The status of Islam has long been contested in Malaysia. In June 2002, Mahathir Muhamad, then Prime Minister of Malaysia, provoked both Islamists and secularists by claiming that Malaysia was an Islamic state.Footnote 1 The opposition Islamic party, Parti Islam SeMalaysia (PAS) rejected the declaration and called for the enactment of Islamic law. The Democratic Action Party (DAP), also in opposition, similarly repudiated Mahathir’s claims in the face of what they claimed to be a secular constitutional framework.Footnote 2 The status of human rights is similarly contested. From outside and from within, Malaysia has long been criticised for falling short of its international human rights obligations.Footnote 3 At Malaysia’s Universal Period Review before the Human Rights Council, the response of many Western states was diplomatic but clear. Australia, for example, noted “concerns about the rights of non-Muslims in cases involving Shar'iah law and freedom of religion, particularly for ethnic-Malays,” and encouraged “Malaysia to allow more open discussion on freedom of religion”.Footnote 4 This overlapping political competition is the context of human rights in Malaysia. Rights exist on a political fault-line, where the content of justice is debated by a range of actors. This paper addresses the question of how human rights might be conceptualised in this context.
This is a doubly difficult task, for human rights and human rights law are also situated on an analytical fault-line. On the one hand, legal positivism dominates law faculties through its current “heroic champion”, H.L.A. Hart; asserting the distinctiveness of law and its relative autonomy from the social and political.Footnote 5 On the other hand, human rights’ self-perception extends into metaphysical assertions, recognising “the inherent dignity and [the] equal and inalienable rights of all members of the human family”.Footnote 6 Furthermore, the fault-line has a normative aspect for those either interested in or cautious about human rights. On the one hand, the apparently post-colonial world warns us against imposing our preferences on the Other. In Frantz Fanon’s words, we seek to free the black man from “the man who abominates him”, namely, ourselves.Footnote 7 On the other hand, we desire to hold these truths to be self-evident. In Ratna Kapur’s words, we “cannot not want” human rights.Footnote 8 Human rights law sits in the midst of these theoretical and moral fault-lines, at the nexus of undeniable political competition.
And so to engage with the so-called crisis of human rights means engaging with this thicket of problems at the heart of rights practice, norms, and analysis. Reflecting on the crisis recently, for example, Anthony Langlois pointed to the rights-project’s triumphalist tendency towards “appearance over substance via co-optation… coupled with the absence of a theoretical basis”, its built-in narrative of progress, and its lack of attention to “thick political context”.Footnote 9 Our discussion of the crisis must engage with these sorts of issues. At its broadest, then, this essay is about what this plural and conflicted situation means for the theorisation and discussion of rights. Central to this paper is my contention that although the political character of rights is widely acknowledged, the conceptualisation and analysis of those rights has not been adjusted accordingly.
In the first part, I focus on liberalism and legal positivism’s role in the theorisation of human rights. I rehearse some established criticisms of these approaches to human rights. In summary, liberalism and legal positivism often affect an untenable abstraction and homogenisation of a plural reality. Out of what should be a somewhat familiar discussion of liberalism and legal positivism’s relevance to human rights, I seek to draw one point in particular: that their respective abstraction and homogenisation leads to a fateful forgetting of the political character of human rights. It is inter alia for this reason that so much human rights talk has the appearance of pseudo-religious assertion,Footnote 10 or alternatively, of perennial pleas for human rights’ adoption in the face of manifold breaches. The error – indeed, the long perpetuated error of legal positivism in practice – is to see the law as autonomous. Instances of such forgetting, with attendant analytical and practical consequences, will be seen in my case study on Malaysia. Therein, scholarly discussion of a prominent Malaysian case of the freedom of religion takes place as if politics did not exist.
I suggest that a misunderstanding or misdiagnosis of the crisis of human rights is the analytical consequence of this forgetting. My contention is that the crisis of human rights does not spring from an insufficiency of the breadth of human rights law, or the weakness of enforcement regimes, or even the intransigence of rights-resistant dictatorships, although these may be its symptoms. Rather, the crisis is a function of the political character of rights, a character that liberalism and legal positivism have so often forgotten. Therefore, the diagnosis of crisis by many human rights observers, wherein manifold challenges to the rights project are perceived as aberrations that might be transcended,Footnote 11 stems from a misapprehension of the character and context of rights. To state that human rights are political objects, and that they operate within a political world, appears a truism. But this observation ought to affect the analysis of rights. Thus in the second part of this paper I develop a core analytical proposition: that political unity and competition must be at the centre of human rights analysis. Politics should not be delayed, avoided, or forgotten. It follows from this that the crisis of human rights is intrinsic to the character of human rights and the plural context in which they exist. Plurality, in short, means that rights will always be objects potentially engendering crisis. Crisis is to be expected, in the sense that human rights are necessarily contested. Or to put this point in other terms, human rights and surrounding discourses do not stand outside of a dialogue amongst and between alternative traditions.Footnote 12 Rights analysis will be stilted when it fails to account for this context.
At a few places in this paper I pause to illustrate my argument with a case study on the freedom of religion in Malaysia. Malaysia, as I will show, features a heady mix of competing traditions. And the key point for this paper is that these tensions should be expected and confronted in rights analysis, rather than deferred or forgotten. I survey the discussion surrounding the freedom of religion in the prominent Malaysian case of Lina Joy lwn v. Majlis Agama Islam Wilayah Persekutuan dan lain-lain (Lina Joy).Footnote 13 What I offer is neither an analysis of the constitutional or administrative principles raised in that case, nor an auditing in light of international law. Rather, I use the judgement and the many reactions to it to explore the limits of liberal and legal positivist approaches to human rights. For many commentators it has become a doctrine of progressive faith that “[the] language of human rights is now the lingua franca of the international order”.Footnote 14 But Malaysian society and law are not monolingual. Far from being the dominant language or tradition, my analysis of Lina Joy suggests that orthodox human rights are overwhelmed in Malaysia by alternative public voices – the most prominent of these being an intriguing alliance between a particular Islam and legal positivism itself. Politics, my case study shows, is frequently forgotten by human rights scholarship in two senses; firstly, as if liberalism had not thoroughly infiltrated law in the West, and secondly, as if opposing discourses could not, in turn, infiltrate the law.
What is needed then, is an analytical approach which attempts to orient human rights through a more thoroughgoing understanding of political community and political contestation. A more effective theory of rights would not forget but rather integrate unity and conflict into its very structure. For this purpose I begin part two by placing human rights beneath the unfamiliar lenses of legal pluralism, an analytical perspective that has emerged to counter some of the problems attendant with legal positivist abstraction. I then introduce Augustine’s definition of a people, and Carl Schmitt’s insistence that law enlivens political competition, into dialogue with legal pluralism. These perspectives offer some tentative guidance as to how an analysis of human rights might begin from a dynamic analytical perspective of political unity and political contestation.
