establish freedom?’ (Arendt 1963: 149). The limitation of government is not an American question— democracy is. Indeed, the limitation of sovereignty appears as an essentially European issue, raised in the course of a long process in which law was deemed to be the fittest instrument to curtail, limit and ‘civilise’ a preexisting sovereignty. The American constitutional experience, by contrast, did not consist in opposing fundamental rights to power, but in producing ‘centres of power’ on the basis of rights diffused in what Arendt called ‘the organized multitude’. It is therefore a very powerful political imagination, deeply intertwined with national identity, that neoconservatives activated when they sought, against liberals, international lawyers and international bureaucracies, to reframe human rights as a constitutive principle of positive law—or, in other words, as a revolutionary principle. This successful operation, however, was also a mystification, because it contributed to corrupting this principle from the very moment it sought to export it, as it immediately became a hegemonic prerogative. As soon as the political virtue of a democracy borne out of exceptional historical circumstances is used to justify contempt for international legality and a moral right to ignore international law, human rights become the vehicle of new forms of domination. American exceptionalism is precisely what allows the US to reshape international relations in the name of human rights and against international law. In such a situation, where, following Schmittian logic, the exception defines the rule, it is hard not to recognise a new form of hegemony. The promotion of democracy then takes the form of farcical revolutions which look much more like carefully supervised street parades than the ‘organized multitude’ cherished by Arendt.

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146 Nicolas Guilhot Connolly, WE (1983) The Terms of Political Discourse (Princeton, Princeton University Press). Cotterell, RC (2000) Roger Nash Baldwin and the American Civil Liberties Union (New York, Columbia University Press). Damico, JK (1999) From Civil Rights to Human Rights: The Career of Patricia M. Derian, PhD dissertation (Starkville, Mississippi State University). Dezalay, Y and Garth, BG (2002) The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American State (Chicago, University of Chicago Press). Falk, RA (1981) Human Rights and State Sovereignty (New York, Holmes & Meier). Fairbanks, CH (1980) Designing a New Human Rights Policy for the Reagan Administration. The President-Elect’s Transition Office. Finger, SM (1988) American Ambassadors at the UN: People, Politics and the Bureaucracy in Making Foreign Policy (New York, Holmes & Meier). Franck, TM (1992) ‘The Emerging Right to Democratic Governance’ 86 American Journal of International Law 46. Gearty, C (2006) Can Human Rights Survive? (Cambridge, Cambridge University Press). Gerson, A (1991) The Kirkpatrick Mission: Diplomacy Without Apology: America at the United Nations, 1981–1985 (New York, Free Press). Goldstein, J and Keohane, RO (eds) (1993) Ideas and Foreign Policy: Beliefs, Institutions and Political Change (Ithaca, Cornell University Press). Guilhot, N (2005) The Democracy Makers. Human Rights and the Politics of Global Order (New York, Columbia University Press). Habermas, J (1998) ‘Human Rights and Popular Sovereignty: The Liberal and Republican Version’ 7 Ratio Juris 1. Hardt, M and Negri, A (2004) Multitude: War and Democracy in the Age of Empire (New York, Penguin Press). Hart, HLA (1955) ‘Are There Any Natural Rights?’ LXIV Philosophical Review 175. —— (1997) The Concept of Law (Oxford, Clarendon). Hartmann, H (2001) ‘Human Rights Policy under Carter and Reagan, 1977–1981’ 23 Human Rights Quarterly 402. Huntington, SP (1981) ‘Human Rights and American Power’ 72(3) Commentary 37. Ikenberry, GJ, Knock, TJ, Slaughter, A-M and Smith, T (eds) (2008) The Crisis of American Foreign Policy: Wilsonianism in the Twenty-First Century (Princeton, Princeton University Press). Keck, ME and Sikkink, K (1998a) Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, Cornell University Press). —— and —— (1998b) ‘Transnational Advocacy Networks in International Relations and Regional Politics’ 51 International Social Science Journal 89–101. Kelsen, H (1992) Introduction to the problems of legal theory: a translation of the first edition of the Reine Rechtslehre or Pure theory of law (New York, Oxford University Press). Kirkpatrick, J (1979) ‘Dictatorships and Double Standards’ 68(5) Commentary 34.

Human Rights v Democracy Promotion 147 —— (1981) ‘Human Rights and American Foreign Policy’ 72(5) Commentary. —— (1982) ‘Establishing a Viable Human Rights Policy’ in HJ Wiarda (ed), Human Rights and U.S. Human Rights Policy: Theoretical Approaches and Some Perspectives on Latin America (Washington DC, American Enterprise Institute). Koskenniemi, M (2002) The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge, Cambridge University Press). Kutalas, J (2006) The American Civil Liberties Union and the Making of Modern Liberalism, 1930–1960 (Chapel Hill: University of North Carolina Press). Lochak, D (2002) Les droits de l’homme (Paris, La Découverte). Madsen, MR (2005) ‘L’émergence d’un champ des droits de l’homme dans les pays européens: enjeux professionnels et stratégies d’Etat au carrefour du droit et de la politique’ (Paris, Ecole des Hautes Etudes en Sciences Sociales). —— (2006) ‘Transnational Fields: Elements of a Reflexive Sociology of the Internationalisation of Law’ 29 Retfærd 23. Mower Jr, AG (1987) Human Rights and American Foreign Policy: The Carter and Reagan Experiences (Westport, Greenwood Press). Moyn, S (2009) ‘The First Historian of Human Rights’, unpublished paper (New York, Columbia University). —— (2010) The Last Utopia: Human Rights in History (Cambridge, MA, Harvard University Press). Muravchik, J (1986) The Uncertain Crusade: Jimmy Carter and the Dilemmas of Human Rights Policy (Lanham, Hamilton Press). Neier, A (2003) Taking Liberties: Four Decades in the Struggle for Rights (New York, Public Affairs). Novak, M (1982) ‘Human Rights and Whited Sepulchres’ in HJ Wiarda (ed), Human Rights and U.S. Human Rights Policy: Theoretical Approaches and Some Perspectives on Latin America (Washington DC, American Enterprise Institute). Pocock, JGA (1985) Virtue, Commerce and History: Essays on Political Thought and History (Cambridge, Cambridge University Press). Rawls, J (1999) The Law of Peoples (Cambridge, MA, Harvard University Press). Risse, T, Ropp, SC and Sikkink, K (eds) (1999) The Power of Human Rights: International Norms and Domestic Change (Cambridge, Cambridge University Press). Roth, BR (1999) Government Illegitimacy in International Law (Oxford, larendon). Skinner, Q (1978) The Foundations of Modern Political Thought (Cambridge, Cambridge University Press). —— (1988) ‘Analysis of Political Thought and Action’ in J Tully (ed), Meaning and Context: Quentin Skinner and His Critics (Princeton, Princeton University Press). —— (1998) Liberty Before Liberalism (Cambridge, Cambridge University Press). Tolley Jr, H (1987) The U.N. Commission on Human Rights (Boulder, Westview Press). Tully, J (ed) (1988) Meaning and Context: Quentin Skinner and His Critics (Princeton, Princeton University Press). US Congress (1979) Congressional Directory, 96th Cong, 1st sess. —— (1981) Congressionnal Directory, 97th Cong. —— (1983–84) Congressional Directory, 98th Cong.

148 Nicolas Guilhot US Department of State (1978) Human Rights and U.S. Foreign Policy. Washington DC. —— (1981) Human Rights Report, Bulletin Reprint, US Department of State, Bureau of Public Affairs, Washington DC. US House (1978) ‘Committee on International Relations’, Arms Trade in the Western Hemisphere: Hearings before the Subcommittee on Inter-American Affairs, 95th Cong, 2nd sess. Vasak, K (1982) ‘Human Rights: As a Legal Reality’ in K Vasak (ed), The International Dimensions of Human Rights (Paris, UNESCO). Watch Committees/Lawyers Committee for Human Rights (1987) Critique: A Review of the Department of State’s Country Reports on Human Rights Practices for 1986. Washington DC.

7 Towards a Socio-legal Analysis of the European Convention on Human Rights STEVEN GREER*

S

INCE THE END of the Second World War, human rights have been increasingly formalised, institutionalised, bureaucratised and judicialised, both nationally and internationally. Until comparatively recently, the study of these developments was dominated by jurists concerned with describing legal institutions, procedures and formal legal norms (see eg Moekli, Shah and Sivakumaran 2010; Rehman 2009; Tomuschat 2008). But, according to Landman, empirical political science is increasingly making contributions on three main fronts: explaining violations, conducting countryspecific plus comparative studies, and devising techniques for measurement and impact assessment, including public opinion surveys. This has led to the development of three distinct theoretical paradigms—the rational, structural and cultural (Landman 2006, 2008). Scholars of international relations are now also taking a much greater interest in human rights treaties than before (Dunne and Wheeler 1999; Goodman and Jinks 2003; Hathaway 2002; Risse, Ropp and Sikkink 1999; Simmons 2009). Sociologists have, however, been amongst the last social scientists to jump on the human rights bandwagon. This derives in no small measure from the fact that in the nineteenth and early twentieth centuries, Marx, Weber and Durkheim rejected the idea that a universal human ontology gives rise to * The author would like to acknowledge the generous award of an Overseas Travel Grant by the British Academy to enable the presentation of an earlier draft of this chapter at the workshop of the Oñati International Institute for the Sociology of Law, Towards a Sociology of Human Rights: Theoretical and Empirical Contributions, 24–25 May 2007. Another version, ‘What Impact Has the European Convention on Human Rights Really Had?’, was also presented at the Modern Law Review Seminar, Human Rights Challenges at the Rise of the 21st Century (School of Law, University of Newcastle, 24 June 2008). These papers and this chapter have drawn on material from Greer 2006, ch 2, reproduced with permission. Many thanks also to Toni and Sean Walsh, and to Leanne Jeremy, for their assistance in checking the figures in the tables.

150 Steven Greer universal individual rights. They maintained instead that individuals and value systems are constituted differently by historically and geographically variable social forces (Morris 2006; Turner 1993). The emergence of a ‘sociology of rights’ was further delayed in the latter half of the twentieth century by the development of the ‘sociology of citizenship’ (Morris 2006: 7–11; Turner 1993: 496). Unlike ‘rights’, ‘citizenship’ seemed definable in objective institutional terms, thereby bypassing difficult questions about universals in the human experience. It also appeared to be specific to the modern Western nation-state, embodied a contingent (and possibly even arbitrary) cluster of rights and had a higher profile in some modern states than in others. All of this invited sociological explanation. However, as the twentieth century progressed, the profile of human rights rose in national and international debates about law, politics and society, with the result that citizenship increasingly came to be seen as part of a wider debate about more fundamental human entitlements. Sociologists have therefore belatedly begun to regard human rights as much more worthy of analysis than they previously thought. Within this now fertile breeding ground, two main lines of possible further social-scientific inquiry into human rights can be distinguished. First, there are better prospects than before for the emergence of distinctive social theories, such as those offered by Turner, Madsen and Verschraegen amongst others (Madsen and Verschraegen in this volume; Morris 2006; Turner 1993; Verschraegen 2002). Second, the field is also much more open for ideational, empirical, methodological and comparative studies, including, for example: mapping debates about the meaning and scope of human rights as a species of the social construction of values, knowledge, communication, meaning, identity and power; refining the methods by which the human rights-related conduct of public and private actors might be reliably assessed and compared; identifying the sources of differential access to human rights by social groups under different social and political conditions; and specifying the social and political determinants which facilitate or inhibit violation (see eg Landman 2006, 2008; Morris 2006). Given these developments, social-scientific approaches to the Council of Europe and to the European Convention on Human Rights (ECHR) could, prima facie, shed valuable light on such matters as: how the character and function of the Convention could be interpreted in the context of the modernisation, bureaucratisation, constitutionalisation and judicialisation of the exercise of public power at all levels of governance in Europe; how the Council of Europe’s policy-making processes could be better understood and improved; how the growing complexity in the institutional protection of human rights at both national and pan-European levels could be better analysed and managed: and how Convention compliance could be assessed and explained. However, with a few isolated exceptions, studies of the Council of Europe and the ECHR remain overwhelmingly dominated

A Socio-legal Analysis of the ECHR 151 by lawyers and jurists with their traditional concern for normative and procedural issues and a disappointing lack of professional interest in the wider picture. Regrettably, social scientists have also not shown much interest in the Council of Europe or the Convention system, especially when compared with the mountain of social-scientific literature on the European Union (Sithole 2010: 25; some recent exceptions include Brummer 2010; Lovecy 2004: 59; MacMullen 2004; Trommer and Chari 2006; Winkler 2006). So far, the limited debate has been dominated by the related questions of why the Council of Europe and the ECHR were established and how they can be characterised. Moravcsik, for example, claims that human rights regimes— and the ECHR in particular—pose a considerable challenge to traditional ‘realist’ accounts of international relations, which maintain that states act only or largely in accordance with self-interest, that the strong tend to dominate the weak and that international institutions merely provide arenas within which national interests are asserted (Moravcsik 2000). According to this view, values such as human rights tend to be subordinate to state interests and are at best of only rhetorical significance. Idealist/normative models, on the other hand, claim that states seek internationally to pursue not only material goals but also the realisation of their own fundamental domestic political values, that these values structure both what they take to be in their interests and how they interact with each other, and that the values, institutions and processes of international institutions subtly constitute and constrain state conduct through, for example, the socialisation of members. Moravcsik also observes that international human rights regimes appear to restrict the sovereignty of liberal democracies, which already have good human rights records, without apparently giving them anything tangible in return. The realist explanation would be that, in entering an international human rights treaty, democratic states seek to further their interests by pressurising other states to conform to their standards and thus to promote easier diplomatic and other relationships with them. Idealist or normative models would, on the other hand, maintain that democratic states enter into international human rights treaties for the largely altruistic motive of persuading other non-democratic states to adhere to what the former take to be universal values. Within this perspective, ‘constructivists’ such as Checkel argue, for example, that the Council of Europe socialises members into closer adherence to its values by framing members’ identities and preferences, thereby promoting changes in national institutions and processes (see eg Checkel 1998, 2004, 2005, 2007), whereas ‘rational institutionalists’, such as Schimmelfennig et al, focus instead upon the extent to which the Council of Europe’s socialising is constrained by the fact that it is an arena in which states pursue national self-interest (Schimmelfennig et al 2006). But, as Checkel himself points out, ‘it is “both/and” and not “either/or”’ (Checkel 2007: vii; see also Brummer 2010: 294). Moravcsik,

152 Steven Greer however, argues instead for ‘republican liberalism’, a model which accepts the realist premise that states pursue self-interest in international relations, but which also maintains that the self-interest in question concerns domestic rather than international politics. In the context of post-Second World War Europe, the new (or re-established) democracies advocated a strong transnational human rights regime, not to facilitate transnational interference in their own internal affairs, but in the hope that a strong international reaction to anti-democratic developments at their own national levels would trigger the appropriate response from domestic legislative and judicial institutions and national public opinion. In the past few years, several other departures from the traditional normative/procedural approach to the ECHR have been made, but, as yet, remain in their comparative infancy. Some scholars have, for example, begun to study the European Court of Human Rights (ECtHR) from the ‘judicial politics’ perspective, a well-established paradigm in political science for the analysis of courts and judicial behaviour, particularly in the US (see eg Voeten 2007, 2008, 2011: 61). Three additional ‘socio-legal’ approaches have also been prompted by the Court’s escalating case overload crisis (for some recent contributions to the discussion about case overload, see eg Besson 2011; Greer 2008; Harmsen 2011; Helfer 2008; Leach 2006; Lester 2009; Wildhaber 2011; Wolfrum and Deutsch 2007). First, attempts have been made to consider the Convention’s achievements and failures and its principal strengths and weaknesses in a more systematic manner than hitherto (Greer 2006; Keller and Stone Sweet 2008). The former are said to include successful institutionalisation and bureaucratisation in Strasbourg, expansion to include every state in Europe except Belarus, popularity with applicants and the promotion by the ECtHR of convergence in the ‘deep structure’ of national public institutions through the domestication of Convention standards (for a fuller account, see Greer 2006). The following principal challenges and shortcomings have been identified: the virtual redundancy of the interstate complaints process; the powerlessness of both interstate and individual applications to tackle effectively large-scale systematic Convention violations such as those which have occurred in Turkey and Chechnya; and the failure of some national constitutional and legal systems to correct systemic sources of violation that the ECtHR has repeatedly condemned (Greer 2006). The second socio-legal development has been the emergence of an increasingly sophisticated debate about which goals the Court and Convention system could and should pursue—for example, individual justice, constitutional justice or legal pluralism—and what procedural and institutional reforms the various alternatives suggest (see eg Christoffersen and Madsen 2011; Greer 2006; Helfer 2008; Keller and Stone Sweet 2008: chapter 11; Krisch 2010, 2012; Madsen 2007). Third, and the focus for the remainder of this chapter, country-specific studies have begun to explore which national factors most contribute to

A Socio-legal Analysis of the ECHR 153 high and low levels of Convention compliance (Blackburn and Polakiewicz 2001; Greer 2006; Keller and Stone Sweet 2008).

ASSESSING CONVENTION COMPLIANCE

Commentators frequently lavish praise on the Council of Europe and on the ECHR for their success in defending and promoting human rights, democracy and the rule of law in Europe. For example, Drezemczewski, then Head of the Monitoring Department of the Directorate of Strategic Planning of the Council of Europe, states: That individuals can successfully plead their cases before the European Court of Human Rights, that war between France and Germany is no longer possible and that democracy is well-embedded—since the late 1970s—on the Iberian Peninsula and, more recently, in a number of countries in Central and Eastern Europe, are surely clear indicators of the historical role the Council of Europe has played in preventing human rights violations and in consolidating pluralistic democracy and respect for the Rule of Law. (Drezemczewski 2001: 139)

The assessment of Convention compliance upon which judgements such as this rest is, however, extremely difficult. Indeed, until recently, neither jurists nor social scientists showed much interest in attempting to measure national levels of compliance with international human rights treaties at all (some exceptions include Cassel 2001; Goodman and Jinks 2003; Hathaway 2002; Keith 1999; Simmons 2009). A recent debate between Hathaway, on the one hand, and Goodman and Jinks, on the other, illuminates some of the methodological problems in this field (Hathaway 2002; Goodman and Jinks 2003). Using four human rights databases and five subject areas from a broad spectrum of human rights treaties, Hathaway attempted to discover how rates of reported human rights violations (the dependent variable) correlate with ratification of human rights treaties (the independent variable). Her main, counterintuitive, conclusions are that, apart from full democracies, the ratification of a human rights treaty tends to be associated with worse, rather than better, human rights practices and that countries with poor human rights records appear to ratify human rights treaties at a higher rate than those with good records. And the position is worse still for regional regimes, because greater regional interdependence increases pressure on states to ratify treaties, whether or not they intend to adhere to them. Indeed, Hathaway found a statistically significant relationship between ratification of the ECHR and less fair trials, although not with lower levels of protection for civil liberties, two of her five themes. Hathaway maintains that the key to the solution of these problems is for treaty ratification to be made more costly for states. This might include preventing the cosmetic and symbolic dimensions dominating the instrumental by, for example, improving monitoring and enforcement.

154 Steven Greer Goodman and Jinks make several devastating criticisms of Hathaway’s study. According to them, the central weakness is her failure adequately to account for the ways, and the conditions under which, international human rights norms are incorporated into national practice. More specifically, Hathaway stands accused of not adequately addressing several related core issues. First, there are serious problems in taking reported human rights violations as an indicator of the rate of actual violations since it is well recognised in social-scientific research that recorded instances of any social phenomenon rarely tally with its true incidence. Second, a misleading picture will emerge if a deterioration in official respect for any given human right is not linked to improvements in the protection of others. For example, in the 1970s, levels of torture, imprisonment of political opponents and unfair trials appear to have declined in Latin America as governments opted for an even more serious human rights violation—disappearances—in their struggle against internal dissent. Third, when repressive regimes become less repressive, the rate of actual violations will, by definition, decline, while the rate of reported violations is likely to increase because it becomes safer for complaints to be made. Fourth, treaty ratification is only one point on a continuum of national adjustment to treaty obligations. The central empirical task, as Goodman and Jinks maintain, is not merely to discover the relationship between reported human rights violations and ratification; rather, it is to identify the conditions under which the process by which the conduct of states is brought into line with international human rights norms moves forward and those under which it stalls. Goodman and Jinks conclude that, given the lack of a fully scientific measure of the impact of human rights treaties on state conduct, the best assumption is the conventional one that human rights treaties advance rather than inhibit the cause they seek to promote. A recent empirical study by Simmons, which regrettably does not include the ECHR, shows that the ratification of international human rights treaties tends on average to correlate with improvements in human rights protection at the national level, particularly for states in periods of transition. However, Simmons acknowledges that treaty ratification does not provide ‘the most important explanation’ (Simmons 2009: 16–17, 21, 360). The assessment of Convention compliance is complicated further by the fact that there are at least three different conceptions of what this might mean. First, it could refer to decisions of the Committee of Ministers, the body entrusted with supervising the execution of the Court’s judgments, that an adverse judgment of the Court has been properly executed. Indeed, this is the sense that is usually implicitly employed by those who claim that national compliance with the Convention is high. For example, as the then President of the ECtHR, Rolv Ryssdall, stated in 1996: ‘to date judgments of the European Court of Human Rights have, I would say, not only generally but always been complied with by the Contracting States concerned. There have been delays, perhaps even some examples of what one might

A Socio-legal Analysis of the ECHR 155 call minimal compliance, but no instances of non-compliance’ (Ryssdall 1996: 67). However, the problem here is that the Committee of Ministers appears to be all too easily persuaded that the source of violation has been effectively remedied when this may not be the case. One indicator is the fact that some 70 per cent of the Court’s judgments concern violations already condemned in the same respondent states (Committee of Ministers 2009: para 16). Second, Convention compliance could also mean a ‘low-rate of official violation’, that is, that comparatively few violations have been found by the ECtHR and, before 1999, by the Committee of Ministers which also then had quasi-judicial responsibilities. However, for five main reasons, this is not an unproblematic indicator of compliance either. First, the road to judgment at Strasbourg is long and arduous. Any given applicant has less than a five per cent chance of having their complaint heard by the Court on the merits (ECtHR 2011: 155) and many more may be deterred from even making an application by a lack of awareness that it is possible to do so, by inadequate legal advice or by lack of cooperation—and even, in extreme cases, obstruction—on the part of the state authorities. Some national cultures are also more litigious than others. Second, because of the lapse in time between the events giving rise to complaints and the delivery of judgment (according to sources at the Council of Europe on average five years), the human rights record in any given state on any given date may either be better or worse than the pattern of officially designated violation on that date. Third, a finding that a Convention right has been violated often involves a finely balanced, and sometimes not a unanimous, legal judgment involving technical issues such as the scope of formal limitations upon rights and the respondent state’s ‘margin of appreciation’, the room for manoeuvre granted to national authorities by the Strasbourg institutions in choosing between a range of equally Convention-compliant alternatives. Fourth, the bald statistics give no indication of the seriousness of any given violation. Fifth, these may also represent either the breach of a Convention right of a single applicant or a systemic problem suffered by many thousands. A third conception of compliance would be the objective honouring of Convention obligations and the avoidance of significant violations, irrespective of whether or not this has led to adverse findings by the Strasbourg institutions. But the problem here is that, with few exceptions, there is no objective standard by which a state’s record of violation can be measured independently of the Convention system itself. Official killings and systematic state-sponsored torture are the only obvious exceptions which, in the final analysis, amount to grim body counts. Where they occur, it would be possible in principle to measure their incidence, although the practical problems would be considerable. Fortunately, neither type of violation is commonplace in contemporary Europe. However, because the meaning

156 Steven Greer and scope of most other Convention rights are abstract and imprecise, it is impossible even in principle to measure accurately the extent to which they have been effectively respected by any given state. The limits of Convention rights also typically have to be settled in relation to each other and in relation to legitimate public interests, including, for example, national security, the prevention of disorder or crime and the economic well-being of the country. And by their nature, these relationships hinge upon opinion and judgment rather than upon objective assessment.

EXPLAINING NATIONAL CONVENTION VIOLATION RATES

Given the insurmountable problems associated with the scientific measurement of national compliance with the Convention, how might its impact at national level be systematically analysed? The key lies in accurate, methodologically consistent, comprehensive country-specific studies from which careful and systematic generalisations can be made. While considerable progress has already been made in this field, particularly over the past decade or so, there is still much to be learned. With its 32 substantive and four general chapters, the collection of essays edited by Blackburn and Polakiewicz constituted a significant breakthrough in the early 2000s (Blackburn and Polakiewicz 2001). However, in spite of the wealth of information provided, this study suffers from several weaknesses. First, it is now dated. Second, while many of the country-specific contributions are very clear, sharply focused and thoughtful, others are opaque and lacking in depth. Some, regrettably, are even self-contradictory. Third, while most contributors provide some information about the responsiveness of national judicial and legislative processes to official findings of violation, this varies greatly in terms of insight and sophistication. Some accounts are so brief that they offer virtually no information at all, while others confine their attention to the narrow question of the execution of judgments. The net effect is a lack of reliable systematic data on the critical question of how effective these processes are in ensuring low rates of Convention violation. Fourth, although there is some speculation about which national factors affect ‘the manner and degree of the Convention’s influence’ in Member States, there is no attempt to identify systematically which are most strongly linked with high and low violation rates. A more recent collection of country-specific studies edited by Keller and Stone Sweet contributes substantially to this debate (Keller and Stone Sweet 2008). According to the editors, the study shows, for example, that the impact of the ECHR on domestic legal systems ‘varies widely across States and across time’ and that the impact of the ECtHR is also ‘broad and pervasive’ in some but ‘weak in others’ (Keller and Stone Sweet 2008: 4). As

A Socio-legal Analysis of the ECHR 157 these and other scholars argue (see eg Helfer 2008), the key to improvement in national Convention compliance lies more in the effective ‘reception’, or ‘domestification’, of the ECHR in national legal systems than in its formal incorporation. This means ensuring the Convention binds all national public authorities, ranks at least above statute in national constitutional systems, takes precedence over other competing legal norms and is capable of being invoked by individuals in litigation before national courts (Greer 2006: 321; Keller and Stone Sweet 2008: 682–83). However, the valuable study by Keller and Stone Sweet also has its limitations. For example, although each of the country-specific chapters very helpfully compares and contrasts two related states, only 18 of the Council of Europe’s 47 members are included. The focus is also limited to legal issues surrounding national reception. The ECHR’s wider impact—for example, the extent to which violations have been avoided by the assimilation of Convention standards into the culture and modus operandi of national non-judicial authorities—is not raised or addressed. Although also not without their difficulties, official violation rates nevertheless invite explanation. Table 1 shows ‘Judgments by the ECtHR Finding at Least One Violation: 1 November 1998—31 December 2011’, with countries ranked from most to least. (ECtHR (2009, 2010, 2011, 2012). Dates in brackets denote when the ECHR entered into force if later than 1 November 1998). It would, in theory, be possible to calculate the annual average violation rate as a function of both population size and national application rates, each of which is highly variable. But such an exercise would risk building in other distortions. Some national cultures are, for example, more litigious than others, and a judgment by the Court may relate to a single applicant, combine a cluster of applications or address a violation suffered by thousands, no matter how populous the respondent state. Six main conclusions can be derived from this table. First, there is an enormously wide range in official violation rates, from 2,380 for Turkey at the top to two for Andorra at the bottom. Second, as might be expected, the more populous countries tend to be higher up the table and the smaller ones lower down. But this is not a wholly consistent trend. For example, Bulgaria (7.4 million) is in 9th position, Slovenia (2 million) is in 12th position, while Germany (81.8 million) is in 19th place and Spain (46.2 million) comes 26th. Third, contrary to what might be expected, neither of the two states with the worst official violation rates, Turkey and Italy, are from the former communist zone. Indeed, Turkey’s score is over twice that for the highest-ranking former communist state, Russia, in third place. Fourth, this aside, states from both Western and Central-and-Eastern Europe are found at all violation levels except the very lowest. This may be because, fifth, it has taken longer than a decade for stable patterns to emerge in the postcommunist states which joined the Council of Europe from the mid-1990s

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

Turkey Italy Russia Ukraine Poland Romania Greece France Bulgaria Slovakia Hungary Slovenia United Kingdom Moldova Austria Croatia Czech Republic Portugal Germany Finland Belgium Serbia (03.03.2004)

1,652 1,394 605 476 548 429 392 494 211 138 151 210 187 129 142 117 130 95 66 71 76 23

1 November 1998–31 December 2008 341 61 210 126 123 153 69 20 61 38 28 7 14 29 13 16 3 17 18 28 8 14

2009

228 61 204 107 87 135 53 28 69 40 21 3 14 20 16 21 9 15 29 16 4 9

2010

159 34 121 105 54 58 69 23 52 19 33 11 8 29 7 23 19 27 31 5 7 8

2011

2,380 1,550 1,140 814 812 775 583 565 393 235 233 231 223 207 178 177 161 154 144 120 95 54

1 November 1998–31 December 2011

Table 1. Judgments by the ECtHR Finding at Least One Violation: 1 November 1998—31 December 2011

180.77 117.73 86.59 61.83 61.67 58.86 44.28 43.00 29.85 17.85 17.70 17.55 16.94 15.72 13.52 13.44 12.23 11.70 10.94 9.12 7.22 6.90

Annual average

74.7 60.8 143.0 45.6 38.1 19.0 10.8 65.4 7.4 5.4 10.0 2.0 62.3 3.6 8.4 4.3 10.5 10.6 81.8 5.4 10.8 7.1

Population (in millions)

158 Steven Greer

37. 38. 39. 40. 41. 42. 43. 44. 45. 46.

23. 24. 25. 26. 27. 28. =29. =29. 30. 31. 32. 33. 34. 35. 36.

FYRO Macedonia Azerbaijan (15.04.2002) Lithuania Spain Switzerland Cyprus Latvia The Netherlands Georgia (20.05.99) Armenia (26.04.02) Malta Luxembourg Albania Sweden Bosnia and Herzegovina (12.07.2002) Estonia Montenegro (06.06.2006) Norway Denmark Ireland San Marino Iceland Liechtenstein Monaco (30.11.2005) Andorra

Table 1. (Continued)

14 16 7 7 8 6 4 2

42 15 37 28 37 42 28 41 17 11 17 21 9 20 7 4 1 1 3 0 0 0 0 1 0

16 7 8 11 5 3 6 0 11 8 4 2 9 1 6 1 2 0 0 2 0 1 1 0 0

14 16 7 6 8 3 3 2 4 5 3 5 5 4 1 3 5 1 1 2 0 0 0 0 0

6 9 9 9 3 1 10 4 3 2 9 1 4 0 3 22 8 18 14 11 8 7 5 1 2

78 47 61 54 53 49 47 47 35 26 33 29 27 25 17 1.70 1.44 1.37 1.06 0.84 0.61 0.53 0.38 0.16 0.11

5.92 4.84 4.63 4.10 4.03 3.72 3.57 3.57 2.78 2.69 2.51 2.20 2.05 1.90 1.80 1.3 0.6 5.0 5.6 4.6 0.03 0.30 0.04 0.04 0.09

2.1 9.1 3.2 46.2 7.9 0.8 2.2 16.7 4.5 3.3 0.4 0.5 2.8 9.5 3.8

A Socio-legal Analysis of the ECHR 159

160 Steven Greer onwards. This means, sixth, that disaggregating the results for, respectively, West and East might be more illuminating. Table 2 therefore ranks Western European states according to annual average violation for the periods 1960–2000 and 1 November 1998 (when the full-time Court first started to operate) to 31 December 2011. Four main observations can be made about these figures. First, the annual average violation rate for Table 2(b) is higher for all states than their 1960–2000 score, even for those countries whose position in Table 2(b) Table 2. Annual Average of Judgments Finding at Least One Violation for Western European States (a) 1960–2000* 1. Italy (84.94)

(b) 1/11/1998–31/12/2011 1. Turkey (180.77)

2. France (18.55)

2. Italy (117.73)

3. Turkey (5.36)

3. Greece (44.28)

4. Portugal (4.29)

4. France (43.00)

5. Greece (4.02)

5. UK (16.94)

6. UK (3.91)

6. Austria (13.52)

7. Austria (3.52)

7. Portugal (11.70)

8. The Netherlands (1.48)

8. Germany (10.94)

9. Switzerland (1.30)

9. Finland (9.12)

10. Finland (1.03)

10. Belgium (7.22)

11. Belgium (0.95)

11. Spain (4.10)

12. Sweden (0.92)

12. Switzerland (4.03)

13. Spain (0.87)

13. Cyprus (3.72)

14. Germany (0.70)

14. The Netherlands (3.57)

15. Cyprus (0.58)

15. Malta (2.51)

16. Malta (0.29)

16. Luxembourg (2.20)

17. San Marino (0.25)

17. Sweden (1.90)

18. Ireland (0.22)

18. Norway (1.37)

19. Norway (0.16)

19. Denmark (1.06)

20. Denmark (0.11)

20. Ireland (0.84)

21. Liechtenstein (0.05)

21. San Marino (0.61)

21. Luxembourg (0.05)

22. Iceland (0.53)

23. Iceland (0.04)

23. Liechtenstein (0.38)

24. Andorra (0)

24. Monaco (0.16) 25. Andorra (0.11)

*Greer

2006: 81; information derived from Blackburn and Polakiewicz 2001: Table 1.4, 26–27.

A Socio-legal Analysis of the ECHR 161 is lower than the one they held in Table 2(a). Second, the rate of increase varies substantially. The most significant is Turkey’s score for Table 2(b), which is more than 30 times that for 1960–2000. It would be premature, however, to conclude from this information alone that respect for Convention rights is deteriorating throughout Western Europe. Another possibility is that long-standing structural or systemic compliance problems are simply becoming more visible and more litigated, and that, in spite of a string of often adverse judgments from the Court, nothing much is being done about it by certain states. Third, no state moves more than six places, the biggest transitions between the two timeframes being Germany from 14th to 8th and the Netherlands from 8th to 14th. There is no surprise in finding Turkey, long regarded as having the worst human rights record in Western Europe, in third and first places in Tables 2(a) and (b) respectively. Its uniquely authoritarian, secular, centralist, executive-dominated and militaristic path to modernisation and democratisation, albeit currently undergoing significant change, is well known (see Greer 2006: 94–103; Kabog˘lu and Koutnatzis 2008; Özdek and Karacaog˘lu 2001). The fact that Italy comes top of Table 2(a) and second in Table 2(b) is no surprise either. Its problems with breaches of the right to fair trial under Article 6 stemming from unreasonable delays in the judicial process, together with problems concerning the effective domestic reception of the ECHR, are also widely recognised (Greer 2006: 103–05; Merriggiola 2001; Soriano 2008). However, it is much less clear why, given its long historical record of championing the human rights cause, France should come so close to the top of both violation tables. This paradox is best explained by the lack of an individual right of constitutional complaint, together with an historic reluctance on the part of ordinary French courts, albeit currently also undergoing rapid change, to apply Convention standards as rigorously or as consistently as they might (Abdelgawad and Weber 2008; Dupré 2001; Greer 2006: 87–93). There are few surprises either about the low-violation states in both Tables 2(a) and (b). The ‘micro states’ of Andorra, Cyprus, Iceland, Liechtenstein, Luxembourg, Malta, Monaco and San Marino belong in a special category. Since each has less than a million inhabitants—with the populations of Andorra, Liechtenstein, Monaco and San Marino not even reaching 100,000—the scope for Convention violation is considerably reduced. However, this is not an entirely consistent trend, as Luxembourg, with a population of only 0.5 million, has a higher violation rate in Table 2(b) than, for example, Denmark, Norway and Ireland, with populations of 5.6, 5.0 and 4.6 million respectively. The Scandinavian countries, the Benelux Countries and Switzerland also have long-standing reputations as stable, rights-sensitive democracies (Borghi 2001; Cameron 2001; Germer 2001; Marcus-Helmons and Marcus-Helmons 2001; Møse 2001; Rosas 2001; Thurnherr 2008; Wet 2008; Wiklund 2008; Zwaak 2001). However,

162 Steven Greer the consistent difference in violation rates between Portugal and Spain—4th and 13th respectively in Table 2(a) and 7th and 11th in Table 2(b)—is more difficult to explain, given their historical, cultural and geopolitical similarities, including their parallel transitions from dictatorship to democracy in the 1970s (Madureira 2001; Roca 2001; Soriano 2008). It would appear that the two most important factors in producing low rates of official Convention violation are a long history of respect for civil and political rights on the part of national public authorities, antedating the ECHR itself, and its effective reception at national level (Greer 2006: 132; Keller and Stone Sweet 2008: 678–89). The evidence also suggests that three factors commonly thought by jurists to be important in producing low violation rates—formal incorporation of the Convention in domestic law, an indigenous constitutional bills of rights and formal Convention-proofing of draft legislation—are not so important after all (Greer 2006: 83–87). First, although some have done so only recently, all Western European states have now incorporated the Convention into their domestic law, generally by granting it superiority over conflicting domestic legislation—as in Belgium, Denmark, Finland, France, Germany, Greece, Italy, Norway, Portugal, Spain, Sweden, Switzerland, Turkey and the UK—although without, necessarily, a judicial power of annulment. However, the micro-states aside, nearly half the remaining countries in the 1960–2000 low-violation category—Denmark, Norway, Ireland and Sweden—permitted individual applications for 40 or more years before they incorporated the Convention into their domestic law. In the two states with the highest annual violation rates—Italy and France—the Convention was incorporated in national law throughout the entire period of individual application, and in France the Convention even had a higher formal status than domestic statutes. Second, indigenous bills of rights have been available throughout the relevant period of individual application in France and Italy, and also in those states such as Germany, Ireland and Spain whose official violation scores are much lower. Third, while many states with medium and low violation rates for the 1960–2000 period—Belgium, Denmark, Finland, Ireland the Netherlands and Switzerland—routinely Convention-proof draft legislation, others in broadly the same category—such as Germany, Norway, Spain and Sweden—did not, or only began to do so recently. Table 3 shows the annual average violation rate for post-communist states. However, few if any reliable social-scientific insights can be derived from this exercise because, as already intimated, the time-frame is too short to enable clear patterns to emerge. Not surprisingly, states with the biggest populations occupy the first four places in this table, although Slovenia, with a population of only two million, rocketed to 8th place from 16th out of 17 in 1999–2005 (Greer 2006: 118). The human rights records of most post-Soviet states—including Russia, Ukraine, Moldova and the Caucasian but not the Baltic republics—are

Russia Ukraine Poland Romania Bulgaria Slovakia Hungary Slovenia Moldova Croatia Czech Republic Serbia (03.03.2004) FYRO Macedonia Azerbaijan (15.04.2002) Lithuania Latvia Georgia (20.05.1999) Armenia (26.04.2002) Albania Bosnia and Herzegovina (12.07.2002) 21. Estonia 22. Montenegro (06.06.2006)

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

210 126 123 153 61 38 28 7 29 16 3 14 16 7 8 6 11 8 9 6 4 1

14 -

2009

605 476 548 429 211 138 151 210 129 117 130 23 42 15 37 28 17 11 9 7

1 November 1998–31 December 2008

1 2

204 107 87 135 69 40 21 3 20 21 9 9 14 16 7 3 4 5 5 1

2010

3 5

121 105 54 58 52 19 33 11 29 23 19 8 6 9 9 10 3 2 4 3

2011

22 8

1140 814 812 775 393 235 233 231 207 177 161 54 78 47 61 47 35 26 27 17

1 November 1998–31 December 2011

1.70 1.44

86.59 61.83 61.67 58.86 29.85 17.85 17.70 17.55 15.72 13.44 12.23 6.90 5.92 4.84 4.63 3.57 2.78 2.69 2.05 1.80

Annual average

Table 3. Judgments Finding at Least One Violation for Post-Communist States: 1 November 1998—31 December 2011

1.3 0.6

143.0 45.6 38.1 19.0 7.4 5.4 10.0 2.0 3.6 4.3 10.5 7.1 2.1 9.1 3.2 2.2 4.5 3.3 2.8 3.8

Population (in millions)

A Socio-legal Analysis of the ECHR 163

164 Steven Greer generally not as good as those of the Central and Eastern European states, while in the Balkans, those of Slovenia, Croatia and Macedonia are generally better than those of Albania, Bosnia and Herzegovina, and Serbia (see eg Blitz 2011; Omelicheva 2010; Passini 2011; Pogány 2010; Ramet 2008; Sadurski 2009 and the other articles in this special issue of the journal: Greer 2006: 105–31; Krzyz˙anowska-Miersewska 2008; Nu berger 2008; Stokke 2006). Commentators report the following human rights problems in the post-communist zone, although in several states significant progress has already been made in tackling many of them: demands from victims that the abuses of the communist era be remedied; a weak official commitment to the rule of law; a lack of popular confidence in administrative, and in some cases judicial and law enforcement institutions; problems stemming from the association of judges with the ancien regime; a lack of proper understanding of judicial independence on the part of both judges and other public officials; an excessive judicial commitment to legal formalism; limited respect for rights and for the rule of law on the part of law enforcement agencies; problems with the enforcement of court judgments; corrupt or undemocratic public processes; harsh conditions and ill-treatment in prison and other places of detention, including psychiatric hospitals; trafficking in women and children; and problems with respect to minorities, particularly the Roma, the largest and arguably the most systematically disadvantaged ethnic group in the region (Greer 2006: 117–18). Broadly speaking, five factors seem to contribute most to the establishment of a good human rights record by post-communist Council of Europe states: a successfully revived pre-communist experience of democracy and the rule of law; an identification, on the part of both the political elite and the general public, with contemporary European political, legal and economic institutions and values; significant progress with the provision of effective legal remedies, particularly an individual complaints process to a constitutional court; an independent, rights-aware judiciary; and the lack of significant ethnic tensions, particularly violent ones (Greer 2006: 120). A further social-scientific challenge in relation to the varied picture of official Convention violations is to explain it theoretically. Hathaway distinguishes three main variants of the rational actor model (Hathaway 2002; see also Kingsbury 1998; Koh 1997). The ‘realists’, of which there are also various kinds, argue that treaty compliance is the result of a mere coincidence between treaty obligations and what states take to be in their best interests. ‘Institutionalists’ maintain that states comply with international regimes in pursuit of a reputation for good international citizenship, which can facilitate the realisation of other long-term strategic goals. ‘Liberalists’ claim that liberal democracies are more likely to comply with international obligations than other kinds of state and that they do so in order to minimise the domestic political costs of non-compliance. According to Hathaway, there are also three versions of the idealist/normative perspective. The ‘managerial

A Socio-legal Analysis of the ECHR 165 (or “social constructivist”) model’ argues that states comply with treaties because they have been socialised to do so as a result of the persuasive power of a network of international norms, international processes and mutual expectations, and that compliance failures are more likely to be the result of insufficient information than a cynical cost-benefit calculation. The ‘fairness’ model maintains that states comply with treaties when they regard them as legitimate and fair. Finally, the ‘transnational legal process’ model claims that states observe treaty obligations when treaty norms have been effectively internalised in their domestic political and legal systems. Provisionally, ‘realism’ and ‘institutionalism’ may offer an explanation for the behaviour of the states with the highest ECHR violation scores for whom membership of the Convention system arguably confers strategic benefits at low compliance costs. During the Cold War, these benefits derived from alignment with other capitalist democracies against the USSR and its allies, while in the post-Cold War environment, they appear to include the renunciation of a communist past and membership (prospective or actual) of the EU. The ‘fairness’ version of the ‘normative’ model, on the other hand, potentially offers the best explanation for those low-violation Western European states—such as Ireland, the Benelux and Scandinavian countries—which have a long indigenous rights tradition. Indeed, it may even suggest yet another version—the ‘mirror model’—according to which low rates of Convention violation are best explained by the fact that the Convention ‘mirrors’ the deepest values in specific national political and legal cultures. No single theory obviously accounts for the vast majority of the remaining states. ‘Managerial’ and ‘transnational legal process’ models might offer explanations for the behaviour of some—including perhaps Germany, Spain and the Baltic states—which made a decisive break with a discredited anti-democratic past and which have been effectively socialised into not only the Council of Europe but, for many, the EU as well. However, it is important to remember, as Checkel points out, that the ‘empirical studies demonstrate that the socialising effects of European institutions are uneven and often surprisingly weak’ (Checkel 2005: 815).

