It is noteworthy—and at the same time a bit disappointing in a what-took-so-long sort of way—that a recent innovation in the study of human rights should involve a focus on the lives of the people directly affected by them. To explain this delay of the obvious would probably call for a review of the persistent influence of Kantian transcendentalism, the quasi-utopian search for ideal justice, and the inherently abstract nature of law in its quest for impartiality. A similar effort could be applied toward fully understanding the changed circumstances that encouraged the shift toward practical realism. It would have to take into account the surprisingly late elaboration and popularization of human rights instruments, the proliferation of transnational NGOs that act on new opportunities to exercise moral and political influence, and the growing reach of new technologies of information and communication (necessary tools for the emergence of transnational NGOs). All of these developments have raised the prominence of legal issues and strategies among those once considered isolated and, in varying degrees, uncivilized. But whatever the dominant trends might once have been, and whatever new, enabling circumstances have recently emerged, there can be little doubt that over the last several decades a shift has taken place in the study of human rights toward practical or applied realism, with a focus on ordinary actors.
This review essay considers three recent contributions to a body of literature on human rights that take as their starting point this very assertion of realism, as against established traditions of abstraction, formalism, and utopian imaginings. Amartya Sen, in The Idea of Justice, makes his argument in a general way, calling for a “practical reasoning” that avoids the pitfalls of the quest for perfect justice. He proposes a close study of “the relationship between social institutions and actual—as opposed to ideal—individual behaviour,” which, he argues, “cannot but be critically important for any theory of justice that is aimed at guiding social choice towards social justice” (69). Here Sen departs from the failings of abstract political philosophy in much the same way that his Reference Sen1999 book Development as Freedom pointed to the flaws and, ultimately, cruelties built into the abstractions of dominant, GDP-based economic theory. Human rights are important to this effort, as the expression of broadly legitimate aspirations for human improvement, with built in possibilities for the kind of negotiated, pluralist universalism that Sen sees as providing something close to an answer for the ever-problematic quest for justice.
The other two books that I discuss here make distinct contributions to a sub-discipline referred to with growing frequency as “legal anthropology.” Mark Goodale's Surrendering to Utopia provides an overall justification of this field of study, while documenting and theorizing his way around its neglect, particularly in the realm of human rights. The practical reality of law gets its closest treatment in Harri Englund's Prisoners of Freedom, in which the distortions of universal human rights ideals are observed in interactions between the underclass of Malawi and their would-be advocates. There can be no better answer to Sen's call for practical legal realism than Englund's account of the relationships between NGO workers and their supposed beneficiaries, with its seemingly limitless capacity for unintended (mostly disastrous) consequences resulting from the legal aid workers' ideas and attitudes: a potentially lethal combination of narrow legal knowledge, radical hope, and moral hubris.
The order in which I have arranged my treatment of these books can be seen as something like a sliding scale of increasing distance from formal systems of abstract principles that reject contingency, toward an acceptance or privileging of the everyday uses and consequences of justice in action, which seek to accommodate particularism, paradox, and conflicting values. In arranging the reviews this way my secondary goal is to see at what point certain key assumptions and perspectives fall away and are replaced by others, making it possible to consider the gains and losses of the various starting points and their corresponding methodological approaches to the social study of human rights.
The first step we will take in this overview is what Amartya Sen, in The Idea of Justice, refers to as “liberation from positional sequestering,” by which he means the movement beyond disconnected musings or thought experiments about the nature of perfect justice, while orienting our search for justice instead toward the practical necessities of value pluralism and negotiated compromise. Sen takes as his starting point a respectful critique of John Rawls's hugely influential A Theory of Justice (Reference Rawls1999 [1971]) and its revival of the contractarian approach to justice, which uses a hypothetical original position as a device for arriving at the fundamental principles of “justice as fairness.” The elegance and influence of this approach derive in good measure from the fact that out of a purely abstract starting point—the imagined coming-together of people with diverse interests and conditions in life seeking a just constitution—it becomes possible to envisage real-world possibilities for institutional reform. But in accomplishing this, as Sen points out, it fosters a kind of rational utopianism that thrives in its distance from the untidy implementation of ideals.