I. LIBERALISM, LEGAL POSITIVISM AND THE HUMAN RIGHTS PROJECT
A. Plurality in Modernity
I begin by discussing the crisis of human rights in relation to liberalism and legal positivism, two broad intellectual approaches that inform human rights talk and practice. This survey is intended to highlight a discrepancy: that accounts of human rights law are stubbornly narrated through liberal and legal positivist frameworks in the face of increasing reminders of the moral and political character of human rights. This is a reminder that the crisis of human rights emanates from deep within the Western intellectual landscape itself, as its neutral pretensions strike themselves against manifold contrasting ideas of justice.Footnote 15 Rights scholarship, as I will show, remains confounded by the political reality of plurality.
The crisis of human rights does not stand alone. It was the crisis of modernity that subjected natural rights, human rights, and other moral codes to challenge by the broad critique of non-neutrality. As described by Leo Strauss, modernity was assailed by the realisation that “all choices are... ultimately nonrational or irrational”.Footnote 16 More than a century before Strauss, Friedrich Nietzsche had heralded this situation the death of God. Although the Enlightenment’s citizens had not yet realised the implications of their deity’s death, the consequences were already patent: “Modern man has been trying to preserve biblical morality while abandoning biblical faith. That is impossible. If the biblical faith goes, biblical morality must go too, and a radically different morality must be accepted”.Footnote 17 All claims to neutrality, by liberalism, positivism, or any other demi-god, were rendered hollow by the death of God.
The crisis was also diagnosed from a different philosophical standpoint, as discussed by Alasdair MacIntyre in his After Virtue, where he lamented the loss of coherent moral discussion.Footnote 18 While we all continue to communicate with a language of morality, MacIntyre observes, modern debate lacks “any ultimate criteria”.Footnote 19 The modern self “is thought of as criterionless, because the kind of telos in terms of which it once judged and acted is no longer thought to be credible”.Footnote 20 Epistemologically and morally, these remain frightening issues for the cosmopolitan West; calling attention to the disparate character of the modern academy, and alluding to an Übermensch veiled beneath our superficial moral dispositions. What can the role of human rights law be in this apparent world of legal arbitrariness and moral uncertainty? Although such broad challenges raised by the crisis of modernity have been recognised and discussed in the work of Langlois and Douzinas and others, they remain frequently ignored within law faculties beyond optional electives in feminist or critical legal theory. Earnest discussion of rights vis-à-vis this crisis is rare in legal and human rights scholarship. As Langlois has argued, human rights emerged out of the “philosophical and historical milieu” of liberal modernity.Footnote 21 It follows that the crisis of human rights is inseparable from the broader set of philosophical problems described by the crisis of modernity.
The new liberalism epitomised by John Rawls is one attempt to defend modernity’s legacy and to sustain human rights. New liberal responses concede that they no longer claim strict neutrality, as they “cannot avoid reference to a substantive theory of the good”.Footnote 22 Rather, they defend their position on the basis ‘that theirs is a minimal theory’.Footnote 23 Rawls, paradigmatically, is clear in his demand for citizens to abstract-out their political actions; to “affirm reasonable doctrines” based on “public reasons given in terms of political conceptions of justice”.Footnote 24 He relies on the abstraction of the public sphere, where citizens reach consensus based on their minimal deference to what is “reasonable”. Jürgen Habermas’s model illustrates the position of human rights within this broad liberal tradition. For Habermas, securing a just world is to be achieved through a juridification of rights.Footnote 25 He argues that rights have a “double character” of positivist norms and of transcendent rights. His solution is to concentrate on the juridical nature of rights – his cosmopolitan legal future is one in which consensus is achieved through the submission of the moral to the juridical.Footnote 26 Notwithstanding their individual nuances, liberal approaches converge in this conception of a separate, and secular, public realm, and its law. As MacIntyre suggests, however, this is not to say that liberalism avoids moral conflict. Rather, “the mark of a liberal order is to refer its conflicts for their resolution, not to those debates, but to the verdicts of its legal system. The lawyers, not the philosophers, are the clergy of liberalism”.Footnote 27 Ideas drawn from religious inspiration, in order to be deployed publicly, must be subservient to the first principles of liberalism – the primacy of the individual, the rationalist function of citizens, and particularly relevant for our purposes – a common set of formal legal questions which define the new paradigm for justice.
The endgame of liberalism, in its Rawlsian form at least,Footnote 28 is to reach formal consensus in the public arena by banishing religious dissent to the private sphere. In Chantal Mouffe’s words, the liberal ambition “is to formulate a definitive list of rights, principles and institutional arrangements that are unassailable and will create the basis of a consensus that is both moral and neutral”.Footnote 29 But as such, the liberal account necessarily excludes other accounts. In Rawls’ ideal public sphere, for example, religious accounts may not be deployed as self-contained arguments.Footnote 30 Rawls’ response is to summarily dismiss this problem regarding which “nothing more need be said”.Footnote 31 There are, of course, more sensitive accounts within the broad liberal tradition which attempt to manage plurality more empathetically. Habermas, for example, has recognised that religious plurality represents a stubborn problem, a clash of comprehensive doctrines that cannot merely be dismissed. His consensus is therefore more dynamic than Rawls’, recognising that “theological propositions can only be countered by theological arguments, and historical or epistemological propositions by historical and epistemological arguments”.Footnote 32 There are now significant examples of scholars presenting suggestions for peace and reconciliation based on highly sophisticated overlapping consensuses.Footnote 33 These accounts recognise that a plurality of real beliefs entail real world arguments, dialogue, and consensus that stretch traditional liberal terms. For Abdullahi An-Na’im and Charles Taylor, the “apparent paradox” of divergence between the human rights canon and its cultural competitors will ultimately merge in an “organic link” of mutual social consciousness and rational agreement.Footnote 34 Pursuant to this, Taylor identities various non-Western religious traditions which support a potential “overlapping consensus”.Footnote 35 An-Na’im, similarly, makes a forceful intellectual case for rights from a particular Muslim perspective.Footnote 36
Can these more practical suggestions adequately deal with the analytical and political dilemmas presented by many different normative positions? Of course this practical sensitivity may very well lead to more empirical success for the rights agenda. But the so-called Asian values debate illustrates a continuing challenge. The above arguments may be more sensitive, but they do not deal with the analytical problem. The Bangkok Declaration of 1993 is a classic example of East and Southeast Asian states prevaricating over rights. The signatory states recognised that:
[while] human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.Footnote 37
The Declaration’s reaffirmation of “national sovereignty … and non-interference in the internal affairs of States”Footnote 38 is the target of a sustained critique. The Declaration’s critics see it as a rhetorical façade for authoritarian behaviour.Footnote 39 Langlois describes the Asian values argument as a neo-conservative trope, as “noble lies” peddled by leaders for the “ideological manipulation of populations”.Footnote 40 Yet he also convincingly shows that the trope does not undermine a real critique presented by actual Asian(s’) values. Footnote 41 Asian(s’) values, for Langlois, are “values which are held by Asians and which, for various contingent reasons, are different from those held by some Westerners and, ipso facto, similar to those held by others”.Footnote 42 Thus rights analysis must account for opposition to rights, even where that opposition seeks to deploy religious reasoning. In other words, human rights and liberal notions of justice are challenged in fact by different values. The requirement that citizens merely ‘abstract away their religious beliefs’ entails a practical naiveté.Footnote 43 Yet even more nuanced accounts, such as An-Na’im’s rights-consistent Islam, remain marginal. So-called international ‘consensus’ has little practical meaning so long as any purported beneficiaries resist it.