CONCLUSION

Socio-legal approaches to the Convention system offer valuable insights, complementing or challenging those offered by jurists, which could potentially shed light, for example, upon: how the purpose and function of the Convention can be understood in the context of the modernisation, bureaucratisation, constitutionalisation and judicialisation of the exercise of public power in Europe at all levels of governance; how differential official national violation rates might be explained; and which policy options might better realise the system’s underlying rationale.

166 Steven Greer The key policy issue lies in identifying the factors which are most likely to promote respect for Convention rights and to discover why this varies from state to state. Regrettably, there is no objective tool of measurement. Official violation rates invite explanation but are not unproblematic surrogates for compliance. Building on the pioneering country studies already available, more detailed, systematic and comprehensive analyses are now required to test the hypotheses suggested by the violation figures. Contrary to the received wisdom from jurists, the fact that the Convention has a privileged formal status in national constitutional and legal systems is largely irrelevant, as are indigenous bills of rights and the routine Convention-proofing of draft legislation. The five factors to which reference has already been made seem to improve the prospect of good human rights records in Central and Eastern Europe, while for all states, the most important determinant of low levels of official Convention violation appears to be the effective ‘reception’, or ‘domestification’, of the ECHR in national legal systems. This ensures that the Convention binds all national public authorities, ranks at least above statute in national constitutional systems, takes precedence over other competing legal norms and is capable of being invoked by individuals in litigation before national courts. While the Strasbourg institutions can seek to persuade states to progress towards the realisation of this goal, this is all they can do, since only states themselves can make it happen. Explaining all this theoretically presents many challenges, most of which have not yet been convincingly tackled. One of the most immediate concerns the application of the existing models concerning the treaty-related conduct of states. Prima facie, it seems that, while no single theory accounts for the behaviour of all Convention states, ‘realism’ and ‘institutionalism’ may offer the best explanations for those with high official violation rates, while the ‘fairness’ version of the normative model seems to describe best those Western European countries with low official violation rates. However, no theory obviously accounts for states such as Albania, Azerbaijan and Georgia, which have low official violation rates yet widely acknowledged problems with democratisation and human rights in spite of having been members of the Convention system for at least a decade. The behaviour of the mid-range states is not easy to explain theoretically either. Both the remit and the conclusions of this chapter are therefore by nature limited. However, it is hoped that it might nevertheless suggest how this particular dimension of the socio-legal approach to the Convention system might be developed. REFERENCES Abdelgawad, E and Weber, A (2008) ‘The Reception Process in France and Germany’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford/New York, Oxford University Press).

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168 Steven Greer Greer, S (2006) The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge, Cambridge University Press). —— (2008) ‘What’s Wrong with the European Convention on Human Rights?’ 30 Human Rights Quarterly 680. Harmsen, R (2011) ‘The Reform of the Convention System: Institutional Restructuring and the (Geo-)Politics of Human Rights’ in J Christoffersen and M Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford, Oxford University Press). Hathaway, O (2002) ‘Do Human Rights Treaties Make a Difference?’ 111 Yale Law Journal 1935. Helfer, L (2008) ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ 19 European Journal of International Law 125. Kabog˘lu, I and Koutnatzis, S-I (2008) ‘The Reception Process in Greece and Turkey’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford/New York, Oxford University Press). Keith, L (1999) ‘The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behaviour?’ 36 Journal of Peace Research 95. Keller, H and Stone Sweet, A (eds) (2008) A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford/New York, Oxford University Press). Kingsbury, B (1998) ‘The Concept of Compliance as a Function of Competing Conceptions of International Law’ 19 Michigan Journal of International Law 345. Koh, H (1997) ‘Review Essay: Why Do Nations Obey International Law?’ 106 Yale Law Journal 2599. Krisch, N (2010) Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford, Oxford University Press). —— (2012) ‘The Case for Pluralism in Postnational Law’ in G de Búrca and J Weiler (eds), The Worlds of European Constitutionalism (Cambridge, Cambridge University Press). Krzyz˙anowska-Miersewska, M (2008) ‘The Reception Process in Poland and Slovakia’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford/New York, Oxford University Press). Landman, T (2006) Studying Human Rights (Abingdon, Routledge). —— (2008) ‘Empirical Political Science and Human Rights’ 5 Essex Human Rights Review 1. Leach, P (2006) ‘Access to the European Court of Human Rights—From a Legal Entitlement to a Lottery?’ 27 Human Rights Law Journal 11. Lester, A (2009) ‘The European Court of Human Rights after 50 Years’ 461 European Human Rights Law Review. Lovecy, J (2004) ‘Framing Decisions in the Council of Europe. An Institutional Analysis’ in B Reinalda and B Verbeek (eds), Decision Making within International Organizations (London/New York, Routledge). MacMullen, A (2004) ‘Intergovernmental Functionalism? The Council of Europe in European Integration’ 26 European Integration 405.

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170 Steven Greer Roca, G (2001) ‘Spain’ in R Blackburn and J Polakiewicz (eds), Fundamental Rights in Europe: The European Convention on Human Rights and its Member States, 1950–2000 (Oxford, Oxford University Press). Rosas, A (2001) ‘Finland’ in R Blackburn and J Polakiewicz (eds), Fundamental Rights in Europe: The European Convention on Human Rights and its Member States, 1950–2000 (Oxford, Oxford University Press). Ryssdall, R (1996) ‘The Enforcement System Set Up under the European Convention on Human Rights’ in M Bulterman and M Kuijer (eds), Compliance with Judgments of International Courts: Proceedings of the Symposium Organized in Honour of Professor Henry G. Schermers by Mordenate College and the Department of International Public Law of Leiden University (The Hague, Martinus Nijhoff) 49. Sadurski, W (2009) ‘Partnering with Strasbourg, Constitutionalisation of the ECtHR, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments’ 9 Human Rights Law Review 397. Schimmelfennig, F, Engbert, S and Knobel, H (2006) International Socialization in Europe: European Organizations, Political Conditionality, and Democratic Change (Basingstoke, Palgrave Macmillan). Simmons, B (2009) Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge, Cambridge University Press). Sithole, K (2010) ‘The Council of Europe: Political Legitimation and Human Rights Protection’ (unpublished PhD thesis, University of Reading). Soriano, M (2008) ‘The Reception Process in Spain and Italy’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford/New York, Oxford University Press). Stokke, H (2006) ‘Human Rights as a Mechanism for Integration in BosniaHerzegovina’ 13 International Journal on Minority and Group Rights 263. Thurnherr, D (2008) ‘The Reception Process in Austria and Switzerland’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford/New York, Oxford University Press). Tomuschat, C (2008) Human Rights: Between Idealism and Realism, 2nd edn (Oxford, Oxford University Press). Trommer, S and Chari, R (2006) ‘The Council of Europe: Interest Groups and Ideological Mission?’ 29 West European Politics 665. Turner, B (1993) ‘Outline of a Theory of Human Rights’ 21 Sociology 489. Verschraegen, G (2002) ‘Human Rights and Modern Society: A Sociological Analysis from the Perspective of Systems Theory’ 29 Journal of Law and Society 258. —— (2013) ‘Differentiation and Inclusion: A Neglected Sociological Approach to Fundamental Rights’ in M Madsen and G Verschraegen (eds), Making Human Rights Intelligible: Towards a Sociology of Human Rights (Oxford, Hart Publishing). Voeten, E (2007) ‘The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights’ 61 International Organization 669. —— (2008) ‘The Impartiality of International Judges: Evidence from the European Court of Human Rights’102 American Political Science Review 417. —— (2011) ‘Politics, Judicial Behaviour, and Institutional Design’ in J Christoffersen and M Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford, Oxford University Press).

A Socio-legal Analysis of the ECHR 171 Wet, E de (2008) ‘The Reception Process in the Netherlands and Belgium’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford/New York, Oxford University Press). Wiklund, O (2008) ‘The Reception Process in Sweden and Norway’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford/New York, Oxford University Press). Wildhaber, L (2011) ‘Rethinking the European Court of Human Rights’ in J Christoffersen and M Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford, Oxford University Press). Winkler, G (2006) The Council of Europe. Monitoring Procedures and the Constitutional Autonomy of Member States (Vienna, Springer). Wolfrum, R and Deutsch, U (eds) (2007) The European Court of Human Rights Overwhelmed by Applications—International Workshop, Heidelberg, 17–18 December 2007 (Berlin/Heidelberg/New York, Springer). Zwaak, L (2001) ‘Netherlands’ in R Blackburn and J Polakiewicz (eds), Fundamental Rights in Europe: The European Convention on Human Rights and its Member States, 1950–2000 (Oxford, Oxford University Press).

8 In Defence of Societies JUDITH BLAU AND ALBERTO MONCADA

Society does not consist of individuals but expresses the sum of interrelations, the relations within which these individuals stand. (Karl Marx) The multitude is a multiplicity, a plane of singularities, an open set of relations, which is not homogeneous or identical with itself and bears an indistinct, inclusive relation to those outside of it. (Michael Hardt and Antonio Negri) Society … make[s] collective provision for needs which no ordinary individual, even if he works overtime all his life, can ever provide for himself. (RH Tawney)

K

ARL MARX DEFINED society as the sum of social interrelations— strands of networks and clusters of relations that form communities, workgroups and associations. Michael Hardt and Antonio Negri use the term ‘multitude’ to refer to society as ‘inconclusive constituent relations’. By stressing its organic qualities, they conclude that a multitude of people cannot be moulded as one and cannot be dominated (Hardt and Negri 2000: 103). Tawney’s conception of society is that it is much more than an aggregate of persons and therefore can provide collective benefits. Yet why is society sui generis? What can it ‘do’ that an aggregate of individual persons cannot? Why is society ‘inconclusive’? Of what use are its networks and clusters of relations? We will argue that society’s distinctive role is to embed human rights norms and practices into social relations, communities and social institutions. These norms and practices are inherently social, inconclusive in real time and encompass individuals while connecting them. Of course, society also embeds human rights violations, and once we understand that society embeds both human rights and their violations, we are in a better position to understand how we can advance the former while extinguishing the latter. The most egregious violations of human rights are rooted in intergroup conflict and the dominance of one group over another, with genocide and slavery being the most extreme examples. Yet even genocide and slavery, as abhorrent as they are, are not independent social forms, but instead are produced and rooted in society. Besides, even though genocide and slavery

174 Judith Blau and Alberto Moncada defy comprehension, they are nevertheless explicable. The Rwandan genocide was, for example, the legacy of racialised colonial policies that greatly advantaged one group over another in the distribution of land, resources and political power. At some point, an event was triggered that opened the floodgates of resentment and hate, and Rwandan society unravelled. More analytically, we can also say that genocide and slavery are quintessentially societal, and if we think in those terms, the focus is less on the perpetrators and more on societal recovery and healing.

ECONOMY AND SOCIETY

Markets are in no way comparable to genocide and slavery, but we can use the same human rights framework to analyse the relation between markets and society that we use to analyse the relation between genocide or slavery and society (or for that matter political institutions and society, government and society, schools and society etc). Markets ought to advance peoples’ well-being, enhance communities, enrich social relations, stimulate innovation and advance economic equity. To achieve this, markets must be sufficiently grounded and monitored in society. Detaching markets from society is fraught with dangers. Human rights are not inherently protected exclusively by, in or through markets. Labour must seek extra-market protections. Children need governments to protect their rights. Consumers need regulations to ensure, for example, that they can purchase safe food products. Nature depends on regulations and laws for protection against market forces. Markets are not benevolent, as Adam Smith recognised (Smith 1976: 138). True, capitalists do not usually individually victimise their workers, go to consumers’ homes to force them to buy shoddy merchandise or personally dump toxins into rivers. Rather, it is contemporary market structures, international financial arrangements and weak government initiative that allow capitalist entities to engage in these practices. The long and short of it is that contemporary markets are insufficiently embedded in society (Blau 1993). Such embeddedness is now more important in the intensively global economy than ever before. The world’s global markets are driven by an ideology, neoliberalism, which defines for itself independence from societies. Starting during the Reagan and Thatcher administrations, the idea was to promote ‘free markets’, that is, markets free from barriers such as tariffs, free from government interference, free from labour laws and, as Thatcher pointed out, free from societies—or, as she stated, ‘There is no such thing as society’ (Thatcher 1987). There are now signs that neoliberalism is in retreat, or at least finds itself on the defensive, but it still dominates in the US and neoliberal ideologues still guide American monetary, trade and development policies, multinational practices, and the policies of international financial institutions. The slogan is still ‘marketise society’.

In Defence of Societies 175 We should note here that Karl Marx never could have anticipated how markets would work in the late twentieth and early twenty-first centuries, and that globalisation (outsourcing, flexible production chains, computer technology, just-in-time technology, satellite-managed production etc) would not only greatly enhance the capabilities of owners and managers to exploit labour, but would also enhance the capabilities of multinationals to move from place to place. When they move, they leave in their wake unemployment, a degraded environment, crumbling infrastructures and very despondent citizens. Under the conditions of classical capitalism, capitalists needed to assuage and co-opt the local community because they needed a steady flow of loyal and docile workers, who for the most part were recruited from the local labour pools. That is no longer the case. Increasingly, capitalists reply on migrant labour pools and can outsource their production to factories overseas, and then nimbly move production from country to country depending on local labour and other conditions. From the capitalist’s point of view, society is the cruddy stuff that is always getting in the way when moving capital, production, equipment and goods around, and, perhaps worst yet for the capitalist, is the seedbed of labour organising. But where else except in society can human rights be achieved? There is no other place than society. Food rights, environmental rights, rights to non-discrimination, rights to equal treatment before the law and all other rights do not come out of the air. If they were fully achieved in society, they would pose obstacles for unencumbered, exploitative free markets.

A BRIEF HISTORY OF NEOLIBERALISM

The principles behind neoliberalism date back to the 1850s, when they were proposed by economists in England and France. The ‘Manchester School’ flourished at the University of Manchester, where economists developed mathematical models that they used to advance policies for free trade and the abolition of tariffs (Grampp 1993). Their counterparts at the ‘Liberal School’ at the Collège de France, meanwhile, developed what they termed laissez-faire policies (Blaug 1986). The American nineteenth-century ‘captains of industry’ and ‘robber barons’ embraced these British and French ideas and more or less successfully garnered government support for free markets, unregulated business and unrestricted trade, which is to say unfettered capitalism. Spoken as a true free marketer, Treasury Secretary Andrew Mellon gave this advice to President Herbert Hoover at the beginning of the Great Depression: ‘Liquidate labor, liquidate stocks, liquidate the farmers, liquidate real estate … [That] will purge the rottenness out of the system. High costs of living and high living will come down. People will work harder, live a more moral life. Values will be adjusted, and enterprising people will pick up the wrecks from less competent people’ (Hoover 1952: 9).

176 Judith Blau and Alberto Moncada Hoover more or less ignored Mellon, but then raised taxes, further pushing millions of American households into abject poverty. The Depression worsened, with higher rates of unemployment, home foreclosures and personal bankruptcies. The Great Depression appeared to signal the end of both the Manchester School and the French Liberal School, because when Franklin D Roosevelt became President, he successfully launched a great variety of government programmes, under the umbrella of the New Deal, including the Works Project Administration, the Social Security Act, the Civilian Conservation Corps and many others that not only pulled the country out of the Depression but also provided citizens with social and economic protections. In the context of our discussion, we could say that he not only infused society with economic resources but that he found imaginative ways of reviving a sense of collective solidarity. Many argue that he rescued capitalism in the process. This is true. It is also useful to mention that the British economist John Maynard Keynes played an exceedingly important role in influencing policies that helped recovery from the Depression. While Keynes was no radical and never said things like ‘people before profits’, his macroeconomic principles were compatible with policies that would protect citizens against inflation, recessions and the untoward effects of business cycles. Keynesian ideas and principles still prevail in European countries, all of which have social welfare and employment protections (Powell 2006), while it has been the case in the US that neoliberalism has taken the strongest hold. Keynes, like Roosevelt, rescued capitalism. Some say that this was achieved through a shotgun wedding between capitalism and representative democracy, a marriage in which the vows have been renewed time and time again as a matter of convenience and inertia. The roots of contemporary neoliberalism, an heir to both the Manchester and Liberal Schools, can be found at the University of Chicago, where the ‘Chicago School’ flourished, led by economists Milton Friedman, George Stigler and Gary Becker (Overtveldt 2007). Opportunities arose in the 1970s for them to turn their attention to theorising free financial markets and in subsequent decades they turned their attention to monetary policies, and then applied social policy, applying free market policies to family life, schools, families and communities. Within these spheres, according to Becker, people are, and should be, rational, competitive and self-interested. The Chicago School helped shaped the policies of the World Bank and the International Monetary Fund (IMF) as early as the 1980s, and played an exceedingly important role in accelerating privatisation in Third World countries. The Chicago School economists were purists, advocating efficient and profitable industries, hospitals, old age homes and so forth, and the dismantlement of government programmes—every man and woman for himself or herself! No lifeboats; sink or swim. The idea of market supremacy still dominates in the US and to such an extent that the interests of businesses are privileged over those of workers, communities and indeed society. What is not marketable and profitable is trivialised.

In Defence of Societies 177 Poverty and Income Nationwide, nearly 13 per cent of the population (more than 36 million people) and 25 per cent of all children lived in poverty in 2006. A total of 39 per cent (28,365,801) of children live in low-income families, defined as income below 200 per cent of the federal poverty level. One-quarter (27 per cent) of Latino children, nearly one-third of African American children (30 per cent) and 9 per cent of non-Latino white children live in poverty More than 20 million US workers earn less than $9 an hour, a wage that cannot cover housing, food and transportation Real income has declined. In 1974, the US median income for men in their 30s stood at $40,210 in terms of today’s inflation-adjusted dollars. In 2004, median pay in this age group stood at $35,010. Inequality The top one per cent of households received 21.8 per cent of all pre-tax income in 2005, more than double what that figure was in the 1970s The richest one per cent of US households now owns 34.3 per cent of the nation’s private wealth, more than the combined wealth of the bottom 90 per cent. The top one per cent also owns 36.9 per cent of all corporate stock. The top 20 per cent of households receive over 50 per cent of the nation’s income, while the lowest 20 per cent got just a little over three per cent. American CEOs earned 411 times as much as average workers in 2005, up from 107 times in 1990. Security and Welfare Nearly 47 million Americans, or 16 per cent of the population, were without health insurance in 2005. The number of uninsured children in 2005 was 8.3 million—or 11.2 per cent of all children in the US. US racial and ethnic minorities are less likely to receive even routine medical procedures and experience a lower quality of health services. 35.1 million people live in households considered to be food insecure. Of these, almost 13 million are children (16.9 per cent of all children). 3.5 million people, 1.35 million of them children, are likely to experience homelessness in a given year. Figure 1. Social and Economic Indicators for the US Sources: US Bureau of the Census, National Center for Children in Poverty, Columbia University; United for a Fair Economy; State of Working America, 2006–07; Inequality.org; Bread for the World Institute; Institute of Medicine; Federal Interagency Forum on Child and Family Statistics; National Coalition for the Homeless; National Coalition for Health Care; Food Research and Action Center.

178 Judith Blau and Alberto Moncada The consequences of this ideology and its policies are evident in the US. As Figure 1 shows, the US has a high poverty rate overall, particularly among children, and especially Latino and African American children. Many Americans live in poverty or are on the brink of poverty: 20 million Americans earn less than $9 an hour. Indicators of economic inequality reveal deep economic cleavages in the US. Among the general population, 16 per cent are uninsured and, among children, the figure is 11.2 per cent. Overall, 35.1 million Americans experience food insecurity and 3.5 million experience homelessness in a given year. We can only conclude that for a country with the wealth and resources of the US, there are staggering levels of human rights violations, including poverty, homelessness and hunger, while, in contrast, European countries continue to reshape Keynesian policies to protect citizens’ rights, not perfectly, of course, but comparatively so. An excellent source of information for the purposes of making international comparisons on economic inequality is the annual Human Development Report, published by the United Nations Development Programme (2006). Whether the Gini coefficient or the ratio of the richest 10 per cent to the poorest 10 per cent is used, the comparisons are about the same. The US has higher income inequalities than any Western European country, most Eastern European and Middle Eastern countries, Canada, Japan, Australia and New Zealand. The value of the Gini coefficient for the US (40.8) is little better than the value for many developing countries that have runaway inequalities, such as Ecuador (43.7), Thailand (42.0) and Nicaragua (43.1). In comparison, Western European countries have Gini values in the range of 25.0 (Sweden) to 36.0 (Italy).

HUMAN RIGHTS AND SOCIETY

To be clear, society refers to interrelations, including the relatively dense ones, within work organisations, neighbourhoods, communities, social movements and associations, but also those that are cast about and flung far and wide. People turn out to be flexible cosmopolitans and, besides, do quite well just by carrying their societies ‘in their heads’. From the perspective of a free-marketeer or a neoliberal, all societies should be abolished or, in Thatcher’s more polite way of putting things, ‘disappeared’. The UK and the US were the first to embrace market fundamentalism in the 1980s, but by the late 1990s it had become so dominant that few countries could protect their populations. Engels wrote this about societies in 1844, and he would surely be amazed were he to know what we know now about how the system he describes has only expanded: ‘That is the basis of the system which tends more and more to split up civilised society into a few Vanderbilts, the owners of all the means of production and subsistence, on

In Defence of Societies 179 the one hand, and an immense number of wage-workers, the owners of nothing but their labour-force, on the other’ (Engels 1887). The logic of neoliberalism is the logic of disaggregated, rational, self-interested people pursuing wealth. The logic of human rights, on the contrary, is the logic of human society, one that is dialogic, democratic, equitable and grounded in the synergetic processes of everyday life. Nevertheless, we need to agree on fundamental principles. The provisions of the Universal Declaration of Human Rights are a good starting point: Here is a brief and convenient summary: — — —

— — —

Humans treat others as equals with inherent rights and dignity, and without discrimination (Articles 1 and 2). Everyone has freedom of thought, opinion, conscience and religion, and the right to peaceful assembly (Articles 18, 19 and 20). Everyone has the right to social security, work, free choice of employment, protection against unemployment, equal pay for equal work, just and favourable conditions of work, to be able to join a trade union and to rest and have leisure time (Articles 22, 23 and 24). Everyone has the right to an adequate standard of living and security (Article 25). Everyone has the right to education, and higher education needs to be accessible to all (Article 26). Everyone is entitled to a social order in which rights and freedoms can be fully realised, and everyone has duties to the community of which they are a part (Articles 28 and 29). FOUR PARADOXES

One way of describing the scope of human rights is to consider the implications of four paradoxes. One, already suggested, is that human rights are both universal and particular. In other words, everyone, regardless of their nationality, gender, race, ethnicity, religion and sexual orientation, has identical rights to equality of personhood, dignity, security, peace and to participate in democracy. At the same time, everyone has the right to their own unique identity, personality, faith, language and culture (see Recep 2005). A second paradox is based on the consideration that persons are citizens of nation-states and as such have certain protected territorial rights—in particular, civil and political rights—while all persons have universal, unconditional, de-territorialised rights, including economic and social rights. Additionally, migrants, asylum seekers, refugees and stateless persons have transnational rights that all states must recognise. A cruel reality is that many states do not recognise peoples’ universal rights, confounded by the

180 Judith Blau and Alberto Moncada fact that multinationals and financiers are not constrained by national borders, whereas people are. While multinationals can outsource jobs and can close operations in one country to set up operations elsewhere where labour is cheaper, human beings are trapped within their own country’s borders. A third paradox arises from the fact that ‘rights holders’ are ‘rights agents’—that is, people possess rights and they simultaneously have obligations and responsibilities. In recognition of this link between ‘holders’ and ‘agents’, human rights doctrine highlights both ‘solidarity’ and ‘reciprocity’ deontology. A fourth paradox is that some rights can only be secured and enjoyed collectively, such as clean air, transparent governance and democracy, which underscores the links between rights, reciprocity and collective responsibilities, and also the connections between human rights and collective goods, especially those provided by nature. The core assumptions of human rights have far-reaching consequences and are the point of departure for a broad range of queries, including in the following areas: collective or public goods (Kaul et al 2003), women’s rights (Epstein 2007), world poverty (Pogge 2005), environmental sustainability (Page and Redclift 2002), participatory democracy (Gould 2004; Green 1999) fair trade (Aaronson and Zimmerman 2006), cultural rights (Chiriboga 2006), corporate responsibility (Monshipouri, Welch and Kennedy 2003), transnational citizenship (Basok and Ilcan 2006; Shafir and Brysk 2006), cultural rights (Jovanovi 2005), workers’ rights (Gross 2003), global governance (Monbiot 2003), food and land rights (Maxwell and Slater 2004) and international peace (Coicaud, Doyle and Gardner 2003). Human rights are therefore comprehensive in their scope and implications. Michael Ignatieff (2001) writes that ‘human rights has gone global by going local, imbedding itself in the soil of cultures and worldviews’. Thus, while treaties, constitutions, laws and regulations are necessary for the formal framework of human rights, human rights can only be realised in societies and, practically, in communities, in what Marx called ‘interrelations’. This requires strands of relations based on weak trust. In contrast, neoliberal markets erode trust because they foster competition and pit people against one another. We can go further than this. From the perspective of the neoliberal, persons have value not for their humanity but for their economic worth, as workers, stockholders and consumers. In other words, persons, as workers, stockholders and consumers, are sources of profits. Nor should we overlook what market zeal has done to the environment. The chemical industry pours toxins into the atmosphere; oil and other industries pollute the oceans; timber companies destroy the last remaining rainforests; developers decimate coral reefs. The US has become a rogue state in many respects, and by impeding worldwide efforts to slow global warming through emissions reductions and energy-efficient technologies, its roguishness could have catastrophic consequences for the entire planet. Neoliberal ideologues are averse to

In Defence of Societies 181 regulations and tax policies that threaten their profits and are averse to having to make investments in technologies that do not yield immediate returns. The consequence of the ruthless pursuit of profits is irreparable harm to ecosystems: melting ice caps, the exhaustion of water supplies, dead coral reefs, declines in biodiversity and the extinction of species.

LOGICS

The logic of capitalism and of neoliberalism is quite straightforward. The logic is to make profits—whether that is through exploiting labour, land or natural resources. What distinguishes neoliberalism from classical capitalism is the speed and intensity with which it operates. That is to say: (1) investors and banks transfer their funds nearly instantaneously in and out of tax havens and in and out of countries, which imperils and destabilises burgeoning economies; (2) multinationals transfer operations from one place to another with lightning speed, creating massive unemployment; (3) commodities are marketed ubiquitously without acknowledging the differences between fragile and sturdy economies; (4) agribusinesses buy up immense tracts of land, displacing peasant farmers and harming ecosystems; (5) unregulated trade imperils local producers by undercutting them; (6) outsourcing is prevalent without protections for labour; and (7) the multinationals’ onslaught on poor countries has resulted in immense environmental destruction. What neoliberalism has accomplished, according to David Harvey, is to maximise the reach and frequency of market transactions, and to bring all human action into the domain of the market (Harvey 2005; see also Amin 2003). The logic of human rights is in a certain sense more complex because human society is more complex. Any human society is a jangled thicket of social institutions, patterns of sociality, rhythms of social life, organisations, rituals, languages, social conventions, communications and much, much more. We don’t ‘see’ our society because it is so heterogeneously composed and multifaceted, embedding social relations, social institutions, cultural patterns and exchange, and overlapping with other societies. In the last two decades or so, the world’s people have become more aware than ever before of how similar our societies are to one another. Remarkably, society, whether small or large, is constantly levelling the playing field, undoing the inequalities of power and wealth created respectively by political and economic institutions. Political institutions define and elaborate inequalities of power just as economic institutions define and elaborate inequalities of wealth. Why would society be egalitarian? Precisely because any society is what Michael Hardt and Antonio Negri called a ‘multitude’ and Karl Marx a ‘sum of interrelations’, or a dynamic concoction, of people in motion on the ground. In other words, the logic (or, perhaps better, the ‘illogic’) of such a concoction is runaway, helter-skelter egalitarianism. Society is always a leveller.

182 Judith Blau and Alberto Moncada Why do we look around about us and see abundant inequalities? First, because political and economic institutions systematically and comprehensively produce inequalities, thereby counteracting the normal random chaos and confusion that is endemic in everyday life. Second, when social differences rooted in heredity (caste), descent (tribe) and phenotype (race) become fault lines, social relations become overdetermined. That is Darfur today; it was once Germany. The situation in Darfur or that seen in Germany is exceedingly rare, and after it does occur, people invest all their energies into restoring society, healing wounds, seeking forgiveness and reconciliation, and restoring normal helter-skelter confusion. While societies are tenacious, surviving wars, natural disasters, epidemics, tyrants etc, all are now stressed, including the richest and most powerful in the world. Raw, free, unmediated markets may be the biggest challenge societies have ever faced because the assault is broadside and systematic, affecting social institutions, governments, ecologies, families and communities. Unlike say a natural disaster, when people come together to work to rebuild infrastructure, communities and society, when markets rip through society, it is much, much harder to rebuild. This is because it is the very nature of markets to create competition, foster alienation and isolate people from one another. Therefore, we argue that markets, specifically markets driven by neoliberalism, are toxic to society and to society’s capacity to uphold human rights. We have suggested that societies are more complex than markets and that human rights are more complex than self-interest. This is not exactly true, and in fact the opposite may be the case. Lionel Tiger and Robin Fox wrote that: ‘The “right” to a minimum wage, for example, or to adequate and inexpensive medical care, or to an education, or to a free and creative use of the intellect, is simply a “right” to behave in a way that is intrinsic to being human; it needs no more justification than the crowing of the cock’ (Tiger and Fox 1971: 238). Human rights are as simple as being human!

THE EPISTEMIC RUPTURE

Until very recently, the overriding assumption in Western, especially US, political theory was that because political rights were the backbone of the liberal state and its constitution, political rights constituted the sum total of rights (Freeden 1991). In other words, even though people in principle have rights rooted in universal natural law, it is the nation-state that in practice confers rights, and the rights it confers are civil and political rights and no more than that. Judiciary systems and legal thought have evolved in that tradition, which includes Hobbs, Locke and Bentham, and this tradition continued in the work of contemporary philosophers and political theorists. Even TH Marshall, whose work on social rights was pioneering, positioned rights within the context of the state. Although the Universal

In Defence of Societies 183 Declaration of Human Rights formulates rights as inalienable (independent of the state), universal (that is, global) and indivisible (including political, economic, social and cultural rights), realist assumptions about sovereignty dominated political theory on the subject of rights throughout most of the second half of the twentieth century, and to a considerable extent still do. Yet these assumptions are no longer tenable. To pose the contrast in sharper terms, contemporary human rights rest on assumptions about substantive, positive freedoms, whereas Western conceptions of freedoms stress negative rights, or the rights of individuals as opposed to the powerful state (that is, First Amendment rights) or the rights of contending self-interested persons (Blau and Moncada 2007).

EQUITABLE MARKETS

The elementary principles of economic exchange are the same whether beads are exchanged for fish, bananas for ropes or labour power for wages. The other has what another wants. Exchange has a second function, as Claude Levi-Strauss (1969) stressed, which is that exchange promotes intergroup relations, which are necessary in the case of exogamy for very small groups, but generally for the exchange of ideas and for the dissemination of knowledge. No society in the world is truly isolated if we infer by this that they have no intergroup contact; even the so-called ‘uncontacted groups’ living in the Amazon have intergroup exchange relations. Whether prior or not, economic exchange is universal, and with it comes social, cultural and technological exchanges of all kinds. This is a fact of human existence. The historical problem, endemic to the West, is that Western countries and Western companies leverage all economic exchanges in their favour. This is as much the case in the era of globalisation today as it was in the eras of imperialism and colonialism. It is not inconceivable that the logic of globalisation is reversed so that the objective becomes one of creating and expanding economic equalities among the world’s nations and among the world’s peoples. Economic exchange would no longer be coerced as it is now, but rather exchanges would be sought out by both parties and would be voluntary and equitable. This is not as far-fetched as it might seem. One step in this direction is the UN’s Global Compact, an alliance of corporations that pledge to uphold labour and environmental laws and to respect the societies of the countries in which they operate. The Global Compact has not been the success that was initially hoped, but the idea is a good one. The Fair Trade Movement holds great promise, and fair trade advocates are increasingly successful at convincing consumers that producers must adopt and adhere to the same standards in Third World countries that apply in First World countries. At least we are learning the language of economic equity and economic fairness. The next step is to try it out.

184 Judith Blau and Alberto Moncada CONCLUSIONS: IN DEFENCE OF SOCIETIES WITHOUT BORDERS

The genie is now out of the bottle. Production, exchange and trade are now extensively globalised and the fundamental drivers of globalisation are understood. Globalisation will continue to risk causing a worldwide economic meltdown or an environmental catastrophe. Even if this should occur, globalisation is likely to be temporarily slowed, not permanently stopped. In the short run, globalisation has made it possible for financiers and multinationals to pursue wealth, resources, human capital, land, property and cheap labour to every corner of the globe. Yet there is still a third possibility besides an economic meltdown or environmental catastrophe— namely, it is possible to reap the benefits of globalisation without the current drivers dominating the process. Much is known already about how to create what the World Commission on the Social Dimension of Globalization termed ‘a fair globalization’. In its 2004 report, A Fair Globalization: Creating Opportunities, the Commission laid out a framework whereby the welfare of human populations would be given the highest priority in national and global economic activities and development (World Commission on the Social Dimension of Globalization 2004). The report’s recommendations are not especially new, but rather provide a clear summary of what is already known about how economic practices can work to advance human welfare and bolster human societies. It has provisions for advancing and ensuring that all workers have ‘decent work’, for meeting the Millennium Development Goals, expanding knowledge and knowledge networks, and implementing taxes on footloose capital. The report advocates greater solidarity among the world’s people, equitable markets, greater accountability of states and private actors, sustainable development and a focus on people. It concludes that existing economic inequalities are ‘ethically unacceptable and politically unsustainable’ (World Commission on the Social Dimension of Globalization 2004). At the same time, the report is positive about the dramatic advance of globalism—the extent to which people around the globe have become aware of one another and are in solidarity with one another. Perfect strangers from different continents rally to support those who are victims of political or economic oppression. People around the world responded when Iranian women launched their Million Women Campaign, showed their support for Burmese monks, participated in the boycotts against Apartheid in South Africa, continue to support the indigenous peoples of Chiapas, reach out to the civilians in Darfur and rally for the rights of sweatshop workers. Indeed, what we are witnessing is the emergence of a new world—a world in which ethics has no borders, that is, a world in which we are all members of the human family. None of us should suffer injustice and indignities. We have an elementary duty to take the sides of any who are victims of oppression and suffer indignities. This elementary duty is not explained

In Defence of Societies 185 or preached; it is simply human to protest injustices, whether this involve Iranian women, Burmese monks, black South Africans, Chiapanecos, Darfureans or sweatshop workers. Our very societies—thanks to travel, student study, non-governmental organisations (NGOs) and global communications—have become globalised and one thing that is notable about this process is that it reveals a universal society that underlies and connects the world’s myriad societies, cultures, language groups and traditions. In the twentieth century, new international NGOs were founded to defend individuals against abuses and atrocities at the hands of their own governments, most famously Amnesty International and Human Rights Watch. As early as the 1970s, the decade in which the seeds of free-market ideology were planted, Médecins Sans Frontières (Doctors without Borders) (MSF) was founded. MSF is based on the principle that humanitarian assistance must be provided to all people in dire need of it, regardless of nationality, race, gender, religion or political affiliation. For MSF, there are no borders separating humans from one another, which is primarily a response to state actors who contend that they can do whatever they like within their borders or contend that they have no obligation or ability to protect their peoples. Socíologos Sin Fronteras Internacional (Sociologists without Borders) (SSFI) was founded in 2001 and is committed to a global sociology and international collaborations that would advance an understanding of how to advance human rights, collective goods, popular democracy and just societies.1 SSF emphasises that all humans have equal rights, including the right to dignity and self-determination, and that socio-economic rights like political and civil rights are universal. Yet SSF also emphasises that each and every person has the right to his or her culture, group membership, and identity, all of which are realised in society—sometimes in local communities, sometimes in national societies, but increasingly in global society. It is the case that all the world’s inhabitants will be working hard to clarify how societies are embedded within larger societies, and these, in turn, in even larger ones. The genie is out of the bottle, and immense and complex challenges lie ahead.

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1

http://ssfinternacional.blogspot.com and www.sociologistswithoutborders.org.