In its most basic form, Sen's critique has been made many times before, and not only with reference to Rawls. Ultimately, it has its counterpart in the German Enlightenment of the late eighteenth century, particularly Herder's rejection of any philosophy of history (mainly those of Kant and Voltaire) inclined toward abstraction, rational ordering, and a privileging of cosmopolitanism. In his 1774 essay, “This Too a Philosophy of History, Herder makes a passionate plea for the study of the actual and the real as against abstract principles: “Have you ever taught a child … to walk from the most abstract theory of motion?” (Reference Herder and Michael2002: 279). The solution was then, as now, some form of empiricism, but Herder's approach was infused with now discredited (but persistent!) romantic longings after the inner essence of Völker who embodied historically distinct conditions of life.
Despite the long history of the cause of empirically grounded realism, Sen takes an original approach by going outside the familiar canon of political philosophy, drawing on eastern concepts, and in the process adding to the universality of his ideas, which, after all, have universal aspirations. Leaving the safe confines of closed, transcendental logic calls for an argument that in some way corresponds to its great ambitions, that remains globally inclusive, that still answers to the needs of those who hanker after universals. This Sen provides in part with a wide-ranging, at times entertainingly imaginative inclusion of the political philosophies of Eastern classics. Not only does world-embracing empiricism have deep roots in the Occidental imagination; the Indian emperor Ashoka has much to tell us about tolerance and dialogue, and durable universal lessons are to be found in Indian epics like the Valmiki Ramayana and the Mahabharata. In particular, classical Sanskrit provides the concept of nyaya, the idea of justice as it is realized in the world, in its effects on human lives, underscoring Sen's central argument that “the subject of justice is not merely about trying to achieve—or dreaming about achieving—some perfectly just society or social arrangements, but about preventing manifestly severe injustice” (21).
While Sen should be given credit for clearly and convincingly posing the challenge of realism in the formulation and actualization of justice, and commended for the effort to apply some of the same empirically grounded principles of his “welfare economics” to global principles of justice, he ultimately retreats to the safety of abstraction in thought and method. There is, for example, a certain hopeful defiance of reality—while robustly arguing for its virtues—that applies to his conception of human rights. These he presents as universal moral claims, separate and distinct from their actual origins within the state-centered anarchy of international law. The very real mechanisms of and impediments to the application of human rights, which can be found in the workings of international agencies, the interests and policy decisions of states, and the often quasi-utopian ambitions of transnational NGOs, are nowhere to be seen in his portrayal of human rights as a moral vision. The legislative dimension of human rights and the manner of their application are secondary to their status as “ethical claims constitutively linked with the importance of human freedom, and the robustness of an argument that a particular claim can be seen as a human right has to be assessed through the scrutiny of public reasoning, involving open impartiality” (365–66).
As a corollary to his emphasis on public reasoning, Sen identifies a new quality to justice claims that have particular relevance for the effectiveness of human rights: the growing significance of media and with it new possibilities for information and communication to mobilize social activism. Having broken out of the limits of transcendentalism and embraced the complexity and ambiguity of human experience, a great deal hinges on media and mobilization of public opinion. Sen's starting point here is public response to famine, in which greater possibilities of media coverage “can make the fate of the victims a powerful political issue with far-reaching effects on the climate of media coverage and public discussion, and ultimately on the voting of others—a potential majority” (343–44). This is good news as far as it goes, but it leaves the overall picture of the implications of media for the practical fate of justice largely untouched. Take, for example, the toxic effect on public reason (and hence democracy) of the U.S. Supreme Court's 2010 decision to allow corporations to spend anonymously and without limits on political advertising. Or consider, more generally, the problem of the sheer volume of rights claims through media, which diminishes the public influence of nearly everyone with a legitimate need of redress from inequity or oppression, that is to say, nearly everyone other than those who suffer visibly and catastrophically, enough to move increasingly jaded distant spectators to action. Given that the reality of people's aspirations and experience with justice are what human rights are all about, then more attention can certainly be given to such uncomfortable truths, simply in the interest of depicting rights in action, without necessarily succumbing to the paralysis of hyper-criticism.