Moreover, as Daniel Philpott has pointed out, there remains in An-Na’im’s account a continued avoidance of substantive justification of rights, and an enduring resemblance to the abstract models of Western liberal theorists.Footnote 44 Notwithstanding counter-examples, the result is a human rights system largely defended from a pragmatic standpoint, but opposed by actors explicitly moved by practical arguments and explicit value commitments. Rights fundamentally understood in abstract terms confront particular culturally embedded alternatives, which do not confine themselves to abstract reasoning. I suggest that, inter alia, it is in encountering this formal and substantive disjunction that a crisis of human rights has been increasingly felt by rights activists and scholars. But contestation between valued-laden positions is inevitable: it is only in forgetting this that the human rights project perceives an existential problem or a ‘crisis’ so defined. Thus the point of this discussion of liberalism has been to highlight something that should not be forgotten, that dealing with contestation via abstraction does not avoid that contestation, it only makes the conflict surprising when it does arrive.Footnote 45
B. The Myth of Legal Autonomy
Human rights are increasingly enshrined in international treaties and customary international law. In the face of epistemological and practical challenges, this success appears paradoxical. In attempting to avoid such pitfalls, another response to the crisis of modernity has been to engage in a politics of human rights practice. Key texts devote minimal space to the philosophy and critiques of rights, and concentrate on black-letter rules and implementation.Footnote 46 And it is this positivist practice of lawyers and academics that points to an alternative grounding for rights. For the rights project’s frankly impressive inertia is not paradoxical if, with Richard Rorty, we hold that the political project of liberalism and human rights is severable from its epistemological underpinning.Footnote 47 This move allows for the defence of the political project of liberalism and human rights, apparently free from the disintegrating dogmatics of modernity.Footnote 48 This severance also explains the commonly pragmatic and institution-focussed character of human rights activism. Unsure of its foundations, but relatively sure of its pragmatics, it practices a sort of stoicism in the face of normative competition and widespread rights violations. So the Rortian approach purports to defer moral questions in favour of the practical and the legal. And its needs are well served by the legal positivist paradigm, which projects and engages with law as autonomous. Jack Donnelly’s approach is illustrative, wherein he personally asserts rights’ truth via liberal principles, but then pleads in the alternative by defending rights’ validity through source-and-norm positivism.Footnote 49 I will return to some practical examples of rights-as-positivist objects in my case study.
This recourse to legal positivism is surprising, given that the latter has been increasingly subject to critique at just the moment that human rights have been seeking positivism’s support. Human rights discourses and the legal fraternity have been gathering around an abstract understanding of rights at the same time that critical theory has been drawing attention to the myth of law’s abstract rationality. There is, critical theorists have said, no law abstractable from its actors, purposes, or results.Footnote 50 Costas Douzinas, in this tradition, argues that questions not commonly asked in rights scholarship include: “how and why did this new international norm emerge? What forces brought it about and what are the stakes behind its adoption?”Footnote 51 His sceptical perspective is that rights are the disciplining terrain for continued “domination and subjugation”.Footnote 52 Another way of flagging this critique is provided by postcolonial theory, which traces the relationship between academic disciplines and dominance. Edward Said prototypically shows how academic work functions to construct itself as neutral; that “the specialist argument can work quite effectively to block the larger and... more intellectually serious perspective”.Footnote 53 There is then, no moral or political safety to be found in legal positivism, as many scholars have recognised. We could look to Makau wa Mutua’s seminal critique of human rights ideology.Footnote 54 Sally Merry Engle illustrated how the individualistic suppositions of rights infiltrated Hawaiian culture, the “loser” in this case being a traditional sense of social solidarity.Footnote 55 Stanley Hauerwas provided a more foundational argument that the “practices” of society (marriage, or the erstwhile virtue of patience, for example…) are undermined by the liberal conception of rights endorsed in practice by law.Footnote 56 Thus while legal positivists seek to separate the legal and the political, and thus to carve out for law its own “scientific” realm,Footnote 57 the critical perspective maintains that the positivist question of what law is should not obscure the question of what law does. Thus legal positivism begins to look like a combatant in a proxy war. Indeed, the success of liberalism in the West might perhaps be characterised as an agreement to prosecute this proxy war in the place of risky substantive disagreement.
My point here is not merely about the substance of the law, but also that the pragmatist and positivist form of the rights project is political. In his aforementioned work, Mutua criticised human rights’ tendency towards “abstraction and apoliticization”, which serve thereby to “obscure” their political character.Footnote 58 From another perspective, Carl Schmitt’s work has yet to be properly felt by human rights scholarship. For Schmitt, the law is definitively a function of political action by concrete political communities. He therefore argues that “it is necessary to pay attention to the political meaning of such utilizations of law and morality, and above all the word rule or sovereignty of law”.Footnote 59 In both substance and form then, positive law is actively political. Within the discipline of human rights law there is little analytical reflection upon this complex of ‘the law’ and ‘the political’, as for instance, Gerry Simpson has undertaken in the field of international criminal law.Footnote 60 My point here is that international human rights law is a way of doing politics; it is a normative political method amongst others. Placed within a broader understanding of political action and political community, the supposed ‘practical reason’ of law is exposed as an ‘artifice’.Footnote 61 Yet in prosecuting this proxy war, liberalism and legal positivism appear to have forgotten that it was only ever just that: a proxy. It is in their encounter with communities that have yet to sign on to this story of dispute-by-proxy that an unexpected crisis emerges.Footnote 62
C. Text, Religion, and Rights
My case study is the now notorious Malaysian case of Lina Joy. In this case, the positivistic text is shown to be a very wayward disciple of both rights and liberalism. The case therefore highlights the need for an alternative conceptualisation of rights. Lina Joy was born into a Muslim family as Azalina binti Jailani in 1964, and claimed to have been a believing Christian since 1990. An official change of religion on her national identity card was necessary for her to marry a Christian. The Malaysian National Registration Department (NRD) refused her formal requests, which were supported by statutory declarations and a baptismal certificate. The Director-General of the NRD explained that their records showed that “the Applicant is a Muslim and the Applicant had not forwarded any documentation from the Syariah Court nor any Islamic Authority concerned to prove her statement that she had renounced her Islamic faith”.Footnote 63 Before the Malaysian courts, Lina Joy argued that the refusal to grant her request contravened her Article 11 constitutional right to “profess” and “practice” her religion. In the lower courts and at appeal before the Federal Court of Malaysia, majority judgments held that Article 11 did not provide a substantive right to convert out of Islam, and that the NRD had not acted outside of its jurisdiction. The courts cited Articles 3(1) and 121(1A) of the Federal Constitution to support a more expansive role for Islamic law vis-a-vis individual freedoms.