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In Defence of Societies 187 Powell, RL (2006) ‘The Right to Security of Person in European Court of Human Rights Jurisprudence’ 6 European Human Rights Law Review 649. Available at: http://ssrn.com/abstract=959257. Recep, S (2005) ‘I Am, Therefore I Have Rights. Human Rights in Islam between Universalistic and Communalistic Perspectives’ 2 Muslim World Journal of Human Rights. Shafir, G and Brysk, A (2006) ‘The Globalization of Rights: From Citizenship to Human Rights’ 10 Citizenship Studies 275. Smith, A (1976) The Theory of Moral Sentiments II (Oxford, Clarendon). Thatcher, M (1987) Interview for Woman’s Own Magazine. Available at: http:// briandeer.com/social/thatcher-society.htm. Tiger, L and Fox, R (1971) The Imperial Animal (New York, Dell). United Nations Development Programme (2006) Human Development Report 2006: Beyond Scarcity: Power, Poverty and the Global Water Crisis (New York, UNDP). World Commission on the Social Dimension of Globalization (2004) A Fair Globalization: Creating Opportunities for All (Geneva, International Labour Organization).

9 From Citizenship to Human Rights to Human Rights Education FRANCISCO O RAMIREZ AND RENNIE MOON

T

HE RISE, DEVELOPMENT and diffusion of the nation-state and citizenship therein is a recurring theme in comparative political sociology. There are debates as to what societal transformations created the space for the formation of modern citizenship ideas and institutions, as to what kinds of citizenship rights and duties flourished, and as to the overall impact of citizenship on societal development, class structures and patterns of inequalities. But whether citizenship is viewed primarily as a progressive development or a strategy of co-optation, there is much agreement on citizenship as an instrument of political incorporation. From both the left and the right, scholars understand that it is through the extension of citizenship that workers and peasants became national citizens and identified with that new and imagined solidarity called the nation-state (Anderson 1991; Bendix 1964; Hobsbawm and Ranger 1983; Marshall 1964). The political incorporation dynamic is closely associated with the historical development of mass schooling. This dynamic leads to the erosion of earlier efforts to label large segments of the population as not fit for schooling and not qualified for citizenship. This dynamic facilitated the triumph of a logic of inclusion, which was initially limited in scope but increasingly universalistic in aspiration. The first part of this chapter briefly revisits the worldwide institutionalisation of both the nation-state and mass schooling as a nation-state project, and its influence on the logic of inclusion. Next, we discuss the rise of a human rights regime and how it gives rise to terms of inclusion debates. This development both expands the scope of what constitutes rights and de-territorialises the basis of the rights claims. Finally, this chapter examines the transformation of the human rights regime from a solely legal to a more broadly educational emphasis. More broadly, it focuses on major transnational shifts that initially celebrate the national character and common citizenship but more recently highlight human rights and valorised diversity. We review the historical and contemporary evidence that illustrates these

192 Francisco O Ramirez and Rennie Moon changes and provide an interpretative framework that situates nation-states within a wider changing environment that we call world society. The evidence we examine will first establish the links between the nationstate and mass schooling as a nation-state project. The worldwide character of these developments is striking and calls for theorising beyond emphasising distinctive national socio-cultural profiles or unique historical trajectories. The global triumph of mass schooling as a nation-state project is also problematic for the familiar functionalist perspectives that stress tight links between national economies or political systems and mass schooling. These perspectives emphasise variable outcomes, not common ends. Situating nation-states within world society makes it possible to account for common worldwide changes despite much cross-national economic, political and cultural variation. Next, we consider the emergence of a human rights regime and its manifestations in discourse and organisation throughout the world. Here too, the worldwide appropriation of human rights concepts and structures is striking and suggests a form of cultural globalisation often ignored in the contemporary literature on globalisation. The emergence of a human rights regime was neither anticipated nor perhaps much appreciated in earlier sociological theorising about world structures and dynamics. Even less within the reach of earlier world level accounts of national developments was the shift from human rights as a primarily legal regime to human rights as an educational project. We identify indicators of this most recent transformation and reflect on what some trends and findings reveal about human rights and its standing in the world today. We will argue that the human rights regime is a work in progress that has altered the global political landscape, taming but not necessarily bringing about the eclipse of the nation-state. We will also contend that human rights education further legitimates human rights by linking it to a highly legitimate enterprise, education, but that in doing so human rights education potentially redefines the historical mission of schools to create national citizens. Finally, we will conclude that the good nation-state in the twenty-first century will be imagined as one that has a positive human right profile and actively pursues human rights education.

CREATING CITIZENS: THE NATION-STATE AND MASS SCHOOLING AS A NATION-STATE PROJECT

Over the last 200 years, the nation-state arose and became the modal political formation in the world. In nation-state after nation-state, mass schooling emerged and expanded as a project closely aligned with the creating citizens’ mission of the nation-state. What is now a commonplace was historically a contested innovation, pitting nineteenth-century progressives against nineteenth-century conservatives. The former optimistically

Citizenship to Human Rights to Education 193 assumed that the masses could be transformed into loyal and productive members of society. For them, schools were ‘beacons of progress’ (Donald 1985) and sites for the formation and transmission of the ‘national character’ (Tyack 1974). The good citizen would be a schooled citizen and increasingly every individual was imagined to be capable of becoming a good citizen. Thus, it became important to pass compulsory school laws and expand mass schooling. In Western Europe it also became important to create ministries of education that would directly or indirectly oversee the educational transformation of the masses into citizens. These ministries would further undercut the older association between religious authorities and the education and care of children. As early as 1763, the emerging new order was evident in the words of La Chatolais: I claim to demand for the Nation an education that will depend upon the State alone; because it essentially belongs to it (sic), because every nation has an inalienable and imprescriptible right to instruct its members, and finally because the children of the State should be educated by members of the State. (Bendix 1964: 110)

To be sure, the precise rhetoric calling for mass schooling as a nation-state project varied across countries; it was clearly less state-centric in both the UK and the US than in the European continent.1 But supporters of mass schooling had much in common in assuming that schooling would benefit all children and that in the aggregate their schooling would benefit the nation (Ramirez and Boli 1987). Nineteenth-century conservatives also had much in common, despite varying national traditions. They were highly sceptical that peasants and workers could benefit from schooling and could truly contribute to the common good as citizens. Schooling, they feared, would induce in the ‘lower orders’ aspirations beyond their station in life and these unrealisable aspirations would, in turn, result in widespread alienation and social conflict. The introduction of compulsory free schooling in France generated this typically conservative reaction from Taine: Education prepares … the adult (peasant or laborer) not for his life as he will live it, but for another life less monotonous, less restricted, more cerebal … His own (life) … will go on disgusting him for a long time, until his education, quite superficial, shall have completely evaporated … (into) empty phrases; in France for a peasant or ordinary laborer, the sooner the day comes the better. (Furet and Ozouf 1977: 129)

Both the expansion of citizenship within the nation-state and mass schooling as a nation-state project were contested innovations. The contestations gave rise to different social pacts with a common element, the withering of rationales for exclusionary principles from citizenship and from schooling. In earlier eras, the timing of the withering more clearly varied across 1 See Boli’s (1989) depiction of the role of the state in the second phase of the development of mass schooling in Sweden.

194 Francisco O Ramirez and Rennie Moon nation-states.2 However, the twentieth century has seen a worldwide diffusion of educational enrolment growth as well as an increase in compulsory school laws and national educational ministries (Meyer 1977; Meyer et al 1997). Increased educational access, ideological nationalisation and state bureaucratisation have become core features of mass schooling as a nationstate project. In discussing the origins of this project, it is important not to be blinded by presentist biases that assume that all of this was a rational investment in human capital formation. There is simply no evidence that supports the premise that national decision makers everywhere were convinced that this project would lead to national economic growth. There is certainly evidence of contestation, not only among conservative elites but also among segments of the popular classes who were suspicious of government initiatives regarding the education of their children (see the discussion in Bendix 1964). There is also no evidence that elites everywhere imagined that schooling the masses would prevent a revolution from below. Many in fact feared the opposite; the slow growth of schooling for African Americans in planter-dominated states is in part explained by this fear of agitating the downtrodden (Walters et al 1990). What is clear is that the triumphant forces operated under very similar assumptions about the efficacy of schooling to bring about changes in the young, the continuity of these changes through a life course, and the aggregate national benefits that would follow from schooling the masses. These benefits were more likely to be imagined in broadly political rather than narrow economic terms; the new citizens would be not just productive but also patriotic. Belief in progress was multifaceted and strongly hinged on the idea that transformed individuals added up to a transformed national society. The world society perspective emphasises the centrality of nation-state identity and legitimacy, and the special role of mass schooling as a nationstate project. Its underlying assumption is that nation-states learn to become nation-states and in so doing figure out which structures and policies are optional and which ones are mandatory. The right to an elementary education clearly falls within the mandatory zone and this right is articulated in national constitutions that vary with respect to other sorts of rights, some emphasising civil and political rights and others placing more stress on social rights. Much of this learning involves mimetic and normative processes, though coercive processes are at times also at work. But, increasingly, the main mechanism of diffusion lies with the influence of professionals, experts and scientists who advise countries on how to do schooling and thus indirectly on how to create citizens. These educational advisors are more likely to invoke general principles of teaching and learning than to point to the concrete features of their national school systems. It is the general 2 See eg Soysal and Strang (1989) on the timing of compulsory school laws in the nineteenth century.

Citizenship to Human Rights to Education 195 character of these principles that makes them more portable, scriptable and, lastly, enactable. There are other citizenship repertories that are spread in a similar manner through both direct copying but also via the expert advising route. The net result is more standardisation of citizenship than one would expect if countries were wholly autonomous or ‘closed systems’. Examining national constitutions over time clearly shows common trends in the kinds of citizenship rights that are emphasised (Boli 1976). National citizenship rules are not unique because the nation-state as a political formation is an imagined community that diffuses (Anderson 1991). The mandatory character of mass schooling as a nation-state project makes it even more portable and more attuned to world standards of progress and justice. From a world society perspective, nation-states are situated within a broader environment that provides them with core features of their identity and legitimates them to the degree to which they enact proper nation-state identity. How other nation-states are organised and what their policies add up to count as exogenous influences in nation-state and citizenship developments. Much sociological research shows that the likelihood of a country adopting a policy or ratifying a treaty is positively influenced by the adoption rates of other countries in the region and in the world at large. These studies also show that how well linked a country is to the wider world, and its models of progress and justice will influence a country’s likelihood of adhering to scripted courses of action. Thus, the world society perspective interprets common trends and developments by postulating common exogenous sources of influence. These sources include nation-states, international organisations and a growing cadre of transnational professionals dispensing expert advice. To summarise, over the last 200 years, a standardised vision of mass schooling as a nation-state project has emerged and diffused worldwide. What was once a contested terrain is now a highly institutionalised domain. The newer countries of the world commit themselves to this project from the moment of independence, at times even during the struggle to become independent. The newer countries do not rehash the older debates about who is educable and who is eligible for citizenship. An inclusionary logic has strongly triumphed in principle. Many reported shortcomings and observed inequities with respect to schooling would not make much sense were the inclusionary logic not so firmly entrenched as a clear-cut and universalistic standard. Nor could one imagine the frequency and intensity of educational reforms without a strong belief in progress and in the role of education in promoting progress. The growing influence of educational experts and consultants traversing the world accounts for the growing similarities in educational reforms and their scripted enactment. Though fraught with more difficulties, political reforms follow a similar course of action and are influenced by the same external sources. Invoking world standards, these educational and political experts play a crucial role in fostering what neo-institutional scholars call ‘institutional isomorphism’ (Finnemore 1996;

196 Francisco O Ramirez and Rennie Moon Meyer et al 1997). Simply put, the standardisation of citizenship ideas and institutions in general and of educational ones in particular are dynamics influenced by the wider world within which nation-states are situated. FROM CITIZENSHIP TO HUMAN RIGHTS

Within Western thought, human rights have roots that go back for centuries, in part reflecting a tradition of natural law philosophy (Donnelly 1998). This tradition was in some important ways undercut by the rise of the interstate system with its emphasis on positive law and the autonomy of national states and their sovereigns. The Westphalian tradition dominated until shortly before the Second World War, the period during which the modern human rights regime emerged. In an effort to rally world forces against the growing power of the Axis alliance, imperialist Britain embraced racist America’s call for ‘fundamental freedoms that applied everywhere’ (Borgwardt 2005). These freedoms included not only traditional freedoms of speech and worship but also freedoms from want and from fear. These freedoms were explicitly linked to the ‘supremacy of human rights everywhere’ and subsequently to the formation of the United Nations. Paradoxically, though perhaps not surprising, the Universal Declaration of Human Rights was almost derailed by the concerns of the core victors regarding its anti-imperialist, anti-racist and anti-totalitarian provisions (Lauren 1998). But once the human rights genie had been freed from the Westphalian bottle, it could not simply be returned to its ‘safe’ place. Instead, the framework of the United Nations continued to uphold state sovereignty, even as it fostered the growth of an international human rights regime.3 The international human rights regime is comprised of international human rights organisations and social movements, conferences and treaties, and humans rights discourse in both the popular press and in scholarly publications. The development of this regime involves changes in the locus, scope and debates regarding the rights claims. The locus changes insofar as the human rights frame is not contingent on positive national law. The latter is supposed to affirm these rights rather than to establish them. The rights are not dependent on a nationally distinctive or even an internationally standardised social contract between citizens and the states. In practice, many a well-established citizenship right may now be reframed as a human right. The right to en elementary education, for example, becomes a human right (Article 26), long after its triumph as a citizenship right in most countries. But by recasting this right as a human right, a nation’s failure to provide quality schooling to its citizens becomes an international issue, subject to international standards and ‘report cards’. International conferences 3

See especially Art 51, s 1 on the right of states to self-defence.

Citizenship to Human Rights to Education 197 promoting ‘education for all’ make sense when education ceases to be simply a distinctive element of a national social contract. The scope of the human rights emphasised internationally increases. In addition to the classic civil, political, social and economic rights, cultural and language rights emerge. Though human rights discourse is typically about the rights of individual persons, the new rights often imagine collectivities such as ethnic groups and their right to be instructed in their language or to have their culture positively reflected in curricula. This direction in human rights challenges the right of the state to expect a homogenised citizenry and to do so via a rugged programme of nationalised and nationalising education. Yesterday’s not much criticised programme of ‘turning peasants into Frenchmen’ or of the Americanisation of immigrants has given way to today’s criticism of national educational programmes that are inadequately respectful of sub-national cultures (see Huntington 2004 for a defence of yesterday’s Americanisation, but see Banks 2004 for a critique). This critical perspective applies even to countries with limited resources, as is evident in an assessment of educational policy in the Philippines and its impact on Islamic identity in the Southern Philippines (Milligan 2006). There is less worldwide consensus on specific cultural and language rights, but their rise constitutes a crucial feature of the shift from debating who is to be included to what are the terms of inclusion. Peasants, workers, women and members of ethnic and religious minorities are, of course, to be included, but increasingly their advocates raise questions about the terms of inclusion. Must minorities and others give up their identity tags in order to become good national citizens? Must women become more like men? Does assimilation into a national culture require the deletion of subnational cultures (Valenzuela 1999)? Do the schools continue to enjoy a legitimate mandate to uphold a cohesive national identity and to socialise youth to identify with this more or less monolithic identity? These questions are increasingly framed in human rights terms. This framing presupposes a world in which ‘no human is an alien’ and that world is one in which rights have been de-territorialised (Sassen 2006; Verschraegen 2007). The development of the international human rights regime involves a sheer increase in its constituent elements. International human rights organisations have indeed expanded since the Second World War. There are both intergovernmental and non-governmental organisations on the rise (Boli and Thomas 1999). This increase has involved births as well as transformations of older organisations that now proclaim themselves to be human rights organisations in their mission statements (Elliott 2008). There has also been an increase in international human rights conferences and treaties (Elliott 2008) as well as an expansion of social movements that invoke human rights in its mobilising frame (Smith 1995). Finally, we find a rise in human rights discourse in both the popular press and in scholarly publications (Suarez and Ramirez 2005).

198 Francisco O Ramirez and Rennie Moon These developments add up to a more extensive international human rights frame that turns out to influence a number of national developments. Several examples from a body of sociological research influenced by the world society perspective illustrate the impact of the human rights regime. These studies analyse outcomes such as the propensity to ratify human rights treaties, to be a member of an international human rights organisation and to establish a national human rights institution. First, these studies show that the likelihood of ratifying a human rights treaty is positively influenced by the ratification activities of other countries (Abu-Sharkh 2002; Cole 2005; Wotipka and Ramirez 2008). These studies also show the importance of country links to international non-governmental organisations in general and to those with a human rights focus in particular. Greater national links to world society and to an international human rights regime positively influence treaty ratification as well as the establishment of national human rights commissions (Koo and Ramirez 2009). Country behaviour is influenced by what other countries do but also by how well a country is attuned to world standards. Countries with weaker links tend to be more isolated and thus more buffered from world expectations regarding appropriate national human rights policies (Wotipka and Tsutsui 2004, 2008). Finally, there is much evidence that the timing of international human rights conferences is influential: countries are more likely to ratify the appropriate treaties and establish the appropriate commissions immediately before, during and immediately after key human rights conferences. International conferences engage in agenda setting that activates international standards and influences national outcomes. National social movement advocates can point to and take advantage of the conferences to promote the favoured developments through an anticipatory socialisation process or through post-conference adjustments. Taken as a whole, what these studies reveal is a world in which there are more human rights treaties and more human rights treaty ratifiers, and a process of diffusion that reflects the impact of regional and world densities. This process has been called a normative cascade or bandwagon (Finnemore and Sikkink 1998) and, indeed, its worldwide unfolding suggests that countries resist being seen as deviants or worse. These studies also reveal the proliferation of organisations and conferences through which human rights rationales are generated by professionals, experts and scientists, as well as by advocates who increasingly navigate this complex maze of resolutions and narratives. The more countries are linked to this world of human rights organisations and conferences, the greater the likelihood that they will learn to display better human rights profiles. These profiles may be faulted for merely involving ‘talking the talk’, but some studies show how both ethnic minorities (Tsutsui 2002) and women (Boyle and Liu 2001) gain ground invoking the international human rights treaties their countries have ratified (see also Hathaway 2002).

Citizenship to Human Rights to Education 199 To summarise, an international human rights regime has emerged and expanded. In some ways the regime has strengthened standard citizenship rights obligating states to affirm these rights in their national legal systems. Personhood applies to all humans and is the sole requirement one needs to meet in order to be politically incorporated. Earlier logics of exclusion are totally lacking in repute. However, the regime has also activated terms of inclusion debates and in large part requires much more valorisation of diversity than was earlier mandated. The net effect is a gradual taming of the grand narrative that linked nation, state and citizenry. The emerging narrative focuses on the wider world and the rights of persons therein, regardless of their national citizenship. World standards invoking common humanity and the dignity of the individual person are at the centre of the emerging narrative. We return to this point at the end of the chapter.

FROM HUMAN RIGHTS TO HUMAN RIGHTS EDUCATION

The institutionalisation of mass schooling as a nation-state project and the success of human rights as a normative and organisational undertaking have been accompanied by yet another unexpected development: a shift in the legal emphasis of the international human rights regime to a more extensive educational emphasis about teaching human rights to all. Participation in the human rights movement is no longer restricted to lawyers, but must actively involve the public at large, other professional groups and even children. Public education campaigns and use of the popular media can be harnessed to raise public awareness and diffuse international human rights norms. State officials are trained to understand their own role in protecting human rights and how to address complaints of abuse. Children learn to respect diversity and be empowered to advocate on behalf of their own and others’ rights. Just as the masses were being transformed into national citizens through schooling in an earlier era, the emergent discourse today embraces the incorporation of the masses into global citizens taught to uphold transnational values and ideals. This section presents descriptive evidence for this recent transformation in human rights education and reflects on its implications for the institution of national citizenship and the evolving purposes served by state-sponsored schooling. Human rights education is a curricular movement that seeks to teach people about their inherent worth as individuals, to inform them of the rights they are entitled to by virtue of their human status and to encourage them to integrate these values into the way they live. In other words, all persons are rights-bearing and empowerment-worthy persons. Both the mass-schooling and human rights movements share a similar logic of inclusion and universal participation that makes the emergence of human

200 Francisco O Ramirez and Rennie Moon rights education seem natural and necessary. The human rights movement, of course, is premised on individual sacredness and has broadened in scope to encompass a wider range of protected, duty-bound and empowered entities. Mass schooling also reflects a fundamental belief in the educability and capacities of all individuals. Anyone anywhere can learn, possess human capital and become competent, proactive agents in society. These underlying assumptions of individual development and potential for empowerment fully resonate with the basic principles of human rights education. Mass education insists that everyone counts and that everyone should be empowered to better themselves. In such a world, what could be more appropriate than to start with teaching people about the inherent rights and privileges that are so instrumental to enhancing the human condition, so central to individual progress and development? At the same time, human rights education poses new challenges to mass schooling as primarily a national citizen-making project. If citizenship rights, traditionally anchored in the national legal domain, are increasingly discussed with respect to international law and reframed in universal human rights terms, then nation-states are venturing beyond producing only nationally loyal citizens and effectively endorsing a citizenry with a more globally oriented civic consciousness. In this way, nation-states are also sanctioning a political incorporation process that produces a broader world citizenry with transnational law as an additional basis for membership and rights claims. From a world society perspective, as human rights education becomes part of what constitutes proper, progress-oriented nation-state behaviour, what exactly constitutes a national citizen or a basic right is likely to be called into question and national education systems will have to accommodate these alternative discourses. How this will happen and which elements will persist, become obsolete and/or coexist are central concerns that have direct implications for the traditional mission of mass schooling. A number of discursive and organisational indicators presented here demonstrate the growth of transnational interaction, cooperation and organisation around human rights education over the last half-century. In examining these changes, it is important not to lose sight of the two broad macro-sociological trends outlined in the previous sections—that is, the global success of human rights as a legitimate doctrine and the institution of education as a core feature of nation-state identity. Its sweeping character and the diverse array of states venturing to promote it suggest that human rights education may just as well be another substantive domain heavily influenced and propelled by world cultural frames and identity norms. To first provide a broad overview of the gradual evolution of human rights education in becoming a prominent subject on the world agenda, Table 1 lists major international and regional events in the history of human rights education.

Citizenship to Human Rights to Education 201 Table 1. Major International and Regional Events in the History of Human Rights Education Year

Event

1945

United Nations established

1948

Universal Declaration of Human Rights

1952

International Seminar on Teaching about Human Rights (the Netherlands)

1953

UNESCO Associated Schools Project established

1968

International Conference on Human Rights (Tehran)

1974

UNESCO Recommendation on Human Rights Education

1978

UNESCO Prize for Human Rights Education established

1978

First International Congress on the Teaching of Human Rights (Austria)

1978

Council of Europe Resolution 78(41) on the Teaching of Human Rights

1979

Asia-Pacific Meeting of Experts in Education for Peace and Respect for Human Rights

1981

African Charter on Human and Peoples’ Rights (Banjul)

1982

Meeting of Experts in Human Rights Teaching (Strasbourg)

1983

International Conference Relating to Human Rights and Fundamental Freedoms (Paris)

1984

First Latin American Conference on Human Rights Education (Venezuela)

1985

Council of Europe Recommendation R 85(7) on Teaching about Human Rights in Schools

1987

International Congress on Human Rights Teaching, Information and Documentation (Malta)

1988

Additional Protocol to the American Convention on Human Rights (Protocol of San Salvador)

1989

First Meeting of Directors of Human Rights Research and Training Institutes

1991

Paris Principles on National Human Rights Institutions established

1992

International Meeting on Human Rights Education (Czech Republic)

1993

International Congress on Education for Human Rights and Democracy (Canada)

1993

World Conference on Human Rights; Vienna Declaration (Austria)

1994

UNESCO Academic Chair in Human Rights Education created

1995

United Nations Decade for Human Rights Education established

1997

Expert Meeting on Guidelines for National Plan of Action for Human Rights Education

2005

World Programme for Human Rights Education established

Source: adapted from Suarez and Ramirez 2005

202 Francisco O Ramirez and Rennie Moon These events include a range of both intergovernmental and nongovernmental activity, including conferences held by official intergovernmental organisations, adoptions of formal declarations, resolutions, protocols and recommendations, and various meetings of experts and professionals. Among these events, one particularly important discursive development was the UNESCO Recommendation on Human Rights Education, the first internationally recognised human rights document to focus exclusively on education. Thereafter, international discussions and meetings focusing on human rights education became more legitimate and more frequent, culminating in two United Nations decades dedicated to human rights education. All of this activity suggests a growing world consensus about human rights education as an agreed-upon strategy to achieve an array of goals. Figure 1 demonstrates this trend and its relation to the human rights movement more concretely and dramatically through the number of foundings of international human rights and human rights education organisations over the last century. The first observation is that there is an initial gradual rise followed by an explosion in the number of international human rights organisations in the 180 160

Number of Organizations

140 120

Human Rights Organizations Human Rights Education Organizations

100 80 60 40 20 0 1893 1898 1903 1908 1913 1918 1923 1928 1933 1938 1943 1948 1953 1958 1963 1968 1973 1978 1983 1988 1993

Founding Year

Figure 1. Annual Foundings of Human Rights and Human Rights Education Organisations Source: Suarez and Ramirez 2005 Note: original sources are Elbers 2002; Human Rights Internet 2000; UNESCO 2003; UNHCHR 2003; Union of International Associations (various years). Data from these sources have more omissions in recent years.

Citizenship to Human Rights to Education 203 1950s and 1960s. This same trend applies to human rights education organisations, but at a later time point with growth in organisational foundings occurring in the 1970s and 1980s. This suggests that the initial structuring of the human rights education field occurred subsequent to the institutionalisation of the human rights movement. While many organisations include human rights education as part of their founding mission, older extant human rights organisations expand and modify their advocacy aims by incorporating an educational component (Nelson and Dorsey 2003). Amnesty International, for example, has evolved from a solely legal to a broader educational emphasis in its mission statement and training activities. Such organisations continue to grow in number and the magnitude of this trend will be important to follow. Figure 2 illustrates a more discursive trend—the dramatic increase in the annual numbers of publications on human rights education. Similar to the data on human rights education organisations, the growth in human rights education publications continues to increase, taking off in the 1980s. Nations, intergovernmental organisations and traditional publishing houses publish materials on human rights education, but the majority

200 180

Number of Publications

160 140 120 100 80 60 40 20 0 1967 1969 1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999

Year

Figure 2. Annual Number of Human Rights Education Publications, 1965–2000 (N = 2201) Source: Ramirez et al 2005 Note: original sources are Amnesty International 1992–93, 1995–97; Andreopoulos and Claude 1997; Elbers 2002; UNHCHR 2003. Data from these sources have more omissions in recent years.

204 Francisco O Ramirez and Rennie Moon of publications are written by non-governmental organisations actively promoting their views on human rights education, providing many of the materials available for use in classrooms (Suarez and Ramirez 2005). Older publications have titles that are broad and general, but over time, the types of human rights education publications have both diversified and become more focused. Human rights education publications provide a library of information on human rights education that reaches a broad audience and is instrumental in creating a community of scholars at the global level. Through publications, experts and professionals articulate, theorise and communicate their rationalising discourse to nations and individuals. Operating as an epistemic community, these experts and professionals foster the gradual acceptance of human rights education as a standard theme within the human rights movement and in the field of education. Data on human rights treaties corroborate the trends presented thus far. Treaties represent the official institutionalisation of agreements and cooperation among nations, sustaining both world norms and sometimes directing coercive power over states and individuals. They directly reflect the structure and capacity to address issues on a global scale and to influence the policies of nations, and are used as a typical measure of the institutional character of transnational development (Schofer and McEneaney 2003). Figure 3 shows the number and cumulative number of human rights instruments

110 100 90 Number of Instruments

80 70

Cumulative Count Yearly Count

60 50 40 30 20 10 19 45 19 47 19 49 19 51 19 53 19 55 19 57 19 59 19 61 19 63 19 65 19 67 19 69 19 71 19 73 19 75 19 77 19 79 19 81 19 83 19 85 19 87 19 89 19 91 19 93 19 95 19 97

0 Year of Adoption

Figure 3. Annual and Cumulative Counts of Human Rights Instruments with Human Rights Education Provisions, 1945–98 (Total Number of Instruments = 104) Source: United Nations 1999

Citizenship to Human Rights to Education 205

Cumulative Number of Instruments

35 30

Instruments with "Education" in Titles

25

Instruments with Provisions that Mention Elements of Formal Education

20 15 10 5

19

60 19 62 19 64 19 66 19 68 19 70 19 72 19 74 19 76 19 78 19 80 19 82 19 84 19 86 19 88 19 90 19 92 19 94 19 96 19 98

0 Year of Adoption

Figure 4. Education-Focused Instruments and Instruments with Formalised Provisions, 1945–98 (Total Number of Instruments = 104) Source: United Nations 1999

with human rights education provisions enacted each year between 1945 and 1998. Like the data on organisations and publications, the number of human rights treaties with human rights education provisions increases over time, with growth rates accelerating in the 1970s and 1980s, but most of all in the 1990s, when several human rights conferences produced a host of instruments. This growth has also been accompanied by changes in the content of the provisions and in the central focus of the treaties themselves. Figure 4 demonstrates these additional trends. Just as there has been a rise in the number of focused publications, the bottom curve in Figure 4 shows how the discourse on human rights education in human rights treaties starts to focus on specific target populations. One of these trends is the increasing focus on the formal education sector targeting schools, teachers and students, emphasising the need to incorporate human rights education in formal curricula, textbooks and teaching practices. The top curve in Figure 4 shows the cumulative number of instruments that focus on education in their titles and contents. While the bulk of instruments prior to the 1970s included education as an afterthought in one or at most a few scattered provisions, instruments adopted later increasingly treated education as a central focus by underscoring its role and potential to contribute to achieving human rights goals. Earlier instruments clearly placed a greater emphasis on more traditional concerns having to do with human rights protection rather than promotion (the Geneva

206 Francisco O Ramirez and Rennie Moon Convention relative to the Treatment of Prisoners of War, for example) and did not mention educational objectives or ‘education’ in their titles. More recently, however, there has been an increase in the number of human right instruments with titles such as the Recommendation to Member States on the Role of the Secondary School in Preparing Young People for Life (1983) or the Recommendation to Member States on the Training of Teachers in Education for Intercultural Understanding, Notably in the Context of Migration (1984) that express the clear intent of emphasising the role of education—a more proactive and broader perspective. This trend is reminiscent of the data on human rights and human rights education organisations where the growth in the number of human rights organisations precedes the growth in human rights education organisations. In a similar fashion, the emergence and growth of education-focused human rights treaties appears later on. Examining the language of various instruments regarding human rights education strikingly demonstrates this increasing specificity and ‘thickening’ of human rights education discourse. Earlier instruments implied rather than explicitly stated the duty of states to undertake or provide human rights education as part of other human rights promotional measures. However, once the human rights education movement gained momentum, new provisions were added and instruments began to mention more specific measures, such as revising curricula and textbooks and specifying education levels and target populations. For instance, Article 2 of the International Covenant on Political and Civil Rights, adopted in 1966, states the following: Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.

In this provision, the language about the means to promote human rights is vague and unspecified, calling on states to ‘take the necessary steps’ and adopt ‘measures as may be necessary’. The following provision, added in 1981 to the same article, is much more precise: It is very important that individuals should know what their rights under the Covenant (and the Optional Protocol, as the case may be) are and also that all administrative and judicial authorities should be aware of the obligations which the State party has assumed under the Covenant. To this end, the Covenant should be publicised in all official languages of the State and steps should be taken to familiarise the authorities concerned with its contents as part of their training.

Here, the duty to promote human rights awareness specifies the target audiences (the public, administrative and judicial authorities) and means involved (official training, public campaigns, translation of the covenant into official languages). Similarly, treaties adopted during this later period

Citizenship to Human Rights to Education 207 are much more specific. For instance, the Convention on the Elimination of Discrimination against Women, adopted in 1979, stipulates that: States Parties shall take appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on the basis of equality of men and women … The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods.

Here, the provision explicitly identifies sites of implementation, levels of education, and even instructional media and pedagogical strategies. The increase in the number and rate of treaties that stipulate promotion of human rights education over time reflects the degree to which nations are willing to cooperate and officially agree on human rights education norms. Furthermore, the increasing diversification and specificity of the language of human rights treaties with human rights education provisions suggest that the content and substance of human rights education continues to mature and expand. These global trends also manifest themselves quite concretely at the national level, including in instructional media. The content and pedagogical presentation of social science textbooks in many countries around the world, for example, increasingly reflects the principles of the human rights education movement. In many national textbooks, especially those published in the recent period of heightened international attention given to human rights education, human rights topics are more likely to appear and be discussed at greater length (Meyer et al 2010). In addition, textbooks are designed to be more student-centred, encouraging and validating the pupil’s own participatory role—a central feature of the human rights education model. State-sponsored schools in many countries also embrace human rights education through programmes such as the Associated Schools Project, a UNESCO initiative established in 1953 to introduce human rights and other international themes in schools. From 1955 to 2002, the total number of countries participating in the programme increased overall (almost tenfold) and in every region of the world (Suarez et al 2009). The project now encompasses over 7,500 schools in 175 countries, with over 60 per cent of countries in every region having an Associated School. Formal analyses of these schools from a world society perspective indicate that many of the same world factors that influence human rights developments at the national level also influence national developments in human rights education. The likelihood of a country adopting a UNESCO Associated School, for example, is positively influenced by stronger national links to the human rights regimes, by world and regional adoption densities, and by the global density of international organisations (Suarez et al 2009). In other

208 Francisco O Ramirez and Rennie Moon words, whether other countries join the programme and the extent to which countries are exposed to world discourse and human rights standards have positive, significant effects on adoption rates. As a programme that is often mentioned in international human rights education discourse, the expansion in Associated Schools provides additional evidence of a growing world consciousness regarding the role of schooling in promoting human rights and the adoption of this innovation across the world. To summarise, this section presents strong indicators of the increasing world organisational structure and attention devoted to the domain of human rights education. Human rights education is clearly a global phenomenon influenced by a global context and historical institutionalisation processes. The shift in the earlier legal emphasis of the human rights movement to a broader educational one is an unexpected development. Its worldwide diffusion, despite wide-ranging cross-national variation in historical traditions and dynamics internal to societies, would be difficult to imagine without considering common sources and mechanisms of influence. From a world society perspective, the global triumph of human rights as a legitimate doctrine and the centrality of education as a rationalised strategy to achieve national goals are two broad principles that together set the stage for the emergence and institutionalisation of human rights education. This process is heavily mediated by professionals and experts who roam the globe theorising about and diffusing broad principles that in time become standard discourses and guiding frames for action.

CONCLUDING REMARKS

Why is an international human rights regime on the rise? Why are human rights morphing from a solely legal matter into a broader educational emphasis? What are the implications of these transformations for the nation-state and national citizenship, and the role of schooling in promoting both? These are the interrelated questions we briefly address by way of concluding reflections. From a world society perspective, these changes are not necessarily taking place because they are functionally required or because they are instrumentally optimal. Throughout human history, there have been major disasters that could have led to an international human rights regime, but the latter did not materialise. Instead, more centralised political authorities (national states) and more explicit recognition of state authority (the Treaty of Westphalia) emerged as the favoured response to some of these disasters. To be sure, these earlier changes have been interpreted and justified by both a functionalist and instrumental imagery, in much the same way as the current changes are rationalised. But the evidence has to be carefully mined to support this imagery.

Citizenship to Human Rights to Education 209 From a world society perspective, the crucial task is to unpack the prevailing rationalisation into cultural accounts that make sense because they enjoy worldwide legitimation, not because they really meet local needs. The grand nation-state narrative linked the authority of states to the incorporation of its people. The latter were to become national citizens and the task was to be accomplished in good part via mass schooling. State authority and national citizens were seen as crucial features of the national march to progress. Progressives actively promoted this narrative, convinced that other states and other peoples would be better off if they adhered to national progress via educational development schema. Belief in progress via education is a taken-for-granted tenet in the world today, and this includes both individual as well as national progress. Education is both the preferred solution to a wide range of problems as well as the source of these problems in educational reform discourse. The proliferation of nation-states after decolonisation added to the sense that the world was first and foremost a system of nation-states with national development goals and national educational plans. However, independence movements from the mid-twentieth century onwards were more likely to employ a human rights idiom than was found in nineteenth-century independence movements. As noted earlier, the ‘fundamental freedoms’ articulated by Roosevelt in opposition to the Axis powers included the right to self-determination and paved the way for a human rights genie that could not be returned to the Westphalian bottle. The post-Second World War era marked the beginning of cultural accounts of problems and solutions that went beyond nationality solidarities. These cultural accounts imagine world problems, world solutions, and world standards that frame both the problems and their solutions. To the earlier nation-state-centric grand narrative, a new one emphasising common humanity and the dignity of the individual person is added. Focusing only on the world economy, much of the globalisation literature ignores the extent to which cultural globalisation offers a rationale for the emerging international human rights regime. Many of the common human rights affirming trends reported in this chapter make little sense as functional responses to varying local conditions. However, in an era where proper nation-state identity is enhanced by displays of human rights commitment, one should expect to see a growth of human rights treaties, conferences and organisations. In an era where it is awkward to refer to a state and its people and where the empowerment of a and any people (including children) is increasingly privileged discourse, people are more likely to form non-governmental organisations focusing on national and international human rights and to engage in collective action that is human rights-attuned. A world of international human rights is one where people are both more likely to be described and to experience themselves as part of a common humanity and as individual persons. This is evident

210 Francisco O Ramirez and Rennie Moon in the women’s rights movements with their emphasis on women’s rights as human rights. But, obviously, we are not dealing with a simple analogy between the earlier rise of the nation-state and citizenship rights and the current state of the world and human rights. Without a world state, human rights flourish to the extent that their standing in world society is legitimated. The many trends we describe in this chapter were not dictated by a centralised world political authority, though human rights consciousness is promoted by some transnational authorities such as the United Nations and the European Union. Nor does it make sense to think of human rights developments as serving the interests of a particular class or state, given the increased scope of these rights and the greater scrutiny of rights monitors. Instead, we contend that the international human rights regime is propped up via multiple associational processes involving professionals and experts and their networks and organisations rather than by a single overarching bureaucracy. The proper analogy is with the relatively stateless America depicted by De Tocqueville, one in which democratic ideals were spread via associations rather than fostered by the state. But why human rights education? Not all international agreements or understandings give rise to an educational project. There is no Westphalian educational project designed to teach the masses respect for state sovereignty. But, of course, the masses in the early eighteenth century were neither going to school nor for the most part imagined to be educable. For human rights education to emerge, schooling for all and its diffusely positive socialising effects must be taken for granted. Moreover, agentic and empowered pupils must be imagined—pupils that can benefit from knowing their human rights and in the aggregate benefit their societies and the wider world. These assumptions have to enjoy some legitimacy for human rights to shift from primarily a legal concern to a concern that includes educational purposes and strategies. In a world without a central world state but one where education enjoys great worldwide legitimacy, the more bottom-up educational approach to constructing a better world gains ground. A point of concern is what this developing global trend implies for the standing of individuals, the authority of nation-states, the uses of mass schooling and the institution of citizenship that links these three together. If human rights education increasingly becomes part of what constitutes the identity of a legitimate nation-state, similar to how mass schooling became an institutionalised project to create national citizens, the overall mounting normative pressures will surely impact upon the development of civic education. The rationalistic discussions of professionals will poke at nation-states, imposing a homogenising umbrella of doctrines, principles and models on diverse societies. Countries that are more embedded and tightly linked to these discourses and their organisational sites will be more

Citizenship to Human Rights to Education 211 likely to invoke world citizenship frames. How these new post-national emphases will play out remains to be seen.