Sen invests heavily in social choice theory as the privileged technique for arriving at a grounded approach to justice, and this would appear to be the ultimate source of his departure from the real-world engagement that he advocates with such persuasiveness. In social choice theory we find established methods (described but not actually applied in the book) for taking human preference into account in such all-important endeavors as formulating economic policy and designing voting procedures. It is, as Sen explains it, an evaluative discipline in which the outcomes “take the form of ranking different states of affair from a ‘social point of view,’ in the light of the assessments of the people involved” (95). The central problem with this is that even in the absence of a real demonstration of the method applied to justice issues, we can foresee its central failing: We can expect the key concepts of justice to be very different from the raw material of economics and political preferences, by which—largely through Kenneth Arrow's demand for clearly defined axioms (Reference Arrow1950)—social choice theory has proven itself. Corn, casualties, and pre-reified political choices lend themselves more readily to identification and articulation of values than do freedom, justice, democracy, and other concepts at the foundations of liberalism (another slippery idea) considered globally and comparatively. Sen's privileged method involves broadening the application of social choice theory to include concepts which, when applied to humans in social context, add the vexations of translation to their inherent obscurity. Expanding the methods of social choice to include a wider range of concepts, perspectives, and “informational outputs” does not promise a convincing answer to the need for engagement with the lived experience of policy decisions and institutional practice.
Faced with the same incompatibility between formalism and experience, and while sharing the substance of Sen's critique, Mark Goodale arrives at quite a different preferred solution: the long-term ethnographic perspective of anthropology. For Goodale, those who take a philosophical approach to rights and justice see problems “as either conceptual in themselves or, if not, then they believe that the solutions to problems should, in the best of circumstances, be conceptual” (47). But there can be no practical answer to questions that are “embedded in the abstracted spheres in which competing accounts of concepts clash” (48). Rawls's deductive approach, in particular, has reinforced a philosophy of justice that is remote from human experience: “[I]t is impossible to know whether there can even be empirical correspondence between the implications deduced from unproven first principles and the practice of everyday life” (117).
In response to this state of affairs, Goodale proposes a new discipline, or rather a dusted off discipline that has been sadly overlooked in the development of human rights. Anthropology, with its simultaneous commitments to the common qualities of humanity and to humanity's tremendously varied expressions of difference, has what it takes to make sense of the extended reach of transnational norms and institutions and provide a corrective to abstract, global normativity. Human rights, in particular, Goodale argues, would look different if anthropological perspectives had, from the beginning, been taken into account, above all through greater attention to collective rights. This is now the emerging trend, with the plights of ethnic minorities and indigenous peoples coming to the fore (and to the forums), creating not just a challenge for the human rights movement but contributing new questions and material for social research.
Goodale argues persuasively that the “postnational constellation”—marked by the growing importance of transnational norms and institutions—has created new conditions, in anthropology and other disciplines of social inquiry, for the ethnographic method. These may seem unlikely circumstances for a method so firmly grounded in intimacy and locality. But more than ever before, it is possible to witness at first hand the encroachments of ideas and institutions with global reach. “Foundationalism and universalism are themselves ideas that can become particularly meaningful in social practice, and the anthropologist (or other researcher or cultural critic) does a valuable service by making their importance and power topics for close engagement and critical scrutiny” (9). In much simpler terms, lawyers and bureaucrats are now among the savages of ethnological inquiry, and one of the newest research challenges is to observe in practice the connections between their thinking and the social orders they influence.
Discussions of human rights, however, are complicated by the fact that “certain core meanings are apprehended by people intuitively, emotionally, and implicitly.” This observation supports the point I made earlier concerning the difficulties of extracting the measures that are built into Sen's approach to social choice theory. It means, “It is only through the close ethnographic engagement with the practice of everyday life that [alternative ways of understanding the range of problems associated with relativism and human rights] become apparent” (59). Goodale illustrates this point by citing the work of other anthropologists, such as Shannon Speed's (Reference Speed2008) study of the transnational networks that converge on the indigenous resistance movement in Chiapas, Mexico, and a major contribution to legal anthropology by Sally Engle Merry (Reference Merry2006), who makes her own use of comparative ethnography to highlight some of the moral vexations of human rights, particularly women's rights, when translated and applied (or in her terms “vernacularized”) in local settings with their own assemblages of custom and political interest.
One of the core issues presented by Goodale involves a distinction between human rights universality and human rights universalism. Universality is based on the idea of common humanness, a claim that is at the core of the modern ideas of human rights (15). Human rights universalism, on the other hand, involves a kind of utopianism in action, “the complicated discursive presence of these claims as they are acted upon within existing legal, moral and political practice” (15). Anthropology contributes to both domains. The cause of universality has benefited from anthropology's arguments in favor of humanity as a single, undifferentiated species, over and against the disorienting fact of human multiplicity, with anthropologists in the early history of human rights successfully asserting (without recognition of this accomplishment) “the most important putative cross-cultural fact: that human beings are essentially the same and that this essential sameness entails a specific normative framework” (18).