The dominant language in Lina Joy is that of statutory and constitutional interpretation with a focus on the written text. Both the majority and dissenting judgements used reasoning familiar to the common law. In his dissenting judgment in the Federal Court, Malanjum J found that the NRD acted outside its authority in refusing Lina Joy’s application. He reached this conclusion by recourse to classic principles of constitutional supremacy and the rule of law.Footnote 64 Harding argues that Malanjum J’s dissent displayed a “rights protective consciousness”.Footnote 65 Yet a close look at Malanjum J’s judgement shows that the rare references to ‘rights’ were contained to interpretive issues, consistent with the common law’s narrow adoption of rights in administrative law and statutory interpretation.Footnote 66 Rights language was subordinate to a positivist constitutional law. Malanjum J reasoned in clearly positivist terms: “apostasy involves complex questions of constitutional importance especially when some States in Malaysia have enacted legislation to criminalize it which in turn raises the question involving federal-state division of legislative powers”.Footnote 67 Fairuz CJ’s lead judgement was similarly grounded in textual legality.Footnote 68 He held that the NRD’s deferral to “an authoritative body regarding Islamic law matters” was not ultra vires.Footnote 69 Rather than emphasising a unitary vision of constitutional supremacy and court oversight per se, however, Fairuz CJ deferred to the parallel jurisdiction of the Shariah Courts grounded in Articles 3 and 121 of the Constitution.Footnote 70 This differing emphasis, though similarly anchored in textual interpretation, is the result of the more expansive role that he allowed for Islam. The more familiar but equally non-neutral logic of common law rights informed Malanjum J. Yet both judges’ unambiguous fidelity to the text displays its primary legitimising power.
Even critiques of Lina Joy are positivist in form. Responses to the judgement sought out the legitimising support of text-based authority. Li-Ann Thio, for example, argued that the courts erred by their recourse to Islam, stating that “while these are important religious and political matters of great sensitivity, they do not necessarily bear on the legal question at stake”.Footnote 71 At this point then, Thio confined the legal issues to the text. Shamrahayu also employed a text-focussed approach, but applauded the court’s conclusions:
The claim to have absolute right to change religion would be contrary to the States’ constitutional power... The creation of apostasy as an offence is not restriction to freedom of religion per se, but it is an exercise of the states’ constitutional legislative power.Footnote 72
Shamrahayu anchored validity in the source-based logic of positivism. Thus the question of apostasy in Malaysia is redacted into a narrow hermeneutic question, an approach resonant with common law courts and human rights.Footnote 73 This positivist approach mandates certain strategies regarding the text, for example, recourse to the history of the relevant articles’ interpretation.Footnote 74 There are clear constitutional issues in this tradition: the longstanding jurisdictional ambiguity between the Shariah and Civil Courts surrounding Article 121(1A), the federal division of powers (Malaysian States retain jurisdiction over Islamic personal and criminal laws),Footnote 75 and the statutory regime of discrimination in favour of bumiputeras (the class of Malays who are thus ipso facto Muslim).Footnote 76
Thus the text has controlled discussion. Yet Lina Joy is also a function of normative competition wherein a particular version of Islam has influenced discussion of the freedom of religion, and even the text itself. There may be “many Islams” and “many Shariahs”,Footnote 77 but a particular dominant strain of Islam operates as a Grundnorm informing the official law. The complications of religious freedom permeate Malaysian society.Footnote 78 Both the dominant UMNO party, and the opposition PAS, draw upon Islam for their own political agendas.Footnote 79 The popular resurgence of Islam since the late 1970s has also led to constitutional amendments culminating in judgements like those in Lina Joy. Fairuz CJ, for example, saw the internal logic of Islam as necessitating a particular legal outcome. Emphasising what is now the cliché that Islam is a “complete way of life”, it followed for Fairuz CJ that “if a Muslim intends to renounce from Islam, he is actually exercising his rights in the syariah law context which has its own jurisprudence relating to apostasy”.Footnote 80 Other commentators relate Lina Joy to an emerging constitutional norm. They identify a more expansive interpretation of Article 3 of the Constitution, and a larger role for Islam in judicial reasoning generally.Footnote 81 As such, the minimalist interpretation of the Article 11 freedom and the maximalist interpretation of Articles 3 and 121 are explicable in light of a broad substantive underpinning based on a particular account of Islam. Religious freedom is demarcated by a mutually validating accord; between the formal legitimacy of the text, and the substantive backing of religion. Something which ought to give some pause to rights activism’s reliance on the positivist paradigm, then, is the apparent ease with which a particular Islam and the positivist law entered into this holy alliance. But this situation also reveals the need for an analytical approach to law that can tolerate, or even integrate, this sort of pollination of positive ‘law’ by other ‘norms’. As I will suggest in the next section, the legal pluralist approach purports to do just that.
Compared to Islam’s role described above, the language of international rights is a relatively weak protaganist. In bare positivist terms the Malaysian Constitution implicitly refers to the Universal Declaration of Human Rights (UDHR),Footnote 82 and much of the commentary on Lina Joy is influenced by this perspective. Thio posits the classical liberal formulation that “the right to free religious conscience is part of the forum internum, which is the inner world of the believer into which the state may not intrude”.Footnote 83 As such, she argues that the courts’ treatment of Article 11 “renders the substance of religious freedom illusory and ineffective” and ignores the overriding international principal as represented in Article 18 of the UDHR. Shamrahayu’s response is analogous to the Asian values’ argument. She contends that the freedom “must be seen from the context of [a] multicultural and multi-religious community, in which, respect must be given to each other’s cultural rights and religious belief”.Footnote 84 Shuaib similarly argues that it “is unacceptable for the law to regard a Muslim to be a non-Muslim simply by personal declaration because the faith of that person relates to [the] status of everyone near him and how the law interacts with him”.Footnote 85 Individual rights are thus arrayed against the ‘rights’ of the group. A liberal worldview competes with a particular version of Islam over the legitimising tool that is the legal text. Legal pluralism offers a way to conceptualise this textual normative interplay. But as I will show, it does not necessarily allow for an adequate understanding of the political character of this interplay.
At this point, the relevance of my argument might be questioned, for surely everyone is aware of rights’ normativity. Of course, it might be said, Islam will influence legal interpretation in some contexts, just as rights will influence the law in others. However, if indeed rights are morally load-bearing, then why does human rights law wear the garb of positive law? Why perpetuate the myth of an eternal legal return? Abstraction, as I have argued, does not eradicate a normative reality. For Stanley Hauerwas and Boaventura de Sousa Santos, the answer to these questions return us to the crisis of modernity. Hauerwas suggests that as morality retreated, law emerged as a moral rear-guard. Liberalism has chased forthright moral debate out of public life, and so “the law has become … our morality …. [The law] is morally a kind of cultural lag forbidding and encouraging forms of life those subject to the law find otherwise incomprehensible”.Footnote 86 Legal process and reform is now a proxy for moral debate. De Sousa Santos argues that modernity’s emancipatory aspirations were hijacked by the hegemony of regulation. The emancipatory impulse (freedom and justice, for example) surrendered to the narrowing logics of regulation: institutions, efficiency, singularity, and ostensible depoliticisation.Footnote 87 Legal process became a synonym for justice. Such is the power of positivism, that we mistake a proxy war for the real war, and legal process for justice. Therefore, the challenge for human rights scholarship, as I see it, is to reflectively engage with this analytical culture war. This would mean an increased normative self-awareness. I also submit that it would mean coming to terms, in Oliver O’Donovan’s words, with “the mystery of political community”.Footnote 88 The analytics of human rights require renovation, lest the continued fact of political contestation continue to surprise us as crisis.