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212 Francisco O Ramirez and Rennie Moon Furet, F and Ozouf, J (1977) Reading and Writing: Literacy in France from Calvin to Jules Ferry (Cambridge, Cambridge University Press). Hathaway, O (2002) ‘Do Human Rights Treaties Make a Difference?’ 111 Yale Law Journal 1935. Hobsbawm, E, and Ranger, T (eds) (1983) The Invention of Tradition (Cambridge, Cambridge University Press). Human Rights Internet (1990, 2000) Available at: www.hri.ca. Huntington, SP (2004) Who Are We? The Challenges to America’s National Identity (New York, Simon & Schuster). Koo, J-W and Ramirez, F (2009) ‘National Incorporation of Global Human Rights: Worldwide Expansion of National Human Rights Institutions, 1966–2004’ 87 Social Forces 1321. Lauren, P (2003) The Evolution of International Human Rights (Philadelphia, University of Pennsylvania Press). Marshall, TH (1964) Class, Citizenship, and Social Development (New York, Doubleday and Company). Meyer, JW (1977) ‘The Effects of Education as an Institution’ 63 American Journal of Sociology 55. ——, Boli, J, Thomas, GM and Ramirez, FO (1997) ‘World Society and NationState’ 103 American Journal of Sociology 144. Meyer, JW, Bromley, P and Ramirez, FO (2010) ‘Human Rights in Social Science Textbooks: Cross-National Analysis, 1970–2008’ 83 Sociology of Education 111. Milligan, JA (2006) ‘Reclaiming an Ideal: The Islamization of Education in the Southern Philippines’ 50 Comparative Education Review 410. Nelson, PJ and Dorsey, E (2003) ‘At the Nexus of Human Rights and Development: New Methods and Strategies of Global NGOs’ 31 World Development 2013. Ramirez, FO and Boli, J (1987) ‘The Political Construction of Mass Schooling: European Origins and Worldwide Institutionalization’ 60 Sociology of Education 2. Sassen, S (2006) Territory, Authority, Rights: From Medieval to Global Assemblagees (Princeton, Princeton University Press). Schofer, E and McEneaney, EH (2003) ‘Methodological Strategies and Tools for the Study of Globalization’ in G Drori, F Ramirez and J Meyer (eds), Science in the Modern World Polity (Stanford, Stanford University Press). Smith, J (1995) ‘Transnational Political Processes and the Human Rights Movement’ 18 Research in Social Movements, Conflict and Change 185. Soysal, YN and Strang, D (1989) ‘Construction of the First Mass Education Systems in Nineteenth-Century Europe’ 62 Sociology of Education 277. Suarez, D and Ramirez, F (2005) ‘Human Rights and Citizenship: The Emergence of Human Rights Education’ in CA Torres (ed), Critique and Utopia: New Developments in the Sociology of Education (Lanham, Rowman & Littlefield). ——, —— and Koo, J-W (2009) ‘UNESCO and Associated Schools: The Symbolic Affirmation of World Community and Human Rights’ 82 Sociology of Education 197. Tsutsui, K (2002) Global Human Rights and Ethnic Social Movements in the Contemporary World (Stanford, Stanford University). —— and Wotipka, CM (2004) ‘Global Civil Society and the International Human Rights Movement: Citizen Participation in Human Rights International Nongovernmental Organizations’ 82 Social Forces 587.

Citizenship to Human Rights to Education 213 Tyack, D (1974) The Best One System: A History of American Urban Education (Cambridge, MA, Harvard University Press). UNESCO (2003) Human Rights Institutes Database. Available at: http://databases. unesco.org/fileh/wwwi32.exe/[in=interro.in]/. UNHCHR (2003) Database on Human Rights Education. Available at: www. unhchr.ch/hredu.nsf. Union of International Associations (1949–2000) Yearbook of International Organizations (Munich, KG Saur). United Nations (1999) The Right to Human Rights Education: A Compilation of Provisions of International and Regional Instruments Dealing with Human Rights Education, no HR/PUB/DECADE/1999/2 (New York/Geneva). Valenzuela, A (1999) Subtractive Schooling: U.S.-Mexican Youth and the Politics of Caring (New York, State University of New York Press). Verschraegen, G (2007) ‘The Case for a Sociology of Human Rights’ (unpublished manuscript, Onati, Spain). Walters, PB, McCammon, HJ and James, DR (1990) ‘Schooling or Working? Public Education, Racial Politics, and the Organization of Production in 1910’ 63 Sociology of Education 145. Wotipka, CM and Ramirez, F (2008) ‘World Society and Human Rights: An Event History Analysis of the Convention on the Elimination of all Forms of Discrimination Against Women’ in G Garrett, B Simmons and F Dobbin (eds), The Global Diffusion of Markets and Democracy (Cambridge, Cambridge University Press). Wotipka, CM and Tsutsui, K (2004) ‘Global Civil Society and the International Human Rights Movement: Citizen Participation in Human Rights International Nongovernmental Organizations’ 83(2) Social Forces 587. —— (2008) ‘Global Human Rights and State Sovereignty: Nation-States’ Ratifications of International Human Rights Treaties, 1965–1999’ 23 Sociological Forum 724.

10 (Human) Rights and Solidarity— Restructuring the National Welfare Space FREDERIK THUESEN

T

HE THEORY OF law as an index of solidarity, one of the core legacies from classical sociology, is undergoing a revival in relation to globalisation and human rights. Globalisation pushes sociology to find new indicators of a cosmopolitan solidarity transcending historical, cultural and territorial borders. Various scholars of socio-legal theory identify international human rights as such indicators and analyse these rights as an index of or a vehicle for transnational forms of solidarity (see Beck 2000; Brunkhorst 2005; Freeman 2002). Bryan S Turner argues that ‘human and social rights are juridical expressions of social solidarity, whose foundations rest in the common experience of vulnerability and precariousness’ (Turner 2006: 26). Likewise, Jürgen Habermas (2001a) links human rights to the ideals of a cosmopolitan solidarity, arguing that human rights are part of a post-national economic, political and legal ‘constellation’. Despite the importance of these attempts at renewing a theoretically based sociological tradition, we still need to understand the concrete societal effects and implications of international human rights norms, because these effects are often more complex than sociological theory suggests. British sociologists Robert Fine and Vivienne Boon argue that contemporary theories of cosmopolitanism focus not only on phenomena such as transnational civil society and human rights conventions ‘but also on how these emergent social forms in turn refract on the nation-state and civil society’ (Fine and Boon 2007: 6). This chapter, inspired by Fine and Boon’s research agenda, focuses on the way in which human rights affect the welfare state, which remains the hub of redistribution and social solidarity in all nations with this form of government. As such, welfare states are important focal points for sociological studies of human rights and solidarity. This chapter analyses the impact of international human rights norms on a Scandinavian welfare state. It focuses on Denmark because in Denmark

216 Frederik Thuesen much debate has revolved around the potentially destabilising impact of human rights on both the welfare state and the Danish labour market flexicurity model. ‘Flexicurity’ here refers to regulating the national labour market through collective agreements rather than through legislation. To some extent, these Danish debates result from the entanglement of human rights with questions of immigration and multiculturalism. I argue that while, in the short term, human rights reforms may represent a challenge to the Danish welfare state and its labour market structures and institutions, these reforms may, from a longer-term perspective, help Denmark cope with a multicultural labour force and restructure the national welfare space in a manner inspired by cosmopolitan ideals. To construct this argument, I first distinguish between conventional and cosmopolitan solidarity, drawing on Habermas’ theories of human rights and solidarity and Italian political scientist Maurizio Ferrera’s empirical analysis of changing national and European ‘boundaries of welfare’ (Habermas 2001a; Ferrera 2005b). Second, I analyse the relationship between solidarity and rights in the historical construction processes underlying the Scandinavian welfare states, showing how international human rights emerged in line with the ideology of the welfare state but not always in line with its social and legal practices. This contradiction between ideology and practice is evident in the labour regulation regimes of the Scandinavian countries, which have traditionally secured worker interests through collective rights and agreements more than through individual rights based on legislation. Third, I focus my analysis on the way in which human rights represent not only a challenge to but also an opportunity for restructuring the national welfare space in a manner inspired by the ideals of an ethnically and culturally inclusive cosmopolitan solidarity.

THEORIES OF HUMAN RIGHTS AND SOLIDARITY

The concept of solidarity and its relationship to law has preoccupied both classical and modern sociology (Bayertz 1999; Durkheim 1983; Stjernø 2005). This chapter defines solidarity in the sense of moral obligations that lead to individual or collective actions for providing aid. These actions are typically framed and guided by their sub-national, national or supranational institutional context. In other words, the frame or structure of an institution influences how individuals or collectives within it will act. We can divide solidarity into two types—conventional and cosmopolitan. Conventional solidarity limits the aid obligations to those within a circle delineated by criteria such as national origin, ethnicity, religion or citizenship, whereas cosmopolitan solidarity widens that aid obligation to a community of world citizens through various practices aiming at the fulfilment of this obligation. Habermas uses the term ‘civic’ solidarity to refer to national

Restructuring the National Welfare Space 217 legislation in combination with the nation as one body of citizens (hence ‘civic’). Here, however, I also focus on smaller ethnic, cultural and religious collectives within the body of the nation-state. I therefore draw on the work of American philosopher Jodi Dean, who uses the term ‘conventional’ solidarity to mean ‘the we-ness of groups united by shared values or in a common struggle’ (Dean 1996: 22). I find ‘conventional’ more useful here for encompassing and analysing norms and practices at both group and state levels. In relation to both forms of solidarity, legal norms often constitute the concrete expression of these obligations and practices. Citizenship rights exemplify conventional solidarity, while international human rights reflect the ideals of cosmopolitan solidarity. I therefore distinguish between citizenship rights defined and enforced by the nation-state and human rights laid down in human rights conventions for enforcement by international institutions in collaboration with nation-states.

HUMAN RIGHTS AND COSMOPOLITAN SOLIDARITY

My perspective on human rights and solidarity is inspired by Habermas, who argues that ‘civic solidarity is rooted in particular identities; cosmopolitan solidarity has to support itself on the moral universalism of human rights alone’ (Habermas 2001a: 108). Civic solidarity—what I call conventional solidarity—is more robust because it is institutionalised in the (welfare) state and rooted in established communities based on national origin. But cosmopolitan solidarity, based on human rights, is not institutionalised to the same degree. Therefore, according to Habermas, it assumes a primarily reactive form. It is reactive because only when it is violated do people both affirm it and respond to it. Cosmopolitan solidarity reacts when (massive) human rights infringements arouse public awareness, and the international community, national politicians or non-governmental organisations (NGOs) respond to the problem. Habermas’ argument about the reactive nature of cosmopolitan solidarity resembles Durkheim’s argument that legal norms need public confirmation (Durkheim 1983). Cosmopolitan solidarity in its exterior form transcends territorial borders. However, in its interior form, it starts ‘at home’ in the day-to-day interaction between citizens and ‘strangers’. Cosmopolitan ideals are reflected in schools, labour markets and civic associations guided by principles of nondiscrimination and inclusion. As for cosmopolitanism at the national level, Habermas argues that nation-states turning into multicultural societies have to seek internal social coherence, which he calls ‘constitutional patriotism’ (Habermas 1998a, 1998b). This theory suggests that nation-states distinguish between social-political and ethical-cultural forms of integration. While many nation-states traditionally regarded assimilation into the nation

218 Frederik Thuesen and its language and customs as a prerequisite for citizenship, they now have to base membership primarily on adherence to common political and social norms as enshrined in their constitutions. Otherwise, they risk alienating and excluding those who will not or cannot live up to the demand of full assimilation. American sociologist Craig Calhoun has criticised Habermas’ theory of constitutional patriotism for assuming an unrealistic division between politics and law on the one hand and ethics and culture on the other hand, and for neglecting powerful feelings invested in the nation and its symbols (Calhoun 2007). This critique is to a certain extent justifiable because meaningfully distinguishing between politics and law and ethics and culture is often difficult, and because Habermas pays little attention to sentiments linked to the nation and its ‘rituals’. Nevertheless, we may still draw inspiration from Habermasian theory if we look at his ideas about human rights and constitutional patriotism from a dynamic perspective and think about politics, law and society as engaged in constant processes of interaction and exchange. I argue for retaining Habermas’ notion of human rights as a communicative resource for use by political and organisational elites, NGOs and citizens as guiding norms in public debates and politics. However, there are limits to the extent to which legal norms can control social norms. If the aim of protagonists of cosmopolitanism within the nation-state was the construction of a completely new political culture independent of existing institutions and traditions, that aim would be selfdefeating. A more realistic aim on the national level is the gradual reform of societal institutions and communities so as to make them more inclusive and accessible to outsiders. As Habermas has argued in support of the EU, the history of the nation-state has taught us that we are able to ‘construct new and ever more sophisticated forms of a “solidarity among strangers”’ (Habermas 2001b: 21). Although Habermas operates on the scale of abstract theory, his ideas provide useful questions and directions for empirical research. He leads us to explore from a dynamic perspective the way in which legal frameworks and political action on various national or supranational levels reflect different values of a more or less inclusive (cosmopolitan) or exclusive (nationalistic) character.

‘INTERNAL BONDING THROUGH EXTERNAL BOUNDING’

More so than Habermas, Maurizio Ferrera (2005a) stresses that solidarity is stabilised within spaces defined by territory and membership. However, like Habermas, Ferrera perceives these ‘solidarity spaces’ as capable of reform and expansion. In his influential book The Boundaries of Welfare (2005a), Ferrera demonstrates this expansion in relation to the gradual

Restructuring the National Welfare Space 219 construction of an EU welfare space overlapping with national welfare states. According to Ferrera, rights play an important role in these processes because the adoption of the EU Charter of Fundamental Rights (containing a range of social and economic rights) indicates that the EU is creating a welfare dimension (Ferrera 2005a: 240ff). Even though the EU Charter is not legally binding, we should not under-estimate its long-term potential: the European Court of Justice in Luxembourg may one day start referring to its norms and principles, and EU citizens may start presenting cases before it, thereby turning these social and economic norms into de facto political and social reality. Ferrera’s thesis, however, arguing that solidarity can be stabilised only within well-defined borders, appears to run contrary to ideas of a human rights-based cosmopolitan solidarity. His analysis is inspired by Norwegian social scientist Stein Rokkan (1921–79), who developed theories of state building as ‘bounded structuring’ (cf Flora et al 1999). Bounded structuring suggests a notion of state building through the establishment of stable borders in terms of territory and membership, with a demarcation between insiders and outsiders. Thus, according to both Rokkan and Ferrera, external boundaries are necessary for internal bonding between citizens. Despite these conditions, Ferrera’s argument is important for its emphasis on the dynamic aspect of the analysis. Boundaries change and the construction of new political institutions may, through incremental change, lead to broader and more inclusive solidarity spaces. Ferrera himself uses the term ‘incremental social supranationalism’, meaning that social security may gradually (ie, from a relatively long-term historical perspective) be institutionalised on a supranational scale (Ferrera 2005a: 4). The twentieth-century welfare state was the apex of hundreds of years of state building that took centuries to overcome class divisions and religious, ethnic, economic and political cleavages. Therefore, cosmopolitan solidarity spaces are possible, but they require both national reform and institution building over the long term on regional and global scales.1 In this process, establishing broader perceptions of membership is particularly difficult, as Rokkan also pointed out (cf Flora et al 1999: 104). Established boundaries between insiders and outsiders, nationals and nonnationals, are difficult to change. Furthermore, nationalism is an important adhesive of the welfare state and continues to influence it (Ferrera 2005a: 38). However, in contrast to the traditional territorial and membership

1 TH Marshall, in his classic text ‘Citizenship and Social Class’ (1964), dates the historical processes leading to enforceable civil, political and economic rights, later combined into the modern concept of citizenship, back to the eleventh and twelfth centuries. Nevertheless, his analysis shows that the political thrust leading to the establishment of the welfare state took place between the eighteenth and twentieth centuries.

220 Frederik Thuesen boundaries of the welfare state, current EU regulations signify that many migrant workers and refugees have obtained rights equivalent to those of citizens: A growing number of immigrants who have alien roots have acquired access to freedoms and entitlements offered by states which are not ‘their own’ and have been incorporated in legal frameworks that used to be reserved for nationals only. (Ferrera 2005a: 43)

These immigrants have acquired that status of ‘denizens’, a term that Ferrera uses to refer to those who enjoy some of the same rights as citizens with certain limitations in terms of scope and time (Hammar 1990). From a long-term perspective, migration within Europe and to Europe from the ‘outside’ is likely to benefit most welfare states, for instance, by providing labour replacement in states with ageing populations. However, in the short term, migration also catalyses the voices of insiders critical of migration and it risks becoming an agent for forming new cleavages. As Ferrera points out, the construction of a European political space might spark defensive restructuring at the national level—something that has already happened in Denmark. That the question of migration has, to various degrees, reorganised the political system in line with new cleavages in countries such as Denmark, Norway, Austria, Belgium and the Netherlands is no exaggeration. In Denmark, new right-populist parties have experienced continuously growing support since the 1970s—support increasingly fuelled by resistance to immigration and EU integration. And since 2002, the liberal-conservative government has based its parliamentary power on the votes of the nationalistic Danish People’s Party, today the third largest in Parliament. The result has been a sharper divide in legislation between nationals and ‘denizens’. Seeking to curb the number of arriving asylum seekers and their spouses, in 2002 Denmark launched a pared-down version of social assistance for newly arrived non-citizens (the ‘introductory benefit’) and restricted access to family reunification, and in 2004, reacting to migrant workers within the EU, it withdrew the rights to social benefits and residence renewal for unemployed migrants (Kvist 2004). In this way, at least in the short term, the government perceives refugees and migrant workers who claim rights equal to those of citizens as a threat to the Danish welfare state. As human rights blur the distinctions between citizens and non-citizens, some politicians belonging to right-wing parties perceive human rights as part of the threat posed by migration and EU integration. Nevertheless, as we shall see, human rights-inspired anti-discrimination legislation has also promoted a more inclusive and cosmopolitan labour market in Denmark. The overlapping membership spaces at the national and European levels are involved in ‘constant balancing acts between opening and closing’ (Ferrera

Restructuring the National Welfare Space 221 2005a: 220). Human rights thus play a pivotal role in these balancing acts. However, before I can develop this argument further, a brief historical outline of the Danish welfare state is necessary.

THE WELFARE STATE AS ‘OUR STATE’

Different welfare states have various historical trajectories, leading to different institutions for securing civil, political, social and economic rights (EspingAndersen 1990). In Scandinavia, social movements made up of peasants, blue-collar workers and certain segments of the middle class contributed to the construction process of welfare institutions from the second half of the nineteenth century onwards (Bjørnson 2001; Christiansen and Petersen 2001a; Lundberg and Åmark 2001). Therefore, one could argue that conventional solidarity characterising various popular movements played an important role in the political struggles that gradually led to universalistic welfare state regimes. As these groups gradually gained political power, their principles of a conventional solidarity influenced the state and its institutions. Swedish sociologist Herman Schmid writes: The state, especially on the local level, was the target of the social struggles of the popular classes, and the trust and mutual identification linked to these movements was transferred to public authorities. Municipalities and the state became ‘our municipality’ or ‘our state’ even for segments of the population that had previously identified state and municipality as ‘the authorities’. (Schmid 1995: 38) (author translation)

Thus, even though the Scandinavian welfare state ideologically adhered to principles of universalism and equal social and economic rights, as a set of institutions, the welfare state was constructed by social and political movements socially integrated by conventional solidarity. Conventional solidarity was also present in the shaping of the nationalism that constituted the background to these historical construction processes. As Danish historians Niels Christiansen and Klaus Petersen write: ‘Since the 18th century the Nordic states have demonstrated a strong capacity for national integration’ (Christiansen and Petersen 2001b: 155). The welfare state was thus socially integrated as a national community. In Denmark, this link between nationalism and welfare was reflected in electoral slogans such as ‘Denmark for the people’ used by the Social Democrats in the 1930s (Christiansen and Petersen 2001a: 183), while in Sweden, the link showed itself during the same period in relation to the idea of the welfare state as the ‘people’s home’ (Lundberg and Åmark 2001: 160ff). However, such nationalistic underpinnings of the welfare state are not confined to Scandinavia. Social scientists Jytte Klausen and Alan Wolfe argue that strong currents of nationalism also influenced the construction of the

222 Frederik Thuesen British welfare state. They state that British welfare state theorists such as TH Marshall, W Beveridge and RH Tawney conceived of the welfare state as a project for overcoming inequalities and conflicts within the nation (Klausen and Wolfe 2000: 29). In Scandinavia, strong class- and nation-based collectivism characterised both citizenship and universal welfare rights. Signs of this collectivism remain in the Nordic labour regulations model, often termed the Nordic model (Bruun 1992). One example of this model, the Danish model, emerged in Denmark at the end of the nineteenth century and in the early twentieth century (Due et al 1994). The Danish model was characterised by strong trade unions that bargained with employers’ organisations, rights established through nationwide collective agreements and a labour court set up outside the ordinary court system. While this institutional framework has not completely hindered state legislation pertaining to the labour market, until recently, such legislation played a relatively marginal role. Christiansen and Petersen argue that the Danish model became a ‘cornerstone in the construction of the Danish Welfare State’ (Christiansen and Petersen 2001a: 26). As a central institutional framework in the labour market, it helped to solve political and economic conflicts in Danish society. It became one of the foundations of a ‘conflict-based consensus culture’ that characterised the Danish political system throughout the twentieth century, with social partnerships between the trade organisations and the state playing an important role (Jensen 2002). The collectivism that initially characterised the labour movement was upheld in the model through collective agreements, which defined ‘what rights and duties are applicable in relation to the individual worker’ (Dalberg-Larsen 2001: 105). Recently, the Danish model has been celebrated as an example of the institutional model called flexicurity, which combines flexible labour regulation with social security in a manner that enhances economic competitiveness (Jørgensen and Madsen 2007). The classic Scandinavian welfare state was thus a complex construction. On the one hand, it was characterised by the principles of the rule of law, democracy and parliamentarianism, and by universal social and economic rights. In matters of social and economic policy, it adhered to notions of universalism and egalitarianism. On the other hand, the institutions responsible for realising these principles were constructed by social and political actors socially integrated by a conventional solidarity later transferred to the state. Furthermore, the rights of the classical Scandinavian welfare state were not constitutional rights upheld by national courts; rather, they were rights defined and subject to change by political majorities, a condition also reflected in the dominant legal philosophy of the Scandinavian countries during the ‘golden age’ of the welfare state, namely Scandinavian legal realism (cf Bertilsson 1993). In Denmark, Alf Ross (1899–1979), one of the protagonists of Scandinavian legal realism, was opposed to natural law approaches, arguing that the content of law should be determined by those

Restructuring the National Welfare Space 223 controlling parliamentary power. Thus, theories of natural rights played no major role in the classical welfare construction, even though rights established through welfare state legislation were very similar to the rights one finds in today’s international human rights conventions.

TENSIONS BETWEEN THE WELFARE STATE AND HUMAN RIGHTS

With the advent of the international human rights regime, the welfare state ideology obtained global reach, inspired by both American and European welfare policies (Donnelly 1999b: 84; Johnson 1998). The Scandinavian countries were firm supporters of the United Nations and the international human rights regime, in line with core welfare state principles aiming at the protection of not only civil and political rights but also social and economic rights. Scandinavian support for the UN and international human rights following the Second World War became increasingly evident as the Scandinavian countries gradually moved towards a realisation of a broad range of such rights: well-functioning parliamentary democracies and legal systems based on principles of the rule of law provided for civil and political rights, while economic prosperity laid the foundations for a high level of social and economic rights. As American political scientist Jack Donnelly wrote: ‘Nowhere else has so much progress been made in assuring that almost the entire population enjoys most internationally recognized civil, political, economic and social rights’ (Donnelly 1999a: 612). Nevertheless, since the late 1990s, multiculturalism and individualisation have generated public debates that have also touched upon international human rights. The issue of the rights of immigrants, refugees and ethnic minorities has been at the centre of political struggles in Denmark, Norway and, to a lesser extent, Sweden. In 1990, Australian lawyer Meredith Wilkie generated intense debate in Denmark after criticising it for not giving immigrants the same rights as the members of its majority population (Wilkie 1990).2 While Denmark and the other Scandinavian countries may have ensured ‘most internationally recognized civil, political, economic and social rights’ for ‘almost the entire population’ (Donnelly 1999a: 612), in relation to people living on the margins of Scandinavian societies, human rights have become a politically contentious field. Returning to the main argument, what we see here is a tension between the conventional solidarities interpen-

2 The article by Wilkie sparked a direct attack on human rights theory and practice by priest and Danish MP for the nationalistic Danish People’s Party Søren Krarup in his Danish book The Worship of the Golden Calf of Human Rights [Dansen om Menneskerettighederne] (Krarup 2000).

224 Frederik Thuesen etrating the welfare state and the ideal of a cosmopolitan solidarity associated with human rights. Nationalism is still a strong social and political force in countries such as Denmark and Norway, and it limits, formally and informally, the access of ‘outsiders’ to the national welfare space—despite the obligations inherent in a human rights perspective. Scholars have also raised debates in relation to the impact of human rights on the Danish labour regulations model. Danish socio-legal scholar Jørgen Dalberg-Larsen (2001) argues that a conflict exists between an international (continental) and a Scandinavian legal culture. On the one hand, an international human rights culture promotes formal legal rights in line with a traditional constitutional viewpoint. On the other hand, a Nordic pragmatic viewpoint influenced by Scandinavian legal realism prioritises the efficiency and applicability of laws as more important. As I have previously pointed out, the Danish model combines legislation securing high levels of social security with flexible labour regulation based on collective agreements. Rights acquired through collective agreements pertain to those who are covered by those agreements, typically members of trade unions, as opposed to rights covering the entire population and secured through legislation. If the continental legal tradition represented by the EU and the European Court of Human Rights prevails, Dalberg-Larsen fears detrimental effects on the Nordic legal culture and the rights of workers: The principal problem with the claims coming from the EU and the European Court of Human Rights is, simply put, that if the trade unions are deprived of their tasks on the law-making as well as [the] law-applying level, their importance to the workers will be greatly reduced and most workers will probably resign from the unions. And if this happens, the unions will in turn no longer have sufficient means to improve the conditions of the workers, who will no longer have anyone to protect them and to further their interests. (Dalberg-Larsen 2001: 108)

But are human rights eroding the conventional solidarity ingrained in the Danish model? We should be sceptical about this claim. Several human rights reforms—relating to freedom of association, the right to a fair trial and discrimination in the workplace—have been implemented since 2000 without eroding the Danish labour model. While the level of unionisation is declining in countries such as Sweden and Denmark, it nonetheless remains high in comparison with other European countries. In 2001, the share of employees organised in trade unions was 74 per cent in Denmark and 78 per cent in Sweden, much higher than Germany at 23 per cent, France at 10 per cent and the US at 13 per cent (Jensen 2007: 72). Although in 2009 that share has fallen in Denmark to 68 per cent (Due and Madsen 2009), it has been declining there since the mid-1990s (and for even longer in most other Western countries), making it unlikely that recent human rights reforms have had a direct effect on the level of unionisation. Declining levels of unionisation are more likely to be related to rising levels of prosperity in

Restructuring the National Welfare Space 225 Western society in general and, consequently, a less immediate or self-evident individual need for collective action (cf Thuesen 2008). Indeed, even sceptics such as Dalberg-Larsen (2001) recognise that the Danish model needs reform, as it tends to function according to an insider logic that secures rights mainly for those groups represented at the executive level of the trade unions—typically middle-aged men from the majority population. Women, ethnic minorities, the elderly and people with disabilities are less well represented within the system. Therefore, rights-based legislation may have beneficial effects on the model, securing legal remedies for groups whose rights and interests have all too easily been overruled by the existing institutions.

RESTRUCTURING THE NATIONAL WELFARE SPACE

The inclusion of ethnic minority groups in the labour market represents an important case in relation to discussions about conventional versus cosmopolitan ‘solidarity of strangers’ (Dean 1996). According to international human rights principles, discrimination based on race, ethnicity, religion or nationality in relation to recruitment or employment is an illegitimate practice. The discrimination issue has also been raised by NGOs and politicians in the Scandinavian welfare states, where a growing segment of the population comprises non-Western immigrants, refugees and their offspring. The extent to which politicians, employers and trade unions engage in the provision of equal access to the labour market for all ethnic groups is thus an indicator of the establishment of broader perceptions of membership within the national solidarity space. As a result of criticism from various UN and International Labour Organization (ILO) bodies, EU initiatives, and pressure from international and national human rights NGOs, the Scandinavian countries have gradually passed more comprehensive laws on non-discrimination. Sweden introduced its first law against discrimination in the labour market in 1994 (Banakar 2003: 288ff), backing it with an Ombudsman against Ethnic Discrimination. Denmark introduced legislation prohibiting discrimination in the labour market in 1996, but without such organisational oversight (Justesen 2003: 94ff). And as Sweden and Denmark are members of the EU, both countries amended and strengthened their legislation after the EU passed two directives on equal treatment in 2000 (Directives 2000/43 and 2000/78). Despite attempts by nationalistic parties in the Danish Parliament to obstruct the implementation process, these two directives were ultimately incorporated, resulting in stronger anti-discrimination legislation in Denmark and the establishment of a new Complaints Committee on Ethnic Equal Treatment. In this way, like the Swedish Ombudsman against Ethnic Discrimination, the Danish Committee could issue a critique

226 Frederik Thuesen in cases of discrimination but could not issue legally binding decisions.3 In 2009, this Danish legislation was further strengthened by the replacement of the Complaints Committee on Ethnic Equal Treatment with the Board of Equal Treatment, an institution with the authority to make final and legally binding decisions. While we cannot yet evaluate the effects of the work of the Danish Board of Equal Treatment, Swedish socio-legal scholar Reza Banakar has done so for the Swedish Ombudsman, comparing Swedish legislation on gender equality with similar legislation on ethnic equality (Banakar 2003: 275–302). Despite a preponderance of cases on ethnic discrimination, Banakar shows that legislation related to gender discrimination has led to the resolution of more cases, either through mediation or the courts, than has legislation related to ethnic discrimination. According to Banakar, the explanations are twofold, both of which are found in history and contemporary politics. First, as in the other Scandinavian countries, gender equality has been promoted in Sweden by strong women’s movements for more than 100 years, whereas ethnic equality is a political goal not only with a much shorter history but also with support from weaker social movements. Second, the ‘iron triangle’ of administration, trade unions and employers organisations—crucial actors in relation to the labour market—has shown no efficient support for initiatives for countering ethnic discrimination (Banakar 2003: 300). For Denmark, Australian labour market sociologist John Wrench (2004) argues that the consensus ideals embedded in the Danish model hinder Danish trade unions from taking strong measures against racism and discrimination. Compared to British trade unions, Danish unions are more cautious when it comes to criticising racism and discrimination, because they are more influenced by consensus ideals and practices. However, my research shows that both Danish trade unions and employers’ organisations have taken initiatives towards countering ethnic discrimination in the labour market (Thuesen 2008: 199–235), specifying the norms for equal treatment for ethnic minorities in some collective agreements. Moreover, in 2004, a trade union knowledge centre on ethnic integration in the labour market was established. Although it was closed in 2007, other bodies have since been established. Even though substantial organisational initiatives on the ground have been tentative, the political and organisational rhetoric is moving towards a more unanimous stand against racism and discrimination. Furthermore, anti-discrimination measures do not depend merely upon political and organisational goodwill; they also garner support from economic globalisation, forcing an increasing number of private companies

3 For a description of the work of the Swedish Ombudsman against Ethnic Discrimination, see www.do.se. For information on the Danish Board of Equal Treatment, see www.ast.dk.

Restructuring the National Welfare Space 227 in Scandinavia to draw up and implement corporate anti-discrimination policies. To a growing extent, exporting companies need to document the existence of such intra-firm measures if they want to do business with companies in the US, where such policies have for a long time been an organisational requirement. Likewise, until 2008, the Danish economy was booming, generating a severe labour shortage. These economic trends contributed to the inclusion of more immigrant and ethnic minority workers in the labour market. Thus, from 1997 to 2007, the rate of employment among immigrants from non-Western countries and their children rose in Denmark from 34.8 per cent to 53.4 per cent. Among ethnic Danes, the figures were 75.3 per cent and 78.7 per cent, respectively (Statistics Denmark 2008). However, research shows that discrimination is still taking place in the labour market—for instance, in restrictions to the access of ethnic minority groups to vocational training (Slot 2007). And as export contracts and labour shortages cannot solve the problem of unequal access to the labour market, anti-discrimination legislation is still necessary. National legal and political measures sparked by international human rights law may encourage the integrative effects of a capitalist economy on marginalised groups. In that sense, human rights promote a cosmopolitan solidarity in the labour market. Still, as we would expect from Ferrera’s theory of bounded structuring, membership perceptions are changing slowly within workplaces, trade unions and among the general population. Without more encompassing membership perceptions, it will be difficult to establish viable forms of cosmopolitan solidarity in the sense of moral obligations for providing aid that leads to individual or collective actions crossing ethnic and religious boundaries. This is still needed in order to embed the agenda of nondiscrimination in the institutional framework of the labour market. In that sense, the Danish labour market still oscillates between conventional and cosmopolitan solidarity.

BETWEEN CONVENTIONAL AND COSMOPOLITAN SOLIDARITY

Contemporary sociology defines human rights as vehicles or as ‘juridical expressions of social solidarity’ (Turner 2006: 26). Nevertheless, to understand the potential and pitfalls of human rights as such vehicles of solidarity, we still need to explore the concrete effects of human rights on social processes. Focusing on the Danish welfare state, I have shown how human rights in combination with EU regulation open up the national welfare space to migrant workers and refugees. In that process, human rights become part of national political struggles over who should be granted access to the territory of the welfare state.

228 Frederik Thuesen Since 2000, the outcome of these struggles in Denmark has been manifest in increasingly severe restrictions on the rights of immigrants and refugees who thus become ‘denizens’ rather than citizens. Since the early 1960s, many refugees and migrants have been granted access to the territory of the Danish welfare state, but newcomers are finding their rights increasingly restricted. In this area we must talk about cosmopolitan solidarity limited in both scope and content. The limitations have been imposed by politics based on conventional solidarity, fuelled by nationalistic membership perceptions prevalent in large segments of the population and permeating various institutions of the welfare state. Some of these institutions account for the organisational framework of the Danish labour market. Yet, despite organisational resistance to change, human rights have also affected these institutions. According to critics (Dalberg-Larsen 2001), legislation sparked by international human rights may weaken worker incentives to join trade unions, with the potential effect of weakening the Danish model. Since the mid-1990s, we have witnessed declining membership rates in the Danish trade unions, a trend that may be related to rights being secured in state legislation and thereby eroding the need for collective agreements. Nevertheless, I have argued that factors other than human rights, such as rising prosperity levels in the population, are primarily responsible for the weakening of the incentive for collective action and thus for the decline in the trade union membership rates. In addition, I have also argued that human rights may help the Danish model to cope with some of the challenges connected to an increasingly multinational and multicultural labour market. Since the late 1990s, the employment rate among immigrants and their descendants has greatly increased, making it unlikely that the more recent introduction of stronger anti-discrimination legislation in the labour market is the immediate cause for this trend. Nevertheless, since 2000, the introduction, strengthening and implementation of such legislation has run parallel to a trend in which some of the main actors in the labour market, and many individual firms in particular, now find discrimination less acceptable than before. Therefore, anti-discrimination legislation most likely contributes to establishing a notion of equality in work life, thus contributing to a more cosmopolitan labour market. Sociological theories such as those presented by Habermas and Ferrera help us understand the nature of these processes. I have previously defined solidarity as moral obligations leading to individual or collective actions for providing aid. Habermas’ concept of a human rights-based cosmopolitan solidarity is relevant in this regard, because human rights represent a valuable communicative resource to political or organisational debates. Although human rights are not the dominant resource in these contexts, they may still influence deliberations, negotiations and ultimately percep-

Restructuring the National Welfare Space 229 tions of what constitutes membership, gradually leading towards forms of cosmopolitan solidarity that are not only reactive but also active in daily work life. Ferrera’s theory of bounded structuring and his argument that solidarity thrives within boundaries defined by territory and membership is also relevant to an analysis of the historical composition of the welfare state and the changes it is currently undergoing. Today, new territorial boundaries are drawn both in international human rights and EU regulation, overlapping national legislation. Regarding membership, new boundaries in terms of workplace communities are being drawn in relation to increasing national and ethnic diversity. Ferrera’s theory of bounded structuring focuses our attention on the constitution of new solidarity spaces, since even cosmopolitan solidarity based on human rights cannot do without boundaries. Cosmopolitanism apparently needs embedding in existing societal institutions parallel to the construction of new supranational institutions, and only in combination will these two processes lead to more encompassing solidarity spaces. Human rights represent a vision of cosmopolitan solidarity, and the existence of the international human rights regime is one of the reasons that Fine and Boon argue that cosmopolitanism ‘is becoming a common sense of our times’ (Fine and Boon 2007: 8). If the vision and practice of cosmopolitan solidarity is to make progress, both nationally and internationally, building new forms of solidarity, such as those that fuelled the construction of the Scandinavian welfare state, is a necessity. Although human rights are part of these construction processes, many other building blocks are also required. While we still need to improve our understanding of societal processes involving human rights, this analysis has shed light on some of them, pointing to the way in which these processes often oscillate between conventional and cosmopolitan solidarity.

REFERENCES Banakar, R (2003) Merging Law and Sociology. Beyond the Dichotomies in Socio-Legal Research (Berlin, Galda and Wilch Verlag). Bayertz, K (ed) (1999) Solidarity (Dordrecht, Kluwer Academic Publishers). Beck, U (2000) ‘The Cosmopolitan Perspective: Sociology of the Second Age of Modernity’ 51 British Journal of Sociology 79. Bertilsson, M (1993) ‘An Ancient Science? On the Continuing Relevance of Law’ 1 Studies of Higher Education and Research 2. Bjørnson, Ø (2001) ‘The Social Democrats and the Norwegian Welfare State: Some Perspectives’ 26 Scandinavian Journal of History 197. Brunkhorst, H (2005) Solidarity. From Civic Friendship to a Global Legal Community (Cambridge, MA, MIT Press).

230 Frederik Thuesen Bruun, N (1992) ‘The Nordic Model for Trade Union Activity’ in B Flodgren, N Bruun and M Halvorsen (eds), The Nordic Labour Relations Model (Aldershot, Dartmouth). Calhoun, C (2007) Nations Matter. Culture, History, and the Cosmopolitan Dream (London, Routledge). Christiansen, NF and Petersen, K (2001a) ‘The Dynamics of Social Solidarity: The Danish Welfare State 1900–2000’ 26 Scandinavian Journal of History 177. —— (2001b) ‘The Nordic Welfare States: A Historical Reappraisal’ 26 Scandinavian Journal of History 153. Dalberg-Larsen, J (2001) ‘Human Rights and National Legal Cultures: The Case of Labour Law’ in K Hastrup (ed), Legal Cultures and Human Rights: The Challenge of Diversity (The Hague, Kluwer Law International). Dean, J (1996) Solidarity of Strangers: Feminism after Identity Politics (Berkeley, University of California Press). Donnelly, J (1999a) ‘Human Rights, Democracy, Development’ 21 Human Rights Quarterly 608. —— (1999b) ‘The Social Construction of Human Rights’ in T Dunne and NJ Wheeler (eds), Human Rights in Global Politics (Cambridge, Cambridge University Press). Due, J, Madsen, JS, Jensen, CS and Petersen, LK (1994) The Survival of the Danish Model (Copenhagen, Jurist- og Økonomforbundets Forlag). —— and Madsen JS (2009) ‘Vigende organisationsgrad’ Notat (29 May). Available at: www.faos.ku.dk. Durkheim, E (1983) ‘The Evolution of Punishment’ in S Lukes and A Scull (eds), Durkheim and the Law (Oxford, Martin Robertson). Esping-Andersen, G (1990) The Three Worlds of Welfare Capitalism (Cambridge, Polity Press). Ferrera, M (2005a) The Boundaries of Welfare (Oxford, Oxford University Press). —— (2005b) ‘Towards an “Open” Social Citizenship? The New Boundaries of Welfare in the European Union’ in G De Búrca (ed), EU Law and the Welfare State. In Search of Solidarity (Oxford, Oxford University Press). Fine, R and Boon, V (2007) ‘Cosmopolitanism: Between Past and Future’ 10 European Journal of Social Theory 5. Flora, P, Kuhnle, S and Urwin, D (1999) State Formation, Nation-Building, and Mass Politics in Europe. The Theory of Stein Rokkan (Oxford, Oxford University Press). Freeman, M (2002) Human Rights. An Interdisciplinary Approach (Cambridge, Polity Press). Habermas, J (1998a) ‘On the Relation between the Nation, the Rule of Law, and Democracy’ in C Cronin and P De Greiff (eds), The Inclusion of the Other (Cambridge, MA, MIT Press). —— (1998b) ‘Struggles for Recognition in the Democratic Constitutional State’ in C Cronin and P De Greiff (eds), The Inclusion of the Other (Cambridge, MA, MIT Press). —— (2001a) ‘The Postnational Constellation and the Future of Democracy’ in The Postnational Constellation (Cambridge, Polity Press). —— (2001b) ‘Why Europe Needs a Constitution’ 11 New Left Review 5.