Universalism is also evident in anthropology. In fact, in recent years it has moved front and center, particularly in “more recent attempts by individual anthropologists and the discipline's largest professional association to re-engage with human rights as both an object of study and a vehicle for emancipatory political practice” (19). And largely through its post-colonial commitments to emancipation, anthropology has become mired in the newest contradictions of culture. Anthropologists have shifted from the idea of culture as a bounded entity, often some permutation of the German Kultur with a “K” with its affinity to the idea of an inner essence or Volksgeist, to an idea of culture with an emphasis on process or more particularly on “inter-subjective” meanings and practices that are shifting and contested. This conceptual transformation, however, remains incomplete, in part because of the objectifying effects of human rights advocacy, which anthropologists as an entirety (as would-be defenders and describers of the marginalized and forgotten) have taken up with alacrity. Universalism, with its utopian overtones, is reflected in the choice of anthropologists to “tightly bundle their political commitments with their professional practice” (121). But how is it possible to promote a people's rights when their identity as a people is analytically insecure, when they represent just one of many possibilities for collective self-representation and rights claims? Goodale's conceptual map makes it possible to see a fundamental contradiction in the consensual foundations of anthropology: it categorically rejects the notion of bounded culture, while engaged in advocacy premised on the cadastral orientation of the law of peoples, and that periodically implicates anthropologists in the boundary-enhancing fabrications of identity construction and the politics of micro-nationalism.
The cultural contradiction (or contradictory approach to culture) that plagues the agencies of global governance runs along similar lines, though its origins in policy are quite different. Human rights are based in a core conviction that followed from the experience of World War II and the era of decolonization: that individuals required protection from states, often from the very states of which they are citizens, and that human rights could serve as “an ultimate check on the abuses of culture manifested as nationalism” (75). But this went along with an impulse to redefine culture as a kind of property, without which individuals would be unable to prosper, and following from this, to codify cultures, to name them and to list the essential attributes that the global community would be committed to protect. Hence, we arrive at the cultural protection initiatives of UNESCO, as in the 2001 Universal Declaration of Cultural Diversity, which returns to the professionally discarded anthropological approach to culture as a bounded object of inquiry, appreciation, and protection.
Also possible through the new anthropology of law are ethnographies of human rights networks, with NGOs as the principal actors whose behavior is the problem of investigation. Human rights networks have hegemonic tendencies, or tendencies to become “imperial,” through “the evacuation of alternative discourses on the basis of what the imperial power believes—earnestly or not—is the correct, or morally superior, or economically more advantageous set of perspectives and practices” (108). The common denominator of Goodale's critiques of the cultural conceptions of agencies of global governance and of human rights-oriented NGOs is their shared resort to distorted conceptions of culture connected to unrealistic futurism, as captured in a summarizing statement: “The problems that culture poses for human rights theory and practice will not really be solved until those who have chosen to surrender to utopia come to terms with everyone else” (90).
The programmatic nature of Goodale's overview necessarily introduces the despair of sweeping, unassailable critique based on the clarity of fact and reason, while calling on his readers to take his glimmerings of optimism on faith, based as they are (as with Sen) in a method—ethnography—that lies within his specialized competence but beyond his immediate purpose. Harri Englund, in Prisoners of Freedom, accomplishes what Sen and Goodale, in the books I have chosen to review, cannot: a critical study of human rights in practice dedicated to a single, tightly focused setting.
The evidence in Englund's book advises caution with Sen's admiration for freedom. At the intersections of NGOs and the poor of Malawi, normative approaches to rights often become entangled in the very rhetoric that needs to be scrutinized, a situation that makes salient “the perils of isolating political freedoms as the essence of democracy” (12). The situation Englund describes—making full use of his fluency in Chichewa and the experience of many years in Malawi, together with the moral authority of his ongoing commitments to working in the region—is at variance with the complacency of those who have convinced themselves of possibilities of human betterment simply by evangelizing the moral message of rights. In Malawi, “NGOs, in effect, exercise a form of self-control, potentially far more insidious than any law that the government can formulate. Their discourse is elitist, even though many of the self-proclaimed experts of freedom, democracy, and human rights do not belong to the elite” (20). Translation of human rights instruments “has taken place as a ‘top down’ exercise, with no evidence of attempts to consult a broad cross-section of native speakers before launching a translation for human rights” (48). And “human rights discourse—even when asserting all individuals as equals—can be deprived of its democratizing potential and made to serve particular interests in society” (49). This is a setting in which “well-meaning activists believed that their knowledge of rights had not yet touched the lives of the grassroots. Activists sought to ‘enlighten’ the Malawians they considered as the grassroots, also known as the masses. They referred to this process with the Chichewa verb kuwunikira, which connotes the shedding of light. Activists saw themselves as the torchbearers, the ones who brought light to the darkness” (71).