II. LEGAL PLURALISM AND POLITICAL COMMUNITY
In this part I consider legal pluralism’s contribution to the analysis of law in the context of plurality and contestation. As an approach to law it offers some hints for how an analysis might avoid obscuring plurality as we saw above, but might instead integrate plurality into its very terms. I argue, firstly, that legal pluralism’s semi-autonomous social field is a useful frame for the analysis of human rights in plurality. Secondly, however, I show that many legal pluralists are not immune from a criticism analogous to that levelled at legal positivism: that ostensibly analytical discussions of plural law often mask subterranean normative agendas. To be clear, I am not opposed to normative argument. On the contrary, this normative reality is further to my argument that political unity and contestation ought to be at the centre of rights analysis. And so thirdly, I suggest that Augustine’s definition of a “people” is a useful concept for viewing human rights in political context. Via his definition of a people as “a gathered multitude of rational beings united by agreeing to share the things they love”,Footnote 89 Augustine allows us to talk about rights without deferring or forgetting political communities or political contestation.
A. Conceptualising Law in a Plural Context
Legal pluralist scholarship began in the colonial context, attempting to analyse “the relations between the colonized and the colonizer”, and soon extended towards plural orders in industrial societies.Footnote 90 Scholars in these fields made two related observations: first, that plurality is empirically irreducible in all legal/social contexts, and second, that traditional state-based definitions of law do not adequately conceptualise this plural situation. As put by one of legal pluralism’s original representatives, John Griffiths, legal pluralism attempted to dispel the myth that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.Footnote 91 It was therefore an analytical response to the empirical experience of plurality. Across vigorous debate within the discipline over law as an analytical category, legal pluralists were united in attempting to free law from its state-centric presumptions.Footnote 92 Sally Falk Moore describes the analytical interest of legal pluralism: its “necessary and basic preliminary step is to approach the problem of analysis and comparison with a framework that is neutral to the question of how many regulatory fields there may be, and what their relations are”.Footnote 93 Even at this stage, human rights scholarship’s (lack of) analytical association with legal pluralism is suggestive: for the idea of human rights as trumps is frequently reducible to the assertion of a singular regulatory field.
Sally Falk Moore developed the influential concept of the semi-autonomous social field as her object of analysis. As she framed it, the semi-autonomous social field:
[can] generate rules and customs and symbols internally, but... is also vulnerable to… other forces emanating from the larger world by which it is surrounded. [It] has rule-making capacities, and the means to induce or coerce compliance; but it is simultaneously set in a larger social matrix which can, and does, affect and invade it, sometimes at the invitation of persons inside it, sometimes at its own instance.Footnote 94
Moore’s picture of law as a permeable culture, focussing on law’s creation and adaption by strategic actors, has been highly productive in legal pluralist scholarship. Thus Merry suggests that the semi-autonomous social field is “a way of talking about the multiplicity of coexisting legal systems and their interconnections”.Footnote 95 In a similar vein, John Bowen helpfully describes legal pluralism as “a continually shifting and contested set of domains”.Footnote 96 Tamanaha is more specific, suggesting a “dual focus”.Footnote 97 Firstly, he calls for observation of the systems themselves in their interaction with one another, raising questions of state enforcement, customary law, moral authority, etc. Secondly, he suggests a focus on strategic actors within social arenas. He also maintains that such normative groupings are not static, but asserts “the hybridity and fluidity of groups and individuals”.Footnote 98 Given international law’s rigid doctrinal frames – of states as law’s ‘subjects’ with official law-making status, and occasionally, of individuals as the law’s juridical ‘objects’ – these should be destabilising analytical suggestions. Indeed, the semi-autonomous social field is precisely useful in so far as it de-mystifies law’s stable categories, decision-makers, and fora. Rather than as a fixed positivist object, distinct from social life and politics, the semi-autonomous social field reattaches law to these ideas.
To my knowledge there is very little discussion of human rights law from a legal pluralist perspective, despite these evident issues.Footnote 99 Moore’s category of the semi-autonomous social field challenges simplistic notions of the law, with two direct implications for my thesis. First, with regard to the case study of Malaysia, law should not be conceptually equated with the State and its static institutions. Second, with regard to human rights law, it should not be interpretively contained to textual products like Constitutions, the UDHR and the Covenants; or even the soft-law of the United Nations Charter bodies. Thus Lina Joy would be seen as not just as a function of a court’s correct or erroneous interpretation of a particular law, but of complex and fluid legal arrangements featuring secular and religious courts, as well as international, constitutional and Shariah textual products.
B. The Excesses of Legal Pluralism
Legal pluralism, however, is not merely an analytical strategy. For some pluralist protagonists, legal pluralism is a moral and normative project. An explicit tenet of these more recent advocates has been forthright rejection of the modernist paradigm. Melissaris, for example, describes his approach as an opening-up of law from the closed concepts of modernism:
unlike modern knowledge, which claims exclusivity, post-modern knowledge is knowledge of the self and the community. It does not offer tools for explaining the world and to which the world must fit; it is an ongoing process of understanding and revising our explanatory tools.Footnote 100
It is in this sense that Merry confesses legal pluralism to be a post-modern approach, despite Margaret Davies’ rejection of this label.Footnote 101 Such a post-modern approach typically entails a critique of modernist thought and practice, namely the “violence” and hegemonic practice of statist law.Footnote 102 It “replaces the aesthetics of control, closure and order with an aesthetic of disorder, chaos and undetermined change”.Footnote 103 Davies evinces a normative impulse, indeed a sort of Nietzschean glee, at the prospect of this “chaos”. Indeed, she is quite explicit about the normative component of her argument, arguing that “for political and social reasons – pluralism is normatively preferable to monism”.Footnote 104 Melissaris is therefore misleading to claim that his legal pluralism is analytically neutral. On the contrary, in some legal pluralist accounts there are two distinct political agendas.