Restructuring the National Welfare Space 231 Hammer, T (1990) Democracy and the Nation-State: Aliens, Denizens and Citizens in a World of International Migration (Aldershot, Gower). Jensen, CS (2002) ‘Denmark in Historical Perspective: Towards Conflict-Based Consensus’ in S Berger and H Compston (eds), Policy Concertation and Social Partnerships in Western Europe. Lessons for the 21st Century (New York, Berghahn Books). —— (2007) Arbejdsmarkedsrelationer i Danmark (Copenhagen, Jurist- og Økonomforbundets Forlag). Johnson, MG (1998) ‘A Magna Carta for Mankind: Writing the Universal Declaration of Human Rights’ in UNESCO (ed), The Universal Declaration of Human Rights. A History of its Creation and Implementation 1948–1998 (Paris, UNESCO Publishing). Jørgensen, H and Madsen, PK (2007) ‘Flexicurity and Beyond—Reflections on the Nature and Future of a Political Celebrity’ in H Jørgensen and PK Madsen (eds), Flexicurity and Beyond (Copenhagen, DJØF Publishing). Justesen, P (2003) Racisme og diskrimination—Danmark og Menneskerettighederne (Copenhagen, Akademisk Forlag). Klausen, J and Wolfe, A (2000) ‘Other People’ (20 December) Prospect Magazine 28. Krarup, S (2000) Dansen om Menneskerettighederne (Copenhagen, Gyldendal). Kvist, J (2004) ‘Does EU Enlargement Start a Race to the Bottom? Strategic Interaction among EU Member States in Social Policy’ 14 Journal of European Social Policy 301. Lundberg, U and Åmark, K (2001) ‘Social Rights and Social Security: The Swedish Welfare State, 1900–2000’ 26 Scandinavian Journal of History 157. Marshall, TH (1964) ‘Citizenship and Social Class’ in Class, Citizenship, and Social Development (Garden City, Doubleday & Company). Schmid, H (1995) ‘Velfærdsstatens Solidaritetsformer’ 6 Dansk Sociologi 30. Slot, LV (2007) Praktikpladser og Formidlingspraksis. Praktikkonsulenten i spændingsfeltet mellem virksomhedskrav og hensynet til ikke-diskrimination (Copenhagen, Rockwool Fondens Forskningsenhed). Statistics Denmark (2008) ‘Indvandreres beskæftigelse er øget’ Nyt fra Danmarks Statistik (18 March). Available at: www.dst.dk. Stjernø, S (2005) Solidarity in Europe: The History of an Idea (Cambridge, Cambridge University Press). Thuesen, F (2008) ‘Menneskerettigheder & Solidaritet. Et studium med fokus på Arbejdsmarkedet’ (PhD dissertation, Department of Sociology, University of Copenhagen). Thuesen Pedersen, F (2005) ‘En kontroversiel rettighed: Negativ foreningsfrihed og solidaritet på det senmoderne arbejdsmarked’ 23 Nordic Journal of Human Rights 174. Turner, BS (2006) Vulnerability and Human Rights (Pennsylvania, Pennsylvania State University Press). Wilkie, M (1990) ‘Victims of Neutrality. Race Discrimination in Denmark’ 59 Nordic Journal of International Law 4. Wrench, J (2004) ‘Trade Union Responses to Immigrants and Ethnic Inequality in Denmark and the UK: The Context of Consensus and Conflict’ 10 European Journal of Industrial Relations 7.

11 Adapting Locally to International Health and Human Rights Standards: An Alternative Theoretical Framework for Progressive Realisation LESLEY A JACOBS

Human rights can and should be declared universal, but the risk of having one’s rights violated is not universal. (Farmer 2005: 231)

A

LTHOUGH HEALTH AS a human right was acknowledged by the international human rights community more than 50 years ago in the 1948 United Nations Declaration of Human Rights and its significance was reiterated in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), the distinguished medical anthropologist and human rights physician Paul Farmer still felt compelled to write in 2005: The field of health and human rights, most would agree, is in its infancy. Attempting to define a new field is necessarily a treacherous enterprise. Sometimes we appear to step on the toes of those have long been at work when we mean instead to stand on their shoulders. (Farmer 2005: 220)

The arguments of this chapter put me at risk of stepping on toes, although the contribution it proposes to make to the field of health and human rights is a very modest one. The purpose of this chapter is to re-examine the well-known statement in Article 2 of the ICESCR, which allows that social rights, including the right to the highest attainable standard of health, can be fulfilled through progressive realisation. Article 2 is a reflection of the belief common in the international human rights community that the fulfilment of health as a human right, like other social and economic rights, is contingent on the particular socio-economic circumstances that exist in the country where the right holder

234 Lesley A Jacobs lives. The point is that, unlike, say, the right not to be tortured, there is not a universal and uniform basis for determining what a right to health might require of others, in particular of Member States of the United Nations (UN). Explaining how the right to health can be a human right whilst allowing that what it requires can vary from country to country poses difficult theoretical and practical challenges. The theoretical challenges are principally ones of conceptual coherence and integrity. The practical challenges are largely ones of implementation and arise perhaps most often for transnational human rights organisations. How can these organisations profess a commitment to universal human rights standards whilst delivering non-uniform healthfocused programmes? The discussion in the present chapter is focused on meeting the theoretical challenges with a view to laying out a path for undertaking empirical research that compares the compliance of different countries with international law dealing with the right to health.

HEALTH AND HUMAN RIGHTS: THREE DEVELOPMENTS

The alternative theoretical framework for thinking about progressive realisation that I advance in this chapter is grounded on three important developments that have marked the field of health and human rights over the past 15 years. The first development revolves around scepticism about the separation of civil and political rights from social and economic rights. Of course, among political philosophers, such scepticism has deep roots and there exist numerous examples of philosophical arguments designed to show that such a separation is nonsensical (see eg my book: Jacobs 1993). In the field of health and human rights, however, this scepticism does not stem from philosophical roots; rather, it has its origins in the experiences of physicians and human rights activists responding to the AIDS epidemic in the late 1980s and early 1990s. Perhaps the best-known proponent of this view was Jonathan Mann, who served as the first head of the World Health Organization’s Global Programme on AIDS. In the course of that role, Mann came to believe that the protection of civil and political rights was not only compatible with the fight against AIDS but was central to that struggle. In effect, what Mann argued was that the global AIDS epidemic had its origins not just in the contagion of a newly emerging infectious disease but also in social vulnerability. His point was that discrimination and stigma are a fundamental part of the problem, and that for this reason AIDS is also a human rights issue (Mann 1998: 143–49). The impact of this reasoning is most evident in the UN’s Millennium Goals. The second development revolves around the increasing recognition in the late 1990s of the so-called social determinants of health. At issue here is the view of health, most commonly identified with Richard Wilkinson and Michael Marmot, as not simply dependent on individual behaviour or

Framework for Progressive Realisation 235 exposure to risk, but on how a population’s economic and social structure shapes health (Marmot and Wilkinson 1999; see also Wilkinson 1996). The point here is that the ambit of health concerns extends not just to medical care and public health measures but also to social issues such as poverty, housing, social exclusion and the environment. The conclusion of this research is that health as a human right is linked seamlessly to other human rights, such as the right to an education, income security or housing. The third strand of important developments in the field of health and human rights is even more recent than the previous two. Just a few years ago, in The New York Review of Books, Tony Judt predicted a resurrection of Marxism on the grounds that despite all of its failures, ‘no one else seems to have anything very convincing to offer by way of a strategy for rectifying the inequities of modern capitalism, the field is once again left to those with the tidiest story to tell and the angriest prescription to offer’ (Judt 2006: 92). However, here Judt overlooks the profound influence of Paul Farmer (among others), who invoked the framework of health and human rights to critique such inequities, a critique that builds on the comprehensive view of health explicit in the two previous strands. Flowing from this comprehensive view is the claim that most of the inequities and inequalities of neoliberalism and global capitalism are manifest in assaults on the health of populations. By putting health and healing at the centre of that critique, Farmer writes that ‘we tap into something truly universal— concern for the sick’ (Farmer 2005: 238; see also Farmer 2001).

THE TWO COMPONENTS OF THE RIGHT TO HEALTH: FREEDOMS AND ENTITLEMENTS

The right to health has been interpreted by the UN as involving two distinct components: freedoms and entitlements (UN Economic and Social Council 2000: para 8). The essential freedoms consist of the right to make one’s own decisions about health and body, including consensual medical treatment, and the right to be free from interference and discrimination. Entitlements, on the other hand, are held against an individual’s state or government. These entitlements do not include good health since this cannot be ensured by a state. Therefore, the UN Economic and Social Committee observed that ‘the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health’ (UN Economic and Social Council 2000: para 9). Now, it might seem to some that within the right to health, the components that constitute freedoms are universal, whereas entitlements depend on local conditions. The logic is somewhat as follows: fulfilment of entitlements will vary depending on the wealth of the healthcare resources available

236 Lesley A Jacobs in a particular country, whereas the fulfilment of freedoms depends not on the country’s wealth but on the political will not to interfere with those freedoms. In other words, even the poorest nation can respect freedoms if it so pleases. The underlying assumption is that freedoms are negative (their fulfilment simply requiring tolerance), whereas entitlements are positive (requiring action and resources). Yet, the claim that freedoms merely create negative duties for states is commonly disputed. Instead, such criticism holds that taking freedoms seriously requires having institutional structures that enable persons to protest or seek protection when the state or others transgress against their freedoms, and these institutional structures can be costly (see Holmes and Sunstein 2000). Thus, respecting the freedoms that embody the right to health entails costs that some countries are more able to meet than others; therefore, meeting these costs cannot be universally assumed. There is an even more powerful refutation to the claim that the freedoms that constitute the right to health are universal, and these are found in the health law anti-paternalistic developments. In the US, the most common example is the informed consent movement, which came of age in the 1970s. The movement emphasised the importance of patients making decisions themselves about their treatment rather than physicians acting on their behalf. It is therefore the physicians’ responsibility to provide accurate information to a patient so that he or she can, in turn, decide about treatment. Legal reforms in the areas of suicide, reproduction, mental health, personal health directives and living wills to some degree all embrace this anti-paternalism. The freedoms at the core of the right to health are a reflection of anti-paternalism. Yet, it is also very important to recognise the culturally specific way in which the counterstroke to paternalism is configured in the US, Canada and most Western European countries in contrast with other settings. The power shift in the 1970s and 1980s was from decision-making by physicians and states to individual patients. However, an illuminating contrast can be made to Asia. In countries such as China and Japan, there may be a similar emphasis on physicians sharing information; however, the focus is less on the patient alone and more on the patient’s family making informed decisions. Medical treatment is viewed more commonly as a collective decision taken by one’s family rather than an individual choice. In this way, the freedoms to be protected by the right to health are those of the patient and his or her family, not just those of the patient alone. Nevertheless, from a rights perspective, is the mindset that prevails in China and Japan with regard to anti-paternalism wrong? If not, then, indeed, how universal are the freedoms of the right to health? Health entitlements raise an altogether different host of questions. What is interesting and significant here is that these entitlements are to ‘in-kind’ benefits (see eg Jacobs 2004a as well as chapter seven of Jacobs 2004b). Familiar in-kind benefits other than healthcare include education, housing

Framework for Progressive Realisation 237 and food stamps, which differ from benefits in cash. Common cash benefits are child benefits, tax credits, social assistance, unemployment insurance, disability insurance and social security pensions. This second type of benefit leaves it up to the recipient on what to spend the cash. The central point is that the entitlements at issue in the right to healthcare involve the use of inkind transfers and do not allow individuals to trade-off healthcare benefits for cash or other goods. But why is this significant or even relevant? Consider the case of someone who has contracted a serious illness. An operation can be performed that will treat this illness. Suppose that the patient is a citizen of a state that operates a healthcare scheme that guarantees universal access to healthcare and that the operation in question will be covered. But, oddly enough, the patient would rather have access to the money that the operation would cost to spend elsewhere, on some good he or she values more than his or her health. It is easy to imagine, for instance, a terminally ill patient opting for a cash benefit in order to spend it as he or she pleases instead of spending it on expensive medical equipment designed to prolong his or her life. Why shouldn’t the healthcare scheme compensate him or her in this manner rather than pay for the operation? The simple answer is that the right to health amounts only to an entitlement to the healthcare, not the cash equivalent. This view on entitlements is significant in three respects. First of all, it undermines a common argument that the right to health is fulfilled if an individual could, at some point, have afforded to buy health insurance but chose not to. Fundamentally, the entitlements to which the right to health give rise are not a matter of buying power but rather of available healthcare resources that can meet a patient’s needs. Second, this emphasis on in-kind entitlements revolves around the idea that the right to health grounds state measures that are redistributive in nature, targeting only certain citizens (the sick) for benefits. Likewise, when healthcare resources are depleted or unavailable, it is not everyone who suffers, but only the sick and their families. Finally, seeing entitlements as being in-kind drives home the point that there is no universal form of in-kind benefit provision. For instance, in the case of maternal health, some societies may stress the need for obstetricians, while others may advocate midwives. In this way, different societies will have varying beliefs about what constitutes the appropriate benefits to provide.

LOCAL CULTURE AND INTERNATIONAL HUMAN RIGHTS

The broader point I wish to make is that when the right to health is understood in terms of freedoms and entitlements, once we begin to move from a broad level of abstraction to the more concrete realisation of that right, local culture matters. This should not be a surprise. Health is a social

238 Lesley A Jacobs practice and for that reason what constitutes health needs, which of those needs are most urgent and how those needs should be met are not reducible to a single model. From an institutional perspective, international human rights require compliance, but they also set standards for that compliance. The clear logic of international law is that international human rights, such as the right to health, set standards with which Member States must comply, and through various treaties, states are given the opportunity to ratify certain rights. However, does this mean that the treaty standards that are founded on a particular human right are the same for all states? Or should, for example, developing countries be subject to different standards than advanced industrial societies? The international human rights community has typically framed its response to these questions in two ways. However, in my opinion, neither adequately takes into account the point I have made regarding the significance of local culture in understanding the demands of the right to health. One response has been to deny any flexibility in the standards set by international human rights. For example, the UN in the 1993 Vienna Declaration and Programme of Action stated that: The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. (VDPA 1993)

The underlying point is that the universality of international human rights means that they are culturally neutral. As Paul Sieghart observed: ‘These standards are deliberately designed to be culturally and ideologically neutral … The distinguishing characteristic of all human rights is that they are universal’ (Sieghart 1985: 40, 75). This statement may seem plausible when discussing the right not to be tortured (but even then there are surprisingly different perspectives on what exactly constitutes torture, as we have seen in the post-9/11 period), but completely untenable in the case of social and economic rights such as the right to health. What really needs to be understood is how human rights can be both universal while also designed to recognise local cultural differences. The other response in the international human rights community has been to acknowledge the flexibility of human rights standards; however, this has not been in response to local culture but in response to societal wealth and development. This sort of response is evident in Article 2 of the ICESCR, which allows for the ‘progressive realization’ of all social rights, including the right to health. The underlying principle is designed to acknowledge that developing countries often lack the resources to ensure fully social and economic rights, such as the right to adequate healthcare, and hence seems

Framework for Progressive Realisation 239 to suggest considerable flexibility in terms of meeting the demands of those rights. In its 2000 general comments about how to implement the ICESCR, the UN Economic and Social Council insisted that: The progressive realization of the right to health over a period of time should not be interpreted as depriving States parties’ obligations of all meaningful content. Rather, progressive realization means that States parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of [the right to the highest attainable standard of health]. (UN Economic and Social Council 2000: para 31)

The progressive realisation provision of the ICESCR obviously allows for some flexibility in its demands on Member States. Yet, part of what is worrisome about this flexibility with regard to what constitutes compliance with international obligations in the realm of health and human rights, such as in the case of China, is that any substantive sense of non-compliance risks being lost. Should this occur and what is labelled non-compliance be reduced largely to arbitrary or discriminatory conduct, the specific content of the international obligations at issue is disregarded, and it is here that some of the grossest violations of human rights to health occur (Rubenstein 2004a: 849). Leonard Rubenstein writes: ‘If, for example, a state violates its obligations to implement programs for maternal health, allowing women to suffer and die, it should not matter that the decision was not arbitrary’ (Rubinstein 2004b: 881). Another danger is that such flexibility has the potential to open the floodgates for state justification of non-compliance. For instance, does the progressive realisation provision allow China to trade the right to health for the sake of economic development? The 1997 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights state that: The State cannot use the ‘progressive realization’ provisions in article 2 of the Covenant [ICESCR] as a pretext for non-compliance. Nor can the State justify derogations or limitations of rights recognized in the Covenant because of different social, religious and cultural backgrounds. (MG 1998: 694–95)

The value of the progressive realisation provision is that it is predicated on the recognition of non-uniform compliance with international human rights such as the right to health. In other words, it represents a rejection of the rigidity of the view that there is only one model of compliance. However, progressive realisation has been seen principally as a licence for partial rather than full compliance with rights standards. The reasoning is that whilst developed industrial countries can be expected to have the wealth and resources to comply fully with the demands of a right to health, less developed countries as of yet lack the means to comply fully. The basis for this non-uniform compliance is the idea that different countries have varying timelines for realising the rights. The space for non-uniform compliance is construed only in terms of when human rights standards are met.

240 Lesley A Jacobs My emphasis on local culture has sought to establish that in the case of the right to health, non-uniform compliance should also allow for differences in terms of what freedoms and entitlements are at stake and how those requirements are met. In general terms, what constitutes international law is a matter of interpretation, which is no different from the more familiar question of what constitutes law in a domestic sphere. It is now widely accepted that the latter question entails an interpretive exercise and I am simply extending the claim to international law (Dworkin 1986). But the relevant interpretative community for international law is a complex issue. Much of the focus has, in recent years, been on international organisations and institutions as being the interpretative community for international human rights. Yet, in the context of compliance, there are also important interpretative communities within a country that has ratified a human rights treaty. Indeed, it is those interpretative communities that are the most significant for predicting compliance, for it is they that build the bridge between international law and Member States. Variations in compliance with international human rights law can be understood as a function of different levels of normative consensus between local cultural norms and international law. In other words, how receptive a particular country is to a particular international law depends on the normative fit between that law and local culture or, more precisely, how well that law can be adapted to local cultural norms. Local interpretative communities provide interpretations of the international law that reflect the adaptive potential of the local culture. In the case of health, this would be reflected in the types of freedoms and entitlements that are given priority in an interpretation of the right to health. The broader point is that when international rules are ratified by state parties, that ratification does not de facto make those rules local; rather, it is through the process of interpretation that those rules become localised.

IDENTIFYING INTERPRETATIVE COMMUNITIES

The high profile I am giving to interpretative communities in the implementation of international human rights is reinforced by some of the recent sociolegal work on the realisation of international human rights. This work has focused in particular on the importance of non-governmental organisations (NGOs) in the development of local human rights practices. Sally Merry has recently carefully documented, in a series of country case studies, the way in which local rights-seeking women’s organisations have played a crucial role not simply in advancing women’s rights in local communities but in shaping locally and in international forums how those rights are interpreted (Merry 2006). In the case of the right to health, it is crucial to distinguish between at least five kinds of interpretative communities that can and do play a

Framework for Progressive Realisation 241 fundamental role in the building of bridges between local culture and international law. The first kind of interpretative community are those that are broadly conceived civil society organisations. In the developing world, many of these organisations have a patient-based membership: for example, women’s health groups or groups consisting of persons with HIV along with their families and advocates on their behalf. Other organisations which typically focus on broader access to healthcare issues, such as People for Health, characteristically stress the inconsistency between international human rights standards and local health practices or the detrimental effects of economic globalisation on those local practices. The second category of interpretative community are also NGOs based in civil society, but rather than having a broad membership, they are characteristically composed of healthcare workers and professionals who are concerned with global health issues. The Red Cross and Médicins des Frontières (Doctors Without Borders) are both prominent examples What tends to distinguish this kind of community from others is the fact that it is ordinarily involved in health issues in a number of different countries while trying to maintain a single unifying message. The third category of interpretative community are the various wellendowed foundations that intervene in global health issues. Examples of these foundations include the Ford Foundation, the Bill and Melinda Gates Foundation and the Carter Centre. While these foundations undeniably provide significant financial resources that support local health initiatives, the judgements that they make and the rationales they provide about what to support shape significantly how human rights to health are seen locally. The fourth kind of interpretative community are the quasi-professional legal actors and institutions in the field of health. Some of these are involved in cause lawyering around local health issues. Since the 1980s, the highest-profile cause lawyering has involved representing persons with HIV and cases concerning environmental justice. The judiciary branch has also been part of this interpretative community as well as adjudicators and others involved, for example, in World Trade Organization (WTO) and TRIPS disputes over pharmaceuticals. The final kind of interpretative community are the formal agencies of the UN. Some of these, such as the World Health Organization and the World Bank, are explicitly involved in local healthcare in developing countries. Others, such as the committees of the Human Rights Council, explicitly offer interpretations of the various relevant human rights treaties. It is hard to deny that these five kinds of interpretative communities are crucial to understanding the reception of international human rights to health in member countries. And, by emphasising their interpretative role, I have sought to drive home the point that there is no uniform model for rights compliance, but rather a non-uniform model that reflects differences in local culture.

242 Lesley A Jacobs THE DYNAMICS OF HUMAN RIGHTS INTERPRETATION

What dynamics influence these interpretative communities? Can differences in dynamics explain or predict different interpretations of international human rights norms? Can these dynamic factors be investigated systematically by sociologists or other social science researchers interested in better understanding the reception of international health law in particular countries? Let me suggest three crucial factors that are at play here (the following three paragraphs draw in part on Jacobs and Potter 2006: 142–66; see also Potter 2003: 119–50). The first factor is one of perception. How are international human rights perceived by local communities? In many Western industrial societies, international human rights norms are sometimes perceived as regulatory devices for developing countries that set minimal threshold standards for those countries. In other words, international human rights are perceived by many in Western industrial countries as not applying to them. The debate over so-called American exceptionalism and human rights is perhaps the best-known illustration of this view (Ignatief 2006). The impact of this perception is evident in, for example, the way in which the US Supreme Court has treated international law in a series of decisions in the past five years (Feldman 2008). In other countries such as China or India, international human rights law may be viewed as a matter of foreign standards intruding on local areas of jurisdiction and, for that reason, should be treated with caution. The result is that perceptions influence the interpretation of foreign rules and local norms and practices. Accordingly, in the area of human rights, this may involve perception about what the international rule regime requires in terms of priorities, outcomes and processes about relations of citizens to their governments, and perception about local conditions and expectations. The second factor is one of ‘complementarity’. The issue here is how conflicts between local norms and practices and international norms and standards can be reconciled. Complementarity describes a circumstance in which apparently contradictory phenomena can be combined in ways that preserve essential characteristics of each component and yet allow for them to operate together in a mutually reinforcing and effective manner. In China, for example, the significant efforts in the 1990s to try to show that there is a Confucian human rights tradition can be understood in these terms. In the healthcare sector, complementarity may help explain how international standards for the assessment of health needs and delivery of healthcare can accommodate local social practices. Interpretative communities generally struggle to identify these points of complementarity. The third factor in the dynamics of interpretation is the legitimacy of the international standards. Do members of local communities support the goals and consequences of international standards? In the case of

Framework for Progressive Realisation 243 international law regulations with regard to anti-terrorism, for example, both the US and China support the legitimacy of such measures and initiatives. However, in other areas of international law, such as the rights provision for aboriginal persons or in environmental law treaties such as the Kyoto Protocol Agreement, the legitimacy of certain international laws can be called into question by local interpretative communities. In some areas, this may be reflected in a particular administration refusing to ratify a particular international treaty. In others, it may be reflected in how the international law is translated locally. Thus, in the healthcare sector, popular reactions to state-controlled reporting of infectious diseases such as HIV, SARS and avian flu may signify varying levels of perceived legitimacy for the process of localising international standards. Each of these three factors provides a site for an empiriinvestigation of specific interpretative communities in a specific country. This yields the following matrix for empirical work, which is distinctive due to the clear research agenda it provides. Table 1. Non-Uniform Compliance with the Human Right to Health in Country X Different interpretative communities

Dynamic factors influencing interpretation Perception factors

Complementarity factors

Legitimacy factors

Community-based NGOs with a health focus Health profession-based NGOs International foundations with a health mandate Quasi-professional legal actors in the field of health UN agencies focused on health

The task for the researcher is to fill in the empty cells. CONCLUSION

The progressive realisation provision of Article 2 of the ICESCR grounds the idea that there is a need to understand what constitutes a non-uniform model of compliance with international human rights standards. Whilst Article 2 recognises non-uniform compliance along timelines, the argument

244 Lesley A Jacobs here is that in the context of the international human right to health, it is also necessary to make sense of non-uniform compliance that recognises the variance that is the function of local culture. The key determinants in the model of non-uniform compliance that I have sketched here are local interpretative communities. These communities offer interpretations of the relationship between the norms underlying international human rights standards and local cultural norms. While much of the academic and policy work on the international health rights regime focuses on rule compliance, understanding such compliance requires more than simply comparing local performance against international requirements. Rather, compliance can be understood more clearly by examining the extent to which norms underlying the international regime are consonant with local norms. This can help explain compliance outcomes by differentiating between those situations where non-compliance is the result of interpretative normative conflict and those cases where by the lights of its own interpretative communities local norms are consistent with the norms of the international regime but local practices fail to satisfy international standards.

REFERENCES Dworkin, R (1986) Law’s Empire (Cambridge, MA, Harvard University Press). Farmer, P (2001) Infections and Inequalities (Berkeley, University of California Press). —— (2005) Pathologies of Power: Health, Human Rights, and the New War on the Poor (Berkeley, University of California Press). Feldman, N (2008) ‘When Judges Make Foreign Policy’ New York Times Magazine (New York, 28 September). Holmes, S and Sunstein, C (2000) The Cost of Rights: Why Liberty Depends on Taxes (New York, WW Norton). Ignatief, M (ed) (2006) American Exceptionalism and Human Rights, (Princeton, Princeton University Press). Jacobs, LA (1993) Rights and Deprivation (Oxford, Oxford University Press). —— (2004a) ‘Justice in Health Care’ in J Burley (ed), Dworkin and His Critics, With Replies by Dworkin (Oxford, Blackwell). —— (2004b) Pursuing Equal Opportunities (New York, Cambridge University Press). —— and Potter, P (2006) ‘Selective Adaptation and Health and Human Rights in China’ 9 Health and Human Rights 142. Judt, T (2006) ‘Goodbye to All That?’ 14 The New York Review of Books LIII 88. Mann, J (1998) ‘AIDS and Human Rights: Where Do We Go from Here?’ 3 Health and Human Rights 143. Marmot, M and Wilkinson, R (eds) (1999) Social Determinants of Health, (Oxford, Oxford University Press). Merry, S (2006) Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago, University of Chicago Press).

Framework for Progressive Realisation 245 MG (1998) ‘The Masstricht Guidelines on the Violations of Economic, Social and Cultural Rights’ 20 Human Rights Quarterly 694. Potter, P (2003) ‘Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms and Practices’ 2 Washington University Global Studies Law Review 119. Rubenstein, L (2004a) ‘How International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights’ 26(4) Human Rights Quarterly 845. —— (2004b) ‘Response by Leonard Rubenstein’ 26 Human Rights Quarterly 879. Sieghart, P (1985) The Lawful Rights of Mankind (Oxford, Oxford University Press). UN Economic and Social Council (2000) General Comment No. 14: Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights (11 August). VDPA (1993) ‘Vienna Declaration and Programme of Action’ (June 25). Available at: w w w. u n h c h r. c h / h u r i d o c d a / h u r i d o c a . n s f / ( S y m b o l ) / A . C O N F. 1 5 7 . 2 3 . En?OpenDocument. Wilkinson, R (1996) Unhealthy Societies (London, Routledge).

12 ‘Legal Form’ and the Purchase of Human Rights Discourse in Domestic Policy-Making: The Achievement of Same-Sex Marriage in Canada LUKE MCNAMARA*

I

N THE PERIOD 2003–05, law-makers in Australia, Canada, New Zealand and the UK took decisive action on the question of the legal status to be afforded to same-sex relationships. At one end of the spectrum, the Canadian Civil Marriage Act 2005 (commonly referred to as Bill C-38) reformulated the legal definition of marriage as ‘the lawful union of two persons to the exclusion of all others’. At the other end of the spectrum, the Australian Marriage Amendment Act 2004 expressly added the traditional common law formulation of the definition of marriage to the Marriage Act 1961 (Aust): ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. In between these two extremes of full equality-based recognition and non-recognition are the partial separate but (almost) equal recognition approaches of the UK and New Zealand. The Civil Partnership Act 2004 (UK) and the Civil Union Act 2004 (NZ) both provide for the legal recognition of a new ‘marriage-like’ relationship, while reserving the category of ‘marriage’ for heterosexual relationships. Interestingly, although the countries in question have otherwise followed reasonably similar law reform paths in the context of the fight against discrimination on the basis of sexual orientation—from the decriminalisation of homosexual sex to the prohibition of discrimination in employment, education and the provision of public services etc—in only one of the four countries did the national legislature ultimately reach the conclusion that

*

This chapter draws on research presented in McNamara 2007, particularly chapter three.

248 Luke McNamara a commitment to the fundamental human rights principles of equality and non-discrimination demanded the adoption of a new sexual orientationneutral definition of marriage. Elsewhere I have examined and compared the legislative reform stories that unfolded in Canada, the UK, New Zealand and Australia in the first half of the 2000s, in an effort to shed some light on the significance of domestic legal arrangements for the protection of human rights for the conduct and resolution of local controversies (McNamara 2007). In this chapter, my approach will be to reflect on this comparative case study exercise, and the Canadian study in particular, to contribute to the larger project of ‘examining how human rights discourse enters domestic settings’ (Gordon and Berkovitch 2007: 246). I am especially interested in the role of domestic law—its norms, instruments, institutional arrangements and processes—in this phenomenon. My analytical starting point for the wider study from which this chapter emanates (McNamara 2007) was my dissatisfaction (shared by others—see Schmidt and Halliday 2004; Verschraegen in this volume) with the narrow gaze of much legal scholarship in this area, including a tendency to regard ‘marquee’ events like the adoption of a bill of rights as the beginning and the end of the story of the domestic implementation of international human rights standards, as well as a common failure to be sufficiently attentive to the political and social preconditions and societal impacts of human rights (see Verschraegen in this volume: p 7; see also Morris 2006b). As Rob Stones has observed, rights: [S]hould not be seen either as atomistic, separate from all other considerations, or as somehow uprooted or disembedded from particular social conditions. Rights are always embedded in particular societies, located in specific times and places, with their own historical and institutional legacies and with specific sets of norms and values, themselves more or less homogenous or pluralistic. (Stones 2006: 136)

Gert Verschraegen observes elsewhere in this volume that ‘One of the significant contributions of socio-legal studies and the sociology of law has indeed been to show that in practice a strictly legal approach [to] the implementation of rights has significant limitations’ (Madsen and Verschraegen in this volume: 10). Schmidt and Halliday have made a strong case for applied socio-legal research on the domestic impact of human rights laws: The dominant force of established research on human rights combines, we believe, to leave a gap in need of redress. That gap is in seeking focused empirical study of human rights implementation at the domestic level of developed nations, where that includes an interest in institutional and individual behaviour deeper than legislatures and constitutional courts. Research on human rights, reflecting in part the concerns of international lawyers, has been slow to probe deeply into national systems to acquire empirical evidence about the dynamics of compliance with human rights norms … [S]cholars of international law in particular have not generally employed a methodological apparatus that moves significantly

Same-Sex Marriage in Canada 249 beyond the structural elements of the judicial system or the legal decision-making of judges. (Schmidt and Halliday 2004: 3; see also Campbell et al 2006; Harvey 2005; Meckled-Garcia and Cali 2006)

My study shares with Madsen a preoccupation with the relationship between the ‘internationalisation of human rights’ and the ‘process of internalising these accomplishments in the national legal and political fields’ (Madsen 2004: 86). While Madsen offered a history of this relationship in the half-century after 1945, with a focus on France and the UK, the study on which the present chapter is based centres around a four-country comparison of three contemporary human rights controversies.1 One of the greatest challenges faced by researchers who embark on projects of the type advocated by Schmidt and Halliday (2004) is that it will often be very difficult to extract law and legal form from the web of influences that determine outcomes in particular instances of political contestation where human rights claims feature prominently. Ran Hirschl has referred to ‘the question of multiple causality: disentangling the contribution of constitutionalisation from that of other societal and institutional factors is an almost impossible task’ (Hirschl 2004: 151). In a similar vein, Mark Tushnet has noted that it is often impossible to disentangle a bill of rights from the political mobilisation of which it is a part, so that it may not be possible to conclude with great certainty that the particular outcome is a result of the bill of rights or the political mobilisation (Tushnet 1996: 16). In an attempt to ‘isolate’ the variable of legal form as an influence on the domestic potency of human rights discourse, the comparative study from which this chapter emanates involved an application of the approach which is sometimes referred to as ‘most similar systems design’ (MSSD). As described by Landman (2006: 66), MSSD ‘compares different outcomes across similar countries. Comparing countries that share a host of common features allows for the isolation of those factors that may account for an outcome’. The four countries which I selected for examination— Canada, New Zealand, the UK and Australia—have, in relevant respects, a good deal in common: for example, they share an Anglo-common law tradition and they are parties to the major international human rights instruments—including the International Covenant on Civil and Political Rights (ICCPR)—and are generally regarded in the international community as relatively ‘good citizens’ when it comes to human rights. Ostensibly, they have a common commitment to respecting human rights values and associated universal standards. However, to this end, they currently employ significantly different institutional mechanisms in their domestic 1 In addition to examining the controversy over the legal recognition of same-sex relationships, the project also considered debates over the sanctity of the common law rule against double jeopardy and the challenges surrounding administrative and judicial adjudication in cases of alleged violation of hate speech laws.

250 Luke McNamara legal arrangements—what I refer to as ‘legal form’—centred around, respectively, the Canadian Charter of Rights and Freedoms 1982, the Human Rights Act 1998 (UK), the Bill of Rights Act 1990 (NZ) and, in Australia, the absence of a primary human rights instrument (see McNamara 2007: chapter one). In this chapter, I summarise the project’s main findings on the relative significance of legal form—specifically, the norms contained in, and the processes surrounding, the equality guarantee in s 15 of the Canadian Charter of Rights and Freedoms—in the story of the achievement of samesex marriage in Canada. Although the Canadian story is foregrounded, reference is also made to the impact of legal form on the contours and outcomes of the struggle over same-sex relationship recognition in Australia, New Zealand and the UK (see further McNamara 2007: chapter three). In each case, the analysis offered is based not only on scrutiny of the formal phases of judicial adjudication and legislative enactment, but also on the dynamic relationship between these events and the social movements which, respectively, advanced and resisted the case for equality-based legal recognition of same-sex relationships.2

RELATIONSHIP RECOGNITION ON THE AGENDA

The push for gay and lesbian access to the institution of marriage, or the achievement of equivalent legal recognition, has emerged over the course of the last decade or so as a prominent component of the gay and lesbian human rights movement—at least in those parts of the world where other significant milestones (such as the decriminalisation of homosexual sex and the prohibition of workplace discrimination) have been reached (Eskridge 2002; Plummer 2006; Waaldijk 2001; Wintemute 2004b). For some it has been regarded as the ‘last step’ in the achievement of full formal legal equality. For example, during the parliamentary debate on the bill that would become the Civil Union Act 2004 (NZ), New Zealand’s Associate Minister of Justice, David Benson-Pope, observed: ‘The passage of this bill, together with the Relationships (Statutory References) Bill, will mark the culmination of a long march … This journey has taken us beyond a situation in which homosexual activity was criminalized, through what has at times been only a grudging tolerance of same-sex couples, through the point where same-sex couples will finally be accorded genuinely equal respect and recognition’ (New Zealand House of Representatives, Hansard, 2 December 2004: 17388). In Canada, Svend Robinson, a prominent gay activist and former New Democratic Party MP in the Canadian Parliament, described 2 This chapter does not address legal developments after the period under review (2003–2005).

Same-Sex Marriage in Canada 251 the effect of the Civil Marriage Act 2005 in the following terms: ‘[T]he final barrier to full equality for gays and lesbian people in Canada was eliminated’ (Robinson 2005: A13). However, assigning this sort of ‘pinnacle’ status to marriage is controversial. As Murphy notes: ‘For some … the idea of same-sex marriage is just as repugnant as heterosexual marriage’ (Murphy 2004: 543; see also Auchmuty 2004; Ettelbrick 2004; cf Calhoun 2000). Of course, the formal legal status of relationships is only a part (and, for some, a relatively minor part) of the wider struggle for gay and lesbian relationship equality. Resolution of the ‘marriage issue’ is not necessarily representative of the way in which other issues of relationship benefits and responsibilities for same-sex couples have been addressed in the four countries. This is particularly so in the Australian context, where there has been a stark contrast between the responses of federal and state/territorial governments to same-sex equality demands (ALSO Foundation 2004; Gay and Lesbian Rights Lobby 2004).3 Nonetheless, the diversity of recent national-level responses to the issue of same-sex relationship ‘status’ is worthy of investigation in its own right and offers a useful micro-study for exploring larger questions regarding the role of law in rendering human rights discourse as a potent force in local decision-making, and the interplay between legal, political and societal considerations. The Canadian story of the achievement of same-sex marriage—culminating in the passage of Bill C-38 in the Canadian Parliament in 2005, after successive provincial courts had ruled that to retain the traditional opposite-sex definition of marriage would violate the principle of equality embodied in s 15 of the Charter of Rights and Freedoms—is especially revealing and will be the focus of this chapter.

CANADA: FROM ASPIRATION TO CONSTITUTIONAL IMPERATIVE

The Canadian story of the legal recognition of same-sex relationships is distinctive—not only because of the (full equality) terms in which it has resolved the issue of the legal recognition of same-sex relationships, but in the way in which the particular Charter-dominated nature of the human rights dynamic compelled reform in the direction of the redefinition of marriage, and made it very difficult for objectors to achieve any real purchase in the policy debates and law reform process. The relative ease4 and speed with which marriage was redefined in Canada so as to be sexual 3 The Labor government elected in November 2007 promised to be less hostile to campaigns for national law reform in support of gay and lesbian equality than the (conservative) Coalition government which it replaced. 4 To suggest that the road to Bill C-38 was ‘easy’ in absolute terms would, of course, ignore the long history of both successful and unsuccessful litigation prior to the landmark wins of the early 2000s. See Wintemute 2004a.

252 Luke McNamara orientation-inclusive should not be mistaken for a suggestion that it was the product of a broad consensus. The issue was controversial; Bill C-38 was vigorously debated in the Canadian Parliament.5 Perhaps the most important explanation for the achievement of same-sex marriage in Canada is that it came to be seen as a ‘constitutional imperative’. The Charter’s equality guarantee demanded that the definition of marriage be updated, and by mid-2003 the Canadian Government had actively adopted the position that it had ‘no choice’ but to accept what s 15 of the Charter demanded6 and what the courts had already done: to overturn the traditional opposite-sex definition of marriage because it discriminated on the basis of sexual orientation.7 Bill C-38 was therefore not so much an affirmative step of extending equality to same-sex couples as a statement of confirmation or acceptance that equality had already been extended. During debate on Bill C-38 in the House of Commons, the then Prime Minister, Paul Martin, observed: Understand that in seven provinces and one territory, the lawful union of two people of the same sex in civil marriage is already the law of the land. The debate here today is not about whether to change the definition of marriage—it’s been changed. The debate comes down to whether we should override a right that is now in place. (Canadian Parliament, Hansard (House of Commons), 16 February 2005: 1530)

In response to the suggestion that a parallel civil union-type regime would be adequate to achieve legal recognition of same-sex relationships, the Prime Minister observed: [T]he courts have clearly and consistently ruled that this option would offend the equality provisions of the Charter. For instance, the British Columbia Court of Appeal stated that, and I quote: ‘Marriage is the only road to true equality for same-sex couples. Any other form of recognition of same-sex relationships … fall short of true equality’. (Canadian Parliament, Hansard (House of Commons), 16 February 2005: 1530) 5 Bill C-38 was opposed by the Conservative Party opposition and some members of the governing Liberal Party. The support of New Democratic Party members was crucial to the passage of the bill. 6 ‘Sexual orientation’ is not expressly mentioned in the Canadian Charter of Rights and Freedoms, but in 1995 the Supreme Court of Canada held that sexual orientation was an ‘analogous ground’ to those expressly listed in s 15 (Egan v Canada (1995)). 7 Between May 2003 and February 2004, key appellate court decisions were handed down in British Columbia, Ontario and Quebec (Barbeau v British Columbia (2003), Halpern v Canada (2003) and Catholic Civil Rights League v Hendricks (2004); see also Lahey and Alderson 2004). In each of these three cases, the court ruled that the traditional opposite-sex definition of marriage as the union of ‘one man and one woman’ was unconstitutional because it was inconsistent with the equality guarantee in s 15 of the Charter of Rights and Freedoms, and could not be justified under s 1 (s 1 of the Charter states that: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’).