One of Englund's more disconcerting findings is “the extent to which an NGO's legal officers used their apparently exclusive legal knowledge to avoid confronting the exploitation that many Malawians endured.” Under these circumstances, “democracy” and “human rights” were not “allowed to exist as contested concepts, amenable to the expression and negotiation of diverse interests” (125). Instead, contempt for the victimhood of their clients, made each of them appear as a “saboteur of his or her own freedom” (129).
Englund's critique is accomplished not just in the manner of an exposé, not just as an effort to bring out the real life consequences of evangelical approaches to human rights, but applies equally to the rethinking and reframing of the idea of justice, the very problem engaged in by Sen. It describes circumstances in which the universalism of preconceptualized ideas of freedom and democracy inevitably results in their negation. Hypocrisy is built into the intellectual tool kit of Africa's rights reformers from the outset. The parameters of their discussions with supposed beneficiaries of freedom and democracy are closed—or perhaps open only in the way of traps, ready to spring shut on entry.
Unexpectedly, Englund's blistering condemnation of human rights approached as a creed leaves room for optimism, or at least recognition of ongoing possibilities for the ideals of democracy, development, and freedom that are the driving forces of the rights movement. In contrast with the narrow, subject positions of rights activists, the “claimants seeking legal aid, and the urban poor caught in the midst of moral panic consistently voiced concerns that were of general import. They demanded attention to the necessity to inform any realization of human rights with an understanding of the situations in which people live” (204). Clearly enough, an alternative approach to human rights universalism would begin with close attention to the conceptualizations of the rights-related ideals of the Africans themselves, that is to say, to navigate the civic virtues that emerge out of explicit and inclusive negotiation (193).
This finding would certainly appear to have wider implications than the particular setting and circumstances of Malawi, but the necessarily tight focus of Englund's ethnography, which is its specific strength, at the same time leaves unanswered some of the comparative implications of his work. Englund approaches his ethnography with an unusual, perhaps unique, degree of honesty—verging on contempt for the kind of power interests that commonly manage to control both the lives of the poor and the findings of researchers—and this makes it difficult to generalize from the setting he describes. There is enough of a ring of truth to his account of the activists' elitism and complicity with the attitudes and structures of extreme social inequalities to suggest that this is common to human rights activism almost everywhere. But there remain some settings where we see an everyday practice in which the subjects of rights are engaged in more direct, strategic use of human rights and their starry-eyed NGO advocates, not just engaged in futile resistance through systemically incompetent NGOs or passively venting their agency through wild rumors. The Maasai of Kenya and Tanzania, for example, have made active use of activists, seeking protection from state encroachments on pasturage by pursuing legal claims and participating in various international forums as an indigenous people and as a pastoral people (Hodgson Reference Hodgson2004). Englund would very likely not deny that human rights are malleable by the particular interests of the powerless as well as the powerful, though his emphasis is clearly on the abuses of states and NGOs. This strategic use of human rights networks and institutions of course raises possibilities for new avenues to power from within the communities of the marginalized. At the same time, new strategies of rights campaigning add the complexities of cultural appeal to potentially sympathetic audiences as a rights strategy, with its built in potential for self-stereotyping and corruption of the goals of self-determination (Niezen Reference Niezen2010). This is simply to say that Englund's courageous ethnography raises comparative questions and possibilities, which he points to but cannot fully realize in a single ethnography, in which the outlines of an alternative approach to human rights, absent the errors of elitism and imperialism, can be seen more clearly than ever before.
This brings us to an important common denominator evident in all three approaches to the social study of human rights: none call for an outright rejection of transnational normative systems. There are no romantic longings after simple, self-enclosed prosperity, just a certain Weltschmertz in response to the systemic suffering and indignities imposed on people who deserve better. Human rights are now mainstream, an unavoidable fact of life, with which we as scholars with critical training can either reconcile, and to which we can apply our skills of observation and interpretation, or which, in our absence, will change the world for better or worse (and probably a bit of both in varying degrees).