Firstly, some legal pluralists are committed to plurality as a substantive good. Melissaris, for example, argues that legal pluralism “must itself be pluralistic, that it cannot be contained in the form of a one-dimensional legal theory”.Footnote 105 This is a linguistic turn but it has substantive weight, entailing a rejection of “singularity” and an embrace of “heterogeneity”, “fluidity”, and “the Many”.Footnote 106 This version of legal pluralism does more than entail a recognition of plurality, plurality is itself valued, resolving into a substantive theory of the good. It entails a comprehensive theoretical embrace of its cognitive component, ‘pluralism’. In contrast to the liberal response to ‘the problem’ of plurality described above, this approach parallels the theoretical position of Joseph Raz, who argues that plurality itself is “to be celebrated and valued because it is the condition for personal autonomy”.Footnote 107 In comparison with Rawlsian liberalism, Raz’s response to plurality is to comprehensively embrace the plural. But parallel to Rawls, this response integrates a substantive theory of the good, wherein plurality itself is the moral criterion. The consequence of this normative polytheism is that monotheism is analytically incomprehensible. As Young puts it, the privileging of (post-modern) political identities renders the scholar unable to comprehend less-palatable identities.Footnote 108 Systematically, then, these approaches de-privilege traditions that might claim more total allegiances, an untenable outcome if we are seeking to understand the Malaysian situation.
Secondly, some pluralist scholars are dogmatically committed to the idea of post-modern subjectivity. The post-modern approach to irreducible plurality is outward openness: “[f]aced with such an Other, we can try to assimilate it and make it fit within the unity (the attitude of singularity) or recognise its difference in its own right (the attitude of pluralism)”.Footnote 109 Yet legal pluralism’s recognition of difference extends only so far. De Sousa Santos and Melissaris deploy three metaphors to describe the pluralist legal agent. This post-modern individual (read: academic) should be characterised by: the frontier, which “enables us to perceive the centre as oppression rather than emancipatory regulation”; the baroque, which “means that order is always suspended [and] is always suspicious of totalities”; the south, the colonised different, which betrays a commitment to the recovery-of and listening-to ‘the voice’ of the South.Footnote 110 In short, this quintessentially post-modern attitude “enshrines an attitude which celebrates multiplicity and difference in the law”.Footnote 111 It is incumbent upon the thoughtful individual to recognise the conceptual hegemony of plurality, to adopt this attitude. The legal pluralist projects him or herself as ideal upon the legal protagonist. Pluralism creates its own ideal post-modern subject and telos; the post-modern legal protagonist striving towards the ever-receding horizon of perpetual change.Footnote 112 Assertions of political unity which transgress this baroque vulnerability are anathema. Whereas liberalism demanded detached rationality; post-modern legal pluralism ironically demands a pluralised subject transcending all fixities. It is this sort of post-cosmopolitan indeterminacy that Douzinas endorses in his critique of rights. But as Langlois rightly concludes, such approaches are “of even less help and no solace, whatsoever, to those facing injustice”. Human rights, he continues, at least offer “concrete mechanisms (however flawed and improvable)”.Footnote 113
My point, to be clear, is not to condemn valued postulation. Rather, as in the last part, I have hoped to show that legal pluralism frequently involves normative postulation. But it is the hidden role that normativity often plays in legal pluralism that I take issue with. De Sousa Santos candidly notes that legal pluralism betrays “definite normative connotations”. He does not hesitate to advocate plurality as a good, but he insists that plurality is not “inherently good, progressive or emancipatory”.Footnote 114 He is reflexive enough to admit that plurality is not a self-evident category of moral good. Thus De Sousa Santos resists what Slavoj Žižek calls “secret solidarity”, the attitude which refuses to acknowledge a bond between analytical and political agendas.Footnote 115 Secret solidarity amounts to an attempted banishment of moral or political contestation beneath rational analysis or post-modern subjectivity. My argument is that analysis of rights must not forget or banish contestation, but rather must account for it. The challenge, then, is to heed Mouffe’s warning: “to negate the political does not make it disappear, it only leads to bewilderment in the fact of its manifestations and impotence in dealing with them”.Footnote 116
C. The Political
How then might legal pluralism be disciplined to account for both political unity and plurality? How might rights be discussed without simply obscuring their contested content? My suggestion, in short, is that legal pluralism might be coordinated with an adequate account of political community. This serves to place rights in their political context. Influenced by the work of Oliver O’Donovan, I suggest that Augustine’s definition of a people – “an assemblage of reasonable beings bound together by common agreement as to the objects of their love” – provides some helpful clues to how this might be achieved.Footnote 117 O’Donovan’s discussion of this definition and Carl Schmitt’s concept of “the Political” together facilitate a theorisation of human rights in the political context of both unity and plural contestation. Schmitt’s Political preserves a sense of the contested and threatened nature of consensuses (whether in liberal, legal positivist, or legal pluralist guise…), while O’Donovan allows us to retain a sense of the concrete political communities that unite around objects like human rights. As we have seen, the Malaysian case of Lina Joy features a community gathering around a particular alliance of legal text and religion. Text and religion are political objects, the objects of that community’s love. My suggestion is that discussion of human rights in Malaysia must take place in this sort of analytical context.
Augustine suggests that “in order to discover the character of a people, we have only to observe what they love”.Footnote 118 He encourages us to consider what unifies a polity and whom it is that is unified. In other words, he indicates that we should examine the character of political community. Schmitt puts it like this: for a legal order to be legitimate both as a “factual condition” and “as a just order”, then what we are really asking “is actually a question of a political unity’s form of existence”.Footnote 119 Thus we ought to ask about the identities, communities, and individuals who are the political agents of unity and contestation. In the world of human rights scholarship there is little theoretical accounting for the political communities who gather around human rights. As my case study shows, the remit of human rights in Malaysia is delineated by that state’s political, cultural and religious communities; communities which are themselves defined and constituted inter alia by human rights as negative and positive objects. In discussing the implementation of rights, scholars and activists do of course contemplate the communities in which rights might be implemented. But the grammar of the latter sentence betrays the problem. The key point here, again, is that these political communities are constitutive of the rights regimes, rights debates and even rights analysis. They exist prior to and define the limit and meaning of any human rights system and its implementation. In this way, Augustine allows us to conceptualise the substance of particular political arrangements like human rights law as objects that may or may not help constitute a polity’s existence.
Augustine’s definition enables rights to be coordinated with political community if we conceptualise the former as potential objects of that community’s love. And equally importantly, other objects may cohabit with and shape the love of those rights, or may replace rights entirely as the objects of a community’s love. In discussing how political society conglomerates around such objects, O’Donovan points to the primary role of words and traditions in investing these objects with meaning: “human communication is achieved by discourse that invests all other goods with cultural meaning; it involves not merely use of human goods but a common understanding of their significance”.Footnote 120 This then suggests that we pay attention to the way rights are signified (or not) through communication. Rights may or may not be signified by a community as something which shapes and defines them. Helpfully, in much recent scholarship by MacIntyre, Salvatore, and others, there is a rich store of scholarly work that takes tradition-laden communication between communities into full account. Simply put, the words of a community – which in my brief Malaysian case study are represented the words of the lawyers and commentators surrounding one particular case – provide guidance as to what role (if any) rights play in constituting that community.