Same-Sex Marriage in Canada 253 In a joint submission to the Legislative Committee on Bill C-38, Egale Canada and Canadians for Equal Marriage characterised full recognition of the right of same-sex couples to marry as ‘a constitutional imperative’: ‘If C-38 doesn’t pass, the equal marriage debate will continue. Constitutional imperatives do not go away’ (Egale Canada/Canadians for Equal Marriage 2005). This characterisation effectively captures what is so distinctive about the Canadian story of the legal recognition of same-sex relationship when compared with the three other countries which were the subject of the larger study from which this chapter is drawn. It is not just that Canada reached a different outcome—marriage rather than civil partnership, civil union or non-recognition—but that this outcome, and no other, came to be seen as required by the constitutional status of the right to equality in Canada. The human rights standard of formal legal equality embedded in the Charter meant that no other resolution of the controversy was possible. In contrast, at almost the same time, governments in the UK, New Zealand and Australia, while influenced to varying degrees by the demands of human rights discourse, still had a level of policy-making breathing space in which they could formulate alternative solutions to demands for same-sex relationships recognition based on the principles of equality and non-discrimination (see McNamara 2007: chapter three). The respective roles played by the judicial and executive/legislative arms of Canadian government in relation to this particular human rights controversy are significant and revealing as to one of the distinctive features of the constitutional entrenchment model of human rights protection: the capacity for the judiciary to respond to human rights demands where the legislature may be reluctant to act for fear of suffering electoral damage. Robert Wintemute has observed: Both the courts and the legislatures in Canada … were reluctant to ‘press the button’ and make marriage equality happen, fearing that the foundations of civilization might ‘explode’. Someone had to be the first. Given the legal and political culture in Canada … with regard to controversial human rights issues, an appellate court was in a better position to do so than a legislature. (Wintemute 2004a: 1166)

Moreover, once the ‘first moves’ had been made by the judiciary and advocates of full access of same-sex couples to marriage were able to defend their position not simply in political/moral terms but also in legal/constitutional terms, legislators were prompted to follow the lead—some relatively quickly, presumably confident that the electoral repercussions were likely to be modest, others grudgingly and bitterly (Cossman 2002; Hiebert 2002). If the Charter demanded that full equality be extended to gay and lesbian couples, and if the overwhelming message from the judiciary was that anything less than marriage (for example, the UK or New Zealand models of civil partnership/union) was not full equality, then the redefinition of marriage

254 Luke McNamara to include both opposite-sex couples and same-sex couples was not merely a political choice about which individuals and political parties could reasonably differ, but an outcome which was inevitable. Less than two years prior to the introduction of Bill C-38, Paul Martin had supported a parliamentary motion in support of the traditional opposite-sex definition of marriage.8 In 2005 his position had changed (Canadian Parliament, Hansard (House of Commons), 16 February 2005: 1530). So it was not the existence of a right to equality in the Charter per se which had been instrumental in shifting Martin’s personal position and the broader policy landscape, but the way in which this legal right had been deployed by activists and adjudicated upon by judges in the interim. In 2003 there had been no authoritative legal ruling that the Charter mandated that same-sex couples should have access to marriage. By 2005, the government had conceded that that such a mandate was now an undeniable feature of Canada’s legal environment. This example illustrates the way in which human rights laws in Canada, underpinned by the Charter, can be mobilised as a powerful dynamic to trump government opposition or recalcitrance. But it would be a mistake to explain the Canadian story of same-sex marriage as simply about the legal form of the right to equality, including the judiciary’s interpretive supremacy over its substance. Section 33 of the Charter retains for the legislature the power to override a judicial ruling of constitutional invalidity (albeit with a time limit). The construction of the s 33 override as a ‘non-option’ in the public discourse over Bill C-38 speaks to a feature of Canada’s local legal/ political culture which cannot be explained merely by reference to the text of the Charter or the content of Charter jurisprudence. That the use of the override to reassert the traditional opposite-sex definition of marriage was widely regarded as beyond contemplation in the realpolitik of Canadian debate about Bill C-38 underscores the need to look at legal form as well as the wider legal culture in order to develop a meaningful appreciation of the status of human rights considerations and the power of human rights discourse in any country. The point is well illustrated by reactions to an attempt by the Conservative Party opposition to advance an alternative policy option—the passage of two statutes: one to reassert the traditional (heterosexual) definition of marriage and one to establish a ‘parallel’ civil union institution for same-sex 8 The motion, tabled in the House of Commons by the Canadian Alliance on 17 September 2003, stated: ‘That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to reaffirm that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this definition of marriage in Canada.’ The motion was defeated by a narrow margin (137 to 132): Canadian Parliament, Hansard (House of Commons), 17 September 2003: 1810.

Same-Sex Marriage in Canada 255 couples. In response, 134 law professors from across Canada signed an open letter to the then Conservative Party leader, Stephen Harper. It powerfully illustrates the extent to which the convention that the legislature should not invoke its power under s 33 of the Charter, despite its formal availability, is entrenched in Canada’s wider legal culture: Even though the Supreme Court of Canada did not address this issue in the recent same-sex marriage reference, courts in British Columbia, Saskatchewan, Manitoba, Newfoundland, Ontario, Quebec, Nova Scotia and the Yukon are now unanimously of the view that a definition of marriage that excludes same-sex couples is unconstitutional. The consensus of constitutional experts is that these decisions are correct. You must explain to Canadians how your plan to entrench the traditional definition of marriage will pass constitutional muster. The truth is, there is only one way to accomplish your goal: invoke the notwithstanding clause … You should either invoke the use of the notwithstanding clause, and justify this decision to Canadians, or concede that same-sex marriage is now part of Canada’s legal landscape. If you intend to override Canadians’ constitutional rights, you at least owe it to them to say this openly and directly.9

The adoption of a strategy of publicly ‘daring’ Harper to concede that his preferred option would only be possible with reliance on the notwithstanding clause—a step which was unprecedented at the national level—serves as a reminder as to how firmly entrenched the Charter is in Canadian political consciousness. (The letter was also strategically clever in that it was expressed as a definitive statement of Canadian constitutional law rather than a moral or philosophical case for same-sex marriage, which ensured that it received the support of law professors across the ideological spectrum, presumably including social conservatives who would not have supported the cause of gay and lesbian marriage.)10 In terms of Canada’s formal constitutional framework, there is no question that, ‘technically’, the notwithstanding clause in s 33 of the Charter could be invoked for the purpose of limiting marriage to opposite-sex couples.11 However, Charter (equality) consciousness is sufficiently embedded in Canada’s legal culture

9 ‘Open Letter to The Hon. Stephen Harper from Law Professors Regarding Same-Sex Marriage’ (25 January 2005). Available at: http://www.law.utoronto.ca/documents/general/ Cossman_openletter_Harper.pdf (accessed 20 October 2005). 10 Rebecca Johnson, personal communication, 22 June 2005. 11 Section 33 of the Charter creates a mechanism whereby legislatures can ‘override’ certain of the Charter’s provisions: (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. Declarations have a five-year shelf life (s 33(3)), but can be renewed (s 33(4)).

256 Luke McNamara that any move to invoke this law-making option would be highly controversial and electorally perilous (Webber 2006). In then Justice Minister Irwin Cotler’s public articulation of the ‘no choice’ or ‘no other option’ position, it is possible to see quite clearly the combined influence of elements of legal form (the judiciary’s interpretation of the demands of s 15) and legal culture (the extreme reluctance of the government to deploy the notwithstanding clause, even though the terms of the constitutional distribution of legal authority in Canada made this legally possible). Cotler observed: There are before us two alternatives—we can move forward to provide uniformity of the laws in this area, by passing the Government’s bill, or we can move backwards to overrule the court decisions and restore the traditional definition of marriage as the law in Canada, by using the notwithstanding clause … But in order to do so, Parliament would first have to publicly acknowledge that they are prepared to deliberately discriminate against same-sex couples who wish the same degree of commitment as other married couples. That is how it works. Members who vote in favour of using the notwithstanding clause must realize that they are acknowledging publicly that the law is discriminatory but insisting that the law be proclaimed despite the effect on constitutionally-protected minority rights … The Government views use of the notwithstanding clause to overrule Charter rights of a minority as inconsistent with responsible leadership. It leaves open all minorities to the possibility of deliberate discrimination through legislation. (Cotler 2005)

As a product of both legal form and legal culture, the Charter’s equality guarantee was regarded as foreclosing all other options and leaving full access to marriage as the only legitimate response to demands for equality-based recognition of same-sex relationships. As will be revealed, to the extent that a human rights imperative is identifiable in the three other countries which were the subjects of the larger study from which this chapter is drawn, it has neither the potency nor the autonomy from the policy preferences of executive government that was demonstrated so powerfully in the lead-up to the enactment of the Civil Marriage Act 2005. In indicating that his government would not rely on s 33 of the Charter to reassert the traditional opposite definition of marriage, the then Prime Minister, Paul Martin, said: The notwithstanding clause is part of the Charter of Rights. But there’s a reason that no prime minister has ever used it. For a prime minister to use the powers of his office to explicitly deny rather than affirm a right enshrined under the Charter would serve as signal to all minorities that no longer can they look to the nation’s leader and to the nation’s Constitution for protection, for security, for the guarantee of their freedoms. We would risk becoming a country in which the defence of rights is weighed, calculated and debated based on electoral or other considerations. (Canadian Parliament, Hansard (House of Commons) 16 February 2005: 1535)

Same-Sex Marriage in Canada 257 The story of same-sex marriage in Canada is a tale par excellence of the ‘discursive hegemony’ (Angenot 2004) of the Charter in Canada’s legal culture (Smith 2005b). Section 15 cut a swathe through the divided ranks of elected politicians and their electorate to deliver the ‘prize’ which, to date, has been won by gay and lesbian activists in only a handful of countries. But it would be a mistake to explain the Charter’s significance simply in terms of legal form. If the achievement of same-sex marriage was reducible to the mere positing of a human right to equality in Canadian law, the breakthrough would have come as soon as s 15 came into operation in 1985. In fact, when the Ontario Divisional Court was required to address the issue in 1993, it rejected the argument that the refusal of the Ottawa City Clerk’s Office to issue a marriage licence to two men constituted unlawful discrimination (Layland v Ontario (1993)). It was almost a decade later before the Charter imperative for same-sex marriage was fully formed.12 Certainly, the Charter provided the constitutional mandate for the courts to participate actively in the policy-making and law reform process, and s 15 provided the legal text out of which the courts, over the course of a decade or so of litigation, incrementally fashioned a conception of equality which eventually made the issue of gay and lesbian access to the institution of marriage a ‘no-brainer’—it flowed logically and inevitably from the Supreme Court’s conception of the formal legal equality demanded by the Charter (see Lahey and Alderson 2004: 74–75). But the Charter’s significance also needs to be understood in terms of its transformative effect on Canadian legal culture. Janet Hiebert has observed that the application of s 15 of the Charter to gay and lesbian equality claims has: [D]emonstrated the Charter’s potential to transform legal culture in a way that critically examines the fairness and legitimacy of the dominant legal, social, and moral assumptions of legislative decisions. The Charter does not simply appear to coincide with this evolution. It has provided both the occasion and the foundation from which to reassess previous judicial assumptions and approaches. (Hiebert 2002: 212)

Another important part of the transformation effected by the Charter was the shift in strategies employed by gay and lesbian activists. Miriam Smith has observed that after 1985, when s 15 came into force, there was a ‘changed political opportunity structure’ (Smith 1999: 73). The Charter ‘encouraged the shift from gay liberation to rights talk as a form of equality seeking’, (1999: 74) with an emphasis on ‘legal and court-centred activism’ (1999: 93). The emergence of Egale Canada as the most prominent national gay and lesbian activist group in the 1990s is illustrative (Smith 2005b: 337). Egale Canada’s methods, focusing on Charter litigation, and its goals, articulated in terms of formal legal equality, are an important 12

Rebecca Johnson, personal communication, 22 June 2005.

258 Luke McNamara part of the story of the success of the same-sex marriage movement. The Charter has been important not just as an instrument for the achievement of pre-established goals; it has shaped the goals of the gay and lesbian movement and encouraged the prioritisation of associated strategies, including ‘legal mobilization’ (2005b: 329). ‘Success’ came to be defined in terms which lined up with the liberal equality foundation on which the Canadian Charter of Rights and Freedoms is based (Boyd and Young 2003; Eberts 1999; Herman 1994). Brenda Cossman has commented that the strategic prioritisation of formal equality-seeking litigation involved the pursuit of an ‘unapologetically assimilationist agenda’ and succumbing to the ‘politics of sameness’ (Cossman 2002: 236).13 For Susan Boyd and Claire Young: Given that many in the lesbian and gay community celebrate and value their differences from the normative model of the heterosexual couple, such an approach is problematic. This strategy is not ‘the fault’ of lesbians and gay men who make claims for spousal status … Rather, equality discourse tends to force arguments in this comparative, conservative direction and thereby render the diversity of intimate relationships marginal or, indeed, invisible. (Boyd and Young 2003: 773–74; see also Boyd and Young 2006)

Of course, not all gay and lesbian activists regard the Charter, the pursuit of formal legal equality and access to marriage as unmitigated goods (Smith 1999). In particular, many object to the fact that pursuit of the Charter equality path to justice has involved adopting a sameness paradigm: homosexual relationships are no different from heterosexual relationships and therefore there is no basis for drawing a distinction between them in terms of legal status (Boyd and Young 2003). More radical goals and strategies have tended to be marginalised14 by the Charter equality juggernaut. Didi Herman has observed that: Since the 1980s, a liberal minority rights paradigm has been ascendant while radical sexual politics, of both the left and the right, are not as visible within public discourse on rights and sexuality. (Herman 1997: 5)

A related point is that the nature of Charter litigation as an activist strategy is such that individuals have been able to commence proceedings—with possible implications for gay men and lesbians generally—without necessarily having the support or input of broader social movements.15 In this way, marriage became the assumed goal of the gay and lesbian community even though many would not have put it at the top of the reform agenda of many individuals and organisations (Boyd and Young 2003). Moreover, when this cause met with political resistance and prompted homophobic 13 For a debate on the desirability of adopting legal strategies in pursuit of social justice goals, see Brown and Halley 2002, and in response Green 2004. 14 Sheila McIntyre, personal communication, 4 July 2005. See also Boyd and Young 2006. 15 Nicole LaViolette, personal communication, 27 June 2005. See also Smith 2005b.

Same-Sex Marriage in Canada 259 backlash, individuals and organisations who were not themselves keen to pursue access to the existing institution of marriage were prompted to speak out in defence of those for whom marriage was the goal. One final dimension of the story of the legal recognition of same-sex relationships in Canada should also be mentioned: the extent to which there was complementarity between the specific claims being advanced in s 15 Charter litigation and ascendant values in the wider Canadian political environment (see Stychin 1998: 141). In particular, a number of commentators have emphasised the need to appreciate the ideological fit between the Supreme Court of Canada’s pivotal decision in M v H (1999)16 and ‘neo-liberalism’s politics of privatization’ (Cossman 2002: 236–37; see also Boyd 1999; Boyd and Young 2003). Brenda Cossman has observed that in M v H: Same-sex couples won the right to sue each other when their relationships break down. This was not a case that involved the extension of government or employer benefits, but rather, it was the kind of equality case that fit perfectly with an agenda of fiscal responsibility. The result of the ruling was to expand the scope of spousal support obligations, and thereby reduce demands on the state … The ruling is consistent with the politics of reprivatization—a process in which the costs of social reproduction are being shifted from the public to private spheres and the family is being reconstituted as the natural site of economic dependency. (Cossman 2002: 237)

Subsequent judicial and legislative reforms with respect to the equal provision of state (public) benefits to individuals in same-sex relationships do not fit so squarely in a neo-liberal paradigm (Cossman 2002). However, the insight that ideological fit played a role in the initial breakthrough remains important. In fact, these subsequent developments provide further evidence of the way in which the transformation of the terms of the debate about same-sex relationships from one dictated by ideological or political preferences to one determined by a constitutional imperative was a critical factor in the success of the same-sex marriage campaign.

COMPARISONS

As noted at the outset, this chapter has foregrounded the Canadian limb of a four-country comparative study of legal responses to the demands for the formal recognition of same-sex relationships (McNamara 2007: chapter three).

16 M v H (1999) was a case involving the breakdown of a lesbian couple’s relationship, and the definition of ‘spouse’ in the Ontario Family Law Act. The Supreme Court of Canada ruled that s 15 of the Charter demanded that unmarried same-sex couples should be treated in the same way as unmarried opposite-sex couples. In the specific circumstances of this case, this meant that M was entitled to apply for spousal maintenance from H.

260 Luke McNamara Limitations of space allow for only a brief highlighting of the chief contrasts between events in Canada in the first half of the 2000s and comparable developments in Australia, the UK and New Zealand. In Canada, the human rights dynamic became a constitutional imperative— based on judicial interpretation of the equality guarantee in s 15 of the Charter of Rights and Freedoms and a firmly embedded culture of deference to judicial authority in Charter matters—that dictated that the redefinition of marriage was the only legitimate resolution of the controversy over the formal legal status of same-sex relationships. To the extent that one of the objectives of the codification of human rights is to place them beyond the influence of party-political preferences and pragmatic considerations, the Canadian story of the achievement of same-sex marriage might be regarded as a classic illustration of this phenomenon. As Miriam Smith has observed in her own comparative assessment of the ‘gay marriage’ debate in two countries, the way in which same-sex marriage came to be characterised in Canadian public discourse as ‘a question of human rights’ contrasts strikingly with the US, where ‘[t]he discursive field of public policy and political debate defines the “gay marriage” debate as a question of moral values’ (Smith 2005a: 226). At least at the federal level, the same observation applied with equal force to Australia during the period under consideration, when a conservative Liberal-National Coalition government was in office. In an environment where the executive and legislative arms of government were completely free to act in accordance with ideological and vote-counting strategic preferences (in the absence of a national bill of rights or a national legislative commitment to equality/non-discrimination for gay men and lesbians), and with both major parties in a two-party system adopting similar policy positions, human rights discourse was marginalised in the public discourse and was largely impotent as an influence on law reform. As a result, the Australian Parliament was the only one of the four countries to offer gay and lesbian couples nothing except a legislative gesture of non-recognition or exclusion (that is, statutory confirmation of the common law’s oppositesex definition of marriage). This example tends to undermine the argument that a bill of rights is unnecessary in a society with strong traditions of respect for human rights values. Where there are few institutional mechanisms for injecting those values into the policy-making and law reform process, they are vulnerable to being trumped by competing philosophical values or pragmatic political considerations. The contrast between Canada and the other two countries that were the subject of the larger comparative study is less striking, but nonetheless significant. In the UK and New Zealand, a human rights dynamic centred on Article 14 of the European Convention on Human Rights (ECHR) and s 19 of the Bill of Rights Act, respectively, was influential in generating political momentum towards the legislative recognition of same-sex relationships as civil partnerships/civil unions. Consistent with the statutory bill of rights

Same-Sex Marriage in Canada 261 models adopted in these two countries, the role of the judiciary was less significant than it was in Canada. This was particularly so in New Zealand, where the courts’ main contribution was to place marriage ‘off limits’ as a Bill of Rights Act (BORA)-inspired goal (Quilter v Attorney General (1998)), thereby redirecting the relationship recognition movement to the goal of civil union and to the strategy of legislative reform. In this setting, the human rights dynamic was an important part of the environment in which the Civil Union Act 2004 came to be seen by a majority of parliamentarians as a logical extension of New Zealand’s commitment to fundamental human rights values. To the extent that the BORA was seen to create a legal imperative—and there was a dimension of the public discourse that emphasised that same-sex relationship recognition was a necessary consequence of the New Zealand’s obligations under the BORA and the Human Rights Act 1993—it was an imperative over which the executive and legislative arms of government exercised significant control. While the demands of legislative obligation and philosophical commitment may have combined to make the case for legislative recognition difficult to resist, there was still room in the policy-making process for other values and pragmatic considerations to be influential. In this context, a civil union regime, available to both same-sex and opposite-sex couples, which left marriage undisturbed as a heterosexual institution, marked the limits of the achievable. In the UK, same-sex relationship status legislation was enacted at a time when neither the domestic courts nor the European Court of Human Rights had created a direct legal imperative in relation to the formal legal status of same-sex relationships. But throughout the public discourse surrounding the Civil Partnership Act 2004, there was a strong sense that ECHR/ Human Rights Act 1998 jurisprudence was headed in that direction and that a broader European imperative was emerging. The significance of this influence on the policy-making and law reform process is illustrated by the considerable degree of cross-party support for the Civil Partnership Act. By contrast, although the fate of New Zealand’s Civil Union Bill was decided by a conscious vote, there was a strong correlation between for/against votes and party-political affiliation. The comparison suggests that there is a difference in the human rights dynamic created by the bills of rights of the UK and New Zealand that is not fully explained by their similar legal forms. The Human Rights Act’s hybrid status as a domestic statute based on a European instrument (and backed by a supranational court), while undoubtedly the source of some local antagonism from those who resent ‘external’ interference, appears to have created a degree of separation between the demands of human rights law and political preferences which is not as evident in New Zealand. In New Zealand, the story behind the enactment of the Civil Union Act 2004 reveals that an effective human rights imperative can be drawn from domestic legislative sources, but the somewhat muted status of the BORA in New Zealand’s legal culture is such that the dynamic requires political will on the part of the government in order for it be effectively mobilised.

262 Luke McNamara SOCIO-LEGAL RESEARCH AND SOCIOLOGICAL PERSPECTIVES ON EMBEDDING HUMAN RIGHTS LOCALLY

There is some danger that the overview offered in this chapter—including a foregrounded Canadian ‘success story’—might be seen to play into the hands of the very same positivist and legocentric tradition that I suggested at the outset was too narrowly conceived to sustain a compelling analysis of the way in which human rights norms assume (or do not assume) potency in domestic policy formulation and law-making. But so long as the constraints of a narrowly focused ‘piecemeal’ study are recognised (Stones 2006: 133), it would be churlish not to confront an instance in which the correlation between a particular mode of domestic legal implementation of a human rights norm and the achievement of a social movement’s objectives appears to be strong. Indeed, it is to be hoped that the story of the Canadian Parliament’s enactment of the Civil Marriage Act 2005, where this step had come to be seen as a ‘constitutional imperative’, and the contrasting stories from Australia, the UK and New Zealand, might provoke scholars of human rights—whether sociologists or political scientists or lawyers with a socio-legal orientation—who are (rightly) nervous about leaving the topic of domestic implementation to international and positivist human rights lawyers, to undertake their own ‘piecemeal’ studies. Of course, it by no means follows that the prominence of law and its form (or of its absence in the Australian case) in the stories told here regarding the legal status of same-sex relationships should be expected to hold across the diverse range of instances in which human rights discourse has been, and continues to be, mobilised locally. We are a long way from a definitive answer to the following question: under what circumstances can human rights discourse reasonably be expected to exert a potent influence on the direction of domestic governance? Further socio-legal studies of the sort briefly described here (see McNamara 2007), alongside localised and comparative studies by sociologists and political scientists, have the potential to make valuable contributions in this direction, including by providing a more sure footing for cross-disciplinary engagement over the question of human rights.

REFERENCES Angenot, M (2004) ‘Social Discourse Analysis: Outlines of a Research Project’ 17 Yale Journal of Criticism 199. ALSO Foundation (2004) Relationship Recognition, Federal Issues Paper, 10 September. Available at: www.also.org.au/discover/projectsandservices/Lobbypapers. htm (accessed 20 October 2005). Auchmuty, R (2004) ‘Same-Sex Marriage Revived: Feminist Critique and Legal Strategy’ 14(1) Feminism & Psychology 101.

Same-Sex Marriage in Canada 263 Boyd, S (1999) ‘Family, Law and Sexuality: Feminist Engagements’ 8 Social and Legal Studies 369. Boyd, S and Young, C (2003) ‘“From Same-Sex to No Sex”?: Trends Towards Recognition of (Same-Sex) Relationships in Canada’ 1 Seattle Journal for Social Justice 757. —— (2006) ‘“Losing the Feminist Voice”? Debates on the Legal Recognition of Same-Sex Partnerships in Canada’ 14(2) Feminist Legal Studies 213. Brown, W and Halley, J (2002) Left Legalism/Left Critique (Durham, NC, Duke University Press). Calhoun, C (2000) Feminism, the Family and the Politics of the Closet: Lesbian and Gay Displacement (Oxford, Oxford University Press). Campbell, T, Goldsworthy, J and Stone, A (eds) (2006) Human Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (Aldershot, Ashgate). Cossman, B (2002) ‘Lesbians, Gay Men and the Canadian Charter of Rights and Freedoms’ (2002) 40 Osgoode Hall Law Journal 223. Cotler, I (2005) ‘Bill C38—the Civil Marriage Act. Open Letter from the Minister of Justice Concerning Alternative Approaches’. Available at: http://canada.justice. gc.ca.en/fs/ssm/open_letter.html (accessed 13 May 2005). Eberts, M (1999) ‘The Canadian Charter of Rights and Freedoms: A Feminist Perspective’ in P Alston (ed), Protecting Human Rights Through Bills of Rights: Comparative Perspectives (Oxford, Oxford University Press). Egale Canada/Canadians for Equal Marriage (2005) Equal Marriage: A Constitutional Imperative, Submission to the Bill C-38 Legislative Committee. Available at: http://cem.egale.ca/resource.php?id=431 (accessed 20 October 2005). Eskridge, W (2002) Equality Practice: Civil Unions and the Future of Gay Rights (London and New York, Routledge). Ettelbrick, P (2004) ‘Since When is Marriage a Path to Liberation?’ in R Baird and S Rosenbaum (eds), Same Sex Marriage: The Moral and Legal Debate, 2nd edn (Amherst, Prometheus Books). Gay and Lesbian Rights Lobby (2004) Key Issues in Federal Gay and Lesbian Law Reform. Available at: www.glrl.org.au/issues/federal_relationship_recognition. htm (accessed 20 October 2005). Gordon, N and Berkovitch, N (2007) ‘Human Rights Discourse in Domestic Settings: How Does it Emerge?’ 55 Political Studies 243. Green, L (2004) ‘What’s Left of Critique?’ 16 Yale Journal of Law & the Humanities 399. Harvey, C (ed) (2005) Human Rights in the Community: Rights as Agents for Change (Oxford, Hart Publishing). Herman, D (1994) Rights of Passage: Struggles for Lesbian and Gay Legal Equality (Toronto, University of Toronto Press). —— (1997) ‘The Good, the Bad, and the Smugly: Sexual Orientation and the Perspectives on the Charter’ in D Schneiderman and K Sutherland (eds), Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto, University of Toronto Press). Hiebert, J (2002) Charter Conflicts: What is Parliament’s Role? (Montreal and Kingston, McGill-Queen’s University Press).

264 Luke McNamara Hirschl, R (2004) Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA, Harvard University Press). Lahey, K and Alderson, K (2004) Same-Sex Marriage: The Personal and the Political (Toronto, Insomniac Press). Landman, T (2006) Studying Human Rights (London and New York, Routledge). Madsen, M (2004) ‘France, the UK, and the “Boomerang” of the Internationalisation of Human Rights (1945–2000)’ in S Halliday and P Schmidt (eds), Human Rights Brought Home: Socio-Legal Studies of Human Rights in the National Context (Oxford, Hart Publishing). McNamara, L (2007) Human Rights Controversies: The Impact of Legal Form (Abingdon, Routledge-Cavendish). Meckled-Garcia, S and Cali, B (eds) (2006) The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law (London and New York, Routledge). Morris, L (ed) (2006a) Rights: Sociological Perspectives (London and New York, Routledge). —— (2006b) ‘Sociology and Rights—An Emergent Field’ in L Morris (ed), Rights: Sociological Perspectives (London and New York, Routledge). Murphy, J (2004) ‘Some Wrongs and (Human) Rights in the English Same-Sex Marriage Debate’ 18 Brigham Young University Journal of Public Law 543. Plummer, K (2006) ‘Rights Work: Constructing Lesbian, Gay and Sexual Rights in Late Modern Times’ in L Morris (ed), Rights: Sociological Perspectives (London and New York, Routledge). Robinson, S (2005) ‘Pride Topples Prejudice’ Globe and Mail (4 July). Schmidt, P and Halliday, S (2004) ‘Introduction: Socio-Legal Perspectives on Human Rights in the National Context’ in S Halliday and P Schmidt (eds), Human Rights Brought Home: Socio-Legal Studies of Human Rights in the National Context (Oxford, Hart Publishing). Smith, M (1999) Lesbian and Gay Rights in Canada: Social Movements and Equality-Seeking, 1971–1995 (Toronto, University of Toronto Press). —— (2005a) ‘The Politics of Same-Sex Marriage in Canada and the United States’ PS: Political Science & Politics (April) 225. —— (2005b) ‘Social Movements and Judicial Empowerment: Courts, Public Policy and Lesbian and Gay Organizing in Canada’ 33 Politics & Society 327. Stones, R (2006) ‘Rights, Social Theory and Political Philosophy: A Framework for Case Study Research’ in L Morris (ed), Rights: Sociological Perspectives (London and New York, Routledge). Stychin, C (1998) A Nation By Rights (Philadelphia: Temple University Press). Tushnet, M (1996) ‘Living with a Bill of Rights’ in C Gearty and A Tomkins (eds), Understanding Human Rights (London, Pinter). Waaldijk, K (2001) ‘Small Change: How the Road to Same-Sex Marriage Got Paved in the Netherlands’ in R Wintemute and M Andenaes (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (Oxford, Hart Publishing). Webber, J (2006) ‘A Modest (but Robust) Defence of Statutory Bills of Rights’ in T Campbell, J Goldsworthy and A Stone (eds), Human Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (Aldershot, Ashgate).

Same-Sex Marriage in Canada 265 Wintemute, R (2004a) ‘Sexual Orientation and the Charter: The Achievement of Formal Legal Equality (1985–2005) and its Limits’ 49 McGill LJ 1143. —— (2004b) ‘International Trends in Legal Recognition of Same-Sex Couples’, paper presented at the European Convention on Human Rights Act 2003 Review and Human Rights in Committed Relationships Conference, Irish Human Rights Commission and Law Society of Ireland, Dublin, 16 October. Barbeau v British Columbia (Attorney General) (2003) 13 BCLR (4th) 1 (British Columbia Court of Appeal). Catholic Civil Rights League v Hendricks 2004 CanLII 20538 (Quebec Court of Appeal). Egan v Canada [1995] 2 SCR 513 (Supreme Court of Canada). Halpern v Canada (Attorney General) (2003) 65 OR (3d) 161 (Ontario Court of Appeal). Layland v Ontario [1993] OJ No 575 (Ontario Divisional Court). M v H [1999] 2 SCR 3 (Supreme Court of Canada). Quilter v Attorney General [1998] 1 NZLR 523 (New Zealand Court of Appeal).

13 Activating the Law: Exploring the Legal Responses of NGOs to Gross Rights Violations LOVEDAY HODSON*

We’ll finish terrorism but we are being held back by democracy and human rights.1

T

HIS CHAPTER EXAMINES the role of non-governmental organisations (NGOs) in bringing gross and systematic human rights violations to the attention of the European Court of Human Rights (ECtHR) in Strasbourg. An extensive body of literature exists that examines and critiques the normative standards of the European Convention on Human Rights (ECHR) (see, for example, Harris et al 2009; Janis et al 2008; Ovey and White 2006; Robertson and Merrills 2001; van Dijk et al 2006), yet little light has been shed on the processes by which particular events come to be brought to the attention of the ECtHR and shaped into judicially proclaimed ‘violations’. In short, the liberal individualism that underpins much human rights scholarship has little to say about the conditions under which international human rights mechanisms are activated. Poor enforcement and selective application of even the most fundamental human rights norms are skeletons that continue to rattle loudly in lawyers’ closets. A vital task for a sociological of rights is thus to expand our understanding of the practice of human rights litigation. The starting point of this chapter is a belief, shared by a number of contributors to this volume, that individualist concepts of justice and rights cannot explain the complex social arrangements that underpin ‘taking a case to Strasbourg’ (Dembour and Kelly 2007; Donnelly 1999). Inspired by the work of social scientists such as

*

An extended version of this contribution appears in Hodson 2011. Turkish Deputy Chief of Staff, General Ahmet Corekci, July 1995, quoted in Amnesty International’s Report (1996: 3). 1

268 Loveday Hodson Keck and Sikkink on transnational advocacy networks (Keck and Sikkink 1998), I aim to offer an alternative perspective on the ECHR by foregrounding the work that NGOs play in carving out paths to international justice and constructing human rights violations (on the involvement of NGOs in other international human rights fora, see, for example, Cassese 1979; Green 1978; Korey 1998; Rodley 1979; Steiner 1991; Weissbrodt 1977; Willetts 1996). This contribution draws on the findings of a mixed-method study of NGO involvement in ECHR litigation. This study revealed, among other findings, that a striking feature of cases taken to the ECtHR is the degree of involvement of NGOs where a successful claim is made under Article 2 or 3 of the ECHR. These articles respectively protect the right to life and prohibit torture; consequently, the cases in which they are raised are the most extreme that the ECtHR is faced with. The involvement of NGOs in litigation that addresses serious violations of the Convention is particularly marked where those violations account for systematic patterns of abuse by government officials that take place with impunity. In such situations, there is typically no effective investigation at the domestic level into the alleged violation and, once the case reaches the ECtHR, the Member State concerned is often unwilling to cooperate fully and openly with the proceedings. This chapter explores in some detail the function of the European Roma Rights Centre (ERRC) and the Kurdish Human Rights Project (KHRP) in activating international legal responses to acts of extreme state violence, including extra-judicial executions, disappearances, unexplained deaths in custody and torture. It concludes that an individualistic conception of human rights fails to reveal the complexity of transnational network activity that underpins and frames legal responses to state violence. The notion that extreme state violence is challenged through international legal channels by autonomous individuals—an idea deeply cherished by many ECHR scholars—is unsustainable and ignores a more rich and multifaceted reality.

METHODOLOGY

Foregrounding NGO involvement in rights litigation necessitates confronting numerous methodological challenges. This chapter draws on data obtained from a broader research project examining the role of NGOs in litigation before the ECtHR, for which a two-stage research process was adopted. First, a sample of ECtHR cases was selected and analysed for the incidence and type of NGO involvement. The aim of this research phase was to obtain a systematic picture of the nature and frequency of NGO involvement. Ultimately, the core of the research was based on data obtained from an analysis of cases in which the ECtHR delivered judgment

Legal Responses of NGOs to Gross Rights Violations 269 in 2000.2 Although this analysis highlighted the fact that most ECtHR cases do not attract NGO involvement, it also pointed to the meaningful impact that NGOs have in framing certain violations and shaping certain important areas of the Court’s litigation. One of the noteworthy findings from the initial research stage was the comparatively high level of NGO involvement in cases concerning the most serious violations of the Convention. The ECtHR delivered judgment in 442 cases in 2000. Of the 10 cases in which the Court found a violation of Article 2 (the right to life) that year, NGOs were involved in nine. Specifically, eight were cases sponsored by the KHRP against Turkey, and the other case against Bulgaria was sponsored by the ERRC. A similar, although not quite as marked, pattern could be seen in cases alleging a violation of Article 3 (freedom from torture, inhuman or degrading treatment or punishment). Of the 15 successful applications in the sample cases made under Article 3, seven were ‘NGO cases’, all sponsored by the KHRP.3 While dealing with applications under Articles 2 and 3 clearly forms a very small part of the ECtHR’s work, the initial research findings nevertheless pointed to the importance of the role that NGOs play in allocating responsibility for, and expressing international condemnation of, the most serious, persistent and gross violations of the Convention.4 They suggest that organisations such as the KHRP and the ERRC are aware of the contribution that ECtHR litigation can make in focusing international attention on human rights violations that offend the most basic and engrained principles of humanity. The initial research stage outlined above was followed by intense qualitative research based on case studies of the litigation strategies of those NGOs in the sample cases. This research took the form of semi-structured interviews conducted with key personnel from the NGOs whose involvement in the sample cases had been identified (for a discussion of the value of using mixed-method research techniques and, in particular, following quantitative with qualitative methods, see Ritchie 2003). Interviews were semi-structured in order not to impose any pre-conceptions onto the interviewees about the

2 Although this may appear to be a considerable restriction on the number of cases considered, the Court’s statistics show that the number of judgments delivered in 2000 had risen dramatically from previous years and in fact represented 40% of the total number of judgments delivered by the Court up to that date. 3 Although the KHRP was the only NGO to successfully argue an Art 3 claim within the sample, several other organisations unsuccessfully tried to raise a complaint under this Article. 4 In contrast to the findings concerning Arts 2 and 3, it is interesting to note that NGOs are not heavily involved in cases involving violations of Art 6 of the Convention, which provides for the minimum standards for all trials in order that they are considered to be fair. Even after cases concerning delay in domestic proceedings were excluded from the sample, there were still 69 cases left in which the Court heard Article 6 complaints, making it by far the most frequently litigated Article. As only six of these were ‘NGO cases’, it can be seen that there are proportionately far fewer NGOs concerning themselves in cases alleging violations of that Article.

270 Loveday Hodson significance of the organisation’s participation in ECtHR litigation.5 NGO employees tend to change jobs frequently, and occasionally no one was working within an organisation who had been involved in the sample case(s) in question. In such situations, the interview unavoidably had to ask more generalised questions about the organisation’s litigation strategy. In some cases, former employees of the relevant organisations were contacted in order to discuss their involvement in the sample cases. Consulting the relevant organisations’ documentation was also useful in gaining an understanding of the meaning that litigation has to them. I sought access to their files on the relevant ECtHR case(s) in which their involvement had been identified in order to minimise recall bias. While the ERRC readily agreed to this request, the KHRP denied access to its files for reasons of client confidentiality. The organisations’ publications were also a useful source of information, and these were scrutinised both for references to the particular sample cases in question and for more general references to their involvement in litigation. In general, the NGOs referred to in this chapter were open, helpful and keen to assist with this research. The only reservations expressed were based on their limited time and on client confidentiality. THE ROLE OF THE ERRC AND THE KHRP IN LITIGATION

The ERRC The ERRC is a public interest law organisation founded in 1996 and based in Budapest, Hungary. It was the sponsor of a case falling within the study that arose from the unexplained death of a Roma male, Mr Tsonchev, whilst he was held in police custody, Anya Velikova v Bulgaria. The Velikova case formed part of the ERRC’s litigation strategy to highlight and bring about an improvement in the situation for Europe’s Roma population. Although at the time of study no one remained at the offices of the ERRC who had worked on the Velikova case from the outset, the files of the organisation document its involvement throughout the Strasbourg proceedings. While the ERRC did not have power of attorney and therefore did not warrant mention in the Court’s judgment, the correspondence between the lawyer who was authorised to take the case and the Court’s Registry states that the case was brought ‘in co-operation’ with the ERRC.6 It is clear from 5 Interviews for the initial research project referred to in this chapter were undertaken with the ERRC’s Executive Director, a senior staff attorney and a staff attorney in September 2002. Interviews were undertaken with the KHRP’s Executive Director, Legal Director and Translator in October and November 2002. 6 Letter from Yonko Grozev to the Registry, 12 February 1998 (on file with the ERRC).

Legal Responses of NGOs to Gross Rights Violations 271 interviews conducted at the ERRC and from its case files that this NGO was integral to the litigation of this case when it was taken to the ECtHR, despite the fact that its role in the Velikova case was played out largely behind the scenes. First—and crucially—the ERRC funded the proceedings before the ECtHR, which means that it paid the lawyers’ fees and covered all litigation costs. Additionally, all correspondence between the legal representatives and the Court was copied to the ERRC. It was also responsible, together with the legal representative, for drafting the applicant’s pleas as well as for providing much of the background material that they were based upon. Because it is based in Budapest, the ERRC, like all transnational human rights NGOs, is inevitably situated at some distance from many of the people whose rights it seeks to protect;7 therefore, the relationships and networks that it has developed with other like-minded NGOs is crucial to its ability to find suitable cases for its litigation strategy. The Human Rights Project of Sofia (HRP) was in fact the first organisation to hear about the death of Mr Tsonchev and to recognise the possibility it offered of building a ‘public interest’ case.8 The HRP is also a public-interest law organisation that focuses on the rights of Roma; it has offices throughout Bulgaria and aims to work at a grassroots level within Roma communities. It is an important link in the chain in generating and selecting ‘Roma rights’ cases. Indeed, according to interviews with ERRC staff, all Roma cases against Bulgaria taken to the ECtHR up to that point had originated with the HRP.9 Although it is unclear how Anya Velikova, Mr Tsonchev’s partner, first came to be in contact with the HRP, it is quite likely that it was thanks to the network of Roma volunteers established by the HRP who report on situations of human rights abuse or to the field workers that the HRP placed in various parts of Bulgaria (HRP 1995: 10). Workers from the HRP conducted the original interviews with the applicant (transcripts of which were later produced as evidence before the ECtHR) and they also found lawyers prepared to take on the case.10 Assisted by lawyers from another NGO, the Bulgarian Helsinki Committee, the HRP unsuccessfully pursued domestic remedies before bringing it to the attention of the ERRC so that the case could be taken to the ECtHR. Together with these NGOs,

7 At the time of my research visit, the ERRC had only one Roma lawyer working in its offices. The organisation itself was not established by Roma. 8 It is noteworthy that Dimitrina Petrova also founded the HRP. For more details of that organisation’s involvement in the Velikova case and the difficulties it experienced in trying to secure an adequate investigation into the death of Mr Tsonchev, see 1(3) Focus: The Newsletter of the HRP (July–August 1996) 7–8. 9 Interview, Ivan Ivanov, ERRC Staff Attorney. 10 Script of Interview with Anya Velikova: October 2 1995, Bukovlak, Pleven Region, Bulgaria (on file with the ERRC).

272 Loveday Hodson the ERRC was able to mobilise a litigation strategy that framed the death of Mr Tsonchev as a human rights violation and brought the Bulgarian government to account for it.

The KHRP Among the sample cases, those suggesting a pattern of the most serious violations of the Convention were brought against the Turkish government with respect to its treatment of persons belonging to the Kurdish minority. These cases involved allegations of multiple violations of Convention rights and their gravity is signified by the preponderance of claims made under Articles 2 and 3. Eleven of the sample cases were sponsored by the KHRP as part of its litigation strategy to highlight the extreme human rights abuses taking place in the Kurdish regions of Turkey. The KHRP, which is based in London, was established in 1992 as ‘an independent, non-political project’ with a commitment to ‘the protection of the human rights of all persons within the Kurdish regions’ (for a summary of the cases taken up to 2000 by the KHRP under the ECHR, see Buckley 2000).11 Although Turkey ratified the ECHR in 1954, it only recognised the right to individual petition on January 1987. The opportunity this presented to litigate strategically on behalf of the Kurdish people was not lost on the KHRP’s founders.12 (On the background to the KHRP, see also Buckley 2000; on Turkey’s acceptance of the individual application procedure, see Cameron 1988.) In spite of its relatively small size (the ERRC, for example, is considerably larger), the KHRP was the most prolific NGO litigating before the Court within the sample cases. During its first decade of existence, it was involved in submitting over 150 cases to Strasbourg concerning over 400 individuals.13 Painting a precise and complete picture of the role that the KHRP played in the sample cases proved to be impossible for four reasons. First, access to KHRP case files was not granted for the purposes of this research. Second, given the number of applications in which the KHRP has been involved, getting comprehensive information about specific cases by means of interview was unsatisfactory. Third, there was a noticeable reluctance on the part of the KHRP staff to provide too much detail about their working methods and relationships with organisations in Turkey for fear of jeopardising them. Finally, as the KHRP was involved in cases on an ‘informal’ basis only, the ECtHR’s case files revealed almost nothing about its involvement.

11 www.khrp.org. Since the expansion of the Council of Europe, it has extended to countries such as Armenia and Azerbaijan. For further details, see the KHRP’s annually-produced Impact Reports, available at www.khrp.org. 12 Interview with Kerim Yildiz, Executive Director of KHRP. 13 Ibid.

Legal Responses of NGOs to Gross Rights Violations 273 Nevertheless, from the information that was obtained during this research, a reasonably clear description of the KHRP’s crucial involvement in the sample cases can be pieced together. The fact that the KHRP is based in London means that in order to implement its transnational litigation project, it needs information about human rights violations from sources closer to the local setting. As with the ERRC, this is achieved primarily through relationships forged with local human rights organisations. Several interviewees from the KHRP stated that the vast majority of their cases against Turkey originated from the Human Rights Association of Turkey (HRA) (on the ‘fruitful’ and, indeed, ‘crucial’ KHRP–HRA relationship, see Kurdish Human Rights Project 2001). The HRA was established on 17 July 1986 and currently has ‘over 10,000’ members and 29 local branches in Turkey.14 It is likely that at least nine of the 11 cases considered in this section originated from complaints made to it; in fact, in three of the cases, either the applicant or the victim was a member of the HRA. It is clear that the HRA played an important role in linking potential applicants in the sample cases with the KHRP. However, whilst the relationship between these two organisations is no secret, any link between them remains on a purely informal basis, given the restrictions placed on Turkish organisations against forging formal links with international organisations.15 The KHRP, like the ERRC, has a supervisory role in steering the course of litigation in its sponsored cases and, in this, it has developed its own style, shaped both by its broad objectives in filing cases and by the fact that direct evidence is frequently not available to prove the alleged violations. Once a case is accepted by the KHRP, it finds—and sometimes pays the fees of—lawyers willing to represent the applicants concerned. The HRA (or other local contact) usually appears to be the main point of contact with the applicant and it does most of the statement taking and fact-finding, with requests for further information coming from the KHRP. The KHRP has further roles in translating documents into English for the ECtHR and researching the background material relied upon in applications. The tendency in ‘KHRP cases’ is to adduce evidence of patterns of gross violations of the Convention from the applicant’s written observations and then to draw inferences about the specific allegations from these more generalised accounts. Kerim Yildiz says of the KHRP’s role in litigation: ‘In a technical sense you can say we are the solicitors.’ However, this description does not seem entirely accurate, not least because the applicants named in their cases are not necessarily in contact with them, let alone with the lawyers

14

Information obtained from the HRA website, available at: www.ihd.org.tr/english. On freedom of association in Turkey, see the Regular Reports on Turkey, available at: http://ec.europa.eu/enlargement/candidate-countries/turkey/key_documents_en.htm. 15

274 Loveday Hodson who actually present their cases to Strasbourg.16 In fact, there is no word in the legal terminology for the KHRP’s function in these cases. As with the ERRC, the KHRP’s most important role is essentially an activist one, ensuring that ECtHR litigation is generated and used as effectively as possible to highlight violations of Kurdish human rights. Indeed, viewed together, their cases present an impressive, and damning, indictment of the Kurdish human rights situation in Turkey.

UNDERSTANDING THE ROLE OF NGOS IN THESE CASES

The role of the NGOs in both of the case studies discussed in this chapter can only be properly understood against a background of nationalist sentiment resulting in persistent patterns of gross human rights violations, albeit that the Roma and the Kurds experienced this at different levels of intensity. What unifies these examples is that in both, calls to respect the human rights of the minorities concerned struggled to gain a platform and were even seen to be contrary to national interests. Ratification by the respondent states of the ECHR, on the other hand, provided a much-needed opportunity to address deep-rooted violence and discrimination. It is noteworthy, although perhaps unsurprising given the potentially grave diplomatic and political consequences that can follow from claiming that a fellow contracting state is a human rights violator and exposing it to the glare of international scrutiny, that even these serious and repeated violations of the Convention were not addressed through inter-state litigation (Pal Dunay argues in relation to the Roma—and here analogies can be drawn with the situation of the Kurds—that because they are a stateless group, they ‘cannot count on the effective support of a nation represented by a state’ to assist them when their rights are violated; see Dunay 1995). As Reidy et al note, the individual application procedure has been turned to fill this void: The inter-State mechanism under the Convention is more readily designed to raise these larger issues. However, because the political will is absent on the part of other States to become involved in such an application against Turkey, it is in the context of the individual complaints mechanism that efforts have been made to raise complaints of such a large scale violation … Individual applications as a means of highlighting a general situation of violation and forcing a judicial investigation of State policies in the context of an emergency may have considerable long term potential, especially if States remain reluctant to call each other to account for violations of their commitments under the Convention. But

16 Some applicants do speak directly with the KHRP. Both the Executive Director and other members of staff at the KHRP speak Kurdish.

Legal Responses of NGOs to Gross Rights Violations 275 the experience of these Turkish applications to date, underline the difficulties. (Reidy et al 1997: 172;17 see also Kamminga 1994)

While lodging an application with the ECtHR is not necessarily the most effective way of addressing serious human rights violations (for NGOs, it inevitably takes place alongside advocacy, publishing and educative programmes), it is certainly recognised as an effective means of doing so. This perception is primarily based upon the impressive reputation of the Court. As one senior ERRC lawyer said, ‘[its judgments] get a lot of media attention; you can use that to lobby and change the law’.18 Each favourable ECtHR judgment adds credibility to allegations that human rights violations are widespread and that systemic reform is required. The more that such knowledge exists, the harder it is for such violations to continue with impunity as domestic and international attention is drawn to the situation. Addressing structural issues that concern discrimination against minority groups as a whole is a weighty expectation to place on individual applicants. What emerges from the case studies is the remarkable fact that the principal initiators of pressure for structural reform through individual applications are NGOs who use the political leverage provided by ECtHR judgments as a means of publicising to a wide audience the treatment that minorities receive in these countries. While this activist function of civil society is well documented in the context of other human rights bodies, it has been less readily acknowledged that ECtHR litigation is used for aims that are, ultimately, transformative. Both the ERRC and the KHRP see themselves as having a role to play in addressing the patterns of discrimination that underlie the litigation in which they are involved and to be a means by which concepts, such as the rule of law and human rights, are promoted. The cases discussed in this chapter can be described as deliberate NGO constructions that are instigated for the purpose of highlighting systematic violations of human rights (of course, litigation can empower the individual—one of the aims of the ERRC is to raise awareness amongst the Roma people of their rights in order that they can use them themselves; see, for example, Cahn 2001). However, such transformative litigation programmes inevitably raise questions about who is intended to benefit from the litigation. In both case studies, the respondent governments raised the argument that the litigation in question was not brought forward for the applicants’ benefit, but rather

17 These authors note (Reidy et al 1997: 164) that one of the two inter-state applications that have been brought against Turkey was settled partly on the basis of Turkey agreeing to accede to the individual petition system. 18 Interview with Branimir Plese, Senior Staff Attorney at the ERRC.

276 Loveday Hodson to benefit the NGOs. In the Velikova case, for example, the Bulgarian Ministry of Justice referred to: The disturbing tendency which the Bulgarian government has noted before as well, that the act of having a procedure in the European Court turns itself into a profitable business, and—not for the clients, who have the right to seek their rights—but for their defenders who, after the procedure is forwarded and it became evident that the state—not the client—is going to pay, the lawyer easily get the claiming clients’ signature on agreements of juridical assistance on paper, containing unpaid artificially extended sums. The approval of such pretensions by the Court acts extremely demoralizing to the Bulgarian society, throwing a shadow of doubt over the human goals sought through the [Convention].19

To some extent, such criticisms of NGO litigation programmes have a basis in truth. Because the NGOs discussed in this chapter have such ambitious aims for their litigation, their cases are selected not on the basis of their value to the individual litigant, but for their utility in addressing wider issues of concern. Cases of absolute violations of the Convention are selected not only because of their particular urgency but also for their effectiveness in generating international mobility. It is therefore clear that the aims of the NGOs in bringing such cases to the ECtHR’s attention might differ, in certain respects, from those of the individual applicants.20 The prioritisation of these aims, in these circumstances, is perhaps made even more likely when the organisations funding and directing litigation strategies have little or no contact with the applicants in whose name cases are brought. Criticisms of NGO litigation strategies are particularly serious when they draw attention to the tenuous links between the organisation and the communities they profess to serve, and, in particular, when they suggest that these organisations are driven by the imperatives of their funding bodies (for a critical view of Roma NGOs, see Trehan 2001; for a critique of human rights NGOs in the Ugandan context, which contains an impressive bibliography of revisionist literature on the work of these organisations, see Dicklitch and Lwanga 2003). Indeed, the ERRC is somewhat self-critical about this point: It would be better if Roma lawyers were doing this. We are not a Roma dominated organisation. It makes a difference if you are from the affected community. We can’t forget why we are here. Lawyers aren’t interested in people. We have a bias towards law, not Roma.21

19 Undated fax to the ECtHR, received on 17 August 2000 (on file with the Court’s Registry). Criticism of the role of NGOs has also been raised during domestic proceedings. See, for example, the police criticism mentioned in (1996) 1(2) Focus: The Newsletter of the HRP 11. 20 In the Velikova case, as noted above, it appears that there was no communication between the applicant and the ERRC, although, as has been noted, she was clearly in contact with the HRP. 21 Interview with Dimitrina Petrova, Executive Director of the ERRC.

Legal Responses of NGOs to Gross Rights Violations 277 The accusation that organisations like the ERRC and the KHRP seek to have a significant transnational impact on the domestic policies of states is absolutely right. Not only is technical knowledge about the Strasbourg system introduced through their litigation programmes, but, along with it, the ideology of human rights and the rule of law. A consequence of this, of course, is that the real needs of the communities in question might be overlooked as the struggle for rights takes place without the close involvement of those intended to be its beneficiaries. As Pogany notes in relation to the Roma, ‘observance of the basic rights of the Roma will not, of itself, resolve many of the underlying problems that the minority is currently facing’ (Pogany 2004: 150). Whilst these criticisms are undoubtedly valid and should indeed be taken seriously by the NGOs involved in proactive litigation strategies, the case studies discussed in this chapter strongly suggest that they should not be a cause to paralyse these organisations’ work. The Convention’s mechanisms have been designed on the basis of a presumption of autonomy on the part of the individual applicant, yet this chapter highlights the fact that, in practice, years of oppression and the comparative strength of the potential opponent in litigation can make such freedom illusory for those most in need of the Convention’s protections. It is apparent that the liberal ideal of the independent and empowered actor (applicant) who is free to take his or her complaint against the government to Strasbourg, an ideal reflected in the ECtHR’s procedures, is inadequate to describe the reality of human rights litigation in extreme situations of rights abuse. Commentators have noted that the Court’s individual mechanisms are not an effective means of dealing with systematic violations of the Convention (Reidy et al 1997). The examples discussed in this chapter emphasise the failure of both domestic remedies and inter-state litigation in such situations: NGOs are using the ECtHR in these circumstances as moral leverage that can, in the words of Keck and Sikkink, mobilise shame (Keck and Sikkink 1998). Indeed, the same pattern is emerging in countries that have more recently ratified the Convention. The vast majority of the numerous applications lodged with the ECtHR that result from the bitter conflict in Chechnya, for example, have been, and continue to be, initiated by human rights NGOs (see Leach 2003; in this article, Leach refers to London Metropolitan University’s European Human Rights Advocacy Centre instigating cases together with Memorial [a Russian-based NGO] against Russia pursuant to atrocities committed during the Chechen conflict. At that point there were 3,700 pending cases against Russia). Those clamouring for minority rights in these situations face enormous popular and official resistance, and given the extent of the violations and nature of the human rights violations outlined and the lack of political and economic clout of the minority groups concerned, it is perhaps not surprising that organisations from the outside have attempted to create a space for

278 Loveday Hodson these communities to articulate their rights. The limitations of individualistic models of litigation have left a clear—albeit narrow—‘gap’ for NGOs to develop litigation strategies on behalf of excluded communities, a gap that they are attempting to exploit. The prevalence of NGO activity in litigating such situations suggests that it is through collective action that governments are effectively challenged. Keck and Sikkink make a compelling point from a political science perspective: Where the powerful impose forgetfulness, networks can provide alternative channels of communication. Voices that are suppressed in their own societies may find that networks can project and amplify their concerns into an international arena, which in turn can echo back into their own countries. Transnational networks multiply the voices that are heard in international and domestic policies. (Keck and Sikkink 1998: 8)

This contribution demonstrates the role that human rights law can play in bringing international pressure to bear on behalf of excluded groups. Indeed, Golston has recently commented upon the positive potential that NGO-driven public interest litigation has for the Roma of Europe: ‘The fact that Roma rights is today on the agenda of European institutions and national governments in a way unimaginable ten years ago is attributable at least in part to the role of PIL in raising awareness of the obstacles that Roma systematically confront’ (Goldston 2006: 516). It is unarguable that these NGOs create cases that almost certainly would never exist without their activating them. It is equally unarguable that without their involvement, some of the most extreme violations of the Convention would go unanswered. However, given their distance from the local context, the utility of these NGOs is ultimately limited; the projects discussed in this chapter can therefore be expected to be seen as unnecessary—and perhaps even irrelevant—as the communities use the space that has been created on their behalf to articulate the next stage of their struggle. Finally, what of the question of whether, by raising such broad issues, NGOs unduly politicise the work of the ECtHR? Dunay writes that complaints that address systemic problems place courts in something of a conundrum: If these bodies continue to focus on individual violations they may become politically irrelevant. If they react to the challenge posed by political conflicts they may well become over-politicized. The choice is not easy, particularly in light of the possible further extension of the membership of the Council of Europe to include countries facing even more severe minority conflicts. (Dunay 1995: 41)

However, I suggest that the way forward is to recognise that the litigation of the ECtHR, in such circumstances, is inherently political; NGOs are not making it political. Human rights, far from existing purely as abstract normative standards, are shaped and formed through communicative action. NGOs have recognised that the Court is one instrument that has

Legal Responses of NGOs to Gross Rights Violations 279 the potential to tackle systemic human rights violations and their strategies demand that the Court be made aware of the context in which rights violations occur. As Reidy et al note: The existence of a situation of widespread violation has significant impact on the likelihood of an individual being exposed to human rights abuses as well as on the character of such abuses. To ignore the context in which an individual has suffered a violation in such circumstances is to fail to address the nature of the violation. (Reidy et al 1997: 164)

Demonstrating respect for human rights may require a state to address deep-rooted issues of discrimination within society, and the ECtHR should have a role in encouraging this. Indeed, this is implicitly acknowledged by those currently arguing that the Court has a ‘constitutional mission’ to fulfil alongside its role in delivering individual justice (see, for example, Greer 2005). In presenting arguments about the structural nature of gross and systematic human rights violations, NGOs such as the ERRC and the KHRP make an important contribution towards the Court being an effective instrument of protection for some of Europe’s most vulnerable communities. CONCLUDING REMARKS

A sociology of rights can offer valuable insight into how paths to justice are laid and the processes by which certain events become constructed as legally proclaimed rights violations. This chapter points to the value of a critical examination of the robust individualistic liberalism that lies at the heart of much scholarly work on the ECHR’s machinery for protecting human rights. No one with an interest in human rights can fail to be impressed by the importance of the commitment that classical liberalism makes to individual freedom, which is referred to in the ECHR’s preamble as a ‘common heritage’ of European countries. However, I have questioned whether liberal individualism can offer a full account of human rights. In addition, I have intentionally opened up for examination the contested social space in which legal rights claims are constructed and from which human rights emerge. The intention of this chapter is to encourage dialogue on the interests at stake in this process. In this chapter I have attached importance to NGOs as actors that shape and construct human rights, especially in situations of extreme state violence against minority groups. The litigation of these organisations brings into sharp focus the fact that certain states within the Council of Europe have ‘massively defaulted on their normative commitments’ (Dunne and Wheeler 1999: 2). I suggested that an individualistic model of litigation is particularly inadequate to deal with state-sponsored or statetolerated violence that takes the form of systematic discrimination against

280 Loveday Hodson minority groups. NGO litigation strategies address deep-rooted problems of discrimination. ‘They are’, in other words, ‘part of a narrative of extending human rights to those who had been denied them that helped remove discriminatory barriers for many’.22 These NGOs’ cases consequently locate the individual applicants’ stories within a wider context of deep-rooted and ingrained injustice and discrimination. This opened up a particularly interesting, and largely untravelled, path from which to explore the ECtHR’s litigation. In particular, it enabled me to move beyond viewing the Court’s litigation either as a process of abstract metaphysical reasoning or as the resolution of microcosmic and discrete battles between individuals and states. Human rights, as they have been presented in this chapter, emerge from concrete social and political processes into which myriad actors are drawn. In this chapter, NGOs have been presented as potent activists that play a significant role in creating and shaping legal claims within the communicative structures of human rights.

REFERENCES Amnesty International (1996) Turkey: No Security Without Human Rights (London, Amnesty International Publications). Buckley, C (2000) Turkey and the European Convention on Human Rights: A Report on the Litigation Programme of the Kurdish Human Rights Project (London, KHRP). Cahn, C (2001) ‘Justice and Empowerment’ 1 Roma Rights editorial. Cameron, I (1988) ‘Turkey and Article 25 of the European Convention on Human Rights’ 37 International and Comparative Law Quarterly 887. Cassese, A (1979) ‘How Could Nongovernmental Organizations Use U.N. Bodies More Effectively?’ 1(4) Universal Human Rights 73. Cook, H (1996) ‘Amnesty International at the United Nations’ in P Willetts (ed), ‘The Conscience of the World’: The Influence of Non-Governmental Organisation in the U.N. System (London, Hurst & Co). Dembour, M-B and Kelly, T (2007) Paths to International Justice: Social and Legal Perspectives (Cambridge, Cambridge University Press). Dicklitch, S and Lwanga, D (2003) ‘The Politics of Being Non-Political: Human Rights Organizations and the Creation of a Positive Human Rights Culture in Uganda’ 25(2) Human Rights Quarterly 482. Donnelly, J (1999) ‘The Social Construction of International Human Rights’ in T Dunne and NJ Wheeler (eds), Human Rights in Global Politics (Cambridge, Cambridge University Press). Dunay, P (1995) ‘Nationalism and Ethnic Conflicts in Eastern Europe: Imposed, Induced or (Simply) Re-emerged’ in I Pogany (ed), Human Rights in Eastern Europe (Cheltenham, Edward Elgar Publishing).

22

Available at: www.guardian.co.uk/Columnists/Column/0,5673,1432039,00.html.

Legal Responses of NGOs to Gross Rights Violations 281 Dunne, T and Wheeler, NJ (eds) (1999) Human Rights in Global Politics (Cambridge, Cambridge University Press). Goldston, JA (2006) ‘Public Interest Litigation in Central and Eastern Europe: Roots, Prospects and Challenges’ 28 Human Rights Quarterly 492. Green, J (1978) ‘NGOs’ in AA Said (ed), Human Rights and World Order (New York, Praeger). Greer, S (2005) ‘Protocol 14 and the Future of the European Court of Human Rights’ Public Law 83. Harris, DJ, O’Boyle, M, Warbrick, C, Bates, E and Buckley, C (2009) Law of the European Convention on Human Rights, 2nd edn (Oxford, Oxford University Press). Hodson, L (2011) NGOs and the Struggle for Human Rights in Europe (Oxford, Hart Publishing). HRP (1995) Annual Report: 1994 (Sofia, Human Rights Project). Janis, M, Kay, R and Bradley, A (2008) European Human Rights Law: Text and Materials, 3rd edn (Oxford, Oxford University Press). Kamminga, M (1994) ‘Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations?’ 12(2) Netherlands Quarterly of Human Rights 153. Keck, ME and Sikkink, K (1998) Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, Cornell University Press). Korey, W (1998) NGOs and the Universal Declaration of Human Rights: ‘A Curious Grapevine’ (New York, St Martin’s Press). Kurdish Human Rights Project (2001) Ertak v Turkey, Timurtas v Turkey; State Responsibility in ‘Disappearances’—A Case Report (London, KHRP). Leach, P (2003) ‘Europe Turns Spotlight on Human Rights in Chechnya’, The Times (Times 2), 28 January 2003. Ovey, C and White, RCA (2006) Jacobs and White, the European Convention on Human Rights, 4th edn (Oxford, Oxford University Press). Pogany, I (2004) The Roma Café: Human Rights and the Plight of the Romani People (London, Pluto Press). Reidy, A, Hampson, F and Boyle, K (1997) ‘Gross Violations of Human Rights: Invoking the European Convention on Human Rights in the Case of Turkey’ 15(2) Netherlands Quarterly of Human Rights 161. Ritchie, J (2003) ‘The Application of Qualitative Methods to Social Research’ in J Ritchie and J Lewis (eds), Qualitative Research Practice: A Guide for Social Science Students and Researchers (London, Sage). Robertson, AH and Merrills, JG (2001) Human Rights in Europe: A Study of the European Convention on Human Rights, 4th edn (Manchester, Manchester University Press). Rodley, N (1979) ‘Monitoring Human Rights Violations in the 1980s’ in J Dominguez, R Falk, N Rodley and B Wood (eds), Enhancing Global Human Rights (New York, McGraw-Hill). Steiner, H (1991) Diverse Partners: Non-Governmental Organizations in the Human Rights Movement (Cambridge, MA, Harvard Law School Human Rights Program). Trehan, N (2001) ‘In the Name of the Roma? The Role of Private Foundations and NGOs’ in W Guy (ed), Between Past and Future: the Roma of Central and Eastern Europe (Hatfield, University of Hertfordshire Press).

282 Loveday Hodson Van Dijk, P, Van Hoof, F, Van Rijn, A and Zwaak, L (eds) (2006) Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp, Intersentia). Weissbrodt, D (1977) ‘The Role of International Nongovernmental Organizations in the Implementation of Human Rights’ 12 Texas International Law Journal 293. Willets, P (1996) ‘The Conscience of the World’: The Influence of Non-Governmental Organisation in the U.N. System (London, Hurst & Co).

14 The Complexities of Human Rights Implementation within the Costa Rican Police System QUIRINE EIJKMAN*

I

N ORDER TO strengthen the rule of law and reduce citizen complaints about law enforcement officials, states all around the world, including in Latin America, implement human rights law within their police systems. In this way, they intend to control police involvement in human rights violations. In society, law, including human rights law, can lead to social change, yet there is no direct relationship between one and the other. Law in and of itself does not affect police behaviour. Therefore, research about the effect of law within the social fields in which law enforcement officials operate is important. Furthermore, there are only a few empirical studies about human rights-related police reform in Latin America and most of these studies have focused on transitional societies (for studies on police reform in transitional societies in Latin America, see Chinchilla Miranda and Rico 1997; Glebbeek 2003; Hinton 2006; Husain 2007). Hence, this chapter reviews the implementation of human rights within the police system of an established regional democracy: Costa Rica. Costa Rica was selected as a case study because it has a strong democratic tradition, is committed to the rule of law and does not have an army (unique in a region that has a recent legacy of authoritarianism and militarism). My analysis has been guided by the following research question: what is the effect of police human rights strategies within the police force in Costa Rica? As the methodology of this chapter is predominately based on data derived from the literature, interviews and participant observation conducted between 2003 and 2006 at the Costa Rican Ministry of Public

* This chapter is based on Eijkman 2007. I would like to thank Hans Kluwer for his support and Gert Verschraegen for his feedback.

284 Quirine Eijkman Security and the Public Force, it is difficult to generalise about the conclusions.1 Nevertheless, the study’s explorative and descriptive nature provides an insight into the process of implementing human rights law within police systems, thereby contributing to future research on human rights law and policing. In the first section, police reform in Latin America is briefly introduced. In the second section, human rights implementation is considered based on Moore Falk’s theory of semi-autonomous fields (Moore Falk 1973). The third section outlines police reform in Costa Rica. In the fourth section, two specific police human rights strategies, ie police training and police accountability mechanisms, are discussed. In the fifth section, the implementation of these police human rights strategies within the Costa Rican police system is analysed. To conclude, I reflect upon the potential effects of implementing human rights law within the police forces of democratically ruled Latin American states.

POLICE REFORM IN LATIN AMERICA

Since the extent of social change varies within Latin America, it is important to consider the context in which police reforms are implemented. Is the reform, for example, part of a political transition from an authoritarian to a democratically ruled state? Societies in transition from authoritarianism to democracy undergo major changes, which tend to have an impact upon law enforcement. Within contemporary Latin America, the international thrust of decreasing police involvement in human rights violations accounts for just one aspect of a greater effort to reform the police. Some countries have reformed their police systems as part of the greater transition from authoritarianism to democracy, while others have done so in order to professionalise or decrease the military approach to law enforcement. The vast majority of Latin American states have reformed their police forces during the last two decades. More specifically, efforts have been directed at reforming law enforcement agencies as well as improving citizen security and diminishing the role of the armed forces. This trend has been bolstered by a rising atmosphere of insecurity, by corruption scandals and by the increase in private security (LB 1996, 2004).2 Furthermore, police forces

1 Between 2003 and 2006, fieldwork was conducted with the permission of the Minister of Public Security. Participant observation took place at the police station of Delta 11, located in Hatillo’s, at the police station ‘Charlie Delta’, which is a subdivision of the Public Force of Delta 1 in San José centre and the Central Dependence of the National Police Academy, José Francisco Orlich B. Furthermore, time was spent at the Ministry of Public Security and other police stations were visited. Additionally, 118 interviews were held with police officers and other stakeholders. 2 Latinobarómetro is an annual public opinion survey that involves some 19,000 interviews in 18 Latin American countries.

Human Rights within the Costa Rican Police System 285 continue to be involved in human rights violations. Violence and crime are important issues within contemporary Latin American societies. As such, they play a key role in the skyrocketing sense of insecurity and have negatively influenced the perception of a democratic government in which arbitrary violence is exercised by state actors. Since the 1990s, police reforms in Latin America have targeted the organisation of policing, police–community relations and militarisation, as well as the politicisation of law enforcement. Police reform entailed the development of police accountability mechanisms, the strengthening of police–citizen relations and police decentralisation (Chinchilla Miranda 2003; Frühling 2003; WOLA 2002). Nevertheless, certain aspects of policing did not change, such as the fact that militaristic approaches to law enforcement persist (Frühling et al 2003). In many countries in the region, law enforcement officials are involved in abuses, including arbitrary killings and torture (Candina 2005; Méndez et al 1999; Rodley 1999). As it is, despite human rights initiatives, democratic states are unable to confront human rights violation effectively. Often these state officials have little training, earn only low salaries and receive little respect from the public at large. As such, although police reform in Latin America is being implemented, authoritarian police practises and police human rights violations continue. In recent studies on police reform, there is considerable emphasis placed on the political context of transitional societies (Call 2000; Hinton 2006; Ungar 2002). Guatemala and Peru, for example, are under pressure by the international community to democratise and reform policing (Frühling 2003; Glebbeek 2003). There are several empirical studies that discuss police reforms and human rights implementation in the context of such transitional societies in Latin America. However, during the last decade, consolidated democracies within the region have also drastically reformed their police forces. In those societies, reform processes tended to be politically negotiated and there was less involvement of the international community (Rico and Chinchilla Miranda 2002, 2006; Frühling et al 2003; Neild 2003). Change in terms of policing in established democracies like Costa Rica or Chile tends to be more gradual. Considering the regional history of police involvement in human rights violations and the current trend to improve public security and bring about police reform, it is vital to comprehend how police organisations in both transitional societies and established democratic societies in Latin America respond to human rights implementation.

HUMAN RIGHTS IMPLEMENTATION WITHIN THE POLICE

Human rights law protects citizens against unlimited state power. As a state agency for social control, the police have a challenging relationship with human rights. In a democracy, the police are responsible for law

286 Quirine Eijkman enforcement. This provides the police with a mandate to protect human rights, defend fundamental freedoms and maintain public order (OHCHR). Yet, because of their ability to use force, they run the risk of violating human rights. Therefore, ‘legitimate’ force should only be used when it is justified and when it is the appropriate recourse to the offence. Obviously, there are significant differences between the theory of the law and police reality. Law enforcement officials are confronted with various aspects of policing in their day-to-day work. Besides law enforcement, the key tasks of the police include the restoration of public order and crime control (Crawshaw et al 1998). If human rights were only to be considered from a legal perspective, other relevant aspects to policing would not be addressed. With this in mind, the process of implementing human rights within the police should address all the basic tasks of law enforcement officials.

POLICE HUMAN RIGHTS STRATEGIES

In order to comprehend what the effect is of human rights law within the semi-autonomous field in which the police operate, it is essential to learn what social change it generates. Primarily, human rights implementation is carried out through legal structures. However, establishing a direct relationship between law—including human rights law—and changes in the behaviour of law enforcement officials is a complex process (Cotterrell 1992; Dror 1971). If the state wants to ensure police compliance with human rights regulations, it creates additional structures to implement its formal laws. In the context of this chapter, these other structures are referred to as strategies. The government develops other strategies that seek to prevent or at least confront human rights violations on an institutional level (ICPNR 1999; WOLA 1998). They include police accountability mechanisms, special laws, regulations, public policies, programmes or projects. As a result of the social change generated by these police reform initiatives, law enforcement officials are directly or indirectly stimulated to comply with human rights norms, values and/or standards, and they are therefore defined as police human rights strategies (Eijkman 2006, 2007; Husain 2007). Thus, by implementing police human rights strategies within the social field in which the police operate, the state anticipates that the police will increasingly act according to formal human rights law. By determining the effect of police human rights strategies, one tries to understand whether the implementation of human rights law within the Costa Rican police force contributes to a change in police behaviour. As a result of introducing police human rights strategies, law enforcement officials comply with or resist the norms, standards and values that human

Human Rights within the Costa Rican Police System 287 rights represent. By understanding police behaviour within the social fields in which they operate, one is able to describe and analyse their responses to change. Within these semi-autonomous social fields, people both regulate their own conduct and are simultaneously influenced by external forces (Moore Falk 1973).3 In this study, the semi-autonomous field refers to the police system. In addition to the police human rights strategies, which implement formal human rights law among the police, I have categorised external forces as political and institutional factors. The police system is one of the many semi-autonomous fields to which law enforcement officials belong. Within these social fields, formal rules and informal rules play a role. Formal rules, such as international human rights law, seek to regulate group behaviour from the outside in, whereas with informal rules, police officers internally regulate their own conduct (Moore Falk 1973). These processes are further influenced by political as well as institutional factors and affect law enforcement officials’ compliance with human rights norms, values and standards. By conceptualising how police officers respond to the implementation of police human rights strategies, it is possible to discuss whether formal human rights law is able to create social change in terms of regulating and/or controlling the behaviour of law enforcement officials.

THE COSTA RICAN CONTEXT

Traditionally, the organisation of the Costa Rican police force has been fragmented and politicised. As Costa Rica does not have an army, the police force is the main state agency responsible for public security and, in case of emergency, for national security. The organisational structure of the police system is fragmented. There are 11 different police agencies, which are answerable to five ministers, to municipal governments and to the judiciary branch (UNDP 2005). To a certain extent, this institutional framework expresses the fear of creating a militarised state, since having a centralised police force runs the risk of it becoming too powerful (Urcuyo Fournier 1986). Fragmentation also characterises the ‘Public Force’, Costa

3 Semi-autonomous fields are defined by their boundaries—their ability to create rules or to induce compliance with them. These social systems create rules, customs and symbols, and are simultaneously influenced by external rules, decisions and forces (Moore Falk 1973). Thus, while semi-autonomous fields have the capability to make their own rules and have their own means to coerce or induce compliance, they are also influenced by outside stimuli. Within semi-autonomous fields, people develop their own rules and make sure they are adhered to. As such, social control towards individuals is exercised. Concurrently, however, external forces affect the behaviour of people. For these reasons, the social fields are considered to be semi-autonomous.

288 Quirine Eijkman Rica’s most important preventive police agency.4 The Public Force is the largest police force in the country and is attached to the Ministry of Public Security. It is charged with preventive policing, citizen security and, in states of emergency, national security. Furthermore, even though there are relatively few serious police human rights violations in Costa Rica in comparison to the rest of Latin America, it is a concern for Costa Rican society by and large (Chinchilla Miranda 2003; Frühling et al 2003; Ombudsman’s Office 1994–2006).

POLICE REFORM

In the 1990s, there were several factors that contributed to drastic police reform in Costa Rica. These included police inefficiency in handling rising crime rates, their militaristic style of policing, the lack of labour stability, the lack of cooperation between different police forces, the poor labour conditions of police officers and a general lack of professional skills (for more information, see Chinchilla Miranda 2003, 2004; Rico 2003; UNDP 2005; Urcuyo Fournier 1986; Zamora Cordero 1997). The main objectives of police reform were to professionalise policing, affirm its civilian character, create a uniform police accountability structure, develop basic police training and set selection and recruitment standards (Chinchilla Miranda 2003, 2004; Rico 2003). In order to stabilise labour conditions, a police statute was established and salaries were improved (González and Ulloa 2002). Also, the reform attempted to create more stability between the different police forces. In 1994, this was attempted by codifying police responsibilities into one single law—the Police Code—which was amended in 2001 along with the Civil Police Code.

THE SEMI-AUTONOMOUS FIELD OF THE COSTA RICAN POLICE SYSTEM

The semi-autonomous field of the Costa Rican police system is characterised by its fragmentation, its duality, strong civil-political control, hierarchical structures and labour instability. Since the legal reform of the early 1990s, it has become clearer what the police mandate is and what the responsibilities are of the different police units. Generally speaking, Costa Rican

4 Most Latin American public security systems distinguish between preventive and investigative policing (Ambos et al 2002). Preventive police forces carry a responsibility to protect public security and maintain order within society. Unlike the investigative police, who are also known as the repressive or the judicial police, they do not perform any task after a crime has occurred.