Schmitt submits the flipside to Augustine’s picture of how communities are constituted. Schmitt’s concept of the Political indicates the threat of contestation in situations of apparent consensus. The error of the liberal and pluralist approaches was to suppose that the politics of consensus and exclusion could be avoided. When divorced from the disciplining warning of the Political, however, this is to miss the point. As Mouffe puts it:
the limits to pluralism are not only empirical limits; they also have to do with the fact that some modes of life and some values are by definition incompatible with others and that it is this very exclusion which constitutes them.Footnote 121
The Political, she continues, “must be conceived of as a dimension that is inherent in every human society and that determines our very ontological condition”.Footnote 122 It is, in Schmitt’s words, an “existential logic”.Footnote 123 The Political, then, is the friend-and-enemy relation which necessitates that antagonism is perennially possible. The implication for legal theorisation is that its unanimities (even in plural form) are provisional and its peace is temporary. Mouffe again, is explicit:
we have to take Nietzsche’s idea of the ‘war of the gods’ seriously and accept that, if there is no creation of an ‘us’ without delimiting a ‘them’, this relation may at any time become the site of an antagonism and the other may come to be perceived as an enemy’.Footnote 124
The Political functions as a cross-disciplinary caveat, an analytical reminder for social and legal analysis that plurality is a context not a solution to conflict. The Malaysian context, indeed, should make that observation abundantly clear; rights, the formalistic recourse to legal text, and a particular interpretation of Islam are in complex competition.
Crisis, in the sense that human rights stand as elements within a broader political combat, is thus inevitable. But insofar as rights activists or scholars perceive a crisis as anomalous, this can only stem from the misapprehension that rights might be freed from such political combat. In this sense, per Anthony Langlois, the crisis is engendered by rights’ “political success”. But contra Langlois, this is essentially concomitant and not distinct from the political question of whether rights are a “good idea”.Footnote 125 It is in being judged ‘good’ that rights become constitutive, or “constitutional” in Schmitt’s terms. So a legal pluralist analysis of human rights should be chastened by an understanding of political community. Human rights law is not only permeable within the social field, but it will also function to constitute communities and to delineate the politics between them. Plurality itself is anchored by a strong understanding of unity and contestation. Yet there is also an important subtext at play here, against what Žižek “designated” as secret solidarity: the appearance of an analytical device claiming neutrality but being invested in an unavoidably normative project. As both Augustine and O’Donovan assert, there is no knowledge divorced from love: “we know only as we love… all knowledge, then, has an affective aspect, just as all love has a cognitive aspect”.Footnote 126
D. Objects of Love, or Friends and Enemies
Thus in Malaysia the human rights agenda does not primarily confront a problem of textual interpretation or the intransigence of Muslim zealots, but rather it confronts a politics, and indeed, it is itself a particular politics. As I will now show, by failing to see this context, rights scholarship shows its analytical weakness and its practical shortcomings.
Malaysia’s relative ethnic stability is sometimes attributed to the historic political decision to grant an array of benefits to ethnic Malays.Footnote 127 Article 160(2) of the Constitution defines a Malay as one “who professes the religion of Islam, habitually speaks the Malay language [and] conforms to Malay custom”. This had significant consequences even in Lina Joy, where at first instance “it was her status as a ‘Malay’ that prevented Lina Joy from converting… rather than her status as a Muslim”.Footnote 128 Although this line of reasoning was abandoned at appeal, it illustrates the religious-ethnic complex wherein ‘Malay’ and ‘Muslim’ identity are interlaced. Brown argues that Islamic revivalism has affected a gradual replacement of the Malay/non-Malay dichotomy with that of the Muslim/non-Muslim as the main categories for identity.Footnote 129 This helps to explain Shamrahayu’s approach to the case, where positive law and Islam are seen as maintaining communal stability. With distinct circular reasoning, she argues that allowing apostasy would “hurt” the Muslims’ religious feelings, injuring the “tolerance and respect” of “multi-religious and multicultural” Malaysia.Footnote 130 Thus Lina Joy’s status, as represented by a change of her identity card, is not merely an abstract legal move in which the text bilaterally coordinates citizen and government. It is an existential and political transformation.
In Shuaib’s words, for “Muslims” (such as Lina Joy) “freedom of religion does not mean freedom from religion”.Footnote 131 Brown asks a revealing question in this context: “why does the state seek to privilege particular forms of identity distinction over and above other forms”? He answers by pointing back to the state itself:
[The] modernist, developmental project is inextricably tied to a legitimizing discourse based explicitly on the plural fabric of society, termed elsewhere the ‘ethnic leviathan’: individuals are defined first and foremost by their group affiliation and political order is derived therefrom… [This] posits the suppression of liberal democratic rights and norms and a concomitant submissive dedication to a modernist project of ‘development’ as the necessary price to pay in a Hobbesian bargain to obvert ethnic conflict. Increasingly, however, religion rather than ethnicity has proved more salient in this respect.Footnote 132
Text-and-Religion therefore delineates the Malay political community; they are the terms of political community.
Against this formidable arrangement, wherein Islam and text are intertwined as objects of the community’s love, traditional approaches to human rights law frequently offer simplistic narratives of progressive rights and law against regressive Islam. Julia Barry, for example, situates Lina Joy within a history “marked by a tension between [Malaysia’s] secular democratic aspirations and the historic reign of Shari’a law”.Footnote 133 Notwithstanding this highly questionable historical schema,Footnote 134 her thesis betrays a worryingly simplistic dichotomy. She describes a mythic split between an enlightened human rights-minded constitutional compromise, and the regressive phenomenon of Shariah law and “Islamic fundamentalism”.Footnote 135 A familiar pattern of positivist recourse to institutions and texts ensues: pleas are made for effective implementation through legal reform and/or education, critiques are provided of the incorporation model of implementation, perhaps the importance of local civil society is belatedly asserted.Footnote 136 Human rights groups, similarly, use these dichotomous terms of ‘rights defenders’ versus ‘rights abusers’.Footnote 137 Joshua Neoh from the superficially different perspective of the common law nevertheless ends with a similar warning, that the law might become the “Trojan horse” allowing Shariah law principles to “hijack” the system.Footnote 138 Yet against these progressive appeals the Malaysian Government’s attitude of distinct “ambivalence”Footnote 139 rings out heavily. Analytically then, scholars frequently fail to recognise that rights are necessarily elements within a broader normative competition. Politics, then, is analytically forgotten. And the result is, not surprisingly, bewilderment in the face of a Malaysian polity constituted by the love of a particular symbolic array of positive law and Islam.