Human Rights within the Costa Rican Police System 289 police officers are more or less aware of their duties and tasks, though the fragmented structure of the police force has not fundamentally changed. Today, the small developing society continues to have a variety of police agencies that face challenges in coordinating and cooperating with one another. The Civil Guard, the Rural Guard and the Metropolitan Police have merged into one preventive police force, ie the Public Force. This merger entails that all police officers now wear the same uniform and, since the implementation of the community policing programme ‘proximity policing’, that they all work in similarly operating police units. Functionally, the Public Force consists of numerous specialised units; as such, the nation’s preventive police force is internally almost as fragmented as the entire Costa Rican police structure itself. There is some divergence between what the police system is and what it should be according to the law. Accordingly, it is challenging for Public Force police officers to operate in a dual context. Considerable efforts have been made to reform the police system and to professionalise the Public Force. For ordinary police officers, these efforts are reflected in improved labour conditions, labour stability, an increase in salaries, the development of selection, promotion and rank criteria, possibilities for focused police training, laws and regulations on how to police, the decreasing absolute power of the police chief and a decrease in arbitrary accountability procedures. Yet, still, relics of the past persevere. These relics are primarily detected in the power struggles between the ministry, senior police leaders and bureaucrats, as well as police officers and the continuation of political clientelism. Thus, in addition to the professional police system, the so-called confianza system persists. As the professionalisation process is far from being implemented fully, these two systems function simultaneously. For example, while there are ‘professional’ police officers who have participated in the new basic police training course, enjoy increased labour protection and a salary increase, there are other ‘traditional’ police officers who are only partially trained and who do not have job security (Eijkman 2007). At all levels of the police hierarchy, but especially at the rankand-file level, these two types of police officers conduct similar kinds of work. This can create tension in everyday work situations in that although professional law enforcement officials are better educated, they are often less experienced and therefore, according to police cultural values, less qualified. With an institutional policy favouring professional police officers for promotion and training, this often creates resistance among traditional police officers. Additionally, these officers are more vulnerable to political control. In middle management, but especially in senior positions, the number of professional police officers is low. Senior police officers continue to be political appointees and, when in key middle-management positions, they tend to appoint their own ‘confidential’ staff. Subsequently, since many police leaders are traditional police officers, they perceive professional

290 Quirine Eijkman police officers as a threat to their position within the Public Force and therefore rely more on the confianza system than on the professional police system. Public policy and labour stability are important tools through which political control over the Public Force is maintained. By either firing or transferring police officers, the ministry and police leaders are able to exercise control over the police system. Even though police chiefs are being fired less often, they are still being transferred frequently, ie, generally speaking, every Minister of Public Security appoints new senior police leaders. These may or may not have professional police experience. In turn, these senior police leaders appoint their own police unit chiefs. At the police unit level, police chiefs assign key tasks to entrusted personnel, who often have a police background. Increasingly, candidates are obliged to meet certain informal selection criteria. Despite policies that give ‘professional’ police officers preferential treatment, many policies (especially for senior positions) are also based on the confianza system. At all levels of the Public Force, the appointment of confidential staff has the same objective: to exercise control over subordinates and maintain hierarchical structures. Although politicians seem to support police reform measures, they have not systematically developed a long-term vision on policing. There are several reasons why this has not progressed significantly since the 1990s. First, political parties generally feel that the police question was addressed in the formulation of the new Police Code in 1994. In interviews with politicians, a frequent response went along the lines of: ‘Oh, but that [the police issue] has been dealt with in the 1994 Police Code.’ Politically, they do not feel accountable for the implementation process. Second, despite the fact that public security is a tremendous societal concern, it is not a political priority, especially when the country is in the throes of economic setbacks and political corruption scandals. Third, politicians remain distrustful of powerful state security forces and continue to rely on political appointments to exert control. Fourth, among politicians and in society at large, there is little expertise on policing. Fifth, there is a tendency to deal, ad hoc, with highly publicised issues such as police corruption scandals rather than to address the root causes of the problems. One of the consequences is that politicians only allocate modest resources to implement any form of change. Consequently, the realisation of reform within a police system that already has to cope with a significant shortage of resources is questionable. Subsequently, the Minister of Public Security and especially Public Force management have a difficult road ahead of them in terms of determining where to allocate their already-sparse resources. Furthermore, another setback to effective police reform lies in the fact that police administrators are inclined to accept international police assistance without critically analysing whether the aid is really necessary and coherent with other reform efforts.

Human Rights within the Costa Rican Police System 291 POLICE TRAINING AND POLICE ACCOUNTABILITY MECHANISMS

As part of this police reform trend, several police human rights strategies were implemented within the Costa Rican police system (Eijkman 2007). They include the development of police accountability mechanisms, community policing programmes, a code of conduct, police selection criteria and training programmes, the development of legal police expertise and gender and equality policies, and the adoption of civil, rather than military, ranks. This section focuses on two specific police human rights strategies: police training and police accountability mechanisms. Essentially, by implementing the police human rights strategy of police training, the government wanted to create a stable, more highly educated and better trained Public Force. The main aim of this process, referred to as the ‘professionalization of policing’ (Matul and Dinarte 2005), was to train or re-train all preventive police officers and thereby also facilitate job stability (Rico and Chinchilla Miranda 2002, 2006; Zamora Cordero 1997). The underlying assumption was that under these conditions, police compliance with human rights norms would improve. Unfortunately, there were and are considerable delays in the effectuation of police training. Almost a decade after the reform was initiated, only about 25 per cent of the Public Force is made up of professional police officers (Rico 2003; UNDP 2005). Most of their more experienced colleagues are ‘traditional’ police officers who do not benefit from the changes that these educational reforms offer. Perhaps the greatest paradox is that professional police officers are mostly found in the rank-and-file positions, while those higher up in the police hierarchy continue to be politically appointed (Call 2000; UNDP 2005). To a certain extent, this duality explains why law enforcement officials are both increasingly complying with the changes that police training is generating while also retaining the pre-1994 confianza system of political clientelism. The delays in implementing this police human rights strategy, ie police training, are predominantly caused by a lack of resources, planning, consistent political commitment and support from senior police leaders. Police accountability mechanisms are a police human rights strategy meant to implement or strengthen police accountability. There are legal and non-legal police accountability mechanisms that work externally or internally (ICPNR 1999; Stone and Ward 2000). According to law enforcement officials, the police chief and peer control exerted the most effective internal accountability mechanisms on the Public Force, among which include the internal disciplinary proceedings. External accountability mechanisms such as the criminal justice chain or the Ombudsman’s Office were considered to be less effective. Furthermore, in Costa Rica, police accountability has a punitive character and is focused upon rank-and-file police officers (Eijkman 2006).

292 Quirine Eijkman Even though politicians and police leaders are more or less committed to holding police officers accountable, there are several factors that impede this process: the bureaucracy of the Ministry of Public Security, the strong hierarchal structure of the Public Force, the lengthy duration of investigations, the lack of resources and changing political priorities (Eijkman 2007). Moreover, because internal legal accountability mechanisms have priority over external accountability mechanisms, the involvement of citizens in the process of holding police officers to account is limited.

HUMAN RIGHTS IMPLEMENTATION IN PRACTICE

From a socio-legal perspective, human rights implementation seeks to change police officers’ behaviour with the objective of having them comply (increasingly) with human rights norms, values and/or standards. To achieve this, police human rights strategies are the tools by which formal law is introduced within the semi-autonomous field of the police system. Ultimately, the way in which the police system functions influences how police officers relate to the police human rights strategies. Particular political and institutional factors have affected the implementation of police training and police accountability mechanisms within the Costa Rican police system. Despite the fact that each police human rights strategy was introduced under different circumstances, there were commonalities in their implementation processes. These commonalities related to structural impediments to Costa Rican policing and, as such, to the reform initiatives. Structural concerns about the police system included the lack of political vision, ad hoc decision-making, lack of expertise and professional police officers, the police system’s hierarchical structure, its dependency on international police cooperation, its excessive bureaucracy, its reliance on specialised police officers, frequent replacements and its institutional culture. Depending on the type of police human rights strategy being implemented, some of these factors are more relevant than others. For example, in order for police accountability mechanisms to work, they rely on law enforcement officials who are familiar with Costa Rican law, their rights and what constitutes an abuse of authority. Even though human rights are part of the basic police training course, specialised courses as well as workshops, a certain percentage of police officers have little or no opportunity to participate in these. Therefore, there is a gap between the theoretical knowledge that is necessary for the strategies to work and the actual knowledge that is present. Consequently, the institutional problem of having an inadequate number of trained police officers hinders the implementation of police human rights strategies in general, and this includes police accountability.

Human Rights within the Costa Rican Police System 293 It is likely that a key element to the successful implementation of police human rights strategies within the Costa Rican police system is whether they were initiated as well as executed under the same political administration and ultimately recognised by law. For instance, police training was an initiative that was ultimately legalised. This more or less ensured that the initiative was pursued during successive administrations, even in those of different political inclinations. Also, successful implementation was (and is) affected by which actor or actors proposed the reform, were held responsible for its execution and provided the necessary funds. Although this differed according to the police human rights strategy, in general, the initiation of the reform was carried out in a top-down fashion by the Minister or the Vice Ministers of Public Security, in association with Public Force management and/or high-level bureaucrats, whereas the execution was conducted in collaboration with either middle-level subordinates from the police or the ministry. Quite often, initiators of such reforms are political appointees who have little experience of operational policing and who are not really aware of what has been attempted in the past. In the present context, it would seem that each administration wants to reinvent the wheel and develop its own police human rights strategy. Although international police cooperation often makes reform possible, too often the priorities of donors and national governments diverge. In Costa Rica’s case, international police assistance tends to be accepted without sufficient consideration of what the Public Force’s priorities and needs are. Should Costa Rican police leaders be trained in the US army? Should traditional police officers receive human rights workshops in domestic violence or migration if they have not been trained sufficiently in the basics of Costa Rican and human rights law? For instance, as inter-family violence was a tremendous societal concern, it is understandable that the Costa Rican government accepted Spanish collaboration to educate the Public Force. However, when teaching these specialised human rights topics, it remains unclear whether sufficient consideration was given to what the effect was of this training on the educational development of traditional police officers. Essentially, the government has to choose between satisfying short-term versus long-term interests. Furthermore, how do these human rights workshops relate to what has been taught to professional police officers at the police academy? Essentially, the government and donors incorporate all key actors such as politicians, police leaders, rank-and-file police officers, experts and the community in this process. In relation to the implementation of police human rights strategies, this is done in the preliminary phases, but should be continued during the entire implementation process. Whether or not and to what extent law enforcement officials related to the police human rights strategies depended on several factors. First, this depended on the extent to which the preselected police human rights

294 Quirine Eijkman strategies had been implemented—several of which were still in their preliminary phases. This explains some responses of law enforcement officials to these strategies. At the police system level, the external legal and non-legal accountability mechanisms were more or less functioning, whereas the internal legal and non-legal accountability mechanisms and police training were still in the process of being fully implemented. Second, the specific police human rights strategies that law enforcement officials perceived as being their own responsibility varied according to how these strategies affected their work at the police unit level. Some police human rights strategies were primarily perceived as the responsibility of police leaders and/or specialised police officers. Subsequently, during interviews, rank-and-file police officers would state that accountability, for instance, was the responsibility of the police chief, the police lawyer or the community affairs police officer. This perception was due to the fact that, at the police system level, some police human rights strategies had not been sufficiently internalised to overcome police officers’ overall obedience to authority and passive resistance to change. Third, how police officers related to police human rights strategies depended somewhat on whether the respondents were professional police officers, on their educational level and on their experience, ie the kind of position they held and number of years they had spent in the Public Force. Due to their lack of training and, typically, lower educational background, traditional police officers generally have a harder time identifying with police human rights strategies, especially if they affect policing as they know it. This situation is exacerbated by the fact that the change that certain police human rights strategies generates appears to favour professional police officers. Characteristics such as age, gender and rank mattered significantly. In terms of rank, this might seem surprising, but it is related to the institutional organisation of the Public Force. Police ranks do not necessarily reflect a police officer’s educational background, experience or professional status. Fourth, the role of the police leadership was crucial in relation to the implementation of police human rights strategies. Compliance with human rights is largely dependent upon how police leaders relate to the implementation process. Although commitment at the senior level is necessary, police leaders’ support at the police unit level seemed to be even more important. On a daily basis, police chiefs and supervisors can ensure the compliance of rank-and-file police officers. In a sense, within the police system, police chiefs and supervisors set the tone for the norms, standards and/or values by which law enforcement officials conduct their work. During informal conversations and interviews on different strategies, both professional and traditional police officers frequently referred to police leadership. However, as police chiefs were appointed by police hierarchs, they tended to be loyal and followed orders strictly. As such, police leaders are influenced

Human Rights within the Costa Rican Police System 295 by the perspectives of senior police leaders, who, for political reasons, are ambiguous in their support of police human rights strategies. Moreover, as a number of police leaders did not meet the new selection criteria and therefore no longer had authority over low-ranking police officers, they generated resistance to these changes. Therefore, the implementation of police human rights strategies within the police system effectively depends on mid-level police leadership.

CONCLUDING REMARKS

By determining the effect of police human rights strategies within the Costa Rican police system, I have explored whether the implementation of formal human rights law amounts to change in the social fields in which people operate. As a result of introducing police human rights strategies, law enforcement officials within the Costa Rican police system are increasingly encouraged to comply with the norms, standards and/or values that human rights portray. Nevertheless, due to the above-mentioned political and institutional challenges, police officers also resist the kind of change that human rights generate. The effect of the police human rights strategies, specifically police training and police accountability mechanisms, upon the law enforcement officials of the Costa Rican Public Force has been that the law enforcement officials are increasingly sensitised about the role that human rights law plays in law enforcement. Due to the implementation of police human rights strategies within the semi-autonomous field of the police system, it is more difficult than it was in the past to resist the long-term influence of these formal laws. The norms, values and/or standards that they portray have become part of the everyday realities for law enforcement officials. Whether this leads to increased police compliance with human rights law depends on the extent to which the strategies are able to regulate police reality. As it is, police officers generally continue to adhere to strong hierarchical structures, which may or may not lead to compliance with human rights. Hence, the persistence of the police culture of authoritarianism influences the implementation of police accountability mechanisms and police training. Therefore, the role of police leaders at the police unit level as well as at the more senior levels is pivotal. As police human rights strategies, such as police training, have not been fully implemented, it is difficult to speculate on their effect upon the behaviour of law enforcement officials. This situation is best illustrated by the differences between the so-called ‘professional’ and ‘traditional’ police officers. Despite the understandable objective of creating a more educated and better trained professional Public Force, at the police unit level, tension exists between the two. Professional and traditional police officers do similar

296 Quirine Eijkman work, but have distinctive incentives. As police training predominantly benefits professional police officers, they contribute to the widening of this gap. They alienate traditional police officers, who have less to gain from the reform initiatives. Subsequently, they tend to rely on the alternatives, such as the confianza system, through which they can obtain benefits on the basis of political loyalty. Furthermore, as long as traditional police officers make up the majority or retain key positions in the hierarchy of the Public Force, they are able to set themselves against professional police officers and oblige rank-and-file officers to behave as they see fit. Though this does not necessarily suggest that police officers do not comply with human rights, this dynamic does temper the effect of implementing police human rights strategies within the police force. As most empirical studies on human rights and police reform in Latin America focus on transitional societies, this chapter concentrated on the effect of police human rights strategies in an established democracy, thereby calling into question whether police reform processes in post-authoritarian and in democratically ruled states in Latin America are inherently different. Even though, in contrast to many other police forces in the region, the Costa Rican police force has a reasonably good human rights record, similar impediments, such as a lack of political commitment to human rights-inspired reform, appear to exist.

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Index Afghanistan: Soviet invasion, 137 accountability: corporate social responsibility, 8 institutions, 8 police, 291–2 states, 8 activism, 81–2, 97 Canada, 257–8 civil rights, 9, 65–7 legal activism, 131–3 political activism, 137 state power versus, 129–30 traditions, 131–2 United States of America: American Civil Liberties Union (ACLU), 132–3 Amnesty International, 134 see also civil society groups Alston, P, 135 American Civil Liberties Union (ACLU), 132–3, 136 Amnesty International, 13, 97, 185 ideological neutrality, 134 Nobel Peace Prize, 131–2 anti-juridical rationalism, 139, 141 Arendt, H, 128(n), 144–5 asylum seekers, 13 Australia: Marriage Amendment Act 2004, 247 same-sex relationships, 247–51 Bachelard, G, 84 epistemological obstacles, 2, 16 Beck, U, 18, 215 Becker, G, 176 Bentham, J, 128(n), 182 Bill of Rights (New Zealand), 250, 260–1 Bill of Rights (United States), 48 Bodin, J, 66 Boon, V, 215, 229 Bourdieu, P, 15–16 concepts, 83–6, 92, 94 epistemological obstacles, 84 reflexive sociology, 87–9 sociology of law, 130 Bureau of Human Rights and Humanitarian Affairs (USA), 133, 134, 136 Canada: activism, 257–8

Canadian Charter of Rights and Freedoms, 252(n), 255–6 Civil Marriage Act 2005, 247 right to health, 236 same-sex relationships, 247–62 marriage, 252–3, 255 political controversy, 254–7 capitalism, 181, 235 inequality: health, 235 see also neoliberalism Checkel, J, 151–2, 165 citizenship, 12–14, 73, 210–11 definition, 2, 3 territorial definition, 12–13 globalisation, 13 impact on human rights, 191 importance of education, 15, 17, 191–6 international human rights law, 3, 164 modern citizenship, 191 rights, 179, 182 social inclusion, 73–4, 191, 192–6 sociology of, 2, 5, 12–13, 150 civil and political rights, 2, 91–2, 134–5, 234 citizenship, 179, 182 International Covenant on Civil and Political Rights (ICCPR), 249–50 positive rights, 10–11 universality, 185 violation rates, 162 welfare principles, 223 see also cultural rights; human rights; socio-economic rights civil society, 90–1 activism, 275 see also civil society groups; nongovernmental organisations civil society groups: activism, 97–9 emergence of global human rights, 12 networks, 89–91 role in struggle for human rights, 18 see also non-governmental organisations Code Civile (France), 48 Cold War, 132, 137 European Convention on Human Rights, 97–8 violations, 165 impact on international human rights, 132–3, 136

302 Index impact on research, 89–90, 97 compliance: analysis, 157, 161–2, 164–5 Article 2 of ICESCR, 243–4 European Convention on Human Rights, 157, 163, 164 assessment of compliance, 150, 153–6 interpretation, 240–4 national variations, 240 right to health, 243 constitutional rights, 25, 50, 51 same-sex marriage, 252 England, 43 France, 48 history of, 41, 42–52 political abstraction, 39–46, 50 reflexive sociology, 51–2 right to education, 194–5 social functions, 25–27 Luhmann, N, 28–9 societal depoliticisation, 46–51, 69 societal differentiation, 45, 50, 69 state-formation, 66–7 United States, 48 universal rights, 66 see also constitutions constitutions, 39–40, 43–52 constitutional human rights, 28–9 depoliticising role, 46–51 history of, 42–51 constructivist sociological perspectives, 4, 16, 164–5 approach, 84, 96 concept, 113, 129 European Convention on Human Rights, 151 international relations theory, 127–31 neoconservatism, 140 Whitehead, A N, 108 corporate social responsibility, 8 Costa Rica: context, 287–8 law enforcement, 288–96 police reform, 288 Council of Europe, 150–1 European Convention on Human Rights, 153–7 human rights record, 164–5, 279 courts and courtroom procedures, 9–13 constitutional rights, 222 dependence on political stability, 11 European Court of Human Rights (ECtHR), 13, 152 national courts, 157, 166 ‘cult of the individual’: Durkheim, E, 63–5 see also individualism cultural rights, 134, 183

Dean, J, 217 decolonisation, 97, 209 democracy: compliance to European Convention on Human Rights, 153–6 violation rates, 162 democracy promotion, 141–5 human rights and, 82, 90, 131 socio-economic rights, 135–7 international law, 143 police, 285–6, 296 welfare states, 222–3 Denmark, 215–29 citizenship, 219 discrimination, 225–6 employment: ethnic minorities, 227 EU regulation, 220–4, ‘flexicurity’, 222 human rights theories, 216–21 labour market regulations, 222 nationalism, 224 solidarity, 227–9 trade unions, 222, 224 welfare state: evolution, 221–3 human rights and, 223–5 solidarity, 221, 227–9 structure, 225–7 Derian, P, 132, 134 differentiation, 50–1 Durkheim, E, 63–65, 78 economic differentiation, 36(n) fundamental rights, 62, 71–4 globalisation of fundamental rights, 74–7 global functional differentiation, 76–7 impact on society, 28, 83 individualism, 63–5 integration and, 83 Luhmann, N, 28–9, 68–71 modern society, 61–3 political abstraction, 39–46 political differentiation, 29–42, 82–3 relationship between state and individual, 65–8 social inclusion, 73–4 societal differentiation, 45, 46, 50, 61–3 structural societal transformations, 82–3 Teubner, G, 74–7, 78 theories, 61–3, 71, 78 discrimination, 11, 175, 179 cultural values, 11 equality, 259–60 health, 234, 235–7 legislation, 220 minorities, 256, 275–80 sexual orientation, 247–8, 259–60

Index 303 solidarity, 217 welfare states, 225–7 division of labour, 62, 63–5 see also social differentiation Donnelly, J, 5–6 international human rights, 223–4 natural law, 196 Durkheim, E, 2, 61, 107 cosmopolitanism, 75 cult of the individual, 63–5 differentiation theory, 15, 61–5 fundamental rights, 63–5 individual rights, 64, 75, 149–50 natural rights, 65 relationship between state power and individual autonomy, 65–8 role of the state, 63, 65 solidarity, 216–18 Eastern Europe, 153, 157 compliance with ECHR, 163, 164–5 human rights emergence, 132 violation rates, 162–5 see also Europe economic and social rights see socio-economic rights economic exchange, 183 see also trade economies, 174–5, 183–5 education see right to education Engels, F, 111–12 Enlightenment, the, 41 classical social theory, 111 constitutional rights, 41 origins of concept of human rights, 82 entitlements see health; human rights equality, 11, 179 comparative law, 259–61 education, 207 fundamental rights law, 68–9, 72, 115, 248 legislation, 226–8 same-sex relationships, 250–61 state intervention, 67–8 ethnic diversity, 229 ethnic minorities: discrimination, 226 Scandinavia, 223, 225 social embeddedness, 11 labour market, 225 rights, 198 Europe: constitutions: England, 43 judicial review, 45 legal norms, 46 post-war formation, 45 protecting human rights, 45

recognition of international human rights, 45 written form, 44 human rights regimes: constitutional democracy, 82 European Court of Human Rights, 151 European Convention on Human Rights (ECHR), 17, 97, 151 Article 26, 196 analysis, 149–66 socio-legal developments, 152, 165–6 compliance with ECHR, 153–6 interpretation, 154–5 education, right to, 196 goals, 152 impact on domestic legal systems, 156 Kurdish Human Rights Project, 272–4 limits, 156 violation rates, 157–65 European Court of Human Rights (ECtHR), 13, 152 compliance with ECHR, 153–4 human rights violations, 18, 267–9 same-sex relationships, 261 European Union Charter of Fundamental Rights, 219 Falk, R, 133–4 Fairbanks, C, 136, 139 faith see religion Farmer, P, 233, 235 families, 15, 69–73 Ferrera, M, 216 ‘bounded structuring’ argument, 227–9 state formation, 219 Fine, R, 215, 229 fiscal extraction, 26, 37(n) ‘flexicurity’, 216, 222 foreign policy: United States, 16, 127–45 Foucault, M, 15 post-structuralism, 112 rights as an instrument of domination, 113 Fourier, C, 111 France, 48 freedoms, 10, 13 Canada, 248–51, 252(n) citizenship, 196, 209 fundamental rights and, 68–71, 72, 115 health, 235–7, 240 individualism, 65 police, 286 state intervention, 10 state power, 41, 66–7 see also human rights Friedman, M, 176 fundamental rights, 7, 15

304 Index constitutional rights, 66 differentiation theory, 50–1, 62, 69, 71–4 globalisation of fundamental rights, 74–7 Durkheim, E, 63–5 Luhmann, N, 68–71 social inclusion, 71–4 gender discrimination, 11 global commitment, 1 Global Compact, 183 global human rights see international human rights global institutionalisation, 12, 17–18 globalisation, 2, 14, 18 citizenship and, 13 cross-national integration, 13 cultural globalisation, 192, 209 economic exchange, 183 global constitutionalisation, 77 human rights and, 7, 12, 74–7, 78, 92–3 institutionalised individualism, 8 local practices and, 240–1 markets, 183–4 Teubner, G, 74–7 welfare, 225–6 Goodman, R, 153–4 Grotius, H, 109 Habermas, J, 18, 228 solidarity, 215–8, 228 Hathaway, O, 153–4 violations of ECHR, 164–5 health, 15 AIDS, 234–5 discrimination, 234 housing and, 235–7 inequalities, 235 informed consent, 236 international human rights law: compliance, 240 interpretative communities, 240–3 local culture, 237–40 separation of rights, 234 social determinants of health, 234–5 Universal Declaration of Human Rights, 233 see also right to health historical sociology of states, 25–7 constitutions, 42–6 formation of modern states, 29–30, 31 functional interdependence, 34–8 political abstraction, 31, 39–42 political power, 31–4 political structure, 33–4 social causality, 30–4 Hobbes, T, 109, 182 social development, 111

homosexuality, 18, 247–62 housing: entitlements, 236–7 impact on health, 235–7 poverty, 177 human nature: basis for human rights, 115–16 concept, 16, 111, 114, 123 Hobbes, T, 109–10 natural law, 105(n), 106–8 predetermination, 105–6 value, 117 Whitehead, A N, 116–19 human rights: activism, 65–7, 81–2, 97, 129–3, 137 citizenship, 196–9 constitutional rights, 25–9 Latin America, 285–7 Costa Rica, 292–5 democracy, 82, 90 democracy promotion, 127–31, 139–40, 141–5 differentiation, 81–3 functional differentiation, 62, 82 global functional differentiation, 76–7 fundamental rights, 62, 71–4 globalisation of fundamental rights, 74–7 political differentiation, 29–42, 82–3 social inclusion, 73–4 societal differentiation, 45, 46, 50, 61–3 structural differentiation, 62 domestic law European Union, 13 incorporation of ECHR, 162–3 Eastern Europe, 132 compliance with ECHR, 153–65 epistemological examination, 84–6 European Convention on Human Rights, 17, 97, 151 Article 26, 196 compliance with ECHR, 153–6 impact on domestic legal systems, 156 Kurdish Human Rights Project, 272–4 limits, 156 violation rates, 157–65 evolution of human rights theory, 65–7, 82–3 fundamental rights, 4, 7, 61–3 Durkheim, E, 63–5 globalisation of, 74–7 inclusion, 71–5 Luhmann, N, 68–71 health, 233, 235–7 human rights education, 191, 199–208 see also human rights education ideological divides, 91–3 inclusion see social inclusion

Index 305 individualism, 2, 268, 279 modern society, 7–8, 25–52 Durkheim, E, 63–5 institutionalisation of human rights, 8–11, 40–2 Luhmann, N, 7, 28, 62, 68–71 natural law theory, 64, 67, 196 economic and social rights, 10 ‘rights of man’, 108–10, 114 Turner, B, 105–8 neo-liberal interpretation, 17 progressive realisation, 233–44 religion, 41, 65–7, 68–74 reflexive sociology, 81–100 sexuality, 18, 247–62 social construction, 25 socio-legal perspectives, 292 solidarity, 215–21 state formation, 66, 142, 219 study of human rights see sociology of human rights theories see sociological theories United States: foreign policy, 127–45 violation rates, 156–65 welfare state: Denmark, 223–7 migrant workers, 220, 223 Western Europe, 7 post-war Europe, 83, 97 see also international human rights, non-governmental organisations human rights education, 191, 199–208 Convention on the Elimination of Discrimination against Women, 207 global trends, 202–7 history, 201 implementation, 207 implications for citizenship, 192–6, 199, 208–11 inclusion, 191, 199–200 intergovernmental activity, 202 International Covenant on Political and Civil Rights, 206 mass-schooling, 199–200 non-governmental activity, 203–4 public education campaigns, 199, 205–6 statutory instruments, 204–6 transnational interaction, 200 treaties, 204–5 trends, 202, 202–3, 203, 210 UNESCO, 202, 207 universal participation, 199–200 see also right to education human rights violations, 11 European Convention on Human Rights, 267–8, 279–80

fighting against, 11 legal approach, 11 non-governmental organisations, 267–8, 274–9 sociological approach, 11 legal responses, 267 Euorpean Roma Rights Centre (ERRC), 268, 270–2 Kurdish Human Rights Project (KHRP), 268, 272–4 litigation: European Court of Human Rights, 267–80 NGO research, 268–70 United States, 178 Human Rights Watch, 13, 132–3, 136, 185 identity, 100, 150, 179, 185 cultural identity, 76, 131, 138, 145, 197 nation-states, 194–5, 200, 209–10 inclusion see social inclusion individualism, 115, 121–4 cult of the individual, 63–5 cultural ideals, 65 Denmark, 223 Durkheim, E, 2, 6, 63–5 institutionalisation and, 115 liberal individualism, 2, 123, 267, 279 institutionalisation, 78, 191, 249–50 functional differentiation, 62 global institutionalisation, 12 individualism and, 115 mass-schooling, 199–200 nation-state, 191, 192–6 societal institutionalisation of human rights, 8–11 standards of fundamental rights, 75, 79 integration, 13, 226 Europe, 97 impact on society, 83 Scandinavia, 221–2 social integration, 66, 76 solidarity and, 217–8 International Covenant on Economic, Social and Cultural Rights (ICESCR), 18 Article 2, 233–4 progressive realisation, 238, 239, 243–4 implementation, 239 International League for Human Rights, 133 international human rights: absence of sociological theory, 61 citizenship, 12, 191–6 civil society groups, 12 compliance, 240–1 domestic law, 199, 249 emergence, 3, 5, 12 ethnic minority rights, 198 international law, 12

306 Index post-World War II, 197, 209 Teubner, G, 74–7 welfare states Denmark, 215–29 women’s rights, 3, 198, 207, 209–10 Scandinavia, 225–6 violations, 239 see also human rights interpretation (judicial): Canada, 259–60 interpretative communities, 240–3 Jinks, D, 153–4 juridification of human rights, 93–6 jurists see legal professionals Kant, I, 12, 64, 109 legal humanism, 62 Keck, M, 90–1, 277–8 transnational advocacy networks, 268 Kelsen, H, 130, 133, 138 Keynes, J M, 176, 178 Kirkpatrick, J: neoconservatism, 136–8, 139 labour market: Denmark, 220–3, 228 flexicurity, 216 discrimination, 225–7 inclusion, 67–8 ethnic minorities, 225, 226–7, 228 legislation, 228 solidarity, 217–29 welfare, 215–29 law enforcement see police legal norms, 8, 27–8, 29–30 constitutional rights, 46, 51 European Convention on Human Rights, 157, 166 global legal norms, 127 legislative, 149 solidarity, 217–18 legal positivism, 137–40 legal professionals, 93–6, 130–1, 133 compliance with ECHR, 153, 165–6 democracy promotion, 135–6 human rights violation rates, 162 legal systems, 156 Africa, 11 citizenship rights, 199 Europe, 224 European Convention on Human Rights, 152, 165–6 compliance, 157 impact, 156 United States Scandinavia, 223–4 legislation:

Western Europe, 162 European Convention on Human Rights, 162–3, 166 Denmark, 216–17, 224–5 anti-discrimination, 225–9 legitimation of human rights, 93–6 liberalism, 95, 131–5, 137 Cold War, 132 individualistic liberalism: Whitehead, A N, 122–3 see also neoliberalism Locke, J, 12, 109 epistemological rupture, 182–3 materialism, 111 Luhmann, N, 7, 15 evolution of modern society, 28–9 freedom and equality, 113–5 fundamental rights, 71–2 as a social counterinstitution, 68–71 as a social institution, 68 fundamentalist theory of society, 28 human nature, 110–16 political constitutions, 28 post-structuralism, 84, 112 societal differentiation, 29, 61–2, 68–71 structure of modern society, 7, 113–15 systems theory, 84–6 Mann, J, 234 markets, 174–5 equitable markets, 183–5 Marmot, M, 234–5 marriage: constitutional right, 255 same-sex relationships, 247–62 Australia, 259–61 Canada, 247–50, 251–9 New Zealand, 259–61 UK, 259–61 Marshall, T H, 2, 182, 219(n), 222 Marx, K, 2, 61, 106–7, 111–12, 149–50 definition of society, 173–5 egalitarianism, 181–2 Marxist theory, 71, 86, 112–13, 235 Whitehead, A N, 118, 121 Médecins sans Frontières, 185, 241 medical treatment: consent, 235 right to health, 236 migration, 13 European, 220–1 multiculturalism, 216 nationalism, 219–20 welfare state, 220 minority rights, 277 modern society: differentiation theory, 61–3 Durkheim, E, 63–5

Index 307 emergence of human rights, 7–8, 25–52 institutionalisation of human rights, 8–11, 40–2 institutions, 15, 17–19 Luhmann, N, 7, 28, 62, 68–71 politics and politicality, 27 sociology of constitutions, 25–8 state-formation 34–8 structure, 7, 14–15, 39, 122 Weber, M, 15 Whitehead, A N, 116–24 see also citizenship; human rights; integration; solidarity multiculturalism, 216 nation-state framework, 5, 13 education and citizenship, 190–6 national compliance with ECHR see compliance natural law theory, 64, 67, 196 Denmark, 222–3 economic and social rights, 10 Grotius, H, 109 opposition to, 222–3 ‘rights of man’, 108–10, 114 Turner, B, 105–8 neoconservatism, 136–40 neoliberalism capitalism and, 181–2 ‘Chicago School’, 176 economies, 174–5 evolution, 175–8 inequalities, 182 Keynes, J M, 176 laissez-faire policies, 175 ‘Liberal School’ 175 ‘Manchester School’, 175 markets, 174, 178, 180–2 principles, 175–8 Netherlands, 161–2, 220 New Zealand, 248–50, 253, 260–2 non-fundamental rights, 18 non-governmental organisations, 83, 185, 198 Amnesty International, 13, 185 European Court of Human Rights, 18 litigation, 268 European Roma Rights Centre (ERRC), 19, 268 Role, 270–2 Human Rights Watch, 13, 185 importance, 240–1 Kurdish Human Rights Project (KHRP), 19, 268 networks, 89–91, 272–3 role in struggle for human rights, 18, 268–80 Norway, 161–2, 220, 223–4

Parsons, T: differentiation theory, 62, 78 political systems, 26(n), 27(n) social inclusion, 73–5 police, 15, 18 accountability, 291–2 compliance with human rights standards, 19, 285–6, 294–5 Costa Rica: context, 287–8 human rights in practice, 286–7, 292–5 law enforcement, 288–90 reform, 288–96 human rights: implementation, 292–5 strategies, 286–7, 294, 295 international cooperation, 293 reform in Latin America, 284–5, 296 training, 291–2, 295 political abstraction, 33, 37, 39–42 constitutional history, 42–6 societal depoliticisation, 46–51 post-structuralism, 84, 112 poverty: relationship to social and economic rights, 11 impact on health, 235 United States, 177, 178 progressive realisation: Article 2 of ICESCR, 243–4 health, 233–7 interpretative communities, 240–3 local culture, 237–40 models of compliance, 243, 244 social rights and, 233–4, 238–9 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 240–1 property rights, 9 Red Cross, 241 reflexive sociology, 16 approach to the study of human rights, 83, 89–96 Bourdieu, P, 84–5, 87 individual autonomy, 65–8 legitimation of human rights, 93–6 religion: constitutional rights, 41 fundamental rights, 65–7 religious freedom, 12, 68–74 religious traditions, 6 state and, 31–4 remedies, 11, 164, 271–7 right to education, 8–9 citizenship right, 196, 200 compulsory education, 194 domestic law, 200

308 Index educational reforms, 195–6 mass schooling, 191–6 institutionalisation, 199 nation-states, 193 human rights education, 191 Convention on the Elimination of Discrimination against Women, 207 global trends, 202–7 history, 201 inclusion, 199 International Covenant on Political and Civil Rights, 206 mass-schooling, 199 non-governmental organisations, 203–4 statutory instruments, 204–6 transnational interaction, 200 treaties, 204–5 UNESCO, 207 right to health, 18 health entitlements, 235–7 international law compliance, 234 medical treatment, 236 progressive realisation, 233–7 Rokkan, S, 219 role of the state, 2 protecting the individual, 7, 65–8 social order, 7 Durkheim, E, 63–5 Roosevelt, F D, 176 Ross, A, 222–3 same-sex relationships, 18, 247–62 activism, 257–9 relationship recognition, 250–1 Canada, 251–9 United Kingdom, 261 Scandinavia: collectivism, 222 international human rights, 223 Ross, A, 222 unionisation, 224 welfare states, 221–9 Sikkink, K, 89–91, 277–8 transnational advocacy networks, 268 slavery, 119–22, 173–4 social causality, 30–4 social inclusion, 62–3, citizenship, 73–4, 191, 192–6 differentiation, 73–4 education and, 191, 199–200 ethnic minorities, 225, 226–7, 228 fundamental rights, 71–4 health, 235 societal differentiation: theory of, 61 societal institutionalisation, 8–11

fundamental rights, 8–9 property rights, 9 state formation, 8 Universal Declaration of Human Rights, 8 societal institutions, 5 society: economy and globalisation, 175 markets, 174–5 inequality, 181–2 intergroup conflict, 173–4 interrelations, 178–9 Marx, K, 173 structure: interdependence with social practice, 83 Universal Declaration of Human Rights, 178–9 socio-economic rights, 10, 91–3, 179 democracy and, 135–7 fundamental and non-fundamental rights, 18 universality, 185 sociological theories, 3–5, 14–15 classical liberal theory, 61, 79, 110 contemporary, 3 differentiation, 61–3, 65, 78–9 Durkheim, E, 63–5 functionalist theory, 28–9 global institutionalisation of rights, 12–14, 74–7 inclusion, 71–4 individualism and the state, 63–5 Luhmann, N, 28–9, 68–71 natural law theory, 64, 67, 113, 196 systems theory, 85–6, 115 Turner, B, 105–7 sociology of citizenship, 5, 12–14, 150 sociology of human rights, 2, 280 approaches Bourdieusian, 85 constructivism, 16, 84 epistemological, 84–6 field approach, 86–7 grievance-based, 11 legal, 11 reflexive, 81–100 sociological, 1, 11 differentiation, 62 systems theory, 85–6 development, 1–2 Durkheim, E, 64 emergence of concept, 1, 3–4, 150 non-governmental organisations, 279–80 objective, 82 reflexive sociology, 16, sociology of states and, 42, 52 structural analysis, 83 theories

Index 309 classical liberal theory, 61, 79, 110 Durkheim, E, 63–5 Luhmann, N, 28–9, 68–71 natural law theory, 64, 67, 113, 196 systems theory, 28–9, 85–6, 115 Turner, B, 105–7 sociology of law Bourdieu, P, 130–1 Durkheim, E, 65 sociology of states, 25–6 Luhmann, N, 28–9 role of legal-normative institutions, 26–8 sociology of rights and, 42, 51–2 solidarity, 15 citizenship rights, 217 conventional solidarity, 216, 229 Denmark, 221–2, 223–4 cosmopolitan solidarity, 216, 217–8, 229 Denmark, 223–4 ethnical-cultural integration, 217 Habermas, J, 217–8 multi-cultural societies, 217 socio-political integration, 217–18 Dean, J, 217 development of concept, 216–17 Ferrera, M, 218–19 Habermas, J, 215–18, 228 human rights and, 215–29 integration: ethnical-cultural integration, 217 socio-political integration, 217–18 legal norms, 217 nationalism, 219 welfare state, 18, 219 boundaries, 219–20 sovereignty, 4, 16, 137 United Nations, 196 Soviet Union, 132, 137 standards, 237–8, 242 European Court of Human Rights, 268–9 international human rights standards: domestic application, 248 ‘state-society-rights nexus’, 5 state formation, 1, 4, 33–4, 142 arbitrational control, 35 constitutional rights, 66 democracy promotion, 142 economic integration, 36 emergent states, 31 Enlightenment, the, 41 Ferrera, M, 219–20 formation of modern states, 5, 31, 35 jurisdictional control, 35–6 legitimacy of state, 39–40 modern society, 5 political power, 32–4 Rokkan, S, 219–20 welfare state, 219

state power, 66–8 Stigler, G, 176 Strauss, L, 106 neoconservatism, 136 territorialism/territory, 191 citizenship, 12, 74, 179 de-territorialised rights, 179, 191, 197 differentialisation, 76 globalisation, 74, 215 solidarity, 218–19 cosmopolitan, 217–18, 227–9 Teubner, G, 69–71 globalisation of human rights, 74–7 theories see sociological theories trade, 74, 134, 174–6, 183–5 transnational advocacy networks, 89–91, 268 Turkey, 152, 157, 161–2, 269, 272–4 Turner, B, 105–8 human frailty, 105–8, 117 natural law theory, 105–8 United Kingdom, 178, 193 same-sex relationships, 247–50, 253, 260–2 United Nations, 210 Declaration of Human Rights, 233–4 human rights education, 202–5 international human rights, 196–7, 223 sovereignty, 196 United Nations Human Rights Commission, 135 United States of America: activism, 130–7 civil rights movements, 132–3 foreign policy, 16, 127–45 history of human rights, 132–5 social and economic indicators, 177 violations of human rights, 178 Universal Declaration of Human Rights, 13, 97 health, 233–4 morality, 130–1 neoliberalism, 179, 182–3 sovereignty, 196 universalism of human rights, 92, 131, 179 values, 150–1, 164, 249, 260–1 human rights education, 199 police, 286–7, 289, 292–5 solidarity, 217–9 violation rates, 156–65 Weber, M, 2, 14–15, 61, 82, 106, 149–50 welfare, 15 welfare states see solidarity

310 Index Western Europe: centralisation of power, 7 citizenship, 193 compliance with ECHR, 160–2 domestic legislation, 162 education, 193, 194 emergence of modern society, 7

violation rates, 160–1 see also Europe Whitehead, A N, 108, 116–23 humanitarianism, 118 slavery, 120–1 Wilkinson, R, 234–5 women’s rights, 198, 209–10, 240–1