Rights can of course be effective political tools. But to be effective as such, I take from Augustine that rights must be the objects of real communities’ love. Merry suggests that “rights may be deployed as resources both coercive and cultural, to actors who can find ways to use them productively”.Footnote 140 Langlois too, insists that rights are valuable tools for combating “felt problems”.Footnote 141 And rights have indeed been deployed as resources in Malaysia. The Malaysian Bar Council, most prominently, makes heavy use of rights categories in their advocacy for legal and social change.Footnote 142 Even within the state apparatus, the Malaysian National Human Rights Commission is credited with some notable successes.Footnote 143 To this extent, therefore, rights are objects of love in Malaysia. Yet in Merry’s view, the operation of human rights in domestic environments is “paradoxical”.Footnote 144 On the one hand, rights are potential resources: they provide an alternative discourse for justice, such as was appealed to by Lina Joy. On the other hand, rights manifest themselves predominantly through recourse to legality, control and institutions: resistance is channelled “into institutional systems which often absorb and deflect energy through the intricacies of procedure, implementation and enforcement”.Footnote 145 And from Lina Joy, it seems that the institutional dynamics of Muslim identity politics has crowded-out the language of rights expressed through procedure, implementation and enforcement.
But following Schmitt, there is an extent to which any deployment of rights will risk reinforcing the dominant friend-and-enemy relation. Particularly, when simplistically enlisted against the Shariah and Islam, they will only affirm the terms of the status quo by supporting the state’s productive dichotomies of Muslim/non-Muslim. Abdullahi An-Na’im and Peter Danchin are worthy counterexamples; asserting that “there is no alternative to developing a coherent and comprehensive methodology of internal cultural discourse”.Footnote 146 Likewise, even the rights-inspired Bar Association adopts Islam’s deeply embedded categories, seeing:
in the normative values of Islam, a set of legal principles that might challenge the fundamental injustices of a secular law that had ousted judicial discretion and mercy in favour of an homogenizing and totalizing view of national security and legal certainty.Footnote 147
But following Schmitt further, it would be erroneous to imagine that rights will transcend opposition. For the Schmitt’s Political implies that that the stronger the human rights system, the more it will enliven the decisive friend-and-enemy relation. So long as human rights remain only an unimplemented idea, they are politically neutral in Schmitt’s terms. But increasing strength is proportional to increasing politicisation.Footnote 148 As Schmitt says: “every religious, moral, economic, or other antithesis transforms into a political one if it is sufficiently strong to group human beings according to friend and enemy”.Footnote 149 The more that human rights are ‘real’, as it were, the more they will catalyse political competition. And the labels of law do not negate this situation of political contestation. The designation of something as ‘juridical’, ‘sovereign’ or ‘constitutional’ is analytically “incomprehensible if one does not know exactly who is to be affected, combated, refuted or negated by such a term”.Footnote 150 Legal polemic is always a political move against the other. Schmitt, indeed, singled out liberalism for attempting “to annihilate the political as a domain of conquering power and repression”.Footnote 151 But “the world will not become depoliticized with the aid of definitions and constructions”.Footnote 152 Particularly with the rise of the so-called Responsibility-to-Protect (R2P), but also with the increasing engagement of various international human rights bodies, human rights increasingly purport to delineate who is ‘in’ and who is ‘out’ of cosmopolitan political community. According to Schmitt, that which “decides the extreme case and determines the decisive friend-and-enemy grouping”,Footnote 153 or that which attempts to delineate “protection and obedience”,Footnote 154 is “by its very nature the decisive entity”.Footnote 155 This, then, helps to clarify the position of rights in Malaysia. And, it also clarifies the crisis of human rights. Rights are real in so far as they have catalysed political competition, quintessentially seen in Lina Joy itself. And just so, they are unreal, as rights did not ultimately succeed in shaping Lina Joy’s status. The fact of a crisis then, is the fact of politics.
III. CONCLUSION
Approaches to law have not accounted well for plurality. Human rights law will always speak discordantly into plurality insofar as it stems from a brand of liberalism which has been “from the beginning [an] attempt to deny history, particularity, and difference”.Footnote 156 The context of plural contestation, I have argued, necessarily entails analytical implications. The idea that rights should be conceived beyond the positivist and abstract paradigm is not new, but a legal pluralist support of that argument has been missing. I have suggested that a reassessment of human rights law in plurality entails a conceptualisation of the blurred character of those laws themselves. Such is the lesson of the semi-autonomous social field, that human rights law is not autonomous.
It follows that the practical deployment of human rights should expand beyond the confines of rationalist law and positivist text. As Langlois argues, the achievement of a set of rights outcomes is:
[The] end of a struggle between groups in society. It is not a process of social institutions being made to conform to an agreed theory of justice by rational actors but, rather, one group having mastered the arts of political persuasion so as to see their cause through, as against those who wish to retard such social change.Footnote 157
Rights’ outcomes are the end of moral struggle, the sum of the Political. The language in which rights arguments are conducted should not and “cannot be ‘purified’ or purged of its deep cultural and evocative associations”.Footnote 158 So this is firstly a practical conclusion; that rights will not be ‘implemented’ in Malaysia. Rights categories and outcomes, however, will be represented and debated, and perhaps, persuaded and enlarged. Crisis, to put it simply, is the context of rights not their avoidable outcome.
But there a second more profound issue speaks to the question of law itself. In this, my discussion has affirmed MacIntyre and Hauerwas’ broad reflections on law. The bureaucratic approach to law has swallowed moral debate, even in the erstwhile moral area of human rights. Ethics have been emasculated and rendered “the procedural means to settle disputes and resolve problems while leaving our individual ‘preferences’ and desires to our own choice”.Footnote 159 Yet as I have shown, in Malaysia this procedural compromise comes up against a forthright and culturally-charged conception of the human in political community. As repression and resistance are rooted in thick socio-political arrangements, so generating a thick response to repressive legal scenarios requires embedded tradition. Hauerwas puts it like this:
For the law to be part of the way of life that helps us serve one another it must draw its rationale from practices that are more determinative than the law itself. That is, it must acknowledge that the law is always in service to a politics – a politics, that to be sure involves power, but not as an end in itself but rather in service to goods such as marriage or the peaceful resolution of conflicts.Footnote 160
And so in the Malaysian Bar Association, for example, rights are integrated into a practice of socio-legal behaviour which is a small but persuasive example of a convincing politics.
No doubt part of the attraction of human rights lies in the alluring promise of universal justice. Yet modernity always brings the temptation of reductionism, and hesitancy toward “the particularity of traditions”.Footnote 161 As Schmitt’s concept of the Political advised, any given authority on the content of justice is definitively a frontier. Neither liberal human rights nor the post-modern reification of plurality can be a definitive statement on justice. This does not represent a rejection of the idea of notions of justice. Rather it is to see accounts of justice in context. With Oliver O’Donovan, it is to see that contestation:
arises because the moral field is pluriform. It does not arise out of the adequacy or inadequacy of the moral code which the agent may happen to have been taught, or to have formulated for himself… The order of reality holds together a multitude of different kinds of moral relation, and orders them without abolishing their differences. Moral codes must teach a moral law which corresponds to the order of reality in its differentiation and complexity.Footnote 162
To aver to the reality of plurality is not to submit to moral relativism. It is, however, to recognise that legal behaviour is a practical outworking of moral judgement within a plural moral field. At their best, human rights will be objects of a conscientious and loving knowledge against the apparent thinness of current ethical practice. It remains unlikely that rights as bare textual or abstract objects, born by a tradition of purported neutrality, could gather the necessary cultural and political depth to support such a political unity.